Intellectual Property Law Commons^™

The Past And Future In International Patent Law, Rochelle C. Dreyfuss

Cardozo Arts & Entertainment Law Journal

The organizers of the 2022 International Law Weekend asked us to consider how our fields have changed in the last century and to offer our thoughts about the future. For intellectual property, the changes have been formidable. The Industrial Revolution gave way to an Information Revolution. As a result, knowledge products now constitute a significant share of global wealth. And as the world increasingly endures crises like the recent pandemic, climate change, and food and energy insecurity, technological information will become even more important-indeed, crucial to the survival of the planet.

My own field is international patent law, where there …

Advances In Patent Rights Acquisition In International Patent Law, Sarah R. Wasserman Rajec

Cardozo Arts & Entertainment Law Journal

The article examines the significant developments in international patent law over the past century, focusing on how procedural changes facilitated by treaties like the Paris Convention and the Patent Cooperation Treaty (PCT) have led to substantive shifts in domestic patent laws. It argues that while these procedural streamlinings aim to enhance efficiency, they have also influenced substantive legal changes, such as the U.S. transition from a first-to-invent to a first-to-file patent system. The author highlights the need to recognize how procedural harmonization can shape substantive patent law and policy.

Nine Copyright Things Every Library And Archive Should Know In 2023, Elizabeth Townsend Gard

Cardozo Arts & Entertainment Law Journal

The article argues that libraries are currently experiencing a "golden age" of protection from copyright liability, despite ongoing challenges. It highlights recent legal developments, such as the expansion of the public domain, updates to Section 108 of the Copyright Act, and the implementation of the Marrakesh Treaty, which collectively enhance libraries' ability to serve the public. However, the article also acknowledges significant legal setbacks, including adverse court rulings on controlled digital lending and state e-book laws, which complicate the landscape for libraries seeking to balance copyright compliance with public access.

Re-Striping: Predatory Trademarks And Common Signs, Lior Zemer, Or Morag, Yochai Rosner

Cardozo Arts & Entertainment Law Journal

Trademark laws were traditionally designed based on the belief that there was an infinite supply of eligible registrable signs. However, current studies show that trademark supply is finite, and that we are close to exhausting it. While trademark protection allows proprietors to distinguish between their goods or services from others, and allowing the public to do the same, the extent of such protection requires constant legal attention and reconsideration which, as contemporary trademark policies show, does not take place in the expected frequency.

One of the immediate consequences from this lack of attention is the rapid growth in strength of …

Should The Ncaa Be Subject To Title Ix?, Sarah Allen

Cardozo Arts & Entertainment Law Journal

The note argues that the National Collegiate Athletic Association (NCAA) should be held accountable under Title IX of the Education Amendments of 1972, despite its current exemption, due to its significant role in college athletics and the persistent gender disparities in treatment of male and female athletes. It advocates for overturning the Supreme Court's decision in NCAA v. Smith to bring the NCAA under Title IX purview.

Name, Image And Likeness: Giving College Athletes The Clearest Guidance To Best Profit Off Their Nil, Scott Semaya

Cardozo Arts & Entertainment Law Journal

The note argues that the Supreme Court's decision in NCAA v. Alston has created a legal and regulatory void by invalidating the NCAA's restrictions on student-athletes' ability to profit from their name, image, and likeness (NIL). While the ruling opened the door for student-athletes to earn compensation, it left unresolved questions about the scope and enforcement of NIL rights. The lack of federal legislation has led to a patchwork of state laws, causing confusion and inequities for student-athletes, schools, and the NCAA. The note advocates for immediate federal intervention to establish uniform guidelines and level the playing field, while also …

Keynote Address, Andrew Zimbalist

Cardozo Arts & Entertainment Law Journal

The article examines the evolution of name, image, and likeness (NIL) policies in college athletics, highlighting the legal, economic, and educational implications of allowing college athletes to profit from their NIL. It argues that while recent legal cases and state legislation have expanded NIL rights, the lack of enforceable guardrails has created a chaotic system dominated by booster collectives, exacerbating financial and equity issues in college sports. The analysis critiques the NCAA's ineffective oversight and advocates for congressional intervention to establish a national framework addressing these challenges.

The Effect Of Rejection Of A Copyright License On A Non-Debtor Licensee, Thomas Meininger

Bankruptcy Research Library

(Excerpt)

In general, a trustee may assume, reject, or assign an executory contract of the debtor under title 11 of the United States Code (the “Bankruptcy Code”). Courts have generally held that intellectual property license agreements are executory contracts. If the license is an exclusive copyright license, it is a transfer of ownership under title 17 of the United States Code (the “Copyright Act”). Thus, some courts treat a copyright license as transfer of ownership, not an executory contract.

This article explores the rights and obligations of a non-debtor licensee when a debtor-licensor rejects a copyright license under the Bankruptcy …

Avoidance Of An Unauthorized Post-Petition Transfer Of Intellectual Property Under Section 549 Of The Bankruptcy Code, Kathryn-Rose Russotto

Bankruptcy Research Library

(Excerpt)

Under section 549 of title 11 of the United States Code (the “Bankruptcy Code”), a trustee may avoid an unauthorized post-petition transfer of property of the debtor’s estate. Property is not limited to tangible property. Thus, a trustee can avoid a post-petition transfer of intangible assets, including intellectual property.

This article explores a trustee’s ability to avoid a post-petition transfer of intellectual property. Part I analyzes the legal standard for avoidance of unauthorized post-petition transfers under section 549. Part II examines section 549 in relation to intellectual property. Part III discusses the procedure for remedies a trustee can seek …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Data For Sale: Navigating The Role Of Data Brokers And Reproductive Health Information In A Post-Dobbs World, Heather Chong

SMU Science and Technology Law Review

Data privacy is a growing concern in our fast-paced society, as it has become increasingly necessary to relay and retain information digitally. However, the United States trails behind its counterparts in terms of the strength of existing data protection legislation. Unlike the European Union and its General Data Protection Regulation (“GDPR”) law, the United States has no similar comprehensive data protection act. This lack of legislation has led to the exploitation of people’s private data and allowed companies to utilize loopholes in current laws to access sensitive health information. Data brokers have been collecting and reselling consumers’ personal information, including …

The Major Questions Doctrine And The Threat To Regulating Emerging Technologies, Johnson, Walter G., Tournas, Lucille M.

Santa Clara High Technology Law Journal

Emerging technologies offer the potential to improve health and quality of life but also pose notable risks to safety, wellbeing, and equity. Law and technology scholarship posits that robust policy and regulatory strategies in the public interest are required to manage these complex benefits, risks, and uncertainties. At the same time, the Supreme Court in its recent jurisprudence appears eager to revitalize nondelegation legal norms, especially through the major questions doctrine—a shifting administrative law doctrine that increasingly appears to act as a clear statement rule when interpreting statutory grants of authority to regulatory agencies. This article argues the major questions …

Reconceptualizing Conception: Making Room For Artificial Intelligence Inventions, Villasenor, John

Santa Clara High Technology Law Journal

Artificial intelligence (AI) enables the creation of inventions that no natural person conceived, at least as conception is traditionally understood in patent law. These can be termed “AI inventions,” i.e., inventions for which an AI system has contributed to the conception in a manner that, if the AI system were a person, would lead to that person being named as an inventor. Deeming such inventions unpatentable would undermine the incentives at the core of the patent system, denying society access to the full benefits of the extraordinary potential of AI systems with respect to innovation. But naming AI systems as …

Remedies For Universal Service Funding Compassion Fatigue, Frieden, Rob

Santa Clara High Technology Law Journal

Nearly every nation in the world has a government mandated program aiming to make telecommunications service more widely available and affordable. Universal service funding subsidies have garnered popular support largely based on the shared view that society and individuals benefit from progress in achieving ubiquitous and affordable access, initially to voice telephone service. Technological developments and changes in consumer requirements have generated support for expanding the universal service mission to include broadband access to the Internet, and to identify a growing number of subsidy beneficiaries, now including schools, libraries, healthcare facilities, telephone companies operating in high-cost areas, and people with …

Welcome To The Land Of Trademark Cancellation––Where Not All Fraud Is Created Equal, Barbier, Janelle

Santa Clara High Technology Law Journal

The intellectual property community is buzzing about a recent decision by the U.S. Court of Appeals for the Federal Circuit handing down a ruling on trademark cancellation under the Lanham Act. A divided panel grappled with whether the Agency had authority to cancel a trademark registration as a punishment for filing a false declaration. The majority held that the Agency was precluded from canceling the registration as a remedy for fraud unrelated to the issuance or maintenance of that mark. However, the dissent took aim at the majority’s reasoning, making a compelling argument that green- lighting any type of fraud …

Conceptualizing A "Right To Research" And Its Implications For Copyright Law: An International And European Perspective, Christophe Geiger, Bernd Justin Jutte

American University International Law Review

Copyright, at international, European, and national levels, does not provide a legal framework that prioritizes enabling and incentivizing research using protected works and information to the extent necessary and desirable in a digital, data-driven society in order to build a sustainable ecosystem for innovation and creativity. While small progress has been made, for example with the recent introduction of specific exceptions for research purposes and for text and data mining in certain national legislations as well as in the European Union law, a horizontal approach towards a more research-friendly copyright ecosystem has so far failed to evolve. By revisiting international …

Patent-Infringement Suits And The Right To A Jury Trial, H. Tomas Gomez-Arostegui, Sean Bottomley

American University Law Review

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on eighteenth-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and therefore that litigants today who seek only injunctive relief possess no such right either. But …

It Takes Two To Incorporate: The Role Of Patent Co-Ownership In Inventor Choice Of Business Form, Shawn P. Miller

American University Law Review

The literature on the theory of the firm and the reasons why entrepreneurs choose one type of business organization over another is massive. However, few empirical studies have been conducted to test the importance of the various proposed determinants of choice of legal form of organization in real-world industries. This paper helps fill that gap through an econometric investigation of the differences in the characteristics of two groups of independent inventors engaged in the business of patent monetization: inventors operating as sole proprietors and those operating through business organizations, almost always LLCs or close corporations.

The results suggest that commonly …

Decentralized Collaboration Through Private Ordering, Edward Lee

American University Law Review

This Article sets forth the theory of decentralized collaboration to explain how NFT projects coordinate business and creative collaborations in a decentralized manner through NFTs. Conducting an empirical study of the Top 25 NFT projects, this Article shows that a majority of the Top 25 NFT projects have employed a new, more innovative approach to creative production. Decentralized collaboration refers to the creative activities among unrelated actors who are involved in creating a shared content production project through a decentralized, asynchronous process open to the public. Utilizing a combination of smart contracts that create non-fungible tokens (NFTs) recorded on blockchain …

Smart Patents, Stephanie Plamondon

Faculty Scholarship

Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in …