Law Commons^™

Baseball's Antitrust Exemption, Michael H. Juarez

UC Law SF Communications and Entertainment Journal

Major League Baseball (Baseball) traditionally has enjoyed an exemption from antitrust laws even though Baseball is a business that clearly engages in interstate commerce. This antitrust immunity has allowed owners to restrict franchise expansion and relocation as well as to shackle players to a given team by using the reserve system. 1993 congressional hearings indicate that Congress has maintained the exemption in exchange for Baseball acting in the best interests of the American public. However, incidents over the past few years point to Baseball's repeated disregard of the public interest. This Note contrasts the relevant case law and congressional response …

Emerging Antitrust Issues Affecting The Computer Industry, Kelly A. O'Connor

UC Law SF Communications and Entertainment Journal

Computer industry marketing practices have been subject to frequent challenge under U.S. antitrust laws since the early 1980s. These challenges have principally been based on tying arrangement analysis under section 1 of the Sherman Act and section 3 of the Clayton Act, or monopolization under section 2 of the Sherman Act. This article discusses the background of the Supreme Court's treatment of computer industry marketing practices under U.S. antitrust law, establishes qualifications for acceptable marketing practices by reviewing the recent Supreme Court decisions Eastman Kodak Co. v. Image Technical Services and Data General Corp. v. Grumman System Support Corp., and …

The Know-How Gap In The Trips Agreement: Why Software Fared Badly, And What Are The Solutions, J. H. Reichman

UC Law SF Communications and Entertainment Journal

The TRIPS Agreement establishes universal minimum standards of intellectual property protection that will enable software producers to repress the wholesale duplication of their products in the global marketplace. These standards, however, will not effectively require World Trade Organization member states to issue software patents or to provide copyright protection for the functionally determined components of computer programs that account for most of their commercial value. Nor does this Agreement prevent the reverse engineering of technical ideas by honest means if competitors express their analytical results in independently created programs.

This Article discusses the impact of the TRIPS provisions governing patents, …

American Geophysical Union V. Texaco: Is The Second Circuit Playing Fair With The Fair Use Doctrine, Shannon S. Wagoner

UC Law SF Communications and Entertainment Journal

In American Geophysical Union v. Texaco, the Second Circuit held that a corporate employee's unauthorized photocopying of eight journal articles for personal research and reference is not a fair use under the Copyright Act. This decision tested the legal parameters of photocopying by for-profit institutions, and established that traditional copying practices will now expose many private organizations to infringement liability. This Note examines the Texaco case, the Copyright Act, and the Copyright Clearance Center, an organization which played a pivotal role in the Second Circuit's decision. The author contends that the Texaco decision is contrary to the original purpose of …

Swifties, Shifties, And That E-Biz Jazz: The Ethical Roles Of Attorney/Literary Agents, Bruce S. Stuart

UC Law SF Communications and Entertainment Journal

It is no secret that attorney authors are making their mark on the book publishing industry as books by and about lawyers occupy more than a fair share of both THE NEW YoRK TIMES and PUBLISHER'S WEEKLY bestseller lists. But what about the lawyers behind the scenes-those who broker those bestseller deals? From the late literary agent extraordinaire Swifty Lazar to power literary deal maker Morton Janklow, this Article will examine how the attorney literary agent evolved and the ethical considerations incumbent upon attorneys who also don the hat of author representative.

This article will demonstrate through the use of …

A Proposed Defamation Standard For Commercial Information Systems, Frank P. Darr

UC Law SF Communications and Entertainment Journal

The computer bulletin board presents a difficult legal problem when defamation is at issue. Because defamation standards vary with the role of the publisher in the distribution process, the legal responsibility of the bulletin board's sponsor is uncertain.

This Article criticizes the current analogical approach used by the courts. It also rejects the negligence and strict liability rules. Instead, the Article proposes a "reason to know and reasonable time to remove standard," which comports with constitutional requirements, practical limits to preventing defamation, and the countervailing need to prevent injury.

