Intellectual Property Law Commons^™

The Power Of Local: Nearby Innovators Dominate Patented Technology Development, Richard Gruner

Northwestern Journal of Technology and Intellectual Property

Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

Jury-Related Errors In Copyright, Zahr K. Said

Indiana Law Journal

Copyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing. Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the …

United States Geological Survey Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (April 2023)

Copyright, Fair Use, Scholarly Communication, etc.

USGS response to OSTP memo, 2022: Public Access Plan (April 2023)

Korea’S 2011 Copyright Act Amendments And Innovation By Online Service Providers, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

In 2011, Korea amended its Copyright Act to comply with the U.S.-Korea Free Trade Agreement’s intellectual property chapter, which included an obligation to enact a safe harbor for secondary copyright infringement in the online environment. Safe harbors protect internet firms from legal liability when their users post infringing content online, on the condition that the firms maintain a system to efficiently remove infringing content when notified of the infringement by rightholders.

This paper tests whether the newly established safe harbors had an impact on innovation by Korean internet firms. I hypothesize that the amendments alleviated litigation risks faced by internet …

The Free Exercise Of Copyright Behind Bars, Viva R. Moffat

Washington and Lee Law Review

People in prison produce vast amounts of creative and expressive work—from paintings and sculptures to essays, novels, music, and NFTs—but they are rarely described as artists and their work is often not described as “art.” Prisoners also do not regularly take advantage of copyright law, the primary form of protection for creative works. They should.

Copyright provides a strong set of rights that combines strains of free expression values with elements of property rights. Copyright confers dignitary and expressive benefits and, for some creators, financial rewards. As such, copyright can be a tool to help prisoners improve their lives, both …

The Ai Quid Pro Quo Problem: Suggesting A Framework For Patents Involving Artificial Intelligence-Assisted Or -Created Inventions, Daniel Wicklund

William & Mary Business Law Review

Innovation involving artificial intelligence (AI) is rapidly expanding and diffusing into other areas of technology. Additionally, inventors have been using AI to assist in new technology for quite a while and have likely received patents from the United States Patent and Trademark Office (USPTO or “Office”) for their inventions without disclosing the AI involved in the patentable subject matter. As AI has become increasingly present in the implementation of new technology, the question of whether an AI can be an inventor has arisen. In Thaler v. Iancu and on appeal, the courts have affirmatively said no. However, this decision implicates …

No Equitable Relief: The Failings Of The Case Act To Protect Middle-Class Creatives From Copyright Infringement, Eliza James Unrein

William & Mary Business Law Review

Copyright law in the United States incentivizes creative activity for the public benefit by granting creators an exclusive right to control their original works. Many individuals and small businesses rely on this right and the protection of copyright law to build their reputations as artists, create a market for their work, and secure a livelihood for themselves and their families. When someone violates this right and infringes on these individuals’ and small businesses’ copyrights, the forum for seeking redress and preventing future infringement is a lawsuit in federal court. But bringing a copyright infringement claim in federal court is expensive. …

A Comparative Case Against Criminalizing Ip Infringements In The Uk And China, Dennis J. Baker, Xiaoxiao Wang

Cardozo International & Comparative Law Review

In this Article, it is argued comparatively that across the world intellectual property rights have been expanded to the point of absurdity. Beyond lengthy monopoly protections being backed up with prison sentences of up to ten years in both China and the UK, these monopolies have been extended in the UK to cover vague concepts such as publicity rights and performance rights. It is argued that due to the incredible lobbying power of Western multinational corporations, China was railroaded into enacting Western-style offenses in order to join the WTO. It is submitted that numerous economic studies have shown that intellectual …

The Future Of Property, Yael R. Lifshitz, Maytal Gilboa, Yotam Kaplan

Cardozo Law Review

Property law focuses predominantly on spatial conflicts of interest between neighbors but neglects temporal conflicts between generations. This lack of attention to the temporal dimension leads to a troubling mismatch in property law: while property rights last forever, the corresponding duties that require property holders to respect the interests of others are remarkably short lived. The result is that property law currently does not adequately protect the rights of future generations. In this Article, we offer a blueprint for correcting this anomaly. We advocate a change in the current conception of property and propose that property law focus more on …

Native American Intellectual Property Protection: Altering Federal Ip Law And The Indian Arts And Crafts Act To Aid Tribal Economic Development, Trey V. Perez

American Indian Law Journal

Native Americans tribes remain subject to an epidemic of poverty. Although tribal gaming has provided relief and a method of economic development for some groups, other tribes are unable to employ gaming to bring in revenue and grow out of poverty. One method to assist tribes that cannot use tribal gaming could be amending federal intellectual property law to better suit tribes needs and allowing them to better exploit the billion-dollar Native American arts and crafts industry.

Moreover, tribes are able to determine which artists qualify as “Indian” under the Indian Arts and Crafts Act, which leaves individual artists subject …

Discovering Ebay's Impact On Copyright Injunctions Through Empirical Evidence, Matthew Sag, Pamela Samuelson

William & Mary Law Review

This Article reports on new empirical evidence discrediting the widely held view that judges have resisted applying the Supreme Court’s teachings in eBay Inc. v. MercExchange, L.L.C. about injunctive relief in copyright cases. That 2006 patent law decision ruled that courts should not automatically issue injunctions upon a finding of infringement; instead, plaintiffs must prove their entitlement to injunctive relief. eBay had a seismic impact on patent litigation and greatly reduced the threat that small infringements could be leveraged into billion-dollar settlements. Yet prior empirical work, at least one major copyright law treatise, and many articles assert that eBay had …

Three Megatrends In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the Paris and Berne Conventions, the international intellectual property regime has encountered two world wars, struggled with several global pandemics, welcomed dozens of newly independent nations and interacted with a wide variety of technologies and innovative practices. Although this regime progressed only slowly for the larger part of its first century, it saw major transformation in the past four decades, including the adoption of the WTO TRIPS Agreement.

Written in commemoration of the centennial of the American Branch of the International Law Association, this article identifies three megatrends to illuminate the magnitude and ramifications of such …

Now On Display: In-Line Linking In The Age Of The Server Test, Sonia Autret

Fordham Law Review

In 2007, the U.S. Court of Appeals for the Ninth Circuit adopted a new interpretation of 17 U.S.C. § 106(5), which codifies the display right of the Copyright Act of 1976. In Perfect 10 v. Amazon.com, the Ninth Circuit read § 106(5) to mean that creative works made visible on web pages through in-line linking, an architectural pillar of modern web design, would not infringe on a copyright owner’s display right if the work was not actually copied onto the website’s server. Since its adoption, this approach—known as the Server Test—has been lauded by search engine providers and web …

Oil, Indifference, And Displacement: An Indigenous Community Submerged And Tribal Relocation In The 21st Century, Jared Munster

American Indian Law Journal

Coastal land loss driven by erosion and subsidence, and amplified by climate change, has forced the abandonment and resettlement of the remote Louisiana Indigenous community of Isle de Jean Charles. This relocation, to a relatively ‘safer’ site inland has led to division among the residents and will inevitably cause irreparable damage to the culture and traditions of the Houma and Biloxi Chitimacha Confederation of Muskogees peoples who called this small, isolated island home. Driven to the water’s edge by European colonization of south Louisiana, this community developed a dynamic subsistence lifestyle based on agriculture, hunting, and fishing which survived undisturbed …

Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs …

Ithaka S+R Us Library Survey 2022: Navigating The New Normal, Ioana G. Hulbert

Copyright, Fair Use, Scholarly Communication, etc.

The Ithaka S+R Library Survey has examined leadership and strategic perspectives in the field by surveying library deans and directors nationally on a triennial basis since 2010. The research project’s overarching goals are to provide the library community with a valuable data source to inform decision making and track the emerging opportunities and challenges leaders face in steering their organizations. In fall 2022, we surveyed library leaders at not-for-profit four-year academic institutions across the United States, with a response rate of 42 percent based on 612 responses.

In this sixth iteration of the project, we continued to track high-level issues …