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LAW (804 journals)                  1 2 3 4 5 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 24)
Acta Juridica     Full-text available via subscription   (Followers: 7)
Acta Politica     Hybrid Journal   (Followers: 15)
Acta Universitatis Danubius. Juridica     Open Access   (Followers: 1)
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adam Mickiewicz University Law Review     Open Access  
Adelaide Law Review     Full-text available via subscription   (Followers: 23)
Administrative Law Review     Open Access   (Followers: 44)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 6)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 19)
Afrilex     Open Access   (Followers: 5)
Ahkam : Jurnal Hukum Islam     Open Access  
Ahkam : Jurnal Ilmu Syariah     Open Access  
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al 'Adalah : Jurnal Hukum Islam     Open Access  
Al-Ahkam     Open Access   (Followers: 1)
Alaska Law Review     Open Access   (Followers: 8)
Albany Law Review     Free   (Followers: 5)
Alberta Law Review     Full-text available via subscription   (Followers: 14)
Alternative Law Journal     Hybrid Journal   (Followers: 8)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 12)
Amazon's Research and Environmental Law     Open Access   (Followers: 4)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 56)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 18)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 11)
American Journal of Legal History     Full-text available via subscription   (Followers: 8)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 7)
American University Law Review     Open Access   (Followers: 10)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 6)
Amsterdam Law Forum     Open Access   (Followers: 8)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access   (Followers: 1)
Annales de droit     Open Access  
Annals of the Faculty of Law in Belgrade - Belgrade Law Review     Open Access  
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 3)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 14)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 5)
Arizona State Law Journal     Free   (Followers: 3)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
ASAS : Jurnal Hukum dan Ekonomi Islam     Open Access  
Asia-Pacific Journal of Ocean Law and Policy     Hybrid Journal  
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Law and Society     Hybrid Journal   (Followers: 7)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 4)
Asian Pacific American Law Journal     Open Access   (Followers: 2)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 7)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 9)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 11)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 22)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 14)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access   (Followers: 2)
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 6)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 6)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 27)
Beijing Law Review     Open Access   (Followers: 5)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 13)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Boletín de la Asociación Internacional de Derecho Cooperativo     Open Access  
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 7)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 11)
Boston College Law Review     Open Access   (Followers: 16)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 7)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 4)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
Business and Human Rights Journal     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers Droit, Sciences & Technologies     Open Access  
California Law Review     Open Access   (Followers: 20)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 168)
Campbell Law Review     Open Access   (Followers: 4)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Canadian Journal of Law & Jurisprudence     Full-text available via subscription   (Followers: 10)
Canadian Journal of Law and Society     Hybrid Journal   (Followers: 20)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
Chicana/o-Latina/o Law Review     Open Access   (Followers: 2)
China : An International Journal     Full-text available via subscription   (Followers: 18)
China-EU Law Journal     Hybrid Journal   (Followers: 6)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 4)
Chinese Law & Government     Full-text available via subscription   (Followers: 9)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 10)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 15)
Columbia Law Review (Sidebar)     Open Access   (Followers: 18)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 38)
Comparative Legal History     Full-text available via subscription   (Followers: 7)
Comparative Legilinguistics     Open Access  
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 40)
Conflict Trends     Full-text available via subscription   (Followers: 12)
Cornell Law Review     Open Access   (Followers: 12)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 5)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 29)
Danube     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 15)
Debater a Europa     Open Access  
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 6)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 3)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 14)
Derecho Animal. Forum of Animal Law Studies     Open Access  
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 3)
Derechos en Acción     Open Access  
Dicle Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Die Verwaltung     Full-text available via subscription   (Followers: 10)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Doxa : Cuadernos de Filosofía del Derecho     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 5)
Duke Forum for Law & Social Change     Open Access   (Followers: 5)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 15)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 4)
Economics and Law     Open Access  
Edinburgh Law Review     Hybrid Journal   (Followers: 19)
Education and the Law     Hybrid Journal   (Followers: 13)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 24)
Energy Law Journal     Full-text available via subscription   (Followers: 5)
Environmental Justice     Hybrid Journal   (Followers: 9)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 13)
ERA-Forum     Hybrid Journal   (Followers: 5)
Erasmus Law Review     Open Access  
Erciyes Üniversitesi Hukuk Fakültesi Dergisi     Open Access  
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 3)
Ethnopolitics     Hybrid Journal   (Followers: 3)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 5)
EU Agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 13)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 9)
European Journal of Law and Technology     Open Access   (Followers: 18)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 6)
European Law Journal     Hybrid Journal   (Followers: 164)
European Public Law     Full-text available via subscription   (Followers: 37)
European Review of Contract Law     Hybrid Journal   (Followers: 25)
European Review of Private Law     Full-text available via subscription   (Followers: 33)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)

        1 2 3 4 5 | Last

Journal Cover
Berkeley Technology Law Journal
Number of Followers: 13  

  Free journal Free journal
ISSN (Print) 1086-3818
Published by U of California Berkeley School of Law Homepage  [6 journals]
  • Complete Volume 33, Issue 1
    • Authors: Berkeley Technology Law Journal
      PubDate: Wed, 12 Sep 2018 12:46:17 PDT
       
  • The Right Tools: Europe’s Intermediary Liability Laws and the EU 2016
           General Data Protection Regulation
    • Authors: Daphne Keller
      Abstract: The European Union’s (EU) General Data Protection Regulation (GDPR) makes important changes to the “Right to Be Forgotten” established by the Court of Justice of the European Union’s landmark 2014 Google Spain ruling. The GDPR introduces new notice-and-takedown rules for “Right to Be Forgotten” requests that will make deliberate or accidental over-removal of online information far too likely. The new rules give private Internet platforms powerful incentives to erase or delist user-generated content—whether or not that content, or the intermediaries’ processing of the content, actually violates the law. These problems could be mitigated, without threatening the important privacy protections established by the GDPR, through procedural checks and balances in the platforms’ removal operations.This Article details the problematic GDPR provisions, examines the convergence of European data protection and intermediary liability law, and proposes ways that the EU’s own intermediary liability laws can restore balanced protections for privacy and information rights. The Article focuses on the motivations and likely real-world behavior of online platforms. It includes close examinations of:
      • Whether and how the “Right to Be Forgotten” may apply to user-generated content hosts like Twitter or Facebook;
      • Free expression provisions in the GDPR;
      • The GDPR’s extraterritorial reach and consequences for companies outside the EU;
      • Doctrinal tensions between the EU’s intermediary liability law under the eCommerce Directive and the EU’s data protection law under the 1995 Data Protection Directive and the new GDPR; and
      • Human rights and fundamental rights laws governing online notice-andtakedown operations.
      PubDate: Tue, 04 Sep 2018 13:08:34 PDT
       
  • Patent Pool Outsiders
    • Authors: Michael Mattiol
      Abstract: Individuals who decline to join cooperative groups—outsiders—raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.The outsider phenomenon has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics industry. Because these transaction-cost savings appear to outweigh the most common competition-related concerns raised by patent pools, antitrust authorities generally view these private groups favorably.Others are less sanguine. Most patent pools are incomplete: for the technologies they cover, not all relevant patents are included. The reason for this is understandable. Patent holders sometimes believe they can negotiate for higher royalties by declining to join an existing pool. Antitrust regulators are aware of this behavior but do not worry much about it. A growing number of economists and legal scholars believe, however, that this outsider behavior may impose higher costs on pool licensees, detracting from the central benefit that patent pools offer—transaction cost savings. These commentators urge antitrust regulators to regard patent pools with greater caution and skepticism.These calls for caution, however, are based mostly on theories about how patent pools should work, rather than on empirical studies. Remarkably, little research has been done to shed light on the actual impact of patent pool outsiders. Through an original ethnographic study, this Article seeks to remedy this gap. A set of the most notable and public episodes of outsider behavior were collected from industry press reports, case reports, and historical archives. Crucial new information was then gathered through interviews with lawyers and executives directly involved with the episodes studied.The study reveals a characteristic of patent pools that has gone unappreciated until now: they subtly but powerfully influence bargains that take place “poolside”—i.e., deals between patent holders and licensees that take place “in the shadow” of the pool. This spillover effect can beneficially limit the power that theorists have assumed outsiders have. This is an unappreciated benefit of cooperation. The theorists, as it turns out, have not used the wrong approach, but rather, have been missing some important parameters.To further aid regulators, this Article builds upon its qualitative findings by introducing a new quantitative technique for estimating the cost that a licensee either incurs or saves due to an outsider. Applying this technique to original financial and industry data gathered from research subjects, this Article shows that, counterintuitively, patent licensees are sometimes better off where cooperation among licensors is partial, rather than complete. The inflection point lies where the royalty rate hike that a unified pool would need to charge to draw in an outsider is equal to the transaction costs that licensees would conserve by dealing with a single pool.This study’s revelations have provocative implications that reach beyond patent law. Contrary to conventional wisdom, slightly fragmented property markets may sometimes be preferable to “grand coalitions.” There may exist in any given market for complementary patent rights (or other complementary property rights), an optimal level of diffusion of ownership that resides between total diffusion and total concentration. Some cooperation may not only be better than none, but also better than more.Drawing upon this study, antitrust regulators who must evaluate patent pools can assemble a clearer and more complete understanding of their overall costs and benefits. This Article is also helpful beyond patent law. The ethnographic methodology followed here reveals dynamics between outsiders and groups that theory alone has not captured. Scholars concerned with outsiders in other areas of law and policy can refine and build upon theory by applying a similar ethnographic approach.
      PubDate: Tue, 04 Sep 2018 13:08:27 PDT
       
  • Digital Exhaustion: New Law from the Old World
    • Authors: Lothar Determann
      Abstract: Ebooks, audio files, video clips, computer programs, and other digital goods have become central to our information society and sharing community. When consumers acquire digital goods, they are usually prompted to accept lengthy and complex contract terms that limit consumers’ rights. Scholars and consumer protection associations are worried whether consumers still know what they buy when they click to “buy now”— apparently few do, according to a recent empirical study. While the study was conducted in the new world, consumer protection associations in the old world were already trying cases in German courts, asserting that consumers were misled when they were invited to “buy” digital goods under contract terms that precluded any resale of digital goods. Yet, interestingly, German courts have not been sympathetic to the claims. German courts held that downloads of digital goods other than computer programs do not exhaust distribution rights; consumers cannot own digital goods they download; and, even if they did, they cannot temporarily reproduce them to sell a copy without the storage medium.In this Article, I provide an introduction to the practical and legal dimension of digital exhaustion; examine the statutory framework in the European Union and the United States in comparison; analyze case law on both sides of Atlantic, including very recent decisions regarding digital goods that have not yet been publicized in the United States; and provide an international perspective on exhaustion across national borders. I then apply the relevant legal principles to a set of common factual scenarios and variations to illustrate the significance of the topic and provide concrete legal results as well as a well-founded policy assessment.The rules on copyright exhaustion remain very complex and divergent in the United States and the European Union. They differ in both jurisdictions, differ between software and other works, differ depending on transaction terms, differ as to whether reproduction is permissible to sell copies separate from storage media, and differ as to whether exhaustion applies internationally. It is no wonder many consumers do not know what they “buy” when they “buy now.”
      PubDate: Tue, 04 Sep 2018 13:08:21 PDT
       
  • At the Privacy Vanguard: California’s Electronic Communications
           Privacy Act (CalECPA)
    • Authors: Susan Freiwald
      Abstract: This Article engages with and contributes to the academic literature on electronic communications privacy by providing the first detailed assessment of California’s groundbreaking legislation. It provides judges and practicing attorneys with practical information on how to interpret and apply CalECPA. In addition, because it analyzes the statute’s innovations and the questions it leaves unanswered, those considering whether to replicate CalECPA’s provisions in Congress, as well as statehouses across the country, will find it valuable.
      PubDate: Tue, 04 Sep 2018 13:08:15 PDT
       
  • IP Privateering in the Markets for Desktop and Mobile Operating Systems
    • Authors: Daniel L. Rubinfeld
      Abstract: Utilizing a privateering competitive strategy, firms sponsor the assertion of intellectual property (“IP”) claims by third parties (patent assertion entities and others), with the ultimate objective of raising of rival competitors’ costs. This Article tells the privateering story with respect to both desktop and mobile operating systems competition. It begins with Microsoft’s funding of litigation against Linux—a threat to Microsoft’s desktop operating system monopoly—and continues to an analysis of recent competition in the smartphone space. The Article raises potential competitive concerns and related antitrust and IP enforcement issues.
      PubDate: Tue, 04 Sep 2018 13:08:09 PDT
       
  • Computer-Aided Destruction: Regulating 3D-Printed Firearms Without
           Infringing on Individual Liberties
    • Authors: Jessica Berkowitz
      Abstract: Additive manufacturing, also known as 3D printing, is a rapidly developing technology that is changing the way people manufacture goods. Individual consumers can purchase a 3D printer for their own personal use, providing them with the ability to create fully customizable products in the privacy of their own homes. However, there is one 3Dprinted product that is causing much controversy and debate: firearms. Armed with a 3D printer and the desired design and filament, an individual can print a fully functioning weapon, bypassing federal and state licensing, registration, and manufacturing requirements. There are statutes currently in effect that may offer some control over 3Dprinted guns; however, these statutes may need to be altered to provide adequate regulatory control over illegal possession and misuse of 3D-printed firearms. Additionally, any future regulations will almost certainly be scrutinized under both the First and Second Amendments, balancing public safety concerns with individual liberties. Moreover, many possible regulations of the technology itself would be impractical and run afoul of the public policy goal of protecting technological innovation. It is currently—and will likely always be—impossible to 3D-print gunpowder, a necessary component of a functioning firearm. Therefore, to best regulate 3D-printed firearms, while also protecting constitutional liberties and technological innovation, this Note proposes an expansion of the Brady Bill to require background checks for ammunition purchases. This is the most readily available remedy to the specific regulatory challenges posed by 3D-printed firearms, as amending the Brady Bill is relatively simple and less invasive for firearms dealers who already have access to the National Instant Criminal Background Check System used for firearms purchases.
      PubDate: Tue, 04 Sep 2018 13:08:03 PDT
       
  • Information Fiduciaries in Practice: Data Privacy and User Expectations
    • Authors: Ariel Dobkin
      Abstract: Every day, consumers give their personal information to corporations in exchange for free or inexpensive services. As service providers collect increasingly personal information, they will not be able to use it just to inform business decisions, but also to manipulate users, push agendas, or discriminate surreptitiously. And users may not know exactly how these companies collect and use their data, so they may not be equipped to respond effectively to objectionable data collection practices. The law does nothing to manage this relationship, and in fact, the Supreme Court has interpreted the First Amendment to prevent certain regulation of data collection or usage. However, imposing an information fiduciary duty on service providers could ensure that they use data only in ways that are consistent with users’ expectations. This Article maintains that service providers should be proscribed from utilizing users’ personal information to manipulate them and discriminate against them, and that firms should be prohibited from sharing data with third parties under certain circumstances. It also proposes that firms engage with their users by employing easy-to-understand privacy policies that help reduce information asymmetries. Ultimately, imposing an information fiduciary duty on service providers can ensure that firms are able to grow and innovate and that their users—whose data is necessary for that growth—are protected as well.
      PubDate: Tue, 04 Sep 2018 13:07:57 PDT
       
  • IS THERE AN ANTICOMMONS TRAGEDY IN THE WORLD SMARTPHONE INDUSTRY'
    • Authors: Alexander Galetovic et al.
      Abstract: An influential literature claims that standard setting for high–technology interoperable products potentially creates monopoly power for the owners of standard–essential patents. Moreover, because there are many owners of standard–essential patents, and each may independently exercise monopoly power (a phenomenon called royalty stacking), an anticommons tragedy may ensue. With actual data from the canonical case of the smartphone industry, this Article shows that royalty stacking theory predicts a cumulative royalty yield of nearly eighty percent. That is, it predicts that four–fifths of the price of a smartphone will accrue to patent holders. Even if all patent holders would combine to eliminate the tragedy of the anticommons and behave as a single monopolist, theory predicts a cumulative royalty yield of nearly sixty–seven percent. That is, it predicts that two–thirds of the price of a smartphone will accrue to patent holders. This Article then uses actual data from licensors in the smartphone value chain to estimate the actual cumulative royalty yield. It finds that in 2016, the cumulative royalty yield in the world smartphone value chain was only 3.4 percent of the average selling price of a smartphone. This suggests that patent holders do not exercise any meaningful monopoly power to increase prices in the world smartphone market, much less that there is an anticommons tragedy in the smartphone industry.
      PubDate: Thu, 12 Jul 2018 14:22:34 PDT
       
  • THE “TRAGEDY OF THE ANTICOMMONS” FALLACY: A LAW AND ECONOMICS ANALYSIS
           OF PATENT THICKETS AND FRAND LICENSING
    • Authors: David J. Teece
      Abstract: Heller introduced the “anticommons” concept in the late 1990s, based on Hardin’s earlier “commons” concept, to refer to the situation in which numerous entities control the rights to use some asset or related cluster of assets. Heller and Rosenberg argued that, in such situations, users would need permission from multiple rights holders in order to use the asset(s), and that the difficulties of coordination would lead to inefficient underuse, leading to what they termed the “tragedy of the anticommons.” This Article addresses the limitations of the “tragedy of the anticommons” arguments in the context of licensing of patents related to some industry standard for which the patent holders have committed to license their patents on “fair, reasonable and nondiscriminiatory” (“FRAND”) licensing terms. This Article identifies several real–world examples where Heller and Eisenberg’s prediction of underuse are not borne out in practice, and explain why real–world institutions that have emerged have largely solved the problem.
      PubDate: Thu, 12 Jul 2018 14:22:28 PDT
       
  • LITIGATION OF STANDARDS-ESSENTIAL PATENTS IN EUROPE: A COMPARATIVE
           ANALYSIS
    • Authors: Jorge L. Contreras et al.
      Abstract: Despite the significance of patent litigation in the EU and the looming structural overhaul of the European patent litigation system, there has been comparatively little empirical or statistical analysis of European patent cases across member states. This absence has largely been due to the lack of harmonized case-level data across European jurisdictions. Over the past few years, however, researchers in Europe have developed patent litigation databases that have enabled robust quantitative analysis. As a result, comparative empirical studies have recently been published concerning European patent litigation overall, as well as litigation by so-called non-practicing entities (NPEs). The present study extends this work to the important area of litigation relating to standardsessential patents (SEPs) in the EU. We find that SEPs has been asserted in Europe at significant levels, and that PAEs play a large role in this activity.
      PubDate: Thu, 12 Jul 2018 14:22:22 PDT
       
  • THE SMALLEST SALABLE PATENT-PRACTICING UNIT: OBSERVATIONS ON ITS ORIGINS,
           DEVELOPMENT, AND FUTURE
    • Authors: David Kappos et al.
      Abstract: The concept of basing patent infringement damages on the sale of the smallest salable patent–practicing unit (“SSPPU”) has garnered support from a significant portion of the U.S. innovation community. Some supporters contend that the SSPPU is a substantive rule for defining the appropriate royalty base for all purposes and in all contexts. In this Article, we challenge this view and conclude that the SSPPU is merely a tool used to implement the apportionment requirement created in Garretson v. Clark, 111 U.S. 120 (1884), in the context of patent infringement jury trials. This Article further clarifies the SSPPU’s role and limits in U.S. patent damage determinations. Some of these limits include its (a) inability to estimate the value of licenses in large portfolios, (b) irrelevance to standard–essential patents in FRAND licensing situations, and (c) inability to override actual market value. We believe an understanding of these limitations is necessary to avoid erroneously applying the SSPPU in contexts for which it is not intended and in which application could lead to a reduction of incentives for innovation and R&D, particularly in standards–dependent fields.
      PubDate: Thu, 12 Jul 2018 14:22:16 PDT
       
