Intellectual Property Law Commons^™

Mozart V. Beethoven: Consequences Of Ninth Circuit Copyright Law On Classical Creativity, Amanda E.B. Collins

Marquette Law Review

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The Internet Never Forgets: A Federal Solution To The Dissemination Of Nonconsensual Pornography, Alexis Santiago

Seattle University Law Review

As technology evolves, new outlets for interpersonal conflict and crime evolve with it. The law is notorious for its inability to keep pace with this evolution. This Comment focuses on one area that the law urgently needs to regulate—the dissemination of “revenge porn,” otherwise known as nonconsensual pornography. Currently, no federal law exists in the U.S. that criminalizes the dissemination of nonconsensual pornography. Most U.S. states have criminalized the offense, but with vastly different degrees of severity, resulting in legal inconsistencies and jurisdictional conflicts. This Comment proposes a federal solution to the dissemination of nonconsensual pornography that carefully balances the …

Understanding Illicit Insemination And Fertility Fraud From Patient Experience To Legal Reform, Jody L. Madeira

Articles by Maurer Faculty

Recently, several cases have been filed in North America and Europe alleging that fertility physicians inseminated former patients with their own sperm only to have this conduct come to light decades later when their unsuspecting adult children use direct-to-consumer genetic tests and learn that they are not biologically related to their fathers and often that they have multiple half-siblings. For instance, Donald Cline of Indianapolis, Indiana, has over sixty doctor-conceived children, with more continuing to come forward. Although these cases induce disgust, it has thus far proven difficult to hold these physicians legally accountable because their conduct falls within gaps …

The New Cybersquatters: The Evolution Of Trademark Enforcement In The Domain Name Space, Michael Karanicolas

Fordham Intellectual Property, Media and Entertainment Law Journal

The domain name space has become a particularly contentious area of trademark enforcement as a result of the growth of online commerce, an intense competition for popular domain names, and new conceptual challenges stemming from the borderless and textual nature of the medium. In response, the Internet Corporation for Assigned Names and Numbers (“ICANN”), a global non-profit which oversees the domain-name space, has implemented a highly sophisticated set of rights-protection mechanisms. This Article examines the scope of trademark protections applied under ICANN’s rights protection mechanisms to demonstrate that they have evolved far beyond their traditional consumer protection function; indeed, they …

Constitutions And Blockchains:Competitive Governance Of Fundamental Rule Sets, Eric Alston

Journal of Law, Technology, & the Internet

In the context of private ordering—where rule sets are relatively fluid, centrally controlled, and exist in the shadow of law and regulation—developing generalizable insights about comparatively superior governance mechanisms is difficult. I shed light on this question by characterizing cryptocurrency blockchains as a type of constitutional rule set that both defines and legitimizes the activities supported by the underlying distributed ledger technology. More specifically, I argue that cryptocurrency blockchains have led to new forms of competition in private governance, which include exit costs and citizenship rules as important competitive margins. My analysis not only identifies the choices in constitutional governance …

A Question Of Trust: Facebook Libra As Money In The Economic And Legal Sense, Muharem Kianieff

Journal of Law, Technology, & the Internet

This article examines the use of Facebook’s Libra (now renamed “Diem”) as a substitute for fiat money. It considers Libra’s prospects for success in light of the fact that it purports to substitute trust in a technology for the traditional legal supports that bolster public trust in traditional fiat currencies. The legal doctrines that support fiat currencies do so for the purposes of recognizing the economic functions that money performs and are also meant to support public policies that promote monetary stability, protect consumers and help to enforce anti money laundering statutes. It is argued that Libra will result in …

Forum Delegation: The Birth And Transposition Of A New Approach To Public Forum Doctrine, Brett Johnson, Shane C. Epping

UC Law SF Communications and Entertainment Journal

This paper introduces and explores the concept of forum delegation: the power of government officials to suggest which forums to allow speakers to use. The concept is born out of a recent legal battle between the University of Minnesota and conservative speaker Ben Shapiro, in which the UMN required Shapiro to speak in a venue away from the heart of campus due to concerns over the school’s ability to provide adequate security for the event. The paper first analyzes the UMN case to assess the constitutionality of forum delegation in the context of regulating speech and public universities. Next, it …

Corruption And College Sports: A Love Story, Andrea Cristiani Closa

UC Law SF Communications and Entertainment Journal

College sports are a staple of American tradition, bringing in hundreds of millions of viewers each year. Fans from all over the country root for their team’s success and hope they will be the ones to take home the national championship each year. Increasingly, however, college sports have been in the public eye for a very different reason: corruption. The National Collegiate Athletics Association’s (“NCAA”) Amateurism Rule, which prohibits student-athletes from receiving compensation, has contributed to this ongoing corruption. The NCAA insists upon its student-athletes remaining amateurs, even though its own rule is damaging the integrity of college sports. Players, …

A Quarter Century Of International Copyright On Software, Marketa Trimble

Scholarly Works

No abstract provided.

