2001-2003
Articles
ICANN: The Debate Over Governing the Internet
Kathleen E. Fuller
Date posted: 2-14-2001
Since its creation, the Internet Corporation for Assigned Names and Numbers (ICANN) has been the subject of criticism and controversy. ICANN is a private non-profit corporation that operates under contract with the US Department of Commerce. It was created at the request of the government for the purpose of privatizing the Domain Name System (DNS), the addressing system on which the Internet depends. The creation of ICANN in 1998--what some have called cyberspace's own "constitutional moment" -- represented a substantial shift in power to control the Internet from government to private industry. Today, ICANN is facing a virtual revolt. Domain name registrars outside the US are protesting bills sent by ICANN (which help finance approximately 1/3 of ICANN's $5 million budget), claiming they want either better representation or the ability to break away from ICANN and set up their own networks.Domestic registrars who recently applied for new top-level domain names (and who submitted non-refundable $50,000 application fees) have threatened legal action, claiming that ICANN's process for approving new domains is unfair. And recently, Professor Michael Froomkin of the University of Miami School of Law published a seminal law review article questioning the very legality of ICANN's relationship with the Department of Commerce.
Topic: Media & Communications
An Interview With Michael Froomkin
Kathleen E. Fuller
Date posted: 2-28-2001
A. Michael Froomkin is an Administrative Law and Internet Law scholar from the University of Miami School of Law and a vigorous critic of the Internet Corporation for Assigned Names and Numbers (ICANN). He is the author of a controversial new law review article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (Oct. 2000), available at http://www.law.duke.edu/journals/dlj/. In his new article, Professor Froomkin argues that ICANN's relationship with the Department of Commerce is illegal. We interviewed Professor Froomkin via e-mail about his new article and about other recent ICANN-related events, such as ICANN's plan to assign new generic top-level domains (gTLDs)
Topic: Media & Communications
Who’s Afraid of amazon.com v. barnesandnoble.com?
Stephen Dirksen, Kyle Grimshaw, Michael Hostetler, Ian Jinkerson, and Michael Kim
Date posted: 2-28-2001
On October 2, 2000, the Court of Appeals for the Federal Circuit heard the appeal in the case of Amazon.com, Inc. v. Barnesandnoble.com, Inc. This appeal revolves around the alleged infringement by Barnesandnoble.com of a one-click web-shopping system patented by Amazon.com. The one-click system is among a series of recent controversial "business method" patents. According to some, business methods are legitimate inventions that deserve the protection of the US Patent and Trademark Office (PTO). According to others, business methods are unworthy of patent protection and may inhibit innovation in e-commerce. The outcome of this case has been widely anticipated by both sides of the business method patent debate as a signal that these patents will or will not be upheld by courts.
Topic: Patents & Technology
Deutsche Telekom and Voicestream Merger: Charting a New Regulatory Course
Aaron Futch, Yemi Giwa, Andrew Grimmig, Kisa Mlela, and Amy Richardson
Date posted: 2-28-2001
On July 24, 2000, the German telecommunications giant Deutsche Telekom AG (Deutche Telekom) agreed to purchase the Bellvue, Washington based VoiceStream Wireless Corporation (VoiceStream) for over $50 billion. Although the merger may ultimately fall through, the response generated by the proposed merger indicates the future for deals between US and foreign-owned telecommunications companies. With the increasing globalization of the world's telecommunications markets, the Deutche Telekom deal represents the first time that a company dominated by a foreign government has attempted to purchase an American corporation. The signatories of the Basic Telecommunications Agreement, an agreement among World Trade Organization (WTO) members to open their telecom markets to foreign competition, are closely watching the US response. The stance that the US government takes in reviewing this merger can be seen as a sign of things to come as the world's single largest telecommunications market opens up to the world.
Topic: Patents & Technology
Are Online Business Transactions Executed by Electronic Signatures Legally Binding?
Carl Carl, Corey Ciocchetti, Wes Barton, and Nathan Christensen
Date posted: 2-28-2001
Most of us believe that we make contracts over the Internet all the time. We buy books and computers, arrange for hotels and planes, trade stocks, and apply for mortgages. But as recently as seven months ago that transaction was most likely not legally binding. This uncertainty led many practitioners, businesspeople, and consumers to question the efficacy of contracts executed by electronic signatures. Without a uniform standard, many jurisdictions ruled inconsistently, while other jurisdictions did not consider the issue. This disparate treatment threatened the legitimacy of online agreements and deprived both consumers and businesses of the certainty and predictability expected from well-developed markets. The law's formalities evolved outside of the digital world, and the process of adapting them to it has proven to be more difficult than expected. In June of 2000, Congress attempted to solve this problem with the Electronic Signatures in Global and National Commerce Act (E-Sign).
Topic: eCommerce
Internet Securities Fraud: Old Trick, New Medium
Brendon Fowler, Cara Franklin, and Robert Hyde
Date posted: 2-28-2001
Billions of securities are traded every day in public and private markets around the world. This practice is hundreds of years old and as long as securities have been traded, someone has tried to defraud the system to make a quick buck. With the advent of the Internet, new securities fraud schemes have appeared.
Topic: CyberCrime
Offshore Offerings by Foreign Entities: How Far Will the SEC Reach to Regulate?
