Intellectual Property Law Commons^™

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

How The Supreme Court Ghosted The Phosita: Amgen And Legal Constructs In Patent Law, Timothy R. Holbrook, Mark D. Janis

Articles by Maurer Faculty

This Essay is an invited response to The Ghost in the Patent System: An Empirical Study of Patent Law’s Elusive “Skilled Artisan,” by Professors Laura Pedraza-Fariña and Ryan Whalen. In their piece, Pedraza-Fariña and Ryan Whalen offer an empirical study and use it to argue for a new conception of the Person Having Ordinary Skill in the Art (“PHOSITA”), patent law’s nod to the “reasonable person” construct.

As Professors Pedraza-Fariña and Whalen suggest, the PHOSITA should be understood as a crucial concept in patent law, warranting more scholarly attention. Pedraza-Fariña and Whalen provide that attention. They assert, based on an …

Ea Sports: It’S In The Federal Legislation, Gia Silahian

UC Law SF Communications and Entertainment Journal

No abstract provided.

Data Insecurity Law, Stein, David

Santa Clara High Technology Law Journal

By broad consensus, data security laws have failed to stem a rising tide of data breaches. Lawmakers and commentators blame these failures on some combination of underenforcement and the laws failure to recognize the full range of data breach harms. Proposed solutions would augment or expand existing data security laws.

These proposed solutions share a fatal flaw: they are rooted in traditional theories of deterrence by punishment. Data security laws come in three forms: duties to protect data, duties to notify consumers after a breach, and post-breach remedies. Almost every data security law is enforced through sanctions, most of which …

Legal Literacies For Text Data Mining – Cross-Border (“Lltdm-X”): White Paper, Rachael G. Samberg, Timothy Vollmer, Thomas Padilla

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Legal Literacies For Text Data Mining – Cross-Border (“Lltdm-X”): Case Study, Rachael Samberg, Timothy Vollmer, Thomas Padilla

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Trademarks In An Algorithmic World, Christine Farley

Scholarly Articles in Law Reviews & Journals

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 …

Digital Purgatory And The Rights Of The Dead: Protecting Against Digital Disinterment In The Age Of Artificial Intelligence, Greyson Cohen

Cardozo Law Review de•novo

This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media.

Part I will explain how synthetic media may contribute to an increase in the harms associated with rights of publicity violations, particularly after death. Part II will begin by outlining the legal landscape of …

Intellectual Property Piracy In The Time Of The Metaverse, James M. Cooper

Faculty Scholarship

The article explores ways in which companies, innovators, artists, and cultural workers can best protect their IP rights in the metaverse. Focusing on IP piracy and counterfeiting, long-time problems in both the real world and online, the article addresses the threats that these illicit activities pose to legitimate commerce, government tax revenues, public safety, and national security. It examines the implications that the metaverse poses for businesses going forward with respect to brand management and revenue source protection and details the manners in which IP rights can be best protected in the metaverse. It concludes with a review of the …

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

American University International Law Review

The ease of travel in the globalized, modern world is a doubleedged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

Who Owns Data? Understanding The Rights & Duties Of Platform Stakeholders, James Steiner

Michigan Business & Entrepreneurial Law Review

While mindlessly scrolling Facebook, Instagram, or TikTok, users often forget that a complicated web of personal data ownership lies under the screen. This Note analyzes the legal interactions of users, platforms, and third-parties regarding this personal data. Hohfeldian analysis of rights and reciprocal duties in the context of California’s various data privacy statutes and common law doctrines provides a powerful tool for understanding the rocky legal landscape data stakeholders navigate. Courts add further definition to this landscape when adjudicating conflicts between these stakeholders. Legal scholars have also proposed frameworks to simplify the rules of engagement for these stakeholders. Data privacy …

The Digital Millennium Copyright Act – In Need Of A Major Software Update, Sabrina Ortega

Michigan Business & Entrepreneurial Law Review

The Digital Millennium Copyright Act (DMCA) unfairly discriminates against copyright holders by allowing online service providers to employ inadequate and outdated takedown protocols of copyright infringement. These protocols promote piracy resulting in illegal advertisement revenue streams. Congress must reform the DMCA to ensure online service providers are held properly accountable when copyright infringement occurs on their platforms. Specifically, the DMCA’s existing takedown protocols should be reformed to ensure online service providers cannot benefit from issues associated with advertisements attached to posts containing infringing material. This Note examines the pertinent sections of the DMCA; relevant caselaw concerning the DMCA, online service …

Protecting Producers’ Copyrights: A Proposal For Group Registration Of Non-Sample-Based Musical Beats, Matthew Roomberg

Fordham Intellectual Property, Media and Entertainment Law Journal

“Beats” are the instrumental tracks that form the foundation of hip-hop, pop, and EDM songs. The authors who create them, often called producers or beatmakers, make hundreds or thousands of new distinct beats each year to raise their chance of attaining commercial success. But wholesale pirating of original beats has become rampant, and authors face significant obstacles in the search for remedies. One such obstacle is the great difficulty and expense of registering the copyrights associated with hundreds or thousands of original beats.

Registration with the U.S. Copyright Office is a critical step to obtaining most of the remedies available …

Are Chatgpt And Other Similar Systems The Modern Lernaean Hydras Of Ai?, Dimitrios Ioannidis, Esq., Dr. Jeremy Kepner, Dr. Andrew Bowne, Lt. Col., Usaf, Harriet S. Bryant

Fordham Intellectual Property, Media and Entertainment Law Journal

The rise of Generative Artificial Intelligence systems (“AI systems”) has created unprecedented social engagement. AI code generation systems provide responses (output) to questions or requests by accessing the vast library of open-source code created by developers over the past few decades. However, they do so by allegedly stealing the open-source code stored in virtual libraries, known as repositories. This Article focuses on how this happens and whether there is a solution that protects innovation and avoids years of litigation. We also touch upon the array of issues raised by the relationship between AI and copyright. Looking ahead, we propose the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Seattle University Law Review

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

How Firms Turn Middle Managers Into Diversity Leaders, Alexandra Kalev, Frank Dobbin

Seattle University Law Review

In 2007, the Conference Board published a piece calling middle managers “the biggest roadblock to diversity and inclusion” for standing in the way of change efforts. Today, many chief diversity officers report that they have failed both to diversify middle management and to get middle managers involved in promoting inclusion. We explore popular diversity programs that create “paper” or “symbolic” principles for achieving diversity (diversity policy statements and guidelines for hiring, promotion, and discharge), as well as programs that engage middle managers in promoting diversity (special recruitment and mentoring programs, and diversity task forces). “Paper” policies often fall flat, but …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …

Court’S Choice Of Law Ruling Undermines Washington Community Property Law: A Critique Of Shanghai Commercial Bank V. Chang, Brian D. Hulse

Seattle University Law Review

This Article deals with the issues that arise when Washington courts face the following scenario. One spouse enters into a contract without the joinder (and perhaps without the knowledge) of the other spouse. Both spouses are domiciled in Washington. The contract has contacts with one or more jurisdictions other than Washington and is generally governed as to validity and interpretation by the law of another jurisdiction. The contracting spouse defaults and the other party to the contract obtains a judgment on the contract. The court confronts a question about the property to which the plaintiff will have recourse to collect …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

“What’S Past Is Prologue”: The Story Of The Sale Of The University Of Puget Sound School Of Law To Seattle University, Annette E. Clark

Seattle University Law Review

When the Seattle University Law Review editorial staff invited me to write an updated history of the Seattle University School of Law in honor of our 50th anniversary, I planned to start the narrative with the year 1989, which was where the prior written history (authored by former Law Library Director Anita Steele and published by the Law Review) had left off. It also happens to be the year when I graduated from this law school and joined the tenure-track faculty, so 1989 seemed like a propitious place to begin. However, as I began to do the research necessary to …

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Blood On The Tracks, Thomas D. Russell

Seattle University Law Review

Streetcars were the greatest American tortfeasors of the early twentieth century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This Article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner …

The Fashion Workers Act: Closing The Regulatory Loophole In The New York Fashion Industry, Kayleigh Ristuben

Fordham Intellectual Property, Media and Entertainment Law Journal

The fashion industry in New York has largely been unregulated due to a loophole in current law. This has allowed fashion models to face difficulties that would otherwise be addressed by laws regulating other occupations within the entertainment industry. The New York state senate has introduced the Fashion Workers Act which is aimed at addressing these issues and closing the regulatory loophole. This Note analyzes the existing regulatory framework in both New York and California to compare them with the proposed bill. It then uses legislative history from past regulatory attempts to anticipate and address potential industry pushback while offering …

Know-How, Jorge L. Contreras

Utah Law Faculty Scholarship

While know-how licenses around the world often define know-how as encompassing both secret and non-secret information, the TTBER exemption only covers know-how while it remains secret, irrespective of how it may be defined in the underlying agreement. This seeming discrepancy appears to exist because the term ‘know-how’ functions in the TTBER as a stand-in for the term ‘trade secret’, a form of IP that was not generally recognized under this name in the EU until the adoption in 2016 of the European Trade Secrecy Directive, No. 2016/943. As a result, licenses of non-secret know-how under Article 101 do not appear …

Ransomware Groups On Notice: U.S. Cyber Operation Against Revil Is Permissible Under International Law, Justin Singh

American University International Law Review

The continued increase in the use of ransomware by cyber criminals has had a costly impact on businesses and organizations around the world. Ransomware groups continue to initiate attacks on businesses and organizations, and states have become increasingly concerned over the potential impact it may have on their critical infrastructure and economies. The United States’ recent acknowledgement of cyber operations against ransomware groups highlights the seriousness of the issue and exposes areas of international law that are complicated when applied to cyber operations against these groups. This Comment explores the relevant international law as it applies to the United States …