UCLA Law Review Volume 58, Issue 4


Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents

This Comment argues that the First Amendment should be used as a lens for determining whether something is a “natural phenomenon” for purposes of patent law. Patent law does not permit patents over natural phenomena; yet the U.S. Patent and Trademark Office (USPTO) has allowed patents over items that appear to be natural phenomena. Gene patents are one example. This Comment argues that genomic sequences should be considered natural phenomena. It also argues that because the current standards of the USPTO permit patents over these—and other—natural phenomena, there is a problem with the current patent standards. The problem is that the USPTO has upset the balance between preserving the rights of the patent holder and the public’s “right to know” about the information disclosed in patent applications. There currently exists no consistent standard for delineating which items are natural phenomena and which are not, and this permits many items that should be considered natural phenomena to obtain patents. This Comment argues that the First Amendment could offer a solution. Because First Amendment theory shares a focus on the public’s “right to know,” standards of First Amendment law can serve as a lens for determining whether an item is a natural phenomenon.

Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright's Fair Use Doctrine

This Comment explores the puzzle of how adjudications of fair use under the Copyright Act should be treated over time. The discussion weighs the importance of copyright law and the incentives created thereby against the policy concerns driving claim and issue preclusion. Currently, the preclusive effect of litigation that concludes in a finding of fair use may bar a copyright holder from subsequent litigation. This cripples the copyright holder’s ability to protect her work and can have a damaging effect on an author’s incentives to create. Such incentives are at the heart of copyright protection and must be preserved in order to promote public benefit from creative works. Claim and issue preclusion, however, evolve from valuable policy concerns as well, such as finality, efficiency, and fairness. Limiting the application of these doctrines in fair use cases has the potential to stifle the creativity of secondary authors—those individuals utilizing existing works in their creations under the fair use doctrine. Because such creations are valuable to the public, copyright law aims to preserve incentives among these secondary authors as well. This Comment proposes a modified application of claim and issue preclusion in cases of fair use, which balances the importance of incentivizing all creative authors while simultaneously preserving the important doctrinal goals of claim and issue preclusion.

Awakening the Press Clause

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the U.S. Supreme Court does not explicitly recognize any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the thirty-year- old debate over whether the Press Clause has any function separate from the Speech Clause. The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem—who or what is the “press” in the First Amendment? Others have attempted to define the press, but the ubiquitous instinct toward constitutional overprotection tends to invite overly broad definitions that include potentially everyone. Proponents of these overinclusive definitions attempt to transfer our constitutionally overprotective approach from the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more. This Article endeavors to break that cycle by arguing that the way to give long-overdue meaning to this important piece of constitutional text is to embrace press exceptionalism and a narrow definition of the press. By adopting an overly protective approach to the Press Clause, we have been sucked into a constitutional feedback loop: An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause. Awakening the Press Clause, therefore, requires embracing a definition of the press that is sufficiently narrow. This Article furthermore submits that the definitional problem is manageable because line-drawing perfectionism is not required thanks to the fallback protections of the Speech Clause.

Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law

At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism—the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the Equal Employment Opportunity Commission (EEOC) reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin. In contrast, under the Americans with Disabilities Act of 1990 (ADA), the courts and the EEOC allow applicant-specific paternalism, thereby permitting an employer to seize decisionmaking power from a disabled applicant. Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the protected characteristic at issue. The “favored” characteristic (a Title VII characteristic) yields a viable claim, but the “disfavored” characteristic (an ADA disability) produces a losing claim. This Article proposes a new approach—termed “informational paternalism”— that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal antidiscrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decisionmaking power).

Digital Exhaustion

As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. To the extent the use and alienation of copies entails their reproduction and adaptation to new platforms, the limitations first sale places on the exclusive right of distribution decrease in their legal and market impact. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights. Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped to limit copyright exclusivity, enabling copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the U.S. Supreme Court’s foundational decision in Bobbs-Merrill v. Straus. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that include not only alienation but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.