Science and Technology Law Commons^™

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola

Michigan Telecommunications & Technology Law Review

Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to …

The Experimental Purpose Doctrine And Biomedical Research, Tao Huang

Michigan Telecommunications & Technology Law Review

The experimental use doctrine is a common law rule in patent law that until a few years ago excused accused infringers who made and used patented products or processes on the basis of an experimental, educational, or nonprofit purpose when there was de minimis economic injury to the patent owner and de minimis economic gain to the infringer. While the application of the experimental purpose doctrine was always narrow, two recent Federal Circuit decisions indicate that there is not much left under its aegis. In Madey v. Duke University, the Federal Circuit strictly limited the application of the experimental purpose …

Better, Faster, Cheaper - Later: What Happens When Technologies Are Suppressed, Kurt M. Saunders, Linda Levine

Michigan Telecommunications & Technology Law Review

Some inventions never see the light of day. Others enter the spotlight after long delays and the factors that slowed the arrival of that innovation are ignored. Technology suppression is a real occurrence involving well known and widely used products. In this Article, we examine the topic of technology suppression, seeking to reveal the tactics of suppression and the patterns and conditions under which it occurs. Current examples of US technologies are used to highlight the significance of this phenomenon. We consider related factors, including market and innovation forces, and we identify suppressive tactics, using illustrative cases where patent nonuse …

An Examination Of Patents, Licensing, Research Tools, And The Tragedy Of The Anticommons In Biotechnology Innovation, Michael S. Mireles

University of Michigan Journal of Law Reform

The continued development of and affordable access to potentially life saving pharmaceuticals, gene therapies and diagnostics is unquestionably a socially important issue. However, crafting government policy to encourage the development of and allowing affordable access to those services and products is difficult. On one hand, the development of those services and products requires a large investment of funds because of the complexity, collaborative nature, and uncertainty of the development of those products and services. Accordingly, investors require the safety of strong and stable patent rights to ensure a return on their investment in the development of a commercial end-product or …

Protecting The Next Small Thing: Nanotechnology And The Reverse Doctrine Of Equivalents, Andrew Wasson

Duke Law & Technology Review

If even a fraction of the predictions about nanotechnology are realized, our society will be a dramatically different and better place than it is today. Yet, due to the infancy of the field, it is still unclear how traditional patent doctrine will be applied to nanotechnology. As it stands, the creators of nanoscale versions of traditional products might face infringement claims from traditional patent holders. The reverse doctrine of equivalents serves as a possible mechanism to equitably excuse the literal infringement of traditional patents by nanotech inventors in a way that encourages the progress of science.

On Software Regulation, Polk Wagner

All Faculty Scholarship

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …

Owning Music: From Publisher's Privilege To Composer's Copyright, Michael W. Carroll

ExpressO

More than four years after Napster demonstrated the power of the Internet as a means of distributing music, we still are in the midst of a cultural and legal debate about what the respective rights of music copyright owners, follow-on creators, disseminators, and purchasers should be. A common assumption underlying much of the debate is that whatever settlement emerges, it will apply equally to all forms of expression. This Article questions that assumption by investigating the early history of copyright in music.

For the first time in legal scholarship, the Article reveals and examines the distinct early history of copyright …

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Diamond V. Chakrabarty: Gauging Congress’ Response To Dynamic Statutory Interpretation By The Supreme Court , Anna E. Lumelsky

ExpressO

In this article, I consider the 1980 Supreme Court decision, Diamond v. Chakrabarty, and Congress’ response to it in light of several contemporary views on statutory interpretation. I conclude that in science and technology-related cases in which delay could significantly hamper the advancement of the field, the Supreme Court should interpret federal statutes dynamically in response to a changing social context, but should also attempt to conform its interpretations to legislative preferences in order to avoid a legislative override.

Technology Worth Patenting, Thomas G. Field Jr

Law Faculty Scholarship

Inevitably scarce resources are better invested in deciding which [patent] applications are worth filing and seeking the broadest defensible claims for those that are chosen. Whether a patent can be obtained for less than, say, $10,000 is the wrong question. Whether a patent is worth having is the better question—particularly from the standpoint of prospective licensees.

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Where Do High Tech Commercial Innovations Come From?, Lewis Branscomb

Duke Law & Technology Review

On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market.

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright And Competition Laws, Daniel J. Gifford

ExpressO

Abstract: This paper examines a number of government policies related to competition or intellectual property and affecting innovation for their welfare effects. Its premise is that the enhancement of social welfare is included among the purposes of competition and intellectual-property laws. It also assumes that innovation is a major contribution to long-run welfare. The paper then considers whether the policy initiatives under review furthered that purpose. First it considers U.S. and Canadian legislation designed to promote the entry of generic pharmaceutical products into the market and the response (or lack thereof) of both governments to the issue of regulatory delay …

Should Juries Hear Complex Patent Cases?, Jennifer F. Miller

Duke Law & Technology Review

A debate has arisen within the legal community over the existence and constitutionality of a so-called "complexity exception" to the Seventh Amendment. This exception would give a judge the discretion to deny a jury trial in a civil case if he or she feels that the issue is too complex for a jury to decide properly. This iBrief discusses the constitutionality of the complexity exception and the arguments for and against its implementation, with particular emphasis on the application of the exception to patent infringement cases. The iBrief then postulates that, while a blanket exception for patent infringement cases may …

A Chose By Any Other Name: Domain Names As A Security Interest, Andrew B. Cochran

Canadian Journal of Law and Technology

There has been increasing study of the issues involved in using intellectual property as a security interest, but little corresponding consideration of domain names. The ascendancy in value of domain names to modern business increases their usefulness as a security interest to lenders and borrowers alike. Their use in this respect appears not to be weighed down by two of the most difficult issues facing intellectual property, namely conflicting jurisdiction between federal statutory interests and provincial property interests, together with establishing more readily acceptable methods of valuation. However, there is ambiguity about the actual form of ownership interest involved with …

Ef Cultural Travel V. Explorica: The Protection Of Confidential Commercial Information In The American And Canadian Contexts, Suzanne White

Canadian Journal of Law and Technology

Commercial information, once relegated to paper files stored in cabinets, is now more likely to be in digital form, allowing a myriad of people to access its contents. These electronic storehouses can subsequently be stored on the Internet, providing a handy but some- what risky means of archiving valuable information. The United States Court of Appeals (1st Circ.) judgment EF Cultural Travel v. Explorica1 is a clear indicator of the way in which the advent of the Internet has completely changed the constructive meaning of the traditional ‘‘office file’’. This paper attempts to provide an under- standing of the scope …

Recalibrating Copyright Law?: A Comment On The Supreme Court Of Canada's Decision In Cch Canadian Limited Et Al. V. Law Society Of Upper Canada, Teresa Scassa

Canadian Journal of Law and Technology

The Supreme Court of Canada’s unanimous decision in CCH Canadian Ltd. et. al. v. Law Society of Upper Canada marks a second recent decision by the Court that has major implications for the development of copyright law in Canada. In Théberge v. Galerie D’Art du Petit Champlain, the majority of the Court provided a significant articulation of the balance to be struck between the rights of creators and the rights of users of copyright-protected works. In doing so, it embraced an approach to copyright typical of U.S. copyright law in its heyday. The unanimous Court in CCH Canadian makes it …

Electronic Commerce - A Practitioner's Guide Edited By Alan M. Gahtan, Martin P.J. Kratz, And J. Fraser Mann (Toronto: Thomson Carwell, 2003), Harmonie Roesch-West

Canadian Journal of Law and Technology

At a time when there seems to be no clear consensus on how to regulate electronic commerce comes a much-needed discussion of the many salient factors impacting the matter in Electronic Commerce: A Practitioner’s Guide. The collaborative effort includes works from several authors, compiled by Alan M. Gahtan, Martin P.J. Kratz, and J. Fraser Mann. This guide is an excellent first step in clarifying the issues and summarizing the precedents and relevant statute law to date. Although the target is an audience of law professionals, other e-commerce stakeholders, including business pro- fessionals, will find this collection useful.

Of Neighbours And Netizens, Or, Duty Of Care In The Tech Age: A Comment On Cooper V. Hobart, Robert J. Currie

Canadian Journal of Law and Technology

The focal point of this comment will be the recent judgment of the Supreme Court of Canada in Cooper v. Hobart, which appears to have made some significant changes to the elements of ‘‘duty of care’’, the foundational negligence concept. The Court framed its decision as refining duty of care analysis in order to properly deal with ‘‘novel claims’’ (i.e., those for which there is not an established or analogous duty of care in the existing case law). Given that the growth of elec- tronic commerce and Internet usage continues to spawn ‘‘novel’’ legal issues, Cooper is an appropriate starting …

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

ExpressO

If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin.

Patents And The Diffusion Of Technical Information, James Bessen

Faculty Scholarship

Does the disclosure requirement of the patent system encourage the diffusion of inventions? This paper builds a simple model where firms choose between patents and trade secrecy to protect inventions. Diffusion is not necessarily more likely with a patent system nor is the market for technology necessarily greater.