Law Commons^™

Deplatforming, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Deplatforming in the technology sector is hotly debated, and at times may even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social-media platforms as common carriers or public utilities, implying that the imposition of a duty to serve the public would restrict them from deplatforming individuals and content.

But, in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform-—to exclude content, individuals, or businesses from critical services—- has been commonly and regularly debated throughout American history. In the common …

Surveillance Technologies And Constitutional Law, Christopher Slobogin, Sarah Brayne

Vanderbilt Law School Faculty Publications

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication …

Fair Play: Notes On The Algorithmic Soccer Referee, Michael J. Madison

Vanderbilt Journal of Entertainment & Technology Law

The soccer referee stands in for a judge. Soccer’s Video Assistant Referee (VAR) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations.

Chaos Or Continuity? The Legal Profession: From Antiquity To The Digital Age, The Pandemic, And Beyond, Jan L. Jacobowitz

Vanderbilt Journal of Entertainment & Technology Law

The idea of individuals entering into a social contract to relinquish some of their rights in order to have a civilized society protect their fundamental rights originates at least as early as ancient Greece, where it was espoused by the philosopher Epicurus. Implicit in a social contract is the enactment of laws to achieve a democratic, civilized society and the concept of advocacy. Advocacy exists to protect an individual’s rights. The legal profession originated organically as the citizens of ancient Greece and Rome recognized the need for professional advocates. From this nascent beginning, the legal profession has evolved over centuries …

The Evolving Technology-Augmented Courtroombefore, During, And After The Pandemic, Fredric I. Lederer

Vanderbilt Journal of Entertainment & Technology Law

Even before the COVID-19 Pandemic, technology was changing the nature of America’s courtrooms. Access to case management and e-filing data and documents coupled with electronic display of information and evidence at trial, remote appearances, electronic court records, and assistive technology for those with disabilities defined the technology-augmented trial courtroom. With the advent of the Pandemic and the need for social distancing, numerous courts moved to remote appearances, virtual hearings, and even virtual trials. This Article reviews the nature of technology-augmented courtrooms and discusses virtual hearings and trials at length, reviewing legality, technology, human factors, and public acceptance, and concludes that …

Race Cartels: How Constructor Collaboration Is Curbing Innovation In Formula 1, Chandler C. Gerard-Reimer

Vanderbilt Journal of Entertainment & Technology Law

Formula 1 is in the midst of a copycat scandal: technology has made it possible for teams to reverse engineer clones of competitors’ race cars. This is a less than ideal state of affairs for the championship series, which prides itself on being the pinnacle of motorsport and automotive innovation, thanks in large part to the cars’ rapid rate of technological advancement. In order to address this problem, the Fédération Internationale de l’Automobile (FIA), Formula 1’s governing body, must increase independent innovation efforts by amending the technical regulations to restrict the extent of presently allowed inter-team collaboration. Worried that the …

Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in …

'Rifled Precision': Using E-Discovery Technology To Streamline Books And Records Litigation, Joshua A. Manning

Vanderbilt Journal of Entertainment & Technology Law

In 1993, the Delaware Supreme Court urged stockholders to use the "tools at hand" to flesh out complaints in derivative lawsuits. The plaintiffs' bar got the message. In the years since that proclamation, the Delaware Court of Chancery has seen dramatic increases in so-called Section 220 litigation-stockholders exercising their statutory right to inspect a company 's books and records. As Delaware courts have made it harder for stockholders to challenge merger transactions, this trend has only intensified. Due to increased filings, as well as other structural hurdles, these "summary proceedings" have begun to drag, with many requiring full trials. Because …

Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector- is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets …

Introduction: The Power Of New Data And Technology, Laura E. Dolbow

Vanderbilt Law Review

Modern technology has revolutionized the law. Computers drastically expanded the scope and speed of access to legal information. Unlike the days when lawyers had to climb ladders in the stacks to find specific statutes or cases in printed reporters, Westlaw brings up thousands of resources at the touch of a fingertip. Beyond transforming legal research, new data and technology have transformed the law in two other powerful ways: they have made the law more accessible to nonlawyers, and they have made it possible for lawyers to gather information about how the law is being executed. The articles in this Section …

