Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule...
“Parallel Play: The Simultaneous Professional Responsibility Campaigns Against IP Practitioners by the United States and China” describes efforts by the United States Patent and Trademark Office and the China National IP Administration to discipline trademark and patent practitioners through contemporaneous campaign-style approach directed to bad faith filings. At the USPTO, many...
There is a built-in tension between the perception of copyright law as promoting a delicate balance between the interests of creators, distributions, and users of information goods and contract law’s laissez-faire philosophy. Legal systems need to decide how to approach this tension and specifically whether, and to what degrees, to allow parties to freely contract around the...
Three cases involving non-fungible tokens are grabbing the attention of fashionistas, intellectual property mavens, and metaverse cognoscenti alike. All three are cases of first impression, despite involving trademark infringement claims. All are considered to be cases that will determine whether old trademark principles apply to new technology, and each has compelling and...
Copyright law does not require an object to be “art” to be protectable, except in one respect: copyright protection does not extend to useful articles. As a result, courts engage in analysis strikingly similar to that of conceptual artists visualizing art. Copyright law has an uneasy relationship with conceptual art because the Copyright Act also requires works to be original and...
Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been...
Trademark defenses such as descriptive fair use have been codified in the Lanham Act for decades. Despite the practical necessity of nominative fair use, it has yet to be codified into the Lanham Act. While the Supreme Court has offered guidance on descriptive fair use, there is currently no such guidance with respect to nominative fair use. Currently, our best guidance is a...
There is a circuit split over the interpretation of 42 U.S.C. § 405(h), which requires providers to exhaust their remedies with the Department of Health and Human Services (HHS) before proceeding to court. This split originates from a recodification that omitted several jurisdictional grants from § 405(h), leaving courts to decide whether to continue interpreting the statute as...
Every four years, citizens across the United States vote for a presidential candidate. However, those citizens are actually voting for electors who then vote for the president in the Electoral College on the citizens’ behalf. Electors become faithless when they do not vote for the candidate that they were pledged to vote for. In Chiafalo v. Washington, the Supreme Court upheld...
A common practice in commercial agreements is to include a clause setting out where litigation will take place in case of a dispute between the contracting parties (a “forum selection clause”). The natural expectation of parties using such clauses is that in the event of litigation between them, this stipulation will be treated the same way as other contractual stipulations...
There have been numerous major efforts to reform and codify American Evidence law. The efforts include the Model Code, the Uniform Rules, the California Evidence Code, and, of course, the Federal Rules of Evidence. The various reform initiatives have attempted to create “an evidence bible for busy trial judges and attorneys.” Of course, to resolve the many common-law splits of...
This note addresses the current issues with the law and digital currencies, federal agencies’ current classifications of cryptocurrencies, problems with those classifications, and solutions to better regulate, classify, and prosecute virtual-currency crimes. The history of digital currencies, the history of criminal activity involving money, and how the creation and widespread...
This essay argues that the ODPA [Ohio Data Protection Act], which has become a model for similar laws and legislative proposals in several other states, in effect creates a process-based standard for cybersecurity. It does so by incorporating the risk-based approach used by the listed cybersecurity frameworks as the defacto standard for reasonable security for organizations...
Rapidly evolving technology allows governments and businesses to elevate our collective well-being in ways we could not have imagined just decades ago. Data is now a resource that governments and businesses alike can mine to address the world’s needs with greater efficiency, accuracy, and flexibility. But evolving technology and advanced data analytics also come with risk. New...
Recent scholarship has expanded the scope of analytical tools available to patent law researchers. The foundation of information theory published by Claude Shannon has been applied to textual analysis to determine the similarities of patents and to assess a patent’s value. This article presents a theoretical application of information theory to quantify lexical ambiguity and...
Trademarks, which are premised on product differentiation, are alleged to play a divergent role when used on pharmaceutical products: they tend to create an artificial product differentiation for the bioequivalent pharmaceutical products that are marketed as branded, generics, and branded-generic products. It is implied that the companies incorporate trademarks to market their...
The Digital Age has enabled individuals worldwide to store, organize, and share everything from cherished memories embodied in photographs and videos to academic writing and correspondence. Yet, archived collections of academic, public, and private libraries are out of reach to many, and many books are now beyond reach because they are no longer in print. The high cost of...
The Anarchist Cookbook by William Powell remains one of the most controversial books in print, even 50 years after its first publication. The story to be told about its ongoing publication can teach us about the politics of authorship, ownership, publication, copyright assignments, the public domain, and the legacies our printed words leave behind. Later in life Powell regretted...
Self-defense, while universally recognized as a natural human right, embodies a complex set of scenarios that hinges on the level, place, and imminence of a threat to life. The modern expansion of self-defense laws, namely Stand Your Ground, allows for a wholly subjective anticipation of a threat by removing the duty to retreat, and withdraws both criminal and civil...
For nearly twenty-four years, the state of Ohio has funded education unconstitutionally. Columbus lawmakers have paid little attention to the DeRolph progeny of cases, which repeatedly provided that an education funding formula rooted in property tax values fails to pass constitutional muster. In 2019, lawmakers finally provided a solution in HB 305: the Cupp-Patterson proposal...
Felony disenfranchisement laws prevent millions of American citizens from voting. While the recent legal trend has been to eradicate felony disenfranchisement, each state currently has a unique framework, and the issue remains unsettled nationwide. In 2018, the state of Florida passed a constitutional amendment that allowed felons to regain their right to vote once their sentence...
Federal and state governments have embraced drone technology in recent years to stimulate a domestic industry for new jobs and long-distance delivery services. However, the federal-state breakdown about who manages drone airspace and surface air rights has not been resolved, which, as the Government Accountability Office recently reported to Congress, threatens the progress of...
Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (FAA), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation. This article presents...
The Supreme Court has warned against the creation and expansion of patent-specific rules of procedure where the general law would suffice. The recently revived and expanded Kessler doctrine is one such patent-specific rule, and we argue its time has come for resorption into the general law of preclusion that has since expanded to encompass the doctrine. We utilize a novel law and...
This Article traces the First Amendment caselaw that, for more than half a century, has sided with speakers facially challenging overbroad workplace policies that forbid sharing information with the press and public. The Article then reports on the results of a nationwide survey of police and sheriff’s department policies by the Brechner Center for Freedom of Information...