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Security Researchers Battle Against the DMCA
Get PDFIn the digital age, cybersecurity plays a principal role in resolving consumer concerns regarding data breaches. Nevertheless, United States copyright laws prohibit the effective use of cybersecurity tools that disrupt malicious hackers from gaining access to personal (and sensitive) information. One law, in specific, that is detrimental to the defense against malicious attackers is the Digital Millennium Copyright Act (“DMCA”). Specifically, section 1201 of the DMCA prohibits the circumvention of copyrighted information. Malicious hackers have various tools and techniques to obtain unauthorized access to personal information via software vulnerabilities. Importantly, these vulnerabilities often result in the theft of consumers’ personal information; however, physical harm may also occur. Autonomous vehicles, for example, are ripe for software security concerns. Malicious hackers can and do attack safety-critical systems like engines and brakes. Moreover, medical devices often have vulnerabilities in their software systems—leading to severe injury or death by, for example, implantable defibrillators. So, naturally, software systems have bugs that put consumer data at risk—otherwise, there would be no need for privacy policies. However, laws like the DMCA that hinder the activities of security researchers are counterintuitive to the remediation of these bugs (and consumer safety). On October 12, 1998, the U.S. Congress passed the DMCA, amending U.S. copyright law to address the relationship between copyright and the internet. Congress’ reason for passing the DMCA was to address the concerns of copyright holders who felt that there were too few protections for their work(s). Unfortunately, when writing the DMCA, Congress could not anticipate the rapid growth of technology and how ill-equipped the legal system is to keep up with technological advancements. Now, the DMCA overreaches its intended powers and subjects security researchers to criminal liability. The current technological climate calls for improved reliability and guidance regarding existing legal authorities, as well as how investigations should be held concerning security research. In addition, researchers are increasingly becoming independent and no longer affiliating themselves with institutions that housed them in the past (such as universities). This means they are moving away from restrictive research houses and opening to the public about vulnerabilities that would have previously been prohibited under contract— limiting those who can bring claims against researchers. Significantly, this is affecting the way inexperienced vendors go about handling reports. The connection between security research and certain consumer safety is where most of this argument lays its foundation. Public awareness of the benefits of security research will improve policy decisions, providing further understanding of contributions made to digital safety and security
Rebranding Batman
Get PDFWhile one could reasonably characterize fan fiction as socially contro- versial,” with some lauding the practice as a creative outlet and others meeting it with sneers, legally speaking, its position is undeniably precarious. Fan con- tent, including fan fiction and fan films, lives in the liminal space between cop- yright infringement and fair use. Fan creators argue their works are motivated by a desire to connect with beloved copyrighted expressive works—frequently popular media franchises—and are intended only for enjoyment by themselves and very small fan communities. Copyright owners find the practice of creating fan work far less innocuous, claiming the works threaten to undermine the value of their franchises by creating competition with sanctioned works and over-saturating their markets. This article attempts to reconcile this conflict by turning to trademark law, and its likelihood of confusion standard. The article will argue that the types of expressive works that typically give rise to fan works—media franchises— are so heavily branded and commodified that they closely resemble tangible products. Corresponding to this product-like quality are a distinctive set of ownership interests that are highly reminiscent of a trademark owner’s interest in their brand. These interests diverge from the normative functions of copy- right law in a significant enough manner such that tailoring a specific frame- work is warranted. Trademark law can offer the copyright regime a set of key principles that can be adopted within its existing framework to accommodate the interests of rightsholders without squelching the creativity of fans
Bringing Nunchaks to a Gun Fight: Examining the Hidden Frontline in the Second Amendment Debate
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Enablement for Genus Claims: A Bifurcated Approach
Get PDFAbstract After two jury trials, two trips to the Federal Circuit, and two petitions to the Supreme Court, the Court this past term decided Amgen Inc. v. Sanofi without much controversy. In a unanimous decision, the Court affirmed the invalidation of Amgen’s functional antibody claims for lack of enablement. As a result, inventors down the road, not just life sciences companies, may find it more difficult to obtain broad patents. Although the Court was clear that Amgen may not “monopolize an entire class of things defined by their function,” the opinion fell short of guiding lower courts on how to address enablement of genus claims going forward. Genus claims are claims that cover multiple, related embodiments, or species, of an invention. Genus claims offer a broad scope of protection for a patentee, but they also present a particular problem to the carefully crafted patent bargain—how broad is too broad? Too much protection for genus claims may block future innovations in the entire field, while too little could discourage inventors from disclosing the inventions or even investing in innovations. Enablement is a powerful limitation the patent system placed on the scope of genus claims: the accompanying patent document (i.e., specification) must enable a skilled artisan to make and use the invention without undue experimentation. In this paper, I propose a bifurcated approach to evaluation of enablement of genus claims. This approach recognizes two different types of genus claims, one containing only functional limitations (without physical characteristics or chemical properties), and the other containing at least some structural limitations. I argue that, for functional genus claims, means-plus-function (MPF) claiming should apply, which limits a functional claim to the particular means of implementation (i.e., structure, material, or acts) disclosed in the specification and its equivalents. Under this approach, a patentee is allowed to claim an invention based on functionality, but not the function regardless of how it is implemented. On the other hand, I argue that, for structural genus claims, the inoperative embodiments doctrine applies. Accordingly, a claim does not fail for nonenablement simply because some of the covered embodiments are not operative or screening of candidates is necessary. Instead, a patent challenger carries the burden to demonstrate that it is not reasonably likely that a skilled artisan, by following the patent disclosure, can reach operative embodiments of the invention across the full scope without undue experimentation. It is essential that experimentation is evaluated based on the entire attempt to make and use the invention, instead of only on screening, which is routine in the unpredictable arts. This approach dissuades patentees from claiming with pure functional terms, leaves room for experimentation in unpredictable arts, and helps achieve a balance between incentivizing inventors and ensuring that the public enjoy the full benefits of the inventions