Author Archives: dukelawtechreview

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

Experimenting With Territoriality: Pan-European Music License and the Persistence of Old Paradigms

By: Ana Eduarda Santos This article tells the story of what could have been an interesting and important shift in our approach to territoriality in the digitalized world. Europe had the chance to be the cradle of an unprecedented copyright … Continue reading

Posted in International

Commercial Skipping Technology and the New Market Dynamic: The Relevance of Antitrust Law to an Emerging Technology

By: Jesse Haskins Commercial-skipping technology can liberate the consumer and make the television business more competitive. It rose to prominence with the advent of the digital video recorder (DVR), also known as the personal video recorder (PVR). PVRs have helped … Continue reading

Posted in Copyrights & Trademarks

Circumventing Access Controls Under the Digital Millennium Copyright Act: Analyzing the SecuROM Debate

By: David Fry Despite using one of the most sophisticated digital rights management systems currently available, the video game Spore was illegally downloaded approximately 1.7 million times between September and December of 2008, making it the most widely pirated game … Continue reading

Posted in Copyrights & Trademarks

Spore, DRM, and Pirates: UCITA and Market Realities

By: Charles Yeh The Uniform Computer Information Transactions Act (UCITA) attempts to regulate a nonexistent market failure. Regulators must understand the two market relationships in the software industry, the producer-consumer relationship and the producer-thief relationship, before they can draft effective … Continue reading

Posted in Copyrights & Trademarks

Circumventing Authority: Loopholes in the DMCA’s Access Controls

By: Adam L. Rucker In a world where digital pirates freely roam the internet, seemingly plundering at will, the providers of digital content must find a way to protect their valuable assets. Digital fences afford that protection–but not very well. … Continue reading

Posted in Copyrights & Trademarks

Electronically Stored Information: Balancing Free Discovery With Limits on Abuse

By: Patricia Groot The Federal Rules of Civil Procedure (the Rules) have long sought to limit abuses that developed under the traditional presumption favoring free discovery. The 2006 amendments to the Rules are specifically aimed at curbing abuses associated with … Continue reading

Posted in eDiscovery

Green Technology in Developing Countries: Creating Accessibility Through a Global Exchange Forum

By: Michael Hasper As they pursue economic development, developing countries possess high demand for processes and technologies that have climate-friendly methods or alternatives. However, these nations currently face barriers to entry because of trade policies and intellectual property regulations that … Continue reading

Posted in Patents & Technology

The Future of Generic Biologics: Should the United States “Follow-On” the European Pathway?

By: Ingrid Kaldre The United States is embarking on a biotechnology drug revolution. In the last few decades, biotech drugs have saved millions of lives, and the market for these miracle cures continues to grow at an astronomical rate. Unfortunately, … Continue reading

Posted in Health & Biotechnology

Legal Approaches to Promote Technological Solutions to Climate Change

By: Daniel Van Fleet Technological advancement is widely viewed as an essential component to any effective climate change strategy. However, there is no consensus as to the degree to which the law should promote technological innovation and development. This iBrief … Continue reading

Posted in Patents & Technology

McKithen v. Brown: Due Process and Post-Conviction DNA Testing

By: Elizabeth A. Laughton When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction … Continue reading

Posted in Health & Biotechnology

The U.S. On Tilt: Why the Unlawful Internet Gambling Enforcement Act Is a Bad Bet

By: Gerd Alexander The United States federal government’s attempts to curb Internet gambling are beginning to resemble a game of whack-a-mole. The Unlawful Internet Gambling Enforcement Act of 2006 (the “UIGEA” or “Act”) represents its most recent attack on Internet … Continue reading

Posted in Media & Communications

Taxation of Virtual Assets

By: Scott Wisniewski The development of vast social networks through Massively Multiplayer Online Role-Playing Games has created in-game communities in which virtual assets have real-world values. The question has thus arisen whether such virtual assets are legal subjects of taxation. … Continue reading

Posted in Media & Communications

On the Perils of Inadequate Analogies

By: Dan Tammuz Linking law is barely a decade old. Over the course of this short period, a wide variety of approaches have come to light. In fact, different jurisdictions have come to different conclusions regarding similar issues. Recently, there … Continue reading

Posted in Copyrights & Trademarks

FCC Regulation: Indecency by Interest Groups

By: Patricia Daza FCC regulations are among the most controversial administrative law regulations because of their impact on broadcast television. This iBrief analyzes the history of FCC regulation and highlights the problems associated with the current model. Applying theories of … Continue reading

Posted in Media & Communications

Regulating Nanotechnology: A Private–Public Insurance Solution

By: Maksim Rakhlin Nanotechnology promises to revolutionize innovation in nearly every industry. However, nanomaterials’ novel properties pose potentially significant health and environmental risks. Views in the current debate over nanotechnology regulation range from halting all research and development to allowing … Continue reading

Posted in Health & Biotechnology