Fall 2012 Issue

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Inventions Made for Hire
by Joshua L. Simmons

Despite the continued reliance on the rhetorical device that modern invention is performed by individual inventors in their garages, few would disagree that today most patentable inventive activity occurs in corporate and university settings and that most individuals who would be labeled “inventors” in the twenty-first century are employees of a corporate entity. Yet, while copyright law’s work made for hire doctrine automatically vests employers with ownership of works made within their employees’ scope of employment, except in a few limited circumstances, patent law continues to require a written assignment of the rights to a patented invention.

This difference between copyright law and patent law can be explained by the differences between the needs of the two disciplines in the nineteenth century that led to their modern formulations. In particular, whereas copyrighted works in the nineteenth century were frequently created by multiple individuals working together, which necessitated the collecting of rights in order to make use of the resulting copyrightable work, patentable inventions were almost exclusively perceived to be invented by individuals. Moreover, patent law developed doctrines that provided some limited rights to inventors’ employers.

Despite the continued reliance on the rhetorical device that modern invention is performed by individual inventors in their garages, few would disagree that today most patentable inventive activity occurs in corporate and university settings and that most individuals who would be labeled “inventors” in the twenty-first century are employees of a corporate entity. Yet, while copyright law’s work made for hire doctrine automatically vests employers with ownership of works made within their employees’ scope of employment, except in a few limited circumstances, patent law continues to require a written assignment of the rights to a patented invention. In order to resolve resulting issues and bring patent law into the twenty-first century, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine that would grant employers the rights to their employees’ inventions made within the scope of their employment.
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Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications
by Aaron B. Rabinowitz

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines advisory only and no longer mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders. By analyzing federal sentencing data for sentences imposed between 1997 and 2011, this article presents an empirical analysis of how Booker has impacted the ways in which district courts impose sentences on offenders convicted of intellectual property crimes. This analysis reveals, inter alia, that (1) sentences imposed on intellectual property offenders deviate from Guidelines-recommended sentences in two out of every three cases; (2) prosecutors seek and judges impose reduced sentences for intellectual property crimes more frequently than for other comparable crimes; and (3) judge-initiated downward deviations from the Guidelines occur after Booker about seven times as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.

ABSTRACT: As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines advisory only and no longer mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders.

Because Booker was decided seven years ago, the numbers of pre- and post-Booker cases are now large enough that one can assess Booker’s specific impact on sentencing for intellectual property offenses. A full understanding of how judges impose sentences for intellectual property crimes is critical, as (1) the number of defendants sentenced for intellectual property crimes has grown 50% faster in the past several years than the number of overall defendants sentenced during that same period; and (2) individuals and corporations derive ever- increasing value from their own intellectual property.

By analyzing federal sentencing data for sentences imposed between 1997 and 2011, this article presents an empirical analysis of how Booker has impacted the ways in which district courts impose sentences on offenders convicted of intellectual property crimes. This analysis reveals, inter alia, that (1) sentences imposed on intellectual property offenders deviate from Guidelines-recommended sentences in two out of every three cases; (2) prosecutors seek and judges impose reduced sentences for intellectual property crimes more frequently than for other comparable crimes; and (3) judge-initiated downward deviations from the Guidelines occur after Booker about seven times as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.

Using the foregoing empirical analysis as a jumping-off point, this article also explores how sentences imposed on intellectual property offenders may reflect societal views of intellectual property crimes in general. The data suggest that prosecutors’ and judges’ views of intellectual property crimes may not align with the sentences that the Guidelines prescribe for intellectual property crimes. This article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenses with the sentences that are actually imposed based on prosecutors’ recommendations and judges’ discretion.

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Conception and Misconception in Joint Inventorship
by Aaron X. Fellmeth

The Patent Act’s omission to define inventorship leaves a paramount concept in a legal vacuum. Where courts have stepped in to fill the void, they have largely deferred to the inventor, and joint inventor, status articulated in the patent claims. This fixation fails to accurately reflect the contributions of those who, by common understanding, are inventors. In doing so, the patent system incentivizes not invention, as the Constitution and Congress conceived, but legal claims of invention, playing to the advantage of the legally sophisticated rather than the scientifically innovative. In this article Professor Fellmeth explores this fundamental disconnect, and proposes several legal solutions.
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Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act
by Sean M. Flaim

In July 2011, a consortium of major content providers and Internet service providers announced their intention to implement the Copyright Alert System, a graduated response plan aimed at stemming online copyright infringement by individual users. While other commentators have examined the rise of these systems abroad and certain potential issues with the implementation of such measures in the United States, little has been said about the antitrust implications of a private system of copyright enforcement. This article recounts the history of online infringement leading up to the Copyright Alert System and then analyzes the system from the perspective of antitrust law, taking the position that the system announced raises significant antitrust concerns. The article concludes with recommendations for improving the current system to protect the rights of consumers.
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The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right
by Katelyn N. Andrews

ABSTRACT: In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. These arguments have proved somewhat successful, as a number of bills have been drafted to expand copyright laws to include fashion, most recently the Innovative Design Protection Act of 2012, and two congressional hearings have been held on the subject. None of bills, however, have managed to gain much traction in Congress, and progress appears to be stalled. My objective in this Note is not to examine the legislation that has been proposed, but to uncover why the supporters of fashion copyright have been so steadfast in their promotion of it. Copyright in the United States is built on economic principles and aims to incentivize innovation. It seems clear that from an economic perspective, copyright is unneeded to incentivize creativity in the fashion industry. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design. The stalled debate over fashion copyright might be revitalized by discussing design protection in the more theoretically relevant framework of moral rights laws, which are concerned with reputational—as opposed to economic—harms.
In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. Copyright in the United States is built on economic principles and aims to incentivize innovation. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design.
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Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses
by Ryan Kairalla

In April 2011, comedic musician “Weird Al” Yankovic sought Lady Gaga’s permission to release his song “Perform This Way,” a spoof on Lady Gaga’s “Born This Way” that parodied the artist herself, rather than the original work. But did he even need Gaga’s permission to borrow from her hit song? Courts have only recently begun to consider whether to treat these “author parodies” more like traditional parodies, satires, or something else entirely. The Supreme Court and the circuit courts have yet to address the issue, and the few district courts that have weighed in have propounded opposite holdings. Given the prevalence of author parodies such as “Perform This Way” in popular culture, how the law eventually decides to view these distinctive works will have significant implications for authors and appropriators alike. This article presents both an economic and legal argument for privileging author parodies in a fashion similar to parodies of a work.
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