Intellectual Property Law Commons^™

The Case For Color-Blind Distress Sales, Michael E. Lewyn

UC Law SF Communications and Entertainment Journal

Under the Federal Communications Commission's "distress sale" policy, a broadcaster whose license has been designated for a revocation hearing, or whose renewal application has been designated for hearing, may assign the license to an FCC-approved minority enterprise at a discount price before the hearing. Under recent Supreme Court precedent restricting the use of race-conscious federal measures, the distress sale policy may soon be declared unconstitutional.

If the distress sale policy is declared unconstitutional, the FCC has two significant alternatives. First, the FCC may abolish the distress sale policy altogether. Second, the FCC may create a color-blind distress sale policy which …

Return To Hot Wheels: The Fcc, Program-Length Commercials, And The Children's Television Act Of 1990, Allen K. Rostron

UC Law SF Communications and Entertainment Journal

In the Children's Television Act of 1990, Congress directed the FCC to address the problem of "program-length commercials" aimed at children. Such programs, essentially thirty-minute ads for toys and other products, proliferated during the 1980s as the FCC deregulated children's television. In response to the Children's Television Act, the FCC adopted a policy that purported to address the problem, but actually avoided facing it. In its rule-making proceeding, the FCC disregarded Congress' concerns, misconstrued the issue presented, and mischaracterized the ineffective policy adopted as consistent with FCC rulings of the 1960s and 1970s. The need continues for a more effective …

The Communications Decency Act And The Indecent Indecency Spectacle, David Kushner

UC Law SF Communications and Entertainment Journal

This essay situates the Communications Decency Act in contemporary jurisprudence and our postmodern culture. The author analyzes why both the proscription of indecency in cyberspace and the prescription of television ratings are unconstitutional. More importantly, the essay argues that cyberspace must be viewed as a post modern spectacle. The production forces of late capitalism have commodified sex and violence, making them the principal fruits of desire in cyberspace. These cultural urges, in conjunction with the convergence of telecommunications technologies, render the CDA and like forms of censorship fundamentally unenforceable. The essay concludes by suggesting the serious implications for First Amendment …

The Shirts Off Their Backs: Colleges Getting Away With Violating The Right Of Publicity, Vladimir P. Belo

UC Law SF Communications and Entertainment Journal

The popularity of college athletics is at an all-time high in the United States. Colleges and universities have capitalized on the enthusiasm through marketing merchandise aimed at taking advantage of the growing popularity. Recently, colleges have begun using the popularity of individual student-athletes by marketing clothing featuring uniform numbers of high-profile players on their tiams. This Note examines this latest trend in college sports merchandising.

This Note suggests that the marketing of this type of merchandise may violate student-athletes' common law and statutory rights of publicity. This Note chronicles the development of right of publicity law, concluding that a college …

Making The World Wide Web Safe For Democracy: A Medium-Specific First Amendment Analysis, Andrew Chin

UC Law SF Communications and Entertainment Journal

The World Wide Web, a vast speech domain that may ultimately swallow all current forms of telecommunications media, presents urgent First Amendment issues. Most significantly, the structure of linked documents on the Web has served to concentrate speech power and impoverish democratic discourse. As extensive surveys by the author and others demonstrate, commercial speech dominates the Web and political discourse on the Web has become balkanized.

Using a quantitative model, it is possible to isolate and identify the characteristics of Web sites that contribute to robust public debate. These findings suggest a range of structural policies that would support the …

Access To Premises And Easements: Can The Cable Operator Come In, Philip Kantor

UC Law SF Communications and Entertainment Journal

This article reviews the attempts by cable television operators to access easements in order to provide their service to television watchers. Cable operators first attempted to use state common law of apportionment in order to access utility easements. In order to argue that an easement could be apportioned, the operator needed to show that the easement was compatible for cable use and that use would not place an additional burden on the servient estate. Many courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or …

Rating The Net, Jonathan Weinberg

UC Law SF Communications and Entertainment Journal

Rating systems provide an impressive solution to the problem of sexually explicit speech on the Internet. Members of the Internet community are rightly enthusiastic about the benefits filtering software promises. Those benefits, though, come at a cost. Sites may be stripped out of the filtered universe because of deliberate political choices on the part of ratings service administrators, and because of inaccuracies inherent in the ratings process. If a ratings service is to categorize a large number of sites, it cannot simultaneously achieve consistency and nuance; the techniques it must rely on to achieve consistency make it more difficult to …

Combating Impunity: Some Thoughts On The Way Forward, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

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.

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 …

Phonorecords And Forfeiture Of Common-Law Copyright In Music, Mark A. Bailey

Washington Law Review

A highly disputed issue surrounding the Copyright Act of 1909 is whether the public distribution and sale of recordings of a musical work constitutes "publication." Historically, unless the author followed the Act's formal requirements for obtaining statutory protection, publication injected the musical work irrevocably into the public domain. In a 1995 decision, La Cienega Music Co. v. ZZ Top, the Ninth Circuit unwisely broke from the tradition and common understanding in the music industry by holding that phonorecord distribution is a publication of musical compositions. After examining the history and purpose of the Copyright Act, as well as the …

Can Reverse Engineering Of Software Ever Be Fair Use? Application Of Cambell'S "Transformative Use" Concept, John A. Williams

