The Intellectual Property and Technology Forum Journal at Boston College Law School (IPTF Journal) is a legal publication dedicated to providing readers with rigorous, innovative scholarship, timely reporting, and ongoing discussion from the legal community concerning intellectual property and technology law. IPTF Journal is designed, edited, and published by students at Boston College Law School. Our articles are available freely on our website (<a href="https://sites.bc.edu/iptf/">https://sites.bc.edu/iptf/</a>). They are also available on Westlaw.

Intellectual Property and Technology Forum

An emerging trend in intellectual property law is e-commerce platforms adjudicating infringement disputes. When platforms receive right holder complaints and decide whether to remove product listings, suspend the seller, or destroy the infringing inventory—intentional or not—they are acting as “courts,” applying unique “laws” and granting platform-style “remedies.” To provide a peek into this nascent realm of intellectual property alternative dispute resolution, this article first compiles what is known about platforms’ adjudication mechanisms, from complaint to decision, from enforcement to “appeals,” covering both platforms’ basic complaint systems and Amazon’s UPNEP/APEX program. Normatively, however, there are concerns that platforms are taking over the role of intellectual property courts, which this article explores. If not treated carefully, platform adjudication could erode due process, nullify substantive legal doctrines, and stunt intellectual property law development. Next, this article discusses the upsides of this new trend, including significant time and cost savings that must be acknowledged, and how platform adjudication can be a welcome addition alongside pre-existing compact intellectual property dispute resolution institutions in the public sector. Finally, by examining courts’ decisions on motions to enjoin platform adjudication, this article suggests that platform adjudication for resolving infringement disputes is here to stay.

The Secret Life of Platform Intellectual Property Adjudication

As the United States moves to reduce its carbon footprint, nuclear energy has become an essential energy alternative to fossil fuels. The current U.S. nuclear fleet is aging and will soon be decommissioned, so building new reactors is essential for U.S. energy production needs. In building a new generation of nuclear reactors, the United States may consider looking to France for inspiration. France's reactor fleet is highly standardized, meaning that there are only a few reactor designs. There are potential benefits and drawbacks to standardization in nuclear technology. Some scholars argue that a policy of standardization would lower the high costs of nuclear reactors, although others worry that standardization would eliminate innovation. An ideal regulatory scheme for the new fleet of reactors in the United States would include standardized reactors while using monetary and other incentives to continue nuclear innovation.

A Comparative Study of Nuclear Reactor Standardization Policy in the United States and France

Non-fungible tokens (NFTs) are digital assets that are part of a relatively new industry involving blockchains and cryptocurrencies. As NFTs grow in popularity, questions have arisen over NFT copyright ownership. A federal court will have the opportunity to rule on this issue for the first time in a pending case between Miramax and Quentin Tarantino. The film production company and the well-known director are in dispute over intellectual property ownership of screenplay scenes that Tarantino sold as NFTs. The outcome of the case and future laws will have a direct impact on the way NFTs are purchased and sold in the future. This essay predicts that courts will apply traditional intellectual property laws to NFTs, attaching copyrights to the underlying assets behind NFTs rather than to NFTs themselves.

Tarantino v. Miramax: The Rise of NFTs and Their Copyright Implications

This Essay examines the controversial launch of the 2020 COACH® x Basquiat Collection featuring the signature image of Jean- Michel Basquiat on Coach purses and clothing. These signature images were part of a larger work of art by Basquiat that aimed to critique racial segregation, police brutality, and the capitalistic pull of American society. Basquiat supporters critique the collaboration as a misappropriation of the artist’s message. Under this assumption, this Essay evaluates the scope of the fair use doctrine through a hypothetical copyright infringement claim against Coach. This Essay examines the provisions of current copyright laws and advocates that there is a need for a narrowed interpretation of the four factors of the fair use doctrine.

From Canvas to Designer Cloth: The Exploitative Nature of the Fair Use Doctrine in the Arts

Keara Wilson, the creator of the “Savage” dance on TikTok successfully registered her dance as a choreographic work with the U.S. Copyright Office, making it the first viral TikTok dance protected under the Copyright Act of 1976. She is one of numerous TikTok dance creators seeking copyright protection for their works as the social media platform has bolstered dance dissemination through dance challenges that encourage users to reproduce and post their versions of short routines. Nevertheless, under the current guidelines for choreographic work copyright, TikTok dances are not entitled to copyright protections because of their categorization as uncopyrightable social dances. This Essay explores the current issues posed by these outdated guidelines and argues for updating the Compendium of U.S. Copyright Office Practices to include terms that reflect the current landscape of choreographic work creation in the digital age.

Choreographic Works in the Age of Social Media: The Issues and Implications of Copyrighting TikTok Dances

The Americans with Disabilities Act (ADA) was enacted in 1990 in order to address discrimination against individuals with disabilities and ensure that individuals are afforded equal access to goods and services. Despite the fact that our society has become increasingly reliant on technology as a form of communication and commerce, websites are not explicitly covered by the ADA. This article summarizes the current state of website accessibility lawsuits under the ADA and outlines varying interpretations of the ADA by the U.S. Circuit Courts. This article advocates for a broad interpretation of the ADA to best serve its purpose of eliminating discrimination on the basis of disability.

Remaining Barriers to Accessibility: Americans with Disabilities Act and Websites

The rise of Big Tech has led to concern over social media companies’ power in regulating user content. Social media users are claiming, more frequently now than ever, that their posts, ideas, and views are being censored by social media platforms. Contrarily, other users are arguing that platforms aren’t doing enough to moderate and curb harmful or offensive speech online. Many have filed lawsuits against social media companies for infringing on users’ First Amendment freedom of speech. These lawsuits fail because of the legal barriers that protect social media companies from such liability. As a result, controversy has spurred over the need to either revise existing legal mechanisms or devise completely new ones for the regulation of a platform’s ability to moderate its users. This essay considers the current attempts at proposed legislation and argues how they fall short of feasible solutions.

The Search to Find a Legal Remedy for Regulating Censorship on Social Media

The Banning Surveillance Advertising Act, proposed in the 117th Congress of the House of Representatives by Congresswoman Eshoo, would improve consumer data protection but would also have negative consequences on market competition in sectors that utilize user data. This Act is indicative of a growing conflict between antitrust policy and consumer data privacy. This essay argues that future federal consumer data privacy legislation should attempt to balance the competing interests of market health and consumer privacy rights by prohibiting exploitative uses of consumer data and mandating consumer data sharing and a period of exclusive use of collected data.

Antitrust Implications of the Banning Surveillance Advertising Act

Digital technology has become one of the most common methods artists use to create art. This advancement in technology causes many copyright difficulties, especially related to artists’ styles. Standardized and common features of digital software have made it far too easy for people to duplicate other people’s work, and more significantly, an artist’s unique style. Current copyright laws are insufficient to address these issues, and there is almost no legal precedent related to protecting an artist’s “art style.” In a groundbreaking case, Williams v. Gaye, the court implemented a two-part test to imply protection for musical styles, the “groove.” This article discusses the importance of protecting artists’ unique styles in the digital age and argues that digital art is entitled to the same protection the courts afforded music in Williams.

Digital Art Says: Protect Our “Groove” Too

As technology proliferates, cyberspace is becoming increasingly polluted with crime targeted at private enterprises. The escalation is the result of ineffective cybercrime laws. Although an international solution may be ideal, no treaty seems imminent. The U.S. government should focus on a more attainable solution in the short-term: amending the Computer Fraud and Abuse Act (CFAA). This Essay considers how revising the CFAA to allow qualified private companies to engage in offensive tactics would alter incentive structures. It concludes that such a revision would be an efficient solution to increase deterrence and reduce cybercrime.

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