The Online Edition features short and medium length professional articles submitted to the journal and concise recent developments written by our student staff. All Online Edition articles must meet the same rigorous standards as those published in our print issues.
Online Edition Articles
Recent Development: Global-Tech Appliances, Inc. v. SEB S.A. and the Creation of a Flexible Blindness Standard for Induced Patent Infringement
NC JOLT Online Edition, Volume 13, Page 117 (December 2011)
Abstract
When assigning liability in patent infringement cases, courts have often struggled with the determination of what mental state is necessary to hold a defendant liable. In Global-Tech Appliances, Inc. v. SEB S.A., the Supreme Court determined that knowledge is necessary in cases of induced infringement, but tempered the holding by allowing willful blindness to be a substitute for knowledge. This article argues that the flexibility introduced into induced infringement by willful blindness allows courts to implement a new “flexible blindness” standard. This standard will allow courts to make a fact-centered determination of blameworthiness rather than a difficult examination of the defendant’s mental state. In doing so, the assignment of liability will be more reliable and accurate, there will be more deterrence of future acts of induced infringement, and the formal requirement for knowledge will protect innocent parties whose actions aid, but do not induce, infringement.
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Recent Development: It's All Fun and Games Until Someone Gets Hurt: Brown v. Entertainment Merchants Assoc. and the Problem of Interactivity
NC JOLT Online Edition, Volume 13, Page 81 (December 2011)
Abstract
Video gaming is a medium in its infancy. Having seen remarkably rapid advancement over the past forty years, the industry has grown in both popularity and notoriety with children and adults alike. Despite the popularity of video games, some parents and lawmakers have expressed concern over the presence of violent content in video games. With psychologists and social scientists delivering conflicting data about the effects of violent games on children, some states have deemed it necessary to restrict the access of minors to games containing violent conduct.
In Brown v. Entertainment Merchants Association, the Supreme Court struck down the most recent of these statutes and, in doing so, established First Amendment protection for violent video games. The Court further refused to make violence a new restricted category of speech and will now submit any law restricting violence in video games to strict scrutiny. While the Court’s ruling may very well be applicable to the medium in its current incarnation, video game technology is constantly evolving and thus may challenge the staying power of the Brown decision. This Recent Development criticizes the Court’s failure to fully comprehend the interactive nature of video games due to the majority’s cursory examination of a developing medium, demonstrates how interactivity in future games may necessitate a reevaluation of the Court’s decision, and addresses the tension between interactivity and speech in video games. It also explores the impact of Brown on trademark law and examines the effect that a reevaluation of interactivity may have on intellectual property jurisprudence post-Brown.
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Recent Development: That's Easy! I Can Do That with Pen and Paper!: Why the Mental Steps Doctrine Could Bring an End to Patent Protection for Software
NC JOLT Online Edition, Volume 13, Page 61 (December 2011)
Abstract
In August of 2011, the U.S. Court of Appeals for the Federal Circuit issued a ruling in CyberSource v. Retail Decisions that held a piece of computer software as unpatentable because it did not fit any allowable subject matter. This decision was reached through an application of the test for processes to a claim that recited a manufacture. This decision should be reviewed by the Federal Circuit en banc. If it is not reversed, it may bring the subject of software patent eligibility into question.
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Recent Development: Brownmark Films, LLC v. Comedy Partners: Why Fair Users Should Be Able to Rely on Fair Use
NC JOLT Online Edition, Volume 13, Page 35 (December 2011)
Abstract
The fair use doctrine is codified in the Copyright Act of 1976. It protects the use of copyrighted material by parties who do not own rights to the copyrighted works if they are used for such purposes as education, parody, or commentary. However, many parties shy away from using materials that would be protected by the fair use doctrine. This is because even when a use fits squarely within the provisions of the statute, courts are typically unwilling to dismiss the suit relying on a fair use affirmative defense based only on the pleadings. In order to avoid the expense of litigation—including discovery, hearings, and even a trial in some cases—parties choose to settle out of court, even when their fair use claim is very strong. The Brownmark Films decision paves the way for other courts to dismiss copyright infringement cases based on strong fair use defenses during the early pleadings stages of litigation, rather than force defendants to undergo long and expensive legal battles.
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Recent Development: Contrasting Levi v. Abercrombie with Louboutin v. Yves St. Laurent: Revealing Appropriate Trademark Boundaries in the Fashion World
NC JOLT Online Edition, Volume 13, Page 1 (December 2011)
Abstract
Two recent trademark cases illustrate the best and worst of trademark law for the fashion industry. In Levi v. Abercrombie, the Ninth Circuit joined the Second Circuit in allowing a trademark dilution claim to stand where the junior mark was significantly different from the senior mark. This holding promotes an overwhelming advantage for designers who hold famous trademarks and a stunning disadvantage for new up-and coming designers. The Levi precedent favors the established designer over the newer competitor, ultimately harming creativity, competition, and the consumer’s checkbook. However, a refreshing boundary in trademark law for the fashion world was established in Louboutin v. Yves St. Laurent. There, the court doubted the validity of the federal trademark registration that was unfairly impeding other designers. This court kept the freedom of competition less inhibited within the fashion industry, creating a winning situation for consumers and designers alike.
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Recent Development: The FCC's New Network Semi-Neutrality Order Maintains Inconsistency in the Broadband World
NC JOLT Online Edition, Volume 12, Page 199 (June 2011)
Abstract
On December 23, 2010, the Federal Communications Commission (“FCC”) issued a new Internet Order designed to regulate broadband access providers to further the principle of networkneutrality. The Order imposes regulations on broadband access providers for the first time, seeking to maintain the free and open character of the Internet by preventing this relatively new class of Internet Service Provider (“ISP”) from discriminating in the type of content that travels over its network. The Order divides broadband access providers into two categories, fixed and mobile, imposing fewer restrictions on the latter. The rules impose transparency requirements for both, but prohibit only fixed broadband providers from discriminating or blocking any legal content. The disparity of regulation between these two creates a sort of network semi-neutrality rather than a true neutrality in the broadband access market. This article posits that the FCC has not gone far enough in its Order and defends the rules against challenges to the Commission’s authority and its decision to regulate the broadband access market.
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