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The FCC’s Broadband over Power Line Inquiry: Considering Radio-Frequency Interference Rules of the Road for the Third High-Speed Communications Wire
by David Tobenkin & Newton Howard
8 Va. J.L. & Tech. 10 (2003)   View PDF

This article examines the Federal Communications Commission’s Broadband Over Power Line (BPL) Systems Notice of Inquiry proceeding, including the issues raised by the Commission with respect to the nature of this new high-speed Internet communications medium and the radio frequency interference and technical challenges ... [show]
This article examines the Federal Communications Commission’s Broadband Over Power Line (BPL) Systems Notice of Inquiry proceeding, including the issues raised by the Commission with respect to the nature of this new high-speed Internet communications medium and the radio frequency interference and technical challenges it poses. Also analyzed are the filings of the numerous commenters in this proceeding. The article contends that more testing is needed to gauge precisely the degree of harmful interference posed by BPL, but that the Commission should allow deployment of BPL under the Commission’s existing Part 15 rules for Carrier Current Systems operating on an unlicensed basis. Such BPL systems should, however, be subjected to careful interference monitoring and, if serious interference with licensed spectrum users results, the Commission should impose remedies such as confinement of BPL signals within certain ranges of the spectrum and notching of BPL signals within bands in which there are impacted licensed users. The Commission may also wish to segregate its regulatory treatment of BPL: The Commission may, on the one hand, wish to take actions to encourage deployment of the energy utility systems applications that are unique to BPL, while, on the other, choose not to provide advantages to BPL systems that merely provide consumer high-speed access to the Internet, given the robust competition for such high-speed access already present, or soon to develop, in many markets. [hide]


Thinking Outside the Box: Child Pornography, Obscenity and the Constitution
by Debra D. Burke
8 Va. J.L. & Tech. 11 (2003)   View PDF

The constitutionality of virtual child pornography as a form of speech remains a critical issue. In the wake of the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition, which struck down portions of the Child Pornography Prevention Act of 1996, and subsequent ... [show]
The constitutionality of virtual child pornography as a form of speech remains a critical issue. In the wake of the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition, which struck down portions of the Child Pornography Prevention Act of 1996, and subsequent legislation passed by Congress, a different approach to evaluating the constitutional protection of sexually explicit speech is needed: a focus on the harms posed by such expression, rather than on its offensiveness or means of production, two characteristics that are but a part of the critical issue of harm. If a legislature instead defined child pornography as “sexually explicit speech that proximately causes physical harm through the reckless instigation of illegal acts,” then the context of the situation could be evaluated in an effort to judge recklessness, as well as the sufficiency of the connection between the speech and the harm. [hide]


Bad Faith and the Public Domain: Requiring a Pre-Lawsuit Investigation of Potential Trade Secret Claims
by Tait Graves
8 Va. J.L. & Tech. 12 (2003)   View PDF

Overbroad trade secret allegations threaten important social interests in employee mobility and a robust public domain. This article proposes that courts require trade secret plaintiffs to conduct a pre-lawsuit investigation into the public domain to ascertain whether information is truly secret, or face attorneys’ ... [show]
Overbroad trade secret allegations threaten important social interests in employee mobility and a robust public domain. This article proposes that courts require trade secret plaintiffs to conduct a pre-lawsuit investigation into the public domain to ascertain whether information is truly secret, or face attorneys’ fees for pursuing a claim based on non-secret information that a reasonable search would have located. This requirement, if widely adopted, would put teeth into the underutilized fee-shifting statutes enacted with the Uniform Trade Secrets Act. Patent law, a useful analogy, requires a pre-lawsuit infringement investigation. With a heightened awareness today of the need to protect the public domain for the important social interests it furthers, it is time that courts follow the lead of patent law and require that would-be trade secrets plaintiffs conduct a pre-lawsuit secrecy investigation. The result would be beneficial for both trade secret plaintiffs and defendants, would reduce many of the common disputes arising during trade secret litigation, and would protect the public interests at stake in trade secret lawsuits. [hide]


Technological Protection Measures in the United States, the European Union and Germany: How Much Fair Use Do We Need in the “Digital World”?
by Wencke Bäsler
8 Va. J.L. & Tech. 13 (2003)   View PDF

As digital technological advances have created new opportunities for exploiting copyrighted works, governments worldwide have sought to recalibrate the balance between preserving the protection copyright holders deserve while maintaining the proper degree of access for “fair users.” The WIPO Copyright Treaty (“WCT”), which devised ... [show]
As digital technological advances have created new opportunities for exploiting copyrighted works, governments worldwide have sought to recalibrate the balance between preserving the protection copyright holders deserve while maintaining the proper degree of access for “fair users.” The WIPO Copyright Treaty (“WCT”), which devised new legal measures for achieving this balance, has been implemented in the United States through the Digital Millennium Copyright Act and in several Member States in the European Union through the EU Copyright Directive. Because differences exist in how the United States and EU Member States, particularly Germany, have implemented the WCT, an examination of these systems reveals some advantages and disadvantages that point toward a refined balance between copyright protection and fair use. While both the U.S. and EU/German systems prohibit the circumvention of, and the trafficking in, access control devices, the United States regime does not prohibit the circumvention of copy control devices. Consequently, U.S. users who can circumvent a copy control device without trafficking in such devices may make fair use of the copyrighted material. The EU/German system does not permit the user to circumvent the copy control devices in any respect, but it does require the copyright holder to provide the user, in exchange for compensation, with the means to bypass the copy control devices and make fair use of the copyrighted material. This requirement, which expands the degree to which copyrighted material is made more accessible for fair use, gives the EU/German system a decided advantage over the U.S. regime, though the EU/German system has drawbacks that impair its effectiveness. [hide]




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