Intellectual Property

Twenty Years of U.S. Digital Copyright: Adapting from Analog

From 2001 to 2021, digital technologies have challenged U.S. copyright law. Key copyright concepts affected include the scope of exclusive rights, fair use, and liability of online service providers for infringement.

Sequential Uses of Copyrighted Materials: Transforming the Transformative Use Doctrine in Andy Warhol Foundation v. Lynn Goldsmith

The case of Andy Warhol Foundation v. Lynn Goldsmith arose when one artist’s copyrighted work was used to create a second artist’s work. The key factor is the effect of the alleged infringement on the value of the first work.

Memes on Memes and the New Creativity

Memes challenge basic assumptions underlying copyright law. Creators of memes want to be copied. Creators may use copyright selectively to prevent changes to a meme by a select few.

From Trade Secrecy to Seclusion

Traditionally, trade secret law protected innovations from misappropriation by departing employees. Now, however, trade secret claims are often used to conceal information of public concern.

It’s Time to Update Section 230

The 1996 Communications Decency Act (CDA) makes online platforms immune from liability for harmful content posted by third parties. Platforms should enjoy immunity only if the platform takes reasonable steps to prevent harm.

The Use of Technical Experts in Software Copyright Cases: Rectifying the Ninth Circuit’s “Nutty” Rule

The Ninth Circuit has ruled that experts may not testify to help juries understand whether one computer program is similar to another. Ninth Circuit cases fail to properly assess software copyright violations.

Trademark Search, Artificial Intelligence and the Role of the Private Sector

Worldwide, trademark offices and private firms use artificial intelligence-based systems (AI) to identify distinct trademarks. AI will transform trademark business and legal processes.

Legal Internalism in Modern Histories of Copyright

Process concerns, including formal registration requirements and the rule of law, are important to copyright lawyers and policymakers. Recent histories of copyright law neglect these procedural elements.

Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise

A book that placed Star Trek characters in illustrations from Dr. Seuss is an unauthorized derivative work under the Copyright Act. The District Court erred in ruling that the book was a “fair use.”

The Paradox of Source Code Secrecy

Decision-making algorithms are increasingly used in administrative law, as well as in civil and criminal justice, raising due process concerns. Source code is protected from scrutiny by trade secret law.