Law Commons^™

Copyright's Public Reliance Interests, Bo S. L. Kim

Washington Law Review

Courts are increasingly invoking copyright law’s “scenes a faire” doctrine, which precludes infringement liability for copying typical or standard elements in a copyrighted work. But judges and commentators only cursorily discuss why certain elements constitute scenes a faire. Alternatively, they characterize the doctrine as merely an extension of other copyrightability doctrines. The result is doctrinal inconsistency in how scenes a faire applies and theoretical disagreement about why the doctrine exists.

This Article advances a “public reliance interests” theory of scenes a faire that provides descriptive clarity to the doctrine and highlights its underexplored importance to copyright law writ large. Drawing …

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 …

Beware What You Google: Fourth Amendment Constitutionality Of Keyword Warrants, Chelsa Camille Edano

Washington Law Review

Many Americans have potentially had their privacy rights invaded through invisible, widespread police searches. In recent years, local and federal governments have compelled Google and other search engine companies to produce the personal information of users who have conducted a search query related to a crime. By using keyword warrants, the government can conduct a dragnet search for suspects, imposing suspicion on users and exposing their personal information. The keyword warrant is a symptom of the erosion of the Fourth Amendment protection against suspicionless searches. Not only is scholarship scarce on keyword warrants, but also instances of these warrants are …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

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 …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Contracting In The Age Of Smart Contracts, Farshad Ghodoosi

Washington Law Review

Smart contracts lie at the heart of blockchain technology. There are two principal problems, however, with existing smart contracts: first, the enforceability of smart contracts remains ambiguous. Second, smart contracts are limited in scope and capability barring more complex contracts from being executed via blockchain technology. Drawing from the existing literature on contracts and smart contracting, this Article suggests new approaches to address these two problems. First, it proposes a framework based on reliance-based contracting to analyze smart contracts. Second, the Article analyzes the seismic shifts in contractual disputes, and offers new insights into its features including decentralized decision-making, network-based …

The Law Of Blockchain, Georgios Dimitropoulos

Washington Law Review

Blockchain technology is a new general-purpose technology that poses significant challenges to the existing state of law, economy, and society. Blockchain has one feature that makes it even more distinctive than other disruptive technologies: it is, by nature and design, global and transnational. Moreover, blockchain operates based on its own rules and principles that have a law-like quality. What may be called the lex cryptographia of blockchain has been designed based on a rational choice vision of human behavior. Blockchain adopts a framing derived from neoclassical economics, and instantiates it in a new machinery that implements rational choice paradigms using …

Machine Learning And Law, Harry Surden

Washington Law Review

Part I of this Article explains the basic concepts underlying machine learning. Part II will convey a more general principle: non-intelligent computer algorithms can sometimes produce intelligent results in complex tasks through the use of suitable proxies detected in data. Part III will explore how certain legal tasks might be amenable to partial automation under this principle by employing machine learning techniques. This Part will also emphasize the significant limitations of these automated methods as compared to the capabilities of similarly situated attorneys.

Machines Without Principals: Liability Rules And Artificial Intelligence, David C. Vladeck

Washington Law Review

No abstract provided.

Artificial Meaning, Lawrence B. Solum

Washington Law Review

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry in the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

The Socio-Legal Acceptance Of New Technologies: A Close Look At Artificial Insemination, Gaia Bernstein

Washington Law Review

Heated debates often surround the introduction of an important new technology into society, as exemplified by current controversies surrounding human cloning and privacy protection on the Internet. Underlying these controversies are disruptions to central socio-legal values caused by these new technologies. Whether new technologies will eventually be accepted by society is often contingent on the reaction of the legal system. This mandates the formulation of a conceptual framework for understanding and structuring the way the law should react in cases surrounding the adoption of new technologies. By using the case study of artificial insemination this Article develops the tools for …

The Wright Enabling Disclosure For Biotechnology Patents, Karen S. Canady

Washington Law Review

The disclosure in a patent specification must enable others to make and use the claimed invention. In the competitive biotechnology industry, companies often seek broad claims to protect contemplated embodiments of their inventions that have not yet been reduced to practice. In In re Wright, the Federal Circuit recently challenged this approach when it upheld the rejection, for lack of enablement, of all but the narrowest claims to a vaccine genetically engineered to protect against retroviruses. This decision unreasonably elevates the established standard for enablement by limiting biotechnological patent protection to only those embodiments of a claimed invention whose success …

God, Galileo, And Government: Toward Constitutional Protection For Scientific Inquiry, Richard Delgado, David R. Millen

Washington Law Review

This article examines the applicability of existing constitutional doctrine to state action which prohibits, burdens, or declines to fund scientific research, not because of deficiencies in its research design, the credentials of the investigator, safety or health hazards, or projected cost-benefit balance of the results, but because the state considers the area of inquiry itself inappropriate or suspect. This article tenders and examines the thesis that governmental decisions to regulate scientific inquiry because of the nature of the knowledge likely to result implicate highly protected constitutional values, particularly those of the first amendment, thereby invoking the stringent model of judicial …