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Abstract: This article addresses federalism issues raised by the interjurisdictional competition that the internet will present. Within the United States, such on-line activity has already become the target of regulation by the states. Analysis of interstate competition in "law as a product" is appropriate in determining the proper scope of state regulation of on-line activity. Two lines of constitutional cases define the parameters of proper interstate regulatory competition: those dealing with personal jurisdiction, and those dealing with the dormant commerce clause. Inherent in the Supreme Court's Due Process holdings is the principle that interstate diversity in law products is desireable and central to a federal system. The "minimum contacts" test of International Shoe and subsequent cases preserves the individual's right to "vote with his feet" in selecting among the law products offered by the several states. Competition for law as a product can only be maintained if states are prevented from externalizing the costs of their local regulations. The Supreme Court holdings regarding the dormant commerce clause indicate that this constitutional doctrine serves to prevent states from exporting their law products to other jurisdictions by attempting to control wholly extraterritorial activity. Although the Internet may in some cases facilitate externalization of state regulatory costs, centralized regulation by the federal government, rather than overreaching by the states, is the proper solution to such externalities
Abstract: Several courts have now recognized the common law action of trespass to chattels as a viable claim to enjoin unwanted e-mail communications on networked computer systems. However, this archaic claim is a poor fit to the context of cyberspace, and courts have had to substantially revise the elements of the claim to accommodate it to computer networks. In doing so, they have created a new species of property right which is now being applied to a wide variety of automated computer interactions. The assertion of an exclusionary interest over such interactions may lead to a type of ?anti-commons? tragedy that could threaten the integrity of the global Internet system.
Abstract: The patent statute creates a general set of legal rules that govern a wide variety of technologies. With only a few exceptions, the statute does not distinguish between different technologies in setting and applying legal standards. In theory, then, we have a uniform patent system that provides technology-neutral protection to all kinds of innovation. Technology, however, is anything but uniform, and displays highly diverse characteristics across different sectors. A wealth of empirical evidence demonstrates deep structural differences in how industries innovate. Industries vary in the speed and cost of Research and Development ("R&D"), in the ease with which inventions can be imitated by others, in the need for cumulative or interoperative innovation rather than stand-alone development, and in the extent to which patents cover entire products or merely components of products. We show that there is no reason to assume that a unitary patent system will optimally encourage innovation in the wide range of diverse industries that it is expected to cover. Despite the appearance of uniformity, however, patent law is actually as varied as the industries it seeks to foster. Closer examination of patent law demonstrates that it is unified only in concept. In practice the rules actually applied to different industries have shown increasing divergence. As a practical matter, it appears that although patent law is technology-neutral in theory, it is technology-specific in application. The differential application of patent standards to different industries correlates with a larger theoretical confusion in patent law. While most theorists agree on the general utilitarian framework of patent law - that is, they agree on the goals the patent statute is intended to achieve - they have offered radically different ideas regarding how patent law should be interpreted to achieve those goals. We examine the various different theoretical approaches to patent law. We suggest that none of these theories is entirely correct. Neither are they entirely wrong. We show how various different theories of patent law succeed in explaining the application of patent law to particular industries, but fail when taken outside the narrow context of those industries. The fact that economic evidence, patent doctrine, and legal theory all vary by industry leads us to question whether patent law should explicitly attempt to tailor protection to the needs of specific industries. We point out a number of risks inherent in such a technology-specific approach, particularly one administered by Congress. In particular, concerns about rent seeking and the inability of industry-specific statutes to respond to changing circumstances lead us to conclude that we should not jettison our nominally uniform patent system in favor of specific statutes that protect particular industries. Nonetheless, there are other ways the law can take account of the needs of different industries. We argue that it makes sense to take economic policy and industry-specific variation explicitly into account in applying general patent rules to specific cases. Patent law gives the courts substantial freedom to do this by means of flexible legal standards we call "policy levers." We identify ten sets of policy levers that already exist in patent law, and the ways in which they implicitly or explicitly permit the courts to take account of different types of innovation in different industries. We also identify a variety of other places where the statute grants the courts substantial discretion, and suggest ways that those discretionary standards could serve as policy levers. Finally, having identified certain policy levers and the method of their employment, we consider the economic characteristics of innovation in five different industries that appear to be likely candidates for industry-specific rules: chemistry, pharmaceuticals, biotechnology, semiconductors, and software. We offer concrete suggestions as to how the court can and should apply particular policy levers to help encourage innovation in these very different industries.
patents, intellectual property, innovation, rules, standards, biotechnology, software, pharmaceuticals, cumulative innnovation, prospect theory
Abstract: The open source and free software movements have used self-perpetuating copyright licenses to maintain open access to publicly distributed software. This model of licensing has now migrated to the field of biotechnology, where patents rather than copyrights dominate proprietary rights. Consequently, a model for open source patenting or free biotechnology presents a constellation of legal issues not typically found in previous open source licensing. This paper discusses several of these issues, including the nature of the rights transferred, the activities that may trigger the terms of the license, and the legal prohibitions on certain forms of licensing.
open source, patents, licensing, intellectual property
Abstract: Patent law has a general set of legal rules to govern the validity and infringement of patents in a wide variety of technologies. With a very few exceptions, the statute does not distinguish between different technologies in setting and applying legal standards. In theory, then, we have a unified patent system that provides technology-neutral protection to all kinds of technologies. Of late, however, we have noticed an increasing divergence between the rules themselves and the application of the rules to different industries. The best examples are biotechnology and computer software. In biotechnology cases, the Federal Circuit has bent over backwards to find biotechnological inventions nonobvious, even if the prior art demonstrates a clear plan for producing the invention. On the other hand, the court has imposed stringent enablement and written description requirements on biotechnology patents that do not show up in other disciplines. In computer software cases, the situation is reversed. The Federal Circuit has essentially excused software inventions from compliance with the enablement and best mode requirements, but has done so in a way that raises serious questions about how stringently it will read the nonobviousness requirements. As a practical matter, it appears that while patent law is technology-neutral in theory, it is technology-specific in application. The paper explains how the application of the same general legal standards can lead to such different results in diverse industries. Much of the variance in patent standards is attributable to the use of a legal construct, the "person having ordinary skill in the art" (PHOSITA), to determine obviousness and enablement. The more skill those in the art have, the less information an applicant has to disclose in order to meet the enablement requirement - but the harder it is to meet the nonobviousness requirement. The level of skill in the art affects not just patent validity, but also patent scope. We do not challenge the idea that the standards in each industry should vary with the level of skill in that industry. We think the use of the PHOSITA provides needed flexibility for patent law, permitting it to adapt to new technologies without losing its essential character. We fear, however, that the Federal Circuit has not applied that standard properly in either the biotechnology or computer software fields. The court has a perception of both fields that was set in earlier cases but which does not reflect the modern realities of either industry. The changes in an industry over time present significant structural problems for patent law, both because law is necessarily backward-looking and precedent-bound and because applying different standards to similar inventions raises concerns about horizontal equity. Nonetheless, we believe the courts must take more care than they currently do to ensure that their assessments of patent validity are rooted in understandings of the technology that were accurate at the time the invention was made.
patents, biotechnology, software, PHOSITA, patent scope, Federal Circuit
Abstract: In theory, we have a unified patent system that provides technology-neutral protection to all kinds of technologies. However, we have recently noticed an increasing divergence between the rules actually applied to different industries. Biotechnology provides one of the best examples. In biotechnology cases, the Federal Circuit has repeatedly held that uncertainty in predicting the structural features of biotechnological inventions renders them nonobvious, even if the prior art demonstrates a clear plan for producing the invention. At the same time, the court claims that the uncertain nature of the technology requires imposition of stringent patent enablement and written description requirements that are not applied to patents in other disciplines. Thus, as a practical matter it appears that although patent law is technology-neutral in theory, it is technology-specific in application. Much of the variance in patent standards is attributable to the use of a legal construct, the "person having ordinary skill in the art" (PHOSITA), to determine obviousness and enablement. We do not challenge the idea that the standards in each industry should vary with the level of skill in that industry. We think the use of the PHOSITA provides needed flexibility for patent law, permitting it to adapt to new technologies without losing its essential character. We fear, however, that the Federal Circuit has not applied that standard properly in biotechnology. The court has a static perception of the field that was set in its initial analyses of biotechnology inventions, but which does not reflect the realities of the industry. In the final part of the paper, we offer a very preliminary policy assessment of these industry-specific patent cases. We suggest that the special rules the Federal Circuit has constructed for biotech cases are rather poorly matched to the specific needs of the industry. Indeed, in some ways the Federal Circuit cases have it exactly backwards. We offer a few suggestions as to what a consciously designed biotechnology patent policy may look like.
patents, biotechnology, law and economics, obviousness, PHOSITA
Abstract: In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use. We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a trusted third party CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a fair use license to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access.
copyright, rights management systems, fair use, technical measures, key escrow, trusted third party
Abstract: In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use. We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a "trusted third party" CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a "fair use license" to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access.
Abstract: The anticircumvention provisions of the Digital Millennium Copyright Act penalize both the circumvention of technical protection measures, and supplying the means for such circumvention. These prohibitions are entirely separate from the exclusive rights under copyright, causing some commentators to dub the anti-circumvention right as "paracopyright". Such "paracopyright" effectively grants copyright holders sweeping new ability to impose terms of access on content users: consumers who access content without accepting the content owner's terms would violate the owner's "paracopyright" even if the material accessed is not itself copyrighted or copyrightable. Additionally, where a particular use would be permissible under copyright law, content owners may be able to exclude the use as a condition of access. For example, the content owner might require that users contractually agree not to engage in reverse engineering or fair uses as a condition for access to the material. Content owners may use "paracopyright" to require purchase or use of related products; for example, DVD access controls require that the disc be played on approved hardware, effectively dictating the consumer's purchase of playback equipment. At some point, such leveraging of access control seems certain to overstep the bounds militated by sound policy or intended by Congress. In the past, abuse of intellectual property rights has been curtailed under the doctrine of misuse. Misuse claims first arose in the patent context, where the patent might be leveraged into licensing terms that exceeded the proper scope of the patent grant. More recently, overreaching in copyright licensing has been recognized to constitute a form of misuse. Abuse of copyright in the context of computer software licensing has been the typical setting for a finding of misuse. Recent cases have held that inclusion of a ninety-nine year non-competition provision as a term of a software copyright license, or the tying of unpatented hardware to the license of copyrighted software, constitute misuse of the copyright. This paper argues that because DMCA "paracopyright" is ripe for abuse, limits on overreaching may be imposed by applying the misuse doctrine in this new area. Just as improper leveraging of patent and copyright may be curtailed by application of the misuse doctrine, so improper leveraging of paracopyright should be curtailed by application of misuse. This new application of misuse doctrine may be guided by the standards established in previous applications to patent and copyright law, and may serve a similar function in regulating the excesses invited by the anticircumvention right.
DMCA, copyright, DRM, misuse, technical protection, intellectual property, patent, anti-circumvention
Abstract: Competition may occur simultaneously at a variety of different levels: among individuals, firms, and nations. The Internet promises simultaneously to impact both international competition in informational goods and interjurisdictional competition in law as a product. Because it permits remote contact between information producers and information consumers, the Internet may promote desireable interjurisdictional competition in copyright law as a product. However, copyright law has relied on distributional inefficiency to overcome the public goods problem in the production of creative works. By increasing distributional efficiency, the Internet threatens to undermine this goal of promoting information goods. Thus, efficiency gains in the international copyright "race to the top" may simultaneously trigger an international "race to the bottom" in information good production. International harmonization of copyright may offer a partial solution to an interjurisdictional "race to the bottom," but such efforts must be approached with caution because of the opportunity for strategic behavior by content producers.
