Intellectual Property Law Commons^™

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

Articles

This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of protection for …

The Impact Of Local Patent Rules On Rate And Timing Of Case Resolution Relative To Claim Construction: An Empirical Study Of The Past Decade, Pauline M. Pelletier

Journal of Business & Technology Law

No abstract provided.

Self-Replicating Technologies And The Challenge For The Patent And Antitrust Laws, 32 Cardozo Arts & Ent. L.J. 131 (2013), Daryl Lim

UIC Law Open Access Faculty Scholarship

Few patented inventions challenge the traditional boundaries of the patent and antitrust laws like those that are capable of multiplying as they are used. These self-replicating technologies are embedded in our food, fortify our vaccines, and form the computer code upon which the information age is based. These inventions create an inherent conflict between patentees and their customers. The conflict arises because every customer could become competitors as the product replicates, potentially making every first sale the patentee's last. They also challenge how we think about fundamental issues of ownership as well as innovation and market competition, and make it …

Then, You Had It, Now It’S Gone: Interspousal Or Community Property Transfer And Termination Of An Illusory Ephemeral State Law Right Or Interest In Copyright, Llewellyn Joseph Gibbons

Fordham Intellectual Property, Media and Entertainment Law Journal

Often in the case of a marriage where one partner is a creative spouse, the primary marital asset is a body of copyrighted works. In 2013, author-spouses entered the period when they may begin to terminate any putative copyright transfer to the community property estate or terminate other transfers that may be the basis for prenuptial or postnuptial agreements, property settlements, or dissolution decrees in divorce actions. Section 203 of the 1976 Copyright Act provides that an author may unilaterally terminate a transfer of copyright approximately thirty-five years after the initial transfer. In community property states, state law assumes that …

Shallow Signals, Bert I. Huang

Faculty Scholarship

Whether in dodging taxes, violating copyrights, misstating corporate earnings, or just jaywalking, we often follow the lead of others in our choices to obey or to flout the law. Seeing others act illegally, we gather that a rule is weakly enforced or that its penalty is not serious. But we may be imitating by mistake: what others are doing might not be illegal – for them.

Whenever the law quietly permits some actors to act in a way that is usually forbidden, copycat misconduct may be erroneously inspired by the false appearance that "others are doing it too." The use …

Innovation And Litigation: Tensions Between Universities And Patents And How To Fix Them, Jacob H. Rooksby

Law Faculty Publications

Universities that own patents have a problem. While nearly all are keen to enhance their revenue generated from patents, few are eager or prepared to enforce them in court, alone or with their exclusive licensees, should a third party deploy a product or process covered by a university-owned patent. Yet strict prudential standing requirements imposed by the United States Court of Appeals for the Federal Circuit (“CAFC”) effectively require university participation as plaintiffs in enforcement lawsuits over their exclusively licensed patents, regardless of a university’s effective ability or enthusiasm to participate in a given action. Supported by forty years of …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

Proto-Property In Literary And Artistic Works: Sixteenth-Century Papal Printing Privileges, Jane C. Ginsburg

Faculty Scholarship

This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents – almost all unpublished – in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.

The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because …

Stewarding The Common Law Of Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law is today perceived as principally statutory in origin. The Copyright Act of 1976 is thought to have codified most questions of copyright policy and doctrine, and delegated a fairly limited set of questions to courts for them to resolve incrementally on a case-by-case basis. This is in contrast to prior copyright enactments, which were brief and open-ended in structure, and seemingly envisaged a more active role for courts in rule- and policy-making. Judge Leval thus notes how over time, the idea of a constructive "partnership" between the legislature and courts in making and developing copyright law that once …

How Hard-Fought Is Copyright Litigation?, James Gibson

Law Faculty Publications

As I mentioned in my last essay, my colleague Chris Cotropia and I have recently completed a data collection project in which we examined pleadings from approximately 1,000 copyright cases filed in federal court over a four-year period. We are still evaluating the data, but our preliminary findings indicate that copyright litigation differs from other federal civil litigation; it takes longer and appears to be contested more – yet ends up in much the same place.

