JOLT Digest

Dear Readers -

Digest is back! Our site has been down the past 3 weeks due to a server crash, but thanks to our wonderful online editors, it is back up and running. We appreciate your patience and apologize for any inconvenience our downtime may have caused. We will be publishing all of the content we have produced during our time offline in the next couple of days.

Thank you for continuing to read the site – we look forward to a great Fall semester filled with the same quality of content you have come to expect.

Best,

Digest Masthead

Harvard Journal of Law and Technology, vol. 22.2

The Digest Staff is thrilled to announce that the newest volume of the Harvard Journal of Law and Technology, volume 22.2 is now available online, featuring:

Exclusion and Exclusive Use in Patent Law
Adam Mossoff
The conventional wisdom is that the definition of patents as property has been long settled: unlike land and chattels, which secure the traditional “bundle” of rights, patents secure only a negative right to exclude. Professor Mossoff, after exploring early case law and the historical development of patent law, finds that for much of its history a patent was defined by Congress and courts in the same conceptual terms as property in land and chattels. The Article concludes by showing how this conceptual break is affecting the current debates over patent doctrine.

Brand Spillovers
Eric Goldman
Professor Goldman’s article focuses on comparing the economic effects and legal treatment of “brand spillovers” in the online world and the physical world. Brand spillovers occur when consumer interest in a trademark increases the profits of third parties who do not own the trademark. Although online brand spillovers have been the source of heated debate and numerous lawsuits, similar brand spillovers in the physical world (for example, the placing of generic products next to branded products in grocery store aisles) have been permitted by trademark law. Professor Goldman argues that online brand spillovers, like their offline counterparts, should be permitted because such spillovers help to reduce consumer search costs.

Patent Law Uniformity?
Lee Petherbridge
Professor Petherbridge provides an empirical response to a recent article in the Northwestern University Law Review by Professors Nard and Duffy that argued in favor of dismantling the Federal Circuit because its creation has resulted in a lack of diversity in patent jurisprudence, which in turn has seriously suppressed the development of the law. Professor Petherbridge shows that across a number of variables the evidence does not support the Nard and Duffy conclusion that there is a lack of diversity in Federal Circuit patent jurisprudence.

Regulating Search
Viva R. Moffat
As search engines become increasingly powerful gatekeepers of the Internet, academics have begun to debate whether regulation directed at search engines is necessary. Professor Moffat evaluates the initial scholarship and finds that the current debate over search-engine regulation is bipolar, with commentators either advocating a market-based approach or full agency regulation. Professor Moffat proposes a compromise focused on encouraging the federal judiciary to develop a common law to handle those disputes that are unique to search engines.

Data Mining and Antitrust
Douglas M. Kochelek
This Note explores how antitrust law should deal with the rise of data mining, focusing specifically on the potential for price discrimination by online entities.

Protecting Privacy Through a Responsible Decryption Policy
Andrew J. Ungberg
This Note argues that absolute Fifth Amendment protections for computer passwords and encryption keys will ultimately do more harm than good to the cause of privacy by encouraging the government to adopt increasingly more invasive surveillance techniques in order to enforce the law.

Dear Digest Readers,

The Digest will be taking a short break in the coming weeks as our Staff Writers prepare for final exams. We will be back shortly in mid-May with the same quality and coverage you’ve come to expect.

In the meantime, you can now follow JOLT Digest on twitter! We will tweet each time we put up a new post and link to content that may be of interest to our readers. We invite you to follow us at @JOLTdigest!

We look forward to a great summer of law & technology news! Stay tuned!

- The Digest Staff

By Evan Kubota

The JOLT Digest is proud to reintroduce the Flash Digest! Flash Digest posts will provide brief summaries of recent news and developments in law and technology, along with links to more in-depth discussions. Flash Digest will allow us to expand our coverage to legal issues that have not yet reached the courts or passed through Congress, but that will likely be of interest to our readers. We have posted Flash Digests in the past, but we hope to make them a more regular occurrence. We hope you find Flash Digest interesting and informative!

- The Digest Staff Editors

Congress Holds Hearing on Digital Piracy

Losses from piracy of copyrighted movies and music amount to $20 billion each year, industry executives and House members asserted at a Congressional field hearing in Los Angeles on Monday. The New York Times describes the panel as recounting “what appeared to be a largely failed effort to stem the illegal sale of copyrighted material in an increasingly wired world.”

