Intellectual Property Law Commons^™

The First Patent Litigation Explosion, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Research Software Sustainability: Report On A Knowledge Exchange Workshop, Simon Hettrick

Copyright, Fair Use, Scholarly Communication, etc.

Without software, modern research would not be possible. Understandably, people tend to marvel at results rather than the tools used in their discovery, which means the fundamental role of software in research has been largely overlooked. But whether it is widely recognised or not, research is inexorably connected to the software that is used to generate results, and if we continue to overlook software we put at risk the reliability and reproducibility of the research itself. The adoption of software is accompanied by new risks - many of which are unknown to the majority of the research community. The practices …

Introductory Discussion, University Of Nebraska-Lincoln, Lincoln, Ne, July 12, 2017 (2017 Nebraska Acrl Scholarly Communication Roadshow, University Of Nebraska-Lincoln), Joy Kirchner, William Cross

Copyright, Fair Use, Scholarly Communication, etc.

Scholarly communication: From understanding to engagement. "To set the tone for the day, introduce yourselves and start sharing!" Includes a list of four questions intended to get the conversation started.

Copyright Law And The Supply Of Creative Work: Evidence From The Movies, Ivan Paak Liang Png, Qiu-Hong Wang

Research Collection School Of Computing and Information Systems

There is almost no empirical evidence on the extent to whichcopyright law works in the sense of increasing the production of creative work.Here, we study the impact of two major changes in copyright law – the extensionof copyright term and the European Rental Directive – on the production ofmovies. In a panel of 23 OECD countries, among which 19 extendedcopyright term at various times between 1991–2005, we found no statisticallyrobust evidence that copyright term extension was associated with higher movie production.In a panel of 17 European countries between 1991–2005, wefound no statistically robust evidence that compliance with the RentalDirective was …

The Rise And Fall Of The Patent Trolls: How They Lost The Public Relations Battle, Liz Weber

Journalism

Patent trolls gained notoriety in the early 2000s as many nine- and even 10-digit patent infringement settlements made headlines. Trolls claim they are helping inventors get the compensation they deserve for their inventions, while opponents claim trolls are parasites on successful businesses who want glittering pots of gold in exchange for doing absolutely nothing. As the debate continues and parties on both sides continue to call for patent reform, the question arises: what is best of the IP overall market? And how can patent trolls utilize communications best practices to ensure their message is convincingly conveyed to key influencers who …

Technical Speech: Patents, Expert Knowledge, And The First Amendment, Feroz Ali

Minnesota Journal of Law, Science & Technology

No abstract provided.

Limiting Downstream Effects Of Patent Licensing Activity In Software And Electronics: An Argument For Alienability Of Patent Licenses To Licensees' Business Successors, Anna A. Onley

Chicago-Kent Law Review

Frustrating the ability to transfer ownership is costly, and non-creative entities (NCEs) may contribute to rising costs of innovation by contractually requiring their licensees to seek NCE consent to subsequent license transfers. One possible way of gradually limiting the reach of NCEs in this area is to expand the doctrine of patent misuse—which supports the unenforceability defense to patent infringement—to construe restraints on alienation of patent licenses as patent misuse. This narrowly tailored approach, discussed in this Note, minimizes the risk of negative impact on the patent system because it avoids the question of patent invalidity and does not seek …

Copyrightx: Harvard University Law School, Sue Ann Gardner

University of Nebraska-Lincoln Libraries: Presentations

Slides of a talk about the 2014 iteration of the CopyrightX course administered by Professor William Fisher of Harvard University Law School.

Patent ‘Reform’: What We Need First Is A Role Reversal, Kristen Osenga

Law Faculty Publications

I have often argued that we do not need so-called patent “reform.” But I’ve had a change of heart. We absolutely need patent reform, but not the kind proposed in the Innovation Act, H.R. 9, and the PATENT Act, S. 1137. To get the real kind of reform that will encourage a strong and vibrant innovation economy, we first need a role reversal. Let me explain.

Aereo And Internet Television: A Call To Save The Dukes (A La Carte), Pooja Patel

Duke Law & Technology Review

If it looks like a duck, swims like a duck, and quacks like a duck, it is probably a duck. The most recent U.S. Supreme Court decision regarding the Copyright Act employed this “duck test” when determining that Aereo, an Internet content-streaming company, violated the Copyright Act by infringing on the copyrights of television broadcast networks. The Supreme Court ruled that Aereo's Internet streaming services resembled cable television transmissions too closely. Therefore, by streaming copyrighted programming to its subscribers without the cable compulsory license, Aereo violated the Transmit Clause of the 1976 Copyright Act. Subsequently, Aereo used this Supreme Court …

Third Circuit Takes The Wind Out Of Frivolous Litigators' Sails In Fair Wind Sailing, Inc. V. Dempster, Travis Dunkelberger

Villanova Law Review (1956 - )

No abstract provided.

Brief Amici Curiae Of 37 Intellectual Property Professors In Support Of Petition For Certiorari, Mark A. Lemley, Mark Mckenna

Court Briefs

No. 15-777
Samsung Electonics Co., Ltd. v. Apple Inc.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit

From the Summary of Argument:

This case presents two issues that justify this Court’s review.
First, the Federal Circuit upheld a finding of design patent infringement based on the very same Apple designs that it found functional under trade dress law. Such a counterintuitive outcome is possible because the Federal Circuit has constructed a highly constrained definition of functionality in design patent law, which is at odds with this Court’s precedent in both utility …

Requiring Plaintiffs To Prove Irreparable Harm: “It Isn’T Right.” (Herb Reed Enters, Llc V. Fla Entm’T Mgmt. Inc. (9th Cir.2013)), Anthony Kremer

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Dtsa: A Federal Tort Of Unfair Competition In Aerial Reconnaissance, Broken Deals, And Employment, Stephen Y. Chow

Washington and Lee Law Review Online

This Essay critiques the creation by the 114th Congress of a federal private right of action under the Defend Trade Secrets Act for the state unfair competition cause of trade secret misappropriation hitherto applied mostly to breaches of express or implied confidential relationships between businesses or with employees. The proposed insertion of the Uniform Trade Secrets Act definition of “misappropriation,” including acquisition by “improper means” exemplified by state commercial mores’ expectation of privacy from aerial reconnaissance, into the Economic Espionage Act framework of theft of a more narrowly defined “trade secret” of a defined “owner,” including such actions abroad by …

Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong

The University of Cincinnati Intellectual Property and Computer Law Journal

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and …

The Pre-1972 Sound Recordings Landscape: A Need For A Uniform Federal Copyright Scheme, P. Dylan Jensen

UC Law SF Communications and Entertainment Journal

Since the rapid expansion of the Internet in the 1990s and through the 2000s, Internet entrepreneurs and technology companies continue to discover new ways to offer music online for free. A large portion of the music offered by these services was created prior to 1972, the year the Sound Recordings Act of 1971 established as the cut-off for federal copyright protection. These pre-1972 sound recordings are covered by a patchwork of state and common law, which varies greatly from state to state. Though some music services have shielded themselves with the safe harbor provision offered to Online Service Providers ("OSPs") …

Will The Federal Communications Commission’S 2015 Open Internet Order Receive Chevron Deference?, John Meisel

UC Law SF Communications and Entertainment Journal

In 2015, the Federal Communications Commission ("FCC") decided to reclassify broadband Internet service as a telecommunications service subject to Title II regulations contained in the Communications Act. This decision is currently under review by a three­ person panel of judges for the D.C. Circuit. A key question in the review will be whether the FCC's reclassification decision is eligible for Chevron deference. The answer to this question will likely be based on lessons learned from similar cases dealing with Chevron deference that the Supreme Court has addressed. For instance, the fact that the reclassification decision is likely to be characterized …

There’S No R In Smoking: A Modified Rating System To Curb Adolescent Smoking, Amanda E. Beckwith

UC Law SF Communications and Entertainment Journal

Smoking is the most common preventable causes of death in the United States and costs society billions of dollars each year. Most smokers become addicted at a young age, but often have no legal remedy from smoke-related injuries. Smoking in movies is a significant factor in the initiation of youth smoking, yet the Motion Picture Association of America ("MPAA") does not factor "smoking" into movie ratings. This note argues that in order to reduce the harmful effects of youth smoking, movies with depictions of cigarettes should be rated R. In order to pressure the MPAA into making this change, potential …

Protecting Journalists From Politically Motivated Claims Of Espionage Under International Law, Allison Brinkerhoff

UC Law SF Communications and Entertainment Journal

Currently, there is not a uniform international standard for the protection of journalists against politically motivated claims of espionage, and this void allows governments to cloak politically motivated claims of espionage as a "national security threats." The purpose of this article is to propose amending the International Covenant on Civil and Political Rights ("ICCPR"), to remove the void, by making Article 19 a nonderogated right for journalists who are reporting and participating in political expression.

