Intellectual Property Law Commons^™

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 …

Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon

Faculty Scholarship

This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …

Trademarks And Consumer Search Costs On The Internet, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

In theory, trademarks serve as information tools, by conveying product information through convenient, identifiable symbols. In practice, however, trademarks have increasingly been used to obstruct the flow of information about competing products and services. In the online context, in particular, some courts have recently allowed trademark holders to block uses of their marks that would never have raised an eyebrow in a brick-and-mortar setting - uses that increase, rather than diminish, the flow of truthful, relevant information to consumers. These courts have stretched trademark doctrine on more than one dimension, both by expanding the concept of actionable "confusion" and by …

Where Have The Great Inventers Gone?, James Bessen

Faculty Scholarship

The author expands on the idea that the patent system has been a hinderance to collaborative innovation.

The Software Patent Experiment, Robert M. Hunt, James Bessen

Faculty Scholarship

Over the past two decades, the scope of technologies that can be patented has been expanded to include many items previously thought unsuitable for patenting, for example, computer software. Today, the U.S. Patent and Trademark Office grants 20,000 or more software patents a year. Conventional wisdom holds that extending patent protection to computer programs will stimulate research and development and, thus, increase the rate of innovation. In this article, Bob Hunt and Jim Bessen investigate whether this has, in fact, happened. They describe the spectacular growth in software patenting, who obtains patents, and the relationship between a sharp focus on …

"To Clean Or Not To Clean": An Analysis Of The Copyright And Trademark Issues Surrounding The Legal Battle Between Third Party Film Editors And The Film Industry, Michael P. Glasser

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Market Fundamentalism And The Trips Agreement, Thomas F. Cotter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Equitable Remuneration" In Copyright Law: The Amended German Copyright Act As A Trap For The Entertainment Industry In The U.S.?, Reto M. Hilty, Alexander Peukert

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Reissue Recapture Doctrine: Its Place Among The Patent Laws, Stephen G. Kunin, Kenneth M. Schor

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Who Owns The 'First, Rough Draft Of History'? Reconsidering Copyright In News, Eric Easton

All Faculty Scholarship

This article asserts that newspapers' quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based, ethos, and that removing that protection may at the least mark a first, symbolic step back from the abyss. Part I examines the state of contemporary journalism, particularly with respect to the propertization of news. Part II traces the history of copyright protection for news from its origins in censorship to the American copyright regime today, with emphasis on the run up to the 1909 amendments that first codified protection for newspapers. Part III advocates the moral …

A Topic Both Timely And Timeless, James Gibson

Richmond Journal of Law & Technology

The courtroom is the crucible of the law, where the fire of litigation tests the intellectual and political forces that inform social policy. Discovery - the process by which litigants identify and assemble their evidence - provides the fuel for the fire. Indeed, not long ago most of the evidence that the discovery process produced was, quite literally, flammable: boxes upon boxes of paper documents.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Sean Sullivan Kumar

Richmond Journal of Law & Technology

On behalf of the Editorial Board and Staff, I would like to welcome you to Volume XI of the Richmond Journal of Law & Technology. As we look ahead to the coming year, and particularly to our tenth anniversary this April, we would like to thank you for your continued support. The Richmond Journal of Law & Technology would not be what it is today without quality submissions from practitioners, positive feedback from our readers, and the diligent efforts of so many who have worked to make the Journal a success over the past ten years. In this first issue, …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Edwin E. Wallis Iii

Richmond Journal of Law & Technology

On behalf of the 2003-2004 Editorial Board, I would like to welcome you to the third issue of the Richmond Journal of Law & Technology’s 2003-2004 publication term! This issue includes three articles covering the AOL Instant Messenger restriction before the FCC, online alternative dispute resolution, and a proposal for regulating Internet gambling.

Foreign Investment Restrictions As Industrial Policy: The Case Of Canadian Telecommunications, Robert Crandall, Hal Singer

Canadian Journal of Law and Technology

We assess the economic harms that would accrue if Canada were to adopt asymmetric rules of foreign ownership for incumbent carriers and entrants. We explain the current Canadian regulatory climate surrounding foreign investment in Canadian telecommunications. Competition in the telecommunications industry is generally robust, which suggests that rules aimed at favouring entrants are not necessary. Moreover, Canadian entrants are equally capable of attracting foreign capital as Canadian incumbents, which suggests that foreign investment rules aimed at favouring entrants are especially unwise.

Next, we review the U.S. attempt to stimulate competition in local telecommunications markets through an analogous form of asymmetrical …

European Community Compulsory Licensing Policy: Heresy Versus Commen Sense Symposium On European Competition Law , Frank Fine

Northwestern Journal of International Law & Business

There is a growing trend to limit the rights of intellectual property owners when the public interest warrants. Until very recently, this phenomenon has been manifested only at a transnational level.1 For example, the World Trade Organization, as recently as November 2001, in its Doha Agreement ("Doha"),2 enabled certain nations of the Asian and African subcontinents to obtain compulsory licenses to manufacture and distribute domestically certain anti-retroviral drugs by declaring a state of national health emergency. Doha raises an intriguing question: if limited intrusions into valuable intellectual property rights may be justified on public health grounds, should not such intrusions …

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 …

The Ethics Of Delaying Persecution, Lisa A. Dolak

American University Law Review

No abstract provided.

