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. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0007

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. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0008

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. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0006

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. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0005

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. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0004