Vol 7 No 1 - Roger Williams University School of Law

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Emily J. Sack, B.A., Swarthmore College; M.A., M.Phil, Columbia University; J.D., NewYork University School of Law; Associate Professor of Law.Ellen M. Saideman, B.A., Barnard College; J.D., Columbia University School of Law;Professor of Legal Writing.Anthony J. Santoro, B.A., Boston College; J.D., LL.M, Georgetown University Law Center;President Emeritus of Roger Williams University and Senior Professor of Law.B. Mitchell Simpson III, A.B., Colgate University; M.A., M.A.L.D., Ph.D., Tufts University;LL.B., University of Pennsylvania Law School; Professor of Legal Writing.Louise E. Teitz, B.A., Yale College; J.D., Southern Methodist University School of Law;Associate Professor of Law.Michael J. Yelnosky, B.S., University of Vermont; J.D., University of Pennsylvania LawSchool; Associate Professor of Law.David M. Zlotnick, B.A., State University of New York at Binghamton; J.D., Harvard LawSchool; Associate Professor of Law.viii
Identification StatementThe Roger Williams University Law Review is published twiceannually by the students of the Roger Williams University Law Review,10 Metacom Avenue, Bristol, Rhode Island 02809; gbc@rwulaw.rwu.edu(electronic mail); http://www.rwu.edu/law/lawrev.html (internet address).Subscription rates: $28.50 per year in the United States; $33.00 per yearin foreign countries. Single issues: $15.00 each. Address allsubscription requests and other business communications to the attentionof the Administrative Assistant, Roger Williams University Law Review.If a subscription is to be discontinued at the expiration of the currentvolume, then notice to that effect should be sent to the AdministrativeAssistant; otherwise, subscriptions will be automatically renewed. Onemonth’s notice is necessary to effect change.Citations generally conform to The Bluebook: A Uniform System ofCitation (17th ed. 2000). Copyright © 2000 by The Columbia LawReview Association, the Harvard Law Review Association, theUniversity of Pennsylvania Law Review and The Yale Law Journal.______________________________________________________Submission of Articles and LettersThe Roger Williams University Law Review accepts unsolicitedmanuscripts and letters. All manuscripts must be typewritten, doublespacedand on 8½ x 11" non-bond paper; footnotes should conform toThe Bluebook: A Uniform System of Citation.The Roger Williams University Law Review reserves the right to editall manuscripts and letters. However, it is requested that such permissionbe given to the Roger Williams University Law Review.No manuscripts can be returned unless accompanied by a stamped,self-addressed envelope of appropriate size. Letters cannot be returned.Acknowledgment of receipt of manuscripts will be made inapproximately three weeks.Copyright is reserved by the Roger Williams University Law Reviewto all material published by the Roger Williams University Law Review,absent express agreement to the contrary.ix
Page 3: ROGER WILLIAMS UNIVERSITYLAW REVIEW
Page 7: ROGER WILLIAMS UNIVERSITYSCHOOL OF
Page 12 and 13: contract exclusion or disclaimer of
Page 14 and 15: and other laws of countries in whic
Page 16 and 17: Symposium and writes on this issue
Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 30 and 31: shall be null and void.65 Member st
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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