The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 7 Issue 2 of the Journal. While PDFs of the individual articles may be found accompanying their respective posts, you may view and download a PDF of the complete issue here
In Brown v. GNC Corp., the Fourth Circuit offered a novel solution to the truth-in-advertising dilemma that plagued the dietary supplement industry. Plaintiffs alleged that claims made in connection with defendant’s joint health supplements were false because the “vast weight of competent and reliable scientific evidence” did not support such representations. The Fourth Circuit rejected this allegation of literal falsity, which hinges instead on the “existence (or not) of scientific consensus.” To survive a motion to dismiss, plaintiffs must allege that all reasonable experts in the field agree that the representations are false. This holding generated criticism from prominent academics, who submitted an amicus brief favoring an alternative result. This Note argues that the Fourth Circuit’s unanimous holding in GNC is the preferred solution to the age-old truth-in-advertising question, particularly during a period of scientific uncertainty. In reaching this conclusion, this Note surveys the existing patchwork of advertising laws, details the factual background of the GNC case, and addresses problematic aspects of the amicus brief. It concludes by describing the merits of the Fourth Circuit’s decision, which has positive implications for consumers and manufacturers alike.
From personalized medical diagnostics to election prediction, recent advancements in machine learning enables unprecedented, powerful applications of big data. Machine learning users can extract insights hidden in massive amounts of data, gaining an indispensable advantage against the competition. Investment in the process of gathering and analyzing data has now become a necessity to maintain a successful enterprise. Yet the difficulty of obtaining software patents since the 2014 Alice decision raises the question whether the current intellectual property framework may adequately protect inventions related to machine learning. This Note explores how we may utilize IP protection to harness the societal benefits we hope to enjoy through the advances in machine learning. The Note discusses the current framework of patent law, copyright, and trade secret in the context of machine learning inventions, and argues that patent rights for computational inventions adequately balances the concern of patent monopoly and promoting innovation. The Note concludes by applying the Alice framework to the proposed computational inventions, and demonstrates that the current patent system may still protect machine learning innovations.
This paper originates from a long-standing anachronism of antitrust law with regard to high-tech markets. Conventional wisdom assumes that antitrust law mechanisms are well suited to the study of practices in technology markets and that only adjustments should be made to these mechanisms, and sparingly at that. This is untrue. Several practices fall outside the scope of antitrust law because mechanisms for assessing the legality of practices are not adequate. In fact, no one can accurately identify a typical legal approach for non-price strategies, a truth which gives way for a chaotic jurisprudence to emerge from this lack of universal understanding, which we will show. With this paper, our ambition is to contribute to the literature by advancing a new test, the “enhanced no economic sense” test, to be applied to non-price strategies. Various tests have been designed over the years to address the legality of diverse practices under antitrust law. Some of them are based on price analysis, including the test of the equally efficient rival, the rising rivals’ costs test, and the profit sacrifice test. Some others are based on comparison, such as the balancing test, the test of disproportionality, and the compatibility test. They all suffer from multiple flaws. None of them, in fact, address non-price strategies such as predatory innovation without creating numerous type-I or II errors. Conversely, the test proposed in this article results in the creation of a uniform rule of law, which will ultimately increase consumer welfare by encouraging companies to continue innovating, while limiting such type-I or II errors. Only the “no economic sense” test comes close to achieving this goal, which is why this article proposes a new version of the mechanism. Its utility is shown by applying it to most of the major cases which dealt with predatory innovation, namely, Berkey Photo, the North-American and European versions of the Microsoft case, and the iPod iTunes Litigation.
This article provides an analysis of the potential ramifications of the 2017 U.S. Supreme Court case, Matal v. Tam, which has forged a hybrid trademark and free speech right. In permitting trademarks to be allowed over the Disparagement Clause, First Amendment rights are now inextricably intertwined with the scope of trademark protection. This paper examines the holding of the Matal v. Tam case and predicts how the case will influence the behavior of trademark filings and the development of trademark law.