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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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Homography of Inventorship: DABUS and Valuing Inventions
Jordana Goodman

Date posted: 5-16-2022

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for failing to understand the divergences that could result in patent invalidation. This Article adds to the literature by addressing Thaler’s tireless inventorship advocacy, highlighting that Thaler uses his position of privilege to argue for inventorship acknowledgement of his machine and simultaneously to relinquish his own inventorship recognition. To emphasize, there is no existing caselaw except the DABUS case where a potential inventor has argued for the acknowledgement of another inventor and simultaneously relinquished their own recognition – whether that unacknowledged inventor was human or not human. Thaler’s advocacy amplifies the need for continued conversation regarding closing the patent inventorship gap for women and underrepresented minorities of color, who are too often tokenized and marginalized in STEM and in the patent process. By bringing the definition of inventor to the forefront, the DABUS case represents more than just a case of AI inventorship: it is a potential gateway to provide language and arguments to frame conversations about inventorship equity. In particular, the unique instance of Thaler’s inventorship advocacy for his machine prompts questions about why inventors from privileged positions do not advocate for inventors from historically marginalized backgrounds. Based on a review of patent case law and sociology studies concerning power dynamics and communal recognition, this Article provides recommendations to address this issue and accelerate the stagnant process of achieving inventorship equity.

Topic: Patents & Technology

 

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Personalized Smart Guns: A Futuristic Dream or a Pragmatic Solution?
Andres Paciuc

Date posted: 1-9-2022

Topic: Patents & Technology, Health & Biotechnology

 

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Food for Thought: Intellectual Property Protection for Recipes and Food Designs
Kurt M. Saunders and Valerie Flugge

Date posted: 9-19-2021

As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and food designs, along with broader issues relating to how these rights may overlap and their implications for competition.

Topic: Copyrights & Trademarks, Patents & Technology

 

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Federalism in the Algorithmic Age
Chad Squitieri

Date posted: 6-24-2021

Topic: Patents & Technology

 

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Tribal Lending After Gingras
Max King

Date posted: 5-13-2021

Online payday lenders pose serious risks for consumers. Yet, for years, these lending companies have skirted state regulation by pleading tribal sovereign immunity. Under this doctrine, entities that are so affiliated with tribal nations that they are “an arm of the tribe” are immune from suit. Without comprehensive federal regulation, tribal sovereign immunity has served as a trump card at the pleading state for online payday lenders. The Note argues that change may be on the horizon. In the recent decision Gingras v. Think Finance, the Second Circuit held that the Supreme Court’s holding in Michigan v. Bay Mills Indian Community permitted injunctive suits against tribal affiliates, acting in their official capacity off reservation, based on state law. If other courts adopt the Second Circuit’s reasoning, states and consumers will be far better equipped to tackle online payday lenders.

Topic: eCommerce, Media & Communications

 

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Look What You Made Her Do: How Swift, Streaming, and Social Media Can Increase Artists' Bargaining Power
Emily Tribulski

Date posted: 5-12-2021

Music and technology have always been intertwined and recently the developments of streaming and social media have opened the door for artists to elevate their place in the music industry. The growth of social media engagement is undeniable and in 2016 streaming platforms led to the music industry’s first earnings increase in fifteen years, with double digit gains each year since—a change to the status quo that cannot be ignored. The technological moment provided by streaming and social media gives lesser-known artists, especially when they are backed by superstars, a unique opportunity to challenge traditionally label friendly record deals. These technologies provide artists with the ability to grow their fanbase and increase their bargaining power before reaching the negotiation table with a label—giving them more leverage to maintain ownership of their music and receive more artist friendly contracts.

Topic: Technology, Social Media, Music Streaming

 

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A Fresh Start: Surveillance Tech and The Modern Law Firm
Titus R. Willis

Date posted: 3-12-2021

The legal community is rapidly evolving: firms are more beholden to clients than ever, associates are growing more competitive with one another, and younger firm employees are more willing than ever to subject themselves to surveillance from their employers. These evolutions come alongside a boom in surveillance technology. Tech companies now provide services that can track every keystroke a lawyer makes on a company computer, analyze the content of their computer screens, or even develop algorithms to measure employee productivity. How does the modern law firm respond to these new technologies? How do they weigh their obligations to clients with the privacy considerations of their employees? This Note examines these key questions and makes a comment about the honor of the legal profession along the way.

Topic: Surveillance Tech, Law, Technology

 

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Keeping Up With China: CFIUS and the Need to Secure Material Nonpublic Technical Knowledge of AI/ML
Anthony Severin

Date posted: 3-7-2021

Artificial intelligence (AI) and machine learning (ML) technologies will shape societies by the values they are programmed to respect. In part because of anti-competitive Chinese practices such as forced transfers of intellectual property (IP), companies based in the U.S. have lost the ability to compete in several fields. To avoid losing competitiveness in AI/ML sectors, the Committee on Foreign Investment in the United States (CFIUS) should promulgate rules blocking Chinese investors from acquiring ownership interests in U.S. companies when that ownership would allow access to material nonpublic technical knowledge of AI/ML. Such a categorical blacklist approach will limit forced transfers of IP and increase the influence of American values on the development of AI/ML technology.

