Law Commons^™

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Daniel L. Brenner

ABSTRACT: The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for “network neutrality” or “nondiscrimination” assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This article’s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation -- a key assumption of some advocates. The article analyzes three characteristics that hobble the FCC, the likeliest federal agency to provide prescriptive rules. First, the record for the …

Scholarly Journals And The Open Access Conundrum, Colin B. Sakumoto

Colin B Sakumoto

This paper examines the desirability and feasibility of open access scholarly journals with particular emphasis on the parties shaping the production of these journals. In examining how the current publishing model will shape the implementation of open access publishing, analysis of the obstacles likely to hinder implementation is given in depth. Finally, a number of measures are suggested to help build the momentum needed to one day realize a widespread open access publishing model.

Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween

Gretchen S. Sween

ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or nearly unanimous. Moreover, the Supreme Court’s rhetoric in formulating …

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching, William A. Herbert

William A. Herbert

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities. The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual …

Fantasy Crime, Susan Brenner

Susan Brenner

The article "Fantasy Crime" analyzes activity in virtual worlds that would constitute a crime if it were committed in the real world. The article reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. It analyzes the criminalization of virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. It then analyzes the necessity and propriety of criminalizing …

I Own The Pipes, You Call The Tune. The Net Neutrality Debate And Its (Ir)Relevance For Europe, Andrea Renda

Andrea Renda

The debate of the so-called “net neutrality” has been under the spotlight in the US for many years, whereas many believed it would not become an issue in Europe. However, over the past few months the need to revise the current regulatory framework to encourage investment in all-IP networks has led to greater attention for net neutrality and its consequences for investment and competition. After the Commission adopted a “light-touch” approach to the issue at the end of 2007, the European Parliament has started to reconsider the issue, and it is reportedly considering a move towards more pro-neutrality rules. This …

Lock Down On The Third Screen: How Wireless Carriers Evade Regulation Of Their Video Services, Rob M. Frieden

Rob Frieden

Wireless handsets increasingly offer subscribers a third screen for accessing the Internet and video programming. The converging technologies and markets that make this possible present a major regulatory quandary, because national regulatory authorities seek to maintain mutual exclusivity between regulated telecommunications services and largely unregulated information services. Many existing and emerging services do not easily fit into one or the other regulatory classification, nor can the Federal Communications Commission determine the appropriate classification by extrapolating from the regulatory model applied to existing or discontinued services. By failing to specify what model applies to services appearing on cellphone screens, the FCC …

Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann

Ryan M Seidemann

Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …

Viewing Virtual Property Ownership Through The Lens Of Innovation, Ryan G. Vacca

Akron Law Faculty Publications

Over the past several years scholars have wrestled with how property rights in items created in virtual worlds should be conceptualized. Regardless of how the property is conceptualized and what property theory best fits, most agree the law ought to recognize virtual property as property and vest someone with those rights.

This article moves beyond the conceptualization debate and asks two new questions from a new perspective. First, how ought virtual property rights be allocated so innovation and creativity can be maximized? Second, how can the law be changed to remove barriers that unnecessarily impede a regime that maximizes creativity …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Forensic Genetics And The Ascendancy Of Modern “Race Science:” Establishing The Inadmissibility Of Dna Estimates Of Race, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to …

Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker

Leah A Walker

No abstract provided.

How To Save The Recording Industry?: Charge Less, Zac Locke

Zac Locke

“How much is music worth?” It is painfully clear that the traditional fifteen dollars charged for a packaged CD is too much. CD sales declined another fourteen percent in 2007, on top of years of similar erosion. As selling music online becomes the way of selling music of the future, record labels, music publishers and music e-tailers must find the ideal price point for their product. This Article defines the ideal price point at the price where the profit is maximized while making it easier for consumers to buy a song rather than download it for free. Technology, through replacing …

Blueprint For Teaching Skills In Practicum And Seminar Courses Using Technology, Andrea L. Johnson

Andrea L Johnson

Abstract: “Blueprint for Teaching Skills in Practicum and Seminar Courses Using Technology” By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article focuses on how to teach skills in practicum and seminar courses using technology. The author conducted a Classroom Assessment Study (“Study”) with 126 students in Business Planning and Telecommunications between 2006-2008. Classroom Assessment is a concept in higher education that uses feedback from students about how they learn from different teaching methods to help them learn skills more effectively. The Study deconstructs the classroom experience using …

Regulating Search, Viva R. Moffat

Viva R. Moffat

With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.

In this paper, I …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

The Evolution Of Gplv3 And Contributor Agreements In Open Source Software, George E. Finney

George E Finney

Innovation in the computer software industry over the past 15 years increased at a frantic pace thanks in part to the Open Source Software movement. This community of software developers uses legal methodologies to enforce rights and induce others to follow their lead and with openness has come more innovation. The Free Software Foundation’s General Public License (GPL) in particular embodies this spirit and uses a kind of recursive philanthropy or an Open Source-only sandbox, which requires other developers to create their software under licenses with compatible philosophies.

How the propagation of these licenses effects innovation in the software industry …

Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge The Traditional Realm Of Conflicts Of Law, Sonia B. Green

Sonia Bychkov Green

New technologies have always posed challenges to established legal norms. Assisted Reproductive Technologies (ART) in particular pose legal and ethical challenges to the law, and create never before seen legal problems. Although the ABA House of Representatives recently approved the Model Act Governing Assisted Reproductive Technology, differences in laws and rules will continue to exist. The legal issued involved are wide-ranging, including: liability issues arising from the failure of ART technology, parentage issues, disposition of embryos, and many others. As ART becomes more widely used, it is also used more in an interstate and international context. Thus, when a dispute …

The Impact Of Government-Mandated Public Access To Biomedical Research: An Analysis Of The New Nih Depository Requirements, Kristopher A. Nelson

Kristopher A Nelson

On December 26, 2007, President Bush signed the Consolidated Appropriations Act of 2008. The bill, which became Public Law 110-161, contained a new requirement that manuscripts developed through funding by the National Institutes of Health (NIH) be made available to the public, free of charge, within one year after publication. This new mandatory requirement struck a compromise position between the existing pay-to-access model of private journal publishers and the potential free-for-all of the public domain. But did it go far enough? Should Congress have adopted a more aggressive policy of opening access to research? Alternatively, did Congress go too far, …

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …

Rethinking "Reasonable Efforts" To Protect Trade Secrets In A Digital World, Elizabeth Rowe

Elizabeth A Rowe

The very technological tools in use today that increase the efficiency with which companies do business create challenges for trade secret protection. They make trade secrets easier to store, easier to access, easier to disseminate, and more portable, thus increasing the risks that trade secrets will be destroyed. While secrecy is the sine qua non of trade secret protection, it can be difficult to accomplish. There is a tension between the need to keep information secret and modern technological methods that allow the information to be easily accessed, reproduced, and disseminated. In trade secret misappropriation cases, courts evaluate the sufficiency …

Patents As Property: Conceptualizing The Exclusive Right(S) In Patent Law, Adam Mossoff

Adam Mossoff

The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional "bundle" of rights, patents secure only a negative right to exclude. In exploring the history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding legal doctrines, …

Paging King Solomon: Towards Allowing Organ Donation From Anencephalic Infants, Fazal Khan

Fazal Khan

The article, Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants, argues that organ donation from anencephalic infants is ethically and legally justifiable. Anencephaly is a medical condition characterized by a lack of brain development above the brainstem, so such children often lack a cerebrum, cerebellum and a skull. With an intact brainstem, these children can maintain heart and lung function. Without higher brain functioning though, these children are not capable of human consciousness and they typically have very short life spans measured in days or weeks. The way in which an anencephalic infant dies typically destroys the suitability …

The Next, Small, Step For Mankind: Fixing The Inadequacies Of The International Space Law Treaty Regime To Accommodate The Modern Space Flight Industry, Brian J. Beck

Brian J Beck

Since man’s first foray into space flight in 1958, the world has greatly changed. Early space law treaties were created for a world where nations looked to travel to the moon and beyond, two hostile superpowers gave rise to the danger of a weaponized outer space, and space travel was too expensive for anyone but the world’s richest governments. This article argues that the current space law treaty regime, negotiated in the late 1960s and early 1970s, is inadequate to handle the challenges of space flight in the next decade. These challenges include commercial space flight and its attendant concerns, …

Electronic Contracting In China, Debra J. Reed

Debra J Reed

QUESTION PRESENTED

Whether an electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China and is enforceable in China’s courts?

BRIEF ANSWER

An electronically signed business contract between a Chinese and foreign party is legally valid under the 2005 Electronic Signature Law of the People’s Republic of China, PRC. Statutorily, Chinese law enables electronic contracting by giving the same legal force to electronic signatures and data messages, as to traditional ink signatures and paper documents. Lack of payment systems, high costs to businesses of adopting …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

Plain Language Patents, Robin C. Feldman

Robin C Feldman

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the …

Contracting To Preserve Open Science: The Privatization Of Public Policy In Patent Law, Peter Lee

Peter Lee

Patents on biomedical research tools—technological inputs to experimentation—may inhibit scientific inquiry and the development of life-enhancing therapies. Various “public law” approaches to address this challenge, such as a common law experimental use exception to patent infringement, have achieved limited success. In the wake of these shortcomings, this Article argues that institutions are utilizing a new model of private ordering to resolve research holdup. Increasingly, federal and state agencies, universities, non-profits, and disease advocacy groups are conditioning the provision of vital research support on requirements that recipients of this support make resulting patented inventions widely available for noncommercial research purposes. In …

Common Sense: Treating Statutory Non-Obviousness As A Novelty Issue, N. Scott Pierce

N. Scott Pierce

Title 35 of United States Code, at Section 103, limits patent protection to subject matter that would not be “obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The requirement was introduced as a statute by the Patent Act of 1952, but, according to the legislative history, was a codification of judicial precedent. The origin of that precedent is widely attributed to the 1851 Supreme Court decision of Hotchkiss v. Greenwood, 52 U.S. 248 (1851). However, declaration of Hotchkiss as a watershed moment in legal history …

Complexity As A Catalyst Of Market Failure: A Law And Engineering Inquiry, Steven L. Schwarcz

Steven L Schwarcz

This article examines how the complexities of modern investment securities and the assets underlying them can trigger a breakdown of financial markets and also analyzes what should be done to mitigate the potential for market failure. Because these complexities are characteristic of complexities in nonlinear engineering systems, the article’s analysis draws on the literature analyzing these systems.