Associated Press Declares Policy of Protecting its Content from “Misappropriation”

As reported in the New York Times, the Associated Press has declared it will pursue “misappropriation” and infringement claims against those who do not obtain permission before using its headlines and content. Ars Technica explains that misappropriation, a doctrine developed by the Supreme Court in the 1918 case of International News Service v. Associated Press, effectively grants a short-term monopoly over “hot news” to agencies. Now, more than ninety years later, AP is suing competitor All Headline on a misappropriation theory, alleging that All Headline exploits AP’s stories by rewriting and publishing them without doing its own reporting. The case, Associated Press v. All Headline, is pending in the Southern District of New York.

Proposed Legislation Would Authorize the President to Declare “Cybersecurity Emergency” and Close Portions of the Internet

The Cybersecurity Act of 2009, a bill proposed by Senators Rockefeller (D-W.Va.) and Snowe (R-Maine) last Wednesday, states that the President may “declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal government or United States critical infrastructure information system or network.” The Act also requires the President to designate an agency to coordinate the “response and restoration” of any such network affected by a “cybersecurity emergency declaration.” In a statement, Senator Snowe called the legislation necessary to avoid risking a “cyber-Katrina.” Mother Jones reports that advocacy groups, including the Electronic Frontier Foundation, have raised concerns about the proposed legislation’s effect on Internet users’ privacy rights.

Harvard Journal of Law & Technology Vol. 22.1 

Happy New Year!  The Digest Staff has returned to start the new year, and we’re thirlled to begin our coverage with the newest volume of the Harvard Journal of Law & Technology! Volume 22.1 is now available online, featuring: 

Rethinking Broadband Internet Access
Daniel F. Spulber & Christopher S. Yoo
Professors Spulber and Yoo discuss the regulation of broadband Internet access and the reasons why the traditional model based on telecommunication regulation is not applicable to broadband internet using a branch of mathematics called graph theory. Spulber and Yoo argue that the failure to properly adjust to this fact has led to current issues regarding the availability of last-mile broadband systems, most notably the recent conflict between the FCC and Comcast.

The Layers of Obviousness in Patent Law
Jeanne C. Fromer 
Professor Fromer reviews recent developments in the obviousness standard for patents arguing that the examination for obvious should be layered – the court should consider both the obviousness of the conception and the obviousness of the reduction to practice of the invention. She then discusses the implication of such a layered process on patentability of inventions in specific subject areas such as biotechnology and software.

Finding a Cure: The Case for Regulation and Oversight of Electronic Health Records Systems 
Sharona Hoffman & Andy Podgurski 
In the past couple of years, both Congress and the President have promoted programs that would incentivize the creation of electronic health records systems that would allow doctors easy access to all of a patient’s medical background. Professor Hoffman and Podgurski argue both that these systems should and will be created.  However, they also propose a system of regulation not only to ensure the privacy and security of patient records, but to make certain that the systems are reliable and contain accurate information.

Electronically Manufacture Law
Katrina Fischer Kuh
The advent of legal databases such as Westlaw and Lexis have substantially altered the way that legal research is performed. Professor Kuh uses principles of cognitive psychology to examine several specific differences in the approach to legal research and the consequences that these changes will have on the practice of law.

Toward a Culture of Cybersecurity Research
Aaron J. Burstein
Burstein argues that while cybersecurity researchers are making great stride in the protection of data, the progress in this field is actually being inhibited by statutory and informal measures aimed at protecting individual privacy. Burstein promotes the creation of research exception to federal privacy laws so that cybersecurity researchers may have access to data that improve security for all. 

Making Available as Distribution: File Sharing and the Copyright Act
John Horsfield-Bradbury
Student Note discussing several recent copyright cases, specifically, whether simply making a copyrighted work available, but not actually transferring it, counts as infringement.

The Web Difference: A Non-CDA-230 Rationale Against Liability for Online Reproduction of Third-Party Defamatory Content
Matt Sanchez 
Student Note arguing that, regardless of how courts and lawmakers end up interpreting the Communications Decency Act, internet speakers should be immune from liability for reproducing defamatory content. The Note supports this through an analysis of the unique nature and benefits of online speech and reproduction.