A little background first. During the period we studied (2005-2008), the cases fell into three broad categories. The first comprised those cases in which …

The Top Three Copyright Cases Of 2012, James Gibson

Law Faculty Publications

In my last entry in this series, I examined three important patent law cases from 2012 – one at the Supreme Court level, one at the appellate level, and one at the trial court level. I’ll now do the same thing with regard to copyright cases.

My Supreme Court choice is Golan v. Holder, in which the Court upheld a statute that restored U.S. copyright protection to certain foreign works, thus removing them from the public domain. Such works had lost their protection – or had never acquired it in the first place – because of their failure to comply …

Alienability And Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

Faculty Scholarship

Mahatma Gandhi is revered the world over for his views on freedom and nonviolence – ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly considered to have been a moral idealist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with copyright law – as a writer, editor, and publisher – he routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced understanding of copyright law and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, …

Copyright Infringement Markets, Shyamkrishna Balganesh

Faculty Scholarship

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement – which copyright law grants authors in order to render its exclusive rights operational – has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely consider the possibility of an acquisition or investment market emerging for actionable copyright claims and the advantages that such a market might hold for copyright’s goals, objectives, …

The Uneasy Case Against Copyright Trolls, Shyamkrishna Balganesh

Faculty Scholarship

The copyright troll and the phenomenon of copyright trolling have thus far received surprisingly little attention in discussions of copyright law and policy. A copyright troll refers to an entity that acquires a tailored interest in a copyrighted work with the sole objective of enforcing claims relating to that work against copiers in a zealous and dogmatic manner. Not being a creator, distributor, performer, or indeed user of the protected work, the copyright troll operates entirely in the market for copyright claims. With specialized skills in monitoring and enforcing copyright infringement, the troll is able to lower its litigation costs, …

The Legal Landscape: Session 1, Laura Gasaway, Jane C. Ginsburg, Maria Pallante, Shira Perlmutter, Richard Rudick

Faculty Scholarship

Good morning everybody, and thanks for coming. I’m June Besek, the Executive Director of the Kernochan Center for Law, Media and the Arts, and we are especially grateful to those of you who planned to come in November, and when that was postponed still came today. We really feel very grateful to you. This symposium is on copyright exceptions for libraries and section 108 reform, and we are doing this in cooperation with the U.S. Copyright Office. I thank Maria, Chris and Karen for all the work that they put into this as well. I want to thank our sponsors …

Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Jakobsen Osenga

Law Faculty Publications

Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection ofthe information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that …

Dios Mio: The Kiss Principle Of The Ethical Approach To Copyright And Right Of Publicity Law, Michael D. Murray

Law Faculty Scholarly Articles

To copy or not to copy, to exploit the famous celebrity image or not to exploit it; these are the questions. The message of the modern legal world communicated through multiple voices in the academy is that copying often is perfectly acceptable and even laudable. An artist or designer might conclude that it is both legal and ethical to use whatever you can, use whatever you can get away with, and use it until you get sued for using it. Yet plagiarism in the arts and sciences is nearly universally condemned. This Article proposes an ethical approach to the use …

Pushing Ahead With The Pro Bono Assistance Program, 12 J. Marshall Rev. Intell. Prop. L. 286 (2013), John Calvert

UIC Review of Intellectual Property Law

Lawyers often contribute their time and energy helping the under-resourced through pro bono work, whether because it’s required of them or because of a personal desire to assist those less fortunate. But until 2011, few, if any programs were available for IP Professionals to volunteer their time for patent legal services, leaving them to contribute to areas of law outside their expertise. A group of IP law experts from LegalCORPS and a pro bono program created by the America Invents Act (AIA) has changed that. In this brief Article, John Calvert, author of the AIA provision that created the USPTO …

Patent Portfolio Strategy For The America Invents Act, 12 J. Marshall Rev. Intell. Prop. L. 289 (2013), George Wheeler

UIC Review of Intellectual Property Law

The Leahy-Smith America Invents Act made significant changes to U.S. patent law when it was enacted on September 16, 2011. Some provisions did not immediately take effect, however, and arguably the most important of these delayed provisions are the new rules under section 102 relating to prior art and the transition from a “first to invent” system to a “first inventor to file” system. This Article provides a guide to understanding the new rules relating to prior art and the impact these changes have on patent prosecution. Then, several strategies and techniques are discussed for managing a patent portfolio in …