By: Taylor Bussey

Internet memes are a unique derivative use of otherwise copyrightable content. In this blog post I will discuss whether or not protection matters. Given the nature of the internet—very fleeting content—and of intellectual property litigation—traditionally, painfully slow—does copyright of a meme even matter? I will include a law and economics analysis, using the Cosean placement-of-entitlement matrix, regarding whether the placement of the entitlement will ultimately affect bargaining amongst the parties. I conclude that the placement of the entitlement does not matter because of the weakness of the enforcement mechanisms against copyright infringement of this scale.

By: Tyler Dysart

The sports apparel market is plagued by counterfeit products that reproduce athletic teams’ trademarks at a fraction of the cost. This problem is catalyzed by exclusive licensing deals granted to manufacturers by sports teams, which drive up costs of these officially licensed goods and in turn forcing many consumers to go to black market websites to purchase apparel. This dichotomy is due to the unique nature of sports trademarks, whose purpose is not to inform consumers about the source of the good, but merely used to inform others about the consumers themselves – that they support a specific team. This is out of line with the modern policies behind trademark law, which is to protect consumers, not the manufacturers. Therefore, I propose a federal system that would regulate sports trademark licensing, making it available to all manufacturers at specified rates, thus lowering the costs of goods for consumers and squashing out the black market.

By: Marcus McGinnis

Within the twelve months prior to publication of this blog, changes to the Digital Millennium Copyright Act (the “DMCA”) enforcement protocols on Twitch have created an unsustainable environment for creators on the platform who are subject to a set of draconian pre-Web 2.0 laws that stifle content creation efforts through unfair copyright enforcement mechanisms. The issue lies mostly in how the DMCA incentivizes online service providers to “expeditiously” handle licensing issues. This approach has led to creator’s having to delete entire backlogs based on claims that would likely be considered fair use if actually looked into because it is the most efficient solution for the platform. This sort of deadweight loss is detrimental to platforms, creators, and audiences because the risk of demonetization or deletion after the fact may dissuade some creators and audiences from even investing in content creation efforts at all. In this blog post, I will explain how Twitch found itself in its current DMCA predicament, why its current proposed solution of mass backlog deletion is unsustainable, and why the platform should follow the approach of rival platforms and proactively utilize its vast resources to negotiate a more equitable, private contract solution with music license holders. Given the disparity in negotiating power between a platform the size of Twitch and individual creators, Twitch is better situated to take on the burdens of negotiating a music licensing solution on behalf of all of the creators who drive traffic to their site.

By: Baylee Carter

From “Narcos” to “Stranger Things”, Netflix has produced binge-worthy content. With the many shows, movies, and documentaries that Netflix brings to viewers, there have been increased allegations of copyright infringement. This blog post looks at several noteworthy copyright infringement cases Netflix has defended in the last few years in the United States. Content examined includes whether or not Netflix settled and what defenses were asserted if Netflix went to trial. Using the last few cases as a guide, I will examine what Netflix has learned from these past cases and then predict how Netflix content and defense strategies may change based on the outcomes of these requisite cases.

By: Mickey Tomlinson

This blog post addresses how important consumer surveys will be for “generic.com” owners because of the United States Supreme Court’s recent Booking.com BV v. USPTO decision. The Supreme Court held there is not a per se rule that automatically bars a “generic.com” from being trademarked, rather the consumer perception of the mark determines its eligibility for trademark registration. Booking.com presented evidence consumer surveys illustrating the fact that consumers associate “Booking.com” as a specific company that offers online hotel booking and accommodation services rather than as a class of goods or services. While the Supreme Court found Booking.com’s evidence persuasive, the dissent did not; Justice Breyer argued “generic.com” cannot receive trademark registration because (1) it violates traditional trademark law and (2) consumer surveys are not reliable. Ultimately, the Booking.com BV v. USPTO decision indicates consumer surveys are invaluable and will likely be offered early as evidence in the trademark registration process for similar “generic.com” marks.

By: Jake Shapiro

Artists have recently discussed the consequences of not owning their masters, which results in a lack of control of the music they created. This is the result of certain provisions in a recording agreement, and it is unlikely that these provisions go away despite efforts by artists to negotiate more favorable deals. This type of provision played a large role in a lawsuit where 50 Cent sued Rick Ross for Rick Ross’s sampling of a portion of 50 Cent’s “In Da Club” hit. Because 50 Cent’s recording agreement with Shady/Aftermath records left him without any copyright ownership in his masters, 50 Cent had to sue based on a state right-of-publicity theory since the record label had the exclusive right to enforce or not enforce the copyright ownership. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s grant of summary judgment for Rick Ross under the doctrine of implied and express preemption as federal copyright law preempted 50 Cent’s state right-of-publicity claim in this case. I use this result to show provisions in a recording agreement can impact litigation. I then explain how artists should negotiate more favorable provisions to give them the right to sue when their record label decided to tolerate infringement and not take legal action.

By: Audrey Harris

Illegal streaming currently causes an estimated $29.2 billion annual loss to the United States’ economy. This economic loss to the economy prompted the passage of the Protecting Lawful Streaming Act (PLSA) on December 27, 2020. Prior to the passage of this law, the public performance of copyrighted material resulted in only misdemeanor liability, while the reproduction of copyrighted material resulted in felony liability, leading to what was known as the “streaming loophole.” The Protecting Lawful Streaming Act aims to close this streaming loophole by mandating that the public performance of copyrighted material will result in felony liability. This blog posting explores the economic implications that gave rise to the new law and the prior failed attempts to close the streaming loophole, while assessing potential repercussions of PLSA on the growing industry of DJs providing virtual concerts.

By: Jace D. Williams

The United States Supreme Court has never directly confronted whether patents are protected by the Fifth Amendment Takings Clause. Currently, the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) are working together on a proposal with the automotive industry. This proposal is to reach the EPA’s emission standards for increased fuel efficiency and reduced greenhouse gases. Could the EPA use compulsory licensing under the Clean Air Act to accelerate the diffusion of patented technology to the rest of the automotive industry to satisfy the EPA’s emissions goals?
This blog argues that patents are, and have historically been, private property protected by the Takings Clause. Twentieth-century law created a distinction between land and patents that hinges on their tangible and intangible nature. This is incorrect. Distinguishing between property’s tangible or intangible nature is immaterial, but distinguishing between the rights and benefits conferred by Congress creates a stronger standard.

By: Charles Wells

Video games are a massive and rapidly developing industry with novel legal challenges are developing alongside those advancements. A key challenge in this developing area is the practice of “modding,” a process by which people other than the original video game developers access the software or hardware comprising a game and modify its contents. The unique technological character of modding stretches the conventional application of important intellectual property doctrines such as fair use and the treatment of derivative works. The current state of the law heavily favors developers and wealthy third parties, stifling the creative efforts of individual modders.

By: Hannah Hall

In a recent Ninth Circuit case, the court cited the need to protect the plaintiff’s right to free speech. The defendant promptly petitioned for certiorari, calling the court’s protective move “egregiously misguided.” What kind of newsworthy controversy would spark such weighty concerns and yet also garner such strong criticism? Dog toys, of course. In this post, the JIPL Blog takes a sniff at VIP Products, LLC v. Jack Daniel’s Properties, Inc., why trademark law allows parodic products to proliferate, and whether the Ninth Circuit’s decision really changes the law on parody.