Antitrust and Trade Regulation Commons^™

Beyond Nil, William W. Berry, Iii

Vanderbilt Journal of Entertainment & Technology Law

The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players—-the revenue sport athletes-—may have a claim to a greater share of this revenue.

Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available …

To Win Friends And Influence People: Regulation And Enforcement Of Influencer Marketing After Ten Years Of The Endorsement Guides, Craig C. Carpenter, Mark Bonin Ii

Vanderbilt Journal of Entertainment & Technology Law

For the last ten years, social media influencer marketing has been regulated by the Federal Trade Commission (FTC) under the FTC’s Section 5 “unfair practices” authority, guided by the Endorsement Guides, a “best practices” document published by the FTC. This is a fairly “light” regulatory scheme where violators typically enter no-money, no-fault consent decrees and generally undertake to do a better job following the Endorsement Guides in the future. During this time, the practice has flourished, and companies are spending significant portions of their marketing budgets on social media influencer advertising. Recently, the FTC has submitted proposals for increased enforcement …

Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu

Vanderbilt Journal of Entertainment & Technology Law

Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …

Franchise Participants As Proper Patent Opponents: Walker Process Claims, Robert W. Emerson

Vanderbilt Journal of Entertainment & Technology Law

Franchise parties may be sued for patent infringement, or they may seek to sue others for an antitrust injury as the result of a fraudulently obtained patent. Indeed, franchisors and franchisees may simultaneously fall under both categories-sued for infringement but aggrieved because the very basis of that suit is illegitimate in their eyes. These franchise parties may turn for relief to a patent-validity challenge authorized in the seminal case Walker Process Equipment, Inc. v. Food Machine & Chemical Corp. Franchise participants-franchisees and franchisors alike-may be the ideal Walker Process claimants. When these types of cases occur, the damages within the …

The Ncaa On Notice: How Utilizing Principles Of Federalism Could Relieve Antitrust Pressure, Grant Newton

Vanderbilt Journal of Entertainment & Technology Law

The National Collegiate Athletic Association (NCAA) was founded to protect athletes from injury and to provide an avenue for the pursuit of sport alongside the pursuit of education. The NCAA maintains that accomplishing each of those goals requires the preservation of amateurism through a cap on the amount of funds universities may disburse to athletes. Historically, value judgments saved the NCAA from antitrust challenges because courts found that the NCAA's rules furthered the organization's purpose. As antitrust law has developed over the past fifty years, however, courts have become increasingly determined to avoid value judgments in antitrust challenges. Thus, it …

The New Separability, Lili Levi

Vanderbilt Journal of Entertainment & Technology Law

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Act does not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining …

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie E. Zink

Vanderbilt Journal of Entertainment & Technology Law

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health.

This Article is both timely and necessary, as the public is continually bombarded …

Linking The Public Benefit To The Corporation: Blockchain As A Solution For Certification In An Age Of "Do-Good" Business, Margaret D. Fowler

Vanderbilt Journal of Entertainment & Technology Law

As part of its now-infamous emissions scandal, Volkswagen spent tens of millions of dollars on advertising geared toward environmentally conscious consumers. The scandal is an example of "greenwashing," which, along with the corresponding term "fairwashing," represents the information asymmetry present in product markets that involve claims of social and environmental responsibility in companies' production practices. As consumers and investors demand responsible production practices from both traditional corporations and entities organized under the newer corporate form known as public benefit corporations (PBCs), it becomes even more important to verify that those entities' supply chains are, in fact, meeting standards for the …

Promoting Access Over Ownership: Realigning Antitrust And Intellectual Property Law To Usher In An Era Of Collaborative Consumption, Adrian Kuenzler

Vanderbilt Journal of Entertainment & Technology Law

Following the US Supreme Court's endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court's submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving precedence to market …

A Fair Stream: Recommendations For The Future Of Fair Trade Music, Ricardo Hernandez

Vanderbilt Journal of Entertainment & Technology Law

Allied Business Intelligence research suggests that, by 2019, the music streaming industry will reach $46 billion in premium subscription revenues. As the music streaming industry grows, the creators of the musical content appear to be getting left behind. While there are a number of suggestions for why creators of musical content are not receiving their share of the pie, one thing is certain: a new business model is needed. This Note suggests that one possible way to ensure fairness in the music streaming supply chain is through applying the fair trade concept to the music streaming model. As such, this …

Regulation 2.0: The Marriage Of New Governance And "Lex Informatica", Abbey Stemler

Vanderbilt Journal of Entertainment & Technology Law

Throughout history, disruptive technologies have transformed industry and signaled the destruction or creation of regulatory structures. When crafting regulations, governments often utilize Regulation 1.0 approaches, characterized by top-down design standards that dictate exactly how the regulated must act in order to prevent market failures. Regulation 1.0 increases barriers to entry and decreases the room for business experimentation. Regulation 2.0, by contrast, is a theoretical approach for regulating companies that rely on platform-mediated networks. It marries New Governance theory and the concept of lex informatica. This marriage allows for the collaborative creation of design standards that are then enforced through mediating …

Entering The Innovation Twilight Zone: How Patent And Antitrust Law Must Work Together, Jeffrey I.D. Lewis, Maggie Wittlin

Vanderbilt Journal of Entertainment & Technology Law

Patent law and antitrust law have traded ascendancy over the last century, as courts and other institutions have tended to favor one at the expense of the other. In this Article, we take several steps toward stabilizing the doctrine surrounding these two branches of law. First, we argue that an optimal balance between patent rights and antitrust enforcement exists that will maximize consumer welfare, including promoting innovation and economic growth. Further, as Congress is the best institution to find this optimum, courts should enforce both statutes according to their literal text, which grants absolute patent rights but allows for more …

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

Train Wreck (Of The I-Aa), John R. Maney

Vanderbilt Journal of Entertainment & Technology Law

In 2009, the Knight Commission, which addresses major problems facing intercollegiate athletics, polled the presidents of the Football Bowl Subdivision schools (I-A schools) about their views on the state of financial affairs in college athletics. Less than 25 percent of those polled thought intercollegiate athletics was sustainable in its present form. As a result, the Commission recommended a series of reforms to help maintain the health of collegiate athletics. Unfortunately, the Commission did not poll the presidents of Football Championship Subdivision schools (I-AA schools). They should have polled those presidents because the I-AA schools' fiscal health is worse. In 2010, …

Trolling For Standards: How Courts And The Administrative State Can Help Deter Patent Holdup And Promote Innovation, Niels J. Melius

Vanderbilt Journal of Entertainment & Technology Law

Antitrust law and patent law share the common goal of improving economic welfare by facilitating competition and innovation. But these legal fields conflict when baseless claims of patent infringement disrupt the competitive process. In its eBay decision, the Supreme Court muddied the precedential waters by promulgating a vague doctrine of injunctive relief in patent infringement cases. In the years since, a split has emerged in the district courts on the question of which entities generally qualify for injunctive relief as an additional remedy to damages. This uncertainty has failed to mitigate an antitrust phenomenon known as "patent holdup," whereby an …

Silence Of The Spam: Improving The Can-Spam Act By Including An Expanded Private Cause Of Action, David J. Rutenberg

Vanderbilt Journal of Entertainment & Technology Law

In the last decade, email spam has become more than just an annoyance for email users. Unsolicited messages now comprise more than 95 percent of all email sent worldwide. This costs US businesses billions of dollars in lost productivity each year. The US Congress passed the CAN-SPAM Act of 2003 to regulate the spam industry. Unfortunately, data show that spam only increased since the Act's passage. Part of the reason for this failure is that the Act only authorizes the Federal Trade Commission, state attorneys general, and Internet Service Providers to bring action under its provisions. Each of these authorized …

A Tale Of Two Theories Of Well-Known Marks, Leah C. Grinvald

Vanderbilt Journal of Entertainment & Technology Law

The well-known marks doctrine presents a conundrum in international trademark law. Although protecting foreign well-known trademarks has been a treaty obligation since 1925, courts around the world, and in the United States and China in particular, do not uniformly apply the doctrine. This lack of uniform protection leads to the question of whether these countries are complying with their international obligations. While brand owners and some commentators would answer this question in the negative, this Article provides a different perspective. This Article offers an alternative approach to answering the compliance question: Before considering the question, one must examine the perspective …

Solidifying The Defensive Line: The Nfl Network's Current Position Under Antitrust Law And How It Can Be Improved, Ethan Flatt

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the broadcasting of professional sporting events is a multi-billion dollar industry, and the National Football League (NFL) alone earned more than $3 billion from television contracts during its 2008 season. Considering the massive revenues that broadcast rights can generate, it is no surprise that some major professional sports leagues have recently developed their own television networks. While it was not the first league-owned television network, the NFL Network has certainly generated the most attention. Since it started broadcasting a select number of NFL regular season games in 2006, the NFL Network has been subject to media …

Wringing Songwriters Dry: Negative Consequences Of Compulsory Licensing For Ringtones, Daniel H. Mark

Vanderbilt Journal of Entertainment & Technology Law

On October 16, 2006, the United States Copyright Office concluded in a Memorandum Opinion (the Ringtone Opinion) that, subject to certain caveats, the Copyright Act's § 115 statutory license applies to ringtones. The Copyright Office concluded that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords, and deliveries of ringtones by wire or wireless transmission constitute digital phonorecord deliveries subject to compulsory licensing under § 115.2

In the Ringtone Opinion, the Copyright Office provided a testto determine whether a particular ringtone will qualify for thestatutory compulsory license under § 115. The opinion noted that...

"whether a particular …

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides

Vanderbilt Journal of Entertainment & Technology Law

Under the rules of the Telecommunications Act of 1996, incumbent local exchange carriers, including Verizon, were obligated to lease parts of their local telecommunications network to any firm, at "cost plus a reasonable profit" prices, that could combine them at will, add retailing services, and sell local telecommunication service as a rival to the incumbent. AT&T, an entrant into the local telecommunications market, leased parts of Verizon's network. Curtis Trinko, a local telecommunications services customer of AT&T, sued Verizon, alleging various anti-competitive actions of Verizon against AT&T, including that Verizon raised the costs of AT&T, its downstream retail rival. The …

"Did You Want Fries With That?" The Unanswered Question Of Federal Product Placement Regulation, Raghu Seshadri

Vanderbilt Journal of Entertainment & Technology Law

This note argues that the structure of existing FCC and FTC regulatory regimes is not effective in addressing challenges posed by certain types of product placement. Thus, a specific disclosure requirement targeting non-visual product placement is needed. Part I presents an overview of the existing federal regulatory structure governing product placement, and the current arguments for and against affirmative disclosure requirements. Parts II and III identify the various categories of product placement and argue that non-visual placement presents unique challenges that are absent in other categories of product placement. Finally, Part IV argues that the current regulatory regime is insufficient, …

Revenue Sharing In Major League Baseball: Are Cuba's Political Managers On Their Way Over Too?, Matthew R. Mccarthy

Vanderbilt Journal of Entertainment & Technology Law

In response to a growing disparity amongst the league's best and worst teams, fans, reporters, and even some players have proposed various plans designed to share revenues amongst owners and level the economic playing field. The smaller market teams claim they cannot compete because they have less revenue than the bigger teams, which translates to an inability to pay for high priced players and state-of-the-art facilities. In response to this perceived problem, owners have proposed and implemented some limited forms of revenue sharing and a competitive balance tax...

Part II of this Note examines the history of professional baseball's exemption …

Upon Further Review: Why The Nfl May Not Be Free After Clarett, And Why Professional Sports May Be Free From Antitrust Law, Darren W. Dummit

Vanderbilt Journal of Entertainment & Technology Law

This note begins by reviewing the Jewel Tea line of cases that theoretically serve as the starting point for any non-statutory exemption discussion, followed by brief overviews of the contrasting Wood and Mackey lines of cases. The background section then turns to a summary of Brown--the latest Supreme Court decision relating to the collective bargaining process in professional sports--followed by a brief discussion of the NFL eligibility rule and how it differs from the recently-enacted NBA eligibility rule, which is of unquestioned legality. Finally, both the District Court and Court of Appeals decisions in Clarett are summarized.

The analysis begins …

Bringing Down A Giant: The Monopoly Of Music Television, Margaret Brown

Vanderbilt Journal of Entertainment & Technology Law

This note details a history of Viacom, MTV and the dispute with Soul Train; explores some key aspects of antitrust law; applies this law to the facts of the Viacom case; and asks the courts to evaluate non-compete agreements under a different standard in the context of the music industry.

The Recording Industry, Minimum Advertised Pricing Policies And Non-Price Vertical Restraints Of Trade, M. Courtney Mccormick

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the recording industry's cooperative advertising programs do not run afoul of federal antitrust laws and, in fact, promote interbrand competition. It examines the implications of the cooperative advertising programs adopted by record companies in light of current federal antitrust law. Contrary to claims made by the FTC, the recording industry's actions can withstand antitrust scrutiny because Minimum Advertised Pricing ("MAP") policies serve pro-competitive business purposes. As will be discussed in further detail below, the recording industry has a legitimate interest in pursuing policies that help traditional music retailers stay in business in the face of crippling …

Changes In The Ticket Distribution Industry: Is This The Beginning Of The End For Ticketmaster?, Joycelyn Stevenson

Vanderbilt Journal of Entertainment & Technology Law

This Note aims to explore the legal underpinnings of consumer frustration with Ticketmaster and the rest of the ticket distribution industry as it moves into the electronic age. First, this Note introduces Ticketmaster and examines its use of exclusive dealing agreements with local venues. It then discusses the relevant federal antitrust statutes affecting the industry and the market in which distributors operate. It also analyzes the role exclusive dealing agreements play in stifling competition. Next, this Note discusses the challenges--both legal and economic--to the industry's most visible member. It then discusses Ticketmaster as a possible product of competition in light …

Forming A Single Entity: A Recipe For Success For New Professional Sports Leagues, Karen Jordan

Vanderbilt Journal of Entertainment & Technology Law

This Note begins by introducing some of the more recently founded professional sports leagues, identifying their background and single-entity structures. It then provides a general background of antitrust issues in sports, followed by explanations of the possible defenses, including the single-entity structure. Next, it discusses Fraser as a potential landmark case for professional sports leagues, showing how its lessons contribute to the current mode of antitrust analysis. Finally, this Note illustrates why single-entity structuring may be essential for leagues in their infancy, but of little use to well-established professional sports leagues.