Cryptocurrency: Utility Determines Conceptual Classification Despite Regulatory Uncertainty
By Ralph E. McKinney, Jr., Casey W. Baker, Lawrence P. Shao, & Jeff Y.L. Forrest
Previous scholarship has described cryptocurrency as “both a technology artifact and an economic instrument of value transaction.”1 Unlike ownership of some assets, conveyed by deeds, titles, stock certificates, and records, the transfer of cryptocurrency is contingent upon technology.2 Additionally, the digital creation of cryptocurrency is significantly different than the minting and printing of traditional currency that has existed for thousands of years.3 Moreover, any continuous technological innovations are likely to disrupt the current understanding of cryptocurrency utilities given that our “financial institutions are built off of much older forms of currency.”4 Functioning as a medium of exchange, cryptocurrencies are used as a currency, an alternative method of payment, a commodity, and an investment.5 As such, there are differing opinions on what cryptocurrency is, some of which are discussed throughout this article.
Conceptualized in 2008, most cryptocurrencies are highly volatile and risky.6 For example, the use of cryptocurrency for illegal activities has been well-documented.7 It is the severity of these criminal activities (e.g., asset theft, counterfeiting, money-laundering) and cryptocurrencies’ ability to enable criminal transactions (e.g., through market manipulation, Ponzi- schemes), that causes some to suggest that cryptocurrencies pose a disruptive threat to the U.S. economic system and a greater threat to national security interests.8 According to these scholars, cryptocurrencies should be illegal.9
Whilst some researchers passionately advocate for the ban of cryptocurrencies, other researchers postulate that some governments may switch to virtual currencies to save costs (i.e. printing, coining, and distributing currency).10 Still others suggest that proper regulations, specifically focusing on market stability (i.e. the environment and transactions associated with cryptocurrencies), can enable the success of this new type of asset.11 After all, market stability relies on risk mitigation and minimization.
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Protecting Soft Adaptation Technologies Under Intellectual Property Rights Systems
By Mahatab Uddin & Salemul Huq
Climate change is the harshest global truth of this century, and countries consider technology an essential tool to combat climate change.1 Since all countries do not possess a similar capability to innovate, purchase, or apply technologies essential for their own localities, many countries agreed that the industrialized, developed countries of the world would take the lead and transfer technologies to the developing or least developed countries.2 In this manner, as like adaptation,3 mitigation,4 financial cooperation, and capacity building, technology transfer has become a core issue of the international legal and policy regime on climate change.5 Therefore, like the United Nations Framework Convention on Climate Change (“UNFCCC”) and subsequent legal instruments adopted under the UNFCCC,6 the Paris Agreement also accepts technology transfer as one of the main tools of combating climate change.7 The technology transfer pillar is essentially aimed to collaborate with other important pillars, especially with the adaptation and mitigation pillars, of the UNFCCC.8 This is because both adaptation and mitigation activities are vastly dependent on innovation and transfer of the appropriate technologies.
Until now, the global legal regime on climate change has put more importance on mitigation than on adaptation.9 Presumably, the main reason for this was that mitigation has private economic incentives through “green economy” industries while adaptation has fewer such incentives.10 Besides this, another possible reason concerns the clarity of the nature of possible measures for adaptation. Since the measures essential for mitigation are very clear in nature, governments can easily adopt necessary positive steps for reducing greenhouse gas emissions or storing greenhouse gasses (“ghgs”).11 On the contrary, it is not easy for governments to determine which steps fit climatic impacts in different regions. Likely due to this difficulty, governments preferred to let adaptation happen by way of automatic adjustments “through the ‘invisible hands’ of natural selection and market forces.”12 As a consequence, in comparison with global mitigation activities, global adaptation activities are seen as a complete market failure.
