Law Commons^™

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Jacqueline D Lipton

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Research In Native American Communities In The Genetics Age: Can The Federal Data Sharing Statute Of General Applicability And Tribal Control Of Research Be Reconciled?, Ron J. Whitener

Ron J. Whitener

Since colonization, the populations indigenous to the United States of America have been an enticing subject for researchers of all types. Geographic continuity with traditional homelands and traceable blood quantum requirements for tribal membership provide a unique connection to the past for researchers studying a broad array of topics from epidemiology to religion. In recent years, the explosion of discoveries in the field of genomic research has led to even greater interest in the United States’ Native communities by both commercial and scientific interests. Firms have sprung up offering genetic tests claiming the ability to detect Native American Ancestry. National …

Transparency And Performance In Government, Jerry Brito

Jerry Brito

The legal literature on transparency is generally divided into two categories: the study of transparency as a solution to political corruption and scholarship looking at transparency in the context of corporate disclosure requirements. The former is concerned with preventing government malfeasance that can lead to serious societal problems, especially in the developing world. The latter focuses on the disclosure of corporate performance to fully inform markets. However, these two insights on transparency never meet. In this article, we hope to show that just as mandatory transparency can improve corporate performance, it may help improve government performance as well.

Part I …

Overcoming The "Impossible Issue" Of Nonobviousness In Design Patents, Janice M. Mueller, Daniel Harris Brean

Janice M Mueller

The United States offers legal protection for designs—the overall aesthetic appearances of objects—through the patent system. To obtain a U.S. design patent has long required something more than novelty. Just as the patentability of a utilitarian device mandates a “nonobvious” advance over earlier technology, the patentability of a new and ornamental design requires that it differ from prior designs to an extent that would not have been “obvious to a designer of ordinary skill who designs articles of the type involved.” Ostensibly promoting progress in design, Congress in 1842 shoehorned design protection into the existing utility patent system. From that …

Daubert And Forensic Science: The Pitfalls Of Law Enforcement Control Of Scientific Research, Paul C. Giannelli

Paul C. Giannelli

In 2009, the National Academy of Sciences published a landmark report on forensic science: Strengthening Forensic Science in the United States: A Path Forward. The Report represents one of the most important developments in forensic science since the establishment of the crime laboratory in the 1920s. Within months, Justice Scalia cited the report in Commonwealth v. Melendez-Diaz, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials” and “[f]orensic evidence is not uniquely immune from the risk of manipulation.” After two years of studying fingerprints, handwriting, ballistics, and other common forensic techniques, the Academy concluded …

The Need For Better Analysis Of High Capacity Services, George S. Ford, Lawrence J. Spiwak

GEORGE S FORD

In 1999, the Federal Communications Commission (“FCC”) began to grant incumbent local exchange carriers (“LECs”) pricing flexibility on special access services in some Metropolitan Statistical Areas (“MSAs”) when specific evidence of competitive alternatives is present. The propriety of that deregulatory move by the FCC has been criticized by the purchasers of such services ever since. Proponents of special access price regulation rely on three central arguments to support a retreat to strict price regulation: (1) the market(s) for special access and similar services is unduly concentrated; (2) rates of return on special access services, computed using FCC ARMIS data, are …

Maintaining Incentives For Healthcare Innovation: A Response To The Ftc's Report On Follow-On Biologics, Christopher M. Holman

Christopher M Holman

Congress is considering legislation that would create an abbreviated FDA approval process for follow-on biologics (FOBs), which proponents anticipate will promote competition and lower prices in the market for biologic drugs. In June of 2009 the FTC published a report on FOBs (“the FTC Report”), which attempts to forecast the nature of competition between innovator biologics and FOBs, and offers a number of substantive recommendations regarding specific provisions of the various FOB bills. In particular, the FTC Report concludes that there is essentially no justification for the inclusion of a substantial data exclusivity period (“DEP”) for innovators in pending FOB …

Patent Law And The Two Cultures, Peter Lee

Peter Lee

A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …

Quantifying The Cost Of Substandard Patents: Some Preliminary Evidence, George S. Ford, T. Randolph Beard, Thomas M. Koutsky, Lawrence J. Spiwak

GEORGE S FORD

The purpose of patent policy is to balance the incentive to invent against the ability of the economy to utilize and incorporate new inventions and innovations. Substandard patents that upset this balance impose deadweight losses and other costs on the economy. In this paper, we examine some of the deadweight losses that result from granting substandard patents in the United States. Under plausible assumptions, we find that the economic losses resulting from the grant of substandard patents can reach $21 billion per year by deterring valid research with an additional deadweight loss from litigation and administrative costs of $4.5 billion …

Poisoned Flowers In Cyberspace: Resolving Focal Point Abuses And Tradmark-Related Conflicts In Space By Rewriting Code, Thomas C. Folsom

Thomas C. Folsom

In cyberspace, dynamically coded focal points don’t just provide salient references. They can actually deliver a person’s augmented presence to a location. Placing reliable focal points as navigational markers in coded space is useful and indexing them is even better because these activities support the public good by providing a virtual map to cyberspace, thereby promoting access, navigation, information-activity and trust among augmented presences. In an objective cyberspace which relies upon a virtual map featuring dynamically coded focal points functioning as markers, addresses, magnets, roadblocks or detours, I propose that conduct which (a) alters the virtual map, (b) plants deceptive …

All I Need Is A Miracle And A Constitutional Right To Access It: The Rights Of The Terminally Ill Reconsidered, Amy M. Dudash

Amy M. Dudash

In Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, Abigail Alliance sought to enjoin the FDA from preventing the sale of investigational drugs to terminally ill patients. The Alliance argued that terminally ill patients have a constitutional right to access investigational drugs under the Due Process Clause of Fifth Amendment. In order to determine if a right to non-FDA approved drugs existed under the Due Process Clause, the court applied the test laid out in Washington v. Glucksberg. An en banc panel of the D.C. Circuit Court of Appeals held that terminally ill patients did not have …

Fire Pattern Analysis, Junk Science, Old Wives Tales, And Ipse Dixit: Emerging Forensic 3d Imaging Technologies To The Rescue?, Thomas R. May

Thomas R. May

No abstract provided.

Losing Face: An Environmental Analysis Of Privacy On Facebook, Chris Peterson

Chris Peterson

This Article contributes to the ongoing conversation about privacy on social network sites. Adopting Facebook as its primary example, it reviews behavioral data and case studies of privacy problems in an attempt to understand user experiences. The Article fills a crucial gap in the literature by conducting the first extensive analysis of the informational and decisional environment of Facebook. Privacy and the environment are inextricably linked: the practice of the former depends upon the dynamics and heuristics of the latter.

The Article argues that there is an environmental element to the Facebook privacy problem. Data flow differently on Facebook than …

Patent Pleading After Iqbal: Using Infringement Contentions As A Guide, Richard Alan Kamprath

Richard Kamprath

“Patent Pleading After Iqbal: Using Infringement Contentions As A Guide” This article proposes how the new standard for pleading patent infringement related claims should be interpreted in light of the Supreme Court’s decisions in Twombly and Iqbal. The facial plausibility of a pleading requires more than bare allegations and must be supported with enough facts in order for the court to infer wrongdoing by the accused infringer. This article is dedicated to applying this theory of pleading to the practical world of the courtroom. Federal Rule 8 is discussed as the starting point to understanding pleading in the federal courts. …

The Impact Of General And Patent-Specific Judicial Experience On The Efficiency And Accuracy Of Patent Adjudication, Jay P. Kesan

Jay P. Kesan

The Impact of General and Patent-Specific Judicial Experience On the Efficiency and Accuracy of Patent Adjudication Jay P. Kesan and Gwendolyn G. Ball University of Illinois ABSTRACT The creation of the U.S. Court of Appeals for the Federal Circuit (CAFC) is generally regarded as an improvement in the system of patent adjudication in the United States. There is, however, considerable support for the creation of a specialized patent trial court based on the argument that we need to create specialized, judicial human capital at the trial level. Proponents favoring this change base their reasoning on the two-part argument that, because …

Predicting The Enforceability Of Browse-Wrap Agreements In Ohio, Sam S. Han

Sam Han

Internet-based commerce has now reached a level where Internet-based businesses, such as amazon.com or ebay.com, sometimes generate more revenue than their brick-and-mortar counterparts. In view of the growth in Internet-based businesses, the courts have been forced to address unconventional contracting mechanisms, such as shrink-wrap, click-wrap, and browse-wrap agreements. Much of the scholarly writing, as well as court opinions, reach a consensus that browse-wrap agreements will be enforceable if there is: (a) sufficient notice of the agreement terms; and (b) clear manifestation of assent to the terms. However, there is very little guidance on how much notice will constitute "sufficient notice." …

Model Omnibus Privacy Statute, Sam S. Han Ph.D.

Sam Han

One of today’s major concerns is how easily digital information can be copied and disseminated. Thus, when one’s private information becomes publicly available in digital format, that information can be readily duplicated and distributed across the globe within seconds. If the disseminated information includes credit card numbers or Social Security numbers, then there is a heightened exposure to identity theft and a host of other privacy-related crimes.

Given the existence of such a digital landmine, laws have been promulgated for various sectors (e.g., financial, healthcare, government, etc.) to protect personally-identifiable information. However, due to differing needs of the various sectors, …

Protecting The Ivory Tower: Sensible Security Or Invasion Of Privacy?, Stephen D. Lichtenstein

Jonathan J. Darrow

Millions of students are enrolled in colleges and universities in the United States and abroad. While universities are not insurers of the safety of their students, faculty, staff or others in their community, university campuses are generally safe when compared to urban environments. However, tragic and infamous acts of campus violence including the rape and murder of Jeanne Clery at Lehigh University, the infamous 2007 Virginia Tech tragedy resulting in the death of thirty-three and, more recently, the alleged murders of three colleagues by faculty member Amy Bishop provide evidence and anecdotes that the risk of campus violence remains high. …

Improving The Safety Of Central Nervous System Stimulants, Anne Kulli

Anne Kulli

Anonymity removed in this document.

Why The Fcc’S Proposed Openness Principles Cannot And Should Not Apply To Internet Application And Content Providers, Rob M. Frieden

Rob Frieden

The Federal Communications Commission (“FCC”) has issued a Notice of Proposed Rulemaking (“NPRM”) that would codify rules aiming to preserve a free and open Internet for consumers. The NPRM appropriately concentrates on preventing broadband Internet access providers (“IAPs”) from acting as gatekeepers between end-users and online content and application providers. However, the NPRM does invite comments on a proposal of AT&T that openness principles be applied to Internet content and application providers. This paper strongly opposes AT&T’s imitative as both unlawful and unwise. The FCC’s appropriate concern about end user access to the Internet via IAPs does not justify an …

Incentivize Me!—How Incumbent Carriers In The United States Attempt To Extract Greater Deregulation And Incentives In Exchange For Making Next Generation Network Investment, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage …

Assessing The Need For More Incentives To Stimulate Next Generation Network Investment, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), and even accepting subsidies for broadband development if the carrier must provide access to competitors. Without fully assessing the necessity to do so legislators, regulators and judges have accepted the premise that government must create incentives for NGN investment. Incumbent carriers in particular have seized upon the concept of uncertainty as a justification for refraining from making necessary infrastructure investments, despite the onset of …

The Use Of Population Genetics In Endangered Species Act Listing Decisions, Ryan P. Kelly

Ryan P Kelly

In recent years the federal agencies that administer the Endangered Species Act have increasingly relied on genetic data to decide which species and populations merit protection. Because the analysis of genetic data is highly technical and unfamiliar to the majority of those concerned with the Act, agency decisions are in danger of becoming less transparent, insulated by the language of genetics and the seeming surety of its associated statistics. In this paper, I attempt to provide a resource for lawyers and other non-biologists faced with understanding the genetics that underlie many modern claims under the Endangered Species Act. I do …

Biometrics, Retinal Scanning, And The Right To Privacy In The 21st Century, Stephen Hoffman

Stephen P. Hoffman

Biometric identification techniques such as retinal scanning and fingerprinting have now become commonplace, but near-future improvements on these methods present troubling issues for personal privacy. For example, retinal scanning can be used to diagnose certain medical conditions, even ones for which the patient has no symptoms or has any other way of detecting the problem. If a health insurance company scans the retinas of potential clients before they purchase coverage, they could be charged higher premiums for conditions that do not present any issues. Not only is this unfair, but the ease with which these scans can be conducted—including scanning …

Applying Nuisance Law To Internet Obscenity, Michael J. Gray

Michael J. Gray

The current use of criminal law to prosecute Internet obscenity is ineffective and at the same time unfair. While prosecution of obscenity over the internet is extremely rare, when a prosecution does occur the punishment is extremely harsh. This paper advocates the use of nuisance law injunctions as a better alternative to responding to Internet obscenity. Nuisance law provides the advantage of allowing for wider enforcement of obscenity law on the Internet, while at the same time reducing the penalty for violating the subjective Miller test for obscenity. This paper also explores recent applications of nuisance law to the Internet …

The Rise, Fall And Rise Again Of The Genetic Foundation For Legal Parentage Determination, Yehezkel Margalit

Hezi Margalit

Recently, we have witnessed dramatic changes in the formation of the family and parenthood. One of the results of those shifts is a growing number of children growing up outside of the traditional marriage framework. Therefore, the dilemma of determining a child's parentage, which was usually resolved by a legal fiction as to the child's legal parents, is becoming increasingly problematic. It is appropriate that any discussion of the establishment of legal parentage should start with a study of the rise of the most popular modern model, the genetic model.

It is relevant to point out that from the beginning …

An Evolutionary Study Of Cloud Computing Services Privacy Terms, Konstantinos Stylianou

Konstantinos Stylianou

This paper presents an empirical study on the evolution of privacy terms of cloud computing services. The purpose is to see whether the transition to cloud computing also means that users are bound by more intrusive terms of use that pose a greater threat to their privacy. In that direction several typical cloud services (e.g. GoogleDocs, Amazon EC2) are examined from their start of operation till today and numerous versions of their privacy terms are juxtaposed in an effort to pinpoint and interpret the differences between them. The paper concludes that with the spread of cloud computing services more and …

Maintaining Incentives For Healthcare Innovation: A Response To The Ftc's Report On Follow-On Biologics, Christopher M. Holman

Christopher M Holman

Congress is considering legislation that would create an abbreviated FDA approval process for follow-on biologics (FOBs), which proponents anticipate will promote competition and lower prices in the market for biologic drugs. In June of 2009 the FTC published a report on FOBs (“the FTC Report”), which attempts to forecast the nature of competition between innovator biologics and FOBs, and offers a number of substantive recommendations regarding specific provisions of the various FOB bills. In particular, the FTC Report concludes that there is essentially no justification for the inclusion of a substantial data exclusivity period (“DEP”) for innovators in pending FOB …

Data Sharing, Latency Variables And The Science Commons, Jorge L. Contreras

Jorge L Contreras

Over the past decade, the rapidly decreasing cost of computer storage and the increasing prevalence of high-speed Internet connections have fundamentally altered the way in which scientific research is conducted. Led by scientists in disciplines such as genomics, the rapid sharing of data sets and cross-institutional collaboration promise to increase scientific efficiency and output dramatically. As a result, an increasing number of public “commons” of scientific data are being created: aggregations intended to be used and accessed by researchers worldwide. Yet, the sharing of scientific data presents legal, ethical and practical challenges that must be overcome before such science commons …

Bermuda's Legacy: Policy, Patents And The Genome Commons, Jorge L. Contreras

Jorge L Contreras

The multinational effort to sequence the human genome generated vast quantities of data about the genetic make-up of humans and other organisms. But, in some respects, even more remarkable than the impressive quantity of data generated by the human genome project (HGP) is the speed at which that data has been released to the public. At a 1996 summit in Bermuda, leaders of the scientific community agreed on a groundbreaking set of principles requiring that all DNA sequence data be released in publicly-accessible databases within twenty-four hours after generation. These “Bermuda Principles” contravened the typical practice in the sciences of …