Intellectual Property Law Commons^™

Intellectual Property And Antitrust Limits On Contract: Comment, Matthew J. Holian, Neil Nguyen

Faculty Publications

In their chapter in Dynamic Competition and Public Policy (2001, Cambridge University Press), Burtis and Kobayashi never defined their model's discount rate, making replicating their simulation results difficult. Through our own simulations, we were able to verify their results when using a discount rate of 0.10. We also identified two new types of equilibria that the authors overlooked, doubling the number of distinct equilibria in the model.

Technology And Judicial Reason: Digital Copyright, Secondary Liability, And The Problem Of Perspective, Jonathon Penney

Articles, Book Chapters, & Popular Press

Theories abound about how to understand and explain the development copyright law. Few, however, have focused specifically on the development of secondary liability in digital copyright law. Fewer still have analyzed or theorized the factors that may have driven or influenced that development, particularly judicial reasoning, beyond the obvious point that technology or the Internet has played a role. This essay aims to help fill this gap by investigating the nature of judicial reasoning about technology in secondary liability and digital copyright cases. I will argue that two underlying and competing approaches to technology have deeply influenced judicial reasoning and …

Why Cherry Picking Never Leads To Harmonisation: The Case Of The Limitations On Copyright Under Directive 2001/29/Ec, Lucie Guibault

Articles, Book Chapters, & Popular Press

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look …

O2 Micro Int'l Ltd. V. Beyond Innovation Tech. Co.: Confirmation That Claim Construction Is The Duty Of The Court, Jessica L.A. Marks

Journal of Business & Technology Law

No abstract provided.

Valuing Intellectual Property: An Experiment, Christopher Buccafusco, Christopher Sprigman

Faculty Scholarship

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

What Carrier Doesn't Address, Philip J. Weiser

Publications

No abstract provided.

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …

Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia

Law Faculty Publications

This Article adds to the empirical literature examining how the Federal Circuit treats patent-law issues internally by comparing the decision making of the Federal Circuit with that of other courts of appeals. It does so by measuring two statistics from overall written opinions: the percentage of dissents and the percentage of en bane reviews. The data is taken from the Third, Fifth, Ninth, Tenth, District of Columbia, and Federal Circuits between 1998 and 2009. The data in the study show that the Federal Circuit has the second-highest percentage of dissents among the circuits studied (behind only the Ninth Circuit) and …

Who's Afraid Of The Berne Convention?, James Gibson

Law Faculty Publications

A few months ago, I wrote an essay for this series that argued for reinstatement of formalities as a prerequisite to copyright protection. I left unaddressed one of the main objections to such a system: the fact that international law is unfriendly to formalities. I address that objection here.

The most pertinent international law is the Berne Convention, a multilateral treaty that dates to the 1800s. Since 1908, Article 5(2) of the treaty has prevented any signatory nation from requiring formalities such as registration and notice as a condition of copyright protection. It was the United States’ accession to the …

Viacom V. Youtube: A Different View On The District Court Ruling, James Gibson

Law Faculty Publications

In an earlier essay in this series, Randy Picker discussed the recent copyright decision in Viacom v. YouTube, and in particular the court’s ruling that the Digital Millennium Copyright Act’s “safe harbor” for remote storage applies to YouTube’s online video service. I agree with Randy that the court’s interpretation of the DMCA is problematic, but I see a good argument that the outcome is correct and that the ruling should be affirmed on appeal.

Viacom v. YouTube is a hugely important case. It pits the world’s fourth-biggest media company against Internet behemoth Google, which purchased YouTube in 2006 for $1.65 …

Unstandard Standardization: The Case Of Biology, Arti K. Rai

Faculty Scholarship

How applicable are the approaches adopted by information and communication technology standards-setting organizations to biological standards? Most engineering-based industries construct products from standard, well understood components. By contrast, despite the early attachment of the moniker “genetic engineering” to biotechnology, standardization in the biological sciences has been relatively rare.

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Towards A Right To Engage In The Fair Transformative Use Of Copyright‑Protected Expression, Graham Reynolds

All Faculty Publications

Networked digital technologies have given Canadians the opportunity to engage with culture in a way that has never before been possible. Empowered and inspired, individuals from Prince George to the Georgian Bay to George Street are rejecting their former role as passive consumers of culture in order to participate in a continuing process of cultural (re)creation, production, and dialogue. One way in which they are doing so is by engaging in the transformative use of existing expression, a type of creative activity in which previously existing expression is reworked for a new purpose, with new interpretations or with a new …

La Loi Sur La Protection Des Obtentions Végétales; Entre Compétitivité Et Utopie, Y A-T-Il Un Avenir Pour Le Modèle?, Régine Tremblay

All Faculty Publications

Y a-t-il un avenir pour le régime de la Loi sur la protection des obtentions végétales? Cet article analyse les deux vagues majeures de législation entourant la protection et la stimulation des investissements dans le domaine des obtentions végétales au Canada et dans l‘Union européenne. Le Canada pourrait-il saisir sa chance et devenir un acteur de premier plan? Qui plus est, que peut-on apprendre et transposer d‘un régime de propriété intellectuelle sectoriel vers un régime general?

A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials And Bad Taste In Copyright, David E. Shipley

Scholarly Works

Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other …

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon

Faculty Scholarship

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …

Review Of The Rhetoric Of Intellectual Property: Copyright Law And The Regulation Of Digital Culture, By Jessica Reyman, Jessica Silbey

Faculty Scholarship

A short book review of Jessica Reyman’s, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture.