Intellectual Property Law Commons^™

Signed, Sealed, Patented?: A Look At The United States Postal Service’S Patent Application For Implementing Blockchain Technology In Mobile Voting Systems, Ethan Todd

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

The Communitarian Deficit In The Usa: Three Telling Cases, Amitai Etzioni

SMU Science and Technology Law Review

Liberal communitarianism suggests that the balance between individual rights and the common good must be adjusted as historical conditions change. Much attention has been paid to violations of rights, e.g., by the police, for good reasons. This Article examines three new technologies that undermine public safety, a key common good, and asks whether they should be banned. The 2020 pandemic revealed that scores of millions of Americans objected, not merely to government mandates to take measures that are likely to spare fellow Americans a severe disease or death, but even to respond to moral calls, especially wearing a mask. This …

Copyright, Pandemics, And Emergencies: When Desperate Times Dictate Contextual Responses, Caroline L. Osborne

SMU Science and Technology Law Review

This article explores fair use, the library exception, the first sale doctrine, and controlled digital lending as responses to copyright in the context of permitting libraries to digitize materials existing exclusively in print in their collection for use in teaching, research, and scholarship by students, faculty, and other patrons. Also included is a decision matrix to be employed as a tool for analysis in making the decisions as to digitization of print resources in response to instances of emergencies.

Uncovering The “Realness” Of Cgi Influencers, Samantha Favela

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Q: Can Booking.Com Be Trademarked? A: Booking.Yeah, Samantha Favela

SMU Science and Technology Law Review

By choosing a generic Internet domain as a brand name, that brand can hit the Internet jackpot. But the popularity and use of a generic domain name creates tension with trademark law. While companies want to be easily found on the Internet, they also want to protect themselves from competitors. This Case Note argues that the Supreme Court’s ruling in United States Patent & Trademark Office v. Booking.com B.V. is the best possible outcome in protecting brand’s rights and balancing trademark law principles. Through the analysis of past cases, the Supreme Court decision in Booking.com itself, and trademark law principles, …

The Fifth Circuit, Fourth Amendment, And The Third-Party Doctrine: Two Takeaways From The Court’S First Ruling On Bitcoin Privacy, Daniel Penn

SMU Science and Technology Law Review

No abstract provided.

The Intellectual Property Of Covid-19, Ana Santos Rutschman

All Faculty Scholarship

The response to COVID-19 is indissolubly tied to intellectual property. In an increasingly globalized world in which infectious disease pathogens travel faster and wider than before, the development of vaccines, treatments and other forms of medical technology has become an integral part of public health preparedness and response frameworks. The development of these technologies, and to a certain extent the allocation and distribution of resulting outputs, is informed by intellectual property regimes. These regimes influence the commitment of R&D resources, shape scientific collaborations and, in some cases, may condition the widespread availability of emerging technologies. As seen throughout this chapter, …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

All Faculty Scholarship

The availability of data related to the employment relationship has ballooned into an unruly mass of personal characteristics, performance metrics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

Intellectual Property As A Determinant Of Health, Ana Santos Rutschman

All Faculty Scholarship

Public health literature has long recognized the existence of determinants of health, a set of socio-economic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

Letter To Council Members Regarding Council Draft 5, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 5 (CD5) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 20-21, 2021. We appreciate the opportunity to provide comments on CD5. We hope that you will give careful consideration to these comments and send CD5 back to the Reporters to address the problems we describe below.

Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg

Faculty Scholarship

The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.

In addition to analyzing …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Faculty Scholarship

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Payin’ The Price To Grab A Slice…Of Music! A Guide To Music Licensing For Businesses, Nila Jackson

Cybaris®

This paper provides information that may be useful to people seeking to acquire music licenses for their places of business and is primarily focused on licensing for food and drink establishments. However, other business types that use live or recorded music in their establishments may find the information useful as well. The purpose of this paper is to provide a brief history of copyright law, and an overview of music licensing to give business owners a better understanding of copyright as it relates to public performance.

Suggested Improvements To Mandatory Mediation Scheduling During International Trade Commission (Itc) Section 337 Investigations, Jeff Nall

Cybaris®

No abstract provided.

Panel 2: Distinctiveness In The Age Of The Internet, Barton Beebe, David H. Bernstein, Laura A. Heymann, Alexandra J. Roberts, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the role of consumer perception in determining whether a term is generic or distinctive for trademark purposes, emphasizing that words are context-dependent and not inherently generic or distinctive. It highlights the importance of assessing consumer understanding and use of terms in specific contexts, as well as the need for courts to consider multiple forms of evidence, including surveys, mark talk, and broader marketplace data, to make informed decisions. The analysis also touches on policy considerations, such as keeping certain features free for competition and consumer use, which may influence legal outcomes.

Data As The New Oil: A Slippery Slope Of Trade Secret Implications Greased By The California Consumer Privacy Act, Megan Marie Miller

Cybaris®

Following the European model of the General Data Protection Regulation (GDPR), the state of California implemented the California Consumer Privacy Act (CCPA) on January 1, 2020. The CCPA allows any California consumer to demand to see all of the information that a company has saved on them; consumers can also request a full list of all the third parties that their data is shared with, sold to, and for what commercial purpose. This paper reviews the implications of a new law on the disclosure of trade secrets like client lists and algorithms that manipulate consumers’ data. Ultimately, the issue comes …

Infinite Setlist: Analyzing Pioneer Dj’S Catalogue Streaming Partnerships With Beatport And Soundcloud, Nicholas Rivera

Cybaris®

The purpose of this paper is to examine the partnerships Rekordbox has with SoundCloud and Beatport, determine if user agreements of each platform legally allow the partnerships to occur, what the implications are of using the music streaming service for live performances at venues, what the implications are of streaming music for live streamed performances via the internet, satellite radio, and terrestrial radio, and determine which types of copyright royalties need to be paid to who and by whom.