Intellectual Property Law Commons^™

Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created …

Alternatives To March-In Rights, David S. Bloch

Vanderbilt Journal of Entertainment & Technology Law

The Bayh-Dole Act is an inspired piece of legislation. But its "march-in" provisions are too often a source of confusion and fear for private-sector companies that want to do business with the US government--despite the fact that the government has never exercised its march-in rights. Are there alternatives to march-in rights that would effectively serve the government's public policy needs while eliminating this perceived threat to private intellectual property rights? This Article describes march-in rights in theory and practice, and then weighs several alternatives to traditional Bayh-Dole march-in rights.

"Blurred Lines" Means Changing Focus: Juries Composed Of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries, Jason Palmer

Vanderbilt Journal of Entertainment & Technology Law

The verdict in Williams v. Bridgeport Music, Inc., or the "Blurred Lines" case, surprised a lot of people. It surprised the public, as many did not expect there to be infringement. It also surprised the litigants, because the jury's special verdict form contained a logical inconsistency indicating that something had been decided incorrectly. However, the jury cannot be faulted for this inconsistency because it was tasked with deciphering the indecipherable. The fault lies in the way copyright law establishes infringement. This Note investigates the apparent circuit split in determining music copyright infringement and proposes that it is illusory. All circuits …

College Athlete Rights After O'Bannon: Where Do College Athlete Intellectual Property Rights Go From Here?, Victoria Roessler

Vanderbilt Journal of Entertainment & Technology Law

The recent O'Bannon v. NCAA decision, which gave student athletes a right in products that exploit their image and likeness, will have a profound impact on college athlete rights. This giant step forward will propel student athletes to fight for more intellectual property rights. Following the footsteps of professional athletes, these rights will likely include copyrighting sports moves, touchdown celebrations, and signature phrases as well as trademarking nicknames and touchdown dances. This Note encourages the adoption of a program giving student athletes these rights and allowing them to receive compensation, uncapped, that they would split evenly with his or her …

Implementing The Frand Standard In China, Jyh-An Lee

Vanderbilt Journal of Entertainment & Technology Law

The modern world relies on technical standards, most of which involve standard-essential patents (SEPs). To balance SEP holders'fair compensation with standard implementers' access to standardized technologies, standard-setting organizations (SSOs) generally require that their members commit to license their SEPs on a fair, reasonable,and non-discriminatory (FRAND) basis. In recent years, the communications industry has seen a growing amount of litigation concerning SEPs and FRAND in many jurisdictions. As China has grown into a major player and market in the worldwide communications business, its public policy, court decisions, and private business strategies concerning SEPs and FRAND are likely to have a huge …

Innovation Rewards: Towards Solving The Twin Market Failures Of Public Goods, Gregory N. Mandel

Vanderbilt Journal of Entertainment & Technology Law

The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.

Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law …

Health Information Ownership: Legal Theories And Policy Implications, Lara Cartwright Smith, Elizabeth Gray, Jane H. Thorpe

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the nature and characteristics of health information that make it subject to federal and state laws and the existing legal framework that confers rights and responsibilities with respect to health information. There are numerous legal and policy considerations surrounding the question of who owns health information, including whether and how to confer specific ownership rights to health information. Ultimately, a legal framework is needed that reflects the rights of a broad group of stakeholders in the health information marketplace, from patients to providers to payers, as well as the public's interest in appropriate sharing of health information.

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols

Vanderbilt Journal of Entertainment & Technology Law

The Ninth Circuit's opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit's holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the "likelihood of confusion" test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit's opinion …

The Lisbon Agreement: Why The United States Should Stop Fighting The Geneva Act, Danielle Dudding

Vanderbilt Journal of Entertainment & Technology Law

In May 2015, members of the World Intellectual Property Organization (WIPO) held a Diplomatic Conference that resulted in the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications. The Act modified the Lisbon Agreement (originally created in 1958), extending its previous protection of appellations of origin to geographical indications as well. The United States, which remains a non-party to the Lisbon Agreement, has been adamantly against the expansion of the Agreement to geographical indications. This Note explores the issues surrounding the Geneva Act, the state of the law and international agreements leading up to the Act, …

Developments In Synthetic Biology Are Altering The Ip Imperatives Of Biotechnology, Christopher M. Holman

Vanderbilt Journal of Entertainment & Technology Law

While the accomplishments of the biotechnology industry have been substantial, recent technological advances promise to dramatically increase the power and utility of the discipline over the coming years. The term "synthetic biology" has been coined to describe the application of these powerful new tools to the engineering of synthetic genetic sequences and organisms. In essence, synthetic biology represents the next iteration in the ongoing evolution of biotechnology, and hopes run high that in time, the fruits of synthetic biology will dwarf the past successes of conventional biotechnology. There is, however, some concern that the current patent-centric approach to Intellectual Property …

Entering The Innovation Twilight Zone: How Patent And Antitrust Law Must Work Together, Jeffrey I.D. Lewis, Maggie Wittlin

Vanderbilt Journal of Entertainment & Technology Law

Patent law and antitrust law have traded ascendancy over the last century, as courts and other institutions have tended to favor one at the expense of the other. In this Article, we take several steps toward stabilizing the doctrine surrounding these two branches of law. First, we argue that an optimal balance between patent rights and antitrust enforcement exists that will maximize consumer welfare, including promoting innovation and economic growth. Further, as Congress is the best institution to find this optimum, courts should enforce both statutes according to their literal text, which grants absolute patent rights but allows for more …

The Public Interest Inquiry For Permanent Injunctions Or Exclusion Orders: Shedding The Myopic Lens, P. Andrew Riley, Scott A. Allen

Vanderbilt Journal of Entertainment & Technology Law

President Obama's 2013 veto of a US International Trade Commission (ITC) exclusion order, issued to address Apple Inc.'s infringement of a patent owned by Samsung, thrust the ITC's public interest inquiry into the spotlight. Historically, however, these factors rarely weighed against a remedy at the ITC. Likewise, US district courts have rarely declined to issue a permanent injunction after finding a patent valid and infringed due solely to the public interest factor--the last of the four factors that the Supreme Court put in place in eBay Inc. v. Merc Exchange, L.L.C. More recent decisions addressing the public interest in both …

The Internet After Aereo: How To Save Innovation From The Public Performance Right, Patrick C. Tricker

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court's decision in American Broadcasting Companies, Inc. v. Aereo, Inc. overturned the Second Circuit's rule that separate copies create separate performances without clarifying the scope of a performance. The decision creates significant ambiguity surrounding the public performance right and potentially massive liability for cloud-computing companies. Since cloud computing allows customers to run programs remotely from a company's servers, two independent customers watching different copies of the same movie from the same cloud results in the cloud conducting a public performance. This Note examines this problem, concludes that the current public performance regime has become obsolete, and proposes a …

The Supreme Court Performs The Right Notes For Dish In Aereo, Lee B. Burgunder

Vanderbilt Journal of Entertainment & Technology Law

In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court addressed whether a company publicly performs copyrighted works when it allocates separate antennas on its property to customers who individually decide what shows they each want to watch. This case was hotly debated because it provided a new opportunity for the Court to identify the responsible actors when copyrighted materials are transmitted over the Internet. Unfortunately, the Court ruled against Aereo without clearly articulating governing standards that might inform future decisions, relying instead on what the dissent called a "looks-like-cable-TV" approach. The deficiency has already provided additional ammunition for …

The International Copyright Problem And Durable Solutions, Susy Frankel

Vanderbilt Journal of Entertainment & Technology Law

The calls for copyright reform at both the national and international level are growing louder. Many authors, owners, distributors, users, and consumers are dissatisfied with the current regime, but solutions are not easy to find. Existing rules are inadequate to deal with copyright in the digital world and partial solutions are not likely to be durable. The problems of copyright are not confined to one jurisdiction. Just as the creation and dissemination of copyright works are global, copyright's legal problems are an international problem. Existing international rules alone cannot provide the solution to this policy debate, but they do have …

Invalidated Patents And Associated Patent Examiners, Shine Tu

Vanderbilt Journal of Entertainment & Technology Law

This study attempts to determine whether there are common characteristics between examiners who issue invalidated patents. This study uses two new patent databases that code for nearly 1.7 million patents and approximately one thousand patents that were litigated to a 'final" judgment between 2010 and 2011. This study finds that approximately one-third of patents that are litigated to final judgment are found invalid. Most invalidated patents are found in technology centers 1600, 2600, and 2700, which correspond to biotechnology and organic chemistry, communications, and computer science, respectively. Most patents are invalidated on prior art-type novelty and obviousness grounds. This study …

Applying Patent-Eligible Subject Matter Restrictions, J. Jonas Anderson

Vanderbilt Journal of Entertainment & Technology Law

The US Supreme Court's difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

Patent-Eligible Processes: An Audience Perspective, Timothy R. Holbrook, Mark D. Janis

Vanderbilt Journal of Entertainment & Technology Law

Many of the problems with modern patent-eligibility analysis can be traced back to a fundamental philosophical divide between judges who treat eligibility as the primary tool for effectuating patent policy and those who take patent-eligibility as nothing more than a coarse filter to be invoked in rare cases. After several years in which the coarse filter approach seemed to have the upper hand, the eligibility-as-king approach now is firmly in ascendancy. This Article resists that trend, exploring more centrist approaches to patent-eligibility, particularly in the context of process inventions. This Article first examines the practice of undertaking an eligibility analysis …

Father(S?) Of Rock & Roll: Why The Johnnie Johnson V. Chuck Berry Songwriting Suit Should Change The Way Copyright Law Determines Joint Authorship, Timothy J. Mcfarlin

Vanderbilt Journal of Entertainment & Technology Law

"Father(s?) of Rock & Roll" utilizes a unique and historic resource--the previously unseen deposition testimony of Chuck Berry and his piano man Johnnie Johnson--to analyze the problems with how copyright law currently determines joint authorship and to propose a new "Berry-Johnson" joint authorship test. In 2000, Johnson sued Berry, claiming he co-wrote the music to nearly all the significant songs in the Berry canon. Granted access to the case file, I quote and analyze key portions of their deposition testimony, using it as a case study of high-level collaborative creativity and exploring what it can teach us about how best …

Copyright, Plagiarism, And Emerging Norms In Digital Publishing, J. D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Today's copyright law derives from the needs of the publishing industry in centuries past. The digital world creates even more significant concerns for authors and publishers than those that arose with the advent of the printing press. Digital technology enables easy, fast, and inexpensive global copying and distribution of digital texts. Other digitized industries--such as the music, movie, and video-game industries--have faced these challenges with a higher apparent success rate, at least in the courts, than the publishing industry. This Article considers why publishing has been less successful in protecting its online copyrights and examines the extent to which copyright …

Implied Obviousness: Reevaluating The Jury's Role In Nonobviousness After Kinetic Concepts, Michael A. Silliman

Vanderbilt Journal of Entertainment & Technology Law

Nonobviousness is a central patentability requirement, requiring that a person with ordinary skill would not have found the patented subject matter obvious. Due to its flexibility, obviousness is the most commonly litigated requirement. It is thus crucial that the US judicial system determine obviousness uniformly, predictably, and accurately. However, because nonobviousness is a mixed question of law and fact, it is often unclear how much control the judge and jury have over the ultimate conclusion. In Kinetic Concepts v. Smith & Nephew, the United States Court of Appeals for the Federal Circuit increased the jury's role in the obviousness determination, …

Statutory Royalty Damages Under The Uniform Trade Secrets Act And The Federal Patent Code, Richard F. Dole Jr.

Vanderbilt Journal of Entertainment & Technology Law

Optional statutory royalty damages are provided for by both the version of the Uniform Trade Secrets Act that has been enacted by most of the forty seven adopting states and the federal patent code remedies for infringement of utility patents. Notwithstanding periodic recommendations that the Uniform Act follow the patent code concept of statutory royalty damages, this article takes the position that differences between the Uniform Act and the Patent Code regarding monetary remedies make it reasonable for the Uniform Act statutory royalty provisions to be construed more objectively than their federal counterpart. This will preclude statutory royalty damages acquiring …

How To Explain The "Implicit Exceptions" To Patent-Eligible Subject Matter, Wesley D. Markham

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court has as of late taken renewed interest in what inventions or discoveries are deserving of entry into the patent system. Section 101 of Title 35 opens the door to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Certain things--now referenced by the Court as "laws of nature, natural phenomena, and abstract ideas"--necessarily fall outside the statute's scope. The question is, why? Not why as a matter of policy, but why as a matter of law. The Court has not yet picked (or at …

Once More Unto The Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, And The Challenge Of Conflicting Copyright Norms, Carol M. Kaplan

Vanderbilt Journal of Entertainment & Technology Law

In recent decades, studios that own film and television properties have developed business models that exploit the copyrights in those materials in every known market and in all currently conceivable forms of entertainment and merchandising. For the most part, uniform laws and parallel industry cultures permit smooth integration across formats. But theater is different. The work-made-for-hire provisions that allow corporations to function as the authors of the works they contract to create do not easily align with the culture and standard contract provisions of live theater. Conflicts arise when material that begins as a Hollywood property tries to make the …

From State Street Bank To Cls Bank And Back: Reforming Software Patents To Promote Innovation, Parker Hancock

Vanderbilt Journal of Entertainment & Technology Law

For the past several decades, the Supreme Court and Federal Circuit have struggled to determine if, and under what circumstances, software is patentable. Once again, the Federal Circuit had an opportunity to provide clarity when it granted en banc review in CLS Bank. The resulting opinion contained a cursory per curiam decision and numerous concurrences and dissents, showing that the question is far from answered. Ultimately, the struggle over software patentability is not itself the problem, but a symptom of other problems in the patent system. Specifically, other substantive requirements of patentability are not weeding out overly broad patents because …

Explaining The Art Market's Thefts, Frauds, And Forgeries (And Why The Art Market Does Not Seem To Care), Gregory Day

Vanderbilt Journal of Entertainment & Technology Law

Based upon a series of interviews with art market experts, this Article identifies and answers a significant, yet previously unexplored economics puzzle affecting the art market. Economics suggests that markets typically produce efficiency and social wealth, but when they fail, most actors should prefer remedial measures over an inefficient status quo. The art market currently is, and has been, plagued with frauds, thefts, forgeries, and market failure--a state of affairs that the governing legal framework has made worse. Despite this, the art market seems to adamantly, and puzzlingly, defend its business culture, rejecting attempts to remedy inefficiencies. In other words, …

Copyright's Knowledge Principle, Jenny L. Sheridan

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works. Under what is best termed the "knowledge principle," access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers--from early booksellers to modern Hollywood film companies--failing to notice the central role of access to works as a necessary pre-condition to the creation of …

Corrective Justice And Copyright Infringement, Patrick R. Goold

Vanderbilt Journal of Entertainment & Technology Law

This Article demonstrates that one important goal of copyright infringement cases is the achievement of corrective justice. The importance of corrective justice to the copyright system is demonstrated by the law's continual reliance on a bilateral litigation model. Sadly, because scholars and lawmakers often conceive of copyright in solely economic terms, corrective justice is often overlooked and demonstrable unfairness occurs as a result. This Article discusses three areas of contemporary copyright law where the failure to consider corrective justice leads to unfair outcomes: the provision of statutory damages in civil copyright claims, the availability of attorney's fees, and mass copyright …