Intellectual Property Law Commons^™

Copyright In The Expanded Field, Xiyin Tang

Hofstra Law Review

Intellectual property law and the art forms it is meant to protect are expanding. In our information age, artists hoping to assert their rights frequently assert a combination of trademark, copyright, and right of publicity or moral rights claims in order to maximize their chances of success. This Article looks beyond IP law to some of its more unlikely complements — tort and property law — as a viable means of redress for artists who may be ineligible for copyright protection. Specifically, recent cases involving a specific form of hybrid art — land art, or “site specific art” — have …

How To Be An Authentic Indian, M. Alexander Pearl

Faculty Articles

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding traits of “Indian-ness” against an onslaught of political correctness gone mad.

Power And Governance In Patent Pools, Michael Mattioli

Articles by Maurer Faculty

The recent influx of patent pools, research consortia, and similar cooperative groups led by companies at the vanguard of American innovation has raised a pressing question: How does collective action influence the incentive to innovate? This question hinges on how patent pools are internally governed — a topic that has not been deeply examined by legal scholars. Through an original study of fifty-two private agreements, this Article pulls back the veil on patent licensing collectives to examine whether such organizations are designed to encourage long-term innovation.

This study draws on collective patent license agreements spanning the years 1856 to 2013 …

The Stop Online Piracy Act: The Latest Manifestation Of A Conflict Ripe For Alternative Dispute Resolution, Steven Tremblay

Cardozo Journal of Conflict Resolution

This Note examines how arbitration and mediation can be injected into the online copyright debate to better serve the interests of all parties. First, this Note addresses past litigation models to compare the benefits and costs of using the courts to resolve piracy issues. The history of litigation against mass peer-to-peer file sharers and individual downloaders is an important aspect to this story. Next, this Note describes the current state of copyright laws and how SOPA and PIPA would alter copyright protection against foreign piracy. Copyright holders, predominately represented by the Recording Industry Association of America, and content hosts, such …

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

Akron Law Faculty Publications

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, …

Territorial Exclusivity In U.S. Copyright And Trademark Law, Christine Haight Farley

Contributions to Books

Currently, U.S. trademark and copyright law both adopt employ a regime of international exhaustion of rights with respect to parallel importation after the Supreme Court ruled in Kirtsaeng last term. This agreement belies the fact that these two areas of law have developed in nearly divergent directions and have resulted in faltering intellectual property and trade policies. Currently, interpretation of the first sale doctrine hinges on the particular legal characteristics of both trademarks and copyrights. When dealing with trademarks, courts ultimately focus on the source of origin, taking into account consumer expectations or, instead, focusing on the business relationship, if …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors, R. Cameron Gower

Journal of Law, Technology, & the Internet

No abstract provided.

The Use And Abuse Of Patents In The Smartphone Wars: A Need For Change, Jessie Yang

Journal of Law, Technology, & the Internet

No abstract provided.

Cover Letter, Allison F. Rienecker

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its Annual Survey issue of the 2013-2014 academic year. This issue is published in conjunction with JOLT’s Symposium entitled “Information Governance: A Comprehensive Approach to e-Discovery.” Since its founding in 1995, JOLT has strived to publish relevant legal articles at the forefront of the technological field. With this goal in mind, we are excited to expand JOLT’s respected discussion of e-Discovery to the emerging field of Information Governance.

Cover Letter, Benjamin R. Fox

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its third issue of the 2013-2014 academic year. First published in 1995, JOLT is the world’s first exclusively online law review. JOLT strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. With this goal in mind, we are proud to announce the publication of the following articles.

The Tangled Web: A Case Against New Generic Top-Level Domains, Joseph P. Smith Iii

Richmond Journal of Law & Technology

If we had a reliable way to label our toys good and bad, it would be easy to regulate technology wisely. But we can rarely see far enough ahead to know which road leads to damnation.

Cyborgs In The Courtroom: The Use Of Google Glass Recordings In Litigation, Kristin Bergman

Richmond Journal of Law & Technology

The future is now. Wearable computers such as Google Glass (Glass) have begun entering society—we see people wearing these devices on the streets, in classrooms, at parties, and elsewhere. Though most of these devices are not yet available to the public at large, there has been much hype over the impact Glass will have on our interactions, privacy, safety, and more. Although this Article will briefly address such controversial aspects, it will focus more narrowly on the potential utility of Glass in litigation.

Cover Letter, Benjamin R. Fox

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the final issue of the Twentieth Volume. First published in 1995, JOLT isthe world’s first exclusively online law review. JOLT strives to discuss new and emerging issues that fall squarely at the intersection oftechnology and the law. With this goal in mind, we are proud to announce the publication of the following articles.

Cover Letter, Laura M. Bedson

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is pleased to present the first issue of the Twenty-First Volume. With its first publication in 1995, JOLT became the world’s first law review to be published exclusively online. It was with that original publication that JOLT established itself as one of the leading publications in the legal technology field. Today, JOLT has continued the bold tradition of publishing articles to further scholarship in areas of new and emerging fields that fall at the intersection of technology and the law.

The Reasonable Information Security Program, Peter Sloan

Richmond Journal of Law & Technology

Our information inhabits a perilous world. Cyber theft, cyber extortion, mobile device loss, misappropriation of confidential business information, and unauthorized disclosures of protected information are real and present dangers for organizations of all sizes and across all industries.

The Copyright/Patent Boundary, Viva R. Moffat

University of Richmond Law Review

No abstract provided.

Intent In Fair Use, Eva E. Subotnik

Faculty Publications

This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would serve copyright’s utilitarian …

A Eulogy For The Eula, Miriam A. Cherry

Faculty Publications

(Excerpt)

Rakoff shook his brightly dyed red hair as he shivered alongside the others waiting for the bullet train. It was a miserably cold morning, but Rakoff's fellow passengers didn't seem to mind. Most of those standing on the platform were taking their spare moments to work in the global workspace. It looked like they were talking to themselves, typing on invisible keyboards, or blinking, but in fact they were working, completing crowdsourcing tasks. Other waiting passengers were interacting with business contacts by projecting their avatars out into the virtuality. It was cold, but there was not long to wait …

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

Faculty Publications

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 …

Constitutional Obstacles? Reconsidering Copyright Protection For Pre-1972 Sound Recordings, Eva E. Subotnik, June M. Besek

Faculty Publications

(Excerpt)

The typical complaint about intellectual property laws is that they are sluggish in responding to technological change. An unfolding question in the contemporary era, however, is the degree to which the threat of constitutional challenge will lead Congress to further adhere to the status quo. In the wake of the patent law overhaul several years ago, for example, the wisdom and scope of those amendments were widely debated, but concern about their constitutional soundness was also expressed in some quarters. Likewise, the latter concern is in play with respect to a proposed amendment of the law that applies to …