Law Commons^™

Desktop Piracy Factories: Will Existing Law Be Enough?, Andrew J. Daddono

Andrew J Daddono

A brief essay on how the disruptive technology found in 3D printing will affect the future of our existing legal regimes for intellectual property, what foreseeable problems there are, and possible ways that we may address them.

Incentives Must Change: Addressing The Unpredictability Of Reasonable Royalty Damages, Daniel Mcmanus

daniel mcmanus

ABSTRACT

INCENTIVES MUST CHANGE: ADDRESSING THE UNPREDICTABILITY OF REASONABLE ROYALTY DAMAGES

Current law encourages patentees and defendants in a patent infringement suit to make the most widely varying arguments for reasonable royalty damages. The parties have so much discretion in presenting calculations for reasonable royalty damages that it is not uncommon for the patentee to request damages 80-100 times greater than the infringer’s proposed damages. Permitting so much discretion makes it highly unlikely that the resulting damages will be reasonable, and thus fails to achieve the goal of determining a reasonable royalty.

The problem is simple. Patents are difficult to …

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …

Privacy, Transparency & Google's Blurred Glass, Jonathan I. Ezor

Jonathan I. Ezor

No matter the context or jurisdiction, one concept underlies every view of the best practices in data privacy: transparency. The mandate to disclose what personal information is collected, how it is used, and with whom and for what purpose it is shared, is essential to enable informed consent to the collection, along with the other user rights that constitute privacy best practices. Google, which claims to support and offer transparency, is increasingly opaque about its many products and services and the information they collect for it, posing a significant privacy concern.

Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates, Lily M. Strumwasser

Lily M Strumwasser

Dear Editor:

I am a third-year student at The John Marshall Law School in Chicago, Illinois, where I serve as the executive student publications editor of The John Marshall Law Review. In September 2013, I will work as an associate at Seyfarth Shaw in its labor and employment practice group. I am writing to submit my article, "Testing The Social Media Waters - First Amendment Entanglement Beyond The Schoolhouse Gates" My article considers the contours of student free speech rights within the context of public schools. I think and hope you will find it to be interesting and …

Holy Internet, Bringer Of Truth, Pray For The Church’S Sinners, Now And At The Hour Of It’S Death…: The Internet’S Impact On The Priest Abuse Crisis, Joanne E. Wilson

Joanne E Wilson

The Roman Catholic Church is being murdered. Yet, the attempted murderer is still free. The accused attempted murderer is the Internet. Throughout history, the Church has tried to halt communication in order to maintain control of its flock. But inventions in communication have empowered society while loosening the Church’s grip on the lives of its parishioners. A fatal wound was created in the mid fifteenth century with Johannes Gutenberg’s invention of the movable type printing press. An artery of the Church was spliced open in 1517 when Martin Luther nailed his ninety-five page written revolt against the Church on the …

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

All Faculty Scholarship

Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …

Online Social Media And The End Of The Employment-At-Will Doctrine, Robert Sprague, Abigail E. Fournier

Robert Sprague

This article addresses the intersection of Section 7 protected concerted activities under the National Labor Relations Act and the common law employment-at-will doctrine. Employers are under pressure to ensure their online social media policies do not unlawfully chill protected Section 7 activities, freeing employees to discuss working conditions with coworkers through online social media platforms such as Facebook, Twitter, and LinkedIn. This article argues that once coworkers engage online in work-related conversations, for all practical purposes they cease to be at-will employees. Under the Wright Line standard, if an employee is fired or disciplined shortly after engaging in protected concerted …

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

Application Of The Ada To Websites: Congress Should Rely On The Standards Created By The World Wide Consortium, Mara'd A. Smith

Mara'D Smith

Congress created the Americans with Disabilities Act (ADA) in 1990 to assure equality of opportunity and independent living to those with physical or mental abilities. Although the roots of the Internet were growing rapidly when Congress passed the ADA, the World Wide Web did not become popular until the mid 1990s. Congress has not yet updated the ADA to clearly cover websites, and the current regulations that ensure access for disabled persons to physical locations do not clearly apply to websites. This paper argues that Congress should rely on the World Wide Web Consortium standards when revising the ADA to …

Cyber-Terrorism: Finding A Common Starting Point, Jeffrey T. Biller

Jeffrey T Biller

Attacks on computer systems for both criminal and political purposes are on the rise in both the United States and around the world. Foreign terrorist organizations are also developing information technology skills to advance their goals. Looking at the convergence of these two phenomena, many prominent security experts in both government and private industry have rung an alarm bell regarding the potential for acts of cyber-terrorism. However, there is no precise definition of cyber-terrorism under United States law or in practice among cyber-security academicians. The lack of a common starting point is one of the reasons existing law fails to …

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

All Faculty Scholarship

Crowdsourcing Indie Movies Henry H. Perritt, Jr. Abstract Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

Crowdsourcing Indie Movies, Henry H. Perritt Jr.

Henry H. Perritt, Jr.

Crowdsourcing Indie Movies

Henry H. Perritt, Jr.

Abstract

Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their …

Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford

Scott Shackelford

Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …

Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt

Arlen W Langvardt

MISTAKE-PROOFING MEDICINE: LEGAL CONSIDERATIONS

AND HEALTHCARE QUALITY IMPLICATIONS

Authors: John R. Grout, John W. Hill, Arlen W. Langvardt (corresponding author).

Abstract

In 1999, the Institute of Medicine estimated that approximately 98,000 deaths resulted annually from medical errors. This shocking number does not appear to have lessened during the intervening years. Although mistake-proofing techniques similar to those that have proven useful in the product liability context hold great promise for reducing the number of medical errors, the adoption of such techniques in healthcare settings has not occurred to the extent it should have.

This article examines potentially useful mistake-proofing techniques, explores …

It's About Time: Privacy, Information Life Cycles, And The Right To Be Forgotten, Meg Leta Ambrose

Meg Leta Ambrose

The current consensus is that information, once online, is there forever. Content permanence has led many European countries, the European Union, and even the United States to establish a right to be forgotten to protect citizens from the shackles of the past presented by the Internet. But, the Internet has not defeated time, and information, like everything, gets old, decays, and dies, even online. Quite the opposite of permanent, the Web cannot be self-preserving. One study from the field of content persistence, a body of research that has been almost wholly overlooked by legal scholars, found that 85% of content …

The Large Immortal Machine And The Ticking Time Bomb, Susan Landau

Susan Landau

The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires that digitally switched communications networks carrying voice be designed to accommodate (legally authorized) wiretaps. Since the law's passage, there have been a number of breaches in networks with CALEA-type switches. Despite the fact that CALEA is an "architected security breach," the Federal Communications Commission, whose role it is to promulgate CALEA requirements, the agency does not require any type of security testing or threat modeling for the switches. In this paper, I discuss the implications of the law to switch design, the breaches that have occurred, and what changes the …

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

Federal Common Law And The Courts’ Regulation Of Pre-Litigation Preservation, Joshua Koppel

Joshua M. Koppel

With the proliferation in recent years of electronically stored information and the skyrocketing cost of retaining large amounts of data, issues of preservation have played an increasing role in litigation. Companies and individuals that anticipate that they will be involved in litigation in the future may be obligated to preserve relevant evidence even before litigation is initiated. Because litigation has not yet commenced, they cannot seek clarification regarding their obligations from a court or negotiate them with an adverse party. Statutory or common law preservation duties play a large role in guiding potential litigants in this area.

The federal courts …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

Uncertainty As Enforcement Mechanism: The New Expansion Of Secondary Copyright Liability To Internet Platforms, John Blevins

John F. Blevins

This article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users’ activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. Critically, copyright owners and the government do not necessarily need to prevail in these actions. Instead, the proceedings can be effective so long as they impose sufficient costs upon Internet platforms. In this respect, prevailing is less important than obtaining statutory and doctrinal constructions …

Vertical Boilerplate, James Gibson

James Gibson

Despite what we learn in law school about the “meeting of the minds,” most contracts are merely boilerplate -- take-it-or-leave-it propositions. Negotiation is nonexistent; we rely on our collective market power as consumers to regulate contracts’ content. But boilerplate imposes certain information costs, because it often arrives late in the transaction and is hard to understand. If those costs get too high, then the market mechanism fails. So how high are boilerplate’s information costs? A few studies have attempted to measure them, but they all use a “horizontal” approach -- i.e., they sample a single stratum of boilerplate and assume …

A Return To The Cloud: Last Call For The Record Industry, Hunter E. Bjorkman

Hunter E Bjorkman

A recent Court ruling has given music streaming services and cloud storage providers free reign to pursue a business model that will end the present day Record Industry. This paper puts forth how to capitalize on the present technological, business, and legal environment in order to revive the Record Industry.

