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Author Archives: dukelawtechreview
Sherley v. Sebelius: Stem Cells and the Uneasy Interplay Between the Federal Bench and the Lab Bench
By: Ryan P. O’Quinn After Barack Obama’s election to the presidency, he promised that one of his top priorities in office would be to relieve the restrictions initiated by President George W. Bush on federal funding of embryonic stem cell … Continue reading
Posted in Health & Biotechnology
The Attorney–Client Privilege and Discovery of Electronically-Stored Information
By: Adjoa Linzy The attorney-client privilege is the most sacred and important privilege in our legal system. Despite being at the center of daily practice, the privilege still remains a mystery for many lawyers. This is primarily because the privilege … Continue reading
Posted in eDiscovery
Applying Copyright Abandonment in the Digital Age
By: Matthew W. Turetzky Copyright law protects orphan and parented works equally–but it shouldn’t. Consequently, current law unnecessarily restrains public access to works that authors have not exercised dominion over for decades. This problem has come to the fore in … Continue reading
Posted in Copyrights & Trademarks
Limitation of Sales Warranties as an Alternative to Intellectual Property Rights: An Empirical Analysis of IPhone Warranties’ Deterrent Impact on Consumers
By: Marc L. Roark Apple’s success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple’s exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), … Continue reading
Posted in Patents & Technology
Standards × Patents ÷ Antitrust = ∞: The Inadequacy of Antitrust to Address Patent Ambush
By: Jonathan Hillel “Patent ambush” describes certain rent-seeking behavior by the owner of patent rights to a technology that is essential to an industry standard. Two cases, Qualcomm and Rambus, represent attempts of the Third and D.C. Circuits, respectively, to … Continue reading
Posted in Patents & Technology
The Rise of Computerized High Frequency Trading: Use and Controversy
By: Michael J. McGowan Over the last decade, there has been a dramatic shift in how securities are traded in the capital markets. Utilizing supercomputers and complex algorithms that pick up on breaking news, company/stock/economic information and price and volume … Continue reading
Posted in eCommerce
Private Ordering and Orphan Works: Our Least Worst Hope?
By: Keith Porcaro The political capture of copyright law by industry groups has inadvertently led to orphan works problems arising in less organized industries, such as publishing. Google Book Search (GBS) is a prime example of how private ordering can … Continue reading
Posted in Copyrights & Trademarks
Privacy Expectations and Protections for Teachers in the Internet Age
By: Emily H. Fulmer Public school teachers have little opportunity for redress if they are dismissed for their activities on social networking websites. With the exception of inappropriate communication with students, a school district should not be able to consider … Continue reading
Posted in Media & Communications
Keeping the LEDs on and the Electric Motors Running: Clean Tech in Court After Ebay
By: Eric Lane The recent rise of non-practicing patentees (NPPs) in the clean technology space comes at a time when the international community is debating the role of intellectual property rights in the deployment and implementation of technologies to combat … Continue reading
Posted in Patents & Technology
Disloyal Computer Use and the Computer Fraud and Abuse Act: Narrowing the Scope
By: Greg Pollaro Congress drafted the Computer Fraud and Abuse Act (CFAA) to protect government interest computers from malicious attacks by hackers. As computer use has expanded in the years since its enactment, the CFAA has similarly expanded to cover … Continue reading
Posted in CyberCrime
Who Owns the Virtual Items?
By: Leah Shen Do you WoW? Because millions of people around the world do! Due to this increased traffic, virtual wealth amassed in MMORPGs are intersecting in our real world in unexpected ways. Virtual goods have real-life values and are … Continue reading
Posted in Media & Communications
Chatter, Clatter, and Blinks: Defective Car Alerts and the Role of Technological Advances in Design Defect/failure to Warn Cases
By: James Forrest McKell Jr. Car owners are familiar with the warning lights on the dashboard and the beeping sound reminding them to use their seatbelt. But, neither the legislature nor courts have concretely defined the legal nature of these … Continue reading
Posted in Copyrights & Trademarks
The Class Defense: Why Dispersed Intellectual Property Defendants Need Procedural Protections
By: Jonathan Reich The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit property … Continue reading
Posted in Copyrights & Trademarks
The Anonymous Poster: How to Protect Internet Users’ Privacy and Prevent Abuse
By: Scott Ness The threat of anonymous Internet posting to individual privacy has been met with congressional and judicial indecisiveness. Part of the problem stems from the inherent conflict between punishing those who disrespect one’s privacy by placing a burden … Continue reading
Posted in Media & Communications
Substantially Justified? The U.S. Government’s Use of Name-Check Technologies in Naturalization Procedures
By: H. Jin Cho The U.S. Citizenship and Immigration Services relies upon the Federal Bureau of Investigation to administer the National Name Check Program, which conducts background checks on applicants for naturalization. Backlogs have led to long delays for aspiring … Continue reading
Posted in CyberCrime
Juvenile Justice, Sullivan, and Graham: How the Supreme Court’s Decision Will Change the Neuroscience Debate
By: Johanna Cooper Jennings Over the past twenty years, neuroscientists have discovered that brain maturation continues through an individual’s mid-twenties. The United States Supreme Court cited this research to support its abolition of the juvenile death penalty in Roper v. … Continue reading
Posted in Health & Biotechnology
In Re Bilski and the “Machine-or-Transformation” Test: Receding Boundaries for Patent Eligible Subject Matter
By: Matthew Moore In order for a hopeful applicant to be granted a patent over his invention, his application must satisfy several procedural and substantive requirements. Among the substantive hurdles that an applicant must clear is the mandate that patents … Continue reading
Posted in Patents & Technology
The Impacts of the Chinese Anti-Monopoly Law on IP Commercialization in China & General Strategies for Technology-Driven Companies and Future Regulators
By: Yijun Tian After thirteen years of discussion and three revisions, China’s Anti-Monopoly Law (AML) was promulgated on August 30, 2007 and has come into effect on August 1, 2008. It is the first anti-monopoly law in China and has … Continue reading
Posted in International
Cyber Warfare and the Crime of Aggression: The Need for Individual Accountability on Tomorrow’s Battlefield
By: Jonathan A. Ophardt As cyberspace matures, the international system faces a new challenge in confronting the use of force. Non-State actors continue to grow in importance, gaining the skill and the expertise necessary to wage asymmetric warfare using non-traditional … Continue reading
Posted in CyberCrime
Online Fantasy Sports Litigation and the Need for a Federal Right of Publicity Statute
By: Risa J. Weaver The right of publicity is currently a jumble of state common law and state statutes, but the online fantasy sports industry crosses state lines with ease. Having witnessed the great revenue potential of online fantasy sports, … Continue reading
Posted in eCommerce
Antitrust, Innovation, and Uncertain Property Rights: Some Practical Considerations
By: Dean V. Williamson The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit … Continue reading
Posted in Patents & Technology
The International Trade Commission: Potential Bias, Hold-Up, and the Need for Reform
By: William Dolan The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it … Continue reading
Posted in International
Lenz v. Universal Music Corp. And the Potential Effect of Fair Use Analysis Under the Takedown Procedures of §512 of the DMCA
By: Kathleen O’Donnell The notice and takedown/putback procedures in §512 of the Digital Millennium Act fail to adequately protect the rights of individuals who post content on the internet. This iBrief examines the notice and takedown/putback procedures and Judge Fogel’s … Continue reading
Posted in Copyrights & Trademarks
A Hypothetical Non-Infringing Network: An Examination of the Efficacy of Safe Harbor in Section 512(C) of the DMCA
By: Cassius Sims This iBrief will present a hypothetical network that allows dissidents to transfer information outside the watchful eye of an oppressive government. It will argue that because a network operator meets the requirements of the safe harbor of … Continue reading
Posted in Copyrights & Trademarks
The Future of “Fair and Balanced”: The Fairness Doctrine, Net Neutrality, and the Internet
By: Sasha Leonhardt In recent months, different groups–pundits, politicians, and even an FCC Commissioner–have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in … Continue reading
Posted in Media & Communications
