Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School最新文献

{"title":"Federal and State Authority for Broadband Regulation","authors":"Tejas N. Narechania","doi":"10.2139/SSRN.2404996","DOIUrl":"https://doi.org/10.2139/SSRN.2404996","url":null,"abstract":"Verizon’s challenge to the Federal Communications Commission’s 2010 Open Internet Order voided the substance of those rules. But even as the Commission lost the authority to enforce those rules, it gained substantial new regulatory powers. The D.C. Circuit expressly affirmed the Commission’s interpretation of section 706 of the Telecommunications Act of 1996, granting it general regulatory authority to promote the deployment of broadband infrastructure. The significance of this power can hardly be understated. The Commission has relied on this authority to preempt state statutes, to subsidize broadband deployment, and even to support, together with Title II of the Communications Act, new network neutrality rules. And the reach of section 706 extends beyond the federal commission and into state regulatory bodies: The statute explicitly vests state commissions with the authority to encourage the deployment of broadband to all Americans. Like the FCC, the states have pounced on this authority, using it to engage in substantive merger reviews, and to impose regulatory requirements on telecommunications companies.This concurrent grant of jurisdiction to the FCC and to state commissions thus has important implications for the unique brand of federalism that has dominated telecommunications regulation. Section 706’s dual grant of authority to federal and state regulators embraces an experimentalist approach to telecommunications regulation, allowing states to serve as laboratories of regulatory experiments, while empowering the FCC to generalize their successes.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"18 1","pages":"456"},"PeriodicalIF":0.0,"publicationDate":"2015-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68183473","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":"Building Legal Order in Ancient Athens","authors":"F. Carugati, Gillian K. Hadfield, Barry R. Weingast","doi":"10.2139/ssrn.2547107","DOIUrl":"https://doi.org/10.2139/ssrn.2547107","url":null,"abstract":"How do democratic societies establish and maintain order in ways that are conducive to growth? Contemporary scholarship associates order, democracy, and growth with centralized rule of law institutions. In this article, we test the robustness of modern assumptions by turning to the case of ancient Athens. Democratic Athens was remarkably stable and prosperous, but the ancient city-state never developed extensively centralized rule of law institutions. Drawing on the “what-is-law” account of legal order elaborated by Hadfield and Weingast (2012),we show that Athens’ legal order relied on institutions that achieved common knowledge and incentive compatibility for enforcers in a largely decentralized system of coercion. Our approach provides fresh insights into how robust legal orders may be built in countries where centralized rule of law institutions have failed to take root.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78367164","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":"'To Promote the General Welfare' - Addressing Political Corruption in America","authors":"B. Owen","doi":"10.2139/ssrn.2626309","DOIUrl":"https://doi.org/10.2139/ssrn.2626309","url":null,"abstract":"Systemic (but lawful) political corruption reduces well-being and equity in America. Madisonian democracy is no longer capable of containing such corruption. Proposals currently on the table to stem corruption are unlikely to be effective without undermining foundational rights. This essay describes a new approach — regulating the output of corrupted legislative and administrative processes, rather than the inputs. Providing for substantive ex post review of direct and delegated legislation would be far more protective of the “general welfare�? of the People than other reforms, while no more or less difficult to implement.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"76 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83760432","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":"Scope","authors":"Mark A. Lemley, Mark Mckenna","doi":"10.1145/570423.570424","DOIUrl":"https://doi.org/10.1145/570423.570424","url":null,"abstract":"Intellectual property (IP) law doctrines fall into three basic categories: validity, infringement and defenses. Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize – validity – about whether what the defendant did violates that right – infringement – or about whether the defendant is somehow privileged to violate that right-defenses.<br> <br>IP regimes tend to enforce a more or less strict separation between these three legal doctrines. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. The U.S. Patent and Trademark Office, for example, decides questions of patent and trademark validity but not questions of infringement. Even in court, resolution of one issue is often allocated to a judge while the jury decides a different issue. And even where none of that is true, the nature of IP law is to categorize an argument in order to apply the proper rules for that argument. <br> <br>The result of this separation is that parties treat IP rights “like a nose of wax, which may be turned and twisted in any direction.” When infringement is at issue, IP owners tout the breadth of their rights, while accused infringers seek to cabin them within narrow bounds. When it comes to validity, however, the parties reverse their position, with IP owners emphasizing the narrowness of their rights in order to avoid having those rights held invalid and accused infringers arguing the reverse. <br><br>Because of the separation between validity, infringement, and defenses, it is often possible for a party to successfully argue that an IP right means one thing in one context and something very different in another. And courts won’t necessarily detect the problem because they are thinking of only the precise legal issue before them. <br><br>The result is a number of IP doctrines that simply make no sense to an outsider. In patent law, for instance, it is accepted law that there is no “practicing the prior art” defense. In other words, one can be held liable for doing precisely what others had legally done before, even though a patent isn’t supposed to cover things people have already done. In design patent law, one can be held liable for making a design that an “ordinary observer” would find too similar to a patented design, even though the things that make the two look similar – say, the roundness of the wheels on my car – are not things the patentee is entitled to own. In copyright, once a court has concluded that someone has actually copied from the plaintiff, a song will sometimes be deemed infringing because of its similarity to a prior song, even if the similarity is overwhelmingly attributable to unprotectable standard components of the genre. And in trademark, a party can be deemed infringing because its products look to similar to the plaintiffs’ mark and therefore make co","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84571872","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":"Taking Trust Seriously in Privacy Law","authors":"Neil M. Richards, Woodrow Hartzog","doi":"10.2139/SSRN.2655719","DOIUrl":"https://doi.org/10.2139/SSRN.2655719","url":null,"abstract":"Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, which leads us to mistakenly look for “creepy” new practices, focus excessively on harms from invasions of privacy, and place too much weight on the ability of individuals to opt out of harmful or offensive data practices. But there is another way to think about privacy and shape our laws. Instead of trying to protect us against bad things, privacy rules can also be used to create good things, like trust. In this paper, we argue that privacy can and should be thought of as enabling trust in our essential information relationships. This vision of privacy creates value for all parties to an information transaction and enables the kind of sustainable information relationships on which our digital economy must depend. Drawing by analogy on the law of fiduciary duties, we argue that privacy laws and practices centered on trust would enrich our understanding of the existing privacy principles of confidentiality, transparency, and data protection. Re-considering these principles in terms of trust would move them from procedural means of compliance for data extraction towards substantive principles to build trusted, sustainable information relationships. Thinking about privacy in terms of trust also reveals a principle that we argue should become a new bedrock tenet of privacy law: the Loyalty that data holders must give to data subjects. Rejuvenating privacy law by getting past Privacy Pessimism is essential if we are to build the kind of digital society that is sustainable and ultimately beneficial to all – users, governments, and companies. There is a better way forward for privacy. Trust us.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"19 1","pages":"431"},"PeriodicalIF":0.0,"publicationDate":"2015-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2655719","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68240888","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":"Brief of Interested Law Professors in Direct Marketing Association v. Brohl (10th Circuit)","authors":"Darien Shanske, A. Morrison, K. Stark, Joseph Bankman, J. Barry, B. Fried, John A. Swain, D. Ventry","doi":"10.2139/SSRN.2608807","DOIUrl":"https://doi.org/10.2139/SSRN.2608807","url":null,"abstract":"This case, Direct Marketing Association v. Brohl, was recently remanded by the U.S. Supreme Court to the Tenth Circuit Court of Appeals. The Tenth Circuit then requested a full supplemental briefing; amici law professors submitted this brief. Like all states with a sales tax, Colorado faced – and faces – a voluntary compliance problem with the collection of its use tax. The use tax is a complement to the sales tax; in-state vendors collect and remit the sales tax, while in-state consumers are responsible for remitting the use tax on purchases made from out-of-state vendors that do not collect the sales tax. To this compliance challenge, Colorado turned to a third-party reporting solution. In broad strokes, the Colorado Statute imposes a modest requirement on one party to a taxable transaction – specifically on relatively large retailers who do not collect the use tax - to report information on their Colorado sales both to the consumer/taxpayer and to the taxing authorities. Amici make three specific arguments. First, amici demonstrate that third-party reporting of tax information is a ubiquitous and longstanding feature of modern tax systems. When tax authorities rely on taxpayers to self-report their taxable activities, compliance rates for the collection of any tax is low. Therefore, from the broader perspective of tax collection theory and history, including the history of very similar transaction-based taxes that attempt to tax consumption, the Colorado Statute is an unexceptional response to an otherwise intractable problem. Second, amici argue that the Supreme Court’s decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), does not apply to the statute at issue in this case. Quill imposed a bright-line physical presence test as a precondition for a state to impose a use tax collection obligation on a retailer. Because of its own self-limiting language and logic, not to mention greatly changed circumstances, the rule of Quill should not be extended into a new area. Third, amici argue that, because sales and use taxes constitute a unified system, there is no discrimination simply because differently situated retailers are required to aid in the collection of what is essentially a single tax in different ways.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"50 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75285687","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":"Economic Diplonomie - The Conceptual and Terminological Quintessence","authors":"Nasty M. Vladoiu","doi":"10.2139/SSRN.2671926","DOIUrl":"https://doi.org/10.2139/SSRN.2671926","url":null,"abstract":"The article brings up an interesting topic, that of transformation of economic diplomacy as variation of diplomacy in the new globalized society, the author creating and revealing thus a new concept - the Economic Diplonomie. Economic Diplonomie can be defined as: “the activity involving specialized operations conducted bilaterally with the aim of identifying and configuring the common and complementary economic interest - interest that can be achieved with support offered by the perspective of processes of dual governance, dual administration, double responsible distribution - and which has as purpose tightening the bilateral economic relations and promoting sustained economic development, by meeting on a long-term the national economic interest of each state.\"","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74981879","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":"Effects of Immigrant Legalization on Crime: The 1986 Immigration Reform and Control Act","authors":"S. Baker","doi":"10.2139/ssrn.1829368","DOIUrl":"https://doi.org/10.2139/ssrn.1829368","url":null,"abstract":"In the late 1970's, rates of undocumented immigration into the United States increased dra- matically. This increase led to pressure on the federal government to nd some way of dealing with the immigrants, culminating in the 1986 Immigration Reform and Control Act (IRCA). This paper seeks to examine the e ects that the 1986 IRCA, which legalized over 2.5 million undocumented immigrants, had on the commission of crime in the United States. Using ad- ministrative data from the IRCA application process, I nd evidence that IRCA applicants are associated with higher crime rates prior to legalization and that, subsequent to legalization, this association disappears. I nd national decreases in crime of approximately 2%-5% associ- ated with one percent of the population being legalized, primarily due to a drop in property crimes. This fall in crime is equivalent to 160,000-400,000 fewer crimes committed each year due to legalization. Finally, I calibrate a labor market model of crime using empirical wage and employment data and nd that much of the drop in crime could be explained by greater job market opportunities among those legalized by the IRCA.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91367457","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 Audience in Intellectual Property Infringement","authors":"Jeanne Fromer, Mark A. Lemley","doi":"10.17605/OSF.IO/DXPT7","DOIUrl":"https://doi.org/10.17605/OSF.IO/DXPT7","url":null,"abstract":"Every IP right has its own definition of infringement. In this paper, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP infringement. The fact that patent law focuses on an expert audience while trademark looks to a consumer audience explains many of the differences in how patent and trademark cases are decided. Expert audiences are likely to evaluate infringement based on the technical similarity between the plaintiff’s and defendant’s works. Consumers, by contrast, are likely to pay more attention to market substitution and less attention to how things work under the hood. Understanding the different audiences in IP infringement is critical to understanding how the IP regimes define infringement.The focus on audience has normative as well as descriptive implications. Neither patent law, with its focus on experts and technical similarity, nor trademark law, with its market-based consumer focus, has it entirely correct. Rather, we suggest that as a general matter infringement of an IP right should require both technical similarity and market substitution. Assessing infringement through the expert’s eyes ensures that the law prevents closely related works in the field while allowing later contributions to the field that are sufficiently different. The consumer vantage point ensures that we protect IP owners only when they have been harmed in the marketplace. IP owners who want to show infringement should have to show both that the defendant’s work is technically similar to their own from the expert’s vantage point and that the defendant’s use causes the plaintiff market harm. Copyright law, which does look both to experts and to consumers at various points in infringement analysis, is on the right track.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"68 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74837238","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":"Patent Trolling — Why Bio & Pharmaceuticals Are at Risk","authors":"Robin C. Feldman, N. Price","doi":"10.2139/SSRN.2395987","DOIUrl":"https://doi.org/10.2139/SSRN.2395987","url":null,"abstract":"Patent trolls — also known variously as non-practicing entities, patent assertion entities, and patent monetizers — are a top priority on legislative and regulatory reform agendas. In the modern debates, however, the biopharmaceutical industry goes conspicuously unmentioned. Although biopharmaceuticals are paradigmatically centered on patents, conventional wisdom holds that biopharmaceuticals are largely unthreatened by trolls. This article shows that the conventional wisdom is wrong, both theoretically and descriptively. In particular, the article presents a ground-breaking study of the life science holdings of 5 major universities to determine if these might be attractive to monetizers. This was deliberately a light, rather than an exhaustive, search. Nevertheless, we identified dozens of patents that could be deployed against current industries. These include patents on active ingredients of drugs; methods of treatment; screening methods to identify new drugs; manufacturing methods; dosage forms; and ancillary technologies that could be deployed in a “peddler’s bag” approach. The article describes the types of patents we found, including an example of each type.In deciding whether to undertake this analysis, we lost sleep over whether the potential for harm outweighed the potential benefit. If reform efforts are not undertaken, our work could do no more than provide a handy road map for those who would follow. However, with scattered anecdotal evidence suggesting that monetization is moving into biopharmaceuticals, life sciences trolling is predictable and in its infancy. If reforms are implemented before the problem proliferates, legislators and regulators could cabin the activity before it becomes deeply entrenched and too much harm occurs.","PeriodicalId":90732,"journal":{"name":"Stanford technology law review : STLR : an online high-technology law journal from Stanford Law School","volume":"17 1","pages":"773"},"PeriodicalIF":0.0,"publicationDate":"2014-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2395987","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68178156","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}