Intellectual property rights research papers

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Intellectual property rights research papers

We argue that we're likely to succeed on the merits of our libel claim, and that failure to enjoin the speech would cause us irreparable harm. Too bad, the court will certainly say; a content-based preliminary injunction of speech would be a blatantly unconstitutional prior restraint.

Maybe after a trial on the merits and a judicial finding that the speech is in fact constitutionally unprotected libel, we could get a permanent injunction, though even that's not clear. Likewise for preliminary injunctions against obscenity and other kinds of speech, despite the fact that such speech, if ultimately found to be unprotected at trial, could be criminally or civilly punished.

How can this be? True, the Supreme Court has held that copyright law is a constitutionally permissible speech restriction; though copyright law restricts what we can write or record or perform, the First Amendment doesn't protect copyright-infringing speech against such a restraint.

The "First Amendment due process" 4 rule against prior restraints applies even to speech that's alleged to be constitutionally unprotected.

Intellectual property rights research papers

Why, then, not to allegedly infringing speech? In Part I, we discuss the history of preliminary injunctions in copyright cases and the current law relating to such injunctions.

In Part II, we develop our central thesis by explaining why copyright law is a speech restriction; why preliminary injunctions of speech are generally unconstitutional; and why, at least as a doctrinal and conceptual matter, it's hard to see how copyright law could be treated differently for First Amendment purposes.

What's more, we argue, giving copyright law a free ride from the normal First Amendment due process rules risks discrediting those rules in other contexts.

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In Part III, we step back and ask whether this inquiry has cast some doubt on the prior restraint doctrine itself--whether copyright law's tolerance of preliminary injunctions might be right, and the free speech doctrine's condemnation of such injunctions might be wrong.

In Part IV, we discuss the implications of the collision between copyright law principles and free speech principles, and propose some changes that are needed to bring copyright law into line with constitutional commands.

We conclude that permanent injunctions in copyright cases should generally be constitutional, and the same should go for preliminary injunctions in cases that clearly involve literal copying, with no plausible claim of fair use or of copying mere idea rather than expression.

Other preliminary injunctions, though, should generally be unconstitutional. In Part V, we briefly explore these questions with regard to other kinds of intellectual property--trademarks, rights of publicity, trade secrets, and patents.

We conclude that the problem is not limited to copyright, and that at least in trademark and right of publicity cases, preliminary injunctions may sometimes run afoul of the First Amendment. Finally, in Part VI we say a bit about the practical prospects for revising the law along the lines we suggest.

Preliminary injunctions have been a feature of English copyright law since its inception. The first modern English copyright act was the Statute of Anne in While the overlap between the two produced some disputes, it was well established that injunctive relief could be ordered by the Court of Chancery notwithstanding the existence of a legal remedy in damages.

The issuance of such injunctions in England appears to have been rather common in the early days of copyright, and the standard for their issuance rather lenient.

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Beckett, Lord De Grey concluded that of the seventeen copyright decisions between andseven appeared to be "injunctions granted ex parte, upon filing the bill, with an affidavit annexed. But it is notable that English courts regularly issued preliminary injunctions in copyright cases in which "the defendant [was] not so much as heard.

Indeed, in one case the Chancellor issued an injunction "till the hearing" at law on the basis of an expired copyright, on the grounds that the plaintiff might in addition be entitled to common law copyright protection.

Some courts characterized this as an effective presumption in favor of injunctive relief. Donaldson, 15 for example, the court dissolved a preliminary injunction after determining that the plaintiff's statutory copyright had expired, holding over the then-unresolved issue of common law copyright for the law courts.

Aikin, 19 Lord Eldon wrote that equity must act in such cases because the legal right cannot be made effectual by any action for damages; as, if the work is pirated, it is impossible to lay before a Jury the whole evidence as to all the publications, which go out to the world, to the Plaintiff's prejudice.

A Court of Equity therefore acts, with a view to make the legal right effectual by preventing the publication altogether. Despite the fact that United States copyright law was based largely on the English model, 24 early U.

Lumberman's Credit Ass'n, 31 the Supreme Court held that even though copying of protectable material was clearly established, a permanent injunction was not warranted because the infringer's work contained a large amount of material that was not copied, and enjoining publication of the infringer's book would impose too great a hardship.

Bender, 33 where the court refused to issue a preliminary injunction despite clear evidence of copying because the infringing work was not a "mere copy" and was unlikely to supersede the original. Plaintiffs who had made a clear showing of infringement were sometimes denied injunctive relief if the defendant presented evidence that it could pay adequate damages after the completion of the suit.Intellectual Property Rights in Mexico Essay - Intellectual Property Rights in Mexico After signing the NAFTA on the 90s Mexico has been through a lot of changes.

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