Intellectual Property Law Commons^™

Brief Of Patent Law Professors As Amici Curiae In Support Of Petitioners, Christa J. Laser

Law Faculty Briefs and Court Documents

This Court should reverse the Federal Circuit and hold that IPR estoppel extends only to grounds that were raised or could have been raised during the IPR proceeding. Estoppel would therefore extend to instituted grounds, whether raised during the proceeding or not. Estoppel would not extend to uninstituted grounds, such as grounds which might have been challenged in the petition for review but were not.

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

IP Theory

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

Research Exceptions In Comparative Copyright, Sean Flynn, Luca Schirru, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM. Notably, …

Myles Away From Perfect: The Potential Impact On Nil Deals Following Lsu Quarterback’S Retirement, Brian Ahle

SLU Law Journal Online

Just prior to the 2022 College Football Season, Louisiana State University Quarterback Myles Brennan decided to abruptly retire from football. Despite the unexpected finish to his career, Brennan is still going to likely retain all of the money he received in endorsements that were paid through the newly approved “NIL” deals available to collegiate athletes, as a result of a stipulation that these deals cannot be “performance-based”. In this article, Brian Ahle evaluates the potential ways in which endorsers may be able to protect their investments, while still complying with the NIL Policies that provide protections towards the athletes.

Countering Personalized Speech, Leon G. Ho

Northwestern Journal of Technology and Intellectual Property

Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user …

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Indiana Law Journal

Markets for unique digital property—digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity—have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

Check Your Bank Account First: Examining Copyright Formalities And Remedies Through A Race Conscious Lens, Emma Burri

Washington and Lee Journal of Civil Rights and Social Justice

This Note examines copyright formalities through a race conscious lens and concludes that further change is necessary given the legacy of economic inequality that communities of color experience. It examines the history of copyright formalities in the United States and the disenfranchisement of Black musical creators through the theft of their intellectual property. In exploring the relationship between race, wealth, and musical copyright protection this Note explains why considering the economic inequality is relevant to ensure copyright protection for Black creators. This Note proposes abolishing the registration timeline for certain remedies and altering the filing fee structure of the copyright …

Legal Perspectives On The Streaming Industry: The United States, Irene Calboli

Faculty Scholarship

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise …

Creativity Without Ip? Vindication And Challenges In The Video Game Industry, Bj Ard

Washington and Lee Law Review

This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on …

The Rise Of Machines: Patenting Inventions Generated By Artificial Intelligence In Canada, Morris Odeh

LLM Theses

“The rise of machines is here,” but they did not come as “rogue robots” to terminate humankind as some fictional writers predicted. Rather, they have come as inventors of human-like creativity. Therefore, this thesis examines the question of the patentability of inventions generated by artificial intelligence (AI) machines within the context of the Canadian patent system. Applying the modern principle of statutory interpretation, utilitarianism, and economic theoretical framework, this research determines whether AI-generated inventions can constitute patentable subject matter, AI systems can be inventors, and AI technology can own and exercise patent rights under the Canadian Patent Act. The thesis …

Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.

Why Can’T We Be Frands?: Anti-Suit Injunctions, International Comity, And International Commercial Arbitration In Standard-Essential Patent Litigation, Raghavendra R. Murthy

Vanderbilt Law Review

Picking up a smartphone to contact someone across the globe isfacilitated by technical standards like 5G. These standards allow for technological compatibility worldwide. For instance, a 5G capable device can connect to 5G networks anywhere in the world because the same 5G standard is used globally. Standards, particularly those integral to the telecommunications industry, are also highly complex and contain many patents that are necessarily infringed when the standard is implemented. To avoid rampant patent infringement, owners of these standard-essential patents (“SEPs”) are required to license them to standard implementers at fair, reasonable, and non-discriminatory (“FRAND”) rates when their patents …

Data Types, Data Doubts & Data Trusts, João Marinotti

Articles by Maurer Faculty

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate …

The Ascension Of Indigenous Cultural Property Law, Angela R. Riley

Michigan Law Review

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke …

Automating Discrimination: Ai Hiring Practices And Gender Inequality, Lori Andrews, Hannah Bucher

Cardozo Law Review

No abstract provided.

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be …

The Emerging Digital Infrastructure For Research In The Humanities, Donald J. Waters

Copyright, Fair Use, Scholarly Communication, etc.

This article advances the thesis that three decades of investments by national and international funders, combined with those of scholars, technologists, librarians, archivists, and their institutions, have resulted in a digital infrastructure in the humanities that is now capable of supporting end-to-end research workflows. The article refers to key developments in the epigraphy and paleography of the premodern period. It draws primarily on work in classical studies but also highlights related work in the adjacent disciplines of Egyptology, ancient Near East studies, and medieval studies. The argument makes a case that much has been achieved but it does not declare …

Highly Automated Vehicles & Discrimination Against Low-Income Persons, William H. Widen

Articles

Law reform in the United States often reflects a structural bias that advances narrow business interests without addressing broader public interest concerns.' This bias may appear by omitting protective language in laws or regulations which address a subject matter area, such as permitting the testing of highly automated vehicles ("HA Vs") on public roads, while omitting a requirement for a reasonable level of insurance as a condition to obtain a testing permit.2 This Article explores certain social and economic justice implications of laws and regulations governing the design, testing, manufacture, and deployment of HA Vs which might advance a business …

Teaching Doctrine For Justice Readiness, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Clinics strive to teach students lawyering skills. But clinics should also teach students how to use those skills to confront injustice and promote justice, an approach Jane Aiken refers to as “justice readiness.” Casework for clients presents many opportunities for students to become justice ready, but not all matters do so equally. Clinics come with built-in limitations. Some matters involve injustices in one area of law while leaving others untouched. And others don’t require creative advocacy for justice. Casework remains a powerful driver of justice readiness, but it cannot do the job alone.

Teaching students doctrine through a social justice …

The Global Publishing Industry In 2021, World Intellectual Property Organization

Copyright, Fair Use, Scholarly Communication, etc.

Mixed forces shaped global publishing activity in 2021. The spread of different COVID-19 variants throughout the world still caused hardship and widespread social distancing. At the same time, the rollout of vaccines helped to contain the pandemic’s impact and enabled a recovery of the global economy, which grew by around 6 percent in 2021. The preliminary release of data from WIPO’s global survey of publishing activity shows that recovery extended to the publishing industry. Still, industry performance varies by country, reflecting the nature of book markets and other local economic forces.

The highest number of books published and deposited in …