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Abstract:
The first half of this Article charts the evolving but eminently ascertainable social norms of the use of analog copyrighted works by individuals, and characterizes these norms as "what is" in real space and "what ought to be" in cyberspace. The Author argues that while "what is" in the analog world may be imperfect, uncertain and unsatisfactory at times, it represents a discernible practical equilibrium upon which copyright holders' ability to control and extract income from their works is balanced against the rights of fair users. Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, within which lots of small scale unauthorized copying occurs, but content creation and distribution is still adequately incentivized. Nevertheless, "what is" in terms of real space copyright use norms is not making the transition to cyberspace, and will not, absent legislative intervention. Instead, copyright owners are using the attributes of digitalization to realize their own normative view of "what ought to be," absolute control over copyrighted works that are embodied in electronic formats.

Using the specific example of non-profit libraries, the second half of this Article explains how society will suffer if analog copyright use norms are not electrified and "what is" becomes dramatically altered in the digital domain: Individuals will lose traditional levels of access to informational works and be deprived of familiar ways and means of using copyrighted works. In consequence, their respect for copyrights is likely to erode as the distributive goals of the copyright system are correspondingly unfulfilled.

copyright law, digital works, electronic works, libraries, fair use, social norms, copyrighted works, consumers

Abstract:
This Essay considers ways in which female attorneys confront sexism and stereotyping in the legal profession and in life, and strongly endorses embracing feminism, and wearing comfortable shoes.

women, gender, female, feminist, feminism, sexism, discrimination, harassment, professionalism

Abstract:
The primary objective of this Article is to illustrate the tendency of judges to inappropriately rely on personal intuition and subjective, internalized stereotypes when ruling on trademark disputes. Where jurists perceive consumers as ludicrously easily confused, trademark holders can exploit these views to secure broad trademark "rights," often without offering a shred of evidentiary corroboration concerning such confusion. As a consequence, the proof required to support allegations that a trademark usage creates a likelihood of confusion is potentially lessened in all cases, making trademarks normatively stronger, broader, and ever easier to "protect" for mark holders. Whether consumers realistically benefit from this, in terms of avoiding future confusion, seems highly questionable, especially if they were never actually bewildered or fooled in the first place.

Where judges find defendants' unauthorized uses of a trademark repugnant, such as in the context of ribald parodic sexual allusions, they are especially willing to find likelihood of confusion, often in circumstances where actual confusion, as most lay people understand the term, is improbable enough to render such decisions facially absurd. However, when judges find a plaintiff's marked product deserving of derision or ridicule, they are more likely to endorse the concept that free speech rights can supersede the interests of trademark owners. Judicial biases result in inconsistent approaches to balancing speech rights against trademark interests, which in turn foment uncertainty and unfairness.

Trademark rights should not be strengthened and expanded by reliance on unproven and demonstrably incorrect allegations about the ignorance, poor reasoning, and deficient observational powers of the public, nor should trademark rights be calibrated by how appalling or appealing a judge finds a product or service. If trademark holders are to be broadly privileged by the courts without explicit direction by Congress, then an alternative doctrinal justification to protecting consumers is required, and the resulting protections should adhere fairly consistently to all similarly situated trademarks.

Part II of this Article discusses the foundation and development of pertinent aspects of trademark law and policy, and asserts that the true intended and actual beneficiaries of the Lanham Act are trademark holders, rather than consumers. Part III explains the importance of context in trademark law, especially with regard to assessments of the likelihood of consumer confusion in trademark infringement actions. The use of consumer confusion analysis in trademark dilution cases is also critiqued. In Part IV, the extreme and problematic subjectivity of the likelihood of confusion inquiry is explained and illustrated, as is the tendency of judges to assume that consumers are naive and stupid. Special emphasis is given to the consequences of gender and class stereotyping by judges, with respect to trademark infringement analyses and case outcomes. Part V charts the impact that the substantive defects in trademark jurisprudence identified by the previous portions of the Article have upon freedom of speech when trademark holders object to unauthorized communicative uses of their marks. Finally, Part VI concludes that all consumers should be presumed reasonably prudent, and all trademarks should be treated in a gender and class neutral manner.

Trademarks, infringement, dilution, gender, class, consumer, intellectual property

Abstract:
People invest their time, energy and resources to produce a broad variety of copyrightable works of original authorship for an expansive array of reasons, many of which appear economically irrational. This makes it impossible to offer defensible generalizations about the effect, if any, that copyright laws have upon human creators, their artistic impulses, and the decision making underlying the formation of creative works. Nevertheless, it seems highly probable that authors can be negatively affected by the specter of copyright infringement suits in a manner that burdens and chills the creative process. Exact, whole-text copying can be avoided by authors aspiring to copyright compliance, but inspirational, stylistic copying may be more difficult, and problematic, to elude. Many authors strive for unqualified uniqueness in their work for reasons generally unrelated to copyright, but may still unintentionally incorporate into their creative output elements of other works to which they have been exposed. Some authors consciously reference other works, but if they undertake affirmative steps to acknowledge their influences and credit existing works for inspiration, they may actually increase the likelihood of being sued for copyright infringement. In both cases, copyright-related strategizing may unproductively deplete time, energy, and financial resources that might otherwise be used in creative endeavors.

Creating new works would appear less perilous, and be more effectively promoted, if the act of copying was less freighted with fear of copyright-infringement accusations. This essay considers just one fragment of this vast and complicated picture: the scope of the substantial similarity doctrine. Though judges sometimes do a good job of defining substantial similarity with appropriate narrowness, in other instances courts have found substantial similarity far too readily, fomenting unwarranted fear, uncertainty, and legal fees. The solution is simply more consistent judicial curtailment of the reach of substantial similarity grounded copyright infringement liability, whether in the context of copyright holders' reproduction rights, or derivative works rights.

Copyrights copying creativity substantial similarity

Abstract:
This Essay considers the current trend of content owners using copyright laws (particularly the doctrine of contributory infringement) to "arrest technology," thereby burdening file sharing technologies with a duty to prevent unauthorized copying of copyrighted works in digital formats. The Author argues that copying is not necessarily theft, and that sharing music files (for example) shouldn't be treated by courts or lawmakers as if it was "the moral equivalent of looting." Instead, copyright owners should take responsibility for developing technological measures to minimize unauthorized copying, so that file trading technologies, themselves often copyrightable innovations, can flourish and copyright law promotes rather than arrests technological developments, as it is intended to do. The Essay further notes that having learned a lesson from recent copyright litigation like the Napster case, many online technologies will activity "resist arrest" by remaining decentralized and hard to sue or regulate. Additionally, the Author observes that while some authors lose revenues when unauthorized copying occurs, other authors lose important distribution mechanisms while file trading technologies are shut down. Though it can be put to both positive and negative uses, technology itself is copyright neutral. Meanwhile, copyright owners who engage in rhetoric about being victimized by large scale piracy ought to be required to prove these allegations before they are allowed to influence laws or legislators. If they truly feel they can't make adequate profits on copyrighted content, perhaps they should diversify into other commercial ventures, and allow new business models and distribution techniques the opportunity to evolve around creative works.

copyrights, Napster, digital music, technology, intellectual property, Peer-to-peer file trading, unauthorized copying, file trading over the Internet

Abstract:
This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners and interest groups propose self-serving agendas, and courts are well aware that the parties to litigation all want to prevail when they advocate for particular legal conclusions. A copyright treatise editor could similarly have an economic interest in promoting particular interpretations of the law over others, but has no obligation to disclose this. Because no goal beyond articulating copyright doctrine in a manner that invites further uses and purchases of the pertinent treatise is facially evident, the tome has an appearance of objectivity and detachment.

This Article critiques the excessive reliance placed on copyright treatises by judges, lawyers, and even scholars and policy makers; explains why treatises in principle are not a legitimate source of positive law; describes the potentially undemocratic consequences of incorrectly perceiving treatises as nonpartisan, status quo baselines of extant copyright jurisprudence; and recommends an alternative approach to charting and cataloging developments in copyright law, the establishment and maintenance of a Restatement patterned after those promulgated by the American Law Institute in common law subject areas.

copyright, intellectual property, jurisprudence, treatise, cyberspace, Internet

Abstract:
In this review essay, Bartow concludes that The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler is a book well worth reading, but that Benkler still has a bit more work to do before his Grand Unifying Theory of Life, The Internet, and Everything is satisfactorily complete. It isn't enough to concede that the Internet won't benefit everyone. He needs to more thoroughly consider the ways in which the lives of poor people actually worsen when previously accessible information, goods and services are rendered less convenient or completely unattainable by their migration online.

Additionally, the Internet is easy enough to be optimistic enough as a technological achievement, but just as nuclear fission can be harnessed both for electrical power generation and annihilating destruction, the raw communicative capabilities can't be qualitatively assessed without reference to specific content. Pornography and its symbiotic relationship to the Internet require thoughtful scrutiny. Astroturf and other targeted attempts to instrumentally distort democratic discourse need to be analyzed and possibly also rechanneled or contained. The impact of moving resources online upon people who substantially live in an offline, analog world, needs to be contemplated more fully.

Internet, Cyberspace, Law, Intellectual Property, Copyright, Open Source, Pornography

Abstract:
Copyright owners who are affirmatively engaged in diminishing the scope of educational fair use are overwhelmingly publishers, rather than authors. These publishers attack educational fair use in several different, somewhat internally inconsistent ways. First, they argue that fair use reduces the profitability of their publications, and thereby reduces monetary incentives to undertake the publication of new works. In this way they characterize educational fair use as a threat to the creation and dissemination of future works of scholarship, rather than an escape valve through which current knowledge embodied in prohibitively expensive books and periodicals can leak to the impoverished. Publishers make this argument despite clear evidence that academic writers do not require monetary incentives to produce scholarly works. In fact, many academic writers prefer a broad definition of fair use, which makes others' works available to them, and perpetuates wide dissemination of their writings, even if it costs them royalty payments.

Secondly, publishers like to cloak their self-interest by regularly and hypocritically raising the specter of the impoverished author, starving in a garret because educational fair use deprives her of the royalties she needs to live on. However, if authors are underpaid, it is usually because publishers use their strong bargaining positions to negotiate publishing contracts that are unfavorable to authors. Publishers have not demonstrated that the photocopy royalties they collect brighten the financial picture of individual authors in any significant way.

Third, publishers like to characterize their profits as rewards for risk taking. Whether publishers actually take a lot of risks in the field of academic publishing is questionable. Nonprofit academic publishers are often subsidized. Commercial publishers are free to undertake only projects that are likely to be profitable. They can recruit name scholars to author or co-author textbooks; they can reissue popular textbooks in new edition formats to prevent competition from used book sales. They can heavily market a tome, or decline to do so. The same work that is marginal with respect to book sales is likely to be similarly marginal with respect to permission fees. Books that sell a lot of copies are the books that are most likely to generate significant permission fees, unless a publisher chooses to deny permission to photocopy excerpts in order to maximize the number of students who are required to purchase the entire book.

An author who has devoted two years of her life to a manuscript has arguably invested a lot more in a book than her publisher, even though her time does not intuitively convert into high dollar figures. Yet, any preference she may have with respect to maximizing dissemination of her work, rather than its profitability, will largely be ignored, or even contravened.

Over the past decade the scope of educational fair use has been dramatically compressed by judges who ignore the external benefits of fair use, and respond only to the lost dollars publishers ascribe to the doctrine. Publishers in turn have used favorable court decisions and the threat of expensive litigation to coerce commercial photocopiers to pay permission fees for the privilege of making any copies at all, whether or not the use might be a fair one, and in some cases even when the work is not eligible for copyright protection. Fearful and litigation averse educational institutions attempt to simultaneously mollify publishers and protect themselves by adopting copyright policies that define a minimal scope of educational fair use, and make individual faculty members liable for any infringing photocopying activity outside of this petite orbit.

The incredible shrinking affirmative defense of educational fair use is being compacted into ineffectuality by profit minded copyright owners, whose neutral desire to maximize revenues fosters intense opposition to the doctrine of fair use. Diminution of educational fair use renders educators susceptible to liability for copyright infringement for engaging in unremarkable acts of duplication and distribution of idea-bearing materials for educational purposes. The ability of educators to use and disperse information, and to expose students to a wide range of perspectives on any given subject, is threatened by the ongoing contraction of the scope of educational fair use. However, decompression of the doctrine will likely only be effectuated by appropriate Supreme Court action.

Copyright, education, fair use, photocopying

Abstract:
The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.

While legal scholars have addressed the copyright law's role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.

Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control - namely by requiring the creator to show that the subjects' participation was voluntary as a condition of providing copyright protection - would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators' compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.

copyright, pornography, pornographic, coercion, feminism, violence, free speech, First Amendment, child pornography, copyright law, internet, web, cyberspace, regulation, photography, 2257

Abstract:
Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when evaluating the impacts and performance of intellectual property laws.

Copyright, intellectual property, gender, women, feminism

Abstract:
The concept of open access to legal knowledge is at the surface a very appealing one. A citizenry that is well informed about the law may be more likely to comply with legal dictates and proscriptions, or at a minimum, will be aware of the consequences for not doing so. What is less apparent, however, is whether an open access approach to legal knowledge is realistically attainable without fundamental changes to the copyright laws that would recalibrate the power balance between content owners and citizens desiring access to interpretive legal resources. A truly useful application of open access principles would require adoption of compulsory licensing regimes with respect to proprietary legal resources, and significant government subsidies as well. Because affluent individuals today are both more likely to gain access to information and more likely to have the resources to use it, this Article concludes that the open access construct currently does little to actually empower access to legal information in any significant way.

copyright, open access, domination, subordination, legal information, access to the law

Abstract:
This Article starts by providing an overview of the types of personal data that is collected via the Internet, and the ways in which this information is used. The author asserts that because women are more likely to shop and share information in cyberspace, the impact of commodification of personal data disproportionately impacts females, enabling them to be "targeted" by marketing campaigns, and stripping them of personal privacy. The author then surveys the legal terrain of personal information privacy, and concludes that it is unlikely that the government will step in to provide consumers with substantive privacy rights or protections. Finally, the author asserts that perhaps intellectual property rights, so powerful in other contexts, can be adapted to provide individuals with ownership and control over their personal information. While "high barrier" intellectual property protections are in many respects detrimental to society, the author argues that if corporations are entitled to benefit from then and "own" information, then individuals should be as well. Ownership of information by individuals allows them to fashion something resembling privacy in personal data.

Internet, cyberspace, privacy, information, data, database, gender, propertization, intellectual property

Abstract:
This Essay suggests possible explanations for why there is not very much legal scholarship devoted to gender issues on the Internet; and it asserts that there is a powerful need for Internet legal theorists and activists to pay substantially more attention to the gender-based differences in communicative style and substance that have been imported from real space to cyberspace. Information portals, such as libraries and web logs, are "gendered" in ways that may not be facially apparent. Women are creating and experiencing social solidarity online in ways that male scholars and commentators do not seem to either recognize or deem important. Internet specific content restrictions for the purposes of "protecting copyrights" and "protecting children" jeopardize online freedoms for women in diverse ways, and sometimes for different reasons than they do for men. Disparities in the ways women and men use, experience and communicate over the Internet need to be recognized, studied, and accommodated by those who would theorize cyberspace law and advocate directions for its evolution.

