US Jurisprudence Research Articles

Search and seizure of electronic devices in India: time for a change?

In the past two decades, there has been an exponential rise in the use of technology for commission of crimes. In certain scenarios, investigation of such crimes call for inspections of an accused's personal electronic devices. In India, there is no law regulating the field of search and seizure of electronic devices in a criminal investigation. Only recently, Virendra Khanna v State of Karnataka laid down certain guidelines in this regard. Furthermore, on multiple occasions, the Indian Courts have relied on the US jurisprudence on the matter. Due to a well-developed jurisprudence in the USA on this subject, the authors have chosen to do a comparative study between the two countries. This paper seeks to examine how these two major democracies balance the right to privacy against the need to unearth information for better investigation. While analysing the lack of a well-rounded law on the matter, this paper also analyses the provisions in the Digital Personal Data Protection Act 2023 and the Bharatiya Nagarik Suraksha Sanhita Bill 2023 and highlights the missed opportunities to frame guidelines on the issue of search and seizure of electronic device. Section II of the paper introduces the readers to the law on electronic search and seizure in the USA. Section III examines the Indian position. It discusses the law as it was pre- Virendra Khanna, then goes into the law laid down by the Karnataka High Court in Virendra Khanna and critically analyses the same. It also looks at the progress made in the field through other legislation. Section IV deals with a comparative analysis of the USA and Indian law on the subject and section V provides mechanisms and ways in which the current law can be modified to deal with some of the inadequacies of the matter.

Scientific studies of the sociological concept of law in the USA in Ukrainian jurisprudence and their source base

The article analyzes scientific studies of the sociological concept of law in the USA in Ukrainian jurisprudence and characterizes their source base. It is shown that historiographical sources unite the scientific directions of such legal sciences as the philosophy of law, the general theory of law and the state, the sociology of law, the history of law and the state, the history of political and legal studies.
 It is noted that in the Ukrainian historiography of the sociological concept of law in the USA in the 20th century. the process of determining its place and role in the history of world legal thought by comparing it with other concepts (primarily positivist) continues. It has been established that an important component of Ukrainian historiography is the sociological concept of law in the USA in the 20th century. a research methodology was developed and tested, including knowledge of the sociological approach, historical-conceptual and other research methods. It is emphasized that the Ukrainian historiography of the sociological concept in US jurisprudence of the 20th century. actualizes its research within the framework of the development of integrative legal understanding, socialization and anthropologising of law, as well as the concrete- historical conditions of the development of law in Ukraine, related to globalization and European integration processes. It has been established that the modern stage in the development of the historiography of the sociological concept of law in US jurisprudence of the 20th century. differs from previous ones in the appearance of special scientific studies (primarily dissertations), based on which the source base is expanded (at the expense of new English-language and translated literature), new approaches to the history of ideas in general and legal ideas in particular, the basic principles of conceptual approaches, conceptual apparatus and applied nature. It is summarized that new studies of the history of the sociological concept of law in the USA in the 20th century, including ours, aim to complete a certain stage of the historiographical process on the basis of historicism, that is, to find out the specific historical circumstances and other processes: political, philosophical, social, special views of Ukrainian scientists on when and under what circumstances the sociological concept arose, what are the main stages in its development and what has it become now.

Methodological aspects of the research of the sociological concept of law in the USA

The article analyzes the methodological aspects of the study of the sociological concept of law in the USA. It is noted that the most important question of a methodological nature is the question of the sociological concept of law in US jurisprudence of the 20th century. as a subject of research of historical and legal science, or its constituent history of political and legal studies. Given the fact that the sociological concept of law is one way or another studied by the philosophy of law, the theory of law, the question arises about the relationship between these sciences.
 The subject specificity of the history of legal thought and the history of the philosophy of law is shown. The relationship between the history of legal thought and the history of the philosophy of law is revealed to be of methodological importance for the study of the sociological concept of law in the jurisprudence of the USA of the 20th century, as it allows the formation of a methodology of knowledge based on philosophical and legal approaches and principles and a special methodological toolkit (methods and techniques) of the theory of law and philosophy rights Philosophical and legal conceptual approaches and principles have a worldview character in research and allow the use of concepts of the theory of legal understanding. In other words, the category sociological concept of law and as a result of its development sociological legal understanding has a philosophical meaning. The filling of this content took place with the help of various approaches and directions of general theoretical jurisprudence, in particular anthropological, etymological and legal. approaches of legal sociology. At the same time, this content (meaning) has a specific historical layer of knowledge. The content of the category “meaning” in the history of legal thought finds its fulfillment in the fact that it is connected with the understanding of the specifics of the studied era, the identification of its peculiar properties, the understanding of the studied teaching in its modern scientific and theoretical significance and cognitive value, the clarification of objective social significance (social meaning) and personal meaning (personal meaning) in the reproduction of past historical reality, reconstruction of historical situations.

The Process of Legal Institutionalization: How Privacy Jurisprudence Turned towards the US Constitution and the American State

During the twentieth century, privacy evolved from an ambiguous legal idea into a defined state-centric right, while privacy claims against non-state entities became more marginalized. Whereas prior studies treat this as the direct outcome of cultural shifts or landmark interventions by legal elites, I document legal institutionalization as a three-stage process of domain formation and meaning making. Using a combination of citation network analysis and qualitative research, I show that the concept of privacy first entered the legal field when journalists raised concerns about the unauthorized use and commodification of personal data; that US jurisprudence produced two competing schools of legal thought as judges and legal scholars struggled to give substance to an abstract concept and structure to an evolving domain of judicial practice; and that privacy was consecrated as a constitutional right when state courts and the US Supreme Court selectively mobilized the language of privacy to confront the expanding reach of the American state. These findings demonstrate the processual nature of legal institutionalization, draw attention to intra-legal contestation and the implicit pluralism of American jurisprudence, and highlight an emerging distinction between the legal regimes governing bureaucratic rule and market exchanges in the early twentieth century.

Re-examining judicial review of delegated legislation

AbstractThe usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation.

Legitimacy and effectiveness concerns in China’s private antitrust enforcement regime: a comparative analysis with the EU and US regimes

Abstract The year 2007 heralded a major advance in China’s entry to the global economy’s rules-based marketplace. Its Anti-MonopolyLaw 2007 (AML 2007) taking inspiration from European Union (EU) antitrust concepts contained internationally familiar key antitrust prohibitions. It appeared to satisfy key benchmarks, which any credible antitrust enforcement system should exhibit, namely Legitimacy and Effectiveness. However, in this original contribution, analysing 14 years of leading case law, the authors identify several key persistent Legitimacy and Effectiveness issues which arise when private parties attempt antitrust enforcement through the courts. On key issues such as: (i) Compensation awards inadequacy; (ii) Lack of rights for indirect purchasers; (iii) Absence of a passing-on defence; and (iv) Limitations of collective litigation mechanisms, deficiencies arising in each of these four areas are identified and analysed. Pathways to reform are set out. Comparative analysis with the corresponding EU and US jurisprudence is undertaken throughout, to illuminate the contrast in treatment for antitrust litigants facing similar antitrust situations. Recently enacted reform legislation (AML 2022) does not remedy the antitrust protection concerns identified by the authors. Private parties seeking antitrust redress in China will therefore continue to have weaker remedies in antitrust enforcement cases, in contrast with their EU and US counterparts. The absence of comprehensive reform means that Legitimacy and Effectiveness deficiencies will continue to undermine legal protection for China’s private antitrust enforcement litigants. Furthermore, the research demonstrates how norm adoption on its own cannot raise the propect of better outcomes, unless accompanied by corresponding evolution in the provision of more robust enforcement rights and remedies for antitrust litigants, as well as evolution in judicial interpretation to support antitrust norms acceptance.

Women Refugees and the Development of US Asylum Law: 1980-present

Abstract Over the past three decades, the US has developed a robust body of gender asylum law, including claims of women subject to sexual violence or other serious harm for reasons of gender. This body of law both reflects and has been a catalyst for larger shifts in US jurisprudence recognising the international treaty law basis of domestic asylum law. For years such progress was stymied by a dominant Cold War ideological decision-making paradigm and a woefully inadequate and politicised administrative bureaucracy. The growth of a domestic and international women’s rights movement, and more meaningful engagement by the US judiciary, have resulted in substantial changes. Although progress remains incomplete, today there is a significant body of administrative and federal judicial case law incorporating gender into the interpretation of key categories in refugee law, including gender-defined particular social groups (PSG) and gender-based claims under the political, race and religion grounds in the definition of refugee. These more principled developments have proven vulnerable to politics, particularly under the administration of President Donald J. Trump. However, a new approach, based in part on a clearer, regulatory articulation of doctrine, holds promise for the development of a more coherent and principled body of jurisprudence. This article places US gender asylum in the context of the larger political landscape (i.e., the Cold War, and post-Cold War politics). The article also attempts to draw the links between the development of gender asylum law and larger social and legal change movements, including a domestic and international women’s rights movements focused on issues of sexual violence and violence in the home or “domestic violence.”

New Aristocracy

We are in a period when US legal thought is again opening up to renewed and sustained critiques of capitalism. This article situates this renaissance within both a longer history of political thought and the current political context in the United States. Drawing upon the observations of Alexis de Tocqueville, who argued that the rise of industry could lay the groundwork for a return to aristocracy, the article also considers how US jurisprudence since the early 1970s has proved Tocqueville somewhat prophetic. Today, we confront the accelerating rise of political wealth alongside the fall of the working classes into neofeudal labor practices—trajectories embedded in and abetted by decisions of the US Supreme Court.

УМОВИ ПРО ПРАВА ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ У ЗМІСТІ ШЛЮБНОГО ДОГОВОРУ

The article addresses the study of the legal regulation of conditions on intellectual property rights in the content of the marriage contract, including the participation of a foreign element and taking into account the modern trends of the genesis of family relations in the law of Ukraine and certain foreign countries; the latest trends in the regulation of family relations are highlighted and the patterns of their further development normative consolidation in family law of Ukraine and the formulation of conclusions as well as proposals aiming at harmonizing national legislation with EU law are outlined. In recent years, in Ukraine, the question of ownership of intellectual property rights to objects acquired or created during the marriage has arisen at the level of judicial practice. At the same time, there are no direct norms in the Civil and Family Codes of Ukraine indicating that rights to intellectual property belong to the common property of spouses. The approach recognized by US jurisprudence assumes that not only income received from intellectual property rights (copyrights, royalties, payments under the contract on the transfer of rights, etc.), but also the objects of intellectual property rights created or acquired during marriage. Another mode of ownership of intellectual property objects may be stipulated in the marriage contract or other agreement concluded by the spouses. Based on the study of the peculiarities of the legal regulation intellectual property rights in the content of the marriage contract in the law and judicial practice of foreign countries and the law of Ukraine, it was established that the legislation of Ukraine does not directly refer objects of intellectual property rights created during marriage to the joint property of the spouses (on in contrast to the income received from the realization of intellectual property rights). However, the parties to a marriage contract concluded with the participation of a foreign element may subordinate its content to the law of the state, which recognizes the regime of joint property of the spouses for the results of intellectual and creative activity created during the marriage. To regulate their rights and obligations under the marriage contract, the parties may decide for the personal law of the spouses or the law of the state in which one of the spouses has a habitual residence. Therefore, there is a possibility to extend the relations with the participation of a foreign element to the legal regime of joint property of spouses to objects of intellectual property rights acquired during marriage.

Legal aspects of using genetic evidence on the example of US judicial practice

Advances in genomic research, biobanking and DNA identification technologies are expanding the use of biological and genetic evidence in litigation. The discovery of DNA and one of its functions to transmit hereditary information made it possible to look differently at the theory of a genetic predisposition to deviant behavior. The relevance of the study is due to the fact that the availability and increase of genetic research allows, along with the traditional use of genetic expertise in litigation (search and identification of a criminal, establishment of paternity), to expand the possibility of using the achievements of genetics by the parties to prove other circumstances in court. In this article, the authors analyze the US jurisprudence regarding the possibility of a party using the protection of genetic evidence in order to present a position in justification of the mitigation of punishment for an accused due to her genetic predisposition to criminal behavior. The authors also paid attention to the consideration of the issue of using the results of genetic testing in civil proceedings in order to prove the fact of the influence of the inherited gene on deviant behavior. In carrying out this study, the authors used a significant number of Russian and foreign sources of scientific literature. General and specific scientific methods of cognition, including the formal legal and comparative legal method, were used as research methods

Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry

Key words: copyright, jewelry, bijouterie, unfair competition, trademark, litigation
 Fedorova N. Foreing and domestic experience in protecting intellectual property right to jewelry and jewelry. The article focuses on studying the issue of protecting the design of artistic jewelry and bijouterie. The concept of “functionality” for jewelry is analyzed, namely, it is determined that the «functionality» notion is the quality of servicing the useful purpose. For example, a chair manufacturer cannot claim the four legs of a chair as a copyright. These four legs are a useful and functional aspect of this chair. If a competitor also manufactures a chair with 4 legs, it does not infringe any manufacturer's right, since these legs are for functional purposes only. The concept of«functionality» in jewelry means that the last cannot be protected as a normal work, since it is purely utilitarian. For example, the hands or numbers on the dial of a watch are considered as functional because the exclusive use of these aspects seriously impedes healthy competition in the watch industry. On the other hand, unique jewelry design cannot be considered functional as it has the exclusive use of its particular elements’ combination.The analysis of European legislation and US judicial practice is carried out. Under applicable US copyright law, jewelry is a subject to copyright. Under normal circumstances, the law does not require prior registration of jewelry copyright. However, in order to protect jewelry or bijouterie under the US Law on Copyright, it must meet certain conditions. The complaining party must provide evidence of illegal copying of the work and prove copyright infringement. In case of violation of copyright for jewelry, the author or the jewelry house must prove:•the originality of design;•the uniqueness in the elements combination in the process of jewelry design development.The object of an industrial design can be a shape, pattern, color, or their combination that determines the appearance of an industrial product. The main criterion for the industrial design patentability is its novelty. However, in practice, an examination for novelty when registering a designation as an industrial design, according to Alexandra Odinets, is not carried out, and the patent is issued «under the responsibility of the applicant».With regard to unfair competition in the jewelry market, according to the US jurisprudence, it is more often an offense in this context than a violation of trademark rights or copyright infringement. It is unfair competition that misleads a consumer. A competitor, by assigning a good name and an reputation established, is trying to get profit. The definition of unfair competition is carried out in a comprehensive manner, here the court will not focus on one feature of a piece of jewelry but would consider all its inherent features. In particular, it is a combination of unique elements that provide the originality of the product.The article provides recommendations for jewelry and bijouterie authors on copyright protection.
 1. Pro avtorski i sumizhni prava : Zakon Ukrainy.
 URL: https://zakon.rada.gov.ua/laws/show/3792-12#Text.
 2. Tomarov I. Fashion Law: kopiiuvaty ne mozhna zaboronyty! Yurydychna hazeta Online. 2017. № 25(575). URL:https://yur-gazeta.com/publications/practice/zahist-intelektualnoyi-vlasnosti-avtorske-pravo/fashion-law-kopiyuvati-ne-mozhna-zaboroniti.html.
 3. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971).
 4. Dyrektyva Yevropeiskoho Soiuzu № 98/71.
 URL: https://zakon.rada.gov.ua/laws/show/994_a88#Text.
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 6. Davis v. Gap, Inc. - 246 F.3d 152 (2d Cir. 2001).
 7. Trifari, Krussman & Fishel, Inc. v Charel Co., 134 F Supp 551 (1955, DC NY).
 8. Copyright Law of the United States §102, at 68 (2000).
 9. Cprava Vacheron I Constantin-LeCoultreWatches, Inc. proty Benrus Watch Co., Inc. URL: http://saperlaw.com/blog/wp-content/uploads/2007/09/cba-fashion-presentation-final.pdf (last visited April 19th, 2008).
 10. Cosmetic Ideas, Inc. v. IAC/Interactivecorp, CV08-02074 R (C.D. California); Los Angeles Copyright Attorneys File Jewelry Copyright Infringement Lawsuit Over Copying Protected Jewelry Design, available at: http://www.iptrademarkattorney.com/2008/04/copyright-attorneys-jewelry-los-angeles-protected-jewelry-design-lawsuit-copying-copyrights-la.html (last visited April 19th, 2008).
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Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet

Abstract Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum for individual autonomy. Indeed, the commercialisation of US free speech doctrine has drawn criticism for “weaponising” free speech to attack disfavoured economic and regulatory policies and thus potentially affecting freedom of thought adversely. The Internet complicates this picture. This paper argues that the Supreme Court’s expansion of the First Amendment for the benefit of commercial actors lies in the problematic tension with the justification for individual freedom of thought resting in personal self-direction and identity.

What if Australia Took More Notice of EU Competition Law?

The modern Australian competition statute drew extensively on US jurisprudence when developed in the 1970s, but the subsequent development of EU competition law has had a more recent impact. This article discusses how Australian competition law has been influenced by EU law, and how that influence might develop further. A version of this paper was first published in the Australian Journal of Competition and Consumer Law at (2020) 28 AJCCL 305.

The Court's Discretion in Relation to the Part 26A Cram Down

This article explains that a fundamental purpose of the Court’s discretion whether to exercise its cram down power under the new UK Companies Act Part 26A process would be to ascertain whether the dissenting class was promised a and distribution of the restructuring surplus, i.e. the value expected to be preserved and perhaps created by the proposed plan itself. The concept is familiar from US Chapter 11 practice, where the courts are required to ensure a “fair and equitable” treatment of members of the dissenting class. In the US, however, the much-misunderstood Absolute Priority Rule (‘APR’) supposedly governs this exercise. This article shows that the APR is untenable and is honoured more in breach in US practice than in observance. Similarly, the cram down powers under the new Dutch and the proposed German restructuring regimes also envisage ‘exceptions’ to the APR which are likely in practice to swallow the rule. Understanding why the APR cannot and should not govern the distribution of the restructuring surplus goes a considerable way to establishing a more rational starting point. An important consideration here would be whether the plan allocates the restructuring surplus with due regard to the likely contribution to the creation of that surplus by members of the dissenting class. This contribution is proxied by the ratio of returns in the “relevant alternative” of dissenting class members and any junior classes to whom returns are proposed under the plan. For example, if dissenting class members would receive 40% on their claims in the relevant alternative while members of a junior class would receive 20%, then this 2:1 ratio is presumptively the just and equitable share of the restructuring surplus of members of the two classes. Any departures from this relative priority would likely require justification by reference to one or more significant restructuring goals of the sort recognised in US jurisprudence, such as preserving the debtor’s business as a going concern, making members of the crammed down class better off, and protecting reliance interests. The article also considers the appropriate treatment of “new money” and “sweat equity”, and of classes excluded from the plan.

Afflicted by Innocence: An Examination of the Innocence Revolution and Its Failures

This article offers a genealogical account of innocence in US jurisprudence alongside an account of the depersonalization of black people in legal proceedings and shows their entanglement. By examining both slavery-era laws as well as the punitive surge of the 1990s, this paper finds that while white people were protected by the presumption of innocence, black people were under siege by the legal presumption of slavery. Even after the Civil War, the presumption of innocence remained illusory through a legally codified correlation between blackness and criminality. The article uses the case study of Rodricus Crawford to show how the focus on exonerations as an antidote to mass incarceration leverages a notion of innocence that helps some get out of prison, while further entrenching the criminalization and punishment of the majority of others. This text argues that the innocence revolution and wave of exonerations is not only insufficient, but harmful. The innocence revolution continues to legitimize and further entrench the validity of “true” guilt as a category deserving punishment.

