Intellectual Property Law Commons^™

Breaking Up Melodic Monopolies: A New Approach To Originality, Substantial Similarity, And Fair Use For Melodies In Pop Music, Johannes Hoffman

Journal of Law and Policy

Progress in the arts—the fundamental goal of copyright law in the United States—requires a balance between granting creators exclusive rights over their works and allowing others the room to create new works. This is particularly crucial in pop music, where melodies are composed within narrow musical structures out of a limited set of notes. Recent verdicts, however, have shown that courts are becoming more willing to find copyright infringement based on relatively simple melodies in pop music, even where such melodies do not constitute the “hook” or most memorable part of the allegedly infringing work. This Note posits that, in …

The Promise Of Machine Learning For Patent Landscaping, Toole, Andrew A., Pairolero, Nicholas A., Forman, James Q., Giczy, Alexander V.

Santa Clara High Technology Law Journal

THE PROMISE OF MACHINE LEARNING FOR PATENT LANDSCAPING

When Laws Govern Laws: A Review Of The 2018 Discussions Of The Group Of Governmental Experts On The Implementation And Regulation Of Lethal Autonomous Weapons Systems, Mitchell, Caitlin

Santa Clara High Technology Law Journal

WHEN LAWS GOVERN LAWS: A REVIEW OF THE 2018 DISCUSSIONS OF THE GROUP OF GOVERNMENTAL EXPERTS ON THE IMPLEMENTATION AND REGULATION OF LETHAL AUTONOMOUS WEAPONS SYSTEMS

P2p Lending Can Increase Capital To Capitally Starved Indian Country, Craig Nichols

American Indian Law Journal

No abstract provided.

Of Monopolies And Monocultures: The Intersection Of Patents And National Security, Duan, Charles

Santa Clara High Technology Law Journal

OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURITY

Intellectual Property's First Sale Doctrine And The Policy Against Restraints On Alienation, Lorie M. Graham, Stephen M. Mcjohn

Texas A&M Law Review

The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

Youtube Is Unsafe For Children: Youtube's Safeguards And The Current Legal Framework Are Inadequate To Protect Children From Disturbing Content, Heather Wilson

Seattle Journal of Technology, Environmental, & Innovation Law

For America’s children, the amount of screen time they consume has not changed much over the years. Children under eight have steadily spent about two hours a day in front of a screen, with those under age two averaging 42 minutes a day. Children from low-income families spend roughly an hour and forty minutes longer in front of a screen. According to the American Academy of Pediatrics, screen time should be limited to two hours a day for children ages two to five; whereas, for those youngest children—under two years—they recommend zero screen time.

While the average amount of screen …

Response To White House Office Of Scientific And Technical Policy Request For Information: Public Access To Peer-Reviewed Scholarly Publications, Data And Code Resulting From Federally Funded Research, Paul Royster, Sue Ann Gardner

Copyright, Fair Use, Scholarly Communication, etc.

The current 12-month embargo period is widely disregarded. It is observed by PubMed Central (PMC), but the existence of preprint servers and academic social network sites (ResearchGate or Academia.edu) makes it possible for most authors to distribute peer-reviewed manuscripts at will. While enforcement of the embargo is lax or non-existent, its elimination would have a negative impact on publishers’ cooperation—pushing them to replace so-called “green” open access with author-pays models. The 12-month embargo allows PubMed Central time to prepare accurate and standardized versions of accepted author manuscripts. Requiring immediate access would not eliminate the PMC production time; there would still …

The Technical Standardization Ecosystem And Institutional Decision Making: The Case Of Intellectual Property Rights Policies, Justus Baron, Jorge L. Contreras, Martin Husovec, Pierre Larouche, Nikolaus Thumm

Utah Law Faculty Scholarship

In this paper, we analyze decision making on Intellectual Property Rights (IPR) policies in the standardization ecosystem. While a large literature has studied IPR policies of Standard Developing Organizations (SDOs), we contribute a more rigorous analysis of how these IPR policies are shaped by the interdependencies between SDOs and between SDOs and a variety of stakeholders. While SDO stakeholders often have opposing policy preferences, they are tied together by non-generic complementarities and a joint interest in the overall performance of the standardization system, which are constitutive characteristics of an ecosystem. The standardization ecosystem is characterized by widely shared institutional norms, …

Startups And Investors And Trolls, Oh My!: How Commercialization Patents Can Benefit Startup Innovation, Robert Chou

Northwestern Journal of Technology and Intellectual Property

Venture-backed startups play a crucial role in innovation and advancing our technology. However, the development of secondary markets for patents and the proliferation of patent assertion entities starting in the early twenty-first century has made the patent ecosystem a difficult environment for startups to navigate. Startups face challenges that their more established counterparts do not. First, startups must rely heavily on external sources of funding and, as a result, many decide to file for patents early in their lifecycle to signal their value to potential investors. Second, patent assertion entities threaten startups with patent infringement suits at a disproportionately high …

Is China Stealing Our Tech? A Look Into The Role Of Intellectual Property Rights In Us-China Trade Relations, Ryan Chester

Honors Scholar Theses

This thesis aims to further the current scholarship on Intellectual Property Rights (IPR) and their effects on international trade and the US-China trade relationship more specifically. The main analysis of this thesis is a quantitative cross-country analysis of over 100 countries to see how IPR plays a role in international trade, while analyzing how the Sino-US trade relationship fits into larger trends. This thesis aims to answer the questions as follows: What are the current policies surrounding Intellectual Property Rights between China and the US? Does increasing the strength of IPR laws influence imports? Does the strength of a country’s …

Of Monopolies And Monocultures: The Intersection Of Patents And National Security, Charles Duan

Scholarly Articles in Law Reviews & Journals

It was certainly an odd thing for the Department of Justice attorney arguing for the United States to appear before the Ninth Circuit to tell the appellate judges that a federal agency was wrong. This was what happened in a Federal Trade Commission enforcement action against Qualcomm Inc., a semiconductor technology company. As a substantial holder of patents on mobile communications technologies and also a leading manufacturer of chips used in that same industry, the FTC charged Qualcomm with anticompetitive conduct; the district court agreed and enjoined Qualcomm from certain patent licensing practices. It was that award of injunctive relief …

Calibrating Intellectual Property And Innovation In Newspace, Jesse L. Silvernail

Texas A&M Journal of Property Law

The commercial space industry is soon expected to explode into a trillion- dollar industry, but patent protection in NewSpace has been largely ignored by an industry that is driven by technological innovation and rapid develop- ment. There has been little disclosure of inventions as large commercial space companies rely on trade secrets that are almost impossible to independently invent or reverse engineer. The benefits of both invention disclosure and se- crecy are well known, but there has not been analysis on inventions in the space industry. This paper fills the gap in the literature by analyzing common intellectual property practices …

Digitizing Scent And Flavor: A Copyright Perspective, Amara Lopez

Michigan Technology Law Review

Should the flavor of a cheese fall under copyright protection? The Court of Justice of the European Union recently confronted this question in Levola Hengelo BV v. Smilde Foods. Although the court ultimately denied protection, its reasoning opened many doors for those seeking intellectual property protection for scents and flavors. The court implied that it was the subjective nature of a cheese flavor that bars it from enjoying the protection copyright affords, which begs the question of what would happen if there were a sufficiently objective way to describe a flavor.

Recent developments in technology have led to the digitization …

Pharmaceutical "Pay-For-Delay" Reexamined: A Dwindling Practice Or A Persistent Problem?, Laura Karas, Gerard F. Anderson, Robin Feldman

Articles

The Supreme Court ruled in FTC v. Actavis that a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value transfer to the generic company, termed a reverse payment patent settlement, or "pay-for-delay." Following Actavis, drug companies have limited the size of reverse payments and have fashioned settlement terms that include more discreet categories of compensation to generic companies. In light of the fact that such settlements retain the potential for anticompetitive effects, the apparent size of the reverse payment may no longer be a useful gauge of the …

The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley

Loyola of Los Angeles Law Review

Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …

Indonesian Perspective On The Investor–State Dispute Settlement Mechanism For Foreign Investment Dispute Settlement In The Field Of Intellectual Property Rights, Jessica Leonard, Prita Amalia, An An Chandrawulan

Indonesia Law Review

Investment includes tangible and intangible assets. Intangible assets are often connected with intellectual property which leads to intangible results. The lack of “visibility” in intangible assets makes them difficult to measure. Current international regulations have not also explicitly provided room for enforcement regarding intellectual property rights in terms of foreign investment. Therefore, an emergence of cases is observed in investment disputes within the field of intellectual property rights through the Investor–State Dispute Settlement (ISDS) mechanism. In this research, we discuss cases of foreign investment disputes in such a field. From these cases, we find the factors that determine the occurrence …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

Washington and Lee Law Review

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

Teaching Copyright Law Through Participatory Involvement In An Unconference Setting, Amanda Mccormick, Stephanie A. Adams, Hope A. Dunbar, Sarah Mclean-Plunkett

Law Librarian Journal Articles

An “unconference” is an attempt by librarians and other professionals to work outside of the traditional conference model. Presenters are encouraged to break out of traditional modes of presentation and try new methods of engaging with the participants. We submitted an idea for a session focused on demystifying domestic and international copyright law and discussing how the law affects libraries and archives. Modern librarianship demands at least a basic understanding of copyright and intellectual property issues, and librarians have reported that they lack training and knowledge in this area. We determined that we did not want to present a formal …

The Data Market: A Proposal To Control Data About You, David Shaw, Daniel W. Engels

SMU Data Science Review

The current legal and economic infrastructure facilitating data collection practices and data analysis has led to extreme over-collection of data and the overall loss of personal privacy. Data over-collection has led to a secondary market for consumer data that is invisible to the consumer and results in a person's data being distributed far beyond their knowledge or control. In this paper, we propose a Data Market framework and design for personal data management and privacy protection in which the individual controls and profits from the dissemination of their data. Our proposed Data Market uses a market-based approach utilizing blockchain distributed …

Guest Post Out Of The Blue The Federal Circuit Devises A New Rule For Color Mark, Christine Farley

Editorial Contributions

The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that “a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, therefore, can be inherently distinctive.” URL: https://patentlyo.com/patent/2020/04/federal-circuit-devises.html

A Tale Of Two Sales: How A Secret Sale Remains A Bar To Patentability Under The Aia, Kris Schroder

University of Cincinnati Law Review

No abstract provided.

How The Fusion Of Technology And The Law Will Serve As A Catalyst For Legal Evolution, Andrabi, Nayef

Santa Clara High Technology Law Journal

HOW THE FUSION OF TECHNOLOGY AND THE LAW WILL SERVE AS A CATALYST FOR LEGAL EVOLUTION

Public Performance? How Let's Plays And Livestreams May Be Escaping The Reach Of Traditional Copyright Law, Brianna K. Loder

Washington Journal of Law, Technology & Arts

Let’s Plays and livestreams are popular online videos of videogames being played. The Copyright Act protects videogames as audiovisual works, and therefore provides videogames with the exclusive right of public performance. The Supreme Court issued a ruling in ABC, Inc. v. Aereo, Inc. which clarified that performances in an online setting can be public even if the individuals receiving the content are doing so privately. However, the Court’s holding did not provide guidance on who is a performer, and therefore is liable for the infringing conduct, beyond the specific context by which Aereo transmitted content to its subscribers. Let’s Plays …

Ithaka S+R Us Library Survey 2019, Jennifer K. Frederick, Christine Wolff-Eisenberg, Ithaka S+R

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

The Ithaka S+R Library Survey 2019 examines strategy and leadership issues from the perspective of academic library deans and directors. This project aims to provide academic librarians and higher education leaders with information about chief librarians’ visions and the opportunities and challenges they face in leading their organizations. In fall 2019, we invited library deans and directors at not-for-profit four-year academic institutions across the United States to complete the survey, and we received 662 responses for a response rate of 46 percent. In this survey cycle, we added new coverage of three key topics: equity, diversity, and inclusion …

Risks Of Blockchain For Data Protection: A European Approach, Jiménez-Gómez, Briseida Sofia

Santa Clara High Technology Law Journal

RISKS OF BLOCKCHAIN FOR DATA PROTECTION: A EUROPEAN APPROACH

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

Michigan Law Review Online

In late 2019 and early 2020, a new strain of coronavirus, a family of pathogens causing serious respiratory illness, began infecting populations across the globe. A quick uptick in COVID-19, the disease caused by the novel pathogen, prompted the World Health Organization to declare the outbreak a Public Health Emergency of International Concern on January 30, 2020. By mid-February 2020, with 26 countries reporting cases of COVID-19 infection, the global case count had surpassed 50,000, and had resulted in over 1,500 deaths. The World Health Organization elevated the status of the outbreak to a pandemic in mid-March. As of early …

Research And Repair: Expanding Exceptions To Patent Infringement In Response To A Pandemic, Jorge L. Contreras

Utah Law Faculty Scholarship

The doctrinal areas on which this essay focuses are two longstanding but narrow exemptions from patent infringement: one that permits scientific research, and one that permits the owner of a patented device to repair it. Though distinct at first glance, both of these doctrines act to permit activity that would otherwise be considered patent infringement. They are exceptions to the exclusivity that the law grants to patent holders – particularly the right to “make” a patented article and, to a lesser degree, to “use” it, and for this reason they are particularly salient when patents may impact critical lifesaving technologies. …

From Adidas To Zenga: A Historical And Comparative Analysis Of International Intellectual Property Law In Fashion, Loren E. Mulraine

Law Faculty Scholarship

This article provides a historical and comparative analysis of international intellectual property law as applied to the fashion industry. Tracing the development of trademark law from its common law origins in unfair competition to its modern statutory embodiment in the Lanham Act, the article examines the central role of branding in fashion’s economic and cultural influence. It further analyzes the evolution of copyright protection and its uneasy fit within a design-driven industry historically characterized as manufacturing rather than creative production. The article situates U.S. intellectual property doctrine within the broader framework of international treaties and institutions, including the Paris Convention, …