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Full-Text Articles in Law
Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach
Trouble For Trolling: Courts Reject Copyright Trolling Tactics, Megan R. Haslach
Washington Journal of Law, Technology & Arts
Copyright trolling has become a popular, but widely criticized tactic used by copyright holders to defend their intellectual property rights. One method involves rights holders selling their rights to infringed works to holding companies, as those companies may more easily file hundreds of suits against potential infringers at once. Another method involves rights holders themselves filing mass lawsuits against hundreds of BitTorrent users at once using their anonymous IP addresses, threatening to name the alleged infringers in a lawsuit if a settlement is not paid. However, in many recent cases, courts have shut down such tactics by invoking procedural deficiencies …
Shaking Out The "Shakedowns": Pre-Discovery Dismissal Of Copyright Infringement Cases After Comparison Of The Works At Issue, Evan Brown
Washington Journal of Law, Technology & Arts
In an era of copyright trolling, digital distribution, and widespread reappropriation of creative works, the specter of “shakedown” copyright infringement litigation looms larger than ever before. Some plaintiffs will hold the prospect of expensive and time-consuming discovery over alleged infringers to provoke settlement. In the wake of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, courts are more likely to consider the costs and time requirements of discovery when considering a defendant’s 12(b)(6) motion to dismiss. Several courts have recently indicated a willingness to grant motions to dismiss in copyright infringement cases when …
Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang
Criminal Defenses To Anti-Circumvention Charges For Modifying Video Game Consoles, Peter Dang
Washington Journal of Law, Technology & Arts
In United States v. Crippen, Matthew Crippen was charged with modifying Xbox 360 consoles for others for a fee. His modifications allowed the consoles to run unlicensed software in violation of the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). In the first criminal trial arising from these provisions, the United States District Court for the Central District of California granted a motion in limine allowing the government to exclude evidence of fair use, holding that the DMCA provisions contained no fair use exception. After the prosecution abruptly dropped the case in December 2010, several questions remain unanswered: …
Can You Hear Me Now? The Race To Provide America With Universal, High-Speed Wireless Coverage, Dina Neda Rezvani
Can You Hear Me Now? The Race To Provide America With Universal, High-Speed Wireless Coverage, Dina Neda Rezvani
Washington Journal of Law, Technology & Arts
As the United States becomes increasingly dependent on universal, high-speed wireless services, infrastructural limitations are producing tension. The interests of consumers, telecommunications companies, state and local authorities, and businesses, as well as national security, are all at stake. Yet legal uncertainty stemming from a split among federal circuit courts hampers the development of solutions. The courts diverge on the interpretation of a key provision of the Telecommunications Act (TCA), 47 U.S.C. § 332(c)(7)(B), that regulates wireless service providers’ ability to erect new towers. There is great need for a national standard to give mobile providers a uniform means of accommodating …
Medical Advances, Criminal Disadvantages: The Tension Between Contemporary Antiretroviral Therapy And Criminal Hiv Exposure Laws In The Workplace, Chelsey Heindel
Medical Advances, Criminal Disadvantages: The Tension Between Contemporary Antiretroviral Therapy And Criminal Hiv Exposure Laws In The Workplace, Chelsey Heindel
Washington Journal of Law, Technology & Arts
In 1988, the Washington Legislature classified intentionally exposing individuals to the human immunodeficiency virus (HIV) as criminal assault in the first degree. Lawmakers intended to penalize infected individuals without conditioning criminal liability on actual HIV transmission. Since 1988, however, medical technologies and effective HIV treatment have rapidly advanced. Recent studies indicate that effective antiretroviral therapy (ART) can reduce HIV transmission risks to a virtual impossibility during moments of intentional exposure. Despite these medical advances, the 1988 exposure law remains unchanged. Consequently, individuals undergoing effective ART risk felony liability within the course of commonplace work conduct by intentionally exposing others to …
Repairing The Antibiotic Pipeline: Can The Gain Act Do It?, Caitlin Forsyth
