Intellectual Property Law Commons^™

Do We Have A Right To Speak With Another's Language? Eldred And The Duration Of Copyright, Wendy J. Gordon

Faculty Scholarship

The law embodies two contradictory sets of rights and interests pertaining to copyright and speech. On the one hand. stand authors' claims to deserve compensation and control over their works. On the other hand stand the public's claims to be free to build on and deploy the cultural works that pervade daily life.

Copyright, Containers, And The Court: A Reply To Professor Leaffer, Niels Schaumann

Faculty Scholarship

The author finds little with which to be pleased in the Court’s recent copyright cases. The Court seems to be fighting a holding action, fending off the future by resolutely gazing backward. While the Court has not itself enlarged copyright, it has not meaningfully evaluated Congress’s power to do so, and its decisions freeze copyright into a moment in time long past. Until copyright law recognizes that content is no longer container-bound, it will continue to flounder, desperately seeking analogies to the past and missing the significance of the technological changes all around us. That said, the author agrees with …

Old Lyrics, Knock-Off Videos, And Copycat Comic Books: The Fourth Fair Use Factor In U.S. Copyright Law, Gregory M. Duhl

Faculty Scholarship

This article examines the fourth fair use factor in copyright law in cases in which the unlicensed use benefits, or has no effect on, the copyright holder's market. It proposes a two-part framework for these cases. If the unlicensed use is transformative or public, and the use does not harm the copyright holder's market, the copyright holder's economic expectancy is protected, and the user should not have to pay damages, analogous to the law of eminent domain. In cases in which the unlicensed use is private, the court should protect the rights of the copyright holder with damages, even if …

The Right To Claim Authorship In U.S. Copyright And Trademarks Law, Jane C. Ginsburg

Faculty Scholarship

If you inquired among the general public, “What does U.S. copyright law protect?” many people might start by grumbling that it overprotects piggish record companies. Calming slightly, they might next reply that copyright protects authors' rights and that among those is the right to be recognized as the author of the work. Indeed, few interests seem as fundamentally intuitive as that authorship credit should be given where credit is due. For example, in prelapsarian, pre-Napster days, the act of copyright infringement in which a youthful individual most likely engaged was probably plagiarism: there, lifting another author's text may have been …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of …

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Faculty Scholarship

The subject matter we are going to talk about is variously named and thewords have some resonances of importance. I am going to use the phrase "Free Software" to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

My purpose this …

The New Technology Transfer Block Exemption: A Welcome Reform, After All, Maurits Dolmans, Anu Bradford

Faculty Scholarship

This article discusses the most important changes introduced at the final stage of the Commission's review of the technology transfer block exemption regulation (“TTBER"), and examines the benefits and the challenges of the new regulatory framework for technology licensing.

The new TTBER represents a significant improvement over the Commission's draft TTBER, published in October 2003. Most importantly, the Commission agreed to revise the list of hardcore restrictions between competitors, which was over-inclusive and had the potential to seriously hinder technology licensing in horizontal agreements. In addition, the list of hardcore restrictions between non-competitors and the interpretation of "know-how'' (and thus …

Copyright's Communications Policy, Tim Wu

Faculty Scholarship

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …

Copyright And Free Expression: Analyzing The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyse copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

Intellectual Property Rights In Plant Varieties: An Overview With Options For National Governments, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Consolidating The Diffuse Paths To Trade Dress Functionality: Encountering Traffix On The Way To Sears, Margreth Barrett

Faculty Scholarship

No abstract provided.

The Implementation Of Fda Determinations In Litigation - Why Do We Defer To The Pto But Not To The Fda?, William G. Childs

Faculty Scholarship

This Article examines the possible inequity of the treatment of licensees' rights in tort litigation in comparison to patent rights in patent litigation. In particular, this Article presents the presumptions afforded from issued patents as a valid model for the proper treatment of FDA approval in litigation. Presently, most academic discussion proposes either preclusion of tort claims or leaving the system more or less as it stands. This Article, on the other hand, proposes a middle ground.

This Article begins by examining the differences between the USPTO and the FDA. In particular, the quantity and quality of the review provided …

Copyright Class War, Niels Schaumann

Faculty Scholarship

No abstract provided.

