Intellectual Property Law Commons^™

Ericsson Inc., And Telefonaktiebolaget Lm Ericsson V. Samsung Elecs. Co, Ltd., Samsung Elecs. America, Jorge L. Contreras, Ann Bartow, Michael A. Carrier, Crista Laser, Joshua D. Sarnoff, Peter K. Yu

Utah Law Faculty Scholarship

Unopposed Motion for Leave to File Brief of International Intellectual Property Law Professors as Amici Curiae in Support of Neither Party

The Internet Archive’S National Emergency Library: Is There An Emergency Fair Use Superpower?, Aaron Schwabach

Northwestern Journal of Technology and Intellectual Property

On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law …

You Belong With Me: Recording Artists’ Fight For Ownership Of Their Masters, Ann Herman

Northwestern Journal of Technology and Intellectual Property

Copyright law, governed by the Copyright Act, is based on utilitarian theory, which balances artists’ interests in ownership of theircreations with the public’s interest in accessing and enjoying such creations. Copyright law provides for rights for creators of sound recordings, which include master rights—the recording artist’s copyright in the recording. Taylor Swift has brought the concept of master rights into the forefront of pop culture. In June 2019, Swift’s masters—the original sound recordings of her songs—were sold, and she publicly aired her dissatisfaction with the sale, as well as with overall premise that artists do not have a complete right …

The Norms Of Algorithmic Credit Scoring, Nikita Aggarwal

Articles

This article examines the growth of algorithmic credit scoring and its implications for the regulation of consumer credit markets in the UK. It constructs a frame of analysis for the regulation of algorithmic credit scoring, bound by the core norms underpinning UK consumer credit and data protection regulation: allocative efficiency, distributional fairness and consumer privacy (as autonomy). Examining the normative trade-offs that arise within this frame, the article argues that existing data protection and consumer credit frameworks do not achieve an appropriate normative balance in the regulation of algorithmic credit scoring. In particular, the growing reliance on consumers' personal data …

The Library Of Babel For Prior Art: Using Artificial Intelligence To Mass Produce Prior Art In Patent Law, Lucas R. Yordy

Vanderbilt Law Review

Artificial intelligence is playing an increasingly important role in the invention and innovation processes of our society. To date, though, much of the academic discussion on the interaction of artificial intelligence and the patent system focuses on the patentability of inventions produced by artificial intelligence. Little attention has been paid to organizations that are seeking to use artificial intelligence to defeat the patentability of otherwise patent-worthy inventions by mass producing prior art. This Note seeks to highlight the consequences of allowing mass-produced, AI-generated prior art to render valuable inventions unpatentable. Specifically, this Note concludes that AI-generated prior art decreases the …

The Future Of Female Inventors In The United States: A Comparative Analysis To The Republic Of Korea, Payton Hoff

IP Theory

No abstract provided.

Death Of The Author: The Evolution And Expansion Of The Government Edicts Doctrine In Copyright Law, Elizabeth Selph

Mercer Law Review

Codification of the law is an expensive and time-consuming task that requires a certain level of skill and an ability for quick turnaround of product. Because of this, Congress and a majority of state legislatures hire companies, pursuant to their respective jurisdictions, with legal experts who organize legal information from a wide swath of sources into masterfully-constructed annotations brimming with helpful information to the reader. These annotations are so useful that the federal and state judiciary often employ them to understand statutes that are unclear or to define the scope of statutes. Moreover, these annotations, due to the nature of …

The Oa Diamond Journals Study, Part 2: Recommendations, Arianna Becerril, Lars Bjørnshauge, Jeroen Bosman, Jan Erik Frantsvåg, Bianca Kramer, Pierre-Carl Langlais, Vanessa Proudman, Claire Redhead, Didier Torny, Pierre Mounier

Copyright, Fair Use, Scholarly Communication, etc.

Science Europe and cOAlition S publish an in-depth report and recommendations arising from a study of community-driven Open Access journals across the world that are free for readers and authors, usually referred to as 'OA diamond journals'.

The study examines the areas that are critical for OA diamond journals, from legal structures and governance to technical capabilities, editorial processes, and funding models. The recommendations made in the report are designed to help research funding organisations, institutions, scholarly societies, and infrastructures sustainably strengthen OA diamond journals in the context of Open Science.

The study was commissioned by cOAlition S and funded …

Achieving Privacy: Costs Of Compliance And Enforcement Of Data Protection Regulation, Anupam Chander, Meaza Abraham, Sandeep Chandy, Yuan Fang, Dayoung Park, Isabel Yu

Georgetown Law Faculty Publications and Other Works

Is privacy a luxury for the rich world? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement, or too expensive for governments to enforce. This paper is the first to offer a review of surveys of costs of compliance, and to summarize national budgets for enforcement. The study shows that while privacy may indeed prove costly for companies to implement, it is not too costly for governments to enforce. This study will help inform governments as they fashion and implement privacy laws to address the “privacy enforcement gap”—the disparity between the …

Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman

Articles

Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …

Artificial Intelligence And Access To The Patent System, W. Keith Robinson

Nevada Law Journal

No abstract provided.

Antitrust Policy Toward Patent Licensing: Why Negotiation Matters, Daniel F. Spulber

Minnesota Journal of Law, Science & Technology

No abstract provided.

A License To Plagiarize, Brian L. Frye

University of Arkansas at Little Rock Law Review

No abstract provided.

Geographical Indications: New Perspectives And Recent Developments, Irene Calboli

Faculty Scholarship

Not even three decades ago, Geographical Indications (GIs) were a niche subject. Scholarship on the topic was rare, in particular, in the English-speaking world. Then, after the adoption of the TRIPS Agreement, the role of GIs started to become increasingly more prominent at the multilateral level, as well as part of free trade agreements' negotiations and national policies. This translated to a growing body of scholarship that included not only authors from Europe, the continent from which GIs originate, but also from other countries and the global South. In the past ten years, attention to GIs has continued to grow …

Brand New World (Parallel Session 1.B. - Trademarks), Christine Farley

Presentations

By American University Washington College of Law, Texas A&M University School of Law, and University of Utah S.J. Quinney College of Law.

The Legal Protection Of Trade Secrets: A Comparative Analysis Of Saudi And American Trade Secret Regulations In Light Of The Trips Agreement, Ziyad Ahmed Al-Qurashi

UAEU Law Journal

The present paper undertakes a comparative analysis of the legal rules governing the protection of trade secrets in Saudi Arabia and the U.S. in light of the provisions of the TRIPs agreement. The paper reviews the attempts made by legal writers to define trade secrets and the difference between trade secrets and other forms of intellectual property rights. Moreover, it discusses the definition of trade secrets according to Saudi and U.S. laws and the sources of trade secrets Law in both the U.S. and the Kingdom of Saudi Arabia. The paper explores the differences and similarities between the system of …

Code Of Best Practices In Fair Use For Open Educational Resources: A Guide For Authors, Adapters & Adopters Of Openly Licensed Teaching And Learning Materials, Meredith Jacob, Peter Jaszi, Prudence S. Adler, William Cross

Copyright, Fair Use, Scholarly Communication, etc.

This code of best practices includes descriptions, hard cases, principles, and considerations for fair uses of materials in open educational resources with respect to United States copyright law, and with some discussion of copyright outside the United States context.

Open Educational Resources and Fair Use

Educators, librarians, and institutions have invested in the creation of openly licensed, freely distributed open educational resources (OER) to advance a wide range of goals within the educational system. Open educational resources enable flexible and open pedagogy; increase access to authorship and facilitate representation of different student experiences; and increase equity by reducing the barriers …

Performers And Portrayers (Reviewing Shelly Kreiczer-Levy & Ronit Donyets-Kedar, Better Left Forgotten : An Argument Against Treating Some Social Media And Digital Assets As Inheritance In An Era Of Platform Power, 84 Brook. L. Rev. 703 (2019)), Katheleen Guzman

Other Faculty Publications

No abstract provided.

Plenary Session 2 - The Impact Of “Impact” In Ip Scholarship: Citations, Downloads And Why We (Should/Don’T) Care, Christine Farley, Gregory N. Mandel, Leah Chan Grinvald, Kimberlee Weatherall, Paul Heald

Presentations

By American University Washington College of Law, Texas A&M University School of Law, and University of Utah S.J. Quinney College of Law.

New Innovation Models In Medical Ai, Nicholson Price Ii, Rachel Sachs, Rebecca S. Eisenberg

Law & Economics Working Papers

In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those which resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those that relate to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of …

United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller

Catholic University Law Review

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

Taking Access Seriously, Bj Ard

Texas A&M Law Review

Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms.

So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies …

Is The Word "Consumer" Biasing Trademark Law?, Dustin Marlan

Texas A&M Law Review

Our trademark law uses the term “consumer” constantly, reflexively, and unconsciously to label the subject of its purpose—the purchasing public. According to the U.S. Supreme Court, trademark law has “a specialized mission: to help consumers identify goods and services they wish to purchase, as well as those they want to avoid.” As one leading commentator puts it, “trademarks are a property of consumers’ minds,” and “the consumer, we are led to believe, is the measure of all things in trademark law.”

Much criticism has been rightly levied against trademark law’s treatment of the consumer as passive, ignorant, and gullible. For …

Opening - Welcome And Instructions, Christine Farley, Irene Calboli, Jorge Contreras, J. Glynn Lunney

Presentations

By American University Washington College of Law, Texas A&M University School of Law, and University of Utah S.J. Quinney College of Law.

Modalities, Challenges, And Possibilities: An Introduction To The Pharmaceutical Innovation Symposium, Peter K. Yu

Texas A&M Journal of Property Law

On October 25, 2019, the Texas A&M Journal of Property Lawand the Center for Law and Intellectual Property at Texas A&M University School of Law jointly organized the “Pharmaceutical Innovation, Patent Protection, and Regulatory Exclusivities” Symposium. Although none of the organizers and participants could predict what was to come in the next few months, there was a wide consensus that the rapid changes in the pharmaceutical landscape and our continuous struggle to strike a proper balance between proprietary protection and public access in the public health arena deserves scholarly, policy, and regulatory attention.

To help contextualize the articles included in …

The Biologics Price Competition And Innovation Act 10--A Stocktaking, Yaniv Heled

Texas A&M Journal of Property Law

On March 23, 2010, President Obama signed into law the Biologics Price Competition and Innovation Act (BPCIA) as part of the Patient Protection and Affordable Care Act (“Obamacare”). The purpose of BPCIA was to create for biologics a regime similar to that of the Drug Price Competition and Patent Term Restoration Act (Hatch–Waxman Act) and, in so doing, to open biologics markets to competition and, subsequently, lower the price of these expensive and increasingly important pharmaceuticals. Using original data, this Essay takes stock of the decade that has passed since the enactment of BPCIA. This Essay surveys the state of …

The Problem Of Recourse To Arbitration In Intellectual Property Disputes Within National Laws: Comparative Study On Patent, Trademark And Copyright Disputes, Mahmoud Ismail Abu Turabi

UAEU Law Journal

This study tries to answer the following question: could the intellectual property rights being a subject of arbitration in case of dispute? To answer the question, we need to study the legal nature of the intellectual property and the legal basic to get protection. It is a comparative study between Jordanian law and French law.

So You Want To Be An Author: A Comparative Analysis Of The Authorial Rights Awarded To Performers, Daniel Gomez

St. John's Law Review

(Excerpt)

In his classic 1980 song “On the Road Again,” Willie Nelson articulates that “the life [he] love[s] is making music with [his] friends.” This affinity for the life of a traveling performer likely has little to do with his authorial rights under the Copyright Act. However, as this Note demonstrates, Mr. Nelson indeed benefited from favorable authorial rights when compared to other types of performers, beyond the rights he acquired as the song’s writer. Specifically, the current law around the default authorial rights of performers provides greater protection to performers of sound recordings than it affords to visual and …

Nothing Is Inevitable: A Rejection Of The Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Jacqueline R. Mancini

St. John's Law Review

(Excerpt)

Until June 2013, Manish Desai worked for Molon Motor and Coil Corporation (“Molon”) as Head of Quality Control. In June of that year, Desai left Molon to take a position with a competitor of Molon, Nidec Motor Corporation (“Nidec”). Molon brought suit against Nidec for trade secret misappropriation and alleged that Desai copied confidential information onto a flash drive before his departure. Based on these allegations, Molon argued not only that Desai unlawfully disclosed its trade secrets but also that “Nidec used and continues to use that information.” Molon brought suit under the federal Defend Trade Secrets Act and …

Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick

St. John's Law Review

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …