Intellectual Property Law Commons^™

The Forgotten Right Of Fair Use, Ned Snow

Faculty Publications

Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker’s use fell outside the scope of permissible speech - or in other words, that the use was not fair. Where uncertainty prevented that proof, fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has …

Acta's Constitutional Problem: The Treaty Is Not A Treaty , Sean Flynn

American University International Law Review

No abstract provided.

Generation Mixtape: A User's Guide To Online Copyright, Matthew D. Catania, Gaetano D. Marretta

Tribeca Square Press

In conjunction with the Program in Law and Journalism at New York Law School, Tribeca Square Press publishes a monograph series, Legal Backgrounders, to provide those who regularly report on law and the legal profession, including print and broadcast reporters, editorial writers, bloggers, and editors, with concise, objective, timely, and readable information on legal topics currently in the news. Monographs in this series are not intended to advocate legal or policy positions but to describe and summarize the state of the law. An electronic version of each Legal Backgrounder, including links to sources, will be available on the Tribeca Square …

Counterfeits, Copying And Class, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) "knockoffs," in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible …

Paper Tigers: Rethinking The Relationship Between Copyright And Scholarly Publishing, Alissa Centivany

Michigan Telecommunications & Technology Law Review

Discontent is growing in academia over the practices of the proprietary scholarly publishing industry. Scholars and universities criticize the expensive subscription fees, restrictive access policies, and copyright assignment requirements of many journals. These practices seem fundamentally unfair given that the industries' two main inputs-articles and peer-review-are provided to it free of charge. Furthermore, while many publishers continue to enjoy substantial profit margins, many elite university libraries have been forced to triage their collections, choosing between purchasing monographs or subscribing to journals, or in some cases, doing away with "non-essential" materials altogether. The situation is even more dire for non-elite schools, …

Hatch-Waxmanizing Copyright, Michal Shur-Ofry

Michigan Telecommunications & Technology Law Review

This Essay presents a novel proposal for counter balancing "copyright overspills." In the background of the discussion is the common reality of users succumbing to rights holders' attempts to license uses which are most likely fair uses or completely free of copyright protection. These practices have attracted considerable attention in recent literature. Most scholarly proposals in this context emphasize the need to clarify the contours of the fair use doctrine and to remove doctrinal ambiguities. Yet these initiatives are probably insufficient to overcome users' risk aversion in copyright markets due to an inherent structural imbalance within copyright law. While the …

The Endowment Effect In Ip Transactions: The Case Against Debiasing, Ofer Tur-Sinai

Michigan Telecommunications & Technology Law Review

This Article contains a critical discussion of recent studies by Christopher Buccafusco and Christopher Sprigman concerning the role of the endowment effect in intellectual property transactions. According to the thesis presented in these studies, the existence of an endowment effect in the markets for IP goods causes inefficiencies. In order to counteract such inefficiencies, the authors argue, IP rights must be weakened in various ways, including shifting toward liability rules, adding formalities in copyright law, and expanding the fair use doctrine. The thesis as presented is groundbreaking and would have broad implications. This Article, however, points out several shortcomings of …

Teva V. Eisai: What's The Real Controversy, Grace Wang

Michigan Telecommunications & Technology Law Review

This Note examines the changing role of declaratory judgment actions in challenging patents upon generic entry and evaluates alternative regulatory schemes to the FDA's current system of patent enforcement in the drug approval setting. Part I reviews the Federal Circuit's recent decisions regarding generic drug entry, focusing on how the courts justify declaratory judgments in the current system and when a "controversy" exists to create Article III jurisdiction. Part II examines the complex system of regulating generic drug entry and how attempts to stop the exploitation of loopholes have resulted in a patchwork of regulation by various parties. It challenges …

Standing To Sue In The Myriad Genetics Case, Megan M. La Belle

Scholarly Articles

In recent years, the topic of gene patents has generated significant debate among medical researchers, biotechnology companies, academics, policymakers, and patent lawyers. The controversy implicates a wide range of legal and policy questions, including whether human genes should be patentable, and whether such patents stimulate or stifle innovation. In Association for Molecular Pathology v. Myriad Genetics, a high-profile case recently before the United States Court of Appeals for the Federal Circuit, a divided panel of the court addressed these questions. Before reaching the merits of the case, however, the court had to decide whether the plaintiffs had standing to sue …

Sampling, Looping, And Mashing... Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Fordham Intellectual Property, Media and Entertainment Law Journal

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) …

Book Review. European Copyright Law: A Commentary., Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

Clear But Unconvincing: The Federal Circuit’S Invalidity Standard, David O. Taylor

Faculty Journal Articles and Book Chapters

The Federal Circuit’s standard for proving invalidity of patent claims is clear. The Federal Circuit always requires clear and convincing evidence to prove that a patent claim is invalid. The rationale behind this standard, however, is unconvincing. There are significant reasons to believe that the Patent Office rarely considers the most relevant prior art and that, instead, alleged infringers often find prior art that is more relevant than the prior art considered by the Patent Office. It defies logic to apply the clear and convincing burden where the Patent Office considered only prior art that is less relevant than the …

Unconscionable Amateurism: How The Ncaa Violates Antitrust By Forcing Athletes To Sign Away Their Image Rights, 44 J. Marshall L. Rev. 533 (2011), Brian Welch

UIC Law Review

No abstract provided.

Secret Inventions, Jonas Anderson

Utah Law Faculty Scholarship

Patent law - and innovation policy more generally - has traditionally been conceptualized as antithetical to secrecy. Not only does the patent system require inventors to publicly disclose their inventions in order to receive a patent, but various patent doctrines are designed to encourage inventors to forego trade secrecy. This Article offers a critique of the law’s preference for patents. In particular, this Article examines whether and under what circumstances the law should prefer patents over secrets, and vice versa.

As an initial step towards a theoretically-supported system of inventor incentives, this Article constructs a framework that attempts to balance …

Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman

Faculty Works

In recent years, the major innovator pharmaceutical companies have experienced two pronounced and significant trends: a decreasing output of innovative new drugs and cutbacks in research and development (R&D) investment. The two phenomena probably are not unrelated and raise significant concerns for a society intent upon providing affordable health care for an aging population. While the root causes of these trends are complex and diverse, we should not overlook the critical role patents play in creating the necessary incentives for the substantial investment required to develop pharmaceutically-interesting chemical compounds into actual drugs and to take them through the clinical trials …

Publishing The Unpublished Correspondence, Kevin J. H. Dettmar, William S. Brockman, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Volume 3 Issue 1 (2012), Case Western Reserve Journal Of Law, Technology And The Internet

Journal of Law, Technology, & the Internet

No abstract provided.

To Disclose Or Not To Disclose: Why The United States Property Adopted The European Model For Third-Party Participation During Patent Prosecution, Dylan M. Aste

Journal of Law, Technology, & the Internet

No abstract provided.

Are Technical Difficulties At The Supreme Court Causing A "Disregard Of Duty"?, Mark Grabowski

Journal of Law, Technology, & the Internet

No abstract provided.

Shouting Fire In A Burning Theater: Distinguishing Fourth Estate From Fifth Column In The Age Of Wikileaks, Geoffrey Schotter

Journal of Law, Technology, & the Internet

No abstract provided.

Youth And Organizing: Why Unions Will Struggle To Organize The Millennials, D. Martin Stanberry

Journal of Law, Technology, & the Internet

No abstract provided.

Protect America By Being Unique: How Changes In Biometric Data Collection Procedures Can Improve Us-Visit, Mark Skerry

Journal of Law, Technology, & the Internet

No abstract provided.

Legislative And Regulatory Strategies For Providing Consumer Safeguards In A Convergent Information And Communications Marketplace, Rob Frieden

UC Law SF Communications and Entertainment Journal

The Federal Communications Commission desires to apply a single regulatory category to services and service providers, a process the Commission can achieve when ventures concentrate on one function and offer one readily identifiable service, such as telephony. However, technological convergence, digitization and the ability of the Internet to handle many different service types within a single bitstream now make it possible for companies to offer "quadruple play" bundles of wireless and wireline telephony, video, and Internet access services. Following Comcast Corp. v. FCC, the FCC must rethink how to best serve the public interest and safeguard consumers. Absent a legislative …

The Parents Television Council Uncensored: An Inside Look At The Watchdog Of The Public Airwaves And The War On Indecency With Its President, Tim Winter, Clay Calvert, Robert D. Richards

UC Law SF Communications and Entertainment Journal

This article addresses the Federal Communication Commission's ("FCC") controversial and contested regulation of indecency on the broadcast airwaves. It pivots on an exclusive in-person interview conducted by the authors in Los Angeles in June 2010 with Tim Winter, president of the Parents Television Council ("PTC"). The PTC is perhaps the most vociferous-and controversial-public watchdog on broadcast indecency, with its members filing thousands and thousands of indecency complaints with the FCC each year. The article is especially timely because, in July 2010, the U.S. Court of Appeals for the Second Circuit in Fox Television Stations v. FCC declared the FCC's indecency …

All Your Face Are Belong To Us: Protecting Celebrity Images In Hyper-Realistic Video Games, Krista Correa

UC Law SF Communications and Entertainment Journal

As the law is currently structured, there is no clear protection for a celebrity who is personally offended (but not financially harmed) by another party's use of that celebrity's image. This lack of clarity is particularly problematic today due to the hyperrealism of nextgeneration video games. This article begins with a review of the legal rights and remedies currently available to a celebrity whose face or image is used by a game developer without the celebrity's consent. Part II of the article considers whether the current regime provides sufficient protection, while Part III turns to other sources of law and …

Rebooting Trademarks For The Twenty-First Century, 49 U. Louisville L. Rev. 517 (2011), Doris E. Long

UIC Law Open Access Faculty Scholarship

Trademarks have long suffered from an "ugly stepsister" status in the realm of intellectual property. Quasi-market regulation tool, quasi-investment property; trademark's historical role as both consumer-information signifier and producer-investment asset has led to increasingly confusing dichotomous treatment under the Lanham Act. The potentially borderless markets of cyberspace, with their new marketing techniques and new competitive spaces, have only heightened this confusion. Stumbling attempts to extend protection for marks under the Lanham Act beyond traditional notions of trademark use and consumer confusion to encompass the investment protection side of trademarks, such as the development of federal dilution and anti-cybersquatting acts, only …

Transformation In Property And Copyright, Christopher M. Newman

Villanova Law Review (1956 - )

No abstract provided.

Born To Be Used In The Usa: An Alternative Avenue For Evaluating Politicians' Unauthorized Use Of Original Musical Performances On The Campaign Trail, Matthew J. Cursio

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Paris Hilton Avoids Getting Slapped: The Application Of California's Anti-Slapp Statute To A Right Of Publicity Claim In Hilton V. Hallmark Cards, Lindsay C. Hanifan

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Internet And Copyright Protection: Are We Producing A Global Generation Of Copyright Criminals, Fredrick Oduol Oduor

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.