Wisconsin Law Review最新文献

{"title":"What Does the Public Get? Experimental Use and the Patent Bargain","authors":"K. Strandburg","doi":"10.2139/SSRN.438023","DOIUrl":"https://doi.org/10.2139/SSRN.438023","url":null,"abstract":"This article deals with the increasing tension between the tradition of protecting commercially valuable inventions through patenting and the need for a robust public domain of freely available technical information as a springboard for further research. The experimental use exemption, permitting some unauthorized research uses of patented inventions, might be used to relieve some of this tension. However, the scope of the research exemption has been shrunk so far by recent Federal Circuit opinions that even basic university research is not excused from infringement liability. This article returns to the first principles of patent law - the incentives to invent and to disclose - and argues that the current narrow exemption is not giving the public the benefit of its patent bargain. In this article, I analyze the effects of disclosure and the incentive to invent on different types of inventions. The article concludes that, partly because of distinctions between types of inventions that I dub self-disclosing and non-self-disclosing, it is possible to design an experimental use exception that promotes the progress of the useful arts more effectively than the current restrictive doctrine.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2004 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2003-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.438023","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68784224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Federal Gun Control Can Teach Us About the Dmca's Anti-Trafficking Provisions","authors":"Alfred C. Yen","doi":"10.2139/SSRN.388081","DOIUrl":"https://doi.org/10.2139/SSRN.388081","url":null,"abstract":"This article studies the so-called \"anti-trafficking provisions\" of the Digital Millennium Copyright Act (\"DMCA\") by drawing insight from federal gun control. Among other things, the anti-trafficking provisions criminalize the distribution of technology that circumvents the encryption schemes sometimes used to protect digital files. This prohibition even applies to the sale of circumvention technology for lawful purposes. Not suprisingly, this result has generated controversy. Consumer advocates and civil libertarians have argued that it is wrong to criminalize the sale of technology that has lawful use, particularly when that criminalization makes it difficult - if not impossible - for the public to make legal, noninfringing use of copyrighted works. Controversy exists because Congress has refused to amend the DMCA to preserve lawful consumer use of copyrighted works. The argument for this refusal is simple: Digital technology, particularly the Internet, unacceptably threatens the security of copyright. Strong measures must therefore be taken to prevent such misuse of digital technology, even if it means curtailing rights of access and use that the public is supposed to enjoy.The article questions whether the above described sacrifice of public rights is really necessary. This criticism starts with the observation that both federal gun control and the DMCA's anti-trafficking provisions respond to the misuse of technology. People misuse guns to commit crimes, and people misuse circumvention technology to commit copyright infringement. In both cases, Congress has used criminal law to keep technology away from those who might misuse it. In the case of circumvention technology, Congress has banned such technology at the expense of public of access to such technology for lawful purposes. In the case of guns, Congress has not imposed a ban precisely because it was concerned about preserving access to firearms for lawful purposes.The article uses this observation to challenge the view that public availability of circumvention technology will destroy copyright. The article studies the regulatory methods used in gun control, and adapts them to propose a general approach for controlling the misuse of circumvention technology while preserving access to such technology for lawful purposes. The article contends that this proposal will provide adequate security to copyright holders, preserve public rights of fair use and access to copyrighted works, and encourage the responsible use of digital encryption schemes.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2003 1","pages":"649"},"PeriodicalIF":0.6,"publicationDate":"2003-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68662350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"\"Special weight\" for best-interests minors in the new era of parental autonomy.","authors":"Richard F Storrow, Sandra Martinez","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":" 5","pages":"789-841"},"PeriodicalIF":0.6,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25821238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory of Venture Capital-Financed Firms","authors":"Manuel A. Utset","doi":"10.2139/SSRN.705381","DOIUrl":"https://doi.org/10.2139/SSRN.705381","url":null,"abstract":"This article starts from the premise that contract parties care about fairness and argues that reciprocal fairness concerns can lead parties to engage in wasteful retaliation. In particular it analyzes reciprocal fairness issues in the context of venture capital contracts. The bargaining power of venture capitalists and the (well-documented) over-optimism of entrepreneurs can lead entrepreneurs to enter into one-sided contracts. In fact, standard venture capital contracts transfer effective control over the venture to the venture capitalist. As high-powered incentive mechanisms and one-sided contract provisions are triggered, entrepreneurs will begin to revise their initial (over-optimistic) beliefs. This belief-revision will increase the likelihood that an entrepreneur will retaliate. Entrepreneurs control an important firm asset - their human-capital. This control over the production and dissemination of innovation-specific knowledge will given an entrepreneur the power: (1) to protect her contractual interests; and (2) to retaliate against venture capitalist actions deemed unfair. The article develops various theoretical and doctrinal implications.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2002 1","pages":"45"},"PeriodicalIF":0.6,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.705381","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67807817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adding Value to Families: The Potential of Model Family Courts","authors":"Jane M. Spinak","doi":"10.2139/SSRN.324140","DOIUrl":"https://doi.org/10.2139/SSRN.324140","url":null,"abstract":"This article examines the national Model Family Court reform movement, analyzing whether the movement imitates previous attempts to improve the court through administrative and procedural reorganization, or whether the substantive foundation of the movement (whose first principles combine family unification with child safety) coupled with key structural modifications can transform the existing Family Court. The model court movement requires the judge to take a significant leadership role in restructuring court procedures and crafting and monitoring individual case resolutions. The author asks whether this new process would add value to the lives of the families involved. By examining New York court reform as well as preliminary information about the progress of model courts nationwide, a number of conclusions about the current reform effort are drawn. First, the organization of the model courts builds on a process of cooperation and collaboration that enhances the participation of both professionals and litigants. Second, the monitoring component can produce sufficient information for the court to limit its intervention into the family without increasing the risk to child safety. As a result, the overall number of cases that need court attention could be reduced and the court would be able to use its resources more effectively. The potential for transformation, however, has so far been limited by a dominant focus on administrative and procedural reform and a paucity of attention centered on preserving family integrity by utilizing the model court's unique design. Unless the model courts take the next step to fully integrate their substantive mandate into the new procedural framework, a family court paradigm that can add value to the lives of the families it serves will not be created.