Intellectual Property Law Commons^™

Uncovering The “Realness” Of Cgi Influencers, Samantha Favela

SMU Science and Technology Law Review

No abstract provided.

A Nono From Coco: The Contentious Relationship Between Luxury Brands And Resale, Caylee Phillips

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

The Death Of The Ai Author, Carys Craig, Ian Kerr

Articles & Book Chapters

Much of the recent literature on AI and authorship asks whether an increasing sophistication and independence of generative code should cause us to rethink embedded assumptions about the meaning of authorship. It is often suggested that recognizing the authored — and so copyrightable — nature of AI-generated works may require a less profound doctrinal leap than has historically been assumed. In this essay, we argue that the threshold for authorship does not depend on the evolution or state of the art in AI or robotics. Rather, the very notion of AI-authorship rests on a category mistake: it is an error …

Why Illinois Should Reevaluate Its Video Tolling (V-Toll) Subsidy, Randall K. Johnson

Faculty Works

Tolls are levies with a limited base. This base is made up of drivers that pay user fees, in cash or via electronic transponder, in exchange for access to state-administered roads. In Illinois, every single toll is a function of three factors: vehicle characteristics, tollway entry point, and how far a driver goes on state-administered roads.

It is commonly assumed that any toll violation, i.e., any failure to pay, results in a traffic ticket, administrative fees and state-imposed sanctions. Such an assumption, however, is only partly true due to overly forgiving Illinois state policies. Examples include the Traffic Ticket Exemption, …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Cardozo Law Review de•novo

The Supreme Court's recent decision in Google v. Oracle shares a perhaps unexpected connection with recent legislative proposals to enhance social media competition. At first glance they are seemingly unrelated: the former deals with copyright protection in certain portions of software code, while the latter relates to interconnection between dominant online platforms and their competitors. Yet they are closely intertwined, such that a competitive platform environment cannot be fully achieved without addressing lingering questions in Google. As a result, lawmakers ought to be motivated to address software copyrights and related matters as part of their efforts to improve competition among …

Patent Examination And Examiner Interviews, S. Sean Tu

Law Faculty Scholarship

Examiner interviews are one of the most powerful tools to help both inventors and examiners understand and overcome specific issues during prosecution. Direct discussions between an applicant and an examiner can help bridge the gap between misunderstandings of prior art, the invention, or statements in the specification. When used correctly, examiner interviews can dramatically decrease the time in prosecution and help applicants quickly reach a final disposition. This paper reviews approximately 1.1 million patent applications corresponding to every patent application with an examiner interview between 2007 and June 2020 to determine the effectiveness of examiner interviews. This study establishes that …

Offensive Mark Owners Have An Enforcement Problem, Yvette Joy Liebesman

All Faculty Scholarship

In Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for "immoral" or "scandalous" marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner’s First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court’s seminal holding of Shelley v. Kraemer illustrates …

Protecting Culturally Identifiable Fashion: What Role For Gis?, J. Janewa Osei-Tutu

FIU Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Saving Face; The Unconstitutional Use Of Facial Recognition On Undocumented Immigrants And Solutions In Ip, Audrey Knutson

IP Theory

No abstract provided.

No Standing And No Recourse: The Threat To Employee Data Under Current U.S. Cybersecurity Regulation, Georgia D. Reid

Touro Law Review

No abstract provided.

Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras

Michigan Technology Law Review

The Supreme Court’s 2013 decision in Association for Molecular Pathology v. Myriad Genetics is an essential piece of the Court’s recent quartet of patent eligibility decisions, which also includes Bilski v. Kappos, Mayo v. Prometheus, and Alice v. CLS Bank. Each of these decisions has significantly shaped the contours of patent eligibility under Section 101 of the Patent Act in ways that have been both applauded and criticized. The Myriad case, however, was significant beyond its impact on Section 101 jurisprudence. It was seen, and litigated, as a case impacting patient rights, access to healthcare, scientific freedom, …

Current Market Rates For Scholarly Publishing Services, Alexander Grossman, Björn Brembs

Copyright, Fair Use, Scholarly Communication, etc.

For decades, the supra-inflation increase of subscription prices for scholarly journals has concerned scholarly institutions. After years of fruitless efforts to solve this “serials crisis”, open access has been proposed as the latest potential solution. However, the prices for open access publishing are also high and are rising well beyond inflation. What has been missing from the public discussion so far is a quantitative approach to determine the actual costs of efficiently publishing a scholarly article using state-of-the-art technologies, such that informed decisions can be made as to appropriate price levels. Here we provide a granular, step-by-step calculation of the …

An Analysis Of Use And Performance Data Aggregated From 35 Institutional Repositories, Kenning Arlitsch, Jonathan Wheeler, Minh Thi Ngoc Pham, Nikolaus Nova Parulian

Copyright, Fair Use, Scholarly Communication, etc.

Purpose – This study demonstrates that aggregated data from the Repository Analytics and Metrics Portal (RAMP) have significant potential to analyze visibility and use of institutional repositories (IR) as well as potential factors affecting their use, including repository size, platform, content, device and global location. The RAMP dataset is unique and public.

Design/methodology/approach – The webometrics methodology was followed to aggregate and analyze use and performance data from 35 institutional repositories in seven countries that were registered with the RAMP for a five-month period in 2019. The RAMP aggregates Google Search Console (GSC) data to show IR items that surfaced …

Unesco Recommendation On Open Science

Copyright, Fair Use, Scholarly Communication, etc.

1. The aim of this Recommendation is to provide an international framework for open science policy and practice that recognizes disciplinary and regional differences in open science perspectives, takes into account academic freedom, gender-transformative approaches and the specific challenges of scientists and other open science actors in different countries and in particular in developing countries, and contributes to reducing the digital, technological and knowledge divides existing between and within countries.

2. This Recommendation outlines a common definition, shared values, principles and standards for open science at the international level and proposes a set of actions conducive to a fair and …

Operationalizing The Care And Fair Principles For Indigenous Data Futures, Stephanie Russo Carroll, Edit Herzog, Maui Hudson, Keith Russell, Shelley Stall

Copyright, Fair Use, Scholarly Communication, etc.

As big data, open data, and open science advance to increase access to complex and large datasets for innovation, discovery, and decision-making, Indigenous Peoples’ rights to control and access their data within these data environments remain limited. Operationalizing the FAIR Principles for scientific data with the CARE Principles for Indigenous Data Governance enhances machine actionability and brings people and purpose to the fore to resolve Indigenous Peoples’ rights to and interests in their data across the data lifecycle.

Scite: A Smart Citation Index That Displays The Context Of Citations And Classifies Their Intent Using Deep Learning, Josh M. Nicholson, Milo Mordaunt, Patrice Lopez, Ashish Uppala, Domenic Rosati, Neves P. Rodrigues, Peter Grabitz, Sean C. Rife

Copyright, Fair Use, Scholarly Communication, etc.

Citation indices are tools used by the academic community for research and research evaluation that aggregate scientific literature output and measure impact by collating citation counts. Citation indices help measure the interconnections between scientific papers but fall short because they fail to communicate contextual information about a citation. The use of citations in research evaluation without consideration of context can be problematic because a citation that presents contrasting evidence to a paper is treated the same as a citation that presents supporting evidence. To solve this problem, we have used machine learning, traditional document ingestion methods, and a network of …

More Than Magic Wands: Analyzing Whether Enablement Analysis Of Patent Claims Created Using Artificial Intelligence Should Be Subjected To The In Re Wands Multi-Factor Analysis, James Lenahan

Marquette Intellectual Property & Innovation Law Review

None

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao

Touro Law Review

No abstract provided.

Patents As Signals Of Quality In Crowdfunding, Christopher A. Cotropia

Law Faculty Publications

Patents and crowdfunding both attempt to foster early stage innova-tions. In theory, patents signal quality and value to attract investment and buyers and ultimately facilitate commercialization. Crowdfunding allows multiple individuals to make small contributions to finance start-up ven-tures. This Article reports on two related studies investigating the interac-tion between these two innovation tools by determining the impact of a crowdfunding campaign’s patent status on the campaign’s success and de-livery. The first study examines 9,184 Kickstarter campaigns in patent-eli-gible categories to determine whether patented or patent-pending labeled projects are more likely to reach their funding goal and in turn achieve actual, …

Substantial Similarity Substantial Similarity’S Silent Death, Daryl Lim

Faculty Scholarly Works

Copyright litigation involving hit songs like Robin Thicke’s “Blurred Lines,” Justin Bieber and Usher’s “Somebody to Love,” and Led Zeppelin’s “Stairway to Heaven” caused many in the music industry to vex over the line between homage and infringement. When are the two works too similar? To many courts and scholars, substantial similarity is “bizarre,” “ad hoc,” and “a virtual black hole in copyright jurisprudence.” Every creative work borrows some inspiration from other works, whether copyrighted or not. Judging when defendants appropriated too much is an inherently opaque and subjective enterprise, but unraveling its mysteries is critical for the flourishing of …

The Influence Of Alice: A Response To Jay P. Kesan & Runhua Wang’S Eligible Subject Matter At The Patent Office: An Empirical Study Of The Influence Of Alice On Patent Examiners And Patent Applicants, Daryl Lim

Faculty Scholarly Works

No abstract provided.

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …

The General Data Protection Regulation And Open Source Software Communities, Amye Scavarda Perrin

Cybaris®

No abstract provided.

Legal Opacity: Artificial Intelligence’S Sticky Wicket, Charlotte A. Tschider

Faculty Publications & Other Works

Proponents of artificial intelligence (“AI”) transparency have carefully illustrated the many ways in which transparency may be beneficial to prevent safety and unfairness issues, to promote innovation, and to effectively provide recovery or support due process in lawsuits. However, impediments to transparency goals, described as opacity, or the “black-box” nature of AI, present significant issues for promoting these goals.

An undertheorized perspective on opacity is legal opacity, where competitive, and often discretionary legal choices, coupled with regulatory barriers create opacity. Although legal opacity does not specifically affect AI only, the combination of technical opacity in AI systems with legal opacity …