Publications and Announcements

Mining the Common Heritage of Our DNA: Lessons Learned From Grotius and Pardo

International

By: Jasper A. Bovenberg The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius’s Mare Liberum to determine whether international law precedent indeed bars the private appropriation of a common heritage. Second, the iBrief will revisit the framework developed by Pardo for the exploitation of the mineral resources of the ocean floor and analyze whether it could serve as a model for an international framework for sharing the benefits of current genome research. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0008

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Patent Misuse in Patent Pool Licensing: From National Harrow to “The Nine No-Nos” to Not Likely

Patents & Technology

By: Daniel P. Homiller Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit’s decision raises the question of just how much remains of the doctrine of patent misuse. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0007

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When Discrimination Is Good: Encouraging Broadband Internet Investment Without Content Neutrality

Media & Communications

By: Christopher E. Fulmer Cable television and traditional telephone companies are increasingly offering the same set of services: telephone, television, and broadband Internet access. Competition between these two types of companies would ordinarily require them to improve these services, but unless broadband providers have the ability to discriminate on the basis of content and charge Internet video providers that compete with their own video services, the growth of the Internet will be stunted, as broadband providers will not improve the capacity of their networks. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0006

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Internet Sales Taxes From Borders to Amazon: How Long Before All of Your Purchases Are Taxed?

eCommerce

By: Walter J. Baudier What so many internet consumers believe to be tax-free is actually subject to a state use tax. Faced with pressure from states that realize very little of the use tax owed, many online retailers, such as Wal-mart, “voluntarily” collect sales taxes from their customers. But a recent California Appeals Court decision, Borders Online v. State Board of Equalization, could mark a shift towards more prevalent, if not universal, taxation of internet retail. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0005

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Barriers to Innovation: Intellectual Property Transaction Costs in Scientific Collaboration

Patents & Technology

By: Megan Ristau Baca The institution of university science research has evolved over the past century, from one of open science and free information to one of competition and jealously guarded intellectual property rights. This iBrief analyzes the background factors driving the evolution of the institution of science, evaluates the net effects on the progress of science, and considers potential short-term solutions to alleviate the legal transaction costs necessary for scientific collaboration. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0004

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Fighting Terrorism in an Electronic Age: Does the Patriot Act Unduly Compromise Our Civil Liberties?

Media & Communications

By: Christopher P. Raab The USA PATRIOT Act is tremendously controversial, both lauded by law enforcement and decried by civil liberties groups. This iBrief considers two of the Act’s communications monitoring provisions, concluding that each compromises civil liberties to a greater degree than is necessary to combat terrorism. Accordingly, Congress should revise the USA PATRIOT Act, bringing it into line with the Constitution. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0003

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Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of a Blogger’s Identity Before Service of Process Is Effected

eCommerce

By: Konrad Lee The rapid rise in anonymous anti-employer internet blogs by disgruntled employees has created a tension between the liberty interests of employees in free speech and privacy and employers’ rights to be free from defamation, disparagement and disclosure of confidential information by an employee. This iBrief argues that the anonymity of anti-employer bloggers should not shield employees from breach of the duty of loyalty claims under tort and contract law, and that Congress should enact rules to govern the disclosure of blogger identity. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0002

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Completing the Connection: Achieving Universal Service Through Municipal Wi-Fi

Media & Communications

By: K. Joon Oh The federal universal service scheme is designed to ensure that everyone has affordable access to advanced telecommunications and information services. Despite the development of cost-effective technologies that drastically reduce the cost of telephone services vis-à-vis the Internet and Wi-Fi networks, federal regulations generally prevent municipalities or private companies from providing wireless Internet access with universal service funds. Federal regulations have replaced technology costs, lack of business incentives, and consumer affordability as the primary barrier to universal service. Competitive neutrality, the pro-competitive and technology-neutral approach to universal service funding, must be fully embraced in order to empower local communities with the choice of technologies that best suits their residents in providing universal and affordable access to advanced telecommunications and information services. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0001

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Attack of the Clones: Legislative Approaches to Human Cloning in the United States

Health & Biotechnology

By: Adrienne N. Cash The legal concerns involving the application of cloning technology to humans should be of utmost concern, as the area is extremely complex. Cloning could potentially have great benefits or disastrous effects. Lawmakers have been careful to make certain that the legislation passed is comprehensive and useful for regulation of the ever-changing field of cloning. From debates on whether reproductive or therapeutic cloning should be permitted or banned, to concerns as to who has jurisdiction over cloning, the battle to develop cloning legislation has been difficult. However, this iBrief argues that the currently-proposed federal legislation is constitutional. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0026

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Coddling Spies: Why the Law Doesn’t Adequately Address Computer Spyware

eCommerce

By: Alan F. Blakley, Daniel B. Garrie & Matthew J. Armstrong Consumers and businesses have attempted to use the common law of torts as well as federal statutes like the Computer Fraud and Abuse Act, the Stored Wire and Electronic Communications and Transactional Records Act, and the Wiretap Act to address the expanding problem of spyware. Spyware, which consists of software applications inserted into another’s computer to report a user’s activity to an outsider, is as innocuous as tracking purchases or as sinister as stealing trade secrets or an individual’s identity. Existing law does not address spyware adequately because authorization language, buried in “click-through” boilerplate, renders much of current law useless. Congress must act to make spyware companies disclose their intentions with conspicuous and clearly-stated warnings. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0025

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