Intellectual Property Law Commons^™

Son Of Son Of Sam: Trashing Popular Media And Criminalizing Crime-Related Expression, David Sternbach

UC Law SF Communications and Entertainment Journal

When the Supreme Court struck down New York's "Son of Sam" statute on First Amendment grounds, it nonetheless found that states have "an undisputed compelling interest in ensuring that criminals do not profit from their crimes." The Court in effect invited states and lower courts to find less restrictive means to restrict crime-related expression, yet declined to address the question of how, or whether, expression-related income can be considered profit from crime. This Article examines that question, and discusses judicially-imposed restrictions on receipt of payment for expression deemed to be crime-related, including fines intended to forestall sales of stories by …

The Fairness In Musical Licensing Act: The Tavern Bill Casts A Shadow, Julie B. Raines

UC Law SF Communications and Entertainment Journal

The Fairness in Musical Licensing Act, now pending before Congress, would allow restaurants owners and other businesses to play copyrighted music in their place of business without paying royalties or licensing fees to the copyright owner. This Article discusses the Fairness Act in the context of the 1976 Copyright Act and analyzes the effect of the Fairness Act on the future of the music industry if it passes into law. This Article also offers other possible solutions to the underlying conflicts that the Fairness Act seeks to remedy. The author concludes that the Fairness Act unreasonably exempts a large group …

The Telecommunications Act Of 1996: Predicting The Winners And Losers, Robert M. Frieden

UC Law SF Communications and Entertainment Journal

The Telecommunications Act of 1996 has created substantial upheaval across the telecommunications landscape. On one hand, the 1996 Act created broad deregulatory and market entry opportunities for new market players; on the other hand, those implementing the Act have presumed that incumbent carriers will cooperate with new market entrants thereby accelerating the loss of market share, but gaining new market entry opportunities once competition begins to flourish. This Article analyzes the Various different factions that are likely to benefit from the Act, as well as those that are likely to suffer losses from telecommunications deregulation. The author concludes that the …

Is A Website Like A Flea Market Stall - How Fonovisa V. Cherry Auction Increases The Risk Of Third-Party Copyright Infringement Liability For Online Service Providers, Kenneth A. Walton

UC Law SF Communications and Entertainment Journal

In a recent decision, Fonovisa v. Cherry Auction, the Ninth.Circuit allowed a record company to sue a swap meet for copyright infringement committed by the swap meet's vendors. The vendors rented a stall from the Cherry Auction swap meet and sold counterfeit music cassettes that infringed the plaintiff Fonovisa's copyright. The Ninth Circuit held that the swap meet could be sued under theories of contributory infringement and vicarious infringement.

The Fonovisa decision extends the scope of third-party copyright infringement liability beyond previously established boundaries. This extension may make it much easier to hold an online service provider (OSP) liable for …

From Pirate King To Jungle King: Transformation Of Taiwan's Intellectual Property Protection, Andy Y. Sun

Maryland Series in Contemporary Asian Studies

No abstract provided.

Perfecting A Security Interest In Computer Software Copyrights: Getting It Right, 15 J. Marshall J. Computer & Info. L. 855 (1997), Aimee A. Watterberg

UIC John Marshall Journal of Information Technology & Privacy Law

The rapid development of computer technology has led software companies to seek financial support from various commercial lenders. Lenders are typically unaccustomed and unwilling to lend money on the security of intellectual property. The fear of lenders is well founded because lenders face a considerable risk in lending money on contemporary and intangible collateral. As a result of the unavailability of funds, technology based companies would be hindered in their efforts to promote new programs. The unclarity of laws with respect to obtaining a security interest has created obstacles for parties on both sides of the transaction -- the lender …

The European "Community Trade Mark": Is It Worth The Bother?, Daniel G. Radler

Marquette Intellectual Property Law Review

In growing regional societies such as the European Union, there is a recognized need for standardization of trademark protection. Radler discusses the recent creation of the "Community Trade Mark" ("CTM") and analyzes the pros, the cons, and the alternatives to regional trademark protection within the EU. Concluding that the CTM is the most appropriate alternative, Radler suggests that the CTM provides uniformity, efficiency, and a means for further harmonization.

