JOLT Spring 2009 Print Issue

Digest Commentary Digest Notes First Amendment
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.