Science and Technology Law Commons^™

The Copyright Work Of Authorship, Hemnes, Thomas

Santa Clara High Technology Law Journal

The “work of authorship” lies at the heart of the Copyright Act of 1976. It is what copyright protects. Central though the concept is, the Act never defines what a work of authorship might be. According to the Act, it can be perceived in tangible fixations, but is distinct from the fixations. The Act also provides examples: writings, drawings, computer programs, but never describes how these might be distinguished from their fixations. Unlike the Patent Act, where “metes and bounds” of a patentable invention are defined by a patent’s claims, the Copyright Act provides no guidance as to what the …

Non-Fungible Tokens (Nfts) And Copyright Law, Ochoa, Tyler T.

Santa Clara High Technology Law Journal

The concept of using non-fungible tokens (NFTs) to facilitate and authenticate sales of digital art dates back to 2014; but it took several years before the concept really captured public attention. Since copyright law governs the reproduction of works of art, including digital images, the connection to NFTs seems obvious. Yet, copyright law is only tangentially related to NFTs, for two reasons. First, buying an NFT does not, by itself, convey any rights to reproduce or display the work associated with that token. Instead, those rights are governed entirely by the contract that accompanies the sale. Second, minting and selling …

Analysis Of Global Data Privacy Regulations And How Transnational Companies Are Impacted, Fujimori-Smith, Aska

Santa Clara High Technology Law Journal

Privacy regulations are being developed and altered globally. An American company working transnationally will want to make sure to comply with the privacy regulations of each country in which the company either conducts business or otherwise utilizes that country’s citizens’ data. Currently, the GDPR has the strictest standards regarding data processing agreements between a primary organization and another data processor. While the CCPA/CPRA and the PDPA require DPAs, a company in compliance with the GDPR will likely comply with the CCPA/CPRA and the PDPA. Case law is evolving to address the extent of the reach of the extraterritorial legislation. However, …

Relying On Unreliable Tech: Unchecked Police Use Of Algorithmic Technologies, Fraerman, Ali

Santa Clara High Technology Law Journal

In the past two decades, police forces have come to rely on algorithm-based technologies for investigative leads. Several of these technologies are unreliable. They are prone to error, misidentifying suspects, and crimes. When relied upon, they lead to false arrests and unnecessary stop-and-frisks. Yet, there is no coercive mechanism, either regulatory or judicial, that meaningfully governs the use of these algorithmic technologies in law enforcement. As a result, law enforcement agencies are free to disregard potential errors and deploy emerging technologies against communities with little recourse.

This Article looks closely at three technologies—ShotSpotter gunshot detection, facial recognition technology, and rapid …

In Event Of An (Ai) Emergency: Interpreting Continuity Of Government Provisions In State Constitutions, Frazier, Kevin T.

Santa Clara High Technology Law Journal

“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.

Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Emerging Technology's Unfamiliarity With Commercial Law, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Chatgpt, Ai Large Language Models, And Law, Harry Surden

Publications

This Essay explores Artificial Intelligence (AI) Large Language Models (LLMs) like ChatGPT/GPT-4, detailing the advances and challenges in applying AI to law. It first explains how these AI technologies work at an understandable level. It then examines the significant evolution of LLMs since 2022 and their improved capabilities in understanding and generating complex documents, such as legal texts. Finally, this Essay discusses the limitations of these technologies, offering a balanced view of their potential role in legal work.

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

Privacy Nicks: How The Law Normalizes Surveillance, Woodrow Hartzog, Evan Selinger, Johanna Gunawan

Faculty Scholarship

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.

Privacy nicks come from the …

Maurer Environmental Law Expert Is Lead Author On Science Insights Policy Forum Article, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Environmental champions and conservationists will mark the 50th anniversary of the Endangered Species Act later this month. That is the law requiring federal agencies to use all methods necessary to prevent extinctions and ensure that federal actions not jeopardize the continued existence of species on the brink of disappearing from the face of the Earth.

In the leadup to the December 27th anniversary, several publications have begun examining the Act’s history and impact over five decades.

Science, the world’s third-most influential scholarly journal based on Google Scholar citations, invited experts from around the country to look ahead as well …

Trademark Infringement: The Likelihood Of Confusion Of Nfts In The Us And Eu, Sara Sachs

Brooklyn Journal of International Law

The immutability of non-fungible tokens has made it an invaluable tool for asset ownership and authentication across a variety of industries. With the proliferation of NFTs comes the need to protect trademarks and prevent consumer confusion in the digital age. This Note explores the existing legal framework for trademark law in the United States and European Union. This Note argues for a new trademark standard that reflects the interconnected nature of a global digital society.

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

Code And Prejudice: Regulating Discriminatory Algorithms, Bernadette M. Coyle

Washington and Lee Law Review Online

In an era dominated by efficiency-driven technology, algorithms have seamlessly integrated into every facet of daily life, wielding significant influence over decisions that impact individuals and society at large. Algorithms are deliberately portrayed as impartial and automated in order to maintain their legitimacy. However, this illusion crumbles under scrutiny, revealing the inherent biases and discriminatory tendencies embedded in ostensibly unbiased algorithms. This Note delves into the pervasive issues of discriminatory algorithms, focusing on three key areas of life opportunities: housing, employment, and voting rights. This Note systematically addresses the multifaceted issues arising from discriminatory algorithms, showcasing real-world instances of algorithmic …

Artificial Intelligence And The Administrative State: Regulating The Government Use Of Decision-Making Technology, Gordon Unzen

Minnesota Journal of Law, Science & Technology

No abstract provided.