This note evaluates the applicability of copyright to web design. Web design affects the appearance and user experience of a website, but excludes content such as the text or images. Web designers have an incentive to standardize websites to ease the learning curve of users who are new to a given website, which is strongly counterbalanced by internal and external pressures to perform creatively. Copyright law has been ambiguously applied to web design. Problems with copyrightability stem from the hurdles to determining what design is original, as well as the exclusion of functional elements. Even if a web design is copyrightable subject matter, successfully proving infringement is difficult. In several contexts where copyright protection might be an issue, this note finds that copyright is unnecessary to resolve disputes. The copyright symbol in the footer of websites can serve as a notice that socially pressures and deters potential copiers, protecting website design and incentivizing innovation, even in the absence of legal certainty.
The protection of industrial design in the United States has been criticized for its ill-aligned functionality doctrines, as an inefficient incentive scheme, as well as for its costly and prolonged rights acquisition periods. This note explores the scope of U.S. industrial design protection in copyright, trademark and design patent, concluding that design patent provides the strongest basis to rebut these criticisms. Not only does the positive enforcement of design patents speak to the protection’s strength, but the normative scope of the right is calibrated to incentivize innovative designs. A wholesale reform of U.S. industrial design is not required to address cost and time criticisms; compliance with certain national and international obligations is sufficient.
The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 4 Issue 2 of the Journal. While individual PDFs of articles may be found accompanying their respective posts, you may download a complete PDF of the Issue here. Additionally, an ISSUU version of the complete Issue is available here.
Brief of Amici Curiae Law, Business and Economic Scholars in Support of Respondents in Alice Corp. Pty. Ltd. V. CLS Bank International, et. al.
A well-defined § 101 ensures that abstract software patent claims and their attendant notice and patent thicket problems do not undermine the patent system and stymie innovation. It serves as a decisive gatekeeper that the Patent Office and trial courts can use early in administrative proceedings and litigation. Further, it avoids many of the systemic challenges prevalent with the use of §§ 102, 103, and 112 in such cases—the speed of software innovation, the difficulty locating software prior art, and lax, broad claiming standards. Accordingly, this Court should affirm the invalidity of patent claims at issue here and hold that abstract ideas in the form of software are unpatentable and that mere computer implementation of those ideas does not create patentability.
The Current State of Pre-1972 Sound Recordings: Recent Federal Court Decisions in California and New York against Sirius XM Have Broader Implications than Just Whether Satellite and Internet Radio Stations Must Pay for Pre-1972 Sound Recordings
Federal copyright law applies to sound recordings, but only to those fixed, i.e., produced, on or after February 15, 1972. Recordings produced prior to that date are subject to protection under the laws of the individual states until 2067. A recent spate of lawsuits has raised the issue of whether Sirius XM and Pandora’s digital radio services have the right to play pre-1972 sound recordings without permission from the owners of those records. The article discusses the cataclysmic potential impact that these cases may have on the current landscape of music licensing in New York and California and throughout the United States.
In the United States, whether a disputed work qualifies as a parody is critical, if not determinative, to the success of a fair use defense in copyright lawsuits. How can different schools of legal thought contribute to copyright law and its fair use doctrine, particularly its contentious parody exception? By drawing upon different legal theories, this article argues that courts, in determining whether new creative works that build upon existing works constitute fair use, should focus heavily on the possible harm that the new works would bring to owners, and the copyright system of financial incentives as compared to their potential social benefits.
Establishing an Indirect Liability System for Digital Copyright Infringement in China: Experience from the United States’ Approach
In order to address the digital revolution that has challenged copyright protection, China has carried out a series of legislative attempts at developing an indirect copyright liability system in recent years. The joint tort oriented, knowledge-centered liability attribution rules and a set of borrowed safe harbor provisions from the United States have set out the rudiments of the indirect copyright liability regime to deal with digital copyright infringements. However, there have been constant debates on the confusing joint tort law underpinnings, the inconsistent knowledge standard and the conflicting nature of safe harbors, which are major factors impeding the effective copyright law enforcement and the efficient operation of the intermediary’s business. Through analyzing current rules in China and the United States, this article finds that compared to the borrow-to-use approach, a more efficient build-to-suit approach for a viable legal transplantation is recommended. To construct an efficient, well-balanced and predictable indirect copyright liability system for dealing with digital copyright infringement in China, this article proposes an independent-tort theory and a culpable conduct based indirect liability system, with modified safe harbor provisions. In this way, a justified and compatible indirect liability system can be optimized through equilibrium among relevant parties.
The concept of “use” in trademark law is fundamental. However, many activities undertaken by a mark owner in connection with the trademark are not relevant uses for the purposes of obtaining and maintaining federal trademark registration. Two recent decisions, Clorox and Gameologist, serve as reminders that there is little statutory guidance on the use requirement under the Lanham Act and that uniformity under the Act is yet to be achieved. In exploring the use requirement under the Lanham Act, this note argues that Congressional amendment to a qualitative bona fide minimal use standard would broaden the use requirement and be the most effective way to better protect all trademark owners.
Restoring Order in European Patent Law: A Proposal for the Reintroduction of the Substantive Patent Provisions of the Unitary Patent Package into EU Law
Europe is on the verge of instituting a uniform patent regime that will change the landscape of patent litigation in twenty-five member countries. The unitary patent package will include a European patent with unitary effect (“unitary patent”) and the creation of a Unified Patent Court (“UPC”). Patentees will no longer have to litigate in each member country; a single litigation will be binding throughout all of the participating countries. This note argues that the EU should not have removed the substantive patent provisions from the UPR and that their removal will have an unintended negative effect for the UPC by looking at the relevant history and structure of the European patent system, the probable consequences of removing the patent provisions, and that the groups opposed to the provisions exaggerated their concerns over the inclusion of the substantive patent provisions in the UPR. The inclusion of the substantive patent provisions in EU law will provide benefits to the European patent community and EU law that outweigh any negative effects.
The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 4 Issue 1 of the Journal. While individual PDFs of articles may be found accompanying their respective posts, you may download a complete PDF of the Issue here.