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INTO THE THICK OF IT: USING ANTITRUST LAW TO TRIM PATENT THICKETS AND LOWER THE PRICE OF PRESCRIPTION DRUGS
No full textWhat would you do if the only drug that could potentially save your lifeispricedsohighthatyouwouldfacefinancialruintopayforit? For many Americans, this dilemma is not a hypothetical but a reality. Those who decide to follow doctor’s orders and pay for their prescriptions sometimes face crushing financial burden. It is not a secret that the price of pharmaceutical drugs in the United States is crippling for many patients. Indeed, the high price of prescriptions is one of the few issues that has garnered bi-partisan concern, with both Joseph Biden and Donald Trump vowing to fight to lower costs. This Note identifies the practice of “patent thicketing” as one practice pharmaceutical companiesemploytokeeppriceshigh. Thestrategyofpatentthicketing involves wrapping up patents in a web of patents that prevent generics from entering the market far past the exclusivity deadlines contemplated bypatentlaw. Indoingso,thispracticeiscaughtinthemiddlebetween preserving intellectual property rights in a manner that encourages innovation on one hand and antitrust laws which should, in theory, prevent monopolistic behavior and foster competition in pharmaceutical markets. This Note examines some solutions that others have offered as well as posits new ones as to how to untangle the mess that is patent thickets
Guangzhou Youlan Technology Co. Ltd. v. Onbrill World, Docket No. 1:25-cv-11051 (N.D. Ill. Sep 12, 2025)
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RETROFITTING FAIR USE: ART & GENERATIVE AI AFTER WARHOL
No full textThe fair use doctrine has been technology companies’ most valuable legal justification for systematically extracting and scraping content from the internet to train their generative artificial intelligence tools. Although fair use has historically protected the public from the monopolization of creative expression and intellectual property, in its current state, the doctrine enables powerful technology companies and movie studios alike to hoard copyrighted content while disenfranchising individual artists and creators. In May 2023, the United States Supreme Court ruled on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a dispute about whether Andy Warhol’s use of Lynn Goldsmith’s original photo of Prince is a fair use. The Court concluded that a copy is not transformative under fair use when it is used commercially for a substantially similar purpose as the original. The decision affirms that the fair use inquiry must look beyond mere similarities and differences between a copy and the original. Instead, courts must grapple with how a copy is used.
This Article examines the Supreme Court’s reinterpretation of the fair use doctrine in the Warhol decision in the context of creative expression and generative AI.2 More specifically, the majority’s emphasis on purpose and market competition tips the scale in favor of artists and creators concerned about generative AI models trained on copyrighted work. This Article also argues that the fair use analysis in Warhol recontextualizes the Supreme Court case Authors Guild v. Google, weakening the defense technology companies have relied on for ingesting copyrighted material to train AI models. Lastly, this Article considers the entertainment industry’s response to generative AI, including the WGA and SAG-AFTRA strikes, and proposes changes to the fair use doctrine to avoid a bleak future for art and creative expression.
Ultimately, Warhol introduces some refreshing complexity back to the issue of fair use, particularly in the context of generative AI and AI image generators. Still, many legal and existential questions remain. For instance, given the potential of AI to relieve society of dangerous and unfulfilling labor, why have technology companies opted to devalue labor that is abundant, meaningful, and undervalued