Intellectual Property Issues
2011 IP Viewpoints
SOPA and Censorship Spillovers
Prof. Randal C. Picker, The University of Chicago Law School
December 23, 2011
Possible copyright legislation has been in the news with the House Judiciary Committee’s on-again, off-again mark up of H.R. 3261, the “Stop Online Piracy Act.” » Read More
Jumping the Grooveshark
Prof. Peter S. Menell, University of California at Berkeley School of Law
December 20, 2011
As fans of the 1970s television hit “Happy Days” will recall, the final curtain became inevitable when a water-skiing Fonz, wearing swim trunks and his trademark leather jacket, jumped (à la Evil Knievel) a confined shark to prove his manliness…. » Read More
The RAND Commitment
Prof. Doug Lichtman, UCLA School of Law
December 15, 2011
In Germany last week, Apple suffered a potentially significant setback when a German patent court rejected Apple's "RAND licensing defense" and instead took a step toward allowing Motorola to ban the sale of certain, allegedly infringing, Apple products…. » Read More
How (Dis)respected Is Copyright Law?
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
December 13, 2011
One of the troubling things about intellectual property discourse – whether policy discussions in Washington or law review articles on Westlaw – is that arguments (particularly the ones that get repeated over and over) often do not get the kind of scrutiny…. » Read More
BitTorrent and Anonymous Speech
Rodney A. Smolla, President, Furman University
November 21, 2011
A recent "ABC News" broadcast focused on the huge threat posed to the adult film industry by the proliferation of Internet sites distributing free pornography. To those who might wish the adult film industry good riddance…. » Read More
The Emerging Patent Market:
What Do We Know, and What Should We Do?
Professor Robert P. Merges
University of California at Berkeley School of Law
November 15, 2011
Something big is afoot in the world of patent-related transactions. It is easy to tick off a growing list of head-turning deals in which household-name companies have bought and sold patent portfolios in recent years: Nortel, Motorola, Nokia, Microsoft, Apple, Oracle. » Read More
The Apple/Samsung Patent War
Prof. Doug Lichtman, UCLA School of Law
November 7, 2011
Over the past few weeks, Samsung and Apple have grabbed headlines internationally as each firm has filed, fought, lost, and/or won well over a dozen major patent battles with the other. Apple seems to be the entity truly on the offensive, striking first with fast-tracked patent filings in places like Germany and Australia. » Read More
Copyright Infringement Conflation
Professor Peter S. Menell,
University of California at Berkeley School of Law
October 26, 2011
I have long wondered how so many copyright scholars could be so deeply troubled by adding of 20 years to the end of the copyright term in the 1998 Copyright Term Extension Act and yet be so untroubled by the effective loss of rightsduring the first 20 seconds of a work's release following Napster's emergence the following year. » Read More
Google Scores a Perfect 10
Rodney A. Smolla, President, Furman University
October 12, 2011
In Perfect 10, Inc. v. Google, Inc., the Internet search engine giant Google managed to score a victory against a company known as “Perfect 10,” a company that created and copyrighted photographic images of nude models for commercial distribution. Perfect 10 originally featured the nude photos in a magazine, but it went defunct. It then turned to…. » Read More
Apple v. Psystar: Software Licensing,
The First-Sale Doctrine, and Copyright Misuse
Prof. Randal C. Picker, The University of Chicago Law School
October 3, 2011
Over the last year, the U.S. Court of Appeals for the Ninth Circuit has decided three interesting cases at the intersection of copyright, contract, and thefirst-sale doctrine…. Last week, on Sept. 28, 2011, the Ninth Circuit returned to these issues in a case that turns on a conflict between the most valuable company on the planet, Apple, and upstart computer maker Psystar…. » Read More
Copyright, Trademark, and the Ninth Circuit’s
Flirtations With 'Aesthetic Functionality'
Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
September 22, 2011
Patents, copyrights OR trademarks – that’s easy. Patents, copyrights, AND trademarks – that’s more difficult. Vexing issues often arise when a party claims that the same thing or same interest is protected by more than one form of intellectual property. Our general rule is that more than one form of intellectual property (IP) can apply to the same intangible…. » Read More
Notice and Takedown, Here and Abroad
Prof. James Gibson, University of Richmond School of Law
September 15, 2011
The Digital Millennium Copyright Act has been around for more than a dozen years now. Some of its provisions were just weird, suchas the one that established sui generis protection for boat hull designs. Others have had a skeptical reception in the courts…. » Read More
When a Work Debuts on the Internet,
What Is its Country of Origin?
