Publications and Announcements

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue

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

Continue