Publications and Announcements

International Upheaval: Patent Independence Protectionists and the Hague Conference

Patents & Technology

By: Kyle Grimshaw International lawmakers presently are negotiating a treaty that would not only allow U.S. courts to grant summary judgment in patent infringement suits if a court in Canada or Europe previously found patent infringement, but would actually require it. This paper examines whether courts in the United States should be allowed to find patent infringement based solely upon the fact that foreign courts had previously found patent infringement. The author concludes that changing the law to allow this practice is not sound policy. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0020

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The Complexities of On-Line Mutual Fund Advertising: A Summary of the Relevant Regulations

eCommerce

By: Corey Ciocchetti As the investment marketplace advances with current technology, paper-based advertising has quickly been supplemented by on-line advertising. Interestingly, both the Securities Exchange Commission and the National Association of Securities Dealers are treating this new medium similarly to the old-fashioned paper-based medium. This iBrief discusses and summarizes the current regulations surrounding one emerging form of on-line advertising – that of mutual funds. This discussion is intended to form a solid foundation from which an interested party may delve further into this emerging area of e-commerce. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0019

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The First Sale Doctrine and Digital Phonorecords

Copyrights & Trademarks

By: Bob Hyde This iBrief follows various phonorecord formats to illustrate the specifics of the First Sale doctrine as it applies to digital phonorecords. The author argues that the disposal of a digital phonorecord by means of distribution infringes an author’s exclusive right to reproduce the underlying musical work and this distribution is not subject to First Sale protection. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0018

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The Future of Database Protection in U.S. Copyright Law

Copyrights & Trademarks

By: Jennifer Askanazi, Glen Caplan, Dianne Descoteaux, Kelly Donohue, Darin Glasser & Emelio Mena In the recent British Horseracing Board case, the English High Court signaled a return to the “sweat of the brow” standard of copyright protection. Although recent attempts have been made in the United States to protect databases under this standard, this iBrief argues that the information economy is wise to continuing protecting this data through trade secret, State misappropriation and contract law until legislation is passed. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0017

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Software Disclosure and Liability Under the Securities Acts

eCommerce

By: Carl C. Carl Can a software company be liable under the securities laws when it sells securities without disclosing that it will not give free updates on current software as new technology makes them obsolete? What exactly must be disclosed and how does one say it without subjecting the company’s business practices to close scrutiny? The Eleventh Circuit recently applied the time-honored standard of meaningful cautionary language to software companies in finding that the disclosures of a software company were enough to avoid liability under the securities laws when the company provided meaningful cautionary language in their prospectus. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0016

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Where the Wild Wind Blows: Genetically Altered Seed and Neighboring Farmers

Health & Biotechnology

By: Jill Sudduth In March 2001, agro-business giant Monsanto won a victory in Canadian Federal Court over Saskatchewan farmer Percy Schmeiser. This case sets international precedent for appropriated seed cases and illustrates the primary concerns American courts must face as they consider Monsanto’s prosecution of 22 cases against American farmers. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0015

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Patent Amendments and Prosecution History Estoppel Under Festo

Patents & Technology

By: Stephen Dirksen, Kyle Grimshaw, Michael Hostetler, Michael Kim & Steven Mesnick On November 29, 2000, the Federal Circuit retroactively reduced the value of nearly 1.2 million unexpired United States patents by announcing a new rule for the somewhat obscure doctrine of prosecution history estoppel. Designed to foster clarity in patent applications, this new pronouncement in Festo Corp v. Shoketsu Kinzoku Kogyo Kabushiki Co. allows for easy copying of some patented inventions and reduces patent owner’s ability to prove infringement. This article outlines the change in the law and discusses the positive and negative consequences of the decision. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0011

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Digital Television: Has the Revolution Stalled?

Media & Communications

By: Aaron Futch, Yemi Giwa, Kisa Mlela, Amy Richardson & Yelena Simonyuk When digital television technology first hit the scene it garnered great excitement, with its promise of movie theater picture and sound on a fraction of the bandwidth of analog. A plan was implemented to transition from the current analog broadcasting system to a digital system effective December 23, 2006. As we reach the half point of this plan, the furor begins to die as the realities of the difficult change sink in. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0014

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FTC vs. Toysmart

eCommerce

By: Daniel Bronski, Conway Chen, Matthew Rosenthal & Robert Pluscec Last summer, Toysmart agreed to a settlement with the Federal Trade Commission concerning use of its customer information database. Under the terms of the settlement, the defunct Internet toy retailer was permitted to sell customer information without either providing its former customers notice or giving them an opportunity to block the sale or use of their personal information. This issue ignited a privacy-rights maelstrom, but ended anti-climatically for Toysmart; in January, Buena Vista Internet Group, a Disney subsidiary and 60% majority shareholder of Toysmart, agreed to compensate the company’s creditors $50,000 for the privilege of destroying the database. U.S. Bankruptcy Court Judge Carol Kenner approved this plan, subject to the limitation that Toysmart attorneys must retain the list and destroy it (rather than physically transfer it to Buena Vista) when all creditor claims are satisfied. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0010

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The Fate of Napster: Digital Downloading Faces an Uphill Battle

Copyrights & Trademarks

By: Jennifer Askanazi, Glen Caplan, Dianne Descoteaux, Kelly Donohue & Darin Glasser First Diamond Multimedia, then MP3.com, now Napster. The recording industry, in a flurry to protect its copyrighted material, has waged an all-out battle against the dot-coms for the future of copyrighted music on the Internet. Since A&M Records, along with several other labels which comprise the Recording Industry Association of America (RIAA), filed suit against Napster, emotions have run high in the online community. Some have heralded this technology as a much-needed alternative to the strangling grasp of the major record labels; others view it as blatant theft of property. Students, musicians, computer programmers, trade organizations, and even the US government have voiced their opinions – all perhaps sensing that the outcome of the Napster litigation will have far-reaching consequences. Not only does the current battle over the fate of peer-to-peer technology promise to reshape the face of copyright law, it will also mark the future of the music industry, emerging technologies, and business models for years to come.The following iBrief describes the emergence of Napster’s peer-to-peer technology, the legal proceedings to date, and Napster’s defensive strategy, as well as the potential technological and cultural ramifications of the

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