Information Costs In Patent And Copyright, Clarisa Long

Faculty Scholarship

Why do we have more than one form of intellectual property rights? Why are the structures of the patent and copyright forms so different? What determines the optimal structure of each form? The conventional theory of intellectual property rights posits that such rights exist to stimulate the creation and distribution of intellectual goods.1 Alternatively, theories of personhood justify intellectual property rights on the grounds that they protect objects through which authors and inventors have expressed their “wills,” which is central to self-definition and personhood, or that they create social conditions supportive of creative intellectual activity, which in turn is conducive …

The Open Source Biotechnology Movement: Is It Patent Misuse?, Robin Feldman

Faculty Scholarship

No abstract provided.

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analysis Of The Doctrine In Its Current Form, Woodrow Hartzog

Faculty Scholarship

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon

Faculty Scholarship

This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …

Trademarks And Consumer Search Costs On The Internet, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …

Where Have The Great Inventers Gone?, James Bessen

Faculty Scholarship

The author expands on the idea that the patent system has been a hinderance to collaborative innovation.

The Software Patent Experiment, Robert M. Hunt, James Bessen

Faculty Scholarship

Over the past two decades, the scope of technologies that can be patented has been expanded to include many items previously thought unsuitable for patenting, for example, computer software. Today, the U.S. Patent and Trademark Office grants 20,000 or more software patents a year. Conventional wisdom holds that extending patent protection to computer programs will stimulate research and development and, thus, increase the rate of innovation. In this article, Bob Hunt and Jim Bessen investigate whether this has, in fact, happened. They describe the spectacular growth in software patenting, who obtains patents, and the relationship between a sharp focus on …

Rethinking Copyright Misuse, Kathryn Judge

Faculty Scholarship

Over the last few decades, copyright has evolved in dramatic and unprecedented ways. At the heart of this evolution lies a series of changes in the statutory scheme that have substantially expanded copyright's scope. There has also been a rise in private ordering as copyright holders increasingly use licenses to govern use of their copyrighted material and thereby supplant the default terms prescribed by the Copyright Act. Mediating and contributing to this evolution has been the judiciary. The judiciary has long played an active role in protecting copyright policy, and the dynamism of the last thirty years has only accentuated …

An Empirical Investigation Of Liquidation Choices Of Failed High Tech Firms, Ronald J. Mann

Faculty Scholarship

Perhaps it is merely a reflection of my interests, but to my mind, empirical research requires a certain risk-preferent boldness. I like projects that explore how and why particular businesses make important decisions. After I identify a topic, I typically try to gather as much qualitative and quantitative information about it as I can, with the expectation that when I have learned a great deal about the topic something interesting will emerge that relates in some important way to an ongoing academic debate. Those projects usually do not begin with a specific hypothesis to prove or disprove-often either answer will …

Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali

Faculty Scholarship

Only about 1% of newly developed drugs are for tropical diseases, such as African sleeping sickness and dengue fever. While patent incentives and commercial pharmaceutical companies have made Western health care the envy of the world, the commercial model works only if companies can sell enough patented products to cover their R&D costs. The model thus fails for diseases found largely in the developing world, where markets for patented products are tiny. Any solution to the problem of tropical diseases must recognize the need for rigid cost-containment. An open source approach to identifying promising drug candidates would keep costs down …

Regime Shifting: The Trips Agreement And New Dynamics Of International Intellectual Property Lawmaking, Laurence R. Helfer

Faculty Scholarship

This Article draws upon the international relations theory of regimes to analyze the growing chorus of challenges to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and to the expansion of intellectual property rights more generally. The few years since TRIPs entered into force have seen nothing less than an explosion of interest in intellectual property issues in international fora not previously concerned with the products of human creativity or innovation. Intellectual property is now at or near the top of the agenda in intergovernmental organizations such as the World Health Organization and the Food and Agriculture Organization, …

Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali

Faculty Scholarship

No abstract provided.

The Copyright Divide, Peter K. Yu

Faculty Scholarship

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to …

Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin Effron

Faculty Scholarship

No abstract provided.

China And The Wto: Progress, Perils, And Prospects, Peter K. Yu, Gordon G. Chang, Jerome A. Cohen, Elizabeth C. Economy, Sharon K. Hom, Adam Qi Li

Faculty Scholarship

In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human …

Four Common Misconceptions About Copyright Piracy, Peter K. Yu

Faculty Scholarship

Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, …