By Arpita Bhattacharyya

The terms “process, machine, manufacture, and composition of matter” in Section 101 of the U.S. Patent Act provide an expansive scope for patentable subject matter. To rein in this vast scope, the United States Supreme Court decreed that “laws of nature, natural phenomenon, and abstract ideas” are outside the ambit of patentable inventions. Thus far, the Supreme Court has failed to provide any clear rationale for such per se exclusion, except for frequently raising preemption concerns in its analysis of subject matter exclusion, thus frustrating the application of the patentable subject matter doctrine to emerging technologies, such as genetics, medical diagnostics, computer software, and business methods.

By Jeremiah W. Meyer-O’Day

In Knox v. Service Employees International Union, Local 1000, the Supreme Court further restricted conditions on when unions may exact dues from agency-fee paying non-member employees. The Court’s heightened concern for the rights of employees of union shops who opt not to become members of the union contrasts with the lack of concern for the rights of dissenting shareholders in the context of corporate political advocacy. This article shows the discrepancy in the Court’s treatment of compelled speech and association seems to depend on the identity of the entity doing the compelling, and then poses questions regarding that discrepancy.

By Michael Hart

In recent years federal district courts have been inundated with a new kind of civil plaintiff known as the “copyright troll.” A plaintiff will file a claim seeking “damages for infringement upon a copyright it owns, not to be made whole, but rather as a primary or supplemental revenue stream.” Typically, these plaintiffs file a single complaint joining “tens, hundreds or thousands of individuals based on their IP addresses” for sharing a protected file across a peer-to-peer (P2P) network. Plaintiffs then move for early discovery to subpoena the identity of each Doe defendant from the service provider and send a settlement demand letter. Plaintiffs profit because some defendants feel compelled to settle rather than risk facing $150,000 in statutory damages along with court costs. Additionally, because some of the files being shared on P2P networks are pornographic films, defendants may be even more compelled to settle rather than be named as an illegal downloader of pornography. The key to all of this is large-scale joinder, that allows plaintiffs to save thousands if not millions of dollars in filing fees in order to facilitate this process.

This article discusses the use of permissive joinder in copyright troll litigation under Rule 20 of the Federal Rules of Civil Procedure.

By Kenneth R. L. Parker

There are a number of areas in which copyright law appears to have lagged behind technological advancement, including fan fiction, web videos that incorporate copyrighted elements, songs that sample from earlier copyrighted recordings, and online user-generated content. Each of these types of “gray works” has been the subject of scholarship. However, one class of gray works that has received considerably less scrutiny is forwarded emails. While forwarding emails is a common practice, it may also constitute copyright infringement.

On its face, an email message appears to merit the same level of copyright protection as a written letter, since the copyrighting process is automatic at the time a writing is fixed in a tangible form and electronic communication has been construed to be tangible for purposes of copyright. Copying or distributing a copyrighted work, absent an applicable defense, constitutes infringement. Just as copying and distributing a letter violates the author’s copyright in the letter, forwarding an email or copying its contents to a web page appears to make out the prima facie case for copyright infringement. Is there a defense or exception under which email forwarding is not copyright infringement or is the law merely ignored by email authors and forwarders alike?

Part I of this article examines under what circumstances emails are copyrighted works. Part II explores possible defenses to infringement, including implied licenses and fair use, and concludes that neither defense is consistently applicable to email forwarding. Part III discusses the implications of email forwarding constituting copyright infringement.

By David Houlihan

Chapter 156E of Massachusetts General Laws became effective on December 1, 2012, enabling the formation of benefit corporations, entities that incorporate concern for public welfare into private enterprise. Massachusetts is the eleventh state to adopt benefit corporation legislation, with the District of Columbia recently following and other states planning similar statutes.

Roughly speaking, Chapter 156E is an attempt to create a corporate form that enforces investors’ social and public welfare concerns. As this article will demonstrate, Chapter 156E represents an imperfect effort at best.

By Tom Maxim

Massachusetts law allows principals to suspend students when (1) a felony complaint has been issued against the student, and (2) in the opinion of the principal, the student’s presence at school would pose a substantial detrimental effect on the general welfare of the school. The relevant statute, Massachusetts General Laws chapter 71, section 37H1/2, does not explicitly require the alleged felony to be violent, nor does it require any connection to the welfare of the school. Also, case law interpreting section 37H1/2 allows, principals to consider on-campus conduct that does not rise to the level of suspension, such as a student’s grades.

Section 37H1/2 should be narrowed for three reasons. First, it violates the privacy rights of juvenile delinquents under another Massachusetts statute. Second, it is broader than what the legislature intended. Third, it violates a rational basis challenge under equal protection and due process. Instead of applying the statute to nonviolent juvenile delinquents, courts must limit it to violent youthful offenders whose charges are connected with the school environment.