A change in the present business model is vital to the survival of the Industry. The model connects with the other changes the world has already undertaken – a global, wireless, streaming society in the 21st century. The Record Industry business model is dead not the Industry itself. Without change …

The Large Immortal Machine And The Ticking Time Bomb, Susan Landau

Susan Landau

In 1994 Congress passed the Communications Assistance for Law Enforcement Act (CALEA). In many ways a rather extraordinary law, CALEA puts the government in charge of determining interception standards for telephone switches. Under CALEA, switches in use were to be retrofitted to accommodate the new requirement. That there were long-term consequences of building backdoors into long-lived electronic switching equipment were essentially ignored. That lapse is increasingly problematic. The possibility that security threats would develop against the telecommunications infrastructure itself does not appear to have been discussed during CALEA’s passage. The seriousness of the security lapse has become apparent with During …

A Treaty Of Versailles - How Microsoft Wants To, And How They Could, End The Patent War, Andrew Pierz

Andrew Pierz

Android began as a project by Andy Rubin after developing the Sidekick. The project was soon acquired by Google and licensed as open-source technology for third parties, like Samsung and HTC, to use in their phones. After Microsoft fell in mobile market share, they began to pursue aggressive litigation and licensing deals. Google, after pledging to defend their manufacturing partners, announced they would acquire Motorola Mobility for their patent portfolio. The paper will explore the history of Android and Windows Mobile, the extent of Microsoft’s mobile patent portfolio, the structure of Microsoft’s various deals, the planned acquisition of Motorola Mobility …

Law, Dissonance And Remote Computer Searches, Susan W. Brenner

Susan Brenner

This article examines the rule dissonance that can arise when law enforcement officers from one jurisdiction, e.g., the United States, remotely search a computer in another jurisdiction, e.g., Russia. It explains that such a search occurred in 2000, when Federal Bureau of Investigation agents tricked two Russian cybercriminals to Seattle and tricked them into using laptops loaded with spyware to access their computer in Russia. The FBI agents then used the usernames and passwords the spyware recorded to access the Russian computer and download data, which was used to prosecute the Russians for violating U.S. cybercrime law. One moved to …

Cyber-Threats And The Limits Of Bureaucratic Control, Susan W. Brenner

Susan Brenner

This article argues that the approach the United States, like other countries, uses to control threats in real-space is ill-suited for controlling cyberthreats, i.e., cybercrime, cyberterrorism and cyberwar. It explains that because this approach evolved to deal with threat activity in a physical environment, it is predicated on a bureaucratically organized response structure. It explains why this is not an effective way of approaching cyber-threat control and examines the two federal initiatives that are intended to improve the U.S. cybersecurity: legislative proposals put forward by four U.S. Senators and by the White House; and the military’s development of six distinct …

Pitfalls And Promises Of Social Media And Mobile Lawyering, Jonathan I. Ezor

Jonathan I. Ezor

No abstract provided.

The Questionable Effect Of Informal And Instantaneous Electronic Communications On The Validity Of “No Oral Modification” Clauses: Are Texts, Tweets, And E-Mail Destroying The Sanctity Of Contract Law?, Diana Ovsepian

Diana Ovsepian

This Article provides a comprehensive analysis of the effect of informal electronic communications on contract modification law. The technological explosion of communications in the past few years has created a society that is unquestionably dependent on e-mail, text messages, instant messages, tweets and the like, as the way to keep in touch with one another. Both personally and professionally, individuals take advantage of these mediums to convey communications instantaneously and to stay in the loop. However, even with all of their advantages, these new mediums create novel questions in the realm of contract law. As modern businesses shift toward utilizing …

Twibel Law: What Defamation And Its Remedies Look Like In The Age Of Twitter, Ellyn M. Angelotti

Ellyn M Angelotti

In six years, the Twitter audience has quickly grown to 140 million users who can instantly publish to a global audience. The informal nature of conversations on Twitter makes it a ripe environment for the spreading of rumors and potential falsehoods. While a few Twibel suits have been brought to the forefront, the courts have yet to rule on a case in the United States. This article presents a hypothetical situation where an influential Twitter user posts false content about a local restaurant that rapidly spreads online. This results in the restaurant's demise. The defamed party considers bringing a defamation …