Past JLTP Abstracts - Volume 2011 Issue 1


ARTICLES

Nanocrime? by Susan W. Brenner

This article analyzes the use of nanotechnology to commit crimes. A great deal has been written about the societal implications of nanotechnology, and what has been often notes that criminals will exploit the technology for antisocial ends. But while many clearly believe the technology has the capacity for a dark side, no one has focused on how that dark side might manifest itself and on the legal issues the misuse of nanotechnology may generate. This article undertakes both tasks.

It begins with the premise that nanotechnology-like computer technology-is likely to be a profoundly transformative technology. It explains why nanotechnology is likely to have wide-ranging effects across various sectors of society and speculates that nanocrime may evolve in a fashion analogous to computer crime. The article then analyzes how nanotechnology might be used to commit crimes of various types and argues that if and when nanocrime emerges, we should not respond-as we did to computer crime-by adopting technologically specific criminal statutes. Instead, we should, insofar as possible, integrate nanocrime into existing criminal law.

Collaborative Authorship: From Folklore to the Wikiborg by Shun-ling Chen

Is collaboration an exception or the rule in the production of cultural resources? While the US courts recognize the prevalence of collaboration in cultural activities, they consistently provide a narrow interpretation of the "joint work" clause in Copyright law. This project first identifies the current legal standards for "joint authorship" and asks what the underlying collective moral choices are. I then contrast the legal doctrine with two kinds of massive and open-ended collaborations: folklore (in particular, indigenous songs) and the "Wikiborg" (in particular, Wikipedia and its sister projects). Each community has communal norms and practices that reflect their distinct collective moral choices. As these communities are part of the larger society, at times their normative systems may conflict with the institutionalized legal system. I review instances where communal norms are defended against appropriation by outsiders and against individual members' private property claims. I show that conventional use of copyright law-despite its individualist model-can provide a tool to advance communal goals, and that free licenses-albeit designed to go around copyright law to facilitate collaboration-can be used to assert individual authorial control. While a community may effectively deploy legal strategies to defend their collective practices and values, what may be of more importance for sustaining communal practices and values are the strengthening of communal norms and the continuous negotiation within the community.

Friends of the Court: Using Amicus Briefs to Identify Corporate Advocacy Positions in Supreme Court Patent Litigation by David Orozco & James G. Conley

Dire predictions that without the threat of an injunction patentees will be unable to license their inventions absent a lawsuit are simply unsupportable. In the wireless telecommunications industry, for example, products and services often implicate hundreds of patents . . . . The likelihood is far greater that technology companies will license questionable patents in order to avoid litigation . . . .

The Amici, like other patent owners, have relied on the long-settled expectation that the patent grant is presumptively enforceable via a permanent injunction. They have guided their investments in research and development, and their decisions to obtain, acquire and maintain their patent portfolios, on this understanding. The Court should not undermine the value of those investments, and the incentives to continue those investments, based on Petitioners' errant historical and policy arguments.

Distinct Words, Discrete Meanings: The Internet & Illicit Interstate Commerce by Michael D. Yanovsky Sukenik

Despite the innumerable benefits generated by the proliferation of the Internet over the last two decades, one unfortunate consequence has been the advent of a simple, fast, and inexpensive means of distributing illicit materials across state lines. While the Internet preserves the elemental appearance of anonymity crucial to those engaging in criminal activity, its development has forced courts to grapple with the application of previously unambiguous statutes regulating illegal interstate commerce. This tension was recently placed into stark relief in the context of criminal prosecutions for child pornography. In view of the policy interests involved, most circuits-with Congress's subsequent blessing-incorrectly marginalized the common techniques of statutory construction, interpreting the governing jurisdictional element to require mere use of the Internet to implicate the "in interstate or foreign commerce" nexus requirement. The sole circuit in opposition, however, applied a "plain language" reading of the statute, and demanded evidence of actual dissemination "in commerce" across state lines.

This article uses the tension created by this split to argue that well-intentioned but basically atextual statutory interpretation by the courts may better align with Congress's ultimate objectives, yet creates perverse consequences for the federal system. First, by reference to a wide variety of analogous and distinguishable bodies of legislation and legislative history, the article explains that, in construing narrow statutory language to broadly encompass any use of the Internet, the prevailing view essentially rewrote the legislation to lower the burden on the government. Next, the article demonstrates that by re-interpreting common statutory language on the fly to suit policy imperatives particular to a specific case, the majority circuits failed to incentivize Congress to monitor and bring staid statutory jurisdictional standards up to date with evolving technology. In fact, subsequent congressional action smugly validated a misguided judicial policy judgment, undermining the force of the existing statutory text and reducing the predictability of jurisdictional language. At bottom, the article concludes that judicial absolution of Congress's legislative duty poses a genuine threat to the separation of powers.

 

NOTES


Brazil's Olympic Trials: An Overview of the Intellectual Property Challenges Posed by the 2016 Rio De Janeiro Games by Carlos E. Bacalao-Fleury

The Drawing is Mine! The Challenges of Copyright Protection in the Architectural World by Christina Brunka

The Great Train Robbery: How Statutory Construction may have Derailed an American High Speed Rail System by Joshua Rogers



RECENT DEVELOPMENTS


Going Google: Your Practice, the Cloud, and the ABA Commission on Ethics 20/20 by Shellie Stephens