Usenet newsgroups are swiftly becoming a popular vehicle for pirating digital music, movies, books, and other copyrighted works. Meanwhile, courts ignore Usenet's tremendous potential for copyright infringement. In Ellison v. Robertson, the Ninth Circuit Court of Appeals found that America Online's Usenet service might qualify for safe harbor under the Digital Millennium Copyright Act. According to the district court below, safe harbor would preclude a finding of secondary copyright infringement against America Online. However, the courts misinterpreted the safe harbor provisions. One safe harbor provision was misapplied and another was ignored altogether. This iBrief critiques the Ellison opinions and analyzes the application of the safe harbor provisions to Usenet operators.

WHY TECHNOLOGY PROVIDES COMPELLING REASONS TO APPLY A DAUBERT ANALYSIS TO THE LEGAL STANDARD OF CARE IN MEDICAL MALPRACTICE CASES

Traditionally, courts have applied a “customary practice” standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert's testimony on the standard of care, the testimony becomes a scientifically based testimony rather than an expert's notion of what is common practice in the medical profession.

WHEN IS EMPLOYEE BLOGGING PROTECTED BY SECTION 7 OF THE NLRA?

The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs.

THE CONSTITUTIONALITY OF WIPO'S BROADCASTING TREATY: THE ORIGINALITY AND LIMITED TIMES REQUIREMENTS OF THE COPYRIGHT CLAUSE

Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress's Copyright Clause power: the originality and “limited times” requirements. But Congress has a trump card—the Commerce Clause. This iBrief argues that to give proper effect to the limitations of the Copyright Clause, Congress should not be allowed to implement copyright-like legislation under the less restrictive Commerce Clause.

THE END OF NET NEUTRALITY

In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as “information services.” While many hail this move as a victory for competition and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of “net neutrality” and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection.

WHAT, IF ANY, ARE THE ETHICAL OBLIGATIONS OF THE U.S. PATENT OFFICE?: A CLOSER LOOK AT THE BIOLOGICAL SAMPLING OFINDIGENOUS GROUPS

The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in light of such “ethically questionable” patents, the U.S. Patent Office has failed to implement any procedures to identify or curb patent applications involving indigenous peoples.

INJUNCTION JUNCTION: REMEMBERING THE PROPER FUNCTION AND FORM OF EQUITABLE RELIEF IN TRADEMARK LAW

Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders.

DOWNLOAD, STREAM, OR SOMEWHERE IN BETWEEN: THE POTENTIAL FOR LEGAL MUSIC USE IN PODCASTING

Podcasting is an increasingly popular new digital technology with the potential to be a great conduit of expression. Currently, the use of music is limited in podcasting due in large part to uncertainty as to what rights must be licensed before copyrighted music can be used legitimately. This iBrief examines what legal rights are implicated by podcasting by analyzing U.S. copyright law and comparing related technologies. This iBrief concludes that onerous licensing requirements are unnecessary, and for podcasting to realize its potential, a simple licensing framework must be established.

SHIELDING JOURNALIST-"BLOGGERS": THE NEED TO PROTECT NEWSGATHERING DESPITE THE DISTRIBUTION MEDIUM

The failure to agree on a sufficiently narrow definition of “journalist” has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of “journalist” can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits must be set to prevent abuse of such protection.

PROTECTING INTELLECTUAL PROPERTY IN THE DEVELOPING WORLD: NEXT STOP--THAILAND

This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries.

UNNECESSARY INDETERMINACY: PROCESS PATENT PROTECTION AFTER KINIK V. ITC

In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district courts do not apply to exclusion actions before the International Trade Commission. This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit's decision is inconsistent with the ITC's longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court's suggestion that the ITC should be given broad discretion to resolve conflicts between the patent statute and the Tariff Act is at odds with the Chevron doctrine, and (3) if the ITC employs the broad discretion that Kinik confers to it by excluding more foreign art than Federal district courts could lawfully exclude under the patent statute, the enforcement of domestic patent policy in the United States could conceivably violate obligations of non-discrimination (Article 27.1) and burden-shifting (Article 34) imposed by the TRIPS Agreement.

MINING THE COMMON HERITAGE OF OUR DNA: LESSONS LEARNED FROM GROTIUS AND PARDO

The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius's Mare Liberum to determine whether international law precedent indeed bars the private appropriation of a common heritage. Second, the iBrief will revisit the framework developed by Pardo for the exploitation of the mineral resources of the ocean floor and analyze whether it could serve as a model for an international framework for sharing the benefits of current genome research.

PATENT MISUSE IN PATENT POOL LICENSING: FROM NATIONAL HARROW TO "THE NINE NO-Nos" TO NOT LIKELY

Courts and the Justice Department's Antitrust Division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit's decision raises the question of just how much remains of the doctrine of patent misuse.

WHEN DISCRIMINATION IS GOOD: ENCOURAGING BROADBAND INTERNET INVESTMENT WITHOUT CONTENT NEUTRALITY

Cable television and traditional telephone companies are increasingly offering the same set of services: telephone, television, and broadband Internet access. Competition between these two types of companies would ordinarily require them to improve these services, but unless broadband providers have the ability to discriminate on the basis of content and charge Internet video providers that compete with their own video services, the growth of the Internet will be stunted, as broadband providers will not improve the capacity of their networks.

INTERNET SALES TAXES FROM BORDERS TO AMAZON: HOW LONG BEFORE ALL OF YOUR PURCHASES ARE TAXED?

What so many internet consumers believe to be tax-free is actually subject to a state use tax. Faced with pressure from states that realize very little of the use tax owed, many online retailers, such as Wal-mart, "voluntarily" collect sales taxes from their customers. But a recent California Appeals Court decision, Borders Online v. State Board of Equalization, could mark a shift towards more prevalent, if not universal, taxation of internet retail.

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