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Editors

Editor-in-Chief: Editor Name, Editor Institution
Editors: Editor Name, Editor Institution
  Editor Name, Editor Institution
 

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)

Recent Content

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ICRC, NATO and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace Under International Humanitarian Law
Ido Kilovaty

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

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Police Body Worn Cameras and Privacy: Retaining Benefits While Reducing Public Concerns
Richard Lin

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

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The Silence After the Beep: Envisioning an Emergency Information System to Serve the Visually Impaired
Elana Reman

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

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The Frontiers of Peer-to-Peer Lending: Thinking About a New Regulatory Approach
William S. Warren

Date posted: 8-9-2016

The growth of online alternative lending presents several advantages for both those seeking credit and those with excess capital to lend. Over the past decade, several different models of peer-to-peer lending have emerged in the US and U.K. Each of these models has developed in response to the different regulatory system it faces, which has led to the models’ different risk and reward profiles. However, the current regulatory framework for regulating peer-to-peer lending, especially in the U.S., leaves much to be desired. The inadequate regulatory regime not only hampers the potential for growth and further innovation in the industry, but also creates risks for consumers, lenders, and, as the sector grows, entire markets. There is no clear or easy answer as to the optimal regulatory regime, but regulators should at least consider the basic functions of peer-to-peer lending and how to address risks with a more comprehensive and sensible model for regulation.

Topic: eCommerce

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The NLRB's Purple Communications Decision: Email, Property, and the Changing Patterns of Industrial Life
Josh Carroll

Date posted: 6-5-2016

On December 11th, 2014, in a much-anticipated case, the National Labor Relations Board (“NLRB”) held in a 3-2 decision that employees with access to an employer’s email system had a presumptive right to use that email system during non-working time under Section 7 of the National Labor Relations Act (“NLRA”). In an attempt to adapt to the “changing patterns of industrial life,” the NLRB reversed a seven-year precedent by overturning In re Guard Publ'g Co., 351 N.L.R.B. 1110 (2007), and thereby gave employees the statutory right to use employer email systems for non-business purposes. This issue brief argues that the majority opinion in Purple Commc'ns, Inc., 361 N.L.R.B. No. 126 (2014) erroneously presumed that a ban on employer email systems interfered with employees’ rights to engage in concerted activities under Section 7. In reality, the influx of alternative avenues of communication, such as smartphones, social media, and tablets, have substantially grown for employees over the past several years, thus strengthening employees’ Section 7 rights. The new framework set forth in Purple Communications not only exaggerates the need for employees to exercise their Section 7 rights by using a company’s email system, but also unfairly burdens an employer’s resources, time, and energy in implementing such access. For these reasons, the rule in Purple Communications is unworkable and the prior Register Guard standard should still apply.

Topic: Media & Communications

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Informational Inequality: How High Frequency Traders Use Premier Access to Information to Prey on Institutional Investors
Jacob Adrian

Date posted: 2-28-2016

In recent months, Wall Street has been whipped into a frenzy following the March 31st release of Michael Lewis’ book “Flash Boys.” In the book, Lewis characterizes the stock market as being rigged, which has institutional investors and outside observers alike demanding some sort of SEC action. The vast majority of this criticism is aimed at high-frequency traders, who use complex computer algorithms to execute trades several times faster than the blink of an eye. One of the many complaints against high-frequency traders is over parasitic trading practices, such as front-running. Front-running, in the era of high-frequency trading, is best defined as using the knowledge of a large impending trade to take a favorable position in the market before that trade is executed. Put simply, these traders are able to jump in front of a trade before it can be completed. This Note explains how high-frequency traders are able to front-run trades using superior access to information, and examines several proposed SEC responses.

Topic: Patents & Technology

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Legal Nature of Emails: A Comparative Perspective
Edina Harbinja

Date posted: 2-20-2016

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.

Topic: emails, copyright, United Kingdom, information as property

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Weathering the Nest: Privacy Implications of Home Monitoring for the Aging American Population
Jillisa Bronfman

Date posted: 2-10-2016

The research in this paper will seek to ascertain the extent of personal data entry and collection required to enjoy at least the minimal promised benefits of distributed intelligence and monitoring in the home. Particular attention will be given to the abilities and sensitivities of the population most likely to need these devices, notably the elderly and disabled. The paper will then evaluate whether existing legal limitations on the collection, maintenance, and use of such data are applicable to devices currently in use in the home environment and whether such regulations effectively protect privacy. Finally, given appropriate policy parameters, the paper will offer proposals to effectuate reasonable and practical privacy-protective solutions for developers and consumers.

Topic: Patents & Technology

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The Red Dawn of Geoengineering: First Step Toward an Effective Governance for Stratospheric Injections
Edward J. Larson

Date posted: 1-29-2016

A landmark report by the National Academy of Sciences (NAS) issued in 2015 is the latest in a series of scientific studies to assess the feasibility of geoengineering with stratospheric aerosols to offset anthropogenic global warming and to conclude that they offer a possibly viable supplement or back-up alternative to reducing carbon dioxide emissions. The known past effect of major explosive volcanic eruptions temporarily moderating average worldwide temperatures provides evidence in support of this once taboo form of climate intervention. In the most extensive study to date, an elite NAS committee now suggests that such processes for adjusting global temperature, while still uncertain, merit further research and field testing. Every study stresses the need for transparent international governance of stratospheric injections, especially given that the benefits of such interventions are certain to be unevenly distributed and the risks are not fully known. After examining the roadblocks to such governance, this paper explores the statutory and common law frameworks that could provide some stop-gap approaches until the needed regulatory regime emerges.

Topic: Patents & Technology

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Aereo and Internet Television: A Call to Save the Dukes (A La Carte)
Pooja Patel

Date posted: 1-21-2016

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 decision to obtain a compulsory license from the Copyright Office but was denied. Forced back into litigation, Aereo filed for Chapter 11 Bankruptcy This Issue Brief describes Aereo’s technology, the litigation that followed, and the related precedent, and concludes that the district court should have granted Aereo a Section 111 Statutory License in line with the Supreme Court’s “duck test.” It considers the implications of the Court’s preliminary injunction against Aereo’s “a la carte” TV technology, what this means for the future of similar technological innovation, and the effects on consumers and competition.

Topic: Media & Communications

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Riley v. California and the Stickiness Principle
Steven I. Friedland

Date posted: 1-21-2016

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question of whether cell phone searches incident to a lawful arrest were constitutional. The Court, which had clung to pre-digital concepts such as physical trespass well into the twenty-first century, appeared ready to explore how technology is reshaping historically understood conceptions of privacy. From a broader perspective, the case offers an initial step in reconciling pre-digital rules based on outdated spatial conceptions of physical things with the changing realities of a technology driven world.

Topic: Patents & Technology

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Frand v. Compulosry Licensing: The Lessor of the Two Evils
Srividhya Ragavan, Brendan Murphy, and Raj Davé

Date posted: 12-25-2015

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 of license attempt to create a value for the licensed product that can be remarkably different from the product’s true market value. Nevertheless, both forms ultimately benefit the end-consumer who pays less to access a product subject to either of these forms of license. In comparing these two forms of licenses, the paper hopes to determine whether one form is better than the other, and if so, from whose perspective—the consumer, the licensor or the licensee. In doing so, this paper compares the different prevailing efforts to embrace such licenses as well as the impact of such licenses on the industry.

Topic: Patents & Technology

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Noriega v. Activision/Blizzard: The First Amendment Right to Use a Historical Figure's Likeness in Video Games
Joshua Sinclair

Date posted: 11-17-2015

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 have applied the transformative use test but should have held that Manuel Noriega did not have a right of publicity for his place in Panama’s history.

Topic: Media & Communications

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The Evolution of Giving: Considerations for Regulation of Cryptocurrency Donation Deductions
Ashley Pittman

Date posted: 11-17-2015

This Issue Brief looks at the rapidly growing area of cryptocurrency donations to nonprofit organizations. Given the recent IRS guidance issued on taxation of Bitcoin, specifically its decision to treat cryptocurrencies as property, questions now arise as to how charitable contributions of the coins will be valued for tax deductions. Though Bitcoin resembles most other capital gain property, its volatility, general decline in value, anonymity, and potential for abuse require specific guidance on valuation and substantiation so as to handle its unique nature and prevent larger deductions for charitable contributions than those to which taxpayers are entitled.

Topic: eCommerce

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Authenticity and Admissibility of Social Media Website Printouts
Wendy Angus-Anderson

Date posted: 11-17-2015

Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets of cases and suggests that courts are not actually employing two distinct approaches. The Maryland Approach courts are not holding social media content to a higher standard than the Texas Approach courts, but are merely responding to a lack of evidence connecting the proffered content to the purported author.

Topic: Media & Communications

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The FTC Has a Dog in the Patent Monopoly Fight: Will Antitrust’s Bite Kill Generic Challenges?
Jennifer D. Cieluch

Date posted: 9-7-2015

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 usually found that these reverse-payment settlements did not violate antitrust laws, the Supreme Court recently held that they sometimes can, even if the settlement’s anticompetitive effects fall within the scope of the exclusionary potential of the patent. The Court tried to take the middle ground after rejecting several bright line rules promulgated by appellate courts, including the Third Circuit’s “quick look” presumption against reverse payment settlements and the Second, Eleventh, and Federal Circuit’s “scope of the patent” test. This note finds that the Supreme Court’s ruling will make the Hatch- Waxman legal landscape murky and, therefore, difficult for district courts to rule on the legality of reverse-payment settlements in the future. The ruling may hinder generics from challenging brandname manufacturers, a result that would certainly contravene the principle purpose behind the Hatch Waxman Act.

Topic: Patents & Technology, Antitrust

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Periodic Reporting in a Continuous World: The Correlating Evolution of Technology and Financial Reporting
Daniel C. Rowe

Date posted: 8-21-2015

The evolution of technology has drastically altered what it means to be a reporting company in the eyes of the Securities and Exchange Commission. Technological development has also played a large role in the shifting trend from periodic reporting to continuous reporting, as is particularly apparent in the evolution of the Form 8-K. It is true that the increasingly technological world of continuous reporting does not come without disadvantages. This issue brief, however, argues that despite the increased risks and challenges of continuous reporting, its net effect on disclosure, and the investing community generally, is positive. With that benefit in mind, this paper further suggests four new amendments to the Form 8-K.

Topic: Technology and Financial Reporting

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Understanding the Backlog Problems Associated with Requests for Continued Examination Practice
Sean Tu

Date posted: 8-17-2015

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 of examiner interviews, and a higher likelihood of transfer to a new examiner. This study suggests that the RCE problem may be much worse for some art units compared to others. Specifically, the RCE problem is unevenly distributed between certain art units with technology center 1600 (biotechnology and organic chemistry) suffering the most from unexamined RCEs, while technology center 2800 (semiconductors, electrical and optical systems and components) remain unaffected. This RCE backlog can result in a delay of approximately three years for some art units. Possible solutions to the RCE problem include creating a two-track examiner specialization program: one track focusing on drafting office actions and a second track focusing on finding relevant prior art. Another possible solution would be to create a new type of request to reopen prosecution after final to allow applicants to enter new narrowing amendments or add new declarations without adding new arguments. A final solution may be to place the RCE back in the examiner’s normal docket and not in the examiner’s special new docket.

Topic: Patents & Technology

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Pleading Patents: Predicting the Outcome of Statutorily Heightening Pleading Standards
Arjun Rangarajan

Date posted: 8-10-2015

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 in the endeavor of gatekeeping weak lawsuits, without serious adverse impact.

Topic: Patents & Technology

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The Case for CAPSL: Architectural Solutions to Licensing and Distribution in Emerging Music Markets
Cody Duncan

Date posted: 7-6-2015

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 diversity within the music industry, and therefore will underserve both artists and potential licensees. As such, this brief argues for the creation and adoption of a new standardized protocol for artists and labels to announce the availability of new content with attached standardized licensing terms for automated integration into the catalogs of new or existing digital music services. Such a protocol would allow for automated systems of pricing, distribution, and tracking to reduce transaction costs, increase market transparency, and commodify user participation.

Topic: Copyrights & Trademarks