Intellectual Property Law Commons^™

Lowering Barriers To Entry: Youtube, Fair Use, And The Copyright Claims Board, Jamie O'Neill

Fordham Intellectual Property, Media and Entertainment Law Journal

The Internet has transformed the landscape of media production by opening the doors of creation to anyone with a computer and an idea. YouTube allows for millions of individuals to post and disseminate content at a low cost to widespread audiences. But while the barriers to entry for content creation have lowered, the barriers to the legal copyright system have remained largely unmoved since YouTube’s inception. This Note seeks to explore the exact specifications of YouTube’s copyright system, both the one mandated by law and the one created voluntarily by YouTube, in order to understand where fair use stands in …

Justice Breyer And Patent Eligibility, 21 Uic Rev. Intell. Prop. L. 71 (2022), David Taylor

UIC Review of Intellectual Property Law

No abstract provided.

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board …

From Beyonce To Bohemia: Reforming Joint Copyright Ownership, William Frank Weber

Duquesne Law Review

JaQuel Knight. Reading this name, for many, will give them no feeling of recognition. The same people that do not know his name will more than likely immediately recognize this next name, Beyonce. Her name immediately conjures up iconic images, songs, and music videos. She is a global star that has released six studio solo albums, all of which have reached number one on the U.S. Billboard charts.¹ Two of Beyonce's hit songs are "Single Ladies (Put a Ring on It)" and "Formation." "Formation," with its numerous Beyonce dance routines, the solo dance of a young, hooded boy in …

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

Dignity, Intersectional Gendered Harm, And A Flexible Approach: Analysis Of The Right To One’S Image In Quebec, Yuan Stevens

Canadian Journal of Law and Technology

This article draws on critical feminist theory and the framework of intersectionality to examine how courts in Quebec have begun — and are poised — to respond to the phenomenon of the non-consensual sharing of images, particularly if they are of an intimate or sexual nature. Dunn’s work has demonstrated that Quebec’s dignity-focused approach to the protection of identity and privacy ought to guide the development of similar civil recourse provided in common law Canada. This paper fills a gap by identifying the affordances and gaps of Quebec’s legal approach from the vantage point of equality-seeking groups, with a particular …

‘‘Don’T Take On The Responsibilty Of Somebody Else’S Fu**Ed Up Behavior”: Responding To Online Abuse In The Context Of Barriers To Support, Chandell Gosse

Canadian Journal of Law and Technology

Responsibilization, in a true circular fashion, is not only born of but also benefits institutional (e.g., social media companies and law enforcement) and cultural power structures (e.g., misogyny and patriarchy). When targets of online abuse take responsibility for the abuse launched against them, that assumption of responsibility requires energy, and that energy is taken away from efforts to hold institutions and perpetrators accountable. Responsibilization tries to tranquilize change in the service of power. The tricky thing about interrupting this process is that it requires more than just offering better support. It also requires exposing, challenging, and dismantling harmful ideologies, belief …

The Ship Of Theseus: The Lanham Act, Chanel And The Secondhand Luxury Goods Market, Julie Tamerler

Fordham Intellectual Property, Media and Entertainment Law Journal

The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phale- reus, for they took away the old planks as they de- cayed, putting in new and stronger timber in their place, insomuch that this ship became a standing ex- ample among the philosophers, for the logical ques- tion of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same. – Plutarch1

Cannabis, Consumers, And The Trademark Laundering Trap, Viva R. Moffat, Sam Kamin, Timothy Maffett

Sturm College of Law: Faculty Scholarship

At the moment, cannabis companies cannot get trademark protection for their marijuana and marijuana-related products because the “lawful use” doctrine limits federal trademark protection to goods lawfully sold in commerce. Given that the drug remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers of marijuana. Without trademark rights, a cannabis company in one state can simply use the brand name of a prominent company in another state and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. As …

Bad Publicity: The Diminished Right Of Privacy In The Age Of Social Media, Kirby Shilling

Fordham Intellectual Property, Media and Entertainment Law Journal

The “public disclosure of private facts” tort involves determining if and when publication of truthful, albeit embarrassing, facts warrant liability. Such liability inherently runs into First Amendment concerns. This Note analyzes the background of this tort, its status, and its application in different jurisdictions. Scholarship and jurisprudence have traditionally balanced the right to privacy with First Amendment guarantees by looking at different factors, including whether the disclosed information is properly described as “private” and whether it is newsworthy or a matter of legitimate public interest. However, the line between “public” and “private” has become increasingly blurred with new technology and …

Symposium On The Retirement Of Justice Stephen Breyer, 21 Uic Rev. Intell. Prop. L. 35 (2022), William Ford

UIC Review of Intellectual Property Law

No abstract provided.

Justice Breyer: No Friend To Ip Law, 21 Uic Rev. Intell. Prop. L. 58 (2022), Kevin Noonan

UIC Review of Intellectual Property Law

No abstract provided.

Van Buren V. United States: An Employer Defeat Or Hacker’S Victory – Or Something In Between, 21 Uic Rev. Intell. Prop. L. 166 (2022), Melanie Assad

UIC Review of Intellectual Property Law

No abstract provided.

The United States Stands Alone: A Divergence In The Treatment Of Genus Claims In Pharmaceutical Patents, 22 Uic Rev. Intell. Prop. L. 97 (2022), Sam Habein

UIC Review of Intellectual Property Law

No abstract provided.

Culture And Fair Use, Michael P. Goodyear

Fordham Intellectual Property, Media and Entertainment Law Journal

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.

Cultural adaptations—the transformation of preexisting works to reflect the cultural and social mores and norms of a different group—would appear at first glance to be prohibited as derivative works, which, under the Copyright …

To Be Continued: How Comic Book Copyright Inequity Inspired Industry Innovation And Instilled Instrumentalities For Independence, Richard P. Metzroth

Connecticut Law Review

Before Superman first made the world believe a man can fly or Captain America greeted Hitler with a punch to the face, comic book publishers sought to exercise command over all the characters and stories that writers and artists put to paper. Until recently, this one-sided industry culture regarding ownership—reinforced by decades of court rulings in publishers’ favor—left creators with few avenues by which to retain control of their art. The legal norms that enforced creators’ subservient position in the comic book copyright ecosystem drove these authors to seek out and construct alternative systemsfrom which they could realize the benefits …

Compulsory Licensing Of Patents During Pandemics, Sapna Kumar

Connecticut Law Review

Wealthy countries with major pharmaceutical industries have historically supported strong patent rights and opposed temporarily abrogating them—even to save lives. However, as drug shortages have become commonplace due to COVID-19, governments have begun reassessing their views. The European Union and various countries have issued new policies and passed legislation facilitating their ability to provide drugs to their citizens for the duration of the pandemic. They have signaled a willingness to do so through “compulsory licensing,” in which the government issues a license to a third party to produce a patented invention without the patent holder’s permission and pays the patent …

Justice Breyer And Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Justice Breyer leaves the Supreme Court having left a significant mark on patent eligibility law. In Mayo Collaborative Services v. Prometheus Laboratories, he eliminated the ability to obtain patents on many useful applications of new (and even breakthrough) discoveries. The author discusses how Justice Breyer’s test for patent eligibility both contradicts the historical approach and has had pernicious impact on the patent system and investment in development of technology, including, and in particular, medical technologies.

The Doha Declaration At Twenty: Interpretation, Implementation, And Lessons Learned On The Relationship Between The Trips Agreement And Global Health, Eric M. Solovy

Northwestern Journal of International Law & Business

No abstract provided.

Protecting Children In The Age Of End-To-End Encryption, Laura Draper

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis D. Crouch, Homayoon Rafatijo

Faculty Publications

It has become exceedingly common in our legal system that courts, in the guise of respect for precedent, compound upon errors. Legal precedents are written documents, but "[t]he reality we can put into words is never reality itself." As such, we seldom find a court decision that embodies the entire legal reality regarding the questions presented. In this respect, the legal system inherently suffers from a lack of what mathematicians call completeness. Each decision gives rise to countless inferences because what lower courts observe by reading the precedent is not the entire legal reality but an incomplete reality exposed to …

Donald C. Brace Memorial Lecture 2021 - User Rights: Fair Use And Beyond, David Vaver

Conference Papers

My title “User Rights: Fair Use and Beyond” is meant to suggest four related phenomena:

First, that user rights may extend beyond fair dealing — Canada’s version of fair use — and that they may encompass any statutory or other defence.

