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Full-Text Articles in Law
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 …
Space And Existential Risk: The Need For Global Coordination And Caution In Space Development, Chase Hamilton
Space And Existential Risk: The Need For Global Coordination And Caution In Space Development, Chase Hamilton
Duke Law & Technology Review
This Article examines urgent risks resulting from outer space activities under the current space law regime. Emerging literature alarmingly predicts that the risk of a catastrophe that ends the human species this century is approximately 10–25%. Continued space development may increase, rather than decrease, overall existential risk due in part to crucial and identifiable market failures. Addressing these shortcomings should take priority over the competing commercial, scientific, and geopolitical interests that currently dominate in space policy. Sensible changes, including shifting space into a closed-access commons as envisioned by the 1979 Moon Treaty, may help in achieving existential security.
Cyber And Tria: Expanding The Definition Of An "Act Of Terrorism" To Include Cyber Attacks, Nehal Patel
Cyber And Tria: Expanding The Definition Of An "Act Of Terrorism" To Include Cyber Attacks, Nehal Patel
Duke Law & Technology Review
The 9/11 terrorist attacks brought on financial losses that caused insurers and Congress to reevaluate how the United States approaches terrorism risk coverage. Congress quelled concerns of insurers evading coverage of future terrorist attacks by enacting the Terrorism Risk Insurance Act in 2002. This Note considers the difficulties presented by the out-of-date language employed by Congress in 2002 and proposes amendments so that the Act more clearly covers acts of cyberterrorism, which are ever-growing in their destructive potential.
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 …
Slave To The Algorithm? Why A 'Right To An Explanation' Is Probably Not The Remedy You Are Looking For, Lilian Edwards, Michael Veale
Slave To The Algorithm? Why A 'Right To An Explanation' Is Probably Not The Remedy You Are Looking For, Lilian Edwards, Michael Veale
Duke Law & Technology Review
Algorithms, particularly machine learning (ML) algorithms, are increasingly important to individuals’ lives, but have caused a range of concerns revolving mainly around unfairness, discrimination and opacity. Transparency in the form of a “right to an explanation” has emerged as a compellingly attractive remedy since it intuitively promises to open the algorithmic “black box” to promote challenge, redress, and hopefully heightened accountability. Amidst the general furore over algorithmic bias we describe, any remedy in a storm has looked attractive. However, we argue that a right to an explanation in the EU General Data Protection Regulation (GDPR) is unlikely to present a …
Outer Space: The Final Frontier Or The Final Battlefield?, Emily Taft
Outer Space: The Final Frontier Or The Final Battlefield?, Emily Taft
Duke Law & Technology Review
Current law concerning the militarization and weaponization of outer space is inadequate for present times. The increased implementation of “dual-use” space technologies poses obstacles for the demilitarization of space. This paper examines how far the militarization of space should be taken and also whether weapons of any kind should be placed in space. Further steps must be taken in international space law to attempt to keep the militarization and weaponization of space under control in order to promote and maintain a free outer space for research and exploration.
Icrc, Nato And The U.S. – Direct Participation In Hacktivities – Targeting Private Contractors And Civilians In Cyberspace Under International Humanitarian Law, Ido Kilovaty
Duke Law & Technology Review
Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from …
The Path Of Internet Law: An Annotated Guide To Legal Landmarks, Michael L. Rustad, Diane D’Angelo
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 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 …
A Green Road To Development: Environmental Regulations And Developing Countries In The Wto, Jonathan Skinner
A Green Road To Development: Environmental Regulations And Developing Countries In The Wto, Jonathan Skinner
Duke Environmental Law & Policy Forum
No abstract provided.
The International Trade Commission: Potential Bias, Hold-Up, And The Need For Reform, William Dolan
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 …
Experimenting With Territoriality: Pan-European Music License And The Persistence Of Old Paradigms, Ana Eduarda Santos
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 Dirt On International Environmental Law Regarding Soils: Is The Existing Regime Adequate?, Alexandra M. Wyatt
The Dirt On International Environmental Law Regarding Soils: Is The Existing Regime Adequate?, Alexandra M. Wyatt
Duke Environmental Law & Policy Forum
No abstract provided.
The Constitutionality Of Wipo’S Broadcasting Treaty: The Originality And Limited Times Requirements Of The Copyright Clause, Adam R. Tarosky
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.
Protecting Intellectual Property In The Developing World: Next Stop—Thailand, Cortney M. Arnold
Protecting Intellectual Property In The Developing World: Next Stop—Thailand, Cortney M. Arnold
Duke Law & Technology Review
This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries.
Mining The Common Heritage Of Our Dna: Lessons Learned From Grotius And Pardo, Jasper A. Bovenberg
Mining The Common Heritage Of Our Dna: Lessons Learned From Grotius And Pardo, Jasper A. Bovenberg
Duke Law & Technology Review
The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius’s Mare Liberum to determine whether international law precedent …
China’S Wapi Policy: Security Measure Or Trade Protectionism?, Zia K. Cromer
China’S Wapi Policy: Security Measure Or Trade Protectionism?, Zia K. Cromer
Duke Law & Technology Review
In December of 2003, the Chinese government announced that all WLAN equipment sold in China must conform to a propriety standard called WAPI, rather than the internationally accepted Wi-Fi standard. Moreover, for foreign firms to gain access to WAPI technology, they would need to partner with one of two-dozen Chinese firms designated by the Chinese government. The policy ostensibly grew out of security concerns regarding Wi-Fi, although it is unclear whether WAPI is more secure. Beijing has now indefinitely postponed the implementation of this policy, but WAPI is still relevant. This iBrief argues that WAPI is illustrative of many Chinese …
The Sps Agreement: Can It Regulate Trade In Nanotechnology?, James D. Thayer
The Sps Agreement: Can It Regulate Trade In Nanotechnology?, James D. Thayer
Duke Law & Technology Review
Recent studies have shown that nanoparticles, which are approximately 1 to 100 billionths of a meter in size, present unique health and environmental risks. Nevertheless, products enhanced by nanoparticles, such as sunscreen, golf balls, and hard drives, are shipped daily in international trade. With these unique risks in mind, would measures regulating the trade in nanotechnology be subject to the WTO Agreement on Sanitary and Phytosanitary Measures? If they were, would the Agreement objectively balance the unique risks and benefits of trading in nanotechnology? Whether measures regulating the trade in nanotechnology are subject to the SPS Agreement depends on the …
The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?, Robert Bray
The European Union “Software Patents” Directive: What Is It? Why Is It? Where Are We Now?, Robert Bray
Duke Law & Technology Review
This paper has been adapted from a presentation given by the author at Duke University School of Law's "Hot Topics in Intellectual Property Law Symposium" on April 1, 2005. It first presents an overview of the EU "Software Patents" Directive and many of the amendments that have been proposed and adopted. It then suggests a number of ways in which Europe can lead the world in developing a system that balances the interests of patent protection and open-source software.
The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer
The Trade Of Cross-Border Gambling And Betting: The Wto Dispute Between Antigua And The United States, James D. Thayer
Duke Law & Technology Review
The first ecommerce dispute to come before the World Trade Organization ("WTO") was billed to be one of David and Goliath proportion. The tiny twin-island nation-state of Antigua and Barbuda challenged the United States' ban on cross-border Internet gambling and betting. As a result of the dispute, the WTO issued a private final report against the United States finding that the ban violates the United States' commitments under the WTO. Shortly before the public release of the final report, both parties petitioned the WTO to indefinitely postpone its release so that the parties could engage in private negotiations. The final …
A Manifesto On Wipo And The Future Of Intellectual Property, James Boyle
A Manifesto On Wipo And The Future Of Intellectual Property, James Boyle
Duke Law & Technology Review
In this Manifesto, Professor Boyle claims that there are systematic errors in contemporary intellectual property policy and that WIPO has an important role in helping to correct them.
Europe: Open Market… Open Source?, Heather Forrest
Europe: Open Market… Open Source?, Heather Forrest
Duke Law & Technology Review
The recent Proposed Directive on the patentability of computer-implemented inventions takes the European Community a step further down the road towards patents for computer software. If the goal of the Proposed Directive is to facilitate market entry for individual programmers and small and medium enterprises -- as it must be within the framework of the European Treaty -- then the European Commission should not be expanding intellectual property rights in technology goods, which, by their very nature, will lose value to the public long before their monopoly rights expire. Rather, the Commission should look to the open source movement and …
Icann—Now And Then: Icann’S Reform And Its Problems, Kim G. Von Arx
Icann—Now And Then: Icann’S Reform And Its Problems, Kim G. Von Arx
Duke Law & Technology Review
This paper sheds some light upon the major problem arising from the current normative infrastructure of the DNS and provides a possible solution to the current physical problem of the DNS. The paper's main focus is the single-entity control of the A Root. The paper uses as a starting point the Blueprint prepared by the Committee on ICANN Evolution and Reform and raises the question: Has this reform done anything to resolve the single-entity control of the A Root? The paper argues that the reform has done nothing to solve the problem because the international privatization of the DNS merely …
From Napster To Kazaa: The Battle Over Peer-To-Peer Filesharing Goes International, Seagrumn Smith
From Napster To Kazaa: The Battle Over Peer-To-Peer Filesharing Goes International, Seagrumn Smith
Duke Law & Technology Review
The Recording Industry Association of America (RIAA) may have won its domestic battle against Napster, but as an increasing number of peer-to-peer (P2P) providers crop up overseas, it has become apparent that the file-swapping battle has really just begun. As the recording and movie industries struggle to protect their copyrighted interests abroad, courts, both in the United States and in foreign countries, are being asked to answer difficult questions concerning international jurisdiction and enforcement. This ibrief will further explore these issues, particularly with reference to the RIAA's and Motion Picture Association of America's (MPAA) legal efforts against Kazaa, a foreign-based …
The Future Of Wireless Spam, Evan Cramer
The Future Of Wireless Spam, Evan Cramer
Duke Law & Technology Review
Though US cellular networks currently lack the capacity for widespread distribution of unsolicited wireless advertising (wireless spam), these advertisements are already well known in Japan and Europe, where they have proven to be a significant burden on cellular users. This iBrief examines the recently ratified legislation in Japan and Asia that have attempted to stop the glut of wireless advertisements, as a foreshadowing of the problems and questions that will soon have to be addressed in the United States.
Microsoft And The European Union Face Off Over Internet Privacy Concerns, Seagrumn Smith
Microsoft And The European Union Face Off Over Internet Privacy Concerns, Seagrumn Smith
Duke Law & Technology Review
Amidst what appears to be a multi-faceted attack by the European Union on Microsoft, the newest angle is the European Commission's announcement last month that it was considering a formal investigation of Microsoft's .Net Passport data processing system for possible violations of the European Union Data Privacy Directive. This iBrief explores the European Data Privacy Directive and seeks to explain why the European Commission believes .Net Passport may be in violation of its privacy policies and a case for further investigation.
Bayesian Approaches To The Precautionary Principle, Stephen Charest
Bayesian Approaches To The Precautionary Principle, Stephen Charest
Duke Environmental Law & Policy Forum
No abstract provided.
Culture And Causality: Non-Western Systems Of Explanation, William M. O'Barr
Culture And Causality: Non-Western Systems Of Explanation, William M. O'Barr
Law and Contemporary Problems
The logic of some other systems of thought, explanation, and prediction are discussed, in order to find what can be learned about the sociocultural contexts and their functions in other cultures. The truths they may represent are about the human quest to understand causes and effects.
U.S. Export Controls On Technology Transfers, Matthew Crane
U.S. Export Controls On Technology Transfers, Matthew Crane
Duke Law & Technology Review
Companies selling technology products abroad must be careful that they have complied with regulations imposed on the exportation of technology products. This is especially true for companies seeking to export encryption technology. This iBrief explores the considerations that must be given to the export of encryption and other technologies.
International Liability In Cyberspace, Matthew Crane
International Liability In Cyberspace, Matthew Crane
Duke Law & Technology Review
Activities in cyberspace often expose companies to "cybertorts", a species of tort particularly difficult to reconcile with standard insurance policies. The author explores some of the difficulties in obtaining coverage for cybertorts from traditional insurance policies, and makes recommendations for companies to reduce their cyberspace liability exposure.