This iBrief will present a hypothetical network that allows dissidents to transfer information outside the watchful eye of an oppressive government. It will argue that because a network operator meets the requirements of the safe harbor of section 512(c) of the Digital Millennium Copyright Act, the hosts of the network are immune from any vicarious copyright liability.

In recent months, different groups—pundits, politicians, and even an FCC Commissioner—have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the Fairness Doctrine is not appropriate to use on the Internet in its present form, the arguments for the Doctrine could affect the debate surrounding Net Neutrality, depending on how the Obama Administration implements Net Neutrality.

This article tells the story of what could have been an interesting and important shift in our approach to territoriality in the digitalized world. Europe had the chance to be the cradle of an unprecedented copyright experience - the creation of a quasi pan-continental license in the music field - but it might have lost that opportunity in the midst of non-binding recommendations and resolutions. This article argues this loss is due to the overreaching persistence of old paradigms, namely the principle of territoriality.

Commercial-skipping technology can liberate the consumer and make the television business more competitive. It rose to prominence with the advent of the digital video recorder (DVR), also known as the personal video recorder (PVR). PVRs have helped advertisers reach their target audience more effectively through personalized advertisements, and it has successfully pressured television networks and advertisers to innovate more appealing ways to induce consumers to buy advertised products. But even if this technology fails to enhance the business of television, television networks can still outpace commercial-skipping technology in an arms race. Through competitive pressure, such technology promotes innovation, progress, and a more competitive market without posing an undue burden on the entertainment industry.

Despite using one of the most sophisticated digital rights management systems currently available, the video game Spore was illegally downloaded approximately 1.7 million times between September and December of 2008, making it the most widely pirated game of 2008 by more than half a million downloads. This iBrief addresses several legal arguments that have been raised against a digital rights management system called "SecuROM," which is widely used by video game companies like Electronic Arts, the publisher of Spore. First, the iBrief discusses the comparisons that have been drawn between SecuROM and the controversial digital rights management technologies previously employed by Sony BMG Music Entertainment. Second, the iBrief addresses the question of whether highly restrictive implementations of SecuROM may be legally circumvented under the Digital Millennium Copyright Act. Third, the iBrief discusses the potential for using the Digital Millennium Copyright Act’s three-year rulemaking procedure to obtain certain exemptions for circumventing systems like SecuROM.

The Uniform Computer Information Transactions Act (UCITA) attempts to regulate a nonexistent market failure. Regulators must understand the two market relationships in the software industry, the producer-consumer relationship and the producer-thief relationship, before they can draft effective regulation. Drafting regulations that affect both relationships can lead to market disruptions at best and market failure at worst. An analysis of the two relationships reveals that there has not been a market failure that needs regulating; rather, there is a lag in technology that prohibits proper demarcation between the two market relationships. Regulators should wait for technology to advance before adopting any legislation similar to UCITA.

In a world where digital pirates freely roam the internet, seemingly plundering at will, the providers of digital content must find a way to protect their valuable assets. Digital fences afford that protection—but not very well. Fortunately (for content owners), 17 U.S.C. § 1201, passed as part of the Digital Millennium Copyright Act of 1998, was designed to fill the numerous gaps in those fences by forbidding activities designed to circumvent them. In its present state, however, § 1201 does not adequately serve that purpose. Substantial flaws in the language of the statute render it virtually powerless to thwart piracy. If § 1201 is to fulfill its intended role (without the need for creative judicial interpretation), it must be amended to rectify the discrepancies between Congress’ supposed intent and the language it chose.

The Federal Rules of Civil Procedure (the Rules) have long sought to limit abuses that developed under the traditional presumption favoring free discovery. The 2006 amendments to the Rules are specifically aimed at curbing abuses associated with electronically stored information (ESI), which has become the basic medium of business communications and has provided businesses with overall productivity benefits. The 2006 amendments introduce a new category of electronic evidence that is "not reasonably accessible" and allow a court to shift the related costs of discovery to the party requesting the information. Cost-shifting, however, creates an incentive for businesses to shelter sensitive data by making it "not reasonably accessible." This iBrief argues that the current tests created by the courts for cost-shifting should be reassessed and should include a benefit-shifting component that offsets business savings from using ESI as a storage medium. Rather than treating ESI as exceptional, the Rules should adopt a uniform approach that curbs abuses of all discovery.

As they pursue economic development, developing countries possess high demand for processes and technologies that have climate-friendly methods or alternatives. However, these nations currently face barriers to entry because of trade policies and intellectual property regulations that render procurement of these technologies cost-prohibitive. In light of the recent breakdown in negotiations at the United Nations climate conference in Bali to remove tariffs on green technology, a new approach to green technology diffusion should be considered in order to balance the demand among developing nations for fluid technology transfers with the profit-driven needs and intellectual property considerations of technology holders. A potential solution to overcome the high fixed costs of technology diffusion could involve the creation of a global exchange forum in which transnational green technology holders, green venture capitalists, and developing country entrepreneurs could broker for efficient allocation of investment, resources, and technologies.

The United States is embarking on a biotechnology drug revolution. In the last few decades, biotech drugs have saved millions of lives, and the market for these miracle cures continues to grow at an astronomical rate. Unfortunately, as the market for biotech drugs is skyrocketing, drug prices are following suit. As Congress strives to make these new drugs more affordable, it must not ignore significant safety concerns unique to these revolutionary therapies. Congress should follow the lead of the European Union to create an accessible pathway for generic forms of biotech drugs that includes strict regulatory measures to ensure drug safety and efficacy.

Technological advancement is widely viewed as an essential component to any effective climate change strategy. However, there is no consensus as to the degree to which the law should promote technological innovation and development. This iBrief analyzes government involvement in encouraging such technology and divides the various policies into four categories. On one end are policies that rely mainly on market forces to encourage scientific advancement naturally, requiring minimal government involvement. A second category of policies involves technological development promoted indirectly through laws addressing climate change generally. A third type of policy involves directly offering government funding and financing for technological research and development. These three methods are currently the most popular means of encouraging scientific development in this field. Recently, however, there have been increasing calls for major government action of the scale of such programs as the Apollo Project. This iBrief classifies such proposals as a fourth category of policies encouraging technological solutions to climate change: the creation of institutional structures dedicated to bringing about rapid, radical technological advancements.

When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right of access to evidence for DNA testing exists both broadly as well as under the defendant’s circumstances. This iBrief concludes that although a due process post-conviction right of access to evidence for DNA testing may exist under some circumstances, it does not exist under current constitutional jurisprudence in McKithen’s case.

The United States federal government’s attempts to curb Internet gambling are beginning to resemble a game of whack-a-mole. The Unlawful Internet Gambling Enforcement Act of 2006 (the “UIGEA” or “Act”) represents its most recent attack on Internet gambling. This iBrief first looks at U.S. attempts to limit Internet gambling and how those efforts have affected gambling law and business. It then discusses how the UIGEA works and highlights some of its major limitations. This iBrief argues that the UIGEA will not only fail to rein in online gambling, but that the U.S. federal government is treading an improvident course towards prohibition and will undermine U.S. policy concerns. Finally, this piece concludes by recommending that the U.S. abandon its current course and regulate online gambling.

The development of vast social networks through Massively Multiplayer Online Role-Playing Games has created in-game communities in which virtual assets have real-world values. The question has thus arisen whether such virtual assets are legal subjects of taxation. This iBrief will detail and discuss the various exclusions to taxable income, and analyze their application to the possibility of creating potential tax liability based on in-kind exchanges of virtual assets.

Linking law is barely a decade old. Over the course of this short period, a wide variety of approaches have come to light. In fact, different jurisdictions have come to different conclusions regarding similar issues. Recently, there has been a new addition to the jurisprudence. A Texas holding established that linking to copyright-protected content violates copyright. This iBrief argues that the reasoning in this decision is flawed. The opposite conclusion should have been reached by applying straightforward copyright analysis and by looking to recent case law regarding hyperlinking.

FCC regulations are among the most controversial administrative law regulations because of their impact on broadcast television. This iBrief analyzes the history of FCC regulation and highlights the problems associated with the current model. Applying theories of economics, this iBrief proposes solutions to the current problems of selective enforcement and vagueness in enforcement. While the Supreme Court recognized that FCC regulation is necessary, it is also necessary for there to be a clearer model for how the agency should be run.

