Intellectual Property Law Commons^™

Counting Down Another Music Marathon: Copyright Arbitration Royalty Panels And The Case Of Internet Radio, Sara J. O'Connell

Marquette Intellectual Property Law Review

Ms. O'Connell won the Computer Law Association's 2003 Information Technology Law Writing Competition for this article discussing the controversy over Copyright Arbitration Royalty Panels ("CARPs"). A CARP sets royalty rates for the performance of copyrighted works when the copyright owner and the broadcaster have not agreed on those rates. Congress created CARPs as a way to encourage the creation of creative works and to promote public access to these creative works. Recently, a CARP recommended royalty rates for webcasting; the broadcasting of copyrighted works over the Internet. The CARP's recommendation was rejected by the Librarian of Congress, criticized by both …

Table Of Contents

Marquette Intellectual Property Law Review

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Table Of Contents

Marquette Intellectual Property Law Review

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Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon

Scholarship Chronologically

This essay, however, does not press any particular agenda; rather, it tries to make our thinking about the topic more flexible. It is my hope that some conduct-specific rule as was adopted in the defamation context will eventually be adopted for intellectual property. Copyright law cannot continue forever closing its eyes and hoping its house will stop being haunted.

National Treatment, National Interest And The Public Domain, Margaret Ann Wilkinson

Law Publications

The concept of the "public domain" is a powerful rhetorical element in he policy debates involving intellectual property. But is it a stable and useful concept for analyzing information issues? Can the notion of the public domain and the concept of the information commons be separated? Is the notion of the public domain merely another way of expressing the public interest?

This paper canvassed the literature, seeking a theoretically consistent definition for public domain that was equally applicable across the copyright, trademark and patent spheres. The analysis demonstrated that there is no such construct.

The paper also reviews the findings …

Mutant Copyrights And Backdoor Patents: The Problem Of Overlapping Intellectual Property Protection, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

The interactions between the three federal schemes of intellectual property protection - copyright, patent, and trademark - have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public. All three areas of federal intellectual property protection are commonly seen as regulatory schemes …

"Distinctive" And "Famous" - Separate Requirements Under The Federal Trademark Dilution Act?, 3 J. Marshall Rev. Intell. Prop. L. 174 (2004), M. Scott Donahey

UIC Review of Intellectual Property Law

The Federal Trademark Dilution Act was promulgated to provide national protection of famous marks from uses that cause dilution of the distinctive quality of the mark. Courts consider several factors in determining whether a mark is “distinctive and famous.” However, a difference of opinion has arisen as to whether there is a difference between a “distinctive” mark and a “famous” mark. An analysis of the statutory language, pertinent historical sources, and the case law interpreting the statute leads one to conclude that the view articulated by the Second Circuit is more consistent with the language of the statute, the intent …

Commentary: Willful Patent Infringement And The Federal Circuit's Pending En Banc Decision In Knorr-Bremse V. Dana Corp., 3 J. Marshall Rev. Intell. Prop. L. 218 (2004), Janice M. Mueller

UIC Review of Intellectual Property Law

The Federal Circuit’s recent sua sponte grant of rehearing en banc in Knorr-Bremse v. Dana Corporation has catalyzed a vocal debate concerning the nature and consequences of willful patent infringement. Subject to virtually unanimous condemnation is the Federal Circuit’s “adverse inference” rule, which forces a party accused of willful infringement to choose between two unpalatable options: (i) disclosing privileged advice of counsel to mount a willfulness defense, or (ii) not disclosing such information and being subjected to an adverse inference that an exculpatory opinion was not or could not be obtained. This commentary concurs that the adverse inference rule should …

When Politics Interfere With Patent Reexamination, 4 J. Marshall Rev. Intell. Prop. L. 160 (2004), Amy L. Magas

UIC Review of Intellectual Property Law

Reexamination was created to reconfirm the presumed validity of a patent without requiring the patentee to endure the expense of litigation. The Patent Act allows anyone to request reexamination of a patent based on newly discovered prior art. Upon finding that the request raises a substantial new question of patentability, the Director of the United States Patent and Trademark Office may order reexamination. Even if a request is not made, the Director may sua sponte order a reexamination. Such reexaminations are only initiated when questions of public policy arise and there is no interest by any other pson. However, in …

