A Safe Bet? State Control of Internet Gambling
Scott L. Jones Gambling has been a part of American life longer than the Constitution. The first recorded instance of gambling in the English colonies occurred in 1620 with horse races in Virginia. Shortly thereafter came the first instance of government in America addressing the issue of gambling when in 1621 the Plymouth Colony placed restrictions on gambling in that colony. Ever since that time, gambling has been regulated at both the federal and state levels. With the advent of the Internet, gambling regulations that do not anticipate the use of online gambling are quickly becoming outdated. As individual citizens...
On Federal Preemption of Contractual First Sale Waivers
Gary Miller Congress is working with a very sensitive scale and it would be tough enough to keep things steady without copyright holders sneaking over and sticking a big toe on the edge every time they feel threatened. It is true that Congress (or at least some member or members of Congress) might have expected parties to contract around the first sale requirement, and of course, the copyright holders assert that, with the world changing too fast for the statute to keep up, therefore the big toe has been absolutely necessary for protection from looting, piracy and/or insolvency–in other words,...
Proveris v. Innovasystems: Redefining a Patented Invention Under § 271(E)(1): An Examination of the Federal Circuit’s Narrowing of the § 271(e)(1) “Safe Harbor” Exemption
Duane C. Marks By reducing the scope of “patented inventions” within § 271(e)(1) to only inventions comporting with the “perfect product fit” analysis, Proveris has drastically altered the function of § 271(e)(1) and potentially impairs the ability of generic manufactures to fully utilize the ANDA process created in Title I of the Act. Adherence to Proveris’ “perfect product fit” rule risks establishing loopholes that potentially allows patent holders of pioneer drugs and medical devices to delay generic manufacturers from bringing less expensive generics to the market. This Note critiques the Federal Circuit’s recent narrowing of § 271(e)(1) in Proveris. Part...
Patent Litigation: What About Qualification Standards for Court Appointed Experts?
Dolly Wu “The descriptions in patents are not addressed to the public generally, to lawyers or to judges, but, as [35 U.S.C.] section 112 states, to those skilled in the art to which the invention pertains.” This leads to a tenet of patent law, that the meaning of patents and claim terms must be construed by a person of ordinary skill in the relevant art (“POSA”). However, federal district court docket statistics show that for tasks such as claim construction, the “experts” hired by courts to aid the courts themselves may, in fact, not meet the POSA standard In contrast,...
The Presidential Right of Publicity
Sean T. Masson Although the right of publicity has historically been a cause of action invoked by celebrities to protect themselves from an extensive range of conduct, the question remains whether non-traditional celebrities deserve the same rights. Can President Obama protect against the unauthorized use of his image since he has arguably attained celebrity-like status? I believe the answer is, to modify the President’s campaign mantra, “Yes [He] Can.” This Essay briefly discusses the application of the right of publicity to President Obama and concludes with suggestions on how he should protect that right. As evidenced by the multi-million dollar...
File Sharing: A Tool for Innovation, or a Criminal Instrument?
Andrew Eichner The dawn of peer-to-peer networks and the subsequent rise of file sharing over the Internet have proved to be a considerable threat to the revenues of the Recording Industry Association of America (“RIAA”) and the international music community. While early music downloading across peer-to-peer networks on the Internet was largely limited “to college students with access to fast pipes and techno geeks sufficiently driven to search the Net for the latest Phish bootlegs,” the market for illegally downloaded music taken from file sharing websites has expanded to astronomic proportions and continues to do so even at present. The...
A Constitutional Right to Deceive?: The First Amendment Implications of Regulating Pay per Click
Peter T. Tschanz Despite Paid Placement’s utility from a marketing perspective, the practice has been sharply criticized. Some authors argue that a search engine’s failure to clearly segregate Sponsored Results leads many users to believe they are delivered based on relevancy alone. These authors argue that this misconception can only be corrected by incorporating uniform regulations for presenting Sponsored Results. Although these regulations are well-intentioned, requiring a normative framework for arranging Sponsored Results may come at a price. The right to freedom of speech necessarily includes the right not to speak. Imposing a regulatory framework for presenting Sponsored Results would...
The Biologics Price Competition and Innovation Act: Innovation Must Come Before Price Competition
Robert N. Sahr In an effort to reduce the costs of medicine for patients, Congress must be especially careful not to impair the ability of the biotechnology industry to thrive by substantially diminishing profitability. Currently, the biotechnology industry is “still relatively nascent” and is largely fueled by venture capital investment. Of the approximately 1400 biotechnology companies operating in the United States today, only twenty are profitable. Many of these companies are small, with revenues of under a million dollars per year, and do not even have a product on the market yet. Leaders in the biotechnology industry have expressed concern...
The Unlitigated Case: A Study of the Legality of Guitar Tablatures
James T. Tsai Guitar tablature Web sites have been the subject of recent cease-and-desist letters, forcing most to shut down. Litigation has been side-stepped with the arrival of new creative means to continue operation. The case that may have gone to court is discussed here, ranging from the appropriate legal claims of copyright infringement to the fair-use-defense arguments that would have been made. Policy solutions are considered to resolve the tension between the public’s desire to use such tablatures and the copyright owners of the original artists. Read Full Text Here
“Indecent” Deception: The Role of Communications Decency Act § 230 in Balancing Consumer and Marketer Interests Online
Amy J. Tindell Should web hosts like Mindspring and online auction houses like eBay be held to the same standard as CSI, a brick-and-mortar flea market operator? Or does the Internet require special treatment due to its higher value as a vast source of information, communication, and social networking? On one hand, the Internet is a developing resource that the free market could shape without governmental regulation. Additionally, it is likely technologically infeasible for Mindspring or eBay to screen every vendor and product that passes through its virtual universe. On the other hand, consumers deserve protection from false and deceptive...