JIPEL Vol. 4, No. 2 – Spring 2015

The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 4 Issue 2 of […]

Brief of Amici Curiae Law, Business and Economic Scholars in Support of Respondents in Alice Corp. Pty. Ltd. V. CLS Bank International, et. al.

By Jason M. Schultz* and Brian J. Love**

A PDF version of this brief is available for download here.

Summary Of Argument
Argument
I. Abstract Software Patents Discourage Innovation
A. Abstract Software Patents Should Be Limited, as There is Little Evidence That Software Innovators Rely on Patenting for Incentives to Innovate and Compete.
B. The Need for Socially Wasteful Defensive Bulwarks Has Primarily Driven Software Patenting Since Alappat and State Street, Rather than the Desire to Protect Investments in R&D or to Promote Competition.
C. The Explosion of Patent Assertion Entity Activity Has Aggravated the Costs of Abstract Software Claims.
D. A Robust Application of § 101’s Abstract Idea Prohibition Restores the Balance That Alappat and State Street Disrupted.
II. Section 101 Ensures the Patent System Operates as an Efficient Property Rights System
A. Abstract Software Patents Fail to Define Clear Metes and Bounds.
B. Abstract Software Patents Fail to Provide Effective Public Notice.
C. Abstract Software Patents Contribute to Troublesome Patent Thickets.
III. Sections 102, 103, and 112 Are Not Replacements for the Role of § 101.
A. Sections 102, 103, 112 Are Uniquely Ill-Suited to Correct Notice Problems in Software Patents.
B. Sections 102, 103, and 112 Generate Greater Litigation Costs than § 101.
Conclusion
Interest of Amici Curiae
Appendix

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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

By Steve Gordon* and Anjana Puri**

A pdf version of this article may be downloaded here.

Introduction
I. Brief History of Copyright and Public Performance Rights for Recorded Music
II. The Current Pre-1972 Cases
A. Judge Gutierrez’s Decision
1. Criticism of Gutierrez’s Decision
B. Judge McMahon’s Decisions
1. Sirius XM’s Motion for Reconsideration
III. Possible Consequences of the Decisions if Upheld on Appeal
A. Impact on Likelihood of Success of the RESPECT Act
B. Possible Class Action Suits against Terrestrial Radio and Physical Venues That Play Pre-72 Sound Recordings
C. Will Terrestrial Radio Finally Agree to Pay to Play Sound Recordings?
Conclusion

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Copyright Law and Its Parody Defense: Multiple Legal Perspectives

By Amy Lai*

A PDF version of this article may be downloaded here.

Introduction: Three Copyright Disputes
I. Copyright Law: The Problematic Parody/Satire Dichotomy
A. Fair Use, Parody, and Satire
B. Rethinking “Parodies”
II. Natural Law Theories: The Copyright-Liberty Conflict
A. Locke, Property, and Copyright
B. Rawls, Basic Liberty, and Creativity
III. Feminist Legal Theories: “Relational Author” and Transformative Works
A. Relational Feminism and Authorship
B. “Connection,” Other Feminists’ Support, and Implications
IV. Law and Economics: Flawed Models and New Directions
A. Intuitive Cost-Benefit Analysis vs Efficiency Principles
B. Wealth Maximization and Its Flawed Assumptions
C. Fair-Use Test and Its New Emphases
V. Legal Realism: Copyright Law in Action
A. Salinger’s Victory and Literary Experts’ Opinion
B. Imagining Beastie Boys v. GoldieBlox
Conclusion: Two Literary Concepts and One Logos

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Establishing an Indirect Liability System for Digital Copyright Infringement in China: Experience from the United States’ Approach

By Xiao Ma*

Download a PDF version of this interview here.

Introduction
I. Debates on NSP Liability Rules in China
A.Debate on the Tort Basis for NSP Copyright Liability 
B. Debate on the NSP’s Knowledge Standard
C. Debate on the Nature of Safe Harbors
II. Experience from the United States
A. Fault-Based Liability Attribution Rules Developed from Common Law Cases
1. Is the Sony Rule Still Applicable in a Digital World? The Implied Factors in Contributory Liability
2. The Expansion of Vicarious Liability in Copyright Law: Why It Does Not Apply in China?
3. Inducement Liability: What Could be Learned for China?
B. Strict Interpretation of DMCA Safe Harbors
1. Clarifying the Knowledge Requirements under § 512(c) and (d) of DMCA: Actual or Apparent Knowledge of Specific Infringement
2. “Control” and “Benefit” under § 512(c) and (d) of DMCA
III. Establishing Indirect Liability System for Digital Copyright Infringement in China
Conclusion

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A Critical Look at “Use” under the Lanham Act

By Krystil McDowall*

A PDF version of this article is available here.

Introduction
I. The Prerequisites for Federal Trademark Rights
A. Historical Context of “Use in Commerce”
B. Proving “Use in Commerce”
C. Nature and Quantum of Use Necessary to Prove Continuous Use
II. The Cases 
A. Clorox
B. The Arguments and Evidence
C. The Board’s Findings
D. Gameologist
E. The Evidence and the Arguments
F. The Court’s Findings
III. Analysis of the Use Requirement
A. The Open and Public Use Aspect of the Sale or Transportation Requirement is Burdensome
B. The Continuous Use Threshold Disadvantages Small Businesses and New Market Entrants
IV. Moving Forward: Congressional Amendment to Address the Use Dilemma – an Alternative Approach to Use under Australian Trademark Law
A. Broadening the Use in Commerce Standard
B. The Continuous Use Standard Should Be Replaced by a Minimal Use Standard
Conclusion

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Restoring Order in European Patent Law: A Proposal for the Reintroduction of the Substantive Patent Provisions of the Unitary Patent Package into EU Law

By Michael J. Crowley*

A PDF version of this article is available for download here.

Introduction
I. History and Structure of the Unified Patent Court and Unitary Patent
A. History of European Patent Law
B. How the UPC Fits into the EU Judiciary
C. The Structure and Function of the Unified Patent Court and the Unitary Patent
II. The Benefits of Including the Substantive Patent Provisions in EU Law
A. Courts Benefit from Interacting with Other Courts’ Interpretations and Choices
1. The Effect of Isolation on the Federal Circuit’s Jurisprudence
i. Doctrinal Inconsistency
ii. Reversals
iii. Patent Friendly
2. The Effect of Isolation on the UPC and Potential Solutions
B. Isolating Patent Law from EU Law Will Have Negative Consequences for Patent Law and Other Areas of Law
C. Removing the Substantive Patent Provisions Undermines the EU Legal System
III. The Predicted Negative Consequences of the Inclusion of the Substantive Patent Provisions Were Exaggerated
A. The Ability for the UPC to Refer Questions of EU Law to the ECJ Will Not Lead to Debilitating Delays or Costs
B. The ECJ is Competent to Render Decisions in Patent Cases Despite its Lack of Experience in European Patent Law
C. The ECJ Will Not Substantially Decrease the Predictability or Certainty of the Patent System
Conclusion

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