Web Accessibility For Impaired Users: Applying Physical Solutions To Digital Problems, Deeva V. Shah

UC Law SF Communications and Entertainment Journal

Title III of the Americans with Disabilities Act ("ADA") aims to prevent discrimination against the disabled in places of public accommodation. Unlike many other anti­ discrimination statutes, the ADA requires places of public accommodation to take affirmative steps to ensure access for the impaired. Courts currently differ on whether a place of public accommodation requires a physical location or whether nonphysical places, such as a retailer's website, also fall under the statute. Some courts apply the nexus test to determine the whether the ADA applies to online content. Under the nexus test, there must be a connection between a physical …

Undetected Conflict-Of-Laws Problems In Cross-Border Online Copyright Infringement Cases, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented her paper, “Undetected Conflict-of-Laws Problems in Cross-Border Online Copyright Infringement Cases" at the 16th Annual Intellectual Property Scholars Conference held at Stanford Law School in Palo Alto, CA, on August 12, 2016. The presentation was one of five in a session devoted to Empirical Copyright.

Abstracts and information about other sessions at the conference are available on the Intellectual Property Scholars Conference website.

Trademark's Ebay Problem, Peter J. Karol

Law Faculty Scholarship

This article explores the upheaval created within trademark law by eBay, Inc. v. MercExchange, L.L.C., asking why a simple doctrinal question (Should a patent remedies rule be extended to trademark cases?) has posed such problems for the courts. After a thorough review of past and present trademark injunction practice, and the Lanham Act’s legislative history, it finds that trademark law’s inability to assimilate eBay stems from unresolved substantive conflicts in the underlying legislation itself. In short, because the drafters could not settle on the proper scope of a federal trademark right, they hedged by granting a national exclusive right limited …

Community Economic Development, Legal Clinic Program

Course Descriptions and Information

This clinic emphasizes transactional practice skills. This clinic provides short term counseling in a broad range of small business matters such as corporations, limited liability companies, partnerships, intellectual property, copyright, trademark, privacy law, nonprofit organizations, art groups as well as the legal requirements for starting a small business. Students provide direct legal assistance, counseling, representation, community legal education, and informational materials to new and mature for-profit and non-profit organizations, individuals and community groups seeking to better the economic, social, equitable and cultural well-being of low income communities.

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

Improving Technology Neutrality Through Compulsory Licensing, Jake Linford

Scholarly Publications

No abstract provided.

Unh School Of Law Ip Library: 20th Anniversary Reflection On The Only Academic Ip Library In The United States, Jon R. Cavicchi

Law Faculty Scholarship

[Excerpt] The UNH School of Law Intellectual Property Library celebrates its twentieth anniversary this year. It is a fortuitous time for this look back and for strategic considerations for the future. This anniversary comes at a time in the history of legal education when conditions over the past few years have intensified the analysis of mission and resources for law school libraries. This article is a retrospective review of the history and dynamics surrounding the founding and first twenty years of growth. It is also an analysis of the future growth and mission of the IP Library during times that …

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …

Copyright In Higher Education: A Review Of Modern Scholarship, Jacob H. Rooksby

Duquesne Law Review

No abstract provided.

Plagiarism Is Not A Crime, Brian L. Frye

Duquesne Law Review

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.

Patent Anticipation And Obviousness As Possession, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

The concept of possession in property law operates to allocate property rights among competing claimants by awarding the property to the first to take possession. Possession in this context requires an act that communicates to third parties that someone has exercised dominion over the item. Patent law operates in similar ways. Inventors must disclose their invention in the patent document to memorialize what their creation is. This disclosure communicates to third parties the innovation over which the patent owner is asserting dominion. Patent law has similar first-in-time dynamics, awarding the patent among competing applicants to the first-to-invent under the 1952 …