Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of human will. Jean-Dominique Bauby authored the original memoir after suffering a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, Bauby blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that the transcriber had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides in gripping detail the separability of one’s intention to act and their ability to effectuate their intended actions. That Bauby could convey his thoughts through such extraordinary means is at once remarkable and tragic that anyone should suffer such a fate. Through the use of his one working eye, Bauby overcame, at least in a limited way, constraints on his freedom to act—choosing to act, effectuating action, and identifying with the action achieved. Continued…

Patent infringement litigation has not only increased dramatically in frequency over the past few decades, but also has also seen striking growth in both stakes and cost. Although a relatively rich literature has added much to our understanding of the nature, causes, and consequences of patent litigation during the past two decades, many interesting questions remain inadequately addressed. The nuances of and trends in patent litigation in different technology fields and industries, for example, are still understudied. Litigation of patents on new technologies has likewise received a dearth of attention. Here we seek to help begin filling these gaps by empirically analyzing the phenomenon in a very particular context: the litigation of Internet patents. In particular, we study litigation of patents on Internet business processes issued during the first few years in which such patents were granted, and determine whether it differs in meaningful ways from litigation of patents in other fields. Continued…

An online company provides products to individuals and small businesses. Like most online companies, it collects various types of information from its customers such as email addresses for notifications, mailing addresses for product shipment, and credit and debit card numbers for payment. Continued…

This essay views secondary trademark liability in light of tort law’s treatment of parties whose actions expose a plaintiff to third-party wrongdoing.  Broadly speaking, tort law imposes liability on a party for contributing to the tortious activity of another in two different ways. In vicarious and accomplice liability cases, courts impose on defendants the same liability to which the direct tortfeasors would have been subject, had they been defendants. If, for example, the third-party wrongdoer was a batterer, then the defendant is liable for battery. Another line of cases imposes liability for unreasonably putting a defendant at risk of third-party wrongdoing, and these cases are often based on knowledge of probabilistic harm. But crucially, these are negligence cases: even if the third-party wrongdoer is a batterer, the defendant’s liability in these cases is for negligence and not for battery. Continued…

Trafficking in counterfeit and trademark-infringing goods is a widespread and serious problem, particularly in online marketplaces that provide a forum where third parties, with relative anonymity and at limited cost, can ply their trade.  Fortunately, the law has long provided a fair, balanced standard for determining when a party can be held liable for contributing to the infringing actions of another.  In Inwood Laboratories, Inc. v. Ives Laboratories, Inc., the Supreme Court held that a party can be contributorily liable if it induced the infringement or continued to support conduct that it knew or had reason to know was infringing. Continued…

The extent to which online service providers can be held liable for copyright infringement committed by users of their services is one of the more complicated and contentious copyright issues of our day. Courts have struggled with how to apply common-law doctrines of secondary liability to online activity. Congress has enacted limitations on the liability of service providers, but conditioned those limitations on a fairly complicated set of conditions. And technology continues to evolve and to raise new questions. This Essay examines one relatively new issue concerning the interaction between Congressional and judicial developments: how do the statutory liability limitations apply to the developing cause of action for inducing copyright infringement? Part I briefly introduces both the statutory regime and inducement liability, and then examines one court’s suggestion that the statute’s limits simply do not apply to claims for inducement. Part II argues that it is too early in the evolution of the law of inducement to categorically deny the possibility that the statute might limit liability for at least some claims of inducement.