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, professional sports leagues are trying to strong-arm independent fantasy sports providers out of the business by using the right of publicity to assert property interests in the statistics generated by professional players, and used by fantasy sports providers to run their online games. The first such attempt–by Major League Baseball–failed. However, the state law nature of the right of publicity prevents any single court opinion from binding the industry or other jurisdictions. The National Football League is attempting to achieve a more favorable result in a different jurisdiction. If successful, other professional sports leagues will be encouraged to litigate the issue, and Major League Baseball might even attempt to re-litigate its position in other states. This free-for-all could result in different rules for different sports in different states, which would not only be untenable for the online fantasy sports providers, but a violation of the Constitution as well. A cohesive federal right of publicity statute would (1) bring uniformity to the doctrine, (2) give federal courts (where these actions are being brought) a federal law to apply instead of allowing them to continue muddying the application of state laws, (3) directly address First Amendment concerns, and (4) solve the dormant commerce clause violation alluded to above.

Cite: 2010 Duke L. & Tech. Rev. 002

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 property rights, including intellectual property rights, to exclude competitors. This iBrief finesses these questions and turns to practical considerations about how innovation and intellectual property can impinge antitrust enforcement. This iBrief develops two propositions. First, although collaborative research and development has often been and remains unwittingly misunderstood, what is understood about it is consistent with the long- standing observation that antitrust has rarely interfered with collaborative ventures. Second, shifting focus from “intellectual property rights” to “uncertain property rights” makes it easier to understand what innovation and intellectual property imply for enforcement processes. Both intellectual property and tangible assets imply the same processes, but the boundaries of intellectual properties may be uncertain and may, in turn, allow parties to game enforcement processes in ways that would not be feasible in antitrust matters that principally feature tangible assets. Even so, uncertain property rights might not frustrate enforcement processes as the antitrust authorities may yet be able to factor parties’ strategic behaviors into the design of antitrust remedies.

Cite: 2010 Duke L. & Tech. Rev. 001

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 has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as “patent hold-up.” There are currently sweeping and aggressive proposed reforms to reduce this harm to consumers. This iBrief suggests that the optimal reforms would not change the overall structure or scope of the ITC or its jurisdiction. Rather it would harmonize the substantive law, available defenses for respondents, and requirements for injunctive relief between ITC proceedings and litigation in federal district court.

Cite: 2009 Duke L. & Tech. Rev. 011

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 decision in Lenz v. Universal Music Corp., which requires a copyright owner to conduct a fair use evaluation prior to issuing a takedown notice. This iBrief concludes such a requirement is an appropriate first step towards creating adequate protection for user-generated content on the Internet.

Cite: 2009 Duke L. & Tech. Rev. 010

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 section 512(c) of the Digital Millennium Copyright Act, the hosts of the network are immune from any vicarious copyright liability.

Cite: 2009 Duke L. & Tech. Rev. 009

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 three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the Fairness Doctrine is not appropriate to use on the Internet in its present form, the arguments for the Doctrine could affect the debate surrounding Net Neutrality, depending on how the Obama Administration implements Net Neutrality.

Cite: 2009 Duke L. & Tech. Rev. 008

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 experience – the creation of a quasi pan- continental license in the music field – but it might have lost that opportunity in the midst of non-binding recommendations and resolutions. This article argues this loss is due to the overreaching persistence of old paradigms, namely the principle of territoriality.

Cite: 2009 Duke L. & Tech. Rev. 007

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 advertisers reach their target audience more effectively through personalized advertisements, and it has successfully pressured television networks and advertisers to innovate more appealing ways to induce consumers to buy advertised products. But even if this technology fails to enhance the business of television, television networks can still outpace commercial-skipping technology in an arms race. Through competitive pressure, such technology promotes innovation, progress, and a more competitive market without posing an undue burden on the entertainment industry.

Cite: 2009 Duke L. & Tech. Rev. 006

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 of 2008 by more than half a million downloads. This iBrief addresses several legal arguments that have been raised against a digital rights management system called “SecuROM,” which is widely used by video game companies like Electronic Arts, the publisher of Spore. First, the iBrief discusses the comparisons that have been drawn between SecuROM and the controversial digital rights management technologies previously employed by Sony BMG Music Entertainment. Second, the iBrief addresses the question of whether highly restrictive implementations of SecuROM may be legally circumvented under the Digital Millennium Copyright Act. Third, the iBrief discusses the potential for using the Digital Millennium Copyright Act’s three-year rulemaking procedure to obtain certain exemptions for circumventing systems like SecuROM.

Cite: 2009 Duke L. & Tech. Rev. 005

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 regulation. Drafting regulations that affect both relationships can lead to market disruptions at best and market failure at worst. An analysis of the two relationships reveals that there has not been a market failure that needs regulating; rather, there is a lag in technology that prohibits proper demarcation between the two market relationships. Regulators should wait for technology to advance before adopting any legislation similar to UCITA.

Cite: 2009 Duke L. & Tech. Rev. 004

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. Fortunately (for content owners), 17 U.S.C. §1201, passed as part of the Digital Millennium Copyright Act of 1998, was designed to fill the numerous gaps in those fences by forbidding activities designed to circumvent them. In its present state, however, §1201 does not adequately serve that purpose. Substantial flaws in the language of the statute render it virtually powerless to thwart piracy. If §1201 is to fulfill its intended role (without the need for creative judicial interpretation), it must be amended to rectify the discrepancies between Congress’ supposed intent and the language it chose.

Cite: 2009 Duke L. & Tech. Rev. 003

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 electronically stored information (ESI), which has become the basic medium of business communications and has provided businesses with overall productivity benefits. The 2006 amendments introduce a new category of electronic evidence that is “not reasonably accessible” and allow a court to shift the related costs of discovery to the party requesting the information. Cost-shifting, however, creates an incentive for businesses to shelter sensitive data by making it “not reasonably accessible.” This iBrief argues that the current tests created by the courts for cost-shifting should be reassessed and should include a benefit-shifting component that offsets business savings from using ESI as a storage medium. Rather than treating ESI as exceptional, the Rules should adopt a uniform approach that curbs abuses of all discovery.

Cite: 2009 Duke L. & Tech. Rev. 002

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 render procurement of these technologies cost-prohibitive. In light of the recent breakdown in negotiations at the United Nations climate conference in Bali to remove tariffs on green technology, a new approach to green technology diffusion should be considered in order to balance the demand among developing nations for fluid technology transfers with the profit-driven needs and intellectual property considerations of technology holders. A potential solution to overcome the high fixed costs of technology diffusion could involve the creation of a global exchange forum in which transnational green technology holders, green venture capitalists, and developing country entrepreneurs could broker for efficient allocation of investment, resources, and technologies.

Cite: 2009 Duke L. & Tech. Rev. 001

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, as the market for biotech drugs is skyrocketing, drug prices are following suit. As Congress strives to make these new drugs more affordable, it must not ignore significant safety concerns unique to these revolutionary therapies. Congress should follow the lead of the European Union to create an accessible pathway for generic forms of biotech drugs that includes strict regulatory measures to ensure drug safety and efficacy.

Cite: 2008 Duke L. & Tech. Rev. 0009

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 analyzes government involvement in encouraging such technology and divides the various policies into four categories. On one end are policies that rely mainly on market forces to encourage scientific advancement naturally, requiring minimal government involvement. A second category of policies involves technological development promoted indirectly through laws addressing climate change generally. A third type of policy involves directly offering government funding and financing for technological research and development. These three methods are currently the most popular means of encouraging scientific development in this field. Recently, however, there have been increasing calls for major government action of the scale of such programs as the Apollo Project. This iBrief classifies such proposals as a fourth category of policies encouraging technological solutions to climate change: the creation of institutional structures dedicated to bringing about rapid, radical technological advancements.

Cite: 2008 Duke L. & Tech. Rev. 0008

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 access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right of access to evidence for DNA testing exists both broadly as well as under the defendant’s circumstances. This iBrief concludes that although a due process post-conviction right of access to evidence for DNA testing may exist under some circumstances, it does not exist under current constitutional jurisprudence in McKithen’s case.

Cite: 2008 Duke L. & Tech. Rev. 0007

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 gambling. This iBrief first looks at U.S. attempts to limit Internet gambling and how those efforts have affected gambling law and business. It then discusses how the UIGEA works and highlights some of its major limitations. This iBrief argues that the UIGEA will not only fail to rein in online gambling, but that the U.S. federal government is treading an improvident course towards prohibition and will undermine U.S. policy concerns. Finally, this piece concludes by recommending that the U.S. abandon its current course and regulate online gambling.

Cite: 2008 Duke L. & Tech. Rev. 0006

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. This iBrief will detail and discuss the various exclusions to taxable income, and analyze their application to the possibility of creating potential tax liability based on in-kind exchanges of virtual assets.

Cite: 2008 Duke L. & Tech. Rev. 0005

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 has been a new addition to the jurisprudence. A Texas holding established that linking to copyright-protected content violates copyright. This iBrief argues that the reasoning in this decision is flawed. The opposite conclusion should have been reached by applying straightforward copyright analysis and by looking to recent case law regarding hyperlinking.

Cite: 2008 Duke L. & Tech. Rev. 0004

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 economics, this iBrief proposes solutions to the current problems of selective enforcement and vagueness in enforcement. While the Supreme Court recognized that FCC regulation is necessary, it is also necessary for there to be a clearer model for how the agency should be run.

Cite: 2008 Duke L. & Tech. Rev. 0003

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 virtually unregulated innovation. One viable regulatory solution balancing commercialization and risk is the adoption of a mandatory private-public insurance program.

Cite: 2008 Duke L. & Tech. Rev. 0002

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 this direct involvement poses a risk to one of the Constitution’s most precious ideals: representative democracy. This iBrief explores whether the constitutional notion of representation is vulnerable to the Internet’s capacity to open new vistas for a more direct democracy by analyzing statistics and theories about why voters in the United States do or do not vote and by examining the inherent qualities of the Internet itself. This iBrief concludes that the Constitution will adapt to the Internet and the Internet to the Constitution, such that even if there are advances in direct democracy, representative democracy will not be unduly threatened.

Cite: 2008 Duke L. & Tech. Rev. 0001

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 have taken advantage of the grace period through a process called “domain tasting.” These “domain tasters” register hundreds of thousands of domain names and cancel the vast majority of them within the five-day grace period, keeping only those that may be valuable as placeholder advertising websites or to holders of trademark rights. This iBrief will outline the “domain tasting” process, analyze why it is a problem, and discuss solutions to the problem. Ultimately, it concludes that the five-day grace period is unnecessary because it serves little, if any, legitimate purpose.

Cite: 2007 Duke L. & Tech. Rev. 0009

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 patent prosecution and protection. Further, it evaluates remedial contract provisions patent holders may include in future license agreements and how these provisions may mitigate the decision’s effects on preexisting commercial relationships.

Cite: 2007 Duke L. & Tech. Rev. 0008

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 drafted to stimulate the development and deployment of technologies that combat terrorism by providing liability protection. Applying the same type of legislation to natural disasters will provide a commensurate benefit of encouraging preparedness and development of technologies that could mitigate harms resulting from natural disasters. The Department of Homeland Security voiced a desire to increase the use of the SAFETY Act by private industry. This article argues that one way to increase the utility of the SAFETY Act and provide more value for the American public is for Congress to extend SAFETY Act protections, by amendment or new legislation, to cover risk related to national catastrophes.

Cite: 2007 Duke L. & Tech. Rev. 0007

Posted in Patents & Technology