Exploring New Approaches to Unsettled Legal Questions

Tag: Intellectual Property

Section 230 of the Communications Decency Act: Balancing a Free Market Approach with Taking Responsibility

by Sasha Kliger*

Section 230 of the Communications Decency Act of 1996 confers broad immunity to interactive websites and social media companies for content third parties post on their platforms. This immunity, however, is not unbounded. In section 230, Congress included several exceptions to immunity, including an exception for intellectual property claims, section 230(e)(2). The broad wording of the intellectual property exception has led to confusion among circuits regarding what type of intellectual property claim should remain allowed under section 230: namely, whether state law claims and right of publicity claims qualify as laws pertaining to intellectual property as described in the statute. This Contribution argues that a close look at the language of the statute demonstrates that both types of claims should remain viable against social media companies, despite the general immunity outlined in section 230.

Expansion of the Copyright Act: The Inclusion of Art Created In-Part by an Artificial Intelligence Program

by Naomi Perla*

This Contribution examines whether an artist can claim copyright protection over art they created with the assistance of an artificial intelligence program. Naomi Perla (’21) argues that such works satisfy the “original work of authorship” requirement pursuant to 17 U.S.C. § 102(a), thereby granting copyright protection to the artist. The requirements of both authorship and originality are satisfied due to the artist’s creative choices that are largely reflected in the finished pieces. Moreover, the Copyright Act is meant to expand to include new works of art so that artists are consistently incentivized to create for the benefit of the public.

Nonce So Fast: Software “Structure” and Algorithmic Specificity in Computer-Implemented Means-plus-Function Patent Claims

by Zachary Hadd*

Despite decades of Federal Circuit precedent, a clear definiteness rubric for functional patent claims covering software inventions remains evasive. Questions persist on what constitutes sufficient structure to absolve these claims of means-plus-function treatment. The level of algorithmic specificity required to ensure definiteness for claims that are drafted in means-plus-function form is similarly abstruse. In this Contribution, Zachary Hadd (’21) argues that even software-specific “structure” is best interpreted under the means-plus-function framework and that according definiteness to anything less than step-by-step algorithmic de-tail is not only unjustified, but ultimately inconsistent with Federal Circuit precedent.

Sampling A Song Without a License? Yeah, That’s Still Illegal

by Lee Nisson*

Should musicians be free to use samples from the work of others in their songs without having to pay for them, or should sampled artists have a right to get paid for their work? In this Contribution, Lee Nisson (’18) unpacks the copyright issues around digital sampling of music, exploring the doctrine of de minimis use. Despite the artistic merits of sampling in music, the Contribution argues that all sampling constitutes copyright infringement.

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