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The Duke Law & Technology Review is a student-edited online publication of Duke Law School that has been published since 2001 and is devoted to examining the evolving intersection of law and technology. Unlike traditional legal journals, DLTR focuses on short, direct, and accessible “issue briefs” or “iBriefs,” intended to provide cutting edge insight to lawyers and non-legal professionals.
iBlawg was a DLTR side blog from 2006 to 2007.
Please note: As of February 2012, the official citation for the Duke Law and Technology Review was altered to include a volume number, followed by the title of the journal, and the page number on which the article begins. Additionally, Volume 1 includes all scholarship published from 2001-2003.
ISSN 2328-9600 (Online)
Date posted: 5-17-2017
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.
Embryos as Patients? Medical Provider Duties in the Age of CRISPR/Cas9
G. Edward Powell III
Date posted: 5-17-2017
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 no duty to pre-viable fetuses or embryos as such, but will be held liable for negligent treatment of the mother if the treatment causes injury to a born-alive child. This issue brief discusses the science of CRISPR/Cas9, the background legal status of human embryos, and the case for considering genetically engineered embryos as patients for purposes of medical malpractice law.
Damned Lies & Criminal Sentencing Using Evidence-Based Tools
Date posted: 5-13-2017
The boom of big data and predictive analytics has revolutionized business. eHarmony matches customers based on shared likes and expectations for romance, and Target uses similar methods to strategically push its products on shoppers. Courts and Departments of Corrections have also sought to employ similar tools. However, the use of data analytics in sentencing raises a host of constitutional concerns. In State v. Loomis, the Wisconsin Supreme Court was faced with whether the use of an actuarial risk assessment tool based on a proprietary formula violates a defendant’s right to due process where the defendant could not review how the various inputs were weighed. The opinion attempts to save a constitutionally dubious technique and reads as a warning to lower courts in the proper use of predictive analytics. This article explores certain equal protection and due process arguments implicated by Loomis.
Topic: Data Analytics
The Licensing Function of Patent Intermediaries
John E. Dubiansky
Date posted: 5-12-2017
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 than patent holders would on their own. This paper advances an additional explanation: some intermediaries may serve a function analogous to a platform trading in non-exclusive licenses, overcoming search and valuation costs to facilitate licensing. This paper focuses on the use of two contract terms in intermediaries’ dealings with technology market participants: revenue sharing in patent acquisition and non-exclusive licensing. The Federal Trade Commission’s Patent Entity Activity Study reported that intermediaries used both of these terms. Building on those findings, this paper argues that intermediaries that use both provisions may, under some conditions, operate in a manner analogous to a two-sided platform. First, this paper examines how participants in a technology market would value non-exclusive licenses granted ex post, after the licensed product is already on the market. The paper argues that—in addition to the avoidance of litigation costs— the reduction of uncertainty can also drive licensee demand. Next, the paper proposes that use of revenue sharing allows patent holders to experience network effects from the number of prospective licensees accessed through the intermediary, which may make the intermediary more attractive than licensing unilaterally. Finally, this paper argues that the conduct of a patent licensing intermediary using these contract features can be analogized to the practices of other licensing intermediaries such as performing rights organizations and patent pools. These observations suggest that one explanation for the success of some intermediary models—as well as one aspect of their conduct that may influence competition in technology markets—is their ability to connect patent holders and prospective licensees with a greater number of potential trading partners than they would otherwise be able to connect with on their own.
Topic: Patents & Technology
Date posted: 5-12-2017
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 from this precedential gridlock generates higher avoidance costs and poses more financial risks for market participants, particularly less-heeled or less-established parties. This Note proposes one way in which litigation finance could help break that cycle. Specifically, rights holders and defendants alike can use litigation finance to fund strategic-litigation campaigns to pressure the development of precedent. To illustrate how this might work, this Note examines litigation finance in the narrow context of music copyright, an area that perfectly illustrates the problems besetting copyright law writ large. In doing so, this Note flips a popular criticism of litigation finance on its head: while some scholars argue that litigation finance can distort litigation strategy by encouraging litigants to reject mutually beneficial settlements, it is normatively desirable to do so given the unsettled state of music copyright law.
Topic: Copyright & Trademarks
Date posted: 5-10-2017
Topic: Media & Communications, Copyrights & Trademarks
Date posted: 5-10-2017
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 outdated or ineffective cybersecurity procedures in law firms. These measures should include setting a minimum standard of care for data security protection and creating a private cause of action for individuals whose personal information has been improperly accessed because of a failure to comply with those standards.