Abstract: Patents constitute our foremost policy tool for encouraging innovation. However, because each new technology provides an important input to subsequent innovation, the exclusive rights conferred by a patent may also impose significant costs upon follow-on innovators. Optimal patent policy should seek to maximize the patent incentive effect, while minimizing burdens placed on future innovation by tailoring the scope of the patent to the characteristics of each technological sector affected. In the case of software, recent scholarship has illuminated the innovation profile of the current industry. Software is characterized by incremental innovation, relatively low development costs, and short, volatile product life cycles. Interoperability and compatibility between complementary products is a major concern, making technical transparency or reverse engineering critical to product development. This suggests a need for relatively narrow patents that are relatively easy to obtain, and subject to the exceptions necessary to ensure interoperation and follow-on development. However, current software patent doctrine bears little relationship to this industrial profile. The United States Court of Appeals for the Federal Circuit has set an extremely lax standard of disclosure software patents, resulting in patents scope unconstrained by doctrines of enablement and written description. Recent changes that make patent law amenable to software have produced a flood of new applications, allowing firms to adopt a patent thicket strategy for licensing leverage. At the same time, Federal Circuit case law suggests that a stringent standard for patent non-obviousness will be applied to such patents, resulting in relatively few valid software patents. Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents.
software, innovation policy, patents
Abstract: Inherency is a puzzle that runs throughout patent law. Patents are based upon descriptions of technology. However, technologies may have qualities that are unappreciated or unidentified in a patent description, but which are nonetheless present. The law refers to these unknown attributes as inherent in the product or process. What should be done about such characteristics or qualities of a technology that exist but are not explicitly described, either through ignorance or inadvertence? This problem is explicitly presented in at least five different patent doctrines: anticipation, the on-sale bar, priority disputes, double-patenting, and enablement; and it casts its shadow across the law governing subject matter, infringement, and obviousness. Inherency is also perhaps the most elusive doctrine in all of patent law. The cases appear to flatly contradict each other, are often accompanied by dissents, and in the last three years alone have triggered one abortive en banc rehearing and strong calls for a second. In particular, the courts have split sharply over whether an element can be inherent in a prior art reference even if people of ordinary skill in the art do not appreciate the existence of that element. In this Article, we argue that this confusion is largely unnecessary. While many courts have recited as gospel the idea that inherency requires knowledge or appreciation of the inherent element, in no case does the application of the inherency doctrine actually turn on knowledge of the element. Rather, the inherency cases are all ultimately about whether the public already gets the benefit of the claimed element or invention. If the public already benefits from the invention, even if they don't know why, the invention is inherent in the prior art. If the public doesn't benefit from the invention, there is no inherency. In Part I, we examine the main thread of inherency cases, those arising out of the novelty and statutory bar provisions of the Patent Act. We explain how the courts got off track in their focus on knowledge, and why a focus on benefit clearly and consistently explains the doctrine. In Part II, we consider inherency in a different context, one in which the inventor must show possession of the claimed invention, either to prevent a new matter rejection or to establish priority of invention. Finally, in Part III, we discuss the broader implications of this rule, including what the inherency doctrine may mean for patents on DNA sequences and patents on drugs derived from traditional knowledge. A proper understanding of the inherency doctrine may offer a logical explanation for the product of nature cases, undermining the last significant exception to patentable subject matter.
Abstract: This paper examines certain social costs of deploying digital rights management or DRM systems to protect copyrighted content. The calculus of costs and benefits for such technical self-help is highly complex, and the prospect for successful self-help via such measures is uncertain due to the deterministic nature of the technical design. DRM systems essentially provide an automated alternative to legal protections such as copyright. But because it is impossible to program complex situational responses into DRM systems, DRM constitutes the equivalent of a legal rule, rather than a legal standard. Thus the literature on rules and standards is useful in evaluating the effects of DRM deployment. As this literature would predict, DRM shifts discretion away from the user, toward the producer, and DRM design therefore resembles legal rule making rather than legal standard setting. Previous analyses of rules and standards suggests that rules are preferable when the costs of ex ante decision-making will be lower than the costs of ex post discretion and adjudication. Ex ante DRM design decisions by content producers are also likely to be driven by the character of the technology. At the same time that DRM stands in for a legal rule, it also comprises a technical standard. For reasons of interoperability and trust management, DRM will tend to converge on a single standard. This means that DRM will tend toward a type of technological monoculture, presenting opportunities for the standards owner to engage in anti-competitive market distortions. This result will tend to be reinforced by legal anti-circumvention measures, a trend already apparent in the employment of the DMCA in some court decisions. However, more recent appellate decisions seem determined to resist this result, employing statutory re-interpretation and the threat of anti-competition sanctions to reverse the worst effects of DRM market distortion.
Abstract: Determining the meaning of patent claims necessarily requires the judge to break the text of a claim into discrete elements or units of text corresponding to the elements or units that comprise the claimed invention - essentially, organizing the language of the claims into chunks or quanta of text. Define an element narrowly - limit it to a single word, say - and you will tend to narrow the resulting patent, because to prove infringement the patentee must show that each word has a corresponding structure in the accused device. By contrast, defining an element broadly tends to broaden the patent, because it permits the text to read on a greater range of accused devices. For each discrete packet identified, the courts must determine the meaning of the constituent words. They can assign those words definitions that range from narrow, specific meanings to broad, general meanings. In determining the meaning of terms within a particular element, judges practicing patent claim interpretation are engaged in an exercise that to some degree resembles the famous levels of abstraction test articulated by Judge Learned Hand for analysis of infringement under copyright law's idea/expression doctrine. There are no hard and fast standards in the law by which to make the right decision as to either the size of the textual element or the level of abstraction at which it will be evaluated. Indeed, the indeterminacy is so acute that courts generally don't acknowledge that they are even engaging in either inquiry. They define an element almost arbitrarily, and even when judges disagree as to the proper definition they can offer no principled basis for doing so. The problem may be worse than a simple failure to acknowledge subconscious decisions that affect the scope of a patent, however. This indeterminacy may well be inherent in the process of mapping words to things, as modern literary theorists suggest. While courts purport to rely on the ordinary or plain meaning of the words of a patent claim, there may simply be no such thing. If we can't define the metes and bounds of the invention in any meaningful way, we might instead start with the patentee's invention itself, construing patent claims narrowly and in light of the actual invention when the claim terms are ambiguous. Courts could then supplement this narrower claim construction with a doctrine of equivalents analysis, which would permit them to decide how broadly to apply the principle of the invention.
Abstract: "E-science" promises to allow globally distributed collaboration and access to scientific research via computer network. But e-science network development is already encountering difficulty over the intellectual property rights associated with data and networked collaborative activity. Intellectual property regimes are often problematic in the practice of science, as scientific research typically assumes practices of openness that may be hampered or obstructed by intellectual property rights. A considerable literature has developed documenting and analyzing the impact of patents on research in the biomedical area, and the history of recent major scientific initiatives, such as the Human Genome Project, have been punctuated by clashes over the propriety and provision of patent rights in the accumulated data. These difficulties are likely to be exacerbated in the context of e-science collaboration, where the development and use of intellectual resources will likely be distributed among many researchers in a variety of physical locations, often spanning national boundaries. The institutions that sponsor e-science collaborators may have differing intellectual property policies. Additionally, intellectual property is largely territorial, and the rights conferred under patent or copyright laws are relegated to a single nation. Although international treaties have to some extent harmonized the basic features of intellectual property across many jurisdictions, the subject matter, scope, and requirements for patents and copyrights vary from country to country. A potential solution to this problem has been developed in the context of "open source" coding projects, where work on software projects is distributed and collaborative, occurring via the Internet or other computer-mediated communications networks. Such projects have employed "copyleft" licenses that attach automatically when the work product of the project is modified. Such licenses are particularly intended to hold the work product "open" to the community by preventing modifications or uses that would allow proprietary claims to the work product of the community. The value of "openness" and access in the open source community parallels the expressed concerns of scientific researchers over openness and access to collaborative data and discoveries. Consequently, the open source "copyleft" model might seem an attractive mechanism for preserving similar values in e-science. However, such "copyleft" instruments are highly specific to the norms and behavioral expectations of the community in which they were developed. The organizational structure of scientific research may not map cleanly onto the "copyleft" model, and the patent rights implicated by e-science differ from the copyright issues contemplated under "copyleft" licenses. Consequently, a firm understanding of not only the technical structure, but of the social and communicative structure of e-science will be necessary in order to adapt licensing solutions to the practice of e-science.
e-Science, cyberinfrastructure, patent, copyright, open source, copyleft, open science
Abstract: Recent scholarship has begun to assess the role of intellectual property rights in the theory of the Coasean firm. Some of this scholarship has looked at the effects of intellectual property on decisions to "make or buy" inputs to production. Other scholarship has looked at the effects of intellectual property on allocation of resources between employees and the firm. In this paper, we integrate these two lines of scholarship, positing a "Goldilocks hypothesis" for the proper disposition of intellectual property rights. We argue that to properly allocate resources within the firm, property rights must be calibrated so as to avoid on the one hand misappropriation of firm resources when rights are inadequate, and on the other hand dissipation of employee incentives when rights are excessive. Similarly, we argue that in order to properly manage transactions costs at the edge of firms, property rights must be calibrated so as to avoid on the one hand inefficient integration into the firm of specialized functions when property rights are inadequate, and on the other hand a fragmented anti-commons of specialty firms when property rights are excessive. Thus, we conclude that in order to contribute to the efficient structure of firms, intellectual property rights can be neither too weak nor too strong, but must be constituted "just right."
intellectual property, patent, copyright, trade secrecy, theory of the firm
Abstract: Digital communication media such as the Internet pose difficult challenges for traditional forms of intellectual property protection. Much recent scholarship and considerable governmental attention has been focused on adapting and expanding copyright to encompass digital works of authorship. These efforts have been justified on the grounds that clear property rights are necessary to allow efficient allocation of intellectual property between private parties. However, these rationales ignore the literature regarding the efficiency of unclear or "muddy" property entitlements. Where transaction costs of private bargaining are high, "muddy" rules will tend to force parties into informal bargaining transactions. Transaction costs on the Internet may tend to be high because of the number of parties involved, the difficulty of locating the parties, increased opportunity for strategic behavior, and the transborder nature of the medium. Thus, informal transactions or "self-help" may be the most efficient means for provision of digital works. In such a case, "muddy" or unclear rules should perhaps be favored for on-line entitlements.
Abstract: Although much of the innovative activity prompted by the incentive of intellectual property rewards occurs within the context of the firm, relatively little attention has been paid to intellectual property law in light of the theory of the firm. Modern theories of the firm have developed from regarding the firm as an enclave of lowered transaction cost, to a nexus of contract, to a repository of residual property rights. Many of the residual rights held by firms will accrue as intangible intellectual property assets. This view of the firm is congruent with a variety of intellectual property doctrines, such as the "work made for hire" provisions of copyright, the "shop right" of patent law, and much of the law of trade secrecy. Certain other intellectual property doctrines, such as the view of inventive entities under patent law, might be adjusted to better accommodate the residual rights function of the firm.
Coase, patent, copyright, theory of the firm, trade secrecy, residual rights, innovation, shop right, work for hire
Abstract: Adoption of information technologies is dependent upon the availability of information to be channeled via such technologies. Although many cultural approaches to information control have been identified, two increasingly ubiquitous regimes are battling for dominance in the international arena. These may be termed the utilitarian and the deontological approaches, and may be roughly identified with, respectively, the United States and the continental European tradition. Each approach has been aggressively promulgated by its respective proponent via international treaty regimes in the areas of privacy and intellectual property, to the virtual exclusion of other alternatives. Absent a drastic shift in international treaty dynamics, these dominant conceptions will likely curtail the development of alternate approaches that might otherwise emerge from local culture and tradition.
privacy, data protection, intellectual property, indigenous culture, information policy, TRIPs, international treaty
Abstract: Among the most controversial of current information technology projects on the Internet is the Google Book Search project. Google, owner and operator of a leading Internet search engine, has contracted with a variety of libraries with to scan the contents of the books held in these libraries, many of which are under current copyright. From the scanned images, Google uses search engine technology to map the relationship of words in the scanned text to the other words in the text. Access to this index is provided via an on-line interface. However, Google has not sought the permission of copyright holders, and book publishers have sued Google for copyright infringement, charging that the scanning process creates an unauthorized digital copy of many copyrighted works. While Google has asserted a defense to these claims under the doctrine of fair use, a far more difficult and more far-reaching issue for database technologies is the legal status of the index created by Google, which maps the positions of the words in the books. This metadata is not technically a "copy" of the books in questions, but the books can be recreated from such metadata. The ownership and control of such metadata is becoming an increasingly contested question in database construction, and in the resolution of the presents a difficult but critically important problem of copyright doctrine and policy.
copyright, Google, database, metadata, Tasini, Hyperlaw, search engine, intellectual property, digital library, fixation, anti-comons
Abstract: Patent law is bogged down in the minutia of claims construction. Claim construction is central to every patent dispute, but it has not provided the hoped-for certainty or notice to competitors. Quite the contrary: disputes about the importance of inventions and the scope of patents have been replaced by labyrinthine wrangling over words written by lawyers. The flaws of claim construction result largely from the problems attending "peripheral claims," that is, claims that purport to set the outermost boundaries of patent rights. In this paper, we argue that the way for the patent system to move ahead may be by looking behind, to the practice of "central claiming" that was prevalent before 1870, and which was used in many countries through the late twentieth century. Rather than relying on the illusion of peripheral "fence posts," patent law may do better to once again look to stability of central "sign posts." We examine the failure of peripheral claiming, the benefits of central claiming, and several hybrid measures that might be adopted, either in the process of moving from fence-posting to sign-posting, or as improvements over the current system that still stop short of fully adopting central claiming.
patents, intellectual property, claim construction, peripheral claiming, central claiming, Markman
Abstract: Since the landmark State Street decision of the United States Court of Appeals for the Federal Circuit, patentable subject matter has encompassed business methods, including tax investment strategies. Patents provide approximately twenty years of exclusive rights in the claimed method, in return for public disclosure in a published patent. Typically, the efficacy of specialized investment strategies will be diminished as they become generally known and so widely practiced; for this reason, many tax investment methods have been implemented under confidentiality agreements in order to prevent them from becoming widely practiced. However, patenting of such strategies may allow them to be practiced without confidentiality agreements, as the exclusive rights in the patent prevent the method from being generally adopted. We examine the effects of the shift from confidentiality to exclusive rights by drawing upon our previous work regarding intellectual property and the theory of the firm. The theory of the firm predicts several effects of such a shift from use of confidentiality to use of patents, due to the potentially lowered transactions costs associated with the patent. For example, partner firms that are necessarily affiliated with investment transactions formerly had to be prevented from unauthorized use of knowledge gained in the transaction. This could be accomplished by means of confidentiality agreements, but such agreements are cumbersome and difficult to enforce. The high costs of negotiating, policing, and enforcing confidentiality agreements may have created pressure to bring as much of the transaction as possible in house. Patenting of the transactions may lower such costs, allowing more of the transaction to be outsourced. Similarly, patenting may have an effect on the hiring, retention, and mobility of employees involved in such transactions. Employees who were skilled at such transactions formerly may have had difficulty changing firms, as they would be unable to take with them specific transactional skills learned under confidentiality agreements, or even describe such skills to a new employer. Patenting of the transactions removes the veil of confidentiality, allowing employees to discuss their skills with potential employers, even if the specific transactions cannot be used by the new employer. Assuming that tax shelter patents will be with us so long as there are business method patents, and that business method patents are for all practical purposes here to stay, we discuss the likely outcomes that tax shelter patents will have on the structure of investment firms and the mobility of skilled employees between such firms.
patents, business methods, investment strategy, tax shelters, taxation, tax patents, intellectual property, theory of the firm
Abstract: Recent advances in genetic engineering now allow biological inventions to be programmed in a fashion resembling the restrictive programming of digital media. These biological "lock-out" systems restrict unauthorized use of genetically engineered seeds in much the same way that digital rights management (DRM) systems restrict the use of digital media. Indeed, these new genetic use restriction technologies, known as "GURTs," raise many of the same policy issues that have been identified with DRM. In both cases, the substitution of technological protection for legal protection allows private parties to displace the public policy balance of ownership and control that is inherent in intellectual property law. The proliferation of restrictive technologies such as DRM and GURTs poses a challenge not only to the traditional balance of control over intellectual property, but also to our understanding of legal doctrines related to ownership and control. In particular, the ability to embed contractual terms in restrictive technologies requires a re-examination of the concepts of disclosure and consent in licensing transactions involving such technologies, as well as a reconsideration of commonly employed notions of property and contract. As restrictive technologies blur the distinctions between property, contract, and physical products, these categories may be redefined in light of the interplay between law and the values that restrictive technologies embed in the design of the physical products.
intellectual property, agriculture, GURTs, DRM, property, terminator, GMO, biotechnology, PVPA, PPA, bag-tag, seed wrap
Abstract: Patent law routinely relies on distinctions between products and processes, but the courts appear to have a great deal of trouble distinguishing the two when it comes to biotechnology cases. Over the past two decades, this has led to a series of cases grappling with a process-related problems that are characteristic of biotechnology patents. These cases include those dealing with obviousness of macromolecules, those addressing the so-called "Durden" problem of patenting old processes that use novel substrates or create novel products, and several recent importation cases considering sections 271(f) and 271(g) of the U.S. patent statute. It is no accident that biotechnology patent cases repeatedly coalesce around such process-related issues; rather, in biotechnology patenting a discontinuity at the center of patent law has finally come to light. This anomaly is due to the character of molecules as channels for informational transfer processes, and the inability of current patent doctrine to encompass information transfer. Consequently, conflicts regarding process and product will be endemic not only to the patenting of biotechnology products, but also other informational products, particularly software.
biotechnology, patent, process patent, Shannon, entropy, information theory, 35 USC 271(f), 35 USC 271(g)
Abstract: Recent advances in genetic technology now allow seeds to be designed so that germination will occur only under the influence of proprietary chemical activation. These genetic technical protections, known as genetic use restriction technologies, or GURTs, hold the potential to suppress unauthorized uses of proprietary plant varieties. These systems may be used either in conjunction with or in replacement of so-called "seed-wrap" licenses, which purport to restrict the uses of proprietary seed after sale. Intellectual property rights including Plant Variety Protection and utility patents may form the basis for such licenses. However, license-based restriction of seed usage may be difficult or costly to police and to enforce. Technical restrictions are largely self-enforcing, but when used in to restrict seed usage may effectively confer greater rights than would be afforded by the relevant intellectual property statute. Such application of GURTS raises a series of troubling policy problems. Employment of GURTs and related licenses in such strategies also implicate competition doctrines including tying, exhaustion, and misuse. While the United States Supreme Court and the Federal Circuit have addressed some of these issues in the seed licensing context, the reasoning of the relevant opinions lacks coherence, and substantial questions remain regarding the application of these decisions to technological controls.
