Intellectual Property Law Commons^™

Refounding Copyright In The Right To Dialogue. Consequences For Chatgpt And Other Artificial Intelligence Services, Juan Carlos Riofrio

UIC Review of Intellectual Property Law

No abstract provided.

Table Of Contents & Introductory Material

UIC Review of Intellectual Property Law

No abstract provided.

When Statute And Judicial Doctrine Collide: Doctrine Prevails, Derek Rhea

UIC Review of Intellectual Property Law

No abstract provided.

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Artificial Intelligence (Ai) In Patent Practice: No Patent Attorneys Were Harmed In The Making Of This Ai Revolution (Book), Roberto Rosas, Juan Vasquez, Dianisa Erica Sosa, Francisco Javier Hernandez-Rodriguez, Daniel Kovach

Faculty Articles

This book provides a comprehensive examination of the rapidly evolving role of artificial intelligence (AI) in the patent law profession. Rather than a traditional legal text, this work offers an in-depth exploration of the profound impacts AI will have on patent attorneys' workflows and practices.

The central inquiry posies whether AI will ultimately replace patent attorneys or serve as a powerful complementary technology. This study contends that AI is poised to become an indispensable tool that augments and enhances the patent attorney's capabilities rather than renders them obsolete. Through detailed analysis of a patent attorney's typical workweek utilizing AI assistance, …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Computers, Credit, And Human Dignity, Jonathan Weinberg

SMU Science and Technology Law Review

Credit scores determine a person’s life chances. The credit scores we’re all used to, calculated by Equifax, Experian, or TransUnion, take as inputs a person’s payment history, loans, current debt, and similar financial information. But that world is changing. Modern alternative data models for credit scoring can go so far as to include an individual’s educational record, criminal history, shopping behavior, or telephone patterns. Activists, regulators, and scholars have expressed serious concerns about these new credit systems. Do they classify applicants on unfair or arbitrary grounds? Do they perpetuate, or even amplify, bias and pre-existing inequality?

Participants in this conversation …

Legal Issues In Blockchain, Cryptocurrency, And Non-Fungible Tokens (Nfts), Christa Laser

Law Faculty Articles and Essays

When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a "Law of Cyberspace" than there ever was for a "Law of the Horse." Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for "The Law of Blockchain." Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to tum to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a …

Trademarks On The Blockchain: Nft Domains And Collisions, Jelena Laketić

Michigan Technology Law Review

Blockchain technology supporting cryptocurrency transactions is one of the most critical innovations of this decade. Establishing a legal identity on blockchain, however, is fraught with uncertainty. In the 1990s, the internet faced a similar set of issues, which were resolved through the ICANN dispute resolution system. This Article asserts that blockchain technology urgently needs a similar cohesive approach to NFT domains.

This Article will explore trademark issues with non-fungible tokens (NFTs), specifically NFT domains. It begins by exploring the fundamental structure of NFTs by demystifying the technology and showing how NFTs contrast with other currency regimes. Increased usage of NFTs …

A Series Of Historical Accidents, Christopher S. Storm

Michigan Technology Law Review

The Patent Act of 1946 banned infringer profit awards in utility patent cases by restricting all compensatory awards, including reasonable royalties, to the value of actual damages suffered and by eliminating infringer profits from reasonable royalty estimations. In 1964, the Supreme Court confirmed in Aro Manufacturing v. Convertible Top Replacement Co. that the 1946 Act limits reasonable royalty awards to the amount of the patentee’s actual damages, which courts must assess without regard to the value gained by the infringer. Subsequent courts, however, have ignored the 1946 Act and its correct interpretation in Aro, opting instead to permit …

Innovation Originators, Tabrez Y. Ebrahim, Rafeel Wasif

Michigan Technology Law Review

Asian Americans are one of the most striking and undertheorized ethnic groups in the field of innovation. While a prolific ethnic group when it comes to being named as inventors on U.S. patents, very little has been written on this observation, perhaps because of previously limited datasets and unwieldy data analysis on ethnic backgrounds about patenting at the United States Patent & Trademark Office (USPTO). Research on inventor diversity and ethnicity in innovation has begun to explore some ethnic groups, but a more holistic account should focus on one particular overlooked group. Recently, entrepreneurship studies concerning ethnicity have shown that …

Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods

UF Law Faculty Publications

Generative artificial intelligence (AI) tools are increasingly used to imitate the distinctive characteristics of famous artists, such as their voice, likeness, and style. In response, legislators have introduced bills in Congress that would confer moral rights protections, such as control over attribution and integrity, upon artists. This Essay argues such measures are almost certain to fail because of deep-seated, pervasive hostility to moral rights measures in U.S. intellectual property law. It analyses both legislative measures and judicial decisions that roll back moral rights, and explores how copyright’s authorship doctrines manifest a latent hostility to these entitlements. The Essay concludes with …

Climate Change And The Need For Arpa-C, Bryce Ebben

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

The Marketplace Of Ideas Mandate: What The Postal Power Requires From Congress In The Age Of Ai, Kevin Frazier

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the impending glut of AI-altered content that threatens to distort the flow of information on social media platforms, this Article comes at an inflection point. Absent the widespread adoption of a historically-accurate understanding of the obligation of the federal government to facilitate the spread of news and views on current affairs, the public may soon lose its ability to speak, listen, and learn to the extent required by a functioning deliberative democracy.

This is not hyperbole. By 2026, experts forecast that “synthetic” information may account for ninety-percent of online content. The anticipated deluge of AI-altered …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

On Copyright Utilitarianism, Patrick R. Goold, David A. Simon

Indiana Law Journal

Utilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so …

Patent Term Tailoring, Sarah Rajec

Indiana Law Journal

Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Failure To Function: A Potential New Shield Against Trademark Infringement?, Alyssa Yoshino

IP Theory

The United States Patent and Trademark Office (“USPTO”) has recently been characterized as having a “penchant” for refusing trademark registrations on the grounds of failure to function. This trend has come with commentary, both praising the doctrine’s ability to efficiently supplement the distinctiveness analysis by assessing use and criticizing the inconsistent application of the doctrine. The sources of this academic commentary, from Alexandra J. Roberts and Lucas D. Cuatrecasas, serve as the heads of two camps regarding the failure to function doctrine. The first encourages an increased application of the doctrine as a combined distinctiveness and use analysis. The second …

The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang

IP Theory

The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.

Will the copyright regime continue …

Comparative Intellectual Property & Religion, Tabrez Y. Ebrahim

IP Theory

This Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …