Crypto Coin Offerings and the Freedom of Expression

In his Article, Professor Travis argues that the freedom of expression protects crypto coin software and related economic and technical speech from being treated like a simple offering of stock in a bank or an oil company. The Article lays out how crypto coin white papers are not strictly commercial speech, and blockchain networks are not traditional corporations or limited partnerships, but rather that crypto coins and their white papers promote information sharing, open-source software, insights in computer science and peer-to-peer networking technologies, and new socio-economic and political models of decentralized collaboration

Counter-IP Conspiracies: Patent Alienability and the Sherman Antitrust Act

Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes empirical evidence that the prime economic and business-related justification for such collusion, namely the need to reduce patent holdup, is relatively weak. It argues that some decisions not to license intellectual-property rights, or to license them at suppressed rates, may be anticompetitive, particularly if they are the result of a collusive process or serve to maintain or expand market power. Finally, it urges greater attention from a macroeconomic perspective to the plight of inventors and workers in the high-technology and patent-intensive industries. As a preliminary attempt to heighten awareness of the issue, it describes recent allegations that market power on the part of consumers of high-technology patent licenses, and reduced bargaining clout on the part of individual employees and inventors, may be contributing to unemployment and inequality

The Cultural and Intellectual Property Interests of the Indigenous Peoples of Turkey and Iraq

My contribution to this symposium will begin in Part I with an overview of the international law of indigenous peoples\u27 intellectual prop- erty interests. Part II will turn to a description of how, over the past millennium and a half, the indigenous peoples of Turkey and Iraq have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art. Part III will summarize the results of the recent U.S. and EU inquiries into the current deplorable state of the indigenous peoples of Turkey and Iraq. Part IV will propose four legal reforms. First, restitution or compensation should be implemented for the widespread destruction of these indigenous peoples\u27 cultural and intellectual properties by previous regimes, starting at a minimum with destructive campaigns since 1907, a point of transition in international law. Second, autonomous regimes that will promote the security of indigenous peoples\u27 surviving cultural and intellectual patrimony must be adopted. Third, governments and transnational enterprises dealing with them, such as museums, should respect the rights of indigenous peoples to protect, access, and use their property held abroad. Fourth, policies within Turkey and Iraq that restrict the transmission of indigenous cultural and intellectual manifestations should be reformed

WIPO and the American Constitution: Thoughts on a New Treaty Relating to Actors and Musicians

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors\u27 and musicians\u27 performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors\u27 or musicians\u27 performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed to the First Amendment by the AV Treaty\u27s introduction of performers\u27 moral rights, and by the outlawing of acts that make performances available to others even without a distribution of clips of them. This Article analyzes these First Amendment threats using the rubric provided by Eldred v. Ashcroft. It also outlines the due process concerns that arise from the AV Treaty\u27s vague language and arbitrary distinctions, and the Eighth Amendment problems arising from statutory damages in civil actions regarding the misuse of performances. Moreover, the Trans-Pacific Partnership Agreement may exacerbate the harms to the Internet inflicted by the AV Treaty, by requiring criminal charges for the noncommercial use of a performance

Are Issuers of and Dealers in Securities Immune from Lawsuits Arising Under Federal and State Antitrust Laws?

Conduct potentially subject to regulatory scrutiny by federal agencies such as the Securities Exchange Commission (SEC) is not necessarily immune from antitrust liability. The Supreme Court previously held that an anticompetitive conspiracy in the mutual fund industry was immune from antitrust liability because the SEC had the primary statutory authority to prohibit or permit such conspiracies. This case raises the question of whether another alleged conspiracy—to restrict the availability of certain initial public offerings of securities (IPOs)—is similarly immune

Reparations for Mass Atrocities as a Path to Peace: After \u3ci\u3eKiobel V. Royal Dutch Petroleum Co.,\u3c/i\u3e, Can Victims Seek Relief at the International Criminal Court?

The US Supreme Court\u27s ruling in Kiobel v. Royal Dutch Petroleum represents the culmination of a long campaign to establish a unitary power in the White House over matters of international law, and to marginalize the courts, law, and treaties. Victims of mass atrocities and their descendants have suffered from this trend towards greater impunity. The ATS barely survived its last encounter with the Supreme Court in 2004, and its usefulness has eroded steadily since that time, in a number of cases dealing with China, Nigeria, Saudi Arabia, South Africa, and Sudan. Advocates for human rights, victimized groups, and genocide prevention have consistently supported the right of victims of mass atrocities to pursue lawsuits under the law of nations in countries other than those in which the extermination, persecution, or other atrocities occurred. However, the law is being politicized as amici briefs by the Department of Justice and Statements of Interest by the State Department override the rules of the law of nations, not to mention the intent of the American founders and basic principles of justice and fairness. The Supreme Court\u27s evisceration of the ATS in Kiobel deprived international law of a key pillar of support. It arguably violates the international legal duties of the United States to prevent, punish, and remedy mass atrocities. It conflicts with the original understanding of the law of nations as rules, enforceable under federal common law and the ATS, that limit executive power so as to promote peace. As the NGO Platform informed the British Parliament, Kiobel remove[s] one of the few judicial remedies available to victims of corporate human rights abuses and grant[s] global impunity to companies who commit such wrongs, including crimes against humanity.This Article describe the vision of early American leaders that a robust ATS would safeguard victims of transnational dangers. The key purpose of the ATS was to promote peace by offering an alternative to sovereign retaliation. The Bush and Obama administrations thwarted the promise of the ATS in five ways: advocating reduced extraterritorial application, opposing non-state actors\u27 accountability under the ATS, pleading for deference to sovereign immunity in mass atrocity cases, undermining the law of nations as being ineffective (non-self-executing) verbiage, and invoking discretionary doctrines that destroy federal court jurisdiction over political questions. Promising recent developments might lead to the International Criminal Court (ICC) filling the gap left by Kiobel, and promoting peace by offering a forum for the peaceful resolution of grievances. The ICC could fund compensation, rehabilitation, and local reconciliation under Article 75 of the Rome Statute