Digital Commons Network^™

The New Bailments, Danielle D’Onfro

Washington Law Review

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Bully No More: Why Trademark Owners Engage In Trademark Overreach And How To Prevent It, Quynh La

Washington Law Review

At its core, trademark law exists as a tool for consumer protection. Thus, trademark owners use policing and enforcement to maintain a trademark’s goodwill, which in turn protects consumers from confusion. But policing and enforcement can lead to trademark overreach and bullying—which undermine the goal of trademark law. This Comment explains that trademark owners are incentivized to engage in aggressive enforcement tactics because courts weigh enforcement efforts in favor of trademark strength. And strong trademarks receive strong protection because such marks are more likely to succeed in trademark infringement litigation. To curb trademark bullying and realign trademark law with its …

Caveat Vendor: A Call To Reform The Scope Of Rights Of Withdrawal For Off-Premises Contracts Under U.S. Consumer Protection Laws With Respect To The Auction Of Art, Sarah Fabian Maramarosy

Fordham Intellectual Property, Media and Entertainment Law Journal

As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.

Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and …

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …

3d Printers, James Barker, Nicholas Pleasants, Peter Montine, Shudan Zhu

Technology Law and Public Policy Clinic

A preliminary report, addressing potential market disruption, the state of the law, and recommendations on future legislative action regarding consumer-grade 3D printing.

Virtual Currencies: Bitcoin & What Now After Liberty Reserve, Silk Road, And Mt. Gox?, Lawrence J. Trautman

Lawrence J. Trautman Sr.

During 2013, the U.S. Treasury Department evoked the first use of the 2001 Patriot Act to exclude virtual currency provider Liberty Reserve from the U.S. financial system. This article will discuss: the regulation of virtual currencies; cybercrimes and payment systems; darknets, Tor and the “deep web;” Bitcoin; Liberty Reserve; Silk Road and Mt. Gox. Virtual currencies have quickly become a reality, gaining significant traction in a very short period of time, and are evolving rapidly. Virtual currencies present particularly difficult law enforcement challenges because of their: ability to transcend national borders in the fraction of a second; unique jurisdictional issues; …

E-Commerce And Electronic Payment System Risks: Lessons From Paypal, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What are the major risks perceived by those engaged in e-commerce and electronic payment systems? What development risks, if they become reality, may cause substantial increases in operating costs or threaten the very survival of the enterprise? This article utilizes the relevant annual report disclosures from eBay (parent of PayPal), along with other eBay and PayPal documents, as a potentially powerful teaching device. Most of the descriptive language to follow is excerpted directly from eBay’s regulatory filings. My additions include weaving these materials into a logical presentation and providing supplemental sources for those who desire a deeper look (usually in …

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate …

Biasing Brands, Jeremy N. Sheff

Faculty Publications

The dominant search-costs model of trademark law posits that consumers choose products to satisfy their preferences by analytically mapping those preferences to product information that trademarks efficiently provide. This Article tests these descriptive claims against empirical and theoretical research in marketing and consumer psychology, particularly the concept of "brand equity": the value to a firm or its customers of a brand and of the firm's efforts to build and maintain that brand.

Internally complex brand equity models, juxtaposed with empirical findings in related psychology and marketing research, challenge the descriptive accuracy of the search-costs model. In particular, branding efforts can …

Is Fashion An Art Form That Should Be Protected Or Merely A Constantly Changing Media Encouraging Replication Of Popular Trends, Alissandra Burack

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Litigating Second Life Land Disputes: A Consumer Protection Approach. , Paul Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Law And Online Social Networks: Mapping The Challenges And Promises Of User-Generated Information Flows, Tal Z. Zarsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Pushing Drugs: Genomics And Genetics, The Pharmaceutical Industry, And The Law Of Negligence, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

This article presents a piece of a larger, ongoing project on the phenomenon of market-driven manufacturing (MDM) and how tort law should address it. In contrast to the larger project, this article provides a relatively brief overview of the general phenomenon of MDM, but zeros in on how pharmaceutical manufacturers specifically practice MDM. MDM is a well-documented, much practiced activity, although American courts do not recognize MDM as a discrete category of conduct. The basic idea of MDM is that marketing considerations should continuously control every aspect and stage of a product's lifecycle. When a company engages in MDM, it …