YJoLT: Yale Journal of Law and Technology

Non-Obvious: Experimental Study on the Hindsight Issue

9 Yale Journal of Law and Technology 1 (2007)

By Gregory Mandel

For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the issue before the Court: how individuals make non-obvious decisions under existing Supreme Court and Federal Circuit precedent.

Full Article - PDF

Where Antitrust Ends and IP Begins

9 Yale Journal of Law and Technology 44 (2007)

By Katarzyna A. Czapracka

U.S. antitrust enforcers see little scope for antitrust policy to mitigate the consequences of imperfect IP policies. They are reluctant to intervene in what is perceived to be the sphere of IP policy and take the view that any competitive concerns are better remedied by changes in the IP policy. This trend corresponds with shielding antitrust policy away from fields occupied by other forms of regulation. Exactly the opposite tendencies are present in EU competition law. Both the European Commission and the ECJ seem to see a role for competition law to correct improvidently defined IPRs, even if it entails adjusting competition principles. It may seem reasonable, as unlike competition policy, most issues relating to IP policy within the European Union are still decided at the national level. Yet, there is an inherent danger in this approach. It may lead antitrust authorities to adopt analytically questionable approaches that undermine the coherence of antitrust law. Competition agencies must be particularly cautious in adopting the measures to curb IP laws, as they may discourage private R&D investment. The views of the Commission on application of Article 82 to interoperability information, as expressed in the Microsoft Decision and the Article 82 Paper, confirm that these reservations are valid.

Full Article - PDF

Pervasive New Media

9 Yale Journal of Law and Technology 109 (2007)

By Matthew Bloom

After years of failing to meet expectations, both internet and satellite radio programming are finally challenging terrestrial radio in a manner similar to cable�s challenge to broadcast television a generation earlier. These new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. As they continue to seek new listeners, online and satellite stations have a major advantage over terrestrial broadcasters�they are exempt from Federal Communications Commission (FCC) scrutiny for indecent programming. This Note makes the argument that the broadcasting/non-broadcasting distinction is no longer merited and should be eliminated.

Full Article - PDF

Copyright Distributive Injustice

9 Yale Journal of Law and Technology 128 (2007)

By Daniel Benoliel

Copyright is a legal field that is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm quite markedly claim that copyright law should be based upon some measure of distribution, rather than efficiency. This article argues that, subject to narrow exceptions, copyright law should not promote distributive justice concerns and that other, more efficient areas of law such as taxation and welfare programs should do so instead. The essay focuses on the leading classes of distributive injustice that have emerged in the present day Internet: poor infringers, poor creators and wealthy copyright industries. At least in these classes of individuals, this essay argues, redistribution through copyright law offers no advantage over redistribution through the income tax system and other transfer mechanisms and laws and typically is less efficient in doing so.

Full Article - forthcoming

Toward an Ecology of Intellectual Property: Lessons From Environmental Economics for Valuing Copyright's Commons

8 Yale Journal of Law and Technology 78 (2006)

By Frank Pasquale

The �fair use� defense in copyright law shields an intellectual commons of protected uses of copyrighted material from infringement actions. In determining whether a given use is fair, courts must assess the new use�s potential �effect on the market� for the copyrighted work. Fair use jurisprudence too often fails to address the complementary, network, and long-range effects of new technologies on the value of copyrighted works. These effects parallel the indirect, direct, and option values of biodiversity recently recognized by environmental economists. Their sophisticated methods for valuing natural resources in tangible commons can inform legal efforts to address the intellectual commons� �effect on the market� for copyrighted works.

Full Article - PDF

The Rise of the OECD as Informal "world tax organization" Through National Responses to E-commerce Tax Challenges

8 Yale Journal of Law and Technology 136 (2006)

By Arthur J. Cockfield

This paper assesses national and international responses to tax challenges presented by cross-border electronic commerce. Ten years after these challenges were first identified, a survey of national government reactions shows that many countries have not passed any significant tax legislation or administrative guidance with respect to the taxation of global e-commerce. This lack of action at the national level can be explained in large part by the leadership role taken by the Organization for Economic Cooperation and Development (OECD) in developing the guiding principles and, subsequently, the tax rules to confront the e-commerce tax challenges. The OECD�s general success with e-commerce tax reform demonstrates the OECD�s ability to act as a kind of informal (lower case) world tax organization, which emphasizes deliberation, consensus-building and the use of non-binding mechanisms such as the OECD model tax treaty. Moreover, the OECD�s success suggests that calls for a more formal (upper-case) World Tax Organization, which could impose binding tax rules on participating nations, may be misplaced.

Full Article - PDF

Search Engine Bias and the Demise of Search Engine Utopianism

8 Yale Journal of Law and Technology 188 (2006)

By Eric Goldman

Due to search engines� automated operations, people often assume that search engines display search results neutrally and without bias. However, this perception is mistaken. Like any other media company, search engines affirmatively control their users� experiences, which has the consequence of skewing search results (a phenomenon called �search engine bias�). Some commentators believe that search engine bias is a defect requiring legislative correction. Instead, this Essay argues that search engine bias is the beneficial consequence of search engines optimizing content for their users. The Essay further argues that the most problematic aspect of search engine bias, the �winner-take-all� effect caused by top placement in search results, will be mooted by emerging personalized search technology.

Full Article - PDF

Regulating Search Engines: Taking Stock and Looking Ahead

8 Yale Journal of Law and Technology 201 (2006)

By Urs Gasser

This paper has two objectives. First, it seeks to take stock and provide a brief summary of the current state of an emerging law of search engines, mainly from a U.S. perspective. Second, it aims to contribute to the development of an analytical framework that may provide guidance in assessing proposals aimed at regulating search engines in particular and search more generally.

Full Article - PDF

Challenges to Authority, Burdens of Legitimization: The Printing Press and the Internet

8 Yale Journal of Law and Technology 1 (2005)

By Zach Kertcher and Ainat N. Margalit

The Internet is often regarded as a challenge to the nation-state's ability to regulate flows of finance, information, and symbols. Rather than examining whether it is possible to enforce regulation on such a media, this paper addresses two additional fundamental questions: (1) what do regulatory discourses and attempts to regulate reveal about the nation-state's political authority under globalization, and (2) how does this authority vary across social, political, and cultural contexts? In order to address these challenging queries we follow a unique path, both empirically and theoretically. Theoretically, we argue that political authority is a pivotal common denominator that undergirds diverse understandings of globalization. We then critically examine different conceptions of political authority and construct a typology that orients our study. Empirically, we follow our typology by comparing two historical phenomena: attempts by the Catholic Church to regulate the printing press during the 15th and 16th centuries, and attempts by China, Malaysia and the United States to regulate the Internet. Despite certain important commonalities, we posit that each of these cases illustrates a different model of the legitimization processes and transformations in political authority that occur under globalization.

Full Article - PDF

Copyright vs. Free Expression: The Case of Peer-to-Peer File-Sharing of Music in the United Kingdom

8 Yale Journal of Law and Technology 32 (2005)

By Robert Danay

This paper explores the extent to which the peer-to-peer (p2p) file-sharing of music is a form of communication protected from the restrictions of the Copyright, Designs and Patents Act 1988 (U.K.) (CDPA) by the guarantee of free expression enshrined in Article 10 of the European Convention on Human Rights (ECHR) and incorporated into domestic law through the Human Rights Act 1998 (U.K.) (HRA). The paper first examines the protection offered to freedom of expression through the existing copyright scheme. It is asserted that due to a lack of context-sensitivity, mechanisms such as the idea-expression dichotomy must not be relied upon to deny the existence of prima facie breaches of Article 10(1) of the ECHR. Rather, such breaches must be acknowledged and justified (if possible) as being â��necessary in a democratic societyâ�� under Article 10(2) of the ECHR. Next, the extent to which p2p music file-sharing represents an infringement under the terms of the CDPA (exclusive of any effect of the ECHR) is examined. It is concluded that such sharing does amount to an infringement under the Act and is not subject to any of the enumerated defences. The final part of the paper explores the extent to which the statutory restriction on file-sharing of music may be permitted under Article 10 of the ECHR. It is suggested that, for a number of reasons, the CDPAâ��s restriction on free expression may not be â��necessary in a democratic societyâ�� under Article 10(2) of the ECHR. As a result, should this statutory restriction be impugned in a U.K. courtroom in the context of p2p music file-sharing, such a court may be under an obligation to exculpate infringing parties under the â��public interestâ�� defence or to make a declaration of incompatibility under the HRA.

Full Article - PDF