Intellectual Property Law Commons^™

Common Law Notice-And-Takedown, Michael Goodyear

Articles & Chapters

Platform liability is a complex landscape under U.S. law. The immunity for users’ torts provided by Section 230 of the Communications Decency Act has understandably garnered the most attention. In addition, many intellectual property law scholars have also examined the requirements of the Digital Millennium Copyright Act (“DMCA”), which provides safe harbors for users’ copyright infringements. The DMCA enumerates a long series of requirements that online platforms must satisfy to be immunized for their users’ infringements, including a notice-and-takedown regime, a repeat infringer policy, and a prohibition on having the right and ability to control and a direct financial benefit. …

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

De Minimis Copying: An Empirical Study, Jessica Silbey, Samantha Zyontz

Faculty Scholarship

In the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying …

Innovate Responsibly: Post-Grant Mechanisms To Deter Unnecessarily Toxic Pharmaceutical Patents, Brianna De Frank

Chicago-Kent Law Review

No abstract provided.

Losing The Big Picture: An Argument For Preserving Irpa Rights For Emotional Damages, Stephen Luke Winbery

Chicago-Kent Law Review

No abstract provided.

Can The Law Protect My Craft? How Gaps In Copyright Of Knitting Patterns Symbolize A Greater Struggle For Protecting Traditionally Feminine Forms Of Intellectual Property, Kysa Walzer

Seattle University Law Review

The purpose of this article is to demonstrate the application of intel-lectual property rights within the context of copyright protection of knit-ting patterns. The article will discuss the underutilization of copyright pro-tection for knitters and crafters and its larger impact upon craft and indus-try traditionally comprised of women. Part I introduces knitting patterns and a short history of copyright protections. Part II discusses the specific areas within knitting patterns and the knitting community which give rise to legal grey areas for copyright protection. Part III discusses the larger implications of copyright and intellectual property in spaces where women traditionally make …

The Hidden Revolution: How Patent Law Is Shaping Women's Health Tech, Daniel Mendoza

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

What Copyright Can't Do, Blake E. Reid

Pepperdine Law Review

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But …

Infringing Information Architectures, Michael Goodyear

Articles & Chapters

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the …

Brief Of 12 Narcolepsy Patients, Public Interest Organizations, Medical Professionals, And Professors Of Law And Medicine As Amici Curiae In Support Of Defendants-Appellees (Amended To Add Further Signatories), Charles Duan

Amicus Briefs & Court Filings

A prior copy of this brief was filed, inadvertently omitting one signatory. This brief has accordingly been amended to correct the error, reflected in the Certificate as to parties and the Appendix.

Brief Of 76 Scholars Of Law, Business, Economics, And Medicine As Amici Curiae, Charles Duan

Amicus Briefs & Court Filings

No abstract provided.

Motion For Leave To File Brief Of 31 Intellectual Property And Media Law Professors As Amici Curiae In Support Of Appellant And Reversal, Christine Farley

Amicus Briefs & Court Filings

Amici Intellectual Property and Media Law Professors respectfully move for leave to file a brief in support of Appellant in this appeal, pursuant to Federal Rule of Appellate Procedure 29(a)(2) and (a)(3) and 11th Circuit Rule 29-1.1 The proposed brief is being tendered herewith. All parties have received notice of the filing of this motion and proposed brief. Counsel for Appellant has consented to the filing of the proposed brief; counsel for Appellee has advised that Appellee opposes the filing.

Un©Ertainty And Dis©Omfort, Richard Chused

Northwestern Journal of Technology and Intellectual Property

This essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight …

Quo Vadis, Fair Use? The Future Of Fair Use After The Warhol Decision, Vicenç Feliú, Josh Lida

Northwestern Journal of Technology and Intellectual Property

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings.

The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial …

Fame, Fakes, And The First Amendment: A Three-State Analysis Of The Right Of Publicity In Addressing Deepfakes, Alexandra Reilly

William & Mary Bill of Rights Journal

Part I of this Note will set the scene of current concerns with deepfakes by those in media and pending changes in the right of publicity landscape. Part II discusses the standing of the right of publicity in three states. Parts III and IV address the current balancing tests for the First Amendment and intellectual property statutes. Part V examines the pathway for expansion of the right of publicity federally to combat the threat posed by deepfakes and Part VI analyzes the interplay with intellectual property doctrines and the First Amendment.

This abstract has been taken from the author's introduction.

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Akron Law Review

This article examines the ongoing negotiations at the World Intellectual Property Organization (WIPO) regarding the protection of genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs). It provides a comprehensive overview of the historical background, key provisions, challenges, and reflections on the diplomatic efforts leading to the establishment of the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (GRATK Treaty). It explores issues surrounding disclosure obligations, including the lack of a clear definition for "confidential information" and the debate over sanctions and remedies. The article examines the challenges and implications of key provisions in the Basic …

Accelerating Biosimilar Market Access: The Case For Allowing Earlier Standing, S. Sean Tu, Rachel Goode, Matthew Turner, Victor Van De Wiele

Law Faculty Scholarship

Biosimilars, which are affordable alternatives to biologic medicines, face delays in market entry due to the current patent litigation framework under the Biologic Price Competition and Innovation Act. Currently, biosimilar manufacturers can only initiate patent litigation to attempt to clear weak and invalid patents after submitting their Biologic License Application to the Food and Drug Administration (FDA), which happens after completing extensive, and costly clinical trials. By contrast, generic drug manufacturers can start litigation earlier due to shorter development times and less stringent clinical requirements, allowing them to launch immediately after the primary patent expires. We propose allowing biosimilars to …

Copyright's Dominion, Shani Shisha

Faculty Journal Articles and Book Chapters

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the …

The Impact Of Artificial Intelligence On Copyright Infringement Liability, Sarah M. Rizzo

Touro Law Review

Although the rise of artificial intelligence platforms has been promoted as a solution to many of our problems, it is important to address the possible issues this new technology may be creating. With artificial intelligence evolving at such a rapid rate, questions arise as to how to effectively regulate and control this technology. Specifically, in the realm of intellectual property, how will copyright protection be ensured and how will liability for copyright infringement be apportioned with the expanding use of artificial intelligence? Users of artificial intelligence platforms should be able to employ such artificial intelligence products freely and confidently without …

Ai-Driven Branding: Trademark Law Implications Of Automated Creativity, David J. Looney

Touro Law Review

The rapid advancement of Artificial Intelligence (“AI”), particularly generative AI systems like OpenAI’s ChatGPT and DALL-E, has introduced novel challenges to trademark law, which have remained largely unchanged since the Lanham Act of 1946. While trademark law has evolved to address such issues as dilution, international registration, and cybersquatting, the emergence of AI-generated con[1]tent capable of producing words, phrases, logos, and symbols raises significant concerns about infringement and dilution of existing trademarks. This Note examines the intersection of AI and trademark law, exploring the historical and current frameworks of both fields, the legal dilemmas posed by AI’s ability to generate …

On Snow's Intellectual Property And Immorality, David O. Taylor

Faculty Journal Articles and Book Chapters

In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. …

The Timing Of Claim Construction: An Analysis Of Claim Construction Procedure And A Proposed Rule To Ensure Cost Effective And Timely Relief In Patent Infringement Cases, Timothy A. Richard

Catholic University Journal of Law and Technology

The federal government issues patents to encourage inventors to produce new and useful works and advance the state of the art.[1] The patent process is simple: in exchange for the right to exclude all others from making and using an invention for an established period, the inventor provides the government — and ultimately the public — with a full disclosure of how to make and use the invention.[2] Despite this full disclosure, the terms used in patent claims are subject to judicial interpretation during litigation.[3] Both the Supreme Court of the United States (“Supreme Court”) and the …