Developments In Patent Law 2003, 3 J. Marshall Rev. Intell. Prop. L. 229 (2004), Bradley C. Wright

UIC Review of Intellectual Property Law

The year 2003 provided a great deal of legislative, administrative and judicial activity in the development of patent law. Legislation has been directed to amending the Hatch-Waxman Act and abrogation of State immunity from patent infringement. The U.S. Patent and Trademark Office has adopted changes pursuant to recent amendments to the Patent Cooperation Treaty and implemented an electronic filing system for patent applications. The Federal Trade Commission has taken an interest in patents, particularly standard setting technologies. In light of the Supreme Court’s decision in Festo, the Federal Circuit has provided additional guidance for prosecution history estoppel and the doctrine …

The Terminator Patent And Its Discontents: Rethinking The Normative Deficit In Utility Test Of Modern Patent Law, Ikechi Mgbeoji

St. Thomas Law Review

For clarity of analysis, this article is divided into three parts. In the first part, I introduce the technologies of GURTs (Genetic Use Restriction Technologies) and their main characteristics. In the second part, I examine the origins and policy foundations of the patent system, particularly how the courts in various jurisdictions have defined the concept of utility. The second part also explores the evolution of the requirement of utility and its contemporary emergence as a secular, technical test with emphasis on mechanical operability of inventions. The third part of this article explores the nature of GURT patents vis-a-vis their compatibility …

Too Much Of A Good Thing: Deciphering Copyright Infringement For The Musician, Joseph K. Christian

Vanderbilt Journal of Entertainment & Technology Law

Imitation may indeed be flattering, but at least in the world of music, too much imitation is illegal. Copyright law protects "original works of authorship fixed in any tangible medium of expression. "It guarantees the owner of a copyrighted work the exclusive right to reproduce, distribute, display, and publicly perform the work, among other rights. To the owner of a copyright in music, that means that no one else may perform the musical work, or make or distribute copies of the original manuscript or a recording of the work, without the permission of the copyright owner.'

The Effectiveness Of International Enforcement Of Intellectual Property Rights, 37 J. Marshall L. Rev. 985 (2004), Allison Cychosz

UIC Law Review

No abstract provided.

"Don't Let The Sun Go Down On Me:" An In-Depth Look At Opportunistic Business Method Patent Licensing And A Proposed Solution To Allow Small-Defendant Business Method Users To Sing A Happier Tune, 37 J. Marshall L. Rev. 1359 (2004), Andrea Lynn Evensen

UIC Law Review

No abstract provided.

Balancing Individual Privacy Rights And The Rights Of Trademark Owners In Access To The Whois, 38 J. Marshall L. Rev. 357 (2004), Jeffrey Stephen Sobek

UIC Law Review

No abstract provided.

Copyright Infringement, Sex Trafficking, And Defamation In The Fictional Life Of A Geisha, Susan Tiefenbrun

Michigan Journal of Gender & Law

Memoirs of a Geisha has sold and made millions for Arthur Golden since 1997. This is his first novel, and it has earned him worldwide acclaim. A feature film version directed by Steven Spielberg is in the works. The book is translated into more than twenty languages. This article uses the book and the legal controversy that ensued after its publication to ask, and hopefully answer, two questions: First, is the geisha tradition as described by Golden in his fictional biography a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, …

Copyright Under Siege: The First Amendment Front, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Over the past decade, the law of copyright - traditionally an arcane and obscure specialty - has evolved into an extraordinarily controversial legal arena. To a significant extent, though not exclusively, this has been caused by the emerging clashes between copyright on the one hand and digital technology and the internet on the other. Some see copyright as the aggressor in the copyright wars, guilty of threatening the digital revolution, the internet, information policy, privacy, freedom of speech and the public domain. Much of this assault on copyright is culturally driven by the Internet's champions. Inevitably, this cultural challenge is …

