Intellectual Property Law Commons^™

The Law And Ethics Of Ai Creativity, Haochen Sun

St. John's Law Review

(Excerpt)

This Article comprises three parts. In Part I, after demonstrating that creativity is a social process, I explore the ethical principles of originality, attribution, and authenticity of creative activities. In Part II, I scrutinize the opacity of AI systems in the collection, utilization, and generation of works, highlighting the need for a greater focus on the legal and social problems arising from these black box processes. Lastly, in Part III, I explore why the ethical principles of originality, attribution, and authenticity should govern AI creativity, and how they would lead to the adoption by AI companies of filtering and …

The Future Of Money: How The Digital Revolution Is Transforming Currencies And Finance, Sohini Banerjee Ms, Pratik Datta Mr

Indian Journal of Law and Technology

The book ‘The Future of Money: How the Digital Revolution is Transforming Currencies and Finance’, written by Eswar Prasad, and published in 2021 by the Belknap Press of Harvard University Press, is timely and thought-provoking. It provides a bird’s eye view of the noteworthy developments in finance in the past few decades, and predicts that we are on the verge of an even more dramatic transformation having significant economic, political, and social ramifications. For this reason, it is richly deserving of a review. This paper aims to critically analyse the same.

The Right To Receive Information: Conceptual Problems, Shrutanjaya Bhardwaj Mr

Indian Journal of Law and Technology

This article studies the “right to receive information” or the “right to know”, a judicially-recognised right under Article 19(1)(a) of the Constitution. It attempts to show, through an analysis of judgments of the Supreme Court and High Courts, that the right rests on a shaky philosophical foundation and that there are inconsistencies in how the right is judicially treated in terms of its structure and content.

First, the article questions the logic that the “right to know” is implicit in Article 19(1)(a) merely because it makes the exercise of free speech more meaningful. Such a logic was authoritatively rejected by …

Antitrust Concerns Vis-A-Vis Disruptive Innovation – Takeaways For Competition Commission Of India, Sudhanshu Kumar Dr, Garima Gupta Ms

Indian Journal of Law and Technology

In the era of innovation, market dynamics have evolved demanding a more nuanced analysis of market competition. Innovation in digital economy does promise new products and services but it can be an amiable reality only if it is directed towards ensuring consumer welfare and a free markets space for players. Since digital markets attract innovators and disruptors, it is important for antitrust regulators to differentiate between efforts directed towards value-creation and ones aimed at destroying or impeding the same. This paper aims at theorizing around the idea of ‘disruptive innovation’ and its implications for competition policy for India. The paper …

Continuing Discrimination In The Times Of Technology: Women, Work, Algorithms And Law In India, Sejal Chandak Ms

Indian Journal of Law and Technology

Human societies are discriminatory. So, it has been an unrelenting effort to eliminate what divides us. While there have been leapfrog developments in this regard, we need to consider newer challenges now that technology is taking over public and private spaces. The author, in this article, discusses gender-based algorithmic discrimination in workplaces and argues that there is an urgent need to enforce laws for regulating algorithmic discrimination. India is in a precarious position. It has been consistently faring poorly when it comes to the gender gap in work. It lacks a comprehensive and codified anti-discriminatory law; and lacks laws to …

Conceptualising India’S Safe Harbour In The Era Of Platform Governance, Vasudev Devadasan Mr.

Indian Journal of Law and Technology

The push for greater regulation of online platforms has led to calls to re-evaluate the statutory immunities granted to online intermediaries for hosting unlawful third-party content (i.e., safe harbour). This paper argues that greater accountability for online platforms need not interfere with existing (and indeed strengthened) safe harbour protections. However, to achieve this outcome, legislators must recognise the difference in enforcement approaches between secondary liability and platform governance regimes. This paper argues the types of obligations that can be imposed as pre-conditions to safe harbour are different from those that can be imposed as direct statutory obligations. This is because …

The Navajo Nation And The Colorado River: Their Current Statuses And The Tribe's Path Forward, Colton Gregg

American Indian Law Journal

No abstract provided.

