After reviewing some of the difficulties caused by spam and summarizing the arguments of its defenders, this paper will focus on its present legal status. It will then dwell on spam from a moral point of view and address some of the ethical implications associated with transmitting this unsolicited commercial e-mail. It will attempt to sort out the conflicting rights involved and develop a viable case that even if we prescind from its social costs, spam is ethically questionable under certain (...) conditions. Moreover, given the current volume of spam and its negative impact on the Internet environment, the transmission of spam can also be characterized as an asocial act primarily because of the significant externalities which it generates. As a result, spam cannot be justified from the perspective of duty-based moral philosophies that emphasize the need to conform to the legitimate norms of the community. (shrink)

The United States recognized intellectual property rights from its earliest days and included, in its constitution, a clause which expresses this, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." These few words found in Article 1, Section 8, Clause 8 have grown into a massive body of laws that govern works that were unimaginable to Thomas Jefferson and his contemporaries. Our question (...) today is very simple: is the latest metamorphosis of copyright law, the Digital Millennial Copyright Act of 1998, prudent policy? Specifically, we are concerned with three issues which critics have raised regarding this act: chilling effects on fair use, suppression of innovation, and overreach. We will also touch on the criticism which stresses that the DMCA further expands a system which increasingly and unfairly favors the content industries. This will be limited to illustrating extant tensions between copyright owners and society and also the difficulties law faces in keeping pace with the current, rapid and overwhelming technological and cultural change. We rely primarily on leading cases to establish the impact on fair use and innovation or to demonstrate over reach. (shrink)

The browser wars case is a useful springboard for considering the principle of positive competition and the proper regulation of platform technologies. There are lessons to be culled about policy, the application of antitrust law, and the parameters of fair competition. We argue that despite Microsofts opportunistic exploitation of its proprietary code, policy makers should resist the temptation to mandate an open source code model. Vigilant anti-trust enforcement is a preferable alternative. But courts must refrain from using antitrust law to (...) favor small innovators or to constrain the economic protections inherent in intellectual property rights, since those rights are still needed to encourage innovation. On the other hand, despite the exigencies of competition, platform leaders should respect the norm of fair competition and refrain from the impulse to tilt the platform in their favor. Preservation of robust intellectual property rights, deft application of antitrust statutes, and principled competition represent the best prescription for social wealth in the New Economy. (shrink)

According to its supporters open source software is more secure and reliable than proprietary code, and even tends to foster more innovation. Its technical superiority can be linked to the ongoing peer review process which typifies the open source model. In addition, programs such as Linux offer a potential challenge to the hegemony of Microsoft. Open source holds out the possibility of restraining platform leaders such as Microsoft from acting opportunistically. Some even argue that the open source code model is (...) ethically superior to the proprietary model because of its transparency. Given these economic and social benefits, should government policy makers intervene, by tilting the playing field to open source programs? Would such government intervention truly be welfare‐enhancing? Before answering that question we note that some of the presumed technical and economic benefits of open source software are open to question. At the same time, the claims of moral superiority or social desirability are inflated and discount incentives necessary for software development. But even if this software were technically and morally superior, there is still no basis for government intervention. Our position is simple: the invisible hand of the market and not the visible hand of government should decide the fate of open source code. There is no identifiable market failure for the government to fix nor is there any plausible policy justification for giving open source software preferential treatment. (shrink)