Intellectual Property Law Commons^™

Of Moral Right And Righteousness, Sharon W. Halpern

Marquette Intellectual Property Law Review

In response to Professor Kwall's article, Professor Halpern provides an exploration of the differences between European countries that provide broad moral right protection and the United States. Professor Halpern recommends an examination of the role artists and creators of intellectual property play in the culture of the United States in order to form a consensus on which a United States moral right regime may be built.

Procd, Inc. V. Zeindenberg: An Emerging Trend In Shrinkwrap Licensing?, Jerry David Monroe

Marquette Intellectual Property Law Review

The author discusses the implications of the United States Court of Appeals for the Seventh Circuit's decision in ProCD, Inc. v. Zeindenberg. As Monroe explains, until this decision, the courts have been reluctant to uphold the legal consequences of shrinkwrap licenses. Monroe provides an analysis of the interplay between contract law and copyright law to provide a thorough understanding of this emerging trend in intellectual property.

Rethinking Remedies At The Intersection Of Intellectual Property And Contract: Toward A Unified Body Of Law, Maureen A. O'Rourke

Faculty Scholarship

As society continues to move "on-line"' and technology advances in fields such as biotechnology, a paradigm shift is occurring. Investors are focusing less on asset valuations based on the physical goods owned by a particular firm and more on the value of intangibles-the information and know-how possessed by the firm and embodied in its intellectual property rights. Firms and even entire industries have grown up with the primarily paper assets of patents and copyrights.

On The Economics Of Copyright, Restitution And "Fair Use": Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon

Faculty Scholarship

The 'public goods' characteristics possess by intangible works of authorship and invention present the basic market failure problem usually relied on to justify intellectual property rights. What is ordinarily less emphasized is that such market failure is no more than half of the prerequisite for an economically desirable copyright or patent system: another requisite condition is that there be less costly market imperfections after intellectual property is instituted than there would have been in the absence of the intellectual property regime. Intellectual property rights are best justified in the presence of "asymmetric market conditions", that is where (1) in the …

Battling International Piracy Of The Copyright Industries Through Nafta, Donna L. Eng

UF Law Faculty Publications

The scope of this paper will cover the United States' attempts to protect its copyright industries of computer software, movie, and music under the auspices of NAFTA. Specifically, coverage will discuss the general scope of copyright protection given to the software, music, and movie industries under NAFTA, and then focus on United States relations with Canada and Mexico under NAFTA.

Intellectual Property Rights In Data?, J. H. Reichman, Pamela Samuelson

Vanderbilt Law Review

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became …

Cyberspace Must Exceed Its Grasp, Or What's A Metaphor? Tropes, Trips And Stumbles On The Info Highway, Robert C. Cumbow

Seattle University Law Review

This Essay will focus on three metaphors, and show briefly how the arguments that copyright law is “unworkable” in the Internet context are based on a misreading of these metaphors. The first metaphor is the use of the term “cyberspace” to apply to the Internet; the second is the tendency to describe Internet communication as “going” somewhere. Both of these metaphors mistakenly suggest a space in which enforcement—and, indeed, violation—of any law is impossible. The third metaphor is the “wine and bottles” analogy, set forth by John Perry Barlow in his widely circulated article, “The Economy of Ideas," to show …

Forms Of Redress For Design Piracy: How Victims Can Use Existing Copyright Law, Peter K. Schalestock

Seattle University Law Review

Part I of this Comment explores the nature and scope of design piracy in the fashion industry. It also discusses the impact of modem technology on pirates and their victims. Part II reviews the existing intellectual property legal framework, emphasizing copyright law and its application to clothing design. Part III discusses the exclusion of clothing design from copyright protection and reviews cases that have addressed that issue. Finally, Part IV suggests ways that designers might obtain greater protection. The alternatives explored are (1) the proper application of existing law to find separable protectable design elements, and (2) congressional action to …

Licensing Issues On The Internet, Steven Masur, Neil J. Friedman, Judith M. Saffer

Touro Law Review

No abstract provided.

