Issue 5

Remote Deletion Technology, License Agreements, and the Distribution of Copyrighted Works

In July 2009 Amazon Kindle users, who had purchased a version of George Orwell’s novel 1984, discovered that this e-book had been removed from their devices. This incident illustrated a new development in the business of distributing copyrighted works: remote deletion technology. Previously, when works were distributed on physical media, once copies were widely disseminated, it was very difficult, if not impossible, to collect these copies if the distribution was later found to be improper. Now, many works are distributed electronically to devices that remain in contact with the distributor. The combination of this communicative link plus the licensing–as opposed to an outright sale-of digital copies allows distributors to maintain control over the content stored on devices of consumers. With remote deletion technology, the entity that controls the device has the ability to achieve instantaneous, inexpensive, and complete recall of previously distributed copies. 

This ability is unprecedented and has the potential to undermine important public interests protected by the Copyright Act. Because of this potential threat, courts likely will be called upon to determine whether license agreements that grant remote deletion powers should be enforced. This Note argues that when there are adequate alternatives to secure permanent ownership of copies of a work–i.e. copies not subject to potential remote deletion–license agreements that grant this power should be respected. When a copyrighted work is distributed exclusively through license agreements that enable remote deletion, however, and there are no alternative means to acquire permanent ownership in this work, courts should find such license agreements preempted by the Copyright Act.

Courts as Diplomats: Encouraging an International Patent Enforcement Treaty Through Extraterritorial Constructions of the Patent Act

Although patent rights confer substantial market control within their territorial scope, globalization is increasingly threatening the value of patent protection. Under the current regime, innovators who enter the global marketplace must obtain patent protection in each jurisdiction where they hope to market their product, and they must litigate infringement claims separately in each of those states. The prohibitive cost of this regime has led many scholars and intellectual property law officials to call for a global patent enforcement treaty, but, despite years of negotiations, all efforts to draft such an agreement have failed.

This Note examines the role that U.S. courts may play in promoting a global patent enforcement treaty. Drawing on an emerging line of statutory interpretation scholarship that encourages courts to rely on default rules that will promote desirable political action, it examines the two primary sources of judicial power in international patent law: extraterritorial application of the Patent Act and supplemental jurisdiction over foreign patent infringement claims. After concluding that a treaty-eliciting interpretive rule is appropriate in the context of a global patent enforcement treaty, the Note contends that a presumption in favor of extraterritoriality for the Patent Act is the more efficient way to provoke discord among the major economic powers and prod the international community to address the needs of innovators in the global economy.

Nonbelievers

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent—it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against this piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines—including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding—I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

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