Internet Law Commons^™

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as …

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

Identity Theft And Consumer Protection: Finding Sensible Approaches To Safeguard Personal Data In The United States And Canada, Kamaal Zaidi

ExpressO

This paper examines identity theft in both the United States and Canada. Various examples of commercial fraud and scams are discussed in the context of a growing trend of identity thieves assuming identities of innocent consumers. As such, various pieces of legislation and consumer initiatives (involving online consumer complaint mechanisms)in U.S. and Canadian jurisdictions are highlighted to demonstrate the pursuit towards broader consumer protection of personal data used in daily commercial transactions. The author argues that these modern efforts to safeguard consumers from identity theft is a progressive measure that will continue to afford increasing protections for consumer personal data, …

Opening Bottlenecks: On Behalf Of Mandated Network Neutrality, Bill D. Herman

ExpressO

This paper calls for mandated “network neutrality,” the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely will also likely increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The …

Applying The Wiretap Act To Online Communications After United States V. Councilman, Jessica Belskis

Washington Journal of Law, Technology & Arts

This article examines the federal Wiretap Act and its application to online communications in light of the United States Court of Appeals for the First Circuit’s recent decision in United States v. Councilman. The federal Wiretap Act places legal limits on the surveillance of electronic communications, but courts struggle to make sense of its application to online communications. Formerly, courts held that the Wiretap Act did not apply to the retrieval of communications from places of electronic storage. However, in United States v. Councilman, the First Circuit suggests that retrieval of emails from temporary places of electronic storage …

Shielding Journalist-“Bloggers”: The Need To Protect Newsgathering Despite The Distribution Medium, Laura Durity

Duke Law & Technology Review

The failure to agree on a sufficiently narrow definition of "journalist" has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of "journalist" can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits …

E-Lawyering, The Aba's Current Choice Of Ethics Law Rule & The Dormant Commerce Clause: Why The Dormant Commerce Clause Invalidates Model Rule 8.5(B)(2) When Applied To Internet Representations Of Clients , Michael W. Loudenslager

ExpressO

The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction’s law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law, and, if not, the exact duties of an attorney in such representations.

This article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics rules …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Faculty Scholarship

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Toward A Unified Test Of Personal Jurisdiction In An Era Of Widely Diffused Wrongs: The Relevance Of Purpose And Effects, C. Douglas Floyd, Shima Baradaran-Robison

Indiana Law Journal

No abstract provided.

The Gathering Twilight? Information Privacy On The Internet In The Post-Enlightenment Era, Mark F. Kightlinger

Law Faculty Scholarly Articles

The steady stream of news reports about violations of privacy on the Internet has spawned a growing body of literature discussing the legal protections available for personally identifiable information—i.e., information about identified or identifiable persons—collected via the Internet. This Article takes the discussion of Internet privacy protection in a new and very different direction by reexamining the U.S. Internet privacy regime from the perspective of a broader cultural/historical analysis and critique. The perspective adopted is that of Alasdair MacIntyre's account of the disarray in Enlightenment and post-Enlightenment discourse about morality and human nature and the accompanying disappearance of rational justifications …

On-Line But Out Of Touch: Analyzing International Dispute Resolution Through The Lens Of The Internet, Benjamin J.C. Wolf

Cardozo Journal of International and Comparative Law

The note explores the evolution and challenges of international dispute resolution, particularly arbitration, in the context of the internet's impact on global trade. It highlights how arbitration, while effective, faces new complexities such as jurisdictional disputes and enforcement difficulties due to the internet's borderless nature. The author argues that while arbitration remains a vital method for resolving international disputes, it must adapt to the unique challenges posed by digital transactions to ensure continued effectiveness.

It Waste Management In Canada: From Cost Recovery To Resource Conservation?, Meinhard Doelle

Canadian Journal of Law and Technology

The volume, composition and management of solid waste generated by households, governments, the commercial sector, and industry have all changed dramatically over the past century. Household waste contained mainly organic material a hundred years ago. Today, both residential and commercial waste is a complex mix of organics, plastics, paper products, metals and a variety of toxic material. Historically, individual households looked after their own waste, through efforts such as composting and burning. Over the past century, with significant increases in volume of waste generated, municipalities have taken over primary responsibility for solid waste management, initially mainly for aesthetic and sanitary …

Ests Under Canadian Patent Law: Useful Or Not?, Natalie C. Bellefeuille

Canadian Journal of Law and Technology

The following discussion will examine the utility requirement for patentability in the context of EST patents. Part I will provide background information regarding the utility requirement under patent law and will explain why it has been difficult to apply to ESTs. Part II will briefly examine how other jurisdictions, in particular the United States, have addressed the difficul- ties associated with applying the current utility require- ment to biological materials, in particular ESTs. Part III will look at how Canadian courts have interpreted and applied the utility requirement for patentability, and will suggest that ESTs have sufficient value to 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 …

