Law Commons^™

The Norms Of Algorithmic Credit Scoring, Nikita Aggarwal

Articles

This article examines the growth of algorithmic credit scoring and its implications for the regulation of consumer credit markets in the UK. It constructs a frame of analysis for the regulation of algorithmic credit scoring, bound by the core norms underpinning UK consumer credit and data protection regulation: allocative efficiency, distributional fairness and consumer privacy (as autonomy). Examining the normative trade-offs that arise within this frame, the article argues that existing data protection and consumer credit frameworks do not achieve an appropriate normative balance in the regulation of algorithmic credit scoring. In particular, the growing reliance on consumers' personal data …

How Can A Departing Employee Misappropriate Their Own Creative Outputs?, Timothy Murphy

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Partially due to the widespread use of employee confidentiality and invention assignment agreements, employers routinely take ownership of employee creative outputs and use trade secrets law to enforce those rights post-employment. This Article proposes that, with respect to employee creative outputs, the current status of trade secrets law is inconsistent with the modern workplace, including as significantly altered, maybe permanently, by the COVID-19 pandemic. Accordingly, the goal of this Article is to establish a mode of recognizing employee rights in their own creative outputs through a modification to the existing general skills and knowledge exclusion to explicitly recognize an employee's …

Clearing Opacity Through Machine Learning, W. Nicholson Price Ii, Arti K. Rai

Articles

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

Temporality In A Time Of Tam, Or Towards A Racial Chronopolitics Of Intellectual Property Law, Anjali Vats

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This Article examines the intersections of race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American understandings of time. I advance its central argument-that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time by considering how the equitable defense of laches and the judicial power to raise issues sua sponte operate in trademark law. I make this argument through a close reading of the …

Promoting Corporate Irresponsibility? Delaware As The Intellectual Property Holding State, Xuan-Thao Nguyen

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This article is about Delaware corporate irresponsibility. Delaware has stealthily become the center of all things intellectual property. As the leader of onshore tax havens since the early 1980s, Delaware attracts multistate corporations to engage in aggressive tax avoidance schemes. Specifically, Delaware has legislatively and methodically attracted the creation of Intellectual Property Holding Companies (IPHCs), enabling companies to avoid paying their share of taxes to sister states on the income generated from the use of Intellectual Property assets. This article traces the rise of Delaware as the intellectual property state and concludes that the benefits Delaware enjoys promote corporate irresponsibility …

Attitudes Towards Ip Present Among Seattle Craft Breweries, Zahr K. Said

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No abstract provided.

Cultural Ip Vs. Commercial Ip [Notes], J. Janewa Osei-Tutu

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No abstract provided.

The Cost Of Novelty, Will Nicholson Price Ii

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Patent law tries to spur the development of new and better innova­tive technology. But it focuses much more on “new” than “better”—and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innova­tion”), at the expense of innovation that tells us more about existing technology (“deepening innovation”). Patent law’s focus on newness is unsurprising, and fits within a well-told narrative of innovative diversity accompanied by market selection of the best technologies. Unfortunately, innovative diversity brings not only …

Cultural Ip Vs. Commercial Ip, J. Janewa Osei-Tutu

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No abstract provided.

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

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As open source software ("OSS") has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License ("GPL"), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of …

Lending Innovations, Xuan-Thao Nguyen

Articles

This article is the first to identify the disruption in tech lending by outlier commercial banks and to theorize the ways in which IP Venture Banking is fueling innovation both nationwide and globally. This disruptive model is a new beginning for both banks and startups on the path of borrowing and lending for innovation.

Part I identifies the four outlier banks-from among the six thousand total banks-that dare to venture into the innovation-intensive sectors for lending purposes and dominate the business model of lending for innovation. Based on extensive efforts to extract data from bank lending activities, Part I reveals …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Mary Anne Franks, Danielle Citron

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No abstract provided.

A Critical Evaluation Of The Effectiveness And Legitimacy Of Webblocking Injunctions, Mark Hyland

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Relative to the dual criteria of effectiveness and legitimacy, this article evaluates webblocking injunctions in the context of intellectual property law and with a particular focus on the vanguard role played by the English Courts. With regard to the first criterion, it is argued that there is reason to think that webblocking injunctions are viewed by IP owners as well as by legislators and courts as a relatively effective instrument in the protection of IP assets. Moreover, the extension of webblocking orders to trade marks together with their adoption in a number of legal systems, is further evidence that these …

How The Internet Unmakes Law, Mary Anne Franks

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No abstract provided.

Tools For Data Governance, Michael J. Madison

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This article describes the challenges of data governance in terms of the broader framework of knowledge commons governance, an institutional approach to governing shared knowledge, information, and data resources. Knowledge commons governance highlights the potential for effective community- and collective-based governance of knowledge resources. The article focuses on key concepts within the knowledge commons framework rather than on specific law and public policy questions, directing the attention of researchers and policymakers to critical inquiry regarding relevant social groups and relevant data “things.” Both concepts are key tools for effective data governance.

