Intellectual Property Law Commons^™

Access To Digital Information: Gift Or Right?, Margaret Ann Wilkinson

Law Publications

The 21st century started with a bang, at least from the perspective of the widespread adoption of information technologies, and market hype for overvalued technology stock. There was a second bang shortly afterwards, when the bubble burst. We are now entering a period of greater stability for the appreciation of information technology in society, as well as sustained development, albeit in a financial environment that has become uncertain. This collection of essays addresses some of the issues that face our society in deciding how best to handle access to, and monopolies over, knowledge. It includes detailed examination of the social, …

The Ncaa And The Right Of Publicity: How The O'Bannon/Keller Case May Finally Level The Playing Field, Julia Brighton

UC Law SF Communications and Entertainment Journal

This note explores the potential impact of litigation pending against the National Collegiate Athletic Association ("NCAA"), the national governing body that.oversees college sports. The NCAA and its licensing partners make enormous profits from the sale of collegiate-branded merchandise. College athletes, on the other hand, are prevented from making money from commercial use of their names and likenesses by the NCAA's strict rules regarding amateurism. Former collegiate stars Ed O'Bannon and Sam Keller have accused the NCAA of profiting beyond the bounds of fairness by securing for itself and its member universities the exclusive right to all of the proceeds from …

I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, Lucille A. Jewel

UC Law SF Communications and Entertainment Journal

The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based "participatory culture" where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go "viral," in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who …

Cultural Losses And Cultural Gains: Ethical Dilemmas In Wwii-Looted Art Repatriation Claims Against Public Institutions, Erin L. Thompson

UC Law SF Communications and Entertainment Journal

Alongside their campaign of physically exterminating the Jewish population of Europe, the Nazis carried out a highly organized plan of cultural genocide which involved the confiscation or forced sale of hundreds of thousands of pieces of art. Although a sizable number of these works were returned to their owners or their heirs by the Allied forces after the war, many disappeared into the hands of private possessors. Many remain hidden in private collections, but a number of these artworks were given to or purchased by museums or other public institutions. In recent decades, the heirs of Holocaust victims have been …

Is Your Furniture Spying On You?: Covert Use Of Gps In Advertising, Brandy Worden

UC Law SF Communications and Entertainment Journal

Advancements in technology have been paired with advertising. The result is personalized, but at times intrusive, advertising tactics. The Note uses an advertising campaign titled "The Real Good Experiment" ("the Experiment") as a case study to examine how advertising invades our personal spheres, and also how the legal framework should be fortified to protect consumer privacy.

The subjects of the Experiment brought furniture that had been seemingly abandoned into their homes only to later discover that the furniture had GPS devices hidden within them. The Note considers various categories of legal protection available when advertising invades consumer privacy. The Note …

Effective Reader Privacy For Electronic Books: A Proposal, Jennifer Elmore

UC Law SF Communications and Entertainment Journal

Historically, reader privacy has been heavily protected in the United States. Numerous library laws, bookstore laws, and Supreme Court opinions have affirmed and upheld reader privacy for traditional paper books. However, electronic readers and electronic books are becoming increasingly popular. These new devices are undoubtedly beneficial; however, with this new technology comes increased privacy concerns. The electronic format allows the reading and purchasing habits of consumers to be tracked in a way that was formerly impossible with traditional books. Electronic readers often track which books are purchased, which pages are read, and more. Additionally, the laws that apply to traditional …

File Sharing Is Dead! Long Live File Sharing! Recent Developments In The Law Of Secondary Liability For Copyright Infringement, Christian E. Mammen

UC Law SF Communications and Entertainment Journal

In the past several years, courts have issued a number of rulings on the issue of online service providers' secondary liability for copyright infringement in connection with online file sharing. Overall, it appears that the larger, more established providers who "play fair" with content owners tend to fare better than brasher, more rebellious providers. Is this correct because more rebellious providers are guiltier than the established ones? Or is there a double standard at play? Could the brash, rebellious "bad guys" ever win the protection of the safe harbor? It is difficult to make a direct apples-to-apples comparison, because each …

Facebook And Social Networks: The Government’S Newest Playground For Information And The Laws That Haven’T Quite Kept Pace, Danielle Levine

UC Law SF Communications and Entertainment Journal

With the rise of social networking sites such as Facebook, individuals are sharing information about themselves at alarming rates. With such copious amounts of personal information on the Internet, it is unsurprising that the government is using social networking sites to gain access to data for use in criminal investigations and prosecutions. This paper examines the ways in which social networking sites and the government's search for information collide. Part I looks at Facebook and discusses the ways the government has used Facebook and similar social networking sites in its investigations. Part II outlines the statutory framework through which the …

The Impact Of The Biosimilars Provision Of The Health Care Reform Bill On Innovation Investments, 10 J. Marshall Rev. Intell. Prop. L. 553 (2011), Katherine N. Addison

UIC Review of Intellectual Property Law

The Biologics Price Competition and Innovation Act of 2009 provides an abbreviated FDA approval pathway for biosimilars. The passage of this biosimilar legislation is a positive step toward retaining a robust biotechnology industry in the United States while also protecting innovators. The Act’s increased FDA exclusivity is welcome, but FDA exclusivity alone is insufficient to encourage and protect innovation and investment in biosimilars. Instead, the exclusivity provided by a patent term, together with the ability to adjust this term to compensate an applicant for U.S. Patent and Trademark Office and FDA delays, is necessary to ensure development of highly specialized …

