• 28 U.S.C. § 1498(A) AND THE UNCONSTITUTIONAL TAKING OF PATENTS

      Miller, Joshua (2011-01-01)
      Eminent domain requires a showing of two elements: a property right, and a proper venue to bring suit against the government. 28 U.S. C. § 1498(a) grants patent owners the right to sue the United States for the unauthorized use of patents. This statute and its predecessors have long been viewed as an exercise of eminent domain over the patent property. The Federal Circuit ignored this view in Zoltek v. United States, holding that patents are not subject to eminent domain. However, Congress has acknowledged that litigation costs are a necessary part of a patent taking. If as precedent established long before Zoltek, Section 1498(a) is an eminent domain statute, its grant of litigation costs to only some entities is unconstitutional under the Fifth Amendment's just compensation requirement. This Article presents the argument that Section 1498(a) is unconstitutional. It argues that patents are a species of property and that § 1498(a) was intended to provide the proper venue for a patent owner to bring suit against the government for its exercise of eminent domain in using a patent without authorization. It then discusses the just compensation requirement and the constitutional infirmity within Section 1498(a) and presents an amendment to cure that infirmity.
    • A Light in Digital Darkness: Public Broadband after Tennessee v. FCC

      Guttentag, Mikhail (2019-04-28)
      Ten years ago, the city of Chattanooga, Tennessee built its own high-speed Internet network, and today Chattanooga's publicly owned Internet infrastructure (''public broadband" or "municipal broadband'? is faster and more affordable than almost anywhere else in the world. In this Article, I make the case for why other communities currently underserved by private broadband providers should consider building their own high-speed broadband networks and treating Internet as an essential public service akin to water or electricity, and I explore means by which these communities can overcome the legal and political hurdles they may face along the way.
    • A Linguistic Justification for Protecting "Generic" Trademarks

      Linford, Jake (2015-09-25)
      Although trademark law traditionally turns on protecting consumers from confusing ambiguity, some of its doctrines ignore consumer perception in whole or in part. In particular, the doctrine of trademark incapacity—also known as the de facto secondary meaning doctrine—denies trademark protection to a term that was once a generic product designation, even if consumers now see the term primarily as a source-signifying trademark. This Article contends that trademark law fails in critical ways to reflect our knowledge of how words gain or lose meaning over time and how new meanings become part of the public lexicon, a phenomenon commonly referred to as semantic shift. Analyzing trademark acquisition through the lens of semantic shift sheds light on how the trademark incapacity doctrine misunderstands both the nature of language and the role of consumer perception in shaping trademark’s competition policy. The Article proposes replacing the doctrine of trademark incapacity with the primary significance test already applied at other stages of trademark litigation. If there is evidence that a majority of consumers have come to see the term as source-signifying rather than product designating, the law should recognize that source significance and the term should qualify for federal trademark protection.
    • A Lot More than a Pen Register, and Less than a Wiretap

      Pell, Stephanie; Soghoian, Christopher (2015-09-18)
      In June 2013, through an unauthorized disclosure to the media by ex-NSA contractor Edward Snowden, the public learned that the NSA, since 2006, had been collecting nearly all domestic phone call detail records and other telephony metadata pursuant to a controversial, classified interpretation of Section 215 of the USA PATRIOT Act. Prior to the Snowden disclosure, the existence of this intelligence program had been kept secret from the general public, though some members of Congress knew both of its existence and of the statutory interpretation the government was using to justify the bulk collection. Unfortunately, the classified nature of the Section 215 metadata program prevented them from alerting the public directly, so they were left to convey their criticisms of the program directly to certain federal agencies as part of a non-public oversight process. The efficacy of an oversight regime burdened by such strict secrecy is now the subject of justifiably intense debate. In the context of that debate, this Article examines a very different surveillance technology—one that has been used by federal, state and local law enforcement agencies for more than two decades without invoking even the muted scrutiny Congress applied to the Section 215 metadata program. During that time, this technology has steadily and significantly expanded the government’s surveillance capabilities in a manner and to a degree to date largely unnoticed and unregulated. Indeed, it has never been explicitly authorized by Congress for law enforcement use. This technology, commonly called the StingRay, the most well-known brand name of a family of surveillance devices, enables the government, directly and in real-time, to intercept communications data and detailed location information of cellular phones—data that it would otherwise be unable to obtain without the assistance of a wireless carrier. Drawing from the lessons of the StingRay, this Article argues that if statutory authorities regulating law enforcement surveillance technologies and methods are to have any hope of keeping pace with technology, some formalized mechanism must be established through which complete, reliable and timely information about new government surveillance methods and technologies can be brought to the attention of Congress.
    • A MODEST DEFENSE OF MIND READING

