Current Issue

Volume 17

Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It

Daniel J. Capra

17 Yale J.L. & Tech. 1

The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of these electronic media are potentially admissible for their truth at a trial if (and simply because) they were made more than twenty years ago. This is due to Federal Rule of Evidence 803(16), the so-called “ancient documents” exception to the hearsay rule. This Article argues that the ancient document exception needs to be changed because its rationale, while never very convincing in the first place, is simply invalid when applied to terabytes of prevalent and easily retrievable electronically stored information (ESI).

The Virtues of Moderation

James Grimmelmann

17 Yale J.L. & Tech. 42

TL;DR—This Article provides a novel taxonomy of moderation in online communities. It breaks down the basic verbs of moderation—exclusion, pricing, organizing, and norm-setting—and shows how they help communities walk the tightrope between the chaos of too much freedom and the sterility of too much control. Scholars studying the commons can learn from moderation, and so can policy-makers debating the regulation of online communities. 

A Linguistic Justification for Protecting "Generic" Trademarks

Jake Linford

17 Yale J.L. & Tech. 110

Although trademark law traditionally turns on protecting consumers from confusing ambiguity, some of its doctrines ignore consumer perception in whole or in part. In particular, the doctrine of trademark incapacity—also known as the de facto secondary meaning doctrine—denies trademark protection to a term that was once a generic product designation, even if consumers now see the term primarily as a source-signifying trademark. This Article contends that trademark law fails in critical ways to reflect our knowledge of how words gain or lose meaning over time and how new meanings become part of the public lexicon, a phenomenon commonly referred to as semantic shift. Analyzing trademark acquisition through the lens of semantic shift sheds light on how the trademark incapacity doctrine misunderstands both the nature of language and the role of consumer perception in shaping trademark’s competition policy. The Article proposes replacing the doctrine of trademark incapacity with the primary significance test already applied at other stages of trademark litigation. If there is evidence that a majority of consumers have come to see the term as source-signifying rather than product designating, the law should recognize that source significance and the term should qualify for federal trademark protection.

The Costs of Self-Driving Cars: Reconciling Freedom and Privacy with Tort Liability in Autonomous Vehicle Regulation

Jack Boeglin

17 Yale J.L. & Tech. 171

Nearly all of the literature on self-driving cars explores either their impact on social values, like freedom and privacy, or the questions they pose for legal liability. These lines of inquiry have developed largely in isolation, with little effort to examine how they might intersect and inform each other. This Article advances an integrated approach: regulators should consider freedom, privacy, and liability as interlocking pieces—not independent elements—of the puzzle of self-driving car regulation. The Article closes by making a normative appeal to regulators: only allow autonomous vehicles to infringe on user freedom and privacy to the extent that (1) reductions in freedom and privacy lead to equivalent reductions in liability for the users of self-driving cars; and (2) the social costs incurred by forfeiting these values will be outweighed by administrative efficiencies or other identifiable social benefits.

What is the Probability of Receiving a U.S. Patent?

Michael Carley, Deepak Hegde, Alan Marco

17 Yale J.L. & Tech. 203

Many experts have suggested that the USPTO approves nearly all applications, blaming this apparent leniency for many problems with the U.S. patent system. This empirical study follows the prosecution histories of 2.15 million U.S. patent applications from 1996 to mid-2013 in order to find what proportion of patent applications are eventually granted, and then discusses implications of the findings for inventors, policymakers, and legal scholars.