Latest Issue: Volume 16, Issue 3

COPYRIGHT LAW AS AN ENGINE OF PUBLIC INTEREST PROTECTION

By: Sun, Haochen | March 13, 2019

Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection. Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.

THE WAITING IS THE HARDEST PART: DOES LONGER PATENT PENDENCY MEAN MORE VALUABLE PATENTS?

By: Ellenberger, Michael P. | March 13, 2019

The United States Patent and Trademark Office (USPTO) is one of the busiest—and slowest—patent offices in the world. The average utility patent is pending for 25.3 months before issuance. For parties that require legal protections in fast-moving technological fields, such as mobile technology startup, the waiting could be detrimental. Moreover, the patent backlog problems worldwide cost the global economy over $10 billion per year. Even under such a delay, an increasing number of issued patents are threatened or invalidated in the U.S. court system. Undoubtedly, then, if patents are considered to have “quality” only if they are both (a) valid and (b) litigation-proof, the USPTO is failing. If, however, instead the consideration is broadened as to what it means for a patent to be “high quality”— using the four “patent worth considerations” of market, signal, impact, and reputational value—then the situation looks far from disastrous. This note proposes to examine the time-value dynamic of a patent and evaluate whether, in consideration of a variety of metrics, long-pending patents are more valuable. In short, are patents worth the wait? This note concludes with proposals for a more efficient Patent Office through examination of existing functional policies both internal to the USPTO and abroad.

HENRY DARGER’S “REALMS OF THE UNREAL”—BUT WHO IN THE REALM IS KIYOKO LERNER?

By: Westby, Elyssa | March 13, 2019

In 1973, Henry Darger died in Cook County, Illinois, leaving behind a body of drawings, paintings, and collages that has since risen to international prominence as outsider art. While Darger is a household name in the art world, Kiyoko Lerner–the widow of Darger’s last landlord, Nathan Lerner–is the listed owner on the Darger copyrights since the late 1990s. This note explores the curious case of Henry Darger’s copyrights and how Lerner’s ownership is likely invalid under legal theories of estate, gift, and landlord-tenant transfer. The case of the late photographer Vivian Maier’s estate, currently subject to legal challenge in Cook County, Illinois, serves as a prescient example of invalid copyright transfer upon discovery of an outsider artist’s work.

Journal of Technology and Intellectual Property Tweets