Author Archives: dukelawtechreview

Electronic Discovery in the Cloud

By: Alberto G. Araiza Cloud Computing is poised to offer tremendous benefits to clients, including inexpensive access to seemingly limitless resources that are available instantly, anywhere. To prepare for the shift from computing environments dependent on dedicated hardware to Cloud … Continue reading

Posted in eDiscovery

Copyright Enforcement of Non-Copyright Terms: MDY v. Blizzard and Krause v. Titleserv

By: Justin Van Etten The rise of software and software licensing has led to another phenomenon: the attempted enforcement of software licenses through copyright law. Over the last fifteen years, content creators have begun to bring copyright suits against licensees, … Continue reading

Posted in Copyrights & Trademarks

The Classic 25% Rule and the Art of Intellectual Property Licensing

By: Robert Goldscheider Fifty years ago, Robert Goldscheider helped pioneer the use of a methodology known as “the 25% Rule,” a tool for determining reasonable royalties in intellectual property licensing negotiations. The Rule holds that licensees of intellectual property normally … Continue reading

Posted in Patents & Technology

Speaking of Music and the Counterpoint of Copyright: Addressing Legal Concerns in Making Oral History Available to the Public

By: Jeremy J. Beck & Libby Van Cleve Oral history provides society with voices and memories of people and communities experiencing events of the past first-hand. Such history is created through interviews; an interview, however, like any other type of … Continue reading

Posted in Copyrights & Trademarks

Non­–Per Se Treatment of Buyer Price-Fixing in Intellectual Property Settings

By: Hillary Greene The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens.  This iBrief challenges the wholesale adoption of either … Continue reading

Posted in Patents & Technology

The Invisible Power of MacHines Revisiting the Proposed Flash Order Ban in the Wake of the Flash Crash

By: Austin J. Sandler Technological innovation continues to make trading and markets more efficient, generally benefitting market participants and the investing public. But flash trading, a practice that evolved from high-frequency trading, benefits only a select few sophisticated traders and … Continue reading

Posted in eCommerce

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