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PUBLICATIONS
| Cite as: J. High Tech. L. |
| Warren E. Agin, Swiggart & Agin, LLC |
| This article examines the need for knowledge of the bankruptcy world by business and intellectual property lawyers representing Internet start-up companies. Today, both IP and bankruptcy lawyers are learning that the technologies that revolutionized intellectual property law, tort law, and business have the potential to also revolutionize bankruptcy and commercial law. Agin explains that the last two years saw a trickle of eCommerce and telecommunication bankruptcies turn into a flood and, along the way, found several books and articles published by the people on the front lines. This article summarizes some of the relevant and emerging issues. |
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| Jonathan O. Nilsen |
| Nilsen examines the conflict involving trademarks on the Internet deals with domain names, or the addresses by which companies may be located on the Internet. He explains that creating a domain name that appears similar to the company's name is important because it is that company name that Internet users (“users”) will search for on the Internet. The article asserts that Internet trademark law, with regard to domain names, needs to achieve consistency with real world trademark law because companies are becoming increasingly more involved on the Internet as another aspect of business. Without consistency between the two systems, conflicts between real world trademark holders and domain name owners will continue to escalate. Nilsen suggests that NSI needs to revise its policies in order to achieve the goal of linking trademark rights between the real world and the Internet. |
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| Brian P. Heneghan |
| Heneghan explores the 1997 “No Electronic Theft (NET) Act”, entered into law by President Clinton. While the NET Act closes the “LaMacchia Loophole” by providing criminal penalties for certain copyright infringements, this article asserts that this statute reverses copyright policy that has been in existence for over a century by eliminating the requirement of commercial exploitation to trigger criminal penalties for infringement. He also addresses the overbroad and dangerously vague attributes of the new law and explains that the NET Act should be appealed or modified; the meaning of willfulness needs to be defined, the effect of a fair use defense clarified, and the criminal penalty bar raised significantly in order for the law to comport with both public policy and general copyright policy. |
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| Rebecca Ebert |
| Ebert reviews legal standards used by courts in cases regarding an intrusion upon seclusion in the private workplace. The courts looked at the invasion under the light of whether or not there existed a reasonable expectation of privacy, the test for the Fourth Amendment, available only for invasions by the state, not invasions by a private employer. She asserts that judicial confusion is leaving employees with little protection against employers who monitor their electronic communications. Ebert also reviews the private/public employee privacy protection dichotomy and the Federal statutory provision regarding interception of electronic communications and the Fourth Amendment protections for public employees. Ebert also attempts to analogize e-mail to phones and traditional postal mail to prove that e-mail requires a different level of scrutiny in invasion of privacy cases. Further, this paper considers the high level of judicial confusion involved in decisions on e-mail intrusion upon seclusion cases. Ebert also takes into consideration the ever-changing workplace and proposes an appropriate common law model by which to adjudicate intrusion cases in the workplace and what the elemental test should reflect. This paper concludes that, in an invasion of privacy context, more protection of e-mail and other types of electronic communication is necessary to advance the level of privacy protection in the private workplace. |
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| Tricia Leigh Gray |
| Gray claims that the conventional notions of jurisdiction have adapted well to the new cyber-environment. She illustrates this by the report of the American Bar Association, which extends support to the minimum contacts analysis to determine jurisdiction over on-line parties. She suggests that cyberspace has expanded the arena for interactions of all sorts, and has provided another forum in which parties can reach out to each other from different locations, and possibly create the minimum contacts necessary for personal jurisdiction. This paper analyzes the approach to the minimum contacts test to Internet jurisdiction and suggests that we should continue to use the physical status of the parties as a starting point for jurisdictional analysis because the application of the minimum contacts test to Internet jurisdiction simply extends the amenability to suit that already exists for parties. She asserts that no new rules are necessary, because although the Internet is a new forum, parties, as always, exist in a physical space. The paper also thoroughly examines the report of the American Bar Association and reviews current caselaw to support this proposition. |
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| Todd M. Wesche |
| Anyone who plans on being an employee of a company and uses email should find this article by Todd Wesche both fascinating and eye-opening. The article includes a discussion of privacy in general but really focuses on the state of privacy in the employee-employer relationship with respect to email and the internet. Many will be surprised to see how little protection they have and how many ways their communications can be monitored. Wesche's thorough article includes a history of privacy, an overview of different ways email can be tracked, the current state of the law regarding email privacy, and the effects the erosion of privacy can have on workers. |
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| Elizabeth Brasser |
| In a very clear and direct manner Elizabeth Brasser identifies a global legal issue in the differing legal standards of the US and EU regarding parallel importation, provides background and information on both US and EU stances, and finally proposes an actual solution to the problem. The legal issue discussed is that in cases where parallel importers import trademarked goods, the European Court of Justice has held the burden of proof lay with the importers for showing the trademark holder consented to the importation while the US courts have held the burden of proof lies with the trademark holder. Readers will be refreshed not just by Brasser's clear and organized discussion, but also by the fact that she offers an actual practical solution to the problem instead of merely laying out the issues. |
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| Daniel Erskine |
| Satellite radio may be becoming increasingly popular, but there is a little known drawback to the technology: it interferes with many existing wireless networks in place, such as cellular telephone service. This article looks at the legal implications that this interference causes and what kind of liability satellite operators like Sirius and XM Radio may face. Erskine includes a detailed description of how satellite radio operates and in turn describes how this operation causes the disruption. He then moves into a discussion of the current law surrounding the technology and different theories of liability, including tort theories. His approach is straightforward and applies this legal analysis to the actual technology being employed today. |
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| Jessica M. Natale |
| Virtual legal presence is the concept that an individual may use an alternative electronic representation of themselves to serve as their legal representative for an ever increasing number of transactions and events. Allowing people to transact using their electronic virtual selves could have a dramatic effect on how activities like voting, arraignments, marriage, etc. Natale's article endeavors to develop a series of arguments concerning the usefulness and reliability of virtual presence as a tool for future online and otherwise electronic activities such as: e-commerce, learning, and politics, etc. Her discussion also presents a survey of virtual legal presence: what it means presently, new industry developments, its problems and advantages, and lastly some speculations as to its future. |
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| Stephen R. Wilson |
| This entertaining article covers the major trend in popular music of sampling previous songs and including them in new works. Wilson provides information of what digital sampling is and then analyzes the phenomenon using existing copyright law. The result is a surprisingly complex legal issue that Wilson considers using a number of examples and case law. His conclusions are based on looking at the existing cases and arguing how the future of sampling litigation may be resolved. |
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