Intellectual Property Law Commons^™

Comptroller Of City Of New York V. Mayor Of New York (Decided July 29, 2004), Leslie Spitalnick

NYLS Law Review

No abstract provided.

A Quick And Inexpensive System For Resolving Peer-To-Peer Copyright Disputes, Mark A. Lemley, R. Anthony Reese

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick

Michigan Law Review

This Note will show that one can read Elsner broadly to encompass both plant-type and widget-type inventions, and that applying Elsner to both plants and widgets is within the current statutory framework and case law. Such a reading would change the § 102 bar for inventions patentable under § 10i29 (hereinafter referred to as "widgets") as well as for plants. Part I of this Note argues that congressional sources require a flexible test-one that does not prejudice any objects under the Patent Act. Part II discusses the judicial interpretation of the Patent Act prior to Elsner in order to argue …

A Case For Mediating Trademark Disputes In The Age Of Expanding Brands, David Allen Bernstein

Cardozo Journal of Conflict Resolution

This Note proposes that there is an alternative method that ensures the viability of brand names while avoiding litigation. Companies must be willing to enter a process which will explore the possibility of a mutually beneficial solution, perhaps in the form of a settlement agreement allowing both parties to use the mark or brand name. The process best suited to guide such parties and achieve such a result is mediation.

Disclosure As A Strategy In The Patent Race, Scott Baker, Claudio Mezzetti

Scholarship@WashULaw

Research firms disclose a surprisingly large amount of information to the patent office through “targeted” disclosures, that is, disclosures intended to make the patent office aware of potentially patentable information. Conventional wisdom holds that these disclosures are made for defensive purposes; the disclosing firm does not itself plan to pursue patents related to the disclosed information, so the firm discloses to create prior art that might stop rivals from patenting. But firms have an incentive to disclose even if they intend to pursue patent protection. The reason is that, by making it more difficult to patent, disclosure extends the patent …

Title Blanding: How The Lanham Act Strips Artistic Expression From Song Titles, Lisa Tomiko Blackburn

Cardozo Arts & Entertainment Law Journal

No abstract provided.

What Is A Copy?, Jeffrey Malkan

Cardozo Arts & Entertainment Law Journal

Copyright law encourages artistic and literary expression by policing copying and embracing the value of originality. To some degree, however, originality comes into focus only through the lens of copying, its unacknowledged, dark twin. The questions I ask in this inquiy are both "what" and "why "? What is the difference between a work and a copy? If there is a difference, why is the copy less worthy than the original? In my consideration of these questions, I draw upon a body of theory that attempts to explain the unequal status conferred by the art world on perceptually indiscernible objects-authentic …

Rewriting Fair Use And The Future Of Copyright Reform, Michael J. Madison

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ready, Set, Mark Your Patented Software!, John Labarre, Xavier Gómez-Velasco

Richmond Journal of Law & Technology

The question of whether software programs embodying patented processes need to be marked in accordance with the marking requirement as set forth under 35 U.S.C. § 287 is an unanswered issue. This article first analyzes the marking requirement in the United States patent system and then goes on to survey the rocky history of patents on software innovations. After noting that neither the Supreme Court nor the Federal Circuit has directly decided the issue of the applicability of the Marking Statute to software programs, the article analyzes recent federal district court and Federal Circuit cases, ultimately reasoning that the Federal …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Neal H. Lewis

Richmond Journal of Law & Technology

Welcome to the second issue of the Richmond Journal of Law & Technology for the 2005-2006 academic year. The Staff and Editorial Board of the Journal have spent considerable time preparing this issue for publication, endeavoring to continue the legal discourse on a range of topics. Volume 12, Issue 2 addresses four distinct areas of law.

Patenting The Minotaur, Bratislav Stanković

Richmond Journal of Law & Technology

Half man, half bull, the Minotaur was the most fearsome monster in Greek mythology. Human torso and bull’s head, its horns were sharp as knives, its great hooves could kick the life out the strongest of heroes, and its food was human flesh. Yet under the surface, the Minotaur’s myth was sad; his insatiable existence originated in jealousy and lust.

State Of The Art(S): Protecting Publishers Or Promoting Progress?, Thomas A. Mitchell

Richmond Journal of Law & Technology

The Framers guarded against the future accumulation of monopoly power in booksellers and publishers by authorizing Congress to vest copyrights only in ‘Authors.

Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk

Articles

Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works - while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property …

Designer Discounter Infringes Trademark And Goes Unpunished: A Look At Gucci America, Inc. V. Daffy’S, Inc. And The Lanham Act, Sarah Cone

Richmond Journal of Law & Technology

Regardless of the quality, a knockoff handbag is still a knockoff. It was on this premise that Gucci America, Inc. filed suit against Daffy’s, Inc. for selling counterfeit Gucci handbags. Gucci alleged that Daffy’s violated its trademark protection under the Lanham Act. In the lawsuit, Gucci asserted that it was concerned about the possible confusion of consumers who purchased counterfeit “Jackie-O” handbags, believing them to be genuine Gucci products. Neither the district court nor the circuit court allowed Gucci relief against Daffy’s. This note examines how that decision fits within the Lanham Act.

