Intellectual Property Law Commons^™

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", Jane C. Ginsburg

Faculty Scholarship

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should …

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.
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/="/">Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has …

Patent Eligibility And Investment, David O. Taylor

Faculty Journal Articles and Book Chapters

Have the Supreme Court’s recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors’ answers to those important questions. Analyzing responses to a survey of 475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court’s recent cases have influenced these firms’ decisions to invest in companies developing technology. The survey results reveal investors’ overwhelming belief that patent eligibility is an important consideration in investment decisionmaking, and that reduced patent eligibility makes it less likely …

The Procedural Foundations Of Intellectual Property Information Regulation, Ira Steven Nathenson

Lewis & Clark Law Review

In the academy, legal scholarship on intellectual property, or “IP,” abounds, most of it focusing on the substance of IP. Far less, however, is written about the procedural aspects of IP. This Article focuses on the often-ignored proce- dural foundations of IP and suggests—at a minimum—that procedure so thoroughly pervades IP that IP’s true foundations might be in procedure rather than substance. Considering “IP as procedure” may further allow us to recog- nize that IP procedures may need to be reconceptualized within a broader field of information regulation procedures.

I. II.

U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller

Scholarly Works

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

Response To Oliar And Stern: On Duration, The Idea/Expression Dichotomy, And Time, Wendy J. Gordon

Faculty Scholarship

Courts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.

With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark …

Independent Creation In A World Of Ai, Clark D. Asay

FIU Law Review

No abstract provided.

Can Algorithms Promote Fair Use?, Peter K. Yu

FIU Law Review

No abstract provided.

Litigating Against The Artificially Intelligent Infringer, Yvette Joy Liebesman, Julie Cromer Young

FIU Law Review

No abstract provided.

Double Standards: An Empirical Study Of Patent And Trademark Discipline, Jon J. Lee

Faculty Articles

Our legal system is built on the foundation that lawyers have a number of coexisting and sometimes conflicting duties — to their clients, to others who might be affected by their practice, and to the effective and equitable administration of justice. While most lawyers fulfill these duties ethically, invariably some fail to live up to these expectations. For this reason, all states have created disciplinary authorities to regulate and sanction lawyer misconduct. The United States Patent and Trademark Office (“USPTO”) is one of the few agencies to have developed its own disciplinary system for policing the conduct of trademark attorneys …

Improvising Intellectual Property In Saigon, David A. Bergan

Vanderbilt Journal of Entertainment & Technology Law

How does intellectual property become part of the structure of social practice? The traditional answers are enforcement, education, and incentivized self-interest. This Article challenges that understanding by examining the social field of young engineers in Vietnam. In Ho Chi Minh City, Vietnam, intellectual production is not only about producing the legal commodity we call intellectual property. For many young engineers working with multinational companies, it is not about producing a product at all. It is about improving their position in society. Relying on over a year of qualitative, ethnographic fieldwork from 2012 to 2014, this Article develops a critique of …

Copyright Exceptions Across Borders: Implementing The Marrakesh Treaty, Laurence R. Helfer, Molly K. Land, Ruth L. Okediji

Faculty Scholarship

This article reviews state ratification and implementation of the Marrakesh Treaty since its conclusion in 2013. We find that most states have adhered closely to the Treaty’s text, thus creating a de facto global template of exceptions and limitations that has increasingly enabled individuals with print disabilities, libraries and schools to create accessible format copies and share them across borders. The article argues that the Marrakesh Treaty’s core innovation—mandatory exceptions to copyright to promote public welfare—together with consultations with a diverse range of stakeholders, may offer a model for harmonising human rights and IP in other contexts.

Accountability, Secrecy, And Innovation In Ai-Enabled Clinical Decision Software, Arti K. Rai, Isha Sharma, Christina Silcox

Faculty Scholarship

This article employs analytical and empirical tools to dissect the complex relationship between secrecy, accountability, and innovation incentives in clinical decision software enabled by machine learning (ML-CD). Although secrecy can provide incentives for innovation, it can also diminish the ability of third parties to adjudicate risk and benefit responsibly. Our first aim is descriptive. We address how the interrelated regimes of intellectual property law, Food and Drug Administration (FDA) regulation, and tort liability are currently shaping information flow and innovation incentives. We find that developers regard secrecy over training data and details of the trained model as central to competitive …

Monetizing Infringement, Kristelia García

Publications

The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. Rightsholders’ ability to monetize infringement destabilizes long-held but problematic assumptions about both rightsholder preferences, …

Copyright And Economic Viability: Evidence From The Music Industry, Kristelia García, James Hicks, Justin Mccrary

Publications

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major content industry—commercial music—using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life—on the order of months, rather than years or decades—but also see evidence that subscription streaming services are extending …

The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts

American Indian Law Journal

No abstract provided.

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden - considered fraudulent or even immoral. Not so in patents. Patents often contain experimental data and it is perfectly acceptable for these experiments to be entirely fictional. These so-called "prophetic examples" are not only explicitly permitted by both the Patent and Trademark Office and federal courts, but are considered almost equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no studies of these experiments, no explanation for why fictional data are allowed in patents, and no evaluation of the practice.

Here, I provide the …

Death Of Copyright, Paul Gugliuzza

Faculty Scholarship

The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on …

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

Copyrighting Experiences: How Copyright Law Applies To Virtual Reality Programs, Alexis Dunne

The Journal of Business, Entrepreneurship & the Law

This note will attempt to shed light on the question of what kind of protection copyright law affords VR experiences. Part II discusses the nature of VR experiences and their implementation through specifically tailored VR technology. Part III provides an overview of copyright protection, its limitations, and specifically the history of the copyrightability of computer programs. Parts IV and V outline case law relevant to the discussion of the copyrightability of different types of VR experiences and how that case law similarly or dissimilarly apply to the protection of VR experiences. Part IV focuses on protecting VR experiences as a …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

Letter To Council Members Regarding Council Draft 3, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 3 (CD3) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 17-18, 2019. The Council may not appreciate how controversial a project this is: the U.S. Copyright Office, the U.S. Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, the New York City Bar Association’s Committee on Copyright and Literary Property, academics and other Advisers and Liaisons have expressed serious concerns about this and previous Council Drafts and Preliminary Drafts; indeed, the Register of Copyrights deplored the project as a …

Nerf This: Copyright Highly Creative Video Game Streams As Sports Broadcasts, Madeleine A. Ball

William & Mary Law Review

Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called “live streaming.”

While streaming has become lucrative and popular, American copyright law currently nerfs this nascent industry. Streams …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Duke Law & Technology Review

No abstract provided.

Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow

Duke Law & Technology Review

No abstract provided.

Imaginary Bottles, Jessica Litman

Duke Law & Technology Review

No abstract provided.

The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto

Duke Law & Technology Review

No abstract provided.

The Past And Future Of The Internet: A Symposium For John Perry Barlow

Duke Law & Technology Review

No abstract provided.

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy …