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Texas Intellectual Property Law Journal
Volume 19

Issue 1 - Summer 2010


Sale or License? UMG v. Augusto, Vernon v. Autodesk, and the First Sale Doctrine
 
Citation:
19 Tex. Intell. Prop. L. J. 1 (2010)
 
Author:
Vivian F. Wang
 
About:
J.D. 2010, Stanford Law School
 
Abstract:
This paper examines whether routine transfers of promotional CDs and software CDs should be treated as transfers of ownership for purposes of the first sale doctrine. It concludes that the answer is an unequivocal “yes” for promo CDs and a more hesitant “yes” for software CDs. Just as consumers of traditional media, such as books, videotapes, and digital video disks (DVDs), a consumer who has paid for the right to use a software CD indefinitely should be able to transfer those rights if he no longer wants to use the software. The problem, however, with applying the first sale doctrine to software CDs is that § 117 of the Copyright Act permits the original user to retain a copy of the software on his hard drive. This loophole allows for the proliferation of the software without compensation to the copyright owner. Nevertheless, this problem should not be grounds for a court to refuse to apply the first sale doctrine to software CDs.


The Aftermath of TS Tech: The End of Forum Shopping in Patent Litigation and Implications for Non-Practicing Entities
 
Citation:
19 Tex. Intell. Prop. L. J. 29 (2010)
 
Author:
Mark Liang
 
About:
J.D. 2010, University of Chicago Law School
 
Abstract:
Over the past decade, the Eastern District of Texas has rocketed to the top of patent venue rankings with respect to filings. In 1990, one patent suit was filed in the district. In the first ten months of 2007, a national record 312 patent cases were filed against 1,253 defendants. The Eastern District is not home to any major cities or tech hubs. The choice of hundreds of patentees nationwide to pursue their patent suits in the Eastern District constitutes forum shopping.


Unrepresentative Randomization: An Empirical Study of Judging Panels of USPTO Appeals to the CAFC
 
Citation:
19 Tex. Intell. Prop. L. J. 79 (2010)
 
Author:
Thomas Froats
 
About:
J.D. 2011, University of Kentucky College of Law; Registered Patent Agent, 2010
 
Abstract:
There is a need for an empirical study that looks at patent appeals from the United States Patent and Trademark Office (USPTO) to determine if there is a truly representative cross-section of judges involved in those decisions. Such a study would provide valuable information to patent prosecutors, those in appellate practice before the Federal Circuit, and those who analyze the current Rule 47 process employed by the Federal Circuit.


Pull Too Hard and the Rope May Break: On the Secondary Liability of Technology Providers for Copyright Infringement
 
Citation:
19 Tex. Intell. Prop. L. J. 111 (2010)
 
Author:
Lital Helman
 
About:
Intellectual Property Fellow at the Kernochan Center for Law, Media, and the Arts, Columbia Law School
 
Abstract:
This article focuses on the standard of secondary liability for technology providers under copyright law. Drawing on existing literature, it shows that contrary to the conventional understanding of the law as granting a safe harbor for technologies, courts have created a de facto open-ended liability standard. It then argues that the strict and unpredictable nature of that open-ended standard prevents effective direction of market behavior and harms the effectiveness of secondary liability as an enforcement measure in this regard.


 
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