It's MY News Too! Online Journalism and Discriminatory Access to the Congressional Periodical Press Gallery

By Ryan Benjamin Witte

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12 Yale J.L. & Tech. 208

Despite its three hundred year existence, the American newspaper is being devastated as the Internet becomes the go-to source for news. Despite the rise in Internet journalism, the sharp increase in online readership, and the precipitous drop in the number of print newspapers, policymakers still have a dismissive attitude toward alternative news sources. Such attitudes must change. In particular, the government should give online-only journalists increased access to the Galleries of the House of Representatives, the Senate, and other state-owned facilities where mainstream journalists are permitted. With a world-wide audience of millions of readers, Congress and the courts can no longer afford to relegate Internet journalism to a second-class news medium.

In Consumers Union v. Periodical Correspondents’ Association, the plaintiff, the non-profit organization that publishes Consumer Reports, questioned the constitutionality of certain rules governing the issuance of press credentials to the Galleries when it was denied admission on ground that it was not an independent publication. Based on separation-of-powers concerns, the United States Court of Appeals for the District of Columbia Circuit avoided the constitutional issue with the political question doctrine, deeming the matter nonjusticiable. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility, completely skirting the constitutional issue of whether denial of access violates the freedom of the press protected by the First Amendment. Given the switch from traditional print media to websites and Kindles, the question of who has access to the places where the news is made becomes extremely important. If and when a court will be forced to decide the constitutional issue, it will need a set of principles that balance the constitutional concerns of Congress with the constitutional rights of the online journalist.

This Article will attempt to set forth those principals while at the same time explaining the history, the nature of the rights, and the state of the law as it exists today.

Quantifying the Cost of Substandard Patents: Some Preliminary Evidence

By T. Randolph Beard, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak

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12 Yale J.L. & Tech. 240

The purpose of patent policy is to balance the incentive to invent against the ability of the economy to utilize and incorporate new inventions and innovations. Substandard patents that upset this balance impose deadweight losses and other costs on the economy. In this paper, we examine some of the deadweight losses that result from granting substandard patents in the United States. Under plausible assumptions, we find that the economic losses resulting from the grant of substandard patents can reach $21 billion per year by deterring valid research with an additional deadweight loss from litigation and administrative costs of $4.5 billion annually. This brings the total deadweight loss created by our “dented” patent system to be at least $25.5 billion annually. These estimates may be viewed as conservative because they do not take into account other economic costs from our existing patent system, such as the consumer welfare losses from granting monopoly rents to patent holders that have not, in the end, invented a novel product, or the full social value of the innovations lost.

Tags: patent

Leaving Room for Research: The Historical Treatment of the Common Law Research Exemption in Congress and the Courts, and its Relationship to Biotech Law and Policy

By Maureen E. Boyle

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12 Yale J.L. & Tech. 269

The recent suit over the validity of gene patents between the American Civil Liberties Union and Myriad Genetics has highlighted the troubling ways in which patents may be interfering with the willingness of scientists and companies to engage in basic biotechnology research on matters of vital importance to human health and disease. Many scholars have argued for a legislative research exemption to protect this sort of research. Theoretically, the common law already contains an exemption to protect certain uses of a patented product from being deemed patent infringement. This Article evaluates the history of the common law research exemption alongside the history of biotechnology policymaking since the 1970s, identifying how confusion over the scope of the judicial research exemption may have led to legislative stagnation on the issue of protecting research. Even during the infancy of biotechnology, members of Congress believed in the existence of a robust research exemption when making policy decisions about whether to create a legislative exemption. Now that the scope of the research exemption has been narrowed significantly by recent Federal Circuit decisions, at a time when the intellectual property regime permits patents on human building blocks as basic as genes, this Article highlights the need for a clear exemption. It also overviews and comments on existing policy solutions scholars have offered to counteract the chilling effect that the lack of a clear exemption might be having on basic research, including research in the biotechnology sector.

Tags: patent

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

By Lily R. Robinton

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12 Yale J.L. & 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. Traditional search and seizure rules fail to prevent general, exploratory searches, which threaten individual privacy rights. Courts recognizing this problem have adopted “special approaches” for conducting digital media searches. Although these approaches provide greater protection for privacy rights, they often severely hamper legitimate law-enforcement interests. In order to both preserve privacy rights and promote justice, legislatures must enact laws directed at the search and seizure of digital media. These laws should (1) require investigators to follow narrow search protocols, but allow expanded searches where necessary; (2) require investigators to obtain a second warrant before seizing out-of-scope evidence, with a narrow exception; and 3) require a taint team to review digital media containing privileged or third party files.