Intellectual Property Law Commons^™

Indigenous Copyright Concepts And Indigenous Data Sovereignty: How Libraries And Archives Can Support It, Rebecca Chapman, Rebecca Plevel

Law Librarian Journal Articles

U.S. copyright law does not account for Indigenous knowledge. These items, such as stories, dances, songs, and oral teachings are data and works authored by a sovereign com- munity, not just individuals. Indigenous data sovereignty provides that data and cultural knowledge are subject to Tribal protections. Tribes have the right as a sovereign nation to govern the collection, ownership, and application of its own data and cultural knowledge. Assimilating Indigenous knowledge into non-Indigenous works is a copyright issue from an Indigenous perspective. Librarians can identify these Indigenous copyright issues to support local Indigenous Peoples and promote efforts toward achieving Indigenous …

Ip @ The U - October 2024, Jorge L. Contreras

Law School Historical Documents

Welcome to IP @ the U, a periodic newsletter for students, alumni, faculty and friends of the University of Utah College of Law's Program on Intellectual Property and Technology Law. This issue covers a range of IP highlights from the beginning of the Fall 2024 semester.

Infringing Uses, Not Works, Timothy J. Mcfarlin

South Carolina Law Review

No abstract provided.

Rethinking The Pharmaceutical Knowledge- Economy: Patents, The Trips Agreement, And Skewed Utilitarianism In The Evolving Ideological Paradigms, Morris Odeh

Articles, Book Chapters, & Popular Press

The TRIPS Agreement introduced a unique globalized pharmaceutical patent economy. This article examines the social costs of this patent regime in low-income countries and makes three contributions. Firstly, it highlights how, in the early development of the patent system, nations perceived patents as privileges and displayed considerable reluctance in protecting pharmaceutical products and processes. This allowed net importers of technologies to replicate foreign innovations without the constraints of IP rights, and in some cases, invalidate unnecessary patents. However, this took a different turn towards the tail end of the 20th century when the patent norms and rules were harmonized and …

Narratives Unbound: The Role Of Queer Transformative Works In Shaping Legal And Cultural Landscapes, Morgan E. Spencer

William & Mary Journal of Race, Gender, and Social Justice

Queer transformative works promote social justice in marginalized queer communities by offering much-needed representation and visibility. These works fill an essential gap in a societal storytelling canon historically bereft of such material. Notwithstanding this societal benefit, these works pose complex legal and ethical challenges at the crossroads of copyright protections and creative expression. This Note examines the cultural significance and social benefits of queer transformative works in combination with an analysis of the legal landscape and ethical considerations that such works must navigate to maintain a harmonious existence with the original works that inspired them. A more nuanced understanding of …

Patent Your Passenger Pigeons: De-Extinction Technologies & Ramifications Of The Product Of Nature Doctrine, Tyler Brooks

William & Mary Environmental Law and Policy Review

Part I of this Note will provide a brief overview of the current methods and scientific breakthroughs that are actively being pursued by private actors (particularly the bioengineering company Colossal Biosciences) to make de-extinct creatures, establishing the crucial point that any technique used to create such an animal will inherently fall short of being able to replicate an extinct species with any one hundred percent accuracy. This section will then briefly speak as to why private actors are looking to invest in de-extinction technologies in the first place, setting out how de-extinction technologies might one day prove incredibly profitable for …

Trade Secrets In The Artificial Intelligence Era, John G. Sprankling

South Carolina Law Review

No abstract provided.

A Wrong In Search Of A Duty: Public Nuisance, Social Media And The Youth Mental Health Crisis, Charles Bachmann

Cardozo Journal of Equal Rights & Social Justice

The note argues that social media companies should be held accountable for their role in the youth mental health crisis through the legal framework of public nuisance law. Drawing parallels to successful cases against tobacco and opioid companies, the author contends that social media platforms, by prioritizing profits over user well-being, contribute to widespread harm such as anxiety, depression, and suicide among youth. While acknowledging concerns about judicial overreach and the challenges of proving causation, the note advocates for judicial intervention as a necessary corrective in the absence of effective legislative action.

The Rights And Obligations Of Mod Creators In Canadian Videogame Law, Christian Clavette

Canadian Journal of Law and Technology

This article explores the legal landscape for mod creators in the Canadian video game industry, examining their rights and obligations under Canadian copyright law and End User License Agreements (EULAs). With the growth of the industry, independent creators have increasingly contributed to game development through “mods,” which modify or enhance existing games. While these mods offer significant creative and commercial potential, they also pose legal challenges, particularly regarding copyright infringement and the enforceability of EULAs. The article evaluates relevant Canadian and U.S. case law, highlighting key differences and similarities, and discusses how these legal principles apply to mods. It also …

Classifying Open Access Business Models, Tasha Mellins-Cohen

Copyright, Fair Use, Scholarly Communication, etc.

The proliferation of open access (OA) business models has been rapid, presenting challenges for stakeholders in communicating and working effectively with one another. This article aims to clarify terminologies and address the inconsistencies and gaps in previous attempts to categorize OA models, supporting informed decision-making. It presents five core types, each with distinct characteristics and implications for funding, equity, and implementation. Operating at the level of individual pieces of content, transactional models expose authors to the financial implications of their decisions to make content OA; they often must pay out of their own funds. Driven by negotiations between libraries or …

Client Confidentiality As Data Security, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

The duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure …

Access To Justice As Access To Data, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

This Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining good-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data.

A Right To Be Left Dead, Mark Bartholomew

Journal Articles

Technology forces us to contemplate a counterpart to the right of privacy—Brandeis and Warren’s “right to be let alone”—for the age of artificial intelligence: the right to be left dead. Traditionally, it has been presumed that even if Brandeis and Warren’s right constitutes “the most comprehensive of rights and the right most valued by civilized men,” it does not apply to the dead. The question is whether we need a new approach at a time when technology can reanimate anyone and make them behave in a manner indistinguishable from their living presence. This Article interrogates the need for a right …

Intellectual Property, Genetic Resources, And Associated Traditional Knowledge, N.S. Gopalakrishnan, Srividhya Ragavan, Narendran Thiruthy

Faculty Scholarship

The recently concluded WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge mandates disclosure requirements in patent applications, thereby creating an obligation to attribute the use of genetic resources and traditional knowledge. The WIPO member countries thus have an opportunity to modify their national patent laws, so that they can effectively control genetic resources and traditional knowledge. This article examines the choices that the biodiversity-rich countries have when designing their national legal systems to implement the treaty.

The Eu Geo-Blocking Regulation: A Commentary, Marketa Trimble

Media & Informal Publications

Professor Trimble delivered a presentation for the Centre for Legal Innovation and Digital Society at the Chinese University of Hong Kong. This was an invitation to present Professor Trimble's book The EU Geo-Blocking Regulation: A Commentary (Edward Elgar Publishing, 2024) at the university's 16th Law & Digital Society Book Talk.

How Do You Like Your Books, Jessica Silbey

Faculty Scholarship

Do you ever wonder how it is that libraries can lend books repeatedly, while copyright owners (e.g., book authors) are granted the exclusive right to distribute their copyrighted works? Or how publishers make money selling books at retail prices when a person can resell books (or buy used books) for much less (hello Amazon Used Books for under a dollar!)? The reason is because of copyright’s “first sale” doctrine, 17 U.S.C. § 109, codifying the common law’s exhaustion principle, which says owners of lawfully made copies are allowed to dispose of those copies without regard to copyright law. In other …

United States Department Of Homeland Security Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

United States Department of Homeland Security Scientific Integrity Policy

Boeing Ruling Is A Cautionary Tale For Trade Secret Litigants, Matthew D'Amore

Cornell Law Faculty Publications

On Aug. 14, a $72 million jury trial win by Zunum Aero Inc. against The Boeing Co. in the U.S. District Court for the Western District of Washington for trade secret misappropriation evaporated with the court's post-trial holding that Zunum had failed to identify its trade secrets sufficiently.

How did we get here after three years of litigation, eight days of trial and countless dollars spent? How can litigants — and courts — avoid this situation in the future?

Clear pretrial identification of trade secrets is key, and litigants can find a road map for this in the Sedona Conference's …

Artificial Intelligence, Copyright Registration, And The Rule Of Doubt, Thomas B. James

Texas A&M Law Review

Artificial intelligence (“AI”) technology has detonated an explosive burst of seemingly creative expression. Stories, images, music, and even entire books are now being generated very quickly. This development is a major headache for copyright registrars because the copyrightability of works created in this way is uncertain. The almost limitless variability in the extent of human involvement in the creation of a work using an AI tool compounds the uncertainty. In some cases, copyrightability is easy to determine, such as where an author only claims rights in the selection and arrangement of AI-generated output rather than the output itself. But in …

United States Department Of Health And Human Services Scientific Integrity Policy (September 16, 2024)

Copyright, Fair Use, Scholarly Communication, etc.