Facilitating Telemedicine: Reconciling National Access With State Licensing Laws, Stacey Swatek Huie

UC Law SF Communications and Entertainment Journal

Telemedicine is a growing phenomenon which is being promoted by the states, the federal government, and private groups. Telemedicine offers many benefits not available through traditional forms of medical practice. As certain practices involved in telemedicine conflict with state licensing laws, a solution balancing the needs of telemedicine against the states' interest in preserving the health and safety of their citizens is needed if telemedicine is to prosper. This Note outlines the benefits and problems associated with telemedicine, discusses the current state licensing laws and the dangers those laws seek to prevent, and proposes solutions reconciling the two.

Berne, Cfta, Nafta & (And) Gatt: The Implications Of Copyright Droit Moral And Cultural Exemptions In International Trade Law, Stephen Fraser

UC Law SF Communications and Entertainment Journal

Beginning with the United States' accession to the Berne Union in 1988-89, through the negotiations for the Canada-United States Free Trade Agreement (CFTA), the North American Free Trade Agreement (NAFTA), and the latest round of the General Agreement on Tariffs & Trade (GAIT), copyright law and its attendant industries have become important foci in the area of international trade. Although the United States may be the world leader in the dissemination of movies, television programs, music, and books and even though through Berne, CFTA, NAFTA, and GATT the United States has managed to obtain increased protection for copyrighted content, it …

Telecommunications In The United Kingdom: A Prototype For Deregulation Or A Flash In The Pan, Sean P. Farrell

UC Law SF Communications and Entertainment Journal

The United Kingdom maintains the world's most extensively deregulated telecommunications market. This Note examines the United Kingdom's history of telecommunications deregulation, the principal components of its deregulatory efforts, and the results obtained thus far. With respect to the principal components of deregulation, this Note's analysis focuses upon the United Kingdom's regulatory policy decisions, the efficacy of the British regulatory agency, and the adaptability of the British regulatory framework. In addition to drawing certain conclusions regarding the United Kingdom's deregulatory success, this Note also offers some general comparisons regarding proposed regulatory reforms within the United States.

Commentary: Copyright From Stone Age Caves To The Celestial Jukebox, Nicholas W. Allard

UC Law SF Communications and Entertainment Journal

On December 18, 1994, a group of exquisite and incredibly well-preserved Stone Age paintings were discovered in the mountains of southern France. Because the presence of visitors would hasten the artwork's deterioration, the public will likely not be allowed to view the paintings. Fortunately, a mere month after their discovery, images of the prehistoric art appeared on the Internet and have been transmitted around the world on commercial and noncommercial systems. The author utilizes this archeological cache as both an example of the uses of advanced information technology and a colorful fact pattern to explore many of the challenges facing …

The Benefits Of Alternative Dispute Resolution In Intellectual Property Disputes, Miriam R. Arfin

UC Law SF Communications and Entertainment Journal

There are numerous reasons for avoiding traditional litigation in intellectual property disputes. Given the often complex nature of intellectual property cases, litigation may not always offer the best method of resolution. By contrast, Alternative Dispute Resolution (ADR) processes can offer distinct advantages over litigation. Consequently, ADR should play a greater role in these intellectual property disputes. This Article illustrates the advantages of ADR in intellectual property disputes through a case study, and explores various options within the ADR process. The Article focuses on the United States District Court for the Northern District of California, and provides a method for choosing, …

The Data Transfer Industry: Communications Regulation For The Next Century, Robert S. Tanner

UC Law SF Communications and Entertainment Journal

Technology and competition are pushing a trend of convergence in the separate communications industries. In particular, telephone and cable companies are rapidly developing or acquiring the capacity to compete in each other's businesses. The evolution of this trend will be a larger unified marketplace where companies compete broadly in many forms of communications or data transfer. Companies in the data transfer industry will need to be able to make the most efficient use of their infrastructure to provide an array of services to the consumer.

Convergence has strained the fabric of existing communications law in the United States, and it …

Everything That Glitters Is Not Gold: Songwriter-Music Publisher Agreements And Disagreements, Don E. Tomlinson

UC Law SF Communications and Entertainment Journal

The standard-form long-term exclusive songwriter-music publisher "agreement" may be as good an example of a classic adhesion contract as any in American business life.. Music publishers have tremendous bargaining power; songwriters, at least in their early professional years, have little or none. It is no surprise, then, that such contracts heavily favor the music publisher and almost always are offered to beginning professional songwriters on a take-it-or-leave-it basis. While English courts have begun to recognize the "unconscionability" issue in these contracts-especially in relation to music publishers having no contractual obligation to "exploit" the copyrights received from songwriters under such agreements-American …

The Work Made For Hire Doctrine And California Recording Contracts: A Recipe For Disaster, Joseph B. Anderson

UC Law SF Communications and Entertainment Journal

Recording artists provide their recording or songwriting services pursuant to "work made for hire" clauses present in the vast majority of recording industry contracts. Under the work made for hire doctrine, the record labels can retain ownership in the ultimate artistic creations and thus ensure maximum profits for the labels. However, in 1982 the California Legislature mandated that persons who create works made for hire are deemed employees for purposes of workers' compensation benefits as well as unemployment and disability insurance. As a result, record labels may face substantial liability under California labor laws. At a minimum, it appears that …

Parody (Of Celebrities, In Advertising), Parity (Between Advertising And Other Types Of Commercial Speech), And (The Property Right Of) Publicity - A Substantive And Procedural Path - Through Glitz, Wit, Rap, Suds, And Ink - To A Balanced Constitutional And Common Law Vindication Of Each, Michael E. Hartmann, Daniel R. Kelly

UC Law SF Communications and Entertainment Journal

In 1992's highly controversial White v. Samsung Electronics America, Inc., the United States Court of Appeals for the Ninth Circuit refused to create a parody exception to the common law right of publicity for a parodic advertisement. Almost all of the early legal commentary on White criticized the Ninth Circuit for not having created such an exception, most of it urging an emulation of federal statutory copyright law's fair use exception. In 1993's Cardtoons v. Major League Baseball Players Ass'n, the Northern District Court of Oklahoma similarly refused to create a parody exception to the right of publicity for an …

Software Patents: Myth Vs. Virtual Reality, Jeffrey J. Blatt

UC Law SF Communications and Entertainment Journal

This Article discusses issues concerning the patenting of software-related ideas. It provides a brief history of the law concerning patents related to algorithms up to the Federal Circuit's recent decision in In re Alappat. The Article then discusses various myths related to the lack of availability for software patent protection, the type of companies that are obtaining software patents, copyright protection versus patent protection, unavailability of trade secret protection in conjunction with a patent application, and the enforceability of software patents and other myths.

Reforming Telecommunications Policy In Response To Entry Into Local Exchange Markets, Alexander C. Larson

UC Law SF Communications and Entertainment Journal

Current telecommunications regulation is based on a series of economic assumptions. The author considers these assumptions and analyzes their continued validity, given the emergence of local exchange competition as seen in the Rochester, New York plan. The author discusses entry barriers to local exchange and the effects of the Department of Justice 1992 Merger Guidelines. The author concludes with a summary of policy recommendations arising from entry into local exchange markets and the necessity of future policy reevaluation.

Reducing The Cost Of Free Expression: A Call For Fee Shifting In Cases Challenging Freedom Of Expression, Neil I. Shapiro, Ross D. Tillman

UC Law SF Communications and Entertainment Journal

Those who offer information or express ideas, whether in book, essay, film, or music, and those who distribute or sell the vehicles for such expression have sometimes been sued by individuals claiming physical or emotional injury allegedly flowing from such expression. Suits have included claims that reliance on factual or quasi-factual representations in expressive or informative works resulted in injury to the plaintiff, as well as claims that such works influenced the conduct of third parties who in turn inflicted injury on the plaintiff.

While those faced with such claims routinely prevail, the costs of so doing can be substantial. …

The Un-Worth-Y Decision: The Characterization Of A Copyright As Community Property, Debora Polacheck

UC Law SF Communications and Entertainment Journal

This Article examines the impact of In re Marriage of Worth, the only reported case which has considered the effect of California's community property law on an author's rights under the Copyright Act of 1976. The author challenges the California Court of Appeal's holding that a copyright is a community property asset. The court, when faced with a clear conflict between state and federal law, failed to preempt state law. Instead, the court created a situation which not only will be felt by spouses upon dissolution of marriage but also will be felt by the author-spouse who will no longer …

Children's Television Act: Encouraging Positive Television For Our Children, The - A Proposal To The Fcc, Gary E. Knell

