Author Archives: dukelawtechreview

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

Shielding Journalist-“Bloggers”: The Need to Protect Newsgathering Despite the Distribution Medium

By: Laura Durity The failure to agree on a sufficiently narrow definition of “journalist” has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet … Continue reading

Posted in Media & Communications

Protecting Intellectual Property in the Developing World: Next Stop—Thailand

By: Cortney M. Arnold This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside … Continue reading

Posted in International

Unnecessary Indeterminacy: Process Patent Protection After Kinik v. ITC

By: John M. Eden In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district … Continue reading

Posted in Patents & Technology

Mining the Common Heritage of Our DNA: Lessons Learned From Grotius and Pardo

By: Jasper A. Bovenberg The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing … Continue reading

Posted in International

Patent Misuse in Patent Pool Licensing: From National Harrow to “The Nine No-Nos” to Not Likely

By: Daniel P. Homiller Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the … Continue reading

Posted in Patents & Technology

When Discrimination Is Good: Encouraging Broadband Internet Investment Without Content Neutrality

By: Christopher E. Fulmer Cable television and traditional telephone companies are increasingly offering the same set of services: telephone, television, and broadband Internet access. Competition between these two types of companies would ordinarily require them to improve these services, but … Continue reading

Posted in Media & Communications

Internet Sales Taxes From Borders to Amazon: How Long Before All of Your Purchases Are Taxed?

By: Walter J. Baudier What so many internet consumers believe to be tax-free is actually subject to a state use tax. Faced with pressure from states that realize very little of the use tax owed, many online retailers, such as … Continue reading

Posted in eCommerce

Barriers to Innovation: Intellectual Property Transaction Costs in Scientific Collaboration

By: Megan Ristau Baca The institution of university science research has evolved over the past century, from one of open science and free information to one of competition and jealously guarded intellectual property rights. This iBrief analyzes the background factors … Continue reading

Posted in Patents & Technology

Fighting Terrorism in an Electronic Age: Does the Patriot Act Unduly Compromise Our Civil Liberties?

By: Christopher P. Raab The USA PATRIOT Act is tremendously controversial, both lauded by law enforcement and decried by civil liberties groups. This iBrief considers two of the Act’s communications monitoring provisions, concluding that each compromises civil liberties to a … Continue reading

Posted in Media & Communications

Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of a Blogger’s Identity Before Service of Process Is Effected

By: Konrad Lee The rapid rise in anonymous anti-employer internet blogs by disgruntled employees has created a tension between the liberty interests of employees in free speech and privacy and employers’ rights to be free from defamation, disparagement and disclosure … Continue reading

Posted in eCommerce

Completing the Connection: Achieving Universal Service Through Municipal Wi-Fi

By: K. Joon Oh The federal universal service scheme is designed to ensure that everyone has affordable access to advanced telecommunications and information services. Despite the development of cost-effective technologies that drastically reduce the cost of telephone services vis-à-vis the … Continue reading

Posted in Media & Communications

Attack of the Clones: Legislative Approaches to Human Cloning in the United States

By: Adrienne N. Cash The legal concerns involving the application of cloning technology to humans should be of utmost concern, as the area is extremely complex. Cloning could potentially have great benefits or disastrous effects. Lawmakers have been careful to … Continue reading

Posted in Health & Biotechnology

Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

By: Alan F. Blakley, Daniel B. Garrie & Matthew J. Armstrong Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic … Continue reading

Posted in eCommerce

Buggy Whips and Broadcast Flags: The Need for a New Politics of Expression

By: Garrett Levin In response to growing fears from the entertainment industry over online file-sharing of valuable content, the Federal Communications Commission (“FCC”) enacted sweeping regulations over the production of electronic devices in the name of protecting digital television broadcasts. … Continue reading

Posted in Media & Communications

When the Public Does Not Have a Right to Know: How the California Public Records Act Is Deterring Bioscience Research and Development

By: Nader Mousavi & Matthew J. Kleiman Many bioscience firms collaborate with public research universities to conduct innovative research through sponsored research agreements. Companies sponsoring this research usually require strict confidentiality from their academic partners in order to protect sensitive … Continue reading

Posted in Health & Biotechnology

Unfinished Business: Are Today’s P2P Networks Liable for Copyright Infringement?

By: Christine Pope In June 2005, the U.S. Supreme Court issued the decision in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., a case that asked whether peer-to-peer networks may be held liable for facilitating the illegal distribution of music over the internet. … Continue reading

Posted in Copyrights & Trademarks

Keyword-Linked Advertising, Trademark Infringement, and Google’s Contributory Liability

By: Benjamin Aitken A number of trademark holders have recently challenged the policies of Google and other Internet search engines that allow the trademark owner’s competitors to purchase advertising space linked specifically to the owner’s trademarks when entered as search … Continue reading

Posted in Copyrights & Trademarks

When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID

By: John M. Eden RFID is a powerful new technology that has the potential to allow commercial retailers to undermine individual control over private information. Despite the potential of RFID to undermine personal control over such information, the federal government … Continue reading

Posted in eCommerce

Better to Give Than to Receive: Evaluating Recent IP Donation Tax Policy Changes

By: Don Macbean Over the past decade, charitable contributions of intellectual property have grown rapidly. This growth has coincided with tremendous abuse as firms have sought inflated valuations of donated intellectual property in order to claim larger tax deductions. In … Continue reading

Posted in Patents & Technology