Communication and social networks play a vital role in the modern world. The role and importance of social networks has been heightened by the advent of the Internet and the new “information age” in which modern society operates. The Internet has had a profound impact upon nearly every society, and it has increasingly assumed indispensable functions. Not only has the Internet changed the way that people communicate and network, but it is also one of the most powerful and far-reaching technological developments known to the world with respect to information exchange, education, business, and entertainment. Continued…

The United States retail payments industry is in the middle of a transition in regard to information security. A substantial number of data breaches have occurred over the last five years, despite substantial compliance with the industry standard, the Payment Card Industry Data Security Standard. There will need to be a move to a higher level of security, and the major challenge is institutional. How can the industry organize itself to move collectively toward this goal? Without recommending any particular technical solution, this paper proposes one way to meet this institutional challenge. Drawing on the experience of Europe and the United Kingdom in moving to a chip and PIN environment, I recommend a public-private partnership where industry, government and civil society jointly work through the technical, economic and public policy issues that need to be solved if we are to have improved information security in the industry. Continued…

In the past decade, a number of studies have scrutinized the Federal Circuit’s rate of reversal of district court claim construction rulings. To date, however, there has been little empirical research focusing on district court claim construction decisions themselves. Although district court statistics represent only a “slice in time” before appeal, they are nevertheless important to litigants and trial counsel, who must make various tactical decisions and cost-benefit analyses at the district court level long before considerations of appellate reversal rates come into play. Continued…

Not long after Google announced in December 2004 that it would include in its search database the full text of books from a number of leading research libraries, two lawsuits—structured as class actions—were filed by a group representing mostly trade authors and a major publisher. One of the key issues was whether Google’s project was defensible as fair use.

After several years of discussion, a proposed settlement was reached. It would have allowed Google to continue scanning copyrighted books into its search index and displaying the text to its users in exchange for the payment of license fees to copyright holders. The proposed display rules were contingent on whether a book was still in print. Additionally, rightsholders could opt out of the settlement either entirely, by requesting the removal of protected books, or partially, by modifying the default display rules. Continued…

Google Books represents the latest attempt at the centuries-old goal to build a universal library. In 2004, Google started scanning books from libraries around the world. Although it made copyright licensing agreements with some publishers, it did not obtain permission from each rightsholder before scanning, indexing, and displaying portions of books from the stacks of libraries. Unsurprisingly, authors and publishers sued for copyright violations. Google settled the class action lawsuit in a sweeping agreement that has raised suspicion from librarians, users, and the government. In this paper, I analyze the antitrust and competition issues in the original and amended settlement agreements. I find that the simultaneous aspects of agreements and pricing pose serious antitrust problems. The settlement effectively gives Google simultaneous agreements with virtually all the rightsholders to in-copyright American books. The original agreement also would have required Google to set prices for books simultaneously. In a competitive market, both agreements and pricing would occur independently. Under current law, however, no potential competitor can make agreements with the rightsholders to orphan works. The simultaneity, therefore, concentrates pricing power, leading to cartel pricing (a problem under § 1 of the Sherman Act) and monopolization (a § 2 problem).

In a typical case of trademark infringement, a plaintiff must show, among other things, that potential consumers would be confused as to the source of a good or service, due to the defendant’s use of a mark (or in the case of trade dress infringement, the same or similar product packaging, design, labeling, etc.) that creates confusion as to source, sponsorship, or affiliation. This inquiry into the likelihood of confusion is most often governed by multifactor tests, the most prominent of which is the test articulated in Polaroid Corp. v. Polarad Electronics Corp. by the U.S. Court of Appeals for the Second Circuit. The Second Circuit is of particular interest to those who study trademark law as it generates the greatest number of trademark infringement opinions. In the Polaroid test, eight factors are considered, including: the strength of the original user’s mark, similarity of the marks, proximity of the products, the likelihood that the original user would enter into the alleged infringer’s market (thus, “bridging the gap” between the two markets), evidence of actual confusion, the alleged infringer’s intent, the relative quality of the products bearing the marks in question, and sophistication of the consumers of the products. Continued…

The United States Patent and Trademark Office (“PTO”) receives more applications today than it ever has before. What happens to those applications? Patent prosecutors all have stories and personal experiences. Until quite recently, however, this sort of “anecdata” was all that was available, because the law prevented anyone from ever finding out what happened to patent applications that did not ultimately issue as patents. Continued…