UW School of Law > LTA Journal

Washington Journal of Law, Technology & Arts

Volume 10  | Summer 2014  | Number 1

The Evolving Landscape of TCPA Consent Standards and Ways to Minimize Risk

Misa K. Bretschneider
10 Wash. J.L. Tech. & Arts  1

9/22/2014

Corporate & Commercial

Given the exponential growth in mobile phone usage, more businesses are adopting mobile communication strategies to engage with existing and potential customers. With 97% of all mobile marketing text messages being opened by their intended recipients, mobile text message marketing is both effective and lucrative. However, businesses must ensure that such messages comply with the Telephone Consumer Protection Act (TCPA), which generally prohibits sending unsolicited commercial text messages. Indeed, TCPA litigation has become the recent darling of class action lawyers due to uncapped statutory damages and is sure to increase with the heightened consent regulations promulgated by the Federal Communications Commission (FCC), effective October 16, 2013. However, businesses cannot escape liability simply by obtaining prior express consent, as more businesses are being forced into multi-million dollar settlements for exceeding the scope of consent granted by their mobile customers. This Article examines recent trends in how the FCC and the courts are delineating the contours of consent for mobile text messaging under the TCPA and provides ways businesses can engage with mobile customers without running afoul of the TCPA.

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Fixed Perspectives: The Evolving Contours of the Fixation Requirement in Copyright Law

Evan Brown
10 Wash. J.L. Tech. & Arts  17

9/22/2014

Intellectual Property

To qualify for copyright protection under the current Copyright Act, a work must, inter alia, be fixed in a tangible medium of expression. This requirement is easily met when a work is embodied in a historical medium of mass expression like a printed book, photograph, or audio recording. However, when an author departs from such established media of fixation, the requirement can create a more significant barrier to copyrightability. Three decades ago, digital media provided one such challenge. Today, authors and lawyers alike are pushing the conceptual boundaries of communicative media, and this has led to some controversial recent judicial decisions on fixation. This Article contextualizes and explores the implications of those decisions. It also points out some of the practical and conceptual pitfalls that lawyers and courts may encounter in similar cases as the limits of fixation are further tested.

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Discovering the Undiscoverable: Patent Eligibility of DNA and the Future of Biotechnical Patent Claims Post-Myriad

Alex Boguniewicz
10 Wash. J.L. Tech. & Arts  35

9/22/2014

Intellectual Property

In June 2013 the Supreme Court held that naturally occurring human DNA cannot be patented, but synthetically created DNA is patent-eligible. Though a major victory for patients’ rights, the holding of Association for Molecular Pathology v. Myriad Genetics appears to be the latest in a series of restrictions on patents and the human body, much to the annoyance of biotechnology companies. However, this case should not be viewed as the final word in patenting “natural phenomena.” Patent claims of genetic material are still viable when the claim details a new and useful improvement on the naturally occurring product or an application of the product to a process. Furthermore, the Myriad Court noted that extending the natural products rule too far would be against public policy, giving litigators room to explore the contours of this rule.

This Article examines the limits of the Supreme Court’s decision and the avenues that potential patent seekers still have for making eligible patent claims on naturally occurring products and phenomena, as well as the processes for identifying such products and phenomena. It highlights the areas where the courts are likely to take a hard stance against patent eligibility and where opportunities still exist to claim a valid patent in three areas. First, though discovery of a natural process in its naturally-occurring state is now un-patentable, the Myriad holding signals that a variation on this natural state, no matter how slight, could make the product eligible for a patent under the “new and useful improvements” rule. Second, the “application of new processes” rule is unchanged by this case. Third, a public policy argument on the importance of protecting medical and genetic discoveries may be more relevant in light of Myriad’s broad holding.

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Spying on Americans: At What Point Does The NSA’s Collection and Searching of Metadata Violate The Fourth Amendment?

Elizabeth Atkins
10 Wash. J.L. Tech. & Arts  51

9/22/2014

Constitutional & Regulatory

Edward Snowden became a household name on June 5, 2013, when he leaked highly classified documents revealing that the American Government was spying on its citizens. The information exposed that the National Security Agency (NSA) collected millions of American’s metadata through forced cooperation with telephone-service providers. Metadata contains sensitive and private information about a person’s life. When collected and searched, metadata can reveal a portrait of a person’s intimate activities amounting to a violation of one’s reasonable expectation of privacy.

This Article suggests changing the current standard allowing the NSA to collect and search metadata under Section 215 of the USA PATRIOT Act. The threshold needed to obtain and search a person’s metadata should be raised from the current standard of reasonable and articulable suspicion to a higher burden of probable cause. Since Mr. Snowden’s unauthorized disclosure, there has been public outcry regarding metadata collection. In response, President Obama issued a Public Policy Directive limiting the scope of metadata that the NSA can collect. Additionally, Congress has proposed legislation changing how the NSA collects, stores, and searches metadata. The bills, however, keep intact the minimum reasonable and articulable standard necessary to search metadata.

The breadth of information that can be gleaned from metadata makes it intrusive and subjects it to the Fourth Amendment. Yet gathering and searching metadata can be a valuable tool in the fight against terrorism and protecting American citizens from future attacks. Requiring the threshold to be raised to a probable cause determination adequately balances privacy interests against national security interests.

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