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Anita Allen

  • Author: Anita Allen Citation: Which is more important, privacy or art? In New York, home to many artists from around the world, the answer is clear: art. One enters juridical public spaces potentially objectified as someone’s art subject. Despite traces of “home as castle” discourse throughout US law, under New York State law one’s actual home is insecure and nonexclusive, open to artists by legal rules that elevate voyeuristic contemporary fine art photography an videography above what Louis Brandeis called the “inviolate personality” and the “sacred precincts of private and domestic life”. Arne Svenson’s photographic series “The Neighbors” is a content for exploring how a home-centric understanding of common law privacy rights clashes with the expansive imperatives of freedom of artistic expression.

Gideon Parchomovsky

Christopher Yoo

  • Author: Christopher Yoo Citation: Standard essential patents have emerged as a major focus in both the public policy and academic arenas. The primary concern is that once a patented technology has been incorporated into a standard, the standard can effectively insulate it from competition from substitute technologies. To guard against the appropriation of quasi-rents that are the product of the standard setting process rather than the innovation itself, standard setting organizations (SSOs) require patentholders to disclose their relevant intellectual property before the standard has been adopted and to commit to license those rights on terms that are fair, reasonable, and non-discriminatory (FRAND). To date courts and commentators have provided relatively little guidance as to the meaning of FRAND. The most common approach is to impose a uniform royalty based on a percentage over overall revenue. The baseline for setting this uniform royalty is the royalty that the patentholder could have charged had the standard had not been created. In essence, this approach takes the ex ante distribution of entitlements as given and attempts to ensure that the standard setting process does not increase patentholders bargaining power. However, comparisons to the ex ante baseline do not provide a basis for assessing whether the resulting outcome would maximize economic welfare.Fortunately, public goods economics can provide an analytical framework for assessing whether a particular licensing structure is likely to maximize economic welfare. Although it is often observed that patentable inventions are public goods, key concepts of public good economics (such as the Samuelson condition that provides public good economics key optimality criterion) are rarely explored in any depth. A close examination of public good economics reveals that it has important implications standard essential patents and FRAND. The resulting framework surpasses the current approach by providing a basis for assessing whether any particular outcome is likely to maximize welfare instead of simply taking the existing distribution of entitlements as given and allocating them in the most efficient way. In addition, the insight that demand-side price discrimination is a necessary precondition to efficient market provision suggests that economic welfare would be maximized if holders of standard essential patents were permitted to charge nonuniform royalty rates. At the same time, the optimal level of price discrimination would allow consumers to retain some of the surplus. It also underscores that the fundamental problem posed by standard essential patents may be strategic behavior and incentive incompatibility. The literature also suggests several alternative institutional structures that can help mitigate some of these concerns.
  • Author: Christopher Yoo Citation: [No abstract on file]
  • Author: Christopher Yoo Citation: Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the components provided by third parties comply with a compatibility standard and to subject the overall system to some form of governance. The history of the three leading open source operating systems (Unix, Symbian, and Linux) confirms this insight. The question is thus not whether some constraints will apply, but rather how restrictive those constraints will be. Finally, the governance regimes range from very restrictive to relatively open and permissive. Competition policy authorities should take into account where certain practices fall along that spectrum when enforcing competition law. Exposing the more permissive practices to demanding scrutiny runs the risk of causing operating systems to turn to more restrictive approaches.
  • Author: Christopher Yoo Citation: [No abstract on file]