Recent Articles

Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral

Andrew W. Torrance & Bill Tomlinson
14 Yale J. Law & Tech. 138

In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules. Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property.

Enforcement of Open Source Software Licenses: The MDY Trio's Inconvenient Complications

Robert W. Gomulkiewicz
14 Yale J. Law & Tech. 106

The Federal Circuit’s ruling in Jacobsen v. Katzer finally settled the question of whether open source licenses are enforceable. Unfortunately, three recent cases from the Ninth Circuit have complicated matters. I call this trio of cases the “MDY Trio” in honor of the Ninth Circuit’s prior trio of licensing cases known as the “MAI Trio.” On the surface, the MDY Trio provides a boost for the enforceability of software licenses, but the MDY Trio also creates two significant complications for open source licenses.

The Bramble Bush of Forking Paths: Digital Narrative, Procedural Rhetoric, and the Law

Lucille A. Jewel
14 Yale J. Law & Tech. 66

This Article explores ways to harness the persuasive and narrative power of computer games for practical legal purposes. The mental experiences we have when we play computer games relate to what attorneys do every day. Playing computer games and practicing law both require engagement with interactive plots where the outcomes depend on a series of choices in a complex system. The analogues between computer games and the practice of law are one reason that lawyers should take a deeper look at this emerging narrative theory.

Cherry-Picking Memories: Why Neuroimaging-Based Lie Detection Requires A New Framework for the Admissibility of Scientific Evidence Under FRE 702 and Daubert

J. R. H. Law
14 Yale J. Law & Tech. 1

Neuroimaging techniques have been in heavy rotation in the news lately. Increasingly, companies have used neuroimaging techniques—specifically, functional magnetic resonance imaging (fMRI)—in an attempt to determine whether an individual is telling a falsehood. More troublingly, these companies have proffered factual conclusions for use in jury trials. This Article discusses the capabilities and limitations of the technique.

Evolving Entertainment Technology: Can New Types of Fun Lead to New Types of Liability

Jennifer Jones
13 Yale J. Law & Tech. 188

The proliferation of mass-market entertainment in the late 20th century saw the emergence of "violent-entertainment cases" - claims alleging that producers of entertainment have some type of duty to prevent the consumers of their violent media from causing harm. With one notable exception, each and every one of these twenty or so claims has been dismissed. Courts have almost unanimously held that there either exists no such duty or that the entertainment in question is protected expression under the First Amendment. But will courts continue to so hold?

Licensing as Digital Rights Management, from the Advent of the Web to the iPad

Reuven Ashtar
13 Yale J. Law & Tech. 141

This Article deals with the Digital Millennium Copyright Act's anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts' indiscriminate protection of all Digital Rights Management (DRM) measures to the law's incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not.

Information Overload at the U.S. Patent and Trademark Office: Reframing the Duty of Disclosure in Patent Law as a Search and Filter Problem

Jeffrey M. Kuhn
13 Yale J. Law & Tech. 90

The United States Patent and Trademark Office (USPTO) receives more prior art submissions by patent applicants than its patent examiners have the capacity to process. Although applicant prior art submissions are highly likely to contain references material to prosecution, evidence suggests that overburdened examiners often fail to utilize references submitted by applicants in their examination of patent applications.

The Problem with Intellectual Property Rights: Subject Matter Expansion

Andrew Beckerman-Rodau
13 Yale J. Law & Tech. 35

This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally.

28 U.S.C. § 1498(A) and the Unconstitutional Taking of Patents

Joshua I. Miller
13 Yale J. Law & Tech. 1

Eminent domain requires a showing of two elements: a property right, and a proper venue to bring suit against the government. 28 U.S.C. § 1498(a) grants patent owners the right to sue the United States for the unauthorized use of patents. This statute and its predecessors have long been viewed as an exercise of eminent domain over the patent property. The Federal Circuit ignored this view in Zoltek v. United States, holding that patents are not subject to eminent domain. However, Congress has acknowledged that litigation costs are a necessary part of a patent taking.

Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence

Lily R. Robinton
12 Yale J. Law & Tech. 311

Today’s digital devices allow users to store an astounding amount of personal information and data of all types. People now favor hard drives and e-mails over file cabinets and letters. When conducting criminal investigations in today’s high-tech world, forensic analysts may compare digital fingerprints rather than physical ones. Investigators must obtain search warrants before examining any digital device for evidence of criminal activity, just as they would before searching a suspect’s car, home, or office. In the digital context, however, the warrant requirement goes awry.