Yale Journal of Law & Technology
Volume 12, 2009-2010 Fall Issue
The Citation of Wikipedia in Judicial Opinions
By Lee F. Peoples
12 Yale J.L. & Tech. 1
Wikipedia has been cited in over four hundred American judicial opinions. Courts have taken judicial notice of Wikipedia content, based their reasoning on Wikipedia entries, and decided dispositive motions on the basis of Wikipedia content. The impermanent nature of Wikipedia entries and their questionable quality raises a number of unique concerns. To date, no law review article has comprehensively examined the citation of Wikipedia in judicial opinions or considered its long-range implications for American law.
This article reports the results of an exhaustive study examining every American judicial opinion that cites a Wikipedia entry. The article begins with a discussion of cases that cite Wikipedia for a significant aspect of the case before the court. The impact of these citations on litigants’ constitutional and procedural rights, the law of evidence, judicial ethics, and the judicial role in the common law adversarial system are explored. Part II discusses collateral references to Wikipedia entries. Part III proposes a set of best practices for when and how Wikipedia should be cited. Detailed statistics on the quality of Wikipedia entries cited in judicial opinions and the completeness and accuracy of citations to Wikipedia entries are provided. The article concludes with a discussion of the impact of Wikipedia citations in judicial opinions on the future of the law.
The Individual Inventor Motif in the Age of the Patent Troll
By Christopher A. Cotropia
12 Yale J.L. & Tech. 52
The individual inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the individual inventor’s image and, in turn, caused Congress, the United States Patent and Trademark Office (USPTO), and the courts to become less concerned with patent law’s impact on the small inventor. This Article explores whether there has been a change in attitude by looking at various sources from legislative, administrative, and judicial actors in the patent system, such as congressional statements and testimony in discussions of the recent proposed patent reform legislation, the USPTO’s two recently proposed sets of patent rules and responses to comments on those rules, and recent Supreme Court patent decisions. These sources indicate that the rhetoric of the motif has remained unchanged, but its substantive impact is essentially nil. The motif has done little to stave off the increasingly anti- individual-inventor changes in substantive patent law. This investigation also provides a broader insight into the various governmental institutions’ roles in patent law by illustrating how different institutions have responded—or not responded—to the use of the individual inventor motif in legal and policy arguments.
Death of the Revolution: The Legal War on Competitive Broadband Technologies
By John Blevins
12 Yale J.L. & Tech. 85
This Article examines the role that law has played in entrenching incumbents in the communications industry, with a particular focus on broadband services. Earlier this decade, several new “revolutionary” broadband technologies threatened to fundamentally disrupt industry structures. This revolution, however, never arrived. The reason, I argue, is that industry consolidation transformed law into a powerful and versatile entrenchment mechanism that stifled these emerging competitive threats. Simply put, the sheer size superiorities enjoyed by today’s incumbent companies has created new and self-reinforcing opportunities to use law to entrench their market position. My focus, however, is not upon consolidation itself, but upon the “entrenchment effects” that result from these dynamic intersections of law and consolidation. My analysis implies that many of the current regulatory reforms being considered by the new Obama Administration may be futile. Consolidation has created entities that are, in many respects, more powerful than the law’s ability to regulate them. The ultimate implication is that only more aggressive reforms—such as comprehensive structural remedies—can undo this deep entrenchment.
E-Book Transactions: Amazon "Kindles" the Copy Ownership Debate
By Michael Seringhaus
12 Yale J.L. & Tech. 147
The Amazon Kindle is revolutionizing the way we buy and read books. But according to Amazon, Kindle books are not sold at all. Rather, they are licensed under surprisingly aggressive terms.
This may surprise Kindle users. Amazon’s promotional materials paint a very different picture of Kindle e-book transactions than its Terms of Service, which are buried online and purport to bind users automatically by a “browsewrap” agreement—meaning users are bound by its terms simply by visiting Amazon’s Web site.
It is not clear whether courts will uphold Amazon’s characterization of Kindle e-book transactions as mere licenses, or instead reclassify them as sales. If the transaction is deemed a sale, Kindle e-books would trigger the protection of the copyright “first sale” doctrine, allowing e-book owners to lend, trade, and resell them.
This Article surveys the legal landscape surrounding digital content transactions, including copyright law, case law, and the Uniform Commercial Code, and argues that Kindle e-book transactions should be characterized as sales. This Article also presents possible ways to make sales of e-books viable, using Digital Rights Management to enforce single-copy ownership.
Books are important and lasting cultural contributions, a fundamental vehicle of free thought. While licensing may make sense for software or other short-lived digital content, courts should protect our ownership interest in books—which brings with it the right to share, sell, and pass on—whether digitally displayed or otherwise.