Intellectual Property Law Commons^™

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other …

Creators, Innovators, And Appropriation Mechanisms, Sean M. O'Connor

Articles

Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who are …

Should All Drugs Be Patentable?: A Comparative Perspective, Cynthia M. Ho

Vanderbilt Journal of Entertainment & Technology Law

Although there has been substantial discussion of the proper scope of patentable subject matter in recent years, drugs have been overlooked. This Article begins to address that gap with a comparative perspective. In particular, this Article considers what is permissible under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as how India and Canada have utilized TRIPS flexibilities in different ways to properly reward developers of valuable new drugs, while also considering the social harm of higher prices beyond an initial patent term on drugs.

This Article brings valuable insight into this area at a critical …

Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols

Vanderbilt Journal of Entertainment & Technology Law

The Ninth Circuit's opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit's holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the "likelihood of confusion" test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit's opinion …

2014 Trademark Law Decisions Of The Federal Circuit, Jonathan M. Gelchinsky

American University Law Review

No abstract provided.

The Supreme Court's Tightening Of Patent Definiteness & The Impact Of Nautilus V. Biosig On The Software Patent Industry, Maliha Khan

American University Business Law Review

No abstract provided.

The Economics Of Reasonable Royalty Damages: The Limited, Proper Role Of The So-Called “Analytical Method”, 49 J. Marshall L. Rev. 1 (2015), Mark Glick, David Mangum

UIC Law Review

No abstract provided.

Professional Video Gaming: Piracy That Pays, 49 J. Marshall L. Rev. 217 (2015), Elizabeth Brusa

UIC Law Review

This Comment will focus on the legal implications of end user gamers who profit from the infringing use of copyrighted video gameplay content.

Troubleshooting Legal Malfunction: Lexmark And Consumer Standing Under The Lanham Act, 48 J. Marshall L. Rev. 453 (2015), Jeremy Rovinsky

UIC Law Review

This article suggests that the recent Lexmark decision, while resolving the confusion relating to Lanham Act standing requirements, does nothing to protect those most vulnerable—the consumers. Congress must explicitly declare that consumers have standing under the Lanham Act when they have been damaged by purchasing falsely represented goods or services. Section I provides a history of the Lanham Act and illustrates how different courts initially allowed and then precluded consumers from bringing claims under Section 43(a)’s “any person” language. Section II critiques the opinions that have found no consumer standing, including the Supreme Court’s recent Lexmark decision. Section III highlights …

The Insufficiency Of The Musical Instrument Passport Program Under Cites And The Lacey Act: The Need For A Centralized Wood Title Certification System For Manufactured Wood Products And Wooden Musical Instruments, 48 J. Marshall L. Rev. 495 (2015), Joseph Furlett

UIC Law Review

This comment begins with overviews of the Lacey Act, the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES), and the Endangered Species Act of 1973 (ESA). The purpose of this background information is to provide context for the recent creation of a “passport” system for musical instruments to protect them from confiscation based on violations of CITES and the Lacey Act. This comment will then analyze the inherent flaws in the current passport system and describe the difficulties facing corporations and individual consumers as they try to navigate current laws that affect musical instruments. This …

Patent Law Challenges For The Internet Of Things, W. Keith Robinson

Faculty Journal Articles and Book Chapters

In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (“IoT”). The IoT is broadly defined as technology that allows everyday devices to (1) become “smart” and (2) communicate with other smart devices. Estimates indicate that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent …

The Local Rules Of Patent Procedure, Megan M. La Belle

Scholarly Articles

Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it …

Who's The Vandal? The Recent Controversy Over The Destruction Of 5pointz And How Much Protection Does Moral Rights Law Give To Authorized Aerosol Art?, Susanna Frederick Fischer

Scholarly Articles

This paper considers the extent to which federal moral rights law protects authorized graffiti and aerosol art against destruction, in the context of the controversy over the destruction of 5Pointz. 5Pointz, a sprawling complex of warehouse buildings in Queens, was a Mecca for aerosol art. The buildings’ owners ordered the demolition of 5Pointz after the November 2013 order by New York federal district judge Frederic Block denying the artists a preliminary injunction to stop destruction under the federal moral rights statute, the Visual Artists Rights Act (VARA). This paper argues that Judge Block erred in finding that the transient nature …

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

The Policy And Targets Of Criminal Enforcement Of Intellectual Property Rights In China And The United States, Haiyan Liu

Washington International Law Journal

This comparative study analyzes the targets, consequences, and influence factors of the criminal enforcement of intellectual property rights in the United States and China. The analysis reveals unexpected consequences when transplanting Western intellectual property law in Chinese contexts. Similarities in criminal enforcement between the two countries indicate that economic factors that are determinant forces in both the United States and China. These factors include such business practices as: (1) vehement business lobbying and the capture of enforcement agencies by top trademark corporations; (2) the size and market concentration level of top firms in an industry; and (3) trade association lobbying …

Supreme People's Court Annual Report On Intellectual Property Cases (2013) (China), Tong Li, Xiaohan Lou, Zhenan Wang, Qiuwen Xu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April of each year, summarize and review new intellectual property cases. This translation includes all 30 cases and 39 legal issues of the 2013 Annual Report. It addresses patent law, trademark law, copyright law, unfair competition, contractual intellectual property rights, liability of intellectual property infringement, and intellectual property litigation procedure and evidence. While China is not a common law country, these cases and guidelines provide lower courts with meaningful insight and direction.

You Can Use Hidden Recorders In Florida, Thomas R. Julin, Jamie Z. Isani, Paulo R. Lima

UC Law SF Communications and Entertainment Journal

The Florida Supreme Court faces a difficult decision in McDade v. State. The court must decide whether the statements recorded on a hidden recording device can be used to convict a man accused of sexually assaulting his step-daughter. This article traces the controversial history of Florida's Security of Communications Act and shows that it does not in ban the use of secret recordings of face-to-face conversations by any part to the conversations. The Florida courts, however, have misread the law for decades and this article urges the Florida Supreme Court to set the record straight in McDade. This article argues …

Talent Managers Acting As Agentsrevisited: An Argument For California's Imperfect Talent Agencies Act, Myles L. Gutenkunst

UC Law SF Communications and Entertainment Journal

Talent managers in California have traditionally faced severe penalties under the Talent Agencies Act (TAA) for simple acts of procuring employment for their artist-clients. Commentators, interest groups, and justices have pointed out these flaws and proposed alternative remedies to provide managers with some equity when violating the statute. These advocates have argued for an adoption of the incidental booking exception that is present in New York's employment agency statutes. However, this proposal and other proposed alternatives actually undercut the policy that the Talent Agencies Act seeks to protect. This note will compare California's TAA and New York's employment agency laws, …

Digital Music Garage Sale: An Analysis Of Capitol Records, Llc V. Redigi Inc. And A Proposal For Legislative Reform In Copyright Enabling A Secondary Market For Digital Music, Nicholas Costanza

UC Law SF Communications and Entertainment Journal

In 2011, ReDigi, Inc., a Massachusetts-based tech company, created the first resale marketplace for lawfully purchased digital music. This "digital resale" platform immediately drew the attention of copyright holders in the music industry. In early 2012, Capitol Records, LLC sued ReDigi, claiming that the service violated Capitol's exclusive rights to reproduction and distribution of their copyrighted words under the Copyright Act of 1976. Ultimately, the United States District Court for the Southern District of New York held in favor of Capitol. This note explains this case and discusses the complex relationships between "secondary digital market" technology and current copyright law. …

Proxy.Gov: A Proposal To Modernize Shareholder Lists And Simplify Shareholder Communications, Kevin Kearney

UC Law SF Communications and Entertainment Journal

The SEC is conducting a comprehensive reevaluation of the U.S. corporate proxy system. One issue under the SEC's microscope is public companies' inability to communicate directly with shareholders. When stock trading migrated to the depository system, securities intermediaries undertook the book-entry settlement function. As a result, a public company issuer today cannot identify who holds the right to vote its shares without going through intermediary proxy service providers. Public companies thus communicate with shareholders through a proxy system that is indirect, inefficient, and expensive. Commentators, including issuers, believe that recent developments in the corporate governance landscape require a system that …

Conflict In The Network Of Networks: How Internet Service Providers Have Shifted From Partners To Adversaries, Rob Frieden

