Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
Showing 1 - 9 of 9 Journals sorted alphabetically
Berkeley Technology Law Journal     Free   (Followers: 18)
Expert Opinion on Therapeutic Patents     Hybrid Journal   (Followers: 8)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 17)
GRUR International     Full-text available via subscription   (Followers: 1)
IIC - International Review of Intellectual Property and Competition Law     Hybrid Journal   (Followers: 24)
International Data Privacy Law     Hybrid Journal   (Followers: 27)
International Journal of Innovation Science     Hybrid Journal   (Followers: 9)
International Journal of Intellectual Property Management     Hybrid Journal   (Followers: 26)
Invention Disclosure     Open Access   (Followers: 1)
IP Theory     Open Access   (Followers: 11)
JIPITEC Journal of Intellectual Property, Information Technology and E-Commerce Law     Open Access   (Followers: 21)
John Marshall Review of Intellectual Property Law     Free   (Followers: 8)
Journal of Copyright in Education & Librarianship     Open Access   (Followers: 32)
Journal of Data Protection & Privacy     Full-text available via subscription   (Followers: 5)
Journal of Intellectual Property Law & Practice     Hybrid Journal   (Followers: 25)
Journal of Intellectual Property Rights (JIPR)     Open Access   (Followers: 22)
Journal of Knowledge-based Innovation in China     Hybrid Journal   (Followers: 4)
Law, State and Telecommunications Review     Open Access  
Marquette Intellectual Property Law Review     Open Access   (Followers: 13)
Northwestern Journal of Technology and Intellectual Property     Open Access   (Followers: 7)
Reports of Patent, Design and Trade Mark Cases     Hybrid Journal   (Followers: 5)
Revista La Propiedad Inmaterial     Open Access  
The Journal of World Intellectual Property     Hybrid Journal   (Followers: 22)
World Patent Information     Hybrid Journal   (Followers: 14)
Similar Journals
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Fordham Intellectual Property, Media and Entertainment Law Journal
Number of Followers: 17  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1079-9699
Published by Fordham University Homepage  [6 journals]
  • Errata

    • PubDate: Fri, 27 Jan 2023 14:03:56 PST
  • From Drawstring to Drawback: A Proposal for the Donation Alternative
           Program to Promote Environmental Responsibility in Fashion Act

    • Authors: Elliot O. Jackson
      Abstract: Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin of Dapper Dan’s initial and very limited creations is evaluated herein as model for codifying reverse engineering in fashion. Reverse engineering is a deconstructive process that permits the extraction of design and functional information from electronics and other technological equipment. In fashion, however, this process exists in the form of deconstructing apparel or other goods to appreciate the skillful methodology and artful techniques that are used in the creative process. A duty drawback program, facilitated by the USCBP, would allow reverse engineering to be possible in fashion. Therefore, this article advocates for the expansion of USCBP’s duty drawback program by highlighting preexisting gaps in the program that currently present issues of sustainability, environmental, and social justice across the country. This article also discusses the feasibility of the duty drawback expansion, which would require congressional action to amend the Tariff Act of 1930, and proposes a legislative amendment—the Donation Alternative Program to Promote Environmental Responsibility in Fashion Act (hereinafter, the “DAPPER Fashion Act”).
      PubDate: Fri, 27 Jan 2023 14:03:53 PST
  • The Case Of The Missing Device Patents, Or: Why Device Patents Matter

    • Authors: Erika Lietzan et al.
      Abstract: A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how they do it, rather than by their composition, and because the device framework, unlike the drug framework, does not offer a regulatory advantage to companies that make exact copies, the most important moment in the lifecycle of a new medical device is the moment a competitor designs an alternative device that accomplishes the same end result. This can happen within a few short years. By way of contrast, for drug innovators the critical lifecycle moment is generally no earlier than expiry of the active ingredient patent, which generally happens later. In other words, medical devices have much shorter commercial lifecycles. While some suggest that medical device patents are therefore less important than drug patents, our explanation indicates only that the length of the patents is less important. Recent empirical research (Graham 2009, Simon 2020) describes the role that medical device patents play early in the product lifecycle—often before regulatory approval—focusing on the foundation they provide for efficient exchanges of information and market transactions. Our paper builds on their work by (1) offering a description, grounded in reflection on the essential nature of the two regulatory frameworks, of the differing roles play by drug and device patents, and (2) offering an additional supportive data point in that, although device patenting is steadily increasing, eligible device companies generally do not bother seeking patent extensions. It also illustrates the role that regulatory design can play in dictating the value of patent length, which should be important for policy planners.
      PubDate: Fri, 27 Jan 2023 14:03:51 PST
  • Policy Implications of User-Generated Data Network Effects

    • Authors: Uri Y. Hacohen
      Abstract: User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically examines a host of remedial approaches for policymakers to consider. These remedies include modernized public utility-style regulation, open access policies, and adjusted standards for anti-monopolization and merger scrutiny.
      PubDate: Fri, 27 Jan 2023 14:03:48 PST
  • Manipulating, Lying, and Engineering the Future

    • Authors: Michal Lavi
      Abstract: Decision-making should reflect personal autonomy. Yet, it is not entirely an autonomous process. Influencing individuals’ decision-making is not new. It is and always has been the engine that drives markets, politics, and debates. However, in the digital marketplace of ideas the nature of influence is different in scale, scope, and depth. The asymmetry of information shapes a new model of surveillance capitalism. This model promises profits gained by behavioral information collected from consumers and personal targeting. The Internet of Things, Big Data and Artificial Intelligence open a new dimension for manipulation. In the age of Metaverse that would be mediated through virtual spaces and augmented reality manipulation is expected to get stronger. Such manipulation could be performed by either commercial corporations or governments, though this Article primarily focuses on the former, rather than the latter.Surveillance capitalism must depend on technology but also on marketing, as commercial entities push their goods and agendas unto their consumers. This new economic order presents benefits in the form of improved services, but it also has negative consequences: it treats individuals as instruments; it may infringe on individuals’ autonomy and future development; and it manipulates consumers to make commercial choices that could potentially harm their own welfare. Moreover, it may also hinder individuals’ free speech and erode some of the privileges enshrined in a democracy.What can be done to limit the negative consequences of hyper-manipulation in digital markets' Should the law impose limitations on digital influence' If so, how and when' This Article aims to answer these questions in the following manner:First, this Article demonstrates how companies influence decisions by collecting, analyzing, and manipulating information. Understanding the tools of the new economic order is the first step in developing legal policy that mitigates harm.Second, this Article analyzes the concept of manipulation. It explains how digital manipulation differs from traditional commercial influences in scope, scale, and depth. Since there are many forms of manipulation, an outright ban on manipulation is not possible, nor is it encouraged since it could undermine the very basis of free markets and even free speech. As a result, this Article proposes a limiting principle on entities identified in literature as “powerful commercial speakers,” focusing on regulating lies and misrepresentations of these entities. This Article outlines disclosure obligations of contextual elements of advertisements and imposes a duty of avoiding false information. In addition to administrative enforcement of commercial lies and misrepresentations, this Article advocates for a new remedy of compensation for autonomy infringement when a powerful speaker lies or disobeys mandated disclosure on products.Third, this Article proposes a complementary solution for long-term effects of manipulation. This solution does not focus on the manipulation itself, but rather offers limitations on data retention for commercial purposes. Such limitations can mitigate the depth of manipulation and may prevent commercial entities from shackling individuals to their past decisions.Fourth, this Article addresses possible objections to the proposed solutions, by demonstrating that they are not in conflict with the First Amendment, but rather promote freedom of expression.
      PubDate: Fri, 27 Jan 2023 14:03:46 PST
  • Lowering Barriers to Entry: YouTube, Fair Use, and the Copyright Claims

    • Authors: Jamie O'Neill
      Abstract: The Internet has transformed the landscape of media production by opening the doors of creation to anyone with a computer and an idea. YouTube allows for millions of individuals to post and disseminate content at a low cost to widespread audiences. But while the barriers to entry for content creation have lowered, the barriers to the legal copyright system have remained largely unmoved since YouTube’s inception. This Note seeks to explore the exact specifications of YouTube’s copyright system, both the one mandated by law and the one created voluntarily by YouTube, in order to understand where fair use stands in online copyright infringement detection. Additionally, the Note proposes the newly functional Copyright Claims Board as a way of lowering the barrier to entry into the legal system to allow for content creators to fight against online copyright abuse.
      PubDate: Thu, 17 Nov 2022 14:44:10 PST
  • The Legal Character and Practical Implementation of a TRIPS Waiver for
           COVID-19 Vaccines

    • Authors: Andrew D. Mitchell et al.
      Abstract: Almost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be open to Members under a COVID-19 waiver in its current or proposed forms, and the practical considerations for implementing them. To guide practical choices in selecting appropriate and adapted responses to public health and other crises, this article also investigates more theoretical questions about the nature of a waiver, its legal character and effect, and its interaction with other international agreements.
      PubDate: Thu, 17 Nov 2022 14:44:07 PST
  • Reconceptualizing Open Access to Theses and Dissertations

    • Authors: Orit Fischman Afori et al.
      Abstract: The global COVID-19 crisis has turned public attention to the special need for accessing those cutting-edge studies that are needed for further scientific innovation. Theses and dissertations (TDs) are prominent examples of such studies. TDs are academic research projects conducted by graduate students to acquire a high academic degree, such as a PhD. They encompass not only knowledge about basic science but also knowledge that generates social and economic value for society. Therefore, access to TDs is imperative for promoting science and innovation.Open access to scientific publications has been in the focus of public policy discourse for two decades, but progress toward this end has been limited. As part of this discourse, there has been no systematic discussion of the special case of TDs and of the justification for adopting an open access publication policy toward them. The present study aims to fill this gap. We argue that the essence of TDs as unique outputs of academic research merits a special policy mandating the publication of these studies in open access format, subject to certain exceptions. This policy is underpinned by several arguments, which we develop in our study, based on historic and normative analysis. These considerations support reconceiving access to TDs using an open access approach designated particularly for them.To better understand current open access policies toward TDs, we conducted a limited semi-empirical investigation to collect information. Our findings confirm that–despite the growing awareness of the importance of an open access TDs policy–no standard policy exists. Therefore, we propose to establish a mandatory global policy and standardization regarding the publication of TDs in designated repositories, open to the public, that would generate together an “open world wide web of TDs.” Such a global framework would facilitate the progress of science and promote the public good worldwide. In the aftermath of the global COVID-19 crisis, it seems that the time is ripe for such a move at both international and national levels.
      PubDate: Thu, 17 Nov 2022 14:44:05 PST
  • I See Dead Patents: How Bugs in the Patent System Keep Expired Patents

    • Authors: Dinis Cheian
      Abstract: One of the most important days in the life of a patent is the day it dies.The moment a patent dies, the patent owner loses her monopoly over her invention, ending the stream of income generated by that patent. Without an enforceable patent to protect the invention, the competitors and public can freely buy and sell copycat products that compete with the patent owner’s. Consumers reap the rewards in the form of more options and lower prices.Normally, those potential competitors must wait exactly twenty years from the date the patent application is filed with the United States Patent and Trademark Office (“Patent Office”). But if a patent owner is lucky, her competitors may wait even longer. The Patent Office may extend the life of a patent to compensate for certain delays in processing the application. Such an extension, known as a Patent Term Adjustment (“PTA”), is automatically calculated by computer software administered by the agency. But that software makes mistakes. Because the Patent Office will not double-check the computer’s calculations—unless the patent owner asks it to—those mistakes are rarely discovered. These skewed incentives lead to excessive PTA that exclusively benefits the patent owners. In some industries, such as pharmaceuticals, every additional day of patent life can result in millions of dollars of profit for the patent owner— profits that they may not be entitled to by law—and can delay the collapse of the price of the patented drug. It is little surprise that fierce litigation ensues over even a single day of patent life.This Article exposes those software mistakes and their impact for the first time. In this Article, based on my original analysis of the Patent Office’s data, I identify two previously undiscovered software bugs, observed in more than 27,000 patents. I demonstrate how these bugs result in excessive PTA of, sometimes, 60–90 days. Because there are undoubtedly more than the two identified ways in which the software can err, I recommend that patent litigators start routinely double-checking the PTA in order to save their clients millions in patent infringement damages. Entities seeking approval of generic drugs should similarly take note of these bugs as they may impact the date on which they need to file their application with the Food & Drug Administration. I also propose regulatory changes that would allow the Patent Office to improve the software by crowdsourcing the identification of bugs. Finally, I recommend a statutory change that would minimize the number of patents with excessive PTA.
      PubDate: Thu, 17 Nov 2022 14:44:02 PST
  • The Ethics of Unbranding

    • Authors: Jeremy N. Sheff
      Abstract: This Essay explores the ethical implications of the phenomenon of "unbranding" that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding the ethics of unbranding, requiring that one system be preferred over the other. The Essay concludes by arguing that consequentialist theories provide the most conventional approach to the problem of unbranding, but that the potential sense of dissatisfaction with consequentialist prescriptions regarding unbranding suggests that there may be an opening for a novel, autonomy-based deontological approach to trademark theory.
      PubDate: Thu, 22 Sep 2022 15:25:42 PDT
  • Towards Symmetry in the Law of Branding

    • Authors: Rebecca Tushnet
      Abstract: Companies sometimes want to abandon an old identity and rebrand with a new one. Trademark law probably does not have much to say about rebranding in itself. But we should be careful about how we think about rebranding and other undisclosed source relationships because, if not handled properly, law’s recognition of such techniques could end up reinforcing trademark owners’ ability to deter competition and control free speech.
      PubDate: Thu, 22 Sep 2022 15:25:40 PDT
  • Down With Patentese

    • Authors: Jed. S. Rakoff
      PubDate: Thu, 22 Sep 2022 15:25:38 PDT
  • The Fate of Indecency' The Constitutional Issue Presented by Fox
           Television Stations, Inc. v. Federal Communications Commission

    • Authors: Francis Marsico III
      PubDate: Thu, 22 Sep 2022 15:25:35 PDT
  • Revisiting the Doctrine of Inequitable Conduct Before the Patent and
           Trademark Office

    • Authors: Christian Mammen
      Abstract: I would like to thank the editors of Fordham's Intellectual Property, Media & Entertainment Law Journal for including the very important subject of inequitable conduct reform in this Symposium. And I'd particularly like to commend them for their impeccable timing; this Symposium is being held on the Friday before oral arguments in the Federal Circuit's en banc rehearing of the inequitable conduct issues in Therasense, Inc. v. Becton, Dickinson and Co.'As many of you know, it has been over twenty years since the Federal Circuit last convened en banc to address the inequitable conduct doctrine in Kingsdown Medical Consultants, Ltd. v. HollisterInc.2 At that time, Judge Nichols had just uttered his now-famous rant, calling the doctrine an "absolute plague."3 Echoes of the cry of "plague" have been heard with increasing frequency in recent years, ultimately leading the Federal Circuit to agree to a wholesale en banc reconsideration of the doctrine of inequitable conduct.4 My remarks today will be divided into four main parts. First, I will provide a little background on the substantive requirements of the doctrine of inequitable conduct. Second, I will discuss some of the doctrinal incongruities that have led to the current cry for reform. Third, I will discuss the Federal Circuit's en banc questions in Therasense 6, and will discuss some of the positions taken by the nearly three dozen amici curiae who 7 filed briefs at the merits-rehearing stage of Therasense. Finally, I would like to briefly address one issue that has lurked at the periphery of the inequitable conduct doctrine-the place of patent prosecution counsel in litigation where inequitable conduct is alleged.
      PubDate: Thu, 22 Sep 2022 15:25:33 PDT
  • Sampling, Looping, and Mashing... Oh My!: How Hip Hop Music is Scratching
           More Than the Surface of Copyright Law

