Law Commons^™

Guidelines To Limit Criminal Prosecutions Of Filesharing Services, Benton C. Martin, Jeremiah R. Newhall

Benton C. Martin

This short essay acknowledges certain efficiencies in enforcing copyright law against "secondary" infringers like filesharing services through criminal proceedings, but it proposes guidelines for prosecutors to use in limiting prosecutions against this type of infringer.

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 …

Flawed Transparency: Shared Data Collection And Disclosure Challenges For Google Glass And Similar Technologies, Jonathan I. Ezor

Jonathan I. Ezor

Current privacy law and best practices assume that the party collecting the data is able to describe and disclose its practices to those from and about whom the data are collected. With emerging technologies such as Google Glass, the information being collected by the wearer may be automatically shared to one or more third parties whose use may be substantially different from that of the wearer. Often, the wearer may not even know what information is being uploaded, and how it may be used. This paper will analyze the current state of U.S. law and compliance regarding personal information collection …

The End Of The (Virtual) World, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Virtual worlds have been the next big thing for some time now. In 2008, more than 100 public virtual worlds received venture capital funding - a significant increase over previous years. Yet virtual worlds have been going bankrupt faster than ever, including several high-profile firms and worlds. Every technology goes through a shakedown phase, and for virtual worlds the current recession has served as a catalyst for a downturn that, although not unexpected, is nevertheless startling in both numbers and rapidity. This article examines the intimate relationship between how a virtual world begins life and how it ends. The amount …

Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster

T. Noble Foster

This paper explores legal issues associated with cloud computing, provides analysis and commentary on typical clauses found in contracts offered by well-known cloud service providers, and identifies strategies to mitigate the risk of exposure to cloud-based legal claims in the critical areas of data security, privacy, and confidentiality. While current research offers numerous case studies, viewpoints, and technical descriptions of cloud processes, our research provides a close examination of the language used in cloud contract terms. Analysis of these contract terms supports the finding that most standard cloud computing contracts are unevenly balanced in favor of the cloud service provider. …

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

The Mhealth Conundrum: Smartphones & Mobile Medical Apps – How Much Fda Medical Device Regulation Is Required?, Vincent J. Roth Esq

Vincent J Roth Esq

Smartphones and tablets have provided a plethora of new business opportunities for a number of industries including healthcare. Technology, however, appears to have outpaced the regulatory environment, which has spawned criticism over the current guidance of the Food and Drug Administration (“FDA”) with regard to software and what level of regulation is required for mobile medical applications. Commentators have remarked that the FDA’s guidance in this area is complex and unclear. This article explores the current FDA regulatory scheme for mobile medical applications and adapters for mobile devices designed to provide mobile healthcare, or “mHealth.” Attention is given to further …

Reports Of Its Death Are Greatly Exaggerated: Ebay, Bosch, And The Presumption Of Irreparable Harm In Hatch-Waxman Litgation, Kenneth C. Louis

Kenneth C. Louis

No abstract provided.

Internet Control Or Internet Censorship? Comparing The Control Models Of China, Singapore, And The United States To Guide Taiwan’S Choice, Jeffrey Li

Jeffrey Li

Internet censorship generally refers to unjustified online speech scrutiny and control by the government or government-approved measures for Internet control. The danger of Internet censorship is the chilling effect and the substantial harm on free speech, a cornerstone of democracy, in cyberspace. This paper compares China’s blocking and filtering system, the class license system of Singapore, and the government-private partnership model of the United States to identify the features, and pros and cons of each model on the international human rights. By finding lessons from each of the model, this paper suggests Taiwan should remain its current meager internet control …

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.

Social Media And Our Misconceptions Of The Realities, Richard Sanvenero Jr.

Richard Sanvenero Jr.

This article will review the current laws of the expectations of privacy under the two-pronged Katz test, and more specifically other cases that the courts have tried to interpret the test as applicable to social media such as Facebook, Instagram, Twitter, and e-mail. Since there seems to be “no light at the end of the tunnel” with any uniform decision within the courts on the Fourth Amendment protections against search and seizure when there is a reasonable expectation of privacy with social media. This reasonable expectation standard is developed by the users themselves who will allow their rights to be …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

For most of human history the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimēsis to the Roman imitatio, from Macrobius’ Saturnalia to the imitatio Vergili, from medieval auctoritas and Chaucer the compilator to Anon the singer and social textuality, from Chrétien’s art of rewriting to Shakespeare’s “borrowed feathers,” …

Digital Piracy Debunked: A Short Note, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

In the last two decades, the industry has endlessly deployed the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy, peer-to-peer file sharing and the like. In fact, the uneasiness in sharing the view that harsher measures are an adequate response to copyright infringement in the digital environment comes from the uncertain grounds on which the heavy-handed reaction against digital piracy has been based. Two related arguments might run against this heavy-handed approach. First, market conditions might incentivize piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially …

Fixing Frand: A Pseudo-Pool Approach To Standards-Based Patent Licensing, Jorge Contreras

Jorge L Contreras

Technical interoperability standards are critical elements of mobile telephones, laptop computers, digital files, and thousands of other products in the modern networked economy. Most such standards are developed in so-called voluntary standards-development organizations (SDOs) that require participants to license patents essential to the standard on terms that are “fair, reasonable and non-discriminatory” (FRAND). FRAND commitments are thought to avoid the problem of patent hold-up: the imposition of excessive royalty demands after a standard has been widely adopted in the market. While, at first blush, FRAND commitments seem to assure product vendors that patents will not obstruct the manufacture and sale …

Desktop Piracy Factories: Will Existing Law Be Enough?, Andrew J. Daddono

Andrew J Daddono

A brief essay on how the disruptive technology found in 3D printing will affect the future of our existing legal regimes for intellectual property, what foreseeable problems there are, and possible ways that we may address them.

A Case For The Public Domain, Clark Asay

Clark Asay

Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without …

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …

Comparative Studies On Isps' Secondary Copyright Liability In China And The Us, Hong Lou

Hong Lou

In China, the amount of copyright infringement disputes cases related to ISPs is rapid increasing, and current legislation seems to be insufficient to regulate these problems. Moreover, there is a chaos in different courts around China using different approaches and standards on search engines' secondary liability.Therefore, how to improved Chinese copyright legislation and unite relevant judgments with reasonable approaches has become an urgent task. The purpose of this essay is to compare legislation and legal practice in China and the US, to point out the tendency of ISPs' secondary copyright liability in these two countries, and to make useful suggestions …

Patents And The University, Peter Lee

Peter Lee

This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism”—the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors—in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial …

Privacy, Transparency & Google's Blurred Glass, Jonathan I. Ezor

Jonathan I. Ezor

No matter the context or jurisdiction, one concept underlies every view of the best practices in data privacy: transparency. The mandate to disclose what personal information is collected, how it is used, and with whom and for what purpose it is shared, is essential to enable informed consent to the collection, along with the other user rights that constitute privacy best practices. Google, which claims to support and offer transparency, is increasingly opaque about its many products and services and the information they collect for it, posing a significant privacy concern.

The Game Of Clones, Hyun G. Lee

Hyun G Lee

This paper examines whether expressions closely related to game mechanics should enjoy copyright law protection. In particular, this paper examines two recent cases, Tetris Holdings v. Xio Interactive and Spry Fox v. LOLApps, that seem to support the expansion of copyright protection to this area, particularly in game level design.

Criminal Copyright Enforcement Against Filesharing Services, Benton C. Martin, Jeremiah R. Newhall

Benton C. Martin

The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?

This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why "secondary" theories of infringement apply in the criminal, as well as civil, context and why the DMCA "safe harbor" defense is a red herring in criminal …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

Formalism And Pragmatism In The Analysis Of Damages For Indirect Patent Infringement, Dmitry Karshtedt

Dmitry Karshtedt

No abstract provided.