Intellectual Property Law Commons^™

Gardasil A Year Later: Cervical Cancer As A Model For Inequality Of Access To Health Services, Micah Globerson

Cardozo Journal of Equal Rights & Social Justice

This article updates a prior feminist legal analysis of Gardasil, the vaccine against Human Papillomavirus ("HPV"), in light of new developments. Recent discoveries confirming that HPV poses threats to men led Merck & Co. ("Merck") to apply for FDA approval to market Gardasil to males. These developments have renewed focus on the recurring question of whether making Gardasil vaccination a prerequisite for boys' school participation will arouse the same public condemnation that resulted from the prior mandate targeting girls. Another new development involves a vaccine panel recommendation by the Centers for Disease Control ("CDC") that inadvertently resulted in a policy …

Lost In Translation? The Promises And Pitfalls Of Enacting U.S. Bayh-Dole Style Legislation In India, Ann Weilbaecher

Public Interest Law Reporter

No abstract provided.

Downloading That 12-Track Album Could Cost You $360,000: Exploring How The Pro-Ip Act Will Affect The Consumer, Christy O'Berry

Public Interest Law Reporter

No abstract provided.

Can Patent Protections Trample Civil Liberties? The Aclu Challenges The Patentability Of Breast Cancer Genes, Ann Weilbaecher

Public Interest Law Reporter

No abstract provided.

Why Can't We Be Friends? It's War!, William Henslee

Journal Publications

This article will trace the origins of the original band WAR through the years that led up to a pie-throwing incident that had been brewing for over ten years. It is an unbelievable story involving greed, betrayal, legal malpractice, and, of course, rock and soul. While there are no "good guys" in this story, the real victims are the consumers and fans. The original WAR members cannot use biographical information related to WAR in advertising; while the cover band WAR is owned and operated by the original WAR's manager. Confused? So is the consumer. "Take a little trip with me" …

Sequential Innovation, Patents, And Imitation, James Bessen, Eric Maskin

Faculty Scholarship

How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980?s provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among …

Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski

Faculty Publications

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA") represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective.

One approach to counteracting the DMCA's restrictions …

The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant

Journal Publications

This Article examines the history of the gray market in the United States through an analysis of both the domestic legislative framework and judicial treatment of gray market goods, primarily under trademark and copyright law. Part I of this Article provides a general introduction into the structural factors that cause parallel importation. Part II begins a discussion of trademarked goods by looking at the purposes of trademark law. Part III starts by discussing the relevant doctrines and provisions of the Copyright Act of 1976, which frame the gray market discussion. Part III concludes by examining the current debate and the …

You Can't Always Get What You Want, But If You Try Sometimes You Can Steal It And Call It Fair Use: A Proposal To Abolish The Fair Use Defense For Music, William Henslee

Journal Publications

The fair use doctrine in copyright has become the excuse for every creatively challenged author who gets caught using someone else's intellectual property without paying for it and tries to pass it off as his or her own. Fair use has also become the means to use someone else's work for purposes unrelated to the original without paying for the use.

While there are scholars who believe fair use should be more widely applicable than it already is, this Article will discuss how the fair use defense in music has been expanded far beyond the original legislative intent and has …

Live Performance, Copyright, And The Future Of The Music Business, Mark F. Schultz

University of Richmond Law Review

No abstract provided.

Money For Nothing And Music For Free? Why The Riaa Should Continue To Sue Illegal File-Sharers, William Henslee

Journal Publications

The Recording Industry Association of America ("RIAA") has sued over 35,000 people for illegal file-sharing music, or uploading and downloading music. The RIAA has sued anyone under its "making available" theory, or anyone who offers to distribute copyrighted music without the owner's consent. However, the United States Circuit Courts of Appeals are split on whether copyright infringement occurs when a file is "made available" or when there is actual dissemination of a file. Due to this split, the RIAA has negotiated deals with internet service providers to penalize individuals who illegally share files. This article analyzes a recent decision, Capitol …

Comprehensive Data Privacy Legislation: Why Now Is The Time?, Tanith L. Balaban

Journal of Law, Technology, & the Internet

No abstract provided.

Introduction: Symposium On Law, Entrepreneurship, And Economic Recovery, Anthony J. Luppino

Faculty Works

No abstract provided.

The Contemporary Guide To Negotiating The Author-Publisher Contract, Martin P. Levin

NYLS Law Review

No abstract provided.

Cartoon Network Lp, Lllp V. Csc Holdings, Inc., Marc Miller

NYLS Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Robert Michaux

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the second issue of the 2009–2010 academic year.

Enabling After-Arising Technology, Kevin Emerson Collins

Articles by Maurer Faculty

No abstract provided.

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …

Is There Such A Thing As Postmodern Copyright?, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …

Solutions For Disputes Over Intellectual Property Between Taiwan And China – Analyzing Arbitration, Szu-Chou Peng, Fu-Jung Wu

Barry Law Review

Increasing business transactions between Taiwan and China have caused international intellectual property disputes to become a new and serious problem for Taiwanese businessmen who have direct and indirect investments in trade. In order to solve this problem, Taiwan and China sequentially set special regulations. For example, section 74 of the Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area was enacted by the government of Taiwan to recognize China’s civil arbitration procedures. On July 23, 2004, China established the Regulations of the Supreme People’s Court Regarding the People’s Courts’ Recognition of the Civil Judgments Rendered by …

Golan V. Gonzales: An Opportunity To Reexamine The Relationship Between First Amendment Rights And Copyright Protection, Krystal Joy Gallagher

Nevada Law Journal

No abstract provided.

"Transformative" User-Generated Content In Copyright Law: Infringing Derivative Works Or Fair Use?, Mary W.S. Wong

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that …

Applying Old Theories To New Problems: How Adverse Possession Can Help Solve The Orphan Works Crisis, Megan L. Bibb

Vanderbilt Journal of Entertainment & Technology Law

This Note focuses on orphan works--works whose copyright owners cannot be found--and the problems they create for libraries and archives that wish to preserve and facilitate access to them. After describing the legal basis for the orphan works problem, the Note analyzes and critiques proposed legislative and scholarly solutions. After concluding that prior solutions fail to adequately address the needs of libraries and archives, the Note offers a solution based on the policy rationales underlying the traditional property concept of adverse possession, since the justifications that supported the advent of the adverse possession doctrine can also be applied to the …

The Politics Of Intellectual Property, Jessica D. Litman

Articles

In May 2005, Keith Aoki invited me to participate on a panel on "The Politics of Copyright Law" at the 2006 Association of American Law Schools ("A.A.L.S. ") mid-year meeting workshop on Intellectual Property in Vancouver, British Columbia. The panel, renamed "The Politics of Intellectual Property," and moderated by Keith, included talks by Justin Hughes, Mark Lemley, Jay Thomas, and me, and it was followed by three concurrent sessions on "The Politics Concerning Moral Rights," "The Politics of Global Intellectual Property, " and "The Politics of Patent Reform." I'm not sure what the organizing committee had in mind when it …

The Copyright Revision Act Of 2026, Jessica D. Litman

Articles

As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need to know the difference between a public performance right under Section 106(4) and a public performance right by digital audio transmission under Section 106(6); they need to know the difference between the statutory licenses available under Section 114 and the statutory licenses available under Section 115.' So, I need to have all of those …

Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane

Articles

Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …

Accession And Original Ownership, Thomas W. Merrill

Faculty Scholarship

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But …

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that …

Defusing The "Atom Bomb" Of Patent Litigation: Avoiding And Defending Against Allegations Of Inequitable Conduct After Mckeeson Et Al., Sean M. O'Connor

Articles

The doctrine of inequitable conduct in patent law has a long and vexing history. While it is sometimes mistakenly conflated with the United States Patent and Trademark Office's Rule 56, the doctrine is actually a purely equitable one established by the Supreme Court in 1945—and not revisited by it since then.

This Article re-establishes the roots and proper context of the doctrine, while tracing its confused interactions with Rule 56 over the ensuing decades. The Article reaffirms the necessary balancing act between over and under disclosure of references during patent prosecution, and the inverse sliding scale relationship of materiality and …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case's greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by …