University of California Hastings College of the Law
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Would a Successful FTC Noncompete Ban Reduce Lawsuits Against Employees Who Change Jobs?
No full textArtificial Authorship on the Big Screen: Regulating Ai in Scriptwriting
No full textWhile the rise of artificial intelligence (AI) offers exciting, new creative possibilities for the entertainment industry, it also threatens to replace or undercompensate the humans who have been at the backbone of the industry since its inception. AI’s increasing ability to generate human-quality content raises concerns about job displacement and copyright ownership for scriptwriters. While the recent Writers Guild of America (WGA) strike secured several protections, the unique and rapidly evolving nature of AI requires that further legal safeguards be created. This Note argues for additional regulations to ensure that AI remains a collaborative tool for scriptwriters and not a replacement. The regulation would protect scriptwriters’ creative contributions by potentially limiting studios’ ability to freely train AI with past works. While this Note primarily addresses the challenges scriptwriters face, it also sets the stage for a broader discussion regarding AI and human collaboration in the workforce
Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims
No full textThe protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue
Patent Infringement, Private Law, and Liability Standards
No full textPrivate law governs interactions among private parties. A large body of private law theory holds that private law is aimed at corrective justice: doing justice as between the two parties to a private interaction (the private law dyad). This in contrast to public law, the law of state-citizen interactions, whose purpose is usually said to be the pursuit of society-wide fairness, often understood as distributive justice. Torts, contracts and property are the three classic areas of private law in common law jurisdictions. A sizeable literature now concerns itself with classic private law topics as they apply to intellectual property (IP). Articles, and now a fine monograph,¹ argue that patent law’s strict liability standard is out of touch with modern tort theory, which emphasizes that private law liability must be grounded in fault.
In this Article I enter that discussion with a defense of the current liability regime in patent law, which is a distinct form of “strict liability.” But before wading into those waters, it is first necessary to understand which aspects of patent law belong in the domain of private law in the first place. It is not as simple as saying patents are property and therefore private law applies. This is so because patents, when brought to bear against another private party in an infringement suit, are subject to intensive and rigorous validity review. The business of patent validity— quintessentially in place to protect society, and thus within the public law domain— precedes the true private law part of patent enforcement. The “shallow vesting” of the initial patent grant must be solidified and brought to fruition with the deep, but strictly in personam, vesting of a patent that survives validity review. Between the parties to the private law dyad, plaintiff and defendant, all cloud on the patent owner’s title is removed and the patent enforcement action enters its “private law moment.” The patent at this point forms a solid entitlement capable of serving as a baseline for applying corrective justice as between the parties.
After delineating the private law moment in patent law, I turn to the question of strict liability. After explaining some details about the adequacy of patent notice—in response to a well-known critique of “notice failure” in patent law—I defend strict liability on private law grounds, using two (or two and a half) variants of private law theory, Strict Corrective Justice (“SCJ”) and “Relational Justice,” with points drawn from a third approach to private law called Civil Recourse Theory. The first defense emphasizes parallels between patent infringement and cases on “per se negligence.” It highlights the expansiveness of “fault” in cases where weak warnings are given to highly trained experts held to a very high duty of care (e.g., technology-intensive product sellers who adopt possibly patented technologies). The second defense of strict liability applies the more expansive Relational Justice theory of private law. I explain how the strong norm against misappropriation evident in communities of technological innovators, coupled with an understanding of how difficult it can be to prove direct copying of new technical ideas, points to strict liability in this setting. In keeping with the more holistic emphasis of Relational Justice, I also argue that a negligence rule in patent law would harm the vitality of technical communities. It would cut down on the volume of community-wide technical communication and interaction, as a strategy to avoid infringement liability
