Law Commons^™

Widgets To Windows: The "Webolution" Of Commercial Sales, Joseph A. Zavaletta, Edward B. Hymson

Computer Law Review and Technology Journal

Five years ago, a new "nation" developed unlike any other in history - it has no government, no political borders, no buildings, no army, no citizens, no elections, and no leader. But by all accounts, this nation has the most dynamic economic engine in history. Based on recent studies by the Center for Research in Electronic Commerce at the University of Texas at Austin ("CREC"), if this nation were ranked by gross domestic product, its 2000 revenues of $830 billion would give it the twelfth largest gross domestic product in the world, ahead of Canada and behind Mexico. With an …

An Ip Conundrum: Can Patent Policy And Trade Dress Law Be Reconciled?, Michael Scott Fuller

Computer Law Review and Technology Journal

Patent protection in the United States has traditionally been a compromise between the competing interests of Congress and the inventor. While Congress seeks disclosure of technology in order to benefit the common good, inventors want protection of their proprietary inventions, otherwise known as their "intellectual property." Patent law provides a bargained-for exchange, giving the invention protection for a finite period of 20 years from the date of application. Upon expiration of this congressionally sanctioned monopoly, the invention passes ipso facto into the public domain.

In the past, this mutually beneficial arrangement was the accepted means by which both Congress and …

Telecommunications Law: Open Access To Cable Broadband Transmission: At&T Corp. V. City Of Portland, 216 F.3d 871 (9th Cir. 2000), Deborah L. Lively

Computer Law Review and Technology Journal

In AT&T Corp. v. City of Portland, the Ninth Circuit considered whether a local cable franchising authority could condition the transfer of a cable franchise upon the cable operator's grant of unrestricted access to its cable broadband transmission facilities.

In 1998, AT&T - the nation's largest long-distance telephone provider - proposed a merger with Telecommunications, Inc. ("TCI"), which was among the nation's largest cable-television operators. In the merger, AT&T received access to TCI's cable broadband transmission system as a conduit for AT&T's "@Home" Internet service. A cable broadband system provides Internet access at much faster speeds than through typical modem …

Business-Method Patents: Of Questionable Validity? - Amazon.Com, Inc. V. Barnesandnoble.Com, Inc., 239 F.3d 1343 (Fed. Cir. 2001), Chris Morton

Computer Law Review and Technology Journal

In 1998, in State Street Bank & Trust Co. v. Signature Financial Group, Inc., the Federal Circuit gave new life to the business-method patent. Critics viewed this decision as a judicially created exception to the statutory requirement ofpatentable subject matter. Uncertainty under the State Street ruling led to the issuance of a flood of widely criticized and questionable patents, including Amazon.com's one-click-purchase patent. In an attempt to enforce this patent, Amazon.com sued Barnesandnoble.com, and the trial court granted a preliminary injunction. Bamesandnoble.com appealed, claiming that the one-click-purchase patent was invalid because it failed to meet the statutory requirements of …

Hyperlinks To And From Commercial Websites, Christopher J. Volkmer

Computer Law Review and Technology Journal

E-commerce, through the use of a website, is a business reality. This is true for companies of any size, in any location, selling any kind of product or service. Doing business over the Internet is part of what all companies must do to compete; with this new form of business, however, comes new legal issues. As e-commerce develops, it is important for business owners to keep advancing their knowledge in order to manage the risks that come with new opportunities.

Hyperlinks are basic building blocks used to connect the sites of the World Wide Web, and their use has significant …

Copyright Act Of 1976 - Copyright Infringement - Supreme Court Holds That The Selling Of Freelance Authors' Articles By Print Publishers To Electronic Publishers Constitutes Copyright Infringement. New York Times Co. V. Tasini, 533 U.S. 483 (2001), S. Brock Benson

Computer Law Review and Technology Journal

In New York Times Co. v. Tasini, the Supreme Court decided the issue of whether the selling to electronic publishers of articles in collective works without permission from the freelance authors was permissible under § 201 (c) of the Copyright Act. In earlier proceedings, the United States District Court for the Southern District of New York granted summary judgment for the publishers, holding that the publishers were entitled to place contents of their periodicals into electronic databases without the permission of the authors whose works appeared in the periodicals. The Court of Appeals for the Second Circuit, however, reversed …

Traditional Free-Speech Law: Does It Apply On The Internet?, A. John Harper Iii

Computer Law Review and Technology Journal

The First Amendment states that Congress "shall make no law . . . abridging the freedom of speech, or of the press." But as Oliver Wendell Holmes recognized, the First Amendment "obviously was not intended to give immunity for every possible use of language." Accordingly, the Supreme Court's free-speech jurisprudence has traditionally been one of line drawing - distinguishing protected from unprotected speech by evaluating its content in light of the medium through which it is expressed. In terms of content, there are generally three categories of speech: "(1) speech that everyone has a right to (political speech, speech about …