UC Law SF Communications and Entertainment Journal

This paper will examine new models for the carriage of Internet traffic with an eye toward providing insights on how the interconnection process has changed and what positive and negative consequences have resulted. Internet carrier interconnection used to constitute a cooperative undertaking, but now it increasingly requires difficult and protracted negotiations between ventures that consider themselves adversaries in a winner take all transaction. The paper concludes that new commercial arrangements, such as paid peering, can achieve mutually beneficial outcomes. However, the paper also identifies instances where migration from traditional interconnection arrangements has the potential to reduce overall utility of the …

“Fair Compensation” In The Digital Age: Realigning The Audio Home Recording Act, Monica Zhang

UC Law SF Communications and Entertainment Journal

This note examines how the Audio Home Recording Act of 1992 falls short of providing “fair compensation” due to copyright owners in the digital age under the Copyright Act. The note focuses on the narrow language of the statute and the impact on royalties generated, as well as the shifts in global music consumption that reveal a pressing need for expansion. By examining how Canada and Finland have enacted similar statutes with forward-looking royalty structures, this note suggests better alternatives to our current model by expanding the royalty-bearing pool to truly provide “fair compensation” to recording artists and record labels …

Association For Molecular Pathology V. Myriad Genetics, Inc.: Progress By Principles, Emily J. Bolyard

Journal of Health Care Law and Policy

In Association for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court considered whether human genes are patentable under the Patent Act of 1952. Originally enacted in 1790, the Act allows patents to be granted on any new and useful process, machine, manufacture, or composition of matter, barring a judicially created exception for laws of nature, natural phenomena, and abstract ideas. These three naturally occurring things are nonpatentable because they create the foundation of scientific and technological work. In Myriad, the Court unanimously held that isolated DNA is nonpatentable, since such DNA is naturally occurring phenomena under the …

Living With Monsanto, 2015 Mich. St. L. Rev. 559 (2015), Daryl Lim

UIC Law Open Access Faculty Scholarship

Bowman v. Monsanto Co. signaled the end of an era of seed saving. Farmers must buy new seed for replanting or risk patent infringement. The familiar rhetoric of oppressed farmers belies the fact that Monsanto’s success rests in part on farmers prizing its innovations. Current trends indicate that this reliance on Monsanto will continue. The Supreme Court correctly found for Monsanto. However, future cases must iron out the kinks in the Bowman decision. Despite the Court’s best intentions, inadvertence cannot shield farmers from patent infringement. The Court must also make it clear that patentees cannot use licensing restrictions to claw …

How Not To Apply The Rule Of Reason: The O’Bannon Case, Michael A. Carrier

Michigan Law Review First Impressions

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

More Than Bric-A-Brac: Testing Chinese Exceptionalism In Patenting Behavior Using Comparative Empirical Analysis, Jay P. Kesan, Alan Marco, Richard Miller

Michigan Telecommunications & Technology Law Review

Although many developing economies are increasingly influencing the global economy, China’s influence has been the greatest of these by far. Once hindered from competition by political and economic restrictions, China is now a major economic player. As China’s economic might has grown, so too has the demand for intellectual property protection for technologies originating from China. In this article, we present a detailed empirical study of Chinese patenting trends in the United States and the implications of these trends for the global economy. We compare these trends to patenting trends from earlier decades. Specifically, we compare Chinese patenting trends to …

Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Robert Kirk Walker, Ben Depoorter

Northwestern University Law Review

Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?,” “Who is an author?,” “What is misappropriation?,” and many other issues essential to copyright. Although courts rarely (if ever) explicitly …

Copyright And Free Expression In China’S Film Industry, Eric Priest

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article analyzes whether copyright, which creates private rights in original expression and is therefore a legal tool for restricting the dissemination of information, exacerbates or undercuts state censorship in China’s film industry. Recent scholarship suggests that copyright law reinforces China’s oppressive censorship regime because both copyright and state censorship erect legal barriers around expressive works. The theory that copyright enhances censorship in China, however, overlooks the immense tension between state attempts at information control and market-supported information production made possible by copyright. This Article demonstrates that the Chinese government does not wield unchecked, top-down control over China’s film industry …

Comments: Not All Is Fair (Use) In Love And War: Copyright Law And Revenge Porn, Kaitlan M. Folderauer

University of Baltimore Law Review

No abstract provided.