Subscribe: Duke Law & Technology Review
http://law.wlu.edu/library/databases/feeds/journals/jnl611.xml
Preview: Duke Law & Technology Review

Duke Law & Technology Review



2006, Articles 16-20 (September 25 - December 4, 2006)



Published: Fri, 29 Dec 2006 16:35:10 EST

 



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

Fri, 29 Dec 2006 16:35:10 EST

2006, Articles 16-20 (September 25 - December 4, 2006)
2006 Duke L. & Tech. Rev. 0020 - 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

Fri, 29 Dec 2006 16:35:10 EST

2006, Articles 16-20 (September 25 - December 4, 2006)
2006 Duke L. & Tech. Rev. 0019 - 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

Fri, 29 Dec 2006 16:35:10 EST

2006, Articles 16-20 (September 25 - December 4, 2006)
2006 Duke L. & Tech. Rev. 0018 - 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?

Fri, 29 Dec 2006 16:35:10 EST

2006, Articles 16-20 (September 25 - December 4, 2006)
2006 Duke L. & Tech. Rev. 0017 - 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

Fri, 29 Dec 2006 16:35:10 EST

2006, Articles 16-20 (September 25 - December 4, 2006)
2006 Duke L. & Tech. Rev. 0016 - 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.