Intellectual Property Law Commons^™

United States Environmental Protection Agency Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

United States Environmental Protection Agency Scientific Integrity Policy (2012).

Darkness On The Edge Of Town: How Entitlements Theory Can Shine A Light On Termination Of Transfers In Sound Recordings, Matthew Vincent H. Noller

Georgia Law Review

When Congress overhauled the Copyright Act in 1976, it
created the device of termination of transfers to protect
authors of copyrighted works from unremunerative
transfers. The scheme seemed straightforward, but
technology has created problems the Act's drafters never
could have anticipated. In particular, the application of
termination of transfers to sound recordings in 1976 was
little more than a shadow of uncertainty not worth dealing
with at the time. But that shadow has become a creeping
darkness, and no one seems sure how to clear it.
Now the darkness is here. Next year, artists like Bruce
Springsteen and Bob Dylan …

Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr., Christian T. Johnson

Georgia Law Review

Before the creation of the Federal Circuit in 1982,
nonobviousness served as the primary gatekeeper for
patents. When patent holders sued for infringement and
lost, more than sixty percent of the time, they lost on the
grounds that their patent was obvious. With the advent of
the Federal Circuit, nonobviousness became a much less
difficult hurdle to surmount. From 1982 until 2005, when
patent holders sued for infringement and lost, obviousness
was the reason in less than fifteen percent of the cases.
While obviousness remained formally a requirement of
patent protection, there can be little doubt that the Federal
Circuit …

Must Licenses Be Contracts? Consent And Notice In Intellectual Property, Mark R. Patterson

Faculty Scholarship

Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of the lack of clarity is the ill-defined …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Ian Lambeets

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the 2011-2012 academic year. The Journal strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. As we enter the new year, we must remain mindful of the ever-growing role that technology plays in our daily lives. In that vein, the Journal believes it is our mission to promote a relevant and timely discussion on technology-related legal issues.

Orphan Works At The Dawn Of Digitalization, Kelu L. Sullivan

Richmond Journal of Law & Technology

The past two decades have witnessed breathtaking increases in computing power, as well as equally impressive strides in manufacturing efficiency and technological innovation. Powerful, cheap, and interconnected, modern personal computers, smart phones, and e-readers are rapidly sculpting a landscape of ubiquitous computing. From shopping online to streaming movies, from social networking to online dating, and from paying bills to reading digitized books, the average American now expects the convenient digitization of historically analogue practices and media. In the workplace, this trend has expressed itself through a strong push toward paperless practices. In the music and movie industries, this trend has …

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental …

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 …

Promoting Trademark's Ends And Means Through Online Contributory Liability, E. Jordan Teague

Vanderbilt Journal of Entertainment & Technology Law

Trademark law accomplishes its ultimate end--helping consumers easily find, distinguish between, and trust products and services from different brands--through the means of giving markholders an incentive to develop and cultivate these brands in the first place. While individual trademark laws should serve these ends and means, this is not the case with contributory infringement in the United States as applied to the Internet. First, since the doctrine is based entirely in common law with little case law specifically addressing the online context, contributory infringement gives online service providers (OSPs) little notice as to what types of behaviors could result in …

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 Rollicking Band Of Pirates: Licensing The Exclusive Right Of Public Performance In The Theatre Industry, Shane D. Valenzi

Vanderbilt Journal of Entertainment & Technology Law

With ticket prices on Broadway at an all-time high, amateur and regional theatres are the only venues for theatrical productions to which most Americans are exposed. Licensing these performance rights--known as "stock and amateur rights"--is the primary source of income for many playwrights, even for those whose plays flopped at the highest level. However, the licensing houses responsible for facilitating these transactions frequently retain and exercise the ability to issue exclusive performance licenses to certain large regional theatres. This practice limits public access to particular works and restricts playwrights' potential earnings in those works. Though this behavior does not amount …

Infringers Or Innovators? Examining Copyright Liability For Cloud-Based Music Locker Services, Brandon J. Trout

Vanderbilt Journal of Entertainment & Technology Law

Music lockers--Internet sites where users may store a copy of their music for later playback--have revolutionized the way people listen to music, allowing them to take their music with them anywhere in the world. However, rights holders are concerned that these locker services potentially infringe music copyrights when they allow their users to upload and stream music and when they use a space-saving technology called "deduplication." This Note delineates the separate rights guaranteed under the Copyright Act as applicable to music lockers: the right to copy and the right of public performance. The analysis looks at several music locker services …

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 …

Copyright's Creative Hierarchy In The Performing Arts, Michael W. Carroll

Vanderbilt Journal of Entertainment & Technology Law

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Three Theories Of Copyright In Ratings, James Grimmelmann

Vanderbilt Journal of Entertainment & Technology Law

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright's usual balance between incentives and access becomes indeterminate when ratings …

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.

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 …

What Do America's First Patents Have To Do With Today's?, Kristen Jakobsen Osenga

Law Faculty Publications

In an invited response to an article by Prof. Michael Risch, Prof. Osenga reexamines some of the conclusions drawn by his study of early American Patents and what they suggested about inventors' perceptions of patentability.

The Shape Of Things To Come: What We Can Learn From Patent Claim Length, Kristen Jakobsen Osenga

Law Faculty Publications

Technology is always changing. Patent law is also constantly evolving, as the courts and Congress continue to make significant changes to this area of law. But what about patents themselves? Some studies have looked at how patent specifications have changed over time, but no one has looked specifically at the most important aspect of a patent, its claims. Given the changes in technology and law, one would anticipate patent claims to have evolved.

Despite the expectations, this paper concludes that patent claim shape is largely unaffected by time, technology, crowded fields, or prosecution time. This paper suggests a possible reason …

Google Books: Finally, An Actual Fair Use Ruling!, James Gibson

Law Faculty Publications

One of our favorite topics in this Intellectual Property Issues series – perhaps the favorite – is Google Books, the massive project through which Google hopes to bring its search capability to the text of all books in the English language. To make a book’s text searchable, however, Google must scan the book. And scanning is copying. And copying usually means copyright infringement. Certainly the many authors and publishers who have sued Google take this view.

There are two ways to avoid infringement when copying a copyrighted book: get a license or prove that the copying constitutes fair use. Many …

Apple V. Samsung: A Primer, James Gibson

Law Faculty Publications

The jury verdict in the Apple v. Samsung case is in, and it is a whopper: $1.05 billion in damages, to be paid by Samsung to Apple for violating various intellectual property rights in the iPhone and iPad. In all likelihood, the court will follow that up with an order banning several Samsung products from the U.S. marketplace. So what is this case all about?

What Are Apple’s Claims?

Apple had several different theories of infringement here, and the jury bought almost all of them, at least with regard to certain Samsung devices. Here are the theories that won Apple …

Copyright And Federal Supremacy, James Gibson

Law Faculty Publications

The extent of federal power over our lives has been much in the news recently, what with the Supreme Court holding days of hearings on whether the Affordable Care Act is an unconstitutional exercise of Congress’s power under the Commerce Clause. Like the ACA, copyright regulation is federal, but it derives its constitutional authority from a different part of the Constitution, known as the Patent and Copyright Clause, which gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” …

Copyright's Gray Market, Redux, James Gibson

Law Faculty Publications

In an earlier entry in this series, I discussed an important issue in copyright law – whether the first sale doctrine applies to goods manufactured abroad. The Supreme Court was set to decide the issue in Costco v. Omega, but the Court split 4-4 and so left the matter unresolved.

Now the issue is back before the Supreme Court, in a case for which certiorari was granted this month: Kirtsaeng v. John Wiley & Sons. Supap Kirtsaeng is a native of Thailand who moved to the United States to attend college. To subsidize his tuition, he began importing textbooks that …

The Top Three Patent Cases Of 2012, James Gibson

Law Faculty Publications

New Year’s Day prompts us to reflect on what the last 12 months have brought, so I’ve taken the opportunity to think back on 2012’s intellectual property developments. It’s been a busy year, with patent reform, new technologies, multilateral treaties, and more. To make my task more manageable, I’m going to focus on three important patent law cases – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll conclude with an extra-special bonus: the Case To Watch for patent law in 2013. Then, in my next entry in this series, …

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

Historical and Topical Legal Documents

No abstract provided.

Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark P. Mckenna

Journal Articles

Antitrust law explicitly depends on market definition. Many issues in IP law also depend on market definition, though that definition is rarely explicit. Applying antitrust traditional market definition to IP goods leads to some startling results. Despite the received wisdom that IP rights don't necessarily confer market power, a wide array of IP rights do exactly that under traditional antitrust principles. This result requires us to rethink both the overly-rigid way we define markets in antitrust law and the competitive consequences of granting IP protection. Both antitrust and IP must begin to think realistically about those consequences, rather than falling …

(Dys)Functionality, Mark P. Mckenna

Journal Articles

The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: …

A Consumer Decision-Making Theory Of Trademark Law, Mark P. Mckenna

Journal Articles

The consumer search costs theory has dominated discussion of trademark law for the last several decades. According to this theory, trademark law aims to increase consumer welfare by reducing the cost of shopping for goods or services, and it accomplishes this goal by preventing uses of a trademark that might confuse consumers about the source of the goods with which the mark is used. This conceptual frame is wrong, and it is complicit in most of trademark law’s extraordinary expansion. “Search costs” is not sufficiently precise; many types of search costs are irrelevant to consumer behavior, and even when search …

The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Robin Feldman

Faculty Scholarship

Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …