Can You Hear Me Now? Spectrum is Shaping the Telecommunication Industry in an Increasingly Connected America

By: James Zino

The way in which Americans communicate has changed rapidly over the past decade, and the cellular phone has been at the forefront of this revolution, reaching levels of market maturation faster than any mainstream technology since the television. What started as a tool to place calls while on the go has evolved into a device with the processing power of a small computer, where millions of people call, text, tweet, video chat, and stream hours of content every day right from the palm of their hands. While there is no doubt that consumer technology has made incredible strides since the first iPhone ushered in a new product market in 2007 with estimated opening day sales of up to 1 million units, what has changed even more is the invisible infrastructure that allows consumers to be wirelessly connected from even the most remote parts of the country.

Although most Americans are familiar with the country’s “Big Four” national cellular providers, (Verizon Wireless, AT&T, Sprint, and T-Mobile), what actually enables these companies to provide wireless internet and cellular service is less well-known. This capability comes from certain bands of the electromagnetic spectrum, which have become an increasingly indispensable commodity for network providers as demand for cellular service surges. Control and licensing of radio spectrum is controlled by the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA). While the NTIA handles the use of spectrum for federal government purposes, the FCC administers spectrum regulation and licensing for all other uses, including state, local, and commercial functions.

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I Need a Lawyer: Establishing Statewide New York Communication Access Fund to Secure Legal Accessibility to Deaf and Hard of Hearing Clients Through Video Remote Interpreting Services in Compliance with the Americans with Disabilities Act

By: YooNa Lim

Discrimination by lawyers against individuals who are deaf and hard of hearing is not a rare occurrence. Many lawyers decline to represent deaf and hard of hearing individuals as clients, despite the protection of federal and state laws to prohibit discrimination on the basis of disability.

Hearing impairments cover a significant range – from those who may not even be aware they have difficulty hearing to those who are deaf and use sign language. Statistics suggest that approximately more than 37 million people, or 16 percent of the population of age above 18, of the United States, report having some degree of difficulty hearing. Despite the large population of the deaf and hard of hearing community, many attorneys fail to recognize their legal obligation to accommodate individuals who are deaf or hard of hearing.

Many private attorneys are unfamiliar with their obligations under the ADA or others are unwilling to incur the costs to provide the necessary communication access services. Consequently, it has become difficult for many deaf and hard of hearing individuals to retain attorneys for common legal counseling that are widely provided, such as criminal law proceedings, family law issues, probate, and employment law matters. Even when a deaf or hard of hearing individual successfully meets an attorney, without effective communication, the attorney cannot provide proper representation, unfulfilling their professional responsibilities. Because of the communication barrier, the client may not understand the nature of their legal issue.

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Seeing Red: Christian Louboutin’s Protection of His Trademark Through His Battle with Yves St. Laurent

By: Sachpreet Bains

Introduction: Let’s start with a simple question. How much are you willing to spend on a pair of shoes? Write three zeros on a piece of paper. Now, place a five in front of the three zeros. Next, place a comma after the five. Lastly, place a dollar sign at the very beginning. You have now written down the “small” amount of “$5,000.” It is very hard to justify spending $5,000 on a pair of stylish shoes. In my twenty-six years, the most I have ever spent on a pair of shoes is about $200.00.

The French luxury brand, Christian Louboutin, is most renowned and notorious for the high-end shoes it produces for both genders. The brand caters to the wealthy population throughout the world, as its luxury line of shoes can be sold in retail stores for up to $6,000 a pair.1 Known for its red lacquered sole, Louboutin successfully applied for a trademark in 2008. This trademark dealt strictly with how red paint was used on the sole of the shoe. When Yves St. Laurent (which has now changed its name to Saint Laurent Paris) made high-heeled shoes incorporating red soles in its 2009 collection, Louboutin sued for trademark infringement and unfair competition under the Lanham Act.2 This note focuses primarily on the District Court and Second Circuit Court of Appeals decision and the difficulties of trademarking a single color in today’s legal world, along with the road to Louboutin successfully being able to retain his trademark for the red lacquered soles of his shoes.

