Intellectual Property Law Commons^™

Federalism And Business Decisions In The October 2005 Term, Carter G. Phillips

Touro Law Review

No abstract provided.

The Jurisprudence Of Transformation: Intellectual Incoherence And Doctrinal Murkiness Twenty Years After Campbell V. Acuff-Rose Music, Matthew D. Bunker, Clay Calvert

Duke Law & Technology Review

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key …

Protecting A Celebrity’S Child From Harassment: Is California’S Amendment Penal Code § 11414 Too Vague To Be Constitutional?, Michelle N. Robinson

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note will describe a brief history of the legal attempts to restrict the paparazzi and the legislative history behind A.B. 3592 and its amendment, S.B. 606. The bills are controversial and have received a significant amount of criticism, due to the fact that they restrict speech by essentially prohibiting paparazzi, known for their harassing behavior, from taking pictures of the children of celebrities. The Note will conclude with an analysis utilizing the void-for-vagueness doctrine of whether the bill is in violation of the First Amendment.

The Copyright Infringement Test: A New Approach To Literary Misappropriation In Film, Rikki Bahar

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note argues that courts’ emphasis on the ordinary observer test to prove illicit copying in film is misguided. The ordinary observer test relies on whether the accused work captures the total feel of the copyrighted work, but overlooks an essential aspect of unlawful appropriation and copyright law – the idea that only particular elements of a work are copyrightable. If a jury is exposed to expert testimony regarding probative similarity before making their evaluation, it is unlikely they will forget such evidence when evaluating the illicit copying.

A better test for infringement would be one that allows the ordinary …

Let’S Talk About Sex: How Societal Value Evolution Has Redefined Obscenity, Kamilah Mitchell

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note seeks to examine the evolution of sex and sexuality in the media, by critically examining how the prevalence of sex and more recently the prevalence of topics and issues related to sexuality in television, literature, electronic media, and art have and continue to impact societal views and notions on obscenity. This Note will also examine the Miller test for obscenity, and the long term effects of societal value evolution on the application of the Miller test. This Note concludes by positing that at some point, the line between what is deemed sexually offensive and what is socially acceptable …

Cash From Chaos: Sound Recording Authorship, Section 203 Recapture Rights And A New Wave Of Termination, Hector Martinez

Pace Intellectual Property, Sports & Entertainment Law Forum

The thesis of this Article is that under an exclusive recording agreement entered into in the United States between a record label and recording artist on or after January 1, 1978, any key member of recording artist that signed the recording contract is a bona fide author of a sound recording for purposes of claiming standing in order to effectuate a termination of transfer of grant under Section 203 of the 1976 Copyright Act.

Part I will summarize the history of sound recordings as copyrightable subject matter. Part II will examine record industry custom and practice as it relates to …

Banksy Got Back? Problems With Chains Of Unauthorized Derivative Works And Arrangements In Cover Songs Under A Compulsory License, Matthew A. Eller

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article will analyze the scope of copyright ownership in relation to chains of unauthorized derivative works and chains of arrangement rights in cover versions of musical recordings. In particular, the analysis will focus on the gray area in the law where an unauthorized derivative work (“D1”) is created by an author and another author creates a second derivative work (“D2”) based off of D1. In situations such as these, does the creator of the original derivative work have any rights in their creation if their derivative work was unauthorized?

Further, depending on what rights do exist for D1, can …

Pinning Your Way To Copyright Infringement: The Legal Implications Pinterest Could Face, Brittany Fink

Pace Intellectual Property, Sports & Entertainment Law Forum

With the simple click of a button, anyone can copy an image from one place and paste it to another. What some people do not realize is that these actions could have them one click away from copyright infringement. Advancements in technology have made it easier for Internet users to infringe on the rights of copyright owners. Many popular websites, such as YouTube and Facebook, have seen the dangers of allowing users to upload videos and images onto their websites. However, one popular website has not yet seen the wrath of copyright owners. This Article looks at the rights copyright …

The Patent Reform Debate: Has Patent Overprotection Resulted In Not-So-Smartphones?, Ryan A. Kraski

Pace Intellectual Property, Sports & Entertainment Law Forum

This Article discusses the issue of excessive patent protection and possible remedies; the discussed remedies are the usage of antitrust laws or simply replacing certain patents with copyright protection. This Article first explores the relationship between patent protection and antitrust law. It then describes a number of tests that have been used in the past and one proposed new test, designed to confront this interrelationship. While considering these tests, this Article applies two controversial real-world patents to each in order to examine their benefits and problems. This Article then goes on to discuss the possible benefits of protecting inventors through …

Cleaning Out The Closet: A Proposal To Eliminate The Aesthetic Functionality Doctrine In The Fashion Industry, Jessie A. Maihos

Pace Intellectual Property, Sports & Entertainment Law Forum

The aesthetic functionality doctrine seeks to promote competition, but is ineffective in the fashion industry because there is not one design that will be the most aesthetically appealing to everyone, as there is in other industries. This Article examines the various problems with the aesthetic functionality doctrine, and will argue that this doctrine, while relevant in other industries, should be eliminated from fashion.

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014

Pace Intellectual Property, Sports & Entertainment Law Forum

This issue of Pace Intellectual Property, Sports & Entertainment Law Forum includes articles on the modern legal issues & developments affecting fashion, the Internet, music, film, international sports, constitutional law & the lives of celebrities.

Counterfeiting: A Challenge To Forensic Science, The Criminal Justice System, And Its Impact On Pharmaceutical Innovation, Pauline Elizabeth Leary

Dissertations, Theses, and Capstone Projects

Counterfeit drugs threaten public health and present unique and complex challenges to the criminal justice system and the field of forensic science. Theft of intellectual property in the pharmaceutical industry has caused sickness and death, and it is necessary that the perpetrators of these crimes are brought to justice. In some cases, threats to health and safety are short term; in others they are long term. This research describes these threats in detail.

The problem is complex, and there are many important factors that need to be considered to successfully address the problem. Public-health challenges, drug-development challenges, legal challenges, issues …

The 360° Of Information Fluency Delivery To Freshman Engineering Students, Marian G. Armour-Gemmen, Robin A.M. Hensel, Mary L. Strife

Faculty & Staff Scholarship

For three years, engineering librarians from West Virginia University (WVU) have been teaching information fluency skills to 700-1000 freshman engineering students per year, using a specific information fluency cycle. The librarians’ responsibilities in the Fall 2013 course syllabus included teaching once in each section, providing a two-hour, in-library group sessions to accommodate almost 700 students, delivering an intellectual property Blackboard™ module for students to complete over a specific period of time, and requiring students to complete a Plagiarism Avoidance Tutorial with quiz. Some of these components are similar to those of past semesters. However, past collection of the data was …

Professor Thomas G. Field, Jr.: Pioneer In Intellectual Property Education, Teacher, Mentor, And Scholar, Jon R. Cavicchi

Law Faculty Scholarship

It is almost an impossible endeavor to summarize the forty plus year career of Thomas G. Field, Jr. Regarding this inquiry, Field might say, "If you want to know what I have done, look at my C. V. on the web!" His ten page, single-spaced "Abbreviated Curriculum Vitae" only sets the factual stage for the incredible career that spanned the entire life of the University of New Hampshire School of Law ("UNH School of Law" or "UNH Law"). The real story is only told by Field himself, his contemporaries, colleagues, and the thousands of students whose life he touched. This …

Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri

Articles

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2-1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be "transformed," the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …

Multipolarity, Intellectual Property, And The Internationalization Of Public Health Law, Sam F. Halabi

Michigan Journal of International Law

The cause of global health today is arguably the most influential human rights movement ever seen, mobilizing vast flows of direct and indirect aid to the developing world to fight disease and build health care infrastructure; prompting the establishment of international organizations like UNAIDS and the Global Fund to fight AIDS, Tuberculosis and Malaria (Global Fund); including global health as a priority in major diplomatic summits; and driving the formation and implementation of international agreements to address global health threats. Champions of this movement claim that the diverse and influential state and non-state actors participating in the development of the …

An Analysis Of Patent System And Antitrust Law Issues In Oled Display Industry: Focusing On The Patent Strategy For Securing Technologies And Materials, Meyoung Ju Joung

Maurer Theses and Dissertations

This dissertation presents an analysis of patent system and antitrust law issue in OLED (Organic Light Emitting Diode) display industry focusing on the patent strategy for securing technologies and materials. Material patent holders of multinational companies wielding great market power in OLED industry have pursued a variety of strategic patenting including combination inventions and broadly claimed inventions to maintain their competitive position by extension of the market exclusively beyond the legitimate scope initially granted by the patent within the current regulatory framework. Recently, their questionable patents have been challenged through patent invalidation trials brought by prospective infringers, claiming that the …

Software Patentability After Prometheus, Joseph Holland King

Georgia State University Law Review

This Note examines the history of patentability of abstract ideas and the tests that courts have used to make the determination of whether an invention incorporating an abstract idea is patentable. Part I provides a history of the four seminal cases related to patentable subject matter, as well as some more recent on point decisions. Part II changes focus to the various tests and factors that have been used by the courts, exploring the history of each, discussing the treatment by the Supreme Court, and determining the strengths and weaknesses of each. Based on the discussion in Part II, Part …

Drugged Out: How Cognitive Bias Hurts Drug Innovation, Cynthia M. Ho

San Diego Law Review

This Article hopes to provide a balanced picture of how current patent law and policy promotes mostly modest, yet high priced new drugs, as well as how cognitive biases have perpetuated this situation. This Article highlights the important interplay of cognitive biases not only by the frequently maligned industry but also previously presumed neutral parties, such as academics and policymakers. Most scholars would likely agree that considering how to optimize or at least not distort innovation is an important part of legal scholarship. However, to date, there has been little recognition, let alone robust discussion, of how patent and related …

Regulatory Monopoly And Differential Pricing In The Market For Patents , Neel U. Sukhatme

Washington and Lee Law Review

Patents are limited-term monopolies awarded to inventors to incentivize innovation. But there is another monopoly that has been largely overlooked at the heart of patent law: the monopoly of the U.S. Patent and Trademark Office (PTO) over the granting of patents. This Article addresses this topic by developing the notion of a regulatory monopoly, where a single governmental actor has the power to set prices in a regulatory area. The Article explains how regulatory monopolists like the PTO could enhance social welfare via differential pricing—by charging regulated entities differing fees based on their willingness and ability to pay. In particular, …

Facing Down The Trolls: States Stumble On The Bridge To Patent-Assertion Regulation , David Lee Johnson

Washington and Lee Law Review

No abstract provided.

Case Study Of Hp To Learn About Ip, Rachel Murphy

Honors Projects

Undergraduate thesis completed for Seattle Pacific University's University Scholars program. This project focuses on patent law as an intersection of engineering and law. Beyond studying the philosophies used to justify the granting of patents, the project attempts to quantify the value of patents as measured by company assignees versus the general public. A case study of patents involved in litigation between Hewlett Packard, Inc. and Repeat-O-Type Stencil Manufacturing Corporation is examined, with visuals generated by a Matlab program that made up a large component of this project.

Access Of Evil? Legislating Online Youth Privacy In The Information Age, Agathon Fric

Canadian Journal of Law and Technology

This article seeks to address what constitutes youth online privacy, how youth conceive of their privacy, whether their privacy needs protecting, and, if so, how youth privacy should be regulated online. First, the article begins by rooting the issue of online youth privacy in the current social, technological, economic, political, and legal context, drawing on social science research to demonstrate both the threats and opportunities created by technology for youth privacy.

