Intellectual Property Law Commons^™

Allocation Of New Top-Level Domain Names And The Effect Upon Religious Freedom, 12 J. Marshall Rev. Intell. Prop. L. 697 (2013), N. Cameron Russell

UIC Review of Intellectual Property Law

The monopoly provided when trademark protection is given to a religious name is in direct tension with an individual’s right to freedom of religion. One’s ability to freely use a particular religious name in spiritual practice, and to identify one’s belief system with the words that commonly describe it, are weakened when trademark law designates just one owner. This Article explores the impact of the impending issuance of brand new top-level domains utilizing religious names, and how the providing of an exclusive right for one entity to govern over a religious top-level domain, in addition to the existence of a …

The Derivative Right,Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel Gervais Ph.D.

Vanderbilt Journal of Entertainment & Technology Law

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various "derivatives." The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase "based upon" with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which …

Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said

Articles

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure.

The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects …

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

Articles

Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.

In …

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Articles

This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of protection for …

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Articles

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"—the recipients of federal funding—to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships.

The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to …

User-Friendly Licensing For A User-Generated World: The Future Of The Video-Content Market, Joanna E. Collins

Vanderbilt Journal of Entertainment & Technology Law

A picture may say a thousand words, but in today's artistic culture, video is the true king. User-generated remix and mashup videos have become a central way for people to communicate their ideas, to be a part of popular culture, and to bring life to their own artistic visions. Digital technology and the rise of user-generated Internet platforms have enabled professionals and amateurs alike to participate in the creation of web videos, which often incorporate popular content. But this has led to a growing tension between amateur sampling artists and copyright rightsholders. The current video-content-licensing scheme requires individually negotiated contracts …

Will Professor Nimmer's Change Of Heart On File Sharing Matter?, Rick Sanders

Vanderbilt Journal of Entertainment & Technology Law

In a significant reversal, the leading copyright treatise, Nimmer on Copyright, has changed its position on the controversial subject of whether merely making a copyrighted work available for distribution violates the distribution right--an issue most significant in the context of peer-to-peer file sharing. Nimmer on Copyright had previously concluded that the distribution right did not extend so far. It now embraces whole-heartedly the "making available" theory of copyright infringement. Courts and practitioners should not follow suit. First, the treatise relies heavily on legislative materials that predate the actual passage of the current Copyright Act. Second, it argues that the current …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

Performance Royalties For Sound Recordings On Terrestrial Radio: A Private Solution To A Public Problem, J. P. Urban

Vanderbilt Journal of Entertainment & Technology Law

US copyright law provides for a digital performance right in sound recordings but does not provide for a performance right in sound recordings when broadcast over terrestrial radio. Proponents of this asymmetry posit that the difference relates to the promotional value of terrestrial radio to record labels, but this rationale has eroded in recent years. The recording industry experienced a drastic decline at the turn of the millennium, and record labels have attempted many creative approaches to bridging the profit gap. Major labels and radio conglomerates of late have begun negotiating private contracts that effectively extend the benefits of a …

Putting A Price On Friendship: Examining The Ownership Battle Between A Business' Social Media Networks, And The Humans That Operate Them, 47 J. Marshall L. Rev. 745 (2013), Michael Furlong

UIC Law Review

No abstract provided.

Colombia's Poetic World Of Authors' Moral Rights: Consideration On Imprisoning A Professor For Plagiarism, Carlos Castellanos Rubio, David Cromwell

Washington International Law Journal

The following is a translation of Carlos Castellanos Rubio’s article in the June 2011 edition of La Revista de Derecho, Comunicaciones y Nuevas Tecnologías, a Colombian legal periodical. The article discusses a 2010 Colombian Supreme Court of Justice decision that sentenced Professor Luz Mary Giraldo to two years in prison plus monetary and civil sanctions for plagiarizing a student’s thesis, “The Poetic World of Giovanni Quessep.” The decision has been controversial in Colombia for a variety of reasons, and many have accused the Court of judicial activism. Much of this criticism stems from the Court convicting Giraldo of violating …

Mapping Our Future: The Impact Of Gene Patents On Scientific Research And Health Care In The United States, Caitlin E. Lanning

Journal of Law and Health

In September, 2011, the Senate passed H.R. 1249, the Leahy-Smith America Invents Act (“AIA”), which President Barrack Obama signed into law on September 16th. The AIA is the largest transformation to U.S. patent law since 1952. While the new legislation implements numerous, positive changes to the U.S. patent system, it fails to address any of the concerns raised by gene patent critics over the past few decades. Gene patents should be categorized as patentable subject matter within the AIA, but under a separate patent category with specifically engineered regulations designed to promote scientific research and collaboration that will in turn …

Smashing The Copyright Act To Make Room For The Mashup Artist: How A Four-Tiered Matrix Better Accommodates Evolving Technology And Needs Of The Entertainment Industry, Caroline Kinsey

UC Law SF Communications and Entertainment Journal

With the rise of online blogging, social networking platforms, and videosharing sites such as YouTube and Yahoo Video, it is now possible for one individual to rival the span of entire media empires from one's basement computer. Commonly known as the Web 2.0 phenomenon, the combination of these technological advancements with video platforms that encourage users to "engage, create, and share content online" has fundamentally transformed the music industry. No longer are fans passive listeners, but instead, with the click of a mouse and access to the Internet, they become "publisher[s], TV network[s], radio station[s], movie studio[s], record label[s], and …

An Actual Problem In First Amendment Jurisprudence: Examining The Immediate Impact Of Brown's Proof-Of-Causation Doctrine On Free Speech And Its Compatibility With The Marketplace Theory, Clay Calvert, Matthew D. Bunker

UC Law SF Communications and Entertainment Journal

This article analyzes the immediate impact on First Amendment jurisprudence of the U.S. Supreme Court's "direct causal link" requirement adopted in 2011 in Brown v. Entertainment Merchants Association. In embracing an empirically focused proof-of-causation doctrine, Brown marked the first time in the Court's history it had used the phrase "direct causal link" in any free speech case. But just one year later, in a very different factual context in United States v. Alvarez, the Court struck down a federal law making it a crime to lie about earning military medals. In December 2012, a federal judge used Brown's "direct causal …

Internet Freedom And Computer Abuse, Lothar Determann

UC Law SF Communications and Entertainment Journal

The Computer Fraud and Abuse Act ("CFAA") has a bad reputation. It is associated with constitutional law challenges and community outrage. It played a role in the tragic suicide of Aaron Swartz, computer programmer, Internet activist and CFAA defendant. It has been decried as a basis for abuse of justice, which is ironic, given its title and focus on punishing abuse. It has been called "the worst law in technology" and "the most outrageous criminal law you've never heard of." It is loathed and feared as a threat to Internet freedom.

A particular concern is that the law could criminalize …

The Overexpansion Of The Communications Decency Act Safe Harbor, Joey Ou

UC Law SF Communications and Entertainment Journal

Congress enacted the CDA as part of the Telecommunications Act of 1996, due to concerns over pornography on the Internet. Section 230 was added to support and encourage the proliferation of information on the Internet. However, this section of the CDA has since developed into one of the most influential cyberspace laws protecting websites and ISPs from liability. State and federal courts have interpreted section 230 protection expansively, conferring broad immunity upon websites, including immunity for violations of the Fair Housing Act ("FHA"). This is especially significant because "the Internet has become 'a unique and wholly new medium of worldwide …

Tethering Applications And Open Internet Rules For The Mobile Broadband: Lessons From The Fcc-Verizon Settlement, Matthew Tonner

UC Law SF Communications and Entertainment Journal

This note investigates the regulation of mobile broadband using tethering applications as an example of how to apply net neutrality rules. Part II looks at the recent history of the FCC Open Internet regulations and the rapid advances in the speed, capabilities, and prevalence of mobile broadband as a primary means of Internet access. Part III discusses the 2012 settlement reached between Verizon and the FCC over Verizon's request that Google remove tethering apps from the Android Store. Following that, Part IV assesses the merits of the FCC's current approach to enforcing net neutrality policy via contractual provisions attached to …

Harmonizing All Around The World: Re-Evaluating The Copyright And Treaty Powers In The Post-Golan Era, Derrick Wang

Maryland Journal of International Law

No abstract provided.

Novelty Grace Periods: A National Law Survey, Frederik Struve

Student Scholarship

This survey includes all national law statutes (known to the author), conveying broader rights when compared with Article 55 of the European Patent Convention. The statutes provided in this survey have primarily been retrieved from the World Intellectual Property Organization (WIPO) and from national patent offices where appropriate. Links to the materials used are provided after each statute.

Briefly, the survey documents that 72 countries offer broader rights to applicants, when compared with EPC Article 55. Of those countries, 46 include the right to claim priority under the Paris Convention. In all, 61 contracting states to the Patent Cooperation Treaty …

The Meaning Of Science In The Copyright Clause, Ned Snow

Faculty Publications

The Constitution premises Congress’s copyright power on promoting “the Progress of Science.” The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society’s store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People’S Republic Of China, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

This Essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.”

Monitoring and censoring communications, especially via “one-to-many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile Internet technologies …

Whose Social Network Account: A Trade Secret Approach To Allocating Rights, Zoe Argento

Michigan Telecommunications & Technology Law Review

Who has the superior right to a social network account? This is the question in a growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright, and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the people, sometimes numbering in the tens of thousands, who follow an account. This Article evaluates the problem from the perspective of the public interest in social network use, particularly the …

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Michigan Telecommunications & Technology Law Review

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"--the recipients of federal funding--to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to the …

Fracking Patents: The Emergence Of Patents As Information-Containment Tools In Shale Drilling, Daniel R. Cahoy, Joel Gehman, Zhen Lei

Michigan Telecommunications & Technology Law Review

The advantages of new sources of energy must be weighed against environmental, health, and safety concerns related to new production technology. The rapid development of unconventional oil and gas fields, such as the Barnett and Marcellus Shales, provide an excellent context for these contrasting goals. Information about extraction hazards is an extremely important issue. In general, patents are viewed as a positive force in this regard, providing a vehicle for disseminating information in exchange for a limited property right over an invention. However, by limiting the evaluation of an invention by third parties, patents might also be used to control …

Geographically Restricted Streaming Content And Evasion Of Geolocation: The Applicability Of The Copyright Anticircumvention Rules, Jerusha Burnett

Michigan Telecommunications & Technology Law Review

A number of methods currently exist or are being developed to determine where Internet users are located geographically when they access a particular webpage. Yet regardless of the precautions taken by website operators to limit the locations from which they allow access, it is likely that users will find ways to gain access to restricted content. Should the evasion of geolocation constitute circumvention of access controls so that § 1201 of the Digital Millennium Copyright Act ("DMCA") applies? Because location data can properly be considered personally identifiable information ("PII"), this Note argues that § 1201 should not apply absent a …

Joinder Under The Aia: Shifting Non-Practicing Entity Patent Assertions Away From Small Businesses, Xun Liu

Michigan Telecommunications & Technology Law Review

When the America Invents Act ("AIA ") was signed in September 2011, many feared the law might benefit larger corporations at the expense of small businesses. This Note examines how one portion of the AIA, governing joinder in patent cases, might actually benefit small businesses by reducing patent assertions from non-practicing entities ("NPEs"). NPE assertions disproportionately affect small businesses, both because NPEs target small businesses more frequently and because patent assertions have a greater impact on individual companies. Prior to the AIA, joining multiple defendants in a single lawsuit offered important advantages for patent holders and allowed NPEs to achieve …

“Reverse” Patent Declaratory Judgment Actions: A Proposed Solution For Medtronic, Megan M. La Belle

Scholarly Articles

The United States Supreme Court is scheduled to hear arguments in Medtronic, Inc. v. Boston Scientific Corp. – the first patent case of the term – on November 5, 2013. The issue in Medtronic is whether the burden of proof in patent declaratory judgment actions should be on the patent owner to prove infringement or on the accused infringer to prove non-infringement. Ordinarily, the patent owner bears the burden of proving infringement and the declaratory posture of a suit does not shift that burden. In Medtronic, however, the Federal Circuit created an exception for “MedImmune-type” suits, meaning declaratory judgment actions …

Personal Jurisdiction And Choice Of Law In The Cloud, Damon C. Andrews, John M. Newman

Articles

Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the "cloud" as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in history, cloud computing is--both practically and legally-a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than as a product, represents an evolution to a contractual foundation for interacting.

Already, substantive …

Copyright Freeconomics, John M. Newman

Articles

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster's rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate among scholars and stakeholders regarding the proper scope and role of copyright law-but this ongoing debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering legitimate content at a price of $0.00.

This sea change has ushered in an era …