By: Kathryn M. Boyd The way we consume media today is vastly different from the way media was consumed in 1976, when the Copyright Act created the compulsory license for cable systems. The compulsory license allowed cable systems, as defined by the Copyright Act, to pay a set fee for the right to air television programming rather than working out individual deals with each group that owned the copyright in the programming, and helped make television more widely accessible to the viewing public. FilmOn, a company that uses a mini-antenna system to capture and retransmit broadcast network signals, is now seeking access to the compulsory license. In three concurrent legal cases in New York, California, and D.C., FilmOn argues that it meets the statutory requirements to classify as a cable system. This Issue Brief examines the legal history of cable systems and considers the effects of agency influence, policy concerns, and the lack of judicial or congressional resolution regarding FilmOn’s contested legal status. Download Full Article (PDF) Cite: 15 Duke L. & Tech. Rev. 139
Author: dukelawtechreview
Mitochondrial Replacement Therapy and the Regulation of Reproductive Genetic Technologies in the United States
By: Bob Zhao The ability to alter the genes of future generations no longer belongs in the realm of science fiction. The genetic modification capabilities of modern science are advancing rapidly. Mitochondrial replacement therapy (MRT) represents the first crossing of the germline barrier in humans, and as of February 2015, it is the first procedure of its kind to be legalized in the Western world. How Congress decides to regulate MRT will influence future regulation of all genetic manipulation technologies. This brief argues that the current patchwork regulatory framework established in the United States is insufficient to deal with the complex issues MRT presents. As such, the creation of a new regulatory agency specifically focused on the oversight of reproductive and genetic biotechnologies may be necessary to balance the goals of ensuring the safety of research participants, promoting public debate, and stimulating continued scientific progress. Download Full Article (PDF) Cite: 15 Duke L. & Tech. Rev. 121
Flying Under the Radar: Low-Altitude Local Drone Use and the Reentry of Property Rights
By: Kenneth Maher The characteristics and capabilities of civilian drones have proliferated in recent years, giving rise to a burgeoning industry. The popular media and academic literature have predominantly focused on privacy concerns, devoting considerably less attention to the regulatory challenges created by the new technology. Congress instructed the FAA to integrate drones into the National Airspace System in 2012, but rulemaking delays and a moratorium on commercial uses hampered the industry and withheld benefits from the public. Final regulations are now in place, but the new rules revive legal uncertainty over the constitutional limits of federal authority and the ambiguous vertical bounds of private property rights. Low-altitude local drone use is one of the most promising aspects of the technology, and lies at the outer edge of federal authority. Much of the current debate gets key questions exactly backwards. Under current Supreme Court precedent, the proper legal question is not whether federal airspace authority can extend lower to govern virtually all drone use, but whether drone use pushes private property rights in airspace higher, limiting federal authority. Therefore, this Issue Brief joins the scholarly criticism of FAA efforts to date and calls for a greater focus on clear property
Copyright Severability: The Hurdle Between 3D-Printing and Mass Crowdsourced Innovation
By: Alan Fu 3D-printing is gradually becoming widely accessible to the population, and with accessibility come enthusiasm, participation, and ingenuity. Its continued development reflects a potential surge in technological advancement, bestowing on any person with a computer and the right software the ability to design and create. So far, the utilitarian benefits of designs such as blueprints, schematics, and CAD files have always been safeguarded from copyright over-protection through the doctrine of copyright severability. However, the doctrine is applied inconsistently across different circuits and different factual scenarios. This inconsistency can chill innovation by making it impossible to distinguish aesthetic designs protected by copyright from functional designs that are not. Thus, copyright severability does not do enough to protect innovation as 3D-printing begins to make product design more accessible to the general public. A more suitable solution may lie in the abstraction-filtration-comparison test from the software context of copyright infringement. Download Full Article (PDF) Cite: 15 Duke L. & Tech. Rev. 84
Putting Fair Use on Display: Ending the Permissions Culture in the Museum Community
By: Rosemary Chandler Digital technologies present museums with tremendous opportunities to increase public access to the arts. But the longstanding “permissions culture” entrenched in the museum community—in which licenses are obtained for the use of copyrighted materials regardless of whether such uses are “fair,” such that licenses are not legally required—likely will make the cost of many potential digital projects prohibitively expensive. Ending the permissions culture is therefore critically important to museums as they seek to connect with diverse audiences in the Digital Age. In this issue brief, I argue that such a development will require clear and context-specific information about fair use that enables museum professionals to better understand the appropriate boundaries of fair use, and that a community-based code of best practices—like the College Art Association’s recently released Code of Best Practices for Fair Use in the Visual Arts—is likely the best means to achieve this. Download Full Article (PDF) Cite: 15 Duke L. & Tech. Rev. 60