Panel Ii: Public Appropriation Of Private Rights: Pursuing Internet Copyright Violators, Rebecca Tushnet, Michael Carlinsky, Justin Hughes, Sonia Katyal

Georgetown Law Faculty Publications and Other Works

It seems to me that the story of music on the Internet over the past five or six years is the story of two fantasies colliding. The first fantasy is that information wants to be free, that with the Internet we can throwaway all the bottles and just have the wine and the free flow of data, which apparently was generated from somewhere and then circulated forever. So, there was that fantasy, that we would not need copyright anymore because everything would be available to everyone. The other fantasy is the record companies' fantasy of perfect control, that there would …

Turning Worms: Some Thoughts On Liabilities For Spreading Computer Infections, Richard Owens

Canadian Journal of Law and Technology

Two aspects of the virus/worm liability problem are of particular note. The first is how tightly the Internet binds together many possible defendants; those who build and run it, those who populate it with increasingly complex electronic commerce Web sites, those who provide terminal software, those who send electronic mails, those who design its security algorithms, those who insure it, and those who hack it, amongst others.

The second aspect is how speculative such a review is. Little case law pertains. Even the language of the law(what does it really mean when we assess liability on the basis of a …

Following The Right Lead: Gutnick And The Dance Of Internet Jurisdiction, Mary Paterson

Canadian Journal of Law and Technology

As improving methods of travel and communication facilitated the shift from an agrarian to an industrial society, the common law courts increasingly faced interjurisdictional disputes. Although British paternalism dominated early cases in which courts assumed jurisdiction over people, property, and actions in distant lands, these cases and the imperial attitudes informing them were slowly replaced by more modest jurisdictional assertions based on a sense of comity. The shift from an industrial society to an information-based society and the simultaneous growth of a global infrastructure based on satellite, telephone, cable, and cellular technologies have stretched jurisdictional doctrines in new ways, calling …

Les Consommateurs Et Les Clubs Vidéo Ont-Ils Le Droit De Modifier Les Films À Leur Guise?, René Pépin

Canadian Journal of Law and Technology

Dans un premier temps, nous voulons étudier le litige en cours. Même si aucune décision sur le fond n’est susceptible d’être rendue à court terme, nous pouvons scruter les prétentions des parties et voir l’état du droit aux États-Unis sur ce sujet. Nous examinerons ensuite comment cette problématique serait traitée au Canada.

Et c’est ici que la question soulevée dans le litige revêt tout son intérêt, car elle met en jeu des notions fonda- mentales en matière de droit d’auteur. On devra ainsi se demander si le fait pour une personne ou une entreprise de retrancher des séquences représentant quelques …

Rethinking Copyright Misuse, Kathryn Judge

Faculty Scholarship

Over the last few decades, copyright has evolved in dramatic and unprecedented ways. At the heart of this evolution lies a series of changes in the statutory scheme that have substantially expanded copyright's scope. There has also been a rise in private ordering as copyright holders increasingly use licenses to govern use of their copyrighted material and thereby supplant the default terms prescribed by the Copyright Act. Mediating and contributing to this evolution has been the judiciary. The judiciary has long played an active role in protecting copyright policy, and the dynamism of the last thirty years has only accentuated …

The Lingering Effects Of Copyright's Response To The Invention Of Photography, Christine Farley

Scholarly Articles in Law Reviews & Journals

In 1884, the Supreme Court was presented with dichotomous views of photography. In one view, the photograph was an original, intellectual conception of the author-a fine art. In the other, it was the mere product of the soulless labor of the machine. Much was at stake in this dispute, including the booming market in photographs and the constitutional importance of the originality requirement in copyright law. This first confrontation between copyright law and technology provides invaluable insights into copyright law's ability to adapt and accommodate in the face of a challenge. An examination of these historical debates about photography across …

Whose Music Is It Anyway? How We Came To View Musical Expression As A Form Of Property, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Many participants in the music industry consider unauthorized transmissions of music files over the Internet to be theft of their property. Many Internet users who exchange music files reject this characterization. Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing music making in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some …

Reforming Patent Validity Litigation: The "Dubious Preponderance", Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

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 …

Albert Einstein, Esq., Steven Goldberg

Georgetown Law Faculty Publications and Other Works

Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

Scholarly Works

When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

Even More Parodic Than The Real Thing: Parody Lawsuits Revisited, Bruce P. Keller, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

An article focusing on a copyright decision initially may appear out of place in the pages of The Trademark Reporter®. Yet Campbell v. Acuff-Rose Music, Inc., in which the U.S. Supreme Court held that a parodic, transformative use of a copyrighted work, even if commercial, could qualify as a fair use, is quite significant for trademark lawyers. As a practical matter, parody cases increasingly involve copyright as well as trademark claims, so practitioners often encounter both within the same case. As a doctrinal matter, Campbell also has proved legally significant in trademark cases because the free-speech concerns underlying protection for …

An Empirical Investigation Of Liquidation Choices Of Failed High Tech Firms, Ronald J. Mann

Faculty Scholarship

Perhaps it is merely a reflection of my interests, but to my mind, empirical research requires a certain risk-preferent boldness. I like projects that explore how and why particular businesses make important decisions. After I identify a topic, I typically try to gather as much qualitative and quantitative information about it as I can, with the expectation that when I have learned a great deal about the topic something interesting will emerge that relates in some important way to an ongoing academic debate. Those projects usually do not begin with a specific hypothesis to prove or disprove-often either answer will …