Intellectual Property Law Commons^™

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

How Ip Ends, David Fagundes, Aaron Perzanowski

Faculty Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

Body Of Law: When Content Moderation Becomes Gender Oppression And Triggers Legal Consequences, Sarah E. Bahrenburg

Journal of Race, Gender, and Ethnicity

For as long as the Internet has existed, it has been used as a tool for good and as a tool for malice. However, there is a discrepancy between punishment for those maliciously invading individuals’ personal space and those posting consensual images of themselves for art or entertainment purposes (not to mention for work). Over the years, while attempting to create safe spaces for people to express themselves, the Internet has also created barriers to individuals doing just that. The Internet and the laws surrounding exposure therein have become increasingly misogynistic and anti-women’s sexual freedom. The laws encompassing safety on …

Copyright Protection Or Media Suppression? The Digital Millennium Copyright Act's Impact On News Media And Journalism, Alenis Olivera

FIU Law Review

When copyright law collides with press freedom, which one survives the takedown? The Digital Millennium Copyright Act (DMCA) was once hailed as a necessary adaptation to copyright protection issues in the digital age. But now, nearly three decades since its incorporation into the Copyright Act, the DMCA has continued to cast a shadow over the journalism industry. The DMCA’s notice-and-takedown system, originally designed to protect copyright owners by allowing for quick removal of infringing content, has become a mechanism that risks suppressing lawful reporting and undermines the First Amendment’s guarantee of a free press. This Comment will explore how the …

A Public Trust Theory Of Government Information, Sharon Sandeen

Faculty Scholarship

In the sixth century, the Roman Emperor Justinian declared that certain resources should be for the benefit of all of mankind, thereby planting the seeds of what is referred to as the public trust doctrine. Two core ideas behind the doctrine, which have evolved and expanded over time, are: (1) there are certain critical resources that should be available for all to use; and (2) governments that own or control those resources should preserve and manage them for the public good.

As insightful as Justinian was, his vision was naturally constrained by the times in which he lived, which was …

Leveraging Intellectual Property For Development: Insights From South Korea For Developing Countries, Gracie Alinafe Chimvula

Cybaris®

No abstract provided.

The Stored Communications Act At 40: Re-Examining Ecs And Rcs In The Age Of Ai, Shanzay Pervaiz

Joint PIJIP/TLS Research Paper Series

Shanzay Pervaiz, Senior Legal Researcher, examines the Stored Communications Act (SCA) almost forty years after its enactment, focusing on how its core definitions of “electronic communication service” (ECS) and “remote computing service” (RCS) play a central role in regulating domestic and global government access to data. The definitions still shape key U.S. authorities such as FISA Section 702, the CLOUD Act, and international instruments governing law enforcement access to data, including the Budapest Convention and the United Nations Convention on Cybercrime. The paper also looks at the legislative history of the SCA, how U.S. courts define ECS and RCS, and …

Inconsistencies At The International Trade Commission And The United States Federal District Courts, Christine Dedoulis

Catholic University Journal of Law and Technology

This article will analyze Section 337 of the Tariff Act of 1930, under which the International Trade Commission (Commission) conducts unfair import investigations, as it applies to patent infringement cases. Further, this article will explore different outcomes regarding parallel litigation at the Commission and District Courts, including what remedies are available and the effect of duplicative and inconsistent determinations on the patentee. In light of these comparisons, this article will provide suggestions on how to minimize inconsistencies between the Commission and District Courts, with particular emphasis on determining if some middle ground exists and if a classification system could be …

Judging Art: Copyright, Creativity, And The Meaning Of Art In The Eyes Of The Law, Scott J. Sholder

