Intellectual Property Law Commons^™

Blockchain And The Genesis Of Creative Justice To Disintermediate Creativity, Tonya M. Evans

Lewis & Clark Law Review

Historically, the art market has been shrouded in opaqueness and exclusivity, permissioned access and asymmetry of information that rivals the systemic ills of legacy financial markets that led to the Great Recession. Moreover, legacy art market stakeholders have, through the centuries, been entrenched in elitist and inequitable notions of art that excluded Black artists. These legacy intermediaries have also consistently demonstrated a deep and enduring disdain for any art connected to the digital world. That is, until the age of COVID-19 and the dramatically increasing value and dominance of the non-fungible token (NFT) market.

This Essay explores why, and how, …

Metasoftware: Building Blocks For Legal Technology, Houman Shadab

Articles & Chapters

This Article develops a novel concept in information technology called metasoftware. It then applies the concept of metasoftware to developing legal technology.

Metasoftware enables users to create the software of their choosing and stands in sharp contrast to traditional, functional software that is intended for a particular purpose or a defined range of tasks. Functional software is the default type of software that is currently produced and includes word processing, email, social networking, enterprise resource management, online marketplaces, and video game software. Metasoftware, by contrast, is not functional. Metasoftware presents the user with a blank slate upon which to build …

Culture And Fair Use, Michael Goodyear

Articles & Chapters

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.
Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright …

Synchronizing Copyright And Technology: A New Paradigm For Sync Rights, Michael Goodyear

Articles & Chapters

Embedded in a copyright owner’s musical work or sound recording is the synchronization, or sync right. One of the least discussed aspects of music copyright, considerations about sync have come to the fore as the world has increasingly moved from the real world to the virtual. The COVID-19 pandemic has spurred thousands of activities and events to go online. With many of these involving music, the shift to the virtual world has raised new questions about the extent of sync rights.

Traditionally, sync rights were meant to require licenses for the use of music in timed-relation to a film or …

Eviscerating Patent Scope, Shahrokh Falati

Articles & Chapters

The scope of patent claims directed to inventions in the field of pharmaceuticals and biotechnology has been stumped by the Court of Appeals for the Federal Circuit’s recent jurisprudence on 35 U.S.C. § 112. Specifically, the application of a heightened test for enablement of claims to a genus of compounds with functional limitations or a genus of therapeutic antibodies, coupled with an increasingly broader application of the written description doctrine, has resulted in considerable uncertainty in the biopharmaceutical industry. The Federal Circuit’s shift in interpreting 35 U.S.C. § 112 contravenes the statute and Supreme Court precedent by splitting the singular …

The Sociology And Psychology Of Innovation: A Synthesis And Research Agenda For Intellectual Property Scholars, Stephanie Plamondon Bair, Laura Pedraza-Fariña

Faculty Scholarship

Intellectual Property (IP) and innovation law scholarship is generally concerned with the question of how to promote socially beneficial innovation. Until recently, the analysis brought to bear on that question in the literature has been dominated by an individual, rational-actor-centered model grounded in the neoclassical economics tradition. Under this model, individual innovators are assumed to respond to innovation incentives in rational ways, unswayed by their social environments or their own psychology.

Of course, as innovation scholars are beginning to recognize, the road to innovation is much more winding and complex than the straight path from incentive to innovation that the …

Compulsory Licensing Of Patents In Times Of Public Health Emergency, Kelsey Truglio

Touro Law Review

In March 2020, the United States shut down to avoid the continued spread of the COVID-19 virus as it spread globally. In December 2020, the first COVID-19 vaccines were granted emergency usage authorization in the United States. Wealthy nations were able to quickly purchase and hoard vaccines for public distribution, leaving many third-world countries and developing nations struggling to continue to survive the pandemic without vaccination.

Compulsory licensing should be allowed on otherwise patented or patentable new technology in times of global health emergency, regardless of which entity creates the technology. This will enable governments of countries spanning all wealth …

The Problems With Trade Secret Protection/Overprotection In Asia, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

Trade secret protection law has been an important complement to patent law and has gained increasing importance over the last three decades, not least in Asia. Major Asian countries are now at a crossroads, as some (Japan, Korea, Thailand, Taiwan, and China) are following the US approach to criminalizing trade secret infringement and imposing harsher penalties on economic espionage (Japan, Korea, Taiwan, and China). This paper identifies many of the problems associated with trade secret protection, provides indicators of the overprotection of trade secrets, and warns against its many side effects. It then points out the crossroads that Asian economies …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

University of Richmond Law Review

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

Tailoring Ex Machina: Perspectives On Personalized Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In their book Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat propose a radical approach to lawmaking: using of big data and artificial intelligence to tailor legal dictates to the individual histories and characteristics of persons they affect. This essay critically discusses that proposal.

It first examines normative differences among the Ben-Shahar and Porat’s proposals for personalizing laws. There are important differences, for example, between using big data and artificial intelligence to tailor how a private legal power can be exercised to the capacities and interests of the power-holder and imposing different speed limits on …

Monitoring Facebook, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

Few companies still in business have a track record as negative as Facebook. Facebook has paid billions of dollars in government fines and paid hundreds of millions in private settlements. Yet, the financial penalties are actually minimal relative to the harm done. Facebook seems to have been involved one way or another in privacy breaches, organized crime, election manipulation, suicide, and even genocide. Mark Zuckerberg, who still controls Facebook, appears to ignore the consequences of his choices, seemingly prioritizing profits over people. He appears to disregard the law and operate without integrity or honesty, excommunicating insiders who speak out or …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Faculty Scholarship

The America Invents Act of 2011 (AIA) created a robust administrative system—the Patent Trial and Appeal Board (PTAB)—that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

“The Customer Is Always Right”: Consumer Perception For “Generic.Com” Trademarks, Sarah M. Simpson (Oliver)

Oklahoma Law Review

No abstract provided.

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

We Can Make A Better Use Of Orcid: Five Observed Misapplications, Miriam Baglioni, Paolo Manghi, Andrea Mannocci, Alessia Bardi

Copyright, Fair Use, Scholarly Communication, etc.

Since 2012, the “Open Researcher and Contributor ID” organisation (ORCID) has been successfully running a worldwide registry, with the aim of “providing a unique, persistent identifier for individuals to use as they engage in research, scholarship, and innovation activities”. Any service in the scholarly communication ecosystem (for example., publishers, repositories, CRIS systems, etc.) can contribute to a non-ambiguous scholarly record by including, during metadata deposition, referrals to iDs in the ORCID registry.

The OpenAIRE Research Graph is a scholarly knowledge graph that aggregates both records from the ORCID registry and publication records with ORCID referrals from publishers and repositories worldwide …

Stifling Dissent Or Enforcing Rules? The State Of Speech Rights In Online Forums, Noah Olson

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

“Storytime: We’Re Being Sued” – Copyright Infringement And Fair Use In The Digital Era, Mikayla Spencer

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Importance Of Being Earnestly Innovative: The Increasing Role Of Intellectual Property Law In The Global Economy, Inma Sumaita

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.