Intellectual Property Law Commons^™

Law And Online Social Networks: Mapping The Challenges And Promises Of User-Generated Information Flows, Tal Z. Zarsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Counterfeit Pharmaceuticals In China: Could Changes Bring Stronger Protection For Intellectual Property Rights And Human Health?, Dina M. Bronshtein

Washington International Law Journal

Although China seeks to improve its image as a legitimate participant in the global intellectual property (“IP”) market, Chinese companies continue to produce more than thirty percent of the counterfeit drugs circulating in the world today. The counterfeit pharmaceutical industry profits from efficient and cost-effective production systems by producing counterfeits at an exceedingly low cost. This poses a serious problem because the production and sale of counterfeit drugs leads to negative economic and social health-related effects. China’s existing penalties for counterfeit pharmaceutical production are considered a mere cost of doing business in China, rather than a deterrent from engaging in …

Internet Packet Sniffing And Its Impact On The Network Neutrality Debate And The Balance Of Power Between Intellectual Property Creators And Consumers, Rob Frieden

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Intellectual Property And Americana, Or Why Ip Gets The Blues, Michael J. Madison

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Mereology Of Digital Copyright, Dan L. Burk

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright Infringement Litigation And The Exercise Of Personal Jurisdiction Within Due Process Limits: Judicial Application Of Purposeful Availment, Purposeful Direction, Or Purposeful Effects Requirements To Finding That A Plaintiff Has Established A Defendant's Minimum Contacts Within The Forum State, Daniel E. Wanat

Mercer Law Review

An action for an infringement of a copyright secured under the United States Copyright Act may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work. When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.

Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant. The defendant's first defense may be based on the state's lack of personal jurisdiction. This defense implicates issues under the forum state's law and the Due Process Clause of …

Trademark Extortion: The End Of Trademark Law, Kenneth L. Port

Washington and Lee Law Review

Trademark litigation in America today is undergoing a profound change. Based on a review of all trademark cases reported since the Lanham Act took effect, this Article concludes that this profound change is due to "trademark extortion," the use of strike suits and the like to deter market entrants. All 7,500 reported trademark decisions between 1947 and 2005 were read. Of those, 2,659 were truly substantive cases that terminated a trademark law suit. The claimant of a trademark right prevailed only 51% of the time. They prevailed in getting an injunction in only 55% of those cases demanding one. Only …

A Proposal To Replace The Subconscious Copying Doctrine, Carissa L. Alden

Cardozo Law Review

No abstract provided.

Are Universities Patent Trolls? , Mark A. Lemley

Fordham Intellectual Property, Media and Entertainment Law Journal

Hold-up is a primary component of patent litigation and patent licensing today. Universities are engaged in an unprecedented surge in patenting. At the confluence of these seemingly unrelated developments is a growing frustration on the part of industry with the role of universities as patent owners. Time and again, when I talk to people in a variety of industries, their view is that universities are the new patent trolls. In this article, I argue that universities should take a broader view of their role in technology transfer. University technology transfer ought to have as its goal maximizing the social impact …

Thinking Of The Children: The Failure Of Violent Video Game Laws, Gregory Kenyota

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Are The Current Computer Crime Laws Sufficient Or Should The Writing Of Virus Code Be Prohibited?, Robert J. Kroczynski

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trying To Understand Software: Why Microsoft V. At&T Was Mistakenly Decided, Drew J. Koning

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Teaching International Intellectual Property Law, Peter K. Yu

Faculty Scholarship

Intellectual property law was in the backwater only a few decades ago. The Section on Intellectual Property Law of the Association of American Law Schools was not even founded until the early 1980s, and the creation of intellectual property specialty programs has been only a recent phenomenon. As senior legal scholars reminisce, early in their career, they would have been lucky to find a school that would allow them to teach a class on intellectual property law. Although intellectual property law teaching has come of age in the past decade, international intellectual property law courses remain nonexistent in more than …

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, Peter K. Yu

Faculty Scholarship

The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and significance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of …

What Ifs And Other Alternative Intellectual Property And Cyberlaw Stories: Foreword, Peter K. Yu

Faculty Scholarship

Extract:

