Expanding Preferential Treatment Under the Record Rental Amendment Beyond the Music Industry

In January 2007, the Sixth Circuit Court of Appeals decided Brilliance Audio, Inc. v. Haights Cross Communications, Inc. and answered a lingering question concerning the Copyright Act that had persisted for over twenty years. The court decided whether the protections offered to the music industry under the poorly drafted Record Rental Amendment of 1984 also extended to audiobooks and other non-musical works. This Act deprives owners of items such as tapes and compact discs from renting those items to others without the consent of the copyright owners of the recorded song and the written lyrics and music - a right historically granted to consumers under the first sale doctrine. Ultimately, the court held that the special protections granted by the Record Rental Amendment were limited to the music industry. However, both the majority and vigorous dissenting opinions highlighted the differing interpretations of the Act\u27s applicability and set the stage for a circuit split. This article first explores the text and historical developments of copyright law\u27s first sale doctrine and the Record Rental Amendment and the Sixth Circuit\u27s interpretation thereof. Next, it examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works and ultimately suggests two alternative amendments Congress should adopt to resolve future conflicts and avoid a split amongst the circuits

Patent Reform and Best Mode: A Signal to the Patent Office or a Step Toward Elimination?

On September 16, 2011, President Obama signed the America Invents Act (AIA), the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law\u27s best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. The AIA still requires patent applicants to disclose the best mode, but has removed the traditional enforcement mechanisms – declarations of invalidity and unenforceability – as defenses to patent infringement. In this article, I propose and explore a couple innovative techniques that could be used to add teeth to the seemingly toothless best mode requirement. Ultimately, I reject these proposals as not being workable solutions and suggest that Congress\u27s resolution of the best mode problem is nonsensical and that it should completely eliminate the requirement rather than sending mixed signals to the Patent Office and patent practitioners

Acting Like an Administrative Agency: The Federal Circuit En Banc

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit\u27s practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc and the means by which it hears them goes beyond the limited role of a court – to decide the case before it. Instead of exercising restraint and addressing only what it must, the Federal Circuit raises wide-ranging questions and makes broad pronouncements of law that sets or changes patent policy. This role has traditionally been delegated to administrative agencies that must comply with the Administrative Procedure Act, particularly the notice and comment provisions. Despite being an appellate court and not being subject to the notice and comment requirements, the Federal Circuit seems to comply with these requirements when it orders cases to be heard en banc. And although there are strong objections as to why the en banc Federal Circuit should refrain from acting like an administrative agency by engaging in substantive rulemaking and policy setting, I argue that the Federal Circuit is probably in the best position to do so, although other governmental bodies can or should play a larger role in shaping patent policy

Work Made for Hire – Analyzing the Multifactor Balancing Test

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three years later, in 1992, the Court of Appeals for the Second Circuit decided Aymes v. Bonelli and noted that not all factors are equally weighted and that five of the factors would “be significant in virtually every situation.” This analysis was supported by looking at all the work made for hire cases decided in the three year period since Reid – six cases in total. This Article expands in both scope and time what the Second Circuit did in Aymes and systematically analyzes how courts have utilized the factors in the twenty-five years since Reid. In particular, this study has identified the universe of cases where the courts have decided whether a hired party was an employee or independent contractor and uses the data from these cases to describe what factors appear to be the most and least important in reaching these conclusions. Based on the results of this study, this Article proposes a continuum of importance, which graphically illustrates the relative importance of each factor

Who Knew? Admissibility of Subsequent Remedial Measures when Defendants are Without Knowledge of the Injuries

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff\u27s injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to have made significant product or warning improvements which, if taken before the plaintiff\u27s exposure, may have prevented the injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet allowing such measures into evidence may not have the same chilling effect as when the measure was taken in response to the plaintiff\u27s injury. In such circumstances, it can be argued the defendant never feared the measure would be used against it. Since the policies behind Rule 407 may not support the exclusion of such evidence, should it still be applied? This article explores Rule 407, its policy underpinnings, courts\u27 differing interpretations of the rule, and how it should be applied to defendants who take subsequent remedial measures without knowledge of a plaintiff\u27s injury. Finally, we suggest an interpretation of and amendment to Rule 407 that clarifies the rule and furthers its policy bases

Design Patents: An Alternative When the Low Standards of Copyright are Too High?

The standard for copyright protection is notoriously low – the work must be independently created and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category. In contrast, and for good reason, the standard for design patent protection is much more burdensome. The field of design patents protects new, original, ornamental, and non-obvious designs. This more difficult standard, which generally subsumes the copyright standard, would lead one to assume that anything failing the low copyright standard would not be eligible for design patent protection. However, the Patent Office has issued design patents for blank forms and recent case law has either upheld design patent protection for blank forms or declined to categorically refuse such protection. This article explores the blank forms doctrine in copyright, the overlap between copyright and design patent protection, why the law\u27s refusal to protect blank forms under copyright is necessarily inconsistent with the law\u27s protection of blank forms via design patents, and possible judicial, Congressional, or administrative solutions to resolve this inconsistency

Who Knew? The Admissibility of Subsequent Remedial Measures When Defendants Are Without Knowledge of the Injuries

Federal Rule of Evidence 407 and equivalent state court rules prohibit the introduction of subsequent remedial measures for the purpose of demonstrating negligence, culpable conduct, or product defect. The rule breaks down, however, in application and purpose, when a defendant undertakes a new safety measure after the plaintiff\u27s injury but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety, whether in response to injuries incurred by other users, business pressures, or simply advances in the state of the art and scientific knowledge. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime and growing example of cases where defendants are likely to have made significant product or warning improvements which, if taken before the plaintiff\u27s exposure, may have prevented the injury. Even traditional products liability cases encounter this problem. For example, a manufacturer of industrial equipment may introduce a guard to a machine simply to make the product more competitive with other models without knowledge that plaintiff John Doe injured himself the week before on the old, unguarded machine. Should evidence that the machine now comes with a guard be admissible? The literal text of Rule 407 suggests not. Yet allowing such measures into evidence may not have the same chilling effect as when the measure was taken in response to the plaintiff\u27s injury. In such circumstances, it can be argued the defendant never feared the measure would be used against it. Since the policies behind Rule 407 may not support the exclusion of such evidence, should the rule still be applied? This article explores Rule 407, its policy underpinnings, courts\u27 differing interpretations of the rule, and how the rule should be applied to defendants who take subsequent remedial measures without knowledge of a plaintiff\u27s injury. Finally, this article suggests an interpretation of and amendment to Rule 407 that clarifies the rule and furthers its policy bases

Abolishing the Missing-Claim Rule for Judicial Cancellations

This article questions why some courts that have already found a federally registered trademark invalid refuse to cancel the registration despite having the authority to do so under § 37 of the Lanham Act. Examination of cases involving judicial cancellations reveals that a failure to assert cancellation as a claim, as opposed to a variety of other methods of requesting cancellation, is the reason courts refuse to exercise their power under § 37 - referred to as the missing-claim rule. This article criticizes the missing-claim rule as illogical and frustrating trademark law\u27s purpose and proposes the missing-claim rule be abolished, that courts should invoke their power under § 37 sua sponte, and that on appeal, a failure to cancel under § 37 when invalidity has been established would be considered a per se abuse of discretion. These proposals complement trademark law\u27s underlying policy, appropriately balance the burdens on the courts and U.S. Patent & Trademark Office, and do not present the typical objections to sua sponte action. In addition, these proposals can be adopted without amending the text of § 37, although an amendment is suggested if the courts refuse to adopt such practices

The Federal Circuit as an Institution

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines this development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution.This chapter begins with an overview of the concerns existing before creation of the Federal Circuit and then discusses the Federal Court Improvements Act of 1982, including what Congress was trying to achieve with the Federal Circuit and how the court was structured in terms of subject matter jurisdiction and the courts it replaced.Next, this chapter will describe the problem of not having a uniform patent law and how the Federal Circuit has impacted uniformity. It will describe how forum shopping was influenced and whether uniformity has affected the diversity and percolation of ideas related to patent law.This chapter then discusses how the Federal Circuit has impacted certainty and predictability of patent law. It begins by looking at where the pressure for certainty comes from. It then focuses on the Federal Circuit’s treatment of a few representative issues to determine whether the court has succeeded in providing it.Next, this chapter explores the quality of the Federal Circuit’s patent jurisprudence, including whether the Federal Circuit is too formalistic in its decisionmaking and if it pays enough attention to policy and technological considerations and scholarship.Given the focus on the Federal Circuit as an institution, this chapter will describe how the Federal Circuit is structured, the makeup of the individual judges on the court, and how these qualities affect the court as such. The role of individual judges and types of judges on the Federal Circuit are examined as well as how internal dynamics and en banc hearings play a role in the decisionmaking process.This chapter then explores the Federal Circuit’s interactions with other institutions and examines which institutions are and should be performing what role in the development of patent law. This section notes the interesting and dynamic interactions the Federal Circuit has had with the Supreme Court, the United States Patent and Trademark Office, district courts, the Solicitor General, and Congress. Finally, this chapter closes with concluding thoughts about empirical research on the Federal Circuit and suggests further areas of exploration

Viewing Virtual Property Ownership Through the Lens of Innovation

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights. This article moves beyond the conceptualization debate and asks two new questions from a new perspective. First, how ought virtual property rights be allocated so innovation and creativity can be maximized? Second, how can the law be changed to remove barriers that unnecessarily impede a regime that maximizes creativity and innovation in virtual worlds? As to the first question, there is evidence supporting the notion that users creating virtual property should be the owners of the virtual property rights. However, strong counter-arguments exist showing that ownership by developers may best promote cumulative innovation and creativity. Nonetheless, what is clear is that there exists a potential for an innovation-maximizing regime that is different from what commonly exists today. This is where the second question comes into play. As to the second question, the current state of the law causes virtual world developers to be unwilling to relinquish their hold over virtual property rights. Developers\u27 reluctance to do so results from fears of liability, loss of control, and being forced to create at a more rapid pace so as to keep users interested. To relieve these concerns and open up the possibility for a regime that may put virtual property in the hands of those who will maximize innovation and creativity, this paper urges the creation of a safe harbor which provides enough incentive for developers to choose to hand over some control and explore property allocation regimes that may maximize innovation and creativity