Publications and Announcements

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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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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