Repairing The Antibiotic Pipeline: Can The Gain Act Do It?, Caitlin Forsyth
Washington Journal of Law, Technology & Arts
Antibiotic resistance, according to the World Health Organization, is one of the greatest threats to public health. To combat the problem, new antibiotics need to be developed. However, antibiotic research and development is fraught with scientific and economic problems. Recognizing these problems and the public health threat posed by antibiotic resistance, Congress passed the GAIN Act, which President Obama signed into law in June 2012. The GAIN Act (Act) incentivizes pharmaceutical companies to invest in antibiotic research and development. This Article will outline the incentives in the Act and suggest why the Act may not solve the growing antibiotic resistance …
Conformity In Confusion: Applying A Common Analysis To Wikipedia-Based Jury Misconduct, Matthew Fredrickson
Conformity In Confusion: Applying A Common Analysis To Wikipedia-Based Jury Misconduct, Matthew Fredrickson
Washington Journal of Law, Technology & Arts
In 2012, the United States Court of Appeals for the Fourth Circuit decided United States v. Lawson, a case of first impression about a juror’s use of Wikipedia during deliberations. Had this case been decided in the 1950s, the juror’s contact with the extra-record material during deliberations would have given rise to a presumption of prejudice in favor of the party claiming he was denied a fair trial. However, in the 1980s and 1990s, the United States Supreme Court seemed to eliminate that presumption and place the burden of proving prejudice on the party seeking a new trial. As …
A First Amendment Defense To The Federal Cyberstalking Statute In The Age Of Twitter, Christopher Young
A First Amendment Defense To The Federal Cyberstalking Statute In The Age Of Twitter, Christopher Young
Washington Journal of Law, Technology & Arts
Real-time information technology facilitates more efficient channels of communication. As communication becomes nearly instantaneous and further reaching, it seems probable that more expression will fall within the scope of cyberharassment and cyberstalking laws. Attorneys who represent clients indicted on such criminal charges need to familiarize themselves with possible defenses. This Article suggests invoking the overbreadth doctrine to exonerate a client who is charged with violating the federal cyberstalking statute.
Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker
Bidding On Trademarked Keywords In Search Engines: A Trademark Law Update, Ryan Baker
Washington Journal of Law, Technology & Arts
In March 2011, the Ninth Circuit modified the list of the most relevant factors for courts to consider when evaluating whether a business’s keyword bid on a competitor’s trademark causes a likelihood of confusion under the Lanham Act. Over ten years earlier, in Brookfield Communications v. West Coast Entertainment, the Ninth Circuit had held that using a competitor’s trademark in a website metatag for the purpose of achieving a more prominent place in search results creates “initial interest confusion” for consumers in violation of the Lanham Act. The Brookfield opinion formed what became known as the “Internet troika” test: …
Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle
Prometheus V. Mayo: Limited Implications For § 101 Jurisprudence, Jessica Belle
Washington Journal of Law, Technology & Arts
The United States Supreme Court recently confirmed the importance of the patent eligible subject matter inquiry under 35 U.S.C. § 101 when assessing whether a claimed invention (“claim”) is patentable in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The Court also stressed that patents will not be issued to a claim that simply recites a law of nature unless there are additional steps that ensure the claim is sufficiently tailored to not preempt further use of the natural law. The Court’s decision shocked the patent law community. However, decisions by lower courts since have demonstrated that Prometheus has not …
What Is The Media In The Age Of The Internet? Defamation Law And The Blogosphere, Lauren Guicheteau
What Is The Media In The Age Of The Internet? Defamation Law And The Blogosphere, Lauren Guicheteau
Washington Journal of Law, Technology & Arts
As more people turn to blogs as a source of news and information, the distinction between blogs and traditional media sources has become more complex for courts dealing with First Amendment issues. In the recent case, Obsidian Finance Group, LLC v. Cox, the United States District Court for the District of Oregon held that the defendant, a blogger, was not a member of the media for the purposes of a defamation claim. The court held that media defendants must be at least negligent to be liable for defamatory publications, but because the blogger was a non-media defendant, she was …
