Intellectual Property Law Commons^™

A Logical Proof That The Common Good, Not Economics, Underlies Copyright, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Copyright experts endlessly debate its purpose: economic or common good. Both sides cite to judicial language backing their interpretations, and the frequency and cost of litigation between those representing the two interests have noticeably increased over recent years.

This article aims at a simpler way to resolve the dispute, by taking a step back and starting with the definition of a government. The government of a democratic republic, particularly one described as “of the people, by the people, and for the people,” has a single purpose: to address the common concerns of its people.

The following philosophical argument is a …

The Server Test Quandary And Embedding Permission Culture, Michael P. Goodyear

Oklahoma Law Review

No abstract provided.

Prospecting, Sharecropping, And The Recording Industry, Olufunmilayo B. Arewa, Matt Stahl

Vanderbilt Journal of Entertainment & Technology Law

Digital-era disruption has had a significant impact on the recording industry and the business of music more generally. Digital-era music disruption draws attention to patterns of continuity within the recording industry. Notably, despite widespread use of digital technologies for the creation, dissemination, and consumption of music, core recording industry business models largely still draw from the predigital era. Recording industry business models have long been compared to other exploitative business models based on debt, including the sharecropping business. Business models in the recording industry have been a source of dispute by a broad range of recording artists, including highly successful …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel E. Sachs, W. Nicholson Price Ii

Faculty Scholarship

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Brief Of Intellectual Property Law Professors And Scholars As Amici Curiae In Support Of The Respondents, Bernard Chao, Kevin Emerson Collins, Christopher A. Cotropia, Charles Duan, Oskar Liivak, Joseph Scott Miller, Arti K. Rai, Michael S. Sinha, S. Sean Tu, Liza Vertinsky

Faculty Scholarship

This amicus brief was written in support of Sanofi (generic pharmaceutical firm). The brief explains why patent claims cannot exceed the scope of what was disclosed in the patent specification. The brief argues that when a patentee invents narrowly, meaning they find and disclose only a limited set of solutions and where they cannot provide a generalizable principle that unites a broader set of solutions, then that inventor has not invented broadly. Accordingly, their claims should be limited to what was explicitly disclosed.

The ‘Hijacking’ Of The Scandinavian Journal Of Information Systems: Implications For The Information Systems Community [Opinion], Sune Dueholm Müller, Johan Ivar Sæbø

Copyright, Fair Use, Scholarly Communication, etc.

Journal hijacking, which refers to the attempted brand takeover of a journal by a third party, is a nascent threat confronting the information systems (IS) community, as evidenced by cybercriminals having established an online presence, masquerading as the Scandinavian Journal of Information Systems (SJIS). The SJIS hijacking damages the journal's reputation, leads to payment and publication scams, involves identity theft among unsuspecting IS researchers, and results in tarnished author reputations. Beyond SJIS, journal hijacking presents a threat, not only to the IS community, but also to science and academic integrity in general if researchers and readers cannot distinguish between fake …

United States Framework For Federal Scientific Integrity Policy And Practice

Copyright, Fair Use, Scholarly Communication, etc.

United States Framework for Federal Scientific Integrity Policy and Practice

Indigenous Peoples' Rights In Data: A Contribution Toward Indigenous Research Sovereignty, Maui Hudson, Stephanie Russo Carroll, Jane Anderson, Darrah Blackwater, Felina M. Cordova-Marks, Jewel Cummins, Dominique David-Chavez, Adam Fernandez, Ibrahim Garba, Danielle Hiraldo, Mary Beth Jäger, Lydia Jennings, Andrew Martinez, Rogena Sterling, Jennifer D. Walker, Robyn K. Rowe

Copyright, Fair Use, Scholarly Communication, etc.

Indigenous Peoples' right to sovereignty forms the foundation for advocacy and actions toward greater Indigenous self-determination and control across a range of domains that impact Indigenous Peoples' communities and cultures. Declarations for sovereignty are rising throughout Indigenous communities and across diverse fields, including Network Sovereignty, Food Sovereignty, Energy Sovereignty, and Data Sovereignty. Indigenous Research Sovereignty draws in the sovereignty discourse of these initiatives to consider their applications to the broader research ecosystem. Our exploration of Indigenous Research Sovereignty, or Indigenous self-determination in the context of research activities, has been focused on the relationship between Indigenous Data Sovereignty and efforts to …

Scholarly Communication Librarianship And Open Knowledge, Maria Bonn, Josh Bolick, Will Cross

Copyright, Fair Use, Scholarly Communication, etc.

Covers the parameters and dimesions of scholarly communication in the context of open scholarship.

Contents

Preface: Access is praxis, Christopher Hollister and Micah Vandegrift

Foreword: Scholcomm is rad, Maria Bonn, Josh Bolick, and Will Cross

Part I: What is scholarly communication?

Basics and Definitions: Scholcomm is…, Josh Bolick with Maria Bonn and Will Cross

The economic context: Scholcomm is money, Maria Bonn with Will Cross and Josh Bolick

The technological context: Scholcomm is format, Will Cross with Josh Bolick and Maria Bonn

The social context: Scholcomm is people, Josh Bolick with Maria Bonn and Will Cross

The legal and policy …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Keeping It Real: Property Analogies For Graffiti Infringement, Shelby Pickar-Dennis

University of Colorado Law Review

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 …

Rethinking Patent Law's Exclusive Appellate Jurisdiction, Christa Laser

Cleveland State Law Review

The United States Court of Appeals for the Federal Circuit was created in 1982 to unify and clarify patent law, inter alia. It was built from political compromise after the Hruska Commission, which studied the caseload crisis in the federal appellate courts in the 1970s, initially recommended creation of a new National Court of Appeals that would exist between the regional federal appellate circuits and the Supreme Court. The Federal Circuit judges admirably implemented these functions for four decades.

However, the initial function of the Federal Circuit might no longer be as needed in the current judicial climate. The environment …

Keynote At The Cleveland State University College Of Law Ip+ Conference, Kathleen O'Malley

Cleveland State Law Review

Thank you for your kind introduction, Lee. Thank you too for your mentorship, support, and friendship over the years. I would not be where I am today but for having you in my life. And I want to thank both you and Professor Laser for inviting me to join you today—and for providing a soap box to champion the importance of a robust intellectual property system.

Where In The World: Protecting Indigenous Textiles In Guatemala Through Geographical Indications, Lucie Couillard Sosa

Brooklyn Journal of International Law

There is a current movement by indigenous weavers in Guatemala to protect their textile designs due to the harm caused by the absence of the weavers’ intellectual property ownership over the designs and patterns. The exploitation and appropriation of their designs by domestic and international companies has hurt weavers’ livelihoods and has led to culturally inappropriate and insensitive uses of religious and traditional patterns. Conventional intellectual property law (copyright, trademark, and patent law) fails to protect indigenous peoples’ intellectual property rights. A key weakness within conventional intellectual property law is the emphasis and focus on individuality of the creation process. …

Reforming Copyright Or Toward Another Science? – A Morehuman Rights-Oriented Approach Under The Rebspa Inconstructing A “Right To Research” For Scholarly Publishing, Klaus D. Beiter

Brooklyn Journal of International Law

This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA), as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

Journal Articles

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Frequently Asked Questions: 2022 Public Access Policy Guidance, White House Office Of Science And Technology Policy

Copyright, Fair Use, Scholarly Communication, etc.

Includes a list of frequently asked questions and answers for the 2022 White House Office of Science and Technology Policy (OSTP) Public Access Policy guidance, including answering questions such as "What is meant by public access to federally funded research?" and "What impact will the policy guidance have on specific business models for scholarly publishing?"

Comparative Intellectual Property Protection For Marijuana: United States Vs. The European Union, Jillian Gosser

Global Business Law Review

Protecting intellectual property relating to marijuana is a complicated endeavor. The federal ban on marijuana renders trademark protection difficult at best, and patent protection, while available, still rife with complications. In Europe, the laws pose similar challenges in the protection and enforcement of marijuana related intellectual property. This Note presents a comparative law analysis of the various ways marijuana related intellectual property may be protected in the United States and Europe. Different types of intellectual property protection explored include utility patents, design patents, trademarks, plant patents, Plant Variety Protection Act coverage, and Community Plant Variety Act coverage. This Note explores …

From Patients To Patents: The Disappearing I Of Innovation, Maggi Robert

St. Mary's Law Journal

The creation of the Mayo/Alice two-step test for patent eligible subject matter flipped the patent world upside down. Following its establishment, invalidation rates soared—particularly in the healthcare sector—impacting patients everywhere. The importance of patents in healthcare innovation and innovation generally has been emphasized as the consequences of this framework are realized.

The United States is no longer seen as a clear leader in innovation, and as a result, the economy is at risk. Start-ups and investors have turned to foreign nations where return on their investments in innovation are protected. This level of uncertainty regarding patents has never been seen …

Legal Reform To Enhance Global Text And Data Mining Research, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Text and data mining (TDM) research involves the process of collecting vast amounts of digitized material and using software to analyze and extract information from such information. TDM is a crucial first step to addressing some of the world’s greatest scientific and societal challenges. But, as we show in this article, a patchwork of copyright laws across jurisdictions limits where and how TDM research can occur. We discuss how the World Intellectual Property Organization and legislatures around the world can promote harmonization of copyright exceptions for various research uses. Addressing research uses, including for TDM, in copyright reform can help …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

Measuring The Inventor's Contribution

The University of New Hampshire Law Review

All inventors should be compensated for the value of their contributions. Inventors contribute both to the patent system and to the technology commercialization process by providing access to a qualifying disclosure describing a qualifying idea. Yet today, a schism divides the patent world and the commercial world over the value of these inventive contributions. Unlike the commercial world, the patent world pays inventors for the contributions of noninventor technology commercialization roles. In particular, seminal reasonable royalty cases like Georgia-Pacific and TWM Manufacturing allow patentees to recover infringer profits and proxies thereof—in violation of congressional mandate and the Supreme Court’s opinion …

Legal Reform To Enhance Global Text And Data Mining Research: Outdated Copyright Laws Around The World Hinder Research, Sean M. Fiil-Flynn, Brandon Butler, Michael Carroll, Or Cohen-Sasson, Carys Craig, Lucie Guibault, Peter Jaszi, Bernd Justin Jütte, Ariel Katz, João Pedro Quintais, Thomas Margoni, Allan Rocha De Souza, Matthew Sag, Rachael Samberg, Luca Schirru, Martin Senftleben, Ofer Tur-Sinai, Jorge L. Contreras

Articles & Book Chapters

No abstract provided.

How Sample Clearance Has Affected Hip-Hop Music-Making, Bryan J. Brewster

Capstone Projects and Master's Theses

This paper will explain how sample clearance has impacted hip-hop music-making. It will explain what a sample is and show the historical significance of sampling in hip-hop. I will briefly discuss the basics of copyright and the process of clearing a sample. This paper will also look into legal cases of copyright infringement to show the impact of specific cases and analyze data to determine if the amount of sample clearance has changed because of the decisions of the courts. The main goal of this paper is to highlight the significance of sampling in hip-hop, the inherent challenges of legally …

“That Little Girl Was Me”: Kamala Harris And The Civil Whites Of 1964 And Beyond, Maureen Johnson

Cardozo Law Review

No abstract provided.

Navigating A Multi-Billion Dollar Industry: Protecting Drug-Related Inventions To Further Research And Development, Minal Patel

Brooklyn Journal of Corporate, Financial & Commercial Law

Even with advancements in science and technology, pharmaceuticals continue to find themselves tethered to patent protection guidelines that once ensured revenue would continue to flow and provide funding for the next blockbuster drug or antibodies. However, as the Federal Circuit appears to inch towards unpredictability in the realm of patent validity, challenges involving patenting are imminent. In fact, gaps are forming in the ability of pharmaceuticals to further research and develop drugs. This Note proposes a solution that encapsulates a more precise standard supported by economic and policy rationales to determine patent validity. It begins with the general requirements of …

Retrospective And Prospective Study Of The Evolution Of Apc Costs And Electronic Subscriptions For French Institutions, Antoine Blanchard, Diane Thierry, Maurits Van Der Graaf

Copyright, Fair Use, Scholarly Communication, etc.

French Résultats principaux

Coûts 2020

• Dépenses d'abonnement aux périodiques électroniques en 2020: 87,5 M€
• Coûts des APC en 2020: 30,1 M€

Coûts prédits sous l'hypothèse d'une évolution à l'identique des tendances observées:

• Dépenses d'abonnement aux périodiques électroniques en 2030: 97,5 M€
• Coûts des APC en 2030: 50,6 M€

Coûts prédits dans un scenario d'accélération vers le gold OA:

• Coûts des APC en 2030: 68,7 M€

Coûts prédits dans un scenario de hausse du libre accès green et transition du libre accès hybride vers gold:

• Coûts des APC en 2030: 38,5 M€

Coûts prédits pour 90% d'articles d'auteurs correspondants affiliés en …

Copyright And Federalism: Why State Waiver Of Sovereign Immunity Is The Best Remedy For State Copyright Infringement, Leroy J. Ellis V

Northwestern Journal of Technology and Intellectual Property

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission.

However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay …