JOLT Digest

The Harvard Journal of Law & Technology recently released its Fall 2011 issue, now available online.  Jane Yakowitz, author of “Tragedy of the Data Commons” has written an abstract of her article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Tragedy of the Data Commons
Jane Yakowitz

The data that fuels most of the quantitative health and policy research in this country is publicly available data that has undergone some sort of anonymization process. This is the data commons, and unwittingly, we are all in it. Our tax returns, medical records, and school records, among other things, seed its pastures and facilitate a wide range of empirical studies.

In theory the data commons gives us the best of both worlds by allowing researchers to test hypotheses and produce generalizable results without exposing anybody’s personal information. But in practice, we all shoulder some risk that a bad actor might use auxiliary information to reidentify us, and discover our private information. The looming policy question, raised by Paul Ohm and the Federal Trade Commission, is whether current data privacy policies in the United States strike the right balance between the risks of reidentification attacks and the utility of data-sharing. Paul Ohm and other scholars believe the risk is too high, that we need stronger privacy laws to protect data subjects. This article comes to the exact opposite conclusion: the utility of public research data is so great, and the realistic risks so small, that the law should foster the sharing of anonymized data.  (more…)

The Harvard Journal of Law & Technology recently released its Fall 2011 issue, now available online.  Sonia K. McNeil, author of “Privacy and the Modern Grid” has written an abstract of her article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Privacy and the Modern Grid
Sonia K. McNeil

The American electrical grid is in bad shape. Because of chronic underinvestment in research and development, a digital nation now relies on an infrastructure created before the invention of microprocessors that is beginning to show its age. Power quality problems and system disturbances cost the United States nearly $150 billion each year, regional blackouts aggravate and endanger millions of residents, and structural insecurities tempt hackers and terrorists around the globe.

To address these problems, the modern grid is being transformed from an outmoded, centralized network dominated by energy producers to a flexible, decentralized system that is more secure, more reliable, and better able to respond to and interact with consumers. The updated “smart grid” will permit “a two-way flow of electricity and information” in near-real time, creating an adaptive, interactive energy matrix. For consumers, the most visible part of the smart grid will be “smart meters,” advanced electrical meters that collect highly granular data on individual electricity consumption and allow users to monitor and remotely control their electrical use in response to fluctuating energy prices. At the level of an individual home, the goal is to use data to encourage consumers to conserve energy by showing them its cost as they consume it, rather than days or weeks later in an energy bill. System-wide, this information will be harnessed to spur economic growth, conserve the environment, increase electrical service reliability, strengthen national security, and develop derivative technologies.  (more…)

The Harvard Journal of Law & Technology recently released its Fall 2010 issue, now available online.  John M. Golden, author of “Innovation Dynamics, Patents, and Dynamic-Elasticity Tests for the Promotion of Progress” has written an abstract of his article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Innovation Dynamics, Patents, and Dynamic-Elasticity Tests for the Promotion of Progress
John M. Golden

This article develops a model for innovation dynamics and studies its implications for technological development and policies to promote innovation.  The model generates a diverse array of trajectories for technological progress as a function of time.  Among the forms of possible trajectories, trajectories featuring linear or exponential growth are only special cases.  The model suggests that growth according to a supralinear power law might be more common: i.e., the cumulative amount of innovation might frequently be expected to grow like the quantity t^z, where t is a measure of time and z is a positive exponent.

The model also suggests that, under a variety of circumstances, whether a given incremental policy change accelerates or decelerates technological progress will be determined by a “dynamic-elasticity” or “double-ratio” test involving comparison of percentage changes in model parameters.  The existence of such double-ratio tests might suggest that patents’ effects on innovation are even more sensitive to technologic and industrial circumstance than has commonly been appreciated. (more…)

The Harvard Journal of Law & Technology recently released its Fall 2010 issue, now available online.  Aaron Perzanowski, author of “Unbranding, Confusion, and Deception” has written an abstract of his article for the Digest, presented below.

- The Digest Staff

JOLT Print Preview: Unbranding, Confusion & Deception
Aaron Perzanowski

Unbranding is the practice of eliminating or selectively reducing the use of a brand in response to unfavorable consumer opinion. Faced with the reality of a deeply damaged brand, many firms seek a fresh start. Rather than take steps to repair their public image, they create a new one. Although unbranding threatens to confuse and mislead consumers about the source and characteristics of goods and services, the legal remedies available to consumers to address these harms are limited.

When a brand suffers from strong negative consumer perceptions, it transforms from a valuable asset to a major liability. Just as brands can function as repositories of consumer goodwill, reflecting favorable public sentiment, they can also represent badwill, negative associations in the minds of consumers. Given the expense of jettisoning an established brand and launching a new one, unbranding is generally a rational strategy only when an existing brand is deeply and widely unpopular, perhaps because the firm has produced dangerous products or engaged in illegal activities. Tellingly, Blackwater, Philip Morris, and WorldComm have all employed unbranding strategies in recent years. (more…)

The Digest Staff is thrilled to announce that the newest volume of the Harvard Journal of Law and Technology, volume 23, is now available online, featuring:

Timothy Holbrook, “Equivalency and Patent Law’s Possession Paradox”
This paper explores the paradox of the doctrine of equivalents — that the patentee is afforded protection for that which she did not possess — and offers two possible means of reconciling it: first, that patentees should only be protected under the doctrine of equivalents for changes in technology that arise from outside their field of technology (the status quo); and second, that patentees should be protected by the doctrine of equivalents if the patent’s disclosure would enable the asserted equivalent at the time of infringement, thus allowing the patent’s disclosure to grow over time.  This paper advocates that the second approach offers a better fit with the doctrine as traditionally understood.

Oren Bar-Gill & Rebecca Stone, “Mobile Misperceptions”
This Article studies three central design features of cell-phone service contracts, arguing that rational-choice explanations of these contractual features fall short and that they are better understood as a rational market response to the imperfect rationality of cell-phone users. After verifying the theoretical claims empirically, this Article finds that the identified consumer mistakes and providers’ responses to these mistakes generate substantial welfare costs.  As a solution, this Article proposes mandated disclosure of use-pattern information, including average-use and, more importantly, individual-use information that, by directly targeting the identified consumer mistakes, can enhance efficiency and increase consumer surplus in the cellular service market.

Natalie Ram, “Assigning Rights and Protecting Interests”
This Article proposes a new model for adjudicating disputes between individuals providing tissue for research and researchers accessing that tissue.  Drawing on intellectual property doctrines, this Article advocates the creation of “informational property,” a property right to one’s own genetic information. Guided by a framework of the interests of tissue providers, researchers, and society in the control and use of human tissue in research, this Article advocates an informational property approach modeled on Creative Commons licensing and reinforced by enhanced privacy protections in tort.

Kevin Werbach, “Higher Standards: Regulation in the Network Age”
This Article proposes that the Federal Communications Commission (FCC) remake itself as a standards organization, making its mission to catalyze the adoption of open standards that promote its regulatory objectives.  This Article then explains how a standards-based approach offers a better solution to the network issues faced by the FCC, such as network management practices of broadband access providers and unlicensed wireless devices adjacent to broadcast television frequencies.

Jon Darrow, [“The Neglected Dimension of Patent Law's PHOSITA Standard”] (Student Note)
Modern invention bears little resemblance to inventive activities of the nineteenth century.  Today, invention typically involves teams of highly-trained specialists provided with funding and equipment, who devote months or years to developing an invention. As a result, when judges look at a patent from the perspective of a “person having ordinary skill in the art,” the “art” they consider is the art of innovation.  This is a shift from early patent jurisprudence, however, which considered patents from the perspective of practitioners. The change has resulted in the withholding of patents on deserving inventions.  By restoring the traditional meaning to the word “art,” patent law can appropriately motivate socially valuable inventions that are currently being neglected.

Chris Johnson, [“Leveraging Technology to Deliver Legal Services”] (Student Note)
This paper examines technological solutions and tech-enabled business models for the delivery of legal services to those with limited incomes and specific needs. In particular, it considers several existing websites as case studies, and then proceeds to discuss the potential future commoditization of legal services and the coming transformation in the legal profession.

Sarah Sorscher, [“A Longer Monopoly For Biologics?: Considering the Implications of Data Exclusivity as a Tool for Innovation Policy”] (Student Note)
Analyzing the Access to Life Saving Medicines Act, currently under consideration by Congress, explaining how it will create a regulatory pathway for follow-on biologics that will likely include an extended period of data exclusivity for innovator brands and exploring the conflicts between and overlap of patent protection and data exclusivity protection, focusing especially on the impact of these new protections on the market for follow-on biologics.