Yale Journal of Law & Technology
Volume 10, 2007-2008 Fall Issue
Trademark Externalities
By David W. Barnes
10 Yale J.L. & Tech. 1
This Article investigates two particularly intriguing aspects of evolving theories of intellectual property. The first is how well new theories mesh with traditional theories. Externality theory from this decade recapitulates public goods theory from the 1980s. Misappropriation doctrine from 1918 embodies the prescriptions of theory developed decades later. The second is how well theories developed for copyright and patent law, the creativity domain of IP, fit trademark law, the fraud and competition domain. This Article demonstrates that the three approaches to determining the optimal scope of copyright and patent protection involve a balancing of interests equally applicable to trademark issues. In trademark law, those interests are the creation of incentives to engage in trademarking activity and the use of marks to lower search costs and increase competition. Balancing these interests for any type of use of a mark requires weighing the benefits of exclusive rights and the benefits of free access. Courts that enjoin conduct leading to Internet initial interest confusion tend to focus solely on goodwill, the dynamic efficiency side of the balance. When accepting such claims, courts offer no limits on the internalization of externalities and ignore the inherent balancing. The mixed public goods nature of trademarks means that that the balance between incentives and access might differ for different uses of trademarks. A discussion of Internet initial interest confusion, sponsorship confusion, and post-sale confusion illustrates how to perform this balancing.
Copyright Distributive Injustice
By Daniel Benoliel
10 Yale J.L. & Tech. 45
Copyright law is not distinctively designed for redistribution. And yet, numerous fairness scholars and other critics of the economics paradigm claim that copyright law should be based upon redistribution, rather than efficiency. Redistributive justice goals intrinsically play a role in the design of the copyright commons, but whether copyright law should itself serve as the means of achieving such goals is truly questionable. This Article argues instead that, subject to narrow exceptions, copyright law doctrine should not promote redistributive justice concerns and that other, more efficient areas of law such as taxation and welfare programs should do so. This argument accords with the prevailing welfare economics approach to copyright jurisprudence and emphasizes the latest Peer-to-Peer (P2P) file sharing litigation. This Article focuses on the leading classes of individuals subject to the distributive injustice that has emerged on the internet: poor infringers, poor creators and wealthy copyright holders. This Article argues that, for at least these three classes of individuals, redistribution through copyright law offers no efficiency advantage over redistribution through the income tax system and other legal transfer mechanisms.
Surfin' Safari--Why Competent Lawyers Should Research On the Web
By Ellie Margolis
10 Yale J.L. & Tech. 82
The easy availability of information on the internet has drastically changed the way that lawyers conduct legal research and has also affected the standards for competency to which lawyers are held. This Article explores the ways in which judges’ and lawyers’ expectations have been shaped by technological changes in the last two decades. The Article reviews the various ways in which the adequacy of a lawyer’s research can be measured and concludes that competence is measured both by what techniques are standard in practice and by what sources judges look to in supporting their decisions. Because many legal materials are increasingly available only online, and because judges are showing a greater willingness to rely on non-legal information available on the web, the Article concludes that a lawyer cannot competently represent a client without going beyond Westlaw and Lexis and conducting research on the internet.
Digital Searches, General Warrants, and the Case for the Courts
By Samantha Trepel
10 Yale J.L. & Tech. 120
Translating Fourth Amendment rules designed to regulate searches and seizures of physical property into rules that regulate digital investigations raises numerous questions. This Note seeks to address one narrow subset of the issues digital evidence collection presents: the execution of computer searches conducted pursuant to warrants, and the threat of general searches—searches effectively unlimited in scope by the warrant—they raise. Both courts and academics have called attention to this risk of general searches, and many have proposed solutions that seek to preserve the Fourth Amendment’s traditional balance between individual privacy and government need. However, a single workable rule remains elusive. While the proposed solutions do not provide answers in every context, many of the rules do have merit in specific factual situations. At least while digital technology continues to change at a rapid pace, lower courts should be encouraged to develop a toolbox of rules to address the problem. Reviewing courts should take the lead, exploring the contours and boundaries of the problem and developing different tools in various factual
Private Legal Systems: What Cyberspace Might Teach Legal Theorists
By Thomas Schultz
10 Yale J.L. & Tech. 151
One of the most pervasive and recurrent issues that legal theory has had to deal with is the very concept of law. And one of the most puzzling questions that cyberspace lawyers have been facing is where and in which form law is to be found on the Internet. This essay seeks to build a bridge between these two issues. The main argument is that, on the Internet and more specifically in the context of eBay (the online marketplace) and with regard to certain aspects of domain names, private spheres of normativity may be found that deserve to be considered as the epitome of private legal systems more so than the lex mercatoria. These systems provide fertile ground to test some of the most classical issues regarding the concept of a legal system and thereby to reflect on the essential features of law. This Article is thus a discussion of legal pluralism based on examples provided by the Internet. These particularly revealing examples are used to shed some light on issues such as the distinction between social and legal norms, the autonomy of a legal system, and law’s supposed features of supremacy, territorial exclusiveness and comprehensiveness.