UC Law SF Communications and Entertainment Journal

Congress overwhelmingly passed the 1990 Children's Television Act to address policy concerns involving excessive violence and other inappropriate broadcast material in children's programming. The Act requires broadcasters to contribute to meeting children's educational needs in order to remain licensed. The Act also sets forth stipulations designed to encourage more constructive programming for children. Unfortunately, the Act has not proven as powerful as originally expected, leaving children's programming in much the same state it was before the Act. This Proposal sets forth a model to the Federal Communications Commission. The model is already used by the Children's Television Workshop and provides …

Medical Device Eligibility For The Statutory Experimental Use Exception To Patent Infringement, Veronica Lanier

UC Law SF Communications and Entertainment Journal

Federal patent laws grant exclusive rights to inventors and prohibit infringement of these rights. The Food, Drug, and Cosmetic Act (FDCA) exempts from patent infringement activities undertaken to meet regulatory requirements that delay commercial marketing of certain products regulated by the FDCA. The Supreme Court held the exception applicable to medical devices subject to significant premarket regulatory delay, but the recent district court decision of Baxter Diagnostics, Inc. v. AVL Scientific Corp. restricted the experimental use exception to those medical devices that must meet specific premarket approval requirements. This Note examines the codification and judicial interpretation of the statutory experimental …

Intellectual Property Rights In Joint Research Ventures With The National Laboratories, William A. Eklund

UC Law SF Communications and Entertainment Journal

The United States Department of Energy (DOE) founded its National Laboratories shortly after World War II. The National Laboratories are large, multi-program research institutions conducting research on various aspects of nuclear energy. This Article focuses on the intellectual property rights issues that arise in business transactions between the National Laboratories and the private sector where research is to be performed. including: research and development subcontracts, cooperative research and development agreements, sponsored research and user facility agreements. and the licensing of intellectual properties.

The Electronic Filing Of Applications With The United States Patent & (And) Trademark Office, Hunter L. Auyang

UC Law SF Communications and Entertainment Journal

The U.S. Patent & Trademark Office (PTO) has long recognized that if it could develop the capabilities to accept and process electronically-filed patent and trademark applications, the quality of its services to the public would be improved. Applications in electronic format are necessary in order for the PTO, as one of the world's largest repositories of technical literature, to establish a "paperless" office, which would relieve it of its current burden of handling massive volumes of paper.

This Article discusses the scope of the PTO's efforts to date in computerizing and automating its operations to enable electronic application filing. The …

The Sports Broadcasting Act: Calling It What It Is - Special Interest Legislation, David L. Anderson

UC Law SF Communications and Entertainment Journal

Since the Sports Broadcasting Act (SBA) was enacted in 1961, professional sports leagues have enjoyed an exemption to the antitrust laws that permits a league to sell package deals to broadcasting companies for the exclusive televising of league games. Recently, the necessity of the SBA has been challenged, both by legal commentators and in the courts. This Note examines the challenges to the SBA and the intent of Congress when it passed the SBA, suggesting that much of the criticism focused on the SBA is unfounded. The author concludes that in enacting the SBA Congress intended to keep professional sports …

Swerving To Avoid The Takings And Ultra Vires Potholes On The Information Superhighway: Is The New York Collocations And Telecommunications Policy A Taking Under The New York Public Service Law, Leonard M. Baynes

UC Law SF Communications and Entertainment Journal

The Supreme Court has established definitive tests to determine whether a regulation amounts to a ."taking" under the Fifth Amendment. Regulatory agencies, fearful that they will have to compensate property owners for any interest courts deem to have been "taken," structure regulations to avoid such a finding. The author examines the "per se" and "regulatory" takings jurisprudence applicable to the New York collocation regime. The author then examines each of the New York Public Service Commission orders that create its collocation policy to determine whether New York Telephone Co.'s property was "taken" under the New York Public Service Law, thus …

The Future Of Sports Merchandise Licensing, Julie A. Garcia

UC Law SF Communications and Entertainment Journal

Sports merchandise licensing has become a major aspect of the sports business. The four major sports leagues currently use a form of revenue sharing to split the royalties received from the multibillion dollar sales of licensed sports merchandise. The current system for dividing the proceeds has raised a number of questions; namely, do the antitrust laws prohibit sharing of such proceeds, and, if not, is the current system for dividing money fair to all parties? This note examines some of the possibilities as to the future of merchandising rights. They could become the subject of congressional legislation, as did the …