Intellectual Property Law Commons^™

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Comment On Data Protection Statutes And Bioinformatic Databases, Wendy J. Gordon

Faculty Scholarship

We have heard from the lawyer, the advocate's perspective of some of the legal issues involved in database protection and bioinformatics, and now we are going to hear an academic perspective on these issues. Professor Dennis Karjala is a professor at the Arizona State University College of Law with an interesting background. He has a Ph.D. in electrical engineering and taught in that field before going to law school at Boalt, and he is an internationally renowned expert on copyright law and computer law issues. Professor Karjala is going to talk to us about database protection issues. His presentation will …

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

Digital Tv, Copy Control, And Public Policy, Jonathan Weinberg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

War Stories, Jessica Litman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Miss Scarlett's License Done Gone!: Parody, Satire, And Markets, Michael A. Einhorn

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Innovating Copyright, Lawrence Lessig

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The American Inventors Protection Act Of 1999: An Analysis Of The New Eighteen-Month Publication Provision, Reiko Watase

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Thoughts On Dastar From A Copyright Perspective: A Welcome Step Toward Respite For The Public Domain, Lynn Mclain

All Faculty Scholarship

Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the …

Sovereign Domains: A Declaration Of Independence Of Cctlds From Foreign Control, Kim G. Von Arx, Gregory R. Hagan

Richmond Journal of Law & Technology

In the year 2000, the Government Advisory Committee (“GAC”) of the Internet Corporation for Assigned Names and Numbers (“ICANN”) passed a set of principles that essentially claimed national sovereignty over country code top-level domains (“ccTLD”s) such as .us, .ca, .uk and .au. Shortly thereafter, ICANN redelegated several ccTLDs in accordance with new GAC principles. Despite the outcry accompanying the passage of these principles and ICANN’s self-professed adherence thereto, the entire exercise could easily be criticized as merely symbolic because of the overriding power of ICANN in the operation of the Domain Name System (“DNS”). Indeed, Stuart Lynn, ICANN’s current president, …

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

De-Bugging Open Source Software Licensing, Robert W. Gomulkiewicz

Articles

Home computer users and businesses often rely on software developed by unconventional programmers known as "hackers." Hackers claim that the code they develop is superior in quality to the code developed by commercial software firms because hackers freely share the code they develop. This code sharing enables a multitude of programmers from around the world to rapidly find and fix bugs. The legal mechanism that enables hackers to deploy this worldwide team of de-buggers is a license agreement or, to be more precise,an assortment of license agreements known as "open source" licenses.

Although open source software developers may regularly fix …

Symposium Introduction: Napster: Innocent Innovation Or Egregious Infringement, Gregory P. Magarian

Scholarship@WashULaw

Napster is gone for now, but the fissures it opened in our understanding of intellectual property will challenge lawyers for a long time. The basic idea behind Napster was a simple outgrowth of the Internet's premise of linking computers to facilitate the wide-spread exchange of information. The Napster Web site, with its peer-to-peer file sharing technology, created a sort of "clearing house" for information, specifically the sound files known as MP3s. Thousands upon thousands of users could sign on to the Napster site at any given time, offer MP3 files for downloading, and in turn download any files that any …

The Responsibility Of The Rulemaker: Comparative Approaches To Patent Administration Reform, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patent administrators across the globe currently face the most challenging operating environment they have ever known. Soaring application rates, lean fiscal policies and an increasingly ambitious range of patentable subject matter are among the difficulties faced by the world's leading patent offices. These trends have resulted in persistent concerns over the quality of issued patents. Responding to recent writings questioning the value of maintaining high levels of patent quality, Professor Jay Thomas asserts both that patent quality matters, and that increasing the responsibilities of patent applicants provides a fair and efficient mechanism for improving patent office work product. This Article …

The Uniform Domain Name Dispute Resolution Policy: A Practical Guide, Bradley J. Freedman, Robert J.C. Deane

Canadian Journal of Law and Technology

Disputes involving alleged bad faith registration and use of certain Internet domain names may be arbitrated pursuant to the Uniform Domain Name Dispute Resolution Policy (the Policy) mandated by the Internet Corporation for Assigned Names and Numbers ("ICANN").

The Policy is the first attempt to establish a global set of substantive rules regarding certain kinds of Internet-related trademark disputes, and a single, international system for the arbitration of those disputes. In many respects, the Policy has fulfilled its objective of providing an efficient and cost effective means of resolving certain domain name disputes. In other respects, however, the experience with …

Who Was That Masked Man? Online Defamation, Freedom Of Expression, And The Right To Speak Anonymously, Jonathon T. Feasby

Canadian Journal of Law and Technology

As the internet continues to reach into the lives of people around the world, it facilitates interaction and the exchange of ideas between far-flung individuals and groups to an extent unprecedented in communications history. However, with this positive effect, the potential of the internet as a forum for defamation and other malfeasance has increased as well. Words online can be heard or read in places conventional forms of speech might never reach. As the United States Supreme Court put it, with the aid of the internet ". . . any person with a phone line can become a town crier …

Book Review: A Guide To Electronic Legal Research By A. Zivanovic (Markham Ont.: Butterworths Canada, 2001), David H. Michels

Canadian Journal of Law and Technology

No abstract provided.

Book Review: The Personal Information Protection And Electronic Documents Act: An Annotated Guide By Stephanie Perrin, Heather H. Black, David H. Flaherty And T. Murray Rankin, Q.C. (Concord, Ont.: Irwin Law, 2001), Teresa Scassa

Canadian Journal of Law and Technology

In April 2000, the Personal Information Protection and Electronic Documents Act was passed by the House of Commons. The legislation dealt with both personal information privacy and the use and validity of electronic documents in areas governed by federal law. On January 1, 2001, the portion of the Act dealing with electronic documents took effect, as did the privacy provisions, to the extent that they related to the collection use or disclosure of personal information inter-provincially, or in connection with a federal work, undertaking or business. The Act applied to personal health information as of January 1, 2002, and will …

Is Internet Gaming Legal In Canada: A Look At Starnet, C. Ian Kyer, Danielle Hough

Canadian Journal of Law and Technology

The development of the Internet has kindled many new business opportunities in the online environment. Despite the recent slump in online business growth and popularity, one line of online business is generating profit and growing at a rapid rate: the business of online gaming.

The legality of such businesses is questionable in Canada and there are few gaming cases to assist Canadian lawyers. The following analysis must be considered in light of the dearth of jurisprudence in this area and should not be considered legal advice. This area of the law is in flux and developments may be unpredictable.

When …

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill

Faculty Scholarship

United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."

Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …

Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward …

Transitions In Ip And Antitrust, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

Inventions, Industry Standards, And Intellectual Property, Mark R. Patterson

Faculty Scholarship

When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining …

U.S. Plant Variety Protection: Sound And Fury...?, Mark D. Janis, Jay P. Kesan

Articles by Maurer Faculty

This Article offers a critical reassessment of U.S. approaches to intellectual property protection for plant innovation. Three developments make this reassessment timely. First, the Supreme Court has finally confirmed that utility patent claims to plants and seeds satisfy the 35 U.S.C. Section 101 subject matter eligibility requirement. Plant innovation in the United States is now subject to utility patent protection, as well as concurrent protection under the Plant Variety Protection Act (PVPA). However, little work has been done to explain the role of PVPA protection in a system of concurrent protection, or to develop a coherent policy vision within which …

Patent Abolitionism, Mark D. Janis

Articles by Maurer Faculty

In this Article, Professor Janis argues that modem enthusiasm for large-scale legislative reforms in patent law should be received with caution in view of the history of patent law reform. That history suggests that patent law is more resilient--or perhaps more impervious to change-than modem reformers recognize. To explore these propositions, Professor Janis analyzes the history of the mid-Victorian era British patent abolitionism movement. He demonstrates that much of the reform dialogue of that era, from the elucidation of major problems in the patent system, to the formulation of legislative solutions, mirrors quite closely the modem U.S. patent reform debate. …

Icann's "Uniform Dispute Resolution Policy"- Causes And (Partial) Cures, A. Michael Froomkin

Articles

No abstract provided.

Trademark Exhaustion In The European Union: Community-Wide Or International? The Saga Continues, Irene Calboli

Research Collection Yong Pung How School Of Law

This Article analyzes the principle of "trademark exhaustion" or "first-sale rule" in the European Union (EU), with particular attention to the language and different interpretations of Article 7(1) of the First Council Directive 89 104 EEC of December 21, 1988. Traditionally, most jurisdictions define the extent of trademark exhaustion as either "national" or "international" exhaustion, depending on whether the rights granted by a mark are considered exhausted only in the domestic territory or also in foreign jurisdictions. Because of its nature as a regional integration of sovereign countries, the EU has historically favored a compromising approach toward the issue, and …

Trademark Exhaustion In The European Union: Community-Wide Or International?The Saga Continues, Irene Calboli

Research Collection Yong Pung How School Of Law

This Article analyzes the principle of "trademark exhaustion" or "first-sale rule" in the European Union (EU), with particular attention to the language and different interpretations of Article 7(1) of the First Council Directive 89 104 EEC of December 21, 1988. Traditionally, most jurisdictions define the extent of trademark exhaustion as either "national" or "international" exhaustion, depending on whether the rights granted by a mark are considered exhausted only in the domestic territory or also in foreign jurisdictions. Because of its nature as a regional integration of sovereign countries, the EU has historically favored a compromising approach toward the issue, and …