Intellectual Property Law Commons^™

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Cryptocurrency’S Clash With Bankruptcy: Insolvent Crypto Exchange Companies Create Difficulties For Courts & Customers, Mary Taylor Stanberry

SMU Science and Technology Law Review

This comment explores the novelty of cryptocurrency, its legal ambiguity in the realms of securities, property, and tax law, and the difficulties arising from insolvent crypto-exchange company’s estates within the context of the United States Bankruptcy Code. For the purposes of this comment, individuals who invested in crypto-exchange platforms will be referred to as “customers” rather than “investors” to avoid potential confusion in the context of 11 U.S.C. § 507 of the Bankruptcy Code. Customers who invested with insolvent crypto-exchange companies are concerned about being last in line for repayment of their investments based on traditional bankruptcy creditor priority. These …

Tiktok’S Fall From Grace: How Growing Security Concerns In Chinese Technology Affect U.S. Courts And Presidential Successors, Madeline Cartwright

SMU Science and Technology Law Review

In recent years, the United States government has warned that China may use Chinese companies as a vehicle for infiltrating American data security. The U.S. first acted on this warning in 2017 when it effectively banned Huawei—one of the world’s largest telecom companies—from the U.S. market. Then-president Donald Trump subsequently turned the controversy to the popular social media app, TikTok, in an attempted ban over alleged privacy issues. Personal data collection and the legal implications behind trying to ban China-linked apps is an increasingly controversial topic in American politics. This article assesses the lawsuits following these groundbreaking governmental movements, including …

“Hits & Writs, Take Two”: Revising The Laws Of De Minimis Music Sampling, Jeffrey Prystowsky

Roger Williams University Law Review

No abstract provided.

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Michigan Technology Law Review

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Income Tax (Treasury) Unhappy: Efficacy Of Media Campaigns And Tax Noncompliance, Limor Riza

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article systematically evaluates the effectiveness of governmental media campaigns and considers whether we should invest in educating society via such campaigns to increase tax compliance, primarily in light of the intrinsic flaw of taxation.

Is a radio spot that starts with the sound of scary footsteps approaching you, followed by an announcer who says in a deep and intimidating voice, “we’re closing in on undeclared income,” effective? To answer those questions, this Article proposes and showcases a four-step analysis—the ARMS scheme (Aim, Reason, Media-Methods, Sorting). First, the government’s aim of increased tax compliance is identified and declared (Step I: …

Managing Digital Resale In The Era Of International Exhaustion, Seth Niemi

Indiana Journal of Global Legal Studies

The Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament both guarantee copyright holders’ exclusive rights of reproduction and distribution of their copyrighted material. Starting from a similar statutory basis, United States and European Union courts have diverged in their interpretation of these protections with respect to the first sale rule for digital goods. This paper analyzes the treatment of such “digital exhaustion” arguments under copyright law between the two legal systems from both the statutory interpretations employed and the policy rationales considered. The paper concludes by discussing the implications of adoption of digital exhaustion, within international law, …

The Next 100 Years Of International Intellectual Property: Integrating Human Rights And Corporate Social Responsibility, J. Janewa Osei-Tutu

Articles

No abstract provided.

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Psychedelic Drugs & The Prior Art Problem, Anneli E. Kawaoka

Indiana Law Journal

For the first time since the War on Drugs began in the 1970s, researchers have returned to the promise of psychedelic drugs for treating the growing mental health crisis in the United States. As research into psychedelic drugs as a conventional treatment method for mental health conditions grows, so does the number of filings at the U.S. Patent & Trademark Office for psychedelic-related patents. But the decades-long lapse in the development of psychedelic drugs creates the risk that low-quality psychedelic patents will issue, giving limited monopolies to companies that have not truly innovated in the psychedelic space. In this Note, …

Cryptic Patent Reform Through The Inflation Reduction Act., Arti K. Rai, Rachel E. Sachs, Price W. Nicholson

Articles

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Copyright And Racism, Kimber Thomas

Copyright, Fair Use, Scholarly Communication, etc.

Slides on copyright and racism by Dr. Kimber Thomas with an emphasis on United States copyright.

Includes points related to the origin of United States copyright law, original authorship and tangibility requirements, creation of works via oral or visual tradition and knowledge, the useful articles exclusion, and works made for hire.

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Marquette Intellectual Property & Innovation Law Review

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100 Years Of International Ip - Reflections On Past, Present And Future, Frederick M. Abbott

Scholarly Publications

We have been asked to reflect on the past 100 years of international intellectual property law and to try to project forward about what changes might be necessary or desirable in the future. Only a science fiction writer would purport to have some idea about what things might look like a hundred years in the future, including from the standpoint of international intellectual property, so my remarks on that will be somewhat more proximate to the present.

Achieving A (Copy)Right To Repair For The Eu’S Green Economy, Anthony D. Rosborough, Leanne Wiseman, Taina Pihlajarinne

Articles, Book Chapters, & Popular Press

• The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented.

• This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and …

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Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Articles, Book Chapters, & Popular Press

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Hit The Road, Jack: The Auto Industry As The Next Vehicle For Predatory Infringement, Kristen Jakobsen Osenga

Law Faculty Publications

While patents, patent litigation, and patent pools have been part of the automotive industry since the late-1800s, the prevalence of technology covered by standards and accompanying standard essential patents (SEPs) is much more recent. Today’s smart cars and the widespread incorporation of telecommunication and Internet of Things standards in vehicles raise concerns about how well the automotive industry will be able to adapt to this new SEP-laden future. This article predicts that predatory infringement of SEPs for two related reasons. First, although some industries, such as telecommunications, have long dealt with SEPs, the incorporation of standardized technology is more recent …

Vested Patents And Equal Justice,, Adam J. Macleod

Faculty Articles

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law 's interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure …

Private Ownership Of Public Facts: Docudramas, Deals, And Life Story Rights, David Fagundes, Jorge L. Contreras

Faculty Articles

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, David Fagundes

Faculty Articles

Commentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision’s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board (“CRB”) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB’s composition did not offend the Appointments Clause as long as Copyright Royalty Judges (“CRJs”) were removable at-will. But when the Court invalidated the selection process for administrative patent judges …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

Faculty Articles

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

How Patents Became Politics, Steven Wilf

Faculty Articles and Papers

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for Open Source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a little-known …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Transfers And Licensing Of Copyrights To Nft Purchasers, Michael D. Murray

Law Faculty Scholarly Articles

Property as a concept in the law means the right to own and control something and to exclude others from using and controlling it. This concept often is expressed as the rights owner having a monopoly over the thing that is owned. When the term “intellectual” is added to the concept of property, it means that the thing protected is a non-tangible item devised, imagined, developed, or invented by a person or group, and that thing has value deserving of protection in the law. Copyright is one form of intellectual property (“IP”), the others being trademarks, patents, right of publicity, …

Trademarks, Nfts, And The Law Of The Metaverse, Michael D. Murray

Law Faculty Scholarly Articles

This Article discusses the early encounters of NFTs, trademarks, and the legal system. This work will examine the areas where NFT creators are getting into or are likely to get into trouble with the law and policy of trademark infringement, trademark dilution, and the related legal causes of action of false endorsement and false designation of origin. United States law is being applied in lawsuits that already are being adjudicated in the real world concerning subject matter that exists only in cyberspace, the pre-cursor to the metaverse.

Nft Ownership And Copyrights, Michael D. Murray

Law Faculty Scholarly Articles

Non-fungible tokens (NFTs) have made enormous waves in the art, music, entertainment, and collectibles world, but the backwash of this blockchain technology has inundated and overwhelmed many peoples’ understanding of intellectual property (IP) law in general and copyright law in particular when it comes to NFTs and blockchains. Artists and creatives who mint NFTs often have very different understandings and expectations from collectors and investors who purchase and use them when it comes to the copyrights associated with the content linked to an NFT. Art law attorneys may not have gone fully down the rabbit hole that is the current …

Generative Ai Art: Copyright Infringement And Fair Use, Michael D. Murray

Law Faculty Scholarly Articles

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to …