Intellectual Property Law Commons^™

Restorative Justice For International Traditional Cultural Expression Ownership Disputes, Sandra H. Sulzer

Michigan Journal of International Law

Traditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when …

Holograms Are Taking Over The World! An Analysis On Legal Implications Holograms Pose In Right Of Publicity And Copyright Law, Marie A. Kessel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

An Information Theory Of Intentional Trademark Infringement, Jake Linford

Scholarly Publications

Critiques of the intent inquiry in trademark likelihood of confusion cases are somewhat misguided in light of theories about how information is transmitted in communication systems. Properly calibrated legal systems can incentivize better information flow and appropriate behavior by commercial actors using information forcing default rules. This Article considers trademark law's information transmission function in light of legal theories about the efficiencies captured through information forcing rules, as well as Claude Shannon's information theory, which provides a model for information transmission and important insights for how to optimize the signal-to-noise ratio in the commercial market. Defendants who run afoul of …

The Use Of Clearview Ai To Support Warrants Violates The Fourth Amendment, Kevin Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

Social media platforms encouraged millions of Americans to post hundreds of photos of themselves on the Internet. Clearview AI, a tool that harnesses “publicly available” online images for facial recognition, violated those platforms’ terms of service to collect those photos and in doing so de-anonymized millions of Americans. This Note examines the Fourth Amendment implications of law enforcement’s use of Clearview AI and its compatibility with constitutional protections. This Note argues that the use of Clearview AI by police to support warrant applications runs afoul of established legal standards by analyzing the evolution of Fourth Amendment ju …

Masthead

Catholic University Journal of Law and Technology

No abstract provided.

Table Of Contents

Catholic University Journal of Law and Technology

No abstract provided.

Increasing Transparency Within City Government Using Blockchain Technology, Jennifer Ayala

Featured Student Work

When the news or a friend mentions blockchain technology, is it typically always referenced in the context of cryptocurrency? While cryptocurrencies do rely on blockchain technology to record financial transactions between people and businesses,

1 government agencies have begun testing how blockchain technology could improve the lives of constituents.2 A notable advantage of implementing blockchain technology within government, however, is that it has the possibility to prevent corruption due to its very nature.3 The City and County of San Francisco has been the latest victim of government corruption in recent years,

4 with the most recent scandal involving the indictment …

The Phillie Phanatic Hits Free Agency: An Analysis Of Phillies V. Harrison And The Application Of Copyright Law To Mascots As Characters, Olivia C. Giles

Duquesne Law Review

Wacky, chaotic, lovable. These are just a few words used to describe mascots of all types, especially the Phillie Phanatic. The Phanatic is arguably one of the most well-known and recognizable mascots in sports. Its taunting of opposing teams and goofy yet aggressive personality have shifted the mascot landscape; as the way mascots are perceived continues to change, so does the number of teams hoping to use them.¹ The Phanatic's antics at games have led to trouble more than a few times, gaining it the title of the mostsued mascot in sports.² Nonetheless, the Phanatic is a cherished …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

Got To Give It Up: Why United States Courts Should Stop Hearing Music Copyright Infringement Cases And Allow Experts To Determine "Substantial Similarity", Alexander J. Loverich Bernard

Duquesne Law Review

Mark Twain wrote in 1903, "[w]henever a copyright law is to be made or altered, then the idiots assemble."¹ The expansion of copyright protection has made copyright law the most important legal regulation in the field of entertainment law.² As a result of stricter regulation through judicial verdicts, music copyright disputes have left inequitable resolutions for artists of all backgrounds.³ This Article suggests a twofold, alternative approach to litigation in resolving music copyright infringement disputes: (1) the use of Expert Determination (ED) through the World Intellectual Property Organization (WIPO) to evaluate "substantial similarity" at the trial level, …

Artificial Intelligence Models May Not Have Owners, Devin Owens

Akron Law Student Publications

While new artificial intelligence models see unprecedented investment, serious questions exist about the ownership of the models themselves under existing intellectual property structures. AI models, as compilations of information created largely autonomously by algorithms from sets of training data, may not be suited for the subject matter and inventorship/authorship requirements of traditional patent and copyright protection. The literature assumes that trade secrecy will protect AI models, which are largely kept secret on remote servers away from direct inspection by users, but model extraction attack methods known since 2016 are effective in copying any AI model that can be queried. This …

Spilling The Beans On Trade Dress: Whether Trade Dress Protection Gives Rise To Liability Under A Section 32 Claim On Trademark Infringement, Dahna S. Kazemyan

UIC Review of Intellectual Property Law

No abstract provided.

The Cost Of Compensation: A Novel Licensing Platform For Digital Content Poses Unique Compromise For Artists And Generative Ai Developers, Liberty R. Smith

UIC Review of Intellectual Property Law

No abstract provided.

Access To Justice For Black Inventors, Jordana R. Goodman, Khamal Patterson

Vanderbilt Law Review

To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.

An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art ("PHOSITA") would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use …

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Copyright For Imitations: Looking At The Registered Design Book Of William Stirling & Sons, Isabel Monseau

Textile Society of America: Symposium Proceedings

The design and production of printed cotton in the United Kingdom underwent great changes through the nineteenth century. However as the industry grew, many manufacturers became concerned about a perceived decline in the quality of textile design. An attempt made to regulate this industry, the Copyright of Design Act of 1842, proposed to improve the quality of British production by enabling designers and proprietors to register their textile designs and thus prohibit other firms from pirating those original designs.

Yet imitations were crucial to the development and success of Britain’s cotton printing industry. By the 1870s, up to 60% of …

Algorithmic Financial Regulation: Limits Of Computing Complex Adaptive Systems, Shuping Li

American University Business Law Review

This article examines the potential of and limits to the use of machine learning for financial regulation. Ideally, if we could fully understand the financial system and agree on long- and short-term regulatory goals, we would be able to write code that carries out the computation that extracts proper representations from the data and makes correct regulatory decisions. We cannot do this yet because of limited sources of data, the bias brought by human beings and algorithmic models, and the difficulty of improving uninterpretable models. Furthermore, since law is a combination of merits and facts, there are difficulties in establishing …

Constructing Solutions: Addressing Liability And Ownership Risks Associated With Business Information Modeling, Connor Sheehy

American University Business Law Review

This Comment will first discuss the background of BIM, including its technological characteristics and implementation into a complex construction project, as well as the potential benefits that incentivize parties to utilize BIM in a project. Next, this Comment will discuss the legal risks and uncertainty associated with BIM, particularly regarding ownership and liability. Specifically, this Comment will focus on ownership of the intellectual property and designs within an overall model and will contrast liability in traditional construction projects with liability in a construction project utilizing BIM. Lastly, this Comment will discuss potential solutions to these risks and uncertainties. The analysis …

Stakeholder Capitalism’S Greatest Challenge: Reshaping A Public Consensus To Govern A Global Economy, Leo E. Strine Jr., Michael Klain

Seattle University Law Review

The Berle XIV: Developing a 21st Century Corporate Governance Model Conference asks whether there is a viable 21st Century Stakeholder Governance model. In our conference keynote article, we argue that to answer that question yes requires restoring—to use Berle’s term—a “public consensus” throughout the global economy in favor of the balanced model of New Deal capitalism, within which corporations could operate in a way good for all their stakeholders and society, that Berle himself supported.

The world now faces problems caused in large part by the enormous international power of corporations and the institutional investors who dominate their governance. These …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Statement Of Michael Doane Before The Committee On The Judiciary, Subcommittee On Courts, Intellectual Property And The Internet, Michael Doane

Akron Law Faculty Publications

Section 337 provides U.S, intellectual property rights owners unique and effective relief against infringing products imported into the United States. The USITC and the U.S. Court of Appeals for the Federal Circuit have already taken steps to limit the ability of patent trolls to use Section 337 through tightening the domestic industry requirement. Efforts to address purported abuse will ultimately negatively impact those that Section 337 was expressly amended to protect. Amendments to Section 337, therefore, are unnecessary.

Commercializing Copyright, Shani Shisha

Faculty Journal Articles and Book Chapters

Much of modern copyright law is cloaked in the language of neutrality. No matter how successful or popular, all copyrighted works are shielded by the same rights. In theory, our system neither celebrates nor condemns commercial success. All works are created equal under the law. This standard account is radically askew. In reality, questions of commercial success pervade virtually every aspect of copyright doctrine. Courts consider whether the work is commercially successful in cases spanning a range of doctrinal contexts, including the scope of protectable subject matter, the standards of liability, the limits of fair use, and the range of …

Infringement Episodes, Shani Shisha

Faculty Journal Articles and Book Chapters

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, …

The Tensions Between Copyright And The Public Domain: How Canada Can Combat The Effects Of Cusma, Jane Macmillan

Canada-United States Law Journal

No abstract provided.

I Want A New (Generic) Drug: A Comparative Case For Shifting U.S. Generic Drug Policies To Increase Availability And Lower Healthcare Costs, Immer S. Chriswell

Northwestern Journal of International Law & Business

Enacted in 1984, Hatch-Waxman was intended to increase generic drug availability and make critical healthcare more affordable for Americans. In the nearly forty years following, while it has increased availability of drugs, it has also allowed drug originators to create avenues to profit in ways not intended when the original compromise was struck, undermining its success. Moreover, given a weak antitrust standard against reverse settlement payments proscribed in Actavis, the U.S. faces a dilemma to further improve access to generic medications in the future. The E.U.’s approach to generic drugs, while presently geographically fragmented, is simpler and has a clear …

Impossibility Of Artificial Inventors, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans in …

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

Cross-Border Data Regulatory Frameworks: Opportunities, Challenges, And A Future- Forward Agenda, Andrew D. Mitchell, Neha Mishra

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article evaluates the existing regulatory framework for cross-border data flows across Bahrain, Djibouti, Jordan, Kuwait, Morocco, Nigeria, Oman, Pakistan, Rwanda, and Saudi Arabia. A common factor among these countries is that they are members of the Digital Cooperation Organization (“DCO”). It considers how these countries have devised laws, regulations, and policies on cross-border data flows to enable digital trade, and how these instruments promote the growth of a robust digital economy, both domestically and internationally. The Article then offers policy recommendations for DCO members to consider in developing relevant laws and regulations on data flows.

These …