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Articles 1 - 30 of 140
Full-Text Articles in Law
The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu
The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu
Duke Law & Technology Review
Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …
Causation And Conception In American Inventorship, Dan L. Burk
Causation And Conception In American Inventorship, Dan L. Burk
Duke Law & Technology Review
Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding …
Covid Vaccines And Intellectual Property Rights: Evaluating The Potential For National Legislation Implementing Global Patent Waivers, Ashley Dabiere
Covid Vaccines And Intellectual Property Rights: Evaluating The Potential For National Legislation Implementing Global Patent Waivers, Ashley Dabiere
Duke Law & Technology Review
Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections …
Viagra Did Not Work, But Michael Jordan Still Made It: Trademark Policy Toward The Translation Of Foreign Marks In China, Jyh-An Lee, Lili Yang
Viagra Did Not Work, But Michael Jordan Still Made It: Trademark Policy Toward The Translation Of Foreign Marks In China, Jyh-An Lee, Lili Yang
Duke Law & Technology Review
Most multinational enterprises (MNEs) register their original trademarks in Roman letters in China upon entering the Chinese market. However, many fail to develop and register corresponding Chinese marks because they do not understand local culture and consumers, overvalue consumers’ presumed brand loyalty, or neglect the accompanying trademark issues. This failure enables trademark squatters to register and hold the Chinese marks for ransom or local competitors to free ride on foreign marks using their Chinese translations or transliterations. This Article first introduces the complexity of translating a foreign mark into Chinese, which concerns complex linguistic, cultural, and business challenges. Based on …
Homography Of Inventorship: Dabus And Valuing Inventions, Jordana Goodman
Homography Of Inventorship: Dabus And Valuing Inventions, Jordana Goodman
Duke Law & Technology Review
On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for …
Food For Thought: Intellectual Property Protection For Recipes And Food Designs, Kurt M. Saunders, Valerie Flugge
Food For Thought: Intellectual Property Protection For Recipes And Food Designs, Kurt M. Saunders, Valerie Flugge
Duke Law & Technology Review
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 …
Implementing Ethics Into Artificial Intelligence: A Contribution, From A Legal Perspective, To The Development Of An Ai Governance Regime, Axel Walz, Kay Firth-Butterfield
Implementing Ethics Into Artificial Intelligence: A Contribution, From A Legal Perspective, To The Development Of An Ai Governance Regime, Axel Walz, Kay Firth-Butterfield
Duke Law & Technology Review
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 …
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Duke Law & Technology Review
No abstract provided.
Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow
Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow
Duke Law & Technology Review
No abstract provided.
The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto
The Enigma Of Digitized Property A Tribute To John Perry Barlow, Pamela Samuelson, Kathryn Hashimoto
Duke Law & Technology Review
No abstract provided.
Imaginary Bottles, Jessica Litman
The Past And Future Of The Internet: A Symposium For John Perry Barlow
The Past And Future Of The Internet: A Symposium For John Perry Barlow
Duke Law & Technology Review
No abstract provided.
Regulating Data As Property: A New Construct For Moving Forward, Jeffrey Ritter, Anna Mayer
Regulating Data As Property: A New Construct For Moving Forward, Jeffrey Ritter, Anna Mayer
Duke Law & Technology Review
The global community urgently needs precise, clear rules that define ownership of data and express the attendant rights to license, transfer, use, modify, and destroy digital information assets. In response, this article proposes a new approach for regulating data as an entirely new class of property. Recently, European and Asian public officials and industries have called for data ownership principles to be developed, above and beyond current privacy and data protection laws. In addition, official policy guidances and legal proposals have been published that offer to accelerate realization of a property rights structure for digital information. But how can ownership …
Live Sports Virtual Reality Broadcasts: Copyright And Other Protections, Marie Hopkins
Live Sports Virtual Reality Broadcasts: Copyright And Other Protections, Marie Hopkins
Duke Law & Technology Review
As virtual reality rapidly progresses, broadcasts are able to increasingly mimic the experience of actually attending a game. As the technology advances and the viewer can freely move about the game and virtual reality can simulate the in-stadium attendance, the virtual reality broadcast nears the point where the broadcast is indistinguishable from the underlying game. Thus, novel copyright protection issues arise regarding the ability to protect the experience through copyright. Although normal broadcasts may be copyrighted, virtual reality broadcasts of live sports could lack protection under the Copyright Act because the elements of originality, authorship, and fixation are harder to …
Embryos As Patients? Medical Provider Duties In The Age Of Crispr/Cas9, G. Edward Powell Iii
Embryos As Patients? Medical Provider Duties In The Age Of Crispr/Cas9, G. Edward Powell Iii
Duke Law & Technology Review
The CRISPR/Cas9 genome engineering platform is the first method of gene editing that could potentially be used to treat genetic disorders in human embryos. No past therapies, genetic or otherwise, have been intended or used to treat disorders in existent embryos. Past procedures performed on embryos have exclusively involved creation and implantation (e.g., in-vitro fertilization) or screening and selection of already-healthy embryos (e.g., preimplantation genetic diagnosis). A CRISPR/Cas9 treatment would evade medical malpractice law due to the early stage of the intervention and the fact that it is not a treatment for the mother. In most jurisdictions, medical professionals owe …
The Licensing Function Of Patent Intermediaries, John E. Dubiansky
The Licensing Function Of Patent Intermediaries, John E. Dubiansky
Duke Law & Technology Review
The contemporary patent marketplace is a complex ecosystem comprised of innovators and manufacturers who are often connected by a varied group of intermediaries. While there are a variety of intermediary business models—such as patent assertion entities and defensive aggregators—each facilitates a variant of a similar licensing transaction, connecting a set of patents held by a patent owner with a product or service offered by a prospective licensee. One explanation for the prevalence of intermediaries is that they engage in practices tantamount to arbitrage, acquiring patents and then licensing them at a profit because they enjoy greater success in patent litigation …
Seeking Rights, Not Rent: How Litigation Finance Can Help Break Music Copyright's Precedent Gridlock, Glenn E. Chappell
Seeking Rights, Not Rent: How Litigation Finance Can Help Break Music Copyright's Precedent Gridlock, Glenn E. Chappell
Duke Law & Technology Review
Since its inception, litigation finance has steadily grown in prevalence and popularity in the United States. While many scholars have examined its merits, few have considered litigation finance specifically in the context of copyright law. This is most unfortunate, for there, a vicious cycle has taken hold: high litigation costs discourage many market participants from taking cases to trial or summary judgment in order to vindicate their legal rights, even when they have strong cases. Thus, parties settle almost every case, which in turn prevents resolution of longstanding precedential questions in critical areas of copyright law. The legal uncertainty resulting …
Law Firm Cybersecurity: The State Of Preventative And Remedial Regulation Governing Data Breaches In The Legal Profession, Madelyn Tarr
Law Firm Cybersecurity: The State Of Preventative And Remedial Regulation Governing Data Breaches In The Legal Profession, Madelyn Tarr
Duke Law & Technology Review
With the looming threat of the next hacking scandal, data protection efforts in law firms are becoming increasingly crucial in maintaining client confidentiality. This paper addresses ethical and legal issues arising with data storage and privacy in law firms. The American Bar Association’s Model Rules present an ethical standard for cybersecurity measures, which many states have adopted and interpreted. Other than state legislation mandating timely disclosure after a data breach, few legal standards govern law firm data breaches. As technology advances rapidly, the law must address preventative and remedial measures more effectively to protect clients from data breaches caused by …
Increasing Copyright Protection For Social Media Users By Expanding Social Media Platforms' Rights, Ryan Wichtowski
Increasing Copyright Protection For Social Media Users By Expanding Social Media Platforms' Rights, Ryan Wichtowski
Duke Law & Technology Review
Social media platforms allow users to share their creative works with the world. Users take great advantage of this functionality, as Facebook, Instagram, Flickr, Snapchat, and WhatsApp users alone uploaded 1.8 billion photos per day in 2014. Under the terms of service and terms of use agreements of most U.S. based social media platforms, users retain ownership of this content, since they only grant social media platforms nonexclusive licenses to their content. While nonexclusive licenses protect users vis-à-vis the social media platforms, these licenses preclude social media platforms from bringing copyright infringement claims on behalf of their users against infringers …
What's In A Name: Cable Systems, Filmon, And Judicial Consideration Of The Applicability Of The Copyright Act's Compulsory License To Online Broadcasters Of Cable Content, Kathryn M. Boyd
Duke Law & Technology Review
The way we consume media today is vastly different from the way media was consumed in 1976, when the Copyright Act created the compulsory license for cable systems. The compulsory license allowed cable systems, as defined by the Copyright Act, to pay a set fee for the right to air television programming rather than working out individual deals with each group that owned the copyright in the programming, and helped make television more widely accessible to the viewing public. FilmOn, a company that uses a mini-antenna system to capture and retransmit broadcast network signals, is now seeking access to the …
Copyright Severability: The Hurdle Between 3d-Printing And Mass Crowdsourced Innovation, Alan Fu
Copyright Severability: The Hurdle Between 3d-Printing And Mass Crowdsourced Innovation, Alan Fu
Duke Law & Technology Review
3D-printing is gradually becoming widely accessible to the population, and with accessibility come enthusiasm, participation, and ingenuity. Its continued development reflects a potential surge in technological advancement, bestowing on any person with a computer and the right software the ability to design and create. So far, the utilitarian benefits of designs such as blueprints, schematics, and CAD files have always been safeguarded from copyright over-protection through the doctrine of copyright severability. However, the doctrine is applied inconsistently across different circuits and different factual scenarios. This inconsistency can chill innovation by making it impossible to distinguish aesthetic designs protected by copyright …
Putting Fair Use On Display: Ending The Permissions Culture In The Museum Community, Rosemary Chandler
Putting Fair Use On Display: Ending The Permissions Culture In The Museum Community, Rosemary Chandler
Duke Law & Technology Review
Digital technologies present museums with tremendous opportunities to increase public access to the arts. But the longstanding “permissions culture” entrenched in the museum community—in which licenses are obtained for the use of copyrighted materials regardless of whether such uses are “fair,” such that licenses are not legally required—likely will make the cost of many potential digital projects prohibitively expensive. Ending the permissions culture is therefore critically important to museums as they seek to connect with diverse audiences in the Digital Age. In this issue brief, I argue that such a development will require clear and context-specific information about fair use …
Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja
Legal Nature Of Emails: A Comparative Perspective, Edina Harbinja
Duke Law & Technology Review
There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.
Aereo And Internet Television: A Call To Save The Dukes (A La Carte), Pooja Patel
Aereo And Internet Television: A Call To Save The Dukes (A La Carte), Pooja Patel
Duke Law & Technology Review
If it looks like a duck, swims like a duck, and quacks like a duck, it is probably a duck. The most recent U.S. Supreme Court decision regarding the Copyright Act employed this “duck test” when determining that Aereo, an Internet content-streaming company, violated the Copyright Act by infringing on the copyrights of television broadcast networks. The Supreme Court ruled that Aereo's Internet streaming services resembled cable television transmissions too closely. Therefore, by streaming copyrighted programming to its subscribers without the cable compulsory license, Aereo violated the Transmit Clause of the 1976 Copyright Act. Subsequently, Aereo used this Supreme Court …
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 …
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 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 …
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 …