Food for Thought: Intellectual Property Protection for Recipes and Food Designs

By: Kurt M. Saunders and Valerie Flugge As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and food designs, along with broader issues relating to how these rights may overlap and their implications for competition. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 159

Look What You Made Her Do: How Swift, Streaming, and Social Media Can Increase Artists’ Bargaining Power

By: Emily Tribulski Music and technology have always been intertwined and recently the developments of streaming and social media have opened the door for artists to elevate their place in the music industry. The growth of social media engagement is undeniable and in 2016 streaming platforms led to the music industry’s first earnings increase in fifteen years, with double digit gains each year since—a change to the status quo that cannot be ignored. The technological moment provided by streaming and social media gives lesser-known artists, especially when they are backed by superstars, a unique opportunity to challenge traditionally label friendly record deals. These technologies provide artists with the ability to grow their fanbase and increase their bargaining power before reaching the negotiation table with a label—giving them more leverage to maintain ownership of their music and receive more artist friendly contracts. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 91

The Danger of Facial Recognition in Our Children’s Classroom

By: Nila Bala The use of facial recognition in classrooms to monitor students’ performance is already happening in China and soon may be coming to the West. Surveilling students in their classrooms presents a number of potential harms: (1) it implicates their privacy, (2) it could have profound effects on their development and stigmatizes youth who develop differently, and (3) it might amplify current inequities in our school system. Additionally, there are societal harms from this practice to our democratic society. To the extent that educators wish to employ this technology, our current legal regime is inadequate to mitigate the harms. While some changes could be made to better protect privacy and equity, ultimately, lawmakers and schools should consider banning facial recognition within classrooms. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 249

Esports, Player Positions, and the Benefits of Unionization

By: Roshan Patel This Note examines the current state and implications of unionization within the eSports industry. eSports currently lags behind other industries, particularly other sports leagues like the NBA and NFL, in terms of unionization. Unaware of the benefits that unionization could bring to them, many eSports players lack bargaining power and are subject to abusive contracts and poor working and living conditions. This Note argues that eSports players hold immense power compared to workers in other industries and would greatly benefit from unionization. Although eSports players may face challenges in forming a unionized eSports industry, they are also in a unique position as a part of an industry that differs significantly in structure from traditional sports leagues. This Note will explore the possible benefits of and difficulties with achieving unionization in eSports. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 232

Implementing Ethics Into Artificial Intelligence: A Contribution, from a Legal Perspective, to the Development of an AI Governance Regime

By: Axel Walz and Kay Firth-Butterfield The increasing use of AI and autonomous systems will have revolutionary impacts on society. Despite many benefits, AI and autonomous systems involve considerable risks that need to be managed. Minimizing these risks will emphasize the respective benefits while at the same time protecting the ethical values defined by fundamental rights and basic constitutional principles, thereby preserving a human centric society. This Article advocates for the need to conduct in-depth risk-benefit-assessments with regard to the use of AI and autonomous systems. This Article points out major concerns in relation to AI and autonomous systems such as likely job losses, causation of damages, lack of transparency, increasing loss of humanity in social relationships, loss of privacy and personal autonomy, potential information biases and the error proneness, and susceptibility to manipulation of AI and autonomous systems. Download Full Article (PDF) Cite: 18 Duke L. & Tech. Rev. 176

The Past and Future of The Internet: A Symposium for John Perry Barlow

Special Editor: James Boyle Download Full Symposium (PDF) Articles The Past and Future of the Internet: A Symposium For John Perry Barlow James Boyle Cite: 18 Duke L. & Tech. Rev. 1 A Declaration of the Independence of Cyberspace John Perry Barlow Cite: 18 Duke L. & Tech. Rev. 5 Selling Wine Without Bottles: The Economy of Mind on the Global Net John Perry Barlow Cite: 18 Duke L. & Tech. Rev. 8 Is the Internet Over?! (AGAIN?) James Boyle Cite: 18 Duke L. & Tech. Rev. 32 Barlow’s Legacy Cory Doctorow Cite: 18 Duke L. & Tech. Rev. 61 Inventing the Future: Barlow and Beyond Cindy Cohn Cite: 18 Duke L. & Tech. Rev. 69 A Political Economy of Utopia? Yochai Benkler Cite: 18 Duke L. & Tech. Rev. 78 Internet Utopianism and the Practical Inevitability of Law Julie E. Cohen Cite: 18 Duke L. & Tech. Rev. 85 Revisiting Barlow’s Misplaced Optimism Benjamin Edelman Cite: 18 Duke L. & Tech. Rev. 97 The Enigma of Digitized Property: A Tribute to John Perry Barlow Pamela Samuelson & Kathryn Hashimoto Cite: 18 Duke L. & Tech. Rev. 103 Imaginary Bottles Jessica Litman Cite: 18 Duke L. & Tech. Rev. 127 John

Collection of Cryptocurrency Customer-Information: Tax Enforcement Mechanism or Invasion of Privacy?

By: Austin Elliott After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to avoid the burden of capital gains taxes. Further, this Issue Brief attempts to uncover the validity of the privacy claims made against the customer information summons and will recommend alternative actions for the IRS to take regardless of whether it succeeds in obtaining the information. Download Full Article (PDF) Cite: 16 Duke L. & Tech. Rev. 1

The NLRB’s Purple Communications Decision: Email, Property, and the Changing Patterns of Industrial Life

By: Josh Carroll On December 11th, 2014, in a much-anticipated case, the National Labor Relations Board (“NLRB”) held in a 3-2 decision that employees with access to an employer’s email system had a presumptive right to use that email system during non-working time under Section 7 of the National Labor Relations Act (“NLRA”). In an attempt to adapt to the “changing patterns of industrial life,” the NLRB reversed a seven-year precedent by overturning In re Guard Publ’g Co., 351 N.L.R.B. 1110 (2007), and thereby gave employees the statutory right to use employer email systems for non-business purposes. This issue brief argues that the majority opinion in Purple Commc’ns, Inc., 361 N.L.R.B. No. 126 (2014) erroneously presumed that a ban on employer email systems interfered with employees’ rights to engage in concerted activities under Section 7. In reality, the influx of alternative avenues of communication, such as smartphones, social media, and tablets, have substantially grown for employees over the past several years, thus strengthening employees’ Section 7 rights. The new framework set forth in Purple Communications not only exaggerates the need for employees to exercise their Section 7 rights by using a company’s email system, but also unfairly burdens an employer’s

Informational Inequality: How High Frequency Traders Use Premier Access to Information to Prey on Institutional Investors

By: Jacob Adrian In recent months, Wall Street has been whipped into a frenzy following the March 31st release of Michael Lewis’ book “Flash Boys.” In the book, Lewis characterizes the stock market as being rigged, which has institutional investors and outside observers alike demanding some sort of SEC action. The vast majority of this criticism is aimed at high-frequency traders, who use complex computer algorithms to execute trades several times faster than the blink of an eye. One of the many complaints against high-frequency traders is over parasitic trading practices, such as front-running. Front-running, in the era of high-frequency trading, is best defined as using the knowledge of a large impending trade to take a favorable position in the market before that trade is executed. Put simply, these traders are able to jump in front of a trade before it can be completed. This Note explains how high-frequency traders are able to front-run trades using superior access to information, and examines several proposed SEC responses. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 256

Weathering the Nest: Privacy Implications of Home Monitoring for the Aging American Population

By: Jillisa Bronfman The research in this paper will seek to ascertain the extent of personal data entry and collection required to enjoy at least the minimal promised benefits of distributed intelligence and monitoring in the home. Particular attention will be given to the abilities and sensitivities of the population most likely to need these devices, notably the elderly and disabled. The paper will then evaluate whether existing legal limitations on the collection, maintenance, and use of such data are applicable to devices currently in use in the home environment and whether such regulations effectively protect privacy. Finally, given appropriate policy parameters, the paper will offer proposals to effectuate reasonable and practical privacy-protective solutions for developers and consumers. Download Full Article (PDF) Cite: 14 Duke L. & Tech. Rev. 192