Articles

The Political Economy of Cable "Open Access"

Thomas W. Hazlett
George Bittlingmayer

A policy of "open access" is advanced to counter the market power of cable television systems in video and broadband. While substantial market power exists, economic theory demonstrates that cable operators generally do not have incentives to discriminate against independent providers of Internet access or content, and market data suggest that vertical integration (foreclosing "open access") is efficient. Moreover, historical experience shows that regulation of cable systems, including retail rate controls, leased access, and video dialtone, has proven anti-consumer.... Read more about The Political Economy of Cable "Open Access"

Damages for Infringement of Research Tool Patents: The Reasonableness of Reach Through Royalties

Michael J. Stimson

This paper provides a brief review of the law of patent infringement damages and applies this law to various situations involving infringement of research tool patents, which are patents to materials and methods that can be used to make discoveries. The discussion focuses on the appropriate measure of damages for acts of infringement that result in discoveries profitable for the infringers, and especially on damages awards of royalties on the infringers' profits from these discoveries, known as reach through royalties.... Read more about Damages for Infringement of Research Tool Patents: The Reasonableness of Reach Through Royalties

The Doctrine of Equivalents After Festo: A Disparate Impact on Biotechnological Inventions?

Edward R. Ergenzinger Jr.
W. Murray Spruill

The Supreme Court's decision in Festo removes some of the rigidity of the Federal Circuit's "complete bar" approach to the doctrine of equivalents, but difficulties remain for biotechnology patent holders. The Court explicitly allows for the application of prosecution history estoppel to claims amended in response to enablement rejections and not just those amended to avoid prior art. Due to the uncertainty regarding enablement for nucleotide and amino acid sequences, applications in the field of biotechnology are virtually guaranteed to be amended during prosecution.... Read more about The Doctrine of Equivalents After Festo: A Disparate Impact on Biotechnological Inventions?

Virus Ex Machina: Res Ipsa Loquitur

Meiring de Villiers

A victim of computer virus infection may bring legal action under a negligence theory against entities such as web site operators and other providers and distributors of infected software. Proof of specific negligence is simple in cases involving a familiar virus strain that could have been prevented cost-effectively. However, in cases involving complex and novel strains, and where lapses in compliance with the non-durable component of anti-viral precautions leave no evidentiary trace, such direct proof may be impossible.... Read more about Virus Ex Machina: Res Ipsa Loquitur

Network Effects and Antitrust Law: Predation, Affirmative Defenses, and the Case of U.S. v. Microsoft

Max Schanzenbach

The dramatic rise of the high-tech sector of the economy in the 1980s and 1990s created new challenges for antitrust law, in large part because many high-tech markets are networks. Some scholars argue that networks should receive greater antitrust scrutiny, while others maintain that concerns about networks are exaggerated. Those who argue for greater scrutiny believe that network economic effects give networks unique opportunities for predatory behavior.... Read more about Network Effects and Antitrust Law: Predation, Affirmative Defenses, and the Case of U.S. v. Microsoft

Spiders and Crawlers and Bots, Oh My: The Economic Efficiency and Public Policy of Online Contracts that Restrict Data Collection

Jeffrey M. Rosenfeld

Recent trends reveal the search by companies for a legal hook to prevent the unauthorized copying of information posted on websites. Especially troublesome to those who struggle against this unwanted copying of website information are software robots, small programs that automatically and rapidly search, copy, and retrieve information from websites. In the center of this controversy are metasites, websites that display prices for a variety of vendors. Metasites function by implementing shopbots, which extract pricing data from other vendors' websites.... Read more about Spiders and Crawlers and Bots, Oh My: The Economic Efficiency and Public Policy of Online Contracts that Restrict Data Collection

  • August 19, 2002
  • Stan. Tech. L. Rev. 3
  • Articles

Replacing Spectrum Auctions with a Spectrum Commons

Stuart Buck

This article argues that new technologies (such as spread spectrum and ultra-wideband) make the idea of divisible allocations of the spectrum obsolete. Thus, we should consider regulating the spectrum, at least for some frequency bands, as a "common pool regime," in which local communities of spectrum users would decide what rules and allocations governed local spectrum usage, and in which at least some areas of the spectrum would be open to all users on an equal basis.... Read more about Replacing Spectrum Auctions with a Spectrum Commons

Perserving the Aftermarket in Copyrighted Works: Adapting the First Sale Doctrine to the Emerging Technological Landscape

Justin Graham

The post-sale market in copyrighted works, so vital to any copyright regime aimed at securing the widest possible dissemination of material, has been sharply curtailed. The proliferation of mass-market licenses reserving title in the copyright holder has placed an ever-increasing number of works outside the protective reach of § 109 of the Copyright Act (the first sale doctrine, which protects the property rights of alienation and trade by extinguishing the copyright holder's right to control further dissemination of his work following a lawful "first sale").... Read more about Perserving the Aftermarket in Copyrighted Works: Adapting the First Sale Doctrine to the Emerging Technological Landscape

  • July 5, 2002
  • Stan. Tech. L. Rev. 1
  • Articles

Freedom of Speech, Cyberspace, and Harassment Law

Eugene Volokh

This article presents four cyberspace speech controversies that involve hostile environment harassment law. The author uses these examples to draw two conclusions. First, in most of the controversies, the result should largely be driven not by the medium, but by relatively medium- independent underlying free speech principles. Second, in a system built on precedent and on litigation by many plaintiffs in many courts, speech restrictions accrete over time, with each victory for restriction laying the groundwork for broader restrictions in the future.... Read more about Freedom of Speech, Cyberspace, and Harassment Law

A New Paradigm in Intellectual Property Law?: The Case Against Open Sources

Mathias Strasser

The Article is dedicated to what is currently one of the most contested topics of cyberlaw: the proposition that software should be "open." After briefly describing the nature of software and how intellectual property law presently applies to software, the Article points to an ostensible inconsistency in the application of copyright law to software that might be responsible for legal academia's favorable reaction to the open source movement.... Read more about A New Paradigm in Intellectual Property Law?: The Case Against Open Sources

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