Intellectual Property Law Commons^™

Reflection & Next Steps (2017 Nebraska Acrl Scholarly Communication Roadshow, University Of Nebraska-Lincoln), William M. Cross, Jaron Porciello, Elizabeth Brown

Copyright, Fair Use, Scholarly Communication, etc.

How can we sustain our library community? Ideas for reaching out to your institution - students, faculty, administration, other library personnel.

Measuring Impact (2017 Nebraska Acrl Scholarly Communication Roadshow, University Of Nebraska-Lincoln), Jaron Porciello

Copyright, Fair Use, Scholarly Communication, etc.

Excerpt from the slides and presenter's notes:

Helps us see the lifecycle of research - why and how We have a lot of knowledge in this space because we know the resources and systems impact is based on -- we can act as thought leaders.

Scholarly communication cycle involves “evaluating research and other scholarly writings for quality” (ARL, 2013).

Librarians have always been part of the “impact” conversation from the perspective of the ways in which we help people. We provide budding researchers with access to seminal ideas in the field and help established researchers keep current with new information …

Open Education (2017 Nebraska Acrl Scholarly Communication Roadshow, University Of Nebraska-Lincoln), William M. Cross

Copyright, Fair Use, Scholarly Communication, etc.

Excerpts from the slides:

“Open educational resources are teaching and learning materials that are freely available online for everyone to use, whether you are an instructor, student or self-learner.”

Open Textbooks: Traditional textbooks with lessons, exercises, and reference materials.

Many instructors also want better materials:

➢ So all students can participate.

➢ So their voice can shine through.

➢ So their discipline can be represented.

➢ So they can use new technologies and pedagogies.

Consent Decrees In The Streaming Era: Digital Withdrawal, Fractional Licensing, And § 114(I), Steven J. Gagliano

The Journal of Business, Entrepreneurship & the Law

Clear disagreement exists about how best to reconcile the copyright protections afforded to songwriters with the antitrust considerations protecting consumers. Songwriter public performance royalty collections account for over $2 billion in annual U.S. revenue, roughly 90% of which is collected by the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI). ASCAP and BMI are performance rights organizations (PROs) regulated by seventy-five-year-old consent decrees. After the Second Circuit determined that these consent decrees prohibit music publishers from selectively withdrawing their new media rights from ASCAP and BMI to directly negotiating with new media services, the PROs …

Film Piracy: Surfing The Internet For Free Content Provides Little Bounty For The Collective Economy, Jordan Matthews

The Journal of Business, Entrepreneurship & the Law

This Note focuses on the protection of a copyright holder against infringement in the form of film piracy. It centers on the recent litigation surrounding Dallas Buyers Club, a biographical film articulating the life and events surrounding an AIDS patient, diagnosed in the mid-1980s, who pursued experimental treatments by smuggling pharmaceuticals into the United States. In 2013, more than 4,700 Australian Internet users allegedly downloaded the film within the span of one month. In August of 2015, an Australian federal court declared that the studio behind the film would need to post a $600,000 bond before it could send letters …

Copyright Infringement’S Blurred Lines: Allocating Overhead In The Disgorgement Of Profits, Layne S. Keele

BYU Law Review

In Williams v. Bridgeport Music, Marvin Gaye’s estate alleged that the popular song “Blurred Lines” infringed Gaye’s 1977 song “Got to Give It Up.” As part of the remedy for the infringement, the Gaye estate sought to disgorge the profits derived from defendants’ infringement, but the parties disagreed about how to calculate those profits. Specifically, they disagreed about whether the infringing song’s revenues should be offset by the infringers’ $7 million in overhead costs allocable to the song. The district court determined that the infringers’ ability to offset overhead costs would depend on whether their infringement was willful; it …

Brexit And Ip: The Great Unraveling?, Graeme Dinwoodie, Rochelle Dreyfuss

All Faculty Scholarship

In theory, exit from Brexit will free the United Kingdom from the constraints and burdens of EU membership. It will transfer sovereignty back to the people from the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice with the adjudicative power of national courts; and allow the UK to tailor its market regulation in the particular exigencies of the UK economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances value either nationally or globally is an issue we leave to others to debate.We ask a different question: we explore how well the …

The World’S Trademark Powerhouse: A Critique Of China’S New Trademark Law, Xuan-Thao Nguyen

Seattle University Law Review

China has become the world’s trademark powerhouse with the largest number of trademark registrations for goods and services. Parallel to the new rise is the explosion of scandals concerning trademarked goods, causing numerous deaths, massive hospitalizations, and consumer defection from domestic brands. Instead of having a trademark law with consumer protection as the cornerstone, China’s new Trademark Law will cement China as the world’s manufacturer of trademarks. This Article is the first to critically examine China’s new Trademark Law. The new law mainly centers on creating procedural measures for more trademark registrations, maintaining China’s trademark registration powerhouse status, and perpetuating …

A New Framework For Determining Reasonable Royalties In Patent Litigation, Norman V. Siebrasse, Thomas F. Cotter

Florida Law Review

Over the past decade, eight-, nine- and even ten-figure damages awards have become a recurring feature in patent infringement litigation, and yet the principal methods for calculating reasonable royalties (the most common form of damages in patent cases) remain unsatisfying and incoherent. Most frequently, courts employ what we refer to as a “pure ex ante” approach, which aims to construct the hypothetical bargain the parties themselves would have struck prior to infringement (ex ante), based on whatever information would have been available to them at that time. This approach has the advantage of avoiding patent “holdup”— basing the royalty partly …

From Creativity To Classification: A Logical Approach To Patent Searching, Marian G. Armour-Gemmen

Faculty & Staff Scholarship

Engineering students and professors need to understand and search intellectual property. In the past, librarians have instructed them on using the United States Patent Classification (USPC). In 2015, after a period of transition, the United States Patent and Trademark Office phased out the USPC and began exclusively classifying in the Cooperative Patent Classification (CPC). This adoption presented librarians a challenge of instructing students and professors in the easiest and most effective patent search. By tying patent searching to an example and presenting classification in an understandable fashion using CPC in conjunction with USPC, this writer presents a logical directed search …

Strength In Intellectual Property Protection And Foreign Direct Investment Flows In Least Developed Countries, James Thuo Gathii

Georgia Journal of International & Comparative Law

No abstract provided.

Italian Perspective On The Importance Of Geographical Indications And Protected Designation Of Origin Status For Parmigiano-Reggiano Cheese, Margherita Corrado

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Blockchain Receipts: Patentability And Admissibility In Court, Angela Guo

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Patentability Of The Crispr-Cas9 Genome Editing Tool, Deborah Ku

Chicago-Kent Journal of Intellectual Property

The biotechnology sector is rapidly changing with the increase in technological advancements. 1 The laws governing patent protection, specifically the laws governing patent eligibility, have also changed to adapt to these innovations.2 This paper focuses on the CRISPR-Cas9 technology, a genome editing tool that is changing the field of genetic engineering.3 As of November 2016, the U.S. Patent and Trademark Office has issued 42 patents on the CRISPR-Cas9 technology.4 This paper addresses the issue of whether patents claiming the core CRISPR-Cas9 technology can survive a 35 U.S.C. §101 (“§101”) subject matter eligibility challenge. The paper concludes that the CRISPR-Cas9 technology …

When Copyright Is Not Enough: Deconstructing Why, As The Modern Music Industry Takes, Musicians Continue To Make, Glenton Davis

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Free Speech Comes To Trademark Law, Christine Farley

Popular Media

No abstract provided.

Research Data Management In Research Institutions In Zimbabwe, Josiline Chigwada, Blessing Chiparausha, Justice Kasiroori

Copyright, Fair Use, Scholarly Communication, etc.

The research was aimed at evaluating how research data are being managed in research institutions in Zimbabwe. The study also sought to assess the challenges that are faced in research data management by research institutions in Zimbabwe. Twenty five institutions of higher learning and other organisations that deal with research were selected using purposive sampling to participate in the study. An online questionnaire on SurveyMonkey was sent to the selected participants and telephone interviews were done to follow up on participants who failed to respond on time. Data that were collected using interviews were entered manually into SurveyMonkey for easy …

The Uneasy Case For Patent Federalism, Roger Allan Ford

Law Faculty Scholarship

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation.

There …

Ufc Fighters Are Taking A Beating Because They Are Misclassified As Independent Contractors. An Employee Classification Would Change The Fight Game For The Ufc, Its Fighters, And Mma, Vincent Salminen

Pace Intellectual Property, Sports & Entertainment Law Forum

The current state of affairs in the sport of mixed martial arts (MMA) is overwhelmingly in favor of the companies promoting the fights and not in favor of the athletes actually putting their health and lives at risk. This article looks at the Ultimate Fighting Championship (UFC) and how it classifies its fighters as independent contractors rather than employees, even though it treats the fighters more like employees. This article addresses issues fighters are having with the current classification and then examines how the fighters could be classified as employees. Finally, the article will address what an employee classification would …

Split Chords: Addressing The Federal Circuit Split In Music Sampling Copyright Infringement Cases, Erik J. Badia

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note offers a comprehensive analysis of the current circuit split regarding how the de minimis doctrine applies to music sampling in copyright infringement cases. Since the Sixth Circuit's 2005 landmark decision in Bridgeport Music Inc. v. Dimension Films, critics, scholars and even judges have dissected the opinion and its bright line rule of “get a license or do not sample.” In May 2016, the Ninth Circuit issued its opinion in VMG Salsoul v. Ciccione. The Ninth Circuit explicitly declined to follow Bridgeport, holding that analyzing a music sampling copyright infringement case requires a substantial similarity analysis, including applying a …

Expanding The Sports Broadcasting Act Of 1961 To College Athletics, Kelsey Pincket

Pace Intellectual Property, Sports & Entertainment Law Forum

This Note will begin by exploring the history and evolution of antitrust law surrounding sport including the limited application of the Sports Broadcasting Act. An introduction of the Sports Broadcasting Act and a discussion of the portions of the act that are in need of more inclusive language will follow. This Note will then examine the current competitive imbalance in collegiate athletics and emphasize the Supreme Court’s recognition as to the importance of maintaining competitiveness in the NCAA. Finally, the expansion of Sports Broadcasting Act through explicit regulation to immunize the NCAA, as one league with a single unity of …

Wrigley Field, The Trademark, Benjamin J. Welch

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper is about the theory of applying the law of trade dress and all the protections that come with it to stadiums, specifically to Wrigley Field, home of Major League Baseball’s Chicago Cubs. Trade dress is the version of trademark reserved for the packaging, design, or color of products. If the packaging, design, or color possesses the ability to identify the source or creator of the product, then it can create a possessory interest in the product’s creator for that style of packaging, design of the product, or color used. This possessory interest is used to protect the reputation …

Sony, Cyber Security, And Free Speech: Preserving The First Amendment In The Modern World, Conrad Wilton

Pace Intellectual Property, Sports & Entertainment Law Forum

Reprinted from 16 U.C. Davis Bus. L.J. 309 (2016). This paper explores the Sony hack in 2014 allegedly launched by the North Korean government in retaliation over Sony’s production of The Interview and considers the hack’s chilling impact on speech in technology. One of the most devastating cyber attacks in history, the hack exposed approximately thirty- eight million files of sensitive data, including over 170,000 employee emails, thousands of employee social security numbers and unreleased footage of upcoming movies. The hack caused Sony to censor the film and prompted members of the entertainment industry at large to tailor their communication …

Brief Of Amici Curiae Intellectual Property Law Professors In Favor Of Judgement As A Matter Of Law, John A. Conway, Mark Mckenna

Court Briefs

No. 3:14-cv-01849-K
Zenimax Media Inc. v. Oculus VR, LLC

From the Summary of ArgumentPlaintiff’s false designation of origin and false endorsement claims, such as they are, rest on the assertion that defendants falsely represented themselves as the origin of intellectual property on which the Oculus Rift is based. Those claims are barred by Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which holds that only confusion regarding the origin of physical goods is actionable under the Lanham Act.

Changing Publishing Ecologies: A Landscape Study Of New University Presses And Academic-Led Publishing: A Report To Jisc, Janneke Adema, Graham Stone, Chris Keene

Copyright, Fair Use, Scholarly Communication, etc.

Introduction

A new wave of university presses is emerging. Common characteristics are that they are open access (OA), digital first, library-based, and they often offer a smaller set of services than a traditional publisher, blurring the line between publisher and platform. In tandem, a small but notable number of academics and researchers have set up their own publishing initiatives, often demonstrating an innovative or unique approach either in workflow, peer review, technology or business model.

These new publishing initiatives have a potentially disruptive effect on the scholarly communication environment, providing new avenues for the dissemination of research outputs and acting …

Tagmarks, Alexandra J. Roberts

Law Faculty Scholarship

From Kentucky Fried Chicken’s #HowDoYouKFC campaign to viral fundraiser #IceBucketChallenge to Instagram phenomenon #TBT, hashtags as trademarks — I call them “tagmarks” — are having a moment. Given the resources that brands invest in marketing via social media, and specifically in choosing and using hashtags, it’s not surprising that some players have begun to seek federal trademark registration for those hashtags. By the end of 2015, companies had successfully registered two hundred tagmarks and sought protection for over a thousand others; the US Trademark Office granted more tagmark registrations in that year than it did in every previous year combined. …

Disentangling The Right Of Publicity, Eric E. Johnson

Northwestern University Law Review

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.

This Article explains how, in the absence of a clear enunciation of its …

Publication Agreement Comparison Exercise, University Of Nebraska-Lincoln, Lincoln, Ne, July 12, 2017 (2017 Nebraska Acrl Scholarly Communication Roadshow, University Of Nebraska-Lincoln), Molly Keener, William Cross

Copyright, Fair Use, Scholarly Communication, etc.

Scholarly communication: From understanding to engagement. Asks the questions:

Once each agreement is signed:

 Who owns copyright?

 What does the publisher promise they will do?

 How can you share your article? o With colleagues? o With students? o At conferences?

 What can you archive? Where?

 What would you change?

Notice And Takedown In The Domain Name System: Icann’S Ambivalent Drift Into Online Content Regulation, Annemarie Bridy

Washington and Lee Law Review

No abstract provided.

Protecting Big Data In The Big Leagues: Trade Secrets In Professional Sports, Lara Grow, Nathaniel Grow

Washington and Lee Law Review

The protection of trade secrets within the professional sports industry became a hot-button issue in the summer of 2015, after news reports emerged revealing that officials from Major League Baseball’s St. Louis Cardinals were under federal investigation for having illegally accessed proprietary information belonging to their league rival, the Houston Astros. Indeed, professional sports teams in the United States and Canada often possess various forms of proprietary information or processes—ranging from scouting reports and statistical analyses to dietary regimens and psychological assessment techniques—giving them a potential competitive advantage over their rivals. Unfortunately, as with the rest of the economy at-large, …