Intellectual Property Law Commons^™

Algorithmic Financial Regulation: Limits Of Computing Complex Adaptive Systems, Shuping Li

American University Business Law Review

This article examines the potential of and limits to the use of machine learning for financial regulation. Ideally, if we could fully understand the financial system and agree on long- and short-term regulatory goals, we would be able to write code that carries out the computation that extracts proper representations from the data and makes correct regulatory decisions. We cannot do this yet because of limited sources of data, the bias brought by human beings and algorithmic models, and the difficulty of improving uninterpretable models. Furthermore, since law is a combination of merits and facts, there are difficulties in establishing …

Constructing Solutions: Addressing Liability And Ownership Risks Associated With Business Information Modeling, Connor Sheehy

American University Business Law Review

This Comment will first discuss the background of BIM, including its technological characteristics and implementation into a complex construction project, as well as the potential benefits that incentivize parties to utilize BIM in a project. Next, this Comment will discuss the legal risks and uncertainty associated with BIM, particularly regarding ownership and liability. Specifically, this Comment will focus on ownership of the intellectual property and designs within an overall model and will contrast liability in traditional construction projects with liability in a construction project utilizing BIM. Lastly, this Comment will discuss potential solutions to these risks and uncertainties. The analysis …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

Infringement Episodes, Shani Shisha

Faculty Journal Articles and Book Chapters

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, …

Conjuring The Flag: The Problem Of Implied Government Endorsements, Michael Mattioli

Articles by Maurer Faculty

This Article exposes a harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze hundreds of ads across multiple media formats, this Article offers the first comprehensive analysis of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the examples examined show that patents are mentioned frequently in …

The Tensions Between Copyright And The Public Domain: How Canada Can Combat The Effects Of Cusma, Jane Macmillan

Canada-United States Law Journal

No abstract provided.

I Want A New (Generic) Drug: A Comparative Case For Shifting U.S. Generic Drug Policies To Increase Availability And Lower Healthcare Costs, Immer S. Chriswell

Northwestern Journal of International Law & Business

Enacted in 1984, Hatch-Waxman was intended to increase generic drug availability and make critical healthcare more affordable for Americans. In the nearly forty years following, while it has increased availability of drugs, it has also allowed drug originators to create avenues to profit in ways not intended when the original compromise was struck, undermining its success. Moreover, given a weak antitrust standard against reverse settlement payments proscribed in Actavis, the U.S. faces a dilemma to further improve access to generic medications in the future. The E.U.’s approach to generic drugs, while presently geographically fragmented, is simpler and has a clear …

Fair Use V. Free Use: A Comparative Study Of American And Russian Copyright Exemptions, Eduard Bershitskiy

LL.M. Essays & Theses

Many U.S. lawyers are under the well-deserved, but still not entirely accurate, impression that copyright infringement in Russia is a huge free-for-all. This comparative paper, which juxtaposes Russian and American copyright exemptions, seeks to partially refute that skeptic view by showing that, in fact, Russian copyright law has developed a relatively coherent system of exceptions and limitations to exclusive rights. This paper begins with a brief overview of Russian copyright law and general remarks on its exemptions. It then focuses on statutory and, where appropriate, case-law comparison of particular copyright exemptions in the Part 4 of the Russian Civil Code …

Desettling Fixation, Emily T. Behzadi Cárdenas

Faculty Scholarship

Scholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is …

Impossibility Of Artificial Inventors, Matt Blaszczyk

Fellow, Adjunct, Lecturer, and Research Scholar Works

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans in …

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

Cross-Border Data Regulatory Frameworks: Opportunities, Challenges, And A Future- Forward Agenda, Andrew D. Mitchell, Neha Mishra

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article evaluates the existing regulatory framework for cross-border data flows across Bahrain, Djibouti, Jordan, Kuwait, Morocco, Nigeria, Oman, Pakistan, Rwanda, and Saudi Arabia. A common factor among these countries is that they are members of the Digital Cooperation Organization (“DCO”). It considers how these countries have devised laws, regulations, and policies on cross-border data flows to enable digital trade, and how these instruments promote the growth of a robust digital economy, both domestically and internationally. The Article then offers policy recommendations for DCO members to consider in developing relevant laws and regulations on data flows.

These …

Anti-Drag Laws And Free Speech: The First Amendment Case For Protecting Drag, Dr. Joel Timmer

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2023, there were six federal court cases involving anti-drag laws or government denials of permission to hold drag shows on public property. All but one of these cases concluded that drag shows constituted expressive conduct protected by the First Amendment. Four of the cases involved challenges to recently enacted anti-drag laws, and in each of those cases, the courts found the laws to violate the First Amendment on multiple grounds, including not being narrowly tailored to achieve their purpose, as well as being vague and overbroad. However, one court, ruling on a denial of permission to …

Minecraft As A Teaching Tool: Online Experiential Learning For The Law School Classroom, Maria Jose Schmidt-Kessen, Stina Teilmann-Lock, Florence Villesèche, Andrea Wallace

Fordham Intellectual Property, Media and Entertainment Law Journal

The Article explores the potential use of Minecraft for experiential learning in higher education. In theory and in practice, intellectual property (IP) questions increasingly arise around if or how digital art can be owned, shared, and reused, as well as how digital realities interact with the various legal regimes. In its sandbox environment, Minecraft allows players to explore these questions through collective co-creation and creative decision-making pertaining to the subsequent re-use of their digital creations. Players become better equipped to reflect on the process of copying, creating, and exploiting their digital creations using the legal tools offered by IP law, …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …