Restructuring the Federal Circuit

May 6, 2014 By Jeremy Bock in JIPEL Vol. 3 – No. 2 Tags: Patent

By Jeremy W. Bock* A pdf version of this article may be downloaded here.

Introduction

I. The Current State

A. Internal Mechanisms for Quality Control

1. Before Issuance: Review of Precedential Opinion

2. After Issuance: The En Banc Process

B. Existing Proposals in the Literature

II. The Cognitive and Situational Barriers to Self-Correction

A. The Curse of Expertise

1. Underestimation of Difficulties of Non-Experts

2. Resistance to Correction

3. Aggravating Factors

B. The Knowing-Doing Gap

1. Consistency and Conviction

2. The Need to Maintain Collegiality or Détente

3. Lack of Urgency

III. Surmounting the Barriers to Self-Correction

A. Combating the Curse of Expertise with District Judges

B. Combating the Knowing-Doing Gap with Rotations

IV. Concerns and Objections

A. Stability of Case Law

B. Quality of Adjudication

C. Are There Less Radical Alternatives?

Conclusion

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3-D Printing Your Way down the Garden Path: 3-D Printers, the Copyrightization of Patents, and a Method for Manufacturers to Avoid the Entertainment Industry’s Fate

May 6, 2014 By Joseph Storch in JIPEL Vol. 3 – No. 2 Tags: Copyright, Patent

Joseph C. Storch* A pdf version of this article may be downloaded here.

Introduction

A. A Brief History of Reacting to Technological Change

I. Copyright and Patent Law Exist to Advance Society, Not to Protect Artists

II. Three Types of Monopolies Protect From Copying

III. Intellectual Property’s Lost Technological Monopoly Exposes a Weak Legal Monopoly

A. A History of Sharing Copyrighted Content

B. Napster Shepherds in an Era of Digital Frictionless Sharing

C. Similarities and Differences of Copyright and Patent Law

IV. Using the Legal System to Enforce Copyright Backfired and Set a Price on Violations

V. Morals to Markets: A Fine is a Price

VI. Peer-To-Peer File Sharing: A Lawsuit Settlement Sets a Price

A. Incentives to Settle for Plaintiffs and Defendants

B. With the Market Price Set, Prospect Theory Predicts Risk Taking in Avoiding Loss

VII. Using the Legislative System to Crack Down on Copyright Violations

A. Interest Group Politics Historically Carried the Day on Intellectual Property Changes

B. Diffuse Opposition Solidifies and Strengthens Through the Internet and Social Media

VIII. More People Violating Copyright Law Leads More People to Violate Copyright Law

IX. A Technological Problem with a Technological Solution?

X. Pricing Monopoly and Market Goods

XI. Taking the Lessons of the Recording Industry to Heart for Tangible Goods

A. Manufacturers Can Hang Together, or Hang Separately

XII. A Moral Solution When Technological and Legal Monopolies Fail

XIII. An Alternative Thesis

Conclusion

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Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites

May 1, 2014 By Liz Brown in JIPEL Vol. 3 – No. 2 Tags: Trade Dress

By Liz Brown* A pdf version of this article may be downloaded here.

Introduction

I. Copying Websites’ Look and Feel: A Growing Threat to E-Commerce

A. The Nature of Look and Feel Copying

B. The Economic Impact of Look and Feel Infringement

II. Using Copyright or Trade Dress to Protect Website Look and Feel

A. The Ambiguous Nature of Look and Feel Protection

B. The Limits of Copyright Law in Protection Look and Feel

1. The Copyright Office May Not Register “Look and Feel” Elements

2. Judicial Use of Copyright Claims in Look and Feel Cases

C. The Limits of Trade Dress Law to Protect Website Look and Feel

1. Articulating the Elements of the Alleged Trade Dress

2. Proving Distinctive Trade Dress

3. Secondary Meaning in the Website Context

4. The Difficulty of Proving Non-Functionality

5. Likelihood of Confusion in Look and Feel Cases

D. The Threat of Copyright Preemption in Look and Feel Cases

E. New Technology Requires a New Framework

III. Proposing a Trade Dress-Based Solution for Look and Feel Infringement

A. A Multi-Factor Test for Website Look and Feel Infringement

1. Overall Similarity

i. Fonts and Formatting

ii. Color Scheme

iii. Sound Effects and Animation

iv. Symbols, Logos and Other Marks

v. Layout and Arrangement

vi. User Experience Designer Testimony

2. Proximity of Products or Services in the Relevant Market(s)

3. Intentional Copying and Other Fraudulent Measures

4. Likelihood of Confusion

5. Additional Considerations

B. Designing an Effective Damages Scheme

IV. Additional Issues

Conclusion

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License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software

May 1, 2014 By Victoria Nemiah in JIPEL Vol. 3 – No. 2 Tags: Copyright

By Victoria Nemiah* A pdf version of this article may be downloaded here.