The Spirit Of Trips And The Importation Of Medicines Made Under Compulsory License After The August 2003 Trips Council Agreement, Jessica J. Fayerman

Northwestern Journal of International Law & Business

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has changed prospects for access to necessary medications in the developing world. The use of compulsory licensing for pharmaceutical products embodied in Article 31 of TRIPS has been a contentious issue. Prior to 2003, countries with no manufacturing capacity of their own were not allowed to import medicines made under compulsory license, rendering the protections of Article 31 of little use to them. The 2003 Motta Agreement changed this. This expansion of the compulsory licensing power is both an impractical solution and it dilutes the premises upon which TRIPS was originally …

Trips' Rebound: An Historical Analysis Of How The Trips Agreement Can Ricochet Back Against The United States, Donald P. Harris

Northwestern Journal of International Law & Business

Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing "Western-styled" intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is …

Cross Burning Revisited: What The Supreme Court Should Have Done In Virginia V. Black And Why It Didn’T, W. Wat Hopkins

UC Law SF Communications and Entertainment Journal

The Supreme Court of the United States, in R.A. V. v. St. Paul, created a complicated framework of law that, despite years of case law to the contrary, would allow a court to hold a law banning cross burning to be constitutional, even if the law was not content-neutral. The ruling caused considerable problems in cases involving cross burning that reached lower appellate courts. In Virginia v. Black, the Court had the opportunity to resolve the problem, but refused to do so. Instead, the Court restructured the law related to intimidating and threatening speech, creating even more ambiguity. Under the …

Play It Again, Sam: Webcasters’ Sound Recording Complement As An Unconstitutional Restraint On Free Speech, Amanda S. Reid

UC Law SF Communications and Entertainment Journal

Music embodies two copyrights: one for the words and notes, and another for the particular sound recording. Copyright law provides for a compulsory license that enables a Webcaster to transmit songs without first negotiating price and permission, provided a royalty fee is paid. A condition for being eligible for the statutory license is compliance with the "sound recording performance complement," which limits the number of songs that may be played during a three-hour period to no more than three songs from one album, and no more than two songs back to back. This Article argues that the "sound recording performance …

Redefining The Transformative Use Of Copyrighted Works: Toward A Fair Use Standard In The Digital Environment, Jisuk Woo

UC Law SF Communications and Entertainment Journal

This paper analyzes the transformative use factor in fair use analysis of copyright law. The author argues that, in the changing information environment stimulated by digital information technology, the end user's creativity in their activities of using works of authorship should be the focus in applying the principle of transformative use rather than the subsequent creation of transformed work as found in the lower court cases after Campbell.

But We Have To Protect Our Source: How Electronic Voting Companies' Proprietary Code Ruins Elections, Andrew Massey

UC Law SF Communications and Entertainment Journal

In the wake of the disastrous 2000 Presidential election, reformers turned to touch-screen electronic voting machines, or DREs, to avoid repeating Florida's experience with endless recounts and hanging chads. As soon as DREs were introduced, however, criticism quickly mounted, focusing on the machines' error-ridden code, inability to perform recounts, and susceptibility to hacking. This note explores how the problems associated with DREs stem directly from their reliance on proprietary source code. This note puts forth the argument that proprietary code place's electronic voting companies' intellectual property rights ahead of the public's need for an accountable and transparent voting system. In …

Nonconventional Musical Analysis And Disguised Infringement: Clever Musical Tricks To Divide The Wealth Of Tin Pan Alley , Mark Avsec

Cleveland State Law Review

This article argues that "disguised" infringement is oxymoronic and demagogic, and that the "nonconventional" musical analytical techniques employed to diagnose it are misguided. If an expert cannot tell that two pieces of music are similar by traditional methods, that is probably because they are not similar. Part II of this article chronicles the role of the musical expert as it has been carved out over time. Part III exposes the expert's traditional methods for comparing musical compositions. Part IV explores nonconventional analytical techniques, explains why they are misapplied when employed to detect "disguised" plagiarism and illustrates why Judge Frank would …

Communication Breakdown: The Recording Industry's Pursuit Of The Individual Music User, A Comparison Of U.S. And E.U. Copyright Protections For Internet Music File Sharing, Ryan Bates

Northwestern Journal of International Law & Business

While music file sharing over the internet has become a common practice in recent years, record companies blame the illegal swapping for a 31% drop in compact disk sales since mid-2000. In an ever-evolving attempt to gain a stronghold on the distribution of digital music via the internet, the recording industry recently began filing lawsuits against the individual internet "file sharer" in both the United States the European Union.

This comment examines the development of copyright protections in the United States and the European Union, including recent legislation under each system, and argues that a balance of rights and technical …

Entrepreneurial Open Source Software Hackers: Mysql And Its Dual Licensing, Robert W. Gomulkiewicz

Articles

Hackers often quibble about commercializing software, yet most willreadily sell their programming services. Richard Stallman, the father of free software, has always recognized that hackers have a right to make money. Aside from selling programming services, however, Stallman's disciples seem to frown upon commercializing software. Other hackers, labeling themselves "open source" developers, have warmed to the possibility that free software may be profitable.

This article describes one of the most promising business models for hackers, called "dual licensing." In this model, hackers offer the same code under two different licenses: a commercial license and an open source license. Licensees who …

Wasting Resources: Reinventing The Scope Of Waiver Resulting From The Advice-Of-Counsel Defense To A Charge Of Willful Patent Infringement, David O. Taylor

Faculty Journal Articles and Book Chapters

Patent infringement cases may be the very definition of “high-stakes litigation.” In addition to issuance of permanent injunctions and high-dollar damage awards, judges have discretion to award treble damages and attorney’s fees in patent cases. Judges may exercise this discretion when infringement is found to be willful. One way for an alleged willful infringer to rebut an allegation of willfulness is to introduce an opinion of counsel evidencing the alleged willful infringer’s good faith effort to investigate the patent at issue after receiving notice of potential infringement. Disclosure of such an opinion, however, waives attorney-client privilege and work-product immunity. District …

Old Lyrics, Knock-Off Videos, And Copycat Comic Books: The Fourth Fair Use Factor In U.S. Copyright Law, Gregory M. Duhl

Faculty Scholarship

This article examines the fourth fair use factor in copyright law in cases in which the unlicensed use benefits, or has no effect on, the copyright holder's market. It proposes a two-part framework for these cases. If the unlicensed use is transformative or public, and the use does not harm the copyright holder's market, the copyright holder's economic expectancy is protected, and the user should not have to pay damages, analogous to the law of eminent domain. In cases in which the unlicensed use is private, the court should protect the rights of the copyright holder with damages, even if …

Holding The Spymasters Accountable After 9/11: A Proposed Model For Cia Disclosure Requirements Under The Freedom Of Information Act, Martin E. Halstuk

UC Law SF Communications and Entertainment Journal

For the last two decades, near-blanket CIA secrecy has gone largely unchecked, principally because of CIA v. Sims, a sweeping 1985 U.S. Supreme Court decision that exempted the Agency from virtually any disclosure requirements under the Freedom of Information Act (FOIA). The uncurbed secrecy that the Court has sanctioned effectively blocks public and press efforts to evaluate CIA performance, thus making Agency accountability difficult, if not impossible. The well-publicized missteps and failures by the CIA in connection with the 9/11 terrorist attacks illustrate the follies of how excessive secrecy can conceal grave problems in Agency management. This article argues that …

Copyright Non–Compliance (Or Why We Can’T “Just Say Yes” To Licensing)., Jessica D. Litman

Book Chapters

I have complained more than once over the past few years that the copyright law is complicated, arcane, and counterintuitive; and that the upshot of that is that people don't believe that the copyright law says what it does say. People do seem to buy into copyright norms, but they don't translate those norms into the rules that the copyright statute does; they find it very hard to believe that there's really a law out there that says the stuff the copyright law says.