ntellectual Property: A Survey of the Law teaches the law of trademark, copyright, patent, and tr... more ntellectual Property: A Survey of the Law teaches the law of trademark, copyright, patent, and trade secret. The casebook presents the material so that it is accessible to students and explains the black-letter rules and underlying policies in a straightforward and simple manner. It provides examples, practice problems, and explanations for each area of the law, facilitating mastery of fundamental concepts. “Case Comprehension” questions follow each case excerpt to help students focus on key points. “Beyond the Case” questions challenge students to apply doctrines and policy outside the context of the specific case. Substance draws from both well-established jurisprudence and recent developments in case and statutory law
This chapter reviews the conclusions of each individual chapter. It presents the arguments in one... more This chapter reviews the conclusions of each individual chapter. It presents the arguments in one coherent body, relating each chapter’s conclusions with the conclusions of the other chapters. It summarizes the moral limitations in the theory of intellectual property; the counterarguments against that conclusion; the presumption against judges making moral decisions; the exceptional equitable doctrine of unclean hands and the judicial history surrounding that doctrine in copyright and patent law; the constitutional obligation to deny protection for works that fall outside the meaning of the progress of science and useful arts; the moral discretion of Congress to deny protection; and the restraint on Congress’s discretion to deny protection that is imposed by free speech doctrines. It calls for courts, Congress, and executive agencies to uphold the moral values that underlie intellectual property law.
Patent Law: Fundamentals of Doctrine and Policy provides a remarkably accessible yet robust intro... more Patent Law: Fundamentals of Doctrine and Policy provides a remarkably accessible yet robust introduction to patent law and its practical application. Written in a straightforward style, the authors focus on providing a deep understanding of doctrine and policy, without “hiding the ball” in ways that can hinder student comprehension. The book will appeal to students who have scientific and technical backgrounds or prior patent experience, as well as students who simply have an interest in technology and innovation and seek a well-rounded legal education. The book teaches all the core patent statutes and doctrines in the United States patent system. Novelty, nonobviousness, subject matter, infringement, defenses, and remedies all receive thorough attention. The book also includes chapters that address the history of patent law, patent application drafting and prosecution, patent litigation, and design patents. These additional chapters afford students an opportunity to understand the ...
This chapter examines whether the Intellectual Property Clause provides Congress moral discretion... more This chapter examines whether the Intellectual Property Clause provides Congress moral discretion to deny intellectual property protection. It concludes that the Clause’s statement of purpose provides Congress broad discretion to select which subject matters of expressions and inventions should receive protection. The discretion, however, is limited by the Free Speech Clause of the First Amendment, which is discussed in the next chapter. This chapter also addresses the circumstances under which Congress should exercise its moral discretion to deny protection. It posits three principles that should guide Congress: whether a work directly causes a harmful effect; whether that effect poses a significant problem for society; and whether potential benefits of the work may outweigh the harmful effects.
The question of whether the common law permits a neighbor to joyride on a wireless network presen... more The question of whether the common law permits a neighbor to joyride on a wireless network presents novel and complex issues of tort and property law. This Article addresses the question of whether the joyriding neighbor commits an actionable trespass against the Wi-Fi operator. Part II explains how a wireless network functions, and how a neighbor is able to access that network. Part III examines whether the neighbor\u27s conduct satisfies the elements of trespass to chattel, identifying the chattel at issue as the Wi-Fi router. Part III concludes that the neighbor\u27s conduct satisfies the elements of trespass to chattel. Part IV examines the defenses to trespass to chattel, addressing whether joyriding is permissible when a Wi-Fi operator has not password protected the network or when the Wi-Fi operator\u27s network interferes with the neighbor\u27s ability to set up his or her own wireless network. Part IV concludes that neither the absence of password protection nor the presenc...
This chapter argues for a general presumption against judges or executive agencies relying on mor... more This chapter argues for a general presumption against judges or executive agencies relying on moral considerations to deny intellectual property rights. It recites the case law that well establishes this principle in both the contexts of copyright and patent. The chapter further argues, however, that courts or executive agencies should do so in the following exceptional situations: where Congress has enacted a constitutional statute that requires denial for a moral reason; where the Constitution mandates denial for a moral reason; and where an intellectual creation involves unlawful activity. The chapter explains why these circumstances merit an exception to the general presumption. It sets up the discussion for the ensuing chapters.
