Intellectual Property Law Commons^™

Exporting Internet Law Through International Trade Agreements: Recalibrating U.S. Trade Policy In The Digital Age, Markham C. Erickson, Sarah K. Leggin

Catholic University Journal of Law and Technology

No abstract provided.

The Connected State Of Things: A Lawyer’S Survival Guide In An Internet Of Things World, Antigone Peyton

Catholic University Journal of Law and Technology

No abstract provided.

Baring All: Legal Ethics And Confidentiality Of Electronically Stored Information In The Cloud, Whitney Morgan

Catholic University Journal of Law and Technology

No abstract provided.

Wearable Devices As Admissible Evidence: Technology Is Killing Our Opportunity To Lie, Nicole Chauriye

Catholic University Journal of Law and Technology

No abstract provided.

Condemning Clothes: The Constitutionality Of Taking Trademarks In The Professional Sports Franchise Context, Mitchell Diles

Washington and Lee Law Review Online

The resurgence in franchise free agency in the National Football League (NFL) potentially implicates the loss of a significant source of local identity and tradition for multiple cities. In January 2016, NFL owners approved the relocation of the Rams franchise from St. Louis, Missouri, to Los Angeles, California, by a vote of thirty-to-two. The owners’ vote also potentially implicates the relocation of the San Diego Chargers and the Oakland Raiders. Though applauded by numerous sports commentators, athletes, and fans, the vote reflects the failure of negotiations between the City of St. Louis and the Rams organization. The approval also sets …

A Functional Approach To Copyright Policy, Robert E. Suggs

University of Cincinnati Law Review

No abstract provided.

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

“Going Viral” By Stealing Content: Can The Law Cure The Problem Of Viral Content Farming?, Sara Gates

Fordham Intellectual Property, Media and Entertainment Law Journal

Part I introduces the concept of viral content farming, examines its origins, points out how it differs from aggregation, and consid-ers the purpose behind the practice. The Part looks at how compa-nies such as Google and Facebook have responded, and examines the overall impact on journalism and the Internet. Part II presents a possible ethical solution within the journalism industry and consid-ers resolutions in the law by describing the “hot news” misappro-priation doctrine and copyright law. Part III scrutinizes three pro-posals and discusses why copyright law is the most appropriate solution to the problem, then analyzes content farming within the …

State Anti-Slapps And Erie: Murky, But Not Chilling, Yando Peralta

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note compares the different treatment of state anti-SLAPP laws in federal courts, especially in light of the Supreme Court’s decision in Shady Grove. This Note posits two reasons why special motions to dismiss should not apply in federal courts sitting in diversity jurisdiction. First, state anti-SLAPPs conflict directly with Rules 12 and 56 of the Federal Rules of Civil Procedure because these Federal Rules directly address the question as to dismissal on the pleadings and on summary judgment. Second, a finding that the state anti-SLAPP procedures conflict with the Federal Rules will not frustrate legislatures’ interests in swatting down …

A Long-Overdue Reform: China’S Grant-Back Regime In Technology Transfer, Xiaoqiong Liu

Fordham Intellectual Property, Media and Entertainment Law Journal

Technology transfer occurs when the owner of a technology grants access to that technology to another party. Today, companies consider technologies—as opposed to physical assets—the most important business assets that are directly tied to their products’ competitiveness. Intellectual property (“IP”) law protects those technologies. One type of technology transfer is contract manufacturing, where foreign companies employ Chinese companies to manufacture products for the Chinese markets. Contract manufacturing is beneficial to foreign companies because it saves them shipping costs and time. To facilitate contract manufacturing in China, however, foreign companies—often the owners of the technologies—must authorize Chinese companies access to their …

The Political Economy Of The Research Exemption In American Patent Law, Nicholas Short

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article approaches the research exemption, and related legal developments, as a case study in the political economy of patent law. Part I recounts the history of the research exemption, touching briefly on historical origins but emphasizing developments since the 1970s in legislative, executive, and judicial forums. It also examines changes during the same time frame in related areas of patent law, like the Bayh-Dole legislation and the attempted repeal of state immunity from patent infringement liability. These legal developments indirectly affected the research exemption, or implicated similar concerns about imbalance in the patent system and the use of patents …

Trademark’S Ebay Problem, Peter J. Karol

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article addresses the current debate over whether to extend, to trademark law, the rule in eBay, Inc. v. MercExchange, L.L.C. denying prevailing patent plaintiffs presumptive entitlement to injunctive relief. Its central concern, however, is not whether or how eBay should apply to trademark law, but rather the way in which the debate resurfaces structural flaws undermining foundational provisions of the Lanham Act. Namely, the Act purports to grant ex ante exclusive rights to mark owners against all confusingly similar uses, but then reserves discretion to district courts to deny statutory injunctive relief without further guidance. This ambiguity, a familiar …

National Security Or Consumer Privacy? A Question Even Siri Couldn’T Answer, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

A Passion For Fashion: The International Trade Commission Should “Step Up” Its Role In The Enforcement Of Design Patents, Nikki Rigl

University of Miami International and Comparative Law Review

No abstract provided.

Copyright In A Nutshell For Found Footage Filmmakers, Brian L. Frye

Law Faculty Popular Media

Found footage is an existing motion picture that is used as an element of a new motion picture. Found footage filmmaking dates back to the origins of cinema. Filmmakers are practical and frugal, and happy to reuse materials when they can. But found footage filmmaking gradually developed into a rough genre of films that included documentaries, parodies, and collages. And found footage became a familiar element of many other genres, which used found footage to illustrate a historical point or evoke an aesthetic response.

It can be difficult to determine whether found footage is protected by copyright, who owns the …

Patent Uncertainty: Toward A Framework With Applications, Keith N. Hylton

Faculty Scholarship

There are three essential sources of uncertainty in the patent system: perceived uncertainty due to selective sampling (“statistical artefact uncertainty”), inherent uncertainty, and strategic uncertainty. It is only the strategic uncertainty source that should be of concern to reformers. With respect to this source, uncertainty in the patent system is largely a function of two variables: the degree of inherent abstraction associated with the patent, and the degree to which the patent provides notice of its scope. The maximal degree of uncertainty is observed in the category of abstract patents with poor notice, a category dominated today by software patents. …

Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight

Law Student Publications

This comment's purpose is to explore whether the principles announced in Kirtsaeng should apply to the patent exhaustion doctrine. Part I begins by examining the history of patent exhaustion jurisprudence. It also introduces the competing theories international exhaustion and territorial exhaustion. Part II analyzes the effect of the recent Supreme Court decision in Kirtsaeng on the exhaustion doctrine in copyright. Part III contends that exhaustion doctrine polices the same practical problems in copyright as it does in patent law. Finally, the conclusion argues for an extension of the Kirtsaeng holding to the patent exhaustion doctrine.

Lost In Translation: How Practical Considerations In Kirtsaeng Demand International Exhaustion In Patent Law, Dustin M. Knight

University of Richmond Law Review

No abstract provided.

A Copyright Right Of Publicity, Reid Kress Weisbord

Fordham Law Review

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging …

Early Filing And Functional Claiming, Paul Gugliuzza

Faculty Scholarship

A major problem in the patent system is that many patents claim far more than the patentee actually invented. In his perceptive article, Ready for Patenting, Mark Lemley argues that this overclaiming is caused in part by legal doctrines that encourage inventors to file a patent application as early as possible, often before — or even instead of — building their invention. Patents issued from early-filed applications, Lemley argues, tend to be overly broad because the applicant does not yet know how the invention actually works.

This response essay, part of the Boston University Law Review’s symposium on Notice Failure …

Bullying And Opportunism In Trademark And Right-Of-Publicity Law, Stacey Dogan

Faculty Scholarship

Lawyers, scholars, and even Congress have lately expressed concern about so-called “trademark bullies” — trademark holders that assert tenuous legal claims against vulnerable defendants, who often capitulate rather than incurring the expense and uncertainty of litigation. At the same time, we’ve witnessed right-of-publicity claims for acts that never would have raised an eyebrow a few decades ago. Complaints about bullying and overreaching are largely anecdotal rather than empirical, so it’s hard to gauge the extent of the behavior and to measure its costs. But the fact that it has attracted so much attention suggests a perception, at least, that some …

From Library To Liability—Importing Trade Secret Doctrines To Erase Unfair Copyright Risks Lurking In Youtube’S Creative Commons Library, Adam Balinski

BYU Law Review

No abstract provided.

Sine Qua Non: Trademark Infringement, Likelihood Of Confusion, And The Business Of Collegiate Licensing, C. Knox Withers

Georgia Journal of Law & Technology

No abstract provided.

When A Promise Is Not A Promise: Georgia's Law On Non-Compete Agreements, As Interpreted By The Eleventh Circuit In Keener V. Convergys Corporation, Gives Rise To Comity And Federalism Concerns, Christopher D. David

Georgia Journal of Law & Technology

No abstract provided.

Etw Corp. V. Jireb Publishing, Inc.: Turning An Athlete's Publicity Over To The Public, Michael J. Breslin

Georgia Journal of Law & Technology

No abstract provided.

"Every Artist Is A Cannibal, Every Poet Is A Thief": Why The Supreme Court Was Right To Reverse The Ninth Circuit In Dastar Corp. V. Twentieth Century Fox Film Corp., Joshua K. Simko

Georgia Journal of Law & Technology

No abstract provided.

"What's Really In The Package Of A Naming Rights Deal?" Service Mark Rights And The Naming Rights Of Professional Sports Stadiums, Christian Maximilian Voigt

Georgia Journal of Law & Technology

No abstract provided.

Losing The Forest Among The Trees In The Festo Saga-Rationalizing The Doctrine Of Equivalents And Prosecution History Estoppel In View Of The Historical Justifications For Patent Protection, Ryan Thomas Grace

Georgia Journal of Law & Technology

No abstract provided.

Patent Quality And The Dedication Rule, Scott R. Boalick

Georgia Journal of Law & Technology

No abstract provided.

Does The Lanham Act Lose Meaning For Companies That Operate Exclusively Over The Internet?, Sheila D. Rizzo

Georgia Journal of Law & Technology

This Note will examine the differences between trademark registration and domain name registration, focusing specifically on the terms an applicant may register, the rights associated with those registrations, and the manner in which a registrant may lose, assign, and enforce those rights so that others my not use the same registered terms. This Note will also suggest that a company operating exclusively over the internet may obtain greater rights, and therefore protection, than a typical bricks and mortar company, simply by registering its domain name, and not trademark status.