Nanotechnology promises to revolutionize innovation in nearly every industry. However, nanomaterials’ novel properties pose potentially significant health and environmental risks. Views in the current debate over nanotechnology regulation range from halting all research and development to allowing virtually unregulated innovation. One viable regulatory solution balancing commercialization and risk is the adoption of a mandatory private-public insurance program.

The Internet, despite its relatively recent advent, is critical to millions of Americans’ way of life. Although the Internet arguably opens new opportunities for citizens to become more directly involved in their government, some scholars fear this direct involvement poses a risk to one of the Constitution’s most precious ideals: representative democracy. This iBrief explores whether the constitutional notion of representation is vulnerable to the Internet’s capacity to open new vistas for a more direct democracy by analyzing statistics and theories about why voters in the United States do or do not vote and by examining the inherent qualities of the Internet itself. This iBrief concludes that the Constitution will adapt to the Internet and the Internet to the Constitution, such that even if there are advances in direct democracy, representative democracy will not be unduly threatened.

When a domain name is registered, the registrant is given five days to cancel for a full refund. While the purpose of this grace period is to protect those who innocently err in the registration process, speculators have taken advantage of the grace period through a process called “domain tasting.” These “domain tasters” register hundreds of thousands of domain names and cancel the vast majority of them within the five-day grace period, keeping only those that may be valuable as placeholder advertising websites or to holders of trademark rights. This iBrief will outline the “domain tasting” process, analyze why it is a problem, and discuss solutions to the problem. Ultimately, it concludes that the five-day grace period is unnecessary because it serves little, if any, legitimate purpose.

The Supreme Court’s recent decision in MedImmune v. Genentech shifts the balance of power in license agreements from patent holders to their licensees. This iBrief outlines the potential implications of the new rules on all stages of patent prosecution and protection. Further, it evaluates remedial contract provisions patent holders may include in future license agreements and how these provisions may mitigate the decision’s effects on preexisting commercial relationships.

Two disasters have defined the turn of the 21st century for the nation: the terrorist assault of September 11, 2001 (“9/11”) and natural disaster Hurricane Katrina. Both events humbled the United States, confused the American public, and left its government searching for answers and vowing to be better prepared for the next national emergency. The events of 9/11 led to the creation of the Department of Homeland Security (“DHS”), the 9/11 Commission, and a new body of statutes and regulations. Reactions to Hurricanes Rita and Katrina similarly led to commotion at the Capitol and DHS and also resulted in proposals to better position the country to deal with the next natural catastrophe. With respect to terrorist attacks and natural disasters, human interference—whether public, private, non-governmental organizations or individual—influences a nation’s ability to respond and mitigate the gravity of resulting damage.

The rules of engagement in the brand-name versus generic-drug war are rapidly changing. Brand-name manufacturers face increasing competition from Canadian manufacturers of generic drugs, online drug companies, and Wal-Mart® Super Centers deciding to cash in by turning a piece of the generic prescription drug business into a huge marketing campaign with offerings of generic drugs for four dollar prescriptions. Other discount drug providers are likely to follow suit in hopes of boosting customer traffic and sales of their generic drugs. Now, more than ever before, attorneys representing owners of pharmaceutical patents need to be creative with their damages theories to maximize recovery and help their clients recoup the investments in research and development necessary to bring new and innovative drugs to the marketplace. This article suggests a novel theory of willful infringement to assist a patent owner in recovering treble damages and attorneys’ fees.

Using a variety of technological innovations, Google became a multi-billion dollar content-delivery business without owning or licensing much of the content that it uses. Google’s principal justification for why this strategy does not contravene the intellectual property rights of the copyright owners is the doctrine of fair use. However, over the last several years, some copyright owners began to push back and challenge Google’s strategy. Much of this litigation presents the courts with something of a conundrum. On the one hand, it is beyond dispute that Google’s services have great social utility. By organizing and making accessible an enormous volume of information on the Internet, Google facilitates broad access to a diverse array of material, a core value of the First Amendment. At the same time, Google’s actions do not always fit comfortably within traditional notions of fair use. In this respect, the Google cases present an opportunity to explore the relationship between copyright and the First Amendment; a subject that has received inadequate attention in the courts, and particularly the Supreme Court. How the apparent tension between the marketplace of ideas and the commercial marketplace is resolved may have significant impact on the development of Internet-based services designed to facilitate access to information, and this subject is the focus of this iBrief.

WALKING THE LINE: WHY THE PRESUMPTION AGAINST EXTRATERRITORIAL APPLICATION OF U.S. PATENT LAW SHOULD LIMIT THE REACH OF 35 U.S.C. § 271(f)

The advent of the digital era and the global market pose unique challenges to intellectual property law. To adapt, U.S. patent laws require constant interpretation in the face of rapidly changing technological advances. In AT&T Corp. v. Microsoft Corp., the Federal Circuit interpreted 35 U.S.C. § 271(f) in a technology-dependent manner in order to effectuate the purpose of the law with respect to global software distribution. However, the Federal Circuit failed to consider the presumption against extraterritorial application of U.S. law, and its decision now risks international discord and harm not only to the American software industry, but other U.S. industries as well. This iBrief critiques the lower court decisions in AT&T Corp. v. Microsoft Corp. in light of the presumption against extraterritoriality, and analyzes how the Supreme Court should apply the presumption in its review of the case.

WHERE WILL CONSUMERS FIND PRIVACY PROTECTION FROM RFIDS?: A CASE FOR FEDERAL LEGISLATION

With the birth of RFID technology, businesses gained the ability to tag products with practically invisible computer chips that relay information about consumer behavior to remote databases. Such tagging permits retailers and manufacturers to track the purchases, identities, and movements of their customers. In the absence of enforceable regulations, society risks being subjected to an unprecedented level of Orwellian surveillance. This iBrief addresses consumer privacy concerns stemming from the proliferation of RFID technology. It discusses why tort law, state legislation, FTC guidelines, and proposed regulations are insufficient methods to alleviate consumer privacy concerns and suggests amending various federal privacy laws, thereby prohibiting the underlying RFID tracking behavior.

IS KELLY SHIFTING UNDER GOOGLE'S FEET? NEW NINTH CIRCUIT IMPACT ON THE GOOGLE LIBRARY PROJECT LITIGATION

The Google Library Project presents what many consider to be the perfect fair-use problem. The legal debate surrounding the Library Project has centered on the Ninth Circuit's Kelly v. Arriba Soft. Yet recent case law presents new arguments for both sides of the Library Project litigation. This iBrief analyzes two Ninth Circuit district court decisions on fair use, Field v. Google, Inc. and Perfect 10 v. Google, Inc., and their impact on the Library Project litigation.

DOES INFORMATION BEGET INFORMATION?

Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility of fully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of intellectual property rights will, in the long run, increase the sum total of information not subject to ownership claims and therefore available as part of the cultural and technological base on which new growth and development can occur. Indeed, he claims that open information will grow according to the formula for compound interest, where the interest rate is 100% plus or minus a factor z supposedly related to creation incentives. This article demonstrates that Professor Wagner's mathematical analysis is simply wrong and does not lead to any of the conclusions he reaches concerning the growth of open information. It also shows both the difficulties and the dangers of the lay use of the language of mathematics in resolving complex social problems even if one does the math correctly.

T-MOBILE USA, INC. V. DEPARTMENT OF FINANCE FOR BALTIMORE CITY: WHAT THE LATEST SALVO IN DISPROPORTIONAL CELLULAR PHONE TAXATION MEANS FOR THE FUTURE

Seventeen percent of the average monthly cellular phone bill in 2004 was comprised of federal, state, and local taxes. As the number of wireless subscribers across the nation continues to increase, states, cities, and counties are increasingly seizing upon cellular taxation as a panacea for budget shortfalls. The Maryland Tax Court's recent decision in T-Mobile USA, Inc. v. Department of Finance for Baltimore City held state and county taxes on the sale of individual cellular lines as legal excise taxes rather than illegal sales taxes. This iBrief will highlight the origins of telecommunications taxation, examine the ruling in T-Mobile in detail, present the arguments in opposition to disproportional cellular taxation, and conclude by anticipating what the future might hold for the cellular industry.

NEWSGROUPS FLOAT INTO SAFE HARBOR, AND COPYRIGHT HOLDERS ARE SUNK

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.

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