COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict—indeed, have already begun to conflict—with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point that it ought to be invoked sparingly or not at all, even in extraordinary circumstances such as a pandemic. Yet that conventional wisdom is a recent one, and it conflicts with both history and theory. This Article considers the role of § 1498 in the context of national crises and emergencies like COVID-19, a context so far not addressed substantially in the literature on the statute.
With the advent of artificial intelligence (AI), the end of patent law is near. Though it may not happen today or tomorrow, the system’s decline is underway. Groundbreaking innovations in AI technology have made inventions “made by AI” a reality. Today, AI is able to “invent” not only new materials and machines but also manufacturing processes, pharmaceutical drugs, and household products. Soon, our life will be replete with artificial artifacts. In a sense, humans no longer stand at the center of the creative universe—we are no longer the masters of innovation.
This article presents a different analysis of deepfakes’ First Amendment status—and that of other fabricated evidence. Deepfakes will often deserve less First Amendment protection than a verbal lie. But this isn’t because they are a more harmful form of expression. It is because there are some uses of deepfakes are expression of the kind the First Amendment protects. They are in some respects at least partly outside the First Amendment’s “coverage.” And the reason they have to be is that they would otherwise extend the “authorship” that the First Amendment provides to speakers beyond the sphere that the Constitution sets aside for it (and can afford to set aside for it).
The antitrust “essential facilities” doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms.