Intellectual Property Law Commons^™

“Why Do You Want My Password?”: Assessing Ultimate Control Of A Journalist’S Twitter Account Used For Work Purposes, Benjamin Halperin

Fordham Intellectual Property, Media and Entertainment Law Journal

A journalist’s value to an employer can be seen differently in the age of social media. The value to the employer is not necessarily just measured by the number of words or articles produced, or even by how much their work drives increased website traffic or increased subscriptions. In addition to generally maintaining a social media presence, journalists are often encouraged or expected to use their social media accounts. However, such accounts might be in the individual journalist’s name and might pre-date the term of employment with that specific media entity. Therefore, a debate can rise over who might “own” …

Platform Society: Copyright, Free Speech, And Sharing On Social Media Platforms, [email protected]

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Case Innovation & Entrepreneurship, Case Western Reserve University School Of Law, The Spangenberg Center For Law, Technology & The Arts

Case IP Law News

Vol. 6, #1

• Fusion program partners with university’s think[box]...
• Community Development Clinic aids creative community hub’s pursuit…
• Local inventor patents ion-propelled aircraft with help from CWRU’s IP Venture Clinic
• Former model earns summer fashion law internship
• Spangenberg fellowship funds student trip to South by Southwest
• College athlete turns to sports law with help from Great Lakes Sports and Entertainment Law Academy
• Andrew Geronimo named director of the Intellectual Property Venture Clinic
• Spring 2019 Featured Lectures
• Featured Alumni
• Spangenberg Center Faculty

The Supreme People's Court Annual Report On Intellectual Property Cases (2017) (China), Ida L. Knox, Ruixiang (Ray) Xu, Weichen Zhu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, trade secrets, copyright, and unfair competition cases. This 2017 Annual Report examines 42 cases and includes general guidelines for legal application. This summary reflects the Supreme People’s Court’s thoughts and approaches for ruling on new and complex IP and competition cases.

The Filtration Problem In Copyright’S “Substantial Similarity” Infringement Test, Christopher Jon Sprigman, Samantha Fink Hedrick

Lewis & Clark Law Review

Copyright protects original artistic and literary expression. It does not protect ideas, facts, or other elements that may be found in artistic and literary works but which Section 102(b) of the Copyright Act, or the judge-made merger and scènes à faire doctrines, place outside the scope of copyright protection. The principle that copyright protects expression but not ideas is easy enough to articulate, but actually implementing it in copyright infringement litigation is considerably more difficult.

This Article focuses not on the theory of idea/expression boundary-setting, but on the mechanics. In particular, how can we make sure that the distinction between …

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

Articles

This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for consumers. In …

Libraries' Shifting Roles And Responsibilities In The Networked Age, Michael W. Carroll

Contributions to Books

My goal in this chapter is to advance the argument that access denied to resources in digital form is a more serious, and more solvable, problem than one might glean from the literature. Digital networks make access possible to a degree that would have been unimaginable in the analog era. What was once a mix of technological and economic constraints on access is now reduced to legal, rather than technological, constraints. The library community should more explicitly commit itself to the goal of ubiquitous access to digital content.

The role of the library in public life should be to minimize …

Public Policy Limitations On Trademark Subject Matter: A U.S. Perspective, Christine Farley

Contributions to Books

This chapter provides an overview of the public policy limitations on trademark subject matter under U.S. law. This is an area of law that had been fairly stable until recently. The U.S. Supreme Court’s 2017 decision striking down the prohibition on registering disparaging marks and its 2019 decision striking down the prohibition on registering immoral and scandalous marks may prompt a larger reexamination of the policy justifications for denying trademark registration.

Turning Privacy Inside Out, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect …

Internet Utopianism And The Practical Inevitability Of Law, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

"Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in …

Health Care Costs And The Arc Of Innovation, Neel U. Sukhatme, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We point instead to the nexus of economics, mutual empathy, and social expectations that drives medical innovation and locks in low-value technologies. We show how law reflects and reinforces this nexus and how and why health-policy-makers avert their gaze.

Next, we propose to circumvent these barriers instead of surmounting them. Rather than targeting today’s excessive spending, …

Copyrightx [Course Review], Jill Cirasella

Publications and Research

Review of the free online course CopyrightX.

Comparative Analysis Of Innovation Failures And Institutions In Context, Mark P. Mckenna

Journal Articles

Many different legal and non-legal institutions govern and therefore shape knowledge production. It is tempting, given the various types of knowledge, knowledge producers, and systems with and within which knowledge and knowledge producers and users interact, to look for reductionist shortcuts — in general but especially in the context of comparative institutional analysis. The temptation should be resisted for it leads to either what Harold Demsetz called the Nirvana Fallacy or what Elinor Ostrom critiqued as myopic allegories.

