Articles and Notes

Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of the Copyright Clause’s limits as free speech limits, giving them the force of an individual right.

Continue reading "A Free Speech Theory of Copyright" »

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Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented. The cause of these problems, however, is less clear.

I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray.

Continue reading "Historic Perspectives on Law and Science" »

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Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates the prototypical “marketplace of ideas” than do warring politicos duking it out on the op-ed pages or, for that matter, in opposing briefs. However, the very features that make the internet fertile ground for cultural and political discourse—anonymity and pseudonymity; intellectual symbiosis and parasitism; fractal sprawl, audience dispersal and many-to-many architecture—render it a treacherous landscape for its custodians. In recognition of that fact, Congress in 1996 passed the Communications Decency Act, which nearly eliminated the liability that website administrators face for third-party generated content.

Continue reading "NOTE
A Regulatory Proposal for Digital Defamation:
Conditioning §230 Safe Harbor on the Provision of a Site "Rating"" »

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In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs. Armed with information about the time-varying cost of electricity residential and commercial customers are expected to reduce energy usage and/or shift their usage to non-peak, less costly, hours. Such shifts, even absent reductions in overall consumption, will reduce the likelihood of energy brown and black outs and provide direct savings to consumers. Technologies to enable the demand response system, including advanced metering research and development [OpenAMI] and sensor and control technologies development [DRETD], are under development. These technologies will be coupled with a communication and network infrastructure that supports the multicast of real-time pricing information, and the aggregation of energy usage and billing information.

Continue reading "Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home" »

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The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its
counterpart, the Search clause, has evolved through a steady progression of Supreme
Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based
notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to
modern privacy concerns by extending Constitutional protection to situations that satisfy
the reasonable expectation of privacy test. While imperfect, the evolved Search clause
has kept the protections of the Fourth Amendment relevant in an age of digital evidence,
ubiquitous communication networks, and increasingly sophisticated and invasive
surveillance capabilities.

Continue reading "The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property" »

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The ACLU of Northern California has been a leader in generating public and legislative
attention to the privacy, personal safety, and financial security risks associated with the
use of Radio Frequency Identification (RFID) technology in government-issued
identification documents, such as drivers' licenses and student ID cards.

Continue reading "Rights Chipped Away: RFID and Identification Documents" »

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Under current Fourth Amendment doctrine, parties to a communication enjoy
constitutional protection against government surveillance only when they have a
reasonable expectation of privacy in those communications. This paper discusses the
insufficiency of the reasonable expectation of privacy test in the context of modern
communications. Significantly, courts have required that communications media be
virtually invulnerable before affording them Fourth Amendment protection.

Continue reading "First Principles of Communications Privacy" »

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Pharmaceutical sales constitute a $600-billion-per-year global industry. Less well-known is that more than half of the drugs listed in the U.S. Pharmacopoeia contain a class of compounds known as chiral molecules as the active pharmaceutical ingredient. Chiral molecules have special chemical and pharmacological properties that raise questions as to their patentability. When chiral molecules are synthesized in the laboratory, two distinct mirror-image molecules are formed called “enantiomers.” Although each enantiomer may have different levels of therapeutic activity and toxicity, technical challenges to separating the enantiomers caused most early chiral drugs to be sold as mixtures of the two molecules, or racemic mixtures.

Continue reading "The Patentability of Enantiomers: Implications for the Pharmaceutical Industry" »

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The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators and scholars, most famously Ronald Coase, have advocated that a more efficient allocation would be achieved if government sold the rights to the spectrum and allowed a free market in radio property to develop.

Continue reading "The Spectrum Commons in Theory and Practice" »

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The principles behind the Fourth Amendment's Search and Seizure clause are found throughout Anglo-American jurisprudence. This body of law reflects a history of attempting to harmonize the seemingly conflicting governmental goals of communication privacy on the one hand, and protecting the public safety and national security on the other. Nations adopt surveillance doctrines, driven largely by the realities of the technology. As technologies change, assumptions behind doctrines can become outdated.

Continue reading "Anticipatory Electronic Surveillance in Anglo-American Law" »

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It is largely uncontroversial that the "creative" effort in a database will be protected by copyright. However, any effort to extend protection to purely factual databases creates difficulties in determining the proper method and scope of protection. This Paper argues that antitrust law can be used to supplement intellectual property law in maintaining the "access-incentive" balance with respect to databases. It starts from the premise that a trend toward "TRIPs-plus" rights in databases, whatever its form, is inevitable. The reason is a simple, but compelling one: business needs shape the law. Various means of database access regulation are explored and contrasted with antitrust law. This Paper concludes that antitrust offers an alternative that more accurately reflects commercial expectations. However, regulators need to be aware of the limitations of applying antitrust law to a regime delicately tuned with pre-existing endogenous checks as well as the effects of their application on innovation by those spurred on the assurance of monopoly profits. In this regard, antitrust law must prove itself to be capable of sophisticated regulation if its interference in the database industry is to be justified.

Continue reading "Regulating Access to Databases Through Antitrust Law" »

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In today's Internet economy, search engines play an increasingly important role in helping consumers locate goods and services. However, search engines may also allow unauthorized online retailers to misuse trademarks as keywords and metatags in ways that can boost their placement in search engine results and increase online sales. For instance, a person other than a trademark holder may purchase a trademarked word or phrase as a search engine keyword (keyword misuse), or may insert them as hidden HTML code on webpages (metatag misuse). Where a website that misuses trademarks in this manner then offers the trademarked goods or services for sale online without a license from the original producer, consumers may be deceived as to the source of those goods and services, and the value of the trademark might be diminished.

Continue reading "The Search Engine Economy's Achilles Heel?" »

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This Note presents an empirical study of district court opinions that reached the question of obviousness--one of the core requirements for patent validity--n patent suits. The doctrine of obviousness has befuddled courts and litigants since the Supreme Court's 1851 statement that patentable invention requires some nebulous level of ingenuity and skill. By the 1970s, frustration with the obviousness doctrine had reached fever pitch, and Congress responded by centralizing patent appeals in the United States Court of Appeals for the Federal Circuit.

Continue reading "New Insights on the "Death" of Obviousness: An Empirical Study of District Court Obviousness Opinions" »

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Morality, an individual's subjective sense of right and wrong, is the biggest influence in shaping law-related behavior. And not surprisingly, both psychologists and legal theorists have begun to explore the links between personal morality and large-scale copyright infringement. But to date, this analysis has not rigorously answered some basic questions. Why do people believe that theft is immoral? And why do so many differentiate theft from infringement?

Continue reading "The Immorality of Theft, the Amorality of Infringement" »

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One year ago, on June 27, 2005, the Supreme Court released its much-anticipated ruling in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd . The unanimous decision held that Grokster and StreamCast, the distributors of popular peer-to-peer "file sharing" software, could be held secondarily liable for copyright infringement committed by their users if Grokster and StreamCast took active steps to induce infringement. This document outlines the limits on the scope of secondary copyright liability that follow from a close reading of the Grokster decision together with the landmark decision in Sony Corporation of America v. Universal City Studios, Inc. (1984), and patent law precedents relating to inducement liability. The Center for Democracy and Technology believes the legal principles set forth in this article represent the best reading of current law in the wake of Grokster and that careful observance of these principles by lower courts would serve the Grokster Court's goal of ensuring that secondary liability for copyright infringement "does nothing to compromise legitimate commerce or discourage innovation having lawful promise."

STLR is proud to present: Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement, a perspective by the Center for Democracy and Technology (CDT).

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This paper examines six decisions in which district courts have held patent claims invalid based on PTO-considered art. Part II describes the origin and limitations of the methodology used to select and analyze particular cases. Part III summarizes the pertinent law relating to the presumption of validity and anticipation, and it briefly considers the PTO's inter partes patent reexamination process as an administrative analog of patent validity litigation. It ends with a summary of the factors weighing for and against the challenger. Part IV explores a few policy reasons that challengers should not be discouraged from relying on PTO-considered art, including the limited inquiry of patent examination, the PTO's admission that it issues invalid claims, and the economic efficiency of relying on PTO-considered art to invalidate patent claims. In Part V, the cases are described in terms of how the courts analyzed the issue of anticipation and how they addressed, if at all, the issue of deference to the PTO. Finally, conclusions and opportunities for further research are presented in Part VI.

STLR is proud to present: Deference Overcome: Courts' Invalidation of Patent Claims as Anticipated by Art Considered by the PTO by J. Michael Buchanan.

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This paper begins with an overview of Amazon's prior experiments with e-books, the way in which the Search Inside the Book database is created, and how that database manifests itself to the Amazon user. Part II analyzes the Search Inside the Book program under current copyright law and concludes that the program does infringe copyrights in the indexed works. Part III argues that programs like Search Inside the Book, though infringing, actually serve the purposes of copyright law, and should not create liability for the providers of such programs. Finally, part IV applies the fair use doctrine to Search Inside the Book, assuming that the existing copy-protection measures are improved as indicated and ultimately finding this unconventional program protected as fair use.

STLR is proud to present: No Analog Analogue: Searchable Digital Archives and Amazon's Unprecedented Search Inside the Book Program as Fair Use by Jonathan Kerry-Tyerman.

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This article argues that corporate law firms do not appreciate the changing world of legal recruiting. The rise of information technology means that law students function as sophisticated consumers of information on law firm life. Given that monetary compensation at major corporate firms is almost identical, students' perception of lifestyle can have a major influence on their valuation of firms. Consequently, firms need to adapt by more carefully managing the type of information that might be accessible to students, and their general reputation within the student community.

Continue reading "Managing Risk to Reputation: The Challenge of the Internet for Legal Recruiting" »

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This paper examines the laws that regulate government use of pen registers (devices that record dialed phone numbers) and "packet sniffers" (the Internet counterpart to the pen register, roughly speaking). Following a review of the basic history and development of the statutory and constitutional law governing privacy in communications, the paper takes a closer look at Title III's use of the concept of "contents" as the touchstone of its privacy scheme, and analyzes the difficulties inherent in that scheme. The paper then considers the state of communications privacy law in light of the Fourth Amendment question, arguing that the seminal Smith decision is constitutionally suspect. A set of proposals are ultimately set forth: sharper statutory language, modest increases in substantive statutory privacy rights, and recognition of constitutional privacy protection in "non-content."

Continue reading "Almost Private: Pen Registers, Packet Sniffers, and Privacy at the Margins" »

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During the course of routine operations, computers temporarily copy programs and other copyrighted material to their random access memory ("RAM"). In MAI Systems Corp. v. Peak Computer, Inc., the Ninth Circuit held that a temporary copy stored in a computer's RAM could constitute an infringement of the copyright owner's reproduction right. In the decade since MAI, numerous other courts have followed the Ninth Circuit's holding. The United States government has also exported this view in several free trade agreements. In June 2004, however, in CoStar Group, Inc., v. LoopNet, Inc., the Fourth Circuit suggested that a temporary copy made by an Internet service provider ("ISP") acting as a conduit of information might not be an unlawful copy after all--at least in some circumstances. This Perspective examines existing law on temporary copies and how it may be affected by the CoStar decision.

Continue reading "A New Perspective on Temporary Copies: The Fourth Circuit's Opinion in Costar v. Loopnet" »

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This article compares the regulation of electronic employee monitoring in the European Union, the United States and Canada in an attempt to reconcile conflicting legal standards regarding workplace privacy as they are evolving simultaneously with technological advances. Included is an extensive discussion of the European Union's widely influential privacy directive and its application in the context of electronic employee monitoring, relevant U.S. legislation such as the Electronic Communications Privacy Act (ECPA), HIPAA and the ADA, and Canada's newly enacted Personal Information Protection and Electronic Documents Act (PIPEDA). Also included is a detailed comparative analysis of the regulatory approaches to employee privacy taken in these jurisdictions. Drawn from this analysis are fundamental privacy principles which inform employers of the parameters of employee privacy protection where electronic monitoring is a desired management practice. The authors argue that these principles create an equitable paradigm that rightfully protects employee dignity while recognizing legitimate management needs.

Continue reading "Regulation of Electronic Employee Monitoring" »

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Between 1997 and 2002, the number of nanotechnology patents grew by 600%. As of December 2003, there were around 7,000 such patents. None of these patents has been addressed by the Federal Circuit, which means that we can consider the patentability of nanotechnology on a clean slate. This Note seeks to explore how courts should handle nanotechnology patents--before they make binding decisions. In particular, it focuses on the utility requirement for patentability. Conceivably, the current utility standard could create problems for nanotechnology. Nonetheless, this Note argues that utility will not--and should not--be applied in a heightened manner that would make it an insurmountable obstacle to patenting nanotechnology inventions.

