Electronically Stored Information and the Ancient Documents Exception to the Hearsay Rule: Fix It Before People Find Out About It
The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of these electronic media are potentially admissible for their truth at a trial if (and simply because) they were made more than twenty years ago. This is due to Federal Rule of Evidence 803(16), the so-called “ancient documents” exception to the hearsay rule. This Article argues that the ancient document exception needs to be changed because its rationale, while never very convincing in the first place, is simply invalid when applied to terabytes of prevalent and easily retrievable electronically stored information (ESI).
TL;DR—This Article provides a novel taxonomy of moderation in online communities. It breaks down the basic verbs of moderation—exclusion, pricing, organizing, and norm-setting—and shows how they help communities walk the tightrope between the chaos of too much freedom and the sterility of too much control. Scholars studying the commons can learn from moderation, and so can policy-makers debating the regulation of online communities.
Although trademark law traditionally turns on protecting consumers from confusing ambiguity, some of its doctrines ignore consumer perception in whole or in part. In particular, the doctrine of trademark incapacity—also known as the de facto secondary meaning doctrine—denies trademark protection to a term that was once a generic product designation, even if consumers now see the term primarily as a source-signifying trademark. This Article contends that trademark law fails in critical ways to reflect our knowledge of how words gain or lose meaning over time and how new meanings become part of the public lexicon, a phenomenon commonly referred to as semantic shift. Analyzing trademark acquisition through the lens of semantic shift sheds light on how the trademark incapacity doctrine misunderstands both the nature of language and the role of consumer perception in shaping trademark’s competition policy. The Article proposes replacing the doctrine of trademark incapacity with the primary significance test already applied at other stages of trademark litigation. If there is evidence that a majority of consumers have come to see the term as source-signifying rather than product designating, the law should recognize that source significance and the term should qualify for federal trademark protection.
The Costs of Self-Driving Cars: Reconciling Freedom and Privacy with Tort Liability in Autonomous Vehicle Regulation
Nearly all of the literature on self-driving cars explores either their impact on social values, like freedom and privacy, or the questions they pose for legal liability. These lines of inquiry have developed largely in isolation, with little effort to examine how they might intersect and inform each other. This Article advances an integrated approach: regulators should consider freedom, privacy, and liability as interlocking pieces—not independent elements—of the puzzle of self-driving car regulation. The Article closes by making a normative appeal to regulators: only allow autonomous vehicles to infringe on user freedom and privacy to the extent that (1) reductions in freedom and privacy lead to equivalent reductions in liability for the users of self-driving cars; and (2) the social costs incurred by forfeiting these values will be outweighed by administrative efficiencies or other identifiable social benefits.
Many experts have suggested that the USPTO approves nearly all applications, blaming this apparent leniency for many problems with the U.S. patent system. This empirical study follows the prosecution histories of 2.15 million U.S. patent applications from 1996 to mid-2013 in order to find what proportion of patent applications are eventually granted, and then discusses implications of the findings for inventors, policymakers, and legal scholars.
Since the advent of the Internet and the subsequent proliferation of online game1 worlds, millions of people across the physical world have spent vast amounts of time, money, and energy on virtual realms and their virtual lives. Some are hobbyists, casually flitting in and out of various worlds, vacationing on the surfaces of multiple universes. Some are workers, mining and laboring within virtual reality for real dollars to sustain their physical existence. And some are devotees, crafting online characters—for some, online personas—who become a part of online communities as real and complex as those within the tangible world.
This Article examines two important features of many copyright fair use cases: transformative use and commercial intermediation. While the issue of transformative use has arisen in many fair use cases, there is a lack of consistency and clear guidance on the meaning of “transformativeness” and how the degree of transformativeness is to be assessed. Additionally, in analyzing commercial use, courts have largely failed to appreciate the distinctive role played by “commercial intermediaries” in facilitating socially beneficial uses of copyrighted works. This Article advances economically grounded proposals for improving the way in which courts analyze transformative use and commercial intermediation.
Among government agencies, the IRS likely has the surest legal claim to the most information about the most Americans: their hobbies, religious affiliations, reading activities, travel, and medical information are all potentially tax relevant. Privacy scholars have studied the arrival of Big Data, the internet-of-things, and the cooperation of private companies with the government in surveillance, but neither privacy nor tax scholars have considered how these technological advances should impact the U.S. tax system. As government agencies and private companies increasingly pursue what has been described as the “growing gush of data,” the use of these technologies in tax administration will become increasingly important to consider. This Article provides an agenda of items for discussion, debate, and research related to the development, implementation, and effects of a surveillance-facilitated tax system.
This Article presents an intellectual history of competing privacy claims and counterclaims in policy debates about copyright enforcement methods. Specifically, it examines debates over Digital Rights Management technologies, or encryption tools that track the use of, and restrict access to, copyrighted information. The Article finds that, historically, information privacy claims in these debates did not lead to determinant outcomes; each argument drawn from a privacy interest corresponds to a counterclaim drawn from that same interest but supporting an opposite policy preference. Moreover, these competing claims on privacy cannot be explained as mere superficial semantics. Rather, they concern a variety of substantive concepts of information privacy interests. This observation suggests that claims on information privacy are unstable, and may unintentionally bolster the positions that their proponents intend to reject. The Article cautions against adopting new definitions of privacy interests for the digital age, and in favor of focusing policy choices on who uses new technologies and for what ends.