Publications and Announcements

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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Regulating Indecency: The Federal Communication Commission’s Threat to the First Amendment

Media & Communications

By: Reed Hundt This paper is adapted from a talk given by the author at Duke University School of Law on April 6, 2005. The author argues that the Federal Communication Commission’s recent crackdown on television indecency poses a significant threat to First Amendment protections by (1) limiting television viewers’ freedom of choice and (2) implying the possibility of punishment for failure to cooperate with the political objectives of the governing party. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0013

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The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?

International

By: Robert Bray This paper has been adapted from a presentation given by the author at Duke University School of Law’s “Hot Topics in Intellectual Property Law Symposium” on April 1, 2005. It first presents an overview of the EU “Software Patents” Directive and many of the amendments that have been proposed and adopted. It then suggests a number of ways in which Europe can lead the world in developing a system that balances the interests of patent protection and open-source software. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0011

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A New Paradigm for Intellectual Property Rights in Software

Patents & Technology

By: Mark H. Webbink A Winter 2004 article by Bradford L. Smith and Susan O. Mann of Microsoft published in The University of Chicago Law Review suggests that the development and growth of the software industry in the U.S. is a direct outgrowth of the implementation of intellectual property regimes, specifically copyright and patent, with respect to software in the late 1970s and early 1980s. This paper suggests that such patents were neither the sole nor the principal factor for the development of the software industry, that concerns about patents manifested prior to or soon after their application to software have proven true, and that patents are, in fact, not serving the interests of either the U.S. software industry or the consuming public. To that end, this paper advances recommendations for reforming the U.S. patent system as well as consideration of a new schema for protecting software. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0012

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Google Library: Beyond Fair Use?

Copyrights & Trademarks

By: Elisabeth Hanratty Last December Google announced the formation of partnerships with select major libraries to begin digitizing and storing the libraries’ collections online. Google aims to provide individuals with the ability to search the full text of these books from anywhere using the Google search engine. This project will greatly increase access to those works in the public domain, but what about the books still under copyright protection? This iBrief examines the copyright implications of this ambitious project and concludes that the project, as described, does infringe the rights of copyright holders. It further concludes that while such infringement is unlikely to be found to be a fair use, it may ultimately be in the copyright holders’ best interests to acquiesce to Google’s infringement. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0010

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Troll or No Troll? Policing Patent Usage With an Open Post-Grant Review

Patents & Technology

By: David G. Barker In December 2004, a mystery business, JGR Acquisitions Inc., purchased the patent portfolio of bankrupt Commerce One at auction. Commerce One had not previously enforced the acquired patents and many companies were using the patented technologies at the time of the auction. Patent watchdog groups argued that JGR–a potential patent troll formed solely to purchase Commerce One’s patents–should not be able to use the patents as a vehicle to extract licensing fees and that the patents should lapse into the public domain. Under current law, however, there is no provision for patents to be invalidated merely because they are used in a manner that discourages innovation. This iBrief argues that in order to keep patent trolls from stifling innovation and to protect legitimate patent holders, the Patent and Trademark Office should require an open post-grant review whenever patents are renewed or sold. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0009

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Television: Peer-To-Peer’s Next Challenger

Copyrights & Trademarks

By: D. Branch Furtado The entertainment industry has obsessed over the threat of peer-to-peer file sharing since the introduction of Napster in 1999. The sharing of television content may present a compelling case for fair use under the long-standing “Betamax” decision. Some argue that television sharing is fundamentally different than the distribution of music or movies since television is often distributed for free over public airwaves. However, a determination of fair use is unlikely because of the fundamental differences between recording a program and downloading it, recent regulation to suppress unauthorized content distribution and shifts in the television market brought on by new technology. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0007

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The Dormant Commerce Clause and State Regulation of the Internet: Are Laws Protecting Minors From Sexual Predators Constitutionally Different Than Those Protecting Minors From Sexually Explicit Materials?

CyberCrime

By: Chin Pann Several states have enacted statutes to protect minors from harmful or obscene materials disseminated over the Internet, as well as from pedophiles seeking to use the Internet to lure them into sexual conduct. State and federal courts have diverged in their analysis of the Dormant Commerce Clause’s impact on state regulation in these areas. While state courts have held that the Dormant Commerce Clause does not invalidate state luring statutes, federal courts have been consistent in finding state dissemination statutes unconstitutional. This iBrief summarizes recent state and federal jurisprudence in this area and concludes that state courts have not been successful in distinguishing state luring statutes from federal case law on state dissemination statutes. Therefore, state courts have prematurely aborted the Dormant Commerce Clause examination. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0008

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Plugging the “Phishing” Hole: Legislation Versus Technology

CyberCrime

By: Robert Louis B. Stevenson This iBrief analyzes the Anti-Phishing Act of 2005, legislation aimed at curbing the problem of “phishing.” Phishing is the sending of fraudulent emails which appear to be from legitimate businesses and thereby fooling the recipients into divulging personal information such as credit card numbers. While this legislation may provide some assistance in the fight against phishing, it is limited by the global nature of the Internet and the ease with which phishers can hide and avoid judgments. This iBrief therefore concludes that although the Anti-Phishing Act can play a supporting role in the battle, technological solutions are the most effective means of reducing or eliminating phishing attacks. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0006

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Willful Infringement and the Evidentiary Value of Opinion Letters After Knorr–Bremse v. Dana

Patents & Technology

By: Joshua Stowell Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the plaintiff may inform the fact-finder that the alleged infringer failed to consult legal counsel, and (2) willful infringement findings can probably be avoided even absent an opinion from counsel, as long as the alleged infringer makes a showing of good faith intent to avoid infringement. Download Full Article (PDF) Cite: 2005 Duke L. & Tech. Rev. 0005

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