Intellectual Property Law Commons^™

An Alternate Functionality Reality, Harold R. Weinberg

Law Faculty Scholarly Articles

Trade dress law does not protect the appearance of a product design feature (e.g., a product's configuration) against unauthorized copying if the feature is functional, but may protect the appearance if the feature is nonfunctional. The functionality doctrine is intended to preserve competition in the market for a product incorporating a design feature that allegedly is protected by trade dress law, and to avoid conflicts between trade dress law and patent law. The Supreme Court last addressed the functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. The Court intended TrafFix to “choke off” anticompetitive trade dress “strike suits.” …

The Eminence Of Imminence And The Myopia Of Markets, Teneille R. Brown

Utah Law Faculty Scholarship

This article questions the privileging of disaster, or imminent threat, over more distant threats to public health. In many cases, this privileging makes sense as we do not have time to evaluate the threat under traditional frameworks. But in some cases, we privilege disaster in ways that may be ethically and legally unsound. Here I am interested in a particular type of public health threat – the negative consequences that stem from climate change. In this article I view the climate change discussion through the lens of distributive justice. I analyze the ethical as well as legal arguments for encouraging …

Copyright’S Twilight Zone: Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Maryland Law Review

No abstract provided.

Bloodsucking Copyrights , Ann Bartow

Maryland Law Review

No abstract provided.

Battery 2.0: Upgrading Offensive Contact Battery To The Digital Age, Neal Hoffman

Journal of Law, Technology, & the Internet

No abstract provided.

A Comparative Analysis Of California's Right Of Publicity And The United Kingdom's Approach To The Protection Of Celebrities: Where Are They Better Protected?, Reshma Amin

Journal of Law, Technology, & the Internet

No abstract provided.

Claiming The Glass Slipper: The Protection Of Folklore As Traditional Knowledge, Michael Jon Andersen

Journal of Law, Technology, & the Internet

No abstract provided.

Better Access To Medicines: Why Countries Are Getting "Tripped" Up And Not Ratifying Article 31-Bis, Brin Anderson

Journal of Law, Technology, & the Internet

No abstract provided.

A Cause Of Action For "Passing Off/Associational Marketing", Margreth Barrett

Faculty Scholarship

No abstract provided.

Reconciling Fair Use And Trademark Use, Margreth Barrett

Faculty Scholarship

No abstract provided.

(M)Ad Men: Using Persuasion Factors In Media Advertisements To Prevent A Tyranny Of The Majority On Ballot Propositions, Chris Chambers Goodman

UC Law SF Communications and Entertainment Journal

Mobile e-discovery spans the globe and creates a multitude of issues for litigants and the courts. The issue of privacy, jurisdiction, privilege, and consent intersect in the mobile space with users sending text messages, twittering, posting notes and videos on-line, and sharing pictures all in the span of a work day. Of course this is further complicated by the integration of the 24/7 workplace and the electronic discovery issues of retention, preservation, and production of the data that mobile devices create. This article examines these issues and provides an overview of some of the more common underlying mobile telecommunication technologies.

Applying The Rationales Of Patent Claim Construction Doctrines To Interpretation Of Patent Statutes, Grace Pak

UC Law SF Communications and Entertainment Journal

Statutory construction is often determinative in lawsuits. In that vein, which theory of statutory construction a court chooses to employ-whether textualism, intentionalism, or purposivism-is decidedly influential. This note argues that strict adherence to textualism in interpreting patent statutes leads to unsound results, while applying purposivism leads to sound results. To demonstrate, this note walks through the Supreme Court's textual approach in interpreting 35 U.S.C. § 271(0 in Microsoft v. AT&T, and contrasts that with the Federal Circuit's purposivist approach in interpreting the same statute. This note argues that the Federal Circuit's purposivist approach is more appropriate because it more closely …

More Than A Minor Inconvenience: The Case For Heightened Protection For Children Appearing On Reality Television, Katherine Neifeld

UC Law SF Communications and Entertainment Journal

Reality television is a genre that is both innovative in its use of traditional theatrical convention to display true life and paradoxical in its often perplexing definition of what is real. For minor children, however, the effects of participation in reality television production are heightened due to the unique nature of the genre. While protections for traditional child performers exist, the risks the minor participant on reality television faces are unique. The minor on reality television lacks formal recognition as a working child actor by the entertainment industry. Additionally, instead of playing a fictional character, the minor portrays his true …

Regulating Relationships Between Competing Broadcasters, Christopher S. Reed

UC Law SF Communications and Entertainment Journal

In response to mounting economic challenges in the media industry, some broadcasters have started entering into agreements whereby one station agrees to sell advertising, produce programming, or take over certain other functions of another station in the same market. Though such arrangements, often called local marketing or time brokerage agreements, are not particularly new in the broadcasting field, they have been used with increasing frequency in recent years.

This article examines the form and function of cooperative agreements among broadcasters and explores the reasons why such agreements are attractive business propositions for those who enter into them. It then describes …

Citizens United And The Future Of Fcc Content Regulation, Elizabeth Elices

UC Law SF Communications and Entertainment Journal

This paper examines the potential impact of Citizens United v. Federal Election Commission upon content-based Federal Communications Commission regulations. Although Citizens United focused on Federal Election Commission regulations, the case reflects the various First Amendment doctrines favored by the current Court, and its reasoning may extend to other areas of regulated speech.

Part I of the paper will discuss several prominent areas of First Amendment doctrine as well as the roles of the FCC and the FEC. Part II will briefly desccribe the background and outcome of Citizens United. Finally, Part III will analyze several FCC regulations, primarily regarding content …

The New Digital Dating Behavior - Sexting: Teens' Explicit Love Letters: Criminal Justice Or Civil Liability, Terri Day

UC Law SF Communications and Entertainment Journal

This paper proposes a unique response to the explosive combination of teens, sex and technology. It discusses why most teen sexting does not meet the Ferber definition of child pornography; therefore, a civil remedy for the dignitary and emotional harm caused by the public dissemination of private sexual pictures is far superior to imposing criminal sanctions. The proposed statutory civil cause of action would hold parents vicariously liable for the harms caused by their children's sexting when done with actual malice. Recognizing that common law tort liability is legally unsustainable, this approach strikes a balance between protecting First Amendment rights …

Fixing Ram Copies, Aaron K. Perzanowski

Faculty Publications

Scholars, litigants, and courts have debated the status of so-called “RAM copies” - instantiations of copyrighted works in the random access memory of computing devices - for decades. The Second Circuit’s decision in Cartoon Network v. CSC Holdings has recently reignited the controversy over these putative copies. There the court held that CSC did not create copies within the meaning of the Copyright Act when it buffered fleeting segments of television programs. In many respects, the Second Circuit’s holding is a straightforward application of the Act’s nested definitions of “copies” and “fixed.” But because the court declined to apply the …

Skiing Close To The Edge Of Trademark Law: The Enforceability Of Geographically Descriptive Marks In Vail Associates V. Vend-Tel-Co., John E. Jennings Iii

Villanova Law Review (1956 - )

No abstract provided.

Legal Forms And The Common Law Of Patents, Craig Allen Nard

Faculty Publications

The question of institutional choice is important in all areas of the law, but particularly in the context of patent law with its divergent stakeholders, decentralized variance among industries regarding how the patent system is viewed and relied upon, and a persistent focus on reform in recent years. For over two hundred years, the courts have been the dominant force in the development of patent law. It should therefore come as no surprise to learn that a significant portion of American patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation …

Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig

Articles & Book Chapters

The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity …

Boston Duck Tours V. Super Duck Tours: Duck Tours Of A Feather Can Flock Together, Cara Lewis

Journal of Business & Technology Law

No abstract provided.

Empirical Analysis Of Drug Approval-Drug Patenting Linkage For High Value Pharmaceuticals, Ron A. Bouchard, Richard W. Hawkins, Robert Clark, Reider Hagtvedt, Jamil Sawani

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Network Transparency: Seeing The Neutral Network, Adam Candeub

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Machines And Transformations: The Past, Present, And Future Patentability Of Software, Andrei Iancu, Peter Gratzinger

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Microsoft Case 10 Years Later: Antitrust And New Leading "New Economy" Firms, Chris Butts

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Genomic Research And Accessibility Act: More Science Fiction Than Fact, James Degiulio

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Is Patent Hold-Up Anticompetitive?, Vishesh Narayen

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

To Be Fixed Or Not To Be: The Seemingly Never-Ending Question Of Copyrighted Material, Karl O. Riley

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Acquiring A Flavor For Trademarks: There's No Common Taste In The World, Amanda E. Compton

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Federal Circuit's Inequitable Conduct Standard After, Benjamin Johnson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.