This summer the Supreme Court found itself at the intersection of trademark law and the First Amendment, holding that a trademark cannot be denied for being “scandalous” without violating the U.S. Constitution. 3L Shivani Patel provides an analysis of the case and its implications on IP Law.
LIVE! FROM A COURTHOUSE NEAR YOU: HOW SHOULD WE ADDRESS PRIVACY CONCERNS FROM LIVESTREAMING COURT?
By: Gabrielle Gravel On the heels of a global shutdown in the wake of COVID-19, courthouses all over the country turned to technology to keep their very full calendars in motion. The solution was to move the myriad of required hearings and in some cases, even jury trials, to the now commonplace Zoom platform. By moving court to Zoom, the judicial branch has been able to reduce foot traffic in normally packed courthouses and still meet the requirements of due process and equity. In this move, incarcerated defendants can “appear” in court via a webcam in the jailhouse, attorneys can represent their clients without ever meeting them in person, and judges can sift through a hundred cases in a day. While this solution has helped tremendously to support social distancing measures, the impact on privacy in these proceedings is cause for concern. To uphold constitutional integrity, criminal court hearings are to be open to the public, and by live streaming directly from Zoom to YouTube, the judiciary can maintain this canon of the criminal justice system. Typically, an interested party would need to schlep it to the courthouse, take off work or find childcare, and maintain courtroom etiquette while observing court. The people attending such hearings had enough interest in viewing the proceeding that the costs related to physically traveling to the courthouse were outweighed by the benefit of actually being there. In this new era, anyone with internet access can stumble upon an American criminal court livestream and tune into some of the most personal (and juicy) information in a defendant’s life. Court websites containing streaming links warn spectators not to record any aspect of the streaming and Judges snap at defendants and witnesses not to share personal information such as names and addresses, but we are only human, and precious information is now being broadcasted to an incredibly wider audience than ever imagined by the Framers. While judges are still working out the various kinks in such a system, this blog argues that there are not enough safeguards in place to protect the privacy of these individuals and will offer an array of safeguard solutions for a safer Zoom Courthouse.
AN ARGUMENT FOR EMBRACING THE LEGALITY OF CROWDFUNDED GAME MODS
By: Mikela Gassert Modifications to video games, typically called mods, are a staple of gaming communities. These derivative works are not always supported or authorized by the original game publishers. In the absence of a legal method to paywall mods, developers have turned to crowdsourcing tools to fund the upkeep or creation costs for mods. The ramifications of this practice are unclear. Publishers and mod creators may soon become caught between the desire to provide freedom to players and the need to protect intellectual property rights. This post explains why the uncertainty should be resolved in favor of permitting crowdfunding. As a further remedy, video game mod creators and industry decisionmakers could adopt industry standards in the absence of legislation to the same effect.
FORGET ME, FORGET ME NOT: THE RIGHT TO BE FORGOTTEN IN THE UNITED STATES
By: Shivani Patel While the right to be forgotten is an understood legal right in Europe and many other countries, it is also a right that does not align with the values of the United States, specifically our First Amendment values. With privacy laws becoming a more commonplace discussion, it seems that this is inevitable conversation. How do we in United States deal with the clash between our First Amendment rights and a potentially necessary right to be forgotten? In Europe, the right to be forgotten allows people to have search engines remove links or information about them. Are there not times that this right could be a necessary evil? In this blog, I will explore this right as it functions in Europe and other countries, as well as how this right clashes with the First Amendment. I will then analyze how and why the right to be forgotten can be reconciled with the First Amendment in the United States. Also, I will explore how the United States can benefit from this right and what the implications of not having this right are.
HOW INTELLECTUAL PROPERTY LAW CAN SOLVE LITIGATION SURROUNDING THE HATCH-WAXMAN ACT BROUGHT BY THE COURT’S DECISION IN BRAEBURN V. FOOD & DRUG ADMINISTRATION
By: Eddy Atallah Since the inception of the Hatch-Waxman Amendments, the Food and Drug Administration’s (FDA) determination for three-year clinical investigations exclusivity was generally unquestioned. However, Braeburn v. FDA brought about significant interpretive challenges to the provision and questions about agency deference. This Blog considers the “double-edged sword” in trying to mitigate ambiguity within the Hatch-Waxman act. This Blog proposes a legal and scientific standard that should suffice the Court’s new requirement over the exclusivity determination process, a standard already firmly rooted in intellectual property law. Finally, this Blog also proposes changes to the FDA’s drug approval process which will help the agency fend off interpretive challenges. Hopefully, with these suggestions, litigation surrounding this inherently ambiguous statute will diminish. But importantly, these suggestions hope to maintain the overall purpose of the three-year clinical investigation’s exclusivity provision; incentivize the development of new drugs, albeit in forms such as a new indication, a new route of administration, or new dosage forms, while still enabling the approval of lower-cost generic copies or competitive therapies.
