Intellectual Property Law Commons^™

Authorizing Copyright Infringement And The Control Requirement: A Look At P2p File-Sharing And Distribution Of New Technology In The U.K., Australia, Canada, And Singapore, Jeffrey C.J. Lee

Canadian Journal of Law and Technology

The doctrine of authorizing copyright infringement has been used to deal with the marketing of new Ttechnology that might be employed by a user to infringe copyright, from the distribution of blank cassette tapes and double-cassette tape recorders to photocopiers. It is being tested yet again with the distribution of peer-to-peer file-sharing software that enables the online exchange of MP3 music and other copyrighted files. This article looks at the different positions adopted in several Commonwealth jurisdictions, and examines the policy considerations behind these positions. It looks at, in particular, the recent Australian case of Universal Music Australia Pty Ltd. …

"By Night She Fought For Fair Use": Restoring The Integrity Of Copyright Law, One Comic-Book Reader At A Time, Jessica Sawyer Wang

Michigan Law Review

Students of copyright law quickly learn that the subject is counterintuitive. One of the first revelations of this is-somewhat alarmingly-the purpose of copyright itself. Contrary to popular belief, copyright is not just about protecting an artist's creation, but sharing it. Simultaneously protecting a work and sharing it helps to fulfill the Constitution's mandate that Congress "promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings." In other words, Congress is to promote learning and the advancement of our culture. The symbiosis of protecting and sharing is effected through the …

Bringing Sexy Back: Unauthorized Film Editing, Copyright, And How Removing Reproductive Acts Violates Reproduction Rights, Logan Clare

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Broadcasting The 2006 World Cup: The Right Of Arab Fans Versus Art Exclusivity, Bashar H. Malkawi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Internationalizing Copyright: How Claims Of International, Extraterritorial Copyright Infringement May Be Brought In U.S. Courts, Elliot Cook

ExpressO

This Comment assesses the use of the Alien Tort Statute (“ATS”) as a jurisdictional basis for claims of international copyright infringement occurring outside of the United States. Under the ATS, aliens may sue in United States district courts for torts that amount to violations of treaties or the law of nations.

Given that copyright infringement is a tort, an alien may only be able to establish ATS jurisdiction in a suit of extraterritorial infringement if the infringement violated a treaty or the law of nations. This comment argues that extraterritorial copyright infringement does indeed amount to a violation of the …

Design Patents: An Alternative When The Low Standards Of Copyright Are Too High?, Ryan G. Vacca

ExpressO

The standard for copyright protection is notoriously low – the work must be independently created and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category. In contrast, and for good reason, the standard for design patent protection is much more burdensome. The field of design patents protects new, original, ornamental, and non-obvious designs. This more difficult …

On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

All Faculty Scholarship

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

International Copyright Law And Litigation: A Mechanism For Improvement, Roberto Garza Barbosa

Marquette Intellectual Property Law Review

This article outlines the challenges of international copyright litigation and considers rights and remedies available under TRIPs and the laws of various national copyright statutes. To keep pace with new technology, the author proposes a mechanism for the enforcement of existing rights around the world, while counter the prevailing problems of the ease of infringement and expense of enforcement.

From Infringement To Innovation: Counterfeiting And Enforcement In The Brics, J. Benjamin Bai, Keith D. Lindenbaum, Yi Qian, Cynthia Ho

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Rethinking Patent Law’S Uniformity Principle, Craig Allen Nard, John F. Duffy

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

Promoting Diverse Cultural Expression: Lessons From The U.S. Copyright Wars, Raymond Shih Ray Ku

Faculty Publications

In 2007, the United Nations adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD) with the goal of creating an environment that encourages individuals and social groups to create, distribute, and have access to diverse cultural expression from their own cultural and from cultures around the world. With regard to domestic and international efforts to implement the CCD and reconcile its goals with other international norms, the author argues that valuable lessons can be learned from current trends and issues in U.S. copyright law. Specifically, the author argues that the current debate over copyright's …

Design Patents: An Alternative When The Low Standards Of Copyright Are Too High, Ryan Vacca

Faculty Publications

The standard for copyright protection is notoriously low - the work must be independently created by the author and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category.

In contrast, and for good reason, the standard for design patent protection is much more burdensome. Design patents protect new, original, ornamental, and non-obvious designs. This more difficult …

Overcoming The Achilles Heel Of Copyright Law, Haochen Sun

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Times May Have Changed, But The Song Is Still The Same: Why The Supreme Court Was Incorrect To Stray From Sony's Reasoning In Metro-Goldwyn-Mayer Studios, Inc. V. Grokster, Ltd., Julie A. Wooten

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going?, Robert B. Ahdieh, Zhu (Julie) Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Should Fashion Design Be Copyrightable?, Brandon Scruggs

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Fostering Creativity In Virtual Worlds: Easing The Restrictiveness Of Copyright For User-Created Content, Todd David Marcus

NYLS Law Review

No abstract provided.

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

The Right Of Publicity: A Comparative Perspective, Marshall Leaffer

Articles by Maurer Faculty

No abstract provided.

Layered Rights: Robertson V. Thomson, Gregory R. Hagen

Canadian Journal of Law and Technology

In Robertson v. Thomson Corp., the Supreme Court of Canada (‘‘ the Court ’’) considered ‘‘ whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers — without compensation to the authors and without their consent’’. Curiously, while deciding that publishers are not entitled to reproduce the individual articles without the consent of the freelancers, it also held that the publishers do have a right to reproduce the articles in a CD- ROM database ‘‘as a part of those collective works — their newspapers . …

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

Creativity And Culture In Copyright Theory, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. When asked to discuss the source of their inspiration, individual artists describe a process that is intrinsically ineffable. Rights theorists of all varieties have generally subscribed to this understanding, describing creativity in terms of an individual liberty whose form remains largely unspecified. Economic theorists of copyright work from the opposite end of the creative process, seeking to divine the optimal rules for promoting creativity by measuring its …

Collateralizing Intellectual Property, Xuan-Thao Nguyen

Articles

This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.

The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …

Copyright, Fair Use And Motion Pictures, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Within copyright law, the tension between contemporary creators' needs for access to preexisting material, on the one hand, and the imperatives of copyright ownership, on the other, are mediated primarily by the so-called "fair use" doctrine. The application of this venerable legal concept, which exempts some substantial takings of protected content from infringement liability, is the subject of this essay.

The Freedom Of Information Act And Trade Secrets, Roger V. Skalbeck

Law Faculty Publications

This article details a case illustration where federal law intersects with trade secret questions, a subject normally governed by state laws.

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.

Using Innovative Technologies To Analyze For Similarity Between Musical Works In Copyright Infringement Disputes, Yvette Joy Liebesman

All Faculty Scholarship

Courts continue to struggle with discerning the level of substantial similarity between musical compositions in infringement analyses, which is related to their difficulty in determining the portion that is available for the public to use, and where that permission stops. This paper argues that, under the current policies regarding copyright protection and unauthorized copying, the current test is inadequate and a new infringement test should be considered. Two alternatives are proposed. The first test uses objective mapping of a song’s artistic elements. The second considers the link between wave motion theory of physics and music and proposes comparing the mathematical …

Book Review, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.