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Articles 121 - 150 of 297
Full-Text Articles in Intellectual Property Law
Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Robert Kirk Walker, Ben Depoorter
Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Robert Kirk Walker, Ben Depoorter
Northwestern University Law Review
Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?,” “Who is an author?,” “What is misappropriation?,” and many other issues essential to copyright. Although courts rarely (if ever) explicitly …
Patent Litigation Reform: The Courts, Congress, And The Federal Rules Of Civil Procedure, Paul Gugliuzza
Patent Litigation Reform: The Courts, Congress, And The Federal Rules Of Civil Procedure, Paul Gugliuzza
Faculty Scholarship
Barely three years after passing the America Invents Act, Congress is again considering patent reform legislation. At least fourteen patent reform bills were introduced in the recently concluded 113th Congress. Several of those bills focused specifically on patent litigation, proposing, among other things, to impose heightened pleading requirements on plaintiffs, to limit discovery, and to create a presumption that the losing party should pay the winner’s attorneys’ fees. None of the proposals became law, but one of the bills (the Innovation Act) passed the House of Representatives. In addition, scholars continue to call for reform, and Republican members of Congress …
Intellectual Property Protection: A United States Priority, Richard A. Morford
Intellectual Property Protection: A United States Priority, Richard A. Morford
Georgia Journal of International & Comparative Law
No abstract provided.
Silent Similarity, Jessica Litman
Silent Similarity, Jessica Litman
Chicago-Kent Journal of Intellectual Property
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form—silent movies—had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases—in particular, Nichols v. Universal Pictures—are canonical today. They are not, however, well-understood. In particular, the problem at the heart …
Trademarks And Transducers: The First Circuit Court Of Appeals Decides On The Standard Of Proof Required To Show Willful Infringement In Lanham Act Cases, Peter Karalis
Catholic University Law Review
No abstract provided.
The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley
The Audience In Intellectual Property Infringement, Jeanne C. Fromer, Mark A. Lemley
Michigan Law Review
Every intellectual property (“IP”) right has its own definition of infringement. In this Article, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. That patent law, for example, focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. …
“Sharing” Copyrights: The Copyright Implications Of User Content In Social Media, Jessica Gutierrez Alm
“Sharing” Copyrights: The Copyright Implications Of User Content In Social Media, Jessica Gutierrez Alm
Journal of Public Law and Policy
Copyright law in America, in its current stage of development, does not sit well with common social media practices. This article explores the copyright implications of user content on social media platforms, such as Facebook, Twitter, and Pinterest. It first examines the copyrightability of "user-generated" content, and the broad licenses that users grant by agreeing to the vague Terms of Use that social media sites set forth. The article then looks to "user-found" content and activities such as "sharing" or "pinning" the creative works of others. Through these practices and conflicting Terms of Use, social media websites both encourage and …
Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against "Mutant Copyrights"?, Irene Calboli
Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against "Mutant Copyrights"?, Irene Calboli
Faculty Scholarship
This article offers a brief overview of the history and developments of the doctrine of aesthetic functionality in the United States and examines the recent decisions in Fleischer Studios, Inc v AVELA, Inc . In particular, the article argues that the courts in Fleischer added an important element to the interpretation of the doctrine, namely the fact that the courts seemed willing to resort to aesthetic functionality to counter the consequences resulting from the practice of using trade mark law as an additional form of protection for copyrighted, or once copyrighted, creative works.
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Law Faculty Scholarship
For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …
Copyright Trolls And Presumptively Fair Uses, Brad A. Greenberg
Copyright Trolls And Presumptively Fair Uses, Brad A. Greenberg
University of Colorado Law Review
The "troll" label, long a staple of the patent system, had little connotation and even less application in the copyright context until 2010. That is when the so-called copyright troll emerged to acquire unenforced copyrights being infringed in the digital marketplace. Trolls threaten to chill speech and discourage innovation by exploiting copyright incentives without contributing to the market for creative works. Yet, despite the copyright troll's conspicuous arrival, little scholarship has discussed how trolls undermine copyright policy goals or potential measures for mitigating the harms they impose. This Article is the first to hone in on the fair use doctrine …
Trade Secrets, Trade, And Extraterritoriality, Elizabeth A. Rowe, Daniel M. Mahfood
Trade Secrets, Trade, And Extraterritoriality, Elizabeth A. Rowe, Daniel M. Mahfood
UF Law Faculty Publications
When a foreign individual or company misappropriates the trade secrets of an American company, and the acts of misappropriation occur entirely outside of the United States, the trade secret law of the United States generally will not apply. This represents the principle of extraterritoriality, and identifies a major vulnerability for companies that choose to conduct operations or engage in other business abroad. In such situations, the substantive and procedural laws of another country are likely to define whether the allegedly misappropriated information is protected and has been misappropriated.
Providing a domestic forum to prosecute extraterritorial infringement would substantially benefit domestic …
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig
Articles & Book Chapters
This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors …
Patent Law Federalism, Paul Gugliuzza
Patent Law Federalism, Paul Gugliuzza
Faculty Scholarship
Most lawsuits arising under federal law can be filed in either state or federal court. Patent suits, however, may be filed only in federal court. Why do patent cases receive exceptional treatment? The usual answer is that federal courts, unlike state courts, provide uniformity and expertise in patent matters. This Article analyzes whether exclusive jurisdiction actually serves those policy aims and concludes that the uniformity-expertise rationale is overstated. If exclusive federal patent jurisdiction is to be justified, attention must also be given to pragmatic considerations, such as the respective quality of state and federal trial courts, the courts’ ability to …
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Akron Law Faculty Publications
For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …
Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson
Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson
Law Faculty Publications
One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. This study fills that gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motions, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. The data we collect allow us to examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds …
Explaining The “Unpredictable”: An Empirical Analysis Of U.S. Patent Infringement Awards, Michael J. Mazzeo, Jonathan Hillel, Samantha Zyontz
Explaining The “Unpredictable”: An Empirical Analysis Of U.S. Patent Infringement Awards, Michael J. Mazzeo, Jonathan Hillel, Samantha Zyontz
Faculty Scholarship
Patent infringement awards are commonly thought to be unpredictable, which raises concerns that patents can lead to unjust enrichment and impede the progress of innovation. We investigate the unpredictability of patent damages by conducting a large-scale econometric analysis of award values. We begin by analyzing the outcomes of 340 cases decided in US federal courts between 1995 and 2008 in which infringement was found and damages were awarded. Our data include the amount awarded, along with information about the litigants, case specifics and economic value of the patents-at-issue. Using these data, we construct an econometric model that explains over 75% …
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Law Faculty Scholarship
¶Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.¶ ¶This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The …
Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean
Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean
Fordham Intellectual Property, Media and Entertainment Law Journal
Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes. For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers. …
Protecting Religious Identity With American Trademark Law, Steven John Olsen
Protecting Religious Identity With American Trademark Law, Steven John Olsen
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Goodwill U: School Name Change & Trademark Law, Alexandra J. Roberts
Goodwill U: School Name Change & Trademark Law, Alexandra J. Roberts
IP Theory
No abstract provided.
Patent Invalidity Versus Noninfringement, Roger Allen Ford
Patent Invalidity Versus Noninfringement, Roger Allen Ford
Law Faculty Scholarship
Most patent scholars agree that the Patent and Trademark Office grants too many invalid patents and that these patents impose a significant tax upon industry and technological innovation. Although policymakers and scholars have proposed various ways to address this problem, including better ex ante review by patent examiners and various forms of ex post administrative review, district courts invalidating patents in litigation remain a core defense against bad patents. This article analyzes a previously unidentified impediment to the use of district courts to invalidate patents. Nearly every patent lawsuit rises or falls on one of two defenses: invalidity or noninfringement. …
Safe Harbor For The Innocent Infringer In The Digital Age, Tonya M. Evans
Safe Harbor For The Innocent Infringer In The Digital Age, Tonya M. Evans
Law Faculty Scholarship
The primary goal of this Article is three-fold: (1) to explore the role of the innocent infringer archetype historically and in the digital age; (2) to highlight the tension between customary and generally accepted online uses and copyright law that compromise efficient use of technology and progress of the digital technologies, the Internet, and society at large; and (3) to offer a legislative fix in the form of safe harbor for direct innocent infringers. Such an exemption seems not only more efficient but also more just in the online environment where unwitting infringement for the average copyright consumer is far …
Reverse Engineering Ip, Tonya M. Evans
Reverse Engineering Ip, Tonya M. Evans
Marquette Intellectual Property Law Review
With the advent of the Internet and digital technology, the twenty-first century has ushered in a quantum increase in the ways to create, disseminate, and commercially exploit creativity. Digital technology allows anyone to create perfect digital copies of protected works in the comfort of their homes and to distribute them to tens, hundreds, thousands, and even millions of people with the click of a hyperlink via a handheld device. Indeed, copyright touches more ordinary people in substantial ways in this age of information than at any other time in American copyright history. READ MORE, download the article.
The Immorality Of Strict Liability In Copyright, Steven Hetcher
The Immorality Of Strict Liability In Copyright, Steven Hetcher
Marquette Intellectual Property Law Review
I will argue for a fundamental reconceptualization of liability for copyright infringement. Specifically, I will argue that the essentially unchallenged orthodoxy that copyright infringement is a strict liability tort is false. From the Supreme Court on down, it does not even appear to be questioned that copyright infringement applies a strict liability standard. Upon reflection, this is peculiar, given that this is anything but an innocuous doctrine. It is just the opposite; it is a doctrine that strongly favors copyright owners who may more easily prevail in infringement suits, as it will always be easier to establish strict liability as …
Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen
Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen
Marquette Intellectual Property Law Review
None.
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza
Faculty Scholarship
This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Patent Infringement As Criminal Conduct, Jacob S. Sherkow
Articles & Chapters
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the …
Fun & Profit: When Commercial Parodies Constitute Copyright Or Trademark Infringement, Tammi A. Gauthier
Fun & Profit: When Commercial Parodies Constitute Copyright Or Trademark Infringement, Tammi A. Gauthier
Pepperdine Law Review
No abstract provided.
Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel
Internet-Based Fans: Why The Entertainment Industries Cannot Depend On Traditional Copyright Protections , Thomas C. Inkel
Pepperdine Law Review
No abstract provided.
Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson
Not So Obvious After All: Patent Law's Nonobviousness Requirement, Ksr, And The Fear Of Hindsight Bias, Glynn S. Lunney Jr, Christian T. Johnson
Faculty Scholarship
Before the creation of the Federal Circuit in 1982, nonobviousness served as the primary gatekeeper for patents. When patent holders sued for infringement and lost, more than sixty percent of the time, they lost on the grounds that their patent was obvious. With the advent of the Federal Circuit, nonobviousness became a much less difficult hurdle to surmount. From 1982 until 2005, when patent holders sued for infringement and lost, obviousness was the reason in less than fifteen percent of the cases. While obviousness remained formally a requirement of patent protection, there can be little doubt that the Federal Circuit …