Melvina Carrick, Matthew Crane, and Jennifer Hu
Date posted: 2-28-2001
Many countries' regulatory regimes, including that of the United States, traditionally require registration of all investment services offers or securities sales to their citizens. Many have claimed that the Internet will make such financial regulation obsolete. With the advent of the new technology, regulatory bodies across the globe have been forced to redefine what constitutes an offer to purchase securities within their borders. They have come up with a variety of models for regulating cross-border capital flows. Even countries with similar legal traditions such as Britain, the US, and Australia have taken different approaches.
Topic: International
The Fate of Gene Patents Under the New Utility Guidelines
Date posted: 2-28-2001
The United States Patent and Trademark Office (PTO) recently finalized its patent utility guidelines. Promulgated by the PTO, the new guidelines will be used by patent examiners in determining whether a claimed invention should be awarded patent protection ;and will be used by patent applicants and attorneys who file patent applications. The guidelines focus primarily on the utility standards for gene and gene fragment patents, an issue that was featured in the PTO's 1999 Revised Interim Utility Guidelines and has been the subject of considerable public debate.
Topic: Health & Biotechnology
Cybersquatting: The Latest Challenge in Federal Trademark Protection
Justin Graham, Ashley Johnson, Emilio Mena, and Neil Wolitzer
Date posted: 2-28-2001
The explosion in Internet technology in the past decade has drawn the Lanham Act into the realm of electronic commerce. Trademark owners seeking to register domain names have recently found themselves entwined in a number of disputes, such as disputes involving claims to multiple domain names and disputes over whether the domain name registration system is fairly administered. One important legal issue that has recently come to the fore is over the practice of cybersquatting. Today, courts must contend with the cybersquatter, a speculator who reserves trademarks as Internet domain names for the sole purpose of selling or licensing them back to trademark owners willing to pay a considerable price for their use. Complicating matters, the most potent weapons in the Government's anticybersquatting arsenal--the Anticybersquatting Consumer Protection Act (ACPA) and Federal Trademark Dilution Act (FTDA)--each give rise to grave constitutional concerns.
Topic: Copyrights & Trademarks
Can You Yahoo!? The Internet’s Digital Fences
Brendon Fowler, Cara Franklin, and Bob Hyde
Date posted: 3-12-2001
The Yahoo! auction case illustrates the problems inherent in the lack of a common Internet jurisdictional structure. This iBrief argues that the application of local law allowed France to win a victory against domestic hate groups, but dealt a blow to free speech everywhere.
Topic: CyberCrime
The Fate of Napster: Digital Downloading Faces an Uphill Battle
Jennifer Askanazi, Glen Caplan, Dianne Descoteaux, Kelly Donohue, and Darin Glasser
Date posted: 3-18-2001
First Diamond Multimedia, then MP3.com, now Napster. The recording industry, in a flurry to protect its copyrighted material, has waged an all-out battle against the dot-coms for the future of copyrighted music on the Internet. Since A&M Records, along with several other labels which comprise the Recording Industry Association of America (RIAA), filed suit against Napster, emotions have run high in the online community. Some have heralded this technology as a much-needed alternative to the strangling grasp of the major record labels; others view it as blatant theft of property. Students, musicians, computer programmers, trade organizations, and even the US government have voiced their opinions - all perhaps sensing that the outcome of the Napster litigation will have far-reaching consequences. Not only does the current battle over the fate of peer-to-peer technology promise to reshape the face of copyright law, it will also mark the future of the music industry, emerging technologies, and business models for years to come.The following iBrief describes the emergence of Napster's peer-to-peer technology, the legal proceedings to date, and Napster's defensive strategy, as well as the potential technological and cultural ramifications of the Napster cause celebre
Topic: Copyrights & Trademarks
FTC vs. Toysmart
Daniel Bronski, Conway Chen, Matthew Rosenthal, and Robert Pluscec
Date posted: 3-26-2001
Last summer, Toysmart agreed to a settlement with the Federal Trade Commission concerning use of its customer information database. Under the terms of the settlement, the defunct Internet toy retailer was permitted to sell customer information without either providing its former customers notice or giving them an opportunity to block the sale or use of their personal information. This issue ignited a privacy-rights maelstrom, but ended anti-climatically for Toysmart; in January, Buena Vista Internet Group, a Disney subsidiary and 60% majority shareholder of Toysmart, agreed to compensate the company's creditors $50,000 for the privilege of destroying the database. U.S. Bankruptcy Court Judge Carol Kenner approved this plan, subject to the limitation that Toysmart attorneys must retain the list and destroy it (rather than physically transfer it to Buena Vista) when all creditor claims are satisfied.
Topic: eCommerce
Digital Television: Has the Revolution Stalled?
Aaron Futch, Yemi Giwa, Kisa Mlela, Amy Richardson, and Yelena Simonyuk
Date posted: 3-26-2001
When digital television technology first hit the scene it garnered great excitement, with its promise of movie theater picture and sound on a fraction of the bandwidth of analog. A plan was implemented to transition from the current analog broadcasting system to a digital system effective December 23, 2006. As we reach the half point of this plan, the furor begins to die as the realities of the difficult change sink in.
Topic: Media & Communications
Patent Amendments and Prosecution History Estoppel Under Festo
Stephen Dirksen, Kyle Grimshaw, Michael Hostetler, Michael Kim, and Steven Mesnick
Date posted: 4-4-2001
On November 29, 2000, the Federal Circuit retroactively reduced the value of nearly 1.2 million unexpired United States patents by announcing a new rule for the somewhat obscure doctrine of prosecution history estoppel. Designed to foster clarity in patent applications, this new pronouncement in Festo Corp v. Shoketsu Kinzoku Kogyo Kabushiki Co. allows for easy copying of some patented inventions and reduces patent owner's ability to prove infringement. This article outlines the change in the law and discusses the positive and negative consequences of the decision.
Topic: Patents & Technology
Where the Wild Wind Blows: Genetically Altered Seed and Neighboring Farmers
Jill Sudduth
Date posted: 5-3-2001
In March 2001, agro-business giant Monsanto won a victory in Canadian Federal Court over Saskatchewan farmer Percy Schmeiser. This case sets international precedent for appropriated seed cases and illustrates the primary concerns American courts must face as they consider Monsanto's prosecution of 22 cases against American farmers.
Topic: Health & Biotechnology
Software Disclosure and Liability Under the Securities Acts
Carl C. Carl
Date posted: 5-10-2001
Can a software company be liable under the securities laws when it sells securities without disclosing that it will not give free updates on current software as new technology makes them obsolete? What exactly must be disclosed and how does one say it without subjecting the company's business practices to close scrutiny? The Eleventh Circuit recently applied the time-honored standard of meaningful cautionary language to software companies in finding that the disclosures of a software company were enough to avoid liability under the securities laws when the company provided meaningful cautionary language in their prospectus.
Topic: eCommerce
The Future of Database Protection in U.S. Copyright Law
Jennifer Askanazi, Glen Caplan, Dianne Descoteaux, Kelly Donohue, Darin Glasser, and Emelio Mena
Date posted: 5-22-2001
In the recent British Horseracing Board case, the English High Court signaled a return to the "sweat of the brow" standard of copyright protection. Although recent attempts have been made in the United States to protect databases under this standard, this iBrief argues that the information economy is wise to continuing protecting this data through trade secret, State misappropriation and contract law until legislation is passed.
Topic: Copyrights & Trademarks
The First Sale Doctrine and Digital Phonorecords
Bob Hyde
Date posted: 5-31-2001
This iBrief follows various phonorecord formats to illustrate the specifics of the First Sale doctrine as it applies to digital phonorecords. The author argues that the disposal of a digital phonorecord by means of distribution infringes an author's exclusive right to reproduce the underlying musical work and this distribution is not subject to First Sale protection.
Topic: Copyrights & Trademarks
The Complexities of On-Line Mutual Fund Advertising: A Summary of the Relevant Regulations
Corey Ciocchetti
Date posted: 6-4-2001
As the investment marketplace advances with current technology, paper-based advertising has quickly been supplemented by on-line advertising. Interestingly, both the Securities Exchange Commission and the National Association of Securities Dealers are treating this new medium similarly to the old-fashioned paper-based medium. This iBrief discusses and summarizes the current regulations surrounding one emerging form of on-line advertising - that of mutual funds. This discussion is intended to form a solid foundation from which an interested party may delve further into this emerging area of e-commerce.
Topic: eCommerce
International Upheaval: Patent Independence Protectionists and the Hague Conference
Kyle Grimshaw
Date posted: 6-13-2001
International lawmakers presently are negotiating a treaty that would not only allow U.S. courts to grant summary judgment in patent infringement suits if a court in Canada or Europe previously found patent infringement, but would actually require it. This paper examines whether courts in the United States should be allowed to find patent infringement based solely upon the fact that foreign courts had previously found patent infringement. The author concludes that changing the law to allow this practice is not sound policy.
Topic: Patents & Technology
Virtual Las Vegas: Regulate or Prohibit?
Cara Franklin
Date posted: 6-20-2001
With online gambling becoming increasingly accessible and popular, state and federal politicians are asking themselves how to make the prohibition on online gambling effective. Nevertheless, questions still linger as to whether outright prohibition is truly the right answer.
Topic: CyberCrime
The Clone Wars: The Growing Debate Over Federal Cloning Legislation
John Garvish
Date posted: 6-20-2001
As readers of science fiction are well aware, the term "clone" refers to asexually produced offspring, that is, offspring produced by a process of cell-division which does not begin with the union of two sex cells. A clone is the genetic twin of the cell donor. Propagation of plants by this method is, of course, commonplace, but mammalian reproduction in this fashion would indeed be a revolutionary accomplishment, with profound and disturbing implications.
Topic: Health & Biotechnology
International Liability in Cyberspace
Matthew Crane
Date posted: 7-5-2001
Activities in cyberspace often expose companies to "cybertorts", a species of tort particularly difficult to reconcile with standard insurance policies. The author explores some of the difficulties in obtaining coverage for cybertorts from traditional insurance policies, and makes recommendations for companies to reduce their cyberspace liability exposure.
Topic: International
Copyrights in Computer-Generated Works: Whom, if Anyone, Do We Reward?
Darin Glasser
Date posted: 7-11-2001
Computer-generated works raise grave authorship concerns under U.S. copyright law, with arguments in favor of allocating copyrights to the computer user, programmer, the computer itself, or some combination therein. The author discusses the issues and paradoxes inherent in these choices, and assesses the nature of mathematical graphical processes in light of the idea/expression dichotomy.
Topic: Copyrights & Trademarks
Freelance Articles and Electronic Databases: Who Owns the Copyrights?
Christine Soares
Date posted: 7-18-2001
There has long been uncertainty as to who owns the rights to digital reproductions of freelance articles. The Supreme Court has recently affirmed that copyrights for the digital reproduction of freelance articles belong to freelance authors, rather than the periodical and electronic media publishers who included the articles in electronic databases. However, in answering this question others, such as the preservation of the historical record and future dealings with freelance writers remain to be answered. The author discusses the recent Supreme Court ruling and offers answers to questions created by it.
Topic: Media & Communications
Monitoring Employee E-Mail: Efficient Workplaces vs. Employee Privacy
Corey A. Ciocchetti
Date posted: 7-25-2001
Employer monitoring of electronic mail constitutes an emerging area of the law that is clearly unsettled at this point in time. This iBrief demonstrates that the privacy rights of non public-sector employees are relatively unprotected by the federal and state constitutions, broad judicial interpretations of enacted privacy legislation favor legitimate employer-monitoring practices, and many of the elements of common law claims are difficult for employees to prove.
Topic: eCommerce
A Reconsideration of the Physicians’ Immunity Statute
Steve Dirksen
Date posted: 8-6-2001
The author assesses the "physicians' immunity statute" from legal policy, ethical, and financial perspectives, and concludes that alternatives such as licensure and monetary incentives would better serve the goal of encouraging invention more effectively by rewarding it.
Topic: Health & Biotechnology
Carnivore: Will It Devour Your Privacy?
Joseph Goodman, Angela Murphy, Morgan Streetman, and Mark Sweet
Date posted: 8-9-2001
Perhaps you have written an e-mail that looks something like this:
Topic: CyberCrime
Hacking Digital Video Recorders: Potential Copyright Liability for DVR Hackers and Service Providers
Ashley A. Johnson
Date posted: 8-17-2001
To what extent does Sony's time-shifting fair use argument extend to recent innovations that make it easier for hackers use DVR technology to generate copies of protected material? The author assesses the potential liability of DVR manufacturers against the backdrop of traditional fair use doctrines.
Topic: Copyrights & Trademarks
U.S. Export Controls on Technology Transfers
Matthew Crane
Date posted: 8-29-2001
Companies selling technology products abroad must be careful that they have complied with regulations imposed on the exportation of technology products. This is especially true for companies seeking to export encryption technology. This iBrief explores the considerations that must be given to the export of encryption and other technologies.
Topic: International
The Music Online Competition Act of 2001: Moderate Change or Radical Reform?
Alexander Davie and Christine Soares
Date posted: 8-31-2001
On August 3, 2001 legislation was proposed to facilitate online broadcasting and distribution of music. The proposed Music Online Competition Act (MOCA) seeks to streamline the distribution of music over the Internet, increase competition, and avoid the monopolization of the online music industry by the record companies. This iBrief discusses several changes that MOCA would implement in the law and the reaction of the recording industry to these proposed changes.
Topic: Media & Communications
Are Domain Names Property? The sex.com Controversy
Christine Soares
Date posted: 9-10-2001
Do domain names constitute tangible property? Since domain names may be purchased or transferred, the answer at first glance would appear to be "yes". Congress has also dictated that domain names corresponding closely to existing trademarks may be considered tangible property under certain circumstances. However, a recent case involving the lurid and lucrative domain name "sex.com" has determined otherwise. This iBrief examines the impact of characterizing domain names as tangible or intangible property on the causes of action available for domain name litigation.
Topic: eCommerce
Hard Lessons: Guiding America’s Approach to Third Generation Wireless Policy
Aaron Futch
Date posted: 9-14-2001
The publicity over license auctions in Europe during 2000 created an atmosphere in which the prices that companies paid for third-generation wireless licenses received more attention than their actual plans to implement the technology. As American policymakers and corporate boardrooms consider the future of this technology here in America, it is vital that we develop a coherent and well-designed allocation process and then quickly move on to meatier problems.
Topic: Media & Communications
The Internet Opens Its Doors for .BIZ-ness
Corey Ciocchetti
Date posted: 9-27-2001
Starting on October 1, 2001, .BIZ will become active as the Internet's newest top-level domain; its space reserved solely for businesses engaging in "bona fide" commercial activities. This space has the potential to reinvigorate, at least partly, the immense economic potential of the Internet by stimulating a multitude of e-commerce transactions so common only a few years ago. This iBreif explores the history of how and why this new top-level domain came into being. Following this history lies a discussion of the current .BIZ registration process as well as an analysis of the corresponding Intellectual Property Claims system.
Topic: eCommerce
A Victory for the Student Researcher: Chou v. University of Chicago
Kyle Grimshaw
Date posted: 10-3-2001
For years, graduate and other student researchers at universities have alleged that the hierarchical system in academic research allows supervising PhDs to steal and patent inventions that were rightfully discovered by students. In July 2001, the Federal Circuit finally addressed these concerns by interpreting the law in a way that strictly protects the rights of student researchers. This article examines this long-overdue change in the law and discusses its potential implications.
