Intellectual Property Law Commons^™

The New European Union Regulation On Geographical Indications For Craft And Industrial Products And The Protection Of "Lace Of Cantù": A Work In Progress, Barbara Pozzo

FIU Law Review

Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 has introduced the protection of geographical indications for craft and industrial products. The contribution aims at investigating how the Regulation may have implications in the fashion world. In particular, it will focus on a particular case study undertaken in Northern Italy, concerning the possibility of protecting the “Lace of Cantù” through a geographical indications for craft.

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

History And Tradition In First Amendment Intellectual Property Cases: A Critique, Rebecca Tushnet

Marquette Intellectual Property & Innovation Law Review

This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. …

Not All Sunshine In Wisconsin: The Cloudy Public Disclosure Predicament Surrounding Trade Secrets, Amelia S. Murray

Marquette Intellectual Property & Innovation Law Review

This Comment will explore the current landscape surrounding trade secret protections in Wisconsin Open Records Law requests. The lack of access to state-protected trade secrets, and overall lack of transparency, effectively endangers the general health and safety of the Wisconsin public and environment. When a request is made for information under the Wisconsin Open Records Law pertaining to state information protected by trade secret, and the requester is denied access to such information due to its trade secrecy status, the state should have to disclose trade secret information if it poses a greater danger to environmental health, human health, or …

From Software To Multimedia: How Warhol's Refinement Of The First Fair Use Factor Upholds Prior Rulings Across The Copyright Landscape, Graham Lemke

Marquette Intellectual Property & Innovation Law Review

“Fair use” is a commonly invoked term of legal art that dates back to the 19th century and has undergone significant transformation since its inception. Specifically, the first factor of fair use, encompassing transformativeness, purpose, and commercial use, has generated significant circuit splits, leading to disparate outcomes for litigants depending on the presiding circuit. In an attempt to alleviate the unharmonious application of the fair use doctrine, the Supreme Court of the United States granted certiorari to a 2023 Second Circuit case involving the famed Andy Warhol Foundation. However, in the wake of the opinion’s release, critics have claimed that …

Blood Diamonds Of The Digital Age: The Need For Multi-Perspective Legislation On Cryptocurrency, Peter Derdzinski

Marquette Intellectual Property & Innovation Law Review

This comment examines how cryptocurrency is used in illicit cross-border transactions before examining some of the means currently employed to combat this criminal activity. Through analysis of the European Union’s Markets in Crypto-Assets (MiCA) regulations, this Comment proposes a multi-perspective approach for new legislation in the United States beyond the GENIUS Act of 2025. Specifically, this Comment argues that any new legislation needs to approach cryptocurrency as both a medium of exchange and as an investment vehicle or a store of value. Such legislation is necessary to create a trellis for cryptocurrency growth and to provide an organized approach for …

Risk, Reward, And Renewable Collateral: Can Ip Sustain Financing In Green Energy?, Nigel Blake

Marquette Intellectual Property & Innovation Law Review

As the transition from fossil fuels to renewable energy accelerates, intellectual property has become one of the most valuable assets held by emerging green technology companies. Patents, trademarks, copyrights, and trade secrets often comprise a greater share of these companies' value than tangible assets, making intellectual property an increasingly important source of collateral for commercial financing. At the same time, the renewable energy industry presents unique valuation challenges. Rapid technological innovation, shifting government policies, evolving consumer preferences, and uncertain market demand can significantly affect the value of intellectual property, creating substantial risks for both borrowers and lenders.

This Comment examines …

What Makes Federal Circuit Opinions Influential?, Jason Reinecke

Marquette Law Review

This Article provides the results of an empirical study assessing the determinants of a patent opinion’s influence at the Federal Circuit. I draw on a novel, largely hand-coded dataset of nearly 2,700 decisions issued by the Federal Circuit over a period of more than seven years. I find that some judges are more likely than others to issue binding opinions favoring patent owners (and others favoring patent challengers). In addition, drawing on case citation counts, I find limited evidence that extremely pro-patentee panels tend to write slightly more influential pro-patentee precedential decisions. Perhaps most striking and surprising, however, is how …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

Human Rights On Pause: Assessing The Cbp Digital Metering Process And Obligations Of Non-Refoulement Beyond Borders, Brandon Delia

Journal of Law, Technology, & the Internet

Migrants are once again being told to wait in line before seeking their right to the asylum process. In 2023, the Biden administration introduced the CBP One app as a new requirement for asylum seekers approaching the US-Mexico border. Not long after, it evolved into a strict legal prerequisite where without a CBP One appointment, migrants faced either immediate turnbacks or, if they nonetheless attempted to seek asylum defensively after entry, expedited removal and a potential five-year bar on reentry. Those who managed to register often waited months in cartel-controlled border towns, risking extortion, kidnapping, or worse. Paired with CBP’s …

Artificial Intelligence And Automated Decision-Making In Employment: The Future Of The Embattled Disparate Impact Theory Of Discrimination Under Title Vii, Daniel S. Alcorn

Journal of Law, Technology, & the Internet

Artificial intelligence now makes core employment decisions—from resume screening and video interviews to promotion and termination—yet Title VII’s disparate impact doctrine was built for paper tests, not black-box models. This Article argues that, while under attack by the Trump Administration and a minority of the U.S. Supreme Court, disparate impact remains indispensable but increasingly inadequate without adaptation. We show how algorithmic opacity frustrates causation, vendor delegation diffuses liability, predictive-accuracy claims distort “business necessity,” and trade-secret barriers impede proof of less-discriminatory alternatives. Drawing on emerging U.S. and comparative regimes, we propose a practical toolkit: (1) treat the algorithmic system as the …

A Law Enforcement Paradigm For The New Form Of Money, Jim Harper

Journal of Law, Technology, & the Internet

Over the last two centuries, transfers of money have evolved from movements of tangible things to digital communications events. Over the last half-century, financial surveillance law has taken root. The product of the two trends is a comprehensive, global financial surveillance regime that has substantial costs in both dollar terms and in values such as privacy, free speech, and autonomy. Those costs appear to vastly outstrip the benefits of such surveillance. Along with its infirmity as policy, general financial surveillance stands on shaky constitutional ground in the United States. It impedes the full development of digital forms of money and …

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

Cardozo Arts & Entertainment Law Journal

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 andfinds 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 hold …

Spotify's Bundle Battle: Uncovering The Flaws Of The Music Modernization Act And The Struggle For Fair Royalties In The Streaming Era, Jessica Jilla

Cardozo Arts & Entertainment Law Journal

The note argues that Section 115 of the Music Modernization Act (MMA) is fundamentally flawed and fails to protect songwriters and publishers from systemic inefficiencies and exploitation. It contends that the current framework is too rigid to address emerging digital business models, necessitating a hybrid restructuring of the Mechanical Licensing Collective (MLC) and the statutory licensing system to ensure equitable compensation.

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Dancing On The Edge Of Copyright: Why Copyright Law Should Protect Short Dance Routines, Tianai Song

Cardozo Arts & Entertainment Law Journal

The note argues that the Copyright Act should be amended to extend legal protection to short dance routines, regardless of their complexity or duration. This expansion aims to prevent the unauthorized appropriation of distinctive movements and ensure that creators, particularly those from Black and marginalized communities, are fairly recognized and compensated.

Power Play: The Battle For Copyright Control In Emulation, Ryan Borja

Cardozo Arts & Entertainment Law Journal

The note argues that the current legal framework prioritizes commercial interests and developer rights over the preservation of older video games. To reconcile the tension between copyright protection and the public interest in cultural preservation, the analysis proposes legislative solutions such as compulsory licensing schemes or the creation of a dedicated federal preservation agency.

Some Respect Reserved? Survey Experiment Insights On The Perception Of Creative Commons And Copyright Infringement, Thomas H. Rousse

Cardozo Arts & Entertainment Law Journal

Since its inception, Creative Commons has introduced new ways for creators to grant licenses to the public without cost or the need for negotiation by breaking up rights provided by copyright and making a subset of those rights available to anyone willing to abide by the conditions of the license. Its widespread adoption has democratized open licensing for creators beyond the software context these licenses originated within. Although the success of Creative Commons as a community is plain, relatively little information is available about its perception by the general public. Aggressive litigation by Creative Commons licensors has put the organization …

Authorship Nonsense, Jessica Litman

Articles

Copyright law’s primary device for promoting progress is to bestow rights on the authors of works. Rights vest automatically and last for a very long time. Authors’ choices to retain, license, or transfer those rights fuel opportunities to communicate the works to their audiences. The copyright system’s mechanisms for determining who authored works (and therefore automatically obtained copyright rights) should be both accurate and reliable, since misidentifications will undermine the law’s working as intended.

This article examines authors’ creation of works and copyright law’s handling of authorship disputes. Many works result from creative collaboration. Although the copyright statute incorporates mechanisms …

Reflections On The Use And Misuse Of Economic Analysis In Copyright, Glynn Lunney

Faculty Scholarship

Economic analysis has long been used to justify copyright regulation. Long before the Statute of Anne, the Stationer’s Guild told the story of the copying competitor, who in the absence of regulation, would copy every original book and offer it for less. In the story, the coping competitor would, in the absence of regulation, deprive the original author of an opportunity to recoup their authorship investment, and so lead to a world where no books at all would be published. To ensure sufficient incentives for authorship, some degree of copyright regulation was thought essential. At the same time, in the …