Brief of the R Street Institute, the Wikimedia Foundation, and Public Knowledge as Amici Curiae in Support of Respondent

Twenty-five centuries of history reject the foundation of Petitioners’ case. In contending that it may assert federal copyright law against its citizens to block distribution of the Official Code of Georgia Annotated, the State of Georgia contemplates a bright line between its uncopyrightable statutes and all other edicts of government that “lack the force of law.” No such line exists. On the contrary, sovereigns since antiquity have promulgated not only statutes but also proclamations, explanations, commentaries, and even annotations, all of which, even lacking “force of law,” carry great weight for the rule of law and the functioning of government. History reveals not a binary divide between statutes and all else, but a spectrum of edicts of government

Hacking Antitrust: Competition Policy and the Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer without authorization or exceeding authorized access, has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020. This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, the CFAA has become a favorite legal tool for dominant firms in the computer services industry to suppress competition, expand their market control, and impose transaction costs that limit consumer choice. To explore how the CFAA implicates competition, two novel approaches are used. First, this article compares prior uses of the CFAA to competition issues identified in the computer industry and other fields. This comparison reveals that the CFAA has the ability to insulate from legal scrutiny activity that at a minimum raises serious questions about negative effects on competition. Second, the article draws upon the theory and law of intellectual property, in particular trade secrets and copyright. Because it protects information but lacks the competition-protective features of copyrights and trade secrets, the CFAA essentially creates an ad hoc intellectual property regime that enables the improper suppression of competition. The legislative history of the CFAA suggests that Congress did not intend the computer intrusion statute to supplant intellectual property law or to be a tool for suppressing competition. To ensure consistency with this legislative intent, then, this article posits that the CFAA should be narrowly construed such that access without authorization does not include violations of restrictions on how accessed data is subsequently used. At least from a competition policy perspective, a narrow construction is favorable over the broad one

Brief for the R Street Institute and Engine Advocacy as Amici Curiae in Support of Respondents

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government

OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURITY

OF MONOPOLIES AND MONOCULTURES: THE INTERSECTION OF PATENTS AND NATIONAL SECURIT

Internet Freedom with Teeth

You make the very salient statement that we shouldn\u27t lose sight of the fact that this is a case about teeth. Well, Markman was a case about dry cleaning. But nobody thinks of Markman as standing for anything about dry cleaning. So went what was Chief Judge Prost\u27s perhaps most striking question to the attorney for the International Trade Commission at oral argument in ClearCorrect Operating, LLC v. International Trade Commission, which is the focus of Professor Sapna Kumar\u27s recent article Regulating Digital Trade. Yet this is what remains so fascinating about ClearCorrect: an administrative agency decision about idiosyncratic facts and perhaps the driest issue of statutory construction that one could imagine could have captivated both the legal community and the public press to have spawned, beyond Professor Kumar\u27s article, pages upon pages of legal briefing, high-visibility news reports, and even a comparison by the chief judge of the U.S. Court of Appeals for the Federal Circuit to one of the most important decisions of patent law

Securing Patent Law

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature of the current policy conversation. To respond to this use of patents as an offense tool, the best approach takes a page from cybersecurity. Patent law cannot simply exclude foreign adversaries, and so the law must be rendered secure and resilient to all potential users, foreign or domestic. Procedures for patent examination and verification, leadership in adjudication fairness, importation of competition principles into patent doctrine, and a whole-of-government approach can help to ensure that patent law is secure from exploitative abuses

Copyright in the Texts of the Law: Historical Perspectives

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing. This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law but not pure statutory text, from Rome and China to England and America. These historical episodes reveal three lessons of relevance to the debate. First, there is consistent recognition that the law is not limited to binding statutory language. Second, exclusivity over nonbinding legal texts such as annotations, whether through copyright or other means, confers undue power on government and the legal profession over the public. Third, annotations and other nonbinding legal texts are historically distinguishable from case reports or private treatises, contrary to the arguments generally proffered by the copyright-claiming states. These lessons militate toward broad-exclusion from copyright of state-authored informative legal texts, whether binding or not

Brief for the R Street Institute and Engine Advocacy as Amici Curiae in Support of Respondents

Under 35 U.S.C. § 102, an inventor may not obtain a patent on an invention that has been “on sale” for more than a year. The question is whether, from this so-called on-sale bar, certain classes of sales should be exempted— sales under a confidentiality agreement, in Petitioner’s view; and sales to those other than the ultimate customers, according to the government

Internet of Infringing Things: The Effect of Computer Interface Copyrights on Technology Standards

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television. Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of the devices\u27 basic operations: connecting to Wi-Fi, displaying web pages, sending email, connecting peripherals, or receiving broadcasts

Brief of the R Street Institute as Amicus Curiae in Support of Petitioner

It is a common but misleading premise of cases such as this one that the disappointed patent applicant has two options for judicial review: a 35 U.S.C. § 145 district court action and an appeal under 35 U.S.C. § 141. The applicant also has a non-judicial option: administrative remedies within the U.S. Patent and Trademark Office. These administrative remedies add an important dimension to this case. The Court of Appeals adopted what it conceded was an atextual construction of § 145 expense recovery provision in order to ensure that § 145 actions were not cost-prohibitive to “small businesses and individual inventors.” But in light of the robust, lower-cost administrative remedies that offer largely the same benefits as § 145, the Federal Circuit’s rationale falls away, leaving no reason to construe § 145 contrary to its plain language