Intellectual Property Law Commons^™

Reviving The Rhetoric Of The Public Interest: Choir Directors, Copy Machines, And New Arrangements Of Public Domain Music, Paul J. Heald

Scholarly Works

The decision to photocopy or not to photocopy has significant consequences for the music consumer's pocketbook. Photocopies cost around three cents per page, while an original printed version of a choral work costs about thirty cents per page. The expense of buying rather than copying public domain sheet music is directly absorbed by the taxpayers who fund music education in public schools, the church congregations who must raise money for the church music budget, and the patrons of the fine arts who finance music ensembles with their admission fees or donations.

To recognize the high cost of sheet music is …

Copyright Law And Electronic Access To Information, Jessica D. Litman

Articles

At the same time as we have been discovering the Internet’s enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet’s high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries’ use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright. The …

Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.

Scholarly Works

By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …

The New Law On Infringement Of Registered Trade Marks In The United Kingdom: Early Developments, David Llewelyn

Research Collection Yong Pung How School Of Law

In this article the author considers the infringement provisions of the Trade Marks Act 1994 (UK) and a number of recent decisions in which they have been considered.

Intellectual Property Issues In Genomics, Rebecca S. Eisenberg

Articles

Controversy over intellectual property rights in the results of large-scale cDNA sequencing raises intriguing questions about the roles of the public and private sectors in genomics research, and about who stands to benefit (and who stands to lose) from the private appropriation of genomic information. While the US Patent and Trademark Office has rejected patent applications on cDNA fragments of unknown function from the National Institutes of Health, private firms have pursued three distinct strategies for exploiting unpatented cDNA sequence information: exclusive licensing, non-exclusive licensing and dedication to the public domain.

Reverse Engineering Of Computer Software And U.S. Antitrust Law, Robert H. Lande, Sturgis M. Sobin

All Faculty Scholarship

This article explores when efforts by firms to restrict reverse engineering of their software, and corresponding agreements by other firms not to reverse engineer this software, could raise significant antitrust issues.

This article provides an overview of how the laws prohibiting certain acts of monopolization, attempted monopolization, refusals to deal, and tying might apply to restrictions and agreements concerning the reverse engineering of computer software. As a necessary predicate to this analysis, the article first briefly describes the contours of intellectual property protection for software, including the fair use and the copyright misuse doctrines.

The Restatement's Rejection Of The Misappropriation Tort, Gary Myers

Faculty Publications

Some legal theories, like the proverbial vampire, refuse to die. The common law tort of misappropriation is one such legal theory, and the recent Restatement (Third) of Unfair Competition (Restatement) may finally lead to the demise of this outdated cause of action. Misappropriation began advisedly enough as a means of protecting certain intellectual property rights from unjust usurpation, often by direct competitors employing improper means. Arising before comprehensive copyright, patent, and trademark laws were fully developed, the tort may have played an important role in protecting intangible proprietary interests.The tort's high water mark was the 1918 Supreme Court decision in …

Caught In The Net Of Copyright, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

As an overture to this Comment, I'd like to begin with one of my favorite passages from the recent National Information Infrastructure (NII)Task Force Working Group Report on Intellectual Property and the NII-the so-called White Paper.' The passage is not one of the deceptively bland legislative proposals-nor one of the strategic half-truths in the purported summary of current copyright law. Rather, it is a passage from the section on copyright awareness, and it is an excellent example of a good idea gone wrong. The good idea is that our elementary and secondary schools could take a role in preparing students …

The Impact Of Recent Litigation On Interlibrary Loan And Document Delivery, James S. Heller

Faculty Publications

Professor Heller discusses how two recent federal copyright law decisions, Campbell v. Acuff-Rose Music in the United States Supreme Court and American Geophysical Union v. Texaco in the Second Circuit, may affect the interlibrary loan and document delivery services provided by libraries.

Re-Tailoring Jury Trial Rights, Richard C. Reuben

Faculty Publications

The debate over improving the civil justice system has gone through many permutations over the years. Discovery, punitive damages and alternative dispute resolution are but a few of the paths that have been pursued. A case argued to the U.S. Supreme Court in January addresses the question from yet another-and potentially a more fundamental direction: the reach of the Seventh Amendment's guarantee of a jury trial in civil cases in federal court.

The Single Publication Rule: One Action Not One Law, Debra R. Cohen

Journal Articles

Recovery in one action under one state's law for violation of the right of publicity-the right to control the commercial use of one's identity-arising out of multistate publication2 seems to be the trend of the nineties. When Samsung ran a nationwide print advertisement for VCRs depicting a robot dressed to resemble her, Vanna White sued for violation of her right of publicity.3 Under California law she recovered $403,000. 4 When a SalsaRio Doritos radio commercial imitating Tom Waits's distinctive raspy and gravelly voice aired nationwide, he sued Frito Lay for violation of his right of publicity.5 Under California law he …

Global Technological Integration, Intellectual Property Rights, And Competition Law: Some Introductory Comments, David J. Gerber

All Faculty Scholarship

No abstract provided.

The Implications Of The New Regime For Global Competition Policy: Intellectual Property Rights, Economic Power, And Global Technological Integration, David J. Gerber

All Faculty Scholarship

No abstract provided.

The Evolution Of Free Trade In The Americas: Nafta Case Studies, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Trademark Parody: Lessons From The Copyright Decision In Campbell V. Acuff-Rose Music, Gary Myers

Faculty Publications

Parodies have long provided many of us with amusement, entertainment,and sometimes even information. An effective parody can convey one or more messages with powerful effect. The message may be a political statement, social commentary, commercial speech, a bawdy joke, ridicule of a brand name, criticism of commercialism, or just plain humor for its own sake. Often someone's ox is being gored, or someone feels that a property right has been infringed. The party so injured often contemplates a lawsuit, and an array of legal theories are available to further that impulse. Perhaps copyright infringement is the claim, if some protectable …

1995 Patent Law Decisions Of The United States Court Of Appeals For The Federal Circuit, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Norms And Property In The Middle Kingdom, Glenn R. Butterton

Articles

No abstract provided.

A Brief Defense Of Mass Market Software License Agreements, Robert W. Gomulkiewicz

Articles

In the rapidly changing world of personal computer software, the end user license agreement ("EULA") has endured. The EULA is a familiar component of most personal computer software transactions. Many commentators, however, have maligned the practice of standard form software licensing. A survey of the literature on the subject might lead one to conclude that there are only critics--and no proponents--of EULAs.

Despite the din of criticism, EULAs continue to be widely usedby almost every mass-market software publisher, even though the cost of doing so is significant. This Article explains the value of EULAs for both software publishers and users, …

The Ancient Doctrine Of Trespass To Web Sites, I. Trotter Hardy

Faculty Publications

No abstract provided.

U. S. Federalism And Intellectual Property, Jane C. Ginsburg

Faculty Scholarship

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation …

La Protection Aux Etats-Unis Des Oeuvres D'Art, Jane C. Ginsburg

Faculty Scholarship

French Abstract
Les Etats-Unis sont un marche important d'oeuvres d'art, non seulement pour la vente des tableaux, mais aussi pour !'exploitation de reproductions et d'adaptations des images. Par exemple, en dehors des reproductions traditionnelles telles que celles contenues dans des catalogues et livres d'art et des reproductions sous forme de cartes postales et affiches, une oeuvre d'art originairement corn;ue comme une expression des beaux arts peut s'exploiter telle par exemple une sortie de bain, du papier peint, voire un decor de poubelle. Dans quelle mesure un artiste peut-il etre remunere ou meme s'opposer a J'exploitation commerciale de son oeuvre aux …

New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, And Entrepreneurship, Margaret Chon

Faculty Articles

Some intellectual property colleagues recently urged Professor Chon to post this article on SSRN. She wrote it circa mid-90’s when information still wanted to be free and the predominant technology was still file transfer protocol. It seems this piece has stood the test of time because it was one of the first legal academic pieces to address the copyright implications of Internet works. Today in 2010, we are still grappling with the collaborative, dynamic and entrepreneurial characteristics of digital networked content. However, now it is created and distributed through different intermediaries such as Facebook, Twitter, YouTube, etc.

Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne

Faculty Scholarship

This examination concerns itself with two main questions: what qualifies as commercial speech and how much protection does commercial speech enjoy under the First Amendment when compared to other forms of speech. The trend of the Court indicates that commercial speech enjoys protections similar to political speech.

Intellectual Property Policy Online: A Young Person’S Guide, James Boyle

Faculty Scholarship

This is an edited version of a presentation to the "Intellectual Property Online" panel at the Harvard Conference on the Internet and Society, May 28-31, 1996. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. Of approximately 400 panel attendees, 90% were not lawyers. Accordingly, the remarks that follow are an attempt to lay out the basics of intellectual property policy in a straighforward and non-technical manner. In other words, this is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy …

Rejuvenating Copyright, David Vaver

Articles & Book Chapters

The law of copyright has, especially when combined with other legal mechanisms, become a potent and wide-ranging instrument - some say too much so for protecting and establishing markets in a wide range of products. This paper argues for a fundamental reassessment of domestic and international law. The protectionists' rallying cry of "to each cow its calf" has produced an incoherent system many ordinary people find unacceptable. Questions such as what specific activities deserve encouragement, what stimulus should be offered, and who should benefit and in what proportions need to be asked and answered. A recontoured copyright system may then …

Doctrine Of Equivalents After Hilton Davis: A Comparative Law Analysis, Toshiko Takenaka

Articles

This Article will address a number of major topics. First, it discusses the Federal Circuit's renewed interest in Graver Tank and the merger of the infringement test with the patentability test established by the Supreme Court in Graham v. John Deere Co. Then, this Article responds to the dissenting judges in Hilton Davis who emphasized the danger of uncertainty that stems from the in-principle application of the doctrine of equivalents. This response explains that the application of the doctrine does not increase the uncertainty in determining infringement but, rather, encourages clear, definitive claim drafting. It then examines the relationship …

From Free Riders To Fair Followers: Global Competition Under The Trips Agreement, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Trouble In Transamerica: Deferred Compensation, Contingent Debt, And Overstated Basis, Mary Lafrance

Scholarly Works

For many years, owners of motion pictures and television films have optimized the tax benefits of depreciation deductions by employing a broad concept of basis. In addition to their cash investment, these taxpayers have increased their basis to reflect both fixed and contingent liabilities incurred in creating or acquiring these assets. Some of these liabilities represent royalties for the use of intellectual property such as music and literary works incorporated in the film. Others constitute deferred compensation for the services performed by producers, directors, actors, musicians, and others during the production process. The fixed liabilities do not depend on the …

International Copyright: An Unorthodox Analysis American Association Of Law Schools' Intellectual Property Section's Symposium On Compliance With The Trips Agreement, Hugh C. Hansen

Faculty Scholarship

Professor Hansen reviews the development of copyright from its traditional domestic orientation to the modern emphasis on globalization and harmonization. His commentary analogizes modem trends in international copyright to religious equivalents. He notes that the current players include a "secular priesthood" (the traditional copyright bar and academics), "agnostics and atheists" (newer academics and lawyers, particularly those concerned with technology and the culture of the public domain) and "missionaries" (whose task it is to increase copyright protection around the world and who are primarily driven by trade considerations). The copyright "crusade" has been driven by this last group. The author compares …

Of Seeds And Shamans: The Appropriation Of The Scientific And Technical Knowledge Of Indigenous And Local Communities, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.