Law Commons^™

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 …

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Myspace Isn't Your Space, Donald Carrington Davis

ExpressO

The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise and may arise when employers base adverse employment decisions on the results of these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: inaccurate, irrelevant, or false information leads to unfair employment decisions; lack of accountability and disclosure tempts employers to make illegal employment decisions; and employer searches of an employee’s online social …

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Space Program And Business In India - Legal Perspectives, Shashi Sharma

ExpressO

No abstract provided.

Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman

ExpressO

Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of …

The Rise And Fall Of Private Sector Unionism: What Next For The Nlra?, Jeffrey M. Hirsch, Barry T. Hirsch

Faculty Publications

No abstract provided.

Space Program And Business In India, Shashi Sharma

Shashi Sharma

No abstract provided.

E-Commerce Taxation And Cyberspace Law: The Integrative Adaptation Model, Rifat Azam Dr.

Rifat Azam Dr.

This article argues that the current debate on international taxation of e-commerce is totally tax oriented and ignores cyberspace law and that this separation is unjustified and harmful to the development of e-commerce taxation law. Mutual intellectual feeding and integrative debate that is open and interesting to the general legal scholarly community is necessary to improve ecommerce law. To begin a debate on e-commerce taxation as part of cyberspace law, the author describes and incorporates for the first time the primary cyberspace literature into the e-commerce taxation debate. The author draws lessons from judicial jurisdiction in cyberspace, criminal law in …

A Primer On Network Neutrality, Rob M. Frieden

Rob Frieden

This paper will explain the different conceptualizations of network neutrality and why a debate has arisen about whether governments need to establish rules mandating nondiscrimination. The paper will identify what types of price and quality of service discrimination represent legitimate efforts to diversify Internet-mediated services and to satisfy increasingly diverse requirements of content providers and consumers. The paper concludes that while many concerns about network neutrality overstate the potential for harm, ISPs should offer non-neutral services in a fully transparent manner so that regulators can distinguish between actual and induced network congestion as well as other potential harm to content …

Network Neutrality And Its Potential Impact On Next Generation Networks , Rob M. Frieden

Rob Frieden

This paper will examine the network neutrality debate with an eye toward assessing how the Internet will evolve as a major platform for content access and distribution. The paper accepts as necessary and proper many types of price and quality of service discrimination, but also identifies other types of potentially hidden and harmful discrimination. The paper concludes with an identification of best practices in “good” discrimination that should satisfy most network neutrality goals without creating disincentives that might dissuade ISPs from building the infrastructure needed distribution of high bandwidth consuming content such as full motion video.

Data Protection Online: Alternative Approaches To Sensitive Data, Rebecca Wong

Dr Rebecca Wong

The paper aims to review the criterion of “sensitive data” under Art. 8 of the Data Protection Directive 95/46/EC (DPD) in the online environment. Sensitive data is defined under Art. 8 as ‘personal data revealing racial origin, political opinions or religious or philosophical beliefs, trade union membership, and the processing of data concerning health or sex life.’ Following the Lindqvist case (C-101-01), it is questionable how the criterion applies in practice. More specifically, it can be contended that any images/photographs of the data subject uploaded on the internet falls within Art. 8 of the DPD because the image/picture reveals some …

The Profits Of Infringement: Richard Posner V. Learned Hand, Stephen E. Margolis

STEPHEN MARGOLIS

Abstract A circuit split regarding the calculation of profits in copyright and trademark infringement cases can yield order of magnitude differences in the resulting awards. Owners of infringed trademarks and copyrights can be awarded the profits that result from the infringement. The statutes are silent on the definition of profits and the Courts of Appeals split on how profits are computed. All courts start with revenues and allow the defendant to deduct variable costs, but courts differ in the treatment of fixed costs. In the Second Circuit, a 1939 decision written by Judge Learned Hand establishes a rule that allows …

In Defense Of Online Intermediary Immunity: Facilitating Communities Of Modified Exceptionalism, H. Brian Holland

H. Brian Holland

No abstract provided.

Expanding Preferential Treatment Under The Record Rental Amendment Beyond The Music Industry, Ryan G. Vacca

Ryan G. Vacca

This Article explores the development of copyright law’s first sale doctrine and the Record Rental Amendment (RRA) in light of the Sixth Circuit’s interpretation of the RRA in Brilliance Audio, Inc. v. Haights Cross Communications, Inc. This Article does not take issue with the court’s conclusion, but instead uses the differing conclusions of the majority and dissent to illustrate that the RRA exception is in need of Congressional clarification. This Article also examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works, concluding that they should. The author then proposes two alternative amendments to …

Reasonable Emissions Of Greenhouse Gases: Efficient Abatement For A Stock Pollutant, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Fired For Blogging: Are There Legal Protections For Employees Who Blog?, Robert Sprague

Robert Sprague

No abstract provided.

Googling Job Applicants: Incorporating Personal Information Into Hiring Decisions, Robert Sprague

Robert Sprague

No abstract provided.

Business Blogs And Commercial Speech: A New Analytical Framework For The 21st Century, Robert Sprague

Robert Sprague

No abstract provided.

From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, Robert Sprague

Robert Sprague

No abstract provided.

In Defense Of Online Intermediary Immunity: Facilitating Communities Of Modified Exceptionalism, H. Brian Holland

H. Brian Holland

No abstract provided.

Universal Broadband In The United States: Is It A Pipe Dream Or Soon-To-Be Reality?, Krista S. Jacobsen

Krista S. Jacobsen

Internet access increasingly has been viewed as vital for countries’ economic well-being. In March of 2004, President Bush expressed the view that access to the Internet for all Americans is critical to the country’s economic growth, and he established a goal that every American should have affordable high-speed Internet access by 2007. As of December 2006, however, allegedly only 19.6% of the United States population subscribed to broadband service. This take rate establishes the United States as fifteenth in the world in broadband penetration, behind countries such as Denmark, the Netherlands, Iceland, Korea, Japan, the United Kingdom, and Canada. As …

Good Cause Is Bad Medicine For The New E-Discovery Rules, Henry S. Noyes

Henry S. Noyes

This Article takes a critical look at the e-discovery amendments to Rule 26(b)(2) that provide that electronically stored information that is “not reasonably accessible” shall be discoverable only if the requesting party can establish good cause. The intent of these amendments was to limit the cost and burden of discovery and to ensure that similarly situated litigants are treated similarly with respect to discovery of electronically stored information. I conclude that the e-discovery amendments to Rule 26(b)(2) will be ineffective because they increase judicial discretion—likely leading to disparate treatment of similarly situated litigants—while providing no new protection against the cost …