Intellectual Property Law Commons^™

Batok In The East, Aloha In The West: Intellectual Property Protections Of Indigenous Peoples In The Philippines And United States, Maria Regina Martinez

University of San Francisco Law Review

No abstract provided.

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva E. Subotnik

Faculty Publications

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work." It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

An Empirical Evaluation Of The Trademark Modernization Act, Jeremy N. Sheff

Faculty Publications

The Trademark Modernization Act of 2020 (TMA) created two new forms of administrative proceedings designed to clear spurious trademarks from the federal register. Congress’s hope for these new proceedings was that they would “respond to concerns that registrations persist on the trademark register despite a registrant not having made proper use of the mark covered by the registration” by “allow[ing] for more efficient, and less costly and time consuming” means of removing them. This Article subjects that policy to empirical examination, disclosing and analyzing a newly constructed dataset covering the dockets of all TMA proceedings (and petitions for proceedings) to …

Towards Fda–Uspto Cooperation, John R. Thomas

Georgetown Law Faculty Publications and Other Works

The Food and Drug Administration (“FDA”) and U.S. Patent and Trademark Office (“USPTO”) play complementary roles in driving pharmaceutical innovation. Yet, for the most part, the agencies conduct their affairs without regard for one another. Recent calls for a “whole of government” approach to reduce this departmentalism have led to only modest initiatives. Collectively, the FDA and USPTO have announced mandates that they have no intention of enforcing; conducted cross- training in topics that their employees will most likely never use; and resisted proposed legislation that would formalize their relationship.

Current agency intransigence represents a lost opportunity to further the …

Intellectual Property And The Myth Of Nonrivalry, James Y. Stern

Faculty Publications

The concept of rivalry is central to modern accounts of property. When one person’s use of a resource is incompatible with another’s, a system of rights to determine its use may be necessary. It is commonly asserted, however, that informational goods like inventions and expressive works are nonrivalrous and that intellectual property rights must therefore be subject to special limitation, if they should even exist at all.

This Article examines the idea of rivalry more closely and makes a series of claims about the analysis of rivalrousness for purposes of such arguments. Within that framework, it argues that rivalry should …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Content Moderation On End-To-End Encrypted Systems: A Legal Analysis, Charles Duan, James Grimmelmann

Scholarly Articles in Law Reviews & Journals

Online messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.

Computer science researchers have responded to …

Committed To Copyright's Constitutional Role, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Who is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order.

Patient Access To At-Home Health Care Device Data Toward A Legal Framework, Charles Duan, Christopher J. Morten

Contributions to Books

No abstract provided.

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Journal of Law, Technology, & the Internet

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

The Law Of The New Musical Author, Eyal Brook

Cardozo Arts & Entertainment Law Journal

The process of musical creation has been transformed materially in the Digital Age due to technological developments, both regarding the technologies for making music and regarding novel stylistic developments. New musical practices, based on novel technology, afford entirely new modes of creative authorship. The effects of such shifts have redefined the nature of music and the role of musicians in fundamental ways. This article opens a new debate regarding the identity ofthe new musical author and the changes to the musical creative process.

As such changes have impacted the musical creative process, there are necessary changes required to adapt the …

Governing Generative Ai, Daryl Lim

Faculty Scholarship

This Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as …

Dance Like Everyone Is Watching: Why Tiktok Choreography And Copyright Aren't In Sync, Roseanne Planker

Cardozo Arts & Entertainment Law Journal

The note argues that viral dances on platforms like TikTok should not be protected under the U.S. Copyright Act due to their ephemeral nature, social functionality, and the incompatibility of copyright's exclusivity with the viral dissemination process. It advocates for statutory reforms to ensure fair compensation and attribution for creators, proposing that platforms like TikTok be held accountable for these protections, similar to the EU's Copyright Directive. The analysis emphasizes the need for new legal frameworks to address the unique challenges of viral choreography, balancing artistic progress and creator rights.