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Cloudy with a Chance of Monopolization
By E. Claire Newsome
Applications like Snapchat and Netflix have become pillars of American popular culture. They also perform their computing operations wholly in the cloud. This leaves them completely at the mercy of their cloud service providers, as disruption to these cloud services would leave millions of users without access.1 Further, neither of these companies can switch cloud service providers because their software is intertwined with their current cloud service provider’s Application Programming Interface (“API”).2 APIs are the tools that allow applications like Snapchat and Netflix to communicate with the cloud, which allows the service provider’s cloud systems to execute the application.3 They operate as the common language between the client’s computer and the cloud. The applications cannot communicate with any other cloud that does not use the same API. This problem is not unique to Netflix and Snapchat. Seventy-seven percent of businesses rely on the cloud.4 Some consider the cloud “a utility service like water or electricity.”5
APIs are copyrightable6 and, as a result, cloud service providers can exclude competitors from copying them exactly. Consumers, such as Snapchat and Netflix, are not able to switch service providers without rewriting their entire application. A competing cloud service provider could copy the APIs, despite the copyright, and assert the fair use exception. However, fair use litigation is expensive, and losing can result in devastating statutory damages.7 Further, the Federal Circuit’s holding in Google v. Oracle makes it likely that copying APIs will not be fair use as a matter of law.8 Due to its uncertainty, fair use is not adequate to ensure robust competition in cloud computing.
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Assessing the Compatibility of Cryptocurrencies and Islamic Law
By Arya Taghdiri
Economic globalization has precipitated the widespread usage and adoption of cryptocurrencies in countries all throughout the world, presenting a viable monetary alternative and investment opportunity for Islamic financial institutions and Muslim individuals alike. In the wake of Bitcoin and other cryptocurrencies’ blossoming popularity and usage, Islamic religious authorities and governments are increasingly confronted with the issue of whether the use, sale, purchase, and transfer of these cryptocurrencies are compliant with Islamic law. Over the course of the past few years, influential Muslim authorities and scholars in nations such as Egypt, Turkey, England, and Palestine have issued opinions—in some instances, legally binding—regarding the impermissibility of Bitcoin (and other cryptocurrencies) as a financial vehicle. Amongst the key reasons why, these religious (and in some cases, sovereign) authorities chiefly argue that cryptocurrencies involve gharar, a broad concept in Islamic Finance that literally translates to “uncertainty, hazard, chance, or risk.”
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Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc.
140 S. Ct. 1589
By Tomiko Cairo
Plaintiffs are Lucky Brand Dungarees, Inc., and others (“Lucky Brand”). Defendant is Marcel Fashions Group, Inc. (“Marcel”). Both parties are in the industry of selling jeans and other apparel.
This case deals with “defense preclusion” which is a part of res judicata. The legal term “res judicata,” comprises two doctrines: (1) issue preclusion and (2) claim preclusion. Issue preclusion is also known as “collateral estoppel” and precludes parties from relitigating issues actually decided in prior cases which were necessary to the prior cases’ judgment. Claim preclusion prevents the issues that “could have been raised and decided in a prior action,”1 even if the issues were not litigated. To determine whether a claim in two proceedings is the same, one must assess whether the claim “aris[es] from the same transaction”2 or if there is a “common nucleus of operative facts.”3
Lucky Brand and Marcel use the word, “Lucky,” as part of their trademarks for clothing. Marcel received federal trademark registration for “Get Lucky” in 1986. In 1990, Lucky Brand received federal trademark registration for “Lucky Brand” and other marks which had the word, “Lucky.” With nearly twenty years of litigation, proceeding in three rounds between the parties, there were three categories of marks involved: (1) Marcel’s “Get Lucky” mark; (2) Lucky Brand’s “Lucky Brand” mark; and (3) other Lucky Brand marks which included the word “Lucky.”
The first round of litigation began in 2001, ending in a settlement agreement in 2003, where Marcel agreed to release all claims related to Lucky Brand’s use of its own trademarks. The second round of litigation began in 2005 (“2005 Action”) and the third round of litigation began in 2011 (“2011 Action”). In the 2011 Action, which is at issue here, the parties returned to the courts to determine whether Lucky Brand is precluded from raising the release agreement from the settlement as a defense based on the2003 settlement. The parties sought to determine whether “defense preclusion” applied to the 2011 Action due to Lucky Brand’s failure to
invoke the defense during the 2005 Action.
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United States Patent & Trademark Office v. Booking.com B.V.
140 S. Ct 2298 (2020)
By Michael P. Goodyear
A trademark is a valuable form of intellectual property in which a mark distinguishes a producer’s goods or services from another. One of the primary requirements of a trademark is its ability to identify and distinguish the good or product to which the trademark is attached. The more distinctive marks—those that are arbitrary, fanciful, or suggestive—are “inherently distinctive” and eligible for registration in the USPTO. Descriptive marks are not eligible for trademark registration without having “acquireddistinctiveness,” and generic terms are ineligible for registration because they refer to the name of an entire group of goods or services, and are thus incapable of distinguishing between others’ goods.
Booking.com is a popular online hotel reservation and travel services provider. Booking.com is both the name of the company as well as the name of its website. When Booking.com attempted to register four marks that included the term “Booking.com,” it was denied by the United States Patent and Trademark Office (“PTO”) for having failed to meet the requirement of distinctiveness. The PTO found that both the terms “Booking” and “.com” were generic—“‘Booking,’ the Board observed, means making travel reservations, and ‘.com’ signifies a commercial website.”1 While Booking.com admitted that the term “booking” was generic, it asserted that “Booking.com” was a qualifying descriptive mark and challenged the PTO’s decision.
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IMDb.com Inc. v. Becerra 962 F.3d 1111 (9th Cir. 2020)
By Bryce Hoyt
Appellants are the California Attorney General, Xavier Becerra, on behalf of the State of California (“the State”), and the Screen Actors Guild (“SAG”), an American labor union which represents film and television performers worldwide. Appellee is IMDb, Inc. (“IMDb”), a corporation that owns and operates a publicly available online database of information about the entertainment industry.
IMDb, short for Internet Movie Database, operates a free website where visitors can sort through movie reviews, summaries, and character biographies which occasionally includes information such as age and date of birth. The site—the fifty-fourth most viewed website worldwide as of 2017—is comparable to Wikipedia.
In 2002, IMDb introduced a new subscription service, known as IMDbPro, allowing industry professionals to seek out jobs by creating customizable personal profiles. The service also allows casting agents, seeking to hire for projects, the ability to subscribe and access these profiles. Subscribers are able to opt out of sharing their age on their IMDbPro profiles, but not any companion profile on the public site. Effectively, IMDbPro is a job board for producers and entertainment industry professionals.
In 2016, SAG sponsored Assembly Bill No. 1687 (“AB 1687”) out of concern for age discrimination within the entertainment industry. Specifically, the bill sought to halt the sharing of age information. Citing an article from The Guardian describing an unsuccessful lawsuit by an actress alleging age discrimination against IMDb, SAG singled out IMDb for discriminatory conduct. The bill was passed by the California Legislature and was set to take effect in 2017. Before the bill took effect, IMDb challenged the law.
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Corbello v. Valli
974 F.3d 966 (9th Cir. 2020)
By Nick Lavkulik
Plaintiff is Donna Corbello, Rex Woodard’s surviving spouse and successor to Woodard’s authorship rights as ghostwriter of Tommy DeVito’s unpublished autobiography (“the Work”). DeVito, a co-author of the Work, was an original member of a popular music quintet—the Four Seasons. Defendants are the Four Seasons band members; as well as writers, directors, and producers of the musical Jersey Boys (“the Play”) and related entities. The Play is a musical depicting the history of the Four Seasons, which allegedly infringed on the Work. During the Play’s creation, the Play’s writers had access to the Work, provided by DeVito.
The Work was completed in 1991, but Woodard and DeVito were unable to publish it before Woodard’s death later that year. In 2005, Woodard’s sister, Cindy Ceen contacted DeVito about self-publishing the Work. DeVito determined that the work was “not saleable,” and any interest in publishing the Work seemed to disappear. The Play debuted shortly after Ceen contacted DeVito.
Shortly before Woodard’s death in 1991, and unbeknownst to the Plaintiff, DeVito had registered the Work for copyright protection solely under his name. Despite minor differences between the original work and the copyright application, Corbello was able to secure Woodard’s recognition as co-author and co-claimant, as well as register the copyright in 2007.
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Skidmore v. Led Zeppelin 952 F.3d 1051 (9th Cir. 2020)
By Laura Odujinrin
Plaintiff is Michael Skidmore, trustee of the estate of Randy Wolfe, the now deceased guitarist from the rock band Spirit. Defendants are the band Led Zeppelin, represented by guitarist Jimmy Page, singer Robert Plant, and the band’s recording and publishing companies (collectively “Led Zeppelin”).
In 1967, Spirit, based in the United States, released its first album, which included the instrumental song Taurus, composed by Wolfe. Spirit’s recording company, Hollenbeck Music Co., registered the copyright for Taurus, submitting a one-page copy of sheet music (“deposit copy”) as required by the Copyright Act of 1909 (“1909 Act”).1 In 1971, Led Zeppelin, based in England, released its fourth album, which included the song Stairway to Heaven, written by Page and Plant.
During the 1960’s and 1970’s, Spirit and Led Zeppelin crossed paths, performing at multiple concerts together, and Led Zeppelin even performed a cover of the Spirit song, Fresh Garbage. While there is undisputed evidence that the bands crossed paths while on tour, knew each other, and knew each other’s work, there is no evidence that Plant or Page ever heard Spirit perform the song Taurus.
When Wolfe passed away in 1997, a trust was established by Wolfe’s mother. Skidmore became trustee in 2006 after Wolfe’s mother passed away.
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Thryv, Inc. v. Click-To-Call Techs., LP 140 S. Ct. 1367 (2020)
By Alexis N. M. Ramsey
Inter partes reviews began with the passage of the America Invents Act (“AIA”) of 2011,1 which created new opportunities to attack patent claims after patent registration.2 An inter partes review is an action that allows parties who are not the patent owner to ask the United States Patent and Trademark Office (“PTO”) to review a patent’s claims. The Patent Trial and Appeal Board (“The Board”) then decides whether to accept that request and initiate a review.
There are two aspects of inter partes reviews discussed in this case. The first is a requirement in 35 U.S.C. section 315(b) that states a party requesting inter partes review must not have been served more than a year ago with an infringement claim regarding the patent for which the party is requesting review. This creates a one-year statutory bar against filing for inter partes reviews for patents that a party has already been served for allegedly infringing. The second aspect discussed in this case, given in section 314(d), states the decision to institute an inter partes review is non-appealable.
In 2001, Click-To-Calls, Inc. (“Click”), sued Thryv, Inc. (“Thryv”) for infringing its patent, related to making anonymous calls, 5,818,836 (‘836). That patent infringement claim ended in a voluntary dismissal without prejudice.
In 2013, Click sued Thryv for infringement of the ‘836 patent again. Thryv, Petitioner, then filed an inter partes review against Click’s patent, stating that some of the claims in the ‘836 patent were not patentable. The Board instituted the inter partes review. As a result, thirteen of the patent claims were invalidated.
Click, Respondent, appealed, claiming the Board’s decision, that a voluntary dismissal without prejudice did not begin the one-year statutory bar against an inter partes review, was an erroneous interpretation of section 315(b). Click claimed the 2001 infringement claim served as notice for the patent, so Thryv should have filed for review in 2001 rather than 2013, twelve years later and well past the one-year bar. This series of appeals followed.
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