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Kentucky Fried Blog: How The Recent Ejection Of A Blogger From The College World Series Raises Novel Questions About The First Amendment, Intellectual Property, And The Intersection Of Law And Technology In The 21st Century, Christian J. Keeney May 2022

Kentucky Fried Blog: How The Recent Ejection Of A Blogger From The College World Series Raises Novel Questions About The First Amendment, Intellectual Property, And The Intersection Of Law And Technology In The 21st Century, Christian J. Keeney

Journal of Technology Law & Policy

The Article examines how the courts have, and should, balance these potentially competing speech and property interests in the context of new communications technologies. First, the background of this Article explains the relevant facts of Bennett’s case and describes “blogs” in greater detail. Part I of the analysis examines the relevant First Amendment issues applicable to blogs, Part II considers the various intellectual property concerns, and Part III addresses the public policy concerns highlighted by Bennett’s case. Finally, this Article concludes with recommendations for how courts should balance free speech and intellectual property interests in blogging and other communications technologies …

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Restricting Fair Use To Save The News: A Proposed Change In Copyright Law To Bring More Profit To News Reporting, Ryan T. Holte May 2022

Restricting Fair Use To Save The News: A Proposed Change In Copyright Law To Bring More Profit To News Reporting, Ryan T. Holte

Journal of Technology Law & Policy

This Article proposes a change to current copyright law to bring more profit to news reporting. The alteration centers around allowing journalists, and the companies they work for, to own 98% of the investigated and researched facts they uncover for twenty-four hours after the story is first published. Part II examines the current state of the media and the effect of the Internet on the news business. Part III summarizes the economic and public policies behind protecting information. Part IV analyzes current copyright law’s protection of information while Part V does the same with misappropriation law. Part VI describes the …

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Copyright Orphan Works: A Multi-Pronged Solution To Solve A Harmful Market Inefficiency, Joshua O. Mausner May 2022

Copyright Orphan Works: A Multi-Pronged Solution To Solve A Harmful Market Inefficiency, Joshua O. Mausner

Journal of Technology Law & Policy

No abstract provided.

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Mandatory Labeling For Digital Rights Management: A Least Restrictive Means For Rebalancing Rights Between Content Owners And Consumers, Sean Whaley May 2022

Mandatory Labeling For Digital Rights Management: A Least Restrictive Means For Rebalancing Rights Between Content Owners And Consumers, Sean Whaley

Journal of Technology Law & Policy

In this Article, I will argue that Congress can best address the inadequacy of DRM services by imposing mandatory labeling requirements on all media that incorporates digital rights management services, which would lower consumer confusion and encourage fair competition. Imposing mandatory labeling requirements is a step beyond current industry practices, which are voluntary and have little standardization for what information to disclose. Given the proper information, consumers would be able to make informed buying decisions on TPM-protected media based on what collateral impact the protections method has on the product. As a result, different DRM services would be in direct …

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The Failures And Possible Redemption Of The Dmca Anticircumvention Rulemaking Provision, Christopher Moseng May 2022

The Failures And Possible Redemption Of The Dmca Anticircumvention Rulemaking Provision, Christopher Moseng

Journal of Technology Law & Policy

This Article discusses the rulemaking mandate contained in 1201(a)(1)(C) and its effectiveness, as Copyright Office implemented it, in achieving the stated purpose. The Article then evaluates possible modifications to the DMCA which were introduced in the U.S. House of Representatives that purport to address shortcomings of the rulemaking procedure. Through the course of this analysis, the Article will address the technological and legal interests of copyright holders and users. These interests include copyright holders’ rights to reproduction and distribution in light of the realities of digital “fixation,” the possibilities for fair use under the DMCA, and the interests created by …

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The Privacy Matrix, Corey Ciocchetti May 2022

The Privacy Matrix, Corey Ciocchetti

Journal of Technology Law & Policy

This Article identifies and categorizes the most dangerous contemporary e-threats—based on their ability to compromise PII—through a model entitled the Privacy Matrix. The Matrix demonstrates how each e-threat impacts consumer privacy during the primary stages of the PII Processing Cycle and explains how businesses, guided by an updated and balanced regulatory privacy regime, can create a safer e-commerce environment. I argue that e-threats targeting PII when businesses first attempt to collect such information from visitors—through a company’s “front door”—are less invasive and less dangerous than e-threats targeting PII after its dissemination into cyberspace—through a company’s “back door.” Accordingly, what is …

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Patent Inequity?: Rethinking The Application Of Strict Liability To Patent Law In The Nanotechnology Era, Siddharth Khanijou May 2022

Patent Inequity?: Rethinking The Application Of Strict Liability To Patent Law In The Nanotechnology Era, Siddharth Khanijou

Journal of Technology Law & Policy

This Article examines the infringement laws of the patent statute in the context of nanotechnology. It suggests that staunch application of the current strict liability standard for patent infringement to nanotechnology will presumptively result in inadvertent, inequitable, and uneconomical infringement suits, which are contrary to the purposes of patent protection and the economic efficiency of strict liability. This Article further suggests that strengthening the notice requirement in the patent law may mitigate this foreseeable conclusion. Part II compares the unique characteristics of nanotechnology to traditional technology. Part III examines the theories and goals of patent protection, and suggests that liability …

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Assessing The Electronic Surveillance Modernization Act (Esma): Distorting, Rather Than Balancing, The Need For Flexible Electronic Surveillance And Robust Congressional Oversight, Jason Mehta May 2022

Assessing The Electronic Surveillance Modernization Act (Esma): Distorting, Rather Than Balancing, The Need For Flexible Electronic Surveillance And Robust Congressional Oversight, Jason Mehta

Journal of Technology Law & Policy

No abstract provided.

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The Legal Landscape Of Subject-Matter Jurisdiction, Individual Patent Claims, And Stipulations Or Covenants Not To Sue: Do We Need To Stop And Ask For Directions?, Vicki M. Franks May 2022

The Legal Landscape Of Subject-Matter Jurisdiction, Individual Patent Claims, And Stipulations Or Covenants Not To Sue: Do We Need To Stop And Ask For Directions?, Vicki M. Franks

Journal of Technology Law & Policy

No abstract provided.

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Copyright Law: Examining Standards For Copyright Infringements Of Architectural Works, Elina Valentine May 2022

Copyright Law: Examining Standards For Copyright Infringements Of Architectural Works, Elina Valentine

Journal of Technology Law & Policy

No abstract provided.

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Points Of Novelty, Lawman Armor, And The Destruction Of Design Patents!, Aaron Cook May 2022

Points Of Novelty, Lawman Armor, And The Destruction Of Design Patents!, Aaron Cook

Journal of Technology Law & Policy

If the Lawman Armor Corp v. Winner International, LLC & Winner Holding, LLC decision is not overturned, it will greatly weaken design patent protection. In March and May of 2006, the Court of Appeals for the Federal Circuit (CAFC) handed down two decisions that sent shockwaves through the design patent community. These decisions are Lawman Armor I and II, in which the CAFC held that the overall design of an object is not considered a point of novelty in determining if a design patent has been infringed. The CAFC upheld the U.S. District Court for the Eastern District of …

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Business Method Patents Gone Wild: Narrowing State Street Bank And Shifting To A European Perspective, Alexandra Wilson May 2022

Business Method Patents Gone Wild: Narrowing State Street Bank And Shifting To A European Perspective, Alexandra Wilson

Journal of Technology Law & Policy

In this Note, the author will discuss the history of the “business method” patent and the evolution of case law resulting in the Federal Circuit’s decision in State Street. Further analysis of subsequent case law and proposed reform leads to the proposition that the standard for issuing business method patents definitely needs narrowing, potentially through a categorical exclusion and additional standards of non-obviousness under section 103. By tailoring the American patent system to reflect more similarly that of Europe, business method patents would be more limited, disallowed categorically by statute, and bound by an additional non-obvious requirement related to …

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The Standards Development Organization Advancement Act Of 2004: A Victory For Consumer Choice?, Matthew Topic May 2022

The Standards Development Organization Advancement Act Of 2004: A Victory For Consumer Choice?, Matthew Topic

Journal of Technology Law & Policy

This Article examines the Standards Development Organization Advancement Act (SDOAA) in detail, and asserts that Congress intended that standard-setting organizations seeking the SDOAA’s protection much include consumer representation in the standard-setting process. This should be understood as a victory for consumer-based antitrust theory, and should be taken seriously by courts and enforcement agencies going forward.

Part II provides a general background on standards and their antitrust treatment. Part III take a close look at the SDOAA’s provisions. Part IV discusses the consumer choice theory of antitrust commonly attributed to Professor Robert Lande and draws some conclusions about how the theory …

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The Interaction Of The 35 U.S.C. § 102(B) On-Sale Bar And Ip Licensing: Differentiating Licenses From Commercial Sales, Jason Smith May 2022

The Interaction Of The 35 U.S.C. § 102(B) On-Sale Bar And Ip Licensing: Differentiating Licenses From Commercial Sales, Jason Smith

Journal of Technology Law & Policy

This Note addresses the following question: Can a licensing agreement be drafted to preserve patentability of unknown genetic material before its specific use has been discovered?

To answer this question, the current utility standard set forth in 35 U.S.C. § 101 must be addressed. This standard does not allow patenting of genetic material without a defined specific use. To satisfy the specific utility requirement, a specific gene, promoter, or other use must be identified. Therefore, the genetic material mentioned above is not initially patentable because of 35 U.S.C. § 101 constraints.

Next, case law dealing with ambiguously drafted licensing agreements …

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Patent Law: Redefining Equitable Injunctions, Joseph R. Sozzani May 2022

Patent Law: Redefining Equitable Injunctions, Joseph R. Sozzani

Journal of Technology Law & Policy

No abstract provided.

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Copyright In Exile: Restoring The Original Parameters Of Exclusive Reproduction, Kenneth M. Alfano May 2022

Copyright In Exile: Restoring The Original Parameters Of Exclusive Reproduction, Kenneth M. Alfano

Journal of Technology Law & Policy

In this Article, I describe how a sound analysis of precedent—coupled with proper statutory construction—yields a meaning for reproduction that is indeed adaptable to many unforeseen practices, but far from boundless. I proceed chronologically through the history of the reproduction right: Part II first surveys the relevant tenets of originalism. Part II then traces the roots of the reproduction right back to a landmark 1908 case in which the Supreme Court synthesized a robust standard grounded in reason and history, and also shows how legislation enacted the following year incorporated this standard. Part III discusses the next (and current) revision, …

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False Positives And Secure Flight Using Dataveillance When Viewed Through The Ever Increasing Likelihood Of Identity Theft, Stephen W. Dummer May 2022

False Positives And Secure Flight Using Dataveillance When Viewed Through The Ever Increasing Likelihood Of Identity Theft, Stephen W. Dummer

Journal of Technology Law & Policy

No abstract provided.

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U.S. Jurisdictional Monopolization Of International Cybersquating Disputes: A Review Of Current Inequities And Future Consequences, Aaron Jay Horowitz May 2022

U.S. Jurisdictional Monopolization Of International Cybersquating Disputes: A Review Of Current Inequities And Future Consequences, Aaron Jay Horowitz

Journal of Technology Law & Policy

This Article will explore the current cybersquatting law in the United States, the history of U.S. domain control, the presence of nongovernmental venues for fighting cybersquatting, and the federal court reviews of the outcomes. Next, this Article will analyze the World Intellectual Property Organization, as well as the current status of international cybersquatting procedures. This Article will then focus on the recently created U.S. safe harbor for international domain disputes, as well as the potential international reaction which may disrupt the flow of international communication and commerce.

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A Federal Judge's View Of The Most Important Changes In Patent Law In Half-A-Century, Robert M. M. Seto May 2022

A Federal Judge's View Of The Most Important Changes In Patent Law In Half-A-Century, Robert M. M. Seto

Journal of Technology Law & Policy

The Article will cover almost all of the important contentious issues raised by H.R. 2795, plus my proposed changes, in the following order: (a) the first-to-file system; (b) the problems inherent in continuation applications; (c) prior user rights; (d) the injunction controversy; (e) limitations upon damages in the context of injunctions; (f) the arguments for nine-month publication; (g) the problems in quantifying damages; (h) elimination of the “best mode” requirement; (i) continuation of injunctions; (j) post-issuance prior art by third parties; (k) pre-issuance submissions by third parties; and (l) proposed changes in the law; (m) new opposition proceedings. In addition, …

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Patents & Antitrust: Does A Patent Confer Market Power? A Look At The Upcoming Supreme Court Case: Illinois Tool Works V. Independent Ink, Sarah Knight May 2022

Patents & Antitrust: Does A Patent Confer Market Power? A Look At The Upcoming Supreme Court Case: Illinois Tool Works V. Independent Ink, Sarah Knight

Journal of Technology Law & Policy

One company is “hooked” to financial inducements that amount to “cocaine.” Another company must resort to hiding its relationship with a party and labeling its brochures “secrets and confidential.” A third company was beaten into “guacamole” in retaliation for its relationship with this same party. A fourth company “had a gun to his head” and must stop buying from this same party. What would bring out such outrageous allegations? The answer is Advanced Micro Devices’ antitrust claim against Intel for product bundling and alleged coercive practices. In regards to the bundling allegations, the treatment of the antitrust analysis can differ …

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Interpretation Spawns Rethinking Of Patent Law: A Jurisprudential Review Of The Courts' Treatment Of Software Patents, Zainabu Rumala May 2022

Interpretation Spawns Rethinking Of Patent Law: A Jurisprudential Review Of The Courts' Treatment Of Software Patents, Zainabu Rumala

Journal of Technology Law & Policy

The United States has long prided itself on its societal ingenuity. In fostering such ingenuity, courts have implemented a patenting system whereby inventors can prevent others from unlawfully profiting from their discoveries. However, there are limitations to the patentability of certain innovations. With the technological boom in the latter part of the twentieth century, courts have had to continually revisit the area of subject matter patentability. Specifically, the judiciary has been wary of patenting software. Although the Supreme Court has stated that Congress intended “anything under the sun that is made by man to be patentable,” courts have struggled with …

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Copyright Law: When Is "Substantial" Substantial Enough, Magdalena Ozarowski May 2022

Copyright Law: When Is "Substantial" Substantial Enough, Magdalena Ozarowski

Journal of Technology Law & Policy

No abstract provided.

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The Inconsistent Treatment Of Computer Software As Patentable Subject Matter, Steven M. Greenberg May 2022

The Inconsistent Treatment Of Computer Software As Patentable Subject Matter, Steven M. Greenberg

Journal of Technology Law & Policy

No abstract provided.

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Gps Technology In Cellular Telephones: Does Florida's Constitutional Privacy Protect Against Electronic Locating Devices?, Peter Caldwell May 2022

Gps Technology In Cellular Telephones: Does Florida's Constitutional Privacy Protect Against Electronic Locating Devices?, Peter Caldwell

Journal of Technology Law & Policy

GPS technology is not new, but in the recent past, it has become so widespread that it now affects most everyone’s lives. The term “GPS” refers to a “global positioning system,” by which a GPS tracking device communicates through satellites to reveal its precise location. Since GPS units are now mandatorily built into all cellular telephones, service providers can locate their users wherever they may be, if required to do so.

Yet, because of the intimate, locational nature of GPS data, these technologies have engendered privacy questions which beg closer examination, particularly due to the potential law enforcement (or other …

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Pharmaceutical Patent Settlements: Fault Lines At The Intersection Of Intellectual Property And Antitrust Law Require A Return To The Rule Of Reason, John Fazzio May 2022

Pharmaceutical Patent Settlements: Fault Lines At The Intersection Of Intellectual Property And Antitrust Law Require A Return To The Rule Of Reason, John Fazzio

Journal of Technology Law & Policy

This Article will argue that a new standard is needed for the examination of settlements between name brand manufacturers and their generic rivals. These arrangements are neither horizontal restraints between competitors at the same level of the supply-chain, nor vertical restraints between suppliers and distributors, but a new diagonal restraint between generic competitors who are dependent upon their name brand rivals for important research and development. Legal interpretation of these diagonal restraint agreements should give greater flexibility to name brand manufacturers in protecting their intellectual property, while simultaneously assuring generic rivals incentives to innovate and to produce cheap substitutes, spurring …

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Tempest In A Teapot Or Tidal Wave? Cybersquatting Rights And Remedies Run Amok, H. Brian Holland May 2022

Tempest In A Teapot Or Tidal Wave? Cybersquatting Rights And Remedies Run Amok, H. Brian Holland

Journal of Technology Law & Policy

No abstract provided.

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Naked Trademark Licenses In Business Format Franchising: The Quality Control Requirement And The Role Of Local Culture, Michelle S. Friedman May 2022

Naked Trademark Licenses In Business Format Franchising: The Quality Control Requirement And The Role Of Local Culture, Michelle S. Friedman

Journal of Technology Law & Policy

Business format franchising is an increasingly popular business method. However, as franchisors expand across the United States, they may be forced to adapt the characteristics of their products to conform to local cultures. Often this need collides with the demands of trademark law; namely, the rule against naked licensing and the quality control requirement. This Article examines the intersection of these two concepts and argues that the quality control requirement should be abandoned in the context of business format franchising.

Part II examines the development of the rule against naked licensing and the quality control requirement. First, it explains the …

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The Trips Agreement: Is It Beneficial To The Developing World, Or Simply A Tool Used To Protect Pharmaceutical Profits For Developed World Manufacturers?, Clark A.D. Wilson May 2022

The Trips Agreement: Is It Beneficial To The Developing World, Or Simply A Tool Used To Protect Pharmaceutical Profits For Developed World Manufacturers?, Clark A.D. Wilson

Journal of Technology Law & Policy

There is an ongoing struggle between the rights of pharmaceutical patent owners and those in desperate need of the drugs for whom they hold the patents. Further technological innovation requires that there be sufficient incentive to research and develop (R&D) new drugs, but once these drugs are approved and protected by patent law, they should be made available to people who will suffer without them. In this regard, a system of patent rights which is too protective will hinder availability by restricting widespread dissemination to the public. On the other hand, a system of patent rights which is too weak …

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Lawyers Still Worry Too Much About Transmitting E-Mail Over The Internet, David Hricik, Amy Falkingham May 2022

Lawyers Still Worry Too Much About Transmitting E-Mail Over The Internet, David Hricik, Amy Falkingham

Journal of Technology Law & Policy

Although in many ways technology has made ways technology has made the practice of law easier, the vast increases in storage capacity, the lightning-quick speed of communication, and the ability to transmit data over the Internet have made it more important for lawyers to consider the impact of technology on the core ethical issue of confidentiality. Digitalization of the practice of law means that a breach of a duty of confidentiality can have far greater consequences because greater amounts of information can be transmitted at lightning speeds. Where once it would have taken a truck and an army of burglars …

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Jailhouse Informants: A Lesson In E-Snitching, Valerie Alter May 2022

Jailhouse Informants: A Lesson In E-Snitching, Valerie Alter

Journal of Technology Law & Policy

Informants have been falsifying confessions in the United States since at least 1819. That year, Vermont authorities could not solve an alleged homicide since the victim was missing, and brought in a known perjurer for help. The perjurer elicited a “confession” from a suspect, who received the death penalty. Days before the hanging was to take to place, the supposed murder victim returned to town, alive. Today, jailhouse informants, many of whom are pathological liars, who tell prosecutors about suspects’ alleged confessions, will receive leniency or other perks. Problems stemming from this prompted a grand jury investigation in Los Angeles …

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