Author Archives: dukelawtechreview

Will Sony’s Fourth Playstation Lead to a Second Sony v. Universal?

By: Seth Ascher Sony has included a “share” button on the next version of their popular PlayStation video game system. This feature is meant to allow players to record and share videos of their gameplay. This service shares similarities with … Continue reading

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Born This Way: How Neuroimaging Will Impact Jury Deliberations

By: Tanneika Minott Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder … Continue reading

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Stopping Police in Their Tracks: Protecting Cellular Location Information Privacy in the Twenty-First Century

By: Stephen Wagner Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have … Continue reading

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Sharing is Airing: Employee Concerted Activity on Social Media After Hispanics United

By: Ryan Kennedy Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has … Continue reading

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DMCA Safe Harbors for Virtual Private Server Providers Hosting BitTorrent Clients

By: Stephen J. Wang By the time the U.S. Supreme Court decided Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. in 2005, Internet users around the globe who engaged in copyright infringement had already turned to newer, alternative forms of peer-to-peer filesharing. … Continue reading

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Mega, Digital Storage Lockers, and the DMCA: Will Innovation Be Stifled by Fears of Privacy?

By: Ali V. Mirsaidi Kim Dotcom, founder of Megaupload Limited, has been in many news headlines over the past year. Megaupload—one of Dotcom’s many peer-to-peer sharing sites—was the center of controversy, as it allowed users to upload and share all … Continue reading

Posted in Copyrights & Trademarks

The Apple E-Book Agreement and Ruinous Competition: Are E-Goods Different for Antitrust Purposes?

By: Michael Wolfe Publishers have spent the last decade and a half struggling against falling prices for digital goods. The recent antitrust case against Apple and the major publishers highlights collusive price fixing as a potential method for resisting depreciation. … Continue reading

Posted in Copyrights & Trademarks

The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

By: Matthew D. Bunker and Clay Calvert Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established … Continue reading

Posted in Copyrights & Trademarks

More from the #Jury Box: The Latest on Juries and Social Media

By: Hon. Amy J. St. Eve,  Hon. Charles P. Burns, & Michael A. Zuckerman This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began … Continue reading

Posted in Media & Communications

The Resurrection of the Duty to Inquire After Therasense, Inc. v. Becton, Dickinson & Co.

By: Brandee N. Woolard Balancing a duty to a tribunal and a duty to a client can paralyze a lawyer. The task raises difficult questions about how to reconcile competing obligations as an advocate and as an officer of the … Continue reading

Posted in Patents & Technology

Carbons Into Bytes: Patented Chemical Compound Protection in the Virtual World

By: B. Thomas Watson “Virtual” molecular compounds, created in molecular modeling software, are increasingly useful in the process of rational drug design. When a physical compound is patented, however, virtual use of the compound allows researchers to circumvent the protection … Continue reading

Posted in Health & Biotechnology, Patents & Technology

In Ambiguous Battle: The Promise (And Pathos) of Public Domain Day, 2014

By: Jennifer Jenkins On the first day of each year, Public Domain Day celebrates the moment when copyrights expire, and books, films, songs, and other creative works enter the public domain, where they become, in Justice Brandeis’s words, “free as … Continue reading

Posted in Copyrights & Trademarks, Patents & Technology

After Prometheus, Are Human Genes Patentable Subject Matter?

By: Douglas L. Rogers On April 15, 2013, the U.S. Supreme Court heard oral arguments in Association for Molecular Pathology v. Myriad Genetics, Inc. on the question, “Are human genes patentable?” This article argues that human genes are not patentable … Continue reading

Posted in Health & Biotechnology, Patents & Technology

Lack of Transparency in the Premarket Approval Process for Aquadvantage Salmon

By: Michael P. McEvilly After a lengthy premarket approval process, the Food and Drug Administration (FDA) is soon likely to deem AquAdvantage Salmon, a fast-growing, genetically engineered salmon, safe for human consumption. If approved, AquAdvantage Salmon will be the first … Continue reading

Posted in Health & Biotechnology

The Promise of Priority Review Vouchers as a Legislative Tool to Encourage Drugs for Neglected Diseases

By: Lesley Hamming Despite the intellectual property system’s success in promoting the economic well-being of the United States, this system has not achieved all socially valuable ends. Insufficient treatments are applied both to diseases endemic in developing countries, such as … Continue reading

Posted in Health & Biotechnology

The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation

By: Sara Jeruss, Robin Feldman, & Joshua Walker Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing … Continue reading

Posted in Patents & Technology

Cooking Protestors Alive: The Excessive-Force Implications of the Active Denial System

By: Brad Turner The Active Denial System (ADS) is unlike any other nonviolent weapon: instead of incapacitating its targets, it forces them to flee, and it does so without being seen or heard. Though it is a promising new crowd-control … Continue reading

Posted in Patents & Technology | 2 Comments

A Comparative Critique to U.S. Courts’ Approach to E-Discovery in Foreign Trials

By: Lauren Ann Ross This Issue Brief explores an oft-neglected irony in international e-discovery: the rationales used by courts to compel discovery against foreign parties embroiled in litigation in U.S. courts may contradict courts’ reasoning when compelling discovery against U.S. … Continue reading

Posted in eDiscovery

The Myth and Reality of Dilution

By: Sandra L. Rierson Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. … Continue reading

Posted in Copyrights & Trademarks

The Greatest Book You Will Never Read: Public Access Rights and the Orphan Works Dilemma

By: Libby Greismann Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of … Continue reading

Posted in Copyrights & Trademarks

Beta-Testing the “Particular Machine”: The Machine-or-Transformation Test in Peril and Its Impact on Cloud Computing

By: Richard M. Lee This Issue Brief examines recent cases addressing the patent eligibility of computer-implemented method claims and their implications for the development of cloud computing technologies. Despite the Supreme Court’s refusal to endorse the machine-or-transformation test as the … Continue reading

Posted in Patents & Technology

Cloud Computing, Clickwrap Agreements, and Limitation on Liability Clauses: A Perfect Storm?

By: Timothy J. Calloway “To the cloud!” trumpets a commercial by Microsoft, whose aim is to herd customers, and their checkbooks, into the cloud computing fold. But Microsoft, and other cloud providers like Amazon and Google, might inadvertently be doing … Continue reading

Posted in eCommerce

DMCA Safe Harbors and the Future of New Digital Music Sharing Platforms

By: Jing Xu SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their … Continue reading

Posted in Copyrights & Trademarks

“Less Is More”: New Property Paradigm in the Information Age?

By: Aarthi S. Anand Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this … Continue reading

Posted in Patents & Technology

Open Source Innovation, Patent Injunctions, and the Public Interest

By: James Boyle This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues … Continue reading

Posted in Patents & Technology