    • Authors: Tonya M. Evans
      Abstract: This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without thepermission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music. Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films (410 F.3d 792), as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley (687 F. Supp. 2d 1325), is but one poignant example. Courts in the Sixth Circuit apply a per se infringement standard when a defendant copies any part of a sound recording. By contrast, courts in the Eleventh Circuit consider substantial similarity and the de minimis defense traditionally applied in all infringement cases. These differences, in turn, have lead to unclear judicial definitions, distinctions and interpretations for the role of substantial similarity and what constitutes a de minimis use, a fair use, and a derivative work. The resulting incongruent decisions reflect an inconsistent application of federal law. This inconsistency threatens to diminish both the quality and quantity of second-generation cumulative musical works. Accordingly, copyright law’s fragmented application is proving troublesome forthe music industry, generally, and for music genres like hip hop in particular. Ultimately, this article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law just as the law continues to stress and under-perform in balancing the rights/access continuum. To that end, this article posits that any fix should sample patent to remix copyright. By this I mean music copyright reform should consider and incorporate policies supporting reverse engineering in the patent context, which encourages and values cumulative creation to bolster innovation. Intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative. Such is the case in the creation of music. The need for narrowly-tailored intellectual property laws is especially valid in light of the essential role to both of access to first-generation works and a firmly established custom of borrowing in the creative process. Therefore, copyright law must be remixed to achieve an optimal balance between a copyright holder’s exclusive rights and the legal space a second generation innovator needs to build upon existing works in order to create new ones in cumulative creative genres like music.
      PubDate: Thu, 22 Sep 2022 15:25:30 PDT
  • Creative Commons: America's Moral Rights'

    • Authors: Mira T. Sundara Rajan
      Abstract: This Article examines the status of authors' moral rights in a post-Dastar world. It argues that, apart from the minimal recognition of moral rights for visual artists in the Visual Artists Rights Act (1990) and a handful of state laws, Creative Commons and other open access movements currently represent the only effective recognition of moral rights in the United States. This paper examines approaches to moral rights in a variety of open-access scenarios, including Creative Commons, free software, Wikipedia, and Google Books, and it attempts to assess the advantages and dangers of offering moral rights as an alternative to regular copyright protection. The paper argues that open access models do not provide sufficient protection for moral rights in the United States. Rather, the approach to moral rights in open access movements should be used as a starting-point for the broader recognition of moral rights under U.S. law. In particular, moral rights as understood by the open access community can help to achieve a better balance between corporate interests and the public interest under U.S. copyright law – an opportunity that should not be missed.
      PubDate: Thu, 22 Sep 2022 15:25:28 PDT
  • Algorithms and Misinformation: The Constitutional Implications of
           Regulating Microtargeting

    • Authors: Talia Bulka
      Abstract: The increased popularity of social media in recent years has brought with it unwanted consequences. Most notably, the world is experiencing a widespread epidemic of online misinformation and disinformation. In the form of news stories and advertisements, false information about candidates like Joe Biden, Hillary Clinton, and Donald Trump has spread over Facebook, Instagram, Twitter, and TikTok. Since false information is often more sensational than the truth, this information is reposted and shared until it reaches millions of people. However, the real culprit of this misinformation phenomenon is microtargeting—algorithms that exploit users’ personal information and previous media interactions to target specific posts to individual users. These algorithms send posts to users’ newsfeeds without regard for the credibility of the information, leading users to believe that what they are seeing is true. Further, microtargeting intensifies political party polarization because users are only shown posts with which they already agree. Can the government do anything about this' This Comment examines the extent to which micro targeting can be regulated without exceeding the confines of the First Amendment.
      PubDate: Thu, 26 May 2022 05:44:28 PDT
  • Failed Analogies: Justice Thomas’s Concurrence in Biden v. Knight
           First Amendment Institute

    • Authors: Sarah S. Seo
      Abstract: Twenty-six years ago, twenty-six words created the internet. Section 230 of the Communications Decency Act is a short, yet powerful, provision that notably protects social media platforms, among other interactive computer services, from liability for content created by third-party users. At the time of its enactment, Section 230 aimed to encourage the robust growth of the then-nascent internet while protecting it from government regulation. More recently, however, it has been wielded by Big Tech companies like Twitter and Facebook to prevent any liability for real-world harms that stem from virtual interactions conducted over their platforms.Although the Supreme Court has never taken on a Section 230 case itself, Justice Thomas individually stands out as one of the most prominent anti-Section 230 advocates today. When the Supreme Court declined to hear a Section 230 case in 2020, Justice Thomas issued a statement respecting the Court’s denial that planted the seeds for his disapproval of the statute. When the Court issued a brief opinion in 2021 instructing a lower court to dismiss a Section 230 case as moot due to the change in the presidential administration, Justice Thomas issued a second statement concurring in the opinion, continuing his charge against Big Tech companies that profit from Section 230 immunity. Most recently, when the Court declined to hear a Section 230 case in 2022, Justice Thomas issued his third statement imploring either Congress to step in or potential litigants to bring up an “appropriate case” so the Supreme Court could interpret Section 230 itself.Justice Thomas’s concurring opinion in Biden v. Knight First Amendment Institute—his second pass at Section 230—provides Justice Thomas’s most substantive call for reform. His opinion pro- poses recommendations for how the legislature should treat digital platforms and social media companies, analogizing them to common carriers and places of public accommodation. This Note rejects both analogies. To reach this conclusion, this Note examines the histories of both proposed common law frameworks and the creation of Section 230 itself. Finally, this Note suggests limiting this powerful immunity by excluding digital platforms that exhibit deliberate indifference to unlawful or harmful content, or subsequent conduct arising from such content.
      PubDate: Thu, 26 May 2022 05:44:25 PDT
  • Face the Facts, or Is the Face a Fact': Biometric Privacy in Publicly
           Available Data

    • Authors: Daniel Levin
      Abstract: Recent advances in biometric technologies have caused a stir among the privacy community. Specifically, facial recognition technologies facilitated through data scraping practices have called into question the basic precepts we had around exercising biometric privacy. Yet, in spite of emerging case law on the permissibility of data scraping, comparatively little attention has been given to the privacy implications endemic to such practices.On the one hand, privacy proponents espouse the view that manipulating publicly available data from, for example, our social media profiles, derogates from users’ expectations around the kind of data they share with platforms (and the obligations such platforms have for protecting users from illicit uses of that data). On the other hand, free speech absolutists take the stance that, to the extent that biometric data is readily apparent in publicly available data, any restrictions on its secondary uses are prior restraints on speech.This Note proposes that these principles underlying privacy and free speech are compatible. Wholesale bans on biometric technologies misapprehend their legitimate uses for actually preserving privacy. Despite the overwhelming dearth of protections for biometric privacy across the United States, current battles to preserve the few regulations on these data practices illuminate the emerging frontier for privacy and free speech debates.As this Note concludes, existing regulations on biometric data practices withstand First Amendment scrutiny, and strike the appropriate balance between speech and privacy regulations.
      PubDate: Thu, 26 May 2022 05:44:23 PDT
  • NFTs: The Latest Technology Challenging Copyright Law's Relevance
           Within a Decentralized System

    • Authors: Rebecca Carroll
      Abstract: Non-fungible tokens (“NFTs”) redefine society’s understanding of digital ownership and transform how creators distribute original works to consumers. This unique and often misunderstood technol- ogy has the potential to yield extraordinary value for both creators and consumers. While NFTs have existed for some time now, the recent frenzy caused by several high-value sales of NFTs exposed a number of unanswered legal questions, particularly in copyright law. NFTs also raise ideological concerns over how much, if any, government oversight and regulation should exist over the “open” internet. This Note explores copyright law’s application to NFTs and seeks to address a number of unanswered copyright law ques- tions, including who has the right to mint a copyrighted work into an NFT. This Note then seeks to address how extending application of copyright law to the decentralized system can support the ideals of a free and open internet.
      PubDate: Thu, 26 May 2022 05:44:20 PDT
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