Update Needed? Digital Downloaders And The Innocent Infringer Defense, Colin Conerton
Update Needed? Digital Downloaders And The Innocent Infringer Defense, Colin Conerton
Washington Journal of Law, Technology & Arts
Over the past decade, the music industry has suffered unprecedented piracy and digital music has become increasingly prevalent on illegal websites. In response, the Recording Industry Association of America (RIAA) has filed lawsuits against many alleged copyright infringers who have illegally downloaded music from the Internet. A few of these alleged infringers, in an effort to reduce damages, claimed they were “innocent infringers.” Several courts ruled that the innocent infringer defense did not apply, based on 17 U.S.C. § 402(d), which precludes the defense if proper copyright notice appears on “phonorecords” (e.g., compact discs). The Supreme Court denied certiorari in …
What Your Tweet Doesn't Say: Twitter, Non-Content Data, And The Stored Communications Act, Daniel Shickich
What Your Tweet Doesn't Say: Twitter, Non-Content Data, And The Stored Communications Act, Daniel Shickich
Washington Journal of Law, Technology & Arts
A federal district court in Virginia recently held that Twitter users have no privacy rights regarding non-content information associated with their use of Twitter. The court thus affirmed that the government may obtain Twitter users’ Internet Protocol (IP) addresses without notice to the users. The users in this case were alleged to be members of WikiLeaks. The government obtained an order of production in connection with grand jury proceedings, compelling Twitter to turn over IP address data to the government. After Twitter motioned to have the order unsealed, the alleged WikiLeaks members unsuccessfully attempted to intervene to quash the order …
When Is A Phone A Computer?, J. C. Lundberg
When Is A Phone A Computer?, J. C. Lundberg
Washington Journal of Law, Technology & Arts
In United States v. Kramer, the Eighth Circuit upheld a two-level sentence enhancement for a defendant who made calls and sent text messages from a cellphone to a minor in order to lure her across state lines for criminal sexual activity. This enhancement was based on a provision in the United States Sentencing Guidelines that incorporates the definition of “computer” from the Computer Fraud and Abuse Act. The broad language of that statute encompasses not only computers—in the plainest sense—and cellphones, but also a myriad of other devices such as automobiles equipped with GPS navigation. In contrast to the …
Unchanging E-Discovery In The Patent Courts, Daniel B. Garrie, Yoav M. Griver
Unchanging E-Discovery In The Patent Courts, Daniel B. Garrie, Yoav M. Griver
Washington Journal of Law, Technology & Arts
This Article analyzes the Federal Circuit’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The Article briefly describes the purpose behind the Model Order, describes its key provisions, analyzes the Model Order to identify some areas of continuing concern, and defines predictive coding to examine the impact, or lack thereof, on the Model Order. The Author concludes that, while it is beyond refute that the Model Order is an appropriate step toward controlling and managing e-discovery, the Model Order is only the first step. In this regard, several problems, as set forth below, can potentially arise when counsel …
Personalized Medicine, Genetic Exceptionalism, And The Rule Of Law: An Analysis Of The Prevailing Justification For Invalidating Brca1/2 Patents In Association Of Molecular Pathology V. Uspto, Kristen L. Burge
Washington Journal of Law, Technology & Arts
As medicine advances toward a more personalized model, the significance of genetic information is growing exponentially. While unlocking the genetic code has advanced the state of medicine, it has also reinvigorated the debate over the boundaries of patentable subject matter. The potential clash between having access to state-of-the-art medicine and protecting intellectual property investments came to a head in the case, Association of Molecular Pathology v. USPTO (“Myriad”). This Article analyzes the legal opinion rendered by the district court through the unique lens of genetic exceptionalism—a concept previously reserved to social science and public policy. Then, this Article …
Governance Of Global Mobile Money Networks: The Role Of Technical Standards, Jane K. Winn
Governance Of Global Mobile Money Networks: The Role Of Technical Standards, Jane K. Winn
Washington Journal of Law, Technology & Arts
Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services. Demand for such cross-border remittance services may drive the development of technical standards to build global …
