Intellectual Property Law Commons^™

From Player Piano To Generative Ai: Artificial Expression And The Law Of Copyright, Douglas Lind, Adrienne Holz

Fordham Intellectual Property, Media and Entertainment Law Journal

American copyright law has experienced challenges and sometimes faltered when confronting mechanical reproduction. This Article retraces the rise and diffusion of the player piano and the phonograph, examining how they reshaped the making and listening to music. As these technologies spread throughout American society more rapidly than copyright law could adjust, courts misclassified piano rolls and records as merely mechanics. Reducing these new fixations to machinery rather than embodiments of human expression left recorded human musical performances inadequately protected, which facilitated piracy. Applying these lessons, this Article contends that generative AI training implicates copyright law in ways not dissimilar to …

Table Of Contents & Letter From The Editor

UIC Review of Intellectual Property Law

No abstract provided.

Ai Co-Inventor: Robot Enabled Patent Prosecution, Henry H. Perritt Jr.

UIC Review of Intellectual Property Law

No abstract provided.

De Minimis Confusion, Maximum Risk: Consumer Vulnerability And Trademark Law In Lerner & Rowe V. Brown Engstrand, Gabriella Johnson

UIC Review of Intellectual Property Law

No abstract provided.

Fair Use In The Supreme Court: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several …

Operational Agency: A Permeable Legal Fiction For Tracing Culpability In Ai Systems, Anirban Mukherjee, Hannah H. Chang

SMU Science and Technology Law Review

Modern artificial intelligence (AI) systems act with a high degree of independence yet lack legal personhood—a paradox that fractures doctrines grounded in human-centric notions of mens rea and actus reus. This Article introduces Operational Agency (OA)—a permeable legal fiction structured as an ex post evidentiary framework—and Operational Agency Graph (OAG)—a tool for mapping causal interactions among human actors, organizations, and AI systems. OA evaluates an AI’s observable operational characteristics: its goal-directedness (as a proxy for intent), predictive processing (as a proxy for foresight), and safety architecture (as a proxy for standard of care). OAG operationalizes that analysis by embedding these …

Suing The Ghost In The Medical Machine, Jason R. Cheek

SMU Science and Technology Law Review

Devices that autonomously diagnose medical conditions, with no human interaction, have arrived. These self-operating systems incorporate artificial intelligence (AI), and include machines that diagnose preventable blindness, as well as some that write radiology reports. These devices feature AI-integrated software to make diagnosis decisions traditionally made by humans who have received extensive medical training. Soon, AI-driven devices will autonomously make treatment decisions.

What happens when these autonomous medical systems harm a patient? At the moment, most would expect product liability law to provide a path to recovery. But AI oftentimes uses multiple complex inputs and approaches, including statistical probabilities, to reach …

An Empirical Examination Of Law Student Attitudes Toward Legal Writing With Generative Ai, Abigail L. Perdue

SMU Science and Technology Law Review

Amid mounting predictions that generative artificial intelligence (AI) will substantially disrupt legal education, legal writing professors grapple with how and when to integrate generative AI into the classroom. While some believe that it should be woven into existing courses and integrated across the curriculum, even in the first year, others contend that it is better reserved for discussion in upper-level courses dedicated to AI-assistance. Yet it remains unclear which approach will best prepare graduates for the modern practice of law. Indeed, some scholars caution that permitting law students to use generative AI to complete their legal writing coursework, particularly in …

The Apathy Economy: Patents, Advertising, And Consumer Indifference, Gavin Milczarek-Desai, Derek E. Bambauer

UF Law Faculty Publications

Patents function as signals as well as rights to exclude. They inform competitors, investors, employees, and consumers about the invention and its owner. How this information affects consumers is not well understood. Existing studies disagree about how advertising a product or service as patented, or patent pending, affects the price consumers will pay. This Article offers the first major empirical study of that question and finds that consumers behave with surprising rationality: they will not pay any price premium for a patented product. A product’s patent status conveys little information about whether it is superior to competing offerings. The results …

Copyright Disincentives, Thomas D. Haley

UF Law Faculty Publications

Over the last decade, a spate of high-profile copyright infringement lawsuits rattled the music industry. Controversy followed in the wake of multi-million-dollar damages awards, with criticism emanating from courts, scholars, and musicians alike. The basic logic of the critique is sound: the specter of such massive liability for small and inadvertent similarities disincentivizes the creation of new music. But the disincentive effect remains curiously under-theorized. This Article develops the literature’s first nuanced account of this disincentive theory, drawing on analysis of hundreds of copyright dockets as well as interviews with musicians to show that the feared disincentive has not come …

Crypto Money Laundering, Jiaying Jiang

UF Law Faculty Publications

The crypto ecosystem has become a new frontier for money laundering, with criminals exploiting its anonymous and pseudonymous features. This Article explores how money laundering operates in the crypto space and highlights emerging trends. It then examines the existing legal and regulatory framework and argues that its core weakness lies in its reliance on trusted intermediaries. This approach conflicts with the philosophy that shaped the emergence of the crypto industry-one grounded in disintermediation and decentralized trust. To address this tension, this Article demystifies decentralization, showing that it is not a binary condition but instead exists on a spectrum. Across the …

Fading Prestige: A Comparative Analysis Of Trademark Dilution's Impact On Luxury Fashion Brands In The United States And European Union, Pravalika Surakanti

IP Theory

The paper focuses on the concept of trademark dilution in relation to luxury fashion brands in international markets. Focusing on the United States and the European Union, it will look at the different approaches these regions take and how certain holdups in dilution law affect fashion companies’ global brand protection strategies. The paper looks at the application of the Federal Trademark Dilution Act, the EU Trademark Directive, and other essential laws to their respective jurisdictions’ cases to determine the trends of trademark dilution claims. It is found that both regions provide luxury fashion houses with substantial protection; however, the European …

Beyond Hipaa: The Ftc’S Expanding Role In Digital Health Privacy Enforcement, Sandhya Srinivasa

SMU Science and Technology Law Review

Consumer digital health platforms have become an increasingly prominent feature of modern health care, collecting and storing sensitive health information directly from users. Yet most of these applications operate outside the scope of the Health Insurance Portability and Accountability Act (HIPAA), creating a significant regulatory gap in the protection of personal health data. This case note examines how the Federal Trade Commission (FTC) has stepped into that gap by leveraging Section 5 of the FTC Act and the Health Breach Notification Rule (HBNR) to police privacy and data security practices among non-HIPAA-covered digital health platforms. Focusing on three landmark enforcement …

Patenting Ai Discoveries In Life Sciences: Overcoming Eligibility, Disclosure, And Inventorship Challenges, Dhohyung Kim, Ryan P. Hiler

IP Theory

The pharmaceutical and biotechnology industries face transformative opportunities through artificial intelligence and machine learning integration. However, these technological advances create distinct patent law complications that traditional drug development does not encounter. This article analyzes three interconnected obstacles: establishing eligible subject matter under 35 U.S.C. § 101, meeting disclosure standards under § 112(a), and determining proper inventorship when AI systems contribute substantially to claimed inventions. Drawing from recent USPTO guidance and Federal Circuit precedent, this analysis offers evidence-based strategies for patent practitioners, research scientists, and business leaders seeking robust intellectual property protection for AI-integrated pharmaceutical innovations.

Ai Can't Adlib: Theorizing An Improvisation Carveout In The Work For Hire Doctrine, Audrey Pope

IP Theory

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for …

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

A Conceptual Map Of The Right To Repair: Where Upcycling Fits In, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

The chapter maps contemporary approaches to the Right to Repair along a spectrum from decentralised freedoms to centralised standard setting and product design. Decentralised approaches propose a Right to Repair that resembles a 'negative right' in that it protects user autonomy through dismantling legal and market barriers. Centralised repairability models, on the other hand, align more with a positive right that is built through stringent product design standards, obligations on manufacturers to repair products directly, and situate repair within larger circular economy governance models.

Using the US and EU approaches to Right to Repair policy as illustrative poles, the chapter …

How Ip Ends, David Fagundes, Aaron Perzanowski

Faculty Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

A Public Trust Theory Of Government Information, Sharon Sandeen

Faculty Scholarship

In the sixth century, the Roman Emperor Justinian declared that certain resources should be for the benefit of all of mankind, thereby planting the seeds of what is referred to as the public trust doctrine. Two core ideas behind the doctrine, which have evolved and expanded over time, are: (1) there are certain critical resources that should be available for all to use; and (2) governments that own or control those resources should preserve and manage them for the public good.

As insightful as Justinian was, his vision was naturally constrained by the times in which he lived, which was …

Leveraging Intellectual Property For Development: Insights From South Korea For Developing Countries, Gracie Alinafe Chimvula

Cybaris®

No abstract provided.