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2002 1","pages":"331"},"PeriodicalIF":0.6,"publicationDate":"2002-08-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.324140","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68576633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Community Economic Development Movement","authors":"William H. Simon","doi":"10.1215/9780822380825","DOIUrl":"https://doi.org/10.1215/9780822380825","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2002 1","pages":"377"},"PeriodicalIF":0.6,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66038528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Old law meets new medicine: revisiting involuntary psychotropic medication of the criminal defendant.","authors":"D. Siegel, A. Grudzinskas, D. Pinals","doi":"10.2139/SSRN.283317","DOIUrl":"https://doi.org/10.2139/SSRN.283317","url":null,"abstract":"The law concerning when a criminal defendant can be subjected to involuntary psychotropic medication prior to trial relies upon two distinct paradigms: a parens patriae-based treatment rationale and an institutional security rationale. These distinctions have created an unclear jurisprudence, which has left unanswered the basic questions: when can involuntary medication of the criminal defendant occur, and what procedure must be followed in order to undertake such medication? The existing jurisprudence was based upon two implicit premises concerning the practice of involuntary medication: it was very rare, and it was accompanied by numerous severe physiological and mental risks. Deinstitutionalization of the mentally ill, changes in treatment methodologies, and the development of new drugs, however, are rapidly undermining both these premises. These changes highlight the shortcomings in the law. Moreover, they demand that a jurisprudence be recognized which clearly reflects the range of constitutional interests implicated by involuntary medication of the criminal defendant prior to trial, particularly those interests implicated by his trial-related constitutional rights. We would reformulate the analysis to include an initial determination of the defendant's competence to make treatment decisions. We argue that the jurisprudence should then require that the government demonstrate both a compelling interest in psychotropically medicating the defendant, and that medication is medically appropriate and the most narrowly tailored, least intrusive means of achieving that interest, and that whenever such a showing is made appropriate safeguards be implemented to protect the defendant's trial-related rights. We also argue that establishing competence to stand trial, alone, may constitute such a compelling interest. Procedurally, we argue that this showing should be made before a trial judge (rather than hospital administrators or doctors), after a full hearing, at which the defendant is afforded the rights to notice, counsel, confrontation, and cross-examination, and that the government should satisfy its burden through clear and convincing proof.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2 1","pages":"307-80"},"PeriodicalIF":0.6,"publicationDate":"2001-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68367791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond Lessig's Code for Internet Privacy: Cyberspace Filters, Privacy Control and Fair Information Practices","authors":"P. Schwartz","doi":"10.2139/SSRN.254849","DOIUrl":"https://doi.org/10.2139/SSRN.254849","url":null,"abstract":"In Code, the most influential book yet written about law and cyberspace, Lawrence Lessig makes an intriguing proposal for shaping privacy on the Internet: (1) the legal assignment to every individual of a property interest in her own personal information, and (2) the employment of software transmission protocols, such as P3P, to permit the individual to structure her access to Web sites. In \"Beyond Lessig's Code for Internet Privacy: Cyberspace Filters, Privacy Control, and Fair Information Practices,\" 2000 Wisc. L. Rev. 743, I respond to this approach with a number of criticisms and a competing proposal. My initial criticism of Lessig's proposal for privacy concerns how it contradicts his stand against PICs, a software transmission protocol for filtering Internet content reminiscent of P3P. Once we place privacy in a social context, moreover, P3P seems far less attractive an option. In place of Lessig's underlying paradigm, which seeks to increase personal control of data. I develop a concept of constitutive privacy. In my view, information privacy is a constitutive value that safeguards participation and association in a free society. Rather than simply seeking to allow more and more individual control of personal data, we should view the normative function of information privacy as inhering in its relation to participatory democracy and individual self-determination. A privacy market can play a role in helping information privacy fulfill this constitutive function. Yet, Lessig's propertization of privacy raises a further set of difficulties. In my view, propertization a la Lessig will only heighten flaws in the current market for personal data. This consequence follows from numerous shortcomings in this market and structural difficulties that indicate the unlikelihood of a self-correction in it. Moreover, in revisiting Calabresi and Melamed's work regarding the comparative merits of property and liability regimes, I find that a mixed regime is to be preferred for Internet privacy over Lessig's property regime. Part III of this Article turns from criticism to prescription and develops the mixture of property and liability rules necessary for establishment of information privacy standards in cyberspace. It proposes recourse to Fair Information Practices (FIPs) to establish rules for the fair treatment of personal data on the Internet. Yet, FIPs are not without potential shortcomings if structured only as command-and-control rules. My suggestion therefore is that an American Internet privacy law consisting of FIPs should include both mandatory and default elements.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2000 1","pages":"743"},"PeriodicalIF":0.6,"publicationDate":"2001-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.254849","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68200037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Old law meets new medicine: revisiting involuntary psychotropic medication of the criminal defendant.","authors":"D M Siegel, A J Grudzinskas, D A Pinals","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":"2 ","pages":"307-80"},"PeriodicalIF":0.6,"publicationDate":"2001-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25695675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Arguing the \"obvious\" in Wisconsin: why state regulation of assisted reproductive technology has not come to pass, and how it should.","authors":"L M Katers","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":" 2","pages":"441-70"},"PeriodicalIF":0.6,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22141984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}