Second, the analysis focuses on the relative strengths and weaknesses of current federal legislation as the primary law governing the collection, use, and disclosure of youth’s personal information through …

Combining Familial Searching And Abandoned Dna: Potential Privacy Outcomes And The Future Of Canada's National Dna Data Bank, Amy Conroy

Canadian Journal of Law and Technology

This article aims to respond to the government’s request by explaining the nature of that relationship and by arguing that the combined use of familial searching and analysis of abandoned DNA would present a serious risk for genetic privacy. The risk is particularly acute given that it would effectively circumvent the existing justification for the NDDB, leading to inclusion of individuals whose DNA profiles have not been uploaded directly onto the data bank. To substantiate this main argument, this article proceeds in three parts. The first describes the current Canadian law on familial searching and the ongoing interest in amending …

With Great Power Comes Little Responsibility: The Role Of Online Payment Service Providers With Regards To Websites Selling Counterfeit Goods, J. Bruce Richardson

Canadian Journal of Law and Technology

This article will explain the current avenues for intellectual property rights holders to make use of existing anti-counterfeiting policies made available by financial companies dealing in electronic payments, and argue that current policies, while helpful, are not sufficient. The article will conclude by demonstrating that policy makers have options to intervene and regulate the use of online payment services, either directly through legislation or indirectly through facilitating “best practices.”

The Song Remains The Same: Preserving The First Sale Doctrine For A Secondary Market Of Digital Music, Marco Figliomeni

Canadian Journal of Law and Technology

This article will explore the origins and rationale for the first sale doctrine. A review of the most recent American case law shows the court rejecting the doctrine’s applicability in a digital sphere. I suggest that in spite of the court’s rigid interpretation of the U.S. Copyright Act, formulating a digital first sale doctrine is a matter better left to lawmakers. A flourishing digital secondary market can promote competition and innovation while making content more accessible to the public, but its endorsement requires an appreciation of its adverse effect on the primary market for copyright owners. The article fast-forwards to …

Rethinking Online Privacy In Canada: Commentary On Voltage Pictures V. John And Jane Doe, Ngozi Okidegbe

Canadian Journal of Law and Technology

This article examines the Voltage decision, with the view that the bona fide standard safeguards intellectual property rights at the cost of online privacy rights and will proceed in three parts. Part I provides a brief contextualization of the issues. Part II is an analysis of the Voltage decision. Part III examines how the bona fide standard is a relatively low threshold. This article concludes by considering the possibility of shifting to a higher standard for disclosure, as well as a possible solution for the effect that a higher standard could have on copyright owners.

Ownership Of Intellectual Property, Policy Of The University Of Nebraska Board Of Regents, University Of Nebraska Board Of Regents

Institutional Repository Information

The prompt and open dissemination of the results of research undertaken at the University of Nebraska and the free exchange of information among scholars are essential to the fulfillment of the University's obligations as an institution committed to excellence in research, education, and service. Matters of ownership, distribution, and commercial development nonetheless arise in the context of technology transfer, which is also an important aspect of the University's commitment to public service. The University of Nebraska as a public institution has a responsibility to recognize the State’s contribution of tax support for research and creative activity by devoting an appropriate …

To Sign Or Not To Sign: What Makes The Difference Vis-A-Vis Access Copyright?, Margaret Ann Wilkinson, Rob Tiessen

Law Presentations

No abstract provided.

Licence Agreements And Copyright: An Examination Of The Issues, Lisa Di Valentino

FIMS Presentations

In this presentation I will discuss some of the factors that are relevant to an understanding of the relationship between copyright and private ordering of legal obligations such as licensing agreements and technological protection measures. I will conclude that there is a strong argument to be made that provisions purporting to limit fair dealing and other exceptions may be unenforceable.