' MTTLR | Michigan Telecommunications and Technology Law Review

Recent Articles

Association for Molecular Pathology v. Myriad Genetics: A Critical Reassessment

By  Jorge L. Contreras
Article, Fall 2020
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From Automation to Autonomy: Legal and Ethical Responsibility Gaps in Artificial Intelligence Innovation

By  David Nersessian & Ruben Mancha
Article, Fall 2020
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Will the 'Legal Singularity' Hollow Out Law's Normative Core?

By  Robert F. Weber
Article, Fall 2020
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Antitrust Overreach: Undoing Cooperative Standardization in the Digital Economy

By  Jonathan M. Barnett
Article, Spring 2019
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Bank On We The People: Why and How Public Engagement Is Relevant to Biobanking

By  Chao-Tien Chang
Article, Spring 2019
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Recent Notes

The Contribution of EU Law to the Regulation of Online Speech

By  Luc von Danwitz
Note, Fall 2020
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The Unified Patent Court and Patent Trolls In Europe

By  Jonathon I. Tietz
Note, Spring 2019
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Blog Posts

Deep-Fake, Real Pain: The Implications of Computer Morphing on Child Pornography

The proliferation of “deep-fake” internet videos—in which a person in an existing video is replaced with the likeness of another—has called into question our most basic method for perceiving the world: using our own eyes. While the definition of deep-fake transforms as the technology develops, the video technology is generally regarded as the use of machine-learning to replace the face of one individual with another. Troublingly, deep-fakes have changed the landscape of digital pornography. Advances in computer morphing software have produced a new category of child pornography: “morphed” child pornography, in which a child’s face is virtually superimposed onto the body of an adult performing sexually explicit acts. Today, the rapidly changing field of technology has created an unresolved legal question: is “morphed” child pornography protected under the First Amendment? In February of 2020, the Fifth Circuit Court of Appeals weighed in on the debate in United States v. Mecham. When Clifford Mecham Jr. took his computer to a technician for repairs, the technician discovered thousands of images depicting the nude bodies of adults with faces of children superimposed. Once notified, the Corpus Christi Police Department seized several hard drives, revealing over 30,000 pornographic photos and videos with “morphed” child pornography. The Fifth Circuit affirmed Mecham’s conviction, but remanded his case to reduce his sentence, holding that the sentencing enhancement for “sadistic or masochistic conduct” does not apply to morphed child pornography as there is no depictions of “contemporaneous infliction of pain.” While child pornography is not protected under the First Amendment, virtual child pornography, sexually explicit images created with adults who look like minors or created solely by... read more

Patent Trolls Show Immunity to Antitrust: Patent Trolls Unscathed by Antitrust Claims from Tech-Sector Companies

Patent trolls have become a prominent force to be reckoned with for tech-sector companies in the United States, and tech-sector companies’ recent failure in using antitrust law to combat patent trolls indicates a continuation of that prominence. Patent trolls have been quite the thorn in the side of tech-sector companies. The term “patent troll” is the pejorative pop culture title for the group of firms also known as non-practicing entities, patent assertion entities, and patent holding companies. These entities buy patents, not with the purpose of utilizing the patent’s technology, but with the purpose of suing companies for patent infringement. Patent trolls have made up around 85% of patent litigation against tech-sector companies in 2018. Moreover, in comparison to the first four months of 2018, the first four months of 2020 saw a 30% increase in patent litigation from patent trolls. At a high-level, antitrust law appears to be a proper tool for wrangling patent trolls. Antitrust law cracks down on anticompetitive agreements and monopolies for the sake of promoting consumer welfare. Patents are effectively legal monopolies over a claimed invention, and patent trolls use these legal monopolies to instigate frivolous patent infringement lawsuits on companies. Such lawsuits increase litigation and licensing costs for companies who can then push such costs, via increased product prices, onto the downstream consumer. In an attempt to go on the offensive, tech-sector companies have brought antitrust claims against patent trolls. The antitrust claims have operated on one of two theories. In Intellectual Ventures I LLC v. Capital One from 2017, Capital One counterclaimed antitrust remedies on the basis of a patent troll suing... read more

Apple vs. Facebook: The Demand of Growing Data Ethics

  In January, WhatsApp announced the release of a new privacy policy that allows the messenger service to share user data with its parent company Facebook. The policy has been met with public outcry and resulted in many users flocking to rival companies such as Signal. The backlash led to WhatsApp deciding to postpone the update, and it recently clarified that the new update relates to how people interact with businesses and how users will be asked to review its privacy terms. Previously, users saw a full-screen message prompting them to accept policy changes. With the new update, users will see a small banner near the top of their screen requesting them to review the company’s privacy policy, and they will then have the option to download a more detailed PDF of the update. According to the new policy, customers interacting with businesses could have their data collected and shared with Facebook and its companies. This means that customer transactions and customer service chats could be used for targeted advertising.   Facebook’s change of the WhatsApp privacy policy is fuel to its existing war over data privacy with one of the other largest tech companies, Apple. In 2014, Apple’s chief executive Tim Cook criticized companies like Facebook by saying, “If they’re making money mainly by collecting gobs of personal data, I think you have a right to be worried.” Apple also heightened its words into actions: it is introducing a new App Tracking Transparency feature to be automatically enabled in iOS in early spring, which requires every iOS app developer to explicitly request user permission to track and share... read more

Limitations on AI in the Legal Market

In the last 50 years, society has achieved a level of sophistication sufficient to set the stage for an explosion in AI development. As AI continues to evolve, it will become cheaper and more user friendly. Cheaper and easier to use AI will provide an incentive for more firms to invest. As more firms invest, AI use will become the norm. In many ways, the rapid development of AI can look like an ominous cloud to those with careers in the legal market. For some, like paralegals and research assistants, AI could mean a career death sentence. Although AI is indeed poised to alter the legal profession fundamentally, AI also has critical shortcomings. AI’s two core flaws should give those working in the legal market faith that they are not replaceable. Impartiality and Bias             AI programs excel in the realm of fact. From chess-playing software to self-driving cars, AI has demonstrated an ability to perform factual tasks as well as, if not better, than humans. That is to say, in scenarios with clear-cut rights and wrongs, AI is on pace to outperform human capabilities. It is reasonable to conclude that AI is trending towards becoming a master of fact. However, even if AI is appropriately limited to the realm of fact, AI’s ability to analyze facts also has serious deficiencies. Similar to the process by which bias can infiltrate and cloud human judgment, bias can also infiltrate and corrupt AI functionality. The two main ways that bias can hinder AI programs are called algorithmic bias and data bias. First, algorithmic bias is the idea that the algorithms underlying... read more

Waive or enforce? The Debate over Intellectual Property Issues in Covid-19 Vaccines

In December of 2020, the long-awaited coronavirus vaccines began to slowly roll out across the world. The vaccines give people some hope of taming the virus, but the logistical hurdles of the vaccines seem worrisome. The daunting task of manufacturing, delivering, and administering massive quantities of vaccines on a global scale has highlighted many intellectual property issues in the drug industry. Recently, there has been a contentious debate, with the central issue concerning how intellectual property rules will influence the availability of the Covid-19 vaccines. At the meeting of the World Trade Organization in October, South Africa, India, and many other developing countries, proposed that intellectual property rules’ application to the vaccines be waived. Specifically, the basic position of these countries is that the exceptional circumstances created by the pandemic should warrant the “exemption of member countries from enforcing some patent, trade secrets or pharmaceutical monopolies” under the organization’s trade-related intellectual property agreements. This would allow drug companies in developing countries to manufacture generic versions of the Covid vaccines. The wealthier countries, namely – the United States, the European Union, Britain, Norway, Switzerland, Japan, Canada, Australia and Brazil – opposed the proposal by suggesting that doing so would upend the “incentives for innovation and competition.” This disagreement raises a big question: will the waiver subvert the purposes of the intellectual property laws by disincentivizing innovation or will it lead to a win-win situation for all by massively increasing access to and affordability of the Covid vaccines while allowing investors and the pharmaceutical industry to get a sufficient return on the research investment? As part of coming up with a... read more

Intellectual Property Considerations for Protecting Autonomous Vehicle Technology

Autonomous vehicle technology has progressed significantly in the past decade, and a growing number of automotive and electronics organizations are working to create these self-driving vehicles. While the race to autonomy is heating up, so is the race to own IP rights and protect technological advancements in this domain. This blog will discuss the different types of intellectual property that automotive and technology companies are utilizing to protect their technological advancements in the field of autonomous vehicles. First, it is important to understand what exactly autonomous vehicles are. Autonomous vehicles are cars capable of sensing their environment and operating without human involvement. There are currently six levels of driving automation ranging from level zero, fully manual, to level five, fully autonomous. Level five has not been achieved yet, but many automotive and technology companies are racing to be the first with a fully autonomous car. To do this, “autonomous vehicles rely on sensors, actuators, complex algorithms, machine-learning systems and powerful processors to execute software.” Considering all of the technology and development that goes into producing an autonomous vehicle, it is not surprising that companies would want to protect their intellectual property. In fact, in the last several years automakers and their suppliers have significantly increased the number of patent applications filed in the United States and abroad. However, since autonomous vehicles will require automakers and suppliers to develop technology outside of the scope of their traditional product development, patents may not provide substantial protection for these inventions. Instead trade secret protection may provide more appropriate intellectual property protection for autonomous vehicle technology. Companies must therefore decide which type of... read more

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