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Volume 7 | Number 2

Volume 7 | Number 2 (Spring 2007)

You may download the Full Edition, or click on a citation below for the individual article. Journal content dating from 2005 is available on the Lexis-Nexis database. Content dating from 2006 is available on the HeinOnline database. Journal content, starting with Volume 8, is now available on the Westlaw database. (subscriptions required)

THE COPYRIGHT & DIGITAL MISMANAGEMENT CHASM: FAIR USE IMPLICATIONS OF DIGITAL RIGHTS MANAGEMENT TECHNOLOGIES UPON THE DIGITAL VERSATILE DISK MEDIUM
Darren A. Handler
7 Wake Forest Intell. Prop. L.J. 173

One of the most challenging aspects of modern copyright law is striking a balance between the time-honored fair usage rights of commentators and the every day consumer while safeguarding protected expression from illicit pirating. The focus of this article is restricted to a succinct examination of movies fixed onto DVDs and the tensions between protecting such works of authorship via legal and technological measures, namely the Digital Millennium Copyright Act and Digital Rights Management technologies, while concurrently protecting consumer and other end-user rights, namely fair use.

This article posits that the First Amendment’s protection of free speech, although firmly rooted in U.S. legal jurisprudence, has been overtaken by the threat of digital piracy. Likewise, while it is acknowledged that piracy of movies fixed onto DVDs is a serious and growing epidemic, due to the explosion of digital technologies and the Internet, the article posits that the measures currently in place to combat such piracy are too widely sweeping and that a more tailored approach is warranted. By examining the built-in safeguards of free speech, namely the Fair Use Doctrine and the Idea/Expression Dichotomy, the author elucidates how the traditional balancing of an author’s right to protected expression and the public’s right to access non-copyrightable elements has swayed too far in favor of protection of those elements.

THE HIGH COST OF GLOBAL INTELLECTUAL PROPERTY THEFT:
AN ANALYSIS OF CURRENT TRENDS, THE TRIPS AGREEMENT,
AND FUTURE APPROACHES TO COMBAT THE PROBLEM

Candace S. Friel
7 Wake Forest Intell. Prop. L.J. 209

Intellectual property theft costs the United States hundreds of billions of dollars each year.  This article analyzes the problem of global intellectual property theft in its various forms, and the effect of theft of this valuable resource on industries and the economy of the United States.  The article focuses specifically on IP theft by China and Russia, two of the United States’ largest sources of intellectual property theft.  After laying the foundation for the problem of IP theft, this article addresses the international response to the burgeoning problem with particular emphasis on World Trade Organization dispute resolution and the Agreement on Trade Related Aspects of Intellectual Property or TRIPS Agreement.  The article then addresses the findings of the 2006 Special 301 Report and the CAFTA-DR agreement in light of the international community’s responses to growing IP theft.  The article concludes by examining recent Congressional initiatives to combat global intellectual property theft and commenting on the future implications of these measures.

MOST VALUABLE PATENT: THE USE OF NATURAL PHENOMENA IN PATENTS
Clara R. Cottrell
7 Wake Forest Intell. Prop. L.J. 251

The power of patents has always struck a tenuous balance between encouraging innovation and sanctioning monopolies.  The tension becomes particularly poignant when the invention incorporates a judicial exception.  This article focuses on the judicial exception for natural phenomena, which are facts of nature or elements that exist in nature and are merely objects of discovery and not invention.

This article focuses on the use of phenomena of nature in patents. Part I gives an overview of the Supreme Court’s recent decision to address these patents in Laboratory Corporation of America Holdings v. Metabolite Laboratories, Inc., followed by a sharp pivot and dismissal of the original grant of certiorari.  Part II highlights the issues and concerns the public, academics, and practitioners have regarding patents that use phenomena of nature as part of a process or method.  Part III discusses the current Supreme Court test and provides an analysis of an alternative test.  Part IV concludes with a summary of why natural phenomena are still important elements in the patent system and the author’s opinion on how concern over their use should be addressed.