Second, that they may extend beyond defences and have substantive effect.

Third, that the concept may extend beyond copyright and be applied to other IP rights.

Fourth, that such user rights may extend beyond Canada geographically.

Data Privacy, Human Rights, And Algorithmic Opacity, Sylvia Lu

Fellow, Adjunct, Lecturer, and Research Scholar Works

Decades ago, it was difficult to imagine a reality in which artificial intelligence (AI) could penetrate every corner of our lives to monitor our innermost selves for commercial interests. Within just a few decades, the private sector has seen a wild proliferation of AI systems, many of which are more powerful and penetrating than anticipated. In many cases, AI systems have become “the power behind the throne,” tracking user activities and making fateful decisions through predictive analysis of personal information. Despite the growing power of AI, proprietary algorithmic systems can be technically complex, legally claimed as trade secrets, and managerially …

Graffiti On Cities’ Forgotten Landscapes: An Application Of Adverse Possession Law To The Visual Artists Rights Act, Minelli E. Manoukian

Fordham Intellectual Property, Media and Entertainment Law Journal

Artists use any surface available to them as a canvas. There is the common: cloth and paper; the modern: skin; and even the illegal: buildings and privately-owned property. However, today, the cultural value that artwork instills in its community has grown, regardless of its legal status. Examples can be found in artwork created by graffiti artist Banksy, or even the urban installations of Tyree Guyton, creator of the Heidelberg Project in Detroit. Artists create masterpieces placed in plain sight that enrich the surrounding communities but often interfere with others’ property rights. However, the illegal or encroaching nature of the artwork …

The Patent Medium: Toward A Network Paradigm Of The Patent Medium, Or Cohen-Sasson

Fordham Intellectual Property, Media and Entertainment Law Journal

The modern patent system is conceived of as an information platform; it is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on an interdisciplinary analysis of the patent system’s structure and features through the lenses of communication studies, this Article suggests that it does. It demonstrates how the patent system—as a medium—enables …

Physiognomic Artificial Intelligence, Luke Stark, Jevan Hutson

Fordham Intellectual Property, Media and Entertainment Law Journal

The reanimation of the pseudosciences of physiognomy and phrenology at scale through computer vision and machine learning is a matter of urgent concern. This Article—which contributes to critical data studies, consumer protection law, biometric privacy law, and antidiscrimination law—endeavors to conceptualize and problematize physiognomic artificial intelligence (“AI”) and offer policy recommendations for state and federal lawmakers to forestall its proliferation.

Physiognomic AI, as this Article contends, is the practice of using computer software and related systems to infer or create hierarchies of an individual’s body composition, protected class status, perceived character, capabilities, and future social outcomes based on their physical …

The Legal Character And Practical Implementation Of A Trips Waiver For Covid-19 Vaccines, Andrew D. Mitchell, Antony Taubman, Theodore Samlidis

Fordham Intellectual Property, Media and Entertainment Law Journal

Almost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be …

Trademark Confusion Revealed: An Empirical Analysis, Daryl Lim

Faculty Scholarly Works

The likelihood of confusion standard defines the scope of trademark infringement. Likelihood of confusion examines whether there is a substantial risk that consumers will be confused as to the source, identity, sponsorship, or origin of the defendants’ goods or services. This Article presents a contemporary empirical analysis of the various factors and how they interact. Conventional wisdom teaches us that courts should comprehensively traverse each factor and that likelihood of confusion cases generally require jury determination. However, the data reveals that neither is true. Instead, courts provide early off-ramps to litigants by “economizing,” and analyzing only a handful of factors …

After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye

Law Faculty Scholarly Articles

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.

Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …

The Justiciability Of Cancelled Patents, Greg Reilly

Washington and Lee Law Review

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application …