Trademark Law On The Internet - Will It Scale? The Challenge To Develop International Trademark Law, 16 J. Marshall J. Computer & Info. L. 3 (1997), David W. Maher

UIC John Marshall Journal of Information Technology & Privacy Law

The author states that the rapid growth of the Internet has caused a serious collision between the efficient functioning of Domain Name Systems and the claims of trademark owners. U.S. Courts have recognized that domain names can have trademark implications. Trademarks are important because organizations responsible for allocation and registration of domain names must take trademarks and trademark law into account. The International Trademark Association (INTA) sets forth principles that should apply to the use of trademarks in the Domain Name System. The author's comment focuses on how to accommodate the interests and rights of trademark owners in the DNS …

Electronic Commerce On The Internet: Legal Developments In Taiwan, 16 J. Marshall J. Computer & Info. L. 77 (1997), George C. C. Chen

UIC John Marshall Journal of Information Technology & Privacy Law

The purpose of this article is to share information about "outstanding legal issues" that Taiwan has experienced in its use of the Internet. It does through five topics. First, the issue of contracts is addressed using the present laws in Taiwan. Contracts are based on an "offer" by one party and "acceptance" of a second party. Digital products displayed on the Internet are said to constitute an offer when it bears a price, but a legal question arises out of how to constitute acceptance. Taiwan law looks to the law of the country where the offer was made to govern …

Nba V. Motorola And Stats, Inc.: The Second Circuit Properly Limits The "Hot News Doctrine", 16 J. Marshall J. Computer & Info. L. 197 (1997), Alan D. Lieb

UIC John Marshall Journal of Information Technology & Privacy Law

The Second Circuit Court of Appeals recently handed down a decision which can be seen as a victory for supporters of free dissemination on the Internet. At issue was whether dissemination of real-time sports data infringed the NBA's copyright of broadcast material, and if not whether the use of NBA game statistics was a misappropriation of the NBA's property. In 1994, Motorola teamed up with STATS (Sports Team Analysis and Tracking Systems of Missouri, Inc.) to provide real-time updates of professional sports scores and information to subscribers of pagers as well as on-line services. STATS also provides sports information to …

Right On The Mark: Defining The Nexus Between Trademarks And Internet Domain Names, 15 J. Marshall J. Computer & Info. L. 277 (1997), G. Peter Albert Jr.

UIC John Marshall Journal of Information Technology & Privacy Law

The Internet is a rapidly expanding global network. The Internet provides a virtual marketplace in which many small companies are given the opportunity to have increased leverage to compete with their larger corporate counterparts. Businesses are establishing their presence on the Internet through the creation of a domain name. The domain name is an alphanumeric address that identifies a specific location on the Internet. Each domain name reflects a distinct address that distinguishes it from any other. Similarly, qualification of a word or symbol as a trademark must include the following three elements: (1) "function" to identify and distinguish the …

A Request To The High Court: Don't Let The Patent Laws Be Distracted By A Flashy Trade Dress, 15 J. Marshall J. Computer & Info. L. 323 (1997), Manotti L. Jenkins

UIC John Marshall Journal of Information Technology & Privacy Law

The United States Court of Appeals for the Tenth Circuit, in Vornado Air Circulation Systems Inc. v. Duracraft Corp., held in the negative the issue of "whether a product configuration is entitled to trade dress protection when it is or has been a significant inventive component of an invention covered by a utility patent." The court viewed the case involved as an issue of the "intersection of the Patent Act and the Lanham Trade-Mark Act," and reasoned that "patent policy dictates" that the Patent Act should prevail in these situations. The United States Supreme Court denied certiorari upon appeal by …