This chapter argues that the three theories which underlie the system of intellectual property im... more This chapter argues that the three theories which underlie the system of intellectual property imply that specific moral values limit the scope of protectable subject matter. The economic theory, the labor-desert theory, and the autonomy-personality theory each impose certain moral limitations. Specifically, the economic theory implies that the law should not incentivize creations that result in a net harm to society; the labor-desert theory implies that the law should not reward creators whose intellectual works harm life, health, liberty, or property of another; and the autonomy-personality theory implies that the law should not recognize rights in works that inhibit another’s exercise of autonomy or personality. In examining these theories and their moral values, this chapter does not address specific issues of application.
This chapter considers whether denying patent or copyright protection on moral grounds is inconsi... more This chapter considers whether denying patent or copyright protection on moral grounds is inconsistent with doctrines of free speech. The chapter first examines whether moral denials of patent or copyright protection constitute a government restriction of private speech. For patent, it concludes that moral denials would not be such a restriction. The denial of patent protection likely reflects the government’s choice to selectively adopt private speech as its own, and even if not, the denials should be viewed as permissible regulations of conduct that only incidentally affect speech. By contrast, this chapter concludes that for copyright, moral denials of protection would restrict authors’ private speech. Consequently, the chapter further examines whether an exceptional doctrine in free speech law might excuse moral denials of copyright protection. The chapter posits that the limited-public-forum doctrine may excuse such denials, but only if the denial is viewpoint neutral, which im...
This book argues that certain intellectual creations should not receive copyright or patent prote... more This book argues that certain intellectual creations should not receive copyright or patent protection because they are harmful to society. It posits that the theories of intellectual property and the Intellectual Property Clause of the U.S. Constitution suggest this conclusion. The book responds to counterarguments: namely, that denying protection might increase the output of objectionable works; that other laws should address the moral problems; and that intellectual property functions better under a laissez-faire approach. After responding to these arguments, the book considers the roles of government actors in denying protection. It argues that courts should exercise their powers of equity to deny relief for works that are connected to unlawful acts of the rights-holder, and that courts should exercise their constitutional powers to deny protection for specific categories of harmful expressions and inventions. Next, the book considers whether Congress has constitutional authorit...
In the past three years, the Supreme Court has twice ruled that Congress's moral bars to trademar... more In the past three years, the Supreme Court has twice ruled that Congress's moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. A copyright bar to statues of the Confederacy, for instance, would deter artists from speaking such content. Hence, through patent and copyright, Congress might seek to influence speech in accord with its moral viewpoint. This Article considers whether that use of intellectual property would violate the First Amendment. The Article concludes that moral denials in patent and copyright may be constitutionally permissible in certain instances. On the patent side, Congress's choices about which invention to patent may plausibly be construed as government speech, suggesting the absence of any First Amendment violation. Yet even if those choices are not government speech, they represent Congress's attempt to regulate conduct relating to the embodiments of the inventions-not the knowledge about the inventions. That suggests that the incidental effect on an inventor's speech is permissible.
Trademark law has recently experienced a fundamental shift. For more than a century, marks that w... more Trademark law has recently experienced a fundamental shift. For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection-the bars to "immoral" and "scandalous" marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could "disparage" others. The Court reasoned that to disparage is to offend, and the ability to offend is a core First Amendment value. So in the wake of Brunetti and Tam, the public must now be exposed to marks that employ highly offensive expression. Racial epithets, the F-word, and pornography are now more likely to appear as brands. And as time passes, businesses will gain confidence that such emotional attention-grabbing expressions will continue to be eligible for trademark protection. More businesses will begin to invest in them. The public, in turn, will be subject to a commercial experience that is more offensive and less inviting. Congress must therefore act. Congress must bar trademark registration for the specific categories of vulgar, profane, and Ray Taylor Fair Professor of Law, University of South Carolina. The Author thanks Professor Lisa Ramsey for her insightful comments and valuable criticism. The Author also recognizes the helpful views provided by the participants of the 2019 Texas A&M Intellectual Property Scholars Roundtable. Finally, the Author appreciates the excellent editorial and research assistance provided by Andi McDonald.