Topic: CFIUS, Artificial Intelligence, Machine Learning

 

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Consumers Beware: How Are Your Favorite "Free" Investment Apps Regulated?
Siqi Wang

Date posted: 2-21-2021

The proliferation of free or low-cost investment apps has disrupted the financial industry in recent years. Major brokerage firms have been pressured to go to zero fees due to intense competition from their fintech counterparts. While these apps have extended their products and services to those underserved by traditional brokers, some of their practices raise consumer protection concerns. Namely, the practice of “payment for order flow,” which helps fintech startups sustain a zero-commission model, could lead to subordinating customers’ best interest to market makers who acquire their retail orders from these fintech startups. Further, “cash management accounts,” newly popular among fintech startups with an ambition to compete with chartered banks raise questions about the use of idle customer assets and the protections afforded to these accounts in case of liquidation. This Note considers the products and services of these investment apps in the context of existing U.S. regulations and regulators for broker-dealers, investment advisors, and chartered banks. To illustrate this, this Note analyzes the potential consumer financial protection issues arising out of these fintech-based investment platforms’ distinctive business models and the services they provide.

Topic: Technology, Investing

 

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Cyber and TRIA: Expanding the Definition of an "Act of Terrorism" to Include Cyber Attacks
Nehal Patel

Date posted: 2-21-2021

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.

Topic: CyberCrime, International

 

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Ripple Effects: How In Re Ripple Labs Inc. Litigation Could Signal The Beginning of the End of the Payment Platform
Lindsay Martin

Date posted: 2-21-2021

Ripple Labs provides an international payment network that allows financial institutions to transfer money more cheaply and quickly than traditional international payments. Ripple’s native digital currency, XRP, supports global payments by acting as intermediate currency between different currencies, eliminating correspondent bank’s need to hold deposits in foreign currencies. In an ongoing class action lawsuit, XRP purchasers claim that the digital asset qualifies as a security under federal securities laws and that Ripple illegally offered and sold XRP as an unregistered security. Given Ripple’s rising prominence as a tool for financial institutions, this pending case will impact cryptocurrency markets and international payments. Because XRP is most likely a security subject to regulation by the Securities and Exchange Commission (SEC), this matter poses an existential threat to the Ripple network. This note examines the legal issues leading up to the Ripple litigation and explains why XRP is most likely a security. It concludes by discussing the SEC’s likely approach to Ripple’s unregistered Initial Coin Offering (ICO).

Topic: Technology, Digital Currencies

 

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High Health Care Spending and Developing Technology: Proton Beam Therapy
Yoojeong Jaye Han

Date posted: 5-18-2020

Topic: technology, health care, therapy, prostrate cancer

 

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Any Safe Harbor in a Storm: SESTA-FOSTA and the Future of § 230 of the Communications Decency Act
Charles Matula

Date posted: 5-18-2020

Topic: communication, internet, illegal sec trafficking, online, free speech

 

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A Copy of a Copy of a Copy: Internet Mimesis and the Copyrightability of Memes
Elena Elmerinda Scialabba

Date posted: 4-17-2020

Topic: Copyright, internet, memes

 

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Opting Out: Biometric Information Privacy and Standing
Michelle Jackson

Date posted: 4-17-2020

Topic: biometric privacy, privacy, standing

 

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Measuring Baseball’s Heartbeat: The Hidden Harms of Wearable Technology to Professional Ballplayers
John A. Balletta

Date posted: 4-17-2020

Topic: wearable, technology, baseball, MLB, devices

 

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Autonomous Systems as Legal Agents: Directly by the Recognition of Personhood or Indirectly by the Alchemy of Algorithmic Entities
Dalton Powell

Date posted: 4-14-2020

Topic: autonomous, algorithmic, agency, personhood, technology

 

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THE DANGER OF FACIAL RECOGNITION IN OUR CHILDREN’S CLASSROOMS
Nila Bala

Date posted: 3-26-2020

Topic: facial recognition, technology, surveillance, network, education, privacy

 

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Esports, Player Positions, and the Benefits Of Unionization
Roshan Patel

Date posted: 1-10-2020

Topic: internet, online, video games, esports, unionization, sports

 

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IMPLEMENTING ETHICS INTO ARTIFICIAL INTELLIGENCE: A CONTRIBUTION, FROM A LEGAL PERSPECTIVE, TO THE DEVELOPMENT OF AN AI GOVERNANCE REGIME
Axel Walz and Kay Firth-Butterfield

Date posted: 12-20-2019

The increasing use of AI and autonomous systems will have revolutionary impacts on society. Despite many benefits, AI and autonomous systems involve considerable risks that need to be managed. Minimizing these risks will emphasize the respective benefits while at the same time protecting the ethical values defined by fundamental rights and basic constitutional principles, thereby preserving a human centric society. This Article advocates for the need to conduct in-depth risk-benefit-assessments with regard to the use of AI and autonomous systems. This Article points out major concerns in relation to AI and autonomous systems such as likely job losses, causation of damages, lack of transparency, increasing loss of humanity in social relationships, loss of privacy and personal autonomy, potential information biases and the error proneness, and susceptibility to manipulation of AI and autonomous systems.

Topic: Artificial Intelligence, technology, ethics, cyber, applications, privacy