Privacy And Security Concerns Associated With Mobile Money Applications In Africa, Andrew Harris, Seymour Goodman, Patrick Traynor
Privacy And Security Concerns Associated With Mobile Money Applications In Africa, Andrew Harris, Seymour Goodman, Patrick Traynor
Washington Journal of Law, Technology & Arts
The rapid adoption of mobile money use in Africa raises concerns regarding the privacy and security of users, particularly in light of Financial Action Task Force recommendations requiring user transparency and the collection of transaction data. The transparency required of the now-financially-included—particularly in nations with weak adherence to the rule of law and limited privacy protections—leaves users vulnerable to abuse. Further, the increasing complexity of mobile phone use that is indicative of mobile money applications raises concerns regarding Africa’s preparedness for heightened security threats that come hand in hand with increased use. To address these problems, the authors of this …
The Reporting Of Suspicious Activity By Mobile Money Service Providers In Accordance With International Standards: How Does It Impact On Financial Inclusion?, Miriam Goldby
Washington Journal of Law, Technology & Arts
Among the obligations which countries are required to impose upon their financial institutions under the Financial Action Task Force’s (FATF) 40 Recommendations is the obligation to report suspicions of money laundering. This Article discusses the impact that a reporting regime such as that set up in the United Kingdom in response to FATF requirements is likely to have should it be set up in developing countries seeking to regulate mobile money services. This Article argues that certain features of the U.K. suspicious activity reporting regime make it unsuitable for wholesale adoption into such a context. A one-size-fits-all approach by the …
Mobile Money, Financial Inclusion And Financial Integrity: The South African Case, Vivienne A. Lawack
Mobile Money, Financial Inclusion And Financial Integrity: The South African Case, Vivienne A. Lawack
Washington Journal of Law, Technology & Arts
The usage of mobile banking and in particular, payments by means of mobile phones, has increased in recent years in South Africa, with consequent impacts from a legal and regulatory point of view. South Africa is a developing economy with a large “unbanked” sector. That is, a large segment of the population does not have bank accounts and “banking” happens through informal means. This Article deals with the legal and regulatory framework pertaining to mobile money and examines issues relating to financial integrity and financial inclusion as they present themselves in South Africa. The author states that the regulatory framework …
Mobile Money As An Engine Of Financial Inclusion And Lynchpin Of Financial Integrity, Claire Alexandre, Lynn Chang Eisenhart
Mobile Money As An Engine Of Financial Inclusion And Lynchpin Of Financial Integrity, Claire Alexandre, Lynn Chang Eisenhart
Washington Journal of Law, Technology & Arts
Few people would dispute that mobile money can be an engine of financial inclusion and has the potential to reach millions of customers, including those at the bottom of the socio-economic pyramid. Fewer though would characterize mobile money as the lynchpin of financial integrity. But financial inclusion and financial integrity have at least three tangential points to mobile money: (1) mobile money will help reduce dependency on cash, which is the common enemy of both financial inclusion and financial integrity, (2) mobile money generates data which is instrumental to the health and growth of both financial inclusion and financial integrity, …
The 2012 Revised Fatf Recommendations: Assessing And Mitigating Mobile Money Integrity Risks Within The New Standards Framework, Louis De Koker
The 2012 Revised Fatf Recommendations: Assessing And Mitigating Mobile Money Integrity Risks Within The New Standards Framework, Louis De Koker
Washington Journal of Law, Technology & Arts
Mobile money holds great financial inclusion promise, but also poses financial integrity challenges. The Financial Action Task Force (FATF)—the intergovernmental global anti-money laundering (AML) and counter-terrorist financing (CTF) standard-setting body—expressed support for financial inclusion and mobile money as a means to decrease the use of non-transparent cash in many developing countries. In February 2012, FATF adopted a new revised set of standards. This Article considers the impact of these new standards on mobile money models in developing countries. It highlights aspects of the new standards that would facilitate innovative mobile money models, but also points to questions and challenges. The …
The Role Of Anti-Money Laundering Law In Mobile Money Systems In Developing Countries, Emery S. Kobor
The Role Of Anti-Money Laundering Law In Mobile Money Systems In Developing Countries, Emery S. Kobor
Washington Journal of Law, Technology & Arts
This Article explains that the application of anti-money laundering (AML) regulation, supervision, and enforcement is relevant to financial inclusion, but is not, in itself, necessarily determinative of the success or failure of financial inclusion initiatives or their impact on economic growth. Successful payments system innovation, particularly payment tools targeting underserved markets, requires effective entrepreneurship operating in an environment of good governance and rational economic policies. AML safeguards help to deter corruption and other forms of financial crime, which helps to establish and maintain economic stability and preserve the rule of law, creating a supportive environment for innovation and financial inclusion. …
M-Payments In Brazil: Notes On How A Country's Background May Determine Timing And Design Of A Regulatory Model, Gilberto Martins De Almeida
M-Payments In Brazil: Notes On How A Country's Background May Determine Timing And Design Of A Regulatory Model, Gilberto Martins De Almeida
Washington Journal of Law, Technology & Arts
Extended periods of high-inflation in Brazil have resulted in a sophisticated platform for payment methods and a vast network of banking correspondents all over the country. Social policies have encouraged increased access to telecommunications, with the number of mobile phones exceeding the nearly 200 million inhabitants. Governmental programs intend to combine such strengths to achieve massive financial inclusion and integrity, an effort that is expected to reach dozens of millions of new beneficiaries. In that endeavor, authorities wish to foster rapid popularization of mobile payments (m-payments) while keeping sound financial controls. Availability of current technological and legal platforms has allowed …
Safaricom And M-Pesa In Kenya: Financial Inclusion And Financial Integrity, Mercy W. Buku, Michael W. Meredith
Safaricom And M-Pesa In Kenya: Financial Inclusion And Financial Integrity, Mercy W. Buku, Michael W. Meredith
Washington Journal of Law, Technology & Arts
The recent and widespread availability of affordable mobile phone technology in developing countries has paved the way for the development of a number of mobile money and electronic remittance services. One of the most successful of these services is Safaricom’s M-PESA program, launched in the East African nation of Kenya in March 2007. Since then, the program has successfully enrolled 15.2 million users, transferred more than US$1.4 trillion in electronic funds, and contributed significantly to poverty alleviation and financial inclusion efforts in rural Kenya. This Article seeks to trace the development of M-PESA in Kenya, provide a snapshot of the …
Mobile Payments In The United States: How Disintermediation May Affect Delivery Of Payment Functions, Financial Inclusion And Anti-Money Laundering Issues, Erin F. Fonté
Washington Journal of Law, Technology & Arts
Mobile banking and mobile payments in the United States have evolved differently than in other developed and developing countries. The current fervor for mobile payments in the United States is more about chasing affluence and advertising than creating access for the unbanked and underbanked. However, those individuals may eventually gain access to a broader range of financial services at lower costs depending on how the mobile payments ecosystem evolves in the United States. U.S. regulators have made it clear that existing financial services regulations apply to mobile banking and mobile payments, and the Consumer Financial Protection Bureau (CFPB) is poised …
The Role Of Uncitral Texts In Promoting A Harmonized Legal Framework For Cross-Border Mobile Payments, Luca G. Castellani
The Role Of Uncitral Texts In Promoting A Harmonized Legal Framework For Cross-Border Mobile Payments, Luca G. Castellani
Washington Journal of Law, Technology & Arts
The establishment of a regulatory environment is a condition necessary, but not sufficient, for setting up a legal environment supportive of mobile payment and banking services. Equally important is the creation of an enabling legislative environment on the legal status of electronic communications and on other relevant rules such as those on payments. In fact, existing legal frameworks, be they of statutory or contractual origin, are often insufficient to address all legal issues, especially in developing countries. Therefore, guidance in the form of international standards, such as those prepared by the United Nations Commission on International Trade Law (UNCITRAL), is …