Intellectual Property Law Commons^™

Resolving The Ip Disconnect For Small Businesses, Leah Chan Grinvald

Scholarly Works

Small businesses are an important component of the American economy. In fact, the jobs created by small businesses could assist the United States in overcoming its most recent economic downturn. Paradoxically, though, the failure rate of small businesses is quite high. Although various factors contribute to this high failure rate, one of the factors the U.S. government has focused on has been the disproportionate impact that intellectual property laws, policies, and their enforcement may have on small businesses. While the U.S. government has paid attention to the impact of domestic intellectual property laws on small businesses, the government has paid …

The Washington Declaration On Intellectual Property And The Public Interest, Sean Flynn

Scholarly Articles in Law Reviews & Journals

The Washington Declaration on Intellectual Property and the Public Interest was drafted at the Inaugural Global Congress on Intellectual Property and the Public Interest. The Inaugural Global Congress convened over 180 experts from 32 countries and six continents to re-articulate the public interest dimension in intellectual property law and policy. The Congress adopted a series of specific recommendations for action by a global network of public interest scholars and advocates, which are expressed below.

One Size Does Not Fit All, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Duration Of Copyright In Audiovisual Works Under Us Copyright Law, Jane C. Ginsburg

Faculty Scholarship

Calculating the duration of US copyright in audiovisual works can be a daunting task, complicated by issues of transitional law spanning the US Copyright Acts of 1909 and 1976 and the latter’s subsequent amendments. Readers with an inclination for complexity will find their tastes amply satisfied when inquiry turns to the questions of private international law that also come into play when foreign audiovisual works are at issue. Gluttons for punishment will further relish addressing the relationship of the duration of copyright in an audiovisual work to the duration of copyright in the underlying literary work on which the film …

The U.S. Proposal For An Intellectual Property Chapter In The Trans-Pacific Partnership Agreement, Sean Flynn, Brook Baker, Margot Kaminski, Jimmy Koo

Scholarly Articles in Law Reviews & Journals

This article takes advantage of the breach in the Trans-Pacific Partnership negotiation’s secrecy to contribute to a new and growing collection of published scholarship on leaked proposals for international intellectual property agreements as they are being negotiated. We begin with the general provisions of the agreement, which define its relationship to the multilateral system. We then progress to analysis of some of the most important copyright, patent and data protection, and enforcement sections of the proposal, before providing some concluding observations. Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests …

Beneficiaries Of Misconduct: A Direct Approach To It Theft, Andrew Popper

Scholarly Articles in Law Reviews & Journals

Stolen information technology (IT) is a domestic and global problem. Theft of IT by upstream producers has a pernicious effect on the competitive market and violates fundamental policies designed to protect those who create and invent such assets. Companies profiting from stolen IT are not just free-riding on the successes of those who design and produce the products and ideas that are a driving force in the U.S. economy – they are destabilizing rational pricing and distorting lawful competition by virtue of outright theft. Current legal recourse is insufficient to address such misconduct; new approaches are needed at the state …

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …

Speaking Of Moral Rights: A Conversation Between Eva E. Subotnik And Jane C. Ginsburg, Jane C. Ginsburg, Eva E. Subotnik

Faculty Scholarship

A transcribed conversation about moral rights in the digital age — in respect of some of the legal and technological developments that have occurred since Professor Jane Ginsburg's 2001 essay, Have Moral Rights Come of (Digital) Age in the United States?, 19 Cardozo Arts & Ent. L. J. 9 (2001).

A New Look At Patent Quality: Relating Patent Prosecution To Validity, Ronald J. Mann, Marian Underweiser

Faculty Scholarship

The article uses two hand‐collected data sets to implement a novel research design for analyzing the precursors to patent quality. Operationalizing patent “quality” as legal validity, the article analyzes the relation between Federal Circuit decisions on patent validity and three sets of data about the patents: quantitative features of the patents themselves, textual analysis of the patent documents, and data collected from the prosecution histories of the patents. The article finds large and statistically significant relations between ex post validity and both textual features of the patents and ex ante aspects of the prosecution history (especially prior art submissions and …

Must Licenses Be Contracts? Consent And Notice In Intellectual Property, Mark R. Patterson

Faculty Scholarship

Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of the lack of clarity is the ill-defined …

Samuel Roth: Discourteous Reprinter, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Giants Among Us, Robin Feldman, Tom Ewing

Faculty Scholarship

No abstract provided.

The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Robin Feldman

Faculty Scholarship

Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …

Better Mistakes In Patent Law, Andres Sawicki

Articles

This Article analyzes patent mistakes-that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones.

Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others.

This Article compares the costs of making mistakes of different types, at …

From Goods To A Good Life: Intellectual Property And Global Justice, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

Most scholarship on intellectual property considers this law from the standpoint of law and economics. Under this conventional wisdom, intellectual property is simply a tool for promoting innovative products, from iPods to R2D2. In this highly original book Madhavi Sunder calls for a richer understanding of intellectual property law’s effects on social and cultural life. Intellectual property does more than incentivize the production of more goods. This law fundamentally affects the ability of citizens to live a good life. Intellectual property law governs the abilities of human beings to make and share culture, and to profit from this enterprise in …

Moral Rights In The U.S.: Still In Need Of A Guardian Ad Litem, Jane C. Ginsburg

Faculty Scholarship

Over ten years ago, in the pages of this Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the U.S. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, U.S. authors’ moral rights remain in their …

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

Opportunity Lost? Revisiting Recordtv V Mediacorp Tv, Warren B. Chik, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Taking the Singapore Court of Appeal’s Decision in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2011] 1 SLR 830, this article seeks to argue that the copyright fair dealing defence would have been the more appropriate basis to exempt RecordTV, a digital recording service for recording television programmes, from primary copyright liability. This judicial approach towards legalising digital video recorder (“DVR”) services is more suitable taking into consideration the following: The role and objectives of copyright law in Singapore; the history and development of the fair dealing defence (including the latest amendments pursuant to the US-Singapore Free Trade …

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

Faculty Scholarship

Courts and scholars today understand and discuss the institution of copyright in wholly instrumental terms. Indeed, given the forms of analysis that they routinely employ, one might be forgiven for thinking that copyright is nothing more than a comprehensive government-administered scheme for encouraging the production of creative expression and is therefore quite legitimately the subject matter of public law. While this instrumental focus may have the beneficial effect of limiting copyright’s unending expansion, it also serves as a source of distraction. It directs attention away from the reality that copyright is fundamentally a creation of the law and is thus …

Culture Andintellectual Property Development In Indonesia, Agus Sardjono

Indonesia Law Review

The conception of Intellectual Property Right (IPR) is generally misunderstood by among common people. In order to obtain a more comprehensive understanding of IPR, we may as well start with the most dominant point of view, namely that from the perspective of the State and Government.This point of view is dominant because the State and Government are the institutions which havethe authority to make law, to implement law and to interpret the law in the various forms of itsimplementation. A study of IPR can be taken from wider view, as cultural perspectivetake the approach of looking at various events related …