Intellectual Property Law Commons^™

When Foreigners Infringe Patents: An Empirical Look At The Involvement Of Foreign Defendants In Patent Litigation In The U.S., Marketa Trimble

Scholarly Works

This paper presents results from a multiple-year project concerned with the involvement of foreign (non-U.S.) entities in U.S. patent litigation. A comparison of data from 2004 and 2009 that cover 5,407 patent cases filed in U.S. federal district courts in those two years evidences an increase in the number of cases involving foreign defendants, and thus an increasing potential for cross-border enforcement problems. With this basic finding the research supports the proposition advanced by a number of intellectual property scholars in the U.S. and abroad that rules need to be established to facilitate a smooth process for recognition and enforcement …

From Whether To How: The Challenge Of Implementing A Full Public Performance Right In Sound Recordings, Mary Lafrance

Scholarly Works

The policy debate surrounding a public performance right in sound recordings has been well rehearsed for over 40 years. Despite increasingly strong arguments favoring the right, the political will has materialized slowly. The proposed Performance Rights Act (PRA) is the next incremental step. However, because it is limited to broadcast performances, it does not address performances in dispersed public venues (clubs, stores, bars, restaurants, noncommercial settings, and other venues where recorded music is played) as well as unique situations such as ringtones (which may or may not be public performances, pending further legislation or litigation).

Because it falls short of …

Intellectual Property, Innovation, And The Future: Toward A Better Model For Educating Leaders In Intellectual Property Law, Robert W. Gomulkiewicz

Articles

Intellectual property (IP) sits at the center of the global economy. Today, producers and users of intellectual property come from both developed and developing nations. Intellectual property matters as much to China and India as it does to Germany and the United States. This reality has driven a monumental demand for lawyers who have expertise in intellectual property law. These lawyers are the new leaders in intellectual property law.

The global demand for intellectual property law-trained lawyers triggered a "big bang" in the creation of advanced intellectual property law programs (IP Programs) at American law schools. The new leaders in …

The "Three Strikes" Policy In Korean Copyright Act 2009: Safe Or Out?, Sun-Young Moon, Daeup Kim

Washington Journal of Law, Technology & Arts

Korea has grown to be one of the Internet powers in a short period. Because of insufficient copyright protection, Korea recently revised the Korean Copyright Act to reinforce protection of copyright and promote sound distribution of copyrighted works. The new law allows the Minister of Culture, Sports and Tourism to issue orders and the Korea Copyright Commission to issue recommendations. Orders and recommendations are distinguished by the subject of the issuance and the legal force. Orders and recommendations enable online service providers to delete or stop transmission of illegal reproductions, give warning notices to infringers, or suspend the account of …

Collective Rights Licensing For Internet Downloads And Streams: Would It Properly Compensate Rights Holders, Steven Masur

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

New Business Models For Music, Henry H., Perritt Jr.

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Raising The Bar And The Public Interest: On Prior Restraints, Traditional Contours, And Constitutionalizing Preliminary Injunctions In Copyright Law, John M. Newman

Articles

No abstract provided.

Brand Renegades, Jeremy N. Sheff

Faculty Publications

Recent appearances of trademarks in popular culture-in rap lyrics, on reality TV shows, even in youth riots have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners' control.

The Ethics Of Unbranding, Jeremy N. Sheff

Faculty Publications

This Essay explores the ethical implications of the phenomenon of "unbranding" that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding …

A Trade Secret Approach To Protecting Traditional Knowledge, Deepa Varadarajan

Faculty Publications

This Article argues that the doctrinal and normative divide between traditional knowledge protection and intellectual property law has been overemphasized, and that trade secret law can help narrow it. First, in terms of doctrinal fit, trade secret doctrine offers a viable model for protecting a subset of traditional knowledge that is not already publicly available. Broadly speaking, trade secret law imposes liability for the wrongful acquisition, use, or disclosure of valuable information that is the subject of reasonable secrecy efforts. Second, in addition to its practical import, the underlying justifications of trade secret law offer a useful normative guide for …

Originality Proxies: Toward A Theory Of Copyright And Creativity, Eva E. Subotnik

Faculty Publications

This article contends that a definitive account of originality as a legal construct is not possible and that, as a result, the current low threshold for originality should be maintained. Under this analysis, most photographs, so long as they comply with certain requirements, should be granted protection, at the very least, against exact copying (for example, through digital copying and pasting). Arriving at this conclusion, however, requires a return to first principles, that is, to the copyright concepts of authorship and originality. These concepts saw their most recent articulation by the Supreme Court in the 1991 landmark decision of Feist …

Biasing Brands, Jeremy N. Sheff

Faculty Publications

The dominant search-costs model of trademark law posits that consumers choose products to satisfy their preferences by analytically mapping those preferences to product information that trademarks efficiently provide. This Article tests these descriptive claims against empirical and theoretical research in marketing and consumer psychology, particularly the concept of "brand equity": the value to a firm or its customers of a brand and of the firm's efforts to build and maintain that brand.

Internally complex brand equity models, juxtaposed with empirical findings in related psychology and marketing research, challenge the descriptive accuracy of the search-costs model. In particular, branding efforts can …

A Right Is Born: Celebrity, Property, And Postmodern Lawmaking, Mark Bartholomew

Journal Articles

This Article challenges the standard account of the creation of the right of publicity. In the legal literature, the prevailing narrative is of the right of publicity being intimately linked to the commodification of celebrity. Ultimately, however, there is more to the story of the right of publicity than the decision to protect something of economic value. It took decades after it had become clear that celebrities could be valuable commercial spokespersons for lawmakers to agree to make the right inheritable, separate from the dignitary right of privacy, and potentially applicable to any economic, secondary use that invoked the celebrity …

"Capital" Punishment: Evaluating An Investor's Secondary Copyright Infringement Liability After Veoh, James L. Proctor Jr.

Washington Journal of Law, Technology & Arts

In UMG Recordings, Inc. v. Veoh Networks, Inc., the U.S. District Court for the Central District of California considered claims that investors in a privately-held corpor-ation were secondarily liable for copyright infringement. The Veoh court findings, which set out current secondary copy-right infringement law, provide guidance for investors by clarifying their potential liability for copyright infringement committed by the company in which they invested. However, because the decision was fact-specific, this guidance is incomplete. For example, the court found that the investor neither controlled the infringing activities nor reaped direct financial benefit from them. This leaves open for further …

Exportability's Effect On Process Patent Enforcement: Why § 271(F) Export Restrictions Do Not Apply To Intangible Process Claims, Homer Yang-Hsien Hsu

Washington Journal of Law, Technology & Arts

Congress enacted 35 U.S.C. § 271(f) to broaden U.S. patent protection and prohibit shipping patented devices in smaller components for assembly overseas. Section 271(f) creates an infringement cause of action for sending comp-onents outside the United States for assembly. Whether § 271(f)—which clearly applies to physical things—also applies to process claims has been hotly debated. In Cardiac Pacemakers, Inc. v. St. Jude Med Inc., the United States Court of Appeals for the Federal Circuit held that § 271(f) does not apply to process claims because a compo-nent of a process claim is an intangible step that cannot be physically …

How Much Is Too Much? Copyright Protection Of Short Portions Of Text In The United States And European Union After Infopaq International A/S V. Danske Dagblades, Connor Moran

Washington Journal of Law, Technology & Arts

The recent case Infopaq International A/S v. Danske Dagblades Forening decided by the Court of Justice for the European Union could influence businesses that summarize or aggregate content. Under this ruling, excerpts of copy-righted material unproblematic in the United States could invite liability if reproduced in European Union member states. In the United States, copying words or phrases only infringes a copyright where those words or phrases are particularly unique or core to the original work. By contrast, the European Union Information Society Directive provides an exclusive right to even partial reproductions. In the Infopaq case, the European Court of …

Contracting Away Copyright Privileges, James Gibson

Law Faculty Publications

In copyright class, professors usually spend most of their time explaining the “public law” aspects of copyright – the exclusive rights that the law gives copyright holders (e.g., reproduction and public performance) and the privileges that the law gives to those who use copyrighted goods (e.g., fair use and first sale). But as they and their students know, many everyday encounters with copyrighted goods are governed not by this public law, but by the “private law” that sellers and buyers create through contracts.

Software provides the best example. If you somehow managed to legally purchase and install a computer program …

Book Review Of Intellectual Property And Human Development: Current Trends And Future Scenarios, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Copyright As Property In The Post-Industrial Economy: A Research Agenda, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The incentives-for-authors formulation of copyright’s purpose is so deeply ingrained in our discourse and our thought processes that it is astonishingly hard to avoid invoking, even when one is consciously trying not to do so. Yet avoiding that formulation is exactly what we ought to be doing. Everything we know about creativity and creative processes suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. And the choice of copyright as a principal means …

Fulfilling The Copyright Social Justice Promise: Digitizing Textual Information, Lateef Mtima, Steven D. Jamar

NYLS Law Review

No abstract provided.