Law Commons^™

Hack, Mash & Peer: Crowdsourcing Government Transparency, Jerry Brito

Jerry Brito

Hack, Mash & Peer: Crowdsourcing Government Transparency

JERRY BRITO George Mason University - Mercatus Center - Regulatory Studies Program October 21, 2007

Abstract: In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the Twenty- First Century, this entails making its data available online and easy to access. If government data is made available online in useful and flexible formats, citizens will be able to utilize modern Internet tools to shed light on government activities. Such …

The Costs And Benefits Of Separating Wireless Telephone Service From Handset Sales And Imposing Network Neutrality Obligations, Rob M. Frieden

Rob Frieden

Wireless operators in most nations qualify for streamlined regulation when providing telecommunications services and even less government oversight when providing information services, entertainment and electronic publishing. In the United States, Congressional legislation, real or perceived competition and regulator discomfort with ventures that provide both regulated and largely unregulated services contribute to the view that the Federal Communications Commission (“FCC”) has no significant regulatory mandate to safeguard the public interest. Such a hands off approach made sense when cellular radiotelephone carriers primarily offered voice and text messaging services in a marketplace with six or more facilities-based competitors in most metropolitan areas. …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Aaron Schwabach

The article is intended as a counterpoint to the all-too-frequent portrayal of China as the world’s leading violator of intellectual property rights. In fact, by many measures China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China’s size. When figures are adjusted for population, China’s rates of intellectual property violation are lower than those of many other countries, including the United States. The article first looks at examples of the current round of political and media China-bashing. It then examines …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

Virtual World Taxation: Theories Of Income Taxation Applied To The Second Life Virtual Economy, Timothy J. Miano

Timothy J Miano

A virtual world is a computer simulated environment in which users interact with each other via graphical representations of themselves. Second Life is one such virtual world released by Linden Lab in 2003. One of the most important and interesting aspects of virtual worlds is the depth and sophistication of the economies that develop among the users. In fact, some virtual worlds, including Second Life, have currency exchanges where users can trade real-world currencies for virtual-world currency and vice versa. This means that the currency, goods, and services within the virtual-world marketplace have a corresponding real-world monetary value. The implication …

License To Sue?, Lorelei Ritchie De Larena

Lorelei Ritchie de Larena

Courts, commentators and practitioners have for too long viewed intellectual property law as a discrete discipline, without putting it into the proper theoretical context of general jurisprudence. Intellectual property law cannot and must not exist on its own, outside the normative framework of overlapping legal institutions. Even within the rubric of intellectual property, courts have overlooked the potential for cross-applying relevant doctrines between patent, copyright, and trademark law. Certainly, when intellectual property disputes touch on other disciplines, such as civil procedure, contract, or tort law, courts have tended to overlook their synergies, focusing instead on only one of several important …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Oren Bracha

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets. After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Internet Packet Sniffing And Its Impact On The Balance Of Power , Robert M. Frieden

Rob Frieden

Internet Packet Sniffing and Its Impact on the Balance of Power Between Intellectual Property Creators and Consumers Rob Frieden Professor, Penn State University 102 Carnegie Building University Park, Pennsylvania 16802 (814) 863-7996; rmf5@psu.edu web site: http://www.personal.psu.edu/faculty/r/m/rmf5/ Previously Internet Service Providers (“ISPs”) had little incentive or technological capability to deviate from plain vanilla best efforts routing for content without examining the nature and type of traffic. Serving as a neutral conduit also provided the means to qualify for a safe harbor exemption from liability for carrying copyright infringing traffic provided by Section 512 of the Digital Millennium Copyright Act. Operators of …

Neither Fish Nor Fowl: New Strategies For Selective Regulation Of Information Services, Robert M. Frieden

Rob Frieden

Neither Fish Nor Fowl: New Strategies for Selective Regulation of Information Services Rob Frieden Professor, Penn State University 102 Carnegie Building University Park, Pennsylvania 16802 (814) 863-7996; rmf5@psu.edu web site: http://www.personal.psu.edu/faculty/r/m/rmf5/ The Federal Communications Commission (“FCC”) has created a dichotomy between telecommunications and information services with an eye toward limiting traditional common carrier regulation to the former category. This regulatory dichotomy provides the basis for exempting most Internet-mediated services from traditional telephony regulation that requires carriers to provide nondiscriminatory network interconnection even with competitors. To support its deregulatory mission the FCC has found ways to subordinate the telecommunications components in …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience …

Regulation Of Blog Campaign Advocacy On The Internet: Comparing U.S., German And Eu Approaches, Allison Hayward

Allison Hayward

This essay examines how U.S., Germany, and EU cases have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging. In brief, U.S. law protects blogging content, but may impose restrictions on the source of political …

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Working Paper Series

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often …

Preservation When Electronic Data Is At Issue, Randall Shane

Randall Shane PhD

Throughout the course of litigation, the cost of electronic discovery and preservation has skyrocketed. Many attorneys have been limited in their options for preservation and discovery. This article attempts to educate counsel as to the options for preserving data found in today's organizations. The method is to divide the data into categories and present the options. The summary displays a comparative case study and contrasts the overall cost by preservation type.

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

From Face-To-Face To Screen-To-Screen: Real Hope Or True Fallacy, Philippe Gilliéron

Philippe Gilliéron

The development of e-commerce involves the implementation of effective Online Dispute Resolution (ODR) methods. While the enactment of ODR methods is made particularly easy thanks to the technological tools at disposal, their mere implementation does still not ensure their efficiency. ODR has drawn much attention in legal scholarships in recent years. Strangely enough, hardly any scholar has however focused on a key factor for the good development of ODR: differences between face-to-face and computer-mediated interactions. After having described the current state of literature related to ODR, I shall focus more specifically on these differences based upon experiments conducted in the …

Benefiting Society And Children Through Violent Media: As Evidenced By First Amendment Protection For Violent Video Games, Austin Nowakowski

Austin James Nowakowski

This article discusses the constitutional, psychological, and societal reasons for why the courts have never upheld any laws censoring violent video games.

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

To Mark Or Not To Mark: Application Of The Patent Marking Statute To Websites And The Internet , Eugene Goryunov, Mark V. Polyakov

Mark V Polyakov

The Marking Statute expressly limits the patent owner’s recovery of damages if the patent owner itself, anyone making, offering for sale, or selling failed to mark its patented invention, sold within the United States, with the associated patent number. In these cases, damages must be limited to those that accrue after the infringer is provided actual notice of infringement. The authors suggest that, in light of relevant jurisprudence and the purpose of the Marking Statute, owners of patents that are directed to any business activities on the Internet should mark their own websites, and require their licensees to mark their …

Somebody Has To Pay: Products Liability For Spyware, Jacob R. Kreutzer

Jacob R Kreutzer

It can be unsettling to discover that you have spyware (software that tracks user behavior and displays advertisements) installed on your computer. The signs of its presence can vary: a new toolbar may appear in your browser, or you may experience a proliferation of pop up advertisements. Whatever the symptoms, the cause is the same: a piece of software that was inconspicuous (or invisible) at the time of its installation is now dedicating itself to disrupting your use of your computer. A persistent consumer will likely be able to identify spyware that is present on his computer, whether through technological …

At&T V. Microsoft – A Violation Of American Patent Law Principles And World Trade Organization Commitments, Robert E. Counihan

Robert E Counihan

In AT&T v. Microsoft, the Federal Circuit created disincentives to trade that constitute quantitative restrictions against the exportation of software from the United States. The statute in question, 35 U.S.C. §271(f), creates patent infringement liability for the exportation of components of patented inventions. When the Federal Circuit applied §271(f) to software in AT&T, a special rule was created. This rule denies software manufacturers the loopholes that are available in other industries that allow alternative, non-infringing forms to be exported. These loopholes allow other industries to compete with foreign manufacturers. The elimination of any loophole causes a disincentive to trade amongst …

Real World Toys And Currency Turn The Legal World Upside Down: A Cross-Sectional Update On Virtual World Legalities, Ian W. Gillies

Ian W. Gillies

With 40 million members on the leading virtual world and overall user growth at 22%, some experts are saying virtual worlds are to the new millennium what websites were to the 90s. Just as the technological and economic growth of the internet drove numerous moral and legal issues to the forefront of society, so also will virtual world growth expand the overlapping moral and legal boundaries between virtual and real world experience. This paper provides a technology and market overview of virtual worlds and explores the intersection of some social and legal issues arising from the financial opportunity and virtual …

'Scrubbing' The Inbox: A Constitutional Alternative To Child Protection Registries, David Logan Pool

David Logan Pool

After the judicial demise of the Communications Decency Act and Child Online Protection Act and the continued impotency of CAN-SPAM to curb unsolicited commercial email, children remain vulnerable to harmful, indecent content via their inbox. In a recent attempt to curtail such exposure, several States have created Child Protection Registries. In essence, the laws allow children to register their email addresses with the state. The state laws impose significant criminal and civil penalties on senders of indecent material who send such emails to registered minors. Because the States retain the list of protected emails, senders of potentially indecent emails must, …

Webmail At Work: The Case For Protection Against Employer Monitoring , Marc A. Sherman

Marc Adam Sherman

This paper is about privacy in the workplace. Specifically, I address the issue of employer monitoring of employee email. The law allows employers to monitor their workers’ email – even when messages contain private information. However, although the law is clear with respect to employer-provided email, it is not yet defined as to webmail. That is – this paper shows that relevant statutes and court decisions generally have not yet addressed the privacy issues that arise when an employer monitors email sent by an employee via the employee’s personal web-based email account.

After revealing this webmail gap in the law, …

Private Copyright: Digital Rights Management Systems And The Consumer, Victor Nicholas Knipe

ExpressO

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States.

Internet 3.0: Identifying Problems And Solutions To The Network Neutrality Debate , Robert M. Frieden

ExpressO

What Internet Service Providers (“ISPs”) can and cannot do to diversify services lies at the core of the debate over network neutrality. In prior generations ISPs had little incentive or technological capability to deviate from plain vanilla best efforts routing for content providers and from standard “all you can eat” subscription terms for consumer access to the World Wide Web. The next generation Internet has the technological capability and ISPs have the commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. …

The Internet And The Project Of Communications Law, Susan P. Crawford

ExpressO

The internet offers the potential for economic growth stemming from online human communications, but recent industry and government actions have disfavored these possibilities by treating the internet like a content-delivery supply chain. This article recommends that the internet be at the center of communications policy and that laws affecting internet access be evaluated in terms of whether they further U.S. economic growth by facilitating increased emergent online diversity. It criticizes the nearly exclusive focus of communications policy on the private economic success of infrastructure and “application” providers, and suggests that communications policy be focused on facilitating communications themselves.

The Need For Software Innovation Policy, Christopher Riley

ExpressO

This paper examines the current legal treatment of software innovation. It argues that recent judicial standards for the regulation of software innovation do not adequately protect innovation. It presents an original standard for the regulation of software innovation, one intended to guide judicial decisions in contributory copyright liability, in interpretations of the Digital Millennium Copyright Act, and in every courtroom where a developer is on trial for the mere creation and distribution of software. The standard presented in this paper separates the questions of liability and remedy in order to produce an optimal dynamic balance of interests.

Youtube Or Youlose? Can Youtube Survive A Copyright Infringement Lawsuit, Jason C. Breen

ExpressO

YouTube, and similar video web hosting services, have already been targets of copyright infringement lawsuits. YouTube’s liability is most likely dependant on whether the service meets the requirements of the DMCA safe harbor for service providers under 17 U.S.C.A. § 512(c). This paper briefly examines how YouTube would fare under the different theories of copyright infringement and discusses whether the DMCA safe harbor would be available to YouTube if they were found liable as an infringer. The limited case law available indicates that the DMCA safe harbor will likely facilitate YouTube’s continued existence, unlike services like Grokster, although YouTube would …