Law Commons^™

Trademarks In An Algorithmic World, Christine Haight Farley

Washington Law Review

According to the sole normative foundation for trademark protection—“search costs” theory—trademarks transmit useful information to consumers, enabling an efficient marketplace. The marketplace, however, is in the midst of a fundamental change. Increasingly, retail is virtual, marketing is data-driven, and purchasing decisions are automated by AI. Predictive analytics are changing how consumers shop. Search costs theory no longer accurately describes the function of trademarks in this marketplace. Consumers now have numerous digital alternatives to trademarks that more efficiently provide them with increasingly accurate product information. Just as store shelves are disappearing from consumers’ retail experience, so are trademarks disappearing from their …

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Disorderly Content, Ari Waldman

Washington Law Review

Content moderation plays an increasingly important role in the creation and dissemination of expression, thought, and knowledge. And yet, throughout the social media ecosystem, nonnormative and LGBTQ+ sexual expression is disproportionately taken down, restricted, and banned. The current sociolegal literature, which focuses on content moderation as a whole and sees echoes of formal law in the evolution of its values and mechanics, insufficiently captures the ways in which those principles and practices are not only discriminatory, but also resemble structures of power that have long been used to police queer sexual behavior in public spaces.

This Article contributes to the …

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 …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Crashworthy Code, Bryan H. Choi

Washington Law Review

Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb. Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the …

Head In The Clouds, Head In The Sand: Federal Failure To Update Guidance On Computer Transaction In An International Context, Logan S. Weaver

Washington Law Review

The United States has two different rationales for taxing income of non-U.S. persons and entities. First, the income may be “sourced” to the United States, as defined in the Internal Revenue Code. Alternatively, the income may be effectively connected to a trade or business within the United States that provides income to the non-U.S. person or entity. The sourcing rules for income of non-U.S. persons and entities depend heavily on the nature of the underlying transaction and the geographical location where certain key elements of the transaction take place. So long as the non-U.S. person or entity avoids activities that …

Emojis And The Law, Eric Goldman

Washington Law Review

Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail. Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them. One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized …

Is Assent Still A Prerequisite For Contract Formation In Today's E-Conomy?, Melissa Robertson

Washington Law Review

A browse-wrap agreement is an online contract that governs the use of a Web site but does not require users of the site to affirmatively agree to the terms and conditions of the contract. The terms of a browse-wrap agreement are accessible to the user only by clicking on an Internet link, often inconspicuously located at the bottom of a Web page, marked "Terms and Conditions." Browse-wrap agreements purport to bind users to these terms and conditions when the user merely performs a function of the Web site, such as submitting a query on the site's database or downloading software. …

Forum-Selection Clauses In Consumer Clickwrap And Browsewrap Agreements And The "Reasonably Communicated" Test, Kaustuv M. Das

Washington Law Review

Although forum-selection clauses in clickwrap and browsewrap agreements have been addressed in only a limited number of decisions, they are likely to become increasingly relevant with the growth of e-commerce. Courts that have enforced forum-selection clauses in click-wrap and browsewrap agreements have often done so without determining whether the consumer received notice of the clause. When courts have addressed notice, they have not used any uniform standard for determining adequacy of notice. Forum-selection clauses in dlickwrap and browsewrap agreements further the policies underlying the Supreme Court's decisions in MIS Bremen v. Zapata Off-Shore Co. and Carnival Cruise Lines, Inc. v. …

In Rem Jurisdiction In Cyberspace, Thomas R. Lee

Washington Law Review

"Cyberpirates" incorporating variations on famous trademarks in Internet domain names often attempt to insulate themselves from service of process by providing false and incomplete information in registration materials. Holders of prominent trademarks are often left without an effective remedy because of the logistical difficulty of identifying cyberpirates and personally serving a multitude of complaints in far-flung jurisdictions. This Article examines a potential solution to the problem, whereby the trademark holder files an in rem action against the Internet domain names themselves on the theory that domain names incorporating their famous trademarks violate the Lanham Act and are subject to cancellation …

Washington's "Spam-Killing" Statute: Does It Slaughter Privacy In The Process?, Steven Miller

