Issues
Browse By:
Volume 19 - Issue 2
MUDDY WATERS: FAIR USE IMPLICATIONS OF GOOGLE LLC v. ORACLE AMERICA, INC.
Ooh
In the muddy water we’re falling
Ooh In the muddy water we’re crawling
Holds me down
Hold me now
Sold me out
In the muddy waters we’re falling
— Laura Pergolizzi (LP) – “Muddy Waters,” Lost On You (Vagrant Records 2016)
The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.
The Court’s fair use ruling provides important guidance on the scope of fair use in the context of computer software and other functional works, and it provides some clarity on the extent to which a use of copyrighted works can be deemed transformative. But the Court’s analysis might only exacerbate the unpredictable nature of the fair use defense, particularly given its treatment of the role of good faith, the scope of potential markets that may be affected by an unauthorized use of copyrighted works, and the role (if any) of the public interest in the market effect factor of the fair use analysis.
MAXIMIZING SOCIAL WELFARE THROUGH THE TAILORING OF PATENT DURATION AND USING ALGORITHMS TO CALCULATE OPTIMAL PATENT DURATION
Patents are legal devices granted by the government that confer inventors exclusive rights to their invention for a limited time. In exchange, the U.S. government requires the inventors to publicly disclose their invention to allow individuals to recreate it upon expiration of the exclusivity period. Previously, academics regarded patents as a necessary means to overcome the free-rider dilemma (“FRD”), and they assumed that, without patents, society would be deprived of many potentially valuable innovations. This model has come under criticism. Researchers point to cases where inventors would have innovated regardless of a patent grant. They also highlight instances where patent owners use patents in ways not originally contemplated under this model and that create additional societal deadweight loss. Furthermore, patents have a standardized term of duration, which, in many cases, is counterproductive to the patent system’s intended goal of maximizing social welfare.
This note explores and categorizes some of the external, noneconomic alternative mechanisms that incentivize innovation and result in inventors overcoming the FRD. This note also points to factors that affect an inventor’s responsiveness to incentive mechanisms, such as industry type. The note then considers different policy levers that affect patent strength, emphasizing patent duration. The note explores how these levers interact with incentive mechanisms to create optimal duration patents that maximize social welfare. Lastly, this note proposes an algorithm for calculating optimal patent duration and identifies essential variables for feeding into the algorithm.
A MUSICAL CUE FOR FASHION: HOW COMPULSORY LICENSES AND SAMPLING CAN SHAPE FASHION DESIGN COPYRIGHT
The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.
This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of the music industry to protect designers’ intellectual property while conserving industry norms of creative inspiration and fleeting trend cycles.