Law Commons^™

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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.

Sharing By Design: Data And Decentralized Commons, Jorge L. Contreras, Jerome H. Reichman

Faculty Scholarship

Ambitious international data-sharing initiatives have existed for years in fields such as genomics, earth science, and astronomy. But to realize the promise of large-scale sharing of scientific data, intellectual property (IP), data privacy, national security, and other legal and policy obstacles must be overcome. While these issues have attracted significant attention in the corporate world, they have been less appreciated in academic and governmental settings, where solving issues of legal interoperability among data pools in different jurisdictions has taken a back seat to addressing technical challenges. Yet failing to account for legal and policy issues at the outset of a …

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 …

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

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 …

Sharing Is Airing: Employee Concerted Activity On Social Media After Hispanics United, Ryan Kennedy

Duke Law & Technology Review

Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been extended in cases such as Lafayette Park Hotel to workers outside the union context. Starting in 2005, the National Labor Relations Board increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the …

Mega, Digital Storage Lockers, And The Dmca: Will Innovation Be Stifled By Fears Of Piracy?, Ali V. Mirsaidi

Duke Law & Technology Review

Kim Dotcom, founder of Megaupload Limited, has been in many news headlines over the past year. Megaupload—one of Dotcom’s many peer-to-peer sharing sites—was the center of controversy, as it allowed users to upload and share all sorts of files, including copyrighted material. After an organized effort by the Department of Justice and several foreign governments, Dotcom was arrested for (secondary) copyright infringement and his site was ultimately shut down. Dotcom has recently launched a new service, MEGA, which he claims will evade copyright laws entirely. Like other well-known cloud-sharing services such as Dropbox and Google Drive, MEGA allows users to …

Cloud Computing, Clickwrap Agreements, And Limitation On Liability Clauses: A Perfect Storm?, Timothy J. Calloway

Duke Law & Technology Review

“To the cloud!” trumpets a commercial by Microsoft, whose aim is to herd customers, and their checkbooks, into the cloud computing fold. But Microsoft, and other cloud providers like Amazon and Google, might inadvertently be doing just the opposite. It is not for lack of security or even early adopter apprehension that potential customers might turn away. Nor is it a lack of fantastic, cost-saving applications of cloud technology.

Rather, the problem is buried deep within these tech giants’ clickwrap agreements—the ones that customers rarely read and to which they invariably click “I Agree.” Hidden in these agreements are limitation …

Ensuring An Impartial Jury In The Age Of Social Media, Amy J. St. Eve, Michael A. Zuckerman

Duke Law & Technology Review

The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.

In this Article, we present informal survey data …

Aiming At The Wrong Target: The "Audience Targeting" Test For Personal Jurisdiction In Internet Defamation Cases, Sarah H. Ludington

Faculty Scholarship

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The …

The Path Of Internet Law: An Annotated Guide To Legal Landmarks, Michael L. Rustad, Diane D’Angelo

Duke Law & Technology Review

The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting …

The Invisible Power Of Machines Revisiting The Proposed Flash Order Ban In The Wake Of The Flash Crash, Austin J. Sandler

Duke Law & Technology Review

Technological innovation continues to make trading and markets more efficient, generally benefitting market participants and the investing public. But flash trading, a practice that evolved from high-frequency trading, benefits only a select few sophisticated traders and institutions with the resources necessary to view and respond to flashed orders. This practice undermines the basic principles of fairness and transparency in securities regulation, exacerbates information asymmetries and harms investor confidence. This iBrief revisits the Securities and Exchange Commission's proposed ban on the controversial practice of "flash trading" and urges the Securities and Exchange Commission and the Commodity Futures Trading Commission to implement …

The Rise Of Computerized High Frequency Trading: Use And Controversy, Michael J. Mcgowan

Duke Law & Technology Review

Over the last decade, there has been a dramatic shift in how securities are traded in the capital markets. Utilizing supercomputers and complex algorithms that pick up on breaking news, company/stock/economic information and price and volume movements, many institutions now make trades in a matter of microseconds, through a practice known as high frequency trading. Today, high frequency traders have virtually phased out the "dinosaur" floor-traders and average investors of the past. With the recent attempted robbery of one of these high frequency trading platforms from Goldman Sachs this past summer, this "rise of the machines" has become front page …

Privacy Expectations And Protections For Teachers In The Internet Age, Emily H. Fulmer

Duke Law & Technology Review

Public school teachers have little opportunity for redress if they are dismissed for their activities on social networking websites. With the exception of inappropriate communication with students, a school district should not be able to consider a public educator’s use of a social networking website for disciplinary or employment decisions. Insisting that the law conform to twenty-first century social norms, this iBrief argues that the law should protect teachers’ speech on popular social networking websites like Facebook and MySpace.

Who Owns The Virtual Items?, Leah Shen

Duke Law & Technology Review

Do you WoW? Because millions of people around the world do! Due to this increased traffic, virtual wealth amassed in MMORPGs are intersecting in our real world in unexpected ways. Virtual goods have real-life values and are traded in real-life markets. However, the market for trading in virtual items is highly inefficient because society has not created property rights for virtual items. This lack of regulation has a detrimental effect not just the market for virtual items, but actually the market for MMORPGs. Assuming we want to promote the production of MMORPGs as a market, society requires a set of …

The Anonymous Poster: How To Protect Internet Users’ Privacy And Prevent Abuse, Scott Ness

Duke Law & Technology Review

The threat of anonymous Internet posting to individual privacy has been met with congressional and judicial indecisiveness. Part of the problem stems from the inherent conflict between punishing those who disrespect one's privacy by placing a burden on the individual websites and continuing to support the Internet's development. Additionally, assigning traditional tort liability is problematic as the defendant enjoys an expectation of privacy as well, creating difficulty in securing the necessary information to proceed with legal action. One solution to resolving invasion of privacy disputes involves a uniform identification verification program that ensures user confidentiality while promoting accountability for malicious …

The Impacts Of The Chinese Anti-Monopoly Law On Ip Commercialization In China & General Strategies For Technology-Driven Companies And Future Regulators, Yijun Tian

Duke Law & Technology Review

After thirteen years of discussion and three revisions, China's Anti-Monopoly Law (AML) was promulgated on August 30, 2007 and has come into effect on August 1, 2008. It is the first anti-monopoly law in China and has been viewed as an "economic constitution" and a "milestone of the country’s efforts in promoting a fair competition market and cracking down on monopoly activities." However, the wording of some provisions of the AML, including the sections dealing with Intellectual Property (IP) protection, is not very clear. And juridical interpretations and more specific implementing regulations on the AML have not yet appeared. This …

Online Fantasy Sports Litigation And The Need For A Federal Right Of Publicity Statute, Risa J. Weaver

Duke Law & Technology Review

The right of publicity is currently a jumble of state common law and state statutes, but the online fantasy sports industry crosses state lines with ease. Having witnessed the great revenue potential of online fantasy sports, professional sports leagues are trying to strong-arm independent fantasy sports providers out of the business by using the right of publicity to assert property interests in the statistics generated by professional players, and used by fantasy sports providers to run their online games. The first such attempt--by Major League Baseball--failed. However, the state law nature of the right of publicity prevents any single court …

The International Trade Commission: Potential Bias, Hold-Up, And The Need For Reform, William Dolan

Duke Law & Technology Review

The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as "patent hold-up." There are currently sweeping …

The Future Of “Fair And Balanced”: The Fairness Doctrine, Net Neutrality, And The Internet, Sasha Leonhardt

Duke Law & Technology Review

In recent months, different groups--pundits, politicians, and even an FCC Commissioner--have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the …

Experimenting With Territoriality: Pan-European Music License And The Persistence Of Old Paradigms, Ana Eduarda Santos

Duke Law & Technology Review

This article tells the story of what could have been an interesting and important shift in our approach to territoriality in the digitalized world. Europe had the chance to be the cradle of an unprecedented copyright experience – the creation of a quasi pan- continental license in the music field – but it might have lost that opportunity in the midst of non-binding recommendations and resolutions. This article argues this loss is due to the overreaching persistence of old paradigms, namely the principle of territoriality.

The U.S. On Tilt: Why The Unlawful Internet Gambling Enforcement Act Is A Bad Bet, Gerd Alexander

Duke Law & Technology Review

The United States federal government’s attempts to curb Internet gambling are beginning to resemble a game of whack-a-mole. The Unlawful Internet Gambling Enforcement Act of 2006 (the "UIGEA" or "Act") represents its most recent attack on Internet gambling. This iBrief first looks at U.S. attempts to limit Internet gambling and how those efforts have affected gambling law and business. It then discusses how the UIGEA works and highlights some of its major limitations. This iBrief argues that the UIGEA will not only fail to rein in online gambling, but that the U.S. federal government is treading an improvident course towards …

Taxation Of Virtual Assets, Scott Wisniewski

Duke Law & Technology Review

The development of vast social networks through Massively Multiplayer Online Role-Playing Games has created in-game communities in which virtual assets have real-world values. The question has thus arisen whether such virtual assets are legal subjects of taxation. This iBrief will detail and discuss the various exclusions to taxable income, and analyze their application to the possibility of creating potential tax liability based on in-kind exchanges of virtual assets.

Fcc Regulation: Indecency By Interest Groups, Patricia Daza

Duke Law & Technology Review

FCC regulations are among the most controversial administrative law regulations because of their impact on broadcast television. This iBrief analyzes the history of FCC regulation and highlights the problems associated with the current model. Applying theories of economics, this iBrief proposes solutions to the current problems of selective enforcement and vagueness in enforcement. While the Supreme Court recognized that FCC regulation is necessary, it is also necessary for there to be a clearer model for how the agency should be run.

Is The Internet A Viable Threat To Representative Democracy?, David M. Thompson

Duke Law & Technology Review

The Internet, despite its relatively recent advent, is critical to millions of Americans’ way of life. Although the Internet arguably opens new opportunities for citizens to become more directly involved in their government, some scholars fear this direct involvement poses a risk to one of the Constitution’s most precious ideals: representative democracy. This iBrief explores whether the constitutional notion of representation is vulnerable to the Internet’s capacity to open new vistas for a more direct democracy by analyzing statistics and theories about why voters in the United States do or do not vote and by examining the inherent qualities of …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …

T-Mobile Usa Inc. V. Department Of Finance For Baltimore City: What The Latest Salvo In Disproportional Cellular Phone Taxation Means For The Future, Daniel P. Slowey

Duke Law & Technology Review

Seventeen percent of the average monthly cellular phone bill in 2004 was comprised of federal, state, and local taxes. As the number of wireless subscribers across the nation continues to increase, states, cities, and counties are increasingly seizing upon cellular taxation as a panacea for budget shortfalls. The Maryland Tax Court’s recent decision in T-Mobile USA, Inc. v. Department of Finance for Baltimore City held state and county taxes on the sale of individual cellular lines as legal excise taxes rather than illegal sales taxes. This iBrief will highlight the origins of telecommunications taxation, examine the ruling in T-Mobile in …

When Is Employee Blogging Protected By Section 7 Of The Nlra?, Katherine M. Scott

Duke Law & Technology Review

The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs.

The Constitutionality Of Wipo’S Broadcasting Treaty: The Originality And Limited Times Requirements Of The Copyright Clause, Adam R. Tarosky

Duke Law & Technology Review

Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress’s Copyright Clause power: the originality and "limited times" requirements. But Congress has a trump card--the Commerce Clause. This iBrief argues that to give proper effect to the limitations of the Copyright Clause, Congress should not be allowed to implement copyright-like legislation under the less restrictive Commerce Clause.