Law Commons^™

Nft For Eternity, Hadar Y. Jabotinsky, Michal Lavi

University of Michigan Journal of Law Reform

Non-fungible tokens (NFTs) are unique tokens stored on a digital ledger – the blockchain. They are meant to represent unique, non-interchangeable digital assets, as there is only one token with that exact data. Moreover, the information attached to the token cannot be altered as on a regular database. While copies of these digital items are available to all, NFTs are tracked on blockchains to provide the owner with proof of ownership. This possibility of buying and owning digital assets can be attractive to many individuals.

NFTs are presently at the stage of early adoption and their uses are expanding. In …

Unfair Collection: Reclaiming Control Of Publicly Available Personal Information From Data Scrapers, Andrew M. Parks

Michigan Law Review

Rising enthusiasm for consumer data protection in the United States has resulted in several states advancing legislation to protect the privacy of their residents’ personal information. But even the newly enacted California Privacy Rights Act (CPRA)—the most comprehensive data privacy law in the country— leaves a wide-open gap for internet data scrapers to extract, share, and monetize consumers’ personal information while circumventing regulation. Allowing scrapers to evade privacy regulations comes with potentially disastrous consequences for individuals and society at large.

This Note argues that even publicly available personal information should be protected from bulk collection and misappropriation by data scrapers. …

Natural Language Processing For Lawyers And Judges, Frank Fagan

Michigan Law Review

A Review of Law as Data: Computation, Text, & the Future of Legal Analysis. Edited by Michael A. Livermore and Daniel N. Rockmore.

Exploring Lawful Hacking As A Possible Answer To The "Going Dark" Debate, Carlos Liguori

Michigan Technology Law Review

The debate on government access to encrypted data, popularly known as the “going dark” debate, has intensified over the years. On the one hand, law enforcement authorities have been pushing for mandatory exceptional access mechanisms on encryption systems in order to enable criminal investigations of both data in transit and at rest. On the other hand, both technical and industry experts argue that this solution compromises the security of encrypted systems and, thus, the privacy of their users. Some claim that other means of investigation could provide the information authorities seek without weakening encryption, with lawful hacking being one of …

Symbols, Systems, And Software As Intellectual Property: Time For Contu, Part Ii?, Timothy K. Armstrong

Michigan Telecommunications & Technology Law Review

The functional nature of computer software underlies two propositions that were, until recently, fairly well settled in intellectual property law: first, that software, like other utilitarian articles, may qualify for patent protection; and second, that the scope of copyright protection for software is comparatively limited. Both propositions have become considerably shakier as a result of recent court decisions. Following Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the lower courts have invalidated many software patents as unprotectable subject matter. Meanwhile, Oracle America v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) extended far more expansive copyright protection …

Accessible Reliable Tax Advice, Emily Cauble

University of Michigan Journal of Law Reform

Unsophisticated taxpayers who lack financial resources are disadvantaged by a shortage of adequate tax advice. The IRS does not have the resources to answer all questions asked, and the IRS’s informal advice comes with no guarantee as to its accuracy and offers the taxpayer no protection when it is mistaken. Furthermore, non-IRS sources of advice have not sufficiently filled the void left by a lack of satisfactory IRS guidance. These biases against unsophisticated taxpayers have been noted by existing literature. This Article contributes to existing literature by proposing several novel reform measures to assist unsophisticated taxpayers.

First, with respect to …

Regulating Black-Box Medicine, W. Nicholson Price Ii

Michigan Law Review

Data drive modern medicine. And our tools to analyze those data are growing ever more powerful. As health data are collected in greater and greater amounts, sophisticated algorithms based on those data can drive medical innovation, improve the process of care, and increase efficiency. Those algorithms, however, vary widely in quality. Some are accurate and powerful, while others may be riddled with errors or based on faulty science. When an opaque algorithm recommends an insulin dose to a diabetic patient, how do we know that dose is correct? Patients, providers, and insurers face substantial difficulties in identifying high-quality algorithms; they …

The Oversimplification Of Deregulation: A Case Study On Clinical Decision Support Software, Deeva V. Shah

Michigan Telecommunications & Technology Law Review

Until the December 2016 passage of the Cures Act, the FDA had regulatory power over clinical decision support (CDS) software; however, the Act removed a large group of CDS software from the FDA’s statutory authority. Congressional intent was to increase innovation by removing regulatory blockades—such as device testing and certification—from the FDA’s purview. This note argues that the enactment of this specific provision of the Act will instead stymie innovation and overlook the unfortunate safety consequences inherent in its deregulation. CDS software is a burgeoning field ripe for innovation; however, rapid innovation can often lead to a slew of mistakes—mistakes …

The Racist Algorithm?, Anupam Chander

Michigan Law Review

Review of The Black Box Society: The Secret Algorithms That Control Money and Information by Frank Pasquale.

Making Democracy Harder To Hack, Scott Shackelford, Bruce Schneier, Michael Sulmeyer, Anne Boustead, Ben Buchanan, Amanda N. Craig Deckard, Trey Herr, Jessica Malekos Smith

University of Michigan Journal of Law Reform

With the Russian government hack of the Democratic National Convention email servers and related leaks, the drama of the 2016 U.S. presidential race highlights an important point: nefarious hackers do not just pose a risk to vulnerable companies; cyber attacks can potentially impact the trajectory of democracies. Yet a consensus has been slow to emerge as to the desirability and feasibility of reclassifying elections—in particular, voting machines—as critical infrastructure, due in part to the long history of local and state control of voting procedures. This Article takes on the debate—focusing on policy options beyond former Department of Homeland Security Secretary …

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers

University of Michigan Journal of Law Reform

Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …

Installation Failure: How The Predominant Purpose Test Has Perpetuated Software’S Uncertain Legal Status Under The Uniform Commercial Code, Spencer Gottlieb

Michigan Law Review

Courts have struggled to uniformly classify software as a good or a service and have consequently failed to apply a consistent body of law in that domain. Instead, courts have relied on the predominant purpose test to determine whether the Uniform Commercial Code (“UCC”) or common law should apply to a given software contract. This test, designed for traditional goods and services that do not share software’s complexity or rapid advancement, has perpetuated the uncertainty surrounding software’s legal status. This Note proposes that courts adopt the substantial software test as an alternative to the predominant purpose test. Under this proposal, …

Aftermarketfailure: Windows Xp's End Of Support, Andrew Tutt

Michigan Law Review First Impressions

After 12 years, support for Windows XP will end on April 8, 2014. So proclaims a Microsoft website with a helpful clock counting down the days. "What does this mean?" the website asks. "It means you should take action." You should "migrate to a current supported operating system - such as Windows 8.1 - so you can receive regular security updates to protect [your] computer from malicious attacks." The costs of mass migration will be immense. About 30% of all desktop PCs are running Windows XP right now. An estimated 10% of the U.S. government's computers run Windows XP, including …

Structure From Nothing And Claims For Free: Using A Whole-System View Of The Patent System To Improve Notice And Predictability For Software Patents, Holly K. Victorson

Michigan Telecommunications & Technology Law Review

No uniform or customary method of disclosure for software patents is currently employed by inventors. This Note examines the issues that develop from software patent claims disclosed at various levels of abstraction, and the difficulties encountered by courts and the public when investigating the contours of the software patent space. While the courts have placed some restrictions on the manner in which software inventions are claimed, they are easily bypassed by clever patent applicants who desire to claim the maximum scope of their inventions. In the long run, however, a large “patent thicket” of overlapping and potentially overbroad inventions will …

Cyberattacks And The Covert Action Statute: Toward A Domestic Legal Framework For Offensive Cyberoperations, Aaron P. Brecher

Michigan Law Review

Cyberattacks are capable of penetrating and disabling vital national infrastructure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks' unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. …

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

Databases And Dynamism, Michal Shur-Ofry

University of Michigan Journal of Law Reform

Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. Accordingly, scholarship on copyright protection of databases typically concentrates on the social need to access their content. This Article seeks to shift the focus of the debate, arguing that the copyrightdatabases debate is not merely a static "access to information" story. Instead, it is a dynamic story of relations, hierarchies, and interactions between pieces of information, determined by database creators. It is also a story of patterns, categories, selections, and taxonomies that are often invisible to the naked eye, but that influence our perceptions …

Will Quants Rule The (Legal) World?, Edward K. Cheng

Michigan Law Review

The quants are coming! And they are here to stay-so argues Professor Ian Ayres' in his new book, Super Crunchers, which details the brave new world of statistical prediction and how it has already begun to affect our lives. For years, academic researchers have known about the considerable and at times surprising advantages of statistical models over the considered judgments of experienced clinicians and experts. Today, these models are emerging all over the landscape. Whether the field is wine, baseball, medicine, or consumer relations, they are vying against traditional experts for control over how we make decisions. To be …

Agency, Code, Or Contract: Determining Employees' Authorization Under The Computer Fraud And Abuse Act, Katherine Mesenbring Field

Michigan Law Review

The federal Computer Fraud and Abuse Act ("CFAA ") provides for civil remedies against individuals who have accessed a protected computer without authorization or in excess of their authorization. With increasing numbers of employees using computers at work, employers have turned to the CFAA in situations where disloyal employees have pilfered company information from the employer's computer system. The vague language of the CFAA, however, has led courts to develop three different interpretations of "authorization" in these CFAA employment cases, with the result that factually similar cases in different courts can generate opposite outcomes in terms of employee liability under …

The General Public License Version 3.0: Making Or Breaking The Foss Movement, Clark D. Asay

Michigan Telecommunications & Technology Law Review

Free and open source software (FOSS) is a big deal. FOSS has become an undeniably important element for businesses and the global economy in general, as companies increasingly use it internally and attempt to monetize it. Governments have even gotten into the act, as a recent study notes that FOSS plays a critical role in the US Department of Defense's systems. Others have pushed for the adoption of FOSS to help third-world countries develop. Given many of its technological and developmental advantages, FOSS's use, adoption, and development are only projected to grow.[...] The FSF created the most popular version of …

On Communication, John Greenman

Michigan Law Review

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …

Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement , William H. Page, Seldon J. Childers

Michigan Telecommunications & Technology Law Review

An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …

Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn

Michigan Telecommunications & Technology Law Review

Currently, more than ninety percent of the world's PCs operate under Windows. To cement its market power, Microsoft has engaged in controversial business practices. Those practices have led to adverse antitrust decisions in the United States, the European Union (EU), and South Korea. Many of these decisions, both judicial and administrative, revolve around Microsoft's bundling, or "tying," of certain subsidiary applications with the Windows operating system, including Internet Explorer and Windows Media Player. In doing so, Microsoft arguably gains a greater than deserved market share with these bundled applications, inhibiting fair competition in the software marketplace. The United States, EU …

Notification Of Data Security Breaches, Paul M. Schwartz, Edward J. Janger

Michigan Law Review

The law increasingly requires private companies to disclose information for the benefit of consumers. The latest examples of such regulation are state and federal laws that require companies to notify individuals of data security incidents involving their personal information. These laws, proposed in the wake of highly publicized data spills, seek to punish the breached entity and to protect consumers by requiring the entity to notify its customers about the security breach. There are competing approaches, however to how the law is to mandate release of information about data leaks. This Article finds that the current statutes' focus on reputational …

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry giants, …

"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson

Michigan Law Review

One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe …

'Code' And The Slow Erosion Of Privacy, Bert-Jaap Koops, Ronald Leenes

Michigan Telecommunications & Technology Law Review

The notion of software code replacing legal code as a mechanism to control human behavior--"code as law"--is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of "code as law" on privacy. To what extent is privacy-related "code" being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it …

Not All Bad: An Historical Perspective On Software Patents, Martin Campbell-Kelly

Michigan Telecommunications & Technology Law Review

This Paper places the current debates about software patents in the historical context of patenting in the information technology industries. The first computer-program products were sold in the mid 1960s when software patents were not generally allowed; as a result, trade secrecy became endemic to the software industry. Software products were also protected by copyright, but in practice this offered little protection against most forms of appropriation by reverse engineering or cloning. By the early 1980s a series of landmark cases led to the acceptance of software patents. It is argued that this development was consistent with the patenting of …

Verdugo In Cyberspace: Boundaries Of Fourth Amendment Rights For Foreign Nationals In Cybercrime Cases, Stewart M. Young

Michigan Telecommunications & Technology Law Review

This Comment examines the current legal framework governing Fourth Amendment rights for foreign nationals accused of committing crimes within the United States. Over the past three years, federal courts have tried several cases charging foreign nationals with committing crimes through the use of the Internet; these cases demonstrate a lack of clarity in the standard for warrant requirements regarding these searches. Utilizing these cases, this Comment creates a hypothetical case that presents the issues of Fourth Amendment rights for foreign nationals and seeks to determine how such a question should be answered. It advocates the clear application of United States …