Intellectual Property Law Commons^™

Clearing Opacity Through Machine Learning, Arti K. Rai, W. Nicholson Price Ii

Faculty Scholarship

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

But these machine-learning tools are often as opaque as the underlying systems, whether because they are complex, nonintuitive, deliberately kept secret, or a synergistic combination of those three factors. A burgeoning literature addresses challenges arising from the opacity of machine-learning systems. This literature has largely focused on …

The (Unnoticed) Revitalization Of The Doctrine Of Equivalents, Daryl Lim

Faculty Scholarly Works

No abstract provided.

Saving Substantial Similarity, Daryl Lim

Faculty Scholarly Works

Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin's signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle's dispute over computer code all required courts to grapple with this fundamental analysis. This Article reveals that today's copyright plaintiffs have only a one-in-ten chance of winning--the worst in a century--and also discusses the cause of this trend--defendants' devastatingly effective use of pretrial motions and the rise of lawsuits against nonrival defendants. Scholarly debates on substantial similarity typically revolve around the works of …

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul R. Gugliuzza

Utah Law Faculty Scholarship

Imagine the following advertisement popping up on Craigslist: "FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of!"

That probably seems bizarre. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, …

Golan V Holder’S Impact On Orchestra Performance Programming: Annotated Bibliography, Craig M. Winston

Musicology and Ethnomusicology: Student Scholarship

This project will examine how changes in copyright law enacted with the Supreme Court’s 2012 decision on Golan v Holder affect the performance programming of American symphony orchestras. The court’s decision brought many previously public-domain, foreign works under copyright protections in accordance with the Uruguay Rounds Agreement Act; among the musical works were frequently performed pieces by composers such as Prokofiev, Rachmaninoff, and Stravinsky. The result is that previously free or low-cost works would now have to be licensed or rented for performance at great expense to the performing group. I will seek to test a hypothesis proposed by legal …

Creating An Open Works Workshop, Jenelys Cox, Nicolas Parés

University Libraries: Staff Scholarship

Learn how to use Creative Commons licensing, choose a hosting platform, and remix open resources. This workshop explores open resource repositories, examines Creative Commons licenses, remixes materials into a group creative work, and walks participants through considerations when hosting works. This workshop supplies valuable, hands-on experience for participants.

Masthead, Case Western Reserve Journal Of Law, Technology & The Internet

Journal of Law, Technology, & the Internet

No abstract provided.

Substantial Similarity’S Silent Death, 48 Pepp. L. Rev. 713 (2021), Daryl Lim

UIC Law Open Access Faculty Scholarship

No abstract provided.

Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher

Kernochan Center for Law, Media, and the Arts

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part …

For An Anti-Discrimination Act For Cyberspace: Two-Sided Pricing, Walled Gardens, And The Depletion Of The Marketplace Of Ideas, Julien Mailland

UC Law SF Communications and Entertainment Journal

In the wake of renewed policy interest for the regulation of Internet gatekeepers, I argue that the U.S. Congress should pass a sweeping net neutrality regulation, an Anti-Discrimination Act for Cyberspace. Breaking with the tradition of siloed research which has seen similar proposals grounded in economics, computer science, history, political philosophy, and administrative and constitutional law, as separate matters, I offer a multi-disciplinary approach which combines these fields to draw new insights for Internet law and policy. I argue, with reference to leading Supreme Court cases, including Pruneyard Shopping Center v. Robins, that such a law would most likely pass …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

Scholarly Works

This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald

Scholarly Works

The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …

Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Scholarly Works

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Scholarly Works

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one’s trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on …

Whole Designs, Sarah Burstein

University of Colorado Law Review

In the past decade, there has been a renewed interest in the concept of patentable subject matter-that is, what kinds of things can you get a patent for? But this attention has, to date, been focused on utility patents, the patents that protect how things work. There has been scant attention paid to statutory subject matter and design patents, the patents that protect how things look. These patents have gained prominence in both practice and scholarship since the $1 billion verdict in Apple v. Samsung. The time has come to take the question of design patentable subject matter seriously. Today, …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

Perma.Cc And Web Archival Dissonance With Copyright, Paul D. Callister

Faculty Works

Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web.