Unprotected and Unpersuaded: The FCC’s Flawed Merger Review Procedures
By: Trey O’Callaghan In CBS Corporation v. FCC, the D.C. Circuit struck down the Federal Communication Commission’s rules for protecting confidential information that it collects during certain merger proceedings. In response, the Commission released a new order, pursuant to the Charter, Time Warner, and Bright House merger proceeding, for protecting confidential information. This iBrief analyzes the policy and legal implications of the Order, arguing that the Order is unlawful because it violates the Trade Secrets Act and notice-and-comment rulemaking requirements. Download Full Article (PDF) Cite: 15 Duke L. & Tech. Rev. 39
ICRC, NATO and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace Under International Humanitarian Law
By: Ido Kilovaty Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from direct attacks by the adversary, whereas combatants (or members of armed groups) and military objectives may become legitimate targets of direct attacks. Although civilians are generally protected from direct attacks, they can still become victims of an attack because they lose this protection “for such time as they take direct part in hostilities.” In other words, under certain circumstances, if a civilian decides to engage in hostile cyber activities (or “hacktivities”), they may well become a target of a direct lethal attack. I will argue that although the answer is highly nuanced and context dependent, the most
Police Body Worn Cameras and Privacy: Retaining Benefits While Reducing Public Concerns
By: Richard Lin Recent high-profile incidents of police misconduct have led to calls for increased police accountability. One proposed reform is to equip police officers with body worn cameras, which provide more reliable evidence than eyewitness accounts. However, such cameras may pose privacy concerns for individuals who are recorded, as the footage may fall under open records statutes that would require the footage to be released upon request. Furthermore, storage of video data is costly, and redaction of video for release is time-consuming. While exempting all body camera video from release would take care of privacy issues, it would also prevent the public from using body camera footage to uncover misconduct. Agencies and lawmakers can address privacy problems successfully by using data management techniques to identify and preserve critical video evidence, and allowing non-critical video to be deleted under data-retention policies. Furthermore, software redaction may be used to produce releasable video that does not threaten the privacy of recorded individuals. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 346
The Silence After the Beep: Envisioning an Emergency Information System to Serve the Visually Impaired
By: Elana R. Reman Due to a series of legal and regulatory setbacks, media accessibility regulations for consumers who are blind and visually impaired have lagged significantly behind those for deaf individuals. Until April 2014, when the Federal Communications Commission’s Emergency Information Order took effect, blind consumers were left “in the dark” when their safety mattered most—during weather emergencies—because visual emergency information displayed in the on-screen crawl during television programming was not accessible in an aural format. The Commission now mandates that this information be provided in an aural form through the secondary audio stream for linear programming viewed on televisions and mobile devices and other “second screens” used inside the home over the MVPD’s network, but this requirement leaves many issues unresolved. This Issue Brief examines and analyzes the arguments made by industry and consumer groups for and against expanded regulation, and makes several recommendations that efficiently fill gaps in the current regulatory requirements for accessible emergency information. These recommendations are technically feasible, not unduly burdensome, and necessary to effectuate the purpose of the Twenty-First Century Communications and Video Accessibility Act of 2010. Specifically, the Commission can extend emergency information regulations to the entities it failed to reach with
The Frontiers of Peer-to-Peer Lending: Thinking About a New Regulatory Approach
By: William S. Warren The growth of online alternative lending presents several advantages for both those seeking credit and those with excess capital to lend. Over the past decade, several different models of peer-to-peer lending have emerged in the US and U.K. Each of these models has developed in response to the different regulatory system it faces, which has led to the models’ different risk and reward profiles. However, the current regulatory framework for regulating peer-to-peer lending, especially in the U.S., leaves much to be desired. The inadequate regulatory regime not only hampers the potential for growth and further innovation in the industry, but also creates risks for consumers, lenders, and, as the sector grows, entire markets. There is no clear or easy answer as to the optimal regulatory regime, but regulators should at least consider the basic functions of peer-to-peer lending and how to address risks with a more comprehensive and sensible model for regulation. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 298