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Articles 1 - 15 of 15
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Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan, Brendan Murphy, Raj Davé
Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan, Brendan Murphy, Raj Davé
Duke Law & Technology Review
This paper focuses on two types of licenses that can best be described as outliers—FRAND and compulsory licenses. Overall, these two specific forms of licenses share the objective of producing a fair and reasonable license of a technology protected by intellectual property. The comparable objective notwithstanding, each type of license achieves this end using different mechanisms. The FRAND license emphasizes providing the licensee with reasonable terms, e.g., by preventing a standard patent holder from extracting unreasonably high royalty rates. By contrast, compulsory licenses emphasize the public benefit that flows from enabling access to an otherwise inaccessible invention. Ultimately, both forms …
Authenticity And Admissibility Of Social Media Website Printouts, Wendy Angus-Anderson
Authenticity And Admissibility Of Social Media Website Printouts, Wendy Angus-Anderson
Duke Law & Technology Review
Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets …
Noriega V. Activision/Blizzard: The First Amendment Right To Use A Historical Figure's Likeness In Video Games, Joshua Sinclair
Noriega V. Activision/Blizzard: The First Amendment Right To Use A Historical Figure's Likeness In Video Games, Joshua Sinclair
Duke Law & Technology Review
Panama’s former dictator, Manuel Noriega, recently sued Activision Blizzard in the California Superior Court for using his likeness and image in the popular video game “Call of Duty: Black Ops II.” In his complaint, Noriega alleged that the use of his likeness violated his right of publicity. Former New York Mayor, Rudy Giuliani, came to Activision’s defense, and filed a motion to dismiss, which was granted. In granting Activision’s motion, the court held that Activision’s use of Noriega’s likeness was transformative and did not violate his right of publicity. This Issue Brief argues that the California Superior Court should not …
The Evolution Of Giving: Considerations For Regulation Of Cryptocurrency Donation Deductions, Ashley Pittman
The Evolution Of Giving: Considerations For Regulation Of Cryptocurrency Donation Deductions, Ashley Pittman
Duke Law & Technology Review
This Issue Brief looks at the rapidly growing area of cryptocurrency donations to nonprofit organizations. Given the recent IRS guidance issued on taxation of Bitcoin, specifically its decision to treat cryptocurrencies as property, questions now arise as to how charitable contributions of the coins will be valued for tax deductions. Though Bitcoin resembles most other capital gain property, its volatility, general decline in value, anonymity, and potential for abuse require specific guidance on valuation and substantiation so as to handle its unique nature and prevent larger deductions for charitable contributions than those to which taxpayers are entitled.
The Ftc Has A Dog In The Patent Monopoly Fight: Will Antitrust’S Bite Kill Generic Challenges?, Jennifer D. Cieluch
The Ftc Has A Dog In The Patent Monopoly Fight: Will Antitrust’S Bite Kill Generic Challenges?, Jennifer D. Cieluch
Duke Law & Technology Review
Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being that patents’ grant of exclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been found in the patent cases. But after the Supreme Court’s holding in FTC v. Actavis, brand name pharmaceutical companies may need to be more cautious when settling Hatch-Waxman litigation with potential patent infringers. Both brand-name drug manufacturers and generic drug manufacturers have incentives to settle cases by having the brand-name pay the generic in exchange for delaying their entry into the market. While courts …
Periodic Reporting In A Continuous World: The Correlating Evolution Of Technology And Financial Reporting, Daniel C. Rowe
Periodic Reporting In A Continuous World: The Correlating Evolution Of Technology And Financial Reporting, Daniel C. Rowe
Duke Law & Technology Review
The evolution of technology has drastically altered what it means to be a reporting company in the eyes of the Securities and Exchange Commission. Technological development has also played a large role in the shifting trend from periodic reporting to continuous reporting, as is particularly apparent in the evolution of the Form 8-K. It is true that the increasingly technological world of continuous reporting does not come without disadvantages. This issue brief, however, argues that despite the increased risks and challenges of continuous reporting, its net effect on disclosure, and the investing community generally, is positive. With that benefit in …
Understanding The Backlog Problems Associated With Requests For Continued Examination Practice, Sean Tu
Understanding The Backlog Problems Associated With Requests For Continued Examination Practice, Sean Tu
Duke Law & Technology Review
One of the greatest problems facing the current patent administration is a long patent pendency period. This study focuses on Request for Continued Examination (RCE) practice, and its effects on the current patent application backlog problem. RCEs are used to continue prosecution after a patent examiner has issued a final rejection. However, now that RCEs are placed on an examiner’s special docket, some examiners may pick up prosecution one to two years after the last action. Accordingly, there are great inefficiencies that may be created by this delay, such as relearning issues and questions from the previous action, diminished value …
Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards, Arjun Rangarajan
Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards, Arjun Rangarajan
Duke Law & Technology Review
The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity …
The Case For Capsl: Architectural Solutions To Licensing And Distribution In Emerging Music Markets, Cody Duncan
The Case For Capsl: Architectural Solutions To Licensing And Distribution In Emerging Music Markets, Cody Duncan
Duke Law & Technology Review
Compulsory licensing in music has paved the way for a limited class of new noninteractive services. However, innovation and competition are stifled in the field of interactive or otherwise novel services due to high transaction costs inherent in direct licensing. While the creation of a new compulsory license available to a wider array of services may facilitate growth and diversity in new markets, it is unlikely that the legislative process can deliver a new compulsory regime in time to serve relevant interests. Furthermore, the risk exists that legislation written in response to contemporary technology will likely fail to recognize the …
The Constitutionality And Legality Of Internet Voting Post-Shelby County, Logan T. Mohs
The Constitutionality And Legality Of Internet Voting Post-Shelby County, Logan T. Mohs
Duke Law & Technology Review
The technological and electoral landscapes have changed drastically since the turn of the century. While it once might have made sense to view voting online as unconstitutional, as opposed to merely impractical, the expanded range of Internet access for minority communities has made that argument tenuous at best. While there still may exist practical and political reasons to avoid Internet voting, the Constitution no longer stands as an effective wall against the practice. Furthermore, the primary statutory obstacle to the implementation of Internet voting on a local level, the Voting Rights Act, has been greatly weakened by the recent Supreme …
What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat
What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat
Duke Law & Technology Review
This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is …
Making Paypal Pay: Regulation E And Its Application To Alternative Payment Services, Eric Pacifici
Making Paypal Pay: Regulation E And Its Application To Alternative Payment Services, Eric Pacifici
Duke Law & Technology Review
In light of the growth of data breaches in both occurrence and scale, it is more important than ever for consumers to be aware of the protections afforded to them under the law regarding electronic fund transfers and alternative payment services. Additionally, it is important that agencies like the Consumer Financial Protection Bureau (“CFPB”), charged with the protection of unsuspecting and often defenseless consumers, are carefully monitoring these protections to ensure they keep pace with the technological evolution of the payment services they regulate. Alternative payment services, such as PayPal, are conducting an enormous number of payments and providing an …
The Death Of Fair Use In Cyberspace: Youtube And The Problem With Content Id, Taylor B. Bartholomew
The Death Of Fair Use In Cyberspace: Youtube And The Problem With Content Id, Taylor B. Bartholomew
Duke Law & Technology Review
YouTube has grown exponentially over the past several years. With that growth came unprecedented levels of copyright infringement by uploaders on the site, forcing YouTube’s parent company, Google Inc., to introduce a new technology known as Content ID. This tool allows YouTube to automatically scan and identify potential cases of copyright infringement on an unparalleled scale. However, Content ID is overbroad in its identification of copyright infringement, often singling out legitimate uses of content. Every potential case of copyright infringement identified by Content ID triggers an automatic copyright claim on behalf of the copyright holder on YouTube and subsequently freezes …
Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, Christopher J. Borchert, Fernando M. Pinguelo, David Thaw
Reasonable Expectations Of Privacy Settings: Social Media And The Stored Communications Act, Christopher J. Borchert, Fernando M. Pinguelo, David Thaw
Duke Law & Technology Review
In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different …