Intellectual Property Law Commons^™

Price Discrimination In The Textbook Market: An Analysis Of The Post-Quality King Proposals To Prevent And Disincentivize Reimportation And Arbitrage, Christine Ongchin

Cardozo Journal of International and Comparative Law

The note examines how the rise of the internet and legal developments, particularly the Supreme Court's decision in Quality King Distributors v. Lanza, have disrupted traditional price discrimination practices in the textbook industry. Historically, publishers engaged in third-degree price discrimination, charging higher prices in the U.S. market due to geographic isolation and limited arbitrage opportunities. However, the internet has facilitated reimportation and arbitrage, undermining this practice. The first sale doctrine under 17 U.S.C. § 109(a) further complicates efforts to prevent resale of cheaper, internationally purchased textbooks in the U.S. market. Publishers must now consider alternative strategies, such as contractual …

Harmonization Through Condemnation: Is New London The Key To World Patent Harmony?, Max S. Oppenheimer

Vanderbilt Journal of Transnational Law

Since 1790, when two U.S. patent applicants have claimed the same invention, the patent has been awarded to the first inventor. Today, the United States stands alone in the industrialized world, and many argue that the United States should, in the interest of world patent harmony, change its system so as to award a contested patent to the first applicant. Of the arguments advanced to justify the change, the only ones that withstand scrutiny are that "all the other countries are doing it" and the hope that some concessions in other aspects of intellectual property or trade might be obtained …

Extreme Makeover: Redefining Athletes' Identities In A Fantasy World, Robert T. Ferguson Jr.

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Pirates And The Orient: China, Film Piracy, And Hollywood, Oliver Ting

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Rescuecom Corp. V. Google, Inc., Arielle G. Lenza

NYLS Law Review

No abstract provided.

Using Innovative Technologies To Analyze For Similarity Between Musical Works In Copyright Infringement Disputes, Yvette Joy Liebesman

All Faculty Scholarship

Courts continue to struggle with discerning the level of substantial similarity between musical compositions in infringement analyses, which is related to their difficulty in determining the portion that is available for the public to use, and where that permission stops. This paper argues that, under the current policies regarding copyright protection and unauthorized copying, the current test is inadequate and a new infringement test should be considered. Two alternatives are proposed. The first test uses objective mapping of a song’s artistic elements. The second considers the link between wave motion theory of physics and music and proposes comparing the mathematical …

The Social Costs Of Property Rights In Broadcast (And Cable) Signals, Shyamkrishna Balganesh

Faculty Scholarship

The use of property as a regulatory mechanism in the telecommunications sector is hardly novel. Since the early twentieth century, policy makers and regulators in the United States have experimented with different mechanisms for allocating private rights in the radio spectrum. In 1959, Ronald Coase proposed that the FCC auction rights in the broadcast spectrum and convert broadcast licenses into tradable commodities. However, it was not until very recently that the FCC implemented Coase's idea. At least part of the reason for the long delay in implementing this seemingly efficient mechanism lay in the public nature of broadcasting and the …

The Tragedy Of Trips, Peter M. Gerhart

Faculty Publications

This Article argues that sound intellectual property policy requires not only that the policymaker establish an appropriate incentive for invention but also that the policymaker determine how the cost of that incentive should be distributed across various classes of consumers. It is the distributive dimension of intellectual property policy that makes existing international institutions such an unsound mechanism for determining global rules for intellectual policy--the policymakers are simply not able to make the appropriate kinds of decisions. I suggest some ways in which institutional structures can be modified to achieve a better balance.

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Vanderbilt Law Review

What to read? or watch? or listen to? These are hard questions, not because of any scarcity of expression, but rather because of its abundance. Over 100,000 books are published in the United States each year, thousands of movies and CDs are released, and the amount of textual, musical, and visual works on the internet continues to rise exponentially. Whose work can we trust? And who knows what of it will rank among the best that has been thought and said-or even provide a few moments levity?

Admittedly, a bulging bookshelf or surfeit of films prompts an existential crisis in …

Confusion Over Use: Contextualism In Trademark Law, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism …

Technological Change And The Design Of Plant Variety Protection Regimes, Mark D. Janis, Stephen Smith

Articles by Maurer Faculty

No abstract provided.

The Angel Is In The Big Picture: A Response To Lemley, Samson Vermont

Michigan Law Review

An invention within close reach of multiple inventors differs from an invention within distant reach of a lone inventor. The differences between these two archetypes of invention -"reinventables" and "singletons"- remain unexploited under current U.S. law. Should we reform the law to exploit the differences? Mark Lemley and I agree that we should. To date, those economists who have closely examined the issue concur. What are the differences between reinventables and singletons? First, reinventables can be brought into existence with incentives of lower magnitude. This suggests that we can obtain reinventables at a lower price than we currently pay-i.e., with …

American Moral Rights And Fixing The Dastar Gap, Justin Hughes

Articles

When the United States acceded to the Berne Convention in 1988, Congress concluded that a compendium of causes of action under American law, including Lanham Act claims, provided the moral rights protections mandated by Berne Article 6bis. This claim of patchwork protection of moral rights has always been widely criticized, but became more dubious in the wake of the Supreme Court's 2003 decision in Dastar v. Twentieth Century Fox. In Dastar, the Court held that vis-a-vis works in the public domain there is no Lanham section 43(a) obligation to credit the original creator or copyright owner as the origin of …

Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley

Scholarly Works

The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to …

Patent Ships Sail An Antitrust Sea, Joseph S. Miller

Scholarly Works

This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; …

Transcript: Comments On Panel 1, Christine Farley

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

Does Liability Enhance Credibility?: Lessons From The Dmca Applied To Online Defamation, Olivera Medenica, Kaiser Wahab

Cardozo Arts & Entertainment Law Journal

No abstract provided.

To Live In In-"Fame"-Y: Reconceiving Scandalous Marks As Analogous To Famous Marks, Jasmine Abdel-Khalik

Cardozo Arts & Entertainment Law Journal

No abstract provided.

When Offshore Activities Become Infringing: Applying § 271 To Technologies That “Straddle” Territorial Borders, Eric W. Guttag

Richmond Journal of Law & Technology

Patents have traditionally been territorial creatures. The territorial nature of U.S. patents is reflected by the main infringement statute, § 271 of Title 35. For example, § 271(a) says that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefore, infringes the patent.”

Almost Quiet On The Copyright Front: Ebay’S False Alarm, Jetti Gibson

Richmond Journal of Law & Technology

In the current digital millennium, intellectual property law is constantly besieged by new technologies, threatening various patent, trademark, and copyright protections. Though intellectual property law shields individual rights on the one hand, on the other hand the overarching purpose of this protection was not to espouse a regime of private ownership, but to imbue the Founders’ intent within a legal framework by “promot[ing] the Progress of Science and the useful Arts,” through “secur[ing] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The grant of a copyright was merely a means to serve …

The (Boundedly) Rational Basis Of Trademark Liability, Jeremy N. Sheff

Faculty Publications

This article argues that trademark infringement and dilution are best understood as commercial behavior that manipulates the cognitive biases of consumers, and as such threatens to render their heuristic judgments persistently inaccurate. In this view, trademark liability—whether imposed under the label of infringement or dilution—serves neither to protect property rights of trademark owners, nor to protect them against the unfair trade practices of competitors, but to shape consumer markets in such a way as to conform to the innate cognitive processes of boundedly rational consumers. The trademark regime can thus be understood as a legal apparatus designed (albeit perhaps unconsciously) …

Is An Accrued Cause Of Action For Copyright Infringement More Like A Kidney Or A Contract?, Bryanne J. Schmitt

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cope-Ing With The Future: An Examination Of The Potential Copyright Liability Of Non-Neutral Networks For Infringing Internet Content, Alex Pisarevsky

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.

Ebay V. Mercexchange: Looking At The Cause And Effect Of A Shift In The Standard For Issuing Patent Injunctions, Rebecca A. Hand

Cardozo Arts & Entertainment Law Journal

No abstract provided.

In Search Of Validity: A New Model For The Content And Procedural Treatment Of Trademark Infringement Surveys, Irina D. Manta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Reforming Section 115: Escape From The Byzantine World Of Mechanical Licensing, Skyla Mitchell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Adverse To What?: The Increasing Value Of Patent Opinions After Knorr-Bremse, Matthew Leary

Cardozo Arts & Entertainment Law Journal

No abstract provided.