Intellectual Property Law Commons^™

Territorial Intellectual Property Rights, Fhernam Batiz

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Navigating The Game: Balancing Innovation And Intellectual Property Rights In Video Game Development, Alek Giecewicz

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Precision Is Necessary In Patents, Twinkle Dutta

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

The Taylor Swift Effect And International Law, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

Taylor Swift’s Eras Tour has come to an end, but the Taylor Swift Effect will remain a powerful force with influence well beyond even Swift herself. Often used to describe Swift’s economic impact through her fandom, it has become shorthand for the broader network effect that amplifies and extends the reach of her discography and cultural influence. As this article discusses, the Taylor Swift Effect has real implications for international relations and international law at a time when many nations are withdrawing from constructive international engagement, with devastating consequences in terms of global rights, liberties, and norms.

This article explores …

The Subsistence And Enforcement Of Copyright And Trademark Rights In The Metaverse, Cheng Lim Saw, Zheng Wen Samuel Chan

Research Collection Yong Pung How School Of Law

The metaverse has been widely hailed as a symbol of technological progress, presenting an immersive virtual realm that has the potential to transform how individuals engage in social and commercial activities. However, this conception of a borderless virtual world - which purportedly transcends the capabilities and reach of Web 2.0 - sits uncomfortably with the territorial nature of intellectual property rights. This chapter examines the complexities surrounding the subsistence and enforcement of intellectual property rights within the metaverse, with a specific focus on copyright and trademarks. Especial attention is paid to issues concerning choice of law and jurisdiction. Finally, the …

Navigating Copyright Law In A Digital World With An Analog Rulebook: Guidance For Visual Artists, Stephanie Moser

University of San Francisco Law Review

No abstract provided.

Data In Business & Society, Tabrez Y. Ebrahim

Lewis & Clark Law Review

Data, it is sometimes said, is the world’s new oil. Unlike the days when information was transmitted in print form, data is transmitted at the touch of a fingertip through the click of a mouse or a push of an icon on a phone app. Algorithms and computing systems have drastically expanded the scope, speed, and volume of access and use of data for consumers. Additionally, businesses, in variety of forms, including business-to-business, business-to-consumer, online, and even brick-and-mortar, have employed data to interact with other businesses and with consumers. Data has drastically expanded in use throughout business and society, and …

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

Analysis Of Global Data Privacy Regulations And How Transnational Companies Are Impacted, Fujimori-Smith, Aska

Santa Clara High Technology Law Journal

Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, …

Relying On Unreliable Tech: Unchecked Police Use Of Algorithmic Technologies, Fraerman, Ali

Santa Clara High Technology Law Journal

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid …

In Event Of An (Ai) Emergency: Interpreting Continuity Of Government Provisions In State Constitutions, Frazier, Kevin T.

Santa Clara High Technology Law Journal

“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.

Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of …

Human Reproductive Cloning, Heritable Genome Editing, And The Future Of Novel Reproductive Technologies, Macintosh, Kerry Lynn

Santa Clara High Technology Law Journal

This Article compares human reproductive cloning (HRC) and heritable genome editing (HGE) to identify factors that encourage bans on novel reproductive technologies. HRC drew legislative opposition in part because it involved asexual reproduction and was incorrectly associated with copying. HGE and other technologies that involve sexual reproduction do not have those problematic qualities. HRC also became entangled with research in which human embryos were cloned to be harvested for their stem cells. HGE did not because scientists learned how to create and edit pluripotent stem cells without creating embryos. However, the legal history of HRC predicts that reproductive technologies strongly …

A Promise Without A Remedy: The Supposed Incompatibility Of The Gplv2 And Apache V2 Licenses, Chestek, Pamela S.

Santa Clara High Technology Law Journal

License “incompatibility” in free and open source software licensing means that, when two differently licensed pieces of software are combined, one cannot comply with both licenses at the same time. It is commonly accepted that the GNU General Public License version 2 is incompatible with the Apache License, version 2 because certain provisions of the Apache License would be considered “further restrictions” not permitted by the GPLv2. However, this article will explain why there is no legally cognizable claim for combining the two, either under a copyright infringement theory or a breach of contract theory.

Batok In The East, Aloha In The West: Intellectual Property Protections Of Indigenous Peoples In The Philippines And United States, Maria Regina Martinez

University of San Francisco Law Review

No abstract provided.

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva E. Subotnik

Faculty Publications

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work." It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

An Empirical Evaluation Of The Trademark Modernization Act, Jeremy N. Sheff

Faculty Publications

The Trademark Modernization Act of 2020 (TMA) created two new forms of administrative proceedings designed to clear spurious trademarks from the federal register. Congress’s hope for these new proceedings was that they would “respond to concerns that registrations persist on the trademark register despite a registrant not having made proper use of the mark covered by the registration” by “allow[ing] for more efficient, and less costly and time consuming” means of removing them. This Article subjects that policy to empirical examination, disclosing and analyzing a newly constructed dataset covering the dockets of all TMA proceedings (and petitions for proceedings) to …

Towards Fda–Uspto Cooperation, John R. Thomas

Georgetown Law Faculty Publications and Other Works

The Food and Drug Administration (“FDA”) and U.S. Patent and Trademark Office (“USPTO”) play complementary roles in driving pharmaceutical innovation. Yet, for the most part, the agencies conduct their affairs without regard for one another. Recent calls for a “whole of government” approach to reduce this departmentalism have led to only modest initiatives. Collectively, the FDA and USPTO have announced mandates that they have no intention of enforcing; conducted cross- training in topics that their employees will most likely never use; and resisted proposed legislation that would formalize their relationship.

Current agency intransigence represents a lost opportunity to further the …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Stakeholder Governance On The Ground (And In The Sky), Stephen Johnson, Frank Partnoy

Seattle University Law Review

Professor Frank Partnoy: This is a marvelous gathering, and it is all due to Chuck O’Kelley and the special gentleness, openness, and creativity that he brings to this symposium. For more than a decade, he has been open to new and creative ways to discuss important issues surrounding business law and Adolf Berle’s legacy. We also are grateful to Dorothy Lund for co-organizing this gathering.

In introducing Stephen Johnson, I am reminded of a previous Berle, where Chuck allowed me some time to present the initial thoughts that led to my book, WAIT: The Art and Science of Delay. Part …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …