Articles

THE “25% RULE” FOR PATENT INFRINGEMENT DAMAGES AFTER UNILOC
Roy J. Epstein
2012 Duke L. & Tech. Rev. 001
International
1/29/12

The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues to argue that the Rule is fundamentally valid and should remain in use. This article analyzes the historical development of the Rule, its conceptual basis, its application in actual cases, and relevant insights from other recent Federal Circuit cases. Each analysis shows fundamental problems and contradictions that demonstrate the Rule can never be a reliable patent damages methodology. There is no reason to change the conclusion in Uniloc.

THE PATH OF INTERNET LAW: AN ANNOTATED GUIDE TO LEGAL LANDMARKS
Michael L. Rustad & Diane D’Angelo
2011 Duke L. & Tech. Rev. 012
International
11/30/11

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace.

COPYRIGHT FOR COUTURE
Loni Schutte
2011 Duke L. & Tech. Rev. 011
Copyrights & Trademarks
11/21/11

Fashion design in America has never been covered by the extensive intellectual property (IP) protections afforded to other categories of creative works or to the art in other countries. As a result, America has become a safe haven for design pirates. Piracy disproportionately harms young designers who do not have established trademarks for their brands and must rely purely on creativity to propel their designs into the market. H.R. 2511 is a bill that aims to extend copyright protection to fashion designs, albeit narrowly. Compared with previous proposals to extend effective IP protection to fashion design, H.R. 2511 is more of a sui generis protection aimed at the particularities of the fashion industry. It was the result of intensive negotiations between parties of conflicting interests, and has been tailored to address specific yet ubiquitous problems in the fashion industry.

PROGRAMMERS AND FORENSIC ANALYSES: ACCUSERS UNDER THE CONFRONTATION CLAUSE
Karen Neville
2011 Duke L. & Tech. Rev. 010
Health & Biotechnology
11/13/11

Recent Supreme Court cases involving the Confrontation Clause have strengthened defendants’ right to face their accusers. Bullcoming v. New Mexico explored the question of whether the testimony of the technician who performs a forensic analysis may be substituted by that of another analyst, and the Court held that producing a surrogate witness who was not sufficiently involved in the analysis violates the confrontation right.
The presumption of infallible technology is fading, and courts may soon realize programmers have greater influence over the ultimate outcome of forensic tests than do the technicians who rely on such analytical tools. The confrontation right, so bolstered by recent cases, may encompass defendants’ right to demand testimony from the programmers of machines performing forensic analyses. The Bullcoming decision is certain to affect whether the right to confront the programmer will be recognized.

CHECKING THE STAATS: HOW LONG IS TOO LONG TO GIVE ADEQUATE PUBLIC NOTICE IN BROADENING REISSUE PATENT APPLICATIONS?

David M. Longo & Ryan P. O’Quinn
2011 Duke L. & Tech. Rev. 009
Patents & Technology
11/7/11
A classic property rights question looms large in the field of patent law: where do the rights of inventors end and the rights of the public begin? The right of inventors to modify the scope of their claimed inventions, even after the patent issues, is in direct tension with the concepts of public notice and the public domain. The Patent Act currently permits broadening of claims so long as a reissue application demonstrating intent to broaden is filed within two years of the original patent issue. Over the years, however, this relatively straightforward statutory provision has sparked numerous disputes over its meaning and application.
On September 8, 2011, the Court of Appeals for the Federal Circuit heard oral arguments for In re Staats. In this case, Apple Computer, Inc. appeals the rejection of a continuation reissue patent application. The U.S. Patent & Trademark Office and the Board of Patent Appeals and Interferences rejected the application on the grounds that Apple attempted to broaden the scope of its patent claims in a manner not “foreseeable” more than eight years after the patent first issued. Apple contends that the language of the statute and prior case law permit its interpretation, and the application should be allowed in the interest of innovation. This issue is hardly a new one—this submission highlights nearly 140 years of case law, legislative history, and statutory shaping pertaining to broadening reissues. We analyze the issues raised in the briefs from Staats, as well as the oral arguments. Finally, we discuss from a practitioner’s perspective what the Federal Circuit could do—and should do—in the field of broadening reissues.

ELECTRONIC DISCOVERY IN THE CLOUD

Alberto G. Araiza
2011 Duke L. & Tech. Rev. 008
eDiscovery
9/20/11

Cloud Computing is poised to offer tremendous benefits to clients, including inexpensive access to seemingly limitless resources that are available instantly, anywhere. To prepare for the shift from computing environments dependent on dedicated hardware to Cloud Computing, the Federal Rules of Discovery should be amended to provide relevant guidelines and exceptions for particular types of shared data.
Meanwhile, clients should ensure that service contracts with Cloud providers include safeguards against inadvertent discoveries and mechanisms for complying with the Rules. Without these adaptations, clients will be either reluctant or unprepared to adopt Cloud Computing services, and forgo their benefits.

COPYRIGHT ENFORCEMENT OF NON-COPYRIGHT TERMS: MDY V. BLIZZARD AND KRAUSE V. TITLESERV

Justin Van Etten
2011 Duke L. & Tech. Rev. 007
Copyrights & Trademarks
8/9/11

The rise of software and software licensing has led to another phenomenon: the attempted enforcement of software licenses through copyright law. Over the last fifteen years, content creators have begun to bring copyright suits against licensees, arguing that violation of license terms withdraws the permission needed to run the software, turning the use of the software into copyright infringement.

Not surprisingly, courts have rejected this argument, and both the Ninth Circuit, in MDY v. Blizzard, and the Second Circuit, in Krause v. Titleserv, have developed new legal rules to prevent copyright enforcement of contract terms. This iBrief explores software licensing in detail, analyzes the courts’ responses, and concludes that the Ninth Circuit’s approach to copyright enforcement of license terms is preferable to the Second Circuit’s approach because it is supported by legislative history, more straightforward, and more likely to prevent future content creators from enforcing their licenses through contract.

THE CLASSIC 25% RULE AND THE ART OF INTELLECTUAL PROPERTY LICENSING
Robert Goldscheider
2011 Duke L. & Tech. Rev. 006
Patents & Technology
5/30/11

Fifty years ago, Robert Goldscheider helped pioneer the use of a methodology known as “the 25% Rule,” a tool for determining reasonable royalties in intellectual property licensing negotiations. The Rule holds that licensees of intellectual property normally deserve the lion’s share of the profit because they usually bear the bulk of the business risk associated with bringing the intellectual property to market. Experts familiar with the art of intellectual property licensing frequently rely on the 25% Rule to rationally determine reasonable royalties in litigation and transactional settings. 

The Rule’s prominence has been accompanied by unfortunate misunderstandings about its form and substance. It is not, as some suggest, intended to be a simple shortcut to determine patent royalties. Rather, it was developed as, and remains, a meticulous methodology inspired by significant private transactions and ultimately refined by brilliant judicial interpretation. As such, it is inappropriate to condescendingly diminish it to a mere “rule of thumb.” When properly understood and applied, the Classic 25% Rule is an effective discipline that achieves the high standards of reliability demanded by the U.S. Supreme Court in the Daubert and Kumho Tire cases. On January 4, 2011, the Federal Circuit, in Uniloc v. Microsoft, held that “the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation.”2 This decision is problematic for a variety of reasons: (1) it assumes that the 25% Rule, as it is classically understood, is a rule of thumb; (2) district courts could interpret it as prohibiting damages experts from applying the Classic 25% Rule as a tool for determining a baseline royalty rate, because of the court’s confusion between a baseline royalty rate and a “reasonable royalty” under § 284 of the Patent Act; and (3) it could denigrate the skills of true experts who have utilized, and continue to utilize, the Classic 25% Rule in a way that otherwise meets the admissibility standards of the Federal Rules of Evidence. This article attempts to correct these misunderstandings in the hope of restoring some certainty in an area of jurisprudence that, unfortunately, has become an unpredictable area of the law.

SPEAKING OF MUSIC AND THE COUNTERPOINT OF COPYRIGHT: ADDRESSING LEGAL CONCERNS IN MAKING ORAL HISTORY AVAILABLE TO THE PUBLIC
Jeremy J. Beck and Libby Van Cleve
2011 Duke L. & Tech. Rev. 005
Copyrights & Trademarks
4/8/11

Oral history provides society with voices and memories of people and communities experiencing events of the past first-hand.  Such history is created through interviews; an interview, however, like any other type of intellectual property—once in a fixed form—is subject to copyright law.  In order to make oral history available to the public, it is critically important that individuals generating and acquiring oral history materials clearly understand relevant aspects of copyright law.  The varied nature of how one may create, use, and acquire oral history materials can present new, surprising, and sometimes baffling legal scenarios that challenge the experience of even the most skilled curators. 

This iBrief presents and discusses two real-world scenarios that raise various issues related to oral history and copyright law.  These scenarios were encountered by curators at Yale University’s Oral History of American Music archive (OHAM), the preeminent organization dedicated to the collection and preservation of recorded memoirs of the creative musicians of our time. The legal concerns raised and discussed throughout this iBrief may be familiar to other stewards of oral history materials and will be worthwhile for all archivists and their counsel to consider when reviewing their practices and policies.

NON-PER SE TREATMENT OF BUYER PRICE-FIXING IN INTELLECTUAL PROPERTY SETTINGS
2011 Duke L. & Tech. Rev. 004
Patents & Technology

4/6/11

The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens. This iBrief challenges the wholesale adoption of either proposition within the context of buyer price-fixing in intellectual property markets. More specifically, it examines antitrust law’s role in protecting patent holders’ rents through its condemnation of otherwise ostensibly efficient buyer price fixing. Using basic economic analysis, this iBrief refines the legal standards applicable at this point of intersection between antitrust and patent law.

In particular, the author recommends the limited abandonment of per se condemnation of buyer price-fixing within pure intellectual property contexts. As an alternative, a coarse screen which accounts for both price and innovation effects is proposed. This recommendation represents one example of how antitrust law can better account for the complicated and imperfectly understood effects of the patent system on social welfare.

THE INVISIBLE POWER OF MACHINES: REVISITING THE PROPOSED FLASH ORDER BAN IN THE WAKE OF THE FLASH CRASH
2011 Duke L. & Tech. Rev. 003
eCommerce
3/28/11

Technological innovation continues to make trading and markets more efficient, generally benefitting market participants and the investing public. But flash trading, a practice that evolved from high-frequency trading, benefits only a select few sophisticated traders and institutions with the resources necessary to view and respond to flashed orders. This practice undermines the basic principles of fairness and transparency in securities regulation, exacerbates information asymmetries and harms investor confidence.

This iBrief revisits the Securities and Exchange Commission’s proposed ban on the controversial practice of “flash trading” and urges the Securities and Exchange Commission and the Commodity Futures Trading Commission to implement the ban across the securities and futures markets. Banning flash trading will not impact high-frequency trading or other advantageous innovative trading practices, and will benefit all market participants by making prices and liquidity more transparent. In the wake of the May 6, 2010 “flash crash” and the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, now is an opportune time for the Securities and Exchange Commission and Commodity Futures Trading Commission to implement the ban.

SHERLEY V. SEBELIUS: STEM CELLS AND THE UNEASY INTERPLAY BETWEEN THE FEDERAL BENCH AND THE LAB BENCH
2011 Duke L. & Tech. Rev. 002
Health & Biotechnology

3/26/11

After Barack Obama’s election to the presidency, he promised that one of his top priorities in office would be to relieve the restrictions initiated by President George W. Bush on federal funding of embryonic stem cell research. President Obama followed through on his promise, but the celebrations in the nation’s research labs were short-lived. Anti-abortion advocates and other scientists working in the field that would allegedly be out-competed in the federal funding arena brought a legal challenge to the new government position.

The struggle culminated in August 2010 with a federal district court issuing a preliminary injunction to halt the new funding initiative. Although the government successfully appealed for a stay on the injunction pending arguments in the Court of Appeals, the decision has paralyzed research in the field. This iBrief argues that the injunction was wrongly granted, predicts how higher courts might treat the case, and suggests that the proper forum for addressing this controversy lies within the scientific community, not the judiciary.

THE ATTORNEY-CLIENT PRIVILEGE AND DISCOVERY OF ELECTRONICALLY-STORED INFORMATION
2011 Duke L. & Tech. Rev. 001
eDiscovery

2/24/11

The attorney-client privilege is the most sacred and important privilege in our legal system. Despite being at the center of daily practice, the privilege still remains a mystery for many lawyers. This is primarily because the privilege is not absolute, and there are certain actions or non-actions that may waive it.

The application of the privilege is further complicated by electronic discovery, which has both benefits and drawbacks. On one hand, it has made the practice of law more efficient. On the other hand, it has made it easier to inadvertently waive the attorney-client privilege in response to a discovery request. This iBrief examines attorney-client privilege issues that may arise during e-discovery, and provides practical guidelines for attorneys responding to e-discovery requests.

APPLYING COPYRIGHT ABANDONMENT IN THE DIGITAL AGE
2010 Duke L. & Tech. Rev. 019
Copyrights & Trademarks

11/15/10

Copyright law protects orphan and parented works equally–but it shouldn’t. Consequently, current law unnecessarily restrains public access to works that authors have not exercised dominion over for decades.

This problem has come to the fore in the Google Books settlement, which critics argue will give Google a de facto monopoly over orphan works. But this criticism implicates an obvious question: Why are orphan works protected by copyright law in the first place? If orphan works were in the public domain, then no one would worry about Google’s supposed “monopoly” because Google’s competitors would be free to copy the works without facing class action lawsuits. To address these concerns, I propose a new equitable defense to copyright infringement: the orphan theory of abandonment.

LIMITATION OF SALES WARRANTIES AS AN ALTERNATIVE TO INTELLECTUAL PROPERTY RIGHTS: AN EMPIRICAL ANALYSIS OF IPHONE WARRANTIES’ DETERRENT IMPACT ON CONSUMERS
2010 Duke L. & Tech. Rev. 018
Patents & Technology

11/15/10

Apple’s success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple’s exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), intellectual property law allows consumers to alter their products so as to circumvent relationships that manufacturers may have with others. The patent and copyright law first sale doctrine allows consumers to manipulate a product after it is purchased. As a result, manufacturers are increasingly turning to alternatives to intellectual property to secure control over the device after the sale.

One such alternative is the exclusion of warranty under Article 2 of the Uniform Commercial Code. This iBrief considers whether limitation of warranties have the deterrence effect manufacturers desire. Said differently, it considers whether manufacturers can use warranty limitations to prevent consumers from using their products in an unauthorized manner. The iBrief presents a behavioral model based on the Triandis model of planned behavior and enhances the model by accounting for likely and unlikely benefits and detriments. The model suggests that participants weigh the probability and magnitude of the detriment against the probability and magnitude of the beneficial impact when making the decision to engage in technological piracy. This model, considered with other empirical evidence, suggests that Apple’s warranty could be a stronger deterrent for consumers than civil liability. The iBrief concludes that manufacturers can better protect their post-sale expectation of profits by raising consumer awareness of their warranty’s quality and by raising awareness of the consequences for using the product in a way that is outside the terms of the consumers’ authorized use.

STANDARDS × PATENTS ÷ ANTITRUST = ∞: THE INADEQUACY OF ANTITRUST TO ADDRESS PATENT AMBUSH
2010 Duke L. & Tech. Rev. 017
Patents & Technology

11/8/10

“Patent ambush” describes certain rent-seeking behavior by the owner of patent rights to a technology that is essential to an industry standard. Two cases, Qualcomm and Rambus, represent attempts of the Third and D.C. Circuits, respectively, to address patent ambushes using federal antitrust statutes. In both cases, antitrust law proves inadequate to the task.

Under Qualcomm, licensees gain too much power to extort undervalued royalty rates from patent holders who have disclosed their rights during standard-setting. Under Rambus, coupled with the dearth of other options to combat patent ambushes, non-disclosing patent holders are given free reign over standardized markets, to the detriment of end-users. This iBrief argues that the flaws in each rule inhere from a fundamental inadequacy of antitrust law to address patent ambush.

THE RISE OF COMPUTERIZED HIGH FREQUENCY TRADING: USE AND CONTROVERSY
2010 Duke L. & Tech. Rev. 016
eCommerce

11/8/10

Over the last decade, there has been a dramatic shift in how securities are traded in the capital markets. Utilizing supercomputers and complex algorithms that pick up on breaking news, company/stock/economic information and price and volume movements, many institutions now make trades in a matter of microseconds, through a practice known as high frequency trading.

Today, high frequency traders have virtually phased out the “dinosaur” floor-traders and average investors of the past. With the recent attempted robbery of one of these high frequency trading platforms from Goldman Sachs this past summer, this “rise of the machines” has become front page news, generating vast controversy and discourse over this largely secretive and ultra-lucrative practice. Because of this phenomenon, those of us on Main Street are faced with a variety of questions: What exactly is high frequency trading? How does it work? How long has this been going on for? Should it be banned or curtailed? What is the end-game, and how will this shape the future of securities trading and its regulation? This iBrief explores the answers to these questions.

PRIVATE ORDERING AND ORPHAN WORKS: OUR LEAST WORST HOPE?\
2010 Duke L. & Tech. Rev. 015
Copyrights & Trademarks

9/28/10

The political capture of copyright law by industry groups has inadvertently led to orphan works problems arising in less organized industries, such as publishing. Google Book Search (GBS) is a prime example of how private ordering can circumvent legislative inefficiencies.

Digital technologies such as GBS can open up a new business model for publishers and other content industries, centered around aggregated rights holdings. However, the economic inertia that private ordering represents may pose a threat to the knowledge-oriented goals of copyright law.

PRIVACY EXPECTATIONS AND PROTECTIONS FOR TEACHERS IN THE INTERNET AGE
2010 Duke L. & Tech. Rev. 014
Media & Communications

9/28/10

Public school teachers have little opportunity for redress if they are dismissed for their activities on social networking websites. With the exception of inappropriate communication with students, a school district should not be able to consider a public educator’s use of a social networking website for disciplinary or employment decisions.

Insisting that the law conform to twenty-first century social norms, this iBrief argues that the law should protect teachers’ speech on popular social networking websites like Facebook and MySpace.


KEEPING THE LEDS ON AND THE ELECTRIC MOTORS RUNNING: CLEAN TECH IN COURT AFTER EBAY
2010 Duke L. & Tech. Rev. 013
Patents & Technology

9/22/10

The recent rise of non-practicing patentees (NPPs) in the clean technology space comes at a time when the international community is debating the role of intellectual property rights in the deployment and implementation of technologies to combat climate change.

While the impact of intellectual property rights on the deployment of clean technology has been studied, less attention has been given to the role intellectual property regimes play in maintaining the operation of those technologies already deployed in the fight against global warming. This iBrief focuses on clean technologies that have already achieved substantial market penetration and observes that recent trends in patent law are, to a large extent, allowing those technologies to continue working to reduce carbon emissions. Specifically, the course correction in the law of patent injunctions brought about by eBay v. MercExchange and the endorsement of court-imposed ongoing royalty payments in Paice v. Toyota demonstrate an important shift in patent law that is tempering the impact of clean tech NPPs in Title 35 infringement actions in federal courts. However, these trends have caused a tactical adjustment by clean tech NPPs—namely, filing suits in the U.S. International Trade Commission (ITC), where the remedy of an exclusion order is available. These ITC cases could adversely affect implemented clean technologies.

DISLOYAL COMPUTER USE AND THE COMPUTER FRAUD AND ABUSE ACT: NARROWING THE SCOPE
2010 Duke L. & Tech. Rev. 012
CyberCrime

8/26/10

Congress drafted the Computer Fraud and Abuse Act (CFAA) to protect government interest computers from malicious attacks by hackers. As computer use has expanded in the years since its enactment, the CFAA has similarly expanded to cover a number of computer-related activities.

This iBrief discusses the extension of the CFAA into the employer/employee context, suggests that this goes beyond the Act’s express purpose, compares the different approaches taken by the circuit courts in applying the CFAA to disloyal computer use by employees, and argues that the more recent approach taken by the Ninth Circuit provides a better model for determining if and when the CFAA should apply to employees.

WHO OWNS THE VIRTUAL ITEMS?
2010 Duke L. & Tech. Rev. 011
Media and Communications

8/26/10

Do you WoW? Because millions of people around the world do! Due to this increased traffic, virtual wealth amassed in MMORPGs are intersecting in our real world in unexpected ways. Virtual goods have real-life values and are traded in real-life markets. However, the market for trading in virtual items is highly inefficient because society has not created property rights for virtual items.

This lack of regulation has a detrimental effect not just the market for virtual items, but actually the market for MMORPGs. Assuming we want to promote the production of MMORPGs as a market, society requires a set of distinct property rules to decrease the inefficiencies in the virtual market. In creating these regulation, we may be able to take cues from intellectual property laws, as many of the problems surrounding virtual goods are akin to intellectual property.


CHATTER, CLATTER, AND BLINKS: DEFECTIVE CAR ALERTS AND THE ROLE OF TECHOLOGICAL ADVANCES IN DESIGN DEFECT/FAILURE TO WARN CASES
2010 Duke L. & Tech. Rev. 010
Copyrights and Trademarks

8/25/10

Car owners are familiar with the warning lights on the dashboard and the beeping sound reminding them to use their seatbelt. But, neither the legislature nor courts have concretely defined the legal nature of these alerts.

This iBrief will analyze when a deficient alert becomes a defective product tort claim and determine the appropriate theory under which such claims should be brought.

THE CLASS DEFENSE: WHY DISPERSED INTELLECTUAL PROPERTY DEFENDANTS NEED PROCEDURAL PROTECTIONS
2010 Duke L. & Tech. Rev. 009
Copyrights and Trademarks

8/19/10

“The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants.” –Judge S. James Otero2

Current procedural rules have failed to keep up with trends in intellectual property litigation. The rise of digital media, the use of the Internet for mass distribution, and the increasing vigor with which copyright proprietors protect their legal interests has led to an increase in litigation on behalf of corporate plaintiffs against dispersed, non-commercial defendants. These cases take advantage of a procedural oversight, one which affords plaintiffs the ability to aggregate their cases against dispersed defendants who are unable to utilize a common defense. A class defense would level the playing field between plaintiffs and defendants, avoid default judgments, and protect defendants with valid defenses from settling negative expected value suits.

THE ANONYMOUS POSTER: HOW TO PROTECT INTERNET USERS’ PRIVACY AND PREVENT ABUSE
2010 Duke L. & Tech. Rev. 008
Media and Communications

8/12/10

The threat of anonymous Internet posting to individual privacy has been met with congressional and judicial indecisiveness. Part of the problem stems from the inherent conflict between punishing those who disrespect one’s privacy by placing a burden on the individual websites and continuing to support the Internet’s development.

Additionally, assigning traditional tort liability is problematic as the defendant enjoys an expectation of privacy as well, creating difficulty in securing the necessary information to proceed with legal action. One solution to resolving invasion of privacy disputes involves a uniform identification verification program that ensures user confidentiality while promoting accountability for malicious behavior.

SUBSTANTIALLY JUSTIFIED? THE U.S. GOVERNMENT’S USE OF NAME-CHECK TECHNOLOGIES IN NATURALIZATION PROCEDURES
2010 Duke L. & Tech. Rev. 007
CyberCrime

6/10/10

The U.S. Citizenship and Immigration Services relies upon the Federal Bureau of Investigation to administer the National Name Check Program, which conducts background checks on applicants for naturalization. Backlogs have led to long delays for aspiring citizens and significant legal problems for the government.

This iBrief examines the First Circuit’s ruling in Aronov v. Napolitano that an eighteen-month delay in adjudicating a naturalization application was substantially justified. While the government’s inefficiency can be explained partly by an understaffed bureaucracy, overwhelming evidence suggests that these problems are exacerbated by a technological infrastructure that is ill-equipped to handle the scope of the backlog. This iBrief argues that the government should be held liable for its failures; and that long-overdue technological improvements should be implemented to prevent these issues from recurring in the future.

JUVENILE JUSTICE, SULLIVAN, AND GRAHAM: HOW THE SUPREME COURT’S DECISION WILL CHANGE THE NEUROSCIENCE DEBATE
2010 Duke L. & Tech. Rev. 006
Health & Biotech

5/18/10

Over the past twenty years, neuroscientists have discovered that brain maturation continues through an individual’s mid-twenties. The United States Supreme Court cited this research to support its abolition of the juvenile death penalty in Roper v. Simmons.

Now the Court is faced with two cases that challenge the constitutionality of sentencing juveniles to life imprisonment without parole. Many believe these studies indicate that juveniles are both less culpable for their actions and more likely to reform; therefore, life in prison for juveniles is disproportionate, cruel, and unusual. However, others caution against the use of these studies in deciding issues of juvenile justice. This iBrief summarizes the cases currently before the Court, presents the arguments for and against the use of neuroscience in the juvenile justice debate, and analyzes the impact these cases will have on the future of neuroscience’s role in juvenile justice.

IN RE BILSKI AND THE “MACHINE-OR-TRANSFORMATION” TEST: RECEDING BOUNDARIES FOR PATENT-ELIGIBLE SUBJECT MATTER
2010 Duke L. & Tech. Rev. 005
Patent & Technology

4/14/10

In order for a hopeful applicant to be granted a patent over his invention, his application must satisfy several procedural and substantive requirements.

Among the substantive hurdles that an applicant must clear is the mandate that patents only be issued to applications claiming statutory subject matter within the meaning of § 101 of the Patent Act. However, the Court of Appeals for the Federal Circuit (Federal Circuit) has not construed that Section consistently over the years. Since that court’s formation in 1982, it has espoused two tests for statutory subject matter, and each time has substantially abrogated, if not overruled, the prior formulation. Most recently, the Federal Circuit has handed down the “machine-or-transformation” test in an attempt to redraft the limits of patent eligibility based on subject matter. This iBrief will explore the significant changes that this new test has brought to the patentability doctrine.

THE IMPACTS OF THE CHINESE ANTI-MONOPOLY LAW ON IP COMMERCIALIZATION IN CHINA & GENERAL STRATEGIES FOR TECHNOLOGY-DRIVEN COMPANIES AND FUTURE REGULATORS
2010 Duke L. & Tech. Rev. 004
International

3/23/10

After thirteen years of discussion and three revisions, China’s Anti-Monopoly Law (AML) was promulgated on August 30, 2007 and has come into effect on August 1, 2008.

It is the first anti-monopoly law in China and has been viewed as an “economic constitution” and a “milestone of the country’s efforts in promoting a fair competition market and cracking down on monopoly activities.” However, the wording of some provisions of the AML, including the sections dealing with Intellectual Property (IP) protection, is not very clear. And juridical interpretations and more specific implementing regulations on the AML have not yet appeared. This has led to a lot of uncertainty for the operations of foreign enterprises, particularly IP related enterprises in China. This iBrief will provide an overview of possible impacts of the AML on the IP protection and commercialization in China. First, it will provide a brief overview of the AML, including both major compliments and criticism. Second, it will examine both opportunities and potential legal risks of foreign IP holders and investors when operating in China, particularly focusing on the impacts of Article 55, the IP-related provision. Thirdly, it will provide some practical suggestions and strategies for foreign IP holders and technology-driven companies to operate in China, such as some useful defenses for potential IP lawsuits. Finally, it will provide some suggestions for future interpretation and implementation of Article 55 in the AML by drawing on lessons from the experiences of the United States and the European Union.

CYBER WARFARE AND THE CRIME OF AGGRESSION: THE NEED FOR INDIVIDUAL ACCOUNTABILITY ON TOMORROW’S BATTLEFIELD
2010 Duke L. & Tech. Rev. 003
CyberCrime

2/23/10

As cyberspace matures, the international system faces a new challenge in confronting the use of force.

Non-State actors continue to grow in importance, gaining the skill and the expertise necessary to wage asymmetric warfare using non-traditional weaponry that can create devastating real-world consequences. The international legal system must adapt to this battleground and provide workable mechanisms to hold aggressive actors accountable for their actions. The International Criminal Court—the only criminal tribunal in the world with global reach—holds significant promise in addressing this threat. The Assembly of State Parties should construct the definition of aggression to include these emerging challenges. By structuring the definition to confront the challenges of cyberspace—specifically non-State actors, the disaggregation of warfare, and new conceptions of territoriality—the International Criminal Court can become a viable framework of accountability for the wars of the twenty-first century.

ONLINE FANTASY SPORTS LITIGATION AND THE NEED FOR A FEDERAL RIGHT OF PUBLICITY STATUTE
2010 Duke L. & Tech. Rev. 002
eCommerce

2/9/10

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.

ANTITRUST, INNOVATION, AND UNCERTAIN PROPERTY RIGHTS: SOME PRACTICAL CONSIDERATIONS
2010 Duke L. & Tech. Rev. 001
Patents & Technology

1/27/10

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.

THE INTERNATIONAL TRADE COMMISSION: POTENTIAL BIAS, HOLD-UP, AND THE NEED FOR REFORM
2009 Duke L. & Tech. Rev. 011
International

12/04/09

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.

LENZ V. UNIVERSAL MUSIC CORP. AND THE POTENTIAL EFFECT OF FAIR USE ANALYSIS UNDER THE TAKEDOWN PROCEDURES OF §512 OF THE DMCA
2009 Duke L. & Tech. Rev. 010
Copyrights & TM.

11/25/09

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.

A HYPOTHETICAL NON-INFRINGING NETWORK: AN EXAMINATION OF THE EFFICACY OF SAFE HARBOR IN SECTION 512(C) OF THE DMCA
2009 Duke L. & Tech. Rev. 009
Copyrights & TM.

11/11/09

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.

THE FUTURE OF “FAIR AND BALANCED”: THE FAIRNESS DOCTRINE, NET NEUTRALITY, AND THE INTERNET
2009 Duke L. & Tech. Rev. 008
Media & Communications

10/26/09

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.

EXPERIMENTING WITH TERRITORIALITY: PAN-EUROPEAN MUSIC LICENSE AND THE PERSISTENCE OF OLD PARADIGMS
2009 Duke L. & Tech. Rev. 007
International

09/22/09

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.

COMMERCIAL SKIPPING TECHNOLOGY AND THE NEW MARKET DYNAMIC: THE RELEVANCE OF ANTITRUST LAW TO AN EMERGING TECHNOLOGY
2009 Duke L. & Tech. Rev. 006
Copyrights & TM.

08/18/09

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.

CIRCUMVENTING ACCESS CONTROLS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT: ANALYZING THE SECUROM DEBATE
2009 Duke L. & Tech. Rev. 005
Copyrights & TM.

06/29/09

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.

SPORE, DRM, AND PIRATES: UCITA AND MARKET REALITIES
2009 Duke L. & Tech. Rev. 004
Copyrights & TM.

04/16/09

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.

CIRCUMVENTING AUTHORITY: LOOPHOLES IN THE DMCA’S ACCESS CONTROLS
2009 Duke L. & Tech. Rev. 003
Copyrights & TM.

03/04/09

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.

ELECTRONICALLY STORED INFORMATION: BALANCING FREE DISCOVERY WITH LIMITS ON ABUSE
2009 Duke L. & Tech. Rev. 002
eDiscovery

02/17/09

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 Communicationsand 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.

GREEN TECHNOLOGY IN DEVELOPING COUNTRIES: CREATING ACCESSIBILITY THROUGH A GLOBAL EXCHANGE FORUM
2009 Duke L. & Tech. Rev. 001
Patents & Technology

01/15/09

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.

THE FUTURE OF GENERIC BIOLOGICS: SHOULD THE UNITED STATES “FOLLOW-ON” THE EUROPEAN PATHWAY?
2008 Duke L. & Tech. Rev. 0009
Health & Biotech

11/06/2008

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.

LEGAL APPROACHES TO PROMOTE TECHNOLOGICAL SOLUTIONS TO CLIMATE CHANGE
2008 Duke L. & Tech. Rev. 0008
Health & Biotech

10/10/2008

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.

MCKITHEN V. BROWN: DUE PROCESS AND POST-CONVICTION DNA TESTING
2008 Duke L. & Tech. Rev. 0007
Health & Biotechnology

9/30/2008

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.

THE U.S. ON TILT: WHY THE UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT IS A BAD BET
2008 Duke L. & Tech. Rev. 0006
eCommerce

6/30/2008

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.

TAXATION OF VIRTUAL ASSETS
2008 Duke L. & Tech. Rev. 0005
Media & Communications

5/10/2008

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.

ON THE PERILS OF INADEQUATE ANALOGIES
2008 Duke L. & Tech. Rev. 0004
Copyrights & Trademarks

4/3/2008

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.

FCC REGULATION: INDECENCY BY INTEREST GROUPS
2008 Duke L. & Tech. Rev. 0003
Media & Communications

3/6/2008

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.

REGULATING NANOTECHNOLOGY: A PRIVATE-PUBLIC INSURANCE SOLUTION
2008 Duke L. & Tech. Rev. 0002
Health & Biotechnology

2/13/2008

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.

IS THE INTERNET A VIABLE THREAT TO REPRESENTATIVE DEMOCRACY?
2008 Duke L. & Tech. Rev. 0001
Media & Communications

1/22/2008

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.

DOMAIN TASTING IS TAKING OVER THE INTERNET AS A RESULT OF ICANN’S “ADD GRACE PERIOD”
2007 Duke L. & Tech. Rev. 0009
Copyrights & TM

12/13/2007

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.

OPERATION RESTORATION: HOW CAN PATENT HOLDERS PROTECT THEMSELVES FROM MEDIMMUNE?
2007 Duke L. & Tech. Rev. 0008
Patents & Technology

11/27/2007

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.

ENCOURAGING CORPORATE INNOVATION FOR OUR HOMELAND DURING THE BEST OF TIMES FOR THE WORST OF TIMES: EXTENDING SAFETY ACT PROTECTIONS TO NATURAL DISASTERS
2007 Duke L. & Tech. Rev. 0007
Health & Biotech

11/12/2007

Two disasters have defined the turn of the 21st century for the nation: the terrorist assault of September 11, 2001 (“9/11”) and natural disaster Hurricane Katrina. Both events humbled the United States, confused the American public, and left its government searching for answers and vowing to be better prepared for the next national emergency.

The events of 9/11 led to the creation of the Department of Homeland Security (“DHS”), the 9/11 Commission, and a new body of statutes and regulations. Reactions to Hurricanes Rita and Katrina similarly led to commotion at the Capitol and DHS and also resulted in proposals to better position the country to deal with the next natural catastrophe. With respect to terrorist attacks and natural disasters, human interference—whether public, private, non-governmental organizations or individual—influences a nation’s ability to respond and mitigate the gravity of resulting damage.

A BUDDING THEORY OF WILLFUL PATENT INFRINGEMENT: ORANGE BOOKS, COLORED PILLS, AND GREENER VERDICTS
2007 Duke L. & Tech. Rev. 0006
Patents & Technology

10/9/2007

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.

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
2007 Duke L. & Tech. Rev. 0005
Copyrights & Trademarks

6/11/2007

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.

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)
2007 Duke L. & Tech. Rev. 0004
Patents & Technology

4/12/2007

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.

WHERE WILL CONSUMERS FIND PRIVACY PROTECTION FROM RFIDS?: A CASE FOR FEDERAL LEGISLATION
2007 Duke L. & Tech. Rev. 0003
eCommerce

3/8/2007

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.

IS KELLY SHIFTING UNDER GOOGLE’S FEET? NEW NINTH CIRCUIT IMPACT ON THE GOOGLE LIBRARY PROJECT LITIGATION
2007 Duke L. & Tech. Rev. 0002
Copyrights & Trademarks

3/8/2007

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.

DOES INFORMATION BEGET INFORMATION?
2007 Duke L. & Tech. Rev. 0001
Copyrights & Trademarks

2/7/2007

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.

T-MOBILE USA, INC. V. DEPARTMENT OF FINANCE FOR BALTIMORE CITY: WHAT THE LATEST SALVO IN DISPROPORTIONAL CELLULAR PHONE TAXATION MEANS FOR THE FUTURE
2006 Duke L. & Tech. Rev. 0020
Media & Communications

12/4/2006

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.

NEWSGROUPS FLOAT INTO SAFE HARBOR, AND COPYRIGHT HOLDERS ARE SUNK
2006 Duke L. & Tech. Rev. 0019
Copyrights & Trademarks

11/13/2006

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.

WHY TECHNOLOGY PROVIDES COMPELLING REASONS TO APPLY A DAUBERT ANALYSIS TO THE LEGAL STANDARD OF CARE IN MEDICAL MALPRACTICE CASES
2006 Duke L. & Tech. Rev. 0018
Health & Biotechnology

11/2/2006

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.

WHEN IS EMPLOYEE BLOGGING PROTECTED BY SECTION 7 OF THE NLRA?
2006 Duke L. & Tech. Rev. 0017
Media & Communications

10/4/2006

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.

THE CONSTITUTIONALITY OF WIPO’S BROADCASTING TREATY: THE ORIGINALITY AND LIMITED TIMES REQUIREMENTS OF THE COPYRIGHT CLAUSE
2006 Duke L. & Tech. Rev. 0016
International

9/25/2006

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.

THE END OF NET NEUTRALITY
2006 Duke L. & Tech. Rev. 0015
Media & Communications

7/18/2006

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.

WHAT, IF ANY, ARE THE ETHICAL OBLIGATIONS OF THE U.S. PATENT OFFICE?: A CLOSER LOOK AT THE BIOLOGICAL SAMPLING OFINDIGENOUS GROUPS
2006 Duke L. & Tech. Rev. 0014
Health & Biotechnology

5/17/2006

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.

INJUNCTION JUNCTION: REMEMBERING THE PROPER FUNCTION AND FORM OF EQUITABLE RELIEF IN TRADEMARK LAW
2006 Duke L. & Tech. Rev. 0013
Copyrights & Trademarks

5/5/2006

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.

DOWNLOAD, STREAM, OR SOMEWHERE IN BETWEEN: THE POTENTIAL FOR LEGAL MUSIC USE IN PODCASTING
2006 Duke L. & Tech. Rev. 0012
Copyrights & Trademarks

4/13/2006

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.

SHIELDING JOURNALIST-“BLOGGERS”: THE NEED TO PROTECT NEWSGATHERING DESPITE THE DISTRIBUTION MEDIUM
2006 Duke L. & Tech. Rev. 0011
Media & Communications

4/7/2006

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 Communicationsfrom compelled disclosure in federal court.

The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of “journalist” can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits must be set to prevent abuse of such protection.

PROTECTING INTELLECTUAL PROPERTY IN THE DEVELOPING WORLD: NEXT STOP–THAILAND
2006 Duke L. & Tech. Rev. 0010
International

3/27/2006

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 the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries.

UNNECESSARY INDETERMINACY: PROCESS PATENT PROTECTION AFTER KINIK V. ITC
2006 Duke L. & Tech. Rev. 0009
Patents & Technology

3/8/2006

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 courts do not apply to exclusion actions before the International Trade Commission.

This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit’s decision is inconsistent with the ITC’s longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court’s suggestion that the ITC should be given broad discretion to resolve conflicts between the patent statute and the Tariff Act is at odds with the Chevron doctrine, and (3) if the ITC employs the broad discretion that Kinik confers to it by excluding more foreign art than Federal district courts could lawfully exclude under the patent statute, the enforcement of domestic patent policy in the United States could conceivably violate obligations of non-discrimination (Article 27.1) and burden-shifting (Article 34) imposed by the TRIPS Agreement.