Law Commons^™

The Evolution Of The Us Drm Debate, 1987-2006, Bill D. Herman

Bill D. Herman

Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While the playing field is still quite slanted toward stronger copyright, the politics around the issue are much messier and less predictable. This study, a detailed political and legislative history of the major proposals regarding copyright and digital rights management from 1987 to 2006, illustrates how this policy dynamic has changed so drastically. In 1987, there was no organized opposition to copyright’s expansion. By 2006, however, there was a substantial coalition of …

The Times They Are A-Changin’: The “Sexting” Problem And How The Intrusiveness Of A Cell Phone Search Determines The (Un)Constitutionality Of Suspicion-Based And Suspicionless Searches In The Public School Setting, Andrew T. Moore

Andrew T Moore

In the past decade cell phone use amongst teenagers has gone from luxury to perceived necessity. With the expanded abilities of modern cell phones, students are able to easily participate in social sexual behavior such as sending explicit images of themselves or others to other cell phone users, an activity known as “sexting.” While schools may want to do all they can to eradicate this behavior, school administrators must not violate the constitutional rights of their students in the process of doing so. When a school administrator comes to suspect “sexting” behavior, he or she must follow existing Fourth Amendment …

Skewed Incentives: How Offshore Drilling Policies Fail To Induce Innovation To Reduce Social And Environmental Costs, Gaia J. Larsen

Gaia Larsen Esq.

The accident at the Deepwater Horizon platform in the Gulf of Mexico in April of 2010 showed the potentially catastrophic damage associated with offshore oil drilling. It also highlighted both the technological advances that have made drilling in deeper and more dangerous waters feasible and affordable, and the lack of similar advances in technology to prevent harm resulting from such drilling. In light of that disaster and current debate over offshore oil drilling, this article looks at the failure of current policies to adequately incentivize investment in innovation to reduce the environmental and social costs associated with offshore drilling. It …

Electronic Discovery: A Survey Of E-Discovery, Its Effect On Corporate Constitutional Rights And Why Corporations May Receive The Fifth Amendment Privilege Against Self-Incrimination During Parallel Civil And Criminal Litigation, Percy Arnell King

Percy Arnell King Esq.

Advancing technology has created more places to seek out relevant information than ever before which, has created a burden for corporations tasked with retaining this information to comply with applicable laws and the prospect of civil or criminal litigation. This article explores how the modern trend of storing information electronically and subsequent electronic discovery allowed in parallel civil and criminal trials is inherently unfair to corporations. Furthermore, corporations have been granted several rights derived from the Bill of Rights, and should also receive the Fifth Amendment privilege against self-incrimination.

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

Metadata Discovery After The 2006 Amendments To The Federal Rules Of Civil Procedure: Did The Amendments Work?, Ryan J. Rawlings

Ryan J. Rawlings

In 2003, the Civil Rules Advisory Committee determined electronically stored information discovery required a national, uniformly applied rule, and proposed amendments to the Federal Rules of Civil Procedure explicitly addressing electronically stored information. The electronically stored information amendments to the Federal Rules of Civil Procedure became effective December 01, 2006. It is time to ask, did the amendments achieve the Committee’s goal to create a uniform system of electronic discovery? This Note will review the amendments to Rule 34 and the amendments’ effect on metadata discovery.

The Myth And Reality Of Dilution, Sandra L. Rierson

Sandra L Rierson

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying power of the targeted trademark. The assumption of both the original federal dilution statute enacted in 1995 as well as its substantial enlargement in 2006 is that the source-identifying capacity of a trademark is akin to a glass of water: spill a drop here, spill a drop there and eventually your glass is empty. This Article advances three claims. First, statutory dilution erroneously assumes that the source-identifying function of a trademark is a rivalrous …

Online Investigations And The Americans With Disabilities Act: The Resurgence Of Overbroad And Ineffectual Mental Health Inquiries In Character And Fitness Evaluations, Bernice M. Bird

Bernice M. Bird

Nationally, state board bar examiners’ interest to inquire into mental health has been a hotly contested issue invoking the Americans with Disabilities Act (ADA) for the last two decades. After the enactment of the ADA in 1990 a floodgate of litigation resulted in a litany of publications, all surrounding the issue of whether mental health based inquiries into character and fitness violated the ADA. Consequently, narrowly tailored mental health inquiries into specific disorders emerged as the trend in a majority of jurisdictions. This comment analyzes whether fitness boards' mental health inquiries among social networking profiles may cause the resurgence of …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho S

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

Coding For Life--Should Any Entity Have The Exclusive Right To Use And Sell Isolated Dna, Douglas L. Rogers

Douglas L. Rogers

Myriad Genetics, Inc. ("Myriad") obtained patents in the 1990's on two "isolated" human breast and ovarian cancer susceptibility genes ("BRCA"). Myriad did not list all the isolated sequences it claims to have a right to monopolize, but instead claims a patent on the physical phenomena itself -- all DNA segments that code for the BRCA1 polypeptide, even the sequences Myriad has not identified and even someone else in the future creates or isolates the sequences through a method or methods not contemplated by Myriad.

