Intellectual Property Law Commons^™

The End Of The Imitation Age?: The Effect Of Apple Inc. V. Samsung, Melissa Barcena

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Following An International Copyright Regime At A Large National Cost: Is It Worth It?, Vaishali Khatri

The Journal of Business, Entrepreneurship & the Law

The main question at issue is which view of copyright law the United States should adhere to. Founders of American copyright law based our Constitution on utilitarian principles that promote the spread of knowledge and information to the general public. It has always been held that innovation and creativity were of core importance in an efficiently functioning democracy. With the passing of Section 514, the United States digressed from its national roots in order to comply with an international regime of copyright law. This decision in Golan takes steps to afford private economic benefit to a few copyright holders at …

Intellectual Property, The Free Movement Of Goods And Trade Restraint In The European Union, Jarrod Tudor

The Journal of Business, Entrepreneurship & the Law

The European Union (“EU”) is the most significant trade partner of the United States. Trading in goods protected by intellectual property rights remains a challenge for American business entities as they are forced to sift through a myriad of law consisting of the federal intellectual property law of the EU and the intellectual property law of the member states. The European Court of Justice (“ECJ” or “the Court”) has been faced with dozens of complex cases arising out of conflicts between the national law of the member states and the Articles of the Treaty on the Functioning of the European …

Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema

The Journal of Business, Entrepreneurship & the Law

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable …

Copyright Update For The 2014 Nevada Bar Intellectual Property Law Conference, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Nevada Bar Intellectual Property Law Section's annual Intellectual Property Law Conference, held on November 14, 2014 at the William S. Boyd School of Law.

The presentation provided attendees with a "year-in-review" update on copyright law, covering the time period of October 2013 to October 2014. Nevada copyright litigation statistics, summaries of important copyright cases, and discussion of pending copyright legislation were included in the presentation.

Dilution At The Patent And Trademark Office, Jeremy N. Sheff

Michigan Telecommunications & Technology Law Review

This Article undertakes the first systematic investigation of trademark dilution in registration practice before the US Patent and Trademark Office (PTO). The Article consists of three distinct descriptive empirical analyses. In the first, I present a new hand-coded dataset of all 453 Trademark Trial and Appeal Board (TTAB) dispositions of dilution claims through June 30, 2014, and report that dilution has been necessary to the PTO’s refusal of exactly three registrations in over a decade. In the second part, I apply algorithmic coding of the recently released PTO Casefiles Dataset to demonstrate that concurrent registration of identical marks to different …

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications & Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …

Rereading A Canonical Copyright Case: The Nonexistent Right To Hoard In Fox Film Corp. V. Doyal, Shane D. Valenzi

UC Law SF Communications and Entertainment Journal

Do copyright owners have the right to hoard their creative works? The right to exclude on an individual basis is the keystone of copyright law, yet using copyright protection to prevent all public access to a work runs counter to the very premises upon which copyright law is based. This right to exclude the world from use of a creative work-referred to as the right to "hoard" by Justice O'Connor in Stewart v. Abend, is commonly traced to a Lochner-era tax case: Fox Film Corp. v. Doyal. This article examines the right to hoard and its origins in Fox Film, …

Aaron Swartz’S Fbi Files

United States Department of Justice: Publications

Aaron Hillel Swartz (November 8, 1986 – January 11, 2013) was an American computer programmer, writer, political organizer and Internet Hacktivist.

Swartz was involved in the development of the web feed format RSS, the organization Creative Commons, the website framework web.py and the social news site, Reddit, in which he became a partner after its merger with his company, Infogami. Swartz's later work focused on sociology, civic awareness and activism.

He helped launch the Progressive Change Campaign Committee in 2009 to learn more about effective online activism. In 2010 he became a research fellow at Harvard University's Safra Research Lab …

Aaron Swartz’S Secret Service Files

United States Department of Justice: Publications

These documents concern the indictment in Massachusetts for downloading JSTOR content from MIT library network.

Parts 1 & 2 are included in the main document.