GEORGIA V. PUBLIC.RESOURCE.ORG, INC.: UNANSWERED QUESTIONS AND HOW THE COURT SHOULD SOLVE THEM
By: Sam Hayes The Supreme Court left the government edicts doctrine untouched for nearly 130 years until last year, when the Court revisited the doctrine in Georgia v. Public.Resource.Org, Inc. The central issue in Georgia v PRO concerned the copyrightability of the Official Code of Georgia Annotated, which included the text of every Georgia statute, as well as various non-binding annotations. The Court concluded that the Code’s annotations were not copyrightable because they were authored by legislators who have the authority to make the law. Particularly, although the annotations were drafted by a private company in a work-for-hire agreement with the Code Revision Commission, the Court nevertheless found that the Commission functioned as an arm of the Georgia Legislature. Despite the favorable judgment for the public, the standard developed by the Court, one in which the government edicts doctrine bars copyright protection based on authorship, remains too narrow to protect the public. It is unclear how the newly explained doctrine would apply in situations where works are authored by private parties, and then referenced or incorporated after the fact by lawmaking officials. Lower court decisions present two possible solutions for the Supreme Court to take in order to protect the public from this problem: (1) treating lawmaking officials as the authors of works that were produced by private parties when those lawmaking officials publicly incorporate them in their own works, or (2) adopt a case-by-case framework for when to consider lawmaking officials as authors of privately authored works on a case-by-case basis.
COLLINS AND CAPTIVA: WHAT IT MEANS FOR HEALTHCARE ORGANIZATIONS AND DATA BREACH CLASS ACTIONS
By: Raj Shah, Senior Regulatory Attorney & Policyholder Advisor, MagMutual Insurance Company & Nicholas Forsyth, Risk Intern, MagMutual Insurance Company This blog involves data protection and privacy law and addresses the difference in outcomes of the Georgia Supreme Court case of Collins and the 11th Circuit case of Captiva. The work discusses whether Georgia law and the 11th Circuit have different pleading standards in a class action regarding negligence in a data breach. The work lays out the probable future implications these two court cases will have on healthcare organizations located within Georgia. The work offers our thoughts and opinions and related advice to healthcare organizations and their counsel on reducing the likelihood of a class action suit regarding negligence in a data breach.
IT’S THE COPYRIGHT INFRINGEMENT FOR ME: WHY CLAIMS AGAINST MEME CONTENT SHOULD NOT MATTER
By: Taylor Bussey Internet memes are a unique derivative use of otherwise copyrightable content. In this blog post I will discuss whether or not protection matters. Given the nature of the internet—very fleeting content—and of intellectual property litigation—traditionally, painfully slow—does copyright of a meme even matter? I will include a law and economics analysis, using the Cosean placement-of-entitlement matrix, regarding whether the placement of the entitlement will ultimately affect bargaining amongst the parties. I conclude that the placement of the entitlement does not matter because of the weakness of the enforcement mechanisms against copyright infringement of this scale.
STEALING HOME: A PROPOSAL FOR RESCUING FANS AND FRANCHISES FROM THE COUNTERFEIT SPORTS APPAREL MARKET
By: Tyler Dysart The sports apparel market is plagued by counterfeit products that reproduce athletic teams’ trademarks at a fraction of the cost. This problem is catalyzed by exclusive licensing deals granted to manufacturers by sports teams, which drive up costs of these officially licensed goods and in turn forcing many consumers to go to black market websites to purchase apparel. This dichotomy is due to the unique nature of sports trademarks, whose purpose is not to inform consumers about the source of the good, but merely used to inform others about the consumers themselves – that they support a specific team. This is out of line with the modern policies behind trademark law, which is to protect consumers, not the manufacturers. Therefore, I propose a federal system that would regulate sports trademark licensing, making it available to all manufacturers at specified rates, thus lowering the costs of goods for consumers and squashing out the black market.
TIME TO CUT THE MUSIC?: TWITCH’S UNFAIR SOLUTION TO AN INEVITABLE DIGITAL MILLENIUM COPYRIGHT ACT PROBLEM
By: Marcus McGinnis Within the twelve months prior to publication of this blog, changes to the Digital Millennium Copyright Act (the "DMCA") enforcement protocols on Twitch have created an unsustainable environment for creators on the platform who are subject to a set of draconian pre-Web 2.0 laws that stifle content creation efforts through unfair copyright enforcement mechanisms. The issue lies mostly in how the DMCA incentivizes online service providers to "expeditiously" handle licensing issues. This approach has led to creator's having to delete entire backlogs based on claims that would likely be considered fair use if actually looked into because it is the most efficient solution for the platform. This sort of deadweight loss is detrimental to platforms, creators, and audiences because the risk of demonetization or deletion after the fact may dissuade some creators and audiences from even investing in content creation efforts at all. In this blog post, I will explain how Twitch found itself in its current DMCA predicament, why its current proposed solution of mass backlog deletion is unsustainable, and why the platform should follow the approach of rival platforms and proactively utilize its vast resources to negotiate a more equitable, private contract solution with music license holders. Given the disparity in negotiating power between a platform the size of Twitch and individual creators, Twitch is better situated to take on the burdens of negotiating a music licensing solution on behalf of all of the creators who drive traffic to their site.
HIT NETFLIX CONTENT AND THE COPYRIGHT INFRINGEMENT THAT FOLLOWS
By: Baylee Carter From “Narcos” to “Stranger Things”, Netflix has produced binge-worthy content. With the many shows, movies, and documentaries that Netflix brings to viewers, there have been increased allegations of copyright infringement. This blog post looks at several noteworthy copyright infringement cases Netflix has defended in the last few years in the United States. Content examined includes whether or not Netflix settled and what defenses were asserted if Netflix went to trial. Using the last few cases as a guide, I will examine what Netflix has learned from these past cases and then predict how Netflix content and defense strategies may change based on the outcomes of these requisite cases.
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