Critical infrastructures remain vulnerable to cyber attack despite a raft of post-9/l] legislation focused on cyber security in critical infrastructures. An emerging discipline known as the "economics of information security" may provide a partial solution in the form of a hypothetical market that trades "exploit derivatives, " a modified futures contract tied to cyber security...
As the 110th Congress begins to flex its atrophied oversight muscle, it bears remembering that, in the ongoing debate over who should have the authority to authorize and oversee foreign intelligence surveillance programs, someone must, and the existing mechanisms, in particular, the Foreign Intelligence Surveillance Act of 1978 ("FISA') and its related procedures, are no longer...
After years of failing to meet expectations, both internet and satellite radio programming are finally challenging terrestrial radio in a manner similar to cable's challenge to broadcast television a generation earlier; these new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. Broadband technology enables one to...
U.S. antitrust enforcers see little scope for antitrust policy to mitigate the consequences of imperfect IP policies. They are reluctant to intervene in what is perceived to be the sphere of IP policy and take the view that any competitive concerns are better remedied by changes in the IP policy. This trend corresponds with shielding antitrust policy away from fields occupied by...
Among the many cutting edge technologies law enforcement agencies increasingly covet is radio frequency identification ("RFID"). Researchers predict RFID will become the most pervasive computer technology in history. Among the more extraordinary and controversial government uses of RFID-and the focus of this Paper-include implantation of subdermal RFID transmitters. Privacy...
First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also...
One of the most pervasive and recurrent issues that legal theory has had to deal with is the very concept of law. And one of the most puzzling questions that cyberspace lawyers have been jacing is where and in which form law is to be found on the Internet. This essay seeks to build a bridge between these two issues. The main argument is that, on the Internet and more specifically...
Copyright law is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm claim that copyright law should be based upon redistribution, rather than efficiency. Redistributive justice goals intrinsically play a role in the design of the copyright commons, but whether copyright law should itself serve as the...
In eflay, Inc. v. MercExchange, L.L.C., the Supreme Court declared that an injunction granted to stop and prevent patent infringement is like any other injunction, and therefore should only issue after consideration of traditional equitable factors. It is not yet clear whether this decision has truly changed existing patent law, but one thing is certain injunctions are no longer...
The doctrine of equivalents is arguably one of the most important aspects ofpatent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds of the patent. One of the greatest challenges courts and legislatures therefore face in patent law is to create rules for determining patent...
The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between persons residing in the United States and persons believed to be affiliated with terrorist organizations. A firestorm of controversy emerged...
As the fastest-growing technology company in the United States, Google has been at the center of some of the most contentious technology policy disputes of recent years. In the federal courts, these disputes focus on the fair or noncommercial use of copyrighted work and trademarks on the Internet. In Congress, Google is leading the charge in favor of laws protecting innovative...
While the presidential race primarily focused on the economy, the Iraq war, and the rising cost of health care, President Barack Obama must now show that he is ready to set the technology policy agenda of the United States for the next four years because our national technology policy will have a large effect across all areas of national policy. Spurring technological innovation...
If President Barack Obama's new administration really wants to embrace the potential of Internet-enabled government transparency, it should follow a counter-intuitive but ultimately compelling strategy: reduce the federal role in presenting important government information to citizens. Today, government bodies consider their own Web sites to be a higher priority than technical...
Today's digital devices allow users to store an astounding amount ofpersonal information and data of all types. People now favor hard drives and e-mails over file cabinets and letters. When conducting criminal investigations in today's high-tech world, forensic analysts may compare digital fingerprints rather than physical ones. Investigators must obtain search warrants before...
The purpose of patent policy is to balance the incentive to invent against the ability of the economy to utilize and incorporate new inventions and innovations. Substandard patents that upset this balance impose deadweight losses and other costs on the economy. In this paper, we examine some of the deadweight losses that result from granting substandard patents in the United...
Despite its three hundred year existence, the American newspaper is being devastated as the Internet becomes the go-to source for news. Despite the rise in Internetjournalism, the sharp increase in online readership, and the precipitous drop in the number of print newspapers, policymakers still have a dismissive attitude toward alternative news sources. Such attitudes must change...
This Article examines the role that law has played in entrenching incumbents in the communications industry, with a particular focus on broadband services. Earlier this decade, several new "revolutionary" broadband technologies threatened to fundamentally disrupt industry structures. This revolution, however, never arrived. The reason, I argue, is that industry consolidation...
This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines...
This Article examines the underappreciated role of consent and refusal in copyright law’s fair use inquiry. As a matter of black letter law, the nature and circumstances of a copyright holder’s refusal to consent to a use are irrelevant to whether a particular use is fair. This “standard view” effectively treats all situations short of affirmative consent—such as silence or...
Traditional public choice theory postulates that interest group representation is primarily responsible for the passage of legislation in a variety of areas. Intellectual property scholars have largely embraced public choice theory as accurately explaining the enactment of intellectual property laws, agreeing both that the general assumptions of the public choice model are met...
Studies of the costs and benefits of university patent ownership have, to date, focused on life sciences technology. Increasingly, however, many of the most lucrative university-owned patents relate to computing and telecommunications, not genes or pharmaceuticals. In 2007, a University of California spin-off named Eolas settled a patent suit with Microsoft for $100 million. In...
Hackers all over the world exploit our reliance on computer systems to take American trade secrets. The response will likely be a dramatic strengthening of trade secret law. Congress has already passed statutes strengthening trade secret law, and more bills are pending. The alarmist rhetoric on cyber-risks to trade secrets, however, ignores the most dangerous risk. By over...
The rapid evolution of digital technologies has hurled to the forefront of public and legal discourse dense social and ethical dilemmas that we have hardly begun to map and understand. In the near past, general community norms helped guide a clear sense of ethical boundaries with respect to privacy. One does not peek into the window of a house even if it is left open. One does...