Volume 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.
The patent term adjustment provisions of the American Inventors Protection Act of 1999 (AIPA) have produced much terror among patent practitioners. The AIPA provides for a compensatory extension of patent term due to delays in the examination process. Such delays may result from a variety of events including the failure of the U.S. Patent and Trademark Office (PTO) to take certain actions within certain relative or absolute time periods. The AIPA, however, provides for a reduction in the term extension when the applicant fails to take certain actions within specified time periods, typically shorter than the applicable statutory or shortened statutory periods for taking such actions. Due, in all likelihood, to sloppy drafting, the AIPA provides such reduction even when the applicant's failure to act expeditiously contributed to neither a delay in patent issuance, nor the inability of the PTO to meet a deadline. Many practitioners have expressed dismay at the practice implications of the AIPA's term adjustment provisions. Some assert that a need for compliance with the shorter time periods will significantly impact their practices. I disagree. In this note I argue that the term adjustment provisions of the AIPA are not revolutionary in presenting practitioners with considerations of how prosecution may affect patent term. Furthermore, the benefits of adherence to extension-friendly deadlines under the AIPA are largely speculative.
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.
The introduction in the late 1990s of Internet securities trading (hereinafter "Cybertrading," as opposed to "Traditional Trading") is the most significant technological advance in the area of consumer financial services in the last twenty years. This Note proposes that in light of the development of Cybertrading, new consumer protection legislation may be warranted. The evidence presented here will show that many of the same risks and policy considerations which led Congress to enact consumer protection legislation with respect to credit cards, ATM cards, and Traditional Trading are similar or identical to the risks and policy considerations associated with Cybertrading. If such prior measures may be fairly characterized as successful, similar steps by Congress to protect Cybertraders may be in order.
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.
In my talk today, I would like to introduce some of the privacy concerns currently making news on the Internet. I will first look at who the players in the field are. I will explore the roles, sometimes competing and sometimes complementary, of lawmakers and programmers in resolving privacy issues. Second, I would like to show how the unique environment of the Internet has driven the development of privacy issues, notably online profiling, mostly through enabling technologies. Third, in an effort to help make some of these issues more tangible, I will discuss the role of DoubleClick, both as a source of trouble and as a would-be solver of problems. Finally, given the trajectory of development as it exists today, I will explore some possible developments in the near future of online profiling.
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.
Privacy Wars in Cyberspace: An Examination of the Legal and Business Tensions in Information Privacy
For all its remarkable attributes, the explosive growth in e-commerce and Internet use has had deleterious consequences for the privacy of participating individuals, who are often unaware of the tremendous amount of information about them that is collected and analyzed These disparate bits of data are amalgamated to yield very identifiable consumer profiles, which are subsequently sold to other organizations, depriving the consumers of their ability to control what they divulge about themselves to others, potentially resulting in a loss of individuality and creativity. Through the use of cookies, which provides numerous benefits to both consumers and retailers, the many advantages of ecommerce applications and business models are realized. However, the reliance on industry self-regulation has led to a plethora of privacy infractions in cyberspace, resulting in the enactment of the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and the U.S. plan under Bush to introduce privacy legislation after the Federal Trade Commission’s recommendation. The task of drafting legislation is wrought with the complexities of balancing the interests of both parties, while attempting to address the tension of employing either overly or under-inclusive language. This difficulty is demonstrated in the analysis of PIPEDA’s ambiguities, which is instructive for U.S. states seeking to implement similar laws, who should note that privacy legislation ought to mandate full, informed consent through an express and explicit opt-in approach.