Abstract

     The world is rapidly moving towards an age of ubiquitous globally networked communications; not just communications between and among persons, but also between the electronic devices that serve them; not just between particular government leaders, but among the vast databases and other sources of information upon which regulatory regimes depend; and not just between parties to a transaction, but among the instruments of entire economies.
     Eventually, terms such as “e-commerce” will become meaningless distinctions—just as we would not today refer to business conducted over the telephone as “telephone commerce.” As communications and commerce and inter-governmental regulatory and law enforcement efforts conducted over networks become commonplace, the notion that government has no role to play will begin to fade. Just as the “Wild, Wild, West” of 19th century America eventually needed a sheriff to establish order, secure the people’s safety, and foster predictability for business, so too will the idea of a “lawless” Internet—upon which the networked communications at issue here are currently and may always be based—seem in retrospect a shortsighted and naive concept.
     Having said that, the characteristics of the Internet and other data networks, such as their architectures, render them uniquely resistant or ill-suited to the wholesale application of existing rules and regulations. For one thing, such networks scale to virtually limitless proportions; the space of “cyberspace” is essentially infinite. As such, limited resources, a driving force behind many regulatory regimes, is effectively inapplicable. For another thing, the lack of a significant, more-or-less permanent physical presence—or at least the widely distributed “locations” of content and activity on data networks (e.g., computer hard drives and servers)—raises fundamental, perhaps insurmountable difficulties for the traditional application of jurisdictional principles and enforcement mechanisms.
     This article argues that in order to foster business certainty, service providers need to continue investing in network infrastructure and applications, and that a global legal regime that harmonizes the imposition of civil and criminal liability is required. Under existing laws, the “facilitators” of criminal or injurious activity engaged in by others may be held indirectly responsible for such activity in certain situations. As illegal or harmful content or activity moves to data networks (hereinafter referred to as the “Internet”), the difficulty in identifying and accessing the actual perpetrators of criminal or injurious activity gives rise to calls from governments, intellectual property owners, victims of crimes and others to hold Internet service providers responsible for the infringement of the rights of others. The unapologetic aim of placing such a burden on service providers is to encourage them to stop, or control, the illicit activity.
     We argue that, in fact, the imposition of overly burdensome regulation or legal liability will instead encourage service providers to reduce investment in infrastructure and new services, or charge more for the services they do provide. Nevertheless, we feel—and recent history supports the notion—that a certain level of regulation and legal liability for acts of third parties is inevitable for service providers. Thus, a regime in which service providers and others know the ground rules, and which largely leaves procedural implementation of legal requirements to service providers, can foster an environment which provides business certainty and remedies for injured parties that is acceptable to all. The service provider liability provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) have generally been successful in this respect.
     We note that the elemental framework of the DMCA has found its way to other proposed federal legislation dealing with service provider liability in the U.S. Congress and in the European Union’s regulatory bodies. With that as a starting point, we argue that the imposition of liability for service providers around the world should be harmonized, to the extent possible, both with respect to jurisdiction and type of content or activity.
     In order to derive lessons from history and to develop workable models by analogy, we first look at prior and current responses to the development of other new technologies and assess the advantages and drawbacks of those responses.

Abstract

     More than three centuries ago, Thomas Brown, a graduate of Oxford, wrote about the debt-ridden fate of London hack writers. Patron-less, they wrote for money. As Philip Pinkus details in his elaborate study of the colorful and skillful Grub Street writers, “there were arid moments when they could not squeeze a shilling from their publisher or an ounce of credit from the tavern-keeper.” Whilst their works have been at times cast as mere “doggerel” as they were not the Swifts or Popes of the era, the seventeenth century hacks revealingly dispel the dire condition of the common writer. Writing in destitute times, these writers deliberately chose subjects, which appealed to their readers, from politics to thorny themes like marriage. And although hacks like Thomas Brown led austere lives, they still dared to dream and aspired for something better. Today, Thomas Brown is the twenty-first century freelance writer. In part because they are not the Rushdies or Kings of our times, freelancers illustrate the current plight of the aspiring writer as they are subject to similarly unfavorable economic, social, and legal conditions.
     This Article examines the current legal state of freelancers as they attempt to earn a living through their writing. To do so, I will begin to explore the angst of freelancers throughout the history of the western world in relation to copyright law. I argue that copyright law, which was purported to address the needs of the author through protection of works and thus create incentives to produce and bolster societal well-being, has insufficiently met these objectives. In practice, freelancers have typically become at the behest of publishers—the real right holders—receiving a disproportionate benefit.
     The current proliferation of digital technologies expands the publisher’s exploitation powers. Increasingly, publishers exploit freelancers’ works not only in print form but also digitally, often by making them available through their own Web sites or by selling them to third party databases. Freelancers argue that they receive no notice, give no consent, and obtain no payment for the exploitation of their works through these new digital uses. In justification, publishing conglomerates seize on ambiguous contracts previously made with their freelancers to read in allowable new uses. The central issue is whether the authors’ contracts, by which copyright is transferred for publishers to print their works, contemplate electronic publication rights. For staff writers, it is a moot point, but for freelancers who base their livelihoods on each new contract, the issue is a vital one. This is not solely an issue of contract law. While contract doctrines may be material, the question of freelancers’ transfer rights necessarily implicates copyright law. Copyright law therefore requires a management system that is attuned to such intangible goods. This issue similarly concerns copyright law and its future, since the development of new technologies will continue to open up new markets of exploitation and with this, renewed challenges to copyright law.
     Such phenomena cannot be viewed as a temporary reflection of market forces, and that with time new industry customs will develop to resolve the current uncertainty in copyright conveyancing of new uses. Should such a laissez-faire approach be adopted, publishers who are in a better position of power will continue to extol a disproportionate benefit from their freelancers. More and more, publishing is not so much a “public trust” but part of a multi-million dollar industry wherein multimedia conglomerates vie for a greater share of the online market. This problem is indeed reflective of a relationship of historical imbalance now exacerbated through these new uses.
     While arguably publishers who have benefited from these new uses did not—at the onset of electronic publishing—appreciate the extent of their rights, it is unfathomable that publishers are presently informed of their rights and yet continue to charge forth with their digital publishing agenda or, conversely, terminate contracts to avoid appropriate solutions with fair compensation schemes. Indeed, while copyright laws facilitate advantageous terms for publishers, they do little for authors and, as will ultimately become apparent, little for users of such works. This conduct is unfair and calls for a re- evaluation of copyright law. While I do not believe that copyright alone is the panacea for safeguarding freelancers’ rights, I do contend that together with other mechanisms (such as government and industry forces), copyright can be an effective tool for social policy; at the very least, we should want it to be.
     In this Article, I plan to specifically study freelancers’ rights vis- à-vis publishing conglomerates that own daily newspapers or magazines. Increasingly, freelancers have turned to the courts to vindicate their rights. They allege that publishers are liable for copyright infringement, and should duly compensate them for new uses of their works. This phenomenon can be seen around the western world: Canada, the United States, the Netherlands, Germany, France, Belgium, and Austria have all experienced such claims. Interestingly, Britain has yet to litigate such a case. These mainly favorable decisions have nonetheless proven unsettling to British publishers. For instance, one of  Britain’s major publishing houses made plans to have all of its freelancers give up copyright in all future media when submitting articles for print. As a result, my objective will be to look for guiding legal principles in these other jurisdictions and advance proposals in order to help safeguard freelancers’ rights in Britain, and generally across the western world.
     There is much to glean from the current case law. It has been argued that the continental European cases are more supportive of authors’ rights as the laws stem from the droit d’auteur tradition, in contrast to the American cases which enforce publishers’ interests as these are rooted in the common law tradition. In part, it will be interesting to see to what extent this commentary is borne out in my analysis, especially when we consider Britain’s “mixed” law tradition.
     My research confirms that a reasonable body of literature has recently developed dealing with digital technologies and freelancers’ digital uses, most of which is American. Such commentators, who have mainly studied one US decision, have predominantly neglected to look beyond their domestic system. In Canada and Europe, very little legal commentary exists, and very few scholars have taken into account the history and theory of publishing practices relating to freelancers. More importantly, there is an insignificant amount of literature that analyses the British system and its treatment of freelancers in the digital era. My aim is to fill this gap. At the same time, I also recognize that there is a burgeoning body of commentary that evaluates the efficacy of copyright to cope with the blitz of digitization. At least two scholarly camps have evolved which align themselves with either the “copyright is dead” or “copyright can cope” ethos. I wish to be part of neither. I offer that copyright law can and should cope. The important proviso is that it should by no means do so alone: government, industry players, authors’ and publishers’ groups, and collective societies must cooperate in reconfiguring the copyright system.
     This Article is divided into eight sections. Section II explores freelancers’ current state of imbalance vis-à-vis their publishers in the digital milieu alongside copyright policy objectives. Section III analyses copyright’s historical underpinnings, illustrating that while copyright law was purported to protect the author, it was established for, and has been primarily exploited by, publishers. The remaining sections (IV-VII) concern freelancers’ legislative and judicial copyright treatment from both a national and international perspective. Since Britain has yet to decide a case on point, section VII examines other copyright sectors, such as the film industry, relating to conveyancing of copyright, to provide some insight in the judicial interpretation of new uses. Finally, section VIII advances preliminary proposals for re-crafting the copyright treatment of freelancers in the digital world.

Abstract

     The growth of e-commerce has been extremely rapid in recent years. By the year 2000, its worth exceeded 17 billion euro, and it is expected to reach 340 billion euro by the end of 2003. These numbers reflect the importance of this factor in the construction of the internal European market. In striving for the high level of harmonization necessary for the many issues related to this industry, it is important that there be due regard for the predictable down- stream effects and a method of systematic prioritization.      This Article will deal with a key element in the development of e-commerce initiatives within the European Union: the liability of intermediary service providers [hereinafter ISPs]. The structure of the Article will begin with a discussion of the main aims of the EU Directive dealing with these important concepts; followed by an examination of the different levels of liability to which ISPs are exposed, the areas of liability that can be touched through ISP activities, and the diverse roles that ISPs play. Next, in describing the formulations surrounding the issue, the liability of ISPs within the activities covered by the Directive will be discussed. And finally, some recommendations to improve the Directive’s effectiveness in the context of the Digital Millennium Copyright Act [hereinafter DMCA] of the United States will be discussed, as the current EU Directive draws many of its provision from the DMCA.

