Law Commons^™

Emergence Of Knowledge Economy, Nazish Irshad Husain

Nazish Irshad Husain

No abstract provided.

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 …

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

Akron Law Faculty Publications

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 …

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. …

Getting Under Your Skin--Literally: Rfid In The Employment Context, Marisa Anne Pagnattaro

marisa pagnattaro

This article explores the legal ramifications of the use of radio frequency identification chips (“RFID”) by employers. RFID is an automated data-capture technology that can be used to identify, track and store information contained on a tiny computer chip, which uses electromagnetic energy in the form of radio waves to communicate information. These chips can be implanted under an employee’s skin, worn in an employee’s clothing or in an identification badge. Part I presents a brief history of RFID, as well as novel and interesting uses in the workplace. This section also discusses security and safety concerns regarding the use …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

New Patent Regime In India: Challenges And Future Of The Pharmaceutical Industry, Shashi Sharma

Shashi Sharma

No abstract provided.

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

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 …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

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 …

Forensic Dna Phenotyping: Regulatory Issues, Bert-Jaap Koops, Maurice Schellekens

Bert-Jaap Koops

Forensic DNA phenotyping is an interesting new investigation method: crime-scene DNA is analyzed to compose a description of the unknown suspect, including external and behavioral features, geographic origin and perhaps surname. This method is allowed in some countries but prohibited in a few others. Most countries have not yet taken a stance on this. This article addresses the question to what extent this investigation method should be allowed. The relevant regulatory issues are analyzed: the right of people not to know what their DNA tells about propensities for diseases or other propensities, data protection and privacy, stigmatization and discrimination, and …

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 …

Virtual Consumption: A Second Life For Earth?, Albert C. Lin

Albert C Lin

Consumption is at the root of many of the world’s greatest environmental challenges, yet laws or policies that directly address consumption are rare. Virtual worlds such as Second Life offer the intriguing prospect of displacing a substantial amount of real-world consumption without running afoul of the political and economic obstacles that proposals to reduce consumption often face. In the interactive online reality of virtual worlds, players adopt an “avatar” and participate in an electronic world that mirrors the real world in striking ways. As this Article explains, virtual worlds offer opportunities, experiences, and pleasures that satisfy many of the basic …

“Hands Off My Taxes!”: A Comparative Analysis Of Direct Democracy And Taxation, Amleto Cattarin

Amleto Cattarin

Abstract

The purpose of the article is to analyse the phenomenon of direct democracy related to fiscal matters. This research will be based on the experience of a number of European countries compared to one U.S. state, California, which was chosen due to Proposition 13, one of the classic examples of conflict between a state organization and its citizens. Failing a trustworthy relation that legitimates taxation, beyond the employment of rough power, common rhetoric shows the value of direct democracy against and at the expense of representative democracy. Politicians of several European countries have established, somewhat paternalistic legal systems in …

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 …

The Public Network, Thomas B. Nachbar

Thomas B Nachbar

This article addresses the timely yet persistent question of how best to regulate access to telecommunications networks. Concerns that private firms may use their ownership of communications networks to their own economic advantage has led many to propose restrictions, variously referred to as “network neutrality” or “open access” proposals, on network operators. To date, the network neutrality debate has focused almost exclusively on economic arguments for or against such regulation. Taking a step back from current debates, this paper seeks to derive from established law the accepted bases for imposing nondiscrimination rules and then to work forward to ask whether …

Legal Education In The Age Of Cognitive Science And Advanced Classroom Technology, Deborah J Merritt

Deborah J Merritt

Cognitive scientists have made major advances in mapping the process of learning, but legal educators know little about this work. Similarly, law professors have engaged only modestly with new learning technologies like PowerPoint, classroom response systems, podcasts, and web-based instruction. This article addresses these gaps by examining recent research in cognitive science, demonstrating how those insights apply to a sample technology (PowerPoint), and exploring the broader implications of both cognitive science and new classroom technologies for legal education. The article focuses on three fields of cognitive science inquiry: the importance of right brain learning, the limits of working memory, and …

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 …

Gaming The System: Virtual Worlds And The Securities Markets, Caroline Bradley

Caroline Bradley

“IPOs” and “stock exchanges” in virtual worlds such as Second Life raise a number of issues for real world financial regulators as well as for player-inhabitants of virtual worlds and academic researchers who focus on virtual worlds. The paper argues that under current rules some virtual world financial transactions constitute transactions in securities, and are therefore subject to registration requirements and fraud liability under the securities laws. Arguments that this virtual financial activity is only an aspect of the game would risk encouraging fraud. Thus an exemption regime would be desirable to distinguish between game activity with a financial theme …

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 …

If The Glove Don’T Fit, Try Newer Gloves: The Unplanned Obsolescence Of The Substantial Similarity Standard For Experimental Evidence, Jonathan M. Hoffman

Jonathan M Hoffman

In the context of a recent Fifth Circuit decision, this article reviews the law concerning the admissibility of “experimental” and demonstrative evidence. The standards used to determine the admissibility of both categories of evidence predate the Federal Rules of Evidence. These standards for admission of such evidence are obsolete and at odds with the Federal Rules. The issue is particularly important in the wake of the Kumho Tire decision and the 2000 amendments to Federal Rule of Evidence 702, as engineers and other technical experts are increasingly called upon to test their hypotheses, even as the courts’ continued use of …

The Supremacy Of Techno-Governance: Privatization Of Digital Content And Consumer Protection In The Globalized Information Society, Nicola Lucchi

Nicola Lucchi

The article aims to describe the role of technology and contract in regulating access to digital content deregulating intellectual property law monopoly. In particular it argues that the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe compromise the consumer’s capacity to exercise legitimate rights, such as the private use exemption, by giving content owners extralegal protection for their works. It also analyses how these acts have caused an inappropriate delegation of governmental decision making to a non-governmental entity with a consequent privatization of the government’s role in protecting intellectual …

Online Postings Can Be Nightmare For Recruits: In Acting On Google Search Results, However, Law Firms Should Proceed With Caution, Michael D. Mann

Michael D. Mann

No abstract provided.

Google Your Applicants: Prospective Employers Are Increasingly Vetting Candidates' Web Pages, Michael D. Mann

Michael D. Mann

No abstract provided.

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.

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The …

Instant Background: With Employers Utilizing Google Searches, Job Candidates Discover That They Are What They Post, Michael D. Mann

Michael D. Mann

No abstract provided.