GURTs, seeds, intellectual property, PVPA, patents, trade secrets, licensing, Terminator, bag-tag, seed-wrap
Abstract: Intellectual property law constitutes one of the primary policy tools by which society influences the development and design of new technologies. However, the underlying philosophical basis for this system of rewards has gone largely unexamined. For example, implicit in the intellectual property system is a strong element of mind/body dualism that informs the incentives for technological development. In copyright, the work created and owned by an author is idealized as an intangible form, which may be embodied or fixed in a tangible medium of expression. The parallel patent law doctrine of inventorship shows an even more striking pattern of dualism. In the United States patent priority is decided primarily on the basis of conception of the invention in the mind of the inventor; the actual building or reduction to practice of the invention is held largely irrelevant. Similarly, both patent and copyright doctrine entail a strong element of nature/culture dualism. In patent law, this manifests as the product of nature doctrine, holding that only the products of human effort are patentable, and not discoveries drawn from nature. In copyright, facts and other natural occurrences are excluded from copyright as being unoriginal, that is, not originating from the creativity of an author. Both systems assume that facts or properties embedded in the fabric of reality can be separated from the human activity that observes and defines such facts and properties. This paper suggests how the tools of feminist theory might be used to interrogate such assumptions in intellectual property law. Feminists have critiqued the tendency of Western philosophy and practice of dividing the world into oppositional categories, including those of mind versus body and culture versus nature, where the former category is regarded as superior and masculinized, and the other considered inferior and feminized. Typically such dualisms are revealed as relational and rhetorical strategies for maintaining certain patterns of dominance and privilege. Similar patterns can be recognized in the intellectual property system for rewarding innovation and creativity.
feminism, dualism, patent, copyright, intellectual property, gender
Abstract: Although feminist perspectives have contributed substantially to the development of both theory and practice in many areas of law, feminism has to date contributed relatively little to discussions regarding intellectual property. This paper examines the relationship between hypermedia and feminist discourse, critiquing the role of copyright in controlling or suppressing such discourses. Hypertext and related media may lend themselves to relational webs of meaning rather than linear progressions of meaning. Given the importance of non-hierarchical, associative webs to feminist discourse, digital media may lend themselves to feminist modes of thinking, or at minimum challenge dominant textual constructions. However, current copyright doctrine assumes that works remain linear, hierarchical, and controlled. The exclusive rights conferred by copyright, and most especially the right of adaptation, lend themselves to authorial control over not only the text, but to a reader's use of the text. This deterrent characteristic of copyright has appeared in several recent legal disputes involving hypertext linking and annotation. Thus, copyright remains hostile to non-traditional collaborative or relational user engagement. This hostility may ultimately frustrate copyright's purpose of promoting the "progress" of knowledge.
Feminism, hypertext, copyright, intellectual property, authorship
Abstract: Scientific research is increasingly performed via on-line collaboration, including the potential for virtual research environments or collaboratories. Lessons learned from the analysis of law as applied to the Internet may illuminate the issues that will arise in such collaborations. Although the ideal of open science pushes scientists toward communal ownership of scientific results, increasingly the ownership and control of research results in such collaborations will be effected by a variety of intellectual property regimes. Patent, copyright, trade secrecy, and trademark law all potentially have a bearing on the results of collaborative research. Additionally, because such laws vary by jurisdiction, the legal result of transborder electronic collaboration may prove particularly complex. Regimes of licensing and of technological content protection may be applied to address some of this complexity, but offer their own complications.
intellectual property, jurisdiction, patents, private goods, public goods, copyright, trade secrecy, trademark, Robert Merton, scientific norms, shrinkwrap licenses, open science, ARPAnet, choice of law, clickwrap licenses, contracts, DRM, CMS
Abstract: Recent court cases regarding the regulation of computer software have held that such code may be protected expression under the First Amendment. Some courts have drawn on the law of copyright to conclude that because copyright protects expression, and software is copyrightable, that software must contain protected expression. But because of the recent expansion of patent doctrine to encompass software and other digital communications, it appears that such "speech" will also be patentable. Patent law is even more poorly equipped than copyright to distinguish function from expression. The paper reviews the likely problems inherent in applying patent law to expressive subject matter, and suggests the doctrinal changes that may be required to accommodate First Amendment interests in patentable speech.
Abstract: The problem of global information flows via computer networks can be conceived and understood as raising issues of competition, interoperability, and standard-setting parallel to those in analysis of technical standards. Uniform standards, whether technical or legal, give rise to a constellation of positive and negative network effects. As a global network based upon the "end to end" principle of interoperability, the Internet mediates between different, otherwise incompatible computing platforms. But to the extent that law and technological "code" may act as substitutes in shaping human behavior, the Internet similarly mediates between different, otherwise incompatible legal platforms. Much of the legal and social controversy surrounding the Internet stems from the interconnection of such incompatible legal systems. As with technical systems, problems of incompatibility may be addressed by the adoption of uniform legal standards. This, however, raises legal standard-setting problems similar to those seen in technical standard-setting, where the standard may be "tipped" in favor of dominant producers. In particular, if law is considered a social product, the benefits of interjurisdictional competition and diversity may be lost as a single uniform legal standard dominates the market for law.
law, network effects, Tiebout, race to the bottom, standard-setting, Internet
Abstract: Black letter copyright law holds that methods and processes, as well as facts and ideas, are excluded from the subject matter of copyright. This doctrine extends back at least to the iconic Supreme Court decision in Baker v. Selden. But recent copyright cases have protected as copyrightable subject matter compilations of numerical values that are the products of calculation processes, such that protection of the final results seems tantamount to protection of the underlying process. These cases not only tread the line between fact and original expression, but underscore the difficulty of separating process from product in copyright. A careful examination of these decisions uncovers powerful but questionable philosophical assumptions embedded in copyright jurisprudence, and reveals hidden lacunae within the copyright statute that call into question the continuity and viability of current copyright doctrine.
copyright, determinism, fact, expression, intellectual property, software, processes
Abstract: Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescription drugs wreak havoc on information technologies and vice versa. According to Dan L. Burk and Mark A. Lemley in this book from the University of Chicago Press, courts should use the tools the patent system already gives them to treat patents in different industries differently. Industry tailoring is the only way to provide an appropriate level of incentive for each industry.