Abstract

     As one federal judge so astutely predicted two decades ago:

It may well be that Judge Charles E. Clark and the framers of the Federal Rules of Civil Procedure could not foresee the computer age. However, we know we now live in an era when much of the data which our society desires to retain is stored in computer discs. This process will escalate in years to come; we suspect that by the year 2000 virtually all data will be stored in some form of computer memory.

Abstract

No abstract available

Abstract

     Patent pools have a long and controversial history in the United States. Some laud patent pools as a way to further innovation and development in various industries. Supporters credit them for promoting development in areas where the presence of multiple patents may impede product development and innovation. Some of the larger industries within the United States, such as aircraft and automobile manufacturing owe their beginnings to patent pools. Recently, MPEG compression and DVD technology successfully used patent pools to help overcome their intellectual property holdups. The successful use of patent pools in these high profile products has rekindled interest in patent pools as a way of overcoming patent bottlenecks.
     In December 2000, the United States Patent and Trademark Office (USPTO) published a white paper suggesting patent pools as a possible solution to problems within the field of biotechnology. The white paper analyzed bottlenecks and accessibility problems associated with too many companies holding too many genomic patents. The USPTO claimed patent pools would not only alleviate these problems, but also confer additional advantages to pool members.
     This Comment disputes the USPTO’s proposition that the use of patent pools will benefit the biotechnology sector. Specifically, this paper evaluates the advantages and disadvantages of applying patent pools to genomic intellectual property, arriving at the conclusion that patent pools will not be as beneficial to the biotechnology sector as they were for other industries.
     This Comment will further demonstrate the unique nature of the biotechnology industry that makes patent pools inadequate for overcoming intellectual property problems within the field. Patent pools formed in the biotechnology sector face not only traditional disadvantages but also new concerns exclusive to the industry itself. Part II provides background on the biotechnology industry. Part III introduces the current intellectual property related problems facing biotechnology. Part IV of this Comment provides a background of the historical use of patent pools. Part V summarizes the advantages the USPTO believes companies in the biotechnology sector will realize if they use patent pools to solve issues arising from genomic patenting. The remainder of this Comment discusses the proposed advantages that the USPTO claims are inherent to patent pooling and identifies additional problems associated with the application of patent pools that are unique to the biotechnology industry.

Abstract

     Public and political concerns over stem cell research have simmered in the United States for more than a decade. In the face of President George W. Bush’s support of a ban on genetic tissue cloning for all purposes, the U.S. Senate refused to adopt a measure in December 2001 that would have imposed a restriction on cloning technology. Connected with stem cell research, cloning has become an alternative method of producing research material. This link has abridged progress in cloning, along with stem cell research under restrictions recently created by the president, limiting federal funding of research to work that uses a narrow field of cellular material. Cloning and stem cell research have also, perhaps more significantly, been hedged by the effects of patent law in relation to patents existing at the time of Bush’s August 9, 2001 stem cell pronouncement. The Senate’s December 2001 decision underscores the unresolved debate over patenting of biomedical and human material as it effects the practical advancement of science and research in the field of biomedicine.
     Pluripotent cells, or stem cells, have the potential of stimulating regeneration of human cells once the stem cells have been implanted in a patient. For example, with the aid of stem cells, a diabetic’s own system could produce functioning insulin-generating pancreatic cells and replace the non-functioning, disease-causing tissue. Though pancreatic cells are the most flexible human cells and currently represent great hope for curing innumerable physiological impairments, they exist in their most undifferentiated form only in early embryonic tissue. To a lesser degree, a form of these pancreatic cells are also found in adults, but the greatest potential for stem cell therapy arises from the use of the embryonic variety.
     Prior to the appearance of the nerve streak, which later becomes the spinal cord, a human blastocyst (pre-embryo) is comprised mostly of stem cells. These cells respond to chemical instructions to differentiate into skin, neural, blood, and other types of cells that construct the human body. This ability to “flip” has led researchers to believe that these cells may enable the regeneration of damaged adult tissue in every major organ and system.
     A muddled public perception of procreative privacy and stem cell research has led the current Administration to choose a nonjusticable mechanism to control the science rather than collaborating on devising appropriate legislation. The current policy limit on research funding should not be tolerated in light of the dire legal and social frustrations it is poised to cause. A more moderate response geared toward channeling this research is required, and should be done through the legislative process following objective congressional consideration of the science and its repercussions on world healthcare. In addition to the removal of the executive order, attention also should be given to amend the application of the Patent Code in the field of biomedicine so that it properly fosters the creative incentives advanced in the Constitution.
     This Comment begins by detailing the current state of the biotechnology and patent law at the time of President George W. Bush’s pronouncement and the trickle-down effects of frustration created by the combination of political and legal forces. Part III analyzes potential flaws in allowing the patenting of biomedical and human materials. Part IV proposes remedial acts available to Congress and the U.S. Patent and Trademark Office (USPTO or PTO). Finally, Parts V and VI examine the future of patenting human materials and the impact of U.S. government’s funding limits on public and private domestic researchers and the American people.

Abstract

     While the Court of Appeals for the Federal Circuit [hereinafter CAFC] has decided that large nucleic acid sequences are nonobvious when the prior art teaches only shorter sequences, the converse question remains unaddressed, i.e. whether small nucleic acid sequences are obvious in view of the larger nucleic acid sequences that comprise them? This Comment approaches the question of “prima facie obviousness” in these smaller sequences through two hypothetical patent claims that are drawn to nucleic acid oligonucleotides. This Comment will analyze seven common prior art situations, as applied to the two hypothetical patent claims, to determine whether for each prior art situation the hypothetical claims are prima facie obvious in light of the relevant case law.

Abstract

     Several years before Tim Berners-Lee ushered in the modern- day World Wide Web by developing the first WWW client, a computer scientist named Charles Freeny, Jr. obtained U.S. Patent 4,528,643 in which he described his idea for a network of “information manufacturing machines” (IMMs) that could swap digital information over telephone lines. Today, Freeny’s patent is at the center of a dispute involving a company with no material assets other than the patent and potentially tens of thousands of would-be infringers. This state of affairs exists even though a U.S district court ruled, in May 1998, that Freeny’s patent was limited to a rather narrow implementation that was inconsistent with the way in which most consumers use the Internet to download software and other materials. The reason for this seeming inconsistency lies in the fact that the district court’s interpretation of the claims was vitiated through de novo review of the issues in the U.S. Court of Appeals for the Federal Circuit.
     Strangely, the uncertainty generated by the Federal Circuit’s decision was exactly the type of outcome that the establishment of the court was supposed to avoid. When Congress created the U.S. Court of Appeals for the Federal Circuit, one of the stated goals was to ensure uniform application of the patent laws in the nation. Hence, Congress created one court with jurisdiction to hear all appeals of original patent claims to avoid regional circuit courts’ disagreement over the application of these laws. This policy was further carried over to the realm of claims construction through the Supreme Court’s decision in Markman v. Westview Instruments, Inc., in which the Court sided with the Federal Circuit and held that claims construction was a matter of law to be decided by the district court judge in the first instance. One of the reasons cited in support of this treatment was the need for uniformity in the treatment of a given patent.
     However, empirical studies by various authors, including one of the Federal Circuit’s own judges, have shown that uniformity is conspicuously absent when it comes to issues of claims construction in patent litigation. And given that claims construction lies at the heart of virtually every patent dispute, this lack of certainty is leading to ever-increasing costs to litigants (and even non-litigants for that matter), as parties are not willing to concede claims construction issues until at least one appeal has been taken. The Markman decision established an important objective: the (preferably early) resolution of key issues in patent litigation by learned judges who were deemed best equipped to  render decisions on such matters because these individuals were familiar with reading and deciphering complex legal documents. In practice though, the Federal Circuit’s de novo review of such decisions (a standard of review not explicitly prescribed by the Supreme Court’s Markman decision) has led to reversal rates of or near 40% in those cases in which claims construction is reviewed. This Casenote will illustrate, through the Interactive Gift Exchange decision, how de novo review erodes certainty about a patent claim’s meaning.

