The opinions of the Justices in the Supreme Court’s recent decisions, in Tam v. Matal and Iancu v. Brunetti, striking down two provisions of the Lanham Act (which barred the registration of marks that are “disparaging” or “immoral or scandalous”) as violative of the First Amendment, leave open the questions of (1) whether an amended provision prohibiting the registration of “vulgar” marks would survive a First Amendment challenge, and (2) whether any of the Act’s other content-based bars to registration are vulnerable to such challenges. This article explores those possibilities.
This article has been prepared by experienced practitioners in the privacy area, who are interested in not only the 'how' of privacy law, but also the 'why', namely whether existing authority serves a valid social purpose and whether it does so efficiently relative to the cost that it imposes. The article was prompted by the effectiveness of the California Consumer Privacy Act. It also includes substantial discussion of the major privacy considerations associated with actual and potential responses to the COVID-19 situation, and how such considerations must be weighed against the public health considerations. The discussion encompasses all aspects of US privacy law from breach notice obligations to limitations on tracking internet use of children and the CCPA and similar law and informal guidance. It touches upon the EU's GDPR.Two of the unique attributes of the piece are the presentation of various informal sources of authority such as Federal Trade Commission consent orders and handbooks and the extensive granular author critique from both a theoretical and practical point of view of the various authorities, as well as a separate discussion of the optimal manner for policy-makers to give effect to privacy considerations in connection with mandated COVID-19 responses.
Recently, Congress has considered legislation to § 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court's precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway last year, with a subcommittee of the Senate holding numerous roundtables and hearings on the subject. This article considers some less-discussed consequences of that draft legislative proposal. The legislation likely opens the door to patenting of subject matter such as human genes and scientific discoveries, given its broad language and abrogation of precedent. Allowing such patents would have consequential effects such as potentially raising drug prices, decreasing quality of health care, deterring scientific research, slowing the development of innovative technologies, and conflicting with scientific and ethical norms. Considerations such as these ought to be top-of-mind for legislators intending to change the law of patentable subject matter eligibility.
Standards and standards-setting organizations (SSOs) have played a crucial role in shaping the innovation landscape for over three decades, especially in the information and communication technologies (ICT) sector. The advancement in mobile telecommunication and the Internet has led to a fundamental change in the way individuals communicate with each other. Devices such as smartphones, tablets, laptops and smart watches bear complex mechanical and technological features and perform multiple functionalities by connecting seamlessly. However, in order for the interoperability of these devices and their functionalities to come through, there is a requirement of a common set of specifications and interfaces, in the form of standards. Standards are widely acknowledged to be the mainstay of modern economy and can lead to an increase in the value of consumer products, as well as increased rates of innovation. The setting of standards and commercializing of innovation at large is facilitated by voluntary associations called SSOs. Competing firms come together under the auspices of SSOs to collaboratively select and adopt uniform technical standards. It is worth noting that the benefits brought about by these standards have a greater visibility in the ICT sector, primarily on account of two reasons. First, in order to make complex technologies work, there is a requirement of hundreds of thousands of patents. Second, there is a strong need for devices and networks to interoperate. SSOs are further tasked with the responsibility of fostering a regime of rapid technological innovation by balancing the interests of their members; their membership comprising of patent owners or standard essential patent (SEP) holders on one hand and implementers or licensees on the other. While the patent owners are involved in research and development (R&D) and look to maximize their earnings from licensing out their SEPs, the implementers look to seek licenses from SEP holders on terms that are fair, reasonable and non-discriminatory (FRAND), in order to use the patented technology in the manufacturing of standard-compliant end-use products. There is yet, a third category of member companies that are vertically integrated and besides owning SEPs, also operate actively in the downstream market. As members of SSOs, these firms compete in the market on both, horizontal and vertical levels, which gives rise to a possible likelihood of collusion albeit theoretically. It is because of this aspect of standard-setting, that the role of SSOs becomes extremely important. A pertinent question that arises then is, what are SSOs and how do they function? Furthermore, what is the legality of SSOs and how have they helped in the evolution of industry standards? In an attempt to answer the aforementioned questions, the focus of this paper shall center around standardization and standard-setting organizations, while tracing the evolution of standards and standard-setting activities in the ICT sector.
This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century — specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, meaningfully increased trademark law's emphasis on property — what the plaintiff owns — and deemphasized legal rules that focused on the defendant’s conduct.
This article examines the now famous conflict that took place in the 1960s between gay, African-American, avant garde composer and performer - Julius Eastman, and gay, white, composer John Cage. Eastman performed a piece composed by Cage in which Eastman sexualized some of its content in a way that outraged Cage. I use the Eastman-Cage case to explore the extent to which conflicts relating to authorial control and interpretation might be resolved outside the confines of copyright law and litigation. Some scholars argue that artists who engage in behavior similar to Eastman's are participating in a kind of cultural critique and dialogue with the original author. Cultural conversations like this only exist in the abstract, however. Real face-to-face dialogue can be messy, especially when issues concerning race, sexuality, and privilege are at play. What I want to explore is not the rights of performers to reshape a work in order to critique it, but how the idea of trust-based dialogue can give us an alternative understanding about the nature of authorial control and interpretation across identity-based differences. Theories of trust and communication from the fields of feminist relational psychology, philosophy, and law will therefore be applied to the Eastman-Cage dispute to see if the outcome might have changed had they simply sat down and talked to each other beforehand. Who knows what future collaborations might have looked like had that been the case, and what current collaborations between artists might look if this kind of dialogue were adopted now.
