 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
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- COMPULSORY LICENSING: A POTENTIAL SOLUTION TO THE ANTITRUST DILEMMA OF
TECHNOLOGY STANDARDS SETTING
Authors: Shen Peng
Abstract: The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to a mobile phone must obtain licenses from the patent owners for the phone’s low-voltage battery, keyboard, camera, operating system, and telecommunication technologies.2 In a free market system, these deals will rarely go smoothly. If a low-voltage battery is the only battery in the market suitable for a future mobile phone, the mobile phone inventor will be forced to license the lowvoltage battery from its owner. Bearing this in mind, a battery patent owner who has a lot of market power will naturally demand a very high royalty (similar to the “patent holdup” issue discussed later in this article). Even if the mobile phone inventor successfully secures all necessary patents at a reasonable royalty rate, the accumulative royalties may be too high for a mobile phone product to make economic sense (similar to the “royalty stacking” issue tackled later in this article).These issues are especially prominent in the context of technology standards. For example, if a particular phone transmitter becomes the industry standard for receiving input and sending output signals, all mobile phone companies would be “forced” to license from the transmitter’s patent owner to ensure their phone’s interoperability to compete with other companies. Despite the possibility that other transmitters in the market may work as well as the standard transmitter (standard–essential technology), the standard–essential technology in effect becomes the only transmitter in the market without competition. In other words, the potential substitutes and alternatives to the standard-essential technology are foreclosed due to its incompatibility with products that implement standard-essential technologies. The standard–essential technology, therefore, gives rise to an antitrust issue that inhibits future innovations and harms public welfare.This paper proposes a solution to antitrust issues arising from technology standard-setting. An overview of the standard-setting process is helpful to understand the issues inherent in the process, including patent holdup, patent ambush, and royalty stacking. These issues have antitrust implications. The paper next examines these issues in light of the Sherman Act and relevant antitrust case law. Two notable solutions to the technology standard antitrust issue and their limitations are briefly mentioned. Finally, we look to copyright law for solutions.
PubDate: Wed, 19 Apr 2023 08:46:50 PDT
- A LOADED GOD COMPLEX: THE UNCONSTITUTIONALITY OF THE EXECUTIVE BRANCH’S
UNILATERALLY WITHHOLDING ZERO-DAYS
Authors: Brendan Gilligan
Abstract: In 2017, National Security Agency hacking tools were leaked on the Internet. One of these hacking tools relied on a vulnerability in Microsoft software. Its leak caused “the most destructive and costly N.S.A. breach in history.” This hacking tool took out:[the British health care system], Russian railroads and banks, Germany’s railway, French automaker Renault, Indian airlines, four thousand universities in China, Spain’s largest telecom, Telefonica, Hitachi and Nissan in Japan, the Japanese police, a hospital in Taiwan, movie theater chains in South Korea, nearly every gas station run by PetroChina, China’s state owned oil company, and, in the United States, FedEx and small electrical companies across the country.Then, this hacking tool was added to a different cyberweapon, where it caused an additional $10 billion in damage. Some consider this total a “gross underestimate.”The executive branch, through an internal process, had withheld this vulnerability from Microsoft for seven years. According to the executive branch, this Microsoft vulnerability was too valuable to disclose: the hacking tool using the Microsoft vulnerability “netted some of the very best counterterrorism intelligence” the NSA received. But the executive branch lacks the authority to unilaterally decide a vulnerability’s intelligence value outweighs the cost of withholding it.Vulnerabilities like the Microsoft one that the executive branch withheld are known as zero-day vulnerabilities (“zero-days”). This Comment’s thesis is that the executive branch can’t unilaterally withhold these zero-days to conduct offensive cyber operations or surveillance. I demonstrate this thesis in three steps. First, I explain what zero-days are and why they are dangerous. Second, I show the executive branch of the U.S. government unilaterally withholds zero-days. Third, and finally, I explain why the executive branch’s unilateral withholding of zero-days to conduct offensive cyber operations or national security surveillance is unconstitutional.