Inclusive Patents For Open Innovation, Toshiko Takenaka

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The post-internet era has greatly affected commercial firms' innovation processes. The complexity and cumulative nature of emerging technologies under the post-internet era has made commercial firms reevaluate their innovation processes and has increased the role of individual innovators. Firms dealing with emerging technologies cannot make products without infringing on patents held by others, as their products are covered by numerous overlapping patents. Many of these firms work with individual innovators and embrace the open-source philosophy that ensures open access to technologies. These firms can no longer use patents for excluding others without risking infringement counterclaims, leading to the development of …

Potential Liability For Physicians Using Artificial Intelligence, W. Nicholson Price Ii, Sara Gerke, I Glenn Cohen

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Artificial intelligence (AI) is quickly making inroads into medical practice, especially in forms that rely on machine learning, with a mix of hope and hype. Multiple AI-based products have now been approved or cleared by the US Food and Drug Administration (FDA), and health systems and hospitals are increasingly deploying AI-based systems. For example, medical AI can support clinical decisions, such as recommending drugs or dosages or interpreting radiological images.2 One key difference from most traditional clinical decision support software is that some medical AI may communicate results or recommendations to the care team without being able to communicate the …

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …

A Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg

Articles

The Court of Appeals for the Federal Circuit (“Federal Circuit”) has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO’s legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they …

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

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2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

Opting Into Device Regulation In The Face Of Uncertain Patentability, Rebecca S. Eisenberg

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This article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of …

Everything Old Is New Again: Does The '.Sucks' Gtld Change The Regulatory Paradigm In North America?, Jacqueline D. Lipton

Articles

In 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) took the unprecedented step of opening up the generic Top Level Domain (“gTLD”) space for entities who wanted to run registries for any new alphanumeric string “to the right of the dot” in a domain name. After a number of years of vetting applications, the first round of new gTLDs was released in 2013, and those gTLDs began to come online shortly thereafter. One of the more contentious of these gTLDs was “.sucks” which came online in 2015. The original application for the “.sucks” registry was somewhat contentious with …

Attacking Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

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Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Ostrom Amongst The Machines: Blockchain As A Knowledge Commons, Herminio Bodon, Pedro Bustamante, Marcela Gomez, Prashabnt Krishnamurthy, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Martin B. H. Weiss

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Blockchains are distributed ledger technologies that allow the recording of any data structure, including money, property titles, and contracts. In this paper, we suggest that Hayekian political economy is especially well suited to explain how blockchain emerged, but that Elinor Ostrom’s approach to commons governance is particularly useful to understand why blockchain anarchy is successful. Our central conclusions are that the blockchain can be thought of as a spontaneous order, as Hayek anticipated, as well as a knowledge commons, as Ostrom’s studies of self-governance anticipated.

Craft Beer And The Rising Tide Effect: An Empirical Study Of Sharing And Collaboration Among Seattle’S Craft Breweries, Zahr K. Said

Articles

This qualitative empirical research project studies Seattle’s craft brewing industry as a thriving entrepreneurial ecosystem that displays widespread collaboration and innovation. Drawing on data collected in 22 face-to-face formal interviews conducted with industry participants, the Article explores the community’s attitudes, practices, and norms with respect to collaboration and intellectual property (IP). It joins a growing body of qualitative empirical IP scholarship that maps misalignments between law and practice “on the ground,” seeking to offer a more accurate and pluralistic account of an innovative industry. The craft brewing community in Seattle cooperates extensively while continuing to compete actively for consumers. In …

Using Ai To Analyze Patent Claim Indefiniteness, Dean Alderucci, Kevin D. Ashley

Articles

In this Article, we describe how to use artificial intelligence (AI) techniques to partially automate a type of legal analysis, determining whether a patent claim satisfies the definiteness requirement. Although fully automating such a high-level cognitive task is well beyond state-of-the-art AI, we show that AI can nevertheless assist the decision maker in making this determination. Specifically, the use of custom AI technology can aid the decision maker by (1) mining patent text to rapidly bring relevant information to the decision maker attention, and (2) suggesting simple inferences that can be drawn from that information.

We begin by summarizing the …

What's News?, Michael J. Madison

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This review of Will Slauter’s Who Owns the News? (2019) highlights three ways in which its history of copyright in news tracks and illustrates key themes in the history of cultural policy. One is how copyright law and journalistic style co-evolved, confirming the attributes of modern journalism itself and deploying style as a device for defining the scope of news producers’ legitimate copyright claims. In the news, as elsewhere in copyright, exclusivity and genre largely co-created each other. Two is how the labor and skill of individual human producers of knowledge are often hidden amid prominent debates about relationships between …

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

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Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

Clown Eggs, Dave Fagundes, Aaron Perzanowski

Articles

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby …

Is Blockchain The Next Step In The Evolution Chain Of [Market] Intermediaries?, Marcela Gomez, Pedro Bustamante, Martin B. H. Weiss, Ilia Murtazashvili, Michael J. Madison, Wilson Law, Tymofiy Mylovanov, Herminio Bodon, Prashabnt Krishnamurthy

Articles

The blockchain is a decentralized solution for handling transactions where we are concerned (among other aspects) with the accuracy and verification of transactions. One of its main promises is to eliminate the need for centralized entities or intermediaries and legal enforcement. Rather than trusting self-interested human intermediaries, the blockchain provides an alternative that relies on transparent computational protocols (Werbach 2018).

In this paper, we delve into this broker-less claim and analyze whether the blockchain needs an intermediary to allow for widespread access to its functionality and whether the blockchain itself is an intermediary. The latter would turn the blockchain into …