  • WHY INCENTIVES FOR “PATENT HOLDOUT” THREATEN TO DISMANTLE
           FRAND, AND WHY IT MATTERS
    • Authors: Richard A. Epstein et al.
      Abstract: An increasing number of judges, legislators, and scholars, particularly in the United States, have wrongly come to believe that the commitment that standard-essential patents be licensed on “fair, reasonable, and nondiscriminatory terms” (“FRAND”) was principally created to advance the interests of technology implementers, and have too often given a preference toward implementers’ interests in interpreting FRAND agreements. That premise has led American courts to take a categorically hostile view toward awarding injunctions against implementers who infringe valid standard-essential patents, fearing that the injunctive remedy would give innovators undue leverage. Indeed, American courts have been so unilaterally concerned with innovators’ conduct that some have even allowed implementers to sue innovators simply for making an opening licensing offer that is later deemed “too high,” even if the implementer refused to make any counteroffer at all. An implementer–centric view of FRAND has also caused several courts to conclude that innovators are not entitled to any share of the commercial benefits arising from the standardization of their technologies, and that all such benefits must go to implementers alone. This Article argues that an implementer–centric view of FRAND’s origins and purposes is false. FRAND is a contractual agreement that reflects a voluntary reciprocal exchange of benefits and obligations driven by the need to solve significant coordination problems in the face of otherwise prohibitive transaction costs. As part of that bargain, innovators agree to disclose their latest, confidential discoveries to standard–development organizations and to waive their injunction rights as to eventual patents on those discoveries, in exchange for contractual protection against “patent holdout” by implementers. Those implementers are then permitted to use standard–essential patents on the condition that they agree to pay fair and adequate royalties for that use, with the royalty amount to be set through mutual good–faith negotiations. Accordingly, this Article stresses that FRAND is not intended to be, and should not be interpreted as, a one-sided transfer from innovators to implementers. Rather, implementers too owe a significant duty to negotiate FRAND licenses in good faith—a duty that many courts have overlooked and underenforced. This Article demonstrates that implementers’ good faith obligations are a critical component of the basic FRAND architecture and that enforcement of those obligations is strictly necessary to the continued development of innovation–driven standards. This Article further observes that the FRAND bargain is not simply meant to give innovators a way to monetize their intellectual property. Rather, and perhaps more significantly, FRAND creates an agreed bargaining framework that allows implementers to access innovators’ otherwise–confidential discoveries—inventions so recent that they are not otherwise disclosed in patents or published applications. In this way, FRAND supplies a solution to an iteration of Kenneth Arrow’s paradox of information, enabling the standards development effort to yield commercial benefits that would not exist absent innovators’ voluntary participation. Stated otherwise, innovators agree to give implementers access—and a fair license—to their most groundbreaking technologies because innovators believe that implementers will reciprocally later agree to take a license in good faith for using those highly–valuable innovations. This Article shows both theoretically and empirically that courts’ failure to appreciate these aspects of the FRAND bargain, combined with their overreliance on liability rules (i.e., damages over injunctions) incentivizes the very patent holdout problem FRAND was intended to avoid. That “efficient infringement” outcome, in turn, has motivated innovators to reduce their participation in FRAND bargains, threatening to unravel a massive innovation– commercialization marketplace and its innumerable positive externalities for all parties. To reverse these harms, this Article recommends that courts automatically issue an injunction where an implementer is found to infringe valid FRAND–committed patents that it did not attempt to license in good faith. This Article also recommends that a proper FRAND licensing rate should include some portion of the benefits achieved through standardization of the innovations in question. More broadly, this Article suggests that courts, policymakers, and academic commentators have wrongly favored implementation over innovation—“things” over ideas—unwisely frustrating the emergence of an “ideas economy” that should rightly assign significant profits to upstream innovators and not to the low–margin manufacturing firms that specialize in turning those innovations into tangible products.Those implementers are then permitted to use standard–essential patents on the condition that they agree to pay fair and adequate royalties for that use, with the royalty amount to be set through mutual good–faith negotiations.
      PubDate: Thu, 12 Jul 2018 14:22:11 PDT
       
  • HAS THE ACADEMY LED PATENT LAW ASTRAY'
    • Authors: Jonathan M. Barnett
      Abstract: Scholarly commentary widely asserts that technology markets suffer from a triplet of adverse effects arising from the strong patent regime associated with the establishment of the Court of Appeals for the Federal Circuit in 1982: “patent thickets” burdening innovation with transaction and litigation costs; “patent holdup” resulting in excessive payouts to opportunistic patent holders; and “royalty stacking” causing exorbitant patent licensing fees. Together these effects purportedly depress innovation and inflate prices for end–users. These repeated assertions are inconsistent with the continuing robust output, declining prices, and rapid innovation observed in the most patent–intensive technology markets during the more than three decades that have elapsed since 1982. Recent empirical studies relating to each of these assertions have found little to no supporting evidence over a variety of markets and periods. Nonetheless courts, legislators, and antitrust agencies have taken, or have proposed taking, actions consistent with these assertions. Most importantly, policymaking entities have sought to mitigate thickets, holdup, and stacking effects by limiting injunctive relief for important segments of the patentee population. Substituting monetary relief for injunctive relief—what I call the “depropertization” of the patent system—yields three potential efficiency losses. First, depropertization impedes efficient resource allocation by shifting the pricing of technology assets from the relatively informed marketplace to relatively uninformed judges and regulators. Second, depropertization distorts markets’ organizational choices by inducing entities to undertake innovation and commercialization through vertically integrated structures, rather than contractual relationships now clouded by the prospect of judicial renegotiation. Third, depropertization may facilitate oligopsonistic efforts to depress royalties on patent–protected inputs, resulting in wealth transfers to downstream entities and discouraging innovation by upstream R&D suppliers. This possibility is consistent with lobbying behavior by downstream intermediate users in the smartphone market, who advocate limiting injunctive relief for significant categories of patent holders. These potential welfare losses, combined with the paucity of evidence for thicket, holdup, and stacking effects, recommend against policy actions that have weakened the remedies available to patent holders in information technology markets.
      PubDate: Thu, 12 Jul 2018 14:22:05 PDT
       
  • INTRODUCTION: ANTITRUST, STANDARD ESSENTIAL PATENTS, AND THE FALLACY OF
           THE ANTICOMMONS TRAGEDY: LEGAL AND INDUSTRIAL POLICY CONCERNS
    • Authors: Sohvi Leih et al.
      Abstract: N/A
      PubDate: Thu, 12 Jul 2018 14:21:59 PDT
       
  • HOW DIGITAL ASSISTANTS CAN HARM OUR ECONOMY, PRIVACY, AND DEMOCRACY
    • Authors: Maurice E. Stucke et al.
      Abstract: Digital assistants embody the dream of an effortless future, free from the shackles of yesteryear: a tool which caters to users’ needs, excels at anticipating their wants, and delivers a personalized online environment. While digital assistants can certainly offer great value, a closer look reveals how—in an algorithm and data–driven world—a dominant digital assistant may ultimately serve the interests of corporations rather than consumers. Such assistants may be used to establish a controlled and manipulated personalized environment in which competition, welfare, privacy, and democracy give way to corporate interests. The future is not necessarily bleak, but requires our attention if users want the leading assistants to match the effortless dream.
      PubDate: Wed, 11 Jul 2018 15:51:55 PDT
       
  • DESIGNING AGAINST DISCRIMINATION IN ONLINE MARKETS
    • Authors: Karen Levy et al.
      Abstract: Platforms that connect users to one another have flourished online in domains as diverse as transportation, employment, dating, and housing. When users interact on these platforms, their behavior may be influenced by preexisting biases, including tendencies to discriminate along the lines of race, gender, and other protected characteristics. In aggregate, such user behavior may result in systematic inequities in the treatment of different groups. While there is uncertainty about whether platforms bear legal liability for the discriminatory conduct of their users, platforms necessarily exercise a great deal of control over how users’ encounters are structured—including who is matched with whom for various forms of exchange, what information users have about one another during their interactions, and how indicators of reliability and reputation are made salient, among many other features. Platforms cannot divest themselves of this power; even choices made without explicit regard for discrimination can affect how vulnerable users are to bias. This Article analyzes ten categories of design and policy choices through which platforms may make themselves more or less conducive to discrimination by users. In so doing, it offers a comprehensive account of the complex ways platforms’ design and policy choices might perpetuate, exacerbate, or alleviate discrimination in the contemporary economy.
      PubDate: Wed, 11 Jul 2018 15:51:49 PDT
       
  • PLATFORM LAW AND THE BRAND ENTERPRISE
    • Authors: Sonia K. Katyal et al.
      Abstract: The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship—the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law–and one another–in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension between these two formations, this Article suggests a two-prong approach utilizing both legislative adjustments to trademark law, as well as common law adjustments, to modernize trademark doctrine for the digital economy.
      PubDate: Wed, 11 Jul 2018 15:51:42 PDT
       
  • DETERRING CYBERCRIME: FOCUS ON INTERMEDIARIES
    • Authors: Aniket Kesari et al.
      Abstract: This Article discusses how governments, intellectual property owners, and technology companies use the law to disrupt access to intermediaries used by financially– motivated cybercriminals. Just like licit businesses, illicit firms rely on intermediaries to advertise, sell and deliver products, collect payments, and maintain a reputation. Recognizing these needs, law enforcers use the courts, administrative procedures, and self–regulatory frameworks to execute a deterrence by denial strategy. Enforcers of the law seize the financial rewards and infrastructures necessary for the operation of illicit firms to deter their presence. Policing illicit actors through their intermediaries raises due process and fairness concerns because service–providing companies may not be aware of the criminal activity, and because enforcement actions have consequences for consumers and other, licit firms. Yet, achieving direct deterrence by punishment suffers from jurisdictional and resource constraints, leaving enforcers with few other options for remedy. This Article integrates literature from the computer science and legal fields to explain enforcers’ interventions, explore their efficacy, and evaluate the merits and demerits of enforcement efforts focused on the intermediaries used by financially–motivated cybercriminals.
      PubDate: Wed, 11 Jul 2018 15:51:34 PDT
       
 
 
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