Table of Contents

Antisocial Trademarks

Teresa Scassa, University of Ottawa - Common Law Section

Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets

Gillian K. Hadfield, USC Law School and Department of Economics

Blocking Copyrights Revisited

Kelly Casey Mullally, John Marshall Law School (Atlanta)

Using Reasonable Royalties to Value Patented Technology

David O. Taylor, Southern Methodist University - Dedman School of Law

Brief of Amici Curiae Small and Independent Broadcasters in American Broadcast Companies, Inc. v. Aereo, Inc., No. 13-461

Jason Schultz, New York University School of Law

Assigning Spectrum Fairly: Managing Spectrum Using Long-Term Nationwide and Short-Term Local Spectrum Licenses

Brett Shaw, University of Auckland
Fernando Beltrán, University of Auckland
Kevin W Sowerby, University of Auckland


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ENTREPRENEURSHIP & LAW eJOURNAL
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"Antisocial Trademarks" Free Download
(2013) 103:5 Trademark Reporter 1172-1213

TERESA SCASSA, University of Ottawa - Common Law Section
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Of all the areas of intellectual property (IP) law, trademark law is the one that most explicitly engages with public order and morality considerations in the granting of rights. At the same time, it also struggles with the integration of moral values in a regime that manages the symbols used in commerce rather than the morality of particular goods or services, or the appropriateness of brand messages. This paper examines morality in trademark law through three broad categories of trademarks that have been the subject of restrictive state action because of inherent or attributed antisocial qualities. The first category includes trademarks that are refused registration because they are considered to be offensive to public order or morality. The second category consists of trademarks that are limited or restricted because they are associated with antisocial goods or services. The final category is that of trademarks with antisocial brand messages. Although much ink has already been spilled regarding the registrability of scandalous or immoral trademarks, these other issues of morality in trademark law remain relatively unexplored. Public order and morality-based restrictions on trademarks have inevitably raised issues of freedom of expression, state interference with property rights, and the basic nature of trademark rights. In exploring public order and morality in trademark law, one goal of this paper is to shed light on the particular nature of trademark rights, as well as the relationship between their communicative function and the public interest.

"Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets" Free Download
Daedalus, Forthcoming

GILLIAN K. HADFIELD, USC Law School and Department of Economics
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The vast majority of ordinary Americans lack any real access to courts as they struggle to navigate a world that is increasingly shaped by legal rules and obligations. Often this means simply forgoing legal rights and entitlements or giving up in the face of claims of wrongdoing. Among those who cannot avoid courts – such as those facing eviction, collection, or foreclosure and those seeking child support, custodial access, or protection from violence or harassment – the vast majority – as many as 99 percent in some cases – find themselves in court without any legal assistance at all. There are many reasons for this lack of meaningful access, including the underfunding of courts and legal aid, but perhaps the most fundamental is the excessively restrictive American approach to regulating legal markets. This regulation, controlled by the American legal profession and judiciary, closes off the potential for significant reductions in the cost of, and hence increases in access to, courts. Unlike the problem of funding, that is a problem that state courts have the power, if they can find the judicial will, to change.

"Blocking Copyrights Revisited" Free Download
Columbia Journal of Law & the Arts, Vol. 37, p. 57, 2013

KELLY CASEY MULLALLY, John Marshall Law School (Atlanta)
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Copyright law’s constitutional mandate is to advance artistic progress for the public good by granting authors a set of exclusive rights. When considered in the context of creative endeavors that build upon preexisting, already copyrighted works, however, this seemingly straightforward objective becomes more complicated: in this situation, the law must balance the incentive to prepare the initial work with the incentive for improvement and continued progress in the form of derivative works, which can be inhibited by the rights conferred on the author of the preexisting work. Indeed, allowing individuals broad rights to exclude the public, for the benefit of the public, presents a contradiction in intellectual property law when those individual rights are invoked to prohibit absolutely the production of derivative works, as some courts have permitted copyright litigants to do.

A blocking copyrights doctrine would help to relieve that uneasy and unnecessary result. Such a doctrine would be similar to the well-established blocking patents approach to overlapping inventions in intellectual property law, and would allow an unauthorized improver of a preexisting copyrighted work to practice, and retain rights to, the original contributions in her derivative work, subject to compensation for use of the preexisting work. In addition to looking to patent law for guidance, the law relating to improvers of tangible property is also instructive in addressing the dilemma of unauthorized derivative authors in the copyright system: that body of law offers even greater acceptance and encouragement of the efforts of subsequent users of property.

Although copyright law, when compared to both patent law and the law of tangible property, presents equally, if not more, compelling reasons for granting an improver relief, a blocking doctrine has not been accepted by the courts in the copyright context. As this Article demonstrates, courts’ failure to accept the doctrine is in part due to a misunderstanding of the statutory provisions governing derivative works. In addition to correcting this misunderstanding, the Article points to recent decisions relating to remedies in copyright cases that further open the door to implementation of a doctrine of blocking copyrights. Taking this opportunity to incorporate the more favorable treatment of improvers seen in cases involving tangible property, this Article suggests that courts revisit copyright law’s treatment of unauthorized improvers and utilize key principles of a blocking copyrights doctrine in the remedies stage of an infringement action. Specifically, this Article argues that courts should use the relief granted to copyright plaintiffs as a vehicle to allow for a more nuanced, principled approach to infringement by unauthorized derivative authors. This Article suggests criteria for when and how courts should incorporate into their remedies determinations features of the law that more appropriately account for the contributions of improvers, thereby effecting important aspects of a blocking copyrights doctrine, if not wholesale adoption of it.

"Using Reasonable Royalties to Value Patented Technology" Free Download

DAVID O. TAYLOR, Southern Methodist University - Dedman School of Law
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In the last several years, commentators have expressed serious concerns with the state of the law governing awards of reasonable royalties as damages in patent infringement cases. Given these concerns, the proper assessment of royalties has been a recent, frequent topic for debate among economists and legal scholars. At the same time, all three branches of the federal government have studied ways to improve the law governing reasonable royalties. In this Article, I focus on the effort to ensure that courts efficiently and accurately award reasonable royalties by emphasizing a fundamental principle: reasonable royalties should value patented technology rather than rights associated with patent ownership. This fundamental principle explains the course of the common law governing the method for calculating reasonable royalties, comports with the public policies identified by courts as guiding the award of reasonable royalties, and, moreover, if fully adopted has significant benefits. I therefore consider several reforms that would focus the law governing reasonable royalty determinations on the value of patented technology, and I highlight several open questions related to full adoption of this fundamental principle.

"Brief of Amici Curiae Small and Independent Broadcasters in American Broadcast Companies, Inc. v. Aereo, Inc., No. 13-461" Free Download

JASON SCHULTZ, New York University School of Law
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Contrary to Petitioners’ assertions, not all broadcasters oppose Aereo’s platform for enabling individual audience members to use an antenna to initiate their own recording and reception of over-the-air programming for personal viewing. In fact, many small and independent broadcasters (SIBs) depend heavily on such user-friendly viewing technologies to reach their audiences, especially audiences that cannot afford home viewing equipment, cable, or satellite television, audiences who only watch broadcast content via mobile networks or the Internet, or audiences who may not be technologically sophisticated enough to set up their own antenna, digital receiver, or digital video recorder, and configure their own mobile devices. In addition to furthering technological innovation, platforms such as Aereo provide cost-efficient ways for SIBs to expand their viewing audiences and maximize their content offerings, all in line with the goals of the Copyright Act of 1976.

SIBs play a unique role for today’s television audiences by disseminating diverse content that is commonly overlooked by larger television providers. As the Court decides whether Aereo’s technology enables a private or public performance, it should take into account the important role that SIBs play and the needs of the audiences they serve. For example, Amicus Cocola Broadcasting in Fresno, California plays a key role in providing specialized content to Fresno’s sizable Hmong population – content that Petitioners fail to provide. The Hmong, an ethnic group from Southeast Asia that came to the United States in large part to flee persecution, continue to speak their native language. Despite the large Hmong population in Fresno, the major network broadcasters, cable, and satellite providers in the region do not carry Hmong-language content. One of Cocola’s local stations, however, not only carries Hmong-language programming, but also content created by Fresno area Hmong producers. Hmong programming can currently only be seen over the air via Cocola’s independent broadcast towers. Yet not every viewer interested in Hmong programming has an antenna in their home. Were Aereo’s innovative platform available in Fresno, any interested viewer could choose to tune an Aereo antenna to one of Cocola’s stations, make a recording, and privately watch that program on her mobile or networked device. Such technologies provide for a dramatic expansion of the potential audience for such unique content.

Also contrary to Petitioners’ assertion of harm, certain broadcasters – namely Amici SIBs – feel that technologies such as Aereo improve their financial outlook by helping to disseminate diverse content and to take advantage of changing trends in viewership. By enabling audience members to initiate a recording of over-the-air television by antenna and view it via the Internet, Aereo enables individual audience members who are not currently receiving SIB content to find it, record it, and watch it. For example, once Aereo became available in Cincinnati, Ohio, small broadcaster WKRP began actively promoting the use of Aereo to expand viewership and increase interest among viewers who were otherwise unable to receive WKRP’s signal clearly. This type of viewer access is particularly important for economically challenged viewers who cannot afford both Internet and expensive home viewing equipment, cable or satellite subscriptions.

Copyright’s “public? versus “private? distinction seeks to advance certain goals associated with copyright law – that is, broad dissemination of and access to diverse creative content, increased innovation, and individual viewer autonomy. It is important that the Court consider these underlying goals and their relationship to SIBs in interpreting the statutory language, “to perform a work ‘publicly,’? so that the Court’s application is aligned with the spirit of the Copyright Act.

In 1984, this Court held that Sony was not liable for contributory infringement because its Betamax video recording-and-playback technology enabled and expanded private home viewing capabilities for the public at large. Sony Corp. of Am. v. Universal City Studios, Inc. (Betamax), 464 U.S. 417, 454 (1984). The broadcast television industry faces a similar moment in time with a different new technology: Aereo. Similar to the Betamax, Aereo also expands the audience for private television viewing, not only of major broadcaster Petitioners but also of Amici SIBs. For all of the above reasons, this Court should find that Aereo enables individual audience members to initiate private recordings and viewings that further important purposes of copyright law.

* This brief was prepared with the assistance of NYU Law clinical students Ilyssa Coghlan and Rafael Reyeni under the supervision of Professor Jason Schultz.

"Assigning Spectrum Fairly: Managing Spectrum Using Long-Term Nationwide and Short-Term Local Spectrum Licenses" 

BRETT SHAW, University of Auckland
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FERNANDO BELTR?N, University of Auckland
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KEVIN W SOWERBY, University of Auckland
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A new method is proposed to divide upcoming spectrum band allocations into two different spectrum license/management right types. The first, a spectrum license, would allow successful auction bidders to rollout mobile radio networks on a long-term nationwide scale as normal. The second is a new concept called a licensed spectrum park (LSP) and would allow smaller operators to rollout specialized mobile radio networks on a short-term local site by site basis. LSPs would be assigned by applying for a license based on a site specific, fixed base station location for a small timeframe that could be renewed periodically.

Traditionally spectrum for mobile radio use has been auctioned to operators in discrete blocks as a management right over large geographical areas and for long timeframes. These auctions have made it expensive for new entrants to enter the mobile radio market, and some operators look to spectrum sharing as an option to efficiently use this resource and share the costs. There are many different models describing the methods to share spectrum. These include: increasing the spectrum allocated for unlicensed bands; combining spectrum from licensed band operators; cognitive radio use; and geographical databases used to track areas where spectrum is unused. In this paper we propose an LSP model, assigned by regulators, as a novel and improved method to assign adjacent sub-band spectrum for mobile radio use for specialised networks.

It has been noted that the key purpose of spectrum management is to maximise the value that society gains from the radio spectrum by allowing as many efficient users as possible while ensuring that the interference between different users remains manageable. The creation of LSPs means there is a net social benefit for two reasons. The first is that the use of LSPs allows specialist networks to be formed, effectively opening up the spectrum to more users and to potentially create more competition in the mobile radio market. The second is the fact that an LSP is licensed which creates a method to control interference between different users and allows interference to be managed.

The administration of LSP use could be managed by existing radio spectrum management. A regulator faces the issue of whether to allocate a fixed amount of spectrum for LSP use before auctioning the remaining spectrum, or alternatively auctioning the total spectrum and allocating any unsold spectrum to LSPs, if any is available. Non-cooperative game models are used to first analyse an operator’s strategy in response to the regulator’s announcement of allocating a pre-auction fixed amount of spectrum for LSP use. A second model is similarly used to analyse strategy when the total amount of available spectrum is up for auction, and any unsold spectrum is assigned for LSP use. An efficiency analysis follows in which the efficiency of equilibria from both models are compared.

Finally, to demonstrate how this theory would work in practice, we discuss several illustrative examples and discuss how LSP licences may be priced. In particular our analysis considers the population covered by the proposed base station, the amount of spectrum requested and length of the management right, against the normalised cost of the spectrum, for a given population and bandwidth, under the spectrum license auctions. The resulting equation means that LSP licences in urban environments with high spectrum requirements and populations, for example, would be more expensive as compared smaller amounts of spectrum in rural environments. Our analysis offers an important contribution for both spectrum regulators and private spectrum managers, and provides the framework for spectrum allocation to new market entrants enabling more competition in the mobile radio market.

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