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

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 turning a piece of the generic prescription drug business into a huge marketing campaign with offerings of generic drugs for four dollar prescriptions. Other discount drug providers are likely to follow suit in hopes of boosting customer traffic and sales of their generic drugs. Now, more than ever before, attorneys representing owners of pharmaceutical patents need to be creative with their damages theories to maximize recovery and help their clients recoup the investments in research and development necessary to bring new and innovative drugs to the marketplace. This article suggests a novel theory of willful infringement to assist a patent owner in recovering treble damages and attorneys’ fees.

Cite: 2007 Duke L. & Tech. Rev. 0006

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 rights of the copyright owners is the doctrine of fair use. However, over the last several years, some copyright owners began to push back and challenge Google’s strategy. Much of this litigation presents the courts with something of a conundrum. On the one hand, it is beyond dispute that Google’s services have great social utility. By organizing and making accessible an enormous volume of information on the Internet, Google facilitates broad access to a diverse array of material, a core value of the First Amendment. At the same time, Google’s actions do not always fit comfortably within traditional notions of fair use. In this respect, the Google cases present an opportunity to explore the relationship between copyright and the First Amendment; a subject that has received inadequate attention in the courts, and particularly the Supreme Court. How the apparent tension between the marketplace of ideas and the commercial marketplace is resolved may have significant impact on the development of Internet-based services designed to facilitate access to information, and this subject is the focus of this iBrief.

Cite: 2007 Duke L. & Tech. Rev. 0005

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. Microsoft Corp., the Federal Circuit interpreted 35 U.S.C. § 271(f) in a technology-dependent manner in order to effectuate the purpose of the law with respect to global software distribution. However, the Federal Circuit failed to consider the presumption against extraterritorial application of U.S. law, and its decision now risks international discord and harm not only to the American software industry, but other U.S. industries as well. This iBrief critiques the lower court decisions in AT&T Corp. v. Microsoft Corp. in light of the presumption against extraterritoriality, and analyzes how the Supreme Court should apply the presumption in its review of the case.

Cite: 2007 Duke L. & Tech. Rev. 0004

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 purchases, identities, and movements of their customers. In the absence of enforceable regulations, society risks being subjected to an unprecedented level of Orwellian surveillance. This iBrief addresses consumer privacy concerns stemming from the proliferation of RFID technology. It discusses why tort law, state legislation, FTC guidelines, and proposed regulations are insufficient methods to alleviate consumer privacy concerns and suggests amending various federal privacy laws, thereby prohibiting the underlying RFID tracking behavior.

Cite: 2007 Duke L. & Tech. Rev. 0003

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 new arguments for both sides of the Library Project litigation. This iBrief analyzes two Ninth Circuit district court decisions on fair use, Field v. Google, Inc. and Perfect 10 v. Google, Inc., and their impact on the Library Project litigation.

Cite: 2007 Duke L. & Tech. Rev. 0002

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 intellectual property rights will, in the long run, increase the sum total of information not subject to ownership claims and therefore available as part of the cultural and technological base on which new growth and development can occur. Indeed, he claims that open information will grow according to the formula for compound interest, where the interest rate is 100% plus or minus a factor z supposedly related to creation incentives. This article demonstrates that Professor Wagner’s mathematical analysis is simply wrong and does not lead to any of the conclusions he reaches concerning the growth of open information. It also shows both the difficulties and the dangers of the lay use of the language of mathematics in resolving complex social problems even if one does the math correctly.

Cite: 2007 Duke L. & Tech. Rev. 0001

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 increasingly seizing upon cellular taxation as a panacea for budget shortfalls. The Maryland Tax Court’s recent decision in T-Mobile USA, Inc. v. Department of Finance for Baltimore City held state and county taxes on the sale of individual cellular lines as legal excise taxes rather than illegal sales taxes. This iBrief will highlight the origins of telecommunications taxation, examine the ruling in T-Mobile in detail, present the arguments in opposition to disproportional cellular taxation, and conclude by anticipating what the future might hold for the cellular industry.

Cite: 2006 Duke L. & Tech. Rev. 0020

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 Appeals found that America Online’s Usenet service might qualify for safe harbor under the Digital Millennium Copyright Act. According to the district court below, safe harbor would preclude a finding of secondary copyright infringement against America Online. However, the courts misinterpreted the safe harbor provisions. One safe harbor provision was misapplied and another was ignored altogether. This iBrief critiques the Ellison opinions and analyzes the application of the safe harbor provisions to Usenet operators.

Cite: 2006 Duke L. & Tech. Rev. 0019

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 of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert’s testimony on the standard of care, the testimony becomes a scientifically based testimony rather than an expert’s notion of what is common practice in the medical profession.

Cite: 2006 Duke L. & Tech. Rev. 0018

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 the National Labor Relations Board and the courts should address the unique features of employee blogs.

Cite: 2006 Duke L. & Tech. Rev. 0017

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 a trump card–the Commerce Clause. This iBrief argues that to give proper effect to the limitations of the Copyright Clause, Congress should not be allowed to implement copyright-like legislation under the less restrictive Commerce Clause.

Cite: 2006 Duke L. & Tech. Rev. 0016

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 and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of “net neutrality” and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection.

Cite: 2006 Duke L. & Tech. Rev. 0015

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 a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in light of such “ethically questionable” patents, the U.S. Patent Office has failed to implement any procedures to identify or curb patent applications involving indigenous peoples.

Cite: 2006 Duke L. & Tech. Rev. 0014

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 injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders.

Cite: 2006 Duke L. & Tech. Rev. 0013

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 must be licensed before copyrighted music can be used legitimately. This iBrief examines what legal rights are implicated by podcasting by analyzing U.S. copyright law and comparing related technologies. This iBrief concludes that onerous licensing requirements are unnecessary, and for podcasting to realize its potential, a simple licensing framework must be established.

Cite: 2006 Duke L. & Tech. Rev. 0012

Posted in Copyrights & Trademarks