Publications and Announcements

The Red Dawn of Geoengineering: First Step Toward an Effective Governance for Stratospheric Injections

Science & Technology, Uncategorized

By: Edward J. Larson A landmark report by the National Academy of Sciences (NAS) issued in 2015 is the latest in a series of scientific studies to assess the feasibility of geoengineering with stratospheric aerosols to offset anthropogenic global warming and to conclude that they offer a possibly viable supplement or back-up alternative to reducing carbon dioxide emissions. The known past effect of major explosive volcanic eruptions temporarily moderating average worldwide temperatures provides evidence in support of this once taboo form of climate intervention. In the most extensive study to date, an elite NAS committee now suggests that such processes for adjusting global temperature, while still uncertain, merit further research and field testing. Every study stresses the need for transparent international governance of stratospheric injections, especially given that the benefits of such interventions are certain to be unevenly distributed and the risks are not fully known. After examining the roadblocks to such governance, this paper explores the statutory and common law frameworks that could provide some stop-gap approaches until the needed regulatory regime emerges. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 157

Continue

Aereo and Internet Television: A Call to Save the Ducks (A La Carte)

Copyrights & Trademarks, Media & Communications, Uncategorized

By: Pooja Patel If it looks like a duck, swims like a duck, and quacks like a duck, it is probably a duck. The most recent U.S. Supreme Court decision regarding the Copyright Act employed this “duck test” when determining that Aereo, an Internet content-streaming company, violated the Copyright Act by infringing on the copyrights of television broadcast networks. The Supreme Court ruled that Aereo’s Internet streaming services resembled cable television transmissions too closely. Therefore, by streaming copyrighted programming to its subscribers without the cable compulsory license, Aereo violated the Transmit Clause of the 1976 Copyright Act. Subsequently, Aereo used this Supreme Court decision to obtain a compulsory license from the Copyright Office but was denied. Forced back into litigation, Aereo filed for Chapter 11 Bankruptcy This Issue Brief describes Aereo’s technology, the litigation that followed, and the related precedent, and concludes that the district court should have granted Aereo a Section 111 Statutory License in line with the Supreme Court’s “duck test.” It considers the implications of the Court’s preliminary injunction against Aereo’s “a la carte” TV technology, what this means for the future of similar technological innovation, and the effects on consumers and competition. Download Full Article (PDF)

Continue

Riley v. California and the Stickiness Principle

Science & Technology, Uncategorized

By: Steven I. Friedland In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question of whether cell phone searches incident to a lawful arrest were constitutional. The Court, which had clung to pre-digital concepts such as physical trespass well into the twenty-first century, appeared ready to explore how technology is reshaping historically understood conceptions of privacy. From a broader perspective, the case offers an initial step in reconciling pre-digital rules based on outdated spatial conceptions of physical things with the changing realities of a technology driven world. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 121

Continue

Frand v. Compulsory Licensing: The Lesser of the Two Evils

Patents & Technology, Uncategorized

By: Srividhya Ragavan, Brendan Murphy, and Raj Davé This paper focuses on two types of licenses that can best be described as outliers—FRAND and compulsory licenses. Overall, these two specific forms of licenses share the objective of producing a fair and reasonable license of a technology protected by intellectual property. The comparable objective notwithstanding, each type of license achieves this end using different mechanisms. The FRAND license emphasizes providing the licensee with reasonable terms, e.g., by preventing a standard patent holder from extracting unreasonably high royalty rates. By contrast, compulsory licenses emphasize the public benefit that flows from enabling access to an otherwise inaccessible invention. Ultimately, both forms of license attempt to create a value for the licensed product that can be remarkably different from the product’s true market value. Nevertheless, both forms ultimately benefit the end-consumer who pays less to access a product subject to either of these forms of license. In comparing these two forms of licenses, the paper hopes to determine whether one form is better than the other, and if so, from whose perspective—the consumer, the licensor or the licensee. In doing so, this paper compares the different prevailing efforts to embrace such licenses as well

Continue

Noriega v. Activision/Blizzard: The First Amendment Right to Use a Historical Figure’s Likeness in Video Games

Media & Communications, Uncategorized

By: Joshua Sinclair Panama’s former dictator, Manuel Noriega, recently sued Activision Blizzard in the California Superior Court for using his likeness and image in the popular video game “Call of Duty: Black Ops II.” In his complaint, Noriega alleged that the use of his likeness violated his right of publicity. Former New York Mayor, Rudy Giuliani, came to Activision’s defense, and filed a motion to dismiss, which was granted. In granting Activision’s motion, the court held that Activision’s use of Noriega’s likeness was transformative and did not violate his right of publicity. This Issue Brief argues that the California Superior Court should not have applied the transformative use test but should have held that Manuel Noriega did not have a right of publicity for his place in Panama’s history. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 69

Continue

The Evolution of Giving: Considerations for Regulation of Cryptocurrency Donation Deductions

eCommerce, Uncategorized

By: Ashley Pittman This Issue Brief looks at the rapidly growing area of cryptocurrency donations to nonprofit organizations. Given the recent IRS guidance issued on taxation of Bitcoin, specifically its decision to treat cryptocurrencies as property, questions now arise as to how charitable contributions of the coins will be valued for tax deductions. Though Bitcoin resembles most other capital gain property, its volatility, general decline in value, anonymity, and potential for abuse require specific guidance on valuation and substantiation so as to handle its unique nature and prevent larger deductions for charitable contributions than those to which taxpayers are entitled. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 48

Continue

Authenticity and Admissibility of Social Media Website Printouts

Media & Communications, Uncategorized

By: Wendy Angus-Anderson Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets of cases and suggests that courts are not actually employing two distinct approaches. The Maryland Approach courts are not holding social media content to a higher standard than the Texas Approach courts, but are merely responding to a lack of evidence connecting the proffered content to the purported author. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 33

Continue

The FTC Has a Dog in the Patent Monopoly Fight: Will Antitrust’s Bite Kill Generic Challenges?

Antitrust, Intellectual Property, Patents & Technology

By: Jennifer D. Cieluch Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being that patents’ grant of exclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been found in the patent cases. But after the Supreme Court’s holding in FTC v. Actavis, brand name pharmaceutical companies may need to be more cautious when settling Hatch-Waxman litigation with potential patent infringers. Both brand-name drug manufacturers and generic drug manufacturers have incentives to settle cases by having the brand-name pay the generic in exchange for delaying their entry into the market. While courts usually found that these reverse-payment settlements did not violate antitrust laws, the Supreme Court recently held that they sometimes can, even if the settlement’s anticompetitive effects fall within the scope of the exclusionary potential of the patent. The Court tried to take the middle ground after rejecting several bright line rules promulgated by appellate courts, including the Third Circuit’s “quick look” presumption against reverse payment settlements and the Second, Eleventh, and Federal Circuit’s “scope of the patent” test. This note finds that the Supreme Court’s ruling will make the Hatch-Waxman legal landscape murky and, therefore, difficult

Continue

Periodic Reporting in a Continuous World: The Correlating Evolution of Technology and Financial Reporting

Technology and Financial Reporting

By: Daniel C. Rowe The evolution of technology has drastically altered what it means to be a reporting company in the eyes of the Securities and Exchange Commission. Technological development has also played a large role in the shifting trend from periodic reporting to continuous reporting, as is particularly apparent in the evolution of the Form 8-K. It is true that the increasingly technological world of continuous reporting does not come without disadvantages. This issue brief, however, argues that despite the increased risks and challenges of continuous reporting, its net effect on disclosure, and the investing community generally, is positive. With that benefit in mind, this paper further suggests four new amendments to the Form 8-K. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 248

Continue

Understanding the Backlog Problems Associated with Requests for Continued Examination Practice

Patents & Technology

By: Sean Tu One of the greatest problems facing the current patent administration is a long patent pendency period. This study focuses on Request for Continued Examination (RCE) practice, and its effects on the current patent application backlog problem. RCEs are used to continue prosecution after a patent examiner has issued a final rejection. However, now that RCEs are placed on an examiner’s special docket, some examiners may pick up prosecution one to two years after the last action. Accordingly, there are great inefficiencies that may be created by this delay, such as relearning issues and questions from the previous action, diminished value of examiner interviews, and a higher likelihood of transfer to a new examiner. This study suggests that the RCE problem may be much worse for some art units compared to others. Specifically, the RCE problem is unevenly distributed between certain art units with technology center 1600 (biotechnology and organic chemistry) suffering the most from unexamined RCEs, while technology center 2800 (semiconductors, electrical and optical systems and components) remain unaffected. This RCE backlog can result in a delay of approximately three years for some art units. Possible solutions to the RCE problem include creating a two-track examiner specialization

Continue