Public Art, Public Space, And The Panorama Right, Mary Lafrance

Scholarly Works

When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of …

Thin Separability: An Answer To Star Athletica, Angelo Marchesini

Seattle University Law Review

Courts have consistently struggled to adopt a test that appropriately interprets the Copyright Act’s language protecting works of art incorporated into useful articles. The analysis that allows protections of these works of art is called “separability,” and it has been an ambiguous area of copyright law since its inception. In essence, this analysis gives copyright protection to a work of art incorporated into a useful article as long as the work of art is “separate” from the utilitarian aspects of the useful article. The Supreme Court was positioned to end the uncertainty surrounding the separability analysis in its recent decision, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Introduction: Changing Regulation Of Pharmaceuticals: Issues In Pricing, Intellectual Property, Trade And Ethics, Michael S. Mireles

McGeorge School of Law Scholarly Articles

No abstract provided.

Lending Innovations, Xuan-Thao Nguyen

Articles

This article is the first to identify the disruption in tech lending by outlier commercial banks and to theorize the ways in which IP Venture Banking is fueling innovation both nationwide and globally. This disruptive model is a new beginning for both banks and startups on the path of borrowing and lending for innovation.

Part I identifies the four outlier banks-from among the six thousand total banks-that dare to venture into the innovation-intensive sectors for lending purposes and dominate the business model of lending for innovation. Based on extensive efforts to extract data from bank lending activities, Part I reveals …

Inclusive Patents For Open Innovation, Toshiko Takenaka

Articles

The post-internet era has greatly affected commercial firms' innovation processes. The complexity and cumulative nature of emerging technologies under the post-internet era has made commercial firms reevaluate their innovation processes and has increased the role of individual innovators. Firms dealing with emerging technologies cannot make products without infringing on patents held by others, as their products are covered by numerous overlapping patents. Many of these firms work with individual innovators and embrace the open-source philosophy that ensures open access to technologies. These firms can no longer use patents for excluding others without risking infringement counterclaims, leading to the development of …

Welcome To The World Of Tomorrow: An Exploration Of Cell-Based Meats And How The Fda And Usda May Protect Intellectual Property Rights, Sean A. Grafton

Catholic University Journal of Law and Technology

Lab-grown meats are ready to be sold in United States markets. However, the meat product needs approval from regulators such as the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”). The regulation approval process takes a significant amount of time. This approval period will cut into the lab-grown meat producers’ patent time, rendering a period of the patent ineffective.

This Comment analyzes the effect of, and possible changes to, our current laws on the emerging lab-grown meat market. To look at this problem, this Comment compares FDA and USDA regulations, analyzes the Hatch-Waxman Act, and …

Pre-Game Strategy For Long-Term Win: Using Trademark Registration And Right Of Publicity To Protect Esports Gamers, John Bat

Catholic University Journal of Law and Technology

The soaring popularity of esports across the globe has turned ultra-talented gamers into a blend of athlete and entertainer. The youthful esports ecosystem is exploding in growth, and the world is taking notice. But are the gamers who are eyeing professional play taking basic legal steps to develop and shield their brands, as well as bolster their collective negotiating leverage with teams, leagues, and miscellaneous entities? This note explores what features of an up-and-coming esports gamer might be worth protecting through a trademark and/or personality-rights schema, which in turn, could assist competitive gamers who are interested in developing their careers …

Should The Ncaa Have To Pay? Long-Term Injuries In College Athletics, Improper Assumptions Of Risk, And Coverage Of Medical Expenses After College, Alexandrea Jacinto

Fordham Intellectual Property, Media and Entertainment Law Journal

Student-athletes spend years training, perfecting their sport, and working hard in school in order to make it to the big leagues: Division I College Athletics. However, when student-athletes finally get there, they are met with empty promises, and often leave with injuries that no one took the time to warn them about. That is because, despite being told that they must sign an agreement with the National Collegiate Athletic Association (“NCAA”) which binds them to the organization’s rules, athletes learn quickly that the other side of that agreement is rarely, if ever, upheld when they need it. Courts fail to …

Introduction To The Research Handbook On Intellectual Property And Technology Transfer, Jacob H. Rooksby

Law Faculty Publications

University researchers help improve lives by solving problems that impact health, happiness, and societal wellbeing. Universities harness the power of faculty innovations and disseminate them to the public, using intellectual property to create protections and provide rewards. This process of technology transfer has been vibrant in US universities since at least the Second World War and has grown in importance everywhere since then. The Bayh-Dole Act of 1980 helped spark formalized attention to technology transfer in the US and has inspired similar legislation in countries across the globe. ...