The Dawn of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into a Decades-Old Promise
Kathryn D. Betts and Kyle R. Jaep
Date posted: 3-29-2017
Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. “Machine learning,” the leading innovative force in these areas, has proven incredibly efficient, performing in mere minutes tasks that would otherwise take a team of lawyers tens of hours. Some contract drafting programs have already experimented with machine learning capabilities, and this technology may pave the way for the full automation of contract drafting. Although intellectual property, data access, and ethical obstacles may delay complete integration of machine learning into contract drafting, full automation is likely still viable.
Date posted: 3-17-2017
Advancements in information technology allow information to be collected and analyzed quickly within a corporation. As a result, technology also allows the quicker release of information to the Securities Exchange Commission (SEC)—much quicker than the Form 10-K and Form 10-Q releases that are currently required for publicly traded companies. Although publicly traded companies must also disclose certain significant events in Form 8-K, the reporting requirements for publicly traded companies are not nearly as expansive as they could be considering the easy access these companies have to their business information. Even with this in mind, the SEC is well into a reevaluation of Regulation S-K primarily because requirements have accreted over time to become not just burdensome to companies but also blinding to investors who are overwhelmed by the volume of disclosure thrown at them. This paper expounds on these arguments and posits additional arguments for why the SEC should not expand reporting requirements for publicly traded companies. Specifically, expanded requirements are associated with high compliance costs; market forces already induce higher-quality disclosures; the more information companies file with the SEC, the more advantages they give to their competitors; and both the liability concerns and the doctrinal issues already associated with the current requirements will be exacerbated with an expansion of the requirements.
Websites as Facilities Under ADA Title III
Ryan C. Brunner
Date posted: 3-14-2017
Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public accommodations. This change would open the door to a multilayered approach to accessible websites, wherein existing websites are subject to relatively lax requirements but new and altered websites are subject to stricter requirements.
Topic: Media & Communications
Date posted: 2-28-2017
Under the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, public schools may only restrict student speech where the speech is reasonably forecasted to cause a “substantial and material disruption.” With online forums calling into question who may control speech and forecast its impact, the circuit courts have granted public schools broad authority to monitor, and punish, their students for online activity that occurs off-campus. The Supreme Court recently declined the opportunity to reverse this disturbing trend by denying certiorari for Bell v. Itawamba County. As a result, questions remain unanswered regarding students’ right to free speech and how courts should address First Amendment cases in the digital realm.
Topic: Media & Communications
Date posted: 2-4-2017
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 compulsory license. In three concurrent legal cases in New York, California, and D.C., FilmOn argues that it meets the statutory requirements to classify as a cable system. This Issue Brief examines the legal history of cable systems and considers the effects of agency influence, policy concerns, and the lack of judicial or congressional resolution regarding FilmOn’s contested legal status.
Topic: Copyrights & Trademarks, Media & Communications
Date posted: 1-27-2017
The ability to alter the genes of future generations no longer belongs in the realm of science fiction. The genetic modification capabilities of modern science are advancing rapidly. Mitochondrial replacement therapy (MRT) represents the first crossing of the germline barrier in humans, and as of February 2015, it is the first procedure of its kind to be legalized in the Western world. How Congress decides to regulate MRT will influence future regulation of all genetic manipulation technologies. This brief argues that the current patchwork regulatory framework established in the United States is insufficient to deal with the complex issues MRT presents. As such, the creation of a new regulatory agency specifically focused on the oversight of reproductive and genetic biotechnologies may be necessary to balance the goals of ensuring the safety of research participants, promoting public debate, and stimulating continued scientific progress.
Topic: Health & Biotechnology
Date posted: 1-9-2017
The characteristics and capabilities of civilian drones have proliferated in recent years, giving rise to a burgeoning industry. The popular media and academic literature have predominantly focused on privacy concerns, devoting considerably less attention to the regulatory challenges created by the new technology. Congress instructed the FAA to integrate drones into the National Airspace System in 2012, but rulemaking delays and a moratorium on commercial uses hampered the industry and withheld benefits from the public. Final regulations are now in place, but the new rules revive legal uncertainty over the constitutional limits of federal authority and the ambiguous vertical bounds of private property rights. Low-altitude local drone use is one of the most promising aspects of the technology, and lies at the outer edge of federal authority. Much of the current debate gets key questions exactly backwards. Under current Supreme Court precedent, the proper legal question is not whether federal airspace authority can extend lower to govern virtually all drone use, but whether drone use pushes private property rights in airspace higher, limiting federal authority. Therefore, this Issue Brief joins the scholarly criticism of FAA efforts to date and calls for a greater focus on clear property rights.
Topic: Patents & Technology
Date posted: 1-5-2017
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 from functional designs that are not. Thus, copyright severability does not do enough to protect innovation as 3D-printing begins to make product design more accessible to the general public. A more suitable solution may lie in the abstraction-filtration-comparison test from the software context of copyright infringement.
Topic: Copyrights & Trademarks
Date posted: 12-14-2016
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 that enables museum professionals to better understand the appropriate boundaries of fair use, and that a community-based code of best practices—like the College Art Association’s recently released Code of Best Practices for Fair Use in the Visual Arts—is likely the best means to achieve this.
Topic: Copyrights & Trademarks
Date posted: 12-12-2016
In CBS Corporation v. FCC, the D.C. Circuit struck down the Federal Communication Commission’s rules for protecting confidential information that it collects during certain merger proceedings. In response, the Commission released a new order, pursuant to the Charter, Time Warner, and Bright House merger proceeding, for protecting confidential information. This iBrief analyzes the policy and legal implications of the Order, arguing that the Order is unlawful because it violates the Trade Secrets Act and notice-and-comment rulemaking requirements.
Topic: Media & Communications
Date posted: 9-30-2016
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 direct attacks by the adversary, whereas combatants (or members of armed groups) and military objectives may become legitimate targets of direct attacks. Although civilians are generally protected from direct attacks, they can still become victims of an attack because they lose this protection “for such time as they take direct part in hostilities.” In other words, under certain circumstances, if a civilian decides to engage in hostile cyber activities (or “hacktivities”), they may well become a target of a direct lethal attack. I will argue that although the answer is highly nuanced and context dependent, the most salutary doctrinal revision that can be made in this area is that the threshold of harm must adapt to the particular intricacies of cyberspace.
Topic: CyberCrime, International
Date posted: 9-12-2016
Recent high-profile incidents of police misconduct have led to calls for increased police accountability. One proposed reform is to equip police officers with body worn cameras, which provide more reliable evidence than eyewitness accounts. However, such cameras may pose privacy concerns for individuals who are recorded, as the footage may fall under open records statutes that would require the footage to be released upon request. Furthermore, storage of video data is costly, and redaction of video for release is time-consuming. While exempting all body camera video from release would take care of privacy issues, it would also prevent the public from using body camera footage to uncover misconduct. Agencies and lawmakers can address privacy problems successfully by using data management techniques to identify and preserve critical video evidence, and allowing non-critical video to be deleted under data-retention policies. Furthermore, software redaction may be used to produce releasable video that does not threaten the privacy of recorded individuals.
Topic: Media and Communications
Date posted: 9-11-2016
Due to a series of legal and regulatory setbacks, media accessibility regulations for consumers who are blind and visually impaired have lagged significantly behind those for deaf individuals. Until April 2014, when the Federal Communications Commission’s Emergency Information Order took effect, blind consumers were left “in the dark” when their safety mattered most—during weather emergencies—because visual emergency information displayed in the on-screen crawl during television programming was not accessible in an aural format. The Commission now mandates that this information be provided in an aural form through the secondary audio stream for linear programming viewed on televisions and mobile devices and other “second screens” used inside the home over the MVPD’s network, but this requirement leaves many issues unresolved. This Issue Brief examines and analyzes the arguments made by industry and consumer groups for and against expanded regulation, and makes several recommendations that efficiently fill gaps in the current regulatory requirements for accessible emergency information. These recommendations are technically feasible, not unduly burdensome, and necessary to effectuate the purpose of the Twenty-First Century Communications and Video Accessibility Act of 2010. Specifically, the Commission can extend emergency information regulations to the entities it failed to reach with its Emergency Information Order and Second Report and Order by adopting the Linear Programming Definition of an MVPD that it puts forth in its MVPD Definition NPRM. The Commission should adopt this definition, thereby expanding the scope of entities required to comply with the Emergency Information Order, but it should curtail the Order’s rigidity by not passing prioritization guidelines and by removing the requirement to include school closures and changes in the bus schedule in the secondary audio stream.
Topic: Media and Communications