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Notice and Manifestation of Assent to Browse-Wrap Agreements in the Age of Evolving Crawlers, Bots, Spiders and Scrapers: How Courts Are Tethered to Their Application of Register and Cairo and Why Congress Should Mandate Use of the Robots Exclusion Standard to Prevent Circumvention of Responsibility

By: Michael Laven

Introduction:  In 2012, when Internet users browsed the World Wide Web looking for the best price on a new Apple product, Thanksgiving flight or car insurance, they inevitably encountered a brave new world of manifestation of assent to a contract: the world of “click-through” and “browse-wrap” agreements. The click-through agreement probably garners the most awareness from the average Internet user, as satisfactory completion usually involves clicking “agree” or “yes” before the one is allowed to continue – a physical action from the user that is mandatory. However, much more commonplace, as at appears on virtually every website, although much less conspicuous, is the browse-wrap agreement. This type of agreement is found on websites of all varieties, including commercial, educational and personal websites, and allows for acceptance of the website’s “terms of use” simply through the conduct of continued use of the website. The user therefore has notice of the terms, may read them if they desire and may discontinue their use of the website if dissatisfied with the terms offered. Bits and pieces of litigation have arisen involving both click-through and browse-wrap agreements, certain issues have been settled, but, with technology evolving so quickly, the current state of the law leaves many uncertainties for web users and designers alike.

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Mass Copyright Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder

By: Christopher Civil

Introduction: Recently, a staggering number of copyright lawsuits have been filed by producers of  pornographic videos against individuals who have allegedly illegally downloaded the videos via
the BitTorrent Protocol. While the law should respect the legitimate protection of a producer’s  copyright interest, there is significant reason to question the legitimacy of these lawsuits. Mass  copyright infringement lawsuits such as these present significant problems relating to IP address sufficiency, personal jurisdiction, and joinder.

This paper presents a comprehensive analysis of mass copyright infringement lawsuits. It first provides an overview of the BitTorrent protocol and the typical proceedings in mass copyright infringement lawsuits. The paper then addresses the myriad of problems that have been identified with such lawsuits. The second half of the paper examines how courts have dealt with mass copyright infringement, and presents results from a comprehensive analysis of jurisdictions and judges that have decided the question of whether joinder is proper in such cases. Amongst other things, this examination reveals that denial of joinder is the prevailing trend. When considered in conjunction with the identified problems associated with such lawsuits, judges that deny joinder thus appear to have solid foundational support.

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Review of “Legally Poisoned: How the Law Puts Us at Risk from Toxicants”

Reviewed by: Alessandra Baldini

Introduction: In Legally Poisoned, Cranor lays out the frightening details of chemical proliferation in our modern world. In this well-researched work, the author makes clear the extent to which we are exposed to chemical toxicants, and the danger of this exposure to our health. Cranor clearly illustrates the process by which we are “legally poisoned,” as the title says: the regulatory regime of the nation is one that assumes safety in all of the thousands of chemicals we encounter daily. It is only when harmful effects are shown after the fact that the government steps in to reduce or eliminate the use of a chemical. No effort is made to protect our citizens until some portion are injured.

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Use of Patented Inventions after FDA Approval: How to Define the Hatch-Waxman Safe Harbor in Light of Momenta and Classen

By: Madeline Schiesser

Abstract: This paper will discuss the apparent inconsistencies in the recent Classen v. Biogen and Momenta v. Amphastar decisions by the Court of Appeals for the Federal Circuit regarding the Hatch-Waxman Safe Harbor. Although it is well settled that the Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act permits a generic drug company to use the patented invention of another party to develop a generic drug for approval by the United States Food and Drug Administration (“FDA”), the court’s recent decisions have raised a question as to whether the safe harbor may protect activity subsequent to FDA approval of the generic drug. Clarification is needed on this issue and should to be provided forthwith by the judiciary. Without judicial guidance, the institutions responsible for the development and financial support of new and generic pharmaceuticals will be plagued by both legal and business uncertainty, which will adversely affect all stakeholders, including patentees, generic drug companies, and consumers.

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Sending Servers to the Sky: Can Bit Torrent Piracy be Perpetuated by the Use of Unmanned Drones?

By: David Hutchinson

Introduction: On March 18th 2012 “the galaxy’s most resilient Bit Torrent site,” The Pirate Bay declared war on copyright laws around the world. It threatened to take its Bit Torrent piracy programs to the sky in order to avoid jurisdiction.

Bit Torrent is a system by which Internet users can connect to one another’s computers to share files. Users visit a website, such as the aforementioned The Pirate Bay, and can then access torrent files from the website’s network of users. One user must create a Torrent file of the content he or she wishes to share. That file then serves as a guide for other users on a given network to access and download the content. Each time a file is downloaded from the user, a copy is made which increases access for the next user seeking to download the same content. A user can then download a number of fragments of each file from a number of different users until the download is completed, making the process rather quick. The more users in a given network, the more access a user has to fragments of a desired file, and the faster that user is able to download that particular file. Due to the quick nature of the downloading process, as well as the user driven content stream, Bit Torrent has become the most popular type of peer-to-peer downloading system for copyright protected files.

The Usefulness of the International Trade Commission as a Patent Forum in the Wake of Certain Personal Data and Mobile Communications Devices and Related Software (Apple v. HTC)

By: Stephen Burke

Introduction:  The United States International Trade Commission (hereinafter the “ITC”) is a government agency with statutory power to control matters of trade. As a part of this power, the ITC may investigate claims of patent infringement and ban infringing products from being imported into and/or sold in the country. The patent investigation power of the ITC was seldom utilized by litigants before the turn of the 21st century, who instead preferred to file complaints in federal court. With the technology boom of the 1990s and the mounting international competition into the new millennium, the ITC has seen a steadily increasing volume of patent claims.

In 2010, the now deceased Apple co-founder Steve Jobs, released an aggressive intellectual property policy statement:

“We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours.”

Following this statement, Apple filed suit against High Tech Computer Corporation (hereinafter “HTC”) in both the ITC and federal district court. The complaint alleged that HTC smartphones such as the Nexis 1 and the Droid Eris contained software that infringed Apple patents. The ITC has regularly stopped the importation of such products even when the infringement concerns only a tiny aspect of the imported product. After just over a year of investigation, the ITC found many HTC smartphones infringed the Apple patents and issued an unusual order. Instead of immediately barring importation of the HTC products, the ITC gave HTC four months to design around the patent before enjoining importation. Business and patent experts are concerned that this unusual determination is the beginning of a more lenient approach by the ITC that would significantly weaken patentees’ ability to stop competitors from getting their products into the U.S. market.

This note examines the reasons behind the ITC’s unusual holding and also looks at ITC investigations before and after Apple v. HTC to determine whether this type of holding is becoming commonplace or was simply an outlier.

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Artificial Intelligence and the Patent System: Can a New Tool Render a Once Patentable Idea Obvious?

By: William Samore

Introduction: In the summer of 1956, leaders in the field of computer science met at Dartmouth College and founded the field of Artificial Intelligence. Since then, one branch of Artificial Intelligence—Genetic Programming—has progressed to the point where it could drastically change the way that inventors design and create. Genetic programs (described in more detail in section III.B of this paper) operate by mimicking the biological evolutionary process and have a wide variety of applications. Antenna design, for example, is a field where genetic programming could radically change the nature and pace of innovation. The first antennas were built in the late 1800’s by Heinrich Hertz, and an antenna with a specific shape can be designed to emit a desired radiation pattern. As technology progressed, computer programs were designed where an antenna’s characteristics could be inputted to the computer program, and the radiation pattern would be calculated and displayed to the user. Now, computer programs have gone one step further, making it possible to do the reverse: input a desired radiation pattern and have the computer program itself design the antenna. The question that this note asks is, can changes in the tools available to inventors render previously patentable ideas obvious and therefore unpatentable? In other words, should an antenna, which could only have been designed by a human at one point but now can be designed by a computer, be patentable?

Part II introduces the reader to patent law. Part II.A discusses patent law in general, and includes an explanation of the derivation of patent rights. Part II.B then explains the legal concept of obviousness—the most relevant concept to patenting a device designed by a genetic program. Part III discusses relevant technological advances, particularly genetic programming. Next, Part IV argues that when genetic programming becomes widespread in a particular field, advances that could be created by the program should be deemed obvious. To provide a practical application for this argument, Part IV.B sets forth a widespread use test. Part V addresses anticipated contra.

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