The topic of this Symposium is “What Ifs and Other Alternative Intellectual Property and Cyberlaw Stories.” The inspiration for this topic came from two different sources. The first half of the idea came to me when I was shopping in a bookstore in Hong Kong a few years ago. Around the turn of the millennium, military historian Robert Cowley put together a volume of essays with an eye-catching title, What If?TM: The World’s Foremost Military Historians Imagine What Might Have Been. 1 Although I am not a fan of military history, the book caught my attention in the bookstore …

Copyright Liability For Those Who Provide The Means Of Infringement: In Light Of The Riaa Lawsuits, Who Is At Risk For The Infringing Acts Of Others?, Karen Horowitz

Washington Journal of Law, Technology & Arts

To date, the Recording Industry Association of America (RIAA) has become increasingly tough on the illegal downloading of copyrighted materials. In light of the increased prevalence of suits against minors or persons with little ability to pay, individuals or institutions that provide the means for the infringing activities, such as guardians or network owners (including, for example, the owner of an unsecured home network or the owner of an Internet café), need to be aware of the potential liability they might face. To place liability upon an individual or institution providing Internet access, a plaintiff could file suit for indirect …

The Evolution Of Intellectual Infrastructure, Peter Lee

Washington Law Review

This Article explores the concept of intellectual infrastructure in intellectual property law. It makes three principal contributions. First, it builds upon prior work to elaborate an infrastructure-based theory of productivity that encompasses trademark, copyright, and patent law. It is well-recognized that intellectual property law promotes productivity through allowing exclusive rights on refined intellectual creations such as source-identifying marks, particularized expressions, and specific inventions. Somewhat less appreciated, these bodies of law also promote productivity through ensuring wide access to productivity-enabling “intellectual infrastructure,” such as generic words, ideas, and natural principles, by making these assets ineligible for exclusive rights. This Article argues …

Vol. Vi, Tab 38 - Ex. 36 - Email From Michael Wu, Michael Wu

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff

American University Law Review

No abstract provided.

Addressing Default Trends In Patent-Based Section 337 Proceedings In The United States International Trade Commission, John C. Evans

Michigan Law Review

Section 337 of the Tarif Act of 1930 empowers the United States International Trade Commission to investigate imports to ensure imports do not infringe on U.S. trademarks. The Commission permits patent, copyright, and trademark owners to notify the Commission of possibly infringing imports and to obtain exclusion orders that prevent importation of products that infringe their intellectual property. The total number of investigations increased from 1996 to 2005, yet the proportion of respondent defaults rose as well. The increase in defaults suggests there is some systemic difficulty in ensuring full participation. This Note argues that the res judicata effects of …

Inequitable Conduct Inequitably Inferred: When Do Patent Applicants' Actions Intend To Deceive?, Chris Henry

Washington and Lee Law Review

No abstract provided.

What Is A Rate - The Distinction Between Descriptions And Charges, And This Distinction's Impact On Federal Preemption For Wireless Truth In Billing, R. Matthew Warner

UC Law SF Communications and Entertainment Journal

In 1993 Congress passed the Omnibus Budget Reconciliation Act, which placed a limitation on state power to regulate rates of wireless carriers. This legislation explicitly reserved to the states the power to adjust the "terms and conditions" of a wireless provider's service. The FCC, however, interpreted the act as preempting states from requiring or prohibiting explicit line items. While many of the theoretical grounds for the FCC's 2005 Truthin- Billing Declaratory Ruling are correct, the empirical examples cited seem to conflict with its theoretical rulings, causing some of the Ruling to violate 5 U.S.C. § 706. Moreover, the two courts …

The Dmca And The Privatization Of Copyright, Dave Hauser

UC Law SF Communications and Entertainment Journal

With the support of recent case law, statistics, and legal analysis, this note defends the Digital Millennium Copyright Act (DMCA) and its copyright protection mechanisms. The DMCA should be readily acknowledged as a push toward the privatization of copyright. Furthermore, the vast amount of criticism surrounding the DMCA wrongly shifts the focus away from what its provisions have accomplished.

This note addresses three main challenges to the DMCA's constitutionality: (1) that it exceeds the scope of Congressional authority as restrained by the Intellectual Property Clause, (2) that it oversteps the boundaries of First Amendment protection, and (3) that the doctrine …

Money Ruins Everything, John Quiggin, Dan Hunter

UC Law SF Communications and Entertainment Journal

The statement, "it's hard to compete with free," encapsulates the most important recent developments in intellectual property policy and some of the most significant social trends of our time. Because amateur creators produce content for the love it and are prepared to work for free-or even to lose money to feed their desire to create-their existence threatens the economic assumptions of commercial providers of content. As a result, the rise of amateurism calls into question some fundamental assumptions we have about the public policy of innovation, the way that innovation occurs within society, and the incentives necessary to produce valuable …

The Antithesis Of Originality: Bridgeman, Image Licensors, And The Public Domain, Mary Campbell Wojcik

UC Law SF Communications and Entertainment Journal

Under the explicit terms of both the Copyright Act and the Constitution, everyone-scholars and laypeople alike-should be free to "reproduce, prepare derivative works from, [or] distribute" copies of Eakins paintings. But, contrary to the Copyright Act, some art institutions are legally requiring its image users to agree that, "any reproduction or use of the Photographs or Reproductions" contrary to the terms of its licensing agreements, "will be an infringement of copyright." Beginning with an analysis of the Southern District's holding in the two Bridgeman opinions, this article examines the reaction that the decisions have incited among various art image licensors, …

Piggy Backing On The Web 2.0 Internet: Copyright Liability And Web 2.0 Mashups, Lisa Veasman

UC Law SF Communications and Entertainment Journal

Today's Web allows anyone to "influence the duplication and dissemination of information around the world." User-generated content and applications, where users can combine web applications and synchronize one website's information with another's, comprise much of Web 2.0's Internet. This note investigates whether generative web applications can "piggy back" on the initial websites' safe harbor protections, provided by the Digital Millennium Copyright Act, or whether such applications are liable for primary infringement themselves. Such web applications, like the Web 2.0 mashup ("mashup"), face potential liability because they display user-generated, infringing material, which users originally uploaded onto one of the previously existing …

Accepting Droit De Site As An Equal And Fair Measure Under Intellectual Property Law And Contemplation Of Its Implementation In The United States Post Passage Of The Eu Directive, Mara Grumbo

UC Law SF Communications and Entertainment Journal

This note will argue that while many criticisms against droit de suite legislation are based on economic grounds, these grounds are not those on which the royalty is and should be based. These arguments miss the mark by focusing on the inadequacy of the economic value of the royalty rather than viewing droit de suite as a "moral rights" based measure, providing visual artists fair and equal protection under intellectual property law. Once one accepts the latter view and understands the royalty as a measure necessary to remedy the unjust treatment of visual artists under copyright law, the inadequate state …

Broadcast Profanity And The Right To Be Let Alone: Can The Fcc Regulate Non-Indecent Fleeting Expletives Under A Privacy Model, Edward L. Carter, R. Trevor Hall, James C. Phillips

UC Law SF Communications and Entertainment Journal

This manuscript examines the issue of broadcast profanity regulation in light of the Supreme Court's March 2008 decision to grant certiorari in an appeal from the U.S. Court of Appeals for the Second Circuit. The Second Circuit in 2007 held that the FCC was arbitrary and capricious in its decision to begin prohibiting single profanities, or fleeting expletives, on broadcast television. However, the common law of nuisance and the law of privacy may provide justification for the FCC to regulate broadcast profanity under 18 U.S.C. § 1464. Although some argue that regulating broadcast profanity would induce a chilling effect on …

Hedonic Adaptation And The Settlement Of Civil Lawsuits (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

All Faculty Scholarship

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Warming Up To User-Generated Content, Edward Lee

All Faculty Scholarship

The most significant copyright development of the twenty first century has not arisen through any law enacted by Congress or opinion rendered by the Supreme Court. Instead, it has come from the unorganized, informal practices of various, unrelated users of copyrighted works, many of whom probably know next to nothing about copyright law. In order to comprehend this paradox, one must look at what is popularly known as "Web 2.0," and the growth of user-generated content in blogs, wikis, podcasts, "mashup" videos, and social networking sites like Facebook and MySpace. Although users often create new works of their own, sometimes …