Intellectual Property Law Commons^™

From Lex Informatica To The Control Revolution, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the …

Fixing What’S Broken: The Outdated Guidelines Of The Sca And Its Application To Modern Information Platforms, Lutfi Barakat

Touro Law Review

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to afford privacy protections to electronic communications and it has not changed since its inception. The ECPA has proven problematic as technology has advanced, but Congress has not modified the law to reflect this change. Courts have struggled to apply the law to both old technologies that have been updated and new technologies that have emerged. The ECPA needs to be revised to reflect the new advances in technology or be repealed and replaced with a new approach. This will ensure that consumer data will be safeguarded while in the …

The Corruption Of Copyright And Returning It To Its Original Purposes, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Since its inception, Copyright has had two purposes: the private interest of the author in being paid for her work and the public interest served by the dissemination of these works. Within the last two decades, though, some industries have systematically undermined both of those interests, redirecting the benefits of copyright towards themselves instead of the intended beneficiaries. This paper looks at the book, music, and entertainment industries, examines how copyright has been used to suppress the uses it was intended to foster, and explores ongoing and proposed avenues for course correction.

Restoring The Balance Of Copyright: Antitrust, Misuse, And Other Possible Paths To Challenge Inequitable Licensing Practices, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Libraries’ purposes of ensuring access to and preservation of information have been compromised as licensing increasingly replaces ownership. This article outlines various novel legal strategies that libraries could use to restore copyright’s intended balance, including antitrust, preemption, misuse, and unconscionability.

Trademarks As Surveillance Transparency, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

We know very little about the technologies that watch us. From cell site simulators to predictive policing algorithms, the lack of transparency around surveillance technologies makes it difficult for the public to engage in meaningful oversight. Legal scholars have critiqued various corporate and law enforcement justifications for surveillance opacity, including contract and intellectual property law. But the public needs a free, public, and easily accessible source of information about corporate technologies that might be used to watch us. To date, the literature has overlooked a free, extensive, and easily accessible source of information about surveillance technologies hidden in plain sight: …

Adapting Indian Copyright: Bollywood, Indian Cultural Adaptation, And The Path To Economic Development, Michael P. Goodyear

Vanderbilt Journal of Entertainment & Technology Law

Bollywood and the Indian film industry have enjoyed enormous success, being among the largest movie producers in the world. Yet, despite the bright image of Indian cinema producing over a thousand movies a year and selling billions of tickets, the industry has faced controversy over the practice of copying expression, sometimes practically scene for scene, from US and other international films and adapting them into a version that reflects Indian social and cinematic customs and mores (“Indian cultural adaptation”). A long-standing practice, Indian cultural adaptation in Bollywood has only attracted the attention of Hollywood studios in the past twenty years, …

When Art Might Constitute A Taking: A Takings Clause Inquiry Under The Visual Artists Rights Act, Thomas A. Shelburne

Vanderbilt Journal of Entertainment & Technology Law

At first glance, a federal statute protecting the moral rights of artists and their artwork seems like a unanimous victory. But it turns out that government action protecting certain works of art attached to buildings may give rise to a valid takings clause claim under the Fifth Amendment. Without compensation, a regulation requiring a landowner to maintain someone else’s property on his land would constitute a taking. The Visual Artists Rights Act of 1990 (VARA) requires landowners to maintain protected artwork attached to buildings or potentially face statutory damages. Although only one court has heard and subsequently denied a takings …

Race Cartels: How Constructor Collaboration Is Curbing Innovation In Formula 1, Chandler C. Gerard-Reimer

Vanderbilt Journal of Entertainment & Technology Law

Formula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Fédération Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the …

Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski

Vanderbilt Journal of Entertainment & Technology Law

The patent field suffers from a reciprocal problem: the cost of becoming a Registered Patent Attorney is high, and the diversity of the patent bar is low. The high cost of law school tuition (over $50,000 per year at some schools) prices out individuals from less privileged backgrounds, thereby decreasing the number of diverse candidates who could become Registered Patent Attorneys. The relatively low number of students with science, technology, or engineering (STE) degrees also restricts the number of diverse candidates who could become Registered Patent Attorneys. These factors contribute to a lack of diversity in the patent bar, reflecting …

Let Me Get My Glasses, I Can’T Hear You: Sheet Music, Copyright, And Led Zeppelin, Brandon P. Evans

Vanderbilt Journal of Entertainment & Technology Law

Musical copyright infringement cases are experiencing an identity crisis. The crisis is that courts are beginning their analyses of the similarities between compositions by examining visual, rather than aural, evidence. Prior to the 1976 Copyright Act, copyright protection extended only to musical works reduced to sheet music. That sheet music, which is filed with the US Copyright Office (Copyright Office) as a “deposit copy,” represents the sum of the composition’s copyright protection. Even though Congress amended the Copyright Act to allow for sound recordings of a composition to function as a deposit copy post-1976, courts—particularly the Ninth Circuit—begin evaluating musical …

Patents As Signals Of Quality In Crowdfunding, Christopher A. Cotropia

Law Faculty Publications

Patents and crowdfunding both attempt to foster early stage innova-tions. In theory, patents signal quality and value to attract investment and buyers and ultimately facilitate commercialization. Crowdfunding allows multiple individuals to make small contributions to finance start-up ven-tures. This Article reports on two related studies investigating the interac-tion between these two innovation tools by determining the impact of a crowdfunding campaign’s patent status on the campaign’s success and de-livery. The first study examines 9,184 Kickstarter campaigns in patent-eli-gible categories to determine whether patented or patent-pending labeled projects are more likely to reach their funding goal and in turn achieve actual, …

Striking The Right Balance: Following The Doj's Lead For Innovation In Standardized Technology, Kristen Jakobsen Osenga

Law Faculty Publications

Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these …

Mark Of The Devil: The University As Brand Bully, James Boyle, Jennifer Jenkins

Faculty Scholarship

In recent years, universities have been accused in news stories of becoming “trademark bullies,” entities that use their trademarks to harass and intimidate beyond what the law can reasonably be interpreted to allow. Universities have also intensified efforts to gain expansive new marks. The Ohio State University’s attempt to trademark the word “the” is probably the most notorious. There has also been criticism of universities’ attempts to use their trademarks to police clearly legal speech about their activities. But beyond provocative anecdotes, how can one assess whether a particular university is truly bullying, since there are entirely legitimate reasons for …

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

The ultimate end of patent law should be to spur innovations that improve human welfare-innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money-that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field There is by now substantial evidence that treatments for diseases that primarily afflict poorer people-including the citizens of developing nations-are dramatically underproduced, compared with drugs that …

Current Market Rates For Scholarly Publishing Services, Alexander Grossman, Björn Brembs

Copyright, Fair Use, Scholarly Communication, etc.

For decades, the supra-inflation increase of subscription prices for scholarly journals has concerned scholarly institutions. After years of fruitless efforts to solve this “serials crisis”, open access has been proposed as the latest potential solution. However, the prices for open access publishing are also high and are rising well beyond inflation. What has been missing from the public discussion so far is a quantitative approach to determine the actual costs of efficiently publishing a scholarly article using state-of-the-art technologies, such that informed decisions can be made as to appropriate price levels. Here we provide a granular, step-by-step calculation of the …

Academic Libraries And Open Access Books In Europe: A Landscape Study, Agata Morka, Rupert Gatti

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

The last fifteen years have witnessed the emergence of a new role for academic libraries. Besides fulfilling their fundamental task of providing access to knowledge, besides being called everything from temples of knowledge to disturbing heterotopias, libraries have become one of the crucial stakeholders in the open access book publishing space. They act as funders for OA book fees, they support collaborative funding schemes, and sometimes they assume the role of publishers themselves.

In an attempt to create a sustainable publishing environment, in which OA books could blossom, it is therefore necessary to gain a sound understanding of …

Scite: A Smart Citation Index That Displays The Context Of Citations And Classifies Their Intent Using Deep Learning, Josh M. Nicholson, Milo Mordaunt, Patrice Lopez, Ashish Uppala, Domenic Rosati, Neves P. Rodrigues, Peter Grabitz, Sean C. Rife

Copyright, Fair Use, Scholarly Communication, etc.

Citation indices are tools used by the academic community for research and research evaluation that aggregate scientific literature output and measure impact by collating citation counts. Citation indices help measure the interconnections between scientific papers but fall short because they fail to communicate contextual information about a citation. The use of citations in research evaluation without consideration of context can be problematic because a citation that presents contrasting evidence to a paper is treated the same as a citation that presents supporting evidence. To solve this problem, we have used machine learning, traditional document ingestion methods, and a network of …

Operationalizing The Care And Fair Principles For Indigenous Data Futures, Stephanie Russo Carroll, Edit Herzog, Maui Hudson, Keith Russell, Shelley Stall

Copyright, Fair Use, Scholarly Communication, etc.

As big data, open data, and open science advance to increase access to complex and large datasets for innovation, discovery, and decision-making, Indigenous Peoples’ rights to control and access their data within these data environments remain limited. Operationalizing the FAIR Principles for scientific data with the CARE Principles for Indigenous Data Governance enhances machine actionability and brings people and purpose to the fore to resolve Indigenous Peoples’ rights to and interests in their data across the data lifecycle.

The Canada Trademarks Dataset, Jeremy N. Sheff

Faculty Publications

This article discloses and describes a new research dataset representing the Canadian Intellectual Property Office's historical archive of trademark applications. This individual-application-level dataset includes all applications since approximately 1980, and many preserved applications and registrations dating back to the beginning of Canada's trademark registry in 1865, totaling over 1.6 million application records. It includes comprehensive bibliographic and lifecycle data; trademark characteristics; goods and services claims; identification of applicants, attorneys, and other interested parties (including address data); detailed prosecution history event data; and data on application, registration, and use claims in countries other than Canada. Both the dataset and the code …

Information Age Technology, Industrial Age Laws, Elizabeth I. Winston

Scholarly Articles

The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. …