Intellectual Property Law Commons^™

One Work, Three Infringers: Calculating The Correct Number Of Separate Awards Of Statutory Damages In A Copyright Infringement Action, Timothy L. Warnock

Vanderbilt Journal of Entertainment & Technology Law

Columbia Pictures provides the most persuasive analysis of the correct number of separate awards of statutory damages available to a plaintiff. Lime Group recognized that the question was a particularly close one, and the court erred in reaching the opposite result from Columbia Pictures. The Lime Group analysis is based on a fundamentally flawed earlier decision and relies, in the end, on an approach as likely to reward infringers rather than defend the rights of copyright holders: determining whether the potential result in any given case is absurd. Regarding the hypothetical case provided at the beginning of this Essay, Warren …

Eudemonic Intellectual Property: Patents And Related Rights As Engines Of Happiness, Peace, And Sustainability, Estelle Derclaye

Vanderbilt Journal of Entertainment & Technology Law

The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives: liberalism, capitalism, and consumerism. After having shown that the predominant justification for intellectual property rights is the incentive theory, which rests on the idea of progress, this Article traces back the history of the idea and shows its parochialism in both time and space. The Article next shows that the progress ideology rests on assumptions that are either wrong or impossible to prove and therefore propounds that it must be abandoned, or if …

A Semiotic Analysis: Developing A New Standard For Scent Marks, Erin M. Reimer

Vanderbilt Journal of Entertainment & Technology Law

In recent years, businesses have discovered a new way to capture consumer loyalty: through their noses. Companies have begun to invest heavily in the development of scent marks and innovative digital scent technology that will disseminate signature scents through the Internet and television; however, the standards surrounding scent mark registration and infringement remain hazy due to a lack of precedent and conflicting global legal standards. While US and European courts have determined that scent marks can exist under current laws, the registration requirements and infringement standards remain unclear.

This Note analyzes the four major issues that arise in scent mark …

The Romantic Collective Author, Margaret Chon

Vanderbilt Journal of Entertainment & Technology Law

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This Article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …

The Lessons Of Living Gardens And Jewish Process Theology For Authorship And Moral Rights, Roberta R. Kwall

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the issues of authorship, fixation, and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of "change" and authorship is more important now than ever before given how the digital age is revolutionizing the way the world thinks about authorship. By incorrectly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable, and partially …

Digital Originality, Edward Lee

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.

Curbing Copyblight, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

This Article identifies and analyzes the growing problem of "copyblight" the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: …

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

Articles, Book Chapters, & Popular Press

The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

Unlocking Health Canada’S Cache Of Trade Secrets: Mandatory Disclosure Of Clinical Trial Results, Matthew Herder

Articles, Book Chapters, & Popular Press

Health Canada should publicly disclose information about the safety and efficacy of pharmaceuticals, biologics and medical devices, and should especially disclose the designs and results of clinical trials. This disclosure is necessary to preserve public trust, address weaknesses in the evidence base, and protect Canadians from harm.

A prime example of the need for this disclosure involves selective serotonin reuptake inhibitors (SSRIs). Health Canada did not authorize SSRIs for sale to people younger than 19 years because of data from clinical trials showing risks of harm, including self-harm, associated with use of SSRIs in that age group. But Health Canada …

Clash Of Cultures - Integrating Copyright And Consumer Law, Lucie Guibault, Natali Helberger

Articles, Book Chapters, & Popular Press

Purpose – This article seeks to deal with the fundamental conceptual differences between consumer law and copyright law that render the application of consumer law to copyright-law related conflicts difficult. Design/methodology/approach – Following a normative approach to copyright and consumer law based on an analysis of the relevant literature and case law, the article examines in which situations consumers encounter obstacles when trying to rely on consumer law to invoke ‘‘privileges’’ granted to them under copyright law, such as the private copying exception. Findings – Research shows that most difficulties lie in the fundamental conceptual differences between consumer law and …

The Press Exception In The Dutch Copyright Act, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

Open Connectivity, Open Data: Two Dimensions Of The Freedom To Seek, Receive And Impart Information In The New Zealand Bill Of Rights, Jonathon Penney

Articles, Book Chapters, & Popular Press

Recently, ideas about "rights" to Internet access or connectivity have received growing recognition from governments, legal institutions, and other political actors in several countries, including New Zealand Despite this emerging political and legal recognition, there are few, if any, systematic studies exploring such ideas. This paper aims to change this. First, it offers a theoretical exploration of the idea of a "right" to Internet access, including the diferent versions of such rights talk. Secondly, it examines whether there is any legal basis for such rights claims in New Zealand and ultimately argues that section 14 of the New Zealand Bill …

Curbing Consumer Complicity For Counterfeits In A Digital Environment, Peggy E. Chaudhry

Journal of Business & Technology Law

No abstract provided.

Better Mousetraps: Licensing, Access, And Innovation In The New Music Marketplace, Casey Rae-Hunter

Journal of Business & Technology Law

No abstract provided.

The Emperor's New Clothes: Intellectual Property Protections In China, Patricia E. Campbell, Michael Pecht

Journal of Business & Technology Law

No abstract provided.

"No Inventions, No Innovations": Reassessing The Government's Antitrust Case Against United States Steel Corporation, Guy B. Maseritz

Journal of Business & Technology Law

No abstract provided.

Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat

Faculty Scholarship

Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.

Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents are …

Making Sense Of Intellectual Property Law, Christopher Buccafusco

Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

A Tango Between Copyright And Choreography: Whiteness As Status Property In Balanchine's Ballets, Fuller's Serpentine Dance, And Graham's Modern Dances, Caroline Joan S. Picart

Cardozo Journal of Equal Rights & Social Justice

The article examines the intersection of race, gender, and copyright law in the context of modern dance in the United States. It argues that the legal battles over copyright protection for choreography were deeply influenced by racial and gender biases, with white male choreographers like George Balanchine securing ownership and control over their works, while female choreographers like Martha Graham faced significant challenges in maintaining control over their intellectual property. The article highlights how these dynamics shaped the legal framework for copyright protection in dance, emphasizing the role of whiteness and gender in determining ownership and legacy.

The Short-Sighted Attack On Patent Eligibility Of Healthcare Related Patents, Gregory Dolin

All Faculty Scholarship

On March 20, 2012, the Supreme Court of the United States unanimously decided the case of Mayo Collaborative Svc. v. Prometheus Labs. At issue was a patent, held by Prometheus that taught doctors how to adjust the amount of thiopurine (a drug used for treatment of a variety of autoimmune diseases) administered to a patient. In an opinion by Justice Breyer, the Court held Prometheus’s invention to not be patent eligible and invalidated the patent. Though I believe that the reasoning the Court employed was erroneous and highly problematic (of which more later), the decision could have been viewed as …

Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai

Faculty Scholarship

The Hatch-Waxman Act of 1984 aims to strike a balance between the innovation incentives provided by patents and the greater consumer access provided by low-cost generic drugs. The legislation, which relies in part on an explicit link between the FDA drug approval process and the U.S. patent system, has been controversial, particularly because of the ways in which firms producing brand-name drugs have exploited that link to delay market entry of generics as long as possible. Voluminous scholarship has focused on so-called "pay-for-delay" settlements of patent litigation between brand name and generic firms.

In contrast, this Perspective uses the lens …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji

Faculty Scholarship

Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.

Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …

From Goods To A Good Life: Intellectual Property And Global Justice, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

Most scholarship on intellectual property considers this law from the standpoint of law and economics. Under this conventional wisdom, intellectual property is simply a tool for promoting innovative products, from iPods to R2D2. In this highly original book Madhavi Sunder calls for a richer understanding of intellectual property law’s effects on social and cultural life. Intellectual property does more than incentivize the production of more goods. This law fundamentally affects the ability of citizens to live a good life. Intellectual property law governs the abilities of human beings to make and share culture, and to profit from this enterprise in …

Ap V. Meltwater, United States District Court For The Southern District Of New York

Historical and Topical Legal Documents

No abstract provided.

The Eye Alone Is The Judge: Images And Design Patents, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might …

Meaning, Purpose, And Cause In The Law Of Deception, Gregory Klass

Georgetown Law Faculty Publications and Other Works

Laws designed to affect the flow of information take many forms: rules against misrepresentation, disclosure requirements, secrecy requirements, rules governing the formatting or packaging of information, and interpretive rules designed to give people new reasons to share information. Together these and similar rules constitute the law of deception: laws that aim to prevent or cure deception. One encounters similar problems of design, function and justification throughout the law of deception. Yet very little has been written about the category as a whole. This article begins to sketch a general theory. It identifies three regulatory approaches. Interpretive laws, such as common …