Intellectual Property Law Commons^™

New Problem, Same Old Ecpa: Facebook, Inc. V. State Of New Jersey And The Electronic Communications Privacy Act’S Growing Inadequacy, Austin Fauni

UC Law SF Communications and Entertainment Journal

No abstract provided.

One Step Forward Or Two Steps Back For The Music Industry: Analyzing The Statutory And Practical Issues In Title I Of The Music Modernization Act, Gabriel Ross

UC Law SF Communications and Entertainment Journal

No abstract provided.

Adopting A Solution To Copyright’S Orphan Works Problem, Kylie Arman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Lighting The Fuses: The Third Circuit Loads A Volley Against Interface Copyright Ability In Pyrotechnics V. Xfx, Ryan Graham

Villanova Law Review (1956 - )

No abstract provided.

Trademarks In An Algorithmic World, Christine Haight Farley

Washington Law Review

According to the sole normative foundation for trademark protection—“search costs” theory—trademarks transmit useful information to consumers, enabling an efficient marketplace. The marketplace, however, is in the midst of a fundamental change. Increasingly, retail is virtual, marketing is data-driven, and purchasing decisions are automated by AI. Predictive analytics are changing how consumers shop. Search costs theory no longer accurately describes the function of trademarks in this marketplace. Consumers now have numerous digital alternatives to trademarks that more efficiently provide them with increasingly accurate product information. Just as store shelves are disappearing from consumers’ retail experience, so are trademarks disappearing from their …

United States Social Security Administration Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2023)

Copyright, Fair Use, Scholarly Communication, etc.

SSA response to OSTP memo, 2022: Public Access Plan (December 2023)

In Satan We Trust: The Satanic Temple’S Ongoing Crusade To Protect Abortion Rights, Bradley Koberg

Cardozo Law Review

In the summer of 2022, the Supreme Court overruled the nearly fifty-year-old precedent of Roe v. Wade, eliminating the constitutional right to an abortion. This was one of several decisions in which the newly minted conservative supermajority undermined what could be seen as progressive precedents. At the same time, the Court has been elevating religious liberty claims and strengthening legal protections for religious individuals and organizations (predominantly Christian). For anybody who cares about the “so-called separation of . . . church and state,” this conservative Christian reformation taking place in the nation’s highest court is a cause for concern.

However, …

Tech Supremacy: The New Arms Race Between China And The United States, Xuan-Thao Nguyen

Articles

In the brewing tech war between the United States and China, the quest for tech supremacy is in full force. Through enacting a series of laws and policies, China aims to reach its goal of tech supremacy. If China succeeds, U.S. corporations will face a daunting task in competing against Chinese products and services in core industries and in sectors where artificial intelligence and technological breakthroughs reign. This Article is the first to identify and analyze China’s 2022 Law on Science and Technology Progress, Personal Information Protection Law, Made in China 2025, National Intellectual Property Strategies, and digital currency e-CNY; …

Distinguishing The Fair Use And Fair Dealing Doctrines In Copyright Law—Much Ado About Nothing?, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

It is often assumed and taken for granted that there is a gulf separating the fair use and fair dealing doctrines in copyright law arising principally from the ‘open v closed’ distinction that is made of the statutory schemes in the respective fair use and fair dealing jurisdictions.It will be argued in this article, after a comparative and comprehensive study of the case law and of the various (overlapping) fairness factors, that this distinction merely reflects a difference as to legislative form, rather than the substance of the fairness analysis that may ultimately bear on the outcome of a fairness …

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …

No Bullying Allowed Here: Adopting A Misuse Doctrine To Defeat Trademark Bullies, Jessica Shechtman

Cardozo Law Review

In order to maintain trademark rights, trademark owners are encouraged to enforce and police their trademarks through civil actions. Enforcing trademark rights is encouraged and incentivized by the Lanham Act because failure to do so may result in harsh consequences for trademark owners. Some of these consequences include weakening of strength or abandonment of the mark, which may result in loss of trademark rights. However, large companies go above and beyond to police and protect their trademarks. At times, this overenforcement is unethical and crosses a fine line between following the law and abusing the law, causing a number of …

Defragging Feminist Cyberlaw, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now.

In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values …

Fairness And Fair Use In Generative Ai, Matthew Sag

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian

Journal Articles

Analogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale …

Copyright, Data Mining And Developing Models For South African Natural Language Processing, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

This paper sets out the issues of copyright ownership and risk of copyright infringement liability raised by data science research use of data held by public bodies (in particular, public service broadcasters) in South Africa. Considering both the fair dealing exception in South Africa’s Copyright Act of 1978 and the proposed fair use provision in its Copyright Amendment Bill B13F-2017, the paper discusses these issues elaborating on the reasons why data science researchers in public research institutions should not require a copyright licence or be considered to be infringing copyright when they use copyright-protected materials held by public bodies for …

Copyright For Graduate Works: Do I Need Permission To Use This?, Stephanie Wiegand

Bear GRADS

When writing a graduate work, you may come across other excellent works that elevate your own work – a diagram explaining a process, a survey instrument for collecting data, an artwork that illustrates a concept, a piece of sheet music for analysis, and more. How can you ethically and legally incorporate these works into your research and writing? This session will discuss the basics of using portions of copyrighted works in your graduate work and provide real-life examples.

Intellectual Property And “The Lost Year” Of Covid-19 Deaths, Madhavi Sunder, Haochen Sun

Georgetown Law Faculty Publications and Other Works

Protecting intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. However, most of the benefits of this life-saving technology went to high- and upper-middle-income countries. Despite 10 billion vaccines being produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to an insufficient supply of vaccines and inequitable access during …

Ai And The Issue Of Human-Centricity In Copyright Law, Arul George Scaria

Popular Media

This article urges Indian policymakers and courts to be cautious in extending existing IP protections to work generated by Artificial Intelligence. Reflecting on the concept of human-centricity in copyright law, it draws upon a recent US District Court judgement in Stephen Thaler v. Shira Perlmutter, which deals with the question of whether a work autonomously generated by AI should be copyrightable. It goes on to examine the Indian copyright regime in light of changing attitudes to AI regulation across the world.

Taming The Wild West: The Time Is Near For Congress To Intervene In Name, Image, And Likeness Deals For Collegiate Athletes, Bradley Kilborn Kilborn

Belmont Law Review

This note proposes a multifaceted approach for congressional intervention in the NIL market. While there are many areas needing NIL regulation in the collegiate athletic market, the most critical area of need for NIL regulation involves the collectives and directives. These entities have formed and operated without any meaningful guardrails since the NCAA permitted student-athletes to be compensated for their NIL. Additionally, they have been able to influence recruiting both at the high school recruit level and in the collegiate athlete transfer portal.

Securing Patent Law, Charles Duan

Belmont Law Review

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

The Conclusions Of Sccr 44, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Last week, the World Intellectual Property Organization’s Standing Committee on Copyright and related Rights (SCCR) held its 44th meeting where substantial progress was made in protecting public interest issues within the two major standing items of the agenda -- on the Broadcast Treaty and on Limitations and Exceptions. This document summarizes the decisions made at the meeting as recorded in the Chair’s Summary.

Excerpts Of Sccr 44 Delegate Statements, Sean Flynn, Andres Izquierdo

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) held its 44th meeting November 6-8, 2023. This post includes excerpts from the public statements made by country or regional delegations during the meeting.

Navigating Risk In Vendor Data Privacy Practices: An Analysis Of Elsevier's Sciencedirect, Becky Yoose, Nick Shockey

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

As libraries transitioned from buying materials to licensing content, serious threats to privacy followed. This change shifted more control over library user data (and whether it is collected or kept at all) from the local library to third-party vendors, including personal data about what people search for and what they read. This transition has further reinforced the move by some of the largest academic publishers to move beyond content and become data analytics businesses that provide platforms of tools used throughout the research lifecycle that can collect user data at each stage. These companies have an increasing incentive …

Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani

Faculty Scholarship

How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of follow-on scientific publications describing patented genes do not constitute patent infringement. Supplementing our empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure …

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Report To The U. S. Congress On Financing Mechanisms For Open Access Publishing Of Federally Funded Research, White House Office Of Science And Technology Policy

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary The White House Office of Science and Technology Policy (OSTP) submits this report to the Appropriations Committees of the Senate and the House in fulfillment of the requirement in the Committee Report accompanying the Consolidated Appropriations Act, 2023 (P.L. 117-328) for financing mechanisms for open access publishing of federally funded research.1 According to that Report, “The Committee recognizes the considerable progress made by OSTP” and “encourages OSTP to continue its efforts to coordinate the implementation of public access policies across Federal departments and agencies and to identify additional opportunities to enhance access to the results of Federally funded …

The Constitutional Court Of Colombia Imposes Limits On The Use Of Internet Jammers During Social Protests, Carolina Botero, Lina Paola Velásquez

Joint PIJIP/TLS Research Paper Series

The Constitutional Court of Colombia has issued an important ruling regarding the use of the Internet as the main tool to guarantee the fundamental rights to freedom of speech and access to information during social protests. This ruling marks an important precedent in the matter because it imposed new obligations on the State and the government to guarantee the "maximum level of information". Likewise, the Court ordered the regulation of the use of signal jammers during social protests. This article will analyze the ruling and its effects in Colombia.

Historic Tensions Involving International Intellectual Property Protection Of Medical Technology With Disastrous Public Health Consequences, Srividhya Ragavan, Swaraj Paul Barooah

Faculty Scholarship

Historic tensions have pervaded the alliance of intellectual property's ill-fated accord with trade. The intersections of the alliance have impacted access to medical technologies resulting in plaguing public health with disastrous consequences in select parts of the globe, the first of which was perhaps most notably seen during the HIV-AIDS crisis at the turn of the century. At this time, WTO’s sacrosanct norms from the accord between trade and intellectual property rights essentially force African countries to choose between international trade sanctions, and saving thousands of lives by allowing exceptions to patent rights. While much has been written about global …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …