Intellectual Property Law Commons^™

Intellectual Property: The Law In Canada By Daniel Gervais & Elizabeth F. Judge (Toronto: Thomson Carswell, 2006), David Lametti

Canadian Journal of Law and Technology

No abstract provided.

Copyright And Incomplete Historiographies: Of Piracy, Propertization, And Thomas Jefferson, Justin Hughes

Articles

Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or …

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

ExpressO

This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of the …

Giving Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

The interdisciplinarity of intellectual property and taxation poses many challenges to the disparate existing norms in each field of law. This Article identifies and critiques the current tax regime governing the giving of intellectual property as a manifestation of the failure to understand the principles and policies underlying intellectual property and the firm. It proposes an incentives-based system that would encourage firms to extricate part of their repository of residual rights by surrendering their monopolistic ownership of intellectual property for the benefit of charitable organizations and, in turn, the development and growth of society.

Panel I: Monsanto V. Scruggs: The Scope Of Downstream Licensing Restrictions, Mark R. Patterson, Richard B. Ulmer Jr., Peter Castensen, Jay P. Kesan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Does Information Beget Information?, Dennis S. Karjala

ExpressO

Professor R. Polk Wagner has recently propounded a theory in the Columbia Law Review, purportedly based on a mathematical model, showing that open information grows exponentially with time and that, to the extent that creator control and incentives are correlated, greater control in the creator (author or inventor) results in a larger supply of open information in the long run than less control. While Professor Wagner’s assumptions are open to serious question, this article demonstrates that Professor Wagner’s model does not, even on the basis of his stated assumptions, lead to the result he claims for it. Rather, his results …

Trips: With A Painful Birth, Uncertain Health, And A Host Of Issues In China, Where Lies Its Future, Allan Segal

San Diego International Law Journal

In recent decades, the United States and other western nations have used pragmatic and theoretical reasons to justify a strong, global intellectual property ("IP") regime. From a practical perspective, economically mature nations clearly have a direct, vested interest in preventing the piracy of patented goods and ensuring that their domestic agendas maximize financial protection for inventions or creations. Nevertheless, the supranational disregard of patent protection and IP piracy has a financial impact on numerous companies, as well as the taxpaying citizens, in developed countries. These disparate foundations for basic IP rights result in a haphazard theoretical grounding to the Agreement …

The Right Of Publicity: Recovering Stolen Identities Under International Law, Emily Grant

San Diego International Law Journal

This Article proceeds from the assumption that the claims just hypothesized ought to be universally recognized to entitle a celebrity to an action for infringement of his or her right of publicity. It surveys the possibilities for protection of the right of publicity under current international intellectual property law. First, it briefly describes the American right of publicity doctrine as well as the policy shortcomings of the American doctrine and points out the lack of explicit protection for the right in other countries. It next explores the foundations of the right of publicity through a triptych of doctrines - including …

I Know You Are, But What Am I? A Temporal Approach To Legal Classification, Wendy A. Adams

ExpressO

No real epistemological disagreement exists that legal knowledge can be represented and understood in categorical form. At issue is the extent to which categorical analysis captures the full complexity of legal reasoning. Can legal reasoning be represented as a taxonomy of mutually-exclusive classes, a taxonomy considered necessary if legal certainty and the rule of law are to prevail, or does the complexity of the process defy attempts at exhaustive classification?

The author agrees with those who argue that multiple legal concepts must often be applied simultaneously to resolve legal problems. The author also acknowledges that simultaneous application of multiple concepts …

The Role Of Patents In Fostering Open Innovation, John Dubiansky

ExpressO

The patent system is at an inherent tension with contemporary practices of innovation. American patent doctrine reveres the lone inventor who, through the marshalling of extraordinary insight and experimental toil, conceives a novel invention. As a reward, the inventor is given the right to profit from his contribution through personal commercial exploitation. While this perspective may have reflected the practice of the mechanical arts at the time of the nation’s founding, it no longer reflects contemporary industrial research and development, where innovation is an increasingly networked process.

This disconnect is evidenced by the fact that contemporary patent doctrine has failed …

Who Cares What Thomas Jefferson Thought About Patents: Reevaluating The Patent "Privilege" In Historical Context, Adam Mossoff

ExpressO

The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using privilege as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale

Faculty Scholarship

The fair use defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use's potential effect on the market for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the market for copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual …

Keeping Up To Date With Ip News Services And Blogs: Drowning In A Sea Of Sameness?, Jon R. Cavicchi

Law Faculty Scholarship

It seems like so many IP related Websites you visit invite you to join their free email list to keep you up to date. Sources span a wide spectrum including governmental organizations, non-governmental organizations, educational institutions, consulting services, law firms, commercial publishers and more. These sources span the spectrum from free, to low fee to premium pricing. With all of this information overload and choices, how do you differentiate and choose news sources?

The goals of this article are twofold. Goal one is to present a survey of types and categories of IP news tools available to IP researchers. Since …

Fair Use And The Fairer Sex: Gender, Feminism, And Copyright Law, Ann Bartow

Law Faculty Scholarship

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when …

Digital Rights Management And The Process Of Fair Use, Timothy K. Armstrong

Faculty Articles and Other Publications

Producers of digital media works increasingly employ technological protection measures, commonly referred to as "digital rights management" (or "DRM") technologies, that prevent the works from being accessed or used except upon conditions the producers themselves specify. These technologies have come under criticism for interfering with the rights users enjoy under copyright law, including the right to engage in fair uses of the DRM-protected works. Most DRM mechanisms are not engineered to include exceptions for fair use, and user circumvention of the DRM may violate the Digital Millennium Copyright Act even if the use for which the circumvention occurs is itself …

Intellectual Property: Trade Secrets And The Federal Tort Claims Act/Dd Form 882 Over Substance: Caveat Forfeiture, Katherine E. White

Law Faculty Research Publications

No abstract provided.

Intellectual Property Research: From The Dustiest Law Book To The Most Far Off Database, Jon R. Cavicchi

Law Faculty Scholarship

This issue of IDEA introduces a regular series of articles on intellectual property research tools and strategies based on my experience for over a decade as Intellectual Property Librarian and Research Professor at Franklin Pierce Law Center. Pierce Law is consistently ranked among the top law schools training IP professionals. I have taught IP legal research, patent, trademark and copyright searching to hundreds of students and IP professionals in Pierce Law Graduate Programs. I have tackled hundreds of reference and research questions as well as working on countless projects requiring IP information. So I have been faced with challenges and …

Digital Copyright, Jessica D. Litman

Books

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners' control over individuals' private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts.

In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of …

Why Sell What You Can License?, Contracting Around Statutory Protection Of Intellectual Property, Elizabeth I. Winston

Scholarly Articles

Historically, the transfer of goods has been through sale, a model regulated by public legislation. Increasingly, however, the transfer of goods is occurring through licensing, a model regulated by private legislation. Privately-legislated licenses - for such chattels as musical and written works and agricultural goods - are being used to circumvent publicly-legislated restrictions on intellectual property. Private legislation should not circumvent public legislation, and intellectual property owners should not be allowed to circumvent the statutory scheme for protection of intellectual property. Licenses that augment publicly-legislated protection of intellectual property support the traditional role of contracts and should be enforced. Licenses …

Trademark Dilution In Japan, Kenneth L. Port

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For The Recording Industry's File Sharing Litigation, Matthew Sag

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Evaluating The Proposed Changes To Federal Rule Of Civil Procedure 37: Spoliation, Routine Operation And The Rules Enabling Act, Nathan D. Larsen

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

A New Economics Of Trademarks, David W. Barnes

Northwestern Journal of Technology and Intellectual Property

Conventional wisdom holds that trademarks are nothing like other intellectual property. Copyright and patent law are theoretically based in public goods theory and are designed to promote creation and disclosure of original expressions and novel, useful innovations. By contrast, trademarks are private goods and trademark law is designed to promote trade and encourage competition.

This article challenges conventional wisdom by demonstrating that trademarks are a type of public good that contributes to the public stock of useful ideas just as patented and copyrighted works do. This economic perspective suggests, again contrary to conventional trademark theory, that competitive markets fail to …

Easing The Claim Construction Blow With Early-Discovery Markman Hearings That Are Appealable To The Federal Circuit On An Interlocutory Basis, Srikanth K. Reddy

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

"Consumer Protection:" Consumer Strategies And The European Market In Genetically Modified Foods, Johanna Gibson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

A New Tool For Analyzing Intellectual Property, Stephen M. Mcjohn

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Identification Of Trade Secret Claims In Litigation: Solutions For A Ubiquitous Dispute, Charles Tait Graves, Brian D. Range

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

A Realist Approach To Merck Kgaa V. Integra, Daniel A. Lev

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Metro-Goldwyn-Mayer V. Grokster: Unpredictability In Digital Copyright Law, Kent Schoen

Northwestern Journal of Technology and Intellectual Property

No abstract provided.