Publications and Announcements

Can You Yahoo!? The Internet’s Digital Fences

CyberCrime

By: Brendon Fowler, Cara Franklin & Bob Hyde The Yahoo! auction case illustrates the problems inherent in the lack of a common Internet jurisdictional structure. This iBrief argues that the application of local law allowed France to win a victory against domestic hate groups, but dealt a blow to free speech everywhere. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0012

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An Interview With Michael Froomkin

Media & Communications

By: Kathleen E. Fuller A. Michael Froomkin is an Administrative Law and Internet Law scholar from the University of Miami School of Law and a vigorous critic of the Internet Corporation for Assigned Names and Numbers (ICANN). He is the author of a controversial new law review article, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (Oct. 2000), available at http://www.law.duke.edu/journals/dlj/. In his new article, Professor Froomkin argues that ICANN’s relationship with the Department of Commerce is illegal. We interviewed Professor Froomkin via e-mail about his new article and about other recent ICANN-related events, such as ICANN’s plan to assign new generic top-level domains (gTLDs) Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0001

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Who’s Afraid of amazon.com v. barnesandnoble.com?

Patents & Technology

By: Stephen Dirksen, Kyle Grimshaw, Michael Hostetler, Ian Jinkerson & Michael Kim On October 2, 2000, the Court of Appeals for the Federal Circuit heard the appeal in the case of Amazon.com, Inc. v. Barnesandnoble.com, Inc. This appeal revolves around the alleged infringement by Barnesandnoble.com of a one-click web-shopping system patented by Amazon.com. The one-click system is among a series of recent controversial “business method” patents. According to some, business methods are legitimate inventions that deserve the protection of the US Patent and Trademark Office (PTO). According to others, business methods are unworthy of patent protection and may inhibit innovation in e-commerce. The outcome of this case has been widely anticipated by both sides of the business method patent debate as a signal that these patents will or will not be upheld by courts. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0003

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Deutsche Telekom and Voicestream Merger: Charting a New Regulatory Course

Patents & Technology

By: Aaron Futch, Yemi Giwa, Andrew Grimmig, Kisa Mlela & Amy Richardson On July 24, 2000, the German telecommunications giant Deutsche Telekom AG (Deutche Telekom) agreed to purchase the Bellvue, Washington based VoiceStream Wireless Corporation (VoiceStream) for over $50 billion. Although the merger may ultimately fall through, the response generated by the proposed merger indicates the future for deals between US and foreign-owned telecommunications companies. With the increasing globalization of the world’s telecommunications markets, the Deutche Telekom deal represents the first time that a company dominated by a foreign government has attempted to purchase an American corporation. The signatories of the Basic Telecommunications Agreement, an agreement among World Trade Organization (WTO) members to open their telecom markets to foreign competition, are closely watching the US response. The stance that the US government takes in reviewing this merger can be seen as a sign of things to come as the world’s single largest telecommunications market opens up to the world. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0004

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Are Online Business Transactions Executed by Electronic Signatures Legally Binding?

eCommerce

By: Carl Carl, Corey Ciocchetti, Wes Barton & Nathan Christensen Most of us believe that we make contracts over the Internet all the time. We buy books and computers, arrange for hotels and planes, trade stocks, and apply for mortgages. But as recently as seven months ago that transaction was most likely not legally binding. This uncertainty led many practitioners, businesspeople, and consumers to question the efficacy of contracts executed by electronic signatures. Without a uniform standard, many jurisdictions ruled inconsistently, while other jurisdictions did not consider the issue. This disparate treatment threatened the legitimacy of online agreements and deprived both consumers and businesses of the certainty and predictability expected from well-developed markets. The law’s formalities evolved outside of the digital world, and the process of adapting them to it has proven to be more difficult than expected. In June of 2000, Congress attempted to solve this problem with the Electronic Signatures in Global and National Commerce Act (E-Sign). Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0005

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Internet Securities Fraud: Old Trick, New Medium

CyberCrime

By: Brendon Fowler, Cara Franklin & Robert Hyde Billions of securities are traded every day in public and private markets around the world. This practice is hundreds of years old and as long as securities have been traded, someone has tried to defraud the system to make a quick buck. With the advent of the Internet, new securities fraud schemes have appeared. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0006

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Offshore Offerings by Foreign Entities: How Far Will the SEC Reach to Regulate?

International

By: Melvina Carrick, Matthew Crane & Jennifer Hu Many countries’ regulatory regimes, including that of the United States, traditionally require registration of all investment services offers or securities sales to their citizens. Many have claimed that the Internet will make such financial regulation obsolete. With the advent of the new technology, regulatory bodies across the globe have been forced to redefine what constitutes an offer to purchase securities within their borders. They have come up with a variety of models for regulating cross-border capital flows. Even countries with similar legal traditions such as Britain, the US, and Australia have taken different approaches. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0007

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The Fate of Gene Patents Under the New Utility Guidelines

Health & Biotechnology

By: The United States Patent and Trademark Office (PTO) recently finalized its patent utility guidelines. Promulgated by the PTO, the new guidelines will be used by patent examiners in determining whether a claimed invention should be awarded patent protection ;and will be used by patent applicants and attorneys who file patent applications. The guidelines focus primarily on the utility standards for gene and gene fragment patents, an issue that was featured in the PTO’s 1999 Revised Interim Utility Guidelines and has been the subject of considerable public debate. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0008

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Cybersquatting: The Latest Challenge in Federal Trademark Protection

Copyrights & Trademarks

By: Justin Graham, Ashley Johnson, Emilio Mena & Neil Wolitzer The explosion in Internet technology in the past decade has drawn the Lanham Act into the realm of electronic commerce. Trademark owners seeking to register domain names have recently found themselves entwined in a number of disputes, such as disputes involving claims to multiple domain names and disputes over whether the domain name registration system is fairly administered. One important legal issue that has recently come to the fore is over the practice of cybersquatting. Today, courts must contend with the cybersquatter, a speculator who reserves trademarks as Internet domain names for the sole purpose of selling or licensing them back to trademark owners willing to pay a considerable price for their use. Complicating matters, the most potent weapons in the Government’s anticybersquatting arsenal–the Anticybersquatting Consumer Protection Act (ACPA) and Federal Trademark Dilution Act (FTDA)–each give rise to grave constitutional concerns. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0009

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ICANN: The Debate Over Governing the Internet

Media & Communications

By: Kathleen E. Fuller Since its creation, the Internet Corporation for Assigned Names and Numbers (ICANN) has been the subject of criticism and controversy. ICANN is a private non-profit corporation that operates under contract with the US Department of Commerce. It was created at the request of the government for the purpose of privatizing the Domain Name System (DNS), the addressing system on which the Internet depends. The creation of ICANN in 1998–what some have called cyberspace’s own “constitutional moment” — represented a substantial shift in power to control the Internet from government to private industry. Today, ICANN is facing a virtual revolt. Domain name registrars outside the US are protesting bills sent by ICANN (which help finance approximately 1/3 of ICANN’s $5 million budget), claiming they want either better representation or the ability to break away from ICANN and set up their own networks.Domestic registrars who recently applied for new top-level domain names (and who submitted non-refundable $50,000 application fees) have threatened legal action, claiming that ICANN’s process for approving new domains is unfair. And recently, Professor Michael Froomkin of the University of Miami School of Law published a seminal law review article questioning the very legality of ICANN’s

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