Corporations as Moral Agents: Trade‐Offs in Criminal Liability and Human Rights for Corporations

AbstractThis article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly‐reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade‐offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.

Works of Fiction: The Misconception of Literary Characters as Copyright Works

This article critiques US jurisprudence, commentary and industry practice suggesting that fictional literary characters constitute separate copyright works distinct from the literary works in which they are situated. The scholarship on this jurisprudence tends to lament the ambiguity of the courts’ character delineation standards, and the inconsistency of court decisions applying them, but rarely, if ever, questions the legitimacy and coherence of the character-as-work doctrine. The paper will argue that the doctrine is fundamentally misconceived. It evolved from the fragile foundation of a casual obiter comment in an infringement analysis and morphed confusedly into an entrenched, though misunderstood, principle. The article will explain the unstable foundation of the character-as-work doctrine with reference to the concept of a ‘work’ in copyright law and its relationship to the fixation doctrine. The article argues that the nature of literary characters precludes them from being clearly and consistently identified and thus perceptible in a copy for the purposes of fixation. It explains how the character-as-work doctrine ignores the nature of literary characters; confuses subsistence standards; fosters illusory rights, rights hyperextension and lazy infringement analyses; and encourages character ‘evergreening’ beyond the copyright term.

Expanding property rights under investor-state dispute settlement (ISDS): class struggle in the era of transnational capital

ABSTRACTHow does the inclusion of the investor-state dispute settlement (ISDS) framework in free trade agreements impact property rights and the contested terrain between the public and the private? Authorizing foreign investors and corporations to bring disputes against governments for the costs associated with regulations negatively impacting future profitability or market share, ISDS has become highly controversial in debates over trade agreements. This article surveys the constellation of early investor-state disputes arbitrated under Chapter 11 of the North American Free Trade Agreement (NAFTA) to provide analysis of the politico-juridical ideology articulated by this regime and the nature of the class struggle underlying it. The evidence presented suggests that arbitrators have selectively chosen from a body of unsettled US jurisprudence to expand the boundaries of expropriation and, thus, property rights. Such a development has dramatic theoretical and practical consequences. Concretely, it impacts political accountability and has the potential to generate regulatory chill. Theoretically, it illuminates the class struggle unfolding in the current era of de-centered capitalism characterized by transnational production and financial flows. This article asserts that ISDS dispossesses citizens of the ability to successfully translate popular demands for social protection into regulations when such measures conflict with corporate profitability.

Safe harbour law in India: raising the red flag in the wake of Myspace v Super Cassettes

Ishaan Saha graduated with an LL.M from Cornell University in 2015 and proceeded to pass the New York Bar Exam. He is currently practising as an advocate at the Calcutta High Court in India, specializing in Intellectual Property Law. Oieshi Saha is a final year student at the West Bengal National University of Juridical Sciences. The internet would look very different had safe harbour laws not shielded online service providers from liability for the unlawful acts of their third-party users. The Delhi High Court, in the case of Myspace v Super Cassettes has one of the first opportunities to shape the still inchoate safe harbour law in India. Making use of this opportunity, the court has imported the red flag test from US jurisprudence into Indian law in an attempt to strike a balance between preserving creativity and freedom of speech on the internet on the one hand and sparing online service providers the onerous burden of policing the content uploaded and shared by third party users via their platforms on the other. This paper seeks to analys the rationale behind the judgment in Myspace v Super Cassettes as well as the red flag test itself as understood in American jurisprudence, in the context of the Indian legal framework and endeavours to make a case that the red flag test is not conducive to the Indian legal framework as envisaged in the Indian Copyright Act, 1957 and the Information Technology Act, 2000.

Challenging the Validity of Patents: Stepping in Line with EPO and US Jurisprudence

This document is an Accepted Manuscript of an article accepted for publication in International Review of Intellectual Property and Competition Law. Under embargo until 20 September 2018. The final publication is available at Springer via https://doi.org/10.1007/s40319-017-0633-7.