Law Commons^™

Masthead, Volume 1 Issue 1 (2009)

Journal of Law, Technology, & the Internet

No abstract provided.

Volume 1 Issue 1 (2009)

Journal of Law, Technology, & the Internet

No abstract provided.

Comprehensive Data Privacy Legislation: Why Now Is The Time?, Tanith L. Balaban

Journal of Law, Technology, & the Internet

No abstract provided.

Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski

Faculty Publications

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA") represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective.

One approach to counteracting the DMCA's restrictions …

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

Promoting Diverse Cultural Expression: Lessons From The U.S. Copyright Wars, Raymond Shih Ray Ku

Faculty Publications

In 2007, the United Nations adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD) with the goal of creating an environment that encourages individuals and social groups to create, distribute, and have access to diverse cultural expression from their own cultural and from cultures around the world. With regard to domestic and international efforts to implement the CCD and reconcile its goals with other international norms, the author argues that valuable lessons can be learned from current trends and issues in U.S. copyright law. Specifically, the author argues that the current debate over copyright's …

The Tragedy Of Trips, Peter M. Gerhart

Faculty Publications

This Article argues that sound intellectual property policy requires not only that the policymaker establish an appropriate incentive for invention but also that the policymaker determine how the cost of that incentive should be distributed across various classes of consumers. It is the distributive dimension of intellectual property policy that makes existing international institutions such an unsound mechanism for determining global rules for intellectual policy--the policymakers are simply not able to make the appropriate kinds of decisions. I suggest some ways in which institutional structures can be modified to achieve a better balance.

Rethinking Patent Law’S Uniformity Principle, Craig Allen Nard, John F. Duffy

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre Mulligan, Aaron K. Perzanowski

Faculty Publications

Late in 2005, Sony BMG released millions of Compact Discs containing digital rights management technologies that threatened the security of its customers' computers and the integrity of the information infrastructure more broadly. This Article aims to identify the market, technological, and legal factors that appear to have led a presumably rational actor toward a strategy that in retrospect appears obviously and fundamentally misguided.

The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security …

Copyright Lochnerism, Raymond Shih Ray Ku

Faculty Publications

Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By …

Constitutionalizing Patents: From Venice To Philadelphia, Craig Allen Nard, Andrew P. Morriss

Faculty Publications

Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as "constitutionalized" systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a …

Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Craig Allen Nard

Faculty Publications

The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …

Introduction: The Triangulation Of International Intellectual Property Law: Cooperation, Power, And Normative Welfare, Peter M. Gerhart

Faculty Publications

Introduction to the symposium "The Future of International Intellectual Property: The International Relations of Intellectual Property Law," Cleveland, Ohio March 26,2004.

Introduction: The Law, Technology & The Arts Symposium: The Past, Present And Future Of The Federal Circuit, Craig Allen Nard

Faculty Publications

Introduction to The Law, Technology & the Arts Symposium: The Past, Present and Future of the Federal Circuit, Cleveland, Ohio.

In Defense Of Geographic Disparity, Craig Allen Nard

Faculty Publications

A response to Margo A. Bagley, Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 Minn. L. Rev. 679 (2003).

Consumers & Creative Destruction: Fair Use Beyond Market Failure, Raymond Shih Ray Ku

Faculty Publications

For almost twenty years, the concept of market failure has defined the boundaries of fair use under copyright law. In this article Professor Ku challenges this interpretation of fair use by offering an alternative economic interpretation of the doctrine. This Article argues fair use is justified when consumer copying creatively destroys the need for copy- right's exclusive rights in reproduction and distribution. This occurs when: 1) the consumer of a work makes copies of it, and 2) creation of the work does not depend upon funding derived from the sale of copies. Under these circumstances, exclusive rights in reproduction and …

Introduction: The Law, Technology & The Arts Symposium: Copyright In The Digital Age: Reflection On Tasini And Beyond, Craig Allen Nard

Faculty Publications

Introduction tp The Law, Technology & The Arts Symposium: Copyright in the Digital Age: Reflection on Tasini and Beyond, Cleveland, Ohio.

Toward A Cautious Approach To Obeisance: The Role Of Scholarship In Patent Law Jurisprudence, Craig Allen Nard

Faculty Publications

This article explores the role of secondary authority in patent law jurisprudence. I reviewed every Federal Circuit published opinion from 1982 (the year of the court's creation) to 2000. I discuss the results of my empirical research and explore why scholarship has a place in the Federal Circuit's patent law jurisprudence. I ultimately urge the court to be cautiously more receptive to secondary authority when deciding patent cases.

Process Considerations In The Age Of Markman And Mantras, Craig Allen Nard

Faculty Publications

This article asserts that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. If the Federal Circuit is unwilling to exercise greater obeisance toward district court claim interpretations, this article argues that to achieve uniformity and certainty in the context of de novo …

A Theory Of Claim Interpretation, Craig Allen Nard

Faculty Publications

This article explores the proper scope of judicial power in patent law by focusing on the Federal Circuit's theories of claim interpretation. A study of the court's claim interpretation jurisprudence reveals two schools of interpretation. I characterize these approaches as (1) hypertextualism, which is the predominant interpretative theory; and (2) pragmatic textualism, which is gradually asserting itself. The hypertextualist judge has an expansive view of judicial power, characterizing claim interpretation as a question of law subject to de novo review. This highly formalistic approach stresses textual fidelity and internal textual coherence, but eschews extrinsic evidence as an interpretive tool, portraying …

Certainty, Fence Building, And The Useful Arts, Craig Allen Nard

Faculty Publications

In "Certainty, Fence Building, and the Useful Arts," 74 Ind. L.J. 759-800 (1999), the author, based upon contract theory, economic theory, and an empirical survey of federal district court judges, proposes that the United States adopt a patent opposition proceeding. Whereas United States trademark law allows for the publication of and third-party opposition to the issuance of a federal trademark, American patent law, unlike European and Asian patent systems, allows for no such proceeding regarding the patentability of a claimed invention before issuance.

Response To David Nimmer, ‘Copyright In The Dead Sea Scrolls: Authorship And Originality’, Martha Woodmansee

Faculty Publications

Response to David Nimmer's article "Authorship and Originality."

On The Author Effect: Recovering Collectivity, Martha Woodmansee

Faculty Publications

No abstract provided.

Legitimacy And The Useful Arts, Craig Allen Nard

Faculty Publications

The fundamental question this Article addresses is who should be primarily responsible for making patent validity determinations: the courts5 or the Patent and Trademark Office (“PTO”)?6 Which entity *517 would best serve the constitutional goal of promoting the progress of the useful arts?

Deference, Defiance, And Useful Arts, Craig Allen Nard

Faculty Publications

My objective in this Article is to demonstrate that the PTO's patentability determinations are questions of policy and, therefore, the Federal Circuit's standards of review, as applied to these determinations, are unsound. With respect to the Commissioner's statutory interpretations, I intend to demonstrate that the court's “traditional factors of statutory construction,” which are used in such a way as to avoid deferring to the PTO, result in irrational decisions, or at the very least, an alternative theory of interpretation no more convincing than that put forth by the PTO. My principle assertion, grounded in both doctrine and policy, is that …