Abstract

     The sending of unsolicited commercial e-mail, or spam, to Internet users has been a major problem since the early days of the Internet. By shifting the costs involved with the sending of bulk e- mail, unscrupulous advertisers have been able to mass market their products for a nominal cost and in doing so, have attracted the wrath of individual users, Internet service providers and various interested groups, agencies and organizations. A cursory examination of some of the statistics associated with unsolicited commercial e-mail is a helpful starting point in identifying some of the problems associated with this phenomenon and its regulation. A 1998 Novell report estimated that the annual cost of spam to British and Irish business, in terms of wasted time, was in the region of £5 billion. The European Commission proposes a figure of €10 billion per year as the cost of spam to Internet users worldwide. With regard to volume, Ian Lloyd notes that some 3.4 trillion e-mails were sent in the U.S. in 1998. Of these, 2.7 trillion were commercial in nature, 96% of which could be regarded as spam. Brightmail, a spam-filter company, has noted a recent sharp rise in the volume of spam being sent, estimating a 100% increase in the first half of 2002. This trend accords with the findings of Jupiter Media Matrix, an Internet-based market researcher, who predict that 206 billion unsolicited commercial e-mails will be sent in the U.S. in 2006—this figure corresponds to 1,400 junk e- mails per Internet user, compared to 700 this year.
     The most striking aspect of these statistics is the staggering volume of unsolicited commercial e-mail being disseminated annually and there follows the additional issue of being able to calculate the size of the problem in hand. In this regard, most parties affected by the problem of junk e-mail have adopted the pragmatic mindset of concentrating their efforts on the control of the problem, rather than undertaking the near-impossible task of calculating the exact cost of it, an approach which will be followed throughout this Article. Perhaps a greater problem which emerges from the above statistics is that of the classification and definition of spam e-mail. Wye-Keen Khong  notes that the utopian definition of spam will include all e- mails which are of no benefit to the recipient from the point of view of the recipient. But this quickly becomes problematic when looked at in practical terms. The first barrier that can be identified occurs when one attempts to control ‘unsolicited bulk e-mail’ as has been attempted in Australia. By classifying spam as all e-mail that is both unsolicited and bulk in nature, restrictive regulation is likely to conflict with the rights of citizens’ free speech, where the e-mail in question is not commercial in nature. As will be seen below, this has caused legal difficulties for anti-spam legislation in the U.S., where the degree of constitutional protection for commercial speech is lower than that for political speech. Khong also notes that definitional problems subsist when the term “unsolicited commercial e-mail” is applied. He correctly notes that different jurisdictions may apply widely different interpretations to the term “commercial.” The problem is particularly acute when attempting to define traditionally public services, such as education or health care, which may have been semi-privatized and for which a fee is paid.
     One major concern of legislators within the European Union is that the negative publicity surrounding unsolicited commercial e-mail will impinge directly upon the legitimate activities of bona fide online commercial enterprises. M.Y. Schaub has argued that, in time, the direct e-mail marketing to previous customers by online businesses may become a widely accepted marketing tool, on the premise that if a consumer has obtained goods or services from a particular retailer, he may be interested to hear of future offers of similar goods or services from the same company. Further problems emerge when online purchases give rise to the divulging of the consumer’s e-mail address to third-party companies, who may or may not use the address for legitimate commercial purposes.
     Given all these problems, the author proposes the following definition. Taken from a report on Electronic Mailing and Data Protection, the Commission Nationale de L’Informatique et des Libertés, an independent French commission, defines spam as:

The practice of sending unsolicited e-mails, most frequently of a commercial nature, in large numbers and repeatedly to individuals with whom the sender has no previous contact, and whose e-mail address may be found in a public place on the Internet, such as newsgroups, mailing lists, directory or website.

Abstract

     Intellectual property is in part commercial law, comparable to laws that concern the negotiability of instruments, banking, security interests, or the interpretation of contracts. National commercial law can be contrasted with laws that prohibit dangerous or antisocial conduct, like murder, environmental pollution, or civil rights. The same contrast exists in international law. Intellectual property and other commercial treaties facilitate economic activity. Human rights treaties, environmental treaties, and the laws of war seek to impose basic norms for protection of humanity and our world.
     Intellectual property rights grant monopoly control over certain practices to the “owner” of certain classes of rights. The function of a patent law, for instance, is to prevent anyone but the owner from using or profiting from a given process. The function of a trademark is to provide exclusive control over identifying marks so that others may not use them at all. In general, intellectual property divides into two main branches. One branch protects the variety of inventive works through doctrines such as patents and copyrights. The other protects the identification of goods and the “goodwill” value associated with that identification or branding.
     The history of intellectual property laws manifests a balance between freedom to trade items and creation of limited monopoly rights. In England, concern with the free flow of goods traces back to the Magna Carta in 1215, which provided:

All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us.

Abstract

     It is economics, policy, law, and indeed, for some, religion that advanced information technology should be eventually accessible to the masses. To this end, the federal and state governments are establishing goals and guidelines for advanced information technology’s equitable deployment. Chief among the governments’ intended beneficiaries are our children, Generations X, Y, Z, and beyond. The explicit expectation, however, is that every individual and group in our society would benefit from such deployment.
     Efficiencies in the computer augmented generation, embedded in the processing and storing of information are expected to enhance education, commerce, the economy, political discourse, individual self actualization, and the management of our homes. Proponents of this utopian technological utility abound. The only difficulty, many argue, is in achieving equitable access in a society in which progress is propelled by profit and hamstrung by the inequitable distribution of wealth.
     An equally compelling issue is the unquestioned assumption that technology—as developed, deployed, and currently evolving—is beneficial to all. However, technologies are not neutral in their impact. Even when they are implemented with the most beneficent of intents, they almost always have inadvertent consequences. While many might dismiss this assessment as the lamentation of yet another Luddite, the anthropological and psychological relationship between our tools and us, and especially between us and our communications technologies, justify a more careful consideration.

Abstract

     This Article presents a brief overview of intellectual property rights and the various areas in proteomics to which IP rights may be applicable. The perfection of an IP portfolio is of interest to startups and their investors, whereas licensing agreements are of interest to manufacturers and customers. Technology transfer, including licensing and business agreements, is not covered in this Article. Instead, issues and complications related to national and overseas patent prosecution in this relatively new field will be discussed.

Abstract

     Reproductive cloning is unethical in its current technological stage. Understanding the important genetic and biological differences between an embryo produced by natural or assisted reproduction methods—such as in vitro fertilization (IVF) or intracytoplasmic sperm injection (ICSI)—versus an embryo produced by reproductive cloning is essential in arriving at this position. A number of biological processes, necessary for the development of a healthy individual and the maintenance of a robust gene pool, are bypassed by the reproductive cloning process. From a medical ethics perspective, bypassing these processes subjects the cloned individual (and its future generations) to unacceptable levels of risk. From a societal perspective, the virtue of the ends of reproductive cloning must be considered in light of biological urges, the influence of laws, and societal mores.
     The ethical concerns of reproductive cloning received substantial attention following the cloning of Dolly the sheep in 1997, and were revived by recent Clonaid’s recent claim that it had successfully cloned a human. Even though there has been considerable sensationalism and hype surrounding these reports, the popular press must be credited for at least attempting to educate the general public on the underlying science of cloning technology, especially regarding the differences between therapeutic cloning and reproductive cloning.
     To be clear on terminology, the following discussion uses the terms “ethics,” “cloning,” and “reproductive cloning” in following manner:

Ethics is a branch of philosophy dealing with what is good and bad and with moral duty and obligation. It is a system of moral principles. The argument presented below addresses both the medical ethics and broader societal ethics of reproductive cloning.

Cloning is a term describing a process of producing copies of a cell, tissue, or organism from a single cell by mitosis, the asexually producing progeny of an individual. In the research laboratory, cloning is frequently used to generate large quantities of genetic material for a wide variety of experimental applications, including research to identify disease-causing genes.

Reproductive cloning is the process by which an embryo is produced through the removal and transfer of nuclear material in a cell, and the use of a growth medium to manipulate that cell into undergoing mitosis. This process is the culmination of advancements in recombinant DNA technology and IVF methods. Reproductive cloning has been successfully employed in the lab to produce tadpoles, frogs, mice, cows, and sheep.

Abstract

     Nanobiotechnology promises a wide variety of medical applications. Some of the proposed applications include more efficient and specific drug delivery, systems microsurgic devices that find and destroy viruses or cancer cells, and inexpensive and high throughput diagnostic devices. If nanobiotechnology can fulfill its promises, its impact on society and market will be profound. One optimistic industry report projects that nanobiotechnology will have an overall market impact of nearly $300 billion within the next 12 years. Motivated by the commercial implications, business executives, industrial research scientists and venture capitalists are quickly moving nanotechnology research from academic laboratories into industrial research programs. In some areas, industrial researchers are pursuing research that may lead to commercial products in the near future. Despite its potential impact on the society, ethical issues related to nanobiotechnology are not well understood, particularly by the industrial decision-makers.  

Abstract

     What are the fields of bioinformatics and biochips? These are relatively new disciplines that have gained much recognition in the past few years. Basically, bioinformatics is the convergence of analytical and computational tools with the discipline of biological research. This has vast influence in biological research, as numerous data that are collected through laboratory experiments can be organized and analyzed, and predictions can be made to reduce the time spent in finding cures for the causes and cures of diseases. Additionally, biochips pertain to primarily semiconductor-based devices used for biological or other healthcare-related applications.
     The amount of data collected in biological research is tremendous especially in the area of genomics. On June 26, 2000, a group of scientists announced the completed survey of the human genome—the sum total of all the genes in each cell of the human body. The genome is the entire genetic blueprint for a human being written in the alphabet of chemical compounds called nucleotides: adenine (A), guanine (G), cytosine (C), and thiamine (T). A gene is the specific sequence of the nucleotides that tells the body how to create proteins that maintain cellular structure of the organism and direct the functions of the cell. The human cell has some 100,000 genes that are specific sequences of DNA and the sum total of all units of nucleotides results in a mind-boggling 3.1 to 3.2 billion base pairs in the human genome. However, only 3%–5% of the genome contains genes, which in turn produce four to five proteins. These few protein molecules control all of life’s major functions. Thus, computational technology is required in the sequencing of the database, the studying of the functions of the specific sequence (gene), and the management and dissemination of the genetic information.
     With the potential pay-off of finding a blockbuster drug or treatment, a copious amount of funding, both private and public, has gone into the development of bioinformatic tools as well as related biochip applications in the genomic space. With all the money going into these bioinformatic and biochip companies, these companies need to protect their technology. In 1999 alone, for example, 289,448 patent applications were filed in the bioinformatic field and the United States Patent and Trademark Office (USPTO) has created working groups to deal with the influx of bioinformatic applications. Although patents in these areas have increased and provided an avenue to protect one’s intellectual property in this discipline, controversy surrounds the patenting of various technologies in the field. For one, the thought of allowing a company to patent and have a monopoly over a gene sequence that has been around since the beginning of life is quite disturbing. On the other hand, the discovering and developing of a new gene-based pharmaceutical product in the United States requires years of commitment and immense capital resources, possibly in the realm of $500 million. Without the protection of the patent system, these companies would have no means of recouping these capital and time investments, and innovation would be put to a halt.

Abstract

     As of 2000, 94 million people in the United States had access to the Internet from home. It was estimated in 2003 that those with home-access spend an average of twenty-five and a half hours on the Internet each month. Like the radio and television, it did not take long for businesses to realize that the Internet was yet another medium that could expose their goods and services to potential customer around the world. Not surprisingly, businesses have come up with numerous advertising schemes suited to Internet technology.      First, there was simple banner advertising. Then came spam, keyword advertising and metatag schemes. Now Websurfers face another advertising technology: “pop-up” ads. Pop-ups are advertisements that spontaneously appear in a window on the PC user’s screen. The window containing the advertisement covers other windows that are open on the PC desktop, giving pop-up advertisers instant face-time with the user. If the consumer clicks on the pop-up ad, he or she is instantly taken to another Web site. This technology has inundated the Internet, producing both beneficial and troublesome results.
     Like all advertising, truthful pop-up advertisements keep consumers well-informed. A well-informed consumer base leads to greater competition among firms. Furthermore, in the case of the Internet, Web site owners sell advertising “space”, which lowers the cost of operating a Web site. This allows e-businesses to provide consumers with “free” software and information. But nothing is free, and pop-up ads come with a cost.
     First, pop-up ads are often annoying. Users have to constantly close the ad windows to view desired Web content. Second, e- businesses, whose Web pages are covered by the pop-up windows, are concerned that they are losing valuable customers under the theory that the pop-up advertisements are railroading consumers to other Web sites to conduct their business. With these concerns in mind, this Comment analyzes whether pop-up advertisements offend current unfair competition laws. More specifically, does pop-up ad software present courts with novel issues in unfair competition law, and if so, how should those issues be resolved? These questions will be answered by analyzing the arguments made in one of the first pop- up ad cases to reach the courts—Washington Post v. Gator, Inc. This Comment will demonstrate that ad server hosts and pop-up advertisers should be liable to trademark holders for infringement and dilution.
     Part II of this Comment offers a more detailed background of Adware technology, its specific purpose on the Internet, and sets up the factual context of this Comment by presenting the facts and parties of Washington Post v. Gator, Inc. Part III analyzes whether pop-up ads should survive a trademark holder’s claims based on the federal trademark statute. In particular, Part III discusses whether pop-up ad servers “use” trademarks that simultaneously appear underneath and beside the pop-up advertisement. It will also discuss initial interest confusion as a theory of consumer confusion stemming from pop-up ads. Part IV explores the federal unfair competition statute and if Adware constitutes a “device” used to confuse consumers. Part V of this Comment focuses on dilution and if pop-up ads fit appropriately into either a tarnishment or blurring theory. Part VII briefly discusses the First Amendment and fair use as possible defenses to potential unfair competition claims. This Comment concludes by discussing whether the underlying justifications of unfair competition laws support or condemn the use of pop-up advertisements.

Abstract

     The right of publicity is a state cause of action that forbids using another’s name, likeness, voice, or identity for commercial purposes. Although the publicity right is often grouped with torts that protect one’s right of privacy, the right is a distinct legal cause of action. The font-variant: small-caps;Restatement (Third) of Unfair Competitionfont-variant: normal; expressly safeguards an individual’s identity by treating the publicity right as a separate area of unfair competition law. Among a majority of states, the right of publicity is recognized either by statute or as a common law right. At the federal level, the Copyright Act of 1976, which protects original works of authorship reduced to a tangible medium, intersects with the publicity right by preempting any state law that offers rights equivalent to those provided by the Act. Although both copyright law and the right of publicity strive to protect artists and promote creativity, the two laws are often in conflict. The variations in each state’s requirements to maintain a cause of action under the right of publicity further complicate the issue.
     Generally speaking, a majority of the courts—including the Ninth Circuit—have held that federal copyright law does not preempt the state-based right of publicity. One of the most notable exceptions is the Seventh Circuit’s decision in Baltimore Orioles, Inc. v. Major League Baseball Players Assoc. In a recent decision entitled Toney v. L’Oreal USA Inc., the Seventh Circuit reaffirmed its view that federal copyright law preempts the right of publicity and dismissed plaintiff June Toney’s right of publicity claim. Interestingly, the court decided not to dismiss Toney’s claim under the Lanham Act before discovery, despite the weakness of her evidence. Although Toney had been clearly wronged, if she loses under the Lanham Act, she effectively will be left without a remedy. This outcome lacks a sense of equity and cries for a need to minimize successful preemption challenges.
     This Case Note examines the Seventh Circuit’s holding and rationale in Toney v. L’Oreal USA Inc. Additionally, the Case Note discusses the conflict between state-based rights of publicity and federal copyright law, and suggests that the court’s decision in Toney v. L’Oreal USA Inc. should be reversed.

Abstract

     On March 4, 2003, the U.S. Supreme Court resolved a split in the circuits, unanimously holding that the Federal Trademark Dilution Act (FTDA) requires an “actual proof of dilution,” instead of a “likelihood of dilution,” standard. Thus, in the U.S. Supreme Court case of Moseley v. V Secret Catalogue, Inc., a lingerie and adult toy store, formerly called Victor’s Secret, prevailed over the well-known Victoria’s Secret lingerie empire. The Court’s rationale was that Victoria’s Secret has not yet proven that Victor’s Little Secret actually diluted the Victoria’s Secret famous mark under the FTDA.
     This Case Note examines the FTDA and the Victor’s/Victoria’s litigation, analyzes the first Supreme Court decision on the FTDA, and makes predictions and recommendations for future FTDA litigants.

