Intellectual Property Law Commons^™

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this article is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

Smartphone, Dumb Regulations: Mixed Signals In Mobile Privacy, Christian Levis

Fordham Intellectual Property, Media and Entertainment Law Journal

The smartphone has turned a user’s location into valuable information. Users of smart devices can use location-based mobile services to get driving directions, check into social networks, or even see which of their friends are around. But the use of this technology, and the new type of data created by it, raises privacy concerns as to who has access to one's location-based information. Because the only legislation covering this technology, the Electronic Communications Privacy Act, is more than twenty-five years old, courts encounter problems when trying to use it to resolve these privacy issues, often reaching illogical results. This Note …

The Google-Nsa Alliance: Developing Cybersecurity Policy At Internet Speed, Stephanie A. Devos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Deidentification Dilemma: A Legislative And Contractual Proposal, Robert Gellman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Enforcing Intellectual Property Rights By Diminishing Privacy: How The Anti-Counterfeiting Trade Agreement Jeopardizes The Right To Privacy, Alberto Cerda Silva

Joint PIJIP/TLS Research Paper Series

Enforcing the law in the digital environment is one of the main challenges of the Anti-Counterfeiting Trade Agreement (ACTA). In order to enforce the intellectual property law, unlike previous international agreements on the matter, ACTA attempts to set forth provisions concerned with privacy and personal data. Special provisions refer to law enforcement in the digital environment; ACTA would require the adoption of domestic law to allow identifying supposed infringers and, consequently, the collaboration of the online service providers (OSPs) with rights holders. However, those provisions raise some human rights concerns, particularly as related to the right to privacy of Internet …

Friending Privacy: Toward Self- Regulation Of Second Generation Social Networks , Robert Terenzi, Jr.

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Nieves V. Home Box Office, Inc., Andrew Nieh

NYLS Law Review

No abstract provided.

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …

Million Dollar Baby: Celebrity Baby Pictures And The Right Of Publicity , Natalie Grano

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Coding Privacy, Lilian Edwards

Chicago-Kent Law Review

Lawrence Lessig famously and usefully argues that cyberspace is regulated not just by law but also by norms, markets and architecture or "code." His insightful work might also lead the unwary to conclude, however, that code is inherently anti-privacy, and thus that an increasingly digital world must therefore also be increasingly devoid of privacy. This paper argues briefly that since technology is a neutral tool, code can be designed as much to fight for privacy as against it, and that what matters now is to look at what incentivizes the creation of pro- rather than anti-privacy code in the mainstream …

Consent To Monitoring Of Electronic Communications Of Employees As An Aspect Of Liberty And Dignity: Looking To Europe., Matthew A. Chivvis

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon

Scholarship Chronologically

Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …

Data Protection, Breach Notification, And The Interplay Between State And Federal Law: The Experiments Need More Time, Flora J. Garcia

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Gone In A Blink: The Overlooked Privacy Problems Caused By Contactless Payment Systems, Shane L. Smith

Marquette Intellectual Property Law Review

The use of RFID technology in contactless payment devices presents an expanding menu of challenges and concerns to privacy advocates. While rapid, creative advances have been made by contactless payment system issuers, neither privacy advocates nor lawmakers have used the same creative visions to address the privacy problems caused by contactless payment systems. The author proposes a legislative response to address privacy concerns without stifling technological developments.

A (My)Space Of One's Own: On Privacy And Online Social Networks, Patricia Sanchez Abril

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

Privacy, Crime And Terror: Legal Rights And Security In A Time Of Peril By Stanley A. Cohen (Markham: Lexisnexis Butterworths, 2005), Teresa Scassa

Canadian Journal of Law and Technology

It is now trite to say that the events of September 11, 2001 have had a profound impact on our national security, in terms of its institutional and normative dimensions, and also in terms of a more general public anxiety. The hastily enacted Anti-terrorism Act of 2001 brought about significant changes to a wide range of statutes including, among others, the Criminal Code, the Official Secrets Act, the Canada Evidence Act, and the Proceeds of Crime (Money Laundering) Act. An early conference and resultant book on the Anti-terrorism Act raised serious concerns about the potential impact of the changes on …

The Public's Right To Fair Use: Amending Section 107 To Avoid The "Fared Use" Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use" and "The End of Friction," commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The …

Personal Medical Information: Privacy Or Personal Data Protection?, Wilhelm Peekhaus

Canadian Journal of Law and Technology

Some of the existing literature concerning the privacy of health information seems to suggest that medical information has a particularly special nature; either through its oft-cited association with dignity or the need for its ‘‘unobstructed’’ use by health care practitioners for a variety of reasons. It is against such a backdrop that this paper will review and compare a number of legislative mechanisms that have been designed to meet the challenge of safeguarding the privacy of personal information without completely hindering the continued flow of information required by economic and health care systems. An attempt will be made to situate …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

Elisabeth Haub School of Law Faculty Publications

This article briefly explores several scenarios in which economic actors compete and cooperate in order to capture the value in personal information. The focus then shifts to one particular scenario: the ongoing interaction between the United States and the European Union in attempting to construct data protection regimes that serve the philosophies and citizens of each jurisdiction as well as provide a strategic economic advantage. A game theoretic model is presented to explain the course of dealings between the two actors, including both unilateral and bilateral actions. Part I ends with an exploration of opportunities for seizing competitive advantage, and …

Material Vulnerabilities: Data Privacy, Corporate Information Security And Securities Regulation, Andrea M. Matwyshyn

ExpressO

This article undertakes a normative and empirical legal inquiry into the manner information security vulnerabilities are being addressed through law and in the marketplace. Specifically, this article questions the current legislative paradigm for information security regulation by presenting a critique grounded in information security and cryptography theory. Consequently, this article advocates shifting our regulatory approach to a process-based security paradigm that focuses on improving security of our system as a whole. Finally, this article argues that in order to accomplish this shift with least disruption to current legal and economic processes, expanding an existing set of well-functioning legal structures is …

Preserving Internet Expression While Protecting Our Children: Solutions Following Ashcroft V. Aclu, Steven E. Merlis

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Right Of Publicity And Autonomous Self-Definition, Mark P. Mckenna

Journal Articles

Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as …