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This paper reviews the antitrust treatment of patent-pooling and cross-licensing arrangements from E. Bement & Sons v. National Harrow Co., decided in 1902, to the recent Department of Justice business review letters on the MPEG and DVD patent pools. I examine the factors that the courts identified as pertinent to the antitrust outcome and compare them to the competitive factors identified in the DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property. Until recently, the competitive relationship of the patents was not a major determinant of the antitrust outcome in most cases. Instead, the courts have focused on restrictive licensing terms that affect downstream prices. I consider the logic of this approach to evaluating antitrust liability. I also propose an approach to evaluating the antitrust risks of arrangements that combine potentially blocking patents.

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Today, for the first time, there are more mobile than landline telephones in the United States. Satellite TV and radio are booming. In addition, public safety organizations and the military depend heavily on wireless systems to do their jobs. All of these technologies, and a host of new innovations, are competing for access to the increasingly crowded electromagnetic spectrum. As a consequence, spectrum policy has taken center stage at the Federal Communications Commission.

Continue reading "Can You Hear Me Now? Getting Better Reception from the FCC's Spectrum Policy" »

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A policy of "open access" is advanced to counter the market power of cable television systems in video and broadband. While substantial market power exists, economic theory demonstrates that cable operators generally do not have incentives to discriminate against independent providers of Internet access or content, and market data suggest that vertical integration (foreclosing "open access") is efficient. Moreover, historical experience shows that regulation of cable systems, including retail rate controls, leased access, and video dialtone, has proven anti-consumer. "Open access" is similarly likely to suppress, rather than expand, technology deployment, as seen in the lagging competitiveness of the "open" broadband platform (digital subscriber lines) offered by telephone companies. Indeed, common carrier regulation is shown to be a disincentive to investment in advanced telecommunications by observation of cable operator behavior. Cable systems under-allocate spectrum for high-speed network services, a practice that strategically counters the threat of regulatory appropriation implicit in "open access."

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This paper provides a brief review of the law of patent infringement damages and applies this law to various situations involving infringement of research tool patents, which are patents to materials and methods that can be used to make discoveries. The discussion focuses on the appropriate measure of damages for acts of infringement that result in discoveries profitable for the infringers, and especially on damages awards of royalties on the infringers' profits from these discoveries, known as reach through royalties. It concludes that in order to satisfy one of the broad goals of the patent system -- to encourage innovation -- different liabilities should be imposed depending on whether the patented research tools have broad, intermediate, or narrow ranges of use. Thus, while acts of infringement against research tool patents with narrower ranges of use may result in liability including reach through royalties, infringement of research tool patents with broader ranges of use should not. This paper analyzes the effects that reach through royalties awards could have on the licensing and use of research tools, and suggests several ways in which trial courts might avoid creating damages awards precedents that would discourage the use of research tools to advance biomedical technology.

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The Supreme Court's decision in Festo removes some of the rigidity of the Federal Circuit's "complete bar" approach to the doctrine of equivalents, but difficulties remain for biotechnology patent holders. The Court explicitly allows for the application of prosecution history estoppel to claims amended in response to enablement rejections and not just those amended to avoid prior art. Due to the uncertainty regarding enablement for nucleotide and amino acid sequences, applications in the field of biotechnology are virtually guaranteed to be amended during prosecution. Consequently, the Festo decision places an undue burden on applicants in the field of biotechnology: to specifically claim every possible variant of a nucleotide or amino acid sequence or risk finding out in court that minor non-functional substitutions in the claimed sequence were foreseeable, and therefore not covered by the doctrine of equivalents.

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Although the Supreme Court rejected the Federal Circuit’s “absolute bar” to the doctrine of equivalents, the new presumption of prosecution history estoppel, after Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., sets the standard nearly as high. Indeed, a patentee may rebut this presumption only through evidence that (a) the equivalent was unforeseeable; (b) the rationale underlying the amendment bears only a tangential relation to the equivalent; or (c) there was some other reason why the patentee could not reasonably be expected to have described the equivalent. This article examines questions regarding the application of these rebuttable presumption factors, including those concerning the relative weight of each factor, the time at which amendments must be foreseeable, and the counterintuitive incentive that the foreseeability factor appears to create. Finally, this article presents strategies for avoiding the Festo dilemma altogether.

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A victim of computer virus infection may bring legal action under a negligence theory against entities such as web site operators and other providers and distributors of infected software. Proof of specific negligence is simple in cases involving a familiar virus strain that could have been prevented cost-effectively. However, in cases involving complex and novel strains, and where lapses in compliance with the non-durable component of anti-viral precautions leave no evidentiary trace, such direct proof may be impossible. This article develops a theory of circumstantial evidence, based on the doctrine res ipsa loquitur, aimed at alleviating a virus victim's burden of proof. Res ipsa loquitur allows an inference of negligence based on the mere occurrence of an accident and the circumstances surrounding it, and does not require proof of specific negligence.

Continue reading "Virus Ex Machina: Res Ipsa Loquitur" »

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This Perspectives piece reviews the recent DoubleClick settlement.

Continue reading "Cookie Viewers and the Undermining of Data-Mining: A Critical Review of the DoubleClick Settlement" »

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The dramatic rise of the high-tech sector of the economy in the 1980s and 1990s created new challenges for antitrust law, in large part because many high-tech markets are networks. Some scholars argue that networks should receive greater antitrust scrutiny, while others maintain that concerns about networks are exaggerated. Those who argue for greater scrutiny believe that network economic effects give networks unique opportunities for predatory behavior. Ties, exclusive contracts, the exclusion from essential facilities, and predatory pricing are all mechanisms that may exclude competition in network markets. Network competition, however, also provides unique pro-competitive justifications for these same business practices. The challenges present in distinguishing anti-competitive from pro-competitive behavior are nowhere more evident than in United States v. Microsoft Corp. Microsoft was found guilty of predatory conduct toward its potential rivals, Netscape and Sun Microsystems, through exclusive contracts, ties, and incompatibilities. This article details the unique opportunities that networks create for both predatory and pro-competitive practices. The article then applies this analysis to the Microsoft case. The author concludes that the government did not present a coherent case of network predation. The author next develops affirmative defenses for some of Microsoft's controversial business practices, premised on the existence of network effects in the market for operating systems. He concludes that pro-competitive motivations potentially explain many Microsoft practices.

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Recent trends reveal the search by companies for a legal hook to prevent the unauthorized copying of information posted on websites. Especially troublesome to those who struggle against this unwanted copying of website information are software robots, small programs that automatically and rapidly search, copy, and retrieve information from websites. In the center of this controversy are metasites, websites that display prices for a variety of vendors. Metasites function by implementing shopbots, which extract pricing data from other vendors' websites. Technological mechanisms have proved unsuccessful in blocking shopbots, and in response, websites have asserted a variety of legal claims. While recent cases illustrate the use of the trespass to chattels doctrine to block searches by data robots, the applicability of this common law doctrine remains uncertain. However, dicta in two recent trespass to chattels cases suggest that contract law may provide a less demanding legal method of preventing the search of websites by data robots. Specifically, through the use of clickwrap agreements, websites could potentially prevent the extraction of data by robots. If blocking collection of pricing data is as simple as posting an online contract, the question arises whether this end result is desirable and legally viable. According to this article, robot restriction contracts are legally enforceable and economically beneficial. At the same time, however, public policy encourages development of a technical standard serving as a fair use exception to such contracts.

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This article argues that new technologies (such as spread spectrum and ultra-wideband) make the idea of divisible allocations of the spectrum obsolete. Thus, we should consider regulating the spectrum, at least for some frequency bands, as a "common pool regime," in which local communities of spectrum users would decide what rules and allocations governed local spectrum usage, and in which at least some areas of the spectrum would be open to all users on an equal basis. To support the feasibility of such a regime, the author draws extensively on the vast literature -- anthropological, sociological, political, and game-theoretic -- that describes the workings and characteristics of successful commons throughout the world. The conclusion is that a common pool regime would not only be feasible, but might be the most efficient property allocation system for a great deal of the electromagnetic spectrum.

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The post-sale market in copyrighted works, so vital to any copyright regime aimed at securing the widest possible dissemination of material, has been sharply curtailed. The proliferation of mass-market licenses reserving title in the copyright holder has placed an ever-increasing number of works outside the protective reach of § 109 of the Copyright Act (the first sale doctrine, which protects the property rights of alienation and trade by extinguishing the copyright holder's right to control further dissemination of his work following a lawful "first sale"). Even when a consumer manages to acquire lawful ownership of a copy of copyrighted work, § 109(b), which exempts certain categories of works from the first sale privilege, might forbid him to lend it to another. Worse still, he might be denied access to the copy by technological protection measures, the circumvention of which is forbidden under § 1201 of the Copyright Act. Even if he were to lawfully acquire both access and ownership, §109 would not permit him to distribute or display his copy over the Internet because digital transmissions involve the unauthorized creation and distribution of a second-generation copy.