Abstract

     In this landmark case, the United States District Court of California held that the enforcement of a French order prohibiting the sale or display of Nazi propaganda and artifacts through the use of a Web site owned by the U.S.-based Internet service provider Yahoo!, Inc. (“Yahoo!”) violated the First Amendment. The court remarked that this case presented a unique context for the application of free speech principles given the simultaneous occurrence of speech in different countries through the use of the Internet.
     In reaching its conclusion, the court relied on well-settled First Amendment law to declare that while France could regulate speech occurring in France consistent with its cultural and social values, it could not regulate speech that impermissibly violates the First Amendment by imposing content or viewpoint-based regulations on speech that also occurs within U.S. borders. On this basis, the court refused to enforce the French order attempting to regulate speech— however offensive—occurring in the United States, despite its simultaneous occurrence in France.
     The court carefully explained that its decision did not involve a determination of the moral acceptability of the speech because of the sensitivities implicated in the decision of whether to enforce another nation’s orders, particularly given the repugnant nature of the speech at issue. In fact, the court showed great respect towards France’s effort to provide a mechanism to quash such speech in light of the horrific suffering inflicted by those espousing Nazi views. However, the court stated that while honorable, such efforts effectively imposed content-based regulations which, on balance, are overridden by the free speech protections built into the First Amendment.
     This Case Note examines the court’s reasoning for refusing to enforce the French order prohibiting Yahoo! from selling or displaying Nazi related propaganda and artifacts on and through the use of its Web site.

Abstract

     There are at least two commonly-held legal misconceptions when it comes to IP law: patent law is a wholly practical area of law created entirely by legislation; and that jurisprudence and the study of legal philosophy and justification is an exercise in esotericism, devoid of any practical significance to those in the practice of law. It is submitted that law and jurisprudence are inextricably connected: “[i]mplicit in every decision where the question is, so to speak, at large, is a philosophy of the origin and aim of law, a philosophy which is however veiled, is in truth the final arbiter.”
     This Article attempts to correct these misconceptions. Perhaps due to the fact that copyrights are more readily linked to First Amendment rights of speech, copyright law has generated some discussion on natural rights and natural law-type theories. Comparatively, patent law seems to be a poorer cousin as far as any discussion on natural rights or natural law jurisprudence is concerned. It is hoped that this Article will go some way towards remedying this deficiency.
     As a prologue, it is appropriate to set out some methodology to determine which is the most satisfactory justification of the patent system since this Article seeks to develop a coherent justification of the patent system.
     In the first part, I will argue that a utilitarian justification of the patent system is not a viable explanation. As a theory, utilitarianism holds that all actions are justifiable if they promote the common good. Another interpretation of this theory holds that an action is right or wrong, depending on the consequences of that action. Utilitarians justify the patent system because it tends to produce and promote innovations and inventions. I will examine the cracks in the logic of a purely utilitarian justification of patent law, and I argue that, if one is a deontologist,one cannot at the same time accept utilitarianism as a justification for the patent system.
     The second part of this Article describes and critiques the natural rights theories which have been increasingly advanced as a justification of intellectual property rights, namely (1) the labor theory/just desserts theory propounded by the English philosopher, John Locke, and to a lesser degree, (2) the personality theory articulated by Georg Hegel. I will argue that a theory that focuses on natural rights without highlighting natural duties is, at best, incomplete. At the worst, a natural rights theory runs into the same problem of justification—one key criticism being the argument that “rights themselves need to be justified somehow, and how other than by appeal to the human interests their recognition promotes and protects?” This seems to be the uncontrovertible insight of classical utilitarians.
     In the third part, I will argue that despite its historical origins, and perhaps, against the wishes of some of America’s founding fathers, U.S. patent law contains fertile grounds for the development of a natural law jurisprudence. I will propose a third alternative justification for the patent system: its justification lies in the foundations of justice, as embodied in classical natural law.
     There have been some attempts towards introducing natural law into the intellectual property law scene, but mainly in the context of copyright and on the basis of a “no-harm” principle advocated by John Locke. I will explore the classical natural law theories of property, as enunciated by St. Thomas Aquinas and Hugo Grotius, and argue that those theories (in particular, Aquinas’s theory) are an advance over pure natural rights or utilitarian theories or even the abovementioned Lockean natural law theory. I will argue that the idea of justice under classical natural law is not merely passive but pro-active because a natural law approach towards patent law would seek to strike a balance between recognition of the rights of an individual inventor and its duties towards his community.
     Finally, I will test my natural law hypothesis against the hard questions raised in patent law which have not been adequately answered by any of these schools of thought and submit that a classical natural justification is the best way forward for the U.S. patent system.