Current Issue

Volume 19

When Timekeeping Software Undermines Compliance

Elizabeth Tippett, Charlotte S. Alexander, Zev J. Eigen

19 Yale J.L. & Tech. 1

Electronic timekeeping is a ubiquitous feature of the modern workplace. Time and attendance software enables employers to record employees’ hours worked, breaks taken, and related data to determine compensation. Sometimes this software also undermines wage and hour law, allowing bad actor employers more readily to manipulate employee time cards, set up automatic default rules that shave hours from employees’ paychecks, and disguise edits to records of wages and hours. Software could enable transparency, but when it serves to obfuscate instead, it misses an opportunity to reduce costly legal risk for employers and protect employee rights.

Going Native: Can Consumers Recognize Native Advertising? Does it Matter?

David A. Hyman, David Franklyn, Calla Yee, Mohammad Rahmati

19 Yale J.L. & Tech. 77

Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online.  The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising.  We explore whether respondents can distinguish native advertising and “regular” ads from unpaid content, using 16 native ads, 5 “regular” ads, and 8 examples of news/editorial content, drawn from multiple sources and platforms.  

Tackling the Algorithmic Control Crisis—the Technical, Legal, and Ethical Challenges of Research into Algorithmic Agents

B. Bodo, et al.

19 Yale J.L. & Tech. 133

Algorithmic agents permeate every instant of our online existence. Based on our digital profiles built from the massive surveillance of our digital existence, algorithmic agents rank search results, filter our emails, hide and show news items on social networks feeds, try to guess what products we might buy next for ourselves and for others, what movies we want to watch, and when we might be pregnant. Algorithmic agents select, filter, and recommend products, information, and people; they increasingly customize our physical environments, including the temperature and the mood. Increasingly, algorithmic agents don’t just select from the range of human created alternatives, but also they create. Burgeoning algorithmic agents are capable of providing us with content made just for us, and engage with us through one-of-a-kind, personalized interactions. Studying these algorithmic agents presents a host of methodological, ethical, and logistical challenges.

Don't Fence Me In: Reforming Trade and Investment Law To Better Facilitate Cross-Border Data Transfer

Andrew D. Mitchell, Jarrod Hepburn

19 Yale J.L. & Tech. 182

The transfer of data across borders supports trade in most service industries around the world as well as the growth of traditional manufacturing sectors. However, several countries have begun to adopt laws impeding the cross-border transfer of data, ostensibly in pursuit of policy objectives such as national security, public morals or public order, and privacy. Such domestic measures create potential concerns under both international trade law and international investment law.

Social Media Searches and the Reasonable Expectation of Privacy

Brian Mund

19 Yale J.L. & Tech. 238

Under existing law, social media information communicated through behind password-protected pages receives no reasonable expectation of privacy. The Note argues that the Fourth Amendment requires a greater degree of privacy protection for social media data. Judicial and legislative activity provides indicia of a willingness to reconsider citizens’ reasonable expectation of privacy and reverse an anachronistic equation of privacy with secrecy. Government monitoring of private social media pages constitutes a deeply invasive form of surveillance and, if government agents employ covert tactics to gain access to private social media networks, then the Fourth Amendment controls government use of that private social media information.

Whose Song Is That? Searching For Equity and Inspiration For Music Vocalists Under the Copyright Act

Tuneen E. Chisolm

19 Yale J.L. & Tech. 274

This article examines some of the inherent inequities that exist for music vocalists under the United States Copyright Act and related music industry practices, due to the limited scope of protection given to sound recordings and the absence of an express inclusion of nondramatic music performance as a protected work under Section 102(a). It argues for expansion of the rights afforded to include, for music vocalists with respect to nondramatic works, an inalienable copyright, separate from the sound recording copyright, based upon a sole right of authorship in their performance as an applied composition, once fixed. It also argues for a restriction of the sound recording copyright to limit derivative works thereof to use of the integrated whole, thereby enabling the vocalist to control the use of an isolated vocal performance and the resulting applied composition embodied therein.

Block-by-Block: Leveraging the Power of Blockchain Technology to Build Trust and Promote Cyber Peace

Scott J. Shackelford, Steve Myers

19 Yale J.L. & Tech. 334

There has been increasing interest in the transformative power of not only crypto-currencies like Bitcoin, but also the technology underlying themnamely blockchain. However, the legal literature has largely ignored the rise of blockchain technology outside of its finance, securities, and copyright implications. This Article seeks to address this omission by analyzing the potential impact of blockchain technology on advancing the cybersecurity of firms across an array of sectors and industries with a particular focus on certificate authorities and the critical infrastructure context. Moreover, we examine the rise of blockchains through the lens of the literature on polycentric governance to ascertain what lessons this research holds to build trust in distributed systems and ultimately promote cyber peace. 

Trademark Issues Relating to Digitalized Flavor

John T. Cross

19 Yale J.L. & Tech. 389

Over the past three decades, most people have become accustomed to dealing with music, film, photography, and other expressive media stored in digital format. However, while great strides have been made in digitalizing what we see and hear, there has been far less progress in digitalizing the other senses. This lack of progress is especially evident for the chemical senses of smell and taste. However, all this may soon change. Recently, several groups of researchers have commenced various projects that could store odors and flavors in a digital format, and replicate them for humans.

This article explores how trademark law can respond to certain uses of digital flavors. It analyzes various trademark law issues that may arise, such as whether a party can obtain trademark rights in a digitalized flavor as well as whether others can borrow an existing flavor to market their goods or services. While the focus is on flavor—which due to its idiosyncrasies presents the most difficult problems—many of the same conclusions will apply to odors.

Because digitalization technology in the realm of flavors is still very primitive, the article is predictive in nature. Nevertheless, by identifying the potential obstacles and problem areas now, the legal system may have time to react before the technology inevitably becomes feasible.