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Publication Of Government-Funded Research, Open Access, And The Public Interest, Julie L. Kimbrough, Laura N. Gasaway Jan 2016

Publication Of Government-Funded Research, Open Access, And The Public Interest, Julie L. Kimbrough, Laura N. Gasaway

Vanderbilt Journal of Entertainment & Technology Law

Public access to government-funded research is an issue of tremendous importance to researchers, librarians, and ordinary citizens around the world. Based on the notion that taxpayers finance research through their tax dollars, research data should be available to them. Rapid, unfettered access to research publications provides access to medical research to patients, encourages further exploration and inquiry by other researchers, informs citizens, and advances scientific research.

Scientists typically write articles that divulge the results of their government-funded research. Prior to the open access movement, these articles were published in commercially produced journals. Subscriptions to these journals are expensive, and cost …


Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji Jan 2016

Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created …


When Tech Startups Outgrow The 1099 Model: Moving Firms Out Of The Kiddie Pool, Chelsea Fitzgerald Jan 2016

When Tech Startups Outgrow The 1099 Model: Moving Firms Out Of The Kiddie Pool, Chelsea Fitzgerald

Vanderbilt Journal of Entertainment & Technology Law

The 1099 independent contractor has become the new norm for Silicon Valley startups. In the wake of the Ninth Circuit Court of Appeals decision in Alexander v. Fed Ex, tech startups have been scrutinized for their financially savvy preference for 1099 contractors through both class action lawsuits and administrative proceedings. As these movers and shakers grow from humble beginnings to companies with multi-billion dollar valuations, the choice between classifying workers as traditional W-2 employees or 1099 contractors will have dramatic effects on the peer economy's labor force and tax status. This Note examines the startup worker classification dilemma, concludes that …


College Athlete Rights After O'Bannon: Where Do College Athlete Intellectual Property Rights Go From Here?, Victoria Roessler Jan 2016

College Athlete Rights After O'Bannon: Where Do College Athlete Intellectual Property Rights Go From Here?, Victoria Roessler

Vanderbilt Journal of Entertainment & Technology Law

The recent O'Bannon v. NCAA decision, which gave student athletes a right in products that exploit their image and likeness, will have a profound impact on college athlete rights. This giant step forward will propel student athletes to fight for more intellectual property rights. Following the footsteps of professional athletes, these rights will likely include copyrighting sports moves, touchdown celebrations, and signature phrases as well as trademarking nicknames and touchdown dances. This Note encourages the adoption of a program giving student athletes these rights and allowing them to receive compensation, uncapped, that they would split evenly with his or her …


Instrumental And Transformative Medical Technology, Nicole Huberfeld Professor Of Law Jan 2016

Instrumental And Transformative Medical Technology, Nicole Huberfeld Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured--a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being "instrumental technology" or "transformative technology." Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in …


Customized Medicine And The Limits Of Federal Regulatory Power, Anna B. Laakmann Jan 2016

Customized Medicine And The Limits Of Federal Regulatory Power, Anna B. Laakmann

Vanderbilt Journal of Entertainment & Technology Law

The Food and Drug Administration (FDA) plays a dominant role in setting national policy and standards for the biomedical industry. Yet there are significant statutory constraints on the agency's power. The FDA's main implementing statute, the Federal Food, Drug, and Cosmetic Act (FDCA), bounds the scope of the FDA's regulatory authority. The FDCA cabins FDA power in two important ways: (1) with a few notable exceptions, the FDA lacks power to regulate local activities that are not directly connected to interstate commerce, and (2) the agency may regulate product manufacturers, but not service providers. The FDA has long grappled with …


The Shaky Ground Of The Right To Be Delisted, Miquel Peguera Jan 2016

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Vanderbilt Journal of Entertainment & Technology Law

It has long been discussed whether individuals should have a "right to be forgotten" online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v. Agencia Espafiola de Proteccion de Datos, the Court of Justice of the European Union (CJEU) addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results in searches made on the basis of their name. It found that they do have this right--which can be best described as …


Online Sovereignty: The Law And Economics Of Tribal Electronic Commerce, Gavin Clarkson, Katherine A. Spilde, Carma M. Claw Jan 2016

Online Sovereignty: The Law And Economics Of Tribal Electronic Commerce, Gavin Clarkson, Katherine A. Spilde, Carma M. Claw

Vanderbilt Journal of Entertainment & Technology Law

In 1886, the US Supreme Court wrote that, for Indian tribes,"the people of the states where they are found are often their deadliest enemies." Recently, state agencies and regulators have continued that tradition of hostility by improperly attempting to regulate electronic commerce businesses operated by tribal governments that are more properly subject to regulations established by tribal law and subject to federal oversight. Despite the fact that these online businesses operate exclusively under tribal law and make their tribal affiliation clear to customers, certain state regulators have demanded absolute compliance with state law, even when such laws are from states …