Women, gender, feminist, feminism, web log, blog, copyright, secondary liability, internet, cyberspace, censorship, filtering, communications

Abstract:
This article presents a panel discussion concerning the future of copyright on the internet. The panel convened in Washington, D. C. on Thursday, November 16, 2000, and was moderated by Joshua J. Kaufman of Venable, Baetjer, Howard & Civiletti. The panelists included Ann Bartow (University of South Carolina School of Law), Edward J. Black (Computer & Communications Industry Association), Philip S. Corwin (Butera & Andrews), Brian Hecht (enews.com), Keith Kupferschmid (Software Information Industry Association), Bennett Lincoff (Darby & Darby), and David Pakman (myplay.com). The panel discussed the internet business models of the future and how the piracy problems created by peer-to-peer sharing programs should be addressed.

copyright, internet, napster, business model, regulatory options,

Abstract:
This article articulates some of the special issues raised by intellectual property in the context of family-law-oriented concerns. It also necessarily explores the characteristics and properties of personal intellectual property in a broader sense. What follows is an overview of the special issues and concerns intellectual property might present in the context of divorce, estate planning, or probate. Please keep one important caveat in mind: Intellectual property has become a very dynamic area of the law. Governing federal patent, copyright, and trademark statutes are extensively amended with astounding frequency. Right of publicity and trade secret law are also constantly evolving. Legislative proposals that would significantly alter certain aspects of intellectual property law are constantly proposed and may be adopted by Congress (or by individual states) at any time. In addition, courts play a large role in delineating the scope of intellectual property protections, and the judiciary, through its role as adjudicator of intellectual property disputes, has (and will continue to have) a profound effect on the continually shifting landscape of rights, obligations, and privileges associated with intellectual property.

Copyrights, patents, trademarks, wills, inheritance, community property, equitable distribution, divorce, domestic relations, right of publicity, intellectual property, valuation

Abstract:
This paper critiques the branding and labeling of the physical public domain with the names of corporations, commercial products, and individuals. It suggests that under-recognized public policy conflicts exist between the naming policies and practices of political subdivisions, trademark law, and right of publicity doctrines. It further argues that naming acts are often undemocratic and unfair, illegitimately appropriate public assets for private use, and constitute a limited form of compelled speech. It concludes by considering alternative mechanisms by which the names of public facilities could be chosen.

Trademarks, public domain, Lanham Act, naming rights, compelled speech

Abstract:
This is an edited, annotated transcript of a conference panel discussion on feminism, sex, and gender in law, legal education, and legal scholarship. The transcript reflects widely divergent views of the place of feminism, sex, and gender in the law and legal scholarship. Moreover, the panelists differ as to the role feminism has played in the lives of women as law students and practicing attorneys. In the latter part of the transcript, the panelists' remarks focus in on hotly debated issues surrounding possible gender (or sex) and racial bias in LSAT testing and the innate abilities of women and men as they relate to learning and practicing law. This portion of the piece is exceptionally timely, following on the controversial January 14, 2005 remarks by Harvard University President Lawrence H. Summers relating to inherent differences between men and women in career choice and success.

feminism, sex, gender, law school, law, legal scholarship

Abstract:
While technological innovation is often lauded as the cornerstone of the American economy into the next century, and both governmental and private observers ponder with fascination and some trepidation the ability of U.S. companies to reach and sustain high levels of innovative productivity, very little attention is paid to actual inventors. This article is one effort to draw attention to the importance of employee-inventors, the people who conceive and develop the inventions that American corporations rely on for growth and profitability. Though it is universally accepted that skills gained by an employee in the course of his employment belong to him alone, when a patentable invention results from the diligent application of these skills, most employee-inventors are completely deprived of all ownership rights and privileges.

The role of employee-inventors within their employing entities and within society is unique. An inventive individual with specialized scientific training who toils in a research facility performs a very different social and economic function than an assembly line or service worker, educated or not, who rotely performs the same small repertoire of tasks. While the assembly line or service worker can be expected to produce a predictable amount of goods or services within a given time frame, and with a value that can be accurately estimated, even brilliant and diligent labor by a properly equipped and well supported inventor offers no assurance of a profitable or even useful outcome, regardless of the amount of money or time invested. A corporation cannot just build a laboratory, stock it with equipment, hire individuals proficient in the applicable technology and expect patentable inventions to be methodically produced. Because an employer of potential inventors, typically a large corporation, assumes the financial risk that investments in research and development will not generate a positive return, the employer expects to reap the full rewards of any profitable invention. One of the ways such an inventor employer typically seeks to accomplish this goal is by requiring all potential inventors (and, increasingly, all but the most marginal employees) on its payroll to sign pre-invention assignment agreements as a condition of employment. These agreements require signatory employees to assign to the employer all rights to inventions conceived by the employee while at work, or in subject matters related to work, or while using any resources of the employer. Because employee-inventors may themselves invest extraordinary amounts of time, education, training, intellect, energy, and waking and sleeping thought to the innovative and usually complex ideas they originate and reduce to practice, and because such employee-inventors may not be able to secure any employment in their areas of expertise unless they sign pre-invention assignment agreements, such agreements are unfair to innovators.

It is unjust that an employer reaps all of the rewards of a valuable patent as the payoff for the resources it devotes to an invention, but an employee-inventor who has also made a substantial investment in the inventive process - potentially at a level of personal sacrifice disproportionately greater than any financial or opportunity cost risk assumed by the employer - is usually precluded by a pre-invention assignment agreement from profiting from the fruits of his or her labor in a manner commensurate with, or even proportional to, the value and utility of an invention, and may not benefit from her invention at all. Employee-inventors are often rewarded for innovations with group censure and the loss of their jobs. Thus, the patent laws of the United States, which are intended to foster innovation, are premised on the now false assumption that inventors own, and therefore benefit from, the patents obtained on their inventions. In fact, the monopoly incentive completely sidesteps inventors, who have no incentive to innovate if they can find a better job doing something else.

This article first reviews the disincentives to innovate confronting the typical employee-inventor, who is forced to assign all of the rights to any patentable invention she develops to her employer without compensation. Next, it considers mechanisms for eliminating (or at least minimizing) these disincentives suggested by other scholars, the implementation of which require either new legislation or changes in judicial interpretation, or sometimes both. Finally, this article proposes a unique solution for solving the disincentive problem: Rather than waiting for Congressional or Judicial action, as neither is likely imminent, inventors should organize and act collectively, by refusing to sign any pre-invention assignment agreements in the future, by revoking pre-invention assignment agreements currently in effect (either through negotiations with the companies they work for, or by changing jobs and refusing to sign such agreements with new employers), and by retaining ownership of their patented inventions to exploit or license themselves, or with the assistance of a patent collective organized by and for inventors.

Patent, invent, inventor, employee, technology, innovation, pre-invention assignment agreement, incentives, collective action, employment

Abstract:
This essay responds to Daniel Solove's recent article, A Taxonomy of Privacy. I have read many of Daniel Solove's privacy-related writings, and he has made many important scholarly contributions to the field. As with his previous works about privacy and the law, it is an interesting and substantive piece of work. Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner. Most commentators agree that compromising a person's privacy will chill certain behaviors and change others, but a powerful list of the reasons why this is a negative phenomenon that the law should seek to prevent is not a significant attribute of Solove's taxonomy. That omission left this reader a little concerned about the ultimate usefulness of the privacy framework that Solove has developed. To phrase it colloquially, in this author's view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies. It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

privacy law taxonomy

Abstract:
This Article suggests that commercial entities sometimes obtain patents for reasons unrelated to securing profitable technological monopolies. Patents, especially those with narrow scopes that are easily designed around, may be obtained to disadvantage competitors or to make the patent holder appear innovative, rather than to fence off an invention for commercial exploitation. Patents obtained for nontraditional reasons - denoted leverage and keeping up appearances patents in this Article - may represent highly inefficient uses of both public and private resources. To solve some of these efficiency problems, the author proposes creating a second-tier Origination Patent option, which would offer patentees more secure patent protection for a shorter period of time.

Invention, innovation, patents, patent law, monopoly, commercial exploitation, efficiency

Abstract:
This essay asks the reader to consider the effects that copyright laws and policies, when filtered through the digital prism and bundled with restrictive contract terms, will have on library patrons. It further implores the reader to consider the broad benefits to library patrons of a statutorily guaranteed right to library use of copyrighted materials in any form.

Copyright, fair use, libraries, distribution of information, digital information

Abstract:
The elevation of color to stand-alone trademark status illustrates the unbounded nature of trademarks within the judicial consciousness. The availability of color-alone marks also facilitates the commoditization of color in ways that complicate the development and distribution of products and services that use color for multiple purposes conterminously. The economic case for color-alone trademarks is severely undermined by careful observation of the ways that colors are actually deployed in commerce, which makes it clear that the trademarks of multiple goods and services can utilize the same color to telegraph the same message without confusing anyone or diluting the commercial power of textual or symbolic trademarks.

Trademark law can be used to monopolistically harness the aesthetic appeal or preexisting social meaning of a color. The Supreme Court was wrong to facilitate this abuse of trademark powers when it decided in Qualitex v. Jacobson Products Co. that colors alone could constitute protectable trademarks. Long ago the Supreme Court held in the Sears, Roebuck & Co. v Stiffel Co. and Compco Corp. v. Day-Brite Lighting, Inc. cases that the Intellectual Property Clause of the Constitution preserves a right to copy any product feature that is unrestricted by patents or copyrights. Ruling in favor of color-alone trademarks abrogated this important principle for no good reason. The Qualitex holding did not lessen color related consumer confusion, because there was not evidence of any. Instead it reduced competition and consumer choice by creating illegitimate aesthetic and communicative cartels.

The primary doctrinal arguments against recognizing color-alone trademarks raised here include aesthetic functionality, the related concept of communicative functionality, uncertainty about scope, and color exhaustion. Colors always add aesthetic value, and often communicate messages unrelated to commercial source. Coupled with the uncertainties related to color-alone marks and the risks of color exhaustion, the anticompetitive effects of color monopolies outweigh any possible social benefit from a regime that permits registration of color-alone trademarks.

It is further argued that if any court attempted to declare a color "famous" for dilution purposes, thereby granting a commercial entity broad rights to monopolize the color well beyond the context in which it is used in commerce, there would be a furious backlash against this ill-advised doctrine. The palette of commercially appealing colors is far more limited than the dictionary of attractive and usable words, and could be radically depleted by deployment of dilution precepts rather quickly. Courts that recognize this may relegate color-alone marks to some second class status that is ineligible for dilution protections, preserving color availability somewhat but further warping trademark doctrine.

trademarks, trademark law, unfair competition, service marks, trade dress, product features, Lanham Act

Abstract:
The author reflects upon the genesis of a law school project with Lani Guinier that ultimately resulted in the publication of a law review article entitled Becoming Gentlemen: Women's Experiences at One Ivy League Law School, and later a book, Becoming Gentlemen: Women, Law School, and Institutional Change. I discuss an apparent dearth of positive, substantive changes in legal education over the past eleven years, noting that women apparently continue to receive lower grades and fewer honors related to grades in top law schools. I also consider reactions to Becoming Gentlemen, and observe that to the extent it got everyone's attention, the role that Becoming Gentlemen played in exposing a concrete and quantifiable gender-linked accomplishment gap was useful and worthwhile. However, narrative based "soft data" are also important and may do a better job than the numbers of isolating specific causes of, and suggesting effective cures for, the gender gap.

