Ledger Vol. 2 – No. 2

Not Your Father’s Domain Name: How gTLD Expansion Is Poised to Change the Way We Navigate the Internet

By Andy McNeil* A pdf version of this article may be downloaded here. Introduction – A Primer On Current gTLDs For many of us, “.com” is the necessary element for most of the Internet addresses we use on a daily basis for shopping, banking, news or entertainment (think amazon.com, wellsfargo.com, cnn.com and espn.com, for example).  The seemingly ubiquitous .com suffix is formally known as a generic top-level domain name (or “gTLD”) in internet parlance.  Although there are 20 other gTLDs such as .net, .info, etc., .com is by far the most popular gTLD.[FN1] Suffice it to say that most Internet users, including this author, when faced with a domain name featuring anything other than a .com suffix, are immediately confronted with suspicions of inferiority and concerns regarding legitimacy.[FN2] Although the number of Internet users continues to grow exponentially, the number of available gTLDs to meet the ever-growing need for unique domain addresses has remained static.  It appears, however, that the “.com-centric” way of Internet-addressing is prepped for change, and in a big way. The Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit entity chosen by the U.S. Department of Commerce  in 1998 to oversee the Internet’s  naming system,[FN3] is formulating plans for expanding the naming rights for gTLDs.  While proponents of this gTLD expansion—including ICANN—argue that this expansion will provide for greater innovation and choice among Internet users and businesses, opponents contend that this expansion is akin to opening a Pandora’s Box of problems for those with a significant intellectual property presence on the Internet.  Considering that there are more than 270 country specific gTLDs, the scope of this unprecedented expansion is significant for those businesses with an international Internet presence. More →

“Term”inal Illness: Curing the Patent Term Using Empirical Analysis of Patent Globalization

By Wesley D. Markham* A pdf version of this article may be downloaded here. I.  Introduction This paper takes an empirical approach to a policy-based question: how long should patents last in the United States, especially given changes in the international patent law regime? The overarching, even constitutionalized, policy behind the U.S.’s patent system is to promote the progress of science and the useful arts.[FN1] This is a laudable goal, but the devil is in the details.  Utilizing an intellectual property regime to maximize innovation requires a delicate balancing act.  On the one hand, inventors and the firms for which they work need an incentive to innovate.  In the United States, one such incentive is a limited monopoly in the form of patents for new and useful inventions.  On the other hand, every patent takes something away from the public domain, thereby making it more difficult for others to build on prior discoveries.  In other words, patents both encourage and discourage innovation.  The key to a successful patent system is determining the correct balancing point, i.e., the smallest reward necessary to spur inventors to invent. More →

Is Facebook Killing Privacy Softly? The Impact of Facebook’s Default Privacy Settings on Online Privacy

By Michael J. Kasdan* A pdf version of this article may be downloaded here. “IMPORTANT!!  Tomorrow, Facebook will change its privacy settings to allow Mark Zuckerberg to come into your house while you sleep and eat your brains with a sharpened spoon.  To stop this from happening go to Account > Home Invasion Settings > Cannibalism > Brains, and uncheck the “Tasty” box.  Please copy and repost.” – Satirical Status Post from Friend’s Facebook Status on February 15, 2011. Introduction Since launching its now ubiquitous social networking website out of the Harvard dorm room of Mark Zuckerberg in early 2004, Facebook has rapidly become one of the most dominant websites on the planet.  And “rapid” doesn’t quite do it justice.  It has been estimated that over 40% of the U.S. population has a Facebook account.[FN1] Facebook now boasts over 600 million active user accounts [FN2] and was recently estimated to be adding user accounts at the unbelievable clip of well over half a million new users per day.[FN3] More →

“Adapting to the Realities of 21st Century Journalism”: Keith Olbermann and an Examination of Legal and Political Constraints in an Era of Partisan News Outlets

By Benjamin Kabak* A pdf version of this article may be downloaded here. Three days after Election Day 2010, Politico, the multimedia news outlet that covers all things politics, dropped a bombshell on the political media world. Keith Olbermann, MSNBC’s lead commentator and the host of the increasingly controversial Countdown, donated money to three Democratic politicians in advance of Election Day.[FN1] Olbermann confirmed to Politico that in late October 2010, he gave $2,400, the maximum amount allowed by federal campaign contribution law, to Rep. Raul Grijalva, Rep. Gabrielle Giffords and Jack Conway, the Democratic nominee and eventual loser in the race for a Kentucky Senate seat.[FN2] These donations violated NBC News’ own internal policies barring personal contributions; as Politico’s Simmi Aujla reported, news organizations and reporters “consider[] it a breach of journalistic independence to contribute to the candidates they cover.”[FN3] NBC News eventually suspended Olbermann indefinitely, and he did not host Countdown on either Friday, November 5 or Monday, November 8, 2010. Olbermann returned to the airwaves on Tuesday, November 9, 2010, one week after Election Day and just two days after he was suspended. MSNBC President Phil Griffin announced the end of the suspension: “[A]fter several days of deliberation and discussion, I have determined that suspending Keith through and including Monday night’s program is an appropriate punishment for his violation of our policy.”[FN4] When he returned to the airwaves, Olbermann defended his actions, saying that the NBC News policies he allegedly violated were “not in his contract” and were “probably not legal” either.[FN5] Still, he apologized to his viewers for various breaches of trust, yet maintained that he made “legal political contributions as a U.S. citizen.”[FN6] More →

You May Not “Like” This Title: Everything Stored on Facebook Is Discoverable

By Darren A. Heitner* A pdf version of this article may be downloaded here. On its own Fan Page, Facebook describes itself as a service that gives “people the power to share and make the world more open and connected.”[FN1] People over the age of twelve, but not too old to understand how to use a computer keyboard, are able to sign up for a Facebook account and immediately share content and information with the world.  Facebook users may upload photos and videos, update their statuses, share links, create events and groups, make comments, write notes, write messages on their own or others’ “Walls,” and send private messages to other users (all of which will hereinafter be referred to as “Published Facebook Content”).  Facebook delivers on its promise to permit sharing in an online environment where people can easily get caught up on their friends’ actions and activities.  The openness is what makes Facebook extremely desirable; it also makes the platform a potential legal nightmare for those who do not understand how its content may be used as evidence in a lawsuit. More →

Patent Eligibility of Molecules: “Product of Nature” Doctrine After Myriad

By Can Cui* A pdf version of this article may be downloaded here. I.  Introduction The 1952 Patent Act sets forth four categories of subject matter that are patent-eligible: process, machine, manufacture, and composition of matter.[FN1] The Supreme Court has interpreted the subject-matter eligibility to be very broad[FN2]; instead of delineating what is patent-eligible, the Supreme Court has crafted a number of categories of “patent-ineligible” subject matter.[FN3] These judicially crafted categories, however, are not well defined.  The boundaries of these categories are also constantly challenged by the advancement of science and technology, particularly biotechnology.  While the Patent Act has remained largely unchanged since its codification in 1952, the discovery of the structure of deoxyribonucleic acid (“DNA”) in 1953 has revolutionized our lives in a great number of ways.  The complete mapping of the human genome has also changed our way of thinking about life and dealing with disease.  Discoverers of new genes, especially those associated with disease susceptibilities, rushed to the patent office to protect their discoveries.  Whether DNA molecules should be patented had been the topic of active policy debate for more than twenty years until the early 2000’s, when the question about their subject-matter eligibility was first seriously raised in the academy.[FN4] More →

What Are the Constitutional Limits on Awards of Statutory Damages?

By Andrew Berger* A pdf version of this article may be downloaded here. Tenenbaum Finds That a Jury’s Award Within the Statutory Range Violates Due Process In July 2010 Judge Nancy Gertner in Sony BMG Music Entertainment et al. v. Tenenbaum, did what no court has ever done before. The court held the jury’s statutory damages award of $675,000 violated the Due Process Clause even though the award was within the statutory range set by Congress.[FN1] The court stated that the “award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement.”[FN2] Judge Gertner slashed the award by 90% to $2,250 per work infringed for a total of $67,500. Tenenbaum thus becomes the first file sharing case to reach an appellate court following trial. More →

Substantial Disparity: Copyright Chaos in the Second Circuit

By Graham Ballou* A pdf version of this article may be downloaded here. In Our Bizarre System of Copyright Infringement, Mark Lemley argues that copyright law is exactly backwards: we should allow the jury to decide whether a defendant has copied the plaintiff’s work as a factual matter, and leave the question of improper appropriation to experts.[FN1] Expert testimony on substantial similarity would, at the least, clear judicial fog at this stage of a copyright infringement analysis: courts could abandon the fiction of an objective, “ordinary observer” perspective – the controlling test for substantial similarity – and allow specialists to conduct what is in fact a highly technical analysis.  But Lemley overlooks two realities of our copyright system.  First, the court – not the jury – most often has the final word on substantial similarity.  If a defendant loses at trial, she can seek de novo review of this issue.[FN2] Second, courts’ decisions on substantial similarity are much less technical than their elaborate rhetoric would suggest.  Despite the myriad judicial tests that courts employ – from “ordinary observer” to “more discerning ordinary observer,” from “filtration” to “total concept and feel” – their decisions ultimately stampede a formal analytical framework in favor of a basic “we know it when we see it” approach. Part I of this paper gives a brief overview of the Second Circuit’s substantial similarity doctrine.  Part II examines application of this doctrine at the district court level, where summary judgment opinions from 2008 to 2010 display wide judicial latitude in the framing of the test.  In Part III, I propose an alternative.  Rather than allow expert testimony at this stage of an infringement analysis, copyright law should discourage summary judgment on and de novo review of substantial similarity.  By empowering the jury on this inherently subjective question, courts would free themselves of what has become an unworkable doctrine. More →