Introduction

I. History of FOSS

A. First Applications of Open Source Licenses

B. Subsequent Growth of the FOSS Model

C. Development of the FOSS Community

II. Important FOSS Cases

A. Graham v. James

B. Sun v. Microsoft

C. Jacobsen v. Katzer

D. MDY v. Blizzard

III. Drafting and Arguing for FOSS Licenses

A. First Considerations

B. Best Practices

C. Arguing a License Violation

Conclusion

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Where the Trade Secret Sits: How the Economic Espionage Act Is Inflaming Tensions in the Employment Relationship, and How Smart Employers and Employees Are Responding

May 1, 2014 By Adam Waks in JIPEL Vol. 3 – No. 2 Tags: Trade Secret

By Adam Waks* A pdf version of this article may be downloaded here.

I. Introduction

II. The Current Status of Trade Secrecy Law

A. Civil Law: The Uniform Trade Secrets Act

B. Criminal Law: Enter the Economic Espionage Act

C. The Impact of the Economic Espionage Act on Trade Secrets Generally

III. Trade Secrecy Law in the Employment Context

A. Trade Secrecy and the Employment Relationship: Policy

B. Trade Secrets or “Know-How” v. General Knowledge and Skill

C. How the EEA Increases Conflict in the Employment Relationship

1. Issues for Employers

2. Issues for Employees

IV. Best Practices

A. For Employers

1. Protecting Your Trade Secrets

a. Make Sure Your Intellectual Property Satisfies the Trade Secrecy Requirements

b. When Hiring a New Employee

i. Contract and Employee Hiring Materials

ii. Have Certain Employees Conduct a Brain Dump

c. Terminating an Employee/When an Employee Chooses to Leave

i. Exit Interview

ii. Do Not Delete the Employee’s Records

d. If You Need to Sue

i. Civil, Criminal, or Both?

ii. Be “White of Heart and Empty of Head”

2. Protecting Yourself From Liability For Misappropriating Others’ Trade Secrets

a. Employment Contract and Acknowledgement Forms

b. Entrance Interview With the New Employee

c. Contact the Employee’s Previous Employer

d. Construct “Ethical Walls”

B. For Employees

1. When Hired At a New Company

a. Conduct Your Own Brain Dump

b. Encourage Specificity in Your Contract

c. Be Prepared to Walk Away

2. When Terminated and/or Resigning

a. Keep the Moral High Ground

b. Request an Exit Interview

3. When Leaving to Start Your Own Company

a. Request an Exit Interview

b. Construct Ethical Walls

V. Conclusion

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Using Copyright to Combat Revenge Porn

May 1, 2014 By Amanda Levendowski in JIPEL Vol. 3 – No. 2 Tags: Copyright, Internet

By Amanda Levendowski* A pdf version of this article may be downloaded here.

Introduction

I. Legal Protection for Revenge Porn: The Communications Decency Act Section 230

A. Section 230 Shields Revenge Porn Sites From Tort Liability

B. Recent Court Decisions Narrowing the Scope of Section 230 Are Anomalous

II. Existing Tort Law Is Ill Equipped To Handle Revenge Porn

A. Harassment and Stalking

B. Privacy Torts

1. False Light

2. Misappropriation

3. Invasion of Privacy and Public Disclosure of Private Fact

III. Overbroad Revenge Porn Legislation Threatens Free Speech

IV. Copyright Can Combat Revenge Porn

A. Authoring and Owning the Selfie

B. Positive and Negative Rights of Copyright Owners

C. What Goes Up Must Come Down: The Digital Millennium Copyright Act

1. Using DMCA Notices to Takedown Revenge Porn

2. The Trouble With Takedowns

D. Monetary Damages and Criminal Penalties

Conclusion

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