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Quarterly Journal 39-4

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Table of Contents
 

Patent “Hold-Up,” Standards-Setting Organizations, and the FTC’s Campaign Against Innovators locked.gif

Roger G. Brooks​
A March 2011 FTC Report entitled “The Evolving IP Marketplace” recommends changes to patent remedies and to the practices of Standard Setting Organizations in order to address what the Report characterizes as a systemic problem of patent “hold-up”. This Article analyzes the industry and academic comment received by the FTC in response to that Report. That record strongly suggests that there simply is no systemic patent hold-up problem that could justify the proposed sweeping changes to patent remedies and the practices of SSOs. To the contrary, existing law combined with the consensus-based policies of SSOs have been effective in balancing the interests of all stakeholders in high-technology industries so as to stimulate investment at every step from basic research through manufacturing, creating jobs while bringing consumers the benefit of innovative technologies and continually improving price and performance. By contrast, the Report’s recommendations for changes to the existing law of patent remedies would arm prospective licensees to engage in “reverse hold-up” of innovators. This would significantly weaken the strength and value of patents and in the long run drying up the beneficial flood of investment and cooperation that now drives innovation markets. Once actual market incentives and conduct are considered, the FTC’s recommendations are not only unnecessary, but contrary to the policies underlying patent law and damaging to the public interest.
 

The IPv4 Number Crisis: The Question of Property Rights in Legacy and Non-Legacy IPv4 Numbers locked.gif

Ernesto M. Rubi
We are at a fork in the information superhighway. The finite supply of numbers that make it possible for workstations and mobile devices throughout the world to connect via the Internet is exhausted. As private and public actors grapple with this crisis, the relationship between those actors and their IPv4 numbers will take center stage. For example, can IPv4 numbers be owned, and if so, who owned them ab initio? What legal relationship do Internet Service Providers (“ISPs”) have to the IPv4 numbers on their networks? What is the value of an IPv4 block of numbers? What is the legal difference between a ‘legacy’ and a ‘non-legacy’ IPv4 number?

The recognition of IPv4 number ownership is inevitable and beneficial. The recent case of In re Nortel suggests that both legal analysis and business interests are aligned in treating legacy IPv4 numbers as property, with all the appurtenant rights. As we move forward, large Internet stakeholders such as ISPs, enterprises, and universities will increasingly recognize legacy IPv4 numbers as assets. Given the inescapable size limitation on the current IPv4 Internet and the slow adoption of transitional and next generation technologies such as IPv6, the conclusion is evident: IPv4 numbers must be free from their static bounds. Theworld.com depends on it.

Below the Surface of the ACTA: The Dangers that Justify New Criminal Sanctions Against Intellectual Property Infringement  locked.gif

Ryan Rufo
Any infringement of intellectual property rights causes an economic loss to the owner of a trademark, a copyright, or a patent. Additionally, social harms result from infringement, including health and safety risks to consumers, a disincentive to innovate, loss of legitimate jobs, the threat of government economic instability, harm to the reputation of legitimate brands, and a threat to national security. The United States, the European Union, and Japan initiated negotiations in 2007 on a multi-lateral agreement, the Anti-Counterfeiting Trade Agreement, to strengthen global protection and enforcement of intellectual property rights. This Article demonstrates that the criminal penalties of the ACTA can be justified through a norm-influencing education campaign and increased enforcement by member-states.
 
STUDENT NOTES

Joint Authorship and Collaborative Artwork Created Through Social Media locked.gif

Melissa Dolin
The Internet has created a new platform for creative expression, particularly for collaborative artists who can now reach a larger audience. This article explains why collaborative artwork created through social media should be considered a joint work of authorship. Although the initiating artist-developer may conceive the initial vision of a project, the Internet allows participants to view the initiating artist’s vision and to make their contributions comply with the artist’s expectations. As a result of both parties’ intent to collaborate, it is a joint work pursuant to copyright law principles. Specifically, this article explains that collaborators should be considered joint authors unless there is a contractual agreement to the contrary or the collaborators are anonymous contributors.
 

Public Video Gaming as Copyright Infringement locked.gif

Jihan Joo
As the video gaming population continues to grow, more people are taking their favorite pastime outside and playing video games in public. These video gamers go head to head in front of cheering crowd, big or small, whether it be in a professionally organized video gaming tournament or a friendly game of virtual bowling within their community. In particular, competitive video gaming, also known as e-sports, poses a question whether playing a lawfully purchased copy of a video game in front of an audience full of strangers infringes the copyrights associated with game. Specifically, a video game copyright owner may assert a violation of the right to publicly perform the copyrighted work under 17 U.S.C. § 106, because such public gaming events involve the showing of sequential images contained in a copyrighted audiovisual work. The alleged infringer may rely on the affirmative defense of fair use. In order to defeat this, copyright holders would do well to express an intent to profit from public gaming events even before the publication of their video games. While the success of fair use arguments will depend on case-specific facts, it is probable that courts will find fair use in many public video gaming disputes.

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