Volume 11, 2008-2009 Fall Issue

Warranties and Disclaimers in the Electronic Age

By Robert A. Hillman and Ibrahim Barakat

11 Yale J.L. & Tech. 1

This article 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 article 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.

Controlling Patent Trolling with Civil RICO

By Blair Silver

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11 Yale J.L. & Tech. 70

The modern patent system is incapable of policing extensive fraud. This inability to control fraudulent activity has created a system susceptible to abuse. The current remedies offered by the courts to counterbalance fraudulent conduct and trolling have not proved a sufficient disincentive to curb this behavior. Specifically, the remedies for fraud, such as inequitable conduct, have not proven capable of deterring repetitive abusers.

Civil RICO may be that solution. RICO has been an avenue pursued as a defense to patent infringement ever since RICO was extended civilly over legitimate businesses. RICO can be used as an effective deterrent to repetitive abuse of the patent system and extortionate litigation schemes that threaten large segments of industry. RICO has such an effect because of the scope of its remedies: treble damages, attorney’s fees, and investigation costs. While civil RICO should not apply where the Patent Office’s standard remedies of unenforceability for inequitable conduct compensate for individual instances of fraud, civil RICO can be used to limit repeated abuses of the system where these ordinary penalties do not work.

This paper will address the questions of why RICO deters patent abuse, where RICO stands with patent law today, what the standards for applying RICO to patent holders should be, and what the future holds for RICO and patent law.

Tort Made for Hire – Reconsidering the CCNV Case

By Assaf Jacob

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11 Yale J.L. & Tech. 96

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on tort law principles, is clearly anomalous in the context of copyright law, which differs significantly from tort law in its underlying rationales. This paper further argues that, lacking clear guidelines, the work for hire case law has failed in its objective to achieve consistency and certainty.

My proposal is that the “work made for hire” doctrine should be decided from the vantage point of copyright law. The test should focus on incentives to create on the one hand and public access to created works on the other. These are the goals of copyright law as stated in the Constitution. Thus, the test should re-interpret the term “employee” in a manner that complies with the needs of copyright law. Most importantly, “employee” should be interpreted to give the first entitlement to the party most apt to achieve the goals of the Constitution: Instead of using agency test factors such as employee benefits and tax treatment, the courts should consider factors such as the parties’ relative incentive to create new works, public accessibility, transaction costs, and the parties relative ability and motivation to disseminate works to the public. The partnership of individual creativity with the employer’s resources yields a significant engine for creative production in society. Revising the “work made for hire” test would re-align this important issue with the rest of intellectual property law.

Recommended Sites

Yale Journal of Law & Technology

Volume 11, 2008-2009 Fall Issue

Warranties and Disclaimers in the Electronic Age

Controlling Patent Trolling with Civil RICO

Tort Made for Hire – Reconsidering the CCNV Case

Introduction to the Computers, Freedom, and Privacy Essay Contest

Government Data and the Invisible Hand

Technology Policy, Internet Privacy, and the Federal Rules of Civil Procedure

A National Technology Agenda for the Next Administration

The Future According to Google: Technology Policy from the Standpoint of America's Fastest-Growing Technology Company