PubDate: Wed, 19 Apr 2023 08:46:44 PDT
- THE EVIDENTIARY IMPLICATIONS OF INTERPRETING BLACK-BOX ALGORITHMS
Authors: Varun Bhatnagar
Abstract: Biased black-box algorithms have drawn increasing levels of scrutiny from the public. This is especially true for those black-box algorithms with the potential to negatively affect protected or vulnerable populations.1 One type of these black-box algorithms, a neural network, is both opaque and capable of high accuracy. However, neural networks do not provide insights into the relative importance, underlying relationships, structures of the predictors or covariates with the modelled outcomes.2 There are methods to combat a neural network’s lack of transparency: globally or locally interpretable post-hoc explanatory models.3 However, the threat of such measures usually does not bar an actor from deploying a black-box algorithm that generates unfair outcomes on racial, class, or gendered lines.4Fortunately, researchers have recognized this issue and developed interpretability frameworks to better understand such black-box algorithms. One of these remedies, the Shapley Additive Explanation (“SHAP”) method, ranks determinative factors that led to the algorithm’s final decision and measures the partial effects of the independent variables that were used in the model.5 Another, the Local Interpretable Model-agnostic Explanations (“LIME”) method, uses a similar method to reverse-engineer the determinative factors harnessed by the algorithm.6 Both the SHAP/LIME methods have the potential to shine light into the most accurate, precise black-box algorithms.These black-box algorithms can harm peoples’ physical being and property interests.7 However, algorithm developers currently hide behind the nominally impenetrable nature of the algorithm to shield themselves from liability. These developers claim that black-box algorithms are the industry standard, due to the increased accuracy and precision that these algorithms typically possess. However, SHAP/LIME can ascertain which factors might be cloud the judgement of the algorithm, and therefore cause harm. As such, SHAP/LIME may lower the foreseeability threshold currently set by tort law and help consumer-rights advocates combat institutions which recklessly foist malevolent algorithms upon the public.Part II will provide an overview of the SHAP/LIME methods, as well as applying it to a tort scenario involving a self-driving car accident. Part III will cover the potential tort claims that may arise out of the self-driving car accident, and how SHAP/LIME would advance each of these claims. SHAP/LIME’s output has not yet been compared to the foreseeability threshold under negligence or product/service liability. There are numerous factors that sway SHAP/LIME both towards and against reaching that threshold. The implications of this are severe—if the foreseeability threshold is not reached, a finder of fact might not find fault with the algorithm generator. Part IV will cover the evidentiary objections that might arise when submitting SHAP/LIME-generated evidence for admission. Reverseengineering an algorithm mirrors crime scene re-creation. Thus, the evidentiary issues involved in recreating crime scenes appear when reverseengineering algorithms.8 Important questions on relevance, authenticity, and accessibility to the algorithm directly affect the viability of submitting evidence derived using either the SHAP or LIME methods.9 Part V will conclude by contextualizing the need for transparency within an increasingly algorithm-driven society.I conclude that tort law’s foreseeability threshold is currently not fit for purpose when it comes to delivering justice to victims of biased black-box algorithms. As for complying with the Federal Rules of Evidence, SHAP/LIME’s admissibility depends on the statistical confidence level of the method’s results. I conclude that SHAP/LIME generally have been properly tested and accepted by the scientific community, so it is probable that statistically relevant SHAP/LIME-generated evidence can be admitted.10
PubDate: Wed, 19 Apr 2023 08:46:37 PDT
- VIDEO GAMES AND THE FIRST AMENDMENT
Authors: Eli Pales
Abstract: The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or as complicated as a sophisticated $200 million recreation of the American West. If treated literally, the Supreme Court’s rule in Brown would require lower courts to treat all video games—regardless of their individual characteristics, sophistication, and visuals—as equally protected under the law. Yet lower courts have not been following this Supreme Court decision by its word. Instead, judges have scrutinized how complicated a video game is, whether it has a narrative, if its characters are unique, and other characteristics that should be irrelevant. This Article confronts the ways that lower courts discriminate against video games compared to established mediums and argues that this violates the Supreme Court mandate in Brown. It also provides a context and legal basis for constitutionally protecting video games that the Supreme Court failed to provide in its relatively simplistic decision. Ultimately, I argue that lower courts should take the Brown decision seriously and treat video games like any other protected medium, even if the results at first seem counterintuitive.
PubDate: Wed, 19 Apr 2023 08:46:30 PDT
- LAW INFORMS CODE: A LEGAL INFORMATICS APPROACH TO ALIGNING ARTIFICIAL
INTELLIGENCE WITH HUMANS
Authors: John J. Nay
Abstract: Artificial Intelligence (AI) capabilities are rapidly advancing. Highly capable AI could cause radically different futures depending on how it is developed and deployed. We are unable to specify human goals and societal values in a way that reliably directs AI behavior. Specifying the desirability (value) of AI taking a particular action in a particular state of the world is unwieldy beyond a very limited set of state-action-values. The purpose of machine learning is to train on a subset of states and have the resulting agent generalize an ability to choose high value actions in unencountered circumstances. Inevitably, the function ascribing values to an agent’s actions during training is an incomplete encapsulation of human values and the training process is a sparse exploration of states pertinent to all possible futures. After training, AI is therefore deployed with a coarse map of human preferred territory and will often choose actions unaligned with our preferred paths.Law-making and legal interpretation convert opaque human goals and values into legible directives. Law Informs Code is the research agenda embedding legal processes and concepts in AI. Like how parties to a legal contract cannot foresee every potential “if-then” contingency of their future relationship, and legislators cannot predict all the circumstances under which their bills will be applied, we cannot ex ante specify “if-then” rules that provably direct good AI behavior. Legal theory and practice offer arrays of tools to address these problems. For instance, legal standards allow humans to develop shared understandings and adapt them to novel situations, i.e., to generalize expectations regarding actions taken to unspecified states of the world. In contrast to more prosaic uses of the law (e.g., as a deterrent of bad behavior), leveraged as an expression of how humans communicate their goals, and what society values, Law Informs Code.We describe how data generated by legal processes and the tools of law (methods of law-making, statutory interpretation, contract drafting, applications of standards, and legal reasoning) can facilitate the robust specification of inherently vague human goals to increase human-AI alignment. Toward society-AI alignment, we present a framework for understanding law as the applied philosophy of multi-agent alignment, harnessing public law as an up-to-date knowledge base of democratically endorsed values ascribed to state-action pairs. Although law is partly a reflection of historically contingent political power – and thus not a perfect aggregation of citizen preferences – if properly parsed, its distillation offers the most legitimate computational comprehension of societal values available. Other data sources suggested for AI alignment – surveys, humans labeling “ethical” situations, or (most commonly) the beliefs of the AI developers – lack an authoritative source of synthesized preference aggregation. Law is grounded in verifiable resolutions: ultimately obtained from a court opinion, but short of that, elicited from legal experts. If law informs powerful AI, engaging in the deliberative political process to improve law would take on even more meaning.
PubDate: Wed, 19 Apr 2023 08:46:24 PDT
- ABOUT-FACE: HOW FACEBOOK’S RESTRICTIONS ON USER POSTS COULD VIOLATE
ANTITRUST LAW
Authors: Efrem Berk
Abstract: This Note examines whether Facebook’s restrictions on its users’ posts are subject to Sherman Act § 2. This Note looks at the economic activity generated by social media activity and argues that posts are commerce. While this piece finds that current antitrust jurisprudence likely favors Facebook, an alternative approach sought by some antitrust scholars could influence judges to preclude the platform’s restrictions.
PubDate: Mon, 27 Feb 2023 08:25:26 PST
- QUANTUM COPYRIGHT LAW: SCHRÖDINGER’S CAT, BANKSY’S
SHREDDER, AND ART ON THE EDGE
Authors: Richard Chused
Abstract: An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right' And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.Before the box was welded shut, a set of objects was placed inside. The objects include a shredder with a “switch” of sorts that makes it operate, but only one time. That single time is triggered by insertion of an art work in the slit on the side of the box. The shredder in the box will then run, but in a way that makes it impossible for any observer watching when the art work is inserted to tell whether the art actually runs through the shredder. In all cases, the shredder will make appropriate shredding sounds to prevent humans from figuring out what occurs. The art work enters the box and disappears from view. The box will then contain either a shredded piece of art or an intact art work, along with an inert shredder. The only way to discover what occurs after the art work is inserted in the slit is to open up and thereby destroy the box and any copyrightable expression it and its contents represents.This delightful object forces us to ponder some intriguing puzzles. Its invisible randomness begs us to play with the artistic relevance of quantum mechanics and the famous Schrödinger’s Cat physics conundrum, to take some jibes at Banksy’s now infamous 2018 shredding of half his Girl With Balloon composition immediately after Sotheby’s auction hammer fell marking its sale for well over a million dollars, to think about the endpoint status of a pictorial, graphic, or sculptural work containing unknown artistic contents and a mechanical device that becomes inoperable after a single use, to grapple with what really makes art valuable, and to force some rethinking about the contours of intellectual property law in the United States. This essay takes up these challenges.
PubDate: Mon, 27 Feb 2023 08:25:19 PST
- THE POWER OF LOCAL: NEARBY INNOVATORS DOMINATE PATENTED TECHNOLOGY
DEVELOPMENT
Authors: Richard Gruner
Abstract: Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances are much higher than would be expected were patented technology development distributed randomly across all geographic sources.While local citations do not necessarily indicate that the cited and citing innovators worked together, their co-location indicates that the cited and citing parties were close enough to interact or to have benefitted from shared resources such as local information networks and common pools of skilled workers emerging from nearby universities. Local concentrations of citations identify regions and innovation communities producing many distinctly new advances capable of qualifying for patents. These advances are potentially important in at least two key respects: first, locally concentrated inventions disclosed in patents are important in technology development because they are outlier advances with material differences from predecessors that are capable of significantly shifting the pace and directions of technology development and, second, such locally concentrated advances (and their associated patent rights) can advance local commercial success by enabling highly functional, popular, and profitable products and services.Local concentrations of patent citations identify associated communities of especially capable and active innovators. Local innovators producing large numbers of patented advances are rapidly expanding the outer boundaries of their fields. Where these parties are concentrated in particular regions, the associated communities may establish innovation synergies that enhance innovation processes and diversify innovation results. Their group efforts may pioneer key technologies that would not have emerged from more widely separated innovators. The geographic and technological information embedded in patent records reveal many settings where geographically compact communities of innovators are advancing cutting edge technologies.This article examines innovation hot spots identified from geographic and technological information in approximately eight million citations to United States utility patents issued between 2010 and 2019. These citations, the location of the citing and cited innovators, and the technologies covered by their respective patents indicate that local innovation communities produced many technologically related innovations over this period (particularly in some of our largest innovation centers such as Silicon Valley). Patent applicants and patent examiners cited local patents from less than 40 miles away much more frequently than more distant patents, indicating that technologically similar innovation projects (and successful inventions) were particularly common in local technology hubs. More distant innovations were cited less frequently despite the availability to distant innovators of full descriptions of earlier advances in patents, electronic research services making patents easily available at great distances, and modern means for interacting with distant innovators via electronic communications or travels to meet with distant researchers. Despite electronic resources and other enhanced means to interact with distant innovators, inventors emphasized locally prevalent technologies and built on what they could learn locally. Local proximity – and the potential for direct interactions – was a demonstrably powerful force promoting successful technology development.
PubDate: Mon, 27 Feb 2023 08:25:12 PST
- CURIOSITIES OF STANDING IN TRADE SECRET LAW
Authors: Charles T. Graves
Abstract: Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those same customers.Relaxed requirements for trade secret standing under the UTSA can weaken the showing needed to establish a valid trade secret. For example, a plaintiff with only mere possession may not always be able to account for the history of the information it possesses – but it would nonetheless be permitted to proceed even though the defendant cannot challenge whether reasonable security measures were always used to guard the information in the past. Dubious claims based on preferences expressed by customers could be transformed into intellectual property for the sole purpose of blocking an alternative supplier whom the very same customers may prefer. In the worst instances, loose standing rules centered on mere possession could encourage parties to claim rights over types of information to which trade secret law should never extend, such as workplace injury data and personal attributes of employees.This article explores how courts in trade secret cases have come to apply standing rules that are more permissive than those seen in other areas of intellectual property law. It concludes that some courts remain confused about whether trade secret claims are property rights or instead something closer to broader, looser restrictive covenants. This conceptual confusion results in questionable standing decisions inconsistent with the statutory elements of a trade secret claim and, more broadly, the goals of intellectual property law.Much of the conundrum results from a poorly-reasoned 2001 Fourth Circuit decision on trade secret standing. It offered a patina of suspect theory regarding what it styled the “inherent nature” of trade secret law and undercut a property-centered conception of trade secret law, and proposed that mere possession could suffice to assert a claim. Many courts addressing state law trade secret disputes in the last two decades have followed this decision, sometimes expressly adopting its vision of trade secret law as a relational doctrine rather than an intellectual property doctrine.This is the first comprehensive article on trade secret standing, and the first to probe the dangers posed when requirements for trade secret standing are relaxed. It will isolate the philosophy behind questionable rulings which deviate from the property-centered requirements of the UTSA. This article will also explore whether a mere-possession rule of trade secret standing undermines the requirement that a plaintiff prove that reasonable security measures were used to safeguard the information. We will explore whether allowing trade secret claims in the preferences and desires expressed by customers should be analyzed as a question of standing to best protect departing employees as well as robust market competition. The article will question whether the problematic conception of trade secret law seen in many standing cases could open the door to nontraditional trade secret claims which threaten important public policy interests. In the end, we will conclude with solutions that courts can effect without legislative change.
PubDate: Mon, 27 Feb 2023 08:25:06 PST
- 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
Breaches
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
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Open Access journal
