Intellectual Property Law Commons^™

Japanese Intellectual Property Law In Translation: Representative Cases And Commentary, Kenneth L. Port

Vanderbilt Journal of Transnational Law

Like much of Japanese law, Japanese intellectual property law is often criticized as being inaccessible. This inaccessibility has contributed to the misperception that Japanese case law regarding intellectual property does not exist. Even if it exists, the perception goes, it takes forever to track down and it is nearly irrelevant.

This Commentary, in a very modest way, is aimed at debunking the myth that Japanese case law regarding intellectual property is either non-existent or less meaningful than its U.S. counterpart. This Commentary consists of five translations of recent, significant intellectual property cases, as well as commentary regarding the relevance and …

Protecting The Performers: Setting A New Standard For Character Copyrightability, Mark Bartholomew

Journal Articles

Copyright law protects expressions of ideas, but not the idea itself. Legal disputes over characters arise in the continuum between an idea for a character that has not been expressed at all, and an idea that has been given complete form and shape. The inconsistent common law tests developed to assess character copyrightability demonstrate the difficulty in pinpointing where the dividing line between an undeveloped idea and a sufficiently expressed character should be set. This Article offers a new paradigm for determining character copyrightability, particularly in the case of characters shaped through live performance, that tracks the Hegelian concept of …

Peer-To-Peer Sharing On The Internet: An Analysis Of How Gnutella Networks Are Used To Distribute Pornographic Material, Michael D. Mehta, Don Best, Nancy Poon

Canadian Journal of Law and Technology

By our very nature, humans are creatures that communicate and network. Over the past several decades much of this communicating and networking has been facilitated by developments in information and communication technology. The social and economic transformations resulting from developments on the Internet have created several challenges for policymakers, lawmakers, courts and a wide range of other kinds of institutions. Some of these challenges are associated with the technologies and applications themselves. Other challenges result from content made available on the Internet and how users exchange data. Recent developments in peer-to-peer data exchange bring these two sets of challenges together.

Post Markman: Claim Construction Trends In The Federal Circuit, Daniel J. Melman

Richmond Journal of Law & Technology

The strength of a patent as a legal instrument to protect an invention rests primarily on the drafting quality of its claims. The claims of a patent recite the invention "that is deemed by [the] applicant to be operable and patentable." Furthermore, the claims define the legal metes and bounds of an invention so that a patent owner can prevent others from making, using, and selling a patented product in the United States for a period of twenty years from the filing of the patent application. The Supreme Court has long held that a patent's claim, more so than any …

Pushing The Limits Of Copyright Law And Upping The Ante In The Digital World: The Strange Case Of A&M Records, Inc. V. Napster, Inc., Shawn D. Chapman

Kentucky Law Journal

No abstract provided.

Who Said Nothing In This World Is Free? A&M Records, Inc. V. Napster, Inc.: Problems Presented, Solutions Explored, And Answers Posed, Ryan C. Edwards

Kentucky Law Journal

No abstract provided.

Pharmaceutical Patent Protection: More Generic Favored Legislation May Cause Pioneer Drug Companies To Pull The Plug On Innovation, Mandy Wilson

Kentucky Law Journal

No abstract provided.

In Finnigan's Wake: Recent Confusing Changes In The Federal Circuit's Requirement For Corroboration Of Witness Testimony During Patent Infringement Litigation, Steven N. Hird

University of Colorado Law Review

No abstract provided.

E-Commerce, Business Method Patents, And The Uspto: An Old Debate For A New Economy, Q. Todd Dickinson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Time To Say Good-Bye To Madonna's American Pie: Why Mechanical Compulsory Licensing Should Be Put To Rest, Theresa M. Bevilacqua

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Does Ethics Make Good Law? A Case Study, Jeff Storey

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Invading The "Homes" Of The Homeless: Is Existing Right-Of-Privacy/Publicity Legislation Adequate?, Laurel Kallen

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Function, Nonfunction, And Monumental Works Of Architecture: An Interpretive Lens In Copyright Law, Melissa M. Mathis

Cardozo Law Review

No abstract provided.

Does Technology Require New Law?, David D. Friedman

Faculty Publications

Technological change affects the law in at least three ways: (1) by altering the cost of violating and enforcing existing legal rules; (2) by altering the underlying facts that justify legal rules; and (3) by changing the underlying facts implicitly assumed by the law, making existing legal concepts and categories obsolete, even meaningless. The legal system can choose to ignore such changes. Alternatively, it may selectively alter its rules legislatively or via judicial interpretation. In this essay I first discuss, as an interesting historical example, past technological changes relevant to copyright law and the law's response. I then go on …

Ucita: Still Crazy After All These Years, And Still Not Ready For Prime Time, James S. Heller

Library Staff Publications

No abstract provided.

Have Moral Rights Come Of (Digital) Age In The United States?, Jane C. Ginsburg

Faculty Scholarship

More than any other contemporary American legal scholar, Professor Merryman has drawn attention to the moral rights claims of artists. Anything written in the field in the United States since 1976 owes inspiration to The Refrigerator of Bernard Buffet ("The Refrigerator") Professor Merryman's seminal article in the 1976 Hastings Law Journal. I feel this particularly acutely since I became interested in the issue as a law student, in 1978. It looked like a hopeful time, for Professor Merryman had shown the way, and the Second Circuit, in the then-recently decided Monty Python case, seemed to be paying heed. The …

Digital Broadcasting: The Cost Of Copyright, Journal Staff

Vanderbilt Journal of Entertainment & Technology Law

Music copyright issues pervade the Internet these days, but few have roots as far back as 1915. Since that time, radio broadcasters and copyright owners have found themselves embroiled in a conflict over the extent to which copyright law should and can dictate the terms and cost of broadcasting music. Advances in dig- ital transmission technology, followed closely by the introduction of two important legislative enactments, have kept the debate fresh in recent years. Now, an inter- pretative ruling by the Copyright Office as to the applicability of the latter to the former threatens to extend the dispute well into …

Copyright And Control Over New Technologies Of Dissemination, Jane C. Ginsburg

Faculty Scholarship

The relationship of copyright to new technologies that exploit copyrighted works is often perceived to pit copyright against progress. Historically, when copyright owners seek to eliminate a new kind of dissemination, and when courts do not deem that dissemination harmful to copyright owners, courts decline to find infringement. However, when owners seek instead to participate in and be paid for the new modes of exploitation, the courts, and Congress, appear more favorable to copyright control over that new market. Today, the courts and Congress regard the unlicensed distribution of works over the Internet as impairing copyright owners' ability to avail …

Toward Supranational Copyright Law? The Wto Panel Decision And The "Three-Step Test" For Copyright Exceptions, Jane C. Ginsburg

Faculty Scholarship

A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and …

State Accountability For Violations Of Intellectual Property Rights: How To “Fix” Florida Prepaid (And How Not To), Ernest A. Young, Mitchell N. Berman, R. Anthony Reese

Faculty Scholarship

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.

Satisfactory treatment of the issue requires examination of a …

International Dispute Settlement At The Trademark-Domain Name Interface, Laurence R. Helfer

Faculty Scholarship

This essay identifies some of the emerging legal issues relating to the Uniform Domain Name Dispute Resolution Policy ("UDRP"), a new anational online dispute settlement system established by a private, non-profit corporation, the Internet Corporation for Assigned Names and Numbers in late 1999.

The UDRP creates a fast and inexpensive mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. The UDRP is worthy of serious study for at least two reasons. First and foremost, the process by which the UDRP was created, …

Designing Non-National Systems: The Case Of The Uniform Domain Name Dispute Resolution Policy, Laurence R. Helfer, Graeme B. Dinwoodie

Faculty Scholarship

The article critically assesses the Uniform Domain Name Dispute Resolution Policy (UDRP) as a potential model for solving the immense legal challenges presented by transborder activity. Inaugurated in late 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP creates a fast, inexpensive online mechanism for trademark owners to recapture domain names held by persons who, in bad faith, register and use domain names that are confusingly similar to those marks. At present, the UDRP applies only to a narrow segment of disputes between trademark owners and domain name registrants. But the UDRP has been heralded by …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …

Collusion And Collective Action In The Patent System: A Proposal For Patent Bounties, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Persistent commentary contends that the Patent Office is issuing patents that appropriate public domain concepts at an alarming frequency. Complaints of low patent quality enjoy growing resonance with regard to business methods, computer software, and other inventions for which patents were not traditionally sought. In this article, Professor Jay Thomas explains how the judiciary's lenient view of patentable subject matter and utility standards, along with miserly congressional funding policies, have rendered the Patent Office an increasingly porous agency. Professor Thomas next reviews existing proposals for improving patent quality, including the conventional wisdom that adoption of an opposition system will contribute …

Fair Use Infrastructure For Rights Management Systems, Dan L. Burk, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access. Throughout the paper, however, we also use the term "fair use" to refer more generally to the variety of limiting doctrines within copyright law that serve this goal. We begin in Part II by reviewing the contours of the fair use doctrine and the legal and policy …

Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

Scholarly Works

The twists and turns in the government’s antitrust case against Microsoft – from the D.C. Circuit’s stormy questioning at the two day oral argument in late February 2001 to its affirmance of the lion’s share of the government’s case in June 2001, and then from the settlement between the United States and Microsoft to the continuing battle by nine states for tougher sanctions – have garnered their share of press attention. But the high-profile antitrust case has not been the only Microsoft-centered controversy during the past year. Another involves the open source software movement about which Microsoft has professed grave …