Continue reading "Perserving the Aftermarket in Copyrighted Works: Adapting the First Sale Doctrine to the Emerging Technological Landscape" »

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This article presents four cyberspace speech controversies that involve hostile environment harassment law. The author uses these examples to draw two conclusions. First, in most of the controversies, the result should largely be driven not by the medium, but by relatively medium- independent underlying free speech principles. Second, in a system built on precedent and on litigation by many plaintiffs in many courts, speech restrictions accrete over time, with each victory for restriction laying the groundwork for broader restrictions in the future. This tendency can, of course, be resisted--but it ought not be ignored.

Continue reading "Freedom of Speech, Cyberspace, and Harassment Law" »

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The Article is dedicated to what is currently one of the most contested topics of cyberlaw: the proposition that software should be "open." After briefly describing the nature of software and how intellectual property law presently applies to software, the Article points to an ostensible inconsistency in the application of copyright law to software that might be responsible for legal academia's favorable reaction to the open source movement. Thereafter, the Article critically evaluates a number of policy reasons for affording software various types of legal protection, including those developed by Larry Lessig in his works on cyberlaw. Its conclusion is that any move towards more openness would be highly undesirable from the perspective of society, as it would destroy the market-based incentive structure that currently encourages software producers to develop code that consumers find attractive. Finally, drawing on two widespread theories of intellectual property law -- the utilitarian incentive theory and the Lockean labor-desert theory -- the Article shows that the perceived inconsistencies identified earlier are in fact no inconsistencies at all and that there is hence no compelling reason why the current legal framework should change.

Continue reading "A New Paradigm in Intellectual Property Law?: The Case Against Open Sources" »

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Legal Advice on the Internet and the Problems of Prohibited Client Solicitation and Unintended Attorney-Client Relationships
As the Internet demonstrates its financial potential, computer-savvy lawyers have begun to cash in on the cyberspace trend, offering Web sites that provide legal advice via e-mail, online discussion groups moderated by lawyers, and even live one-on-one chat with an attorney. These ventures raise many ethical issues, including the limits of allowed attorney advertising and the unintended creation of attorney-client relationships.

Continue reading "Hanging a Shingle on the Information Superhighway" »

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In his book Code and Other Laws of Cyberspace, Larry Lessig states that "code is law," or in other words, that decisions regarding the architecture of the evolving communications infrastructure exercise control over individuals in much the same way as does legal code and should, therefore, be subject to democratic considerations such as accountability and public participation. In his book, Lessig argues for market-based privacy protection techniques and specifically supports the "Platform for Privacy Preferences" (P3P) standard developed by a group of private companies known as the World Wide Web Consortium. In this article, Marc Rotenberg offers a pointed critique of Lessig's book.

Continue reading "Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get)" »

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Contemporary privacy discussions too often assume that more privacy is necessarily better and limit the debate to a bipolar continuum pitting businesses against consumers. Kent Walker maintains that this view is too limited. In constructing new and better privacy protections, we risk neglecting the implicit costs of privacy and the individual and collective benefits of information exchange.

Continue reading "Where Everybody Knows Your Name: A Pragmatic Look at the Costs of Privacy and the Benefits of Information Exchange" »

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The recent cloning of a sheep, "Dolly" (by the Roslin Institute in Scotland), has sparked a great deal of debate on the moral and ethical implications of cloning. To date, such debate has focussed primarily on the cloning of human beings, which no longer seems such a remote possibility. But in the shadow of this debate about the cloning of humans or farm animals, researchers from several nations have been actively collecting tissue from the remains of the woolly mammoth in preparation for an attempt to bring the beast back from ten thousand years of extinction. Though perhaps not as objectionable as cloning human beings, the resurrection of an extinct species raises unique legal, ethical, and religious questions.

Continue reading "Resurrecting the Woolly Mammoth: Science, Law, Ethics, Politics, and Religion" »

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As digital encryption and privacy-enhancing technologies have become more sophisticated, law enforcement and national security concerns have grown more acute. In response, the Clinton administration has restricted the export of strong encryption and has proposed various means to provide "back-door" access to data by law enforcement. This article examines the historical precedent to digital on-line privacy today, finding that courts have historically had difficulty protecting privacy interests through the Fourth and Fifth Amendments in the context of new technologies. The article also examines the historical precedent set by Congress when it passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronic Communications Privacy Act of 1986, and, through legislation, raised the privacy standard from that set by the courts. This article argues that under current Fourth and Fifth Amendment precedent, it is possible to structure a Constitutionally permissible key escrow program. However, the article argues, measures such as key escrow programs and export controls would provide few benefits to law enforcement officials while seriously infringing on individual privacy interests and significantly disadvantaging the U.S. encryption industry.

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As information technology plays a larger role in the everyday business of value exchange, the question of ownership of that technology, through the traditional legal means of patent rights, will likely come to the fore in banking and related industries. At the same time, the increasing importance of contracting for information and the role of technology in the contracting mechanisms themselves are giving rise to a new regulatory environment for these industries. Legal advisors to banks and other financial institutions will need to understand how property rights in technology will impact their clients. They must also keep pace with a different and changing contractual and regulatory environment and learn to deal with contracts that are entered into by machines and signatures consisting of bits.

Continue reading "Altered States: Electronic Commerce and Owning the Means of Value Exchange" »

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The explosion of Internet usage has provided users with avenues to make purchases, invest, and explore issues as deeply personal as sexuality, politics and cultural beliefs. This explosion has been accompanied by concerns over user privacy and access to objectionable content. The concerns over privacy relate to the collection of personal information from users, often through surreptitious technological means, and the risk of eventual dissemination of this information to businesses, governmental authorities, and even those with criminal, fraudulent intent. Those concerned about easy access to objectionable content wish to protect children from exposure to pornography and violence.

Attempts to address these privacy and decency concerns through regulation are met with arguments from those who would urge more freedom from the Internet; many argue that freedom is an essential element of the usefulness and relevance of the medium. Particularly, attempts to regulate forms of expression on the Internet have been challenged on the grounds of censorship and free speech.

Continue reading "Controlling Chaos: The Emerging Law of Privacy and Speech in Cyberspace" »

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The concept of "junk science" is widely believed to account for a myriad of problems with interactions between law and science. It is regularly blamed for precipitating an ongoing legal "crisis" resulting in longer trials, more expensive litigation, and inconsistent, irrational judgments. The alleged prevalence of junk science is used as evidence for the failure of the judiciary and the public to comprehend science.

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As we continue to advance towards the information economy, scientific research becomes increasingly more lucrative as well as more competitive. This changing world of scientific research has, not surprisingly, led to an increase in the frequency of research misconduct. From the honest error to the willful fabrication, the increased frequency of research misconduct threatens to damage the research process, and its product, the scientific record.

Continue reading "Intent to Deceive: Mental State and Scienter in the New Uniform Federal Definition of Scientific Misconduct" »

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The Internet teems with virtual communities whose vitality is all the more intriguing because it is hidden from view. Stitched together by the electronic network, people from Boston to Beijing engage in the timeless themes of human experience. They pray together, face birth and death together, discuss their most personal of problems, and pursue their inner fantasies. Reputedly prizing independence and eschewing taboo, 'Net citizens portray the Internet as a lawless frontier. Yet law is as prevalent in cyberspace as in real space. It takes many forms, including social custom, formally enforced rules of conduct, and federal statute, notably Title IX of the Educational Amendments of 1972 and the Communications Decency Act of 1996. These rules and laws not only place limits on electronic speech and association, but in so doing they have a profound impact on how community identity forms and the extent to which a community can or cannot explore its identity. This article examines the different functional roles that law plays on the Internet -- whether as an instrument of behavior modification, as a constituent element of the individual, or as a mechanism for community self-modification -- and discusses the implications for the interrelationship between law and identity.

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In this paper, the Authors describe how the technological advancements in telecommunications over the last century have eroded many protections of attorney communication afforded by various common law evidentiary privileges. They note that although federal law now makes the unauthorized interception of any oral, wire, or electronic communication a criminal offense, most courts and state ethics rules fail to protect the privileged nature of attorney communication when attorneys use new forms of communications technology such as cellular telephones or e-mail.

Continue reading "Detours on the Information Superhighway: The Erosion of Evidentiary Privileges in Cyberspace and Beyond" »

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