The Compact Clause And Cyberwar, Josie Laing

Washington Journal of Law, Technology & Arts

This article seeks to bring attention to the potential modern utility of Article 1, Section 10, Clause 3: the Compact Clause. This section of the Constitution has historically been archived. However, given cyberspace’s ever-growing prominence, the Compact Clause should be reconsidered as cyber warfare presents a novel opportunity for states to exercise their sovereign rights.

Section 10 restricts states’ powers to engage with foreign entities. Without the consent of Congress, states cannot enter into agreements with foreign powers or engage in war. These restrictions on states were necessary when the Constitution was drafted. To navigate foreign affairs nimbly, the United …

The Paradoxical Solution To Enforce Resale Royalties And Keep The Nft Market Decentralized, Katelyn Holcomb

Washington Journal of Law, Technology & Arts

This article examines the role of resale royalties in maintaining decentralization in the NFT ecosystem and supporting financial sustainability for artists. Although resale royalties, also known as creator royalties, are widely valued by NFT artists, they have been frequently undermined by the centralized policies of large NFT marketplaces. These include zero-royalty policies that are driven by the competitive pressure to gain market share, where platforms allow buyers and sellers to bypass creator royalties. This behavior has led to a destructive race to the bottom and the overall erosion of resale royalties. To address this problem in the NFT market, this …

Carano V. Disney: The First Amendment Right Of Expressive Association As A Defense To Firing Employees For Their Political Speech, Joel Timmer

Washington Journal of Law, Technology & Arts

Following a series of controversial social media posts by actress Gina Carano, a cast member of the Disney+ Star Wars series, The Mandalorian, Disney terminated her employment on the show and announced that Carano would not appear in any future Star Wars projects. According to Disney, Carano was terminated because the views expressed in her posts did not align with the company’s values. Carano filed suit against Disney, claiming Disney violated California state labor laws that generally prohibit employers from sanctioning employees for their political activities. In response, Disney claims that the First Amendment right of expressive association provides …

Accelerating Biosimilar Market Access: The Case For Allowing Earlier Standing, S. Sean Tu, Rachel Goode, Matthew Turner, Victor Van De Wiele

Law Faculty Scholarship

Biosimilars, which are affordable alternatives to biologic medicines, face delays in market entry due to the current patent litigation framework under the Biologic Price Competition and Innovation Act. Currently, biosimilar manufacturers can only initiate patent litigation to attempt to clear weak and invalid patents after submitting their Biologic License Application to the Food and Drug Administration (FDA), which happens after completing extensive, and costly clinical trials. By contrast, generic drug manufacturers can start litigation earlier due to shorter development times and less stringent clinical requirements, allowing them to launch immediately after the primary patent expires. We propose allowing biosimilars to …

Human Liability In Semi-Autonomous Vehicles, Omri Rachum-Twaig, Gadi Perl

Fordham Intellectual Property, Media and Entertainment Law Journal

The promise of fully autonomous vehicles has faced repeated delays, with widespread availability now projected to be limited to specific routes or geographic areas in the near future. Instead, conditional or semi-autonomous systems (SAE Level 3) are being introduced, where the vehicle can drive autonomously under limited conditions but still requires a human driver to take control when necessary. This paper examines the regulatory and liability challenges posed by these semi-autonomous vehicles. Existing laws have gaps in addressing the ambiguous responsibility of the human driver in the shared control environment of Level 3 autonomy. Factors like fatigue, lack of …

“Fly Me To The Moon . . . & Back”: The Intricate Interplay Between Copyright Law And Space Law, Marco Franzoso

Fordham Intellectual Property, Media and Entertainment Law Journal

This research focuses on the intricate interplay between two branches of law: copyright and space law. Through various scenarios, some real and some hypothetical, it underlines the inefficacy of the terrestrial copyright principle, namely the lex loci protection, when applied to outer space endeavors. In outer space, the law where the infringement arises is useful only when the jurisdiction is clear, which is on board of registered space objects; however, that is not even the case for all space objects. On board poli-jurisdictional entities, such as the ISS, the lex loci protectionis fails to provide a clear legal framework, at …

Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

This is a response to Jessica Silbey’s article, A Matter of Facts: The Evolution of the Copyright Fact-exclusion and Its Implications for Disinformation and Democracy, which appeared in Volume 70(3) of the Journal of the Copyright Society.

Redefining Intellectual Property Protection: Nfl Plays In The Digital Age, Michael Touma

Washington Law Review Online

American copyright law is fluid. Its changes have mirrored evolutions in society, be they technological, cultural, or economic. At its core, copyright law exists to promote the progress of the arts and sciences; yet, the law’s outdated nature leaves many creations on the outside looking in. The last substantial copyright legislation to pass through Congress was the Copyright Act of 1976, which was nearly fifty years ago. Much has changed since, including vast technological improvements, new and emerging interests in American society, and now global economic drivers. One industry that meets these characteristics and is not currently afforded protection is …

Registry Systems As Gatekeepers: How Patent Registries Create Systemic Barriers To Innovation, Miriam Marcowitz-Bitton, Ori Sharon

Fordham Intellectual Property, Media and Entertainment Law Journal

Picture an inventor. Anyone at all. We bet you imagined a man, is that right? If you did, that’s not surprising—our study of over 140,000 patent applications reveals that three out of four patents name all-male inventors, and only three percent of patents represent the inventions of women-only teams. But this massive gender gap is not just about who chooses to invent—it’s about who gets to protect their innovations through the patent system.

This Article presents groundbreaking evidence that women face systemic barriers in securing patents, even when they clear the hurdles to become inventors. Drawing on an unprecedented dataset …

Table Of Contents & Introductory Material

UIC Review of Intellectual Property Law

No abstract provided.

The Great War (Taylor's Version): Examining The New Era Of Recording Artists & Master Recording Ownership, Victoria B. Villanueva

Journal of Legislation

In 2019, Taylor Swift took to social media to voice her unease with the recent sale of her entire master recording catalogue to Ithaca Holdings, a sale that allegedly occurred without her explicit permission. Following a series of negotiations, holdouts, and ultimate deadlock, Swift made the critical and costly decision to re-record and re-release each of those six albums under her sole ownership in an effort to reclaim them as her own work—re-recordings publicly denoted by “Taylor’s Version”. This highly-publicized feud brought to the public’s attention a decades-long conflict between the recording artist and the recording company, one that has …

"Reasonable [Cybersecurity] Measures" For Digital Trade Secrets: Lessons From Marketing, Raj Sachdev

Law Faculty Scholarship

The loss of digital trade secrets in marketing and beyond, often the source of competitive advantage, can have disastrous impacts on brands and companies. Bad actors want to get their digital hands on digital trade secrets, and other actors and factors may also cause a risk to their secrecy. The Defend Trade Secrets Act (DTSA) makes clear that “reasonable measures” must be taken to maintain the secrecy of a trade secret. Likewise, the Uniform Trade Secrets Act (UTSA) requires “reasonable steps.” However, in a digital age, the definition of what is “reasonable” is even more unclear than in offline settings. …

Stopping The Spread Of The World's Oldest Hatred - What U.S. Sports Stakeholders Can Do To Combat Antisemitism, Mark Conrad

Fordham Intellectual Property, Media and Entertainment Law Journal

The consistent rise in reported acts of antisemitism in the United States over the last decade has prompted debate about strategies to combat this age-old menace. The Hamas attack on Israel and the subsequent Israeli military response in Gaza has exacerbated this trend. Many have debated ways to confront the issue, including informing the public about the magnitude of the problem and finding policies to reduce incidents of antisemitism. The sports industry could help in this quest. Because millions of people follow professional, college, high school, and Olympic sports, organizations and individual athletes could participate in activities designed …

Ai In The Courtroom: The Boundaries Of Robolawyers And Robojudges, Hadar Y. Jabotinsky, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial intelligence (AI) is rapidly developing and undoubtedly impacting every aspect of our lives. From lethal drones, to Apple’s Siri, and improved cancer diagnostics, AI algorithms are also increasingly integrated into decision-making. This article illuminates the impact of AI on the legal system and profession.

Currently, AI legal tools support lawyers’ and judges’ work and can assist in tasks such as due diligence, legal analysis, classification of documents by Technology-Assisted Review (TAR), providing legal advice, and engaging in predicting legal judgments. AI can even assist judges in decision making for risk assessments during sentencing. The …

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Decency And Responsibility: Preserving Egyptian Tally Cloth Cultural Heritage And Protecting The Intellectual Property Of Egyptian Artisans., Noha Fawzy Ph.D, Marwa Zein Ph.D, Ahmed Elseragy Ph.D, Catherine Harper Ph.D

Arts and Design

Tally is an exquisite Egyptian netting fabric, cotton or linen with nickel silver, copper or brass strip embroidery, a powerful symbol of Egypt's opulent textile and artisanal culture. Traditionally handmade, it originated in Upper Egypt’s Asyut region where ancient Egyptian makers pioneered embellishment of translucent cloth with metallic threads. Its iconography - geometric flora, fauna, humans and camels – in black, white or ecru. With beautiful drape and fluidity, it is a highly valued part of Egypt’s rich cultural heritage.

Preserving Tally and protecting the intellectual property rights of its artisans is urgent to ensure sustainable livelihoods, safeguard this unique …

Fixing Double Patenting, Mark A. Lemley, Lisa Ouellette

American University Law Review

The U.S. patent doctrine of "double patenting" allows an inventor to obtain many patents on obvious variants of the same invention as long as they file a "terminal disclaimer" agreeing that all of these patents will expire simultaneously. Two recent limitations on double patenting practice have led

to vigorous protest from the patent bar. First, the Federal Circuit held in In re Cellect that patents tied by double patenting must expire on the same day, even if one of the patents has received a patent term adjustment giving it a more-than-twenty-year term. Second, the USPTO proposed a rule (since withdrawn) …

Time Is Money And Anticompetitive: The Luxury Watch Industry's Weaponization Of Intellectual Property Against The Right To Repair, Isha Jadhav

American University Business Law Review

Since 2010, the Federal Trade Commission (FTC), Department of Justice (DOJ), legislators, and activists have jointly worked together to implement consumer rights in repairing personal property on both a state and federal level in the United States. These efforts have largely targeted the automobile and technology industries; these sectors have been known to “tie” their goods to authorized repair services, limiting consumer choice on where, how, and when to repair their goods. However, this issue is not limited to the automobile and technology industries, as luxury watches have gained newfound popularity, creating right to repair issues within the industry.

Despite …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Scènes À Faire: Cliché As Legislative Fact, Sarah Louise Bishop

Connecticut Law Review

In the last ten years, federal courts have quietly begun to apply copyright’s scènes à faire doctrine to dismiss infringement claims before party discovery has occurred. This move theoretically should not be possible, because applying the doctrine requires evidence of the conventions and tropes of the artistic genres at issue—something unlikely to be reflected in the parties’ pleadings.

This Article identifies this trend and explores the workarounds district courts use to achieve these dismissals without a factual record before them. The most common methods courts use are inconsistent with both the Federal Rules of Civil Procedure and Evidence and risk …

Patent Textualism, David O. Taylor

Faculty Journal Articles and Book Chapters

The Supreme Court today embraces textualism—the practice of interpreting legal text by reference to how an ordinary person would have understood that text at the time it was promulgated. Yet, when it comes to patent cases at the Court interpreting the statutory provision governing patent eligibility, textualism has rarely been used as an interpretive tool. This Article, besides highlighting this contradiction, will consider how textualism’s application to this foundational aspect of the patent statute would change patent law.

This Article will analyze the Supreme Court’s adoption of textualist principles in other fields and then evaluates the application of textualism to …

Copyright's Dominion, Shani Shisha

Faculty Journal Articles and Book Chapters

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the …