E-Commerce Legislation And Materials In Canada: Lois Sur Le Commerce Électronique Au Canada Et Documents Connexes By Sunny Handa, Claude Marseille & Martin Sheehan (Markham, Ont.: Lexisnexis Butterworths, 2005), John D. Gregory

Canadian Journal of Law and Technology

This hefty volume is a useful compendium of the basic source materials for the law of electronic commerce in Canada. It offers the text of all the general-purpose legislation that removes legal barriers to the use of electronic communications, for all jurisdictions in the country. It then takes a dozen related areas of law, from domain names to taxation, from competition law to consumer protection, from security to standards, and offers a quick overview and the key documents applicable to each. In each case the commentary is in English then in French, and where the texts are available in both …

Producers And Consumers In Eu E-Commerce Law, Banu Sit

Canadian Journal of Law and Technology

Rapid growth of technology in the last decades has given rise to electronic commerce (e-commerce) as a new mode of commerce. This new commerce environment has many characteristics that affect commercial relationships and parties. Of these characteristics, global and borderless commercial activity and the intangible nature of communication can be singled out.

From a legal perspective, e-commerce has developed new modes, of contract formation, performance of contracts for intangible goods, as well as payment. In this new borderless and transient sphere, certain interests of parties involved in commercial activities as buyers or sellers are in need of protection. In particular, …

Vanquishing Copyright Pirates And Patent Trolls: The Divergent Evolution Of Copyright And Patent Laws, Robert E. Thomas

ExpressO

In the last decade copyright law has followed an almost linear path of increasing legal protections for copyright holders’ battle against digital piracy. By contrast, proposed changes in patent law are decidedly anti-patent holder due to efforts to battle patent trolls – companies that acquire and use patent portfolios to extract payoffs from technology companies. Patent law reform faces a far more contentious path and will likely lose several of its most significant provisions. This paper analyzes efforts to change the laws of copyright and patent using James Q. Wilson’s theory of regulation. With little concerted opposition, copyright law has …

How Much Spam Can Can-Spam Can? – Evaluating The Effectiveness Of The Can-Spam Act In The Wake Of White Buffalo Ventures V. University Of Texas, Fay Katayama

ExpressO

No abstract provided.

Protecting Intellectual Property In The Developing World: Next Stop—Thailand, Cortney M. Arnold

Duke Law & Technology Review

This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries.

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

The Role Of Patents In Fostering Open Innovation, John Dubiansky

ExpressO

The patent system is at an inherent tension with contemporary practices of innovation. American patent doctrine reveres the lone inventor who, through the marshalling of extraordinary insight and experimental toil, conceives a novel invention. As a reward, the inventor is given the right to profit from his contribution through personal commercial exploitation. While this perspective may have reflected the practice of the mechanical arts at the time of the nation’s founding, it no longer reflects contemporary industrial research and development, where innovation is an increasingly networked process.

This disconnect is evidenced by the fact that contemporary patent doctrine has failed …

Criminalizing Internet Gambling: Should The Federal Government Keep Bluffing Or Fold?, Wesley S. Ashton

ExpressO

This paper first describes the various mechanical aspects of Internet gambling, and then reviews the U.S. criminal laws that apply to gambling conducted online. As part of this review, several criminal and civil cases involving Internet gambling activities are discussed. Lastly, how the rapidly changing gambling landscape in the United States and the world may effect future federal lawmaking efforts for controlling Internet gambling is considered.

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Mining The Common Heritage Of Our Dna: Lessons Learned From Grotius And Pardo, Jasper A. Bovenberg

Duke Law & Technology Review

The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius’s Mare Liberum to determine whether international law precedent …

Regulatory Status Of Voip In The Post-Brand X World, Jerry Ellig

ExpressO

During the past several years, the Federal Communications Commission has engaged in a series of rulemakings to determine the regulatory status of Voice over Internet Protocol (VoIP). The Supreme Court’s Brand X decision clarifies that even if the FCC’s determination conflicts with that of a court, the FCC’s judgment holds sway as long as the decision is reasonable. We believe that VoIP should be classified as an information service, rather than a telecommunications service, for several reasons. First, the Internet Protocol nature of VoIP technology means that it functions like an information service, rather than a telecommunications service. Second, in …

The Expressive Impact Of Patents, Timothy R. Holbrook

ExpressO

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical.

There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create …

Beyond Abstraction, The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew J. Sag

ExpressO

Uncertainty as to the optimum extent of protection has generally limited the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This article explores the relationship between copyright scope, doctrinal efficiency and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law. The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use.

Opting Out: Procedural Fair Use, Michael R. Mattioli

ExpressO

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

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

ExpressO

“Privacy” is one of the fastest growing areas of the law, due in part to the explosion of the Internet over the past decade. When we speak of privacy in the Internet age, we typically mean data protection, the regulation of the use of personal information about individuals by private interests, such as corporations. Unfortunately, much of the discourse on the subject adopts a framework more suitable to traditional privacy, an inviolable “right to be let alone” by the state. Rather than create a sacrosanct right against the government, the modern incarnation of privacy actually creates a quasi-property right, where …