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Abstract: Internet service providers and their customers have understood and debated the concepts of network neutrality, tiered access, and limited "unlimited" services since the beginning of the era of dial-up bulletin board systems. Commentators have only recently joined the debate, and often overlook history. No commentator, legislator, or regulator can be certain how networks and technologies will evolve over the next decade - especially when they misunderstand how those networks evolved over the last one. This article refocuses the net neutrality debate on end users rather than networks by analyzing the Internet's non-neutral history, examining today's non-neutral Internet access and content markets, and discussing important economic arguments and game theory in light of technical and operational realities on Internet networks. The article outlines a policy of categorized, detailed, and uniform disclosures about Internet and content providers' non-neutral traffic policies. The disclosures would enable the market to choose technologies and business models dynamically, yet still provide regulators with a potential enforcement mechanism.
net neutrality, FCC, broadband, Internet, antitrust, economics
Abstract: In June 2006, the Supreme Court invalidated President Bush's military commission rules in Hamdan v. Rumsfeld. The Court held that the military commissions fell outside of the military court system established by Congress, and ruled the commissions unconstitutional as applied to both citizens and non-citizens. Congress responded with the Military Commissions Act of 2006, new legislation to establish military commissions. The Act fails to balance properly the Court's fairness requirements with the extraordinary demands placed on the laws of war by terrorism. This Note summarizes whether terrorist attacks implicate the laws of war, what protections are due parties detained in the War on Terror, and concludes that only the laws applicable to non-international armed conflicts govern Al Qaeda's attacks. After examining Justice Kennedy's safe harbor in his Hamdan concurrence, the Note considers the procedures of the Military Commissions Act of 2006. In light of the Court's decision in Hamdan, and provisions of the Geneva Conventions that it incorporates, the Military Commissions Act fails to uphold the fairness standards expressed by the Court. The Act would require significant revisions before it could withstand constitutional scrutiny, even in wartime.
detention, Hamdan, Hamdi, UCMJ, military commissions, Guantanamo, Iraq, Geneva, Geneva Conventions, Military Commissions Act
Abstract: The open source community is conducting a robust debate on the intellectual property issues surrounding the GPL, the most popular of the open source software licenses, and Linux, the most successful product of the GPL to date. The Linux community has evolved its open source development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. Legal practitioners have the opportunity to help the community solidify this evolution by explaining its utility in both legal and technical arenas. The GPL acts as the most important beacon for Linux and the rest of the open source world. The model employed by Linux to accommodate closed and open source code is a common sense adaptation of the GPL. The adaptation is also consistent with U.S. copyright law. Rather than push to change this functional approach, legal practitioners should encourage the community to embrace and solidify it. Courts and market inertia will force both the open source and closed source models that developers use to coexist. Neither purely open source nor purely closed source models for Linux will succeed without the other.
open source, GPL, copyright, software, software licenses, software licensing
Abstract: The open source community is conducting a robust debate on the intellectual property issues surrounding the GNU General Public License (GPL) a popular modified public domain software license, and Linux, its most successful project to date. The Linux community has evolved its open source development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. The legal issues underlying this transformation have not undergone the same robust analysis. This paper sheds light on those issues and tests some of their limits. The GPL fails to define fundamental terms adequately, including the inconsistent use of based on (derivative works), the lack of a choice of law provision, and the ambiguous treatment of patents. The GPL holds itself out as a viral license, purporting to foist itself on any software developer who has incorporated GPL code into a project. These and other factors combined with the Linux community's outdated views on copyright protection for kernel modules make it unlikely that a court could give full effect to the GPL or protect open source code from closed source intrusions. The GPL, however, does act as the most important beacon for Linux and the rest of the open source world. Its most significant contribution may differ greatly from the one envisioned by its creators: collaborative, decentralized development rather than free software. Contrary to some non-legal analyses, the gentlemen's agreement model employed by Linux to ensure that both closed source and open source software can coexist is a legally defensible, common sense adaptation of the GPL.
copyright, software license, GPL, Linux, GNU, intellectual property
Abstract: Internet service providers and their customers have understood and debated the concepts of net neutrality since the beginning of the era of dial-up bulletin board systems. Commentators have only recently joined the debate, and often overlook history. No commentator, legislator, or regulator can be certain how networks and technologies will evolve over the next decade - especially when they misunderstand how those networks evolved over the last one.
This paper refocuses the net neutrality debate by challenging the application of vertical foreclosure theory to today's non-neutral Internet access and content markets. The paper finds that the current policy fascination with non-existant net neutrality is ill founded. Disclosure and a broader focus on both network and content providers' non-neutral traffic policies would better enable the market to choose technologies and business models dynamically while still providing regulators with a potential enforcement mechanism.
net neutrality, FCC, broadband, Internet, monopoly, economics, vertical foreclosure
Abstract: Legal context. The phenomenon of open source software, and especially the exponential growth of its most successful project, Linux, has spawned one of the most hotly debated topics in technical and legal communities. The communities attempt the balance the limitation of software licenses in contract and copyright law with the goals of open source software. Key points. This article evaluates common law approaches to software licenses, and examines the applicability of international sales of goods treaties. The American adaptation of copyright law to computer software provides a foundation for analysing decisions in Navitaire v easyJet Airline and Ibcos Computers v Barclays Mercantile Highland Finance. It describes the Linux community's adaptation of open source development models to accommodate the realities of copyright law while encouraging participation from commercial vendors and their considerable resources. Practical significance. Courts and market inertia will force both the open source and closed source models to coexist. Legal practitioners worldwide have the opportunity to help the software community embrace both open source and closed source developers by explaining the utility of this adaptation in both legal and technical arenas.
Abstract: While blogs or Wikis undoubtedly have an important, expressive place in legal discourse, these short-form outlets leave the demand for timely, interactive legal discourse unfulfilled. Printed law journals and online repositories like SSRN or Berkeley Electronic Press cannot address these needs either. This article introduces Indiana Law Journal's expanded publication, the Indiana Law Journal Supplement, and explains how the new online, short-form journal meets the Journal's original purpose and fills an important void left by other outlets. The Indiana Law Journal has consistently been one of the few top-tier law journals to both encourage and publish significant student works. Ideas that advance the practice of law are no less vital simply because students - at Indiana or elsewhere - developed them. The article describes how the Supplement enables the Journal to amplify the focus on ideas, rather than who holds them. By offering both the interactivity and timeliness of blogs and the established path of legal scholarship provided by traditional law reviews, the Journal can further the purposes it first outlined in 1925.
blog, online journal, SSRN, Web, law students
Abstract: Over the past five years, the open source community has continued its robust debate on the intellectual property issues surrounding the GNU General Public License (GPL) and its most successful project, the collaboratively developed Linux operating system. Commercial and non-commercial members of the Linux community have evolved Linux's open source software development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. The resulting "Gentlemen's Agreement" is still fragile, especially with the 2007 release of a new version of the GPL. Legal practitioners and commentators have the opportunity to help the Linux community strengthen the gentlemen's agreement by explaining its utility in both legal and technical arenas.
Arguments by strong supporters of the broadest interpretation of the GPL that overstate the effect of the license serve both to deny the existence of this Gentlemen's Agreement and risk undermining the commercial/open source balance that has served Linux well for more than a decade. This paper outlines the GPL's legal shortcomings and boundaries to help bolster the community's practical, and undervalued, gentlemen's agreement that enables commercial participation in open source projects.
copyright, software license, GPL, Linux, GNU, intellectual property, GPLv2, GPLv3
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