Law Commons^™

Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

Faculty Articles

This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

Moving Toward Personalized Law, Cary Coglianese

All Faculty Scholarship

Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

All Faculty Scholarship

New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

Information Technology And Industry Concentration, James Bessen

Faculty Scholarship

Industry concentration has been rising in the US since 1980. Firm operating margins have also been rising. Are these signs of declining competition that call for a new antitrust policy? This paper explores the role of proprietary information technology systems (IT), which could increase industry concentration and margins by raising the productivity of top firms relative to others. Using instrumental variable estimates, this paper finds that IT system use is strongly associated with the level and growth of industry concentration and firm operating margins. The paper also finds that IT system use is associated with relatively larger establishment size and …

Law Library Blog (February 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Secret Conviction Programs, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges and juries across the country are convicting criminal defendants based on secret evidence. Although defendants have sought access to the details of this evidence—the results of computer programs and their underlying algorithms and source codes—judges have generally denied their requests. Instead, judges have prioritized the business interests of the for-profit companies that developed these “conviction programs” and which could lose market share if the secret algorithms and source codes on which the programs are based were exposed. This decision has jeopardized criminal defendants’ constitutional rights.

Industry Concentration And Information Technology, James Bessen

Faculty Scholarship

Industry concentration has been rising in the US since 1980. Does this signal declining competition and need for a new antitrust policy? Or are other factors causing concentration to rise? This paper explores the role of proprietary information technology (IT), which could increase the productivity of top firms relative to others and raise their market share. Instrumental variable estimates find a strong link between proprietary IT and rising industry concentration, accounting for much of its growth. Moreover, the top four firms in each industry benefit disproportionately. Large investments in proprietary software—$250 billion per year—appear to significantly impact industry structure.

The Policy Challenge Of Artificial Intelligence, James Bessen

Faculty Scholarship

New "artificial intelligence" (AI) technology promises to bring dramatic social and economic changes, demanding major policy changes. In intellectual property and antitrust law, AI will exacerbate a damaging trend: across all major sectors of the economy, proprietary information technology is increasing the market dominance of large firms. This trend might not seem like bad news, but it is evidence of a slowdown in the spread of technical knowledge throughout the economy. The result is rising industry concentration, slower productivity growth and growing wage inequality. The key challenge to IP and antitrust policy will be counter this trend yet maintain innovation …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Contract Law's Predominant Purpose Test And The Law-Fact Distinction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Prolegomenon On Pornography, Gerard V. Bradley

Journal Articles

Debates about pornography have always included arguments about its “effects.” Now we can gauge the effects of specifically computerized pornography. These novel effects include scientific research showing that digitalized pornography affects the brain and nervous system in harmful ways that no centerfold ever could. Accessing pornography online makes interactive and directive engagement with it possible, so that the consumer is no longer limited to staring at a two-dimensional representation of a stranger in the nude. The action now is more adventurous. The consumer’s involvement is more intimate and directive. What he does lies somewhere between looking at a centerfold and …

Tacit Collusion On Steriods - The Tale On Online Price Transparency, Advanced Monitoring And Collusion, Maurice Stucke

Scholarly Works

No abstract provided.

Tacit Collusion On Steriods - The Tale On Online Price Transparency, Advanced Monitoring And Collusion, Maurice Stucke, Ariel Ezrachi

College of Law Faculty Scholarship

No abstract provided.

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

Slides: Ag Water Sharing: Legal Challenges And Considerations, Peter D. Nichols

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Peter D. Nichols, Esq., Partner, Berg, Hill, Greenleaf and Ruscitti, Boulder, CO

25 slides

Redefining Attention (And Revamping The Legal Profession?) For The Digital Generation, Lauren A. Newell

Law Faculty Scholarship

With computers, text messages, Facebook, cell phones, smartphones, tablets, iPods, and other information and communication technologies (“ICTs”) constantly competing for our attention, we live in an age of perpetual distraction. Educators have long speculated that constant exposure to ICTs is eroding our ability to stay focused, and recent research supports these speculations. This raises particularly troubling implications for the practice of law, in which being able to pay sustained attention to the task at hand is crucial.

Research also indicates that the brains of today’s young people, the “Digital Generation,” may function differently than the brains of their elders because …

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to …

Vertical Boilerplate, James Gibson

Law Faculty Publications

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate—take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach—i.e., they sample a single stratum of boilerplate and assume that it represents the …

Giving Purpose To Your Life As A Legal Writer, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

From Peer-To-Peer Networks To Cloud Computing: How Technology Is Redefining Child Pornography Laws, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article traces the history of the child pornography laws and sentencing policy in Part I. Part II explains the technologies that have caused some of the current controversies, and then Part III describes how these technologies have blurred the offenses. Finally, Part IV makes suggestions as to how the law could better reflect technology and comport with a refined harm rationale. Courts, legal scholars, and medical experts have explained the harm includes the sexual abuse captured in the images and the psychological injury the victim endures knowing the images are being viewed. This Article further develops the harm rationale …

Technology Drives The Law: A Foreword To Trends And Issues In Techology & The Law, Ralph D. Clifford

Faculty Publications

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear.

Big Brother Or Little Brother? Surrendering Seizure Privacy For The Benefits Of Communication Technology, José F. Anderson

All Faculty Scholarship

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave …

When You Pass On, Don't Leave The Passwords Behind: Planning For Digital Assets, Naomi R. Cahn, Gerry W. Beyer

GW Law Faculty Publications & Other Works

The universe of digital assets is vast, including email accounts, picture and video storage sites, social networking sites, domain names, games and related sites; professional sites and backups; as well as online banking and business accounts. Moreover, digital assets go beyond online accounts to include your own personal or work computers, their hardware and software. If your clients are smart about their digital life, then they have numerous usernames, passwords, and security questions for their accounts. Trust and estates lawyers are increasingly helping to plan for the care of digital assets upon their client’s incapacity or death, providing advice concerning …

Cyber Security And The Government/ Private Sector Connection, Jeffrey F. Addicott

Faculty Articles

The United States does not possess a sufficient cyber security framework. Over eighty-five percent of the critical infrastructure in the United States is controlled by private industry. The greatest concern is an intentional cyber attack against electronic control systems that regulate thousands of interconnected computers, routers, and switches. The centralized computer networks controlling the U.S. infrastructure presents tempting targets.

Generally, there are four types of cyber attacks. First, the most common, is service disruption—which aims to flood the target computer with data packets or connection requests, thereby making it unavailable to the user. The second type is designed to capture …

The Variable Determinacy Thesis, Harry Surden

Publications

This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach - …

Making The Punishment Fit The (Computer) Crime: Rebooting Notions Of Possession For The Federal Sentencing Of Child Pornography Offenses, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has a problem, as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion—computers and the Internet—and their role in changing the realities of child pornography possession. This Article argues that computers and the Internet …

An Autobiography Of A Digital Idea: From Waging War Against Laptops To Engaging Students With Laptops, Diana R. Donahoe

Georgetown Law Faculty Publications and Other Works

This is an autobiographical account of my attempt to bridge the digital divide to meet students' changing needs. When I first began teaching at Georgetown University Law Center in 1993, I employed many traditional teaching techniques and used printed textbooks. However, laptops soon began peppering my classroom; at first there were only a few, and then suddenly almost every student was hiding behind a laptop. I noticed that my students were looking down at their screens, typing furiously, instead of watching me while I discussed my material written on the blackboard or projected overhead. When I realized that I was …

Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande

All Faculty Scholarship

This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

Writer's Block, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …