Entertainment, Arts, and Sports Law Commons^™

The Evolution Of Internet Service Providers From Partners To Adversaries: Tracking Shifts In Interconnection Goals And Strategies In The Internet’S Fifth Generation, Rob Frieden

Rob Frieden

At the Internet’s inception, carriers providing the bit switching and transmission function largely embraced expanding connections and users as a primary service goal. These ventures refrained from metering traffic and charging for carriage based on the assumption that traffic volumes roughly matched, or that traffic measurement was not worth the bother in light of external funding from government grants. Most Internet Service Providers (“ISPs”) bartered network access through a process known as peering in lieu of metering traffic and billing for network use. As governments removed subsidies and commercial carriers invested substantial funds to build larger and faster networks, identifying …

Déjà Vu All Over Again: Questions And A Few Suggestions On How The Fcc Can Lawfully Regulate Internet Access, Rob Frieden

Rob Frieden

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject …

Network Neutrality And Consumer Demand For “Better Than Best Efforts” Traffic Management, Rob Frieden

Rob Frieden

This paper assesses whether and how ISPs can offer quality of service enhancements, at premium prices for full motion video, while still complying with the new rules and regulations established by the Federal Communications Commission (“FCC”) in March, 2015. The paper explains that having made the controversial decision to reclassify all forms of Internet access as a telecommunications service, the FCC increases regulatory uncertainty. In particular, the FCC has failed to identify instances where “retail ISPs,” serving residential broadband subscribers, can offer quality of service enhancements that serve real consumer wants without harming competition and the ability of most content …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Making A Mark: Taking A Glance At Trademarks And Graphic Infringement, Heather S. Ray

Heather S Ray

No abstract provided.

The Costs And Benefits Of Regulatory Intervention In Internet Service Provider Interconnection Disputes: Lessons From Broadcaster-Cable Retransmission Consent Negotiations, Rob Frieden

Rob Frieden

This paper considers what limited roles the FCC may lawfully assume to ensure timely and fair interconnection and compensation agreements in the Internet ecosystem. The paper examines the FCC’s limited role in broadcaster-cable television retransmission consent negotiations with an eye toward assessing the applicability of this model. The FCC explicitly states that it lacks jurisdiction to prescribe terms, or to mandate binding arbitration. However, it recently interpreted its statutory authority to ensure “good faith” negotiations as allowing it to constrain broadcaster negotiating leverage by prohibiting multiple operators, having the largest market share, from joining in collective negotiations with cable operators. …

Invalid Pre-Termination Grants And The Challenge To Obtain A Remedy, Samuel H. Jones

Samuel H Jones

The 1976 Copyright Act created what is now commonly known as the termination right, which allows authors to unilaterally terminate prior grants of their copyrights and reclaim ownership. This right was created, in large part, to liberate authors from unremunerative agreements previously entered into when the value of their copyrighted works had not yet been realized. It can be a powerful tool for authors to leverage more favorable agreements than they were previously able, particularly when those copyrights are highly valued. To ensure authors’ ability to exercise this right, Congress enacted provisions in the 1976 Copyright Act that prohibit authors …

The Transmit Clause Test: A Pragmatic Approach To A Contemporary Understanding Of The Ambiguity In The Copyright Act’S Transmit Clause, Samantha Tilipman

Samantha Tilipman

The 1976 Copyright Act was a response to development of new technology and an attempt to clarify copyright law to promote further investment in the burgeoning sphere of cable systems.[1] In drafting the provisions of the new Act, Congress created the “Transmit Clause,” a key passage nestled into the definition of “to perform or display a work ‘publicly.’”[2]The ambiguity of the Transmit Clause has led the circuits to interpret it differently leading to conflicting caselaw on opposite ends of the nation. The purpose of this note is to provide the Supreme Court of the United States and …

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …

Slaves To Copyright: Branding Human Flesh As A Tangible Medium Of Expression, Arrielle S. Millstein

Arrielle S Millstein

This paper argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this paper demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Griffin M. Barnett

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

Decoding And Resisting Culture: Reception Theory And Copyright Law, Meghan M. Lydon Ms.

Meghan M. Lydon Ms.

Though there has been much academic treatment of the author’s role in copyright law, few academic articles have been published about the reader’s role. Of those articles, only one has examined copyright law through the lens of reader response theory. In her article “Everything is Transformative: Fair Use and Reader Response,” 31 Colum. J.L. & Arts 445, Laura Heyman relied on English professor Stanley Fish’s famous reader response theory to argue that all works are transformative because readers naturally interpret texts from their own perspectives and that copyright law’s transformative use test should measure the use that a community of …

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …

Caution — Contains Extremely Offensive Material: David Wojnarowicz V. American Family Association, The Visual Artists Rights Act, And A Proposal To Expand Fair Use To Include Artists' Moral Rights, Sarah Leggin

Sarah Leggin

Although many artists build their careers by offending or challenging mainstream culture and live happily as outsiders, these and all artists still strive to protect their reputations and the integrity of their works. The importance of protecting the moral rights of artists has long been recognized by European law, but the United States has not embraced the value of artists’ rights in the same way. Today, U.S. copyright law recognizes moral rights for visual works that fall within narrow categories due to the enactment of the Visual Artists Rights Act of 1990 (VARA). Even after VARA was enacted and preempted …

It's Only A Day Away: Rethinking Copyright Termination In A New Era, Shane D. Valenzi

Shane D Valenzi

January 1, 2013 will mark the beginning of an important shift in US Copyright Law. On that day, for the first time, authors who signed over their creative rights to a producer, publisher, or other “litigation-savvy” grantee under the current Copyright Act will begin to enter a window of time within which they may terminate those prior grants of rights and reclaim their original copyrights. Of course, such actions are unlikely to go unchallenged, as many of these works generate billions of dollars of revenue for their current owners. This Article will examine the “new-works termination” provision of the Copyright …