Intellectual Property Law Commons^™

Paradigms For Foreign Tech-Platforms Regulation: U.S. Options After The Tiktok Saga, Zhining Zhang

Washington Journal of Law, Technology & Arts

The heated discussion stirred up by the U.S. regulatory actions against TikTok continues to this day. The nearly predatory popularity of this Chinese application has raised people’s awareness that the country is in urgent need of a fully developed policy in order to deal with the surge of robust foreign digital platforms.

This article gives the contour of the latest development of theories regarding the foreign tech-platforms regulation. Three contemporary frameworks are reviewed. The first laissez faire paradigm inherits the values of early neoliberalism to prevent a “Splinternet,” but its inaction fails to deal with novel security threats ranging from …

The Takings Clause Does Not Prevent The United States From Supporting A Patent Waiver At The Wto But Prevents Domestic Implementation Of The Waiver, Xiang Li

Washington Journal of Law, Technology & Arts

The Biden Administration announced its support for the initiative at the World Trade Organization (WTO) to suspend patent rights protections for COVID-19 vaccines, in the hope of providing equitable and affordable access to the vaccines to low-income countries. Since then, domestic pharmaceutical companies have been voicing vociferous opposition, claiming that “[e]liminating IP protections undermines our global response to the pandemic and compromises safety.”2 Passing a patent waiver at the WTO means eligible member countries can opt to free themselves from the obligations to enforce qualifying patents, and anyone within those countries can accordingly practice the patents without infringement liability. It …

Trump Really Is Too Small: The Right To Trademark Political Commentary, Samuel F. Ernst

Brooklyn Law Review

Can you register a famous person’s name as your trademark? The Lanham Act seems to say no, and the PTO interprets this to mean, no, never, no matter what. The Federal Circuit says, “yes, you can,” at least as applied to marks containing political commentary. 15 U.S.C. § 1052(c) provides, in pertinent part, that the PTO must deny federal registration to a trademark if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent….” Earlier this year the Federal Circuit declared this law unconstitutional in violation of the First Amendment, …

Goodwill, Signification, And Settling The Debate Regarding Naked Assignments And Licenses, Tony Bortolin

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Security Researchers Battle Against The Dmca, Andre Sardaryzadeh

Chicago-Kent Journal of Intellectual Property

In the digital age, cybersecurity plays a principal role in resolving consumer concerns regarding data breaches. Nevertheless, United States copyright laws prohibit the effective use of cybersecurity tools that disrupt malicious hackers from gaining access to personal (and sensitive) information. One law, in specific, that is detrimental to the defense against malicious attackers is the Digital Millennium Copyright Act (“DMCA”). Specifically, section 1201 of the DMCA prohibits the circumvention of copyrighted information. Malicious hackers have various tools and techniques to obtain unauthorized access to personal information via software vulnerabilities. Importantly, these vulnerabilities often result in the theft of consumers’ personal …

United States Census Bureau Statistical Quality Standards

Copyright, Fair Use, Scholarly Communication, etc.

United States Census Bureau Statistical Quality Standards (April 19, 2023), the leading source of quality data about the nation's people and economy.

Do Automated Legal Threats Reduce Freedom Of Expression Online? Results From A Natural Experiment, J. Nathan Matias, Merry Ember Mou, Jonathon W. Penney, Maximilian Klein, Lucas Wright

All Papers

Automated law enforcement systems support privately-operated enforcement bots to take legal action in hundreds of millions of cases a year. In the area of copyright, legal scholars have hypothesized the existence of “chilling effects” that harm public discourse by influencing people to self-censor protected speech. We test this hypothesis in a large-scale quasi-experiment with 9,818 accounts on Twitter that made 5,171,111 tweets. In a confirmatory interrupted time-series analysis, we find evidence that people reduce how much they post online after receiving a take-down notice from a copyright enforcement bot. On average, accounts sent fewer tweets after enforcement (p<0.001). Accounts also changed from a daily increase in public tweets to a decline on average (p<0.001). We also report on novel software that conducts third-party monitoring of the behavioral outcomes of automated law-enforcement systems. Since automated law enforcement can influence public discourse, third-party monitoring like this report will be essential to governing the power of enforcement algorithms in society.

Defeating The Economic Theory Of Copyright: How The Natural Right To Seek Knowledge Is The Only Theory Able To Explain The Entirety Of Copyright’S Balance, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

The practice of copyright was once a perfect balance, reflecting the intent of the Founders to create an environment where new works were constantly made available to the public for consumption and use. The author would create a work, a user would buy a copy and be free to use it. Neither party had any right to interfere with the other’s activities. All of that changed with newer technologies, exposing the flaws both in our laws and the applications of them.

Copyright laws, on their face, prohibit many normal uses of copyrighted works by end users, such as making mixed …

Fair Use Self Defense, Ryland Johnson

All Things Open

Fair Use Self Defense is a meta-workshop that will help you will learn about the application of fair use in an educational setting and will also contextualize the delivery of this information for librarians. We will discuss the basics of fair use and share some fun exercises to help present the fundamentals of copyright law in a fresh way. This presentation aims to open conversation about how copyright best practices are effectively communicated to students and teachers.

Pdf Killed The Copier Star: Modernizing The Access To Sources Of Proof Factor In A 28 U.S.C. § 1404(A) Transfer Analysis, Kyle L. Dockendorf

Texas A&M Journal of Property Law

With digital solutions to document storage, non-physical sources of evidence will become increasingly relevant for different types of legal actions. For patent proceedings, where evidence is often electronic, the need for a clearly defined approach to analyzing physical and electronic evidence has appeared within the first private factor of a 28 U.S.C. § 1404(a) transfer analysis. The evidentiary factor evaluating non-witness evidence—the access to sources of proof factor or first private factor—was interpreted by the Fifth Circuit when faced with weighing electronic evidence in favor, or against, potential transfer venues. Fifth Circuit precedent—relied upon in other circuit court opinions and …

Raising The Threshold For Trademark Infringement To Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

Scholarly Articles in Law Reviews & Journals

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …

Free Expression In Private Stadia: The Public-Private Nexus And The Reclamation Of Free Expression In Sport, Michael K. Park

UC Law SF Communications and Entertainment Journal

This Article examines how the degree of government and military entwinement with the private enterprise of sport may provide a sufficient nexus for state action, arming athletes with First Amendment protection they would otherwise not possess against private entities. It reviews sport’s historical and cultural ties to militarism and its venerated symbols before exploring the applicability of the theories of state action within the context of private stadia. Anchored by the symbiotic relationship theory, this Article analyzes how the interdependent relationship between the government/military and private sport enterprise may provide the mutual benefits necessary to establish a sports franchise as …

Border Search Rationales Ripe For Abuse, With Journalists Particularly At Risk, Bryan Sykes

UC Law SF Communications and Entertainment Journal

No abstract provided.

Confused About Copyright?, Sara Anne Hook

Graduate Scholarship and Professional Work

No abstract provided.

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Gonzalez V. Google: Testing The Boundaries Of Section 230, Ohona Chowdhury

UC Law SF Communications and Entertainment Journal

No abstract provided.

Transitional Justice, Truth, And Copyright: The Case Of Colombia, Marcela Palacio Puerta

Joint PIJIP/TLS Research Paper Series

The impact of copyright on various aspects of human life is becoming increasingly evident. This paper explores, for the first time in the literature, the relationship between copyright and the search for peace, with a focus on the transitional justice process in Colombia. Through a documentary research methodology, the study highlights the challenges posed by copyright laws that lack certainty in the application of exceptions and limitations to the digital world. Such challenges can difficulty a process that is inherently complex and holds great significance. Moreover, these laws also affect access to information, which is crucial in a context where …

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Pathogen Genomes As Global Public Goods (And Why They Should Not Be Patented), Jorge L. Contreras

Utah Law Faculty Scholarship

During past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. …

Third Joint Academic Opinion On The South African Copyright Amendment Bill [B13d-2017], Sanya Samtani, Klaus Beiter, Sean Flynn, Caroline B. Ncube, Chijioke Okorie, Desmond Oriakhogba, Andrew Rens, Tobias Schonwetter

Joint PIJIP/TLS Research Paper Series

South Africa is in the process of reforming its copyright law, attempting to update and align it with constitutional rights and existing and prospective international treaty obligations. A coalition of copyright, human rights, and constitutional law experts have been engaging in the ongoing national and provincial public participation processes. This working paper chronicles the law reform process until April 2023, covering related constitutional court litigation, and then goes on to set out the submissions made on behalf of the group of experts. The process offers insights into the different but crucial roles played by the legislature and the judiciary in …

The Replication Crisis And Ip Law: A Novel Policy Tool For Open Science, Or Cohen Sasson, Ofer Tur‐Sinai

Articles

In recent years, the scientific community has faced a considerable problem the replication crisis. Replication is the process of verifying scientific findings by repeating a published study. It is considered a cornerstone of the scientific enterprise, contributing to the credibility of research findings. Over the past two decades, however, replication has become increasingly difficult; in fact, in some disciplines the non-replicability rate is over 50%. A major factor accounting for this is diminished access to research materials required for replication (replication materials). This problem is particularly acute in computational studies, where the code, software documentation, datasets, and other information are …

"Communities That Care": Incorporating Socially Engaged Artistic Practices Into Clinical Legal Education, Bernard P. Perlmutter, Xavier Cortada

Articles

This Article, co-authored by a law school clinician and an artist and lawyer, explores collaborations between the artist, a child advocacy clinic, and its clients (children in state foster care) in building a community that empowers clients by giving them voice through both traditional legal advocacy and non-traditional forms of socially engaged artistic expression. The Article aims to address some of the challenges and benefits of clinics creating alliances with artists and community-based arts organizations as part of their teaching and advocacy missions. We describe and provide examples of the practice of law as a creative exercise and argue that …

Curiosities Of Standing In Trade Secret Law, Charles T. Graves

Northwestern Journal of Technology and Intellectual Property

Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those …

The Power Of Local: Nearby Innovators Dominate Patented Technology Development, Richard Gruner

Northwestern Journal of Technology and Intellectual Property

Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

Jury-Related Errors In Copyright, Zahr K. Said

Indiana Law Journal

Copyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing. Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the …

United States Geological Survey Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (April 2023)

Copyright, Fair Use, Scholarly Communication, etc.

USGS response to OSTP memo, 2022: Public Access Plan (April 2023)