Yale Journal of Law and Technology最新文献

{"title":"The Virtues of Moderation","authors":"James Grimmelmann","doi":"10.31228/osf.io/qwxf5","DOIUrl":"https://doi.org/10.31228/osf.io/qwxf5","url":null,"abstract":"TL;DR — On a Friday in 2005, the Los Angeles Times launched an experiment: a “wikitorial” on the Iraq War that any of the paper’s readers could edit. By Sunday, the experiment had ended in abject failure: vandals overran it with crude profanity and graphic pornography. The wikitorial took its inspiration and its technology from Wikipedia, but missed something essential about how the “the free encyclopedia that anyone can edit” staves off abuse while maintaining its core commitment to open participation.The difference is moderation: the governance mechanisms that structure participation in a community to facilitate cooperation and prevent abuse. Town meetings have moderators, and so do online communities. A community’s moderators can promote posts or hide them, honor posters or shame them, recruit users or ban them. Their decisions influence what is seen, what is valued, what is said. They create the conditions under which cooperation is possible.This Article provides a novel taxonomy of moderation in online communities. It breaks down the basic verbs of moderation — exclusion, pricing, organizing, and norm-setting — and shows how they help communities walk the tightrope between the chaos of too much freedom and the sterility of too much control. Scholars studying the commons can learn from moderation, and so can policy-makers debating the regulation of online communities.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125832435","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Private Life of DRM: Lessons on Information Privacy from the Copyright Enforcement Debates","authors":"Rebecca Wexler","doi":"10.2139/SSRN.2735430","DOIUrl":"https://doi.org/10.2139/SSRN.2735430","url":null,"abstract":"This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of substantive concepts of information privacy interests. This observation suggests that claims on information privacy are unstable, and may unintentionally bolster the positions that their proponents intend to reject. The Article cautions against adopting new definitions of privacy interests for the digital age, and in favor of focusing policy choices on who uses new technologies and for what ends.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"200 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132594037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Lot More than a Pen Register, and Less than a Wiretap: What the Stingray Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities","authors":"Stephanie K. Pell, Christopher Soghoian","doi":"10.31228/osf.io/cwvk8","DOIUrl":"https://doi.org/10.31228/osf.io/cwvk8","url":null,"abstract":"In June 2013, through an unauthorized disclosure to the media by ex-NSA contractor Edward Snowden, the public learned that the NSA, since 2006, had been collecting nearly all domestic phone call detail records and other telephony metadata pursuant to a controversial, classified interpretation of Section 215 of the USA PATRIOT Act. Prior to the Snowden disclosure, the existence of this intelligence program had been kept secret from the general public, though some members of Congress knew both of its existence and of the statutory interpretation the government was using to justify the bulk collection. Unfortunately, the classified nature of the Section 215 metadata program prevented them from alerting the public directly, so they were left to convey their criticisms of the program directly to certain federal agencies as part of a non-public oversight process. The efficacy of an oversight regime burdened by such strict secrecy is now the subject of justifiably intense debate. In the context of that debate, this Article examines a very different surveillance technology — one that has been used by federal, state and local law enforcement agencies for more than two decades without invoking even the muted scrutiny Congress applied to the Section 215 metadata program. During that time, this technology has steadily and significantly expanded the government’s surveillance capabilities in a manner and to a degree to date largely unnoticed and unregulated. Indeed, it has never been explicitly authorized by Congress for law enforcement use. This technology, commonly called the StingRay, the most well-known brand name of a family of surveillance devices, enables the government, directly and in real-time, to intercept communications data and detailed location information of cellular phones — data that it would otherwise be unable to obtain without the assistance of a wireless carrier. Drawing from the lessons of the StingRay, this Article argues that if statutory authorities regulating law enforcement surveillance technologies and methods are to have any hope of keeping pace with technology, some formalized mechanism must be established through which complete, reliable and timely information about new government surveillance methods and technologies can be brought to the attention of Congress.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116804065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Consent, User Reliance, and Fair Use","authors":"K. Hickey","doi":"10.2139/SSRN.2391427","DOIUrl":"https://doi.org/10.2139/SSRN.2391427","url":null,"abstract":"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 acquiescence from a copyright holder — as equivalent to an express refusal. Despite the standard view, a close analysis of the case law reveals that some courts implicitly consider consent-based factors in fair use decisions. Other courts, however, adhere strictly to the standard view and disregard consent across the board. Is there a principled basis to consider the nature of consent and refusal in the fair use analysis?This Article argues that consent, properly conceived, has an important role to play in certain categories of fair use cases. In particular, consent-based considerations should not be disregarded when they are relevant to the traditional fair use factors and fair use’s underlying goal of promoting socially-valuable uses. To make this argument, the Article creates and analyzes a model of the consent-seeking interactions between copyright holders and users. It concludes that a literal application of the standard view neglects important user reliance interests and fails to deter costly opportunistic behavior. The nature of the copyright holder’s consent or refusal, therefore, has a critical role to play in situations involving user reliance interests, such as cases of “partial consent,” bad faith strategic behavior, and digital opt-out systems. In these cases, consideration of consent and refusal accords with the traditional fair use factors and the doctrine’s history as an “equitable rule of reason,” and operates to creates a broader scope for fair use.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128823420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reverse Engineering Informational Privacy Law","authors":"Michael Birnhack","doi":"10.2139/SSRN.2002757","DOIUrl":"https://doi.org/10.2139/SSRN.2002757","url":null,"abstract":"Is technology-neutral legislation possible? Technological neutrality in legislation is often praised for its flexibility and ability to apply to future technologies. Yet, time and again we realize that even if the law did not name any technology, it was nevertheless based on an image of a particular technology. When new technologies appear, they expose the underlying technological mindset of the existing law. This article suggests that we read technology-related laws so to uncover their hidden technological mindset so that we can better understand the law and prepare for the future. Reverse Engineering the law is an interpretive mode, tailored to uncover the technological layer of the law.After locating the discussion within the paradigm of law & technology, I unpack the meaning of technology-neutral legislation: I point to three possible justifications thereof: flexibility, innovation and harmonization. The article then suggests an initial typology that offers a range of legislative choices, richer rather than a binary all-or-nothing choice, and explains the methodology of reverse engineering the law.The next step is to challenge the claim for neutrality in the context of informational privacy. Proposals to amend the law are on the tables of policy-makers in the United States and in the EU. I focus on the current global engine of data protection law, the EU 1995 Data Protection Directive. The reverse engineering of the Directive indicates that it is more technological-neutral than we might have expected from an instrument that was composed in the early 1990s based on laws from the early 1970s. Nevertheless, the close reading reveals the underlying technological mindset and assumptions. I conclude that pure technologically neutral legislation is, to a great extent, a myth.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114732508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Therasense v. Becton Dickinson: A First Impression","authors":"Jason A. Rantanen, Lee Petherbridge","doi":"10.2139/SSRN.1859764","DOIUrl":"https://doi.org/10.2139/SSRN.1859764","url":null,"abstract":"This purpose of this essay is to provide an early analysis of some of the most substantial law and policy concerns raised by the very recent en banc decision of the United States Court of Appeals for the Federal Circuit in the now famous Therasense v. Becton Dickinson case. The doctrinal issue central to the case is inequitable conduct, a judicially created doctrine developed to punish patent applicants who behave inappropriately during patent prosecution, the ex parte process of patent creation. The core thesis of this essay is that Therasense could have a much more significant, complex, and nuanced impact on the legal infrastructure of American innovation than the opinion for the court appears to appreciate. In view of these complexities, the court may be too sanguine in its expectations for the instrumental effect of its decision, a decision that holds the potential to erode some of the core pillars upon which the legal infrastructure of American innovation is built.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114610712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Individual Inventor Motif in the Age of the Patent Troll","authors":"C. Cotropia","doi":"10.2139/SSRN.1434921","DOIUrl":"https://doi.org/10.2139/SSRN.1434921","url":null,"abstract":"The individual inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the individual inventor's image and, in turn, caused Congress, the United States Patent and Trademark Office (USPTO), and the courts to not be as concerned with patent law's impact on the small inventor. This Article explores whether there has been an attitude change by looking at various sources such as congressional statements and testimony in discussions of the recent proposed patent reform legislation, the USPTO's response to comments on two recently proposed sets of patent rules, and recent Supreme Court patent decisions. These sources indicate that the rhetoric of the motif has remained unchanged, but its substantive impact is essentially nil. This investigation also provides a broader insight into the various governmental institutions' roles in patent law.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133646831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Warranties and Disclaimers in the Electronic Age","authors":"R. Hillman, I. Barakat","doi":"10.2139/SSRN.1154121","DOIUrl":"https://doi.org/10.2139/SSRN.1154121","url":null,"abstract":"This paper reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the paper reviews the reasons why consumers generally do not read their e-standard forms despite the prevalence of disclaimers and other adverse terms. We then argue that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. We contend that improved disclosure of disclaimers, including making them easily accessible on a website prior to any particular transaction and possibly even the subject of a pop-up window during a transaction, is the best of various imperfect solutions to the problem. Disclosure is inexpensive and, at minimum, creates the potential for more legitimate consumer assent to e-standard forms, including assent to disclaimers of warranty. Even if in the short term consumers do not read their forms, perhaps consumers will eventually learn of misleading warranties and disclaimers because the Internet creates communication possibilities and research tools unavailable to disgruntled purchasers in the paper world. The prospect of the word getting out that a licensor does not intend to stand behind its promises and representations may be sufficient to curtail the practice of misleading warranties and disclaimers.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132863874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Search Engine Bias and the Demise of Search Engine Utopianism","authors":"E. Goldman","doi":"10.1007/978-3-540-75829-7_8","DOIUrl":"https://doi.org/10.1007/978-3-540-75829-7_8","url":null,"abstract":"","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117235938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law as a Network Standard","authors":"D. Burk","doi":"10.31235/osf.io/nprxh","DOIUrl":"https://doi.org/10.31235/osf.io/nprxh","url":null,"abstract":"The problem of global information flows via computer networks can be conceived and understood as raising issues of competition, interoperability, and standard-setting parallel to those in analysis of technical standards. Uniform standards, whether technical or legal, give rise to a constellation of positive and negative network effects. As a global network based upon the \"end to end\" principle of interoperability, the Internet mediates between different, otherwise incompatible computing platforms. But to the extent that law and technological \"code\" may act as substitutes in shaping human behavior, the Internet similarly mediates between different, otherwise incompatible legal platforms. Much of the legal and social controversy surrounding the Internet stems from the interconnection of such incompatible legal systems. As with technical systems, problems of incompatibility may be addressed by the adoption of uniform legal standards. This, however, raises legal standard-setting problems similar to those seen in technical standard-setting, where the standard may be \"tipped\" in favor of dominant producers. In particular, if law is considered a social product, the benefits of interjurisdictional competition and diversity may be lost as a single uniform legal standard dominates the market for law.","PeriodicalId":385021,"journal":{"name":"Yale Journal of Law and Technology","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133377704","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}