JIPEL Vol. 8, No. 2 – Spring 2019
This spring, JIPEL is proud to present our readers with five cutting edge pieces. From ongoing litigation challenging our intellectual property laws, to cutting edge technology doing the same, our Spring Edition covers both the forefront of the law and the forefront of human innovation challenging. In what follows, you will find a pieces that combine scrupulous legal reasoning with insightful forward-minded reasoning.
First, Professor Barton Beebe and Professor Jeanne Fromer provide compelling arguments for holding the prohibition on immoral or scandalous remarks unconstitutional. Among their most powerful is an argument that is borne out of an empirical study they conducted on all word marks between 2003 and 2015 to assess the way the United States Patent and Trademark Office was applying the ban. Their study shows that the ban is applied in an arbitrary manner, and they identify numerous examples of word marks rejected as immoral or scandalous for one applicant yet allowed for another. The reader is advised to approach this article with caution, as the authors include the word marks uncensored to demonstrate their argument.
Next, Attorneys Simon J. Frankel and Ethan Forrest provide a practitioner’s review of the Federal Circuit’s decision in Oracle v. Google in March 2018. Their Article marches through the four statutory factors for fair use to meticulously demonstrate how the Federal Circuit departed from prior treatment of software under the doctrine. In doing so, they point out that if other courts adopt the Federal Circuit’s reasoning, it will be nearly impossible for any use of software to qualify as fair use.
Remaining in the world of high-tech, Samantha Fink Hedrick turns the reader’s head towards cutting edge technology and asks how the rise of artificial intelligence will impact copyright law. In particular, she asks whether the use of AI presents a barrier to humans claiming copyright in the outputs and emphatically concludes it should not. Like a human using the preset mode on a camera, a human using AI remains in control of inputs and parameters under which an AI operates. That control is legally sufficient to give rise to a copyright claim.
In our fourth piece this spring, Chloe L. Kaufman takes a look at our freedom of speech in the context of the private employment sector. Through a number of palpable modern examples, she demonstrates how a private employer’s unrestricted power to regulate speech disproportionately effects employees in the entertainment industry. Given the constant broadcast of our lives in the modern era, the private employer’s power is a constant threat against entertainment employee’s ability to speak and convey opinions. That threat cuts starkly against our democratic values.
Finally, James Yang turns the reader to the future in an imaginative piece about the way intellectual property laws will apply to the realms of virtual reality, augmented reality, and location based services. He argues that what laws do exist to analogize from (e.g., cases that considered open world video games) are not well suited to handle this new medium. While the virtual space of the past was firmly separated from reality and the core functions of intellectual property, the virtual space growing up around us is instead aimed at total integration and a blending of realities.
You may view and download a PDF of the complete issue here.
I hope the reader finds these pieces as compelling, thought provoking, and fun to read as they were to edit. As always, thank you for reading.
Editor in Chief
NYU Journal of Intellectual Property & Entertainment Law