This chapter examines whether the constitutional clause that gives Congress power to legislate co... more This chapter examines whether the constitutional clause that gives Congress power to legislate copyright and patent law (the Intellectual Property Clause) represents a limitation on Congress’s power. It interprets the constitutional purpose stated in the Clause—“To promote the Progress of Science and useful Arts”—as barring Congress from extending protection to individual works that fail to fulfill that purpose. To support that interpretation, this chapter examines the constitutional policy underlying the Intellectual Property Clause, as well as the text and interpretive history of the Clause. It also responds to the argument that the Clause’s purpose should be construed as a non-limiting preamble and even if it is not, that the purpose should limit only the overall regime that Congress enacts—not individual works.
This chapter interprets meanings of terms in the Intellectual Property Clause to conclude that Co... more This chapter interprets meanings of terms in the Intellectual Property Clause to conclude that Congress may not extend copyright or patent protection to certain types of intellectual creations. It argues that “Progress of . . . useful Arts” precludes patent protection for inventions that are so harmful to society that they are incapable of social advancement. It observes that this category of inventions would be relatively narrow. The chapter further argues that “Progress of Science” precludes copyright protection for two categories of works that fail to improve society’s knowledge—deceitful and pornographic expression. It concludes that as a constitutional matter, courts must deny protection for such works.
This chapter examines the history of courts denying enforcement of rights or protection of subjec... more This chapter examines the history of courts denying enforcement of rights or protection of subject matter for works involving unlawful conduct. On the copyright side, this chapter describes the relatively recent change in which courts have begun refusing to recognize the doctrine of unclean hands for works involving unlawful conduct. The chapter argues that the most influential case on this issue, Mitchell Bros. Film Group v. Cinema Adult Theater, relies on flawed reasoning and a misapplication of law. On the patent side, this chapter observes that courts have uniformly rejected morality as a statutory standard for denying protection of specific subject matter. At the same time, courts preserved the unclean hands doctrine in the patent context, enabling denials based on certain sorts of wrongful conduct. The chapter concludes that courts should reject Mitchell in copyright law, yet uphold the present standard in patent law.
This chapter discusses the exceptional situation in which a court should refuse to enforce rights... more This chapter discusses the exceptional situation in which a court should refuse to enforce rights to a patent or copyright—namely, where intellectual works involve unlawful activity. This chapter explains the equitable doctrine of unclean hands, which allows courts to refuse to enforce rights to such works. It recites the relevant case law that supports the application of this doctrine in the intellectual property context. It also argues that two specific situations should trigger this doctrine: namely, unlawful activity during the creative process and unlawful activity in the exercise of rights. Finally, this chapter proposes other factors that should be relevant in a court’s discretionary decision of whether to apply unclean hands in an intellectual property lawsuit.
IRPN: Innovation & Intellectual Property Law & Policy (Topic), 2009
Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet... more Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when websites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the website appears legitimate, whether a user's good-faith belief is reasonable, or whether the website owner is unaware that the material is infringing, users who download infringing material face strict-liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The law facilitates copytraps because it governs circumstances today that were never contemplated when copyright's strict liability emerged centuries ago. What has been good policy for real space is bad policy for cyberspace. As copytraps become common, end users will increasingly encounter the unfairness of strict...
(discussing damages for publication of copyrighted letter); Folsom v. Marsh, 9 F. Cas. 342, 349 (... more (discussing damages for publication of copyrighted letter); Folsom v. Marsh, 9 F. Cas. 342, 349 (C.C.D. Mass. 1841) (No. 4901) (Story, J.) (discussing copyright invasion of plaintiff's letters); Grigsby v. Breckinridge, 65 Ky. (2 Bush) 480, 484-85 (1867) (discussing property rights of letters and their contents); Baker v. Libbie, 97 N.E. 109, 111 (Mass. 1912) (discussing writer's property rights in letters); Millar, 98 Eng. Rep. at 242 (discussing property rights of manuscript); Pope v. Curl, (1741) 26 Eng. Rep. 608, 608 (Ch.) (discussing property rights of writers and receivers of letters). 3. See Pope, 26 Eng. Rep. at 608 (granting injunction to stop publication of a book of letters written by Alexander Pope). 4. See, e.g., Baker, 97 N.E. at 111 ("The right of the author to publish or suppress publication of his correspondence is absolute in the absence of special considerations. .. ."); Woolsey v. Judd, 11 How. Pr. 49, 55 (N.Y. Sup. Ct. 1855) ("We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of his correspondent."); Gee v. Pritchard, (1818) 36 Eng. Rep. 670, 675-76 (Ch.) ("It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property possesses such a right of property in them, that they cannot be published without his consent, unless the purposes of justice, civil or criminal, require the publication.");
ntellectual Property: A Survey of the Law teaches the law of trademark, copyright, patent, and tr... more ntellectual Property: A Survey of the Law teaches the law of trademark, copyright, patent, and trade secret. The casebook presents the material so that it is accessible to students and explains the black-letter rules and underlying policies in a straightforward and simple manner. It provides examples, practice problems, and explanations for each area of the law, facilitating mastery of fundamental concepts. “Case Comprehension” questions follow each case excerpt to help students focus on key points. “Beyond the Case” questions challenge students to apply doctrines and policy outside the context of the specific case. Substance draws from both well-established jurisprudence and recent developments in case and statutory law
This chapter reviews the conclusions of each individual chapter. It presents the arguments in one... more This chapter reviews the conclusions of each individual chapter. It presents the arguments in one coherent body, relating each chapter’s conclusions with the conclusions of the other chapters. It summarizes the moral limitations in the theory of intellectual property; the counterarguments against that conclusion; the presumption against judges making moral decisions; the exceptional equitable doctrine of unclean hands and the judicial history surrounding that doctrine in copyright and patent law; the constitutional obligation to deny protection for works that fall outside the meaning of the progress of science and useful arts; the moral discretion of Congress to deny protection; and the restraint on Congress’s discretion to deny protection that is imposed by free speech doctrines. It calls for courts, Congress, and executive agencies to uphold the moral values that underlie intellectual property law.
Patent Law: Fundamentals of Doctrine and Policy provides a remarkably accessible yet robust intro... more Patent Law: Fundamentals of Doctrine and Policy provides a remarkably accessible yet robust introduction to patent law and its practical application. Written in a straightforward style, the authors focus on providing a deep understanding of doctrine and policy, without “hiding the ball” in ways that can hinder student comprehension. The book will appeal to students who have scientific and technical backgrounds or prior patent experience, as well as students who simply have an interest in technology and innovation and seek a well-rounded legal education. The book teaches all the core patent statutes and doctrines in the United States patent system. Novelty, nonobviousness, subject matter, infringement, defenses, and remedies all receive thorough attention. The book also includes chapters that address the history of patent law, patent application drafting and prosecution, patent litigation, and design patents. These additional chapters afford students an opportunity to understand the ...
This chapter examines whether the Intellectual Property Clause provides Congress moral discretion... more This chapter examines whether the Intellectual Property Clause provides Congress moral discretion to deny intellectual property protection. It concludes that the Clause’s statement of purpose provides Congress broad discretion to select which subject matters of expressions and inventions should receive protection. The discretion, however, is limited by the Free Speech Clause of the First Amendment, which is discussed in the next chapter. This chapter also addresses the circumstances under which Congress should exercise its moral discretion to deny protection. It posits three principles that should guide Congress: whether a work directly causes a harmful effect; whether that effect poses a significant problem for society; and whether potential benefits of the work may outweigh the harmful effects.
The question of whether the common law permits a neighbor to joyride on a wireless network presen... more The question of whether the common law permits a neighbor to joyride on a wireless network presents novel and complex issues of tort and property law. This Article addresses the question of whether the joyriding neighbor commits an actionable trespass against the Wi-Fi operator. Part II explains how a wireless network functions, and how a neighbor is able to access that network. Part III examines whether the neighbor\u27s conduct satisfies the elements of trespass to chattel, identifying the chattel at issue as the Wi-Fi router. Part III concludes that the neighbor\u27s conduct satisfies the elements of trespass to chattel. Part IV examines the defenses to trespass to chattel, addressing whether joyriding is permissible when a Wi-Fi operator has not password protected the network or when the Wi-Fi operator\u27s network interferes with the neighbor\u27s ability to set up his or her own wireless network. Part IV concludes that neither the absence of password protection nor the presenc...
This chapter argues for a general presumption against judges or executive agencies relying on mor... more This chapter argues for a general presumption against judges or executive agencies relying on moral considerations to deny intellectual property rights. It recites the case law that well establishes this principle in both the contexts of copyright and patent. The chapter further argues, however, that courts or executive agencies should do so in the following exceptional situations: where Congress has enacted a constitutional statute that requires denial for a moral reason; where the Constitution mandates denial for a moral reason; and where an intellectual creation involves unlawful activity. The chapter explains why these circumstances merit an exception to the general presumption. It sets up the discussion for the ensuing chapters.
This chapter argues that the three theories which underlie the system of intellectual property im... more This chapter argues that the three theories which underlie the system of intellectual property imply that specific moral values limit the scope of protectable subject matter. The economic theory, the labor-desert theory, and the autonomy-personality theory each impose certain moral limitations. Specifically, the economic theory implies that the law should not incentivize creations that result in a net harm to society; the labor-desert theory implies that the law should not reward creators whose intellectual works harm life, health, liberty, or property of another; and the autonomy-personality theory implies that the law should not recognize rights in works that inhibit another’s exercise of autonomy or personality. In examining these theories and their moral values, this chapter does not address specific issues of application.
This chapter considers whether denying patent or copyright protection on moral grounds is inconsi... more This chapter considers whether denying patent or copyright protection on moral grounds is inconsistent with doctrines of free speech. The chapter first examines whether moral denials of patent or copyright protection constitute a government restriction of private speech. For patent, it concludes that moral denials would not be such a restriction. The denial of patent protection likely reflects the government’s choice to selectively adopt private speech as its own, and even if not, the denials should be viewed as permissible regulations of conduct that only incidentally affect speech. By contrast, this chapter concludes that for copyright, moral denials of protection would restrict authors’ private speech. Consequently, the chapter further examines whether an exceptional doctrine in free speech law might excuse moral denials of copyright protection. The chapter posits that the limited-public-forum doctrine may excuse such denials, but only if the denial is viewpoint neutral, which im...
This book argues that certain intellectual creations should not receive copyright or patent prote... more This book argues that certain intellectual creations should not receive copyright or patent protection because they are harmful to society. It posits that the theories of intellectual property and the Intellectual Property Clause of the U.S. Constitution suggest this conclusion. The book responds to counterarguments: namely, that denying protection might increase the output of objectionable works; that other laws should address the moral problems; and that intellectual property functions better under a laissez-faire approach. After responding to these arguments, the book considers the roles of government actors in denying protection. It argues that courts should exercise their powers of equity to deny relief for works that are connected to unlawful acts of the rights-holder, and that courts should exercise their constitutional powers to deny protection for specific categories of harmful expressions and inventions. Next, the book considers whether Congress has constitutional authorit...
In the past three years, the Supreme Court has twice ruled that Congress's moral bars to trademar... more In the past three years, the Supreme Court has twice ruled that Congress's moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. A copyright bar to statues of the Confederacy, for instance, would deter artists from speaking such content. Hence, through patent and copyright, Congress might seek to influence speech in accord with its moral viewpoint. This Article considers whether that use of intellectual property would violate the First Amendment. The Article concludes that moral denials in patent and copyright may be constitutionally permissible in certain instances. On the patent side, Congress's choices about which invention to patent may plausibly be construed as government speech, suggesting the absence of any First Amendment violation. Yet even if those choices are not government speech, they represent Congress's attempt to regulate conduct relating to the embodiments of the inventions-not the knowledge about the inventions. That suggests that the incidental effect on an inventor's speech is permissible.
Trademark law has recently experienced a fundamental shift. For more than a century, marks that w... more Trademark law has recently experienced a fundamental shift. For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection-the bars to "immoral" and "scandalous" marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could "disparage" others. The Court reasoned that to disparage is to offend, and the ability to offend is a core First Amendment value. So in the wake of Brunetti and Tam, the public must now be exposed to marks that employ highly offensive expression. Racial epithets, the F-word, and pornography are now more likely to appear as brands. And as time passes, businesses will gain confidence that such emotional attention-grabbing expressions will continue to be eligible for trademark protection. More businesses will begin to invest in them. The public, in turn, will be subject to a commercial experience that is more offensive and less inviting. Congress must therefore act. Congress must bar trademark registration for the specific categories of vulgar, profane, and Ray Taylor Fair Professor of Law, University of South Carolina. The Author thanks Professor Lisa Ramsey for her insightful comments and valuable criticism. The Author also recognizes the helpful views provided by the participants of the 2019 Texas A&M Intellectual Property Scholars Roundtable. Finally, the Author appreciates the excellent editorial and research assistance provided by Andi McDonald.
This chapter examines whether the constitutional clause that gives Congress power to legislate co... more This chapter examines whether the constitutional clause that gives Congress power to legislate copyright and patent law (the Intellectual Property Clause) represents a limitation on Congress’s power. It interprets the constitutional purpose stated in the Clause—“To promote the Progress of Science and useful Arts”—as barring Congress from extending protection to individual works that fail to fulfill that purpose. To support that interpretation, this chapter examines the constitutional policy underlying the Intellectual Property Clause, as well as the text and interpretive history of the Clause. It also responds to the argument that the Clause’s purpose should be construed as a non-limiting preamble and even if it is not, that the purpose should limit only the overall regime that Congress enacts—not individual works.
This chapter interprets meanings of terms in the Intellectual Property Clause to conclude that Co... more This chapter interprets meanings of terms in the Intellectual Property Clause to conclude that Congress may not extend copyright or patent protection to certain types of intellectual creations. It argues that “Progress of . . . useful Arts” precludes patent protection for inventions that are so harmful to society that they are incapable of social advancement. It observes that this category of inventions would be relatively narrow. The chapter further argues that “Progress of Science” precludes copyright protection for two categories of works that fail to improve society’s knowledge—deceitful and pornographic expression. It concludes that as a constitutional matter, courts must deny protection for such works.
This chapter examines the history of courts denying enforcement of rights or protection of subjec... more This chapter examines the history of courts denying enforcement of rights or protection of subject matter for works involving unlawful conduct. On the copyright side, this chapter describes the relatively recent change in which courts have begun refusing to recognize the doctrine of unclean hands for works involving unlawful conduct. The chapter argues that the most influential case on this issue, Mitchell Bros. Film Group v. Cinema Adult Theater, relies on flawed reasoning and a misapplication of law. On the patent side, this chapter observes that courts have uniformly rejected morality as a statutory standard for denying protection of specific subject matter. At the same time, courts preserved the unclean hands doctrine in the patent context, enabling denials based on certain sorts of wrongful conduct. The chapter concludes that courts should reject Mitchell in copyright law, yet uphold the present standard in patent law.
This chapter discusses the exceptional situation in which a court should refuse to enforce rights... more This chapter discusses the exceptional situation in which a court should refuse to enforce rights to a patent or copyright—namely, where intellectual works involve unlawful activity. This chapter explains the equitable doctrine of unclean hands, which allows courts to refuse to enforce rights to such works. It recites the relevant case law that supports the application of this doctrine in the intellectual property context. It also argues that two specific situations should trigger this doctrine: namely, unlawful activity during the creative process and unlawful activity in the exercise of rights. Finally, this chapter proposes other factors that should be relevant in a court’s discretionary decision of whether to apply unclean hands in an intellectual property lawsuit.
IRPN: Innovation & Intellectual Property Law & Policy (Topic), 2009
Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet... more Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when websites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the website appears legitimate, whether a user's good-faith belief is reasonable, or whether the website owner is unaware that the material is infringing, users who download infringing material face strict-liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The law facilitates copytraps because it governs circumstances today that were never contemplated when copyright's strict liability emerged centuries ago. What has been good policy for real space is bad policy for cyberspace. As copytraps become common, end users will increasingly encounter the unfairness of strict...
(discussing damages for publication of copyrighted letter); Folsom v. Marsh, 9 F. Cas. 342, 349 (... more (discussing damages for publication of copyrighted letter); Folsom v. Marsh, 9 F. Cas. 342, 349 (C.C.D. Mass. 1841) (No. 4901) (Story, J.) (discussing copyright invasion of plaintiff's letters); Grigsby v. Breckinridge, 65 Ky. (2 Bush) 480, 484-85 (1867) (discussing property rights of letters and their contents); Baker v. Libbie, 97 N.E. 109, 111 (Mass. 1912) (discussing writer's property rights in letters); Millar, 98 Eng. Rep. at 242 (discussing property rights of manuscript); Pope v. Curl, (1741) 26 Eng. Rep. 608, 608 (Ch.) (discussing property rights of writers and receivers of letters). 3. See Pope, 26 Eng. Rep. at 608 (granting injunction to stop publication of a book of letters written by Alexander Pope). 4. See, e.g., Baker, 97 N.E. at 111 ("The right of the author to publish or suppress publication of his correspondence is absolute in the absence of special considerations. .. ."); Woolsey v. Judd, 11 How. Pr. 49, 55 (N.Y. Sup. Ct. 1855) ("We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of his correspondent."); Gee v. Pritchard, (1818) 36 Eng. Rep. 670, 675-76 (Ch.) ("It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property possesses such a right of property in them, that they cannot be published without his consent, unless the purposes of justice, civil or criminal, require the publication.");
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