Additional files are linked below, as follows:

Part 3 (3 files) -- 379 pages, 4067 pages (spreadsheet), & 190 pages (photos)

Part 4 -- 1 page

Part 5 -- 1 page

Part 6 -- 1 page

Part 7 -- 7 pages

Part 8 -- 237,397 pages (yes)

Part 9 -- 90 pages

Part 10 -- 259 pages

Part 11 -- 17 pages

Part 12 -- (not released as of 9/29/2014)

Part 13 -- 254 pages …

A Restatement Of Copyright Law As More Independent And Stable Treatise, Ann Bartow

Law Faculty Scholarship

This article maps the problematic consequences of over reliance by judges, lawyers and policy makers on copyright law treatises, with a particular focus on the negative effects Nimmer on Copyright has had on the evolution of various copyright law doctrines. It proposes that an ALI Restatement of Copyright Law is needed to create a reference tool that is transparently authored and edited.

Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price Ii

Law Faculty Scholarship

Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative techniques found in other industries due to high regulatory barriers and ineffective intellectual property incentives. Among other challenges, although manufacturers tend to rely on trade secrecy because of the difficulty in enforcing patents on manufacturing processes, trade secrecy provides limited incentives for innovation. To increase those …

Overcoming India’S Food Security Challenges: The Role Of Intellectual Property Management And Technology Transfer Capacity Building, Stanley Kowalski, Aarushi Gupta, Ifica Mehra

Law Faculty Scholarship

The growth of the Indian economy after Independence has had little impact on the food security of the country. The paper analyses the development of advanced crop varieties through the use of agricultural technologies (hereinafter "agbiotech") within the technology transfer system, a framework which comprises of the interactions of intellectual property rights law and agricultural research and development in India. Through this, the author argues that agricultural innovation in India is failing due to the absence of connections within the technology transfer system and advocates for the creation of a national program aimed at advancing IP and tech-transfer capacity in …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Law Faculty Scholarship

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Function Over Form: Bringing The Fixation Requirement Into The Modern Era, Megan M. Carpenter, Steven Hetcher

Law Faculty Scholarship

This Article examines the ways that contemporary creativity challenges copyright’s fixation requirement. In this Article, we identify concrete problems with the fixation requirement, both practically and in light of the fundamental purpose and policy behind copyright law, and argue for a change that would amend the fixation requirement to better function in the modern era.

Specifically, we conclude that a fair appraisal of the justifications for the fixation requirement provides little, if any, rationale for fixation except to the extent that fixation helps to separate idea from expression in determining the “metes and bounds” of creative expression. Recent case law …

Says Who?: The Futility Of Authenticating Art In The Courtroom, Valerie Medelyan

UC Law SF Communications and Entertainment Journal

In a 1993 case involving the authenticity of a mobile by sculptor Alexander Calder, Judge Louis F. Oberdorfer bitterly conceded that if a prominent art expert testified that a work was a forgery, it would become so in the eyes of the market and its value would be destroyed. However, the judge went on to say, "this is not the market, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence." While acknowledging that the opinion of the more respected expert (that the Calder mobile was a fake) …

The Sound Recording Performance Rights At A Crossroads: Will Market Rates Prevail?, Jeffrey A. Eisenach

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

Starting in the 1990s, Federal policy has moved in the direction of a market-oriented approach towards sound recording rights, beginning with Congress’ decision to create a sound recording performance copyright in 1995. In 1998, Congress provided that most statutory royalty rates, including the rates paid by webcasters like Pandora Radio, would be set using a market-based “willing buyer, willing seller” (“WBWS”) standard. Since then, the WBWS standard has been applied in several rate setting proceedings, but complaints from webcasters that the rates were “too high” have led to Congressional intervention and, ultimately, to adoption of rates below market levels. Now, …

Indistinguishable From Magic: A Wizard's Guide To Copyright And 3d Printing, James Grimmelmann

Faculty Scholarship

3D printing is a technology of such surprise and wonder that it verges on the magical. But what if 3D printers actually were magic? How would copyright law treat the wizards who used them? This Comment uses the magical analogy to make familiar doctrines strange, and a strange technology familiar.

This Comment was prepared as an invited comment on Kyle Dolinsky's "CAD’s Cradle: Untangling Copyrightability, Derivative Works, and Fair Use in 3D Printing" for the 2013 Washington and Lee Student Notes Colloquium.

League Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick, B.J. Pivonka

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon

Scholarship Chronologically

The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "