Intellectual Property Law Commons^™

Commercializing Copyright, Shani Shisha

Faculty Journal Articles and Book Chapters

Much of modern copyright law is cloaked in the language of neutrality. No matter how successful or popular, all copyrighted works are shielded by the same rights. In theory, our system neither celebrates nor condemns commercial success. All works are created equal under the law. This standard account is radically askew. In reality, questions of commercial success pervade virtually every aspect of copyright doctrine. Courts consider whether the work is commercially successful in cases spanning a range of doctrinal contexts, including the scope of protectable subject matter, the standards of liability, the limits of fair use, and the range of …

The Law Of The New Musical Author, Eyal Brook

Cardozo Arts & Entertainment Law Journal

The process of musical creation has been transformed materially in the Digital Age due to technological developments, both regarding the technologies for making music and regarding novel stylistic developments. New musical practices, based on novel technology, afford entirely new modes of creative authorship. The effects of such shifts have redefined the nature of music and the role of musicians in fundamental ways. This article opens a new debate regarding the identity ofthe new musical author and the changes to the musical creative process.

As such changes have impacted the musical creative process, there are necessary changes required to adapt the …

For The Love Of The Game: Examining The Legality Of Unofficial Fan Video Game Remakes, Madeleine Higgs

Cardozo Arts & Entertainment Law Journal

The note explores the legal challenges faced by creators of fan remakes of delisted video games under the Digital Millennium Copyright Act (DMCA) and proposes potential solutions to address these issues. It argues that expanding exemptions for such works and adopting a statutory licensing regime could provide a legal framework that balances the rights of copyright holders with the creative interests of fan creators. The analysis emphasizes the need for reforms to prevent overly broad enforcement of copyright protections and to incentivize fair use considerations.

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 …

The Emerging Name, Image, And Likeness Industry And The Perils Of Appropriating "Entrepreneurial" Collegiate Athletes' And "Vengeful" Minors' Property Interests - Historical And Empirical Guidance From Courts' Rights Of Publicity, Misappropriation, And Breach Of Contract Decisions, Willy E. Rice

Faculty Articles

From the late-1880s to the early-2020s, universities and the collegiate sports industry exploited millions of "college kids" as well as their parent investors by preventing "entrepreneurial athletes" from monetizing their names, images, and likenesses (NILs). Yet, during the same era, the collegiate-athletics industry like the movie and music industries appropriated young people's NILs and pocketed billions of dollars. In 2021, the Supreme Court decided NCAA v. Alston and embraced the Ninth Circuit's ruling in O'Bannon v. NCAA. Ostensibly, these decisions and thirty plus state NIL statutes terminated the "official" exploitation of students. Currently, entrepreneurial students and some parents may commercialize …

Section 230 Reform, Liberalism, And Their Discontents, Mateusz Blaszczyk

Scholarly Works

The Section 230 debate is a proxy for reevaluating constitutional fundamentals. The modern right and the modern left, both attacking Section 230, have abandoned liberalism, together with free speech, public private divide, and the politics of neutrality. Instead of believing in First Amendment value pluralism, each side of the spectrum wishes to realize their own positive normative vision for the political community which, today, is largely defined in the realm of digital culture. Each side recognizes the political other as an enemy to their own utopia, wishing to control, censor, or simply become sovereign thereover. These existential politics of the …

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.

An Empirical Study Of The Dmca's Anti-Circumvention Provisions, Clark Asay

Faculty Scholarship

The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. …

Applying The Fair Use Doctrine In Music Copyright "Borrowing" Infringement Cases, Shea Bettwy

University of Richmond Law Review

Copyright fair use is a broad, statutory doctrine that permits fair use of any type of copyrighted work. But the fair use defense is virtually nonexistent in copyright infringement cases involving musical compositions, such as the famous “Blurred Lines” case. Defendants and courts neglect to consider it for reasons unknown. One might conjecture that this simply reflects a tacit understanding in the music industry that original music should be untouched. In fact, musical borrowing is a longstanding and accepted tradition, which makes copyright fair use particularly amenable to musical compositions. Disconcertingly, ignoring fair use of musical compositions in infringement cases …

The Patent Law Origins Of Science Fiction, Camilla Hrdy, Daniel H. Brean

Akron Law Faculty Publications

This Article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the Article shows that Hugo Gernsback—the so-called “father” of science fiction who started the first all-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress …

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 …

Statement Of Michael Doane Before The Committee On The Judiciary, Subcommittee On Courts, Intellectual Property And The Internet, Michael Doane

Akron Law Faculty Publications

Section 337 provides U.S, intellectual property rights owners unique and effective relief against infringing products imported into the United States. The USITC and the U.S. Court of Appeals for the Federal Circuit have already taken steps to limit the ability of patent trolls to use Section 337 through tightening the domestic industry requirement. Efforts to address purported abuse will ultimately negatively impact those that Section 337 was expressly amended to protect. Amendments to Section 337, therefore, are unnecessary.

