Law Commons^™

Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

Faculty Articles

This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

University of Miami Law Review

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Regulating New Tech: Problems, Pathways, And People, Cary Coglianese

All Faculty Scholarship

New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …

Industry Concentration And Information Technology, James Bessen

Faculty Scholarship

Industry concentration has been rising in the US since 1980. Does this signal declining competition and need for a new antitrust policy? Or are other factors causing concentration to rise? This paper explores the role of proprietary information technology (IT), which could increase the productivity of top firms relative to others and raise their market share. Instrumental variable estimates find a strong link between proprietary IT and rising industry concentration, accounting for much of its growth. Moreover, the top four firms in each industry benefit disproportionately. Large investments in proprietary software—$250 billion per year—appear to significantly impact industry structure.

The Policy Challenge Of Artificial Intelligence, James Bessen

Faculty Scholarship

New "artificial intelligence" (AI) technology promises to bring dramatic social and economic changes, demanding major policy changes. In intellectual property and antitrust law, AI will exacerbate a damaging trend: across all major sectors of the economy, proprietary information technology is increasing the market dominance of large firms. This trend might not seem like bad news, but it is evidence of a slowdown in the spread of technical knowledge throughout the economy. The result is rising industry concentration, slower productivity growth and growing wage inequality. The key challenge to IP and antitrust policy will be counter this trend yet maintain innovation …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Tiffany Li, Eduard Fosch Villaronga, Peter Kieseberg

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Storage Wars: Analyzing The Territorial Limits Of The Sca's Warrant Provision, Peter Liskanich

Loyola of Los Angeles Law Review

No abstract provided.

Fetishizing Copies, Jessica Litman

Book Chapters

Our copyright laws encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This is the …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Northwestern University Law Review

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

The Fcc And The “Pre-Internet”, John Blevins

Indiana Law Journal

Network neutrality has dominated broadband policy debates for the past decade. While important, network neutrality overshadows other policy levers that are equally important to the goals of better, cheaper, and more open broadband service. This lack of perspective has historical precedent—and understanding this history can help refocus today’s policy debate. In the 1960s and 1970s, telephone companies threatened the growth of the nascent data industry. The FCC responded with a series of rulemakings known as the “Computer Inquiries” proceedings. In the literature, Computer Inquiries enjoys hallowed status as a key foundation of the Internet’s rise.

This Article, however, argues that …

Silencing The Call To Arms: A Shift Away From Cyber Attacks As Warfare, Ryan Patterson

Loyola of Los Angeles Law Review

Cyberspace has developed into an indispensable aspect of modern society, but not without risk. Cyber attacks have increased in frequency, with many states declaring cyber operations a priority in what has been called the newest domain of warfare. But what rules govern? The Tallinn Manual on the International Law Applicable to Cyber Warfare suggests existent laws of war are sufficient to govern cyber activities; however, the Tallinn Manual ignores fundamental problems and unique differences between cyber attacks and kinetic attacks. This Article argues that several crucial impediments frustrate placing cyber attacks within the current umbra of warfare, chiefly the problems …

Autonomous Weapons And Accountability: Seeking Solutions In The Law Of War, Kelly Cass

Loyola of Los Angeles Law Review

Autonomous weapons are increasingly used by militaries around the world. Unlike conventional unmanned weapons such as drones, autonomous weapons involve a machine deciding whether to deploy lethal force. Yet, because a machine cannot have the requisite mental state to commit a war crime, the legal scrutiny falls onto the decision to deploy an autonomous weapon. This Article focuses on the dual questions arising from that decision: how to regulate autonomous weapon use and who should be held criminally liable for an autonomous weapon’s actions. Regarding the first issue, this Article concludes that regulations expressly limiting autonomous weapon use to non-human …

Technology Drives The Law: A Foreword To Trends And Issues In Techology & The Law, Ralph D. Clifford

University of Massachusetts Law Review

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear.

Computer Literacy For Administrative Law Judges, Emilio Jaksetic

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Protection Of Intellectual Property Rights In Computers And Computer Programs: Recent Developments , Alan C. Rose

Pepperdine Law Review

The following article examines the protection offered to computers and computer programs, under the various applicable patent, copyright and trade secret laws. Concerning patent protection; the author discusses the history and current status of the patent laws, and analyzes in detail the landmark case of Diamond v. Diehr. Discussed also is an analysis of copyright protection for computer programs, offered by the 1980 amendments to section 117 of the 1976 Copyright Act; which paved the way for the increased protection.

Technology Drives The Law: A Foreword To Trends And Issues In Techology & The Law, Ralph D. Clifford

Faculty Publications

Technology has always been a motivating force of change in the law. The creation of new machines and development of novel methods of achieving goals force the law to adapt with new and responsive rules. This is particularly true whenever a new technology transforms society. Whether it is increasing industrialization or computerization, pre-existing legal concepts rarely survive the transition unaltered - new prescriptions are announced while old ones disappear.

The Variable Determinacy Thesis, Harry Surden

Publications

This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach - …

Border Confidential: Why Searches Of Laptop Computers At The Border Should Require Reasonable Suspicion, John W. Nelson

John W. Nelson

Our laptops are capable of containing large amounts of personal, private, intimate, and confidential information. At the same time, the power of the government to search us and our possessions is at its zenith during a border crossing. How should our laptops be treated during these border crossings?