Marquette Intellectual Property & Innovation Law Review

This Article examines how copyright law defines creativity and authorship in an era of rapidly evolving artistic expression, with particular emphasis on generative artificial intelligence. Tracing the development of U.S. copyright law from its constitutional foundations through modern case law, the author explores the legal standards governing originality, fixation, human authorship, and the idea-expression dichotomy. The Article analyzes how these principles have been applied to both traditional and emerging forms of art, including conceptual, performance, appropriation, digital, and AI-generated works. It also examines recent guidance from the U.S. Copyright Office and evolving judicial decisions addressing the copyrightability of AI-assisted and …

Patent Law's Trade Remedy, Michael Doane

Akron Law Faculty Publications

Although a trade remedy, not an intellectual property rights statute, Section 337 of the Tariff Act of 1930 plays an important and controversial role in the enforcement of intellectual property rights in the United States. As a trade remedy, Section 337 is designed and intended to promote innovation and investment in the United States through support of statutorily defined domestic industries against unfair competition from infringing imported products. This Article analyzes Section 337 as a trade remedy from the perspective of intellectual property rights owners and innovators such as start-up companies, universities, individual inventors, and other research and development-focused entities. …

The Public Franchise Tradition As A Limit On Patent Takings, Laura E. Dolbow

Publications

A longstanding debate exists over whether patents are forms of “private property” that the Takings Clause protects. Recently, in a different context, the Supreme Court stated that a patent is a specific form of property: a public franchise. Several scholars have argued that the public franchise characterization means patents are not protected by the Takings Clause at all. This Article identifies another potential implication of the public franchise framing. It argues that even if patents are viewed as protected by the Takings Clause, the public franchise framing suggests that the scope of that protection should be quite narrow.

To explore …

Caught In The Web: The Resolution Of The Internet Service Provider Contributory Copyright Infringement Split, Olivia F. Johnson

Cybaris®

No abstract provided.

#Influencerinfractions: How Influencers Comply (Or Don’T) With Ftc Guidelines, Christopher Terry, Emma Troha, Anastasia Micich, Cecilia Lausten

Journal of Law, Technology, & the Internet

The Federal Trade Commission (FTC) released endorsement guidelines of sponsored content in 2023, including stipulations of clear and conspicuous disclosure, to combat content disguised as original, while actually having commercial intent. This paper examines compliance with these guidelines among travel influencers on Instagram. Overwhelmingly, influencers are not properly disclosing potential commercial sponsorship in their posts, and even good faith attempts to disclose are more often than not non-compliant with the FTC’s guidelines. Implications of these findings are discussed.

Should I Have Held Your Hand Or Can You Hold Your Own?: The Growing Confusion Over The Copyright Powers Songwriters Maintain Over Their Works, Mark Galinovsky

Cardozo Law Review de•novo

As online streaming and digital downloads continue to dominate the music business, songwriters are increasingly left to fight each other for tiny cuts of the profits. Additionally, a lack of consistent judicial rules and standards when adjudicating copyright infringement claims make litigation results uncertain, causing even potentially victorious defendants to agree to expensive settlements and frivolous grants of songwriting credits. This Note argues that in order to protect the future creative output of the music industry, judges and legislators should prioritize the dwindling power songwriters have over control of their original works of authorship.

The Invisible String: How Litigation Funders In Patent Suits Pose A National Security Risk, Cosette Mclaughlin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note will address why the Supreme Court should modify Rule 7.1 of the Federal Rules of Civil Procedure to require third-party litigation funding (TPLF) funders and agreements to be disclosed to the judge and the opposing party. This amendment would mitigate the national security risk posed by foreign adversaries acting through TPLF in patent suits by eliminating the veil of secrecy. The semiconductor industry acts as an illustration of the benefits of this modification.19 In addition, if TPLF funding were required to be disclosed to all involved, conflict identification would become significantly easier. Full transparency in patent litigation TPLF …

Doctrine, Data, And The Death Of Dupont, Thomas A. Reichert

Fordham Intellectual Property, Media and Entertainment Law Journal

For fifty years, trademark opinions have claimed to apply a comprehensive thirteen-factor test for trademark confusion. They are deeply mistaken. Using AI-powered analysis of over 4,000 TTAB inter partes decisions (2000–2025), this Article proves what practitioners have long suspected: in Section 2(d) adjudication, the test has collapsed to just two factors.

A simple categorical rule predicting confusion if and only if both mark similarity (Factor 1) and goods/services relatedness (Factor 2) (hereinafter “F1” and “F2” in figures, tables, and formulas) favor confusion achieves 99.55% accuracy across 4,651 comparisons. Cross-validated logistic regression confirms the pattern: a two-factor model achieves 99.46% accuracy, …

Discrimination In The Trademark Id Manual, Rachael Dickson

Fordham Intellectual Property, Media and Entertainment Law Journal

Using evidence drawn from the USPTO’s treatment of 221 identifications submitted for inclusion in the Trademark ID Manual (including 43 this Author submitted on their own and as part of a team), this Article, the first ever written on the ID Manual, argues that the USPTO’s administration of the Manual systematically disadvantages trademark applicants offering lawful but socially disfavored goods or services, such as those relating to cannabis, sexual health, or “vice.”

By deliberately refusing to include identifications of goods and services relating to entire categories of commerce in the ID Manual, the USPTO imposes higher costs, greater uncertainty, and …

Music Is Medicine: Addressing Legal Challenges In An Emerging Clinical Practice, Basha Goldwater

Fordham Intellectual Property, Media and Entertainment Law Journal

Music is universally experienced, and most will recognize its profound personal impact; yet, music’s broader influence on society is yet to be fully explored. People may listen to music when they are sad, when they are seeking motivation, or as a way to relax. However, music extends beyond expression, entertainment, and an outlet for emotions. Research indicates that music can offer substantial benefits to patients in a plethora of medical situations.

Part I of this Note will explain the usefulness of music as medical care, its advantages, and the broad range of institutional support music-based medicine has garnered. Part II …

Owning Data: Semantic Control As Inaccess To Information, Zvikomborero Chadambuka

FIU Law Review

This Article discusses the impacts of the introduction of a data ownership scheme on access to information. It does so with reference to the distinction between data, defined as some representation of information by a specific medium (the syntactic level), and the information itself (the semantic level). With respect to data, it then looks at the difference between standard property rights and intellectual property (IP) rights, similarly assessing impacts on access to information. Private control at the semantic level is bad policy as it effects particularly serious limitations, relative to private control at the syntactic level, on the availability of …

The Protection Of Geographical Indications Under Comparative Lens: Whether Law Artificially Creates Scarcity Of Goods, Domenico Di Micco

FIU Law Review

The economic principles of supply and demand dictate that market prices are contingent on the conditions under which supply and demand converge. Within this theoretical framework, the concepts of scarcity and abundance assume paramount significance. When goods are scarce, prices tend to escalate, while in cases of abundant supply, prices tend to decline. But what factors determine scarcity and abundance? In many cases, scarcity is inherent to the nature of the commodity (for example, diamonds are rarer than common stones). In other cases, such as geographical indications, scarcity is constructed through the legal denomination associated with the commodity, thereby creating …

The New European Union Regulation On Geographical Indications For Craft And Industrial Products And The Protection Of "Lace Of Cantù": A Work In Progress, Barbara Pozzo

FIU Law Review

Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 has introduced the protection of geographical indications for craft and industrial products. The contribution aims at investigating how the Regulation may have implications in the fashion world. In particular, it will focus on a particular case study undertaken in Northern Italy, concerning the possibility of protecting the “Lace of Cantù” through a geographical indications for craft.

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

History And Tradition In First Amendment Intellectual Property Cases: A Critique, Rebecca Tushnet

Marquette Intellectual Property & Innovation Law Review

This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. …

Not All Sunshine In Wisconsin: The Cloudy Public Disclosure Predicament Surrounding Trade Secrets, Amelia S. Murray

Marquette Intellectual Property & Innovation Law Review

This Comment will explore the current landscape surrounding trade secret protections in Wisconsin Open Records Law requests. The lack of access to state-protected trade secrets, and overall lack of transparency, effectively endangers the general health and safety of the Wisconsin public and environment. When a request is made for information under the Wisconsin Open Records Law pertaining to state information protected by trade secret, and the requester is denied access to such information due to its trade secrecy status, the state should have to disclose trade secret information if it poses a greater danger to environmental health, human health, or …

From Software To Multimedia: How Warhol's Refinement Of The First Fair Use Factor Upholds Prior Rulings Across The Copyright Landscape, Graham Lemke

Marquette Intellectual Property & Innovation Law Review

“Fair use” is a commonly invoked term of legal art that dates back to the 19th century and has undergone significant transformation since its inception. Specifically, the first factor of fair use, encompassing transformativeness, purpose, and commercial use, has generated significant circuit splits, leading to disparate outcomes for litigants depending on the presiding circuit. In an attempt to alleviate the unharmonious application of the fair use doctrine, the Supreme Court of the United States granted certiorari to a 2023 Second Circuit case involving the famed Andy Warhol Foundation. However, in the wake of the opinion’s release, critics have claimed that …

Blood Diamonds Of The Digital Age: The Need For Multi-Perspective Legislation On Cryptocurrency, Peter Derdzinski

Marquette Intellectual Property & Innovation Law Review

This comment examines how cryptocurrency is used in illicit cross-border transactions before examining some of the means currently employed to combat this criminal activity. Through analysis of the European Union’s Markets in Crypto-Assets (MiCA) regulations, this Comment proposes a multi-perspective approach for new legislation in the United States beyond the GENIUS Act of 2025. Specifically, this Comment argues that any new legislation needs to approach cryptocurrency as both a medium of exchange and as an investment vehicle or a store of value. Such legislation is necessary to create a trellis for cryptocurrency growth and to provide an organized approach for …

Risk, Reward, And Renewable Collateral: Can Ip Sustain Financing In Green Energy?, Nigel Blake

Marquette Intellectual Property & Innovation Law Review

As the transition from fossil fuels to renewable energy accelerates, intellectual property has become one of the most valuable assets held by emerging green technology companies. Patents, trademarks, copyrights, and trade secrets often comprise a greater share of these companies' value than tangible assets, making intellectual property an increasingly important source of collateral for commercial financing. At the same time, the renewable energy industry presents unique valuation challenges. Rapid technological innovation, shifting government policies, evolving consumer preferences, and uncertain market demand can significantly affect the value of intellectual property, creating substantial risks for both borrowers and lenders.

This Comment examines …

What Makes Federal Circuit Opinions Influential?, Jason Reinecke

Marquette Law Review

This Article provides the results of an empirical study assessing the determinants of a patent opinion’s influence at the Federal Circuit. I draw on a novel, largely hand-coded dataset of nearly 2,700 decisions issued by the Federal Circuit over a period of more than seven years. I find that some judges are more likely than others to issue binding opinions favoring patent owners (and others favoring patent challengers). In addition, drawing on case citation counts, I find limited evidence that extremely pro-patentee panels tend to write slightly more influential pro-patentee precedential decisions. Perhaps most striking and surprising, however, is how …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

Human Rights On Pause: Assessing The Cbp Digital Metering Process And Obligations Of Non-Refoulement Beyond Borders, Brandon Delia

Journal of Law, Technology, & the Internet

Migrants are once again being told to wait in line before seeking their right to the asylum process. In 2023, the Biden administration introduced the CBP One app as a new requirement for asylum seekers approaching the US-Mexico border. Not long after, it evolved into a strict legal prerequisite where without a CBP One appointment, migrants faced either immediate turnbacks or, if they nonetheless attempted to seek asylum defensively after entry, expedited removal and a potential five-year bar on reentry. Those who managed to register often waited months in cartel-controlled border towns, risking extortion, kidnapping, or worse. Paired with CBP’s …