The Internet: Is It Broadcasting?, Jonathan I. Ezor, Peter Brown, Peggy Miles

Touro Law Review

No abstract provided.

Protecting Folklore Of Indigenous Peoples: Is Intellectual Property The Answer?, Christine Farley

Scholarly Articles in Law Reviews & Journals

What can the Navajos do to prevent non-Navajos from using Navajo rug patterns to produce rugs overseas using cheap material and labor, thereby undercutting the Navajos themselves in a market for their famous rugs? What can the Australian Aboriginal peoples do when their sacred and secret imagery is reporduced on carpets they did not make, and sold to non-Aboriginals, who will inevitably walk on them? Do these communities have any legal rights to these pieces of their culture? Does the law provide any means for them to take back their culture or to prevent further poaching? https://papers.ssrn.com/sol3/papers.cfm?abstract_id=923410

Computer Science Concepts In Copyright Cases: The Path To A Coherent Law, Marci A. Hamilton, Ted Sabety

Articles

No abstract provided.

Judicial Plagiarism: It May Be Fair Use But Is It Ethical?, Jaime S. Dursht

Cardozo Law Review

Plagiarism is the intentional appropriation of the creative product or scholarship of another without attribution. Judicial plagiarism arises when judges author opinions that employ materials from copyrighted sources such as law journals or books, but neglect to give credit to the author. In opinion writing-a form of writing in which use and citation to authority is customary-the offense of plagiarism lies simply in neglecting to identify the source. In the academic world, plagiarism is considered to be a "capital offense, punishable by academic death for student or faculty," and it is treated no more favorably in professions in which responsible …

National Sovereignty And Transnational Problem Solving, Judith H. Bello

Cardozo Law Review

Many of the most difficult problems that challenge nation states in the increasingly interdependent world do not respect borders: illicit drug trafficking, refugees, illegal immigration, environmental degradation, illegal arms sales, nuclear proliferation, terrorism, bribery, and corruption. Nation states acting alone are helpless to resolve or most effectively alleviate these problems.

Reviving The Rhetoric Of The Public Interest: Choir Directors, Copy Machines, And New Arrangements Of Public Domain Music, Paul J. Heald

Scholarly Works

The decision to photocopy or not to photocopy has significant consequences for the music consumer's pocketbook. Photocopies cost around three cents per page, while an original printed version of a choral work costs about thirty cents per page. The expense of buying rather than copying public domain sheet music is directly absorbed by the taxpayers who fund music education in public schools, the church congregations who must raise money for the church music budget, and the patrons of the fine arts who finance music ensembles with their admission fees or donations.

To recognize the high cost of sheet music is …

Privileged Use: Has Judge Boudin Suggested A Viable Means Of Copyright Protection For The Nonliteral Aspects Of Computer Software In Lotus Development Corp.V. Borland International , David M. Maiorana

American University Law Review

No abstract provided.

Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.

Scholarly Works

By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …

The Trips Agreement: Imperialistic, Outdated, And Overprotective, Marci A. Hamilton

Articles

According to Professor Hamilton, the TRIPS Agreement constructs international copyright law in the image of Western, Protestant-based capitalist copyright law. She suggests that the Agreement Imposes presuppositions about human value, effort, and reward that contain political, sociological, and legal ramifications. In fact, the Agreement, with its focus upon valuing individual human creative achievement, could spur further developments in Westernbased human rights in the rest of the world. By transplanting Western ideas to the rest of the world, TRIPS may actually encourage anti-authoritarian revolution.

She further suggests that the TRIPS Agreement seeks to establish a free market of intellectual property goods. …

Reexamining Copyright's Incentives-Access Paradigm, Glynn S. Lunney, Jr., Glynn Lunney

Vanderbilt Law Review

For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, …

The Impact Of Recent Litigation On Interlibrary Loan And Document Delivery, James S. Heller

Faculty Publications

Professor Heller discusses how two recent federal copyright law decisions, Campbell v. Acuff-Rose Music in the United States Supreme Court and American Geophysical Union v. Texaco in the Second Circuit, may affect the interlibrary loan and document delivery services provided by libraries.

Caught In The Net Of Copyright, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

As an overture to this Comment, I'd like to begin with one of my favorite passages from the recent National Information Infrastructure (NII)Task Force Working Group Report on Intellectual Property and the NII-the so-called White Paper.' The passage is not one of the deceptively bland legislative proposals-nor one of the strategic half-truths in the purported summary of current copyright law. Rather, it is a passage from the section on copyright awareness, and it is an excellent example of a good idea gone wrong. The good idea is that our elementary and secondary schools could take a role in preparing students …

Deconstructing The Fair Use Doctrine:  The Cost Of Personal And Workplace Copying After American Geophysical Union V. Texaco, Inc., Nicole B. Cásarez

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Recent Changes In The Duration Of Copyright In The United States And European Union:  Procedure And Policy, Lisa M. Brownlee

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Economics Of Copyright, Robert G. Bone, Wendy J. Gordon

Scholarship Chronologically

Copyright law protects works of creative expression. At its relatively uncontroversial core lie songs, plays, novels, paintings, and other works of aesthetic value. But copyright is not confined solely to aesthetic subject matter; in many countries, it extends to works of fact, such as biographies, maps, and telephone directories, and to works with practical value. For example, one of the most controversial issues in copyright law today is whether and how much copyright should protect computer programs.

Trademark Parody: Lessons From The Copyright Decision In Campbell V. Acuff-Rose Music, Gary Myers

Faculty Publications

Parodies have long provided many of us with amusement, entertainment,and sometimes even information. An effective parody can convey one or more messages with powerful effect. The message may be a political statement, social commentary, commercial speech, a bawdy joke, ridicule of a brand name, criticism of commercialism, or just plain humor for its own sake. Often someone's ox is being gored, or someone feels that a property right has been infringed. The party so injured often contemplates a lawsuit, and an array of legal theories are available to further that impulse. Perhaps copyright infringement is the claim, if some protectable …

The Technological Transformation Of Copyright Law, Fred H. Cate

Articles by Maurer Faculty

Both statutory and case law clearly recognize the constitutional interest in promoting, not restricting, expression. Digital technologies, however, are rapidly changing the application of copyright law to prohibit access, protect ideas and facts, and dramatically expand the monopoly granted to copyright holders.

Whether on a disk or network, digital expression cannot be accessed without being copied into computer memory, as well as onto a hard drive, floppy disk, or magnetic tape if it is to be retained after the computer is switched off. This necessarily violates the exclusive right to reproduce that copyright law grants to copyright holders.

Moreover, to …

Norms Of Communication And Commodification, Wendy J. Gordon

Faculty Scholarship

Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore and Richard McAdams provide useful windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I …

Property (And Copyright) In Cyberspace, I. Trotter Hardy

Faculty Publications

No abstract provided.

Art Speech, Marci A. Hamilton

Articles

Although many scholars have been in favor of providing first amendment protection for art, no one has offered a justification for its constitutional protection suited to art's singular capacities. Rather, commentators and courts have been inclined to place art under the rubric of general speech, which limits protection to ideas and content. Professor Hamilton argues that art offers significantly more than its content and deserves first amendment protection tailored to its particular potential. Art enables individuals to experience unfamiliar worlds and thereby to gain new perspectives on the prevailing status quo, including the government's. It performs this function without exposing …

Intellectual Property Policy Online: A Young Person’S Guide, James Boyle

Faculty Scholarship

This is an edited version of a presentation to the "Intellectual Property Online" panel at the Harvard Conference on the Internet and Society, May 28-31, 1996. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. Of approximately 400 panel attendees, 90% were not lawyers. Accordingly, the remarks that follow are an attempt to lay out the basics of intellectual property policy in a straighforward and non-technical manner. In other words, this is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy …