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 of confidential information by an employee. This iBrief argues that the anonymity of anti-employer bloggers should not shield employees from breach of the duty of loyalty claims under tort and contract law, and that Congress should enact rules to govern the disclosure of blogger identity.

Cite: 2006 Duke L. & Tech. Rev. 0002

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 Internet and Wi-Fi networks, federal regulations generally prevent municipalities or private companies from providing wireless Internet access with universal service funds. Federal regulations have replaced technology costs, lack of business incentives, and consumer affordability as the primary barrier to universal service. Competitive neutrality, the pro-competitive and technology-neutral approach to universal service funding, must be fully embraced in order to empower local communities with the choice of technologies that best suits their residents in providing universal and affordable access to advanced telecommunications and information services.

Cite: 2006 Duke L. & Tech. Rev. 0001

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 make certain that the legislation passed is comprehensive and useful for regulation of the ever-changing field of cloning. From debates on whether reproductive or therapeutic cloning should be permitted or banned, to concerns as to who has jurisdiction over cloning, the battle to develop cloning legislation has been difficult. However, this iBrief argues that the currently-proposed federal legislation is constitutional.

Cite: 2005 Duke L. & Tech. Rev. 0026

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 Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another’s computer to report a user’s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual’s identity. Existing law does not address spyware adequately because authorization language, buried in “click-through” boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings.

Cite: 2005 Duke L. & Tech. Rev. 0025

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. Although the FCC’s “broadcast flag” regulation was struck down on jurisdictional grounds, Hollywood has not given up the push for strict control. If Hollywood successfully acquires broadcast flag protection there could be far-reaching implications for innovation and development of new digital technologies. While content providers have important reasons to protect copyrighted material, there is too much at stake to merely acquiesce to their demands in the name of piracy prevention.

Cite: 2005 Duke L. & Tech. Rev. 0024

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 information that, if revealed, could put them at a competitive disadvantage and threaten their ability to obtain future patents. Yet, ambiguous disclosure requirements in the California Public Records Act preclude California’s public research universities from guaranteeing that proprietary information provided in connection with sponsored research agreements will remain confidential. Entering into such agreements with public universities in California is therefore a risky proposition for the sponsors. This iBrief argues that unless this is corrected, many of these public/private partnerships, which often lead to significant advances in science and medicine, may be deterred.

Cite: 2005 Duke L. & Tech. Rev. 0023

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. The music industry petitioned the Supreme Court to settle the disagreement between the circuit courts over the standard of liability for aiding in copyright infringement. The case was based on a clash between the protection of technological innovation and the protection of artistic works. This iBrief examines the circuit split and the Grokster opinion and discusses the questions of liability left unresolved by the Supreme Court. It argues that further clarification of the Sony rule is still needed in order to encourage the proliferation of legitimate peer-to-peer networks by protecting their services while discouraging illegitimate file-sharing activities.

Cite: 2005 Duke L. & Tech. Rev. 0022

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 terms. This iBrief examines the application of trademark law to this practice and concludes that Google would be contributorially liable for trademark infringement only when the advertising links lead to consumer confusion about the identity of the advertiser.

Cite: 2005 Duke L. & Tech. Rev. 0021

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 has not enacted a set of practicable standards to ensure that personal data does not become widely misused by commercial entities. Although some potential privacy abuses could be addressed by modifying RFID technology, this iBrief argues that it would be wise to amend the Privacy Act of 1974 so that corporations would have a statutory obligation to preserve individual anonymity and respect the privacy preferences of consumers.

Cite: 2005 Duke L. & Tech. Rev. 0020

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 2004, Congress responded by passing section 882 of the American Jobs Creation Act, which drastically changed the rules governing donations of intellectual property. This iBrief argues that Congress, in addressing overvalued intellectual property donations, went too far in its efforts by failing to fully consider the importance of positive donor incentives. After discussing other proposed policies, this iBrief suggests a hybrid policy that combines strong donor incentives with protective measures against overvaluation.

Cite: 2005 Duke L. & Tech. Rev. 0019

Posted in Patents & Technology

China’s WAPI Policy: Security Measure or Trade Protectionism?

By: Zia K. Cromer

In December of 2003, the Chinese government announced that all WLAN equipment sold in China must conform to a propriety standard called WAPI, rather than the internationally accepted Wi-Fi standard. Moreover, for foreign firms to gain access to WAPI technology, they would need to partner with one of two-dozen Chinese firms designated by the Chinese government. The policy ostensibly grew out of security concerns regarding Wi-Fi, although it is unclear whether WAPI is more secure. Beijing has now indefinitely postponed the implementation of this policy, but WAPI is still relevant. This iBrief argues that WAPI is illustrative of many Chinese technical barriers to trade in the high-tech sector, and evaluates this policy’s consistency with China’s WTO obligations.

Cite: 2005 Duke L. & Tech. Rev. 0018

Posted in International

From Deepsouth to the Great White North: The Extraterritorial Reach of United States Patent Law After Research in Motion

By: Daniel P. Homiller

In the Internet age, complex telecommunications systems are often deployed with little regard for international borders. In NTP, Inc. v. Research in Motion, Ltd., the Federal Circuit determined that one such system infringed several U.S. patents, despite the fact that an essential element of the system was located outside the territorial United States. This iBrief argues that the Federal Circuit erred in invoking the “control and beneficial use” test, which it culled from the very few prior cases addressing extraterritorial application of U.S. patent law. In doing so, the court disregarded the Supreme Court’s direction in Deepsouth Packing Co. v. Laitram Corp. that the United States’ patent laws make no claim to extraterritorial effect.

Cite: 2005 Duke L. & Tech. Rev. 0017

Posted in Patents & Technology

New Jersey’s Adult Internet Luring Statute: An Appropriate Next Step?

By: John W. Lomas Jr.

New Jersey recently enacted legislation prohibiting the use of the Internet to lure or entice someone to a location with the purpose of committing a crime with or against that person or some other person. Most states have similar laws pertaining to pedophiles, but this is the first adult Internet luring statute. State measures to regulate the Internet, even in the context of criminal justice, will likely face constitutional challenge since the Internet has become such a critical vehicle for both protected speech and interstate commerce. Furthermore, while the use of the Internet in the commission of crimes against other persons is a new phenomenon, it is unclear whether new laws are the best solution, or whether other responses such as equipping police and investigators with more resources and training to properly enforce existing law would be more effective. This iBrief analyzes the issues New Jersey will face with its statute and the issues other states should be aware of when considering similar legislation.

Cite: 2005 Duke L. & Tech. Rev. 0016

Posted in CyberCrime

The SPS Agreement: Can It Regulate Trade in Nanotechnology?

By: James D. Thayer

Recent studies have shown that nanoparticles, which are approximately 1 to 100 billionths of a meter in size, present unique health and environmental risks. Nevertheless, products enhanced by nanoparticles, such as sunscreen, golf balls, and hard drives, are shipped daily in international trade. With these unique risks in mind, would measures regulating the trade in nanotechnology be subject to the WTO Agreement on Sanitary and Phytosanitary Measures? If they were, would the Agreement objectively balance the unique risks and benefits of trading in nanotechnology? Whether measures regulating the trade in nanotechnology are subject to the SPS Agreement depends on the purpose of such measures. This iBrief argues that because of recent scientific evidence, many such measures are likely to be subject to the SPS Agreement. In addition, since sanitary and phytosanitary measures must be based on scientific evidence, if Members apply the Agreement appropriately, the Agreement would objectively balance the benefits and risks of trading in nanotechnology.

Cite: 2005 Duke L. & Tech. Rev. 0015

Posted in International

Stop the Abuse of Gmail!

By: Grant Yang

Gmail, a highly anticipated webmail application made by Google, has been criticized by privacy advocates for breaching wiretapping laws, even before its release from beta testing. Gmail’s large storage space and automated processes developed to scan the content of incoming messages and create advertisements based on the scanned terms have enraged privacy groups on an international level. This iBrief will compare Gmail’s practices with its peers and conclude that its practices and procedures are consistent with the standards of the webmail industry. The iBrief will then propose additional measures Gmail could institute to further protect webmail users’ and alleviate the concerns of privacy advocates.

Cite: 2005 Duke L. & Tech. Rev. 0014

Posted in eCommerce

Regulating Indecency: The Federal Communication Commission’s Threat to the First Amendment

By: Reed Hundt

This paper is adapted from a talk given by the author at Duke University School of Law on April 6, 2005. The author argues that the Federal Communication Commission’s recent crackdown on television indecency poses a significant threat to First Amendment protections by (1) limiting television viewers’ freedom of choice and (2) implying the possibility of punishment for failure to cooperate with the political objectives of the governing party.

Cite: 2005 Duke L. & Tech. Rev. 0013

Posted in Media & Communications

A New Paradigm for Intellectual Property Rights in Software

By: Mark H. Webbink

A Winter 2004 article by Bradford L. Smith and Susan O. Mann of Microsoft published in The University of Chicago Law Review suggests that the development and growth of the software industry in the U.S. is a direct outgrowth of the implementation of intellectual property regimes, specifically copyright and patent, with respect to software in the late 1970s and early 1980s. This paper suggests that such patents were neither the sole nor the principal factor for the development of the software industry, that concerns about patents manifested prior to or soon after their application to software have proven true, and that patents are, in fact, not serving the interests of either the U.S. software industry or the consuming public. To that end, this paper advances recommendations for reforming the U.S. patent system as well as consideration of a new schema for protecting software.

Cite: 2005 Duke L. & Tech. Rev. 0012

Posted in Patents & Technology

The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?

By: Robert Bray

This paper has been adapted from a presentation given by the author at Duke University School of Law’s “Hot Topics in Intellectual Property Law Symposium” on April 1, 2005. It first presents an overview of the EU “Software Patents” Directive and many of the amendments that have been proposed and adopted. It then suggests a number of ways in which Europe can lead the world in developing a system that balances the interests of patent protection and open-source software.

Cite: 2005 Duke L. & Tech. Rev. 0011

Posted in International

Google Library: Beyond Fair Use?

By: Elisabeth Hanratty

Last December Google announced the formation of partnerships with select major libraries to begin digitizing and storing the libraries’ collections online. Google aims to provide individuals with the ability to search the full text of these books from anywhere using the Google search engine. This project will greatly increase access to those works in the public domain, but what about the books still under copyright protection? This iBrief examines the copyright implications of this ambitious project and concludes that the project, as described, does infringe the rights of copyright holders. It further concludes that while such infringement is unlikely to be found to be a fair use, it may ultimately be in the copyright holders’ best interests to acquiesce to Google’s infringement.

Cite: 2005 Duke L. & Tech. Rev. 0010

Posted in Copyrights & Trademarks

Troll or No Troll? Policing Patent Usage With an Open Post-Grant Review

By: David G. Barker

In December 2004, a mystery business, JGR Acquisitions Inc., purchased the patent portfolio of bankrupt Commerce One at auction. Commerce One had not previously enforced the acquired patents and many companies were using the patented technologies at the time of the auction. Patent watchdog groups argued that JGR–a potential patent troll formed solely to purchase Commerce One’s patents–should not be able to use the patents as a vehicle to extract licensing fees and that the patents should lapse into the public domain. Under current law, however, there is no provision for patents to be invalidated merely because they are used in a manner that discourages innovation. This iBrief argues that in order to keep patent trolls from stifling innovation and to protect legitimate patent holders, the Patent and Trademark Office should require an open post-grant review whenever patents are renewed or sold.

Cite: 2005 Duke L. & Tech. Rev. 0009

Posted in Patents & Technology

The Dormant Commerce Clause and State Regulation of the Internet: Are Laws Protecting Minors From Sexual Predators Constitutionally Different Than Those Protecting Minors From Sexually Explicit Materials?

By: Chin Pann

Several states have enacted statutes to protect minors from harmful or obscene materials disseminated over the Internet, as well as from pedophiles seeking to use the Internet to lure them into sexual conduct. State and federal courts have diverged in their analysis of the Dormant Commerce Clause’s impact on state regulation in these areas. While state courts have held that the Dormant Commerce Clause does not invalidate state luring statutes, federal courts have been consistent in finding state dissemination statutes unconstitutional. This iBrief summarizes recent state and federal jurisprudence in this area and concludes that state courts have not been successful in distinguishing state luring statutes from federal case law on state dissemination statutes. Therefore, state courts have prematurely aborted the Dormant Commerce Clause examination.

Cite: 2005 Duke L. & Tech. Rev. 0008

Posted in CyberCrime

Television: Peer-To-Peer’s Next Challenger

By: D. Branch Furtado

The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing “Betamax” decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology.

Cite: 2005 Duke L. & Tech. Rev. 0007

Posted in Copyrights & Trademarks

Plugging the “Phishing” Hole: Legislation Versus Technology

By: Robert Louis B. Stevenson

This iBrief analyzes the Anti-Phishing Act of 2005, legislation aimed at curbing the problem of “phishing.” Phishing is the sending of fraudulent emails which appear to be from legitimate businesses and thereby fooling the recipients into divulging personal information such as credit card numbers. While this legislation may provide some assistance in the fight against phishing, it is limited by the global nature of the Internet and the ease with which phishers can hide and avoid judgments. This iBrief therefore concludes that although the Anti-Phishing Act can play a supporting role in the battle, technological solutions are the most effective means of reducing or eliminating phishing attacks.

Cite: 2005 Duke L. & Tech. Rev. 0006

Posted in CyberCrime

Willful Infringement and the Evidentiary Value of Opinion Letters After Knorr–Bremse v. Dana

By: Joshua Stowell

Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the plaintiff may inform the fact-finder that the alleged infringer failed to consult legal counsel, and (2) willful infringement findings can probably be avoided even absent an opinion from counsel, as long as the alleged infringer makes a showing of good faith intent to avoid infringement.

Cite: 2005 Duke L. & Tech. Rev. 0005

Posted in Patents & Technology

Taking Biologics for Granted? Takings, Trade Secrets, and Off-Patent Biological Products

By: Andrew Wasson

Biologics are complex medicines which are often genetically engineered, and which are sure to play an important role in curing some of humankind’s worst diseases. Not surprisingly, generic companies want a part of the biologic market. The FDA believes that it has the authority to approve off-patent versions of biologics that were originally regulated under the Food, Drug & Cosmetic Act, but in order to effectively do so the FDA would have to rely on findings based on data produced by the brand name companies. This iBrief examines whether the FDA’s reliance on previous findings would give rise to a valid claim under the Takings Clause of the U.S. Constitution. In the end, it concludes that the FDA’s proposed action likely would not constitute a taking.

Cite: 2005 Duke L. & Tech. Rev. 0004

Posted in Health & Biotechnology