Implementing The Frand Standard In China, Jyh-An Lee Jan 2016

Implementing The Frand Standard In China, Jyh-An Lee

Vanderbilt Journal of Entertainment & Technology Law

The modern world relies on technical standards, most of which involve standard-essential patents (SEPs). To balance SEP holders'fair compensation with standard implementers' access to standardized technologies, standard-setting organizations (SSOs) generally require that their members commit to license their SEPs on a fair, reasonable,and non-discriminatory (FRAND) basis. In recent years, the communications industry has seen a growing amount of litigation concerning SEPs and FRAND in many jurisdictions. As China has grown into a major player and market in the worldwide communications business, its public policy, court decisions, and private business strategies concerning SEPs and FRAND are likely to have a huge …


Will The Internet Of Things Transform Healthcare?, Nicolas P. Terry, Professor Of Law, Jan 2016

Will The Internet Of Things Transform Healthcare?, Nicolas P. Terry, Professor Of Law,

Vanderbilt Journal of Entertainment & Technology Law

Emerging technologies like health apps on mobile computing platforms and wearable devices are believed to have the potential to improve individual and population health. Increasingly, however, attention should extend to a far larger cohort of connected devices known as the Internet of Things (IoT), an environment in which devices communicate with each other, health apps, and wearables. The resulting Internet of Health Things promises to do things conventional health providers either cannot do or do them faster and cheaper. First, services are "always on, "providing twenty-four/seven monitoring of the patient or pre-patient. Second, the multiple sensors contained in smartphones or …


Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher Jan 2016

Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher

Vanderbilt Journal of Entertainment & Technology Law

When a foreign state infringes a US-held intellectual property right abroad, it is unclear to what extent the Foreign Sovereign Immunities Act of 1976 (FSIA) bars suit in US courts. The FSIA's already complex commercial activity exception, which governs such actions, was further obfuscated by the Supreme Court's decision in Republic of Argentina v. Weltover, which held that "substantiality" and "foreseeability" could not be used to determine whether a foreign sovereign's conduct had a "direct effect" in the United States, thus warranting jurisdiction in a US court. In the context of IP infringement, where harms may be abstract and unquantifiable, …


Beyond Gatekeeping: The Normative Responsibility Of Internet Intermediaries, Marcelo Thompson Jan 2016

Beyond Gatekeeping: The Normative Responsibility Of Internet Intermediaries, Marcelo Thompson

Vanderbilt Journal of Entertainment & Technology Law

This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries' responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries' decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their decision making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and …


Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt Jan 2016

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …


Power To The People: Data Citizens In The Age Of Precision Medicine, Barbara J. Evans Jan 2016

Power To The People: Data Citizens In The Age Of Precision Medicine, Barbara J. Evans

Vanderbilt Journal of Entertainment & Technology Law

Twentieth-century bioethics celebrated individual autonomy but framed autonomy largely in terms of an individual's power to make decisions and act alone. The most pressing challenges of big data science in the twenty-first century can only be resolved through collective action and common purpose. This Article surveys some of these challenges and asks how common purpose can ever emerge on the present bioethical and regulatory landscape. The solution may lie in embracing a broader concept of autonomy that empowers individuals to protect their interests by exercising meaningful rights of data citizenship. This Article argues that twentieth-century bioethics was a paternalistic, top-down …


Keeping Ai Legal, Amitai Etzioni, Oren Etzioni Jan 2016

Keeping Ai Legal, Amitai Etzioni, Oren Etzioni

Vanderbilt Journal of Entertainment & Technology Law

AI programs make numerous decisions on their own, lack transparency, and may change frequently. Hence, unassisted human agents, such as auditors, accountants, inspectors, and police, cannot ensure that AI-guided instruments will abide by the law. This Article suggests that human agents need the assistance of AI oversight programs that analyze and oversee operational AI programs. This Article asks whether operational AI programs should be programmed to enable human users to override them; without that, such a move would undermine the legal order. This Article also points out that AI operational programs provide high surveillance capacities and, therefore, are essential for …


Just What The Doctor Ordered: Protecting Privacy Without Impeding Development Of Digital Pills, Amelia R. Montgomery Jan 2016

Just What The Doctor Ordered: Protecting Privacy Without Impeding Development Of Digital Pills, Amelia R. Montgomery

Vanderbilt Journal of Entertainment & Technology Law

Using technology, humans are receiving more and more information about the world around them via the Internet of Things, and the next area of connection will be the inside of the human body. Several forms of "digital pills" that send information from places like the human digestive tract or bloodstream are being developed, with a few already in use. These pills could stand to provide information that could drastically improve the lives of many people, but they also have privacy and data security implications that could put consumers at great risk. This Note analyzes these risks and suggests that short-term …


