Intellectual Property Law Commons^™

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 …

Intergenerational Progress, Brett Frischmann, Mark P. Mckenna

Journal Articles

This Essay prepared for the Wisconsin Law Review’s symposium on Intergenerational Equity lays the groundwork for a broader understanding of the goals of IP law in the United States by arguing that there is room for a normative commitment to intergenerational justice. First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress; courts’ and scholars’ overwhelming …

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …

Impartial Patents, Clarisa Long

Faculty Scholarship

Over the past decade or more, a rising sense of dissatisfaction with patent law has begun to creep across the patent community. A number of factors no doubt have contributed to this sense of dissatisfaction, among them the perception that patents are too often being enforced by “trolls” (if you don’t like them) or “nonpracticing entities” (if you want to remain neutral). Professor Parchomovsky and Mr. Mattioli propose a solution in which they create two new forms of patent protection that they call “quasi-patents” and “semi-patents” – or generically, “partial patents.” Partial patents are designed to be cheaper to obtain …

The Elephantine Google Books Settlement, James Grimmelmann

Cornell Law Faculty Publications

The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.

In this essay, I argue for the critical importance of …

Overcoming The "Impossible Issue" Of Nonobviousness In Design Patents, Janice M. Mueller, Daniel Harris Brean

Kentucky Law Journal

No abstract provided.

Masthead, Volume 2 Issue 1 (2011)

Journal of Law, Technology, & the Internet

No abstract provided.

Pay Per Click: Keyword Advertising And The Search For Limitations Of Online Trademark Infringement Liability, Thomas H. Watson

Journal of Law, Technology, & the Internet

No abstract provided.

Masthead, Volume 2 Issue 2 (2011)

Journal of Law, Technology, & the Internet

No abstract provided.

Masthead, Volume 3 Issue 1 (2011)

Journal of Law, Technology, & the Internet

No abstract provided.

When Everyone Is The Judge's Pal: Facebook Friendship And The Appearance Of Impropriety Standard, Daniel Smith

Journal of Law, Technology, & the Internet

No abstract provided.

Volume 2 Issue 1 (2011), Journal Of Law, Technology, & The Internet

Journal of Law, Technology, & the Internet

No abstract provided.