Restructuring the Federal Circuit 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 Continue reading →
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 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 Continue reading →
Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites 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 Continue reading →
License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software 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 Continue reading →
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 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 Continue reading →
Using Copyright to Combat Revenge Porn 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 Continue reading →
