Law Commons^™

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Scott Shackelford

Although the atmosphere and cyberspace are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders. Moreover, “[m]illions of actors affect the global atmosphere[,]” just as they do the Internet. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem affecting the entire world, but one in which the benefits are dispersed and the harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a relatively small number of nations even …

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Déjà Vu All Over Again: Questions And A Few Suggestions On How The Fcc Can Lawfully Regulate Internet Access, Rob Frieden

Rob Frieden

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject …

Network Neutrality And Consumer Demand For “Better Than Best Efforts” Traffic Management, Rob Frieden

Rob Frieden

This paper assesses whether and how ISPs can offer quality of service enhancements, at premium prices for full motion video, while still complying with the new rules and regulations established by the Federal Communications Commission (“FCC”) in March, 2015. The paper explains that having made the controversial decision to reclassify all forms of Internet access as a telecommunications service, the FCC increases regulatory uncertainty. In particular, the FCC has failed to identify instances where “retail ISPs,” serving residential broadband subscribers, can offer quality of service enhancements that serve real consumer wants without harming competition and the ability of most content …

Ninth Circuit Nine-Plus -- Settling The Law In Internet Keyword Advertising And Trademark Use, Andrew Leahey

Andrew Leahey

No abstract provided.

The Irrelevance Of Nanotechnology Patents, Emily Michiko Morris

Emily Michiko Morris

Once the stuff of science fiction, nanotechnology is now expected to be the next technological revolution, but despite millions of dollars of investment, we still have yet to see the brave new world of cheap energy, cell-specific drug delivery systems, and self-replicating nanobots that nanotechnology promises. Instead, nanotechnology seems to be in a holding pattern, perpetually stuck in the status of “emerging science,” “immature field,” and “new technology” for over three decades now. Why? Professor Mark Lemley and a number of others have suggested that the answer to this puzzling question is simple: nanotechnology differs from the all of the …

From The Unforeseeability Exception To Foreseeability Estoppel: The Federal Circuit’S Effort To Limit The Doctrine Of Equivalents, Ping-Hsun Chen

Ping-Hsun Chen

A person can infringe a patent under the doctrine of equivalents (“DOE”) which may be limited by prosecution history estoppel (“PHE”). The Supreme Court in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), finalized the basic doctrine of PHE in the context of claim amendment. A narrowing amendment of a claim results in a presumption that a patentee has surrendered the scope between the original claim and amended claim, but the patentee is allowed to rebut the presumption by proving any of three exceptions. Among those exceptions is the “unforeseeable” exception under which a patentee …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

Rejected Of Registration Trade Mark "Stop The Islamisation Of America" From Court Of Appeals, Haitham Atiyah

haitham atiyah

No abstract provided.

Holding Standards For Randsome: A Remedial Perspective On Rand Licensing Commitments, Layne S. Keele

Layne S. Keele

In Apple, Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014), the four federal judges who considered the case—Judge Posner by designation at the trial level, and three Federal Circuit judges on appeal—all expressed differing opinions on the question of whether and to what extent extraordinary patent remedies should be available for the infringement of standard-essential patents. This article aims to simplify this muddled and confusing topic.

The article employs a teleological approach, examining the purposes behind remedies in general, the purposes of extraordinary remedies in patent law, and the purposes of RAND commitments (commitments to license standard-essential …

From The Unforeseeability Exception To Foreseeability Estoppel: The Federal Circuit’S Effort To Limit The Doctrine Of Equivalents, Ping-Hsun Chen

Ping-Hsun Chen

A person can infringe a patent under the doctrine of equivalents (“DOE”) which may be limited by prosecution history estoppel (“PHE”). The Supreme Court in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), finalized the basic doctrine of PHE in the context of claim amendment. A narrowing amendment of a claim results in a presumption that a patentee has surrendered the scope between the original claim and amended claim, but the patentee is allowed to rebut the presumption by proving any of three exceptions. Among those exceptions is the “unforeseeable” exception under which a patentee …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Bowman V. Monsanto: A Bellwether For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement, Christopher M. Holman

Christopher M Holman

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies, for example by denying patent rights to “second generation” self-replicating products, or even by broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, the courts and/or Congress have at their …

Sustainable Cybersecurity: Applying Lessons From The Green Movement To Managing Cyber Attacks, Scott J. Shackelford, Tim Fort

Scott Shackelford

According to Frank Montoya, the U.S. National Counterintelligence Chief, “We’re an information-based society now. Information is everything. That makes . . . company executives, the front line – not the support mechanism, the front line – in [determining] what comes.”[1] Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more …

Making A Mark: Taking A Glance At Trademarks And Graphic Infringement, Heather S. Ray

Heather S Ray

No abstract provided.

Transformative Teaching And Educational Fair Use After Georgia State, Brandon C. Butler

Brandon C. Butler

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to first amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State e-reserves case, may be the last …

A Unified Framework For Rand And Other Reasonable Royalties, Richard J. Gilbert, Jorge L. Contreras

Richard J Gilbert

The framework for calculating “reasonable royalty” patent damages has evolved over the years to a point at which, today, it is viewed by many commentators as potentially misleading and untethered from its original purpose. We offer a proposal to modify the framework for determining reasonable patent royalties that is based on recent scholarly and judicial analyses of standards-essential patents that are subject to commitments to license on terms that are reasonable and non-discriminatory (RAND).

Many standard setting organizations require owners of patents that are essential to a standard to license those patents on RAND terms, but typically offer little specific …