Just What The Doctor Ordered: Protecting Privacy Without Impeding Development Of Digital Pills, Amelia R. Montgomery

Vanderbilt Journal of Entertainment & Technology Law

Using technology, humans are receiving more and more information about the world around them via the Internet of Things, and the next area of connection will be the inside of the human body. Several forms of "digital pills" that send information from places like the human digestive tract or bloodstream are being developed, with a few already in use. These pills could stand to provide information that could drastically improve the lives of many people, but they also have privacy and data security implications that could put consumers at great risk. This Note analyzes these risks and suggests that short-term …

Secondary Data: A Primary Concern, Kelsey L. Zottnick

Vanderbilt Journal of Entertainment & Technology Law

This Note addresses privacy concerns implicated by rising secondary data mining. Secondary data mining is the use of personal information for a purpose other than the original. This complex technology drives billions of dollars in commercial industry yet remains largely unregulated. This Note examines the current state of the data mining industry and the behavioral fallacies that belie societal concerns about online privacy. Further, relevant federal, state, and constitutional laws appear outstripped by these technological advances. An analysis of potential privacy solutions examines the advantages and disadvantages of implementing each one through the privacy community, the federal government, and the …

Back To The Future, Michael A. Newton

Vanderbilt Law School Faculty Publications

This essay refocuses the debate over autonomous weapons systems to consider the potentially salutary effects of the evolving technology. Law does not exist in a vacuum and cannot evolve in the abstract. Jus in bello norms should be developed in light of the overarching humanitarian goals, particularly since such weapons are not inherently unlawful or unethical in all circumstances. This essay considers whether a preemptive ban on autonomous weapons systems is likely to be effective and enforceable. It examines the grounds potentially justifying a preemptive ban, concluding that there is little evidence that such a ban would advance humanitarian goals …

Making Patents Useful, Sean B. Seymore

Vanderbilt Law School Faculty Publications

It is axiomatic in patent law that an invention must be useful. The utility requirement has been a part of the statutory scheme since the Patent Act of 1790. But what does it mean to be useful? The abstract and imprecise nature of the term combined with the lack of objective criteria for assessing it make utility the most malleable patentability requirement. As the invention landscape has evolved over time, the Patent Office and the courts have exploited this malleability to create technologically specific utility standards — de minimis for some inventions, but considerably more stringent for others. This has …

Cut In Tiny Pieces: Ensuring That Fragmented Ownership Does Not Chill Creativity, Henry H. Perritt Jr.

Vanderbilt Journal of Entertainment & Technology Law

The market for video entertainment is growing and becoming more diverse as technology reduces barriers to entry for small, independent moviemakers and distributors and increases consumers' ability to access the media of their choice. The growing complexity of the market, however, increases transaction costs for new entrants who must obtain licenses to copyrighted music, characters, storylines, or scenes that they incorporate into their movies. The entertainment bonanza offered by new technologies may not be realized in practice because of market failure. The purposes of the Copyright and Patents Clause are frustrated because creators of new works wishing to use new …

Working Toward Spontaneous Copyright Licensing: A Simple Solution For A Complex Problem, Tanya M. Woods

Vanderbilt Journal of Entertainment & Technology Law

As the web evolves, so too are discussions on how to manage the rights of copyright owners online. Finding a solution that is balanced and that accounts for the international nature of the Internet is essential. While many have attempted to craft such a solution, a model that accommodates the spontaneity of copyright content users and that recognizes the multi-territorial nature of the Internet has yet to materialize. For this reason, this Article formulates a macro-level conceptual approach to building a practical copyright licensing model that could generate spontaneous digital copyright licenses to accommodate the creative impulses of web users …

Uneasy Lies The Head That Wears The Crown: Why Content's Kingdom Is Slipping Away, Jonathan Handel

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the ongoing power struggle between the content industries (with a particular focus on Hollywood) and the technology industry. These two sectors are intertwined like never before, yet their fates seem wildly divergent, with content stumbling while distribution technology thrives.