      Brennan-Marquez, Kiel (2013-07-09)
      The last decade has witnessed a profusion of commentary on “mind-reading” devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially “speaking for” defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court’s self-incrimination jurisprudence to demonstrate that evidence is only “testimonial” — and thus, privileged — if it involves a “communicative act” from the suspect. Whether or not particular types of mind-reading devices would elicit “communicative acts” is a narrow, technology-specific question. And at least some mind- reading devices almost certainly would not – making their use permissible under the Fifth Amendment. Second, I defend this doctrinal result against normative attack. Many different accounts of the privilege’s theoretical underpinnings exist. I evaluate these accounts in turn, arguing that some are inapposite to mind reading, while others fail in a deeper sense.
    • A NATIONAL TECHNOLOGY AGENDA FOR THE NEW ADMINISTRATION

      Atkinson, Robert; Castro, Daniel (2009-01-01)
      While the presidential race primarily focused on the economy, the Iraq war, and the rising cost of health care, President Barack Obama must now show that he is ready to set the technology policy agenda of the United States for the next four years because our national technology policy will have a large effect across all areas of national policy. Spurring technological innovation is becoming an increasingly important tool for policymakers. Government has traditionally relied on three mechanisms to shape public policy: tax policy, government programs, and regulation. However, innovation has become an important component because success in many policy areas, including health care, national defense, homeland security, transportation, energy, environment, law enforcement, and, of course, the economy, may largely be determined by our ability to develop and deploy information technology (IT). For example, solving our nation's surface transportation challenges will be difficult without the widespread use of IT, whether to implement congestion pricing and tolling with intelligent transportation systems or to provide real-time information on traffic conditions. Likewise, fixing health care requires a massive infusion of IT, including the deployment of electronic health records and the creation of a sustainable national health information network. This essay lays out a framework for the new administration's technology policy to help spur growth and progress throughout the economy and government. Each of these policy changes satisfies at least one of two primary goals: 1) promoting competitiveness and innovation; and 2) fostering a more robust digital economy. Given the importance of IT to solving pressing societal problems, it is crucial that the new administration see IT not as a sideline issue, but as a key component of its domestic and foreign policy. This means putting issues of digital transformation at the front and center of a wide array of public policy issues. For example, any economic stimulus package should invest not only in physical infrastructure, but also in our digital infrastructure. It also means that IT transformation needs to be a key component of every government agency, not just the commerce or telecommunications agencies.
    • A POLITICAL HISTORY OF DRM AND RELATED COPYRIGHT DEBATES, 1987-2012

      Herman, Bill (2012-01-01)
      Scholars who discuss copyright often observe that the voices for stronger copyright have more financial and political capital than their opponents and thus tend to win in Congress. While those facts are historically true, since the turn of the century, the politics around the issue have shifted substantially and become much messier and less predictable. This study illustrates this changing policy dynamic via a detailed political and legislative history of the major proposals regarding digital rights management and related areas of copyright, from 1987 to the present day. In 1987, there was no organized opposition to copyright’s expansion. Within fifteen years, however, there was a substantial coalition of opposition, including public intellectuals, allied journalists, and newly-founded nonprofits. By the mid- 2000s, this coalition had substantially slowed the expansion of copyright and even won substantial legislative support for proposals to limit copyright’s reach. Despite being badly outspent and having far fewer allies in Congress, the “strong fair use” coalition had fought the “strong copyright” coalition to a draw in two key debates in the mid-2000s. In early 2012, the strong copyright coalition tried to push through a pair of bills with farreaching implications for the Internet ecosystem—and it looked like they would ultimately prevail, until Internet activism led millions of voters to contact Congress in opposition. By looking at the political histories of all of these proposals in one place, this article shows an unmistakable trajectory in the politics of copyright, from an era of relatively easy inter-industry negotiation toward an era in which copyright industries face a permanent, principled opposition, emboldened by having executed the largest online protest in history.
    • A Prescription for Excessive Drug Pricing: Leveraging Government Patent Use for Health

      Brennan, Hannah; Kapczynski, Amy; Monahan, Christine H.; Rizvi, Zain (2017-04-02)
      High drug prices are creating serious health and fiscal problems in the United States today. This reality is vividly illustrated by recently approved medicines to treat Hepatitis C. These new medicines can cure nearly everyone with this potentially fatal infection and may even enable the elimination of this disease. But the drugs' sticker price- close to $100,000- has meant that very few patients who could benefit from them can access them. This Article describes an approach, available under existing law, to bring about transformative reductions in the prices of these medicines, at least for federal programs and possibly beyond . Under 28 U.S.C. § 1498, the U.S. government can buy generic versions of these medicines at less than 1% of their list price plus a reasonable royalty. This power has received almost no academic attention, despite the fact that it is regularly used by the government in other sectors, including defense. Indeed, though it has now been forgotten, the federal government relied on this provision numerous times to procure cheaper generic drugs in the 1960s. We recover this history and show how § 1498 can once again be used to increase access to life-saving medicines, addressing several important interpretive questions about the application of the provision along the way.
    • A Theory of Creepy: Technology, Privacy, and Shifting Social Norms

      Tene, Omer; Polonetsky, Jules (2015-09-18)
      The rapid evolution of digital technologies has hurled to the forefront of public and legal discourse dense social and ethical dilemmas that we have hardly begun to map and understand. In the near past, general community norms helped guide a clear sense of ethical boundaries with respect to privacy. One does not peek into the window of a house even if it is left open. One does not hire a private detective to investigate a casual date or the social life of a prospective employee. Yet with technological innovation rapidly driving new models for business and inviting new types of personal socialization, we often have nothing more than a fleeting intuition as to what is right or wrong. Our intuition may suggest that it is responsible to investigate the driving record of the nanny who drives our child to school, since such tools are now readily available. But is it also acceptable to seek out the records of other parents in our child’s car pool or of a date who picks us up by car? Alas, intuitions and perceptions of “creepiness” are highly subjective and difficult to generalize as social norms are being strained by new technologies and capabilities. And businesses that seek to create revenue opportunities by leveraging newly available data sources face huge challenges trying to operationalize such subjective notions into coherent business and policy strategies. This article presents a set of social and legal considerations to help individuals, engineers, businesses and policymakers navigate a world of new technologies and evolving social norms. These considerations revolve around concepts that we have explored in prior work, including enhanced transparency; accessibility to information in usable format; and the elusive principle of context.
    • A WARRANT TO HACK: AN ANALYSIS OF THE PROPOSED AMENDMENTS TO RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

      Lerner, Zach (2017-04-02)
      In 2013, a federal magistrate judge denied an FBI request for a remote access search warrant, concluding that, among other deficiencies, Rule 41 of the Federal Rules of Criminal Procedure prevented him from granting a warrant to hack a computer when the location of the device was not known. Just five months later, the DOJ proposed amendments to Rule 41 seeking to eliminate the territorial limits on search warrants in two cybercrime contexts: (1) when suspects conceal their online locations and identities; and (2) when malware af fects users in five or more districts. Despite approval from the necessary judicial committees and conferences, the amendments must now survive review by the Supreme Court and Congress. While the government argues that the amendments represent small but necessary changes, critics raise a number of far­ reaching legal and policy concerns, labeling the amendments as the legalization of "New Invasive Global Hacking Powers." This paper seeks to impartially present and evaluate both sides of the argument. This Article of fers concrete alterations to the amendments, which ensure that law enforcement agencies are able to ef fectively investigate and prosecute cybercrimes while simultaneously protecting privacy, safeguarding civil liberties, and guaranteeing that remote access search warrants do not become ubiquitous tools of surveillance.
    • Algorithmic Transparency for the Smart City

      Brauneis, Robert; Goodman, Ellen P. (2019-04-28)
      As artificial intelligence and big data analytics increasingly replace human decision making, questions about algorithmic ethics become more pressing. Many are concerned that an algorithmic society is too opaque to be accountable for its behavior. An individual can be denied parole or credit, fired, or not hired for reasons that she will never know and which cannot be articulated. In the public sector, the opacity of algorithmic decision making is particularly problematic, both because governmental decisions may be especially weighty and because democratically elected governments have special duties of accountability.
    • Anonymity, Disclosure and First Amendment Balancing in the Internet Era: Developments in Libel, Copyright, and Election Speech

      Shepard, Jason; Belmas, Genelle (2013-01-01)
      The Supreme Court has long protected anonymity for speakers and writers under the First Amendment. The Internet enables anonymity for individuals who post writings, download music, and participate in political discussion. However, this poses a challenge for plaintiffs who want to sue anonymous speakers for libel, copyright infringement, or election speech. This Article evaluates current legal developments in these areas and makes recommendations about how the law should deal with these different but related issues of anonymous speech.
    • ARCHITECTURAL REGULATION AND THE EVOLUTION OF SOCIAL NORMS

      TIEN, LEE (2005-01-01)
      Current legal scholarship on architectural regulation of software focuses on how its lack of transparency may frustrate public accountability or, by the same token, enhance its effectiveness. This paper argues that architectural regulation poses deeper dangers to the very concept of law. Ordinarily, we think of law as rules that a person thinks about when deciding how to act, and which human beings must decide to enforce. Law as architecture operates differently. instead of affecting our calculus of choice, it structures the very conditions of action, such as social settings and the resources available in those settings. Thus, architectural regulation operates surreptitiously and may not even be perceived as governmental action. Architectural regulation thus allows government to shape our actions without our perceiving that our experience has been deliberately shaped, engendering a loss of moral agency. Because our norms are often the product of social experience with and discourse about new technologies, architectural regulation poses the danger that government can distort the evolution of constitutional norms like privacy.
    • BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE

      RABINOVICH-EINY, ORNA (2004-01-01)
      The author discusses the Internet's potential equalizing effect on dispute resolution institutions. The emergence of online dispute resolution (ODR) mechanisms and virtual courts are the clearest manifestation of the Internet's influence on dispute resolution, but its influence extends beyond the immediate online environment, as is demonstrated throughout the Article by analyses of various examples and the specific case study of the Ford-Firestoned ebacle. The Ford-Firestones tory provides a rich case study for the positive potential as well as the pitfalls of resolving disputes in the nascent Internet society, and it is especially useful for dispelling the notion that the Internet will only affect technology-related disputes. The author analyzes dispute resolution institutions (courts and ADR mechanisms) as they currently exist and as they are likely to develop in the future. The Article's prediction and main thesis is that as a result of the introduction of new technologies, traditionally disempowered disputants could potentially experience greater equality in the dispute resolution institutions of the Internet society. The Article concludes with a demonstration of how disputes similar to the Ford-Firestone case study will be played out in the landscape of the future.
    • Best Mode Trade Secrets

      Love, Brian; Seaman, Christopher (2013-01-01)
      Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Without it, they evaporate. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Buried amidst myriad tweaks to the Patent Act is one that has the potential to substantially change the boundary between patent and trade secret protection. For the first time since at least 1952 (and as a practical matter since 1870), an inventor’s failure to disclose in her patent the preferred method for carrying out the invention—the so-called “best mode”—will no longer invalidate her patent rights or otherwise render them unenforceable. In this brief Essay, we explain why it may become routine post-patent reform for patentees to attempt to assert both patent rights and trade secret rights for preferred embodiments of their invention in certain types of cases. We also consider potentially undesirable ramifications of this change and suggest one approach that courts may use to limit claims of concurrent trade secret and patent protection when equity demands.
    • BIOMEDICAL UPSTREAM PATENTING AND SCIENTIFIC RESEARCH: THE CASE FOR COMPULSORY LICENSES BEARING REACH-THROUGH ROYALTIES

      WANG, RICHARD (2008-01-01)
      In the wake of breakthroughs in biotechnology and prosperous development in the biotechnology industry, the field of biomedical upstream research has experienced a large increase in the number of patents granted This Article concerns mainly the threat that the proliferation of upstream patents pose to biomedical research and commercialization, especially the danger posed by research tool patents. The propagation of research tool patents may impede access to those research routes that are most promising to scientists. These patents also create substantial burdens, including research delays and financial costs, for independent researchers seeking authorization for the use of research tools. There are two contending camps-the prospect theorists and the anticommons theorists-arguing over the influence of patents on biomedical upstream research. Although the anticommons theory is more sensible and coherent, the reality of biomedical science does not unfold as predicted by this theory. Empirical studies suggest that the reason for this disparity lies in the nature of biomedical research, as well as in the informal research exception that the scientific community has developed However, even such empirical findings cannot convincingly negate all of the problems created by upstream patents, including blockages in downstream development and increasing delays and costs for follow-on research on the patented upstream inventions. In this article, I review proposals now put forward by scholars for eradicating these problems. Finding fault with most of the resolutions proffered thus far, I argue for a compulsory license system that charges reach-through royalties, which are measured by the contribution that patented research inputs make to the individual research. This is a method that can calibrate royalties to the actual value of these research inputs. With this proposal, I hope to bridge the gap between patentees and independent researchers so as to alleviate the problems that biomedical science suffers now.
    • Block-by-Block: Leveraging the Power of Blockchain Technology to Build Trust and Promote Cyber Peace

      Shackelford, Scott J.; Myers, Steve (2018-01-14)
      There has been increasing interest in the transformative power of not only crypto-currencies like Bitcoin, but also the technology underlying them-namely blockchain. To the uninitiated, a blockchain is a sophisticated, distributed online ledger that has the potential, according to Goldman Sachs, to "change 'everything."' From making businesses more efficient to recording property deeds to engendering the growth of 'smart' contracts, blockchain technology is now being investigated by a huge range of organizations and is attracting billions in venture funding. Even the U.S. Defense Advanced Research Projects Agency (DARPA) is investigating blockchain technology to "create an unhackable messaging system."
    • BUILDING SOCIAL NORMS ON THE INTERNET

      Levin, Daniel (2002-01-01)
      This Note examines how architecture, and particularly the design and coding of software on the Internet, helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behavior the code is written to promote. The Note begins by describing how architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the general theory of architecture and norms to the Internet world, first describing the particular features of the Internet-anonymity, dispersion, and the free flow of information-that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how software engineers have effectively and ineffectively used code to promote the development of social norms.
    • Certain Patents

      Marco, Alan; Vishnubhakat, Saurabh (2015-09-18)
      This Article presents the first in a series of studies of stock market reactions to the legal outcomes of patent cases. From a sample of patents litigated during a 20-year period, we estimate market reactions to patent litigation decisions and to patent grants. These estimates reveal that the resolution of legal uncertainty over patent validity and patent infringement is, on average, worth as much to a firm as is the initial grant of the patent right. Each is worth about 1.0–1.5% excess returns on investment. There are significant differences between such market reactions before and after the establishment in 1982 of the United States Court of Appeals for the Federal Circuit. There are also significant differences among the reactions of patent holders to resolved uncertainty depending on their litigation posture as plaintiffs or defendants. Interestingly, there is no similar effect for appellate decisions relative to trial decisions. The normative implications of these findings proceed, not from the magnitude of the quantitative results—which are statistically meaningful but modest—but rather from our illustration that uncertainty in the value of patent rights is quantifiable and so can be correlated with patentee and litigant behavior in developing patent policy.
    • CHALLENGES TO AUTHORITY, BURDENS OF LEGITIMIZATION: THE PRINTING PRESS AND THE INTERNET

      KERTCHER, ZACK; MARGALIT, AINAT (2006-01-01)
      The Internet is often regarded as a challenge to the nation-state's ability to regulate flows of finance, information, and symbols. Rather than examining whether it is possible to enforce regulation on such a media, this paper addresses two additional fundamental questions: (1) what do regulatory discourses and attempts to regulate reveal about the nation-state's political authority under globalization, and (2) how does this authority vary across social, political, and cultural contexts? In order to address these challenging queries we follow a unique path, both empirically and theoretically. Theoretically, we argue that political authority is a pivotal common denominator that undergirds diverse understandings of globalization. We then critically examine different conceptions of political authority and construct a typology that orients our study. Empirically, we follow our typology by comparing two historical phenomena: attempts by the Catholic Church to regulate the printing press during the 15th and 16th centuries, and attempts by China, Malaysia and the United States to regulate the Internet. Despite certain important commonalities, we posit that each of these cases illustrates a different model of the legitimization processes and transformations in political authority that occur under globalization.