Intellectual Property Law Commons^™

Super Bowl I, Jazz Radio, And The Glass Menagerie: Copyright, Preservation, And Private Copies, R. Anthony Reese

Akron Law Review

Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result, …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Akron Law Review

This Article focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement—use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but only in cases involving particularly egregious conduct.

Several recent trends in the application of the TCA, …

The Porous Court-Agency Border In Patent Law, Saurabh Vishnubhakat

Faculty Scholarship

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments …

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

Brooklyn Law Review

Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately—if …

No Security Through Obscurity: Changing Circumvention Law To Protect Our Democracy Against Cyberattacks, Andrew Moshirnia

Brooklyn Law Review

Cybersecurity is increasingly vital in a climate of unprecedented digital assaults against liberal democracy. Russian hackers have launched destabilizing cyberattacks targeting the United States’ energy grid, voting machines, and political campaigns. America's existing inadequate cyber defenses operate according to a simple assumption: hide the computer code that powers critical infrastructure so that America's enemies cannot exploit undiscovered weaknesses. Indeed, the intellectual property regime relies entirely on this belief, protecting those who own the rights in computer code by punishing those who might access and copy that code. This “security through obscurity” approach has failed. Rightsholders, on their own, cannot develop …

"You'll Lol @ This Tweet": Copyright Protection For Hashtag Gamers, Alan Lacerra

Florida State University Law Review

Hashtag games combine the fun of quick, incongruous exchanges with the work of creative expression and do so online through microblogging, predominantly (if not exclusively) on Twitter. Currently, hashtag-game participants face two main obstacles to copyright protection for their fun expressions: the expressions' brevity and Twitter's terms of service. To protect the copyrights that Internet users acquire by participating in hashtag games, courts should focus on the creativity rather than the brevity of the resulting expressions. Furthermore, Congress should amend the Digital Millennium Copyright Act (DMCA) to prevent Internet service providers, like Twitter, from encroaching on users' rights through broad …

Digital Legal Deposit In Selected Jurisdictions: Australia, Canada, China, Estonia, France, Germany, Israel, Italy, Japan, Netherlands, New Zealand, Norway, South Korea, Spain, United Kingdom, Peter Roudik, Kelly Buchanan, Tariq Tariq Ahmad, Laney Zhang, Nerses Isajanyan, Nicolas Boring, Jenny Gesley, Ruth Levush, Dante Figueroa, Sayuri Umeda, Elin Hofverberg, Graciela Rodriguez-Ferrand, Clare Feikert-Ahalt

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary by Peter Roudik, Assistant Law Librarian of Congress for Legal Research (United States)

This report, prepared by the staff of the Global Legal Research Directorate of the Law Library of Congress, surveys laws regulating the mandatory legal deposit of electronic materials. Fifteen countries representing different approaches to collecting, describing, preserving, and storing digital and non-print documents and providing access to them are included in the study. (See map, below.) These countries were selected because of their long-term experience with collecting online and offline electronic publications. Each country survey provides information on the history of edeposit programs in the …

The Global Person: Pig-Human Embryos, Personhood, And Precision Medicine, Yvonne Cripps

Indiana Journal of Global Legal Studies

Chimeras, in the form of pig-human embryos engineered by CRISPR-Cas9 and other biotechnologies, have been created as potential sources of organs for transplantation. Against that background, and in an era of "precision medicine," this Article examines the concept of the global genetically modified person and asks whether humanness and personhood are being eroded, or finding new boundaries in intellectual property and constitutional law.

Three New Metrics For Patent Examiner Activity: Office Actions Per Grant Ratio (Ogr), Office Actions Per Disposal Ratio (Odr), And Grant To Examiner Ratio (Ger), Shine Tu

Law Faculty Scholarship

The current metric for examiner prosecution activity is allowance rate, which is calculated by dividing the total number of allowances by the sum of the allowances and abandonments (allowance rate = total allowance/(total allowances total abandonments)). Importantly, however, allowance rates do not consider an examiner’s pending docket. Specifically, allowance rates do not fully capture if the examiner is simply writing office actions thereby prolonging prosecution or allowing cases. This study rectifies this failure by creating and analyzing a dataset that captures every active examiner’s current docket. Calculating the Office Action per Grant Ratio (OGR = Total # of Office Actions/Total …

Marching To The Beat Of The Eu's Drum: Refining The Collective Management Of Music Rights In The United States To Facilitate The Growth Of Interactive Streaming, Gary W. Hunt Iii

Indiana Journal of Global Legal Studies

In the digital era, interactive streaming is now the preferred method for music consumers to access their favorite albums and songs. The traditional copyright system used to administer music rights and royalties has not evolved accordingly, which not only impedes progress by music platform innovators, but also frustrates artist, labels, and composers who are unable to reap the benefits of their music rights. This Note examines the complex process interactive streaming services undergo to obtain the rights necessary to stream music through their platforms, which involves a discussion of collective rights organizations. This Note then argues that the European Directive …

Operas White Paper: Open Access Business Models, Lara Speicher, Margo Bargheer, Maciej Maryl, Sven Fund, Max Mosterd, Frances Pinter, Lorenzo Armando, Irakleitos Souyioultzoglou, Martin Paul Eve, Delfim Leão

Copyright, Fair Use, Scholarly Communication, etc.

The white paper on Business Models for Open Access proposes that there is no single ideal business model for Open Access that can be adopted as standard. It describes the current landscape in which there are multiple approaches to OA publishing, many of which are adopted by OPERAS members to suit their particular circumstances, although the APC and BPC models still predominate especially among commercial publishers. The paper describes the business models adopted by members both from the point of view of publishers, and of service providers such as Knowledge Unlatched, as well as looking at models emerging elsewhere such …

United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Revoking The "Get Out Of Jail Free Card": How Mavrix Photographs, Llc V. Livejournal, Inc. Could Revolutionize User-Generated Safe Harbor Protections Under § 512(C) Of The Digital Millennium Copyright Act, Caitlin Oswald

Loyola of Los Angeles Law Review

No abstract provided.

Copyright And Underwater Cultural Heritage, Tyler T. Ochoa

Faculty Publications

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light …

Around Campus

DePaul Magazine

Reburying the Dead: Returning control of ancient remains to Native American tribes; Communicating Climate Change: DePaul professor discusses effective ways to connect with skeptical and disengaged audiences; The Great Mind of Michael Shannon

Who's Afraid Of Swiss Cheese? Resolving The Copyright Claims Of Non-Coauthors, D. Sean West

Seattle University Law Review Online

No abstract provided.

Transformed, I'M Sure: A (Polite) Introduction To Fair Use In Dh, Jill Cirasella

Publications and Research

This presentation looks at how the words "including" and "such as" in the fair use section of United States copyright law (i.e., Section 107 of Title 17 of the United States Code) allow for unforeseen fair uses, including transformative works made by digital humanists.

Illustrating A Technical Manual: Copyright And Fair Use In A Real World Professional Context, Karyn Hinkle

Library Faculty and Staff Publications

This lesson was developed for students preparing to enter professional practice who were assigned to write and/or illustrate a technical howto manual on a topic of their choice (how to put on ski boots, draw blood, use a fitness tracking app, etc.). The teaching librarian conducts a class session on finding and creating images to illustrate the manuals and teaches differences between using copyrighted and non-copyrighted images. The students work on finding images in the public domain, creating their own images, and incorporating copyrighted images via Creative Commons licenses and the principle of fair use. Librarians can teach this lesson …

Our 19th Century Patent System, Gregory Reilly

IP Theory

The patent system is in flux. Concerns abound about the imperfect fit between traditional patent rights and the Information Age, excessive numbers of patents, overbroad patent rights, poor patent quality, and allegedly exploitative actors, like so-called “patent trolls.” In response, courts, commentators, and Congress have proposed, debated, and sometimes adopted a series of reforms and changes to patent rights, patent doctrines, and patent institutions. The America Invents Act of 2011 (AIA) introduced the most significant changes to the patent system since 1952 and was even described by one commentator (hyperbolically, as we will see) as “the most significant overhaul to …

Visual Methaphor And Trademark Distinctiveness, Dustin Marlan

Washington Law Review

Perhaps because words are the lawyer’s principal instrument, the law gives too little attention to visual images. Invoking Justice Potter Stewart’s infamous statement regarding the law’s inability to define obscenity, “I know it when I see it” is the standard for interpreting images in the law. A greater understanding of the ways in which images make meaning is needed, however, including in trademark law given our increasingly visual economy. This Article examines images in the context of trademark law’s inherent distinctiveness doctrine. While trademark law still lacks a coherent, uniform, and predictable framework for deciding the distinctiveness of visual image …

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski

Washington Law Review

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its oftenhomogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the world, …

Much Ado About Holdup, Jorge L. Contreras

Utah Law Faculty Scholarship

The policy debate surrounding patent hold-up in markets for standardized products is now well into its second decade with no end in sight. Fundamental questions including the definition of hold-up, whether it exists in the marketplace, and what impact it has on innovation, continue to bedevil scholars, policy makers and industry. Yet it is not clear that this debate needs to continue. Patent hold-up is a pattern of market behavior, not a legally-cognizable wrong. Whether it is commonplace or rare is largely irrelevant to liability in any given case. To the extent that hold-up behavior constitutes an abuse of market …

Trademarks, Certification Marks And Technical Standards, Jorge L. Contreras

Utah Law Faculty Scholarship

The names of many technical standards such as Wi-Fi, Bluetooth and DVD have become household terms known throughout the developed world. This chapter describes different approaches that have been taken with respect to the naming and legal protection of technical standards, ranging from those that are wholly unregulated to those that are administered under strict certification and compliance regimes. It concludes by questioning the need for aggressive protection of marks that exist largely to inform consumers about technical product features rather than the source of standards themselves.

Rambus Redux? – Standards, Patents And Non-Disclosure In The Pharmaceutical Sector (Momenta V. Amphastar), Jorge L. Contreras

Utah Law Faculty Scholarship

Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. (D.Mass 2) involves the alleged deception of a standards-development organization (SDO) by the holder of a patent essential to a standard relating to the manufacture of the drug enoxaparin. The SDO's rules regarding disclosure of standards-essential patents (SEPs) were found to be ambiguous, yet, as in Qualcomm v. Broadcom (Fed. Cir. 2008), the district court held that participant expectations created an affirmative obligation to disclose SEPs. Following the SEP holder's assertion of the undisclosed patent against a competing generic manufacturer of enoxaparin, the alleged infringer successfully raised defenses of waiver and estoppel against …

Unbundling Open Access Dimensions: A Conceptual Discussion To Reduce Terminology Inconsistencies, Alberto Martín-Martín, Rodrigo Costas, Thed N. Van Leeuwen, Emilio Delgado López-Cózar

Copyright, Fair Use, Scholarly Communication, etc.

The current ways in which documents are made freely accessible in the Web no longer adhere to the models established Budapest/Bethesda/Berlin (BBB) definitions of Open Access (OA). Since those definitions were established, OA-related terminology has expanded, trying to keep up with all the variants of OA publishing that are out there. However, the inconsistent and arbitrary terminology that is being used to refer to these variants are complicating communication about OA-related issues. This study intends to initiate a discussion on this issue, by proposing a conceptual model of OA. Our model features six different dimensions (authoritativeness, user rights, stability, immediacy, …

Linking On The Internet And Copyright Liability: A Clarion Call For Doctrinal Clarity And Legal Certainty, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions: 1. Do these forms of online activity constitute acts of communication (or making available) in the first instance? 2. Should they fall within the purview of Art. 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?It …

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Washington Law Review

Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the …

Emerging Technologies Challenging Current Legal Paradigms, W. Keith Robinson

Minnesota Journal of Law, Science & Technology

No abstract provided.

Patent Transfer And The Bundle Of Rights, Andrew C. Michaels

Brooklyn Law Review

When patents subject to a license agreement are transferred, to what extent do the benefits and burdens of the license agreement run with the patent? Courts have stated that those aspects of the agreement relating to “actual use” of the patent or invention are encumbrances running with the transferred patent. But this doctrinal test is not consistently applied and is not up to the task of clearly and consistently delineating the extent to which patent license agreements run with transferred patents. Conceptualizing the patent as a bundle of Hohfeldian Rights to exclude, this article proposes a more coherent framework for …