Us Government Antitrust Intervention In Standard-Setting Activities And The Competitive Process, Alden F. Abbott Jan 2016

Us Government Antitrust Intervention In Standard-Setting Activities And The Competitive Process, Alden F. Abbott

Vanderbilt Journal of Entertainment & Technology Law

The private sector historically has driven the setting of technical standards in the United States, with the federal government only intervening in response to perceived violations of specific statutes, such as antitrust laws. This concern is reflected in case law and in advice proffered by US antitrust enforcers. Recently, however, US enforcers have turned their attention primarily to the alleged misuse of monopoly power over patents that cover technologies embodied in standards. This new focus threatens to undermine innovation and departs from sound antitrust enforcement policy. American antitrust enforcers should redirect their priorities away from alleged single-firm, patent-related abuses associated …


The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst Jan 2016

The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst

Vanderbilt Journal of Entertainment & Technology Law

Proponents of legislative patent reform argue that the current patent system perversely impedes true innovation in the name of protecting a vast web of patented inventions, the majority of which are never even commercialized for the benefit of the public. Opponents of such legislation argue that comprehensive, prospective patent reform legislation would harm the incentive to innovate more than it would curb the vexatious practices of non-practicing entities. But while the" Innovation Act" wallows in Congress, there is a common law tool to protect innovation from the patent thicket lying right under our noses: the reverse doctrine of equivalents. Properly …


On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford Jan 2016

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

Although cyberspace and the atmosphere are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and challenges of collective inaction and free riders. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem that affects the entire world. Yet its benefits are dispersed, and its harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a few nations even as others are becoming havens for cybercriminals. Yet it is also true that actions taken by a multiplicity of actors on …


Where Copyright Meets Privacy In The Big Data Era: Access To And Control Over User Data In Agriculture And The Role Of Copyright, Tesh W. Dagne Jan 2016

Where Copyright Meets Privacy In The Big Data Era: Access To And Control Over User Data In Agriculture And The Role Of Copyright, Tesh W. Dagne

Vanderbilt Journal of Entertainment & Technology Law

The application of big data in different sectors of the economy and its transformative value has recently attracted considerable attention. However, this transformation, driven by the application of advanced technologies that utilize big data—such as the Internet of Things (IoT), artificial intelligence (AI), and software systems—raises concerns about access to and control over the user data that results from the uptake in using digital technologies. This Article examines the role different legal regimes have in framing access to and control over various forms of user data from the perspective of technology users in the agriculture sector. This Article then goes …


Alternatives To March-In Rights, David S. Bloch Jan 2016

Alternatives To March-In Rights, David S. Bloch

Vanderbilt Journal of Entertainment & Technology Law

The Bayh-Dole Act is an inspired piece of legislation. But its "march-in" provisions are too often a source of confusion and fear for private-sector companies that want to do business with the US government--despite the fact that the government has never exercised its march-in rights. Are there alternatives to march-in rights that would effectively serve the government's public policy needs while eliminating this perceived threat to private intellectual property rights? This Article describes march-in rights in theory and practice, and then weighs several alternatives to traditional Bayh-Dole march-in rights.


Innovation Rewards: Towards Solving The Twin Market Failures Of Public Goods, Gregory N. Mandel Jan 2016

Innovation Rewards: Towards Solving The Twin Market Failures Of Public Goods, Gregory N. Mandel

Vanderbilt Journal of Entertainment & Technology Law

The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.

Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law …


The Likely Mismatch Between Federal Research & Development Funding And Desired Innovation, Joshua D. Sarnoff Jan 2016

The Likely Mismatch Between Federal Research & Development Funding And Desired Innovation, Joshua D. Sarnoff

Vanderbilt Journal of Entertainment & Technology Law

Scholars are beginning to develop theoretical analyses of the different forms of government funding that promote innovation. These analyses indicate the need for extensive empirical research into the comparative advantages and various abilities of differing governmental and private institutions. Currently, empirical analyses are lacking, as data for such studies is rarely obtained. Worse yet, analyses of the ways funding decisions are actually made indicate that research and development funding decisions are not governed by a theory of comparative innovation advantage. Accordingly, we can expect a substantial mismatch between actual funding choices and desired innovation policy.

This Article identifies practical considerations …


Of Fences And Definite Patent Boundaries, Deepa Varadarajan Jan 2016

Of Fences And Definite Patent Boundaries, Deepa Varadarajan

Vanderbilt Journal of Entertainment & Technology Law

Patent claims are supposed to mark the boundaries of a patent clearly so that competitors and follow-on innovators can avoid infringement. But commentators routinely lament the failure of patent claims to adequately perform this notice function. In numerous calls for patent reform, courts and scholars have contrasted the indeterminacy of patent claims with the clarity of real property boundaries. The Supreme Court recently echoed this sentiment in "Nautilus v. Biosig Instruments." In "Nautilus," the Court heightened the patent requirement of claim definiteness and reversed Federal Circuit precedent, which had allowed many ambiguous claims to survive invalidity challenges. This Article analyzes …


Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza Jan 2016

Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza

Vanderbilt Journal of Entertainment & Technology Law

Under 17 U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA), those who issue materially false takedown notices are liable for damages. However, Section 512(f) has not effectively protected fair use. Currently, the DMCA issuer only has to prove he considered fair use before issuing a takedown notice, but faces no liability for actually taking action against fair use. The outcome of the recent Ninth Circuit Court of Appeals case Lenz v. Universal shows the flaws in the language of the DMCA. This Article calls for a mild adjustment to Section 512(f) for the purpose of protecting fair use …


Unsponsored Adrs Falling Through The Cracks: Adapting A Domestic Securities Regime To A Global Marketplace, Sarah Dotzel Jan 2016

Unsponsored Adrs Falling Through The Cracks: Adapting A Domestic Securities Regime To A Global Marketplace, Sarah Dotzel

Vanderbilt Journal of Entertainment & Technology Law

Investing in the securities market has become a commonplace activity for expert and amateur investors alike. As more and more companies transcend national boundaries with their business activities, investment in their securities becomes coveted by international investors. Since securities are regulated on a country-by-country basis, it is unclear which law applies when conflict arises. In an attempt to clarify one such situation, simplify the application of US securities laws, and respect the legal regimes of other nations, the Morrison decision created an unclear test which leaves investors in unsponsored American Depositary Receipts (ADRs), one of the most common international trading …


"Blurred Lines" Means Changing Focus: Juries Composed Of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries, Jason Palmer Jan 2016

"Blurred Lines" Means Changing Focus: Juries Composed Of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries, Jason Palmer

Vanderbilt Journal of Entertainment & Technology Law

The verdict in Williams v. Bridgeport Music, Inc., or the "Blurred Lines" case, surprised a lot of people. It surprised the public, as many did not expect there to be infringement. It also surprised the litigants, because the jury's special verdict form contained a logical inconsistency indicating that something had been decided incorrectly. However, the jury cannot be faulted for this inconsistency because it was tasked with deciphering the indecipherable. The fault lies in the way copyright law establishes infringement. This Note investigates the apparent circuit split in determining music copyright infringement and proposes that it is illusory. All circuits …


How Smart Is Too Smart?: How Privacy Concerns Threaten Modern Energy Infrastructure, Megan Mclean Jan 2016

How Smart Is Too Smart?: How Privacy Concerns Threaten Modern Energy Infrastructure, Megan Mclean

Vanderbilt Journal of Entertainment & Technology Law

Smart meters are integral to the health of our electric grid and are critical to a reliable, affordable, and efficient energy economy. Yet, collection of smart meter data is raising privacy concerns that are inspiring pockets of resistance to smart meter installation around the country. The fact that these data, like many other kinds of personal information, can and often do flow to the government should not prevent their collection and use. It is critical for environmental and energy regulators to have access to this data to maximize the potential of our energy system. On the state level, several legislatures …


Regulation 2.0: The Marriage Of New Governance And "Lex Informatica", Abbey Stemler Jan 2016

Regulation 2.0: The Marriage Of New Governance And "Lex Informatica", Abbey Stemler

Vanderbilt Journal of Entertainment & Technology Law

Throughout history, disruptive technologies have transformed industry and signaled the destruction or creation of regulatory structures. When crafting regulations, governments often utilize Regulation 1.0 approaches, characterized by top-down design standards that dictate exactly how the regulated must act in order to prevent market failures. Regulation 1.0 increases barriers to entry and decreases the room for business experimentation. Regulation 2.0, by contrast, is a theoretical approach for regulating companies that rely on platform-mediated networks. It marries New Governance theory and the concept of lex informatica. This marriage allows for the collaborative creation of design standards that are then enforced through mediating …


The Patentability Of Digital "Manufactures" As 3d Printing Expands Into The 4d World, Laura E. Powell Jan 2016

The Patentability Of Digital "Manufactures" As 3d Printing Expands Into The 4d World, Laura E. Powell

Vanderbilt Journal of Entertainment & Technology Law

Technological advances have always been supported by a robust patent system that encourages disclosure of inventions by providing protection to the inventor. Society has benefitted from this system, which has relied on a definition of "manufacture" that has essentially remained unchanged for over 200 years. However, with the advent of digital technologies, and in particular Four-Dimensional Printing, courts have been inconsistent in evaluating the patentability of such inventions. Recent Supreme Court and Federal Circuit decisions have indicated that some software may be eligible for patent protection. This is particularly important for 4D printing wherein the manifestation of the printed product …