Intellectual Property Law Commons^™

Conquering Copyright: Why Copyright Needs To Be Modernized Based On Practical Illustrations Of Inconsistent Copyright Precedent, Saipranay Vellala

Akron Law Review

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may …

Parallel Play: The Simultaneous Professional Responsibility Campaigns Against Unethical Ip Practitioners By The United States And China, Mark A. Cohen

Akron Law Review

“Parallel Play: The Simultaneous Professional Responsibility Campaigns Against IP Practitioners by the United States and China” describes efforts by the United States Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many of these bad faith filings have originated from China. In both countries, these bad faith activities have imposed significant burdens on IP agencies, the courts, and legitimate rights holders. The campaign is likely the largest professional responsibility campaign undertaken by an IP agency, and the largest cross-border IP disciplinary …

Under Nifty Light: Trademark Considerations For The New Digital World, Willajeanne F. Mclean

Akron Law Review

Three cases involving non-fungible tokens are grabbing the attention of fashionistas, intellectual property mavens, and metaverse cognoscenti alike. All three are cases of first impression, despite involving trademark infringement claims. All are considered to be cases that will determine whether old trademark principles apply to new technology, and each has compelling and competing arguments that may militate against findings of infringement. While most commentators have focused on the questions surrounding alleged infringement, very few have discussed the challenges of applying remedies, such as injunctions, traditionally used in trademark infringement cases.

This article considers trademark law and examines it in a …

Visualizing Copyright Law: Lessons From Conceptual Artists, Sandra M. Aistars

Akron Law Review

Copyright law does not require an object to be “art” to be protectable, except in one respect: copyright protection does not extend to useful articles. As a result, courts engage in analysis strikingly similar to that of conceptual artists visualizing art. Copyright law has an uneasy relationship with conceptual art because the Copyright Act also requires works to be original and fixed in a tangible medium. Requirements that have led some to conclude that the kind of art where “the idea or concept is the most important aspect of the work” should not be protectable by copyright.

This article examines …

Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon

Akron Law Review

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …

What You Don’T Know Will Hurt You: Fighting The Privacy Paradox By Designing For Privacy And Enforcing Protective Technology, Perla Khattar

Washington Journal of Law, Technology & Arts

The persistence of the privacy paradox is proof that current industry regulation is insufficient to protect consumer’s privacy. Although consumer choice is essential, we argue that it should not be the main pillar of modern data privacy legislation. This article argues that legislation should aim to protect consumer’s personal data in the first place, while also giving internet users the choice to opt-in to the processing of their information. Ideally, privacy by design principles would be mandated by law, making privacy an essential component of the architecture of every tech-product and service.

Consensus’S Consolidation Conundrum, James J. Bernstein

Washington Journal of Law, Technology & Arts

In Part I, this piece will highlight the history, basis, and justifications for blockchain systems over the present version of the internet. This section helps to frame where consensus mechanisms may undermine Web3’s core premise. Part II will describe the fundamentals of consensus mechanisms. Thereafter, in Part III this piece will demonstrate the pitfalls of each system - and why proof of stake is not necessarily better at fighting off some of the risks associated with consensus mechanisms. Finally, in Part IV this article offers an architectural solution: introducing a series of new protocols which would increase the cost of …

“Tiktok Told Me I Have Adhd”: Regulatory Outlook For The Telehealth Revolution, Kaitlin Campanini

Washington Journal of Law, Technology & Arts

Telehealth’s expansion during the COVID-19 pandemic has drastically changed the approach to healthcare in the United States. This is particularly true in the behavioral health sector where several behavioral telehealth companies have emerged to treat Attention-Deficit/Hyperactivity Disorder (“ADHD”). These companies utilize a direct-to-consumer (“DTC”) model with a virtual platform that connects subscribing patients to medical providers who can treat them for ADHD. Although this telemedicine model emphasizes convenience and efficiency, the reality is that those benefits come at the cost of patient care. The federal regulations promulgated in the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 to curtail …

Genetic Technologies: Patent Protections & The Case For Technology Transfer, Smitha Gundavajhala

Washington Journal of Law, Technology & Arts

Genetic technologies range in scope from agricultural to medical applications. Most recently, during the COVID-19 pandemic, companies like Moderna developed and patented genetic technologies for diagnostic and therapeutic purposes, like the mRNA vaccine. However, patent protection provides these companies with a monopoly that ultimately limits domestic production of generic versions, thus limiting access to life-saving diagnostics and therapeutics. When a company located in one country files a patent for recognition in another country, it effectively places a hold on production of any technologies covered by that patent’s reach, whether that patent is enforced or not. However, the TRIPS Agreement, the …

Cardozo Aelj Author Interview Series: Scott Semaya, Class Of 2023, Online Editor

AELJ Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Scott Semaya discusses his Note, Name, Image and Likeness: Giving College Athletes the Clearest Guidance to Best Profit off Their NIL, which was published in Volume 41, Issue 2.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on June 6, 2023. The original post can be accessed via the Archived Link button above.

The New Roaring Twenties: The Progressive Agenda For Antitrust And Consumer Protection Law, Jorge L. Contreras

Utah Law Review

It is an opportune moment to consider the trajectory of antitrust law in the United States. We are witnessing today an inflection point in both federal and state antitrust enforcement and a growing skepticism by courts of the doctrinal orthodoxy that has characterized the antitrust jurisprudence of the last half century.

Game On—Copyrighted Tattoos In Video Games As Fair Use, Emilie Smith

Marquette Law Review

With its fact-intensive inquiries and limited bright-line rules, copyright law is known for its ambiguity, and courts often differ in their interpretations of various doctrines. The fair use doctrine is no different, and was in fact designed to grant courts discretion in making their determinations, all with the aim of maintaining the true purpose of the copyright law. Recent technologies and popularized forms of art only complicate things, adding rougher terrain to an already confusing landscape.

A Proposal For A Model Indigenous Intellectual Property Protection Tribal Code (Miipptc), Prof. Tomasz G. Smolinski

Tribal Law Journal

The appropriation of Native American cultural and intellectual property has become commonplace in the United States. At the same time, mainstream, Western cultural/intellectual property laws are inadequate to properly protect traditional Indigenous knowledge. To address this problem, scholars have begun to advocate for a three-tiered system, in which, in addition to national and international legal protections, tribal laws would play a fundamental role in the fight against cultural appropriation. Alas, few Native American tribes explicitly address cultural and/or intellectual property rights in any of their legal instruments. This is especially true with respect to intangible intellectual property, such as traditional …

The Right Of Publicity: A New Framework For Regulating Facial Recognition, Jason M. Shultz

Brooklyn Law Review

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their identities. Originating around the turn of the twentieth century in response to the newest image-appropriation technologies of the time, including portrait photography, mass-production packaging, and a ubiquitous printing press, the ROP has continued to evolve along with each new wave of technologies that enable companies to exploit peoples’ images and identities for commercial gain. Over time, the ROP has protected identities from misappropriation in photographs, films, advertisements, action figures, baseball cards, animatronic robots, video game avatars, and even digital resurrection in film …

Ip Protection For Love: Dating App’S Feuds And Foes, Meredith Williams

Journal of Intellectual Property Law

A new method of meeting others and dating online has emerged amid today’s age of technology. Online dating, now largely facilitated through apps, has grown exponentially since its genesis. With this growth, online dating services have sought intellectual property protection. This Note examines the patentability of dating app features, primarily the digital user interface through the backdrop of a recent dispute between Tinder and Bumble. It begins with a history of online dating and analysis of why apps have become a popular tool to launch a business. The Note then delves into a new dating app concept and accompanying patent …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Journal of Intellectual Property Law

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

Transparency Is The Best Policy: The Case For Georgia To Allow Access To The Source Code Of Proprietary Voting Software, Grace Repella

Journal of Intellectual Property Law

Within the past century, electronic voting systems have become common place. Most states hold their elections via electronic voting machines. These voting machines require software, and that software is built out of source code. Most states, including the state of Georgia, use voting machines with proprietary software made by private companies to run their elections. These companies have pushed back against access to the source code of their software because of intellectual property issues related to trade secret and copyright law. Nonetheless, states have an interest in guaranteeing their elections are not vulnerable to attack or hacking, and voters want …

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation Of 17 U.S.C. § 120, Hunter T. Payne

Journal of Intellectual Property Law

The Eighth Circuit expanded architectural copyright protection in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., by interpreting § 17 U.S.C. 120(a) consistent with both its plain meaning and legislative intent. In doing so, the court took a pivotal step in protecting architects’ copyright interest in floorplans posted on virtual real estate websites without consent. The National Association of Realtors quickly took offense, declaring this an invitation to waves of litigation, hindering the current state of real estate transactions that often occur via websites like Zillow or Redfin. However, as highlighted by the Eighth Circuit, copyright fair use …

To "The" Or Not To "The"? The Question Has Been Answered: An Examination Of Trademark Bullying In The Context Of The Ohio State University's Recent Trademark Registration, Jennifer M. Danker

Journal of Intellectual Property Law

This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.

By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Journal of Intellectual Property Law

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …