Law Commons^™

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

The Upside Of Intellectual Property's Downside, James Gibson

James Gibson

Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the traditional upside of intellectual property: the production of valuable information goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders creates more artificial scarcity and imposes more costs on future innovators than the incentive effect warrants. This is the traditional downside of intellectual property: reduced production and impeded innovation. This article turns the traditional discussion on its head and shows that intellectual property's putative costs …

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …

Antibiotics In Food Animals: The Convergence Of Animal And Public Health, Science, Policy, Politics And The Law, Nancy Halpern

Nancy E Halpern D.V.M.

ANTIBIOTICS IN FOOD ANIMALS: THE CONVERGENCE OF ANIMAL AND PUBLIC HEALTH, SCIENCE, POLICY, POLITICS AND THE LAW

BY NANCY E HALPERN, DVM

MAY 3, 2009

ABSTRACT

The use of antibiotics in food animals, to prevent and/or control disease in these animals, has been a subject of discussion between the medical and veterinary and animal agricultural sectors and related national and international government entities for decades, because of concerns about the resulting increase in antibiotic resistance such practices facilitate. The underlying premise is that use of antibiotics in food animals leads to resistance of the bacteria consumed by humans, and reducing …

The Microchipping Of America: Human Rights Implications Of Human Bar Codes, Gena V. Mason

Gena V Mason

The implantation of microchips into human beings has spurred a recent firestorm of controversy. This year VeriChip Corp., the nation’s main manufacturer and purveyor of human microchips, went out of business in the wake of ten-year studies confirming that microchip implants had induced malignant tumors in animals. Nevertheless, the microchipping controversy is far from settled; as the industry retools for potential redevelopment of human microchips, we must engage in serious discussion of this topic. Human microchipping in an experimental setting (whether informed or not) raises issues regarding U.S. and international human rights law, potentially violating standards of human experimentation under …

The Microchipping Of America: Human Rights Implications Of Human Bar Codes, Gena V. Mason

Gena V Mason

The implantation of microchips into human beings has spurred a recent firestorm of controversy. In 2008 VeriChip Corp., the nation’s main manufacturer and purveyor of human microchips, went out of business in the wake of ten-year studies confirming that microchip implants had induced malignant tumors in animals. Nevertheless, the microchipping controversy is far from settled; as the industry retools for potential redevelopment of human microchips, we must engage in serious discussion of this topic. Human microchipping in an experimental setting (whether informed or not) raises issues regarding U.S. and international human rights law, potentially violating standards of human experimentation under …

Bridging The Accountability Gap: Rights For New Entities In The Information Society?, Bert-Jaap Koops, Mireille Hildebrandt, David-Olivier Jaquet-Chiffelle

Bert-Jaap Koops

New entities in the information society that operate at increasing distance from the physical persons ‘behind’ them, such as pseudonyms, avatars, software agents, and robots, challenge the law. One way of addressing this challenge is to attribute legal rights and/or duties in some contexts to non-humans, thus creating entities that are addressable in law themselves rather than the persons ‘behind’ them. In this article, we review existing literature on rights for non-humans, with a particular focus on emerging entities in the information society. We discuss three strategies for the law to deal with the challenge of these new entities: interpreting …

Abolish Trademark Law's Initial Interest Confusion And Permit Manipulative Internet Search Practices, Priya Singh

Priya Singh

This article discusses Trademark law’s doctrine of Initial Interest Confusion, which is currently applied to internet cases. First, it argues that the doctrine is problematic because it does not require the traditional showing of Likelihood of Confusion, it is superfluous, and it is unnecessary in the internet context. Second, it proposes that courts should instead rely on the Likelihood of Confusion analysis. Additionally, courts should acknowledge that metatags are an outdated issue, and when it comes to domain names they should make use of the ACPA (Anticybersquatting Consumer Protection Act).

Exploring The Ways To Increase Broadband Deployments: A Critical Discussion And Possible Breakthroughs For Turkey, Mehmet Bilal Unver

Mehmet Bilal Unver

How to devise and implement a broadband strategy has been figuring on the agenda of many developing countries as well as developed countries for a decade. Broadband strategy hinges upon a number of parameters, i.e. geographical restraints, availability of alternative networks, prevalence of ICT facilities, entry level prices, etc. Whether and to what extent infrastructure-based or service-based competition to be adopted is another discussion which has its repercussions in building a broadband strategy. Turkey, among these discussions, is at the cross-road as to how to build a broadband strategy in face of a number of legal and economic barriers to …

Warshak: A Test Case For The Intersection Of Law Enforcement And Cyber Security, Michael C. Mcnerney

Michael C McNerney

Often times, the lines between criminal investigations and intelligence activities can become blurred. How far can a government agency go in gathering electronic information on an American citizen suspected of a crime? What implications are there for Americans suspected of terrorist activities? The American people want their government to have the tools to keep them safe but they also want to be free from unreasonable searches and seizures. There are many difficult questions but very little settled law on the subject. Although only a small piece of the puzzle, a recent decision by the Sixth Circuit in a case called …

An Unattainable Wedge: Four Limiting Effects On The Expansion Of Nuclear Power, Tanya K. Mortensen

Tanya K Mortensen

With a cap and trade system likely imminent, concerns about the costs of generating electricity and how electrical generators can best mitigate the effects of a carbon trade system are resurfacing. As a result, interests in nuclear power are resurging world-wide. Although, the purpose of this paper is aimed at national decision making, the problems and processes that confront decision makers internationally are effectively the same as those confronting decision makers in the United States. This paper examines the feasibility of using nuclear power as a wedge to reduce CO2 emissions, and puts forth four effects that may prevent or …

An Unattainable Wedge: Four Limiting Effects On The Expansion Of Nuclear Power, Tanya K. Mortensen

Tanya K Mortensen

With a cap and trade system likely imminent, concerns about the costs of generating electricity and how electrical generators can best mitigate the effects of a carbon trade system are resurfacing. As a result, interests in nuclear power are resurging world-wide. Although, the purpose of this paper is aimed at national decision making, the problems and processes that confront decision makers internationally are effectively the same as those confronting decision makers in the United States. This paper examines the feasibility of using nuclear power as a wedge to reduce CO2 emissions, and puts forth four effects that may prevent or …

A Fair And Implicitly Impartial Jury: An Argument For Administering The Implicit Association Test During Voir Dire, Dale Larson

Dale K Larson

While many refer to jury selection as a science, others—perhaps more accurately—liken the process to voodoo. The jury consulting industry has exploded over the last thirty years, with many attorneys paying large amounts for voir dire for erratic and unpredictable results and a general inability to detect bias accurately in potential jurors. One explanation for these poor results, even when using the latest findings in the scientific jury selection field, is that the tools currently available to attorneys and jury consultants give us only a partial picture of the individuals in question. Currently, voir dire consists of oral questioning and …

Formation Of Invention/Joint Invention And Recognition Of Inventor/Joint Inventor, Kotaro Kageyama

Kotaro Kageyama

Abstract: Formation of Invention/Joint Invention and Recognition of Inventor/Joint Inventor Kotaro Kageyama There have not been clear criteria etc. to determine the formation of an invention and to recognize an inventor, especially those of a joint invention and joint inventors, not only in Japan but also the US and other countries. In this paper, the stages of the formation of an invention are divided into conception and its embodiment. The essence of the former is considered as "conception based on a principle," while the essence of the latter is as "establishment of a model." It is also suggested that an …

Invoking And Avoiding The First Amendment: How Internet Service Providers Leverage Their Status As Both Content Creators And Neutral Conduits, Rob M. Frieden

Rob Frieden

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values. While professing to support marketplace resource allocation and a regulation-free Internet, the …

The Neuropsychology Of Justifications And Excuses: Some Problematic Cases Of Self-Defense, Duress And Provocation, Theodore Y. Blumoff

Theodore Y. Blumoff

In a famous address to the Aristotelian Society, Professor J. L. Austin provided dictum that has become a part of the conventional wisdom in the jurisprudence of our criminal law. His thesis simultaneously acknowledges the evident moral distinction between justifications and excuses, on the one hand, and the tendency, on the other, for the two doctrines to overlap and confound. From the perspectives of moral philosophy and jurisprudence, the distinction is clear. Justifications are socially approved (or, at least, not disapproved); excuses are not approved, but they obtain because the actor’s conduct reflects a substantial (and therefore judicially acknowledged) cognitive …

The Content/Envelope Distinction In Internet Surveillance Law, Matthew J. Tokson

Matthew J Tokson

Whether a component of an Internet communication is classified as “content” or “envelope” information determines in large part the privacy protection it receives under Constitutional and statutory law. Courts and Internet law scholars have yet to offer a means of determining the content/envelope status of unique aspects of Internet communications—from email subject lines to Web browsing data. As a result, the level of legal protection afforded to such communications remains a vexing and unresolved question of Internet law. This article develops a legal framework for distinguishing content from envelope information in unique areas of Internet communications. Drawing on a practical …

Spectrum Reform: The Theory, Practice, Politics And Problems, William T. Webb

William T Webb

Regulation of the radio spectrum is just over 100 years old – in the UK the first act of Parliament in this area was in 1904. For almost all that period, the regulator has managed the spectrum in a very direct “command & control” manner. As market economics have been more widely used across other areas of our economy there has been increasing interest in utilising a market in radio spectrum to deliver greater economic benefits. Actually achieving this has proven to be a slow, contentious and complex process. Various countries have played leading roles at different stages of the …

"I Agree" To Criminal Liability: Lori Drew's Prosecution Under § 1030(A)(2)(C) Of The Computer Fraud And Abuse Act, And Why Every Internet User Should Care, Nicholas R. Johnson

Nicholas R. Johnson

This article argues that Lori Drew's prosecution for cyberbullying under the Computer Fraud and Abuse Act, 18 U.S.C. 1030 et. seq., represents too broad an application of that statute, which was passed by Congress in 1984 as an anti-hacking provision. More fundamentally, it argues that violation of a public website's terms of service should not constitute "unauthorized access" sufficient to trigger criminal liability under the Act. Such an narrow reading is in line with Congressional intent, as well as traditional notions of due process and statutory interpretation.

Getting To Conscionable: Negotiating Virtual Worlds' End User License Agreements Without Getting Externally Regulated, Brendan James Gilbert

Brendan James Gilbert

Currently, virtual world governance is the product of end user license agreements, contracts which attempt to provide a complete legal and enforcement system to the virtual world. This method of governance is flawed, however, and results in participant frustration. Alternative approaches that have been advanced so far include governmental regulation, which has begun in some countries. However, numerous pressures and precedent resist such an application in the United States. The following argues against keeping just the license agreements as the body of law, and also against a wholesale shift toward governmental regulation.

Instead, a compromise—establishing a standards-setting body of developers, …

The Inevitable Disclosure Doctrine: A Common-Sense Application That Considers The Rights Of Trade Secret Holders And Employees, Eduardo M. Gonzalez

Eduardo M Gonzalez

Under the inevitable disclosure doctrine, a court may enjoin a person accepting employment with a direct competitor of a former employer to protect a trade secret. Most states that have adopted the doctrine do not limit its application. Such broad application of the doctrine can be harsh and unfair if the former employee lacked any intent to disclose a trade secret. Moreover, it encourages frivolous lawsuits by employers and discourages bargained-for non-compete agreements. Some states, notably California, citing these policy concerns, have declined to adopt the doctrine. This extreme approach is equally troublesome because it ignores that the protection of …

Technology And The Crime Society: Rethinking Legal Protection, Bert-Jaap Koops

Bert-Jaap Koops

Building on existing insights of the risk society and the surveillance society, this article sketches the contours of the emerging crime society, where every form of human behaviour is perceived in terms of potential criminal risk and controlled by means of criminal law. It articulates the pivotal role of technology in the ever increasing footprint of criminal law, as it often facilitates criminalisation, expanding policing, preventative and architectural approaches, and pervasive surveillance. Criminal law is shifting from a last resort to a primary tool of social control: criminal risk governance. This paradigm shift goes hand in hand with a shift …

Virtual Property, Real Concerns, Nelson S. Dacunha

Nelson S DaCunha

The status of digital property protection, especially in virtual worlds, is uncertain to say the least. Several theories have been postulated supporting the case for property rights for players of virtual worlds. Game designers have likewise provided support for maintaining full rights to all aspects of their games. North American society outside of the gaming world, and the legal establishment have written off virtual world property as either child’s play, a passing fad, or too complex to regulate effectively. Virtual worlds, however, have a large economic foothold and deal with large amounts of real money. These virtual worlds will likely …

On Abstraction And Equivalence In Software Patent Doctrine: A Reply To Bessen, Meurer And Klemens, Andrew Chin

Andrew Chin

Recent books by Professors James Bessen and Michael Meurer and by economist Ben Klemens have argued that software warrants technology-specific treatment in patent doctrine. This article argues that the authors' categorical claims about software are unsupported by computer science, and therefore cannot support their sweeping proposals regarding software patents as a matter of law. Such proposals therefore remain subject to empirical examination and critique as policy choices, and are unlikely to be achieved through judicially developed doctrines.

(Non)Obviousness Of Claims To Genetic Sequences: Finding The Middle Ground, Mark Polyakov, Eugene Goryunov

Mark V Polyakov

This article urges that the obviousness jurisprudence for claims to genetic sequences be overhauled to conform with the standard stated in KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007). An obviousness inquiry under 35 U.S.C. § 103 requires a determination of whether a skilled artisan would have found the claimed invention obvious in light of the analogous prior art. We demonstrate that the Court of Appeals for the Federal Circuit has established an overly rigid standard for determining the obviousness of claims directed to genetic sequences. This analysis is primarily concerned with whether structurally similar genetic sequences …

Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

This Article considers the role of property rights in efforts to transport, inject, and store underground hundreds of million of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to combat dangerous climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement CCS, private operators and state and federal governments must be able to access hundreds of millions of acres of “pore space” roughly a kilometer below the earth’s surface in which to store …

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh

The New Regulation: From Command To Coordination In The Modern Administrative State, Robert B. Ahdieh

Robert B. Ahdieh