This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the …

Promoting Corporate Irresponsibility? Delaware As The Intellectual Property Holding State, Xuan-Thao Nguyen

Articles

This article is about Delaware corporate irresponsibility. Delaware has stealthily become the center of all things intellectual property. As the leader of onshore tax havens since the early 1980s, Delaware attracts multistate corporations to engage in aggressive tax avoidance schemes. Specifically, Delaware has legislatively and methodically attracted the creation of Intellectual Property Holding Companies (IPHCs), enabling companies to avoid paying their share of taxes to sister states on the income generated from the use of Intellectual Property assets. This article traces the rise of Delaware as the intellectual property state and concludes that the benefits Delaware enjoys promote corporate irresponsibility …

Attitudes Towards Ip Present Among Seattle Craft Breweries, Zahr K. Said

Articles

No abstract provided.

Saving Substantial Similarity, 73 Fla. L. Rev. 591 (2021), Daryl Lim

UIC Law Open Access Faculty Scholarship

Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin's signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle's dispute over computer code all required courts to grapple with this fundamental analysis. This Article reveals that today's copyright plaintiffs have only a one-in-ten chance of winning--the worst in a century--and also discusses the cause of this trend--defendants' devastatingly effective use of pretrial motions and the rise of lawsuits against nonrival defendants. Scholarly debates on substantial similarity typically revolve around the works of …

The (Unnoticed) Revitalization Of The Doctrine Of Equivalents, 95 St. John's L. Rev. 65 (2021), Daryl Lim

UIC Law Open Access Faculty Scholarship

No abstract provided.

Child-Proofing Global Public Health In Anticipation Of Emergency, Frederick M. Abbott

Scholarly Publications

No abstract provided.

Masthead, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Seeing (Platforms) Like A State: Digital Legibility And Lessons For Platform Governance, Neil Chilson

Catholic University Journal of Law and Technology

The growing backlash against Big Tech companies is a symptom of digital technology increasing the world’s legibility. James C. Scott’s book, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, explores how past governments responded to increased legibility – for good and for ill. This article shows how Scott’s historical lessons can guide governments and tech platforms as they seek to improve the human condition online.

To Innovate Or Regulate: How To Regulate Cloud Service Providers Within Financial Institutions, Morgan Willard

Catholic University Journal of Law and Technology

The purpose of this article is to analyze whether cloud service providers should be considered Systemically Important Financial Market Utilities (SIFMU), subjecting them to increased oversight. It also considers the risks and benefits associated with the use of the technology by financial institutions, as well as potential alternatives. Overall, this article argues that cloud service providers do not fall under the current SIFMU framework, and any regulation of the technology should strive to strike a balance between innovation and safe regulation.

Hybrid Ip Rights For Software, Apis, And Guis: Understanding Copyright's Paradigm Shift, Howard Skaist

Catholic University Journal of Law and Technology

The non-literal scope of protection for software is intricate legally and is intricate technical. Thus, despite literally decades of court decisions and a mountain of legal scholar written on the subject in that time, it appears that there is still no consistent agreement about it, as evidenced by the Google v. Oracle which has percolated in the courts for nearly a decade and is now being heard by the US Supreme Court (oral argument was on October 7, 2020). However, the thesis of this article that a legal construct is capable of being formulated that is analytically consistent and that …

Table Of Contents, Editor-In- Chief

Catholic University Journal of Law and Technology

No abstract provided.

Plus Or Minus America: Spanski, Geoblocking Technology, And Personal Jurisdiction Analysis For Nonresident Defendants, Daniel Canedo

Fordham Intellectual Property, Media and Entertainment Law Journal

The use of a geoblock—technology that restricts access to websites based on user location—is a controversial topic, and one that plays a role in defining the scope under which nonresident defendants may be subjected to the personal jurisdiction of U.S. courts in copyright infringement cases. For example, a recent D.C. Court of Appeals case, Spanski Enterprises, Inc. v. Telewizja Polska, S.A., involved a Polish television network whose geoblock setting, known as “minus America,” failed to restrict website access in violation of a Canadian company’s exclusive rights under the U.S. Copyright Act. Cases like Carsey-Werner Co., LLC v. British Broadcasting Corp. …

Conventional Protections For Commercial Fan Art Under The U.S. Copyright Act, Rachel Morgan

Fordham Intellectual Property, Media and Entertainment Law Journal

For many years, artists and consumers of pop culture have channeled their artistic skills into creating derivative works of their favorite fictional stories and characters. In the United States, fans of Japanese anime and manga have made a living selling artwork of their favorite characters at anime conventions, large gatherings that bring in fellow fans from all around the country. Despite the prevalence of this practice, there is a glaring legal issue: these fictional characters are the intellectual property of the authors who created them, and fan art is blatant copyright infringement. However, there are still many economic advantages to …