Whose Idea Is It Anyway? Protecting Idea Purveyors And Media Producers After Grosso V. Miramax, Aileen Brophy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Trend Forecast: Imitation Is A Legal Form Of Flattery-Louis Vuitton Malletier V. Dooney & Bourke, Inc., Sarah J. Kaufman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Too Famous For The Right Of Publicity: Etw Corp. And The Trend Towards Diminished Protection For Top Celebrities, Michael Sloan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.

Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …

The Birth Of The Authornym: Authorship, Pseudonymity, And Trademark Law, Laura A. Heymann

Faculty Publications

Consumers in the marketplace of ideas are well acquainted with one aspect of the Foucauldian concept of the "author function": the way in which an author's name serves to organize both producer inputs-the various works the author wishes to have associated with his name-and consumer inputs-the readers' interpretive reactions to any particular body of work. Indeed, choosing to write under a pseudonym or under one's true name is the way in which an author exerts control over this function by grouping certain works (for example, scholarly pieces) under one name and other works (for example, mystery novels) under a different …

Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu

Faculty Scholarship

Drawing on recent work by Dan Burk and Mark Lemley in the patent context, this paper explores the extent to which courts have adapted pre-existing copyright doctrines to the special case of computer software. We argue that a number of courts have, as has been widely recognized, significantly adapted copyright doctrines to deal with special features of the computer software market. We further argue that these adaptations have, by and large, positively sought to strike a balance between the copyright act's dual goals of incentive and access. Despite this general trend toward adaptation, however, we point to a handful of …

Laugh Track, Jay D. Wexler

Faculty Scholarship

The Supreme Court may have its own police force, its own museum curator, and even its own basketball court, but unlike the courts of yore it has no Jester. As a result, the responsibility of delivering humor within the hallowed halls of One First Street falls squarely on the backs of the nine Justices themselves. But which Justice provides the best comic entertainment for the court watchers, lawyers, and staff that make up the Court’s audience on any given argument day? Surely many believe that Justice Scalia, with his acerbic wit and quick tongue, has provided the most laughs from …

Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff

Faculty Scholarship

The participants in this dialogue are Wendy Gordon and Lois Wasoff. Each is an intellectual property expert who has immersed herself in copyright law and policy for over twenty years. Neither sits at an extreme end of the policy spectrum, yet the two disagree over a wide range of issues. The editors of this volume thought their discussions could prove useful to others struggling with copyright dilemmas. Accordingly, Gordon and Wasoff sat down with a tape recorder for us. In edited form, their dialogue follows here.

The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation And Global Public Health, Kevin Outterson

Faculty Scholarship

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the US Surgeon General declared victory over infectious diseases in the US. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains with the least fitness cost. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency (AIDS) virus develop resistance to anti-retroviral …

Why Is Betamax An Anachronism In The Digital Age?, Jiarui Liu

Vanderbilt Journal of Entertainment & Technology Law

This Article aims to examine whether, as some courts indicate, the Sony doctrine is largely irrelevant in cyberspace. If the answer is no, how should courts properly apply the Sony doctrine to protect copyright holders' legitimate interests and further the innovation and prosperity of Internet technologies? This Article argues that the Sony doctrine should be given the widest application possible and not be subject to any preconceived formula. In the digital age, the test of "capable of substantial noninfringing uses" is still well suited to advance the ultimate objective of copyright law contemplated by the Supreme Court as well as …

Digital Music Sampling And Copyright Law, Carlos Ruiz De La Torre

Vanderbilt Journal of Entertainment & Technology Law

Copyright law governing digital music sampling is faced with two competing interests: first, the owners of recording and composition copyrights need to be reasonably compensated when their creative works are reused by sampling artists, but secondly, sampling artists should have a reasonable degree of freedom to rework fragments of existing recordings at a reasonable cost. A system needs to balance these interests and reduce the degree of uncertainty that arises when the use of a sample infringes a copyright. This Article will discuss the current state of the law as it relates to digital sampling and will then articulate five …

Some Catching Up To Do, Kara M. Wolke

Vanderbilt Journal of Entertainment & Technology Law

The analysis begins with a discussion of the purposes behind the WPPT and the international recognition of a general sound recording performance right. Part I discusses Congress' partial implementation of the WPPT through the Digital Millennium Copyright Act of 1998 (DMCA) and the digital performance right. Part II explores the value that recognition of the full public performance right under the WPPT would create for the American music industry. Finally, Part III proposes a solution in the form of an amendment to the Copyright Act and the coordination of national and international performance rights organizations.

The Downhill Battle To Copyright Sonic Ideas In Bridgeport Music, Matthew S. Garnett

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the bright-line rule announced in Bridgeport Music should not apply where the disputed digital sample appropriates only the "sonic" ideas of the original work. The main thrust of this argument is that the Sixth Circuit's holding in Bridgeport Music is inapplicable where the disputed copying is a protected exercise of "fair use" reverse engineering; that is, where copying is necessary to appropriate the "sonic" ideas embodied in the sampled work.

Part II of this Note presents a brief history of digital sampling, including its application in the Hip-Hop musical genre. Part III presents a walkthrough of …

On The Logic Of Suing One's Customers And The Dilemma Of Infringement-Based Business Models, Justin Hughes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Supremacy Of Soundexchange: Federal Preemption Of State Escheat Laws, Marc Shaw

Cardozo Arts & Entertainment Law Journal

No abstract provided.