Washington Law Review

Several years after Atari v. Nintendo and Sega v. Accolade, debate and confusion remain within the U.S. software industry and legal community concerning the appropriate application of copyright's fair use doctrine to reverse engineering of software. This Comment discusses why and how the U.S. Supreme Court's recent fair use analysis in Campbell v. Acuff-Rose Music should be applied to help resolve the reverse engineering issue. Not only would application of Campbell's approach promote consistency among courts and confidence within the software industry, but it also would safeguard copyright's ultimate objective: the advancement of society's growth in science and …

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 …

Trademark Law: Qualitex Co. V. Jacobson Products Co.--The Supreme Court Upholds Trademark Protection For A Color, Paige Stratton Bass

Oklahoma Law Review

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 …

Theft By Territorialism: A Case For Revising Trips To Protect Trademarks From National Market Foreclosure, Beth Fulkerson

Michigan Journal of International Law

This Note will argue that the "well-known mark" standard of the Paris Convention, which is also adopted by the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS), the North American Free Trade Agreement (NAFTA), and the European Community (EC), is an artifact of an era when markets were circumscribed by national borders and granting a monopoly on a trademark in one country on the basis of its use in another was unreasonable because the likelihood of confusion was minimal. Today, however, the trademark originator's intent to expand beyond its original market should be presumed. …

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

Michigan Journal of International Law

This article recasts the debates over access to, and control over, genetic and biological knowledge and resources in terms of the appropriation of indigenous and local communities' knowledge and resources. It first discusses recent examples of appropriation as currently conducted by global biotechnology, pharmaceutical, and agribusiness corporations and their associates in Northern universities, seed and gene banks, and research centers. Second, it describes and exposes the mechanisms of appropriation by focusing on the limited and culturally determined definitions of what is "wild" as opposed to "cultivated," what is "knowledge" and who can possess it, and what are "innovations" and "inventions." …

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

American University Law Review

No abstract provided.

Ex Parte Patent Practice And The Rights Of Third Parties, Russell E. Levine, Jay I. Alexander, William E. Devitt

American University Law Review

No abstract provided.

Cybermarks: A Proposed Hierarchical Modeling System Of Registration And Internet Architecture For Domain Names, 29 J. Marshall L. Rev. 623 (1996), G. Andrew Barger

UIC Law Review

No abstract provided.

Copyright On The Internet: A Critique Of The White Paper's Recommendation For Updating The Copyright Act And How The Courts Are Already Filling In Its Most Important Shortcoming, On-Line Service Provider Liability, George Smirnoff Iii

Cleveland State Law Review

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) "to articulate and implement the Administration's vision for the National Information Infrastructure." On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and …

Copyright Protection For Architectural Design: A Conceptual And Practical Criticism, Gregory B. Hancks

Washington Law Review

The Architectural Works Copyright Protection Act of 1990 (AWCPA) extended copyright protection to architectural design as part of Congress's effort to conform U.S. law to the Berne Convention. U.S. courts previously had treated architecture as a "useful article" and generally had denied it protection under the "separability" doctrine. The AWCPA treats architecture similarly to other categories of copyrightable subject matter. Conceptually, this is inappropriate because (I) architectural design is a professional service, (2) architecture is a part of our public environment, and (3) architecture's expressive aspects cannot be adequately separated from its useful aspects. As a practical matter, the AWCPA …

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 …

Intellectual Property At The Public-Private Divide: The Case Of Large-Scale Cdna Sequencing, Rebecca S. Eisenberg

Articles

The Human Genome Project provides fertile ground for studying the role of intellectual property at the wavering boundary between public and private research science. It involves a major commitment of both public and private research funds in an area that is of significant interest both to research scientists working in university and government laboratories and to commercial firms. It thus provides a wealth of new scientific discoveries that are simultaneously potential candidates for commercial development and inputs into further research. Its obvious implications for human health raise the stakes of getting the balance between private property and public access right, …

Trips Boomerang--Obligations For Domestic Reform, Harold C. Wegner

Vanderbilt Journal of Transnational Law

Today, one of the biggest obstacles facing inventors is the problem of patent harmonization. Inventors, who spend their time, money, and resources to develop new technology, are faced with the problem of ensuring that their new development receives patent protection not only in their home countries, but also worldwide. This problem is complicated by the fact that the United States maintains a different patent filing process than most other developed nations. Efforts of the international community to harmonize these different approaches, however, have been only partially successful.

In this Article, Professor Wegner examines the latest attempt by the international community …

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, …

Ambushing The Olympic Games, Robert N. Davis

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

To Patent Or Not To Patent: Gene Therapy In The European Union And The United States, Nada Jain

Cardozo Journal of International and Comparative Law

The note examines the role of patent systems in the biotechnology industry, particularly in gene therapy, comparing the approaches of the EU and the U.S. It highlights how differences in patentability standards, such as the exclusion of treatment methods in the EU versus broader protections in the U.S., impact innovation and investment. The analysis emphasizes the need for balanced patent policies that foster innovation while addressing ethical concerns.

Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg

Articles

This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of outlays …

The Technological Transformation Of Copyright Law, Fred H. Cate

Articles by Maurer Faculty

Both statutory and case law clearly recognize the constitutional interest in promoting, not restricting, expression. Digital technologies, however, are rapidly changing the application of copyright law to prohibit access, protect ideas and facts, and dramatically expand the monopoly granted to copyright holders.

Whether on a disk or network, digital expression cannot be accessed without being copied into computer memory, as well as onto a hard drive, floppy disk, or magnetic tape if it is to be retained after the computer is switched off. This necessarily violates the exclusive right to reproduce that copyright law grants to copyright holders.

Moreover, to …