This Note examines the background of the border search exception and the privacy interests we each have in our laptop computers. This Note argues that searches of our laptop computers should be viewed as highly intrusive in nature because of the ability to quickly sort through vast amounts of intimate and private …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …

The Obsolescence Of Wall Street: A Contextual Approach To The Evolving Structure Of Federal Securities Regulation, Joel Seligman

Michigan Law Review

As a matter of analytical style, this article illustrates a contextualist approach. For a considerable period of time, the dominant analytical style in corporate and securities .law has been a variant of economic, or law and economics, analysis. The virtue of this type of analysis is that it focuses on what its authors deem to be crucial variables and reaches conclusions derived from the core of a specific legal problem. The defect of this type of analysis is that so much is assumed or often assumed away.

Automatic Generation Of A Legal Expert System, Layman E. Allen, Charles S. Saxon

Book Chapters

The use of the AUTOPROLOG system to generate automatically a legal expert system is described in this chapter. The interpretation of a statutory or other legal rule by one expert (or by the consensus of a group of experts) expressed in a normalized form is the only input needed by the AUTOPROLOG system (which includes Turbo Prolog, the AUTOPRO program, and some data files) to produce automatically a computer program that is an expert system for that legal rule. The process for producing a legal expert system for Section 213.1 of the Modal Penal Code, which deals with rape and …

Exploring Computer Aided Generation Of Questions For Normalizing Legal Rules, Layman E. Allen, Charles S. Saxon

Book Chapters

The process of normalizing a legal rule requires a drafter to indicate where the intent is to be precise and where it is to be imprecise in expressing both the between-sentence and within-sentence logical structure of that rule. Three different versions of a legal rule are constructed in the process of normalizing it: (1) the logical structure of the present version, (2) the detailed marker version, and (3) the logical structure of the normalized version. In order to construct the third version the analyst must formulate and answer specific questions about the terms that are used to express the logical …

Integrated Servies Digital Network: Issues And Options For The World's Future Communications Systems, A. M. Rutkowski

Michigan Journal of International Law

There has been virtually no public discussion of the significant public policy issues raised because of the intimidating nature of network engineering which forms the basis for nearly all the current dialogue. This paper discusses current ISDN developments, and sets forth an analytical framework within which these issues may be discussed.

The International Application Of The Second Computer Inquiry, Robert M. Frieden

Michigan Journal of International Law

This article chronicles the FCC's attempt to confront the confluence of telecommunications and data processing technologies by fashioning a regulatory scheme designed primarily for the United States. The Commission has chosen to apply this scheme, without significant qualification, internationally. Given the different objectives and structure of United States and foreign communications industries, the FCC's system cannot be transplanted abroad without prior consultation and substantial modification. After reviewing the international problems created by the Commission's application abroad of its newly developed scheme, this article concludes with recommendations for resolving these conflicts that currently threaten the well-being of carriers, customers, and international …

The Council Of Europe Convention Of The Oecd Guidelines On Data Protection, Jon Bing

Michigan Journal of International Law

The first international legal instruments to be adopted were two Council of Europe resolutions in 1973 and 1974, the first on "the protection of the privacy of individuals vis-A-vis electronic data banks in the private sector," 9 and the second on "the protection of the privacy of individuals vis-A-vis electronic data banks in the public sector." This article will describe and compare the rules of data protection as they emerge in the instruments. Although this will require some assessment, the main objective will be to explain and amplify.

Direct Television Broadcasting And The Quest For Communication Equality, Howard C. Anawalt

Michigan Journal of International Law

In the immediate past modem communication means such as efficient telephone and television systems have been viewed as the luxuries of well developed economies. Rapid advances in the field of communications and computer technologies have changed this basic outlook. Now, it is possible to use these technologies as tools of economic growth in both developed and developing countries. This is primarily because cost has gone down while efficiency has gone up. A recent article concerning small computers demonstrates the point. "If the aircraft industry had developed as spectacularly as the computer industry over the past twenty-five years, a Boeing 767 …

The Fcc Computer Inquiry: Interfaces Of Competitive And Regulated Markets, Michigan Law Review

Michigan Law Review

Since the advent of computer technology, data processing and communication services have become increasingly interdependent. In 1966, the Federal Communications Commission launched the Computer Inquiry to explore the broad range of regulatory and policy problems generated by this technological development.2

Computer Systems For Research, Layman E. Allen

Book Chapters

The legal communication network today is characterized by two features. Any communication network in this century is marked by a division between the extent to which there is a man involved and the extent to which there is a machine involved. And, in terms of emphasis at this stage of things, at least within law, the emphasis is heavily upon the man communicating messages and relatively less upon the machine. The interesting question is, What is going on within this network that is amenable to being handled by machine and what, among those things, is it wise to do that …

Personal Privacy In The Computer Age: The Challenge Of A New Technology In An Information-Oriented Society, Arthur R. Miller

Michigan Law Review

The purpose of this Article is to survey the new technology's implications for personal privacy and to evaluate the contemporary common-law and statutory pattern relating to data-handling. In the course of this examination, it will appraise the existing framework's capacity to deal with the problems created by society's growing awareness of the primordial character of information. The Article is intended to be suggestive; any attempt at definitiveness would be premature. Avowedly, it was written with the bias of one who believes that the new information technology has enormous long-range societal implications and who is concerned about the consequences of the …