Past JLTP Abstracts - Volume 2003 Issue 2


A Primer on U.S. Intellectual Property Rights Applicable to Music Information Retrieval Systems

Michael W. Carroll


Digital technology has had a significant impact on the ways in which music information can be stored, transmitted, and used. Within the information sciences, music information retrieval has become an increasingly important and complex field. This Article is addressed primarily to those involved in the design and implementation of systems for storing and retrieving digital files containing musical notation, recorded music, and relevant metadata – hereinafter referred to as a Music Information Retrieval System (“MIRS”). In particular, this group includes information specialists, software engineers, and the attorneys who advise them. Although peer-to-peer computer applications, such as Napster’s MusicShare or the KaZaA Media Desktop, can be conceived of as creating a MIRS, my analysis focuses on MIRS designed or operated by an entity that takes responsibility for choosing and controlling the music information stored in the system. Examples would include digital music collections stored in research libraries or on university intranets, as well as commercial systems with similar design features.

This Article describes how certain provisions of U.S. intellectual property law apply to MIRS and mentions relevant law in the European Union for purposes of comparison. The focus is on U.S. copyright law, with very brief mention of U.S. patent and trade secret law. Additionally, the Article mentions proposed legislation for database protection, which already exists in the European Union. Enactment of such legislation could be very significant for developers and operators of MIRS.

Fighting Keywords: Translating the First Amendment to Protect Software Speech

Robert Plotkin


The ongoing debate over the applicability of the First Amendment to software focuses primarily on whether software is speech, a device, or a combination of both. According to the terms of this debate, if software is speech then the First Amendment fully protects it; however, if software is a device, it deserves no First Amendment protection. I argue that this debate is not comprehensive because the mere classification of software as “speech” or as a “device” does not end the First Amendment inquiry. I propose an alternative framework in which well-accepted principles of tort law, criminal law, and First Amendment jurisprudence are combined to provide maximum protection for “software speech,” while contemporaneously promoting the public interest in regulating harm. Shaping the precise contours of such a framework, however, will require the resolution of difficult public policy questions raised by the unique nature of software and the Internet.

“A Rose by any Other Name”: Judicial Use of Metaphors for New Technologies

Stephanie A. Gore


It is now fairly established in cognitive science and linguistics that metaphors are an essential tool used to organize thought. It is human nature to reach for metaphors when trying to comprehend new concepts. Metaphors, however, may also selectively guide, or misguide, our cognitive processes. By emphasizing one aspect of a concept, a metaphor may blind us to other aspects that are inconsistent with the metaphor.

The power of metaphor raises particular concerns in legal disputes wherein the resolution depends on comprehending new or developing technology. First, concerns have been raised regarding the judiciary’s ability to understand complex technology. Second, fear is a powerful barrier to learning, and fear of technology is a common phenomenon. Third, metaphors can be seductive, and may lead a person to end efforts to understand a new (perhaps daunting) concept too quickly. Finally, metaphors play a particularly powerful role in the law, since a court may inherit as precedent metaphors chosen by another court.

All of this leads to the potential for the creation of precedents in which courts substitute poorly fitting metaphors for true comprehension of the technology at issue.

This Article examines the use of metaphors by courts to comprehend new and developing technologies. It further examines the danger in the selection of definitional metaphors for new and changing technology, and how courts can avoid such dangers through recognition of both the limits of metaphors and the need to keep the metaphorical door open to information—and even additional metaphors – that may help further their understanding of new technologies.


A Guidebook to Cybersquatting Litigation: The Practical Approach in a World

Zohar Efroni


In June 2003, the United States Court of Appeals for the Fourth Circuit rendered its decision in the case of, Inc. v. Excelentisimo Ayuntamiento de Barcelona, concluding a highprofile dispute between the Spanish registrants of and the City Council of Barcelona, Spain. In this case of first impression, the Fourth Circuit added another important building block to the growing body of domain name and trademark jurisprudence in the United States. The holding, which determines the rule of law applicable to the “reverse domain name hijacking” provision of the Anticybersquatting Consumer Protection Act, carries far-reaching consequences for future international domain name disputes. This Essay explores the background and practical implications of the holding. Sections I, II, and III explain the background of the dispute, its relevant legal framework, and the Fourth Circuit’s ruling. Sections IV and V analyze this ruling and suggest practical litigation strategies for domain name disputes.

The Law and Economics of Unbundling and Impairment

T. Randolph Beard 
Robert B. Ekelund Jr. & 
George S. Ford


This Essay addresses probably the most critical issue in modern competition policy for the telecommunications industry: the impairment standard by which network components are selected for unbundling. This standard has been defined twice by the Federal Communications Commission (“FCC”) and twice remanded by the Supreme Court. We provide an explanation as to why, and propose a more sound definition of impairment based on the statute and economic science.

The Essay also provides a simple theoretical model of impairment and then estimates an econometric model derived from the theory. The econometrics deal with the relationship between the Unbundled Network Element-Platform and the Unbundled Network Element-Loop, which some view as substitute modes of entry. The Unbundled Network Element-Platform—by far the most successful mode of entry in local exchange markets—requires the use of unbundled switching, which the incumbent carriers do not want to provide as an unbundled element. The statistical model determines whether the two are substitutes, and whether impairment exists with respect to unbundled switching. This issue is the most contentious debate at the FCC and state regulatory agencies, and the fifty state proceedings initiated by the FCC’s Triennial Review Order will deal exclusively with whether or not unbundled switching should be an unbundled element.


Aiding the Enemy: Imposing Liability on U.S. Corporations for Selling China Internet Tools to Restrict Human Rights

Jill R. Newbold


Battle of Titans: Intellectual Property Regime v. UCC

Steve B. Park


Real-Time Disclosure of Securities Information Via the Internet: Real-Time or Not Right Now?

Aaron J. VanGetson