Author Archives: dukelawtechreview

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

Is the Internet a Viable Threat to Representative Democracy?

By: David M. Thompson The Internet, despite its relatively recent advent, is critical to millions of Americans’ way of life. Although the Internet arguably opens new opportunities for citizens to become more directly involved in their government, some scholars fear … Continue reading

Posted in Media & Communications

Domain Tasting Is Taking Over the Internet as a Result of ICANN’s “Add Grace Period”

By: Christopher Healey When a domain name is registered, the registrant is given five days to cancel for a full refund. While the purpose of this grace period is to protect those who innocently err in the registration process, speculators … Continue reading

Posted in Copyrights & Trademarks

Operation Restoration: How Can Patent Holders Protect Themselves From Medimmune?

By: Stephanie Chu The Supreme Court’s recent decision in MedImmune v. Genentech shifts the balance of power in license agreements from patent holders to their licensees. This iBrief outlines the potential implications of the new rules on all stages of … Continue reading

Posted in Patents & Technology

Encouraging Corporate Innovation for Our Homeland During the Best of Times for the Worst of Times: Extending Safety Act Protections to Natural Disasters’

By: Ava A. Harter This article first analyzes the innovative tort reform of the SAFETY Act and then argues for expansion of SAFETY Act type risk protection to natural disasters such as hurricanes, earthquakes and wildfires. The SAFETY Act was … Continue reading

Posted in Patents & Technology

A Budding Theory of Willful Patent Infringement: Orange Books, Colored Pills, and Greener Verdicts

By: Christopher A. Harkins The rules of engagement in the brand-name versus generic-drug war are rapidly changing. Brand-name manufacturers face increasing competition from Canadian manufacturers of generic drugs, online drug companies, and Wal-Mart® Super Centers deciding to cash in by … Continue reading

Posted in Patents & Technology

This Town Ain’t Big Enough for the Both of Us—Or Is It? Reflections on Copyright, the First Amendment and Google’s Use of Others’ Content

By: David Kohler Using a variety of technological innovations, Google became a multi-billion dollar content-delivery business without owning or licensing much of the content that it uses. Google’s principal justification for why this strategy does not contravene the intellectual property … Continue reading

Posted in Patents & Technology

Walking the Line: Why the Presumption Against Extraterritorial Application of U.S. Patent Law Should Limit the Reach of 35 U.S.C. § 271(f)

By: Jennifer Giordano-Coltart The advent of the digital era and the global market pose unique challenges to intellectual property law. To adapt, U.S. patent laws require constant interpretation in the face of rapidly changing technological advances. In AT&T Corp. v. … Continue reading

Posted in Patents & Technology

Where Will Consumers Find Privacy Protection From RFIDs?: A Case for Federal Legislation

By: Serena G. Stein With the birth of RFID technology, businesses gained the ability to tag products with practically invisible computer chips that relay information about consumer behavior to remote databases. Such tagging permits retailers and manufacturers to track the … Continue reading

Posted in Patents & Technology

Is Kelly Shifting Under Google’s Feet? New Ninth Circuit Impact on the Google Library Project Litigation

By: Cameron W. Westin The Google Library Project presents what many consider to be the perfect fair-use problem. The legal debate surrounding the Library Project has centered on the Ninth Circuit’s Kelly v. Arriba Soft. Yet recent case law presents … Continue reading

Posted in Patents & Technology

Does Information Beget Information?

By: Dennis S. Karjala Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility of fully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of … Continue reading

Posted in Patents & Technology

T-Mobile USA Inc. V. Department of Finance for Baltimore City: What the Latest Salvo in Disproportional Cellular Phone Taxation Means for the Future

By: Daniel P. Slowey Seventeen percent of the average monthly cellular phone bill in 2004 was comprised of federal, state, and local taxes. As the number of wireless subscribers across the nation continues to increase, states, cities, and counties are … Continue reading

Posted in Media & Communications

Newsgroups Float Into Safe Harbor, and Copyright Holders Are Sunk

By: Alicia L. Wright Usenet newsgroups are swiftly becoming a popular vehicle for pirating digital music, movies, books, and other copyrighted works. Meanwhile, courts ignore Usenet’s tremendous potential for copyright infringement. In Ellison v. Robertson, the Ninth Circuit Court of … Continue reading

Posted in Copyrights & Trademarks

Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to the Legal Standard of Care in Medical Malpractice Cases

By: Nichole Hines Traditionally, courts have applied a “customary practice” standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard … Continue reading

Posted in Health & Biotechnology

When Is Employee Blogging Protected by Section 7 of the NLRA?

By: Katherine M. Scott The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how … Continue reading

Posted in Media & Communications

The Constitutionality of WIPO’s Broadcasting Treaty: The Originality and Limited Times Requirements of the Copyright Clause

By: Adam R. Tarosky Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress’s Copyright Clause power: the originality and “limited times” requirements. But Congress has … Continue reading

Posted in International

The End of Net Neutrality

By: William G. Laxton Jr. In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as “information services.” While many hail this move as a victory for competition … Continue reading

Posted in Media & Communications

What, if Any, Are the Ethical Obligations of the U.S. Patent Office? A Closer Look at the Biological Sampling of Indigenous Groups

By: Marina L. Whelan The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from … Continue reading

Posted in Health & Biotechnology

Injunction Junction: Remembering the Proper Function and Form of Equitable Relief in Trademark Law

By: Ryan McLeod Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of … Continue reading

Posted in Copyrights & Trademarks

Download, Stream, or Somewhere in Between: The Potential for Legal Music Use in Podcasting

By: Benjamin Aitken Podcasting is an increasingly popular new digital technology with the potential to be a great conduit of expression. Currently, the use of music is limited in podcasting due in large part to uncertainty as to what rights … Continue reading

Posted in Copyrights & Trademarks