- Editor Title
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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)
Next-Generation Data Governance
Kimberly A. Houser and John W. Bagby
Date posted: 2-17-2024
The proliferation of sensors, electronic payments, click-stream data, location-tracking, biometric feeds, and smart home devices, creates an incredibly profitable market for both personal and non-personal data. It is also leading to an amplification of harm to those from or about whom the data is collected. Because federal law provides inadequate protection for data subjects, there are growing calls for organizations to implement data governance solutions. Unfortunately, in the U.S., the concept of data governance has not progressed beyond the management and monetization of data. Many organizations operate under an outdated paradigm which fails to consider the impact of data use on data subjects due to the proliferation of third-party service providers hawking their “check-the-box” data governance systems. As a result, American companies suffer from a lack of trust and are hindered in their international operations due to the higher data protection requirements of foreign regulators. After discussing the pitfalls of the traditional view of data governance and the limitations of suggested models, we propose a set of ten principles based on the Medical Code of Ethics. This framework, first encompassed in the Hippocratic Oath, has been evolving for over one thousand years advancing to a code of conduct based on stewardship. Just as medical ethics had to evolve as society changed and technology advanced, so too must data governance. We propose that a new iteration of data governance (Next-Gen Data Governance) can mitigate the harms resulting from the lack of data protection law in the U.S. and rebuild trust in American organizations.
Topic: eCommerce & Business, Data Governance
Date posted: 12-20-2023
Traditional fiat currencies managed by governments and central banks have had negative impacts on environmental, social, and governance (ESG) goals. Central banks in mature democracies pursue policies that prioritize economic growth and high employment. However, these policies often lead to inflation, eroding the savings and pension funds of average citizens and encouraging risky behavior by banks and entrepreneurs. The pursuit of endless growth is socially and environmentally unsustainable. Leaders in developing countries and dictatorships use expansive monetary policy to maintain their positions, further exacerbating the situation. Convertible fiat currencies moving across borders in untraceable transactions evade regulation and taxation, with trillions hidden in offshore tax havens. Virtual or crypto currencies on a blockchain can address these issues. Transactions on a public blockchain are transparent, traceable, and immutable, and monetary policy is controlled by algorithms, free from political influence. However, existing crypto currencies like Bitcoin and Ethereum have failed to align with ESG goals and have harmed the environment. They favor large capital holders and allow illicit money movements. Blockchain technology can be used differently, however. A virtual currency with strong governance, pegged to a currency basket, could be designed to build trust and appreciate in value, promoting savings, sustainability, and value preservation. Stringent KYC and AML procedures, along with transparent blockchain transactions, would simultaneously reduce illicit financial activities. The article outlines the key features of Smart Money, a new generation virtual currency eliminating all major shortcomings of traditional fiat currencies and of early generation crypto currencies.
Topic: eCommerce & Business, Patents & Technology
The GPTJudge: Justice in a Generative AI World
Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, and Molly (Yiming) Xu
Date posted: 12-1-2023
Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to hire forensic experts to address AI-generated evidence, the ability of juries to discern authentic from fake evidence, and whether GenAI will overwhelm the courts with AI-generated lawsuits, whether vexatious or otherwise. GenAI systems have the potential to challenge existing substantive intellectual property (“IP”) law by producing content that is machine, not human, generated, but that also relies on human-generated content in potentially infringing ways. Finally, GenAI threatens to alter the way in which lawyers litigate and judges decide cases. This article discusses these issues, and offers a comprehensive, yet understandable, explanation of what GenAI is and how it functions. It explores evidentiary issues that must be addressed by the bench and bar to determine whether actual or asserted (i.e., deepfake) GenAI output should be admitted as evidence in civil and criminal trials. Importantly, it offers practical, step-by-step recommendations for courts and attorneys to follow in meeting the evidentiary challenges posed by GenAI. Finally, it highlights additional impacts that GenAI evidence may have on the development of substantive IP law, and its potential impact on what the future may hold for litigating cases in a GenAI world.
Topic: eDiscovery, Media & Communications, Patents & Technology, Generative AI, Artificial Intelligence
Date posted: 9-9-2023
Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about a forensic method and possess a good faith belief that the method’s application in the case will be reliable before introducing the evidence at trial.
Topic: eDiscovery, Patents & Technology
Date posted: 3-26-2023
Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law.
Topic: Patents & Technology
Date posted: 3-26-2023
Over the last several years, the demand for socially responsible companies has exploded. Many states have responded to this demand by offering a new corporate form, the public benefit corporation (“PBC”), which arguably allows companies to prioritize social benefit in a way that traditional corporations cannot. The technology industry has adopted the PBC structure at higher rates than corporations in other industries. This Note offers reasons for the appeal of PBCs to corporations generally and to the technology sector in particular. This Note also explores why technology companies may be able to achieve the goals discussed without the need for PBCs.
Topic: eCommerce & Business
Date posted: 2-8-2023
Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision.
Topic: Patents & Technology, Health & Biotechnology
Date posted: 8-21-2022
Most multinational enterprises (MNEs) register their original trademarks in Roman letters in China upon entering the Chinese market. However, many fail to develop and register corresponding Chinese marks because they do not understand local culture and consumers, overvalue consumers’ presumed brand loyalty, or neglect the accompanying trademark issues. This failure enables trademark squatters to register and hold the Chinese marks for ransom or local competitors to free ride on foreign marks using their Chinese translations or transliterations. This Article first introduces the complexity of translating a foreign mark into Chinese, which concerns complex linguistic, cultural, and business challenges. Based on recent court decisions, this Article systematically analyzes the legal basis on which an MNE may claim to protect the Chinese equivalent of its original trademarks. This Article then provides essential business and legal implications of China’s trademark policy toward translating foreign-language marks into Chinese.
Topic: International, Copyright & Trademarks
Date posted: 8-7-2022
This Article examines urgent risks resulting from outer space activities under the current space law regime. Emerging literature alarmingly predicts that the risk of a catastrophe that ends the human species this century is approximately 10–25%. Continued space development may increase, rather than decrease, overall existential risk due in part to crucial and identifiable market failures. Addressing these shortcomings should take priority over the competing commercial, scientific, and geopolitical interests that currently dominate in space policy. Sensible changes, including shifting space into a closed-access commons as envisioned by the 1979 Moon Treaty, may help in achieving existential security.
Homography of Inventorship: DABUS and Valuing Inventions
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
Date posted: 1-9-2022
Topic: Patents & Technology, Health & Biotechnology
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
Federalism in the Algorithmic Age
Date posted: 6-24-2021
Topic: Patents & Technology
Tribal Lending After Gingras
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
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
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
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
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
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
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