Washington Law Review

In 1998, the Washington Legislature passed an historic law prohibiting the sending of commercial e-mail messages containing false or misleading information in the subject line or header. The law also permits companies that provide Internet services, known as Internet Service Providers (ISPs), to block the transmission or receipt of messages reasonably believed to violate the statute. However, the law fails to specify the permissible activities that an ISP may pursue to form such a reasonable belief. It thereby encourages a variety of intrusive ISP activities, such as message screening. Existing statutory and constitutional privacy law provides the only shield for …

The Reality Of Bytes: Regulating Economic Activity In The Age Of The Internet, Michael A. Geist

Washington Law Review

By utilizing both a backward and forward looking perspective, this Article develops a model conducive to better understand the Internet's legal implications on economic regulation. The model is also intended to help legislators and regulators adapt their legal and regulatory frameworks to the Internet. This Article canvasses and builds upon the burgeoning development of Internet law. It suggests that the Internet's impact on economic regulation is best understood by classifying its effects into four categories, each of which requires a different regulatory response. It also considers potential solutions for adapting economic regulation to the Internet. This Article concludes that no …

Taking A Byte Out Of Crime: E-Mail Harassment And The Inefficacy Of Existing Law, Gene Barton

Washington Law Review

Computer abuse is advancing as quickly as computer technology. The laws, however, have yet to address computer harassment to a significant degree. Existing law is insufficient, and current efforts fall short of what is needed. This Comment identifies the need for new law, examines the shortcomings of what has been tried to date, and proposes general concepts for a comprehensive computer harassment law. This Comment concludes with a proposal for specific legislation for the state of Washington.

Software Copyright Infringement Claims After Mai Systems V. Peak Computer, Trinnie Arriola

Washington Law Review

In MAI Systems Corp. v. Peak Computer, Inc. the Ninth Circuit Court of Appeals held that Peak committed copyright infringement by running MAI operating system software incidental to Peak's repair of the computer system. The court rejected Peak's section 117 defense under the Copyright Act because it refused to recognize a licensee of computer software as an "owner" of a copy of software. This Note argues that the decision contravenes both the substance and principles of federal copyright law, and unnecessarily harms computer owners. It suggests a two-tiered analysis that courts should follow when evaluating copyright infringement claims involving software …

A Square Peg In A Round Hole: The Proper Substantial Similarity Test For Nonliteral Aspects Of Computer Programs, David A. Loew

Washington Law Review

Since the Third Circuit's decision in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. expanded copyright protection to include the nonliteral aspects of computer programs, courts have struggled to find a way to properly determine substantial similarity between programs, a necessary element of copyright infringement. In the Third Circuit, courts dissect competing programs and compare them in a one-step procedure. The Ninth Circuit uses a two-part process to objectively, and then subjectively, compare program elements. In Computer Associates International, Inc. v. Altai, Inc. the Second Circuit recommended a three-part substantial similarity test to filter out unprotectable elements and compare the …

The Case Against Copyright Protection For Programmable Logic Devices, Stephen C. Bishop

Washington Law Review

Several commentators have argued that copyright protection should extend to protect logic equations incorporated in a type of semiconductor chip called a programmable logic device (PLD). They reach this result by analogizing to the storage of computer software in memory chips, an embodiment that is currently protected under the copyright laws. This Comment analyzes logic equations incorporated in a PLD with respect to the copyright statute, utilitarian device doctrine, and the legislative history of the Semiconductor Chip Protection Act. It concludes that copyright protection should not extend to protect the logic equations incorporated in a PLD.

Patenting Inventions That Embody Computer Programs Held As Trade Secrets—White Consolidated Industries V. Vega Servo-Control, 713 F.2d 788 (Fed. Cir. 1983), Ellen Lauver Weber

Washington Law Review

An inventor develops a numerical control system that allows a computer program to control the complex operation of machine tools such as drill bits. One of the elements in the numerical control system is a trade secret available only from the inventor. The inventor would like to patent the system as a whole, but an inventor must generally disclose how the invention works in order to obtain a patent. Must this inventor completely disclose how the trade secret works in order to obtain a patent on the whole system? The Federal Circuit Court of Appeals said "yes" in White Consolidated …