Intellectual Property Law Commons^™

User-Generated Content And The Future Of Copyright: Part One--Investiture Of Ownership, Steven Hetcher

Vanderbilt Journal of Entertainment & Technology Law

While user-generated content (UGC) has been around for quite some time, the digital age has led to an explosion of new forms of UGC. Current UGC mega-sites, such as YouTube, Facebook, and MySpace, have given UGC a new level of significance, due to their ability to bring together large numbers of users to interact in new ways. The "user" in UGC generally refers to amateurs, but also includes professionals and amateurs aspiring to become professionals. "Generated" is synonymous with created, reflecting the inclusion of some minimal amount of creativity in the user's work. Finally, "content" refers to digital content, or …

The Public Domain: Enclosing The Commons Of The Mind, James Boyle

Faculty Scholarship

Our music, our culture, our science and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, …

Accommodating The Needs Of Iconsumers: Making Sure They Get Their Money’S Worth Of Digital Entertainment, Lucie Guibault

Articles, Book Chapters, & Popular Press

The current methods of distributing music and film on the mass-market, either off-line or on-line, raise two types of consumer protection issues. First, consumers are not always in a position to know what they can and cannot do with their digital hardware and content. A lack of proper information and the ensuing failure of the products to meet the consumer’s expectations inevitably leads to discontent. In addition, as weaker party in the transaction, consumers have often no other choice but to accept or refuse the restrictive terms of use, even if these could be regarded as unfair. This paper examines …

Asking For Money Back - Chilling Commercialization Or Recouping Public Trust In The Context Of Stem Cell Research?, Matthew Herder

Articles, Book Chapters, & Popular Press

As publicly funded institutions have increasingly embraced the goal of commercializing scientific research, concerns about private appropriation have become familiar refrain. One commonly suggested remedy is to create some kind of 'recoupment' provision whereby the State, on behalf of the public, receives a certain percentage of profits realized. The Bayh-Dole Act originally included a recoupment provision but it was deleted by a legislative committee. Countries around the globe attempting to emulate Bayh-Dole have, whether by design or default, reinforced the underlying logic against recoupment, which is essentially as follows: obligations to provide direct financial returns undermine the commercialization process and …

Louis Vuitton Malletier V. Dooney & Bourke, Inc.: Resisting Expansion Of Trademark Protection In The Fashion Industry, Ashley E. Hofmeister

Journal of Business & Technology Law

No abstract provided.

Patents, Taxes And The Nuclear Option: Do We Need A “Tax Strategy Patent” Ban?, Max Oppenheimer

All Faculty Scholarship

No abstract provided.

Common Ground: The Case For Collaboration Between Anti-Poverty Advocates And Public Interest Intellectual Property Advocates, Deborah J. Cantrell

Publications

This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the …

Building A Better Innovation System: Combining Facially Neutral Patent Standards Withtherapeutics Regulation, Arti K. Rai

Faculty Scholarship

No abstract provided.

Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So

Faculty Scholarship

Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur …

Intellectual Property And Alternatives: Strategies For Green Innovation, Jerome H. Reichman, Arti K. Rai, Richard G. Newell, Jonathan B. Wiener

Faculty Scholarship

This report provides an analysis of how intellectual property rights (IPRs), and alternatives to IPRs, might operate in green innovation. Part I of the paper discusses the economics of green innovation, including the important role that will need to be played by the private sector. Part II discusses the IPR issues, principally involving patents, that may arise if and when GHG externalities are addressed through the appropriate pricing of greenhouse gases. Part III addresses alternatives to traditional patents and exclusive licenses, including patent pools, liability rules, and prizes.

Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman

Faculty Scholarship

Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, David S. Evans, Keith N. Hylton

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

Gone In Sixty Milliseconds: Trademark Law And Cognitive Science, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that "Kodak soap" was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to …

Remixing Obviousness, Joseph S. Miller

Scholarly Works

In April 2007, the Supreme Court, for the first time in 41 years, decided a case about the basic contours of patent law's nonobviousness standard. The case, KSR, upends 25 years of Federal Circuit jurisprudence, and on a legal requirement that every patent must satisfy. In this essay, I show how KSR dismantles two predicates that have long shaped Federal Circuit nonobviousness cases - namely, the intertwined premises that hindsight-driven distortion is the gravest risk to an accurate nonobviousness requirement, and that the person of ordinary skill in the art (from whose perspective nonobviousness is judge) is singularly uncreative. In …

Glannon Guide To Property: Learning Property Through Multiple-Choice Questions And Analysis, James C. Smith

Books

Reproduced with the permission of Aspen Publishers from Smith, James Charles. 2008. The Glannon Guide to Property: Learning Property through Multiple-choice Questions and Analysis. Austin: Wolters Kluwer Law & Business/Aspen Publishers.

Inventors, Entrepreneurs, And Intellectual Property Law, Michael J. Meurer

Faculty Scholarship

I am not sure why small business concerns have not had more influence on IP law. Perhaps the sentiment prevailing in antitrust law spilled over into IP law. American antitrust law has reached a near consensus that small firms get no special treatment under a law designed to protect competition, not competitors. ° In contrast, European competition law regulators are more likely to protect small business, and European patent policymakers openly fret about how to reform their patent law to promote small business.²

Regardless, my concern in this Article is mostly with the normative question: Should IP law favor …

Do Patents Perform Like Property?, Michael J. Meurer, James Bessen

Faculty Scholarship

Do patents provide critical incentives to encourage investment in innovation? Or, instead, do patents impose legal risks and burdens on innovators that discourage innovation, as some critics now claim? This paper reviews empirical economic evidence on how well patents perform as a property system.

Should Access To Medicines And Trips Flexibilities Be Limited To Specific Diseases?, Kevin Outterson

Faculty Scholarship

From the perspective of public health, limiting access programs and TRIPS flexibilities to particular diseases would be quite dangerous and unnecessary. Dangerous because the diseases of the world's rich and poor countries are converging, including non-communicative diseases such as heart disease, stroke, diabetes, cancer and depression. Radically cheaper medicines for these conditions could significantly improve health in LMICs. Limitation is also unnecessary because proven tools can be deployed to preserve high-income markets while LMICs pursue equitable flexibilities.

To date, the important global legal texts retain broad application to all relevant diseases, but the some parties continue to propose disease-specific limitations, …

Moral Philosophy, Information Technology, And Copyright, Wendy J. Gordon

Faculty Scholarship

A plethora of philosophical issues arise where copyright and patent laws intersect with information technology. Given the necessary brevity of the chapter, my strategy will be to make general observations that can be applied to illuminate one particular issue. I have chosen the issue considered in MGM v. Grokster,² a recent copyright case from the U.S. Supreme Court Grokster, Ltd., provided a decentralized peer-to-peer technology that many people, typically students, used to copy and distribute music in ways that violated copyright law. The Supreme Court addressed the extent to which Grokster and other technology providers should be held …

The Mythical Beginnings Of Intellectual Property, Jessica Silbey

Faculty Scholarship

People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This …