Our Fall 2024 Issue–Volume 14, Number 1–addresses various questions that our intellectual property systems are currently facing or will soon face.
First, Professor Zheng compares how the U.S., Europe, and China compete to set legal rules on standard-essential patents (SEPs). The article examines these jurisdictions’ divergent approaches to three key legal issues relating to SEPs: injunctions, FRAND royalty rates, and abusive licensing, noting that Europe has been the most favorable to SEP innovators while China has been the least. Drawing from the historical jurisdictional competition in maritime law, Zheng challenges the prevailing assumption that jurisdictional competition is socially undesirable and argues instead that it facilitates a “race to the middle” that balances the interests between SEP innovators and implementers.
Second, Professor Friedmann analyzes whether AI-generated work should be eligible for copyright protection. The article notes that the U.S. Copyright Office rejects, while the Beijing Internet Court accepts, AI-generated images—based on an erroneous premise that such works must meet a higher “platonic” standard of copyrightability than traditional works. Friedmann argues that AI-generated content should be excluded from copyright protection, but for the right reason—policy considerations that treat human authors preferably in order to prevent the dilution of human culture.
Third, Professors Clark D. Asay, LaReina Hingson, and Stephanie Plamondon examine the use of the trademark symbol TM outside of its legal function, exploring how these extra-legal uses of the TM symbol offer insights into how ordinary people understand trademarks. Overall, the authors observe that the speakers using the TM symbol in expressive speech had a sophisticated understanding of the linguistic and semantic functions of the symbol. The authors argue that while extra-legal uses pose a risk of diluting the legal significance of the TM symbol, the risks are outweighed by the social benefits that flow from the expressive uses.
Fourth, Professor Glynn S. Lunney, Jr. evaluates the Supreme Court’s fair use analysis in Andy Warhol Foundation v. Goldsmith. Leading up to the Court’s decision in Goldsmith, courts had disagreed on the proper scope of transformative fair use, and the Goldsmith Court sided with a narrow and restrictive view. Lunney re-examines the Court’s interpretive approaches and demonstrates that none support the Court’s reasoning and outcome, and he cautions that courts should apply the holding in Goldsmith narrowly.
Fifth, I offer my own note arguing that advancements such as Google Deepmind’s Alphafold have brought us closer than ever to the protein folding horizon, beyond which scientists will be able to perfectly predict protein folding and interactions. This will change pharmaceutical genus patent claiming and may allow patentees to adapt to the heightened “full-scope” enablement standard affirmed by the Supreme Court in Amgen Inc. v. Sanofi. The note further argues that courts should be ready to respond to maintain the patent balance if the pendulum swings too far in the opposite direction.
Finally, Ben Tauber offers a note examining the de minimis doctrine in copyright law, proposing a framework for how the doctrine can be reified and consistently applied by federal courts in copyright infringement cases. Tauber counters the strict liability theory of copyright law, arguing that a broad application of the de minimis doctrine safeguards the purpose of copyright law while countering against abuses. The note challenges the holdings of certain circuit courts finding de minimis to be a narrow or nonexistent doctrine while emphasizing the special need for inter-circuit consistency in the area of copyright law.
You may view and download a PDF of the complete issue here.
.Sincerely,
S. Alex Lee
Editor-in-Chief
NYU Journal of Intellectual Property & Entertainment Law