Intellectual Property Law Commons^™

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 …

From Berne To Beijing: A Critical Perspective, David L. Lange

Faculty Scholarship

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 …

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 …

Introduction: China Re-Rising: Innovation And Collaboration For A Successful Twenty-First Century, Lindsay Korotkin

Cardozo Law Review de•novo

All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil. Cardozo Law Review de•novo’s online symposium, “China Re-Rising: Innovation and Collaboration for a Successful Twenty-First Century” focuses on China’s overall transition from a manufacturing to an innovation economy and how this transition affects …

Five Oft-Repeated Questions About China’S Recent Rise As A Patent Power, Peter K. Yu

Cardozo Law Review de•novo

This Article focuses on five key questions that I have been repeatedly asked in presentations or conferences exploring recent intellectual property developments in China. As the answers will suggest, the future of the Chinese intellectual property system is rather complex. This future reflects neither a rosy picture of China’s “great leap forward” in the intellectual property arena nor a continuously gloomy picture of pirates and counterfeiters. Instead, the picture is dualistic and highly dynamic. It includes both yin and yang—the yin of continued massive piracy and counterfeiting and the yang of China’s rise as a patent power.

Using Valuation-Based Decision Making To Increase The Efficiency Of China’S Patent Subsidy Strategies, William J. Murphy, John L. Orcutt

Cardozo Law Review de•novo

This Article explains how a disciplined and transparent valuation-based decision-making process can help the Chinese government design patent fee subsidy programs that allocate funds more consistently to deserving patents. In addition, this Article offers the outline of a practical valuation model the Chinese government could use to filter patent fee subsidy requests.

Collaborative Innovation And Economic Growth: A Comment On China’S Innovation Policies, Chen Wang, Jon Sallet

Cardozo Law Review de•novo

China has also taken steps to encourage the creation of intellectual property by Chinese companies. This Article will first examine the nature of those policies, then consider their impact on the goal of better innovation in China, as well as the impact on multi-national companies that wish to do business in China. The Article will conclude with suggestions about the best ways to build innovation policy to encourage sustainable relationships between China and multi-national companies.

Finding Reality In The Right Of Publicity, Lindsay Korotkin

Cardozo Law Review de•novo

This Note takes a critical look at the right of publicity in the context of the growth of the reality television industry and, for strong policy reasons, proposes a broad fair use defense to limit reality television stars’ right of publicity claims. Part I traces the formulation of the right to privacy at common law and the development of the right of publicity as a right distinct from privacy. Part II discusses whom the right of publicity protects, what reality television is, and how reality television stars are different from talent-based celebrities. Part III examines how broad publicity protection can …

Improvidently Granted: Why The En Banc Federal Circuit Chose The Wrong Claim Construction Issue, Greg Reilly

Faculty Scholarship

The United States Court of Appeals for the Federal Circuit recently granted en banc review in Lighting Ballast Control LLC v Philips Electronics North America Corp to decide whether to afford deference to a district court’s interpretation of patent claims, a step that has been heralded as potentially “lead[ing] to fundamental, far-reaching changes in patent law and patent litigation strategies.” Over the next few months, the parties, scores of amici, and commentators will spend reams of paper and untold amounts of money arguing whether claim construction—interpreting the short, numbered paragraphs at the end of the patent that define the patentee’s …

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 …

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 …

The Competitive Advantage Of Weak Patents, William Hubbard

All Faculty Scholarship

Does U.S. patent law increase the competitiveness of U.S. firms in global markets? This Article argues that, contrary to the beliefs of many U.S. lawmakers, U.S. patent law currently undermines the ability of U.S. firms to compete in global markets because strong U.S. patent rights actually weaken an overlooked but critical determinant of U.S. competitiveness: rivalry among U.S. firms. Intense domestic rivalry drives firms to improve relentlessly, spawns related and supporting domestic industries, and encourages the domestic development of advanced factors of production—like specialized labor forces. U.S. patents restrict rivalry among foreign firms less because U.S. patents have little extraterritorial …

Patents At The Supreme Court: It Could Have Been Worse, Gregory Dolin

All Faculty Scholarship

In the last few years in particular, the Court has expanded the zone of exclusion from patent eligibility, limited the availability of injunctive relief for patentees whose patents have been adjudged to be valid and infringed, and broadened the scope of the patent exhaustion doctrine. To be sure, not all of the Supreme Court’s decisions were “anti-patent.” Nonetheless, the overall trajectory of the Court’s patent jurisprudence has been toward a narrower set of patent rights. Thus, there was significant trepidation in the patent bar and the academy when the Supreme Court decided to hear three patent cases in the OT …

A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

Self-Replicating Technologies And The Challenge For The Patent And Antitrust Laws, Daryl Lim

Faculty Scholarly Works

Few patented inventions challenge the traditional boundaries of the patent and antitrust laws like those that are capable of multiplying as they are used. These self-replicating technologies are embedded in our food, fortify our vaccines, and form the computer code upon which the information age is based. These inventions create an inherent conflict between patentees and their customers. The conflict arises because every customer could become competitors as the product replicates, potentially making every first sale the patentee's last. They also challenge how we think about fundamental issues of ownership as well as innovation and market competition, and make it …