Caveat Bibliotheca: The First Sale Doctrine And The Future Of Libraries After Omega V. Costco, 11 J. Marshall Rev. Intell. Prop. L. 414 (2011), Thomas J. Bacon

UIC Review of Intellectual Property Law

Having discovered that several of its watches, which were manufactured in Europe, were imported into the United States and sold without authorization, Omega, S.A. ("Omega") commenced an action against Costco Wholesale Corp. in 2005. These watches are a typical example of what are referred to either as parallel imports or gray market goods. In finding for Omega, the Ninth Circuit held that the first sale doctrine does not apply to goods created or produced outside the United States. Such a rule, however, poses grave problems for libraries, in that circulation materials are not required to have a place of manufacture …

Nature Or Nurture: Is There A Case Basis For A Judicially Created ‘Product Of Nature’ Exclusion? Are Genes Somehow Different?, 11 J Marshall Rev. Intell. Prop. L. 318 (2011), W. Lesser

UIC Review of Intellectual Property Law

The Myriad Genetics decision has rekindled the product of nature debate. This article analyzes legal decisions spanning the past century for products ranging from plants to man-made elements, which in sum provide guidance to the patentability of genes. The product of nature argument it is concluded confuses rather than clarifies patentability considerations. Patentability in the evaluated cases as well as for genes can be resolved more precisely under the utility, non-obviousness, disclosure, and enablement patentability requirements without a need for any additional judicially-created stipulation. As regards genes, there is an additional dimension for consideration which in the case law and …

The Conditional Sale Doctrine In A Post-Quanta World And Its Implications On Modern Licensing Agreements, 11 J. Marshall Rev. Intell. Prop. L. 295 (2011), William Lafuze, Justin Chen, Lavonne Burke

UIC Review of Intellectual Property Law

The exclusive rights of a patent owner to exclude others from making, using, or selling patented inventions are limited by the doctrine of patent exhaustion. This doctrine, also known as the first sale doctrine, states that upon the first authorized sale of a patented article in the United States, the article is removed from the patent monopoly, thus losing its patent protection. As a result of this first sale, any subsequent use or sale of the patented article is not an infringement of its corresponding patent. The Federal Circuit further established the conditional sale doctrine in Mallinckrodt, Inc. v. Medipart, …

The Throw Down Over Takedowns: An Analysis Of The Lenz Interpretation Of 17 U.S.C. § 512(F), 10 J. Marshall Rev. Intell. Prop. L. 792 (2011), Ian Rubenstrunk

UIC Review of Intellectual Property Law

Recently, a YouTube user and mother of two, Stephanie Lenz, filed a lawsuit against Universal Music Corporation which had the potential for broad impact on the internet. Everyone from politicians, to teachers, to musical artists could have gained more protection of their rights as internet users. With millions of people having access to the internet and YouTube “vloggers” reaching the million mark in subscribers, the court’s interpretation of 17 U.S.C. § 512(f) could have had a significant impact. The issue in the case was what “any damages” meant in a clause creating liability for a party that incorrectly has material …

Right Of Publicity: Is Behavioral Targeting Violating The Right To Control Your Identity Online?, 10 J. Marshall Rev. Intell. Prop. L. 811 (2011), Andrea Stein Fuelleman

UIC Review of Intellectual Property Law

Behavioral targeting (“BT”) is an advertising technique that receives a great deal of attention due in part to the balkanized self-regulatory policies that address consumer protection issues. The majority of the self-regulation policies, including the BT principles proposed by the Federal Trade Commission (“FTC”) focus on privacy issues but fail to discuss the impact BT may have on the right to control the commercial use of one’s identity. In discussing the right of publicity, many legal scholars agree that everyone has a right to control the commercial use of his or her identity, regardless of his or her status as …

Protecting The Gates Of Reasonable Royalty: A Damages Framework For Patent Infringement Cases, 11 J. Marshall Rev. Intell. Prop. L. 192 (2011), Merritt J. Hasbrouck

UIC Review of Intellectual Property Law

The reasonable royalty analysis in patent infringement cases remains confusing to juries because of the numerous and arbitrary methods of calculation. The use of confusing methodologies, such as the Georgia-Pacific analysis, the Entire Market Value Rule, and the former 25 percent rule, increase the risk of overcompensating patentees in patent infringement cases. Without suitable changes to the reasonable royalty analysis, damages award amounts will continue to increasingly undermine the incentive for subsequent inventors to create new products. Although the courts have had some success in establishing new methods, Congress should create a more rigid and clear test for use in …

Towards Symmetry In The Law Of Branding, Rebecca Tushnet

Fordham Intellectual Property, Media and Entertainment Law Journal

Companies sometimes want to abandon an old identity and rebrand with a new one. Trademark law probably does not have much to say about rebranding in itself. But we should be careful about how we think about rebranding and other undisclosed source relationships because, if not handled properly, law’s recognition of such techniques could end up reinforcing trademark owners’ ability to deter competition and control free speech.

Commercial Or Advertising Purpose Under Florida Statutes Section 540.08 Demystified, Michael L. Richmond

Faculty Scholarship

No abstract provided.

Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …

Copyright In Memoriam, Julie C. Young

Vanderbilt Journal of Entertainment & Technology Law

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision "Gaylord v. United States" addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author's rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain. …

Acta's State Of Play: Looking Beyond Transparency, Michael Geist

American University International Law Review

No abstract provided.