Law Commons^™

The Unexamined Life In The Era Of Big Data: Toward A Udaap For Data, Sean Brian

Sean Brian

No abstract provided.

The Google Art Project: An Analysis From A Legal And Social Perspective On Copyright Implications, Katrina Wu

Katrina Wu

The Google Art Project is an ambitious attempt by Google to curate worldwide artwork online in the highest resolution possible. Google accomplishes this by partnering with museums where museums provide access to art collections and Google provides the technology to capture high quality images. Under this existing model, Google places the burden of copyright clearances on museums and removes images from online if requested by copyright owners. An endeavor like the Google Art Project is not unprecedented however, when Google attempted to put the world’s books online under the Google Books Project, scanning millions of titles and offering snippets for …

One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood

Jonathan R. K. Stroud

Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …

Ex Ante Versus Ex Post Approaches To Network Neutrality: A Cost Benefit Analysis, Rob Frieden

Rob Frieden

Many advocates for less intrusive government oversight of telecommunications support the migration from regulation by an expert agency to the use of adjudication remedies largely guided by antitrust/competition policy principles. They believe that competition authorities, or reviewing courts can resolve disputes after they have occurred in lieu of having expert regulatory agencies available to anticipate and resolve problems before they become acute. Such ex post remedies typically determine whether anticompetitive conduct has occurred and what marketplace harm has resulted. Advocates for retaining so-called ex ante regulation believe that an expert agency remains essential particularly in light of fast changing market …

What’S New In The Network Neutrality Debate, Rob Frieden

Rob Frieden

For over ten years, academics, practitioners, policy makers, consumers and other stakeholders have debated whether and how governments should regulate the Internet with an eye toward promoting accessibility, affordability and neutrality. This issue has triggered grave concerns about the Internet’s ability to continue generating substantial and widespread benefits. Advocates for various outcomes have vastly different assessments about many baseline subjects including the viability of sustainable competition and self-regulation. Consumers become agitated and confused by different framing of the issues, particularly when participants in the Internet ecosystem cannot reach closure on interconnection and compensation issues. Increasingly these disputes trigger temporary degradation …

Internet Protocol Television And The Challenge Of “Mission Critical” Bits., Rob Frieden

Rob Frieden

The Internet increasingly provides an alternative distribution medium for video and other types of high value, bandwidth intensive content. Many consumers have become “technology agnostic” about what kind of wireline or wireless medium provides service. However, they expect carriers to offer access anytime, anywhere, via any device and in any format. These early adopters of new technologies and alternatives to “legacy” media have no patience with the concept of “appointment television” that limits access to a specific time, on a single channel and in only one presentation format. This paper assesses whether and how Internet Service Providers (“ISPs”) can offer …

Self-Defense Against Robots, A. Michael Froomkin, Zak Colangelo

A. Michael Froomkin

This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy. May a landowner legally shoot down a trespassing drone? May she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place …

"Step Into The Game": Assessing The Interactive Nature Of Virtual Reality Video Games Through The Context Of "Terroristic Speech", Robert Hupf Jr

Robert Hupf Jr

This article will begin the discussion on video gaming’s next interactive jump – total VR immersion – and examine whether the interactivity of VR changes the ordinary First Amendment analysis . . . . Yet, even with the “terroristic speech” component, involving everything from instructions on bomb-making to anti-American “terrorist” recruitment messaging, the Court should affirm the speech-protective logic of Justice Learned Hand and Justice Brandeis and hold that the First Amendment protects the freedom of video game developers in making VR video games with problematic content. The video game medium and its depictions have already been recognized as “speech” …

“Can I Profit From My Own Name And Likeness As A College Athlete?” The Predictive Legal Analytics Of A College Player’S Publicity Rights Vs. First Amendment Rights Of Others, Roger M. Groves

Roger M. Groves

Two federal court decisions during 2013 have changed the game for college students versus the schools, the NCAA and video game makers. This article explores whether for the first time in history these athletes can profit from their own name and likeness and prevent others from doing so. But those cases still leave many untested applications to new facts – facts that the courts have not faced. Particularly intriguing is how 21st Century technology will apply to this area in future litigation. No publicity rights case or article to date has explored the application of predictive analytics, computer programs, algorithms, …

Protecting The Sender: Liability Protection For The Senders Of Electronic Communication, Meredith W. Doherty

Meredith W. Doherty

As the technology of smartphones has progressed, electronic communication has become an integral and portable part of our daily lives. A recent New Jersey case highlighted the issue of holding the sender of a text message liable for injuries resulting from a motor vehicle accident in which the driver at fault was reading a text message from the sender at the time of the accident. This note focuses on the implications of such liability being imposed on senders of text messages as well as the slippery slope that could result, taking all forms of electronic communication, social media and mobile …

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 …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

Drones, Henry H. Perritt Jr., Eliot O. Sprague

All Faculty Scholarship

Abstract

Drone technology is evolving rapidly. Microdrones—what the FAA calls “sUAS”—already on the market at the $1,000 level, have the capability to supplement manned helicopters in support of public safety operations, news reporting, and powerline and pipeline patrol, when manned helicopter support is infeasible, untimely, or unsafe.

Larger drones–"machodrones”–are not yet available outside battlefield and counterterrorism spaces. Approximating the size of manned helicopters, but without pilots, or with human pilots being optional, their design is still in its infancy as designers await greater clarity in the regulatory requirements that will drive airworthiness certification.

This article evaluates drone technology and design …

Drones, Henry H. Perritt Jr., Eliot O. Sprague

Henry H. Perritt, Jr.

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; …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon K. Sandeen

Sharon K. Sandeen

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

Bargaining In The Shadow Of Big Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement—based on their forecast of the outcome at trial and associated costs. Lawyers bargaining in the shadow of trial have traditionally relied on their knowledge of precedent, intuition, and previous interactions with the presiding judge and opposing counsel to forecast trial outcomes and litigation costs. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in aggregated litigation data. In this Article, we describe the tools …

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

No abstract provided.

Will More, Better, Cheaper, And Faster Monitoring Improve Environmental Management?, Ryan P. Kelly

Ryan P Kelly

Two critical problems in environmental management are a lack of primary data and the difficulty of assessing the environmental impacts of human activities. Producing the information necessary to address these twin challenges is often difficult and expensive, which impedes decisionmaking in environmental management. I focus here on the possibility of making data collection more powerful and more cost-effective with a suite of analyses made tractable by emerging technology for genetic analysis. More, better, cheaper, and faster information about the planet’s living resources promises to influence a wide range of legal and policy processes—from Clean Water Act compliance and related public …

No Surfing Allowed: A Review And Analysis Of Legislation Prohibiting Employers From Demanding Access To Employees’ And Job Applicants’ Social Media Accounts, Robert Sprague

Robert Sprague

This article examines recent state legislation prohibiting employers from requesting username and password information from employees and job applicants in order to access restricted portions of those employees’ and job applicants’ personal social media accounts. This article raises the issue of whether this legislation is even needed, from both practical and legal perspectives, focusing on: (a) how prevalent the practice is of requesting employees’ and job applicants’ social media access information; (b) whether alternative laws already exist which prohibit employers from requesting employees’ and job applicants’ social media access information; and (c) whether any benefits can be derived from this …

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

Richard Warner

Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …