Intellectual Property Law Commons^™

The Non-Recording, Non-Artist" Recording Artist": Expanding The Recording Artist's Brand Into Non-Music Arenas, Suzanne Kessler

Vanderbilt Journal of Entertainment & Technology Law

The changing nature of the music business presents earnings challenges for both record labels and recording artists. Historically, labels and artists entered into recording contracts pursuant to which the artists created music which the labels funded, distributed, marketed, and promoted. Many artists made good livings from music sales, earning dollars per album, while the labels profited even more. However, as digital delivery, especially streaming, now supplants physical records as the primary music consumption manner, the money that labels and artists realize from music sales has significantly decreased. In particular, artists earn fractions of pennies per track streamed. Labels, too, are …

Crispr, Surrogate Licensing, And Scientific Discovery, Jorge Contreras, Jacob S. Sherkow

Other Publications

Several research institutions are embroiled in a legal dispute over the foundational patent rights to CRISPR-Cas9 gene-editing technology, and it may take years for their competing claims to be resolved. But even before ownership of the patents is finalized, the institutions behind CRISPR have wasted no time capitalizing on the huge market for this groundbreaking technology by entering into a series of licensing agreements with commercial enterprises. With respect to the potentially lucrative market for human therapeutics and treatments, each of the key CRISPR patent holders has granted exclusive rights to a spinoff or "surrogate" company formed by the institution …

Inventive Steps: The Crispr Patent Dispute And Scientific Progress, Jacob S. Sherkow

Other Publications

Recent decisions by patent offices in the USA and Europe concerning the revolutionary gene-editing technology, CRISPR/Cas9, have shed light on the importance — and puzzles — of one particular area of patent law: “nonobviousness”, as it known in the USA, or, in Europe, the “inventive step”. Patent law does not always neatly align itself with the realities of biological research. But these competing decisions from the U.S. Patent and Trademark Office and the European Patent Office have put those differences on parade. Unpacking these standards for CRISPR tell us a lot about how advances in biology are actually made — …

Understanding The Defend Trade Secrets Act (Dtsa): The Federalization Of Trade Secrecy, David Green, James Pooley, Elizabeth Rowe, Ryan Calo

Loyola of Los Angeles Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Individual Licensing And Consumer Protection, Lucie Guibault

Articles, Book Chapters, & Popular Press

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

The Theoretical Case Against Criminalized Copyright Infringement In Canada, Maria Dugas

Articles, Book Chapters, & Popular Press

Criminalized copyright infringement has existed in Canada for close to a century. It has continued to expand in scope and severity since its first appeared in the Copyright Act, 1921. As Canada approaches 2017’s scheduled review of the Copyright Act, the time has come to ask whether the criminalization of copyright and its enforcement is theoretically justifiable. Yet, Canadian scholarship on criminalized copyright infringement is particularly scarce; there is a noteworthy gap in the existing literature wherein no one has systematically argued against criminalized copyright infringement from a theoretical perspective. This thesis aims to fill that gap, setting out a …

Theft! A History Of Music, Keith Aoki, James Boyle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

The Limits Of “Limitations And Exceptions” In Copyright Law, Jerome H. Reichman

Faculty Scholarship

The “designated exceptions” approach in the European Union and elsewhere becomes obsolete when faced with the needs of digital science to scrutinize and analyze all relevant research results pertinent to any scientific inquiry. Even the fair use exception rooted in U.S. law, while more agile on a case by case approach, is challenged by the scientific communities’ need to reproduce and analyze all available material relevant to any given research project and by the ability of automated knowledge discovery tools to do just that. A more promising model for reform is the “some rights reserved” concept of private ordering that …

Functionality Screens, Christopher Buccafusco, Mark A. Lemley

Faculty Scholarship

Among intellectual property (IP) doctrines, only utility patents should protect function. Utility patents offer strong rights that place constraints on competition, but they only arise when inventors can demonstrate substantial novelty after a costly examination. Copyrights, trademarks, and design patents are much easier to obtain than utility patents, and they often last much longer. Accordingly, to prevent claimants from obtaining “backdoor patents,” the other IP doctrines must screen out functionality. As yet, however, courts and scholars have paid little systematic attention to the ways in which these functionality screens operate across and within IP law.

We have four tasks in …

Fashion's Function In Intellectual Property Law, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear under-standing of the nature of functionality in fashion design. This Article proposes a robust account of fashion’s function. It argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply …

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

Faculty Scholarship

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Royalty Securitization, Kristelia García

Publications

No abstract provided.

Authorship, Disrupted: Ai Authors In Copyright And First Amendment Law, Margot E. Kaminski

Publications

Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these …

Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai

Faculty Scholarship

Recent Supreme Court cases on patent-eligible subject matter are likely to exacerbate the longstanding problem of biomedical data fragmentation. For each data silo, multiple overlapping legal claims and claimants must be addressed to achieve the benefits of pooling.

Commentators who have discussed the data aggregation challenge have generally focused on possibilities created through public funding, through collective action by research participants, or through pressure by payers. This Article emphasizes the important role of risk regulators, most notably the precedent offered by risk regulation in the area of clinical trial data.

While U.S. risk regulators have taken some positive steps, the …

Forgetting Functionality, Christopher Buccafusco, Jeanne C. Fromer

Faculty Scholarship

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s treatment of product designs that incorporate functionality. Its opinion failed to do so in a host of different ways. In this comment (as part of the symposium From Shovels to Jerseys: A Guide to Apply Star Athletica v. Varsity Brands), we address just one of the opinion’s shortcomings: its failure to adequately define and distinguish between a design’s functional and expressive features. Not only does the Court’s neglect produce uncertainty for creators, litigants, and judges, the opinion makes it substantially easier …

Enhancing Innovation In The Ugandan Agri-Food Sector: Progress, Constraints, And Possibilities, Travis Lybbert, Kritika Saxena, Julius Ecuru, Dick Kawooya, Sacha Wunsch-Vincent

Faculty Publications

No abstract provided.

Information Privacy Litigation As Bellwether For Institutional Change, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Information privacy litigation is controversial and headline-grabbing. New class complaints are filed seemingly every few weeks. Legal scholars vie with one another to articulate more comprehensive theories of harm that such lawsuits might vindicate. Large information businesses and defense counsel bemoan the threats that information privacy litigation poses to corporate bottom lines and to “innovation” more generally. For all that, though, the track record of litigation achievements on the information privacy front is stunningly poor. This essay examines emerging conventions for disposing of information privacy claims, including denial of standing, enforcement of boilerplate waivers, denial of class certification, and the …

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

Scholarly Works

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

Reasonable Certainty & Corpus Linguistics: Judging Definiteness After Nautilus & Teva, Joseph S. Miller

Scholarly Works

In Nautilus (2014), the Supreme Court held “that a patent is invalid for indefiniteness if its claims...fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” We don’t require perfect clarity because, as Festo (2002) highlights, patentees can’t achieve it. We don’t launch a post hoc judicial salvage operation to rescue slipshod text because, as the functional-claiming cases from the 1930s and 1940s highlight, others can’t adequately plan around it. Reasonably certain notice, then, is just right: § 112 “require[s] that a patent’s claims, viewed in light of the specification and prosecution history, …

Patenting Frankenstein's Monster: Exploring The Patentability Of Artificial Organ Systems And Methodologies, Jordana Goodman

Faculty Scholarship

The conception of Frankenstein’s monster bridges the ever-narrowing divide between man and machine. Long before Congress codified Section 33(a) of the America Invents Act (“AIA”), Mary Shelley’s vague description of the monster’s creation has left people wondering: what defines a human organism? Through an analysis of patent law and scientific progress in the development of artificial organ systems, this paper explores the boundaries of patentable subject matter in the United States and attempts to clarify Congress’s determination that “no patent may issue on a claim directed to or encompassing a human organism.” Though patent law should incentivize development of artificial …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

Optimal Remedies For Patent Infringement, Keith N. Hylton, Mengxi Zhang

Faculty Scholarship

This paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment.

Towards Patent Standardization, Janet Freilich, Jay P. Kesan

Faculty Scholarship

Among the most important purposes of patents are to provide clear notice to third parties of the patent's boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.' Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a …

Heuristic Interventions In The Study Of Intellectual Property, Jessica Silbey

Faculty Scholarship

In this Essay, I review and elaborate on Dan's Burk's On the Sociology of Patenting with three "heuristic interventions" for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law …