Policy Advocacy And Organizational Change At The Association Of University Technology Managers (Autm), Jacob H. Rooksby

Law Faculty Publications

Since its founding, the Association of University Technology Managers, Inc. (now preferentially called “AUTM” after a February 2018 rebranding) has played a critical role in national policy discussions relating to technology transfer, intellectual property (“IP”), federal research support, entrepreneurship, and innovation. The nonprofit association is comprised of individuals responsible for the management of technology portfolios and an increasing variety of related support programs. AUTM’s mission is “to support and advance academic technology transfer globally” by:

(1) providing members with knowledge, tools, and training for professional development,

(2) helping stakeholders understand the value and impact of technology transfer,

(3) developing partnerships …

The Hidden Value Of Abandoned Applications To The Patent System, Christopher A. Cotropia, David L. Schwartz

Law Faculty Publications

Some inventors abandon their patent applications without ever receiving a patent. Although patent scholars view such abandoned applications as essentially worthless, we question that conventional wisdom. In conducting an empirical analysis of a recently released patent application dataset (in light of a 1999 change requiring publication of most abandoned applications), we find that the United States Patent and Trademark Office (USPTO) often uses abandoned applications as prior art when examining future patent applications. Abandoned applications thus generate an administrative disclosure that prevents the issuance of broader patent rights to later applicants. By narrowing the scope of new patents, abandoned applications …

Patently Risky: Framing, Innovation And Entrepreneurial Preferences, Elizabeth Hoffman, David L. Schwartz, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

An emerging common wisdom holds that courts have made it “too hard” to obtain patent protection in critical industries. The origin of this criticism dates back at least as far as the United States Supreme Court’s 2012 landmark opinion in Mayo Collaborative Services v. Prometheus Laboratories, Inc. which (the argument goes) triggered a chain reaction of judicial opinions rendering patent rights progressively more difficult to secure. Two years later, the Supreme Court decided Alice Corp. v. CLS Bank, another opinion widely viewed as restricting patent rights. And, barely three years after Mayo, the Federal Circuit cited it in …

Intellectual Property Law And Redressive Autonomy, Shyamkrishna Balganesh

Faculty Scholarship

Intellectual property law remains a body of private law, but for reasons that transcend its reliance on ideas and concepts from the common law of property and tort. This essay argues that the connection between forms of intellectual property law and private law is rooted in a form of autonomy that characterizes private law regimes — known as “redressive autonomy.” It shows how a strong commitment to redressive autonomy undergirds the unique right–duty structure of intellectual property, informs intellectual property’s central doctrines, and injects an additional layer of normative complexity into its functioning.

Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane C. Ginsburg, Irene Caboli

Faculty Scholarship

This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …

Copyright And Economic Viability: Evidence From The Music Industry, Kristelia A. Garcia, James Hicks, Justin Mccrary

Faculty Scholarship

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major content industry — commercial music — using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life — on the order of months, rather than years or decades — but also …

Do We Need A New Conception Of Authorship?, Shyamkrishna Balganesh

Faculty Scholarship

Thank you to the organizers for having me. I’m delighted to be here. I’m going to take a step away from conceptual art, and go a little bit into history and a little bit into doctrine – and do the usual law professor thing. We law professors like to say that one of the great things about the job is that we get to overrule the Supreme Court ten thousand times a day, but the bad thing about the job is no one cares. And so, I’m going to try and make this such that you care.

Here’s the core …

Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …

Copyright Protection For Applied Art And Works Of Artistic Craftsmanship After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical …

Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg

Faculty Scholarship

Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). …

A United States Perspective On Digital Single Market Directive Art. 17, Jane C. Ginsburg

Faculty Scholarship

To a US appraiser, article 17 of the Digital Single Market Directive suggests the EU has learned from American mistakes (and from its own) in the allocation of internet intermediaries’ liability for hosting and communicating user-posted content. Before the DSM Directive, art. 14 of the 2000 eCommerce Directive set out a notice-and-takedown system very similar to the regime provided in 17 U.S.C. section 512(c). Both regimes replaced the normal copyright default, which requires authorization to exploit works, with a limitation on the liability of service providers who complied with statutory prerequisites. Because the limitation ensured that service providers would not …