Publications and Announcements

Buggy Whips and Broadcast Flags: The Need for a New Politics of Expression

Media & Communications

By: Garrett Levin In response to growing fears from the entertainment industry over online file-sharing of valuable content, the Federal Communications Commission (“FCC”) enacted sweeping regulations over the production of electronic devices in the name of protecting digital television broadcasts. Although the FCC’s “broadcast flag” regulation was struck down on jurisdictional grounds, Hollywood has not given up the push for strict control. If Hollywood successfully acquires broadcast flag protection there could be far-reaching implications for innovation and development of new digital technologies. While content providers have important reasons to protect copyrighted material, there is too much at stake to merely acquiesce to their demands in the name of piracy prevention. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0024

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When the Public Does Not Have a Right to Know: How the California Public Records Act Is Deterring Bioscience Research and Development

Health & Biotechnology

By: Nader Mousavi & Matthew J. Kleiman Many bioscience firms collaborate with public research universities to conduct innovative research through sponsored research agreements. Companies sponsoring this research usually require strict confidentiality from their academic partners in order to protect sensitive information that, if revealed, could put them at a competitive disadvantage and threaten their ability to obtain future patents. Yet, ambiguous disclosure requirements in the California Public Records Act preclude California’s public research universities from guaranteeing that proprietary information provided in connection with sponsored research agreements will remain confidential. Entering into such agreements with public universities in California is therefore a risky proposition for the sponsors. This iBrief argues that unless this is corrected, many of these public/private partnerships, which often lead to significant advances in science and medicine, may be deterred. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0023

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Unfinished Business: Are Today’s P2P Networks Liable for Copyright Infringement?

Copyrights & Trademarks

By: Christine Pope In June 2005, the U.S. Supreme Court issued the decision in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., a case that asked whether peer-to-peer networks may be held liable for facilitating the illegal distribution of music over the internet. The music industry petitioned the Supreme Court to settle the disagreement between the circuit courts over the standard of liability for aiding in copyright infringement. The case was based on a clash between the protection of technological innovation and the protection of artistic works. This iBrief examines the circuit split and the Grokster opinion and discusses the questions of liability left unresolved by the Supreme Court. It argues that further clarification of the Sony rule is still needed in order to encourage the proliferation of legitimate peer-to-peer networks by protecting their services while discouraging illegitimate file-sharing activities. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0022

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Keyword-Linked Advertising, Trademark Infringement, and Google’s Contributory Liability

Copyrights & Trademarks

By: Benjamin Aitken A number of trademark holders have recently challenged the policies of Google and other Internet search engines that allow the trademark owner’s competitors to purchase advertising space linked specifically to the owner’s trademarks when entered as search terms. This iBrief examines the application of trademark law to this practice and concludes that Google would be contributorially liable for trademark infringement only when the advertising links lead to consumer confusion about the identity of the advertiser. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0021

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When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID

eCommerce

By: John M. Eden RFID is a powerful new technology that has the potential to allow commercial retailers to undermine individual control over private information. Despite the potential of RFID to undermine personal control over such information, the federal government has not enacted a set of practicable standards to ensure that personal data does not become widely misused by commercial entities. Although some potential privacy abuses could be addressed by modifying RFID technology, this iBrief argues that it would be wise to amend the Privacy Act of 1974 so that corporations would have a statutory obligation to preserve individual anonymity and respect the privacy preferences of consumers. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0020

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Better to Give Than to Receive: Evaluating Recent IP Donation Tax Policy Changes

Patents & Technology

By: Don Macbean Over the past decade, charitable contributions of intellectual property have grown rapidly. This growth has coincided with tremendous abuse as firms have sought inflated valuations of donated intellectual property in order to claim larger tax deductions. In 2004, Congress responded by passing section 882 of the American Jobs Creation Act, which drastically changed the rules governing donations of intellectual property. This iBrief argues that Congress, in addressing overvalued intellectual property donations, went too far in its efforts by failing to fully consider the importance of positive donor incentives. After discussing other proposed policies, this iBrief suggests a hybrid policy that combines strong donor incentives with protective measures against overvaluation. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0019

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

International

By: Zia K. Cromer In December of 2003, the Chinese government announced that all WLAN equipment sold in China must conform to a propriety standard called WAPI, rather than the internationally accepted Wi-Fi standard. Moreover, for foreign firms to gain access to WAPI technology, they would need to partner with one of two-dozen Chinese firms designated by the Chinese government. The policy ostensibly grew out of security concerns regarding Wi-Fi, although it is unclear whether WAPI is more secure. Beijing has now indefinitely postponed the implementation of this policy, but WAPI is still relevant. This iBrief argues that WAPI is illustrative of many Chinese technical barriers to trade in the high-tech sector, and evaluates this policy’s consistency with China’s WTO obligations. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0018

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

Patents & Technology

By: Daniel P. Homiller In the Internet age, complex telecommunications systems are often deployed with little regard for international borders. In NTP, Inc. v. Research in Motion, Ltd., the Federal Circuit determined that one such system infringed several U.S. patents, despite the fact that an essential element of the system was located outside the territorial United States. This iBrief argues that the Federal Circuit erred in invoking the “control and beneficial use” test, which it culled from the very few prior cases addressing extraterritorial application of U.S. patent law. In doing so, the court disregarded the Supreme Court’s direction in Deepsouth Packing Co. v. Laitram Corp. that the United States’ patent laws make no claim to extraterritorial effect. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0017

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

CyberCrime

By: John W. Lomas Jr. New Jersey recently enacted legislation prohibiting the use of the Internet to lure or entice someone to a location with the purpose of committing a crime with or against that person or some other person. Most states have similar laws pertaining to pedophiles, but this is the first adult Internet luring statute. State measures to regulate the Internet, even in the context of criminal justice, will likely face constitutional challenge since the Internet has become such a critical vehicle for both protected speech and interstate commerce. Furthermore, while the use of the Internet in the commission of crimes against other persons is a new phenomenon, it is unclear whether new laws are the best solution, or whether other responses such as equipping police and investigators with more resources and training to properly enforce existing law would be more effective. This iBrief analyzes the issues New Jersey will face with its statute and the issues other states should be aware of when considering similar legislation. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0016

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The SPS Agreement: Can It Regulate Trade in Nanotechnology?

International

By: James D. Thayer Recent studies have shown that nanoparticles, which are approximately 1 to 100 billionths of a meter in size, present unique health and environmental risks. Nevertheless, products enhanced by nanoparticles, such as sunscreen, golf balls, and hard drives, are shipped daily in international trade. With these unique risks in mind, would measures regulating the trade in nanotechnology be subject to the WTO Agreement on Sanitary and Phytosanitary Measures? If they were, would the Agreement objectively balance the unique risks and benefits of trading in nanotechnology? Whether measures regulating the trade in nanotechnology are subject to the SPS Agreement depends on the purpose of such measures. This iBrief argues that because of recent scientific evidence, many such measures are likely to be subject to the SPS Agreement. In addition, since sanitary and phytosanitary measures must be based on scientific evidence, if Members apply the Agreement appropriately, the Agreement would objectively balance the benefits and risks of trading in nanotechnology. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0015

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