Law Commons^™

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Daniel L. Brenner

ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …

Scholarly Journals And The Open Access Conundrum, Colin B. Sakumoto

Colin B Sakumoto

This paper examines the desirability and feasibility of open access scholarly journals with particular emphasis on the parties shaping the production of these journals. In examining how the current publishing model will shape the implementation of open access publishing, analysis of the obstacles likely to hinder implementation is given in depth. Finally, a number of measures are suggested to help build the momentum needed to one day realize a widespread open access publishing model.

Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween

Gretchen S. Sween

ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or nearly unanimous. Moreover, the Supreme Court’s rhetoric in formulating …

I Own The Pipes, You Call The Tune. The Net Neutrality Debate And Its (Ir)Relevance For Europe, Andrea Renda

Andrea Renda

The debate of the so-called “net neutrality” has been under the spotlight in the US for many years, whereas many believed it would not become an issue in Europe. However, over the past few months the need to revise the current regulatory framework to encourage investment in all-IP networks has led to greater attention for net neutrality and its consequences for investment and competition. After the Commission adopted a “light-touch” approach to the issue at the end of 2007, the European Parliament has started to reconsider the issue, and it is reportedly considering a move towards more pro-neutrality rules. This …

Lock Down On The Third Screen: How Wireless Carriers Evade Regulation Of Their Video Services, Rob M. Frieden

Rob Frieden

Wireless handsets increasingly offer subscribers a third screen for accessing the Internet and video programming. The converging technologies and markets that make this possible present a major regulatory quandary, because national regulatory authorities seek to maintain mutual exclusivity between regulated telecommunications services and largely unregulated information services. Many existing and emerging services do not easily fit into one or the other regulatory classification, nor can the Federal Communications Commission determine the appropriate classification by extrapolating from the regulatory model applied to existing or discontinued services. By failing to specify what model applies to services appearing on cellphone screens, the FCC …

Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann

Ryan M Seidemann

Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Forensic Genetics And The Ascendancy Of Modern “Race Science:” Establishing The Inadmissibility Of Dna Estimates Of Race, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to …

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.

How To Save The Recording Industry?: Charge Less, Zac Locke

Zac Locke

“How much is music worth?” It is painfully clear that the traditional fifteen dollars charged for a packaged CD is too much. CD sales declined another fourteen percent in 2007, on top of years of similar erosion. As selling music online becomes the way of selling music of the future, record labels, music publishers and music e-tailers must find the ideal price point for their product. This Article defines the ideal price point at the price where the profit is maximized while making it easier for consumers to buy a song rather than download it for free. Technology, through replacing …

Regulating Search, Viva R. Moffat

Viva R. Moffat

With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.

In this paper, I …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

The Evolution Of Gplv3 And Contributor Agreements In Open Source Software, George E. Finney

George E Finney

Innovation in the computer software industry over the past 15 years increased at a frantic pace thanks in part to the Open Source Software movement. This community of software developers uses legal methodologies to enforce rights and induce others to follow their lead and with openness has come more innovation. The Free Software Foundation’s General Public License (GPL) in particular embodies this spirit and uses a kind of recursive philanthropy or an Open Source-only sandbox, which requires other developers to create their software under licenses with compatible philosophies.

How the propagation of these licenses effects innovation in the software industry …

The Impact Of Government-Mandated Public Access To Biomedical Research: An Analysis Of The New Nih Depository Requirements, Kristopher A. Nelson

Kristopher A Nelson

On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008. The bill, which became Public Law 110-161, contained a new requirement that manuscripts developed through funding by the National Institutes of Health (NIH) be made available to the public, free of charge, within one year after publication. This new mandatory requirement struck a compromise position between the existing pay-to-access model of private journal publishers and the potential free-for-all of the public domain. But did it go far enough? Should Congress have adopted a more aggressive policy of opening access to research? Alternatively, did Congress go too far, …

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional "bundle" of rights, patents secure only a negative right to exclude. In exploring the history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding legal doctrines, …

Paging King Solomon: Towards Allowing Organ Donation From Anencephalic Infants, Fazal Khan

Fazal Khan

The article, Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants, argues that organ donation from anencephalic infants is ethically and legally justifiable. Anencephaly is a medical condition characterized by a lack of brain development above the brainstem, so such children often lack a cerebrum, cerebellum and a skull. With an intact brainstem, these children can maintain heart and lung function. Without higher brain functioning though, these children are not capable of human consciousness and they typically have very short life spans measured in days or weeks. The way in which an anencephalic infant dies typically destroys the suitability …

Electronic Contracting In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether an electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China and is enforceable in China’s courts?

BRIEF ANSWER

An electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China, PRC. Statutorily, Chinese law enables electronic contracting by giving the same legal force to electronic signatures and data messages, as to traditional ink signatures and paper documents. Lack of payment systems, high costs to businesses of adopting …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

Common Sense: Treating Statutory Non-Obviousness As A Novelty Issue, N. Scott Pierce

N. Scott Pierce

Title 35 of United States Code, at Section 103, limits patent protection to subject matter that would not be “obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The requirement was introduced as a statute by the Patent Act of 1952, but, according to the legislative history, was a codification of judicial precedent. The origin of that precedent is widely attributed to the 1851 Supreme Court decision of Hotchkiss v. Greenwood, 52 U.S. 248 (1851). However, declaration of Hotchkiss as a watershed moment in legal history …

Parental Rights In Myspace: Reconceptualizing The State’S Parens Patriae Role In The Digital Age, Sheerin N. Shahinpoor

Sheerin N. Shahinpoor

The law grants parents a great deal of leeway in their child-rearing decisions, including choices in the context of their children’s internet use. But there is a harm about which many parents and state and federal governments are unaware: reputational harm. Children and teenagers’ current internet use put them at risk of permanently harming their reputations, and there are no protective measures in place, whether educational or regulatory. They are posting personal information on the internet at an alarming rate mostly via social networking sites like MySpace.com and Facebook.com without an awareness of the present and long-term consequences, such as …

United States V. O’Keefe: Do The Federal Rules Of Civil Procedure Provide The Proper Framework For Managing “Data Dumping” In A Criminal Case?, David W. Degnan

David W Degnan

In 2008, two criminal cases addressed large amounts of unintelligible documents being dumped on the unprepared defendant: United States v. O’Keefe and United States v. Graham. O’Keefe teaches that when the Rules of Criminal Procedure are silent in a criminal case, the civil discovery rules provides a thoughtful and well reasoned answer for how to handle the production of large quantities of unintelligible documents stored electronically. Graham, on the other hand, did not apply the civil rules to a comparatively similar criminal data dumping case, but that case did re-emphasize the need and the duty to manage electronic discovery before …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

this article addresses both the theoretical and practical elements of M&A due diligence regarding IP and IT, with an emphasis on recent developments.

From Nuclear War To Net War: Analogizing Cyber Attacks In International Law, Scott James Shackelford

Scott Shackelford

On April 27, 2007, Estonia was attacked by a computer network causing widespread damage. It is currently unclear what legal rights a state has as a victim of a cyber attack. Even if Estonia could conclusively prove that it was Russia, for example, behind the March 2007 attack, could it respond with force or its own cyber attack? There is a paucity of literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (“IW”) on national and international security. Treatments of IW outside the orthodox international humanitarian law (“IHL”) framework are nearly …

Pirates Among The Second Life Islands – Why You Should Monitor The Misuse Of Your Intellectual Property In Online Virtual Worlds, Ben Quarmby

Ben Quarmby

Virtual online worlds such as Second Life – a world in which users can live, work and purchase virtual goods, services and real estate – have enjoyed a well-documented explosion in popularity. Their success, however, has not come without some degree of turbulence. Relying on the example of Second Life, this article will address one of the primary sources of concern to arise in connection with these worlds: the dramatic escalation in trademark and copyright violations in virtual world and its impact on real-world individuals or business entities. Given that users have the ability to design and create virtual property …

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

No abstract provided.

Intellectual Property And Information Technology Due Diligence In Merger And Acquisition Transactions, Martin B. Robins

Martin B. Robins

This article is intended to address both the theoretical and practical elements of M&A due diligence associated with intellectual property and information technology issues.

Network Neutrality: Laissez Faire Approach Or Not?, Rebecca Wong Dr

Dr Rebecca Wong

The paper discusses the topical subject of network neutrality, from a US and European legal perspective. Whilst acknowledging the plethora of literature on network neutrality, it argues that regulation in favour of network neutrality should not be confined with the US/European borders but that network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality, before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the US to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, …

“The Issues Of Personal Privacy And Internet – A Critical Analysis Of Indian Position And International Scenario”, Nehaluddin Ahmad

Dr.Nehaluddin Ahmad

Abstract The development of technology in the communications industry over the last decade has witnessed the emergence of several relatively new legal and ethical issues, for which no concrete answers are to be found yet. Such technology is, however, liable to be misused by both, individuals and state machinery. That balance is now being shifted by two factors working in combination: on the one hand emerging information and communications technologies and their commercial use and governmental applications.

Communication, speech and expression undoubtedly constitute some of the most basic liberties of individuals and, to a large extent, can be considered inalienable. …