We suggest that comparative institutional analysis must be accompanied by comparative failure analysis, by which we mean rigorous and contextual comparative analysis …

The Right Of Attribution In Literary Works In Three Acts, By W. Shakespeare, Daniel J. Gervais

Vanderbilt Journal of Entertainment & Technology Law

This Article charts the three phases in the evolution of the norm of attribution in literary works: the norm in England before and during Shakespeare's time, the emergence of authorship-based norms in the Romantic period (allowing moral rights to be enshrined in international copyright treaties) and their demise at the hands of postmodernism and New Criticism, and the current norms that aim to protect the integrity of educational processes and to inform readers and other users of books, plays, or other creative works about their "source." It tracks a debate during Shakespeare's lifetime on the difference between nonattribution and false …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Sculpture, Industrial Design, Architecture, And The Right To Control Use Of Publicly Displayed Works, Richard H. Chused

Articles & Chapters

This article explores the anomalous ways in which copyright owners may control use of works they publicly display. Treatment of rights associated with publicly displayed sculpture and architecture are dramatically different. The copyright statute deprives owners of copyrights in constructed buildings of the ability to police the ways in which imagery or other uses of the publicly visible structure may be exploited by others. This article focuses on three related but different settings involving the public display of (1) a work of graffiti, (2) a large-scale sculpture, and (3) a building with sculptural features. Through an analysis of the differences …

To Promote Innovation, Congress Should Abolish The Supreme Court Created Exceptions To 35 U.S. Code Sec. 101, Shahrokh Falati

Articles & Chapters

No abstract provided.

Clown Eggs, Dave Fagundes, Aaron Perzanowski

Articles

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby …

Rule 36 Decisions At The Federal Circuit: Statutory Authority, Matthew J. Dowd

Vanderbilt Journal of Entertainment & Technology Law

Recent commentary has questioned the validity of the US Court of Appeals for the Federal Circuit's use of Rule 36 affirmances in deciding appeals from the US Patent and Trademark Office (USPTO). One article in particular posits that 35 U.S.C. § 144 and 15 U.S.C.§ 1071(a)(4) require the Federal Circuit to write an opinion in every appeal from the USPTO and therefore the court's use of Rule 36 affirmances, particularly with appeals of cases from the America Invents Act, is improper. This Article presents a reasoned counterpoint to that argument. A complete analysis of the statutory text, the legislative history, …

Who Owns A Joke? Copyright Law And Stand-Up Comedy, Scott Woodard

Vanderbilt Journal of Entertainment & Technology Law

Copyright laws are touted as the highest legal authorities by which artists can protect their works against all comers. However, when an artist's work fails to fit neatly into the statutory parameters needed to acquire copyright protection, that artist could receive no safeguards to ensure that their works will not be misappropriated by others.

This article undertakes a comparative analysis of two copyright regimes--from the United States and the United Kingdom--and measures their relative similarities and differences. From this comparison, this article explains how stand-up comedians, a group of artists who have traditionally believed their work was incapable of receiving …

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …

Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz

Articles

Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …

Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola

Faculty Publications

Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …

Scope And Justification Of The Right Of Publicity, Jeremy N. Sheff

Faculty Publications

(Excerpt)

Thank you to Professor June Besek, and thanks to everyone here at Columbia for the invitation. June, to correct one of your introductions here—Mark McKenna is too humble to say so, but in addition to being a widely recognized scholar, he was elected yesterday to the American Law Institute, which is well deserved given his immense contributions to Intellectual Property Law scholarship.

Mark and I have talked about this topic, in part in preparation for today, and so a lot of what I say is going to reflect some of what he has said, and I think that is …

Solving The Problem-Solver Problem: How A Revamp Of Arbitral Ethics Will Encourage Plaintiffs And Benefit Defendants, Lindsey Rubinstein

Cardozo Journal of Conflict Resolution

This Note aims to expose the consequences of these ethical deficiencies, including a lack of uniformity in arbitral results, conflicts of interest, and a lack of bargaining power for plaintiffs. This Note will also provide a framework for what an arbitral code of ethics should look like to ensure greater protections for petitioners. It is important to mention that this Note will explore the problems introduced above exclusively in the context of the ethical framework provided by the AAA. Part II will provide background information on the rise of arbitration, the development of the AAA Code of Ethics, and the …

The New Singapore Mediation Convention: The Process And Key Choices, Hal Abramson

Cardozo Journal of Conflict Resolution

This article presents the backstory of the New Singapore Mediation Convention, which is really two stories: one on the multiparty negotiation process that produced the Convention and one on the substantive choices in the Convention. The two stories also illustrate the relationship between a well-designed process and result.

What's In A Name? The Terms "Commercial" And "Mediation" In The Singapore Convention On Mediation, Ellen E. Deason

Cardozo Journal of Conflict Resolution

One could interpret Shakespeare's famous quote as standing for the proposition that labels do not alter the essence of the thing named. In this article I draw inspiration from the quote to provide a foil for examining the use of the terms "commercial" and "mediation" in the Singapore Convention and Mediation Model Law. I will consider how the terms are framed and defined, the extent to which the names and their associated meanings introduce new ideas, and how their use might matter for the interpretation of important concepts in these instruments. Part I of the article discusses the term "commercial" …

Novel Adaptation To Stage And Screen: Rethinking The Contractual And Creative Process, Jennifer Rainville Mccabe

Cardozo Journal of Conflict Resolution

No abstract provided.

Ai And The "Death Of Trademark", Michael Grynberg

Kentucky Law Journal

No abstract provided.

Brief For The R Street Institute As Amicus Curiae In Support Of Respondents, Charles Duan

Amicus Briefs & Court Filings

The government and its agencies should be treated as a “person” that may petition to institute post-issuance review proceedings under the America Invents Act, for two reasons. First, permitting the government to seek review of patents under these proceedings best realizes the intent of Congress to make those proceedings widely available. Second, compared to the government’s alternative option for administratively challenging patents, AIA post-issuance review better serves important norms of procedure and governance, including transparency, due process, and separation of functions.