United States Department of Health and Human Services Scientific Integrity Policy (September 16, 2024)

Operating Internationally Under The Current Patchwork Of National Exceptions And Limitations To Copyright (With An Ai Angle) Plus: Nevada Ip Statistics, Marketa Trimble

Media & Informal Publications

Professor Trimble delivered a presentation for the 2024 Intellectual Property Conference, hosted by the Intellectual Property Law Section of the State Bar of Nevada.

Antitrust Class Action To Challenge Collusion Among The World’S Six Largest For-Profit Publishers Of Peer-Reviewed Scholarly Journals, Lucina Uddin, Dean M. Harvey, Jallé H. Dafa, Benjamin A. Trouvais, Emily N. Harwell, Benjamin D. Elga, Janet Herold

Copyright, Fair Use, Scholarly Communication, etc.

Scholar and scientist Dr. Lucina Uddin (the “Scholar Plaintiff”) brings this antitrust class action to challenge collusion among the world’s six largest for-profit publishers of peer-reviewed scholarly journals: (1) Elsevier B.V.; (2) Wolters Kluwer N.V.; (3) John Wiley & Sons, Inc.; (4) Sage Publications, Inc.; (5) Taylor and Francis Group, Ltd.; and (6) Springer Nature AG & Co. KGaA (collectively, the “Publisher Defendants”). In violation of Section 1 of the Sherman Act, the Publisher Defendants conspired to unlawfully appropriate billions of dollars that would have otherwise funded scientific research (the “Scheme”).

The Publisher Defendants’ Scheme has three primary components. First, …

Burdening The “Skilled Searcher”: The Federal Circuit Falls Short Of Providing Ironclad Fixes To § 315(E) Estoppel Issues In Ironburg V. Valve, William Kehoe

Villanova Law Review (1956 - )

No abstract provided.

Amazon’S Dirty Little Secret, Tanya J. Monestier

Journal Articles

You need new earbuds because one of yours just went missing. You log onto Amazon and scroll through the endless array of options. You finally select a pair “Sold by” Amazon and click “Buy Now.” Amazon promises to have the earbuds to you tomorrow. Have you ever wondered how it’s possible for Amazon to pull off this Santa-like feat? It’s because of a little-known practice called commingling. Commingling gets you your earbuds in near record time. But commingling could also result in your getting earbuds that are duds—or, worse yet, that malfunction and cause ear damage.

Commingling means that the …

Brief Of 15 Scholars Of Law And Medicine As Amici Curiae In Support Of The Petition For Rehearing En Banc, Charles Duan

Amicus Briefs & Court Filings

The panel decision announces an over-expansive, ill-defned doctrine of inducement, in which well-pled allegations may be based on nothing more than ordinary marketing materials and mandatory labeling--even when those materials never recite or describe the claimed invention. This unprecedented and erroneous expansion of inducement liability leaves the law uncertain. It is now unclear, among other things, what statements a generic frm may make about its own product's equivalence and how much of the generic product's labeling information must be revised--assuming that such revisions are even regulatorily allowed--in order to avoid the risk of an inducement lawsuit.

Revitalizing Biotechnological Advancement In The United States: Patent Eligibility Reform To Promote Innovation While Preserving Morality, Sydney Virtue

West Virginia Law Review

Patent protection has long been recognized as a key part of promoting innovation; however, current patent eligibility law in the United States often produces the exact opposite result. While the basic framework for patent eligibility is provided by the Patent Act, the United States Supreme Court has crafted several significant exceptions to patent eligibility—laws of nature, natural phenomena, and abstract ideas. These judicial exceptions have created a crisis in patent law and impeded biotechnological innovation, as they are too vague to be properly confined and carry tests that are too ambiguous for predictable application. To promote and retain world leadership …

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg

Faculty Scholarship

Lightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.”

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik

Faculty Scholarship

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

Hachette V. Internet Archive: How And Why The Courts Broke Copyright, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

The exclusive rights of copyright owners have always been overbroad which, if read literally, would make many common activities illegal (e.g., reading a book during library story hour, making a mixed tape, etc). What has prevented overreach is a social contract. The public at large has been tolerant of copyright’s broad grant of rights because of the understanding that the rights would be exercised only in very limited circumstances. The rights were not intended to empower copyright owners to undermine the overwhelming number of reasonable uses of copyrighted works that make society productive. For centuries, rightsholders and courts have generally …