Prof. Jane C. Ginsburg, Columbia University School of Law
August 29, 2011
My previous column, “Internet Publication and U.S. Copyright Imperialism,” criticized a recent decision of a federal district court in Florida in Kernal Records OY v. Moseley … for ruling that a Norwegian composer’s work “published” on an Australian website was a “United States work” that must be registered with the U.S. Copyright Office…. » Read More
The Next Android Shakedown
Prof. Doug Lichtman, UCLA School of Law
August 22, 2011
Google's Android operating system is under siege. Oracle has a substantial patent and copyright case underway in which it alleges that Android is illegally derivative of the Sun programming language, Java. Apple has literally dozens of patent cases underway…. » Read More
Making News or Breaking News
Prof. Rodney A. Smolla, President, Furman University
August 16, 2011
It is one thing to make news, and yet another to break it. The distinction between making and breaking news recently proved critical in a fascinating intellectual property case involving the rights of Internet news aggregators to scoop the stock trade recommendations of large financial firms regarding their intended advice on buying and selling stocks…. » Read More
Toto, I’ve a Feeling We’re Not in the Public Domain Any More
Prof. Randal C. Picker, The University of Chicago Law School
August 8, 2011
L. Frank Baum set out to create “a modernized fairy tale, in which the wonderment and joy are retained and the heart-aches and nightmares are left out.” So said Baum writing in Chicago, in April 1900…. » Read More
If Silicon Valley Builds Legal Celestial Jukeboxes,
Will Music Fans Return to the Market?
Professor Peter S. Menell, University of California at
Berkeley School of Law
July 26, 2011
In the 1989 sports drama, “Field of Dreams,” struggling Iowa corn farmer Ray Kinsella hears a whisper: “If you build it, he will come.” Rebelling against his father’s lack of spontaneity and following his own muse, Ray plows under his cornfield and constructs a baseball diamond to the astonishment of his neighbors. “He” turns out to be Shoeless Joe Jackson….
» Read More
The DMCA and Repeat Infringers
Prof. James Gibson, University of Richmond School of Law
July 12, 2011
The recent agreement between big media companies and big Internet service providers (ISPs) concerning online copyright infringement has the law and technology world abuzz. ISPs like Comcast, Verizon, and Time Warner Cable have agreed to implement a system under which subscribers who repeatedly and illegally download copyrighted content will have their Internet access impeded and maybe even terminated.
» Read More
Internet Publication and U.S. Copyright Imperialism
Prof. Jane C. Ginsburg, Columbia University School of Law
June 28, 2011
When a work is first made available over the Internet, what is its “country of origin?” In a previous column, “Borderless Publications, the Berne Convention, and U.S. Copyright Formalities,” I addressed this question in connection with the decision in Moberg v. Leygues, 666 F. Supp. 2d 415 (D. Del. 2009)…. » Read More
After Google Book Search: Rebooting the Digital Library
Prof. Randal C. Picker, The University of Chicago Law School
June 20, 2011
This past Wednesday, I attended a terrific conference at George Washington University Law School on “Can the Google Book Settlement be Fixed?” After more than a year of silence, on March 22, 2011, Judge Denny Chin rejected the proposed settlement in the Google book search case…. » Read More
Are Tattoos Eligible for Copyright Protection?
Prof. Doug Lichtman, UCLA School of Law
June 15, 2011
For the past several weeks, an active debate in the copyright world has focused on the question of whether a tattoo drawn on a person's face is properly considered eligible for copyright protection. The issue came up in the context of Warner Brothers' newly released movie, The Hangover Part II…. » Read More
Copyright and ‘Appropriation Art’
Prof. Rodney A. Smolla, President, Furman University
June 2, 2011
Richard Prince is a well-known “appropriation artist.” As the phrase suggests, Prince “appropriates” the works of others to create his own artistic works. His efforts have been successful; his works have been shown at many museums and galleries, including a solo show at the Guggenheim Museum in New York…. » Read More
Will You Go to Jail for Copyright Infringement?
Prof. James Gibson, University of Richmond School of Law
May 25, 2011
We've all seen it. Stick a movie in the DVD player, and up pops a scary message from law enforcement: If you infringe copyright, the feds will come after you. Indeed, this threat is so ubiquitous that it has worked its way into popular perception; as any copyright expert knows…. » Read More
First Amendment Anonymity And Unveiling the Identity
of Copyright-Infringing File-Sharers
Prof. Rodney A. Smolla, President, Furman University
May 19, 2011
For many years the First Amendment has been understood as protecting an individual's right to engage in anonymous speech. Anonymity is also a signature characteristic of much of the communication that takes place on the Internet….
» Read More
The Digital Music Cloud Dilemma:
‘Poker Face,’ ‘Go Your Own Way,’ and ‘Imagine’
Prof. Peter S. Menell, University of California at Berkeley School of Law
May 13, 2011
A new digital music era has arrived. Amazon’s Cloud Drive web storage application introduced on March 29th, followed last week by the announcement of Google’s Music Beta storage locker system, ushers in a new era in music distribution. Both services enable consumers to upload their music collections to web servers…. » Read More
A Walk in a Chicago Park
Prof. Randal C. Picker, The University of Chicago Law School
April 27, 2011
Law professors rarely have labs the way that other scientists do. For us, our classrooms are the places that we go to run our experiments to see what happens when a couple of unusual legal concoctions are mixed together. It is a rare case…. » Read More
Authors' Contracts and the U.S. Copyright Law: Part II
Prof. Jane C. Ginsburg, Columbia University School of Law
April 20, 2011
This is the second of two columns on authors' contracts and the U.S. copyright law. (For the first see Part I.) In this column I will address copyright rules governing the scope of the rights that authors may grant…. » Read More
Contracting Away Copyright Privileges
Prof. James Gibson, University of Richmond School of Law
April 12, 2011
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)…. » Read More
Rising from the Ashes of the Google Books Settlement
Prof. Peter S. Menell, University of California-Berkeley School of Law
April 7, 2011
Two weeks ago, Judge Denny Chin rejected the proposed settlement of the Google Books litigation. While acknowledging many benefits of the proposal in terms of preserving books, making books more accessible.... » Read More
Authors’ Contracts and the U.S. Copyright Law: Part I
Prof. Jane C. Ginsburg, Columbia University School of Law
March 15, 2011
The U.S. Constitution empowers Congress to “secur[e] for limited Times to Authors ... the exclusive Right to their ... Writings. Accordingly, the U.S. Copyright Act generally vests creators with the copyright in their works.... » Read More
Tim Wu's Master Switch
Prof. Doug Lichtman, UCLA School of Law
March 8, 2011
Writing in the Wall Street Journal a few months ago, Columbia Law Professor Tim Wu complained that technology markets are too often allowed to remain under the control of a single dominant firm. The theme is drawn from his recently published book.... » Read More
Internet Freedom, Freedom of Expression, and Copyright Enforcement
Prof. Peter S. Menell, University of California-Berkeley School of Law
February 23, 2011
During the past week, revolution in the Middle East and digital copyright enforcement converged. As widely reported in the press, the dramatic protests that toppled governments in Tunisia and Egypt, and have destabilized other dictatorships, were facilitated in part by social networking technologies.... » Read More
Gray-Market Goods and Copyright's Gray Area
Prof. Jim Gibson, University of Richmond School of Law
February 16, 2011
Copyright law generally gives authors no control over the aftermarket for their goods. Suppose I write a book, and I sell you a copy of it. You are free to resell the book, or lend it to a friend, or give it away.... » Read More
UMG Recordings v. Augusto: Legends and the First-Sale Doctrine
Prof. Randal C. Picker, The University of Chicago Law School
January 19, 2011
The U.S. Court of Appeals for the Ninth Circuit opened the New Year by revisiting a copyright classic, namely, is a legend stamped on a copyrighted work effective to control it? In UMG Recordings, Inc. v. Augusto, the Ninth Circuit concluded that legends stamped on promotional CDs were ineffective to prevent their subsequent sale.... » Read More
News Aggregation: Discord Among Common Law Jurisdictions
Prof. Jane C. Ginsburg, Columbia University School of Law
January 12, 2011
The practice of online news aggregation, involving the assembly on one's own website of information, and sometimes limited content such as headlines and lead sentences, copied from other news sources, has generated both substantial profits for the largest aggregators.... » Read More