A Primer On Trademark Law And Internet Addresses, 15 J. Marshall J. Computer & Info. L. 465 (1997), David J. Loundy

UIC John Marshall Journal of Information Technology & Privacy Law

The conflicts arising over Internet addresses generally fall within four categories: trademarks as second-level domains; second-level domains that are similar to trademarks; trademarks as third-level domain/machine names; and trademarks as userIDs. When confronted with the four categories, a court will generally analyze the problem by looking at the likelihood of confusion, applying the dilution statutes, and determining if the trademark has been blurred or tarnished. The likelihood of confusion analysis looks at: the degree of similarity between the marks in appearance and suggestion; the similarity of the product or services; the area and manner of concurrent use; the degree of …

Orderly Expansion Of The International Top-Level Domains: Concurrent Trademark Users Need A Way Out Of The Internet Trademark Quagmire, 15 J. Marshall J. Computer & Info. L. 521 (1997), David B. Nash

UIC John Marshall Journal of Information Technology & Privacy Law

Organizations that want to conduct business on the Internet have to register with Network Solutions, Inc. (NSI). The Internet was created as a network designed by the Defense Department to test a fail safe network. The National Science Foundation connects to the Internet five supercomputing centers, which connects most public colleges to the Internet. The World Wide Web was the first service that was opened to individuals and for commercial use. Commercial success on the Internet depends on the ease with which consumers can find the organization on-line. If the company has established good will in the public, the company …

The Copyright Battle: Emerging International Rules And Roadblocks On The Global Information Infrastructure, 15 J. Marshall J. Computer & Info. L. 759 (1997), Stephen Fraser

UIC John Marshall Journal of Information Technology & Privacy Law

This article discusses intellectual property rights on the Global Information Infrastructure (GII) as affected by the evolution of the Internet. It outlines the battle between the advocates of total copyright protection and the advocates of minimal copyright protection. The article examines all of the proposed national and international laws affecting copyright protection on the GII, beginning with the minimal protections outlined in the Berne Convention and the problems involved in its enforcement and continuing with its successors, the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO). The article reviews the history of international copyright protection and the different …

The West German Smorgasbord Approach To Intellectual Property Protection Of Computer Software, 15 J. Marshall J. Computer & Info. L. 883 (1997), Larry N. Woodard

UIC John Marshall Journal of Information Technology & Privacy Law

There is a lack of efficient protection for intellectual property within the computer software medium. Intellectual property of computer software has traditionally been protected by copyrights and relatively recently has been afforded protection of its intellectual property via patents. The distinction between a computer's hardware and a computer's software is decreasing; likewise, the distinction for such protection, namely patents and copyrights, respectively, should be decreased or eliminated, as well. After a brief comparative analysis of patent and copyright protection for computer software, an alternative to the current system of protection for software intellectual property exists. The nature of the software …

Of Moral Right And Righteousness, Sharon W. Halpern

Marquette Intellectual Property Law Review

In response to Professor Kwall's article, Professor Halpern provides an exploration of the differences between European countries that provide broad moral right protection and the United States. Professor Halpern recommends an examination of the role artists and creators of intellectual property play in the culture of the United States in order to form a consensus on which a United States moral right regime may be built.

How Fine Art Fares Post Vara, Roberta Rosenthal Kwall

Marquette Intellectual Property Law Review

Professor Kwall discusses the implications of the recently enacted Visual Artists Rights Act ("VARA"). VARA, the only U.S. statute addressing the issue of moral rights, attempts to protect an artist's personal rights in his own works. Kwall details the effectiveness of the Act in a society that has not traditionally recognized such rights. Professor Kwall examines the many flaws of VARA and supports further legislation to strengthen the protection of artists' moral rights.

United States' Moral Right Developments In European Perspective, Marina Santilli

Marquette Intellectual Property Law Review

Professor Santilli provides a European perspective on the United States' recent enactment of VARA. She questions the United States' commitment to the recognition of moral rights by scrutinizing the effectiveness of the Act. Her article provides commentary on Professor Kwall's article and a comparative analysis of moral rights.

Do Your Means Claims Mean What You Meant?, Jeffery N. Costakos, Walter E. Zimmerman

Marquette Intellectual Property Law Review

The authors review recent decisions of the United States Court of Appeals for the Federal Circuit concerning "means claims" in order to provide practical guidelines and reduce the confusion surrounding 35 U.S.C. § 112 ¶ 6.

Table Of Contents

Marquette Intellectual Property Law Review

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Should Trade Secret Appropriation Be Criminalized, I. Neel Chatterjee

UC Law SF Communications and Entertainment Journal

Trade secret law is a rapidly developing and increasingly popular system of intellectual property which strikes a tenuous balance between individual profit benefit through secrecy and maximization of social welfare. In doing so, trade secret law adopts some property-based and some liability-based principles. This Article argues that criminalizing trade secret appropriation unjustifiably extends protection as a property-based concept beyond economically efficient goals. The author concludes that punitive damages within the context of civil liability are a more economically efficient means to deter unauthorized use of trade secrets and "socially blameworthy" conduct.

Patent Opinions, Privileges, And The Advice Of Counsel Defense To Claims Of Willfull Patent Infringement: Litigation Counsel Caught In The Crossfire, Michael M. Markman

UC Law SF Communications and Entertainment Journal

The interests advanced by the attorney-client privilege and work product doctrines are a subject of frequent debate. Scholars and practitioners agree, however, that both forms of discovery protection must be waived in certain circumstances. One such situation is where a client asserts the "advice of counsel" as a defense. In the arena of patent litigation, the waiver of discovery protection arises where the alleged patent infringer asserts the advice of counsel defense to claims of willful patent infringement.

The scope of waiver of discovery protections upon asserting the advice of counsel defense to claims of willful patent infringement is expanding …

Lessons From Oz: Quantitative Guidelines For Children's Educational Television, Angela J. Campbell

UC Law SF Communications and Entertainment Journal

To implement the Children's Television Act of 1990, the Federal Communications Commission recently adopted a guideline assuring license renewal to television stations that air three hours per week of children's educational programming. This Article explores the likely success of the guideline by examining Australia's long experience with a children's television quota. The author argues that Australia's experience suggests that quantitative guidelines can lead to an increase in the quantity of children's educational programming. At the same time, as in Australia, broadcasters may try to count as children's educational programming programs that are not specifically designed for children, are of low …

Limitations On Claims Of Ownership And Claims For Royalties, Donald E. Biederman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Protecting A Piece Of American Folklore: The Example Of The Gusset, Jo Carrillo

Faculty Scholarship

No abstract provided.

The Name Is Not Always The Same, Neal J. Friedman, Kevin Siebert

Seattle University Law Review

This Article explores the present Internet addressing system, the history of trademark disputes on the Internet, and proposals for resolving these disputes. Part I provides a brief history of the Internet, discusses its addressing system, and explains the use of domain names as identifiers for companies on the Internet. Part II introduces the current system for registering Internet domain names and the problems associated with its structure. Part III gives a brief background of trademark law and tracks the evolution of disputes that have arisen as a result of the intersection of the Internet and trademark law. Finally, Part IV …

Legal Aspects - Software Reverse Engineering And Copyright: Past, Present And Future, 31 J. Marshall L. Rev. 1 (1997), Brian C. Behrens, Reuven R. Levary

UIC Law Review

No abstract provided.

Suing An Infringing Competitor's Customers: Or, Life Under The Single Recovery Rule, 31 J. Marshall L. Rev. 19 (1997), Jessica W. Young, Jerry R. Selinger

UIC Law Review

No abstract provided.

A Criticism Of The E.U. Directive Protecting Computer Software, Robert Shaposka

Buffalo Journal of International Law

No abstract provided.