Recent Articles

Arbitration as a consumer dispute resolution tool

Raymond Nimmer
August 28, 2011 21:20

Several months ago the Supreme Court insulated arbitration clauses in consumer and other small claims settings from the most frequent challenge to their enforceability – the allegation that they are unconscionable unless they allow class action proceedings. The decision presents...

Trademarks used functionally and not as a mark

Raymond Nimmer
August 08, 2011 14:25

Trademark law gives the mark owner a right to protect against conduct that is likely to create confusion about sources or sponsorship of a product or service. But trademark law does not give the mark owner control over all use of the image, word, or phrase that constitutes its mark. Volumes of...

Data protection privacy - meet the First Amendment

Raymond Nimmer
July 31, 2011 03:22

I and others had been wondering when the political frenzy to protect pseudo privacy (actually, personal data protection) laws and regulations restricting a person or a corporation’s use of non-sensitive, personal information about another individual lawfully obtained outside a...

UCITA in court and doing well

Raymond Nimmer
April 29, 2011 13:51

  When the Uniform Computer Information Transactions Act (UCITA) was being debated nationally in the late 1990’s and early 2000’s, it became part of a wildly intense debate about the nature of contract law that ultimately led to the rejection of two misguided efforts to revise...

Infringement and disclosure risk in development on copyleft platforms

Raymond Nimmer
February 23, 2011 00:19

While many companies that write apps or develop parallel platforms grounded in open source willingly disclose code and comply with copyleft rules (e.g., some transferees to also disclose their code), others prefer to protect (e.g., not disclose) some of their code and not force customers who resell...

Ninth Circuit rejects Chamberlain places DMCA back on a proper track

Raymond Nimmer
January 30, 2011 11:20

In 2004, in the Chamberlain case, the Federal Circuit unaccountably grafted a non-statutory element on the access control provisions of the DMCA, requiring that there be some connection to preventing infringement for there to be protection against circumvention of a technology control on access to...

Ninth Circuit in Vernor got first sale doctrine right

Raymond Nimmer
January 25, 2011 13:32

The Ninth Circuit revisited the ownership question involved in copyright first sale in Vernor v. Autodesk, Inc., 2010 WL 3516435 (9th Cir. 2010) and got it right, adopting a variation of the Federal Circuit’s DSC decision and the approach taken by all other Circuit Courts that have looked at...

Why are free and open sources licenses different?

Raymond Nimmer
May 18, 2010 19:49

  Millions of dollars and thousands of hours have been spent during the last decade worrying about how to deal with free and open source software licenses. This leads me to ask ‘what makes these licenses different in a way that attracts all of this attention, both negative and...

Has the worm turned on transformative use?

Raymond Nimmer
April 24, 2010 02:25

  A while ago, I commented about the misreading that courts were doing with respect to fair use, especially with respect to so-called “transformative use.” Maybe they heard, but at least they have begun to figure it out. The worm may have begun to turn. ...

Indirect Trademark Liability - who takes the risk?

Raymond Nimmer
April 18, 2010 20:04

  Online aggregators, site operators and search engines are in a seemingly endless conflict with content providers and rights owners. This extends to trademark law. The confrontation relates to deciding what obligations aggregators (and others) have to police and prevent advertising and...