Law Note

By: Dustin J. Friedland Abstract: The United States Constitution gives Congress many powers, including the powers to tax and spend for the good of the public, and the power to facilitate technological and intellectual innovation. Both of these powers are exercised in the form of incentive systems to induce certain conduct by the states and/or private entities. Like any incentive system, both patent protection and federal subsidies involve trade-offs between the recipients and the federal government. However, the patent system and the spending power have yet to be used in conjunction with one another. This note proposes that using these two powers to complement one another would further the goals of both powers; namely, to promote innovation by private entities, particularly in fields that facilitate widespread social utility.

By Tara E. Lynch Introduction: Falsely alleging that one has committed a crime of moral turpitude, carries a loathsome or contagious disease, or lacks integrity or ability in her trade or profession are widely recognized by lawyers and journalists as classic examples of per se defamation. Imagine, for example, two female law students walking into your office, alleging that twenty-eight different people had published statements that they carried various venereal diseases, had effectively bought their way into law school despite poor LSAT scores, and had engaged in sexual relationships with the law school’s deans. In theory, so long as these statements are false, this class of per se defamation suit seems at first blush easily won. That is until you ask who their alleged defamers are. They reply: “Pauliewalnuts,” “neoprag,” “Remember when I said I would kill you last? I Lied.,” “The Ayatollah of Rock-n-Rollah,” “DRACULA,” “Sleazy Z . . .”. Welcome to defamation in the Internet age.

By Steven J. Porizo Summary: The Terrorist Surveillance Program (TSP) is a high-tech communication signals intelligence program that we still know little about since it remains highly classified to this day. However, we do know that the TSP, by using classified and extremely cutting edge technology, “intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country.” The government on several occasions indicated that the TSP has been in place from at least 2002. Legal analysis related to the validity of the TSP is an important and contemporary issue. A case that directly challenged the legality of the TSP was decided against the government in a federal District Court and was subsequently appealed to a U.S. Circuit Court. This is an issue that should concern all Americans as it directly impacts the government’s ability to protect its citizens home and abroad, yet also raises privacy concerns that all individuals cherish. Understanding the legal contours of the TSP requires finding a very delicate balance between these two paramount and fundamental objectives. In this case, it appears that the government’s need for intelligence to protect the U.S. and its citizens against future terrorist attacks takes precedence over individual’s privacy interests.

By Brian W. Murray One of the most well-known laws is one of science—for every action, there is an equal and opposite reaction. When considering recent trends in federal communications regulation, one must wonder whether the same principle is at work. For several years, the Federal Communications Commission (“FCC”) systematically eliminated longstanding regulatory requirements that otherwise would have forced owners of broadband platforms to give competing service providers nondiscriminatory access to their networks to assure them a means of reaching customers. The general theory was that the proliferation of networks that support broadband-based services placed competitive pressure on network owners, such that they would be pleased voluntarily to provide wholesale access to their non-facilities-based competitors in order to maximize the number of customers on their networks—without any need for a regulator to tell them to do so.

By Tyson E. Hubbard Summary: How would you feel if your daily travels were tracked and stored in a large computer database? Presumably someone going over the raw data could figure out where you worked, where your kids went to school, where your family lived and at what stores you liked to shop. In the wrong hands, the potential abuses of that sort of information are very scary. What many people do not realize is that it is exactly this type of information that is being collected every day by police officers across the country. New technology which is being heavily marketed to police departments allows a camera mounted on top of a police cruiser to take a picture of your license plate and store that information, complete with time, date and exact latitude and longitude coordinates for your vehicle. This sort of information is gathered anytime your car happens to travel past a police car, or more accurately anytime a police car travels past your car. Think about how many times you pass a police car on the average day: maybe it is on the freeway, or you see a police officer doing speed checks, or you are even going the other direction on the freeway and there is an officer across the median. Maybe as you run your daily errands there is police car that has someone pulled over on the side of the road, or even a cruiser parked at the local donut shop. Then there are the times a police officer drives by your car and you are not even aware. You might be in the parking lot at work or home with the garage door open. Every time a transaction like this occurs, when your car and a police car are in the same location and the officer’s camera is operational, the information is collected. With the vast amount of information being collected and stored on every driver, police departments across the country have essentially placed tracking devices onto everyone’s vehicles.

By Jason R. Wachter Introduction: Celebrity DJs have created such a demand for their services that they are able to earn up to $1,000 per hour. Most celebrity DJs have “residences” at various nightclubs, often performing a few nights a week. However, due to their popularity and demand, there are times when celebrity DJs may perform at different events every night of the week in different cities across the country. In many cases, DJ performances at nightclubs are even broadcast live on radio stations or over the Internet allowing millions of listeners to enjoy their music. In addition, celebrity DJs pull in profits by hosting private celebrity parties and corporate events. One reason for this rise in the popularity of celebrity DJs is the advent of new technology, which allows not only professionals, but amateurs to remix and package music in their homes with increasing ease and clarity. But is this new age of the celebrity DJ all it is cracked up to be?

By Laura Eleanor Gagnon Introduction: Thomas Jefferson wrote that “liberty . . . is the great parent of science and of virtue; and that a nation will be great in both, always in proportion as it is free.” Generations of Americans pride themselves on being citizens of the country granting the most freedoms in the world. Liberty is a cornerstone of our distinguished nation. However, the federal government has gravely impaired that celebrated liberty in the area of scientific research. Federal funding of embryonic stem cell research was prohibited, thereby inhibiting the opportunity for scientific greatness that Jefferson so eloquently described. Of course, scientific advancement generally does not come without a price tag, especially when the advancement is truly groundbreaking. Sometimes the cost involves endangering our wildlife; other times it involves destroying the environment. In the case of embryonic stem cell research, the price tag for innovation may mean the destruction of embryos. Many Americans struggle with this tradeoff: is it worth ending the potential lives of these embryos in order to conduct research that may treat and even cure diseases crippling over 128 million Americans?

By Bert Kaufman Summary: In order to compete in a satellite and cable television marketplace, Verizon Internet Services has one new product to the mix of services consumers can use to get hundreds of channels into their homes. In 2005, the telecommunications giant began launching its “Verizon Fiber Optic Service” (FiOS) in select markets throughout the United States. The service, which would allow municipalities to receive pay television and other services, such as high-speed internet and telephone, over its fiber optic, internet service network, marks the entry of Verizon into the highly competitive content-delivery marketplace.

By Reece Roman SummaryTry to imagine life without the Internet. Over the last half century, the dramatic growth of the Internet has fundamentally changed the way humans shop, communicate, and entertain themselves. The Internet’s one billion users make nearly six billion searches a year. The growth of the Internet has been dramatic, with usage increasing 200 percent since 2000. According to the Department of Commerce (DoC), e-commerce now accounts for over fifty-six billion dollars in retail sales annually in the United States (U.S.) alone. As the Internet has grown, challenging technological issues associated with the Internet’s administration have arisen. What began as a simple communication between two Massachusetts and California computers has become a complex network of hardware and data. To manage this infrastructure, some administrative body is required. The Internet’s administrative body has taken a number of forms over the years. Initially, the U.S. government managed the Internet in partnership with various research institutions. However, the rapidly advancing needs of the market outpaced government competency and it became clear U.S. government administration was inadequate. The U.S. government then experimented with several administrative bodies whose task was to implement the domain name system (DNS) and technically manage the growth of the Internet. As the Internet’s popularity boomed, these bodies were overwhelmed by the technical demands and complex legal issues associated with administering the DNS. Criticism mounted, both domestically and internationally. In response to these criticisms the Internet Corporation for Assigned Names and Numbers (ICANN) emerged as the recognized authority charged with DNS governance. Although ICANN is purportedly an independent non-profit organization, the U.S. government retains ultimate control of the DNS through unique contractual arrangements between ICANN and the DoC.

By Eric Waldman Peer-to-peer (“P2P”) technology distributors, particularly Grokster and Streamcast Networks, will not miss the year 2005. In June of that year, the United States Supreme Court handed down one of the most anticipated copyright cases in recent memory. In MGM Studios Inc. v. Grokster, the Court held that a distributor of software may be liable for acts of infringement by third parties who use the software if that distributor has taken “affirmative steps to foster infringement” regardless of the device’s lawful uses, a test now known as “active inducement.” Grokster and Streamcast Networks are two P2P companies whose software was used by individuals to distribute copyrighted works. The Court found that the defendants could be liable for inducing copyright infringement. After the decision, the only content found on Grokster’s website contained a couple of paragraphs, one of which read, “[t]here are legal services for downloading music and movies. This service is not one of them.” The decision not only made a statement to Grokster, but also to all P2P companies who actively induce infringement.