Topic: Patents & Technology
Liberty for Security
Morgan Streetman
Date posted: 10-10-2001
On 11 September 2001, we collectively endured the worst tragedy to touch American soil since the Civil War. In the wake of this horrible event, a national hysteria erupted. People are anxious to restore the lost security; but at what cost? Many Americans seem not to care about the costs, and national polls show that now, more than ever, Americans are willing to trade their precious civil liberties in an attempt to restore security. As the ACLU has stated these are difficult days. Not only are they difficult, they will define the future of America. This iBrief explores the reactions of the American government to this tragedy and the effect these reactions will have on the freedom of all Americans.
Topic: CyberCrime
Date posted: 10-16-2001
Nothing contained herein shall be considered to be the grant of a commercial license or right under the Wisconsin Patent Rights or to Wisconsin Materials. Furthermore, nothing contained herein shall be construed to be a waiver of WiCell's patent rights under the Wisconsin Patent Rights or WiCell's property rights in Wisconsin Materials.
Topic: Health & Biotechnology
Enhanced 911 Technology and Privacy Concerns: How Has the Balance Changed Since September 11?
Aaron Futch and Christine Soares
Date posted: 10-26-2001
E911 technology allows for the location of a cellular phone to be determined by the wireless service provider within several hundred feet. As a consequence, privacy groups have been extremely resistant to the implementation of E911. In the wake of the September 11 tragedies, however, the balance between privacy concerns and national security seems to have changed for many American citizens. This iBrief will explore the nature of the E911 technology, the FCC implementation requirements, the concerns of privacy groups regarding its implementation, and how the environment surrounding E911 has changed since September 11.
Topic: Media & Communications
MusicNet & PressPlay: To Trust or Antitrust?
Kelly Donohue
Date posted: 11-12-2001
Efforts by leading record labels to fill the void they created by shutting down Napster led several to develop their own subscription online music service. The author of the following iBrief assesses the viability of those services in light of a Justice Department antitrust investigation into the practices of the labels in allegedly quashing smaller distributors and colluding to stifle competition, and considers the ramifications of an antitrust suit for both the major labels and their competitors.
Topic: Copyrights & Trademarks
Cybernetic Implications for the U.C.C.
Stephen Dirksen and Kyle Grimshaw
Date posted: 11-20-2001
In the following iBrief, the authors assess the impact of recent a recent decision from the 9th Circuit assessing whether the patent system's filing mechanism preempts the U.C.C. Article 9 requirement that creditors perfect their security interests in patents offered as collateral by their debtors.
Topic: Patents & Technology
Policing Online Pharmacies: Bioterrorism Meets the War on Drugs
Mark Sweet
Date posted: 11-26-2001
In light of the recent terrorists attacks and the increasing threat of bioterrorism, many U.S. citizens have turned to the Internet in an attempt to gather the supplies needed to protect them and their loved ones. Central to the effort is the increased purchasing of prescription drugs over the Internet. This iBrief explores the benefits and risks to consumers from buying drugs online, and examines recent initiatives to police the online pharmacy industry.
Topic: CyberCrime
Facilitating Access of Aids Drugs While Maintaining Strong Patent Protection
Dana Ziker
Date posted: 12-7-2001
The AIDS pandemic has thrust the subject of patent protection into the spotlight, a spotlight that has attracted the attention of broad audience including interested parties from the political, legal, and medical communities. Can the United States' scheme of strong patent protection for pharmaceutical products withstand the increased attention?
Topic: Patents & Technology
Fraud and Enforceability: Potential Implications for Federal Circuit Litigation
Michael Kim
Date posted: 1-14-2002
Should fraudulent litigation tactics and testimony affect the validity of underlying patents? What results are possible if the enforceability of a patent turns on the conduct of the applying party not only before the Patent and Trademark Office, but also before circuit courts? The author of the following article considers these questions in light of the recent Aptix Corp. case.
Topic: Patents & Technology
Cracking the Code to Privacy: How Far Can the FBI Go?
Angela Murphy
Date posted: 1-28-2002
As the Nation continues to deal with the fallout of the events of September 11th, it must continue to decide what limits on privacy will be sacrificed in order to allow the government to tighten its security efforts. Who would have guessed that in this crazy post-September 11th world, the latest champion of Constitutional freedoms would be a reputed mobster?
Topic: CyberCrime
Date posted: 2-14-2002
At first blush, the Copyright Clause and the First Amendment of the United States Constitution appear to serve conflicting interests and to exist in irrevocable tension. On one hand, the Copyright Clause grants authors "the exclusive Right to their respective Writings and Discoveries," thereby prohibiting others from utilizing certain forms of expression. On the other hand, the First Amendment prohibits Congress from "abridging the freedom of speech" and expression. ;Thus, by simultaneously prohibiting the use of another's expression and safeguarding expression, the two provisions appear to be on a constitutional collision course.
Topic: Copyrights & Trademarks
Everyone’s a Critic: Defamation and Anonymity on the Internet
Allison Stiles
Date posted: 3-14-2002
Internet publishing is easy and has become commonplace in ourtechnology-focused society. Although this type of publication can beexciting and helpful for those interested in communicating an idea, theissue of anonymous speech on the Internet has created some complications in the rather established tort of defamation. This article will discuss two approaches recently taken by two different courts in response to the Internet-anonymity issue and will evaluate them based on their ability to strike a balance between protecting free speech and protecting against defamation.
Topic: Media & Communications
Date posted: 4-5-2002
Caspar Bowden, Director of the Foundation for Information Policy Research (FIPR), explains the technical and legal context of unprecedented new surveillance capabilities, with particular reference to the UK's Regulation of Investigatory Powers (RIP) Act 2000. He discusses why these powers are unlikely to be effective in detecting or disrupting the communications of terrorist cells or organized crime, but present significant new threats to the security, privacy, and freedom of expression of the law-abiding.
Topic: CyberCrime
Court Gives Thumbs-Up for Use of Thumbnail Pictures Online
Kelly Donohue
Date posted: 4-16-2002
In the online world, where intellectual property rights can be violated with the simple click of a mouse, innovation sometimes finds itself engaged in a game of chicken with the law. Recently, online-photo-search engine Ditto.com played just such a game, taking their fight to the Ninth Circuit Court of Appeals. The Ninth Circuit's holding protects Ditto.com's use of copyrighted photos as transformative fair use. But the holding also addresses inline linking and framing, warning that they can violate copyright even in the face of a fair use.
Topic: Copyrights & Trademarks
An Interview With Caspar Bowden
Joseph Goodman
Date posted: 4-30-2002
Caspar Bowden (cb@fipr.org) is the author of a recent DLTR article, Closed Circuit Television for Inside Your Head: Blanket Traffic Data Retention and the EmergencyAnti-Terrorism Legislation. He is the Director of the Foundation for Information Policy Research (http://www.fipr.org), an independent non-profit think-tank that undertakes research on the interaction between information technology and society, technical developments with significant social impact, and public policy alternatives. He was formerly a consultant specializing in Internet security and e-commerce, senior researcher of an option-arbitrage trading firm, a financial strategist with Goldman Sachs, and chief algorithm designer for a virtual reality software house. We interviewed Mr. Bowden about combating terrorism in Europe and other issues related to European cyber-policy, such as the success of a European Internet and Information policy.
Topic: Copyrights & Trademarks
The Enola Bean Patent Controversy: Biopiracy, Novelty and Fish-And-Chips
Gillian N. Rattray
Date posted: 6-3-2002
Should traditional knowledge be patentable? As the number of patents filed by large corporations for native crops has increased, activists have become concerned about the economic effects of these patents on indigenous people. This iBrief discusses the attempts by one group of activists to test the validity of such patents in the United States and explores the issue of biopiracy in the Third World.
Topic: Patents & Technology
The Extraterritorial Reach of Trademarks on the Internet
Yelena Simonyuk
Date posted: 6-4-2002
The advent of the Internet means incredible opportunity for global interaction. Consumers in Asia can buy from a small business in Louisiana, and businesses can advertise to a much wider market for a fraction of the cost of traditional media. But these benefits come with a dilemma: what to do about trademark infringement on the Internet. In a virtual world with no borders, what (and where) is the law?
Topic: Copyrights & Trademarks
Protecting Intellectual Capital in the New Century: Are Universities Prepared?
James Ottavio Castagnera, Cory R. Fine, and Anthony Belfiore
Date posted: 6-17-2002
In recent years, intellectual property has become increasingly important to academic institutions throughout the United States. As universities rely more heavily on trademarks and patents for additional revenue, questions arise as to whether these institutions are sufficiently protected by their current intellectual property policies. This iBrief explores the policies promulgated by a variety of academic institutions and assesses whether these universities are adequately protected by their policies.
Topic: Patents & Technology
Appropriate Aims: Setting Boundaries for Reprogenetic Technology
Dana Ziker
Date posted: 7-17-2002
Not too long ago, ten fingers and ten toes defined a successful birth. Not too far from now, ten fingers and ten toes will be just the beginning. Parents always hope for a healthy baby, and medical advances continue to help secure the fulfillment of this hope. But reprogenetics, a new combination of technology and science that allows us to choose the genes, and thus the traits, of the children we create, is raising new questions about what it means to have a healthy baby.
Topic: Health & Biotechnology
Customizing Conception: A Survey of Preimplantation Genetic Diagnosis and the Resulting Social, Ethical, and Legal Dilemmas
Jason Christopher Roberts
Date posted: 7-23-2002
One in six American couples experience difficulties conceiving a child. With fertility rates at an all time low, the business of treating infertility is booming. However, due to the United States prohibition on government funding for embryonic research, the $4 billion industry of assisted reproductive technologies (ART) has been incompletely monitored and largely removed from oversight. Additionally, due to the fervent abortion debate, in vitro fertilization (IVF) was introduced in the United States without a research phase and procedures have been forced to evolve in the private sector. Thus, the checks and balances on medical innovation that are generally imposed by the federal government for consumer protection are lacking. Decisions about when to go from the laboratory to the clinic are often left solely to the discretion of private physicians. Preimplantation genetic diagnosis (PGD) is just one of many such treatments offered by these clinics. This iBrief examines how, why, and to whom the reproductive procedure of PGD is offered. In addition, it evaluates the prospective effects to society that arise when PGD is used for sex selection and for nontherapeutic or enhancement purposes. Finally, it explores whether and how to regulate PGD in the United States by investigating approaches to policy making that have been adopted by the United Kingdom.
Topic: Health & Biotechnology
Software Patents: What One-Click Buy and Safe Air Travel Have in Common
Michael Guntersdorfer
Date posted: 8-1-2002
Have you ever sat in an airplane, typing on your laptop, when the darn thing crashes for the one-millionth time? Have you ever then thought about how the airplane you are sitting in is controlled by software, too--the technical term being "fly by wire"--and then started sweating uncontrollably? Software controls not only air traffic but plenty of other safety-critical technologies: the tightrope walk of controlling the chain reaction of radioactive elements in nuclear power plants; the navigation and activation of missiles;3 the moves and cutting-depth of a surgical laser when correcting eye-sights; the list goes on... With such reliance on software, malfunction due to errors in the program code becomes unacceptable. Software patents help heighten the standard by supporting the re-use of the code of established and tested systems.
Topic: Patents & Technology
Microsoft and the European Union Face Off Over Internet Privacy Concerns
Seagrumn Smith
Date posted: 8-21-2002
Amidst what appears to be a multi-faceted attack by the European Union on Microsoft, the newest angle is the European Commission's announcement last month that it was considering a formal investigation of Microsoft's .Net Passport data processing system for possible violations of the European Union Data Privacy Directive. This iBrief explores the European Data Privacy Directive and seeks to explain why the European Commission believes .Net Passport may be in violation of its privacy policies and a case for further investigation.
Topic: International
Genetic Testing in the Workplace: The Employer’s Coin Toss
Samantha French
Date posted: 9-5-2002
A toss of the coin by the modern-day employer reveals two options regarding genetic testing in the workplace. The employer may choose to take advantage of increasingly precise, available, and affordable genetic testing in order to ascertain the genetic characteristics - and deficiencies - of its employees. This outcome exposes the employer to a vast array of potential litigation and liability relating to the Americans with Disabilities Act, the Fourth Amendment, Title VII of the Civil Rights Act, and state legislation designed to protect genetic privacy. Alternatively, the employer may neglect to indulge in this trend of genetic testing and may face liability for employer negligence, violations of federal legislation such as OSHA regulations, and increased costs associated with insuring the health of genetically endangered employees. In the rapidly developing universe of genetic intelligence, the employer is faced with a staggering dilemma.
Topic: Health & Biotechnology
New “Unbundling” Rules: Will the FCC Finally Open Up Cable Broadband?
Sarah North
Date posted: 9-9-2002
This iBrief discusses a recent Court of Appeals decision remanding FCC rules on the "unbundling" of Internet services by telephone exchange carriers. These rules ordered many Internet service providers to share their equipment with competitors, so that consumers could choose their providers instead of having to accept all services from the company who installed the physical Internet connection. Cable Internet providers are not included in these rules. This iBrief predicts that cable broadband operators will soon be governed by the same "unbundling" provisions as other ISPs.
Topic: Media & Communications
Festo: Blessing to Patent Holders or Thorn in Their Sides?
Jennifer Miller
Date posted: 9-10-2002
The Supreme Court makes another attempt to strike a balance between protecting an inventor's patent rights and ensuring adequate notice to the public of what constitutes patent infringement. This iBrief discusses the Supreme Court ruling in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. and its foreseeable effects on the practice of patent law.
Topic: Patents & Technology
Date posted: 9-20-2002
To protect against "cyberterror," the House version of the Homeland Security Act exempts information related to the nation's critical infrastructure from the Freedom of Information Act disclosure requirements. The proposed exemption unnecessarily threatens public access to vital information about health and safety information; information the Freedom of Information Act was designed to guarantee.
Topic: CyberCrime
Virtual Child Pornography on the Internet: A “Virtual” Victim?
Dannielle Cisneros
Date posted: 9-23-2002
Child pornography is an exception to First Amendment freedoms because it exploits and abuses our nation's youth. The latest trend in that industry is "virtual child" pornography. "Virtual child" pornography does not use real children or images of real identifiable children. When the object of desire is not a child, but merely a combination of millions of computer pixels crafted by a skilled artist, can the government ban this allegedly victimless creation?
Topic: Media & Communications
Vigilantes v. Pirates: The Rumble Over Peer-To-Peer Technology Hits the House Floor
Christopher Fazekas
Date posted: 10-15-2002
Content providers are using the digital rights management technology contained in this product to protect the integrity of their content ("Secure Content") so that their intellectual property, including copyright, in such content is not misappropriated... if you elect to download a license from the Internet which enables your use of Secure Content, Microsoft may, in conjunction with such license, also download onto your computer such security updates that a secure content owner has requested that Microsoft distribute.
Topic: CyberCrime
The Future of Wireless Spam
Evan Cramer
Date posted: 10-28-2002
Though US cellular networks currently lack the capacity for widespread distribution of unsolicited wireless advertising (wireless spam), these advertisements are already well known in Japan and Europe, where they have proven to be a significant burden on cellular users. This iBrief examines the recently ratified legislation in Japan and Asia that have attempted to stop the glut of wireless advertisements, as a foreshadowing of the problems and questions that will soon have to be addressed in the United States.
Topic: International
Online Brokers and the SEC: Still Working Out the Glitches
Philip J. Bezanson
Date posted: 11-6-2002
Common sense dictates that some customers of an on-line brokerage service are bound to have some of the same difficulties in conducting business but that does not mean all customers or even many customers had the same problems. In addition, as to customers who may have had problems executing buy and/or sell orders, there are many variables regarding the circumstances and conditions for each customer's transaction. Variables such as, but not limited to, account status, time of order, i.e., time of day and day of the week, and the customer's computer modem capabilities and internet service provider. Plaintiffs fail to allege sufficient evidence that this claim is typical of the proposed class under like or similar circumstances.
Topic: eCommerce
Music Piracy and the Audio Home Recording Act
Tia Hall
Date posted: 11-20-2002
In spite of the guidance provided by the Audio Home Recording Act (AHRA) of 1992, music companies are once again at odds with consumer electronics manufacturers. This time around, the dispute is over certain information technology products that enable consumers to copy digital music and transfer them to different formats, or exchange them over the Internet. This article will discuss anti-piracy measures being taken by digital content owners and the United States legislature to combat piracy and evaluate them in light of the AHRA.
Topic: Media & Communications
Regulating Functional Foods: Pre- and Post-Market Strategy
Dana Ziker
Date posted: 11-25-2002
As best we understand the government, its first argument runs along the following lines: that health claims lacking "significant scientific agreement" are inherently misleading because they have such an awesome impact on consumers as to make it virtually impossible for them to exercise any judgment at the point of sale. It would be as if the consumers were asked to buy something while hypnotized, and therefore they are bound to be misled. We think this contention is almost frivolous.
Topic: Health & Biotechnology
Internet Service Provider Liability for Contributory Trademark Infringement After Gucci
Gregory C. Walsh
Date posted: 12-9-2002
[I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit.
Topic: Copyrights & Trademarks
Defining a New Ethical Standard for Human in Vitro Embryos in the Context of Stem Cell Research
Sina A. Muscati
Date posted: 12-10-2002
This iBrief discusses some of the social, ethical and legal considerations surrounding the use of unimplanted, in vitro embryos in stem cell research. It proposes that a new ethical standard be elucidated for these embryos. The iBrief gives an overview of two proposals for such a standard at opposite ends of the spectrum: treating the in vitro embryo as a legal person versus treating it as mere property. It argues against both approaches. The former can have undesirable social implications including undue interference with female reproductive autonomy, while the latter would objectify potential human life and reproductive potential. The iBrief proposes an intermediate approach that treats the embryo as a special entity. It warns against a model whereby the respect accorded to embryos is made dependent on the attainment of various qualitative or developmental criteria. The complexities surrounding human life, it argues, are too uncertain. What is certain is the embryo's unique potential for human life, at any developmental stage. This, the iBrief proposes, should be the sole criterion for an embryo's special status, a status that should be confined within constitutional limits.
Topic: Health & Biotechnology
Patentable Subject [Anti]matter
Kristoffer Leftwich
Date posted: 12-17-2002
The statements, "The laws of nature," "the principles of nature," "the fundamental truths," etc., are not patentable, have been oft repeated but seldom understandingly used. They have led to misunderstanding and much confusion, not limited to members of the bar. In fact, the words... are all words of broad and also elastic meaning and are frequently used carelessly and without any attempt at refined distinctions.
Topic: Patents & Technology
Mom & Pop v. Dot-Com: A Disparity in Taxation Based on How You Shop?
Jaime Klima
Date posted: 12-19-2002
With the extension of the Internet Tax Freedom Act, concern has resurfaced over whether and when shoppers will be forced to pay state sales taxes on purchases made over the Internet. In fact, consumers should be paying sales tax on all Internet purchases, though few actually do. This iBrief explores the current law on taxation of e-commerce purchases and argues that small modifications by state tax administrators will align the tax treatment of mom & pop stores and e-retailers.
Topic: eCommerce
Political E-Mail: Protected Speech or Unwelcome Spam?
Mark Sweet
Date posted: 1-14-2003
Candidates for political office are using unsolicited bulk e-mails to reach the electorate. Commonly known as "political spam," this campaign tactic is an inexpensive supplement to television, radio, and print ads. Advocates claim that campaigning via the internet reduces candidates' dependence on fundraising, but critics detest political spam as the latest nuisance. This iBrief examines the legal basis for political spam, distinguishes political spam from analogous regulated speech, and argues that political spam serves an interest worth protecting.
Topic: Media & Communications
The Case for National DNA Identification Cards
Ben Quarmby
Date posted: 1-31-2003
Foes of the United States have demonstrated their ability to strike at the heart of this country. Fear of renewed attacks and a desire for greater national security have now prompted many to call for improvements in the national personal identification system. In particular, the possibility of a national identification card containing the carrier's DNA information is being seriously considered. However, this raises difficult questions. Would such a card system, and the extraction of individuals' DNA it entails, violate the 4th Amendment of the Constitution? This article will show that such a card system could in fact be found to be constitutional under the law of privacy as it stands today.
Topic: Health & Biotechnology