Intellectual Property Law Commons^™

Fracking The Oil And Gas Trade Secrets Of The Marcellus Shale Natural Gas Play, Jeremy I. Maynard

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Tragedy Of The Commons: A Hybrid Approach To Trade Secret Legal Theory, Jonathan R. K. Stroud

Celebrating WCL Student Authors

No abstract provided.

Much Ado About Nexus: The States Struggle To Impose Sales Tax Obligations On Out-Of-State Sellers Engaged In E-Commerce, Sara Shoenfeld

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Patent Law Is, At Best, Not Worth Keeping, Richard Stallman

Loyola University Chicago Law Journal

No abstract provided.

Crowdfunding: Fleecing The American Masses, Zachary J. Griffin

Journal of Law, Technology, & the Internet

No abstract provided.

Personal Health Information Shared Via Social Networking: The Gap Between Reality And Protection, Madison M. Pool

Journal of Law, Technology, & the Internet

No abstract provided.

A Trademark Justification For Design Patent Rights, Dennis D. Crouch

Faculty Publications

This article presents a new set of empirical results to support the theoretical construct that design patents fill a gap in trade dress law protection. Based on the data, I tentatively reject the oft-stated conventional wisdom that design patents are worthless for many because procurement is too slow, expensive, and difficult. Rather, based on a first-of-its-kind analysis of the prosecution history files of a large sample of recently issued design patents, I conclude that the current design patent examination system operates as a de facto registration system. Notably, more than ninety-eight percent (98%) of the patents in my study were …

Tattoos & Ip Norms, Aaron K. Perzanowski

Faculty Publications

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo …

Rethinking Innovation And Productivity Within The Workplace Amidst Economic Uncertainty, Shlomit Yanisky Ravid

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Lawyer With The Adr Tattoo, Jennifer W. Reynolds

Cardozo Journal of Conflict Resolution

This Article considers whether ADR presents a branding problem for legal professionals and, if so, how those professionals can reclaim the brand in productive, career-affirming ways. Whether one should self-identify as proponent, practitioner, or scholar of alternative practices implicates broad tensions not only around assimilating with integrity into any longstanding change-resistant profession, but also around the shortcomings of the adversarial system and the legitimacy of ADR.

People V. Diaz, Senate Bill 914 And The Fourth Amendment, Caitlin Keane

UC Law SF Communications and Entertainment Journal

After the Diaz decision in January, Senator Mark Leno, a Democrat representing San Francisco, took matters into his own hands and drafted Senate Bill 914. In short, the bill would have overturned the Court's decision and required law enforcement to obtain a search warrant from a neutral magistrate before searching arrestees' portable electronic devices. The bill passed with overwhelming support from both political parties in the State Assembly and State Senate and needed only Governor Brown's signature or tacit approval to become law. Governor Brown vetoed the bill in October 2011, stating, "[t]he courts are better suited to resolve the …

Imposing A Duty In An Online World: Holding The Webhost Liable For Cyberbullying, Elizabeth M. Jaffe

UC Law SF Communications and Entertainment Journal

In light of fettle attempts by state legislatures to subdue the growing cyberbullying epidemic, the time has come to create a civil duty upon those who can control the problem-web hosts and webservers. While the general "foreseeable plaintiff' duty set forth by then-Chief Judge Cardozo in PaIsgraf v. Long Island Railroad Co. has controlled the duty of care owed to the person of another for the last century, Judge Andrews' dissent may hold the key to unlock this new societal problem: "Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten …

Minor Changes: Altering Current Coogan Law To Better Protect Children Working In Entertainment, Danielle Ayalon

UC Law SF Communications and Entertainment Journal

Coogan Law provides statutory authority designating income earned by a minor under an entertainment contract as the minor's property, rather than the property of the minor's parents. These statutes were first enacted in 1939, substantially revised in 2000, and subsequently amended in 2004. But despite these ongoing efforts to provide financial protection, the adverse interests of parents and their children persist. The concern that many child entertainers are not yet adequately protected invites close scrutiny of the law to assess whether changes are still required to assure children in the entertainment business have optimal protection.

This note examines the current …

Stars In Their Eyes: The Dominance Of The Celebrity Brand And Intellectual Property Norms Protection Through Fan Goodwill, Naeha Prakash

UC Law SF Communications and Entertainment Journal

The widespread celebrity culture in today's society has signaled a shift from celebrity product endorsers to celebrity brands. Right of publicity and trademark laws leave a gap that does not adequately protect a brand as a whole. Rather, these laws make a distinction between the celebrity identity and the product, limiting protection of a brand that includes both components. Social norms found in the interaction between celebrities and fans can provide an alternate form of protection that reinforces ownership rights found in pure intellectual property. This article argues that a celebrity brand should foster fan goodwill to build a brand …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

Scholarly Works

The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

Scholarly Works

Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

The Case Of The Missing Case: Stewart V. Abend And Fair Use Law, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

Three Supreme Court cases dominate fair use: Sony, Harper and Row, and Campbell. One case has gone mysteriously missing. In Stewart v. Abend, the Supreme Court held that it was not fair use for the producers of Alfred Hitchcock’s film "Rear Window" to continue showing the film. Their rights had been terminated in the underlying story, "It Had To Be Murder," by an unanticipated shift in copyright case law. Stewart remains well known in copyright law for its lengthy discussion of a complex issue of copyright renewal, but Stewart’s short, sharp fair use discussion has gone by the wayside. At …

Panel Iii: Politics And The Public In Ip & Info Law Policy Making, Michael J. Burstein, Derek Khanna, Jessica D. Litman, Sherwin Siy, Richard S. Whitt

Other Publications

We have been moving gradually from the theoretical to the practical. Having examined the impact of critical legal studies ("CLS") in the academy and having discussed the intersection between scholarship and activism, we now turn to the nitty-gritty questions of how to actually enact change in intellectual property and information law and policy.

Patent Prudential Standing, Xuan-Thao Nguyen

Articles

This Article is the first to focus on patent prudential standing. Patent prudential standing, a creation of the Federal Circuit, wastes precious resources and serves no sound policy goal. Under patent prudential standing, after many resources have been expended on the merits of a patent infringement case, parties face a reversal of course by the Federal Circuit’s ruling that the plaintiff, typically the exclusive licensee in a patent transaction, lacked standing to bring the case in the first place. Regardless that the plaintiff satisfies constitutional standing, the Federal Circuit propounds that the plaintiff must still meet patent prudential standing. The …

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 …

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 …

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 …

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 Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

Self-Replicating Technologies And The Challenge For The Patent And Antitrust Laws, 32 Cardozo Arts & Ent. L.J. 131 (2013), Daryl Lim

UIC Law Open Access Faculty Scholarship

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 …

Then, You Had It, Now It’S Gone: Interspousal Or Community Property Transfer And Termination Of An Illusory Ephemeral State Law Right Or Interest In Copyright, Llewellyn Joseph Gibbons

Fordham Intellectual Property, Media and Entertainment Law Journal

Often in the case of a marriage where one partner is a creative spouse, the primary marital asset is a body of copyrighted works. In 2013, author-spouses entered the period when they may begin to terminate any putative copyright transfer to the community property estate or terminate other transfers that may be the basis for prenuptial or postnuptial agreements, property settlements, or dissolution decrees in divorce actions. Section 203 of the 1976 Copyright Act provides that an author may unilaterally terminate a transfer of copyright approximately thirty-five years after the initial transfer. In community property states, state law assumes that …

Shallow Signals, Bert I. Huang

Faculty Scholarship

Whether in dodging taxes, violating copyrights, misstating corporate earnings, or just jaywalking, we often follow the lead of others in our choices to obey or to flout the law. Seeing others act illegally, we gather that a rule is weakly enforced or that its penalty is not serious. But we may be imitating by mistake: what others are doing might not be illegal – for them.

Whenever the law quietly permits some actors to act in a way that is usually forbidden, copycat misconduct may be erroneously inspired by the false appearance that "others are doing it too." The use …

Innovation And Litigation: Tensions Between Universities And Patents And How To Fix Them, Jacob H. Rooksby

Law Faculty Publications

Universities that own patents have a problem. While nearly all are keen to enhance their revenue generated from patents, few are eager or prepared to enforce them in court, alone or with their exclusive licensees, should a third party deploy a product or process covered by a university-owned patent. Yet strict prudential standing requirements imposed by the United States Court of Appeals for the Federal Circuit (“CAFC”) effectively require university participation as plaintiffs in enforcement lawsuits over their exclusively licensed patents, regardless of a university’s effective ability or enthusiasm to participate in a given action. Supported by forty years of …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg

Faculty Scholarship

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents – almost all unpublished – in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because …