Law Commons^™

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Competition For Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has …

Privacy Inalienability And The Regulation Of Spyware, Paul M. Schwartz

Paul M. Schwartz

No abstract provided.

The World Trade Organization Dispute Over Genetically Modified Organisms: The Precautionary Principle Meets International Trade Law, David A. Wirth

David A. Wirth

“Precaution” is increasingly accepted as a basis for governmental policy in the areas of public health and environment on both the domestic and international levels. A precautionary perspective counsels action to avert danger or threats in situations of scientific uncertainty or incomplete information. Precautionary approaches find expression in internationally harmonized formulations as non-binding exhortations, binding treaties, and meta-level principles. Precaution is a particular challenge to free trade agreements, whose purpose is to eliminate unjustified barriers to trade. In that context, precaution as a justification for a challenged governmental measure may appear to be nothing more than a pretext for protectionism. …

Engineering The Climate: Geoengineering As A Challenge To International Governance, David A. Wirth

David A. Wirth

The challenge of global climate change has attracted recommendations for remediation from a number of professions, including engineering. The possibilities suggested for “geoengineering” the climate generally fall into one of two categories: (1) carbon capture and storage; and (2) solar radiation management. Specific and often controversial proposals include the aerial dispersion of aerosols, launching reflective gratings into orbit around the Earth, and seeding the oceans with iron filings. These proposals share a number of characteristics, including the following: (1) they can often be undertaken within the territorial jurisdiction of a single state or in areas beyond national jurisdiction; (2) they …

Wireless Localism: Beyond The Shroud Of Objectivity In Federal Spectrum Administration, Olivier Sylvain

Michigan Telecommunications & Technology Law Review

Recent innovations in mobile wireless technology have instigated a debate between two camps of legal scholars about federal administration of the electromagnetic spectrum. The first camp argues that the Federal Communications Commission (“FCC”) should define spectrum use rights more clearly and give spectrum licensees broad property rights in frequencies. The second camp argues that, rather than award exclusive licenses to the highest bidder, the FCC ought to open much, if not most, of the spectrum to unlicensed use by smartphones and tablets equipped with the newest spectrum administration technology. First, this Article shows that both of these camps comprise a …

Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu

Faculty Scholarship

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.

The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …

The Battle Over The Embryo: How West Virginia Should Legally Define The Embryo And Regulate Embryo Adoption, Alyssa Lechmanik

West Virginia Law Review

No abstract provided.

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

The Trial Court’S Gatekeeper Role Under Frye, Daubert And Kumho: A Special Look At Children's Cases, John Eric Smithburn

J. Eric Smithburn

No abstract provided.

Banning Autonomous Killing, Mary O'Connell

Mary Ellen O'Connell

Scientific research on fully autonomous weapons systems is moving rapidly. At the current pace of discovery, such fully autonomous systems will be available to military arsenals within a few decades, if not a few years. These systems operate through computer programs that will both select and attack a target without human involvement after the program is activated. Looking to the law governing resort to military force, to relevant ethical considerations, as well as the practical experience of ten years of killing using unmanned systems (drones), the time is ripe to discuss a major multilateral treaty banning fully autonomous killing. Current …

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Seattle University Law Review

Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely determine …

The Utilization Of Chiral Ion Mobility Spectrometry For The Detection Of Enantiomeric Mixtures And Thermally Labile Compounds, Howard K. Holness

FIU Electronic Theses and Dissertations

This dissertation utilized electrospray ion mobility mass spectrometry (ESI-IMS-MS) to develop methods necessary for the separation of chiral compounds of forensic interest. The compounds separated included ephedrines and pseudoephedrines, that occur as impurities in confiscated amphetamine type substances (ATS) in an effort to determine the origin of these substances. The ESI-IMS-MS technique proved to be faster and more cost effective than traditional chromatographic methods currently used to conduct chiral separations such as gas and liquid chromatography. Both mass spectrometric and computational analysis revealed the separation mechanism of these chiral interactions allowing for further development to separate other chiral compounds by …

Patent Value And Citations: Creative Destruction Or Strategic Disruption?, David S. Abrams, Ufuk Akcigit, Jillian Popadak

All Faculty Scholarship

Prior work suggests that more valuable patents are cited more and this view has become standard in the empirical innovation literature. Using an NPE-derived dataset with patent-specific revenues we find that the relationship of citations to value in fact forms an inverted-U, with fewer citations at the high end of value than in the middle. Since the value of patents is concentrated in those at the high end, this is a challenge to both the empirical literature and the intuition behind it. We attempt to explain this relationship with a simple model of innovation, allowing for both productive and strategic …

The Killer Idea: How Some Gunslinging Anarchists Held Freedom Of Speech At Gunpoint, Gert A. Van Vugt Msc

Gert A van Vugt MSc

In May 2013, the first all-plastic, 3D printed gun was fired. This paper offers a detailed description of the origins and development of the printable gun. It elucidates the transformation of the principal narrative in the increasing media coverage from circumventing arms regulation to defending free speech, highlighting the role of Defense Distributed and their strategic framing of the printable gun. Finally, the uptake of the latter narrative by early popular and scholarly contributions is discussed. The paper highlights the political impact of narrative formation in debates about regulating 3D printing and the communication of printable designs, and suggests an …

E-Commerce Regulation: Necessity, Futility, Disconnect, Eliza Mik

Research Collection Yong Pung How School Of Law

Existing e-commerce regulations constitute a premature and unnecessary interference in the natural evolution of commercial practices and technologies. I question not just their quality, mainly attributable to the technological ignorance of the regulator, but their very necessity. I observe the practical futility of drafting effective regulatory instruments in areas subject to continuous and unpredictable technological change. I criticize the overly homogenous approach to "everything Internet" (i.e. everything involving the Internet requires new law) as well as the creation of new regulatory spheres and legal categories. Some might claim that it is too early for a critical retrospective of this subject. …

Nexus Crystals: Crystallizing Limits On Constractual Control Of Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot. The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …

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 …

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

Identity Theft On Social Networking Sites: Developing Issues Of Internet Impersonation, Maksim Reznik

Touro Law Review

This Comment focuses on the dangers of social media sites when a person gains access to another's online account through two different methods: (1) stealing the third party's password, or (2) creating a completely fake profile and subsequently impersonating that person.

Throwing Dirt On Doctor Frankenstein’S Grave: Access To Experimental Treatments At The End Of Life, Michael J. Malinowski

Michael J. Malinowski

All U.S. federal research funding triggers regulations to protect human subjects known as the Common Rule, a collaborative government effort that spans seventeen federal agencies. The Department of Health and Human Services has been in the process of re-evaluating the Common Rule comprehensively after decades of application and in response to the jolting advancement of biopharmaceutical science. The Common Rule designates specific groups as “vulnerable populations”—pregnant women, fetuses, children, prisoners, and those with serious mental comprehension challenges—and imposes heightened protections of them. This article addresses a question at the cornerstone of regulations to protect human subjects as biopharmaceutical research and …

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically — telephone numbers do not change, whereas Internet protocol (IP) …

The Magic Circle, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This Article examines the concept of the "magic circle," the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no "real" world as distinguished from "virtual" worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual …

Facilitando The Cloud: Data Protection Regulation As A Driver Of National Competitiveness In Latin America, Horacio Gutiérrez, Daniel Korn

University of Miami Inter-American Law Review

No abstract provided.

Defining Privacy And Utility In Data Sets, Felix T. Wu

Articles

Is it possible to release useful data while preserving the privacy of the individuals whose information is in the database? This question has been the subject of considerable controversy, particularly in the wake of well-publicized instances in which researchers showed how to re-identify individuals in supposedly anonymous data. Some have argued that privacy and utility are fundamentally incompatible, while others have suggested that simple steps can be taken to achieve both simultaneously. Both sides have looked to the computer science literature for support.

What the existing debate has overlooked, however, is that the relationship between privacy and utility depends crucially …

The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein

Faculty Scholarship

On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.

Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section

Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)

This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.

Program topics include:

• Oil and Gas Leases
• Surface Use Agreements (SUAs)
• Government’s Role in Authorizing Locations for Oil and Gas Development
• Technical Aspects of Nontributary and Produced Nontributary Ground Water
• Produced Nontributary Ground …

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. …

Castles In The Air: F. Gregory Lastowka's Virtual Justice, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This Article argues that informed consent to contract terms is not a good to be maximized, but an information cost that courts should minimize. As a result, courts ought to minimize the cost sum of information costs and contractual surprise. The Article applies information-cost theory to show that information-forcing rules are often inefficient at both the micro- and macroeconomic levels. Such rules also impose greater costs on third parties than the benefits they create for the contracting parties. When one consumer creates an idiosyncratic deal, the information-savings benefits of standardization are reduced for all other potential consumers. The Article demonstrates …