Paternity, Protection, And Pirates: A Queer Theory Analysis Of Intellectual Property Metaphors, Eden Sarid

IP Theory

Intellectual Property and queer theory share a fundamental concern with the interplay between private and public, tangible and intangible, and language and form. Queer theory emphasizes how language impacts the construction of identity and belonging, highlighting that discourse plays a pivotal role in structuring gender, sexuality, and normativity. Intellectual Property is often portrayed as strictly neutral, laser-focused on spurring creativity and innovation. However, is this portrayal reflective of reality? And does this purported neutrality hold up in IP’s rhetoric? By examining two principal IP terminologies through a queer lens – the term “protection” to describe IP legal privilege, and the …

And The Oscar For Best “Original” Screenplay Goes To . . . Chatgpt: Does The Use Of Ai In Scriptwriting Devalue Hollywood Writers?, Harrison Stern

Touro Law Review

No abstract provided.

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

Name Your Price: How The Rise Of Tiktok Influencers Reveals Weaknesses In The Right Of Publicity’S Protection Of The Commercial Value Of Name And Identity, Melody Garzon

FIU Law Review

After TikTok's immediate success within the social media industry, many users have turned to their large followings on the app as a means of capitalizing on their own name, likeness, and identity. These influencers‚ now face various obstacles when attempting to assert their right of publicity. The right of publicity is entirely state-mandated, creating vast discrepancies in protection across state borders. More stringent regulations are needed regarding how one's right of publicity is legally protected against other TikTok users and third-party companies. TikTok's current Intellectual Property Policy does little to deter violations of a user's right of publicity; on the …

Characters In Copyright Law: Extraordinary Rules For Ordinary Content, Robert F. Helfing

Marquette Intellectual Property & Innovation Law Review

Characters are a breed apart in copyright law. Only they have a special standard of creativity. Only they must have unique elements to qualify for protection. Only they are exempt from analysis as derivative works when they appear in multiple works, and only they are required to maintain consistent features in order to maintain protection previously earned. These and other idiosyncrasies do not follow naturally from precedent or statutory law, but operate heedless of and even contrary to legal authority.

This article shows that, after fifty years of undifferentiated treatment, the courts suddenly began to apply divergent rules to characters. …

Trademark Fair Use Is No Joke, Christine Farley

Scholarly Articles in Law Reviews & Journals

This Article examines how the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products reveals the limitations of using parody as a framework for resolving tensions between trademark rights and free speech. While the Court's ruling narrowed trademark protection in certain instances and acknowledged the importance of protecting parodic speech, it ultimately avoided addressing fundamental questions about the relationship between trademark law and the First Amendment. The Article argues that courts' reliance on parody as a paradigmatic case of permissible trademark use has become a distraction that prevents necessary reform of trademark law to better accommodate First Amendment …

Artificial Intellectual Property, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The year is 2031. You just got up. Your smartwatch has registered the movement, and the coffee maker is on. After your shower, you pick up your phone or read the latest news on the New York Times app on your VR goggles or palm. Except for a few remaining columnists, the news is all written by AI machines. At work, you are responsible for a report on a new product for your company, and you use Al to design the product and prepare the pitch, including the visuals and text of your presentation to the C-suite. The Al system …

Ai Characterisations And Their Legal Implications, Jerrold Tsin Howe Soh

Research Collection Yong Pung How School Of Law

This chapter examines the difficult legal characterisation problems that artificially intelligent systems raise and explores how different characterisations of artificial intelligence (AI) shape practical legal outcomes. Three reasons are offered for the legal difficulty with characterising AI. First, answers to characterisation problems are inherently subjective and perspective-driven, particularly when the subject is an intangible technological system. Second, AI technology is especially difficult to define since the field typically proceeds on inexact anthropomorphic metaphors. Third, AI characterisation problems raise difficult sub-problems, particularly in determining how autonomous an AI system is. The chapter thus argues that a range of plausible AI characterisations …