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

Analysis Of Global Data Privacy Regulations And How Transnational Companies Are Impacted, Fujimori-Smith, Aska

Santa Clara High Technology Law Journal

Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, …

Relying On Unreliable Tech: Unchecked Police Use Of Algorithmic Technologies, Fraerman, Ali

Santa Clara High Technology Law Journal

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid …

In Event Of An (Ai) Emergency: Interpreting Continuity Of Government Provisions In State Constitutions, Frazier, Kevin T.

Santa Clara High Technology Law Journal

“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.

Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of …

Human Reproductive Cloning, Heritable Genome Editing, And The Future Of Novel Reproductive Technologies, Macintosh, Kerry Lynn

Santa Clara High Technology Law Journal

This Article compares human reproductive cloning (HRC) and heritable genome editing (HGE) to identify factors that encourage bans on novel reproductive technologies. HRC drew legislative opposition in part because it involved asexual reproduction and was incorrectly associated with copying. HGE and other technologies that involve sexual reproduction do not have those problematic qualities. HRC also became entangled with research in which human embryos were cloned to be harvested for their stem cells. HGE did not because scientists learned how to create and edit pluripotent stem cells without creating embryos. However, the legal history of HRC predicts that reproductive technologies strongly …

A Promise Without A Remedy: The Supposed Incompatibility Of The Gplv2 And Apache V2 Licenses, Chestek, Pamela S.

Santa Clara High Technology Law Journal

License “incompatibility” in free and open source software licensing means that, when two differently licensed pieces of software are combined, one cannot comply with both licenses at the same time. It is commonly accepted that the GNU General Public License version 2 is incompatible with the Apache License, version 2 because certain provisions of the Apache License would be considered “further restrictions” not permitted by the GPLv2. However, this article will explain why there is no legally cognizable claim for combining the two, either under a copyright infringement theory or a breach of contract theory.

Editing Classic Books: A Threat To The Public Domain?, Cathay Y. N. Smith

Faculty Law Review Articles

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works …

Insuring Judgements And The Disclosure Gap, Jonathan Stroud, Sam Korte

American University Law Review

Judgment preservation insurance (“JPI”) is a newer, under-the-radar financial innovation upending the litigation landscape today. By insuring plaintiffs' trial victories on appeal, these policies neutralize the risk of reversal, but have been criticized for preventing settlement and extending disputes. Despite JPI's growing use, a regulatory blind spot allows these policies to remain concealed from the courts throughout the appellate process. We spotlight JPI, contrast it with widely used litigation insurance products, and propose appellate disclosure requirements in line with existing insurance disclosure rules. These simple changes would close the disclosure gap on appeal.

Seed Patents: Enabling Innovation Beyond Biological Deposits, Ellaina Sanders

American University Law Review

In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court held that new sexually reproducing plant varieties are patentable subject matter. This allowed breeders and seed companies to protect their intellectual property in new seeds by obtaining utility patents so long as they meet the other statutory requirements, such as enablement. Unlike other intellectual property protection for new plant varieties, utility patents require the patent disclosure to include enough information that a person of ordinary skill in the art could make and use the invention without undue experimentation. In In re Wands, the Federal Circuit …

An Unauthorized Renaissance? An Analysis Of Artists’ Claims For Copyright Infringement Against Ai Generated Art And Possible Defenses, Victoria Young

FIU Law Review

AI currently presents a novel issue in terms of copyright infringement, specifically AI generated art. Recently, a group of artists filed a class action lawsuit against several AI generated art companies. This comment evaluates the potential avenues the court may take. The artists allege these AI generated art companies directly infringed on their copyrighted works by making unauthorized copies of copyrighted works which they used to train their machine learning programs. A determination on whether AI generated art constitutes copyright infringement has not been made by the courts before. To bring a successful copyright infringement claim, a party must show …

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 …

Content Moderation On End-To-End Encrypted Systems: A Legal Analysis, Charles Duan, James Grimmelmann

Scholarly Articles in Law Reviews & Journals

Online messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.

Computer science researchers have responded to …

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 …

Administration For Community Living (Acl) Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (January 2024)

Copyright, Fair Use, Scholarly Communication, etc.

ACL response to OSTP memo, 2022: Public Access Plan (January 2024)

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Faculty Editor's Forward, Jayanth K. Krishnan

Articles by Maurer Faculty

Forward for Issue #1 Volume 32 for the Indiana Journal of Global Legal Studies

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 …