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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.
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)
What's It Worth to Keep a Secret?
Gavin C. Reid, Nicola Searle, and Saurabh Vishnubhakat
Date posted: 5-29-2015
This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation. Another reason is that criminal trade secret law is relatively young, and the usual corrective approaches to valuation in civil trade secrecy are not synonymous with the greater distributive concerns of criminal law. To begin to fill this gap, we examine over a decade of trade secret protection and valuation under the U.S. Economic Espionage Act of 1996. From original data on EEA prosecutions, we show that trade secret valuations are lognormally distributed as predicted by Gibrat’s Law, with valuations typically low on the order of $5 million but reaching as high as $250 million. There is no notable difference among estimates from various valuation methods, but a difference between high and low estimates on one hand and the sentencing estimates on the other. These findings suggest that the EEA has not been used to its full capacity, a conclusion buttressed by recent Congressional actions to strengthen the EEA.
Topic: Patents & Technology
Date posted: 3-31-2015
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 extremely beneficial service in the era of e-commerce. This Issue Brief argues that, as currently written, the Electronic Fund Transfer Act, implemented by Regulation E, does not adequately protect consumers using these alternative payment services. Regulation E is insufficiently specific and provides circular language in its key definitions, including those for the terms “financial institution” and “account.” These deficiencies could leave consumers engaged with alternative payment services in the unique position of facing unlimited liability for losses resulting from unauthorized electronic fund transfers from their alternative payment service account. Thus, this Issue Brief argues that in order to ensure that Regulation E is written broadly enough to apply to all the functions of PayPal, the CFPB should clarify its language.
The Death of Fair Use in Cyberspace: YouTube and the Problem With Content ID
Taylor B. Bartholomew
Date posted: 3-3-2015
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 all revenue streams, for all parties, regardless of the legitimacy of the underlying claim. Using the plight of one video game reviewer known as “Angry Joe” as a paradigmatic example of the problems that Content ID can create, this Issue Brief argues that in its present form, Content ID has had disastrous consequences for the doctrine of fair use, YouTube itself, and ultimately, the very spirit of copyright law. By shifting the neutral presumption accompanied with fair use against the uploader, Content ID effectively overrides judicial precedent.
Topic: Copyrights & Trademarks
Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act
Christopher J. Borchert, Fernando M. Pinguelo, and David Thaw
Date posted: 1-5-2015
In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different technologies. This Article argues that Congress should revisit the SCA and adopt a single, technology-neutral standard of protection for private communications content held by third-party service providers. Furthermore, it suggests that Congress specifically intended to limit the scope of the Third-Party Records Doctrine by creating greater protections via the SCA, and thus courts interpreting existing law should afford protection to new technologies such as social media communications consistent with that intent based on individuals’ expressed privacy preferences.
Tragedy of the Regulatory Commons: LightSquared and the Missing Spectrum Rights
Thomas W. Hazlett and Brent Skorup
Date posted: 12-24-2014
The endemic underuse of radio spectrum constitutes a tragedy of the regulatory commons. Like other common interest tragedies, the outcome results from a legal or market structure that prevents economic actors from executing socially efficient bargains. In wireless markets, innovative applications often provoke claims by incumbent radio users that the new traffic will interfere with existing services. Sometimes these concerns are mitigated via market transactions, a la “Coasian bargaining.” Other times, however, solutions cannot be found even when social gains dominate the cost of spillovers. In the recent “LightSquared debacle,” such spectrum allocation failure played out. GPS interests that access frequencies adjacent to the band hosting LightSquared’s new nationwide mobile network complained that the wireless entrant would harm the operation of locational devices. Based on these complaints, regulators then killed LightSquared’s planned 4G network. Conservative estimates placed the prospective 4G consumer gains at least an order of magnitude above GPS losses. “Win win” bargains were theoretically available, fixing GPS vulnerabilities while welcoming the highly valuable wireless innovation. Yet transaction costs—largely caused by policy choices to issue limited and highly fragmented spectrum usage rights (here in the GPS band)—proved prohibitive. This episode provides a template for understanding market and non-market failure in radio spectrum allocation.
Topic: Media & Communications
Date posted: 12-10-2014
Sony has included a “share” button on the next version of their popular PlayStation video game system. This feature is meant to allow players to record and share videos of their gameplay. This service shares similarities with the controversial “record” button that Sony included with its Betamax players over thirty years ago. The Betamax player was the subject of the landmark case Sony v. Universal, a foundational case for the modern application of copyright law to new technology. This Issue Brief examines how this “share” feature would fare under the framework laid out by Sony v. Universal and other evolutions in copyright law.
Topic: Copyrights & Trademarks
Date posted: 12-1-2014
Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder or other brain defect. The importance of these advancements is particularly evident in the context of criminal law, where defendants are able to dispute their culpability for crimes committed where they lack the capacity to form criminal intent. Thus, in theory, a neuroimage depicting defective brain functioning could demonstrate a defendant’s inability to form the requisite criminal intent. Due to early successes in high-profile cases where advanced neuroimaging was used in this way, many researchers believe that the use of neuroimages to substantiate claims of diminished capacity and insanity is a viable option for criminal defendants. This Issue Brief argues, however, that though the use of neuroimages may have a positive effect on outcomes in theory, in actuality, the use of neuroimages will only have a negligible impact on sentencing outcomes.
Topic: Health & Biotechnology
Date posted: 11-12-2014
Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have struggled to keep pace with a changing technological landscape. Indeed, courts around the country have issued a disparate array of holdings on the issue of warrantless cell phone tracking. This lack of judicial uniformity has led to confusion for both law enforcement agencies and the public alike. In order to protect reasonable expectations of privacy in the twenty-first century, Congress should pass legislation requiring law-enforcement agencies to obtain a warrant based upon probable cause before they can track a cell phone except in a limited set of time-sensitive situations and emergencies. This Issue Brief describes the technology police use to track cell phones, discusses the need for federal legislation, concludes that current Fourth Amendment jurisprudence is inadequate to address cell phone tracking, analyzes two bills dealing with “geolocation information” privacy that legislators have introduced in Congress, and ultimately concludes that one of those bills is superior to the other.
Date posted: 11-8-2014
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 Board found the employer in question to have committed multiple unfair labor practices when it fired five employees over a series of Facebook posts due to violating the employer’s zero-tolerance no bullying policy. This article argues that the majority opinion of the Board misapplied Lafayette Park Hotel’s test for whether employer conduct “would reasonably tend to chill employees” from legitimate, protected uses of their §7 rights. This article explains the two largest errors in the Board’s decision: (1) a failure to identify a missing, important element for concerted activity protection under §7, the nexus between employee discussion and contemplated group action, and (2) asserting an “inferred group intent” existed that was “implicitly manifest” which linked the employees’ Facebook posts to contemplated group action protected under §7. Members of the entire Board, as well as other legal scholars writing on this topic, have been guilty at different times of simplifying social media to being like a “virtual water cooler” for the 21st century. The facts in Hispanics United show why this analogy does not work: rather than a short face-to-face conversation with a finite, known audience in the space of minutes, it was a series of written messages plopped down in sequential order throughout an entire day, written for an audience of unknown size and make-up that may not even include the co-workers it ostensibly addressed. As Hispanics United helps illustrate, the proper handling of employer retaliation on social media remains the sensible application of the established nexus requirement for finding concerted activity.
Topic: Media & Communications
Date posted: 11-8-2014
By the time the U.S. Supreme Court decided Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. in 2005, Internet users around the globe who engaged in copyright infringement had already turned to newer, alternative forms of peer-to-peer filesharing. One recent development is the “seedbox,” a virtual private server rentable for use to download and upload (“seed”) files through the BitTorrent protocol. Because BitTorrent is widely used for both non-infringing and infringing purposes, the operators of seedboxes and other rentable BitTorrent-capable virtual private servers face the possibility of direct and secondary liability as did the defendants in Grokster and more recent cases like UMG Recordings, Inc. v. Shelter Capital Partners LLC and Viacom Intern., Inc. v. YouTube, Inc. This Issue Brief examines whether the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) may shield virtual private server providers with customers running BitTorrent clients from potential liability for copyright infringement. It argues that general virtual private server providers are likely to find refuge in the safe harbor provisions as long as they conscientiously comply with the DMCA. In contrast, virtual private server providers specifically targeting BitTorrent users (“seedbox providers”) are much less likely to receive DMCA safe harbor protection.
Topic: Copyrights & Trademarks
Date posted: 10-4-2014
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 upload files and to share them with select users. In an attempt to avoid liability, MEGA locally encrypts all files on the user’s computer before they are uploaded to the site. The private key and public key used to encrypt and decrypt the file are retained solely by the user; MEGA gets no part of that information. This, Dotcom argues, will shift the entirety of the copyright onus to the user. This Issue Brief analyzes the protections afforded cyberlocker services like MEGA by the DMCA, including tensions raised in actual litigation. This Issue Brief argues that, while an ex ante secondary-liability analysis is difficult due to its contextual nature, MEGA’s use of user-controlled encryption (UCE), deduplication, and distributed host servers may lend to an affirmative finding of liability.
Topic: Copyrights & Trademarks
Date posted: 7-21-2014
Publishers have spent the last decade and a half struggling against falling prices for digital goods. The recent antitrust case against Apple and the major publishers highlights collusive price fixing as a potential method for resisting depreciation.
This Article examines the myriad ways in which digital distribution puts downward pressure on prices, and seeks to determine whether or not collusive price fixing would serve as an appropriate response to such pressure given the goals of the copyright grant. Considering retailer bargaining power, increased access to substitutes, the loss of traditional price discrimination methods, the effects of vertical integration in digital publishing, and the increasing competitiveness of the public domain, I conclude that the resultant downward price pressure might in fact significantly hamper the commodity distribution of digital goods.
I remain unconvinced, however, that price fixing is an appropriate solution. The copyright grant affords rights holders commercial opportunities beyond simple commodity distribution. These other methods for commercializing e-goods suggest to me that current pricing trends are not indicative of market failure, but rather of a changing marketplace.
Topic: Copyrights & Trademarks
The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music
Matthew D. Bunker and Clay Calvert
Date posted: 6-8-2014
Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis.
Topic: Copyrights & Trademarks
More From the #Jury Box: The Latest on Juries and Social Media
Amy St. Eve, Charles Burnes, and Michael Zuckerman
Date posted: 2-24-2014
This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, we have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media. Our results support the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media. We conclude with a set of recommended best practices for using a social-media instruction.
Date posted: 1-17-2014
Balancing a duty to a tribunal and a duty to a client can paralyze a lawyer. The task raises difficult questions about how to reconcile competing obligations as an advocate and as an officer of the court. Individuals licensed to prosecute patent applications must decide how to honor both their obligations to the Patent and Trademark Office (PTO) and their obligation to successfully prosecute patent applications. This burden can result in willful blindness, where the patent attorney or patent agent (“patent practitioner”) limits inquiry into information that may bar a patent application. The recent Federal Circuit opinion in Therasense may have eliminated the judicial “duty to inquire” doctrine that kept these obligations in balance. This Issue Brief argues that there is a need to protect against willful blindness and proposes a resurrection of the eliminated doctrines.
Date posted: 1-14-2014
“Virtual” molecular compounds, created in molecular modeling software, are increasingly useful in the process of rational drug design. When a physical compound is patented, however, virtual use of the compound allows researchers to circumvent the protection granted to the patentee. To acquire protection from unauthorized use of compounds in their virtual form, patentees must directly claim the virtual compound. But Supreme Court decisions such as Bilski v. Kappos and Mayo Collaborative Services v. Prometheus Laboratories, Inc. call into question whether virtual compound claims are patentable subject matter under § 101. Using the guidance offered by the Supreme Court and Federal Circuit, this Issue Brief argues that virtual compound claims are not abstract ideas and therefore, consistent with patent policy, qualify as patentable subject matter.
Date posted: 12-30-2013
On the first day of each year, Public Domain Day celebrates the moment when copyrights expire, and books, films, songs, and other creative works enter the public domain, where they become, in Justice Brandeis’s words, “free as the air to common use.” Educators, students, artists, and fans can use them with neither permission nor payment. Online archives can digitize and make them fully available without the threat of lawsuits or licensing demands. Sadly, in the United States, as a result of copyright term extensions, not a single published work will enter the public domain in 2014. In fact, almost no works created during most readers’ lifetimes will become completely free for them to redistribute and reuse, unless the rights holders affirmatively decide otherwise. In this Article, I will briefly trace the history and consequences of this legally imposed impoverishment of the public domain. But, I argue, this is only part of the story. Increasingly, private initiatives are trying to build zones of legal freedom that simulate some attributes of the public domain. At the same time, there are global copyright reform efforts to limit the negative effects of term extension, at least with regard to “orphan works”—those that have no identifiable or locatable copyright holder. Although these efforts are no substitute for a more complete reform of copyright, collectively, they do transform the legal situation substantially. Thus, while Public Domain Day in the United States may seem like an empty celebration, it is also a reminder of this newfound complexity in our copyright landscape.
After Prometheus, Are Human Genes Patentable Subject Matter?
Douglas L. Rogers
Date posted: 5-6-2013
On April 15, 2013, the U.S. Supreme Court heard oral arguments in Association for Molecular Pathology v. Myriad Genetics, Inc. on the question, “Are human genes patentable?” This article argues that human genes are not patentable and that isolating a gene from its surroundings in a human body—or creating synthetically what exists in nature as DNA—does not cause the DNA to become patentable subject matter. The isolated DNA segments of claim 1 have the identical nucleotide sequence and the same function as native DNA, and the isolated DNA of claim 1 do not reflect the marked changes required under Chakrabarty, or the inventive step required under Prometheus, to change an unpatentable product of nature into patentable subject matter. Claim 2 describes those nucleotides in the DNA sequence that code for the polypeptide identified in the Myriad Genetics patent specification and simply reflects the genetic code, an unpatentable law of nature. Since no inventive step has been added to the law of nature, claim 2 constitutes unpatentable subject matter under Prometheus. The Federal Circuit’s contrary decision in Myriad Genetics disregards 150 years of Supreme Court cases that physical phenomena found in nature and laws of nature are not patentable subject matter and threatens to enclose building blocks of nature under federal patent law. The Supreme Court should reverse the Federal Circuit’s decision in Myriad Genetics on claims 1 and 2.
Topic: Prometheus, Human Genes, Patentable Subject Matter
Date posted: 2-6-2013
After a lengthy premarket approval process, the Food and Drug Administration (FDA) has just deemed AquAdvantage Salmon, a fast-growing, genetically engineered salmon, safe for human consumption. AquAdvantage Salmon is the first genetically engineered animal designed for human consumption to go to market in the United States. Because there have been no significant changes to the statutory or regulatory framework governing agricultural biotechnology since it was established in the 1980s, the FDA reviews applications of genetically engineered animals under the New Animal Drug Application (NADA) provisions of the Federal Food, Drug, and Cosmetic Act (FDCA). The FDA’s treatment of genetically engineered food as a new animal drug has been criticized due to potential environmental and human health risks, and because of a lack of transparency throughout the regulatory process. After providing an overview of the premarket approval process, this Issue Brief argues that even under the NADA provisions, the FDA’s premarket approval risk assessment should be more transparent. In particular, the justification for trade secret status of relevant biotechnology is undermined, if not extinguished, by the need for public consideration of the biotechnology’s safety and effectiveness after a certain time in the approval process. Furthermore, the comment period prior to advisory committee meetings should be lengthened to allow for greater scientific input on safety and effectiveness, and an independent body should be created to communicate with the public about food safety.
Topic: Health & Biotechnology