Packet Sniffers And Privacy: Why The No-Suspicion-Required Standard In The Usa Patriot Act Is Unconstitutional, Robert Berkowitz

Computer Law Review and Technology Journal

The legal standards for electronic surveillance, like the underlying technologies themselves, are constantly evolving. Originally aimed at analog telephones with landlines, the law has had to develop in order to deal with an expanding array of electronic communications, most recently the Internet. The challenge is a double one: statutes allowing surveillance must balance law enforcement's need for information with the privacy rights of the subjects of surveillance and the public at large. The USA Patriot Act, passed in the wake of the terrorist attacks on New York City and Washington, D.C., is the most recent attempt to strike this balance. …

Who Was That Masked Man? Online Defamation, Freedom Of Expression, And The Right To Speak Anonymously, Jonathon T. Feasby

Canadian Journal of Law and Technology

As the internet continues to reach into the lives of people around the world, it facilitates interaction and the exchange of ideas between far-flung individuals and groups to an extent unprecedented in communications history. However, with this positive effect, the potential of the internet as a forum for defamation and other malfeasance has increased as well. Words online can be heard or read in places conventional forms of speech might never reach. As the United States Supreme Court put it, with the aid of the internet ". . . any person with a phone line can become a town crier …

Book Review: A Guide To Electronic Legal Research By A. Zivanovic (Markham Ont.: Butterworths Canada, 2001), David H. Michels

Canadian Journal of Law and Technology

No abstract provided.

Book Review: The Personal Information Protection And Electronic Documents Act: An Annotated Guide By Stephanie Perrin, Heather H. Black, David H. Flaherty And T. Murray Rankin, Q.C. (Concord, Ont.: Irwin Law, 2001), Teresa Scassa

Canadian Journal of Law and Technology

In April 2000, the Personal Information Protection and Electronic Documents Act was passed by the House of Commons. The legislation dealt with both personal information privacy and the use and validity of electronic documents in areas governed by federal law. On January 1, 2001, the portion of the Act dealing with electronic documents took effect, as did the privacy provisions, to the extent that they related to the collection use or disclosure of personal information inter-provincially, or in connection with a federal work, undertaking or business. The Act applied to personal health information as of January 1, 2002, and will …

Is Internet Gaming Legal In Canada: A Look At Starnet, C. Ian Kyer, Danielle Hough

Canadian Journal of Law and Technology

The development of the Internet has kindled many new business opportunities in the online environment. Despite the recent slump in online business growth and popularity, one line of online business is generating profit and growing at a rapid rate: the business of online gaming.

The legality of such businesses is questionable in Canada and there are few gaming cases to assist Canadian lawyers. The following analysis must be considered in light of the dearth of jurisprudence in this area and should not be considered legal advice. This area of the law is in flux and developments may be unpredictable.

When …

Suing The Insecure?: A Duty Of Care In Cyberspace, Stephen E. Henderson, Matthew Yarbrough

Faculty Articles

The Internet, already of major significance throughout much of the globe, is expected to become increasingly pervasive in diverse arenas, from health care, to commerce, to entertainment, and is expected to become increasingly critical to essential infrastructures, including banking, power, and telecommunications. Yet the medium is both inherently and unnecessarily insecure. In particular, today’s Internet can be crippled by distributed denial-of-service attacks launched by relatively unsophisticated and judgment-proof parties. Not every computing system involved in such attacks, however, is necessarily without resources. Application of traditional negligence liability, coupled with other government incentives and support institutions, will encourage better security and …

Inventions, Industry Standards, And Intellectual Property, Mark R. Patterson

Faculty Scholarship

When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining …

The Magic Lantern Revealed: A Report Of The Fbi's New Key Logging Trojan And Analysis Of Its Possible Treatment In A Dynamic Legal Landscape, Woodrow Hartzog

Faculty Scholarship

Magic Lantern presents several difficult legal questions that are left unanswered due to new or non-existent statutes and case law directly pertaining to the unique situation that Magic Lantern creates. ²⁵ The first concern is statutory. It is unclear what laws, if any, will apply when Magic Lantern is put into use.²⁶ The recent terrorist attacks in the United States have brought the need for information as a matter of national security to the forefront. Congress recently passed legislation (i.e. USA PATRIOT Act) ²⁷ that dramatically modifies current surveillance law, thus further complicating the untested waters of a …

Fast, Cheap & Out Of Control: Lessons From The Icann Dispute Resolution Process, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Some people have argued that the uniform dispute resolution process used by ICANN to resolve domain name disputes would be a good model for internet disputes generally. This article argues the opposite: the UDRP teaches sobering lessons about the consequences of privatized dispute resolution processes. The lessons include: the questionable legitimacy of privately-adopted substantive standards; the danger of unprincipled choice of law decisions to fill in the gaps in that private law; unreconciled splits among arbitrators as to the meaning of the standards; and a tendency to expand beyond the narrow jurisdictional limits of the policy. The UDRP also demonstrates …

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

The Naked Clone, John Charles Kunich

Kentucky Law Journal

No abstract provided.

Facilitating Access Of Aids Drugs While Maintaining Strong Patent Protection, Dana Ziker

Duke Law & Technology Review

The AIDS pandemic has thrust the subject of patent protection into the spotlight, a spotlight that has attracted the attention of broad audience including interested parties from the political, legal, and medical communities. Can the United States' scheme of strong patent protection for pharmaceutical products withstand the increased attention?

Direct Broadcast Satellite Service And Competition In The Multichannel Video Distribution Market: Hearing Before The H. Comm. On The Judiciary, 107th Cong., Dec. 4, 2001 (Statement Of Robert Pitofsky, Prof. Of Law, Geo. U. L. Center), Robert Pitofsky

Testimony Before Congress

No abstract provided.

Europe In America: Grammatology, Legal Studies, And The Politics Of Transmission, Peter Goodrich

Articles

This Essay begins by analyzing the way American legal theory has failed to adequately address the challenges and insights of grammatology, the philological critique of the language of law initiated with Jacques Derrida's work Of Grammatology. Professor Goodrich traces the form that this failed confrontation took and then outlines how this philological critique ought to inform a study of law. Importantly for Professor Goodrich, the grammatological approach to law provides ways of analyzing not just the written legal text, but also the effects of new media technologies on the law more broadly. The changes in the law brought about by …

Cybernetic Implications For The U.C.C., Stephen Dirksen, Kyle Grimshaw

Duke Law & Technology Review

In the following iBrief, the authors assess the impact of recent a recent decision from the 9th Circuit assessing whether the patent system's filing mechanism preempts the U.C.C. Article 9 requirement that creditors perfect their security interests in patents offered as collateral by their debtors.

A Victory For The Student Researcher: Chou V. University Of Chicago, Kyle Grimshaw

Duke Law & Technology Review

For years, graduate and other student researchers at universities have alleged that the hierarchical system in academic research allows supervising PhDs to steal and patent inventions that were rightfully discovered by students. In July 2001, the Federal Circuit finally addressed these concerns by interpreting the law in a way that strictly protects the rights of student researchers. This article examines this long-overdue change in the law and discusses its potential implications.

The Symbiosis Of Constitutionalism And Technology, John O. Mcginnis

Articles

Technology does not change the essential problems that constitutionalism seeks to address because these problems are rooted in the enduring nature of man. Technological change, however, can transform man's environment. A different environment, in turn, may require substantially modified forms of constitutionalism even if the underlying objectives remain constant. As the great political philosopher Edmund Burke recognized, the key to sound structures of governance in every age and place is to understand the intersection of man's enduring nature with his particular circumstances. Because technology increasingly shapes the circumstances of modem man, technology is becoming progressively more important to constitutionalism.

Overview Of The Use Of Genetically Modified Organisms And Pesticides In Agriculture`, David Pimentel

Indiana Journal of Global Legal Studies

No abstract provided.

Food Systems And Dietary Perspectives: Are Genetically Modified Organisms The Best Way To Ensure Nutritionally Adequate Food?, Ellen Messer

Indiana Journal of Global Legal Studies

No abstract provided.

Promise, Peril, Precaution: The Environmental Regulation Of Genetically Modified Organisms, Stephen Tromans

Indiana Journal of Global Legal Studies

No abstract provided.

Advance Informed Agreement: A Shared Basis For Governing Trade In Genetically Modified Organisms?, Aarti Gupta

Indiana Journal of Global Legal Studies

No abstract provided.

Patents And Traditional Knowledge Of The Uses Of Plants: Is A Communal Patent Regime Part Of The Solution To The Scourge Of Bio Piracy, Ikechi Mgbeoji

Indiana Journal of Global Legal Studies

No abstract provided.

Genetically Modified Organisms In Peasant Farming: Social Impact And Equity, Stephen B. Brush

Indiana Journal of Global Legal Studies

No abstract provided.