Recent Articles

Patent Punting: How FDA and Antitrust Courts Undermine the Hatch-Waxman Act to Avoid Dealing with Patents

By Rebecca S. Eisenberg & Daniel A. Crane

Articles, Spring 2015

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Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

By Stacey M. Lantagne

Articles, Spring 2015

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Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad

By Axel Arnbak & Sharon Goldberg

Articles, Spring 2015

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No More Shortcuts: Protect Cell Site Location Data with a Warrant Requirement

By Lauren E. Babst

Notes, Spring 2015

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Voluntary Disclosure of Information as a Proposed Standard for the Fourth Amendment's Third-Party Doctrine

By Margaret E. Twomey

Notes, Spring 2015

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Blog Posts

The Future of Net Neutrality

After years of struggling with what the federal government’s role should be in regulating the “free internet,” the FCC voted to enforce net neutrality rules under Title II of the Communications Act. Under the new Rules, major Internet Service Providers (ISPs) like Verizon, AT&T and Comcast are prohibited from slowing down applications or services, accepting fees for preferential treatment or blocking lawful content. In a nutshell, the rules place ISPs under the same strict regulatory framework that governs telecommunication networks to ensure that all Internet traffic that runs through these providers is treated equally. While the Rules have been praised by the Obama Administration and the FCC Chairman as “necessary to protect Internet openness against new tactics that would close the Internet,” there has been rapid backlash from opponents. USTelecom, a consortium of ISPs that had filed a suit against the FCC before the Rules went public, re-filed its suit just minutes after the Rules were published on the Federal Register earlier today. USTelecom claims that the FCC used the incorrect approach to implementing net neutrality standards and argues that the reclassification of broadband Internet access as a public utility is “arbitrary, capricious, and an abuse of discretion.” Another snag in the implementation of the FCC rules comes from Congressional support of the ISP lobby. Representative Doug Collins, a Georgia Republican introduced a new bill in Congress that would allow Congress to use an expedited legislative process to review new federal agency regulations. The measure would need only a simple majority to pass, instead of the usual 60 votes needed to overcome a filibuster. Essentially, this bill is a quick-stop... read more

Twitter and Cyber-bullying

Twitter has recently announced that it will be rolling out a new “quality filter” that is designed to “remove all Tweets from your notification timeline that contain threats, offensive or abusive language, duplicate content, or are sent from suspicious accounts.” The “quality filter” is only attached to verified users since they have the most followers and therefore are susceptible to the most abuse, but Twitter has also implemented other anti-harassment tools such as a feature that makes it easier to report abuse to law enforcement. So essentially, this quality filter and other recent features are designed to prevent instances of cyber-bullying and protect user safety. Cyber-bullying is more and more common as Internet users are shielded by anonymity on the Web. Cyber-bullying is especially present on Twitter. According to data from the Pew Center, Twitter users face many forms of harassment including death threats and threats of sexual abuse and stalking and the victims of this abuse are disproportionately women. There have been several recent high-profile cases of cyber-bullying involving Twitter including #gamergate, the harassment of Robin William’s daughter after his death, and Ashley Judd’s decision to press charges against trolls. These high-profile incidents have been speculatively identified as the impetus for Twitter’s implementation of anti-harassment blocking tools including the “quality filter”. Twitter initially positioned itself as the “free speech wing of the free speech party”, which meant that they took a neutral view on message content. Twitter’s “neutral view” has seemingly made the company more tolerant of abuse and harassment on their social media site relative to other social media sites. For instance, Twitter is notoriously criticized for... read more

The Danger of “Just & Reasonable” Net Neutrality Rules: The Potential Toothlessness of the FCC’s New Rules

On February 26, 2015, proponents of the open Internet celebrated the Federal Communications Commission’s vote to reclassify broadband Internet as a public utility and approve new net neutrality rules. The goal of the FCC’s vote is to protect Net neutrality by requiring Internet service providers (ISPs) to treat all Internet traffic equally. Although increasing regulatory oversight of the “last mile” of the Internet is certainly a step in the right direction toward a true open Internet, this is not a clear victory for Net neutrality advocates. On March 12, 2015, the FCC released a declaratory ruling and order that contained the FCC’s newly adopted Net neutrality rules. Because the FCC voted to reclassify broadband Internet as a public utility, all ISPs are now subject to regulation under Title II of the Communications Act of 1934. This effectively places ISPs under the same strict regulations as telephone networks. Accordingly, the document outlines strict rules for Internet providers that are designed to preserve an open Internet. The Net neutrality rules help ensure Net neutrality by explicitly prohibiting ISPs from: 1) blocking legal content, 2) throttling, and 3) creating Internet fast lanes (accepting fees for priority treatment). While these are all great things, Net neutrality advocates should hold off on celebrating with the top-shelf champagne because the new rules include a standard of review that can greatly undermine their robustness. The rules require ISPs’ conduct to be “just and reasonable.” This gives the FCC the power to decide on a case-by-case basis whether a ISP has overstepped its bounds or to exempt its actions as “just and reasonable”. The FCC itself admits that the terms just and reasonable are broad, “inviting the... read more

Glancing at the USPTO Enhanced Patent Quality Initiative

The United States Patent & Trademark Office (USPTO) recently began an enhanced patent quality initiative.  Over the past few years, the USPTO has significantly reduced patent application backlog and pendency and is now turning its attention to patent quality.  The USPTO is better positioned to address patent quality than ever before, since the America Invents Act (AIA) allows the USPTO to set its own fees and retain the fees it collects.  Previously, the USPTO was required to share a portion of its fees with other government entities.  With the ability to charge higher fees and keep the fees it collects, it is possible to imagine significant progress towards improved patent quality.  Currently, a large part of the problem is that patent examiners work in an environment where quantity is often emphasized over quality.  The patent examiner count system awards points to examiners for processing patent applications. With a new emphasis on quality and more resources at its disposal, the USPTO has the opportunity to change this environment. The USPTO has been seeking public input and guidance to direct its continued efforts towards enhancing patent quality.  Their stated focus is on “improving patent operations and procedures to provide the best possible work products, to enhance the customer experience, and to improve existing quality metrics.” Just recently, on March 25 and 26, 2015, the USPTO held a Quality Summit with the public to discuss its outlined proposals.  The USPTO has outlined six proposals: Requests for Quality Review: allowing applicants to request a review if they receive very low quality office actions Automated Pre-Examination Search: searching for new tools to find better search results... read more

Autonomous Cars: The Legality of Cars on Autopilot

Mercedes, BMW, Infiniti, Honda, and Volvo have produced cars that have the ability to be in a semi-autopilot mode in certain situations. Google has even produced bubble-like experimental self-driving cars that completely take the human driver out of the equation. Recently, the chief executive officer of Tesla, Elon Musk, announced that the company would introduce cars with an autopilot mode into the U.S. market this summer. Tesla’s anticipated product would not remove human participation completely, like the Google self-driving car, but it is the first commercially available, largely autonomous vehicle. Tesla’s car would have technology that would allow drivers to transfer control to autopilot on “major roads” such as highways. The only thing required to obtain this technology is a software update in Tesla’s current Model S sedans. This is hugely exciting news for a lot of people; not having to pay attention during the commute to and from work would allow an extra hour or so for people to be productive or get some rest. However, there are serious legal questions regarding autonomous vehicles that have yet to be answered. For example, who will be liable if the car strikes a pedestrian while on autopilot? Will it be the driver, as the owner of the car, who maintains the ultimate ability to control the vehicle? Will it be the manufacturer or programmer who developed the software that failed to detect the pedestrian? There simply are not laws covering these scenarios in most states, let along cohesive federal laws. At most, there are a few states that have passed laws declaring the legality of autonomous vehicles mainly for testing... read more

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