Intellectual Property Law Commons^™

Property And Information, Jeanne L. Schroeder, David G. Carlson

Articles

The article proceeds as follows. As the information theory is a reaction to legal realism, Part I explores its antecedents in the work of Wesley Newcomb Hohfeld and Ronald H. Coase. Part II presents the information theory as arising from Professor Smith’s interpretation of the Coase theorem.11 In the imaginary world of TC0, we are supposedly indifferent to organizing by property and organizing by contract. Property eclipses contract as the organon of the economy because property reduces the cost of delineation and processing—of speaking and comprehending. We show that this theory is founded on a misunderstanding of Coase. Part III …

The Invisibility Of Tpms In Academic Libraries How Digital Content Protection Has Become Part And Parcel Of Platform Design, Anthony D. Rosborough, Katherine Silins

Articles, Book Chapters, & Popular Press

This article investigates a growing divide in how TPMs are understood and encountered across two domains: digital content access and software-dependent device controls. Through legal and qualitative empirical lenses, it reveals that TPMs guarding digital content access across Canadian academic institutions (particularly relating to e-books, journals, and streaming media) have become seamlessly embedded into platform design and licensing schemes. This facilitates their ubiquity and invisibility, while at the same time making them difficult to challenge from a law and policy reform perspective. It also makes content TPMs difficult to identify, measure, or challenge in furtherance of lawful exceptions and limitations …

What Copyright Can't Do, Blake Reid

Publications

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law's powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.

But …

Public Patent Powers, Laura E. Dolbow

Publications

Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This Article provides the first comprehensive survey of existing laws that expressly authorize agencies to control patents. I locate 113 express conditions across 68 laws that expressly authorize executive actors to make some form of decision about patents. These powers, which I refer to as “public patent powers,” allow the government to use patented inventions, to obtain patents, to authorize third parties to use patented inventions, and to regulate how patents are used. Agencies have used many …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Copyrighting Style, Christopher Buccafusco

Faculty Scholarship

Does copyright law protect an artist’s style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright law’s idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both.

This is unfortunate because, this Article argues, copyright law’s idea/expression distinction is inadequate to the task of determining the copyrightability of style. …

Molecular Diagnostic Patenting After Mayo V. Prometheus: An Empirical Analysis, Colleen V. Chien, Jenna Clark, Arti K. Rai

Faculty Scholarship

Since the United States Supreme Court's 2012 decision in Mayo v. Prometheus announced a new legal test for patent-eligible subject matter, policymakers, and scholars have vigorously debated the decision's impact on molecular diagnostics innovation. Molecular diagnostics serve as the cornerstone of personalized medicine and its promise of treatments with fewer side effects and better outcomes for patients. This article contributes to the presently thin evidence base on the impact of Mayo by using data on patent applications, examinations, and grants from 2010 to 2019 to comprehensively trace the effects of the test and subsequent related developments. Using descriptive data as …

Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Osenga

Law Faculty Publications

Amazon is magical. Search the online marketplace for pretty much anything you can imagine—not to mention all the things you never imagined; you will likely find what you were searching for and be able to have it delivered in two days or less. The magic is not just in Amazon’s vast array of innovative consumer products but also in its providing access to goods that are unavailable locally. An extreme example of Amazon’s ability to supply goods that were not locally available may be found in the pandemic lockdowns of 2020, when neighborhood stores were out of toilet paper and …

Patent Infringement In Time, John R. Thomas

Georgetown Law Faculty Publications and Other Works

No patent lasts forever. When intellectual property rights expire, a canonical principle states, all benefits of their ownership cease. But patents may cast a long shadow after they are gone, hindering the advent of immediate competition upon their expiration. The law acts unevenly in these circumstances, leading to questionable intellectual property and public health policies. Ordinarily competitors cannot make and use a patented invention until the patent's term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken "solely for uses reasonably related" to Food …

“Whoever Invents Or Discovers”: Artificial Intelligence And The Case For Joint Inventorship, Seth F. Littleford

BYU Law Review

Artificial intelligence (AI) is increasingly important in the modern world. Given its fidelity to—and, in some cases, its surpassing of—human performance, people rely upon AI in myriad settings. The AI era is already here, and the technological advancements to come are even more mind-boggling. The United States Patent and Trademark Office (USPTO) has seen a significant increase in patent applications claiming inventions pertaining to AI, but how does the patent system handle when AI invents?

The U.S. Court of Appeals for the Federal Circuit recently held in Thaler v. Vidal that the Patent Act requires inventors listed on patent applications …

All’S “Fair” In Love & Copyright: Copyright’S Incentivization Of Fiction Through The Second Fair Use Factor & Idea/Expression Dichotomy, Peyton J. Smetana

Catholic University Law Review

Copyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is …

Copyright And Research In Latin America: Law, Courts, And Perceptions, Mariana G. Valente, Alice P. Lana, André P. Houang

Joint PIJIP/TLS Research Paper Series

Research on the intersection of copyright law, research activities, and innovation in Latin America reveals significant deficiencies in the legal framework and public discourse surrounding copyright limitations and exceptions (L&Es) for research purposes. The problem is more visible with modern data assembling and analyzing techniques, such as through artificial intelligence (AI) systems. This study highlights the scarcity of explicit provisions for research-related exceptions in the region by examining copyright legislation, case law, and stakeholder perspectives in six Latin American countries. Despite indications that judicial interpretation is expanding the scope of L&Es, particularly in Brazil, awareness of legal nuances remains low …

Preventing The Importation And Sale Of Genuine Goods Bearing American-Owned Trademarks: Protecting An American Goodwill, Timothy H. Hiebert

Maine Law Review

A trademark's "primary and proper function," it has been said, "is to identify the origin or ownership of the article to which it is affixed." Thus, if a trademark indicates either the original producer or an exclusive distributor as the source of the goods on which it appears, it will be entitled to protection against infringement. Related to this source identification function are a trademark's quality assurance and advertising functions. Because the public comes to associate trademarked goods with a certain standard of quality, a trademark guarantees that the goods on which it appears will meet public expectations about quality. …

Use Of Public Research And Manufacturing Enterprises To Lower Prescription Drug Prices And Increase Innovation, Alex Moss, Dana Brown, S. Sean Tu

Law Faculty Scholarship

This article proposes building on the success of publicly funded drug research and development and expanding the model to include the full cycle development, testing, manufacture and distribution of innovative and affordable new drugs.

Triangulating The Likelihood Of Confusion: Linguistics And Consumer Surveys, Eric Derosia, Jesse Egbert, Thomas Lee

BYU Law Review

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, …

Going Generic: A Linguistics Approach To Genericide In Trademark Law, James A. Heilpern, William G. Eggington, Earl Kjar Brown, Zachary D. Smith

BYU Law Review

This Article examines the phenomenon of trademark genericide—the process by which once-protected brand names like “escalator” and “trampoline” lose their legal status by becoming synonymous with entire product categories. Traditional methods used by courts to assess genericide, such as consumer surveys and dictionary definitions, are often criticized for their subjectivity and lack of scientific rigor. In response, this Article introduces corpus linguistics as a more reliable, data-driven alternative for determining whether a trademark has become generic.

By analyzing real-world language usage through large corpora, corpus linguistics can track the public’s shifting perceptions of a trademark over time. Using case studies …

Disclose By Law, Obfuscate By Strategy: A Corpus-Based Analysis Of Patent Filings, Katherine Ireland, W. Michael Schuster, Tim R. Samples

BYU Law Review

The patent system encourages dissemination of technical information by granting inventors exclusive rights to their inventions in exchange for public disclosure of their technology. The American Inventors Protection Act (AIPA), enacted in 1999, advanced this goal by increasing the scope and speed of disclosure. Previously, filings were published only if and when a patent was granted, but under the AIPA most applications are published eighteen months after filing. The sum of those changes amplified a fundamental tradeoff between protection and exposure. Although patents offer protection, competitors can exploit disclosures by integrating the innovations into their own research and development efforts. …

Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan

Amicus Briefs & Court Filings

Amici are law professors and scholars who focus their scholarship and teaching on intellectual property law, property law, regulatory law, and health law.2 They write to address the plaintiff’s, Novo Nordisk Inc., et al. (Novo), overarching contention that the Medicare drug price negotiation program constitutes an unconstitutional price control. Amici submit this brief to provide the Court with the historical and legal background regarding the constitutionality of government price negotiations and price regulations. The amici explain how Courts have historically ruled on these questions, as well as the far-reaching consequences that a ruling in Novo’s favor would have on the …

A New Frontier: The Music Industry’S Struggle Against Generative Ai, Vaughn Gendron

University of Miami Business Law Review

Since the modern notion of artificial intelligence emerged in 2014, AI has rapidly developed into a technology with vast generative capabilities. This technology has allowed for the creation of copious amounts of AI-generated media content. One of the most impacted industries by this evolution is the music industry. In April of 2023, an unidentified user produced a viral AI-generated song titled “Heart on My Sleeve” in the vocal likeness of both Drake and The Weeknd. The song’s instant popularity among consumers shattered the music industry’s long-held belief that listeners would always prefer human creativity over artificial creation. This shift in …

Wear Your Heart On Your Sleeve, Whether You Like It Or Not: How Federal Regulation Can Address Advances In Biometric Technology, Greg Marcus

University of Miami Business Law Review

The use of biometric data for identification and authentication has become a common practice for people and businesses across the world. While these technologies offer a promising means of enhanced security, the emergence of artificial intelligence and machine learning has enabled the analysis of biometric data to reveal some of our most intimate personal information from simple physical characteristics. The rapid advancement of this technology has brought the issue of regulation to the forefront of discussions in both Congress and state legislatures. Accordingly, many states have proposed, and in several instances passed legislation specifically regulating the collection of biometric data. …

United States Department Of Defense Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

DOD response to OSTP memo, 2022: Public Access Plan (December 2024)

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Why Tennessee's Elvis Act Is The King Of Artificial Intelligence Protections, Sarah Luppen Fowler, John D. Fowler

Vanderbilt Journal of Entertainment & Technology Law

Artificial intelligence (Al) is evolving and advancing quickly. As Aladvances, itpresents novel legal issues for individuals and industries alike. For example, Al can now mimic the voices of famous musicians so well that it can be almost impossible for listeners to discern whether the vocals are from those musicians or generated with Al. Yet under the current legal framework, new works that mimic a famous artist's voice can be created and distributed by anyone without the consent of the musician and without any legal repercussions. Fortunately, lawmakers are proposing legislation to protect against the unauthorized use of another's voice, image, …

Artificial Authorship On The Big Screen: Regulating Ai In Scriptwriting, Cassie Larson

UC Law SF Communications and Entertainment Journal

While the rise of artificial intelligence (AI) offers exciting, new creative possibilities for the entertainment industry, it also threatens to replace or undercompensate the humans who have been at the backbone of the industry since its inception. AI’s increasing ability to generate human-quality content raises concerns about job displacement and copyright ownership for scriptwriters. While the recent Writers Guild of America (WGA) strike secured several protections, the unique and rapidly evolving nature of AI requires that further legal safeguards be created. This Note argues for additional regulations to ensure that AI remains a collaborative tool for scriptwriters and not a …

Toxic Minimalism On The “Yolo” Court: The Supreme Court’S Dangerous Muddle In First Amendment And Speech-Adjacent Law, Matthew D. Bunker, Emily Erickson

UC Law SF Communications and Entertainment Journal

No abstract provided.

United States Environmental Protection Agency Response To The Ofiice Of Science And Technology Policy Memo, 2022: Public Access Plan (December 2024)

Copyright, Fair Use, Scholarly Communication, etc.

EPA response to OSTP memo, 2022: Public Access Plan (December 2024)

Intellectual Property Liability For Businesses In The Age Of Ai: What New Liabilities Businesses Using Ai Could Face And The Possible Methods Of Self-Protection, Elizabeth Anne Henderson

Michigan Business & Entrepreneurial Law Review

The invention of Artificial Intelligence (“AI”) has triggered a wave of copyright and trademark litigation that will likely shape the intellectual property laws governing AI for the foreseeable future. Lawsuits against AI giants like Meta and OpenAI stand to declare popular uses of AI as actionable infringement as well as possibly reshape how copyright and trademark law view concepts, such as fair use and derivative works in the age of technology. Meanwhile, businesses are pushing forward rapidly with adopting AI and implementing its use in everyday functions. For many of these businesses, AI is a highly desirable but poorly understood …

Time For A Copyright Remix: Learning From Djs’ Problematic Pandemic Livestreams & Reimagining A More Productive Framework For Music On Social Media, Aaron Thompson

Chicago-Kent Law Review

No abstract provided.

Pack Your Bags…We’Re Moving To The Public Domain: The Expiration Of Copyright Terms And Its Implications On Future Protection, Sophie Ganion

UC Law SF Communications and Entertainment Journal

The following Note addresses the expiration of copyright terms for a multitude of creative works and the various implications of that expiration for their future IP protection. It explores the conflicting perspectives of stakeholders, from the excitement of artists and everyday creatives versus the concerns of industry leaders about the potential erosion of their copyright monopolies. Drawing from landmark cases like Baker v. Selden and Dastar Corporation v. Twentieth Century Fox Film Corp., this Note highlights the complex questions surrounding copyright expiration and the strategic use of trademark protection. The Note emphasizes the necessity for coherent legal frameworks to ensure …