Law Commons^™

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Information Privacy As A Function Of Facial Recognition Technology And Wearable Computers, Woodrow Barfield

ExpressO

As technological advances are made in the design of smart sensors, the issue of privacy in public places, first discussed by Warren and Brandeis in 1890, becomes an important topic for law and policy. This paper examines issues of privacy that are impacted when an individual’s image is recorded by a video-based wearable computer, analyzed using facial recognition software, and uploaded to the internet. While the Constitutional basis of search and seizure law for individual’s placed under video surveillance is reviewed, a particular focus of the paper is on a less investigated but emerging area of concern, the video recording …

Law And The Science Of Networks: An Overview And An Application To The "Patent Explosion", Katherine J. Strandburg

ExpressO

The network may be the metaphor of the present era. A network, consisting of “nodes” and “links,” may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights -- or another of a virtually limitless variety of systems of connected “things.” The past few years have seen an explosion of interest in “network science,” which seeks to move beyond metaphor to analysis in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

The (Practical) Meaning Of Property, Vincent F. Chiappetta

ExpressO

I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

Open Access In A Closed Universe: Lexis, Westlaw And The Law School, Olufunmilayo B. Arewa

ExpressO

This paper considers issues of open access from the context of the broader legal information industry as a whole. The structure and contours of the legal information industry have shaped the availability of online open access publishing of legal scholarship. The competitive duopoly of Lexis and Westlaw is a particularly important factor in considerations of open access. Also significant is the relationship between Lexis and Westlaw and law schools, which form an important market segment for both Lexis and Westlaw. This paper begins by considering the important role information plays in the law. It then notes the increasing industry concentration …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

ExpressO

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who for a number of reasons was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings and then restrict future borrowings and reinterpretations of his works. Looking at the operation and uses of copyright in the specific instance of George Gershwin’s musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright rules may not adequately contemplate actual practices of music …

Piracy, Biopiracy And Borrowing: Culture, Cultural Heritage And The Globalization Of Intellectual Property, Olufunmilayo B. Arewa

ExpressO

Discussions of both “piracy” and “biopiracy” often start from questionable assumptions about the nature of borrowing. In addition, legal treatment of local or traditional knowledge is often based on inadequate conceptions of the nature of culture and borrowing among cultures. Uses of local or traditional knowledge are embedded within an at times contentious discourse between North and South and have led to accusations of misappropriation, exploitation and “biopiracy.” This discourse reflects historical hierarchies of culture and power that continue to exert a strong influence on discourse, policy and the shape of legal doctrine. Many countries in the South lack the …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

The Expressive Impact Of Patents, Timothy R. Holbrook

ExpressO

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical.

There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

The Market For Private Dispute Resolution Services--An Empirical Re-Assessment Of Icann-Udrp Performance, Jay P. Kesan, Andres A. Gallo

ExpressO

The impressive growth of the Internet in the 1990s and the boom of the e-economy generated a competition for domain names in the most coveted of the top level domain names, i.e., the .com space. The other original generic top-level domain names (gTLDs) open to commercial use, .org, and .net, were also in demand from businesses. Other types of top-level domain names, especially the country code TLDs (ccTLDs), were of little commercial value, and their registrations were not as important as the gTLDs.

In 1997, partly because of the expansion of the Internet to the international sphere, the U.S. government …

Owning Music: From Publisher's Privilege To Composer's Copyright, Michael W. Carroll

ExpressO

More than four years after Napster demonstrated the power of the Internet as a means of distributing music, we still are in the midst of a cultural and legal debate about what the respective rights of music copyright owners, follow-on creators, disseminators, and purchasers should be. A common assumption underlying much of the debate is that whatever settlement emerges, it will apply equally to all forms of expression. This Article questions that assumption by investigating the early history of copyright in music.

For the first time in legal scholarship, the Article reveals and examines the distinct early history of copyright …

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Fine Art Online: Digital Imagery And Current International Interpretations Of Ethical Considerations In Copyright Law, Molly A. Torsen

ExpressO

This writing explores the fast-changing intersection of law, technology and ethical considerations related to the visual arts. My paper explores differences in domestic intellectual property laws as well as regional considerations in moral rights law application.

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …