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J. of Criminal Law and Criminology     Full-text available via subscription   (Followers: 41, SJR: 0.336, CiteScore: 1)
Northwestern University Law Review     Full-text available via subscription   (Followers: 8, SJR: 1.381, CiteScore: 1)
Northwestern J. of Technology and Intellectual Property     Open Access   (Followers: 7)
Northwestern J. of Law & Social Policy     Open Access   (Followers: 6)
Northwestern J. of Intl. Human Rights     Open Access   (Followers: 5)
Northwestern J. of Intl. Law & Business     Open Access   (Followers: 4, SJR: 0.107, CiteScore: 0)
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Northwestern Journal of Technology and Intellectual Property
Number of Followers: 7  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1549-8271
Published by Northwestern University Homepage  [6 journals]
  • Rethinking Equitable Estoppel in Patent Law

    • Authors: Joshua J. Lustig
      Abstract: In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit's recent equitable estoppel jurisprudence is inconsistent with equity's goal of fairness and presents a new theory of equitable estoppel — "inchoate estoppel" — which would create fairer outcomes for patentees and defendants alike.
      PubDate: Wed, 30 Nov 2022 09:00:17 PST
  • The First Amendment and Online Access to Information About Abortion: The
           Constitutional and Technological Problems with Censorship

    • Authors: John Villasenor
      Abstract: To what extent could an abortion-restrictive state impede access to online information about abortion' After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding the extent of state power to limit access to information in this domain. The essay also considers the technological implications of state efforts to censor online access to information about abortion, concluding that these efforts would be mostly, though not completely, unsuccessful.
      PubDate: Wed, 30 Nov 2022 09:00:12 PST
  • Countering Personalized Speech

    • Authors: Leon G. Ho
      Abstract: Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user privacy and autonomy as both sources and incentives for data collection.As with any harmful speech, the solution is often counterspeech. Free speech jurisprudence considers counterspeech the most speech-protective weapon to combat false or harmful speech. Thus, to combat problematic recommendation decisions, social media platforms, policymakers, and other stakeholders should embolden end users to use counterspeech to reduce the harmful effects of platform personalization.One way to implement this solution is through end user personalization inputs. These inputs reflect end user expression about a platform's recommendation decisions. However, industry-standard personalization inputs are failing to provide effective countermeasures against problematic recommendation decisions. On most, if not all, major social media platforms, the existing inputs confer limited ex post control over the platform's recommendation decisions. In order for end user personalization to achieve the promise of counterspeech, I make several proposals along key regulatory modalities, including revising the architecture of personalization inputs to confer robust ex ante capabilities that filter by content type and characteristics.
      PubDate: Wed, 30 Nov 2022 09:00:07 PST
  • Copyright and Federalism: Why State Waiver of Sovereign Immunity is the
           Best Remedy for State Copyright Infringement

    • Authors: Leroy J. Ellis V
      Abstract: When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission.However, what happens when the infringer is not a private party' What happens when the state or a state entity is the infringer' What happens when a public university decides to use a copyright owner’s work without pay or permission' Can the copyright owner seek damages from the university for infringement' If not, then how can a copyright owner recover damages for state infringement'Until recently, the answer was that copyright owners could obtain damages from the university for copyright infringement under the Copyright Remedies Clarification Act, 17 U.S.C. §511, but in Allen v. Cooper, the United States Supreme Court held the Act unconstitutional in part because there was not enough evidence of state infringement to support waiving sovereign immunity. Now the question has no clear answer. While some state cases have copyright owners attempting to obtain damages through alternative means, there does not seem to be an easy way for copyright owners to obtain monetary relief for state copyright infringement. National legislation could be proposed once again, but how well would that fair against the Court’s current precedent' Would it be better to ask the states to waive immunity themselves'Monetary remedies for wrongs should be available, even when the wrong is committed by the state or its entities. The issue is finding a way around sovereign immunity. Sometimes the way around sovereign immunity is by using federalism.
      PubDate: Wed, 30 Nov 2022 09:00:02 PST
  • Fiscal Transformations Due to AI and Robotization: Where Do Recent Changes
           in Tax Administrations, Procedures and Legal Systems Lead Us'

    • Authors: Maria Amparo Grau Ruiz
      Abstract: Tax administrations are currently experiencing transformations worldwide. This phenomenon has an impact on traditional tax rules. Increased technological capabilities open the door to review procedural and substantial regulation. The reinforcement of reporting and transparency requirements, and the connectivity between information systems in the public and private sector, will probably have a decisive influence on the evolution of tax law. Chatbots capture relevant data about the legal persons subject to different types of tax obligations. This information may be used to prepare more detailed administrative guidance, or even design future normative reforms. To efficiently protect justice and the rule of law in taxation, a human-centered centered approach can deliver benefits, while minimizing risks. However, the multi-faceted nature of humans must be considered in order to sustain true digital rights. Some general charters are being developed, and their contents should be embedded in technology. Computation and tax experts should pay attention to the work of different oversight institutions.
      PubDate: Wed, 20 Apr 2022 16:30:07 PDT
  • Student Speech Online: A Matter of Public Concern

    • Authors: Eric Hogrefe
      Abstract: The Supreme Court’s recent decision in Mahanoy Area School District v. B. L. ex rel. Levy partially answered the long-standing question of when schools can police student speech that takes place online. But Mahanoy largely ignored decades of scholarship, and opinions by lower courts, all of which assumed online speech was governed by the Court’s earlier student speech cases—especially the seminal Tinker v. Des Moines Independent Community School District.This Note argues that Mahanoy and Tinker are consistent with each other, and both are consistent with the Court’s decisions governing another distinctive kind of speech: public employee speech. It introduces a framework for online student speech that is based on the framework for public employee speech, one focused on official duties and public concern. By grounding student speech in the public employee framework, I harmonize Mahanoy’s idiosyncratic approach with established law.
      PubDate: Sat, 02 Apr 2022 13:40:09 PDT
  • Beacons: A Viable Solution to the Ever-Evolving Problem of Corporate Data

    • Authors: Lauren Fiotakis
      Abstract: In an increasingly virtual world, data breaches continuously plague large corporations. These companies have few options to keep their data out of the hands of persistent hackers, who often discover ways around any safeguards that may be in place. It seems as though any measures companies are currently able to employ merely delay the inevitable breach that will bring with it the potential loss of both customers’ data and their faith in the privacy and security of their information. These attacks can be debilitating to corporations; thus, it seems only fair to provide them the ability to take active measures to defend against cybercriminals.Some have argued that allowing hacking victims to retaliate against their attackers could help reduce cybercrime. Others suggest that these counterstrikes may lead to an increased prevalence of attacks rather than deter initial attackers. This note will argue that the use of beacons—code hidden in a company’s files that alerts the company of the files’ theft— should be permitted as an effective and proportional cyber-self-defense measure.
      PubDate: Sat, 02 Apr 2022 13:40:02 PDT
  • Toward Decentralized Commercial Law For Digital Assets

    • Authors: Marek Dubovec
      Abstract: Technology affects various facets of the society and law. It has been tightly coupled in a symbiotic relationship with commercial law, including the Uniform Commercial Code (U.C.C.). While the conceptual framework of the U.C.C. and its realist ethos has fostered innovation since the 1950s, recent technological advances pose new challenges. In particular, digital assets traded in decentralized blockchain systems promise to engender a wide array of applications, prompting new business practices.A number of efforts have been recently undertaken to address the fundamental challenges to established legal concepts posed by these technological advances. All these efforts march forward grappling with a similar set of substantive issues, including what actions should the law recognize for a transferee to acquire a digital asset, such as Bitcoin. This article identifies the appropriate form in which commercial law should be expressed, including rules and standards. It identifies decentralized legislative solutions embedded in the U.C.C., analyzes how they have supported the growth of systems for the holding and transfers of various types of electronic records, and then applies the relevant solutions to particular issues concerning the use of digital assets, defined as controllable electronic records, in commercial transactions.Decentralization of systems pits centralized commercial law in the form of bright-line and mandatory rules against decentralized solutions of party autonomy, standards, and system rules that enable parties to tailor the law to their needs. The article argues that rules in the form of principled norms should govern the legal effect of transfers on third-party claims, particularly non-participants in systems. It isolates a particular type of a standard that it labels a “technology standard” which enables the system design to concretize the standard ex ante. Technology standards are suitable to establish when and how a person acquires rights to a digital asset. The highest form of decentralized legislative solutions in the form of system rules would be appropriate only for central bank digital currencies that have the characteristics of the systematically important institutions. This article argues that decentralization of commercial law does not undercut one of the primary aims of the U.C.C., which is to make the law uniform, and enables evolution of the relevant regulatory rules.
      PubDate: Sat, 02 Apr 2022 13:39:54 PDT
  • A Musical Cue For Fashion: How Compulsory Licenses And Sampling Can Shape
           Fashion Design Copyright

    • Authors: Caroline Olivier
      Abstract: The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of the music industry to protect designers’ intellectual property while conserving industry norms of creative inspiration and fleeting trend cycles.
      PubDate: Sun, 27 Feb 2022 09:03:38 PST
  • Maximizing Social Welfare Through the Tailoring of Patent Duration and
           Using Algorithms to Calculate Optimal Patent Duration

    • Authors: Alvaro Cure Dominguez
      Abstract: Patents are legal devices granted by the government that confer inventors exclusive rights to their invention for a limited time. In exchange, the U.S. government requires the inventors to publicly disclose their invention to allow individuals to recreate it upon expiration of the exclusivity period. Previously, academics regarded patents as a necessary means to overcome the free-rider dilemma (“FRD”), and they assumed that, without patents, society would be deprived of many potentially valuable innovations. This model has come under criticism. Researchers point to cases where inventors would have innovated regardless of a patent grant. They also highlight instances where patent owners use patents in ways not originally contemplated under this model and that create additional societal deadweight loss. Furthermore, patents have a standardized term of duration, which, in many cases, is counterproductive to the patent system’s intended goal of maximizing social welfare.This note explores and categorizes some of the external, noneconomic alternative mechanisms that incentivize innovation and result in inventors overcoming the FRD. This note also points to factors that affect an inventor’s responsiveness to incentive mechanisms, such as industry type. The note then considers different policy levers that affect patent strength, emphasizing patent duration. The note explores how these levers interact with incentive mechanisms to create optimal duration patents that maximize social welfare. Lastly, this note proposes an algorithm for calculating optimal patent duration and identifies essential variables for feeding into the algorithm.
      PubDate: Sun, 27 Feb 2022 09:03:30 PST
  • Muddy Waters: Fair Use Implications of Google LLC v. Oracle America, Inc.

    • Authors: Gary Myers
      Abstract: OohIn the muddy water we’re fallingOoh In the muddy water we’re crawlingHolds me downHold me nowSold me outIn the muddy waters we’re falling— Laura Pergolizzi (LP) - “Muddy Waters,” Lost On You (Vagrant Records 2016)The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.The Court’s fair use ruling provides important guidance on the scope of fair use in the context of computer software and other functional works, and it provides some clarity on the extent to which a use of copyrighted works can be deemed transformative. But the Court’s analysis might only exacerbate the unpredictable nature of the fair use defense, particularly given its treatment of the role of good faith, the scope of potential markets that may be affected by an unauthorized use of copyrighted works, and the role (if any) of the public interest in the market effect factor of the fair use analysis.
      PubDate: Sun, 27 Feb 2022 09:03:21 PST
  • Ostrich with Its Head in the Sand: The Law, Inventorship, & Artificial

    • Authors: Ben Kovach
      Abstract: As artificial intelligence (AI) system’s capabilities advance, the law has struggled to keep pace. Nowhere is this more evident than patent law’s refusal to recognize AI as an inventor. This is precisely what happened when, in 2020, the U.S. Patent and Trademark Office (USPTO) ruled that it will not accept an AI system as a named inventor on a patent.This note explores untenable legal fiction that the USPTO’s ruling has created. First, it explores the current state of AI systems, focusing on those capable of invention. Next, it examines patent law’s inventorship doctrine and the USPTO’s application of that doctrine to AI inventors. The note then explains that disallowing AI systems as inventors does not map well onto patent law’s most common justifications. Finally, the note recommends a solution that maximizes patent law’s incentive structure; AI systems should be allowed as named inventors when patent ownership has been pre-contracted away to a natural person. If patent ownership has not been pre-contracted, the idea should enter the public domain and be unpatentable.
      PubDate: Fri, 03 Dec 2021 14:21:52 PST
  • The Legislative Recipe: Syntax for Machine-Readable Legislation

    • Authors: Megan Ma et al.
      Abstract: Legal interpretation is a linguistic venture. In judicial opinions, for example, courts are often asked to interpret the text of statutes and legislation. As time has shown, this is not always as easy as it sounds. Matters can hinge on vague or inconsistent language and, under the surface, human biases can impact the decision-making of judges. This raises an important question: what if there was a method of extracting the meaning of statutes consistently' That is, what if it were possible to use machines to encode legislation in a mathematically precise form that would permit clearer responses to legal questions' This article attempts to unpack the notion of machine-readability, providing an overview of both its historical and recent developments. The paper will reflect on logic syntax and symbolic language to assess the capacity and limits of representing legal knowledge. In doing so, the paper seeks to move beyond existing literature to discuss the implications of various approaches to machine-readable legislation. Importantly, this study hopes to highlight the challenges encountered in this burgeoning ecosystem of machine-readable legislation against existing human-readable counterparts.
      PubDate: Fri, 03 Dec 2021 14:21:44 PST
  • Artificial Intelligence as Evidence

    • Authors: Paul W. Grimm et al.
      Abstract: This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal profession. The article underscores the importance of determining the validity of an AI application (i.e., how accurately the AI measures, classifies, or predicts what it is designed to), as well as its reliability (i.e., the consistency with which the AI produces accurate results when applied to the same or substantially similar circumstances), in deciding whether it should be admitted into evidence in civil and criminal cases. The article further discusses factors that can affect the validity and reliability of AI evidence, including bias of various types, “function creep,” lack of transparency and explainability, and the sufficiency of the objective testing of AI applications before they are released for public use. The article next provides an in-depth discussion of the evidentiary principles that govern whether AI evidence should be admitted in court cases, a topic which, at present, is not the subject of comprehensive analysis in decisional law. The focus of this discussion is on providing a step-by-step analysis of the most important issues, and the factors that affect decisions on whether to admit AI evidence. Finally, the article concludes with a discussion of practical suggestions intended to assist lawyers and judges as they are called upon to introduce, object to, or decide on whether to admit AI evidence.
      PubDate: Fri, 03 Dec 2021 14:21:36 PST
  • Foreword: Law + Computation: An Algorithm for the Rule of Law and

    • Authors: Daniel W. Linna Jr.
      PubDate: Fri, 03 Dec 2021 14:21:29 PST

    • Authors: Lauren Peterson
      PubDate: Sun, 30 May 2021 18:34:37 PDT

    • Authors: Genevieve Carter
      Abstract: As consumer DNA testing gains widespread popularity, so has law enforcement’s interest in leveraging genetic databases for criminal investigations. Consumer DNA testing products like 23andMe and Ancestry allow private individuals access to their genetic data on private databases. However, once coded, genetic data is free to be downloaded by users and uploaded to public databases. Police identify suspects by uploading cold case DNA to public genetic databases and find familial matches. If they identify a familial match, they narrow the field of suspects using traditional methods of investigation, which often includes extracting suspect DNA from a piece of their abandoned property. This note examines the Fourth Amendment privacy issues raised by this new investigative strategy and argues that the practice of using public DNA databases for familial search is protected under the Fourth Amendment’s Third-Party Doctrine. However, extracting DNA from abandoned property is outside the scope of an individual’s reasonable expectation of privacy established in California v. Greenwood and may have Fourth Amendment protection.
      PubDate: Sun, 30 May 2021 18:34:29 PDT

    • Authors: Bruce A. Green et al.
      Abstract: The transformative potential of technology in legal practice is well recognized. But wholly apart from how law firms actually use technology is the question of what law firms say about how they use and relate to technology—in particular, how law firms communicate whether technology matters and has value in what they do. In the past, firms in the BigLaw category, especially at the top echelon, have grounded their reputations on the credentials and achievements of their lawyers. In this paper, we explore whether elite law firms use technology similarly by describing it as an additional tool of inter-firm competition—a sort of“technocapital” that wields power in the war for clients, talent, and reputation generally. Based on an in-depth review of the websites of fifty- one nationally recognized and highly ranked law firms, the article analyzes differences in how firms use tech as a means of promoting themselves.We found that elite law firms adopt one of three distinct approaches. The most prestigious firms generally refrain from making claims about technology that might undercut the preeminence of their lawyers. Rather, tech is simply one among many organizing themes for describing what their lawyers do, whether on behalf of an industry or with regard to particular legal issues arising in the course of legal representations. A second group of firms couples their description of work for tech clients and on tech matters with claims of expertise in harnessing technology to provide conventional legal services better and faster. Finally, a small subset of firms describe tech as transformative of their practices and identities, and integral to their claims of being innovators. These firms’ descriptions of tech reveal its role as a kind of capital being used to distinguish themselves both from traditional law firms and from new entrants to the legal market. These variations in law firms’ descriptions of the importance and role of technology in their organizations offer insight into the ways in which tech serves as a new form of capital in the ongoing competition for status in the legal services market.
      PubDate: Sun, 30 May 2021 18:34:22 PDT

    • Authors: Ann Herman
      Abstract: Copyright law, governed by the Copyright Act, is based on utilitarian theory, which balances artists’ interests in ownership of theircreations with the public’s interest in accessing and enjoying such creations. Copyright law provides for rights for creators of sound recordings, which include master rights—the recording artist’s copyright in the recording. Taylor Swift has brought the concept of master rights into the forefront of pop culture. In June 2019, Swift’s masters—the original sound recordings of her songs—were sold, and she publicly aired her dissatisfaction with the sale, as well as with overall premise that artists do not have a complete right of ownership over their masters. In this Note, I analyze the rhetoric of Taylor Swift and other musicians and determine that many artists, based on their rhetoric in expressing their views of ownership rights under the current copyright regime, seem to favor a property rights model of copyright law, in which the creator of a work is entitled to ownership of it. Based on these observations, I suggest some solutions which propose changes to copyright law and state law, inspired by previous solutions posed by other scholars, that would place artists’ rights to ownership and control of their work at the forefront of the laws’ purpose. This, in turn, will spur creativity and create a copyright regime that is fairer to artists and listens to what they want.
      PubDate: Mon, 22 Mar 2021 11:29:38 PDT

    • Authors: Aaron Schwabach
      Abstract: On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law support an “emergency exception” to copyright law.The only possible legal justification for no-waitlist lending is fair use under 17 U.S.C. § 107. This Article discusses the statutory and case law governing online libraries, with special attention to two related cases on fair use and online libraries:
      Authors Guild, Inc. v. HathiTrust and
      Authors Guild, Inc. v. Google, Inc. Ultimately neither the case law nor the language of the statute itself supports the National Emergency Library’s no-waitlist policy, and this Article concludes that no-waitlist e-book lending is, at least in the case of copyrighted works otherwise readily available and whose authors have not granted permission for the copying, in violation of the Copyright Act.
      PubDate: Mon, 22 Mar 2021 11:29:29 PDT
School of Mathematical and Computer Sciences
Heriot-Watt University
Edinburgh, EH14 4AS, UK
Tel: +00 44 (0)131 4513762

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