The Article begins by illustrating that, even before the recession took hold, traditional paid content was in trouble, and that this was and is true across a range of distribution platforms and content types, including theatrical motion pictures, home video, network television, music, newspapers, books, and magazines. The Article next posits six reasons for content's discontent: supply and …

Protecting The Future: A Strategy For Creating Laws Not Constrained By Technological Obsolescence, Jay Campbell

Vanderbilt Journal of Entertainment & Technology Law

This note will examine the obsolescence of laws through the lens of recent cases relating to "wiretapping laws" and propose the creation of laws that protect certain rights independent of technology. Recently, a number of courts have held that laws created in the mid-1980's to protect communications do not apply to Internet-related communications, reasoning that the method of transmission falls outside the language of the statutes. As a result, e-mail and other forms of Internet-based communications are treated differently from older forms of communication such as telephone conversations. This note will propose a broad legislative solution with the aim of …

Arresting Vaulting Pole Technology, Russ Versteeg

Vanderbilt Journal of Entertainment & Technology Law

Generally speaking, sports rules perform at least six functions, many of which overlap. Sports rules: 1) define the game; 2) promote safety; 3) prohibit unfair advantage; 4) promote administrative efficiency; 5) foster good sportsmanship; and, 6) promote fairness. Presumably, as sports evolve, rule makers must seriously consider at least two important questions when deciding how to respond to any given technological innovation that affects a sport. They must consider its potential impact on the integrity of the sport (i.e., how it affects both the definition of the game as well as whether it creates an unfair advantage and/or otherwise hinders …

A Traitor In Our Midst: Is It Your Tivo?, Teresa W. Chan

Vanderbilt Journal of Entertainment & Technology Law

Part I of this Note provides a backdrop of the different aspects of privacy law, focusing on the federal statutory schemes that are applicable to the issue of information gathering and the different possible uses of that information as a violation of privacy rights that have appeared in similar technology cases up to this point in time. This section will also focus on the capabilities of TiVo in more depth.

Part II of the Note examines both of TiVo's questionable actions: first, whether gathering information to sell to advertisers and networks in the form of aggregate data violates privacy rights; …

Anti-Circumvention: Has Technology's Child Turned Against Its Mother?, Terri B. Cohen

Vanderbilt Journal of Transnational Law

Because its function is to protect and support innovation, copyright has been deemed a child of technology. Yet, as copyright laws increase the scope of protection for copyrighted material, one may wonder when such protection will begin to stymie, rather than encourage, emerging technology. The global trend toward internationalizing copyright protection has resulted in the World Intellectual Property Organization (WIPO) Copyright Treaty, which was intended, in part, to bring international copyright protection into the digital age. The treaty, however, extends traditional copyright protections by including a requirement that member nations implement anti-circumvention provisions into their laws.

Great debate has emerged …

Beyond The Blackboard: Regulating Distance Learning In Higher Education, Leslie T. Thornton

Vanderbilt Journal of Entertainment & Technology Law

It is not so surprising that traditional institutions of higher education have been relatively slower than businesses, for example, to embrace the potential of the new technologies, and have lost students to those institutions and businesses which have been more willing to change. But technology is playing an enormous role in the shape, size, and direction of education, and it's not waiting for the leaders of traditional institutions--or anyone else, for that matter--to join the club.

This Article examines the scope and impact of that role, specifically as it has developed through a new trend toward online "distance education" or …

Technology As A Panacea: Why Pregnancy-Related Problems Should Be Defined Without Regard To Mitigating Measures Under The Ada, Jessica L. Wilson

Vanderbilt Law Review

In Gabriel v. City of Chicago, the Northern District of Illinois held that, while pregnancy is not a per se disability under the Americans with Disabilities Act ("ADA"),' pregnancy-related problems can be considered disabilities under the ADA. The holding in Gabriel, however, was not unique, as many other district courts have reached the same conclusion regarding pregnancy-related problems. The real question in cases such as Gabriel is whether the pregnancy-related problem at issue constitutes a disability under the ADA. This question requires an analysis of whether the pregnancy-related problem is a physical impairment that substantially limits a major life activity …

Biodiversity: Opportunities And Obligations, Jeffrey P. Kushan

Vanderbilt Journal of Transnational Law

Mr. Kushan discusses the technology transfer provisions of the Convention on Biological Diversity, and outlines three themes found in the Convention related to technology transfer: benefit sharing, sovereign rights, and intellectual property rights protection. After briefly explaining the first two themes, the Article focuses on the third theme, the protection (or lack thereof) of intellectual property rights in the Convention. Mr. Kushan explains how the ideological split on intellectual property rights protection between the North and South found its way into the Convention and created ambiguous messages on intellectual property rights. Southern countries, who fear that strong intellectual property rights …

Review Essay: The Future Of National Security Export Controls, Donald H. Caldwell, Jr.

Vanderbilt Journal of Transnational Law

In calling for more narrowly focused controls, this study echoes the Bucy Report of 1976, one that called for restrictions on revolutionary rather than evolutionary technology.56 Yet more than a decade after that report was issued, United States export control lists are still weighted toward restricting all exports containing useful technology whether or not the export of an item would advance the capabilities of American adversaries to any degree.17 Unless industry leaders seize the opportunity to reduce the scope of national security export controls as Congress prepares to reauthorize the Export Administration Act, this report, like the Bucy Report before …

Was The Sigh Of Relief Premature? The Investment Canada Act, Susan D. Romer

Vanderbilt Journal of Transnational Law

On June 30, 1985 the Canadian Government enacted the Investment Canada Act (ICA), evoking a sigh of relief from the United States in vestment community. ICA replaced the Foreign Investment Review Act (FIRA). Burdensome Canadian regulations have impeded foreign investment in Canada throughout the last two decades. FIRA, in particular, blocked the free flow of foreign investment into Canada. In contrast, ICA's primary goal is "to encourage an inflow of capital and technology into Canada." As a result, United States investors have openly embraced ICA's arrival.

Once the initial euphoria wanes, however, and the United States investment community encounters ICA …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Casebook on Carriage by Sea.

By E.R. Hardy Ivamy

London: Lloyd's of London Press, 1982. Pp. xxxix, 203. £11.50.

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Casebook on Shipping Law

By E.R. Hardy Ivamy

London: Lloyd's of London Press, 1982. Pp. xxx, 205. £11.50.

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Regional Development Agencies in Europe

Edited by Douglas Yuill

Hampshire, England: Gower, 1982. Pp. vii, 449.$44.50.

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United States Trade Policy Legislation: A Canadian View

By Rodney de C. Grey

Montreal: The Institute for Research on Public Policy, 1982. Pp. xvii, 130. $7.95.

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Transfer of Technology: U.S. Multinationals and Eastern Europe

By Marilyn L. Liebrenz

New York: Praeger Publishers, 1982. …

Copyright, Congress And Technology: The Public Record, L. Ray Patterson

Vanderbilt Law Review

This early history of copyright would be of little more than antiquarian interest except that it demonstrates the source of the confusion regarding the function of copyright. Although generally viewed as a right of the author, copyright has continued to function as a trade regulation device. Before the advent of computers and copying machines, this point was of relatively little importance, but IBM and Xerox have complicated copyright law enormously. Thus, in attempting to isolate the issues, it is helpful to view the law of copyright as statutorily creating unfair competition based on the doctrine of misappropriation. It is both …

United States Policy Toward The Transfer Of Proprietary Technology: Licenses, Taxes, And Finance, Gary C. Hufbauer, George N. Carlson

Vanderbilt Journal of Transnational Law

Much of the nation's technology is developed in public institutions, especially universities and government research laboratories, and is freely available through libraries and classrooms. Roughly one-half of total United States research and development expenditures are funded by the United States Government, and the findings from this research are generally available to citizens and foreigners at little or no charge. In addition, a great deal of technology that was once guarded by patents or trade secrets has since passed into the public domain. This paper ignores these freely available segments of the national technology base and discusses proprietary technology.

Technology Transfer As An Issue In North/South Negotiations, Homer O. Blair

Vanderbilt Journal of Transnational Law

For a number of years, negotiations have been taking place on an international scale, usually under the auspices of the United Nations or one of its specialized agencies, on a wide variety of subjects involving technology transfer between the developed countries (the North) and the less developed or developing countries (the South). Three primary groups are involved in the United Nations negotiations. The first is known as the Group of 77, which now includes more than 120 developing countries, including countries in South and Central America, Africa, and Asia. Within this group the degree of development varies from countries such …