Intellectual Property Law Commons^™

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Fair Use V. Free Use: A Comparative Study Of American And Russian Copyright Exemptions, Eduard Bershitskiy

LL.M. Essays & Theses

Many U.S. lawyers are under the well-deserved, but still not entirely accurate, impression that copyright infringement in Russia is a huge free-for-all. This comparative paper, which juxtaposes Russian and American copyright exemptions, seeks to partially refute that skeptic view by showing that, in fact, Russian copyright law has developed a relatively coherent system of exceptions and limitations to exclusive rights. This paper begins with a brief overview of Russian copyright law and general remarks on its exemptions. It then focuses on statutory and, where appropriate, case-law comparison of particular copyright exemptions in the Part 4 of the Russian Civil Code …

Desettling Fixation, Emily T. Behzadi Cárdenas

Faculty Scholarship

Scholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is …

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

In Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith (“Warhol”), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright. This Essay argues that these arguments were instead grounded in a form of ““prospect theory” of copyright scope that would give …

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

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …

The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose

Faculty Scholarship

This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …

War & Ip, Peter K. Yu

Faculty Scholarship

On February 24, 2022, war broke out between Russia and Ukraine, sparking concerns among government leaders, intergovernmental bodies and the public at large. A month later, the Russian government issued Decree 299, which reduced to zero the royalty rate for national security-based compulsory licenses to intellectual property rights held by individuals or entities originating from the United States or other "unfriendly" nations. Meanwhile, the United States and other members of the international community imposed sanctions on Russia, raising questions about whether those sanctions would prevent U.S. companies and individuals from engaging with Russian intellectual property agencies. Many multinational corporations also …

Does Intellectual Property Promote Or Hinder Sustainability? The Case Of Upcycling, Irene Calboli, Siroos Tanner

Faculty Scholarship

This book chapter explores upcycling and its intricate legal and ethical challenges, addressing the challenges upcycling faces from an IP perspective and highlighting the defenses potentially available to justify the practice.

Empowering Consumer Rights And Community Welfare: Enhancing Corporate Accountability Through A Geographical Indication Licensing Policy, Akriti ., Sarang Sureshrao Khadkekar, Pinaki Ghosh

International Journal on Consumer Law and Practice

Geographical Indications are a unique form of intellectual property that can potentially improve social-economic welfare. The Indian GI Act is based on the concept of consumer welfare, which prevents market activities that can mislead or confuse consumers. Such confusion can be about the source of origin, the quality, or the reputation of the goods. However, several studies have shown the rampant use of GI names by unauthorized persons and Corporations, creating dangers of diluting the reputation of GI names. Such unauthorized use of GI names results in an unfair commercial advantage to these infringers. Not only that, a genuine consumer …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Do Patents Drive Investment In Software?, James Hicks

Scholarship@WashULaw

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

The Original Instagram: Whose Property Is It?, Sue Altmeyer

Akron Law Faculty Publications

This article examines why the “Original Creation and Transfer” test is a better approach than implied transfer when determining ownership of a social media account. The Original Creation and Transfer test promotes judicial economy, clarity, and predictability. It also has the advantages of a property rule, namely encouraging investment, reducing litigation, and allowing employee mobility. This test achieves the proper balance between worker and employer rights and yields fair results in test cases. Additionally, a uniform law should be created based on the Original Creation and Transfer test to help promote uniformity across jurisdictions.

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Articles

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Individualized Ideological Enclosures: The Generative Ai Crisis And How Consumers Can Reclaim Their Feeds, Sydney Rose

Catholic University Journal of Law and Technology

No abstract provided.

Communication Decency Act And The Intellectual Property Exception, Casey Windsor

American University Business Law Review

As the internet proliferated in the 1990s, Congress became concerned with courts impeding the advancement of the internet and the distribution of obscene materials. Congress passed Section 230 of the Communication Decency Act (CDA), which was part of the Telecommunications Act of 1996. Section 230(c), known as the “Good Samaritan” provision, gave broad immunity to interactive computer services providers (ISPs) who monitor third-party content posted to their website.3 Section 230 created the regulatory foundation for modern day ISPs, including social media websites like Facebook.

Unveiling The Dark Side Of Innovation: Sustainability, Cobalt Mining, And Modern-Day Slavery, Kaitlin Schleich

SMU Science and Technology Law Review

As the need and demand for sustainability come to the forefront of innovative efforts by technology companies, the use of rechargeable batteries has only become more prominent. A critical mineral in the manufacture of such batteries is cobalt. Looking deeper into how manufacturers get their hands on cobalt exposes the troubling cobalt-mining practices largely taking place within the Democratic Republic of Congo (DRC). This article dives into the underbelly of the cobalt-mining industry, revealing the egregious human-rights abuses occurring in the DRC and examining the current legal and ethical landscape surrounding cobalt mining around the world. In both small-scale artisanal …

A Tale Of Two Sams: Effective Altruism’S Threat To The Security Of Emerging Technology, Mackenzie Young

SMU Science and Technology Law Review

Since the onset of scientific innovation, the character and charisma of the inventors and scientists behind emerging technologies have been a centerpiece of focus. However, in light of the driving forces behind innovation—especially the global need to “get ahead” of competitors—few are willing to inquire into the sincerity of held belief. From the ouster of Sam Altman as CEO of OpenAI to the criminal conviction of cryptocurrency mogul Sam Bankman-Fried, the philosophy of “effective altruism” has taken over the minds, hearts, and pocketbooks of Silicon Valley.

This Comment evaluates the origins of the Effective Altruism movement and argues that its …

Foreword: Artificially Intelligent Innovation And Justice, Carla L. Reyes

SMU Science and Technology Law Review

No abstract provided.

Copyright Infringement In The Use Of Copyrighted Material By Generative Artificial Intelligence Programs, Kristin Lee

Honors Undergraduate Theses

The importance of protecting artistic works and promoting the creation of new works has been well established since the inception of United States Constitution. Copyright protections were created by Congress to grant authors exclusive rights over how their works are used and any violation of these rights is copyright infringement. This paper outlines why the use of copyrighted material to train generative artificial intelligence (A.I.) systems is an infringement upon the rights of the author and not an exception under fair use. While no court decisions have been rendered on this legal issue, this paper utilizes previous court decisions in …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

International Source Code Secrecy And The Characterization Of Intellectual Property As National Security, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

This chapter explores the emergence of source code secrecy rules in Free Trade Agreements (FTAs) and their implications for the future of intellectual property (IP). Rooted in geopolitical rivalry, these rules are framed as safeguards for national security and cybersecurity but carry significant potential social, economic, and environmental costs.

It traces the historical and geopolitical contexts that have shaped the rise of source code secrecy. Given that software-dependent technologies are now the dominant modality of innovation, the chapter highlights the impact of source code secrecy on domestic regulatory oversight, innovation, the right to repair, and equitable technology transfer to least-developed …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Introducing Biosimilar Competition For Cell And Gene Therapy Products, Brian Canter, Sabine Sussman, Stephen Colvill, Nitzan Arad, Elizabeth Staton, Arti Rai

Faculty Scholarship

This article provides an early analysis of the potential for creating future biosimilar competition for cell and gene therapies (CGTs) to lower prices and improve patient access, building on a unique set of interviews with relevant experts. Our discussion addressed regulatory, manufacturing, intellectual property, and market size challenges. Due to CGTs’ complexity, meeting the regulatory requirement of ‘high similarity with no clinically meaningful differences’ will be difficult. Gene therapies are likely better candidates for biosimilar development than cell therapies. Biosimilarity should be met when gene therapy biosimilars contain the same genetic sequence as a reference product, and the variability in …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

Mickey, Disney, And The Public Domain: A Ninety-Five-Year Love Triangle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …

The Trade Origins Of Privacy Law, Anupam Chander

Georgetown Law Faculty Publications and Other Works

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Feminist Use, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

In 2015, Judge Pierre Leval wrote that copyright isn’t about authors, it’s about the rest of us. “While authors are undoubtedly important intended beneficiaries of copyright,” he explained, “the primary intended beneficiary is the public.” He would know—his scholarship has been transformative for how every jurist from the Supreme Court down approaches key copyright questions. But copyright often falls short of this aspiration by benefiting only a sliver of the public.

Copyright law grants exclusive rights to authors of qualifying works, such as books, which protects those works from unauthorized copying. The first copyright legislation, the Statute of Anne of …