Intellectual Property Law Commons^™

The Impact Of The 'Technology Transfer Surplus' On The Trade Deficit With Japan And Its Cures, M. Brendan Chatham

Georgia Journal of International & Comparative Law

No abstract provided.

Judicial Speculation On Consumer Impression: The Pitfalls Of Measuring Trademark Tacking As A Question Of Law, Megan Majcher Hartnett

Catholic University Law Review

Trademark tacking allows a mark owner to adjust her mark without losing protection. The test for determining whether tacking is appropriate is whether the new mark is the legal equivalent of the old. This equivalency is measured by evaluating the continuing commercial impression created by the marks. A circuit split has developed over whether this test is a question of law or a question of fact. This Comment argues that the continuing commercial impression test is ill-suited to be measured as a question of law. Initially, this Comment focuses on how commercial impression is a fact-based inquiry and should be …

Closing The “Free Speech” Loophole: The Case For Protecting College Athletes’ Publicity Rights In Commercial Video Games, Marc Edelman

Florida Law Review

When Electronic Arts Inc. (Electronic Arts) launched its video game series NCAA Football in June 1993, the available technology limited developers to crafting avatars that looked like faceless figurines. Today, however, advancements in digital technology have enabled developers to create “virtual players” that strongly resemble their real-life counterparts. For example, in NCAA Football 12, the avatar that represents University of Florida running back Chris Rainey possesses Chris Rainey’s actual height, weight, skin complexion, and hair style. In addition, both Chris Rainey and his virtual counterpart wear the same jersey number, visor, gloves, and sweatbands.

Recently, Pulitzer Prize-winning journalist Taylor …

Competitive Patent Law, William Hubbard

Florida Law Review

Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must “out-innovate . . . the rest of the world,” and that patent reform is a “critical dimension[]” of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will “give American inventors and innovators the 21st century patent system they need to compete.” Surprisingly, no legal scholar has assessed whether patent reform is capable of making American firms …

Fantasy Sports And The Right Of Publicity Are Under Further Review, Christopher Miner

Touro Law Review

No abstract provided.

Patent Imperialism, Bernard Chao

NULR Online

No abstract provided.

Mastering Patent Claim Construction: A Patent Special Master's Perspective, Robert J. Rando

Touro Law Review

No abstract provided.

Mega, Digital Storage Lockers, And The Dmca: Will Innovation Be Stifled By Fears Of Piracy?, Ali V. Mirsaidi

Duke Law & Technology Review

Kim Dotcom, founder of Megaupload Limited, has been in many news headlines over the past year. Megaupload—one of Dotcom’s many peer-to-peer sharing sites—was the center of controversy, as it allowed users to upload and share all sorts of files, including copyrighted material. After an organized effort by the Department of Justice and several foreign governments, Dotcom was arrested for (secondary) copyright infringement and his site was ultimately shut down. Dotcom has recently launched a new service, MEGA, which he claims will evade copyright laws entirely. Like other well-known cloud-sharing services such as Dropbox and Google Drive, MEGA allows users to …

Champagne Or Champagne? An Examination Of U.S. Failure To Comply With The Geographical Provisions Of The Trips Agreement, Leigh Ann Lindquist

Georgia Journal of International & Comparative Law

No abstract provided.

2013 National Lawyers Convention: Intellectual Property: Intellectual Property, Free Markets, And Competition Policy, John F. Duffy, Richard A. Epstein, Joshua D. Sarnoff, Joshua D. Wright, Douglas Ginsburg

Hamline Law Review

abstract

Copyright's Mercantilist Turn, Glynn S. Lunney, Jr.

Florida State University Law Review

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its …

Work Made For Hire -- Analyzing The Multifactor Balancing Test, Ryan Vacca

Florida State University Law Review

Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. …

Finding Meaning In The Death Of Virtual Identities, Jordan L. Walbesser

Buffalo Intellectual Property Law Journal

Historically speaking, legal fiction assumes that identity and the credentials proving identity are one and the same. It is an important fiction that allows us to access information associated with our identity and restrict others from doing the same. Crimes of identity theft are commonly manifested through the usurpation of one's credentials to falsely verify identity. Legal doctrine such as agency theory makes the assumption that identity and credentials are only transferrable together. Technology, especially the Internet, alters this fiction by allowing the creation of multiple credentials that enable access to multiple identities manifested throughout the world. The one-to-one relationship …

Traditional Cultural Expressions And The U.S. Constitution, Alexander Bussey

Buffalo Intellectual Property Law Journal

No abstract provided.

The Property Attributes Of Copyright, Pascale Chapdelaine

Buffalo Intellectual Property Law Journal

No abstract provided.

Curing Cablevision: Prescribing A Functional Solution To A Technical Astigmatism, Adam Adler

Buffalo Intellectual Property Law Journal

In a string of recent copyright cases, judges have increasingly adopted a technical approach to copyright law. Rather than evaluating contested technologies based on how the technologies are used, courts have focused their analysis on technical details of implementation. As a consequence, courts have constructed rules that limit technologies not in what they do, but how they do it. In this Article, I argue that courts should evaluate technologies based on functional considerations. I argue that this functional approach is constitutionally, statutorily, and practically preferable to a technical approach. Finally, I show that a functional approach would lead to decisions …

Inequitable Conduct And Supplemental Examination: Promise, Procedure, And Particulars, Amanda K. Murphy, Jonathan R. K. Stroud

Buffalo Intellectual Property Law Journal

The America Invents Act, signed into law on September 16, 2011, ushered in an array of patent reforms. One overlooked procedure, Supplemental Examination, seeks to purge putative instances of inequitable conduct prior to litigation by allowing patent owners to submit prior art and short statements to the USPTO after patent issuance. Few parties have used it. We analyze the law of inequitable conduct, explain the Supplemental Examination procedure, and discuss potential reasons for its lack of popularity among patent owners.

The Language Of Mens Rea, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Rene Marois, Kenneth W. Simons

Vanderbilt Law Review

To be guilty of a crime, generally one must commit a bad act while in a culpable state of mind. But the language used to define, partition, and communicate the variety of culpable mental states (in Latin, mens rea) is crucially important. For depending on the mental state that juries attribute to him, a defendant can be convicted-for the very same act and the very same consequence-of different crimes, each with different sentences.

The influential Model Penal Code ("MPC") of 1962 divided culpable mental states into four now-familiar kinds: purposeful, knowing, reckless, and negligent.' Both before the MPC and since, …

Hologram Images And The Entertainment Industry: New Legal Territory?, Stephen Anson

Washington Journal of Law, Technology & Arts

Modern technology allows for the holographic reproduction of a dead artist’s likeness, with the ability to perform past classic works or new original artistic works. The Coachella Valley Music and Arts Festival performance by the “holographic” Tupac Shakur in April 2012 dazzled an excited crowd and made the idea of bringing back deceased musical celebrities or other public personalities a reality. The use of such holographic performances is in its infancy, but the potential for possible intellectual property infringement is real and concerns the areas of copyright, trademark, and–most importantly–the right of publicity, which protects a celebrity’s name, likeness, voice …

Work Made For Hire - Analyzing The Multifactor Balancing Test, Ryan Vacca

Faculty Publications

Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act's work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three …