Vol. 4

There is a lot of action on the international trademark front—legislative, diplomatic and judicial—and much of it is directly traceable to the technology revolution. This paper will attempt to provide some perspective by reviewing the major developments in multilateral trademark treaties and international trends, as well as some cases on certain recurring issues: parallel importation; the protectability of a 3-D product design as a trademark; the role of reputation in trademark infringement; and the protection of well-known marks - all against the backdrop of whether the law is respecting or ignoring the realities of the marketplace.

By striking down major portions of the Communications Decency Act of 1996, the Supreme Court put policymakers on notice that free speech must be respected in the new domain of regulations concerning the Internet. Consequently, one of the most important questions facing legislative and regulatory bodies across the country is the extent to which the First Amendment confines the government’s ability to shape the media and communications infrastructure of cyberspace. On November 8, 2000, Judge Donald M. Middlebrooks of the Federal District Court for the Southern District of Florida entered this discussion in dramatic fashion. Invoking the First Amendment and a free speech tradition dating back to John Milton, Judge Middlebrooks voided a Broward County ordinance mandating "open access" on Internet-capable cable lines. In Comcast Cablevision of Broward County, Inc. v. Broward County, Judge Middlebrooks presents an expansive view of the First Amendment and defends its salience in the Internet age. The judge correctly subjected the county ordinance to First Amendment review. However, I believe that current First Amendment doctrine permits the government a wider purview within which to pursue communications regulation than Judge Middlebrooks’ opinion allows. Specifically, I aim to show that the First Amendment presents no bar to open access regulations of the kind promulgated by Broward County. My argument does not depend on a belief in the wisdom of open access as public policy. Rather, I endeavor to demonstrate that the debate over open access should go forward on the merits, without a First Amendment bar.

Many of you here, I am sure, have ambitions to become policy wonks. Conversely, many of you, I am also sure, have come of age during a time when the stockholder theory of value and deregulation and free-markets have been held as the only and highest good, and government at best is seen as a semi-dangerous, semi-dunderheaded animal. You have instrumental intelligence, or you wouldn't be in law school. Law-making and law-appealing and law-fudging and law-working- around are, of course, on your agenda. In addition, many of you here may have ambitions to go work for "getrichkwik.com" or to find new ways to profit from the raging intellectual property wars. I am not going to help you with any of that. Instead, I am going to talk about and make fun of, to some degree, the culture of high-tech.

It is a pleasure to be with you this afternoon and to have an opportunity to discuss one of the major challenges facing the courts—adaptation of law and the legal system to the special problems and opportunities created by the stunning advances in information technology that we all have seen and presumably will continue to see for the foreseeable future. Some of these problems have drawn a vast amount of attention, notably the intersection of copyright law and the Internet, as evidenced by the Napster, DVD and MP3.com cases. But there is another problem of at least equal importance that has drawn considerably less attention - the increasing clash between the privacy interests of litigants, both individual and corporate, and the vast explosion in the availability of information in our society. It is a conflict, moreover, that in many ways is just beginning and that will command more and more of our attention as time goes by.

This Note examines how architecture, and particularly the design and coding of software on the Internet, helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behavior the code is written to promote. The Note begins by describing how architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the general theory of architecture and norms to the Internet world, first describing the particular features of the Internet—anonymity, dispersion, and the free flow of information—that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how software engineers have effectively and ineffectively used code to promote the development of social norms.