Abstract: Copyright protects the original expression of authors, but by definition protects neither abstract ideas nor functional elements. Yet digital media seems to transform creative subject matter either into its most elementary, functional sub-units, or into its most incorporeal abstract concepts. Thus, from a reductionist viewpoint, it now seems that nothing can be protected by copyright, but from a holistic viewpoint, it now seems that everything can. This conundrum is not unique to copyright; it is well known in studies of pattern recognition, cognitive psychology, and artificial intelligence. Thus, understanding and resolving this copyright dilemma requires us to address some of the most intractable issues in science and philosophy, and to draw upon expertise of disciplines across the range of human knowledge.
Copyright, levels of abstraction, artificial intelligence, cognition, holism, reductionism, digital media
Abstract: Transborder flow of digitized goods and services has become a major feature in the debate over Internet regulation. Some commentators have argued that the architecture of the Internet changes everything; others have replied that it changes nothing. This updated article addresses federalism issues raised by on-line interjurisdictional competition, arguing that despite the suggestions of the "unexceptionalist" school of commentary, Internet regulation remains anything but "business as usual." Analysis of interstate competition in law as a product is appropriate in determining the proper scope of state regulation of on-line activity. Two lines of constitutional cases define the parameters of proper interstate regulatory competition: those dealing with personal jurisdiction, and those dealing with the dormant commerce clause. Inherent in the Supreme Court's Due Process holdings is the principle that interstate diversity in law products is desireable and central to a federal system. The minimum contacts test of International Shoe and subsequent cases preserves the individual's right to vote with his feet in selecting among the law products offered by the several states. Competition for law as a product can only be maintained if states are prevented from externalizing the costs of their local regulations. The Supreme Court holdings regarding the dormant commerce clause indicate that this constitutional doctrine serves to prevent states from exporting their law products to other jurisdictions by attempting to control wholly extraterritorial activity. Although the Internet may in some cases facilitate externalization of state regulatory costs, centralized regulation by the federal government, rather than overreaching by the states, is the proper solution to such externalities.
federalism, Tiebout, commerce clause, dormant commerce, jurisdiction, Internet, race to the bottom, race to the top
Abstract: The theories of information ethics articulated by Luciano Floridi and his collaborators have clear implications for law. Information law, including the law of privacy and of intellectual property, is especially likely to benefit from a coherent and comprehensive theory of information ethics. This article illustrates how information ethics might apply to legal doctrine, by examining legal questions related to the ownership and control of the personal data representations, including photographs, game avatars, and consumer profiles, that have become ubiquitous with the proliferation of information and communication technologies. Recent controversy over the control of player performance statistics in "fantasy" sports leagues provides a limiting case for the analysis. Such data representations will in many instances constitute the kind of personal data that information ethics asserts constitutes an information entity. Legal doctrine in some instances proves sympathetic to such an assertion, but remains largely inchoate as to which data might constitute a given information entity in a given instance. Neither is information ethics, in its current state of development, entirely helpful in answering this critical question. While information ethics holds some promise to bring coherence to this area of the law, further work articulating a richer theory of information ethics will be necessary before it can do so.
Floridi, information ethics, data representations avatar, copyright, privacy, right of publicity, right of privacy, information entity, information law
Abstract: Recent studies of knowledge production have increasingly recognized the role of codified knowledge in the operation of social organizations. Much of the knowledge resident in organizations exists as tacit knowledge, that is, as knowledge that goes unrecorded. Typically such knowledge is carried as the personal expertise of employees, passed along to other employees if at all either orally or by practice convention. Such knowledge is frequently a major asset of the organization, and is often critical to the organizations continued operations. However, individualized tacit knowledge is at continual risk: the death or departure or disaffection of key personnel can deprive the organization of the asset, placing the continued operation of the organization in jeopardy. Organizations can guard against such risks by attempting to codify tacit knowledge, that is, by reducing tacit knowledge to a stable coded form that exists independently of individual personnel. Codification of knowledge not only facilitates transmission and retention of knowledge within an organization, it also facilitates barter and exchange of information between organizations of knowledge, effectively sustaining knowledge commodification. However, codification is costly as it requires the development and transmission of codes, as well as supporting processes of recordation and the preservation of coded materials. Additionally, the use of codes implies the existence of sufficient tacit knowledge for users to understand and employ the codes. Thus, while codification may alter the measure of tacit knowledge, codification is never complete, and some equilibrium between tacit and codified knowledge is always maintained. The literature on knowledge production has to date recognized only in passing the role of intellectual property in this process. This paper applies the insights of knowledge production to the features of intellectual property regimes, both to flesh out the analysis of tacit knowledge codification, and to illuminate the role of intellectual property in the firm. Patents, for example, constitute an explicitly codified form of technical knowledge, providing a stable common code for technical know-how, partially ameliorating the risks associated with loss of tacit knowledge. Thus, aside from the usual justifications for patents in terms of incentive or disclosure, patenting may help to secure knowledge against loss or dissipation. However, considerable technical know-how will always remain in tacit form, unpatented and uncodified. As with all codes, the use of patents assumes an attendant constellation of tacit knowledge regarding the interpretation and application of the information in the patent. The degree of codification equilibrium between patents and tacit know-how has clear implications for integral components of entrepreneurship including employee mobility, outsourcing, strategic alliances, and other aspects of firm operations. Patents provide a common code for evaluation of inventions, creating a communicative standard for negotiation between firms. Codification through the patent system also provides important stability to attendant tacit knowledge. Patent doctrines regarding prior art, interference practice, and infringement all address the balance of tacit and codified knowledge. By functioning as a codification mechanism, patents may facilitate employee movement and entrepreneurial business spin-offs. Any alteration to the system of patent procurement and enforcement must take such effects into account.
patents, intellectual property, tacit knowledge, codification, codified knowledge, knowledge production
Abstract: This chapter from the forthcoming Cambridge University Press volume Gene Patents and Clearing Models: From Concepts to Cases comments on the international FAO treaty for sharing genetic resources and on proposals by Rai et al. to create a shared testing system for small molecule pharmaceutical development. Both of these intellectual property distribution models incorporate liability rule regimes that include aspects of options markets. In this chapter, I attempt to situate the FAO treaty and the Rai et al proposal within both the landscape of property theory and the existing literature on real options. To do so I draw upon recent literature analyzing property and liability rules from the standpoint of options and information theory. Although the literature on intellectual property and real options is currently sparse, I suggest that this approach has much to tell us about the development of systems for intellectual property liability regimes, particularly the incentive choices that might guide us to choose them or to reject them. I conclude with some observations regarding the allocative choices that we might make in a proposal like that of Rai et al, including some possibilities not considered in their paper.
intellectual property, seeds, small molecules, pharmaceuticals, real options, patents, property rules, liability rules, trade secrets, FAO treaty
Abstract: Innovation and patent law work differently in different industries. To some degree, the courts’ interpretations of patent and trademark law accommodate those differences. It is not much of an exaggeration to say that the patent system must bend or break: a patent system that is not flexible enough to account for these industry differences is unlikely to survive, let along accomplish its stated goals. We believe the system has the flexibility to do both, but this will require the courts to better recognize and use the policy levers they have been given.
PHOSITA, Person having ordinary skill in the art, Patent Act, PTO, Patent and Trademark Office, defensive patents, IP, intellectual property, property rule
Abstract: Coase’s theory of the firm has become a familiar tool to analyze the structure and organization of businesses. Such analyses have increasingly focused on property based theories of the firm, including intellectual property. In previous work we have discussed the application of this model to patents, copyrights, and trade secrets. Here we take up the theory of the firm with regard to trademarks, which act as signals of firm reputation, and so have application and effects that differ substantially from other forms of intellectual property. Using the framework from our previous analyses, we examine the propensity of trademarks to lower transactions costs between firms, as well as within firms, suggesting that such doctrines will have significant effects on the size and structure of the firm.
trademark, intellectual property, reputation, Coase, theory of the firm, franchise
Abstract: Adoption of information technologies is dependent upon the availability of information to be channeled via such technologies. On-line multiplayer role-playing games have become an important social and business feature of the Internet. The virtual worlds that game players inhabit now encompass population counts and economic activity greater than that of many nations in the physical world. The activity of players participating in an on-line game community is closely tied to paratexts that may include magazines, websites, and even devices that lie outside the formal boundaries of the game, but which are intimately bound up in the transmission of knowledge and culture surrounding the game. In this paper, I examine the legal structures that foster or inhibit particular gaming paratexts. Such laws are in some senses extrinsic to the "magic circle" of the game, but these external rules are deployed as constraints to enforce the internal logic of the game. Typically this occurs in cases where violation of the game's internal parameters would affect the owner's external marketing or business control. Commercial game developers may use copyright and related anti-circumvention laws to enforce preferred readings of the game, largely by dominating the paratexts associated with their product. Examining the control of paratexts yields important insights into the logic of legal rubrics governing on-line gaming.
copyright, paratext, gaming capital, MMORPG, role-playing, computer games, video games, derivative work, substantial similarity, cheating
Abstract: Digital rights management technology, or DRM, provides self-enforcing technical exclusion from pre-determined uses of informational works. Such technical exclusion may supplement or even supplant intellectual property laws. The deployment of DRM has been subsidized by laws prohibiting both disabling of technical controls and assisting others to disable technical controls. To date the public debate over deployment of DRM, has been almost entirely dominated by utilitarian arguments regarding the social costs and benefits of this technology. In this paper, we examine the moral propriety of laws endorsing and encouraging the deployment of DRM. We argue that a deontological analysis, focusing on the autonomy of information users, deserves consideration. Because DRM shifts the determination of information use from users to producers, users are denied the choice whether to engage in use or misuse of the technically protected work. State sponsorship of DRM in effect treats information users as moral incompetents, incapable of deciding the proper use of information products. This analysis militates in favor of legal penalties that recognize and encourage the exercise of autonomous choice, even by punishment of blameworthy choices, rather than the encouragement of technology that limits the autonomous choices of information users.
intellectual property, DRM, digital rights management, copyright, autonomy, DMCA
Abstract: What duties do corporate executives owe their corporations, shareholders, depositors, creditors, or customers regarding computer disaster recovery? This paper examines whether failure to take adequate precautions for computer disaster recovery constitutes negligence not only in the everyday sense, but in the legal sense as well. Such legal negligence might leave corporations, directors, and officers liable for certain damages suffered due to inaccessibility or loss of records and data processing capacity during a computer disaster. Part I of this paper discusses the disaster recovery options available to corporations. Part II outlines corporate liability under several statutes requiring computer disaster preparedness. Part III discusses the common law duties of corporations, directors, and officers as applied to this topic. Finally, Part IV suggests a theory of tort liability that might be applied to losses in computer disaster, and indicates areas to which this theory might extend.
Computer disaster recovery, corporations, liability
Abstract: Academic researchers access commercial websites to collect research data. This research practice is likely to increase. Is this appropriate? Is this legal? Such commercial websites are maintained to achieve business objectives; research access uses site resources for other purposes. Website administrators may, therefore, deem academic data collection inappropriate. Is there a process to make research access more open and acceptable to website owners and administrators? These are significant issues. This article clarifies the problems and suggests possible approaches to handle the issues with sensitivity and openness. Research access to commercial websites may be manual (using a standard web browser) or automated (using automated data collection agents). These approaches have different effects on websites. Researchers using manual access tend to make a limited number of page requests because manual access is costly to perform. Researchers using automated access methods can request large numbers of pages at a low cost. Therefore, website administrators tend to view manual access and automated access very differently. Because of the number of accesses and nonbusiness purpose, automated research requests for data are sometimes blocked by site administration using a variety of means (both technological and legal). This paper details the pertinent legal issues including trespass, copyright violation, and breach of contract. It also explains the nature of express and implied consent by site administration for research access. Based on the issues presented, guidelines for researchers are proposed to reduce objections to research activities, to facilitate communication with website administration, and to achieve express or implied consent. These include notification to website administration of intended automated research activity, description of the research project posted as a web page, and clear identification of automated requests for web pages. In order to encourage good research practices with respect to automated data collection, suggestions are made with respect to disclosing methods used in research papers and for self regulation by academic associations.
Internet, research, automated data collection, trespass, ethics
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