Intellectual Property Law – Page 46 – Marquette University Law School Faculty Blog

Who’s Afraid of ProCD?

Post author:Bruce E. Boyden
Post published:September 22, 2008
Post category:Computer Law Intellectual Property Law Seventh Circuit

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

Tafas and the Future of Patent Administrative Law

Post author:Michael M. O'Hear
Post published:September 17, 2008
Post category:Intellectual Property Law Legal Scholarship

My colleague Kali Murray has a new working paper on SSRN, First Things, First: A Principled Approach to Patent Administrative Law. Kali analyzes a controversial recent decision from the Eastern District of Virginia in Tafas v. Dudas. In the Tafas decision, currently on appeal in the Federal Circuit, the lower court rejected new rules adopted by the U.S. Patent and Trademark Office that limit the ability of patent applicants to file continuation applications. As Kali demonstrates, Tafas opens up deep questions about the extent to which the PTO is subject to normal principles of administrative law. Kali thinks it is indeed time to engage in a fundamental reconsideration of the relationship between patent law and administrative law. Her paper concludes with some helpful suggested principles to guide such a reconsideration.

Copyright Catch-22

Post author:Bruce E. Boyden
Post published:September 16, 2008
Post category:Intellectual Property Law

With the closing of Bill Patry’s Copyright Blog, there’s a distinct absence of copyright wonkery on the web. So I will occasionally do my best to chip in. Today’s case raises the following possibility: Suppose you run a business heavily dependent on a certain software program. And suppose the owner of that program keeps writing you cease and desist letters, saying that your copy is infringing and that each passing day accumulates more actual damages, as well as your profits attributable to the infringement. You want to clear this cloud from your business, and heaven forfend, if you are found to be infringing, put a cap on the damages. But let’s suppose the owner hasn’t gotten around to actually registering the copyright yet. Can you sue for a declaratory judgement action?

In Weitzman v. Microcomputer Resources, the Eleventh Circuit said no. That intolerable situation can persist until the owner finally decides to sue you instead.