Intellectual Property Law Commons^™

Fracking Fad: The Morally Ambiguous Method Of Extraction And The Trade Secret Protections Of Its Chemical Formulas, Vince Villio

Journal of Law, Technology, & the Internet

"Hydraulic fracturing (“fracking”) has taken the nation’s political soapbox by storm in the last decade, despite being in practice since the mid-20th century. The recent surge of debate comes from an increasing amount of states passing regulatory schemes for when fracking is used in the extraction of natural gas and other energy producing materials. The regulation of energy extraction has been and continues to be a state issue rather than federal. One of the major concerns of the energy industry with new regulation is the increasing demand for disclosure of the chemicals and processes used in fracking, something the industry …

Occupy Copyright: A Law & Economic Analysis Of U.S. Author Termination Rights, Kate Darling

Buffalo Law Review

No abstract provided.

Where Have All The Patent Lawyers Gone? Long Time Passing..., Kenneth L. Port, Molly R. Littman, Lucas Hjelle

Faculty Scholarship

This article pursues two distinct, but related hypotheses. First, as total LSAT takers decline, we expect to see a decline in the number of new attorneys admitted to the patent bar. Second, as the number of new patent attorneys shrinks and the number of women pursuing engineering degrees increases, we expect that the patent bar will become more female.

In order to test these hypotheses, we gathered and collated data from the Law School Admission Counsel (LSAC) regarding students taking the Law School Admissions Test (LSAT), the United States Patent and Trademark Office (USPTO), the Society of Women Engineers (SWE), …

The Costs And Benefits Of Regulatory Intervention In Internet Disputes: Lessons From Broadcast Signal Retransmission Consent Negotiations, Rob Frieden

UC Law SF Communications and Entertainment Journal

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content commonly called Internet Protocol Television ("IPTV"). While many consumers have become indifferent about their wire line or wireless service provider, they expect their video service providers to offer access anytime, anywhere, via any device, and in any format. These early adopters of new technologies have no patience with the concept of "appointment television" that limits access to a specific time, presentation, and channel. My article offers a clear assessment of whether and how the FCC can resolve disputes that can prevent …

Richard Sherman, Rhetoric, And Racial Animus In The Rebirth Of The Bogeyman Myth, Nick J. Sciullo

UC Law SF Communications and Entertainment Journal

After the Seattle Seahawks won the NFC Championship game, the postgame interview of Richard Sherman, a defensive back for the Seahawks, became subject to racialized discourse in the media. This article draws upon important concepts of black danger, blackness and the media, and racial animus to explain how media pundits and online commentaries about the interview have created a modem-day version of the bogeyman. In so doing, the article theorizes a new logic to racial animus-the myth of the bogeyman-to expound on the confluence of race, law, and sports. This new approach will help to explain covert racism in the …

Recovery Of Nazi-Related Art: Legal Aspects Under German And U.S. Law Exemplified By The Gurlitt Case, Michael Rebholz

UC Law SF Communications and Entertainment Journal

Since November 3, 2013, a case regarding Nazi-looted art-known as the Gurlitt casehas garnered the attention of the media and the art industry in both Germany and the United States. This case arose from German authority's confiscation of approximately 1500 pieces of valuable art found in Cornelius Gurlitt's apartments in Germany and Austria. He claimed that he was the legal owner of the artworks that people believed to have been destroyed during World War It. This article first answers the question of how this case would be resolved under German law by focusing primarily on the question of whether Cornelius …

Transformative Use And The Right Of Publicity: A Relationship Ready For Revision, Justin L. Rand

UC Law SF Communications and Entertainment Journal

The only consistency in right of publicity jurisprudence has been inconsistency. The right can be defined as the ability to control the commercial use of one's identity, and its scope has varied from state to state and era to era. While aspects of the right of publicity partially overlap with copyright and trademark, its historical origins and underlying policy justifications are distinct. Indeed, understanding the unique position of the right has become increasingly important in the digital revolution, where celebrities are vigorously fighting to protect their identities from outside, commercial exploitation. Yet, in their efforts to monetize their names, images, …

Access To Information About Lethal Injections: A First Amendment Theory Perspective On Creating A New Constitutional Right, Clay Calvert, Emma Morehart, Kéran Billaud, Kevin Bruckenstein

UC Law SF Communications and Entertainment Journal

This article examines, through the lens of First Amendment theory, current judicial debate regarding the access rights of inmates and the public to detailed facts about lethal- injection drugs, personnel, and procedures. The article uses several 2014 appellate court disputes as analytical springboards, including the U.S. Court of Appeals for the Ninth Circuit’s groundbreaking decision in Wood v. Ryan. The article argues that the First Amendment doctrine developed by the U.S. Supreme Court in Press-Enterprise II too narrowly cabins and confines access rights in lethal-injection data cases. In contrast, three venerable theories of free expression–the marketplace of ideas, democratic self-governance, …

Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen

UC Law SF Communications and Entertainment Journal

One heavily and contentiously argued clause in Chinese Copyright Law amendment drafts focuses on the practicality of granting authors of audiovisual works the legal right to collect subsequent remunerations (“SRR”) when their works are reused in subsequent exploitations. With the rapid increase of social media channels for the Chinese movie industry, and other entertainment industries relying on a heavy usage of audiovisual work, authors demand that they should be entitled to the profit earned from derivative markets and other media channels beyond the first intended market. In order to balance the conflicting interest between the author and the producer, and …

Why Should We Care What Fitbit Shares?: A Proposed Statutory Solution To Protect Sensitive Personal Fitness Information, Michelle M. Christovich

UC Law SF Communications and Entertainment Journal

This note examines the privacy implications of fitness trackers, devices such as Fitbit, which measure users’ movements, fitness habits, and overall health in granular detail. This note explores the privacy dangers of using fitness trackers generally and in the specific context of the workplace and Big Data. This note also draws parallels between the personal health information protected by the Health Information Portability and Accountability Act (“HIPAA”) and the personal fitness information collected by fitness trackers. This note argues that a statutory scheme, modeled after HIPAA, should be established in order to protect the sensitive personal fitness information gathered by …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Scholarly Works

The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble

Scholarly Works

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.

This Article posits that …

Social Media, Sharing, And Intellectual Property Law, Leah Chan Grinvald

Scholarly Works

No abstract provided.

Policing The Cease-And-Desist Letter, Leah Chan Grinvald

Scholarly Works

Americans are renowned for being litigious. But only less than three percent of all disputes end up in court, and a paltry one percent of all filed lawsuits end with a decision on the merits. The reason for this paradox is that most disputes take place outside of the judicial system, and further, most disputes start and end with a cease-and-desist letter. This is particularly the case in the intellectual property area, where seasoned attorneys admit that much of their practice revolves around cease-and-desist letters. Although there is much to favor in the private resolution of disputes, there are economic …

Are We Serious About Performers' Rights?, Mary Lafrance

Scholarly Works

Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Institutionalizing The Uspto Law School Clinic Certification Program For Transactional Law Clinics, Jennifer S. Fan

Articles

With 188 transactional law clinics nationwide and the United States Patent and Trademark Office (“USPTO”) Law School Clinic Certification Program (“Program”) recently established as a statutory program of the USPTO, this Article argues that every transactional clinic that works on trademark and patent applications should apply to become part of the Program. In satisfying the participation requirements of the Program, transactional law clinics will usher in a new, uniform way to educate aspiring intellectual property attorneys. As a result, the law students will not only be “practice ready,” but also more effective attorneys once they are in practice. Participating in …

Financing Innovation: Legal Development Of Intellectual Property As Security In Financing, 1845–2014, Xuan-Thao Nguyen

Articles

There is a need for both traditional and online lenders to appreciate the intellectual property assets held by small businesses. The intellectual property assets should be included in the analytics in assessing the overall health of a business seeking a loan or a line of credit for its new innovative product, idea, or vision. The Article ends with a brief conclusion that in order to maintain the United States’ innovative edge, attention to the access to financing by small businesses must be at the center of the discussion, and intellectual property must be recognized as part of that center.

In The Stewardship Of Business Model Innovation, Robert W. Gomulkiewicz

Articles

Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism.

The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that …

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 …

The Overlooked French Influence On The Intellectual Property Clause, Sean M. O'Connor

Articles

The Intellectual Property Clause (“IP Clause”) of the US Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive property rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “Science” and “useful Arts” do not cleanly map onto the subject matter of current patent and copyright systems.

As the Supreme Court has noted, under popular usage of the terms “arts” and “science,” one would expect patents to promote science and copyrights to promote arts, yet we know from the historical record that exactly the …

Brief Of Thirty-Four Law Professors As Amici Curiae In Support Of Appellants: Altera Corp. V. Papst Licensing Gmbh, Christopher B. Seaman

Scholarly Articles

The amici curiae are law professors who teach and write on civil procedure and/or patent law and policy. As such, amici are interested in the effective functioning of the courts and the patent system in general. Amici believe that this Court’s rigid rule restricting personal jurisdiction in patent declaratory judgment actions both flouts Supreme Court precedent and frustrates the public policy of clearing invalid patents. Although amici hold different views on other aspects of modern patent law and policy, they are united in their professional opinion that this Court should overturn its inflexible jurisdictional rule.

Brief Amicus Curiae Of Intellectual Property Professors In Support Of Neither Party: Halo Elecs. Inc. V. Pulse Elecs. Inc. And Stryker Corp. V. Zimmer, Inc., Christopher B. Seaman, Jason Rantanen

Scholarly Articles

This amicus brief was filed on behalf of several intellectual property law professors in Halo v. Pulse and Stryker v. Zimmer regarding the appropriate standard for enhancing (increasing) damages under section 284 of the Patent Act, 35 U.S.C. § 284. It advances three primary arguments. First, it asserts that in light of the history of the statutory text and judicial precedent, willful infringement is the appropriate standard (and thus the only valid basis) for awarding enhanced damages under § 284. Second, it contends that Federal Circuit’s two-part, objective/subjective test for determining willfulness articulated in In re Seagate Technology, LLC, …

All Your Air Right Are Belong To Us, Chad J. Pomeroy

Northwestern Journal of Technology and Intellectual Property

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection – that of air rights and invasion of privacy. This is a timely topic due the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.

This is not as straightforward a thesis …

Patent Law: Cases & Materials ~ Version 2.0, Joseph S. Miller

Books

The book contains edited cases, patent figures, and excerpts, along with brief introductions on patent law. This book is designed for use in close conjunction with a specific softcover hornbook published by Wolters Kluwer, Janice Mueller’s, Patent Law, Fourth Edition (Aspen Student Treatise Series 2013). If you decide to use this case collection to teach a course of your own — as I hope people will — please check back to ensure that you have the most up-to-date version. This version, which is 2.0, was posted in June 2015.

Reproduced and linked with permission of the author.

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

The Private Life Of Drm: Lessons On Privacy From The Copyright Enforcement Debates, Rebecca Wexler

Faculty Scholarship

This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of …