I also assert that though I'm reluctant to embrace the hegemony of "hard data," the discourse on gender and legal education would benefit greatly from transparent and consistent disclosure of many categories of information. Law schools need to regularly compile and release accurate gender-keyed grade data, so that gender-based achievement gaps can be recognized and tracked. Information about bar passage and honorifics should be tabulated, and honest, straightforward, and frequently updated data about faculty composition should similarly be made available. When law schools are willing to release data in standardized form, law school applicants can make informed decisions about where they are more likely to feel comfortable and succeed, and even more critically, individuals administering and controlling law schools may be motivated to address challenges that the data illustrates. Interested legal educators from a wide range of viewpoints (and with a wide range of agendas) can (and no doubt will) disagree about what the data collections show, what they mean, and what, if anything, ought to be done about gender-related discrepancies, but at least regular doses of good information can establish a starting place from which to probe the limits of the problems, and to experiment with cures. Ulitimately I challenge every law school in the nation to compile, analyze and release (so that others can evaluate) accurate grade, honorofic, faculty composition, and placement data.

gender, women, performance gap, law school, legal education

Abstract:
This essay is a first-hand account of experience in a world that many in the legal profession have never glimpsed. Not the typical law journal fare, it neither espouses nor condemns a legal position. Although this piece provides commentary on employment law issues facing factory workers, it also attempts to provide insight into the working conditions of many American women.

employment law, working conditions, women, factory workers, labor law, chocolatier, gender studies, discrimination

Abstract:
This essay asserts that intellectual property law courses offer law professors the opportunity to teach subject areas rich with complicated statutory and court-made doctrines about which students do not usually have strong or extensively delineated moral views, giving everyone in the classroom a refreshing break from the traditional partisanship of political party politics. It explains that the politics of intellectual property law are somewhat insulated from traditional political party divisions, and as a result, learning copyright law, patent law and trademark law can give students the opportunity to think through complex issues with few concerns about political bias, leading to more open minded grappling with contextual issues of fairness, rights balancing, and social welfare than may be possible with other controversial legal topics.

copyrights, patents, trademarks, law, teaching, pedagogy, social justice, intellectual property

Abstract:
On November 2-3, 2001, the University of Buffalo sponsored Digital Frontier: The Buffalo Summit 2001. The attendees included Gary M. Schober (Moderator), Shubha Ghosh (Organizer), Ann Bartow, Chris Hoofnagle, and Phyllis Borzi. The participants were drawn from a wide range of specialties, from lawyers and doctors to business-men and academics, in order to provide some perspective on our data-driven world. This session on Privacy and Security identified some of the trends in technology that threaten privacy rights, as well as those that may assists preserving privacy. The speakers also explored legal developments and political structure influencing cyber-privacy.

colloquium, privacy, security, e-tags, cookies, digital summit, technology, consumer

Abstract:
Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to defend otherwise defenseless people whose reputations have been sullied on the Internet Of course these companies charge a fee and place particular emphasis on women who they recognize as potential clients. This article raises three concerns about these businesses. First, these companies have economic incentives to foster conditions online that perpetuate acts of online harassment, as the more harassment there is online, the greater the number of potential clients. These companies are also incentivized to create fora with hostile climates and to stir up trouble themselves. Second, these companies have economic incentives to oppose legal reforms that might enable online defamation and harassment victims to seek recourse from law enforcement agencies or through the courts. And finally, though they cloak themselves in the mantel of protectors of the innocent, their real agenda is to sell their services to wealthy corporations and individuals for far more nefarious purposes: to help bad actors hide negative information about themselves. This practice creates information asymmetries that can harm anyone who detrimentally relies on what they incorrectly assume to be the best available information and can lead to increases in the sorts of financial losses and personal vulnerability that access to unmanipulated Internet search results might otherwise reduce.

woman, gender, sexual harssment, cyberlaw, Internet Defamation

Abstract:
Intellectual property (IP) is a term that denotes intangible yet legally protected products of human creativity. The main types of IP include patents, copyrights, and trademarks. This article provides an overview of the special IP issues that can arise in the contexts of divorce, estate planning, or probate.

intellectual property, patents, copyrights, trademarks, divorce, estate planning, probate

Abstract:
Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled "How 'Swingers' Might Save Hollywood from a Federal Pornography Statute." So eager was Levy to "save Hollywood" from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. Section 2257. Ironically, while exaggerating the negative impact of Section 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct. This essay discusses truths and falsehoods associated with 18 U.S.C. Section 2257.

18 U.S.C. 2257, Pornography, Porn