An impressive array of non-profit medical societies, doctors and patients sued to have the Myriad patents …

Novel "Neutrality" Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny, Jeffrey Jarosch

Jeffrey Jarosch

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter, too, faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (API). These investigations represent a new attempt to shift the network …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

This Article …

Serious Flaw Of Employee Invention Ownership Under The Bayh-Dole Act In Stanford V. Roche: Finding The Missing Piece Of The Puzzle In The German Employee Invention Act, Toshiko Takenaka Prof.

Toshiko Takenaka Prof.

In Stanford v. Roche, the Supreme Court highlighted a serious flaw of employee invention ownership under the Bayh-Dole Act (BDA). This article argues that the current BDA is incomplete without a mechanism for contractors to secure the ownership of all federally funded inventions and proposes a revision to introduce such a mechanism from the German Employee Invention Act (EIA). Because the EIA influenced the drafting of the BDA, the EIA and BDA share key features, which make it easy for the BDA to adopt an ownership transfer mechanism from the EIA. This article also proposes to adopt a mechanism to …

Did Learned Hand Get It Wrong?: The Questionable Patent Forfeiture Rule Of Metallizing Engineering Co. V. Kenyon Bearing & Auto Parts Co., Dmitry Karshtedt

Dmitry Karshtedt

As Congress stands on the verge of passing patent reform legislation that will grant patent priority to those who are first to file rather than first to invent, an old chestnut of a case penned by Judge Learned Hand some 65 years ago has attracted the attention of lawmakers and commentators. The case of Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co. dealt with the thorny problem of granting patents those who have, for some time before patenting, practiced their inventions in secret. The Second Circuit held that one who competitively exploits a secret invention at a time …

Vernor V. Autodesk: Power To The...Producers?!, Elizabeth F. Wilhelm

Elizabeth F. Wilhelm

Vernor v. Autodesk, a recent case from the Ninth Circuit, threatens the very core of the first sale doctrine. Vernor radically alters the test for determining whether a transfer of a physical copy of copyrighted material is a sale or a license for the purposes of the first sale doctrine. The new test makes a transfer much more likely to be a license than a sale, possibly extending copyright protection beyond what is called for in the Copyright Act and extending the use of licensing in more media than just computer software. Many resale industries face the peril of widespread …

The Public Life Of The Virtual Self, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – …

Sext Appeals: Re-Assessing The Exclusion Of Self-Created Images From First Amendment Protection, Carmen Naso Mr

Carmen Naso Mr

ABSTRACT Only recently could it have been imagined that in less than a minute, a young person could or would create, and possess a sexually explicit photo of him or herself and then send it to hundreds of recipients throughout the country. Nor could one think of web cam chats or phone conversations that would result in spontaneous exhibitions of nudity via the computer or 4th generation cellular technology. Novel to this discussion, this article identifies a solution to the inconsistent and problematic application of individual state law to speech that can be created and globally disseminated in a matter …

Fear Of Facebook: Private Ordering Of Social Media Risks Incurred By Healthcare Providers, Nicolas P. Terry

Nicolas P Terry

The last two years have seen important quantitative and qualitative shifts in social media use patterns in the healthcare environment. Reacting to present and future risks there has been a rapid deployment of private ordering: social media policies and other contractual constructs emanating from physicians, professional organizations, employers and educators. These private, often contractual attempts to regulate online interactions or social media conduct are not all benign, themselves creating ethical or legal risk. This article, a follow-up to Physicians And Patients Who ‘Friend’ Or ‘Tweet’: Constructing A Legal Framework For Social Networking In A Highly Regulated Domain, 43 IND. L. …

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott Peppet

Scott Peppet

This Article argues that freedom of contract will take on different meaning in a world in which ubiquitous information about places, goods, people, firms and contract terms is available to contracting parties anywhere, any time. In particular, our increasingly “augmented reality” calls into question leading justifications for distrusting consumer contracts—and thereby strengthens traditional understandings of freedom of contract as enforcing contracts as written. This is largely a descriptive and predictive argument: the Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer …

Website Proprietorship Liability, Design And Two Regrettable Online Norms:, Nancy Kim

Nancy Kim

Two regrettable norms have emerged online: the posting of content about others without their consent; and impulsive postings with little or no regard to their long term consequences. Website operators can either encourage or discourage these regrettable norms and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, section 230 of the Communications Decency Act as interpreted by courts provides websites with broad immunity. In a prior Article, I argued that a proprietorship standard should be imposed upon websites which would require them to take reasonable measures to prevent …

The Unintended Consequences Of Stanford V. Roche, Ted Hagelin

Ted Hagelin

This article analyzes the recent Supreme Court decision in Stanford v. Roche and concludes that the Court was correct in holding that the Bayh-Dole Act did not change the basic patent law norm that inventors hold initial title to their inventions; but, and more importantly, that the Court was wrong in finding for Roche because there cannot be an assignment of legal title to an invention until the invention is made, a patent application is filed or a patent is issued, and the inventor executes a written patent assignment that identifies the patent application number or patent number associated with …

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Ellen J Crivella

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best …

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Josh Blackman

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans - yet the inner-workings of the Court are not fully transparent. The Court, without explanation, only decides the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome …