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1997

Hastings Communications and Entertainment Law Journal

Articles 1 - 26 of 26

Full-Text Articles in Entertainment, Arts, and Sports Law

Curing The Inequitable Conduct Plague In Patent Litigation, Glenn E. Von Tersch Jan 1997

Curing The Inequitable Conduct Plague In Patent Litigation, Glenn E. Von Tersch

Hastings Communications and Entertainment Law Journal

The defense of unenforceability due to inequitable conduct in patent infringement suits has become an absolute plague. Senior Judge Nichols of the Federal Circuit said as much ten years ago, and the problem still remains. Because of the expense of litigating such a defense, patent owners settle valid infringement claims for cents on the dollar, while infringers suffer little more than the slight risk of sanctions. This Note defines inequitable conduct in patent prosecution, details the consequences of inequitable conduct, and describes the restricted method available for curing inequitable conduct. Next, the author describes the problems with the current state ...


Has The Fda Bought The Winston Cup: A Takings Analysis Of The Proposed Ban On Sports Sponsorships By Tobacco Companies As Applied To Nascar, Andrew B. Dzeguze Jan 1997

Has The Fda Bought The Winston Cup: A Takings Analysis Of The Proposed Ban On Sports Sponsorships By Tobacco Companies As Applied To Nascar, Andrew B. Dzeguze

Hastings Communications and Entertainment Law Journal

In 1996 the Department of Health and Human Services announced that the FDA would regulate all tobacco advertising, classifying tobacco as a drug. This Note explores the ramifications of this announcement as it relates to the ongoing sponsorship of NASCAR auto races by tobacco companies. Initially, this Note provides a brief history of NASCAR and its tobacco sponsorship. The Note then explores three legal theories for invalidating the FDA regulations: First Amendment defenses, lack of jurisdiction defenses, and takings claims. The author concludes that a takings claim provides the best method of challenging the FDA regulations, because it would not ...


The Quality Of First Amendment Speech, Randall P. Bezanson Jan 1997

The Quality Of First Amendment Speech, Randall P. Bezanson

Hastings Communications and Entertainment Law Journal

One of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the ...


Information Property And The Internet, Henry V. Barry Jan 1997

Information Property And The Internet, Henry V. Barry

Hastings Communications and Entertainment Law Journal

The concept of information as property is not new, but has gained new momentum with the development of the Internet. During the past century, courts have developed theories recognizing and protecting limited property rights in information, and prohibiting forms of information misappropriation. The author argues that the expanding use of the Internet generally, and the World Wide Web in particular, have resulted in a "misappropriation explosion" which, if unmoderated, could result in reduced access to information.

The author traces the evolution of property rights in information. Next, the author discusses the recent expansion in the law of misappropriation in federal ...


Alternative Dispute Resolution And Emerging Online Technologies: Challenges And Opportunities, George H. Friedman Jan 1997

Alternative Dispute Resolution And Emerging Online Technologies: Challenges And Opportunities, George H. Friedman

Hastings Communications and Entertainment Law Journal

By all measures, 1995 was a watershed year for the so-called "Information Superhighway." In increasing numbers, individuals, governments, and businesses-including attorneys, their clients, and the courts-are enjoying the expanded use of the burgeoning information and services available on computer networks such as the Internet. As courts and lawyers moved online, it was only natural that the Information Superhighway would ultimately build an "on-ramp" for the alternative dispute resolution (ADR) movement. This indeed occurred late in 1995 with the creation of innovative online ADR projects, several World Wide Web sites related to ADR, and a rapid increase in the use of ...


Privacy And The Internet, Maureen S. Dorney Jan 1997

Privacy And The Internet, Maureen S. Dorney

Hastings Communications and Entertainment Law Journal

This Article provides an overview of United States privacy status and regulations governing privacy issues and recent European privacy initiatives. The author explores how, in the absence of an overarching regulatory framework, steps have been taken by government and industry to address consumers concerns about privacy and the Internet.


Enforcement Of Use Limitations By Internet Services Providers: How To Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber, Keith J. Epstein, Bill Tancer Jan 1997

Enforcement Of Use Limitations By Internet Services Providers: How To Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber, Keith J. Epstein, Bill Tancer

Hastings Communications and Entertainment Law Journal

As the Internet continues its rapid growth and development, concerns regarding the potential for its misuse are also growing. Many of the abuses and misuses of the Internet defy simple solutions. Unacceptable uses of the Internet have triggered calls for regulation of cyberspace, harmed Internet users, and have sometimes resulted in liability for unwary Internet Service Providers. The authors considers the difficulties of Internet Service Providers and others who do business on or over the Internet caused by unacceptable Internet use, and proposes a set of solutions designed to protect their interests. Contractual use limitations, in conjunction with policies designed ...


An Updated Consideration Of A Taxing Problem: The Harmonization Of State And Local Tax Laws Affecting Nonresident Professional Athletes, Marc Yassinger Jan 1997

An Updated Consideration Of A Taxing Problem: The Harmonization Of State And Local Tax Laws Affecting Nonresident Professional Athletes, Marc Yassinger

Hastings Communications and Entertainment Law Journal

Professional athletes today can no longer merely concern themselves with their on-the-field performances. More and more states and cities, driven by growing deficits and the need to create more tax dollars, have made diligent efforts to focus their tax collection resources on visible individuals who earn sizable salaries in their jurisdictions. With their big salaries, nonresident professional athletes are easily identifiable targets who justify the effort. The author examines how the collection of taxes from nonresident professional athletes has created numerous problems, including inconsistent formulas employed by different jurisdictions, which has lead in some cases to double taxation.

This Note ...


War.Com: Why The Battles Over Domain Names Will Never Cease, Deborah Howitt Jan 1997

War.Com: Why The Battles Over Domain Names Will Never Cease, Deborah Howitt

Hastings Communications and Entertainment Law Journal

In this Note, the author discusses the history of disputes over Internet domain names and presents potential solutions to the problem. The author reviews the International Ad Hoc Coalition's proposal for additional top-level domains, and concludes that new domains will not provide an adequate solution to disputes over domain names.

The author provides an overview of trademark law, including the Federal Trademark Dilution Act of 1995, which created a federal cause of action for trademark dilution. Although the addition of this cause of action has made it easier for trademark owners to prevent the use by others of "famous ...


Law And Order In Cyberspace: Washington Report, Nicholas W. Allard, David A. Kass Jan 1997

Law And Order In Cyberspace: Washington Report, Nicholas W. Allard, David A. Kass

Hastings Communications and Entertainment Law Journal

Electronic commerce in cyberspace faces an uncertain legal environment. In many instances the laws that will shape the future growth and development of electronic commerce have yet to be written. Gaps in the regulatory framework, and rules from other contexts that are made obsolete by cyberspace technology, promote chaotic market conditions and impede innovation. Today, business activity or interaction with people which employs 19th and 20th Century communication technology is governed by an array of civil and criminal laws. It is, however, not at all clear which existing legal rules do or ought to apply to markets in cyberspace. From ...


Son Of Son Of Sam: Trashing Popular Media And Criminalizing Crime-Related Expression, David Sternbach Jan 1997

Son Of Son Of Sam: Trashing Popular Media And Criminalizing Crime-Related Expression, David Sternbach

Hastings Communications and Entertainment Law Journal

When the Supreme Court struck down New York's "Son of Sam" statute on First Amendment grounds, it nonetheless found that states have "an undisputed compelling interest in ensuring that criminals do not profit from their crimes." The Court in effect invited states and lower courts to find less restrictive means to restrict crime-related expression, yet declined to address the question of how, or whether, expression-related income can be considered profit from crime. This Article examines that question, and discusses judicially-imposed restrictions on receipt of payment for expression deemed to be crime-related, including fines intended to forestall sales of stories ...


Sifting Through The Wreckage Of Abc Reportage: Little Victories, Big Defeats & (And) Unbridled Media Arrogance, Clay Calvert Jan 1997

Sifting Through The Wreckage Of Abc Reportage: Little Victories, Big Defeats & (And) Unbridled Media Arrogance, Clay Calvert

Hastings Communications and Entertainment Law Journal

This Article analyzes two recent high-profile cases involving investigative journalism by ABC News. It points out journalistic victories achieved in both cases that ultimately were overshadowed by other events. The Article also critiques the arrogance on the part of some journalists who flaunt generally applicable legal principles and cloak themselves in the First Amendment and the "right-to-know" justification for their actions. The author argues that journalists must provide both courts and the public with well reasoned explanations for their news gathering tactics if they want to expand the boundaries of First Amendment protection and boost journalistic credibility in the eyes ...


Is A Website Like A Flea Market Stall - How Fonovisa V. Cherry Auction Increases The Risk Of Third-Party Copyright Infringement Liability For Online Service Providers, Kenneth A. Walton Jan 1997

Is A Website Like A Flea Market Stall - How Fonovisa V. Cherry Auction Increases The Risk Of Third-Party Copyright Infringement Liability For Online Service Providers, Kenneth A. Walton

Hastings Communications and Entertainment Law Journal

In a recent decision, Fonovisa v. Cherry Auction, the Ninth.Circuit allowed a record company to sue a swap meet for copyright infringement committed by the swap meet's vendors. The vendors rented a stall from the Cherry Auction swap meet and sold counterfeit music cassettes that infringed the plaintiff Fonovisa's copyright. The Ninth Circuit held that the swap meet could be sued under theories of contributory infringement and vicarious infringement.

The Fonovisa decision extends the scope of third-party copyright infringement liability beyond previously established boundaries. This extension may make it much easier to hold an online service provider ...


Definite Confusion Over Likely Confusion, James W. Soong Jan 1997

Definite Confusion Over Likely Confusion, James W. Soong

Hastings Communications and Entertainment Law Journal

The U.S. circuit courts disagree on whether the likelihood of confusion determination in trademark law is a question of fact, law, or both. While the likelihood of confusion issue divides the circuits, scholarly commentary has been substantially uniform. Many legal commentators have argued that the likelihood of confusion determination should be deemed a question of fact for various reasons. In contrast, this Article proposes that the ultimate likelihood of confusion determination should be a question of law because of legal and policy considerations. This Article borrows the reasoning of recent Supreme Court precedent deciding that patent claim construction is ...


Should Trade Secret Appropriation Be Criminalized, I. Neel Chatterjee Jan 1997

Should Trade Secret Appropriation Be Criminalized, I. Neel Chatterjee

Hastings Communications and Entertainment Law Journal

Trade secret law is a rapidly developing and increasingly popular system of intellectual property which strikes a tenuous balance between individual profit benefit through secrecy and maximization of social welfare. In doing so, trade secret law adopts some property-based and some liability-based principles. This Article argues that criminalizing trade secret appropriation unjustifiably extends protection as a property-based concept beyond economically efficient goals. The author concludes that punitive damages within the context of civil liability are a more economically efficient means to deter unauthorized use of trade secrets and "socially blameworthy" conduct.


Lessons From Oz: Quantitative Guidelines For Children's Educational Television, Angela J. Campbell Jan 1997

Lessons From Oz: Quantitative Guidelines For Children's Educational Television, Angela J. Campbell

Hastings Communications and Entertainment Law Journal

To implement the Children's Television Act of 1990, the Federal Communications Commission recently adopted a guideline assuring license renewal to television stations that air three hours per week of children's educational programming. This Article explores the likely success of the guideline by examining Australia's long experience with a children's television quota. The author argues that Australia's experience suggests that quantitative guidelines can lead to an increase in the quantity of children's educational programming. At the same time, as in Australia, broadcasters may try to count as children's educational programming programs that are not ...


Limitations On Claims Of Ownership And Claims For Royalties, Donald E. Biederman Jan 1997

Limitations On Claims Of Ownership And Claims For Royalties, Donald E. Biederman

Hastings Communications and Entertainment Law Journal

No abstract provided.


The Telecommunications Act Of 1996: Predicting The Winners And Losers, Robert M. Frieden Jan 1997

The Telecommunications Act Of 1996: Predicting The Winners And Losers, Robert M. Frieden

Hastings Communications and Entertainment Law Journal

The Telecommunications Act of 1996 has created substantial upheaval across the telecommunications landscape. On one hand, the 1996 Act created broad deregulatory and market entry opportunities for new market players; on the other hand, those implementing the Act have presumed that incumbent carriers will cooperate with new market entrants thereby accelerating the loss of market share, but gaining new market entry opportunities once competition begins to flourish. This Article analyzes the Various different factions that are likely to benefit from the Act, as well as those that are likely to suffer losses from telecommunications deregulation. The author concludes that the ...


Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship, Timothy E. Nielander Jan 1997

Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship, Timothy E. Nielander

Hastings Communications and Entertainment Law Journal

The global distribution of digitized materials through the Internet creates new challenges for traditional copyright law. Protection for moral rights continues to be a subject of international contention because of the global and interactive nature of cyberspace. Moral rights contemplate highly personal control over creative expression even after the artist has obtained the economic benefit provided by copyright laws throughout the globe. This Article argues that policies predicated on the free flow of information and of creative works in international trade may diminish the capacity of artists to claim violations of a right of integrity in digitized reproductions of their ...


Sex Online: Is This Adultery, Christina Tavella Hall Jan 1997

Sex Online: Is This Adultery, Christina Tavella Hall

Hastings Communications and Entertainment Law Journal

Should online infidelity be included as grounds for divorce in modern adultery statutes? This Note explores the history of divorce law and evaluates the possibilities of alleging online adultery as a sustainable reason for divorce. The author concludes that, in light of the normative goals of divorce law, the courts are an improper venue for addressing online affairs. Thus, online affairs, though possibly detrimental to marriage, are not "adultery" for legal purposes and therefore should not constitute adequate grounds for divorce in fault-based divorce proceedings.


Race As A Hiring/Casting Criterion: If Laurence Olivier Was Rejected For The Role Of Othello In Othello, Would He Have A Valid Title Vii Claim, Heekyung Esther Kim Jan 1997

Race As A Hiring/Casting Criterion: If Laurence Olivier Was Rejected For The Role Of Othello In Othello, Would He Have A Valid Title Vii Claim, Heekyung Esther Kim

Hastings Communications and Entertainment Law Journal

This Note analyzes whether an actor or actress has a cause of action against casting directors and/or producers under Title VII of the 1964 Civil Rights Act for employment discrimination based on race. The author discusses what constitutes a violation of the Act and the procedural requirements a plaintiff must comply with in order to establish a prima facie case of discrimination. This Note then addresses how the law does not effectively deal with the issue and how this inapplicability of the law affects employment opportunities for minority actors and actresses. The author proposes that currently, the only appropriate ...


Forgive Us Our Press Passes, Daniel Schorr Jan 1997

Forgive Us Our Press Passes, Daniel Schorr

Hastings Communications and Entertainment Law Journal

No abstract provided.


The Talent Agencies Act: Time For A Change, Edwin F. Mcpherson Jan 1997

The Talent Agencies Act: Time For A Change, Edwin F. Mcpherson

Hastings Communications and Entertainment Law Journal

Several years ago, the Talent Agencies Act was an effective tool for regulating unscrupulous agents and would-be agents, and the Labor Commissioner was a rigorous enforcer of the law. As recently as two to three years ago, the Act was interpreted and enforced uniformly and strictly, and wreaked havoc on the personal management profession. However, more recently the Labor Commissioner has left much of the enforcement and interpretation of the Act up to the courts. Superior Court judges do not understand (or do not care to understand) the Act, and appellate justices appear to be just as confused. The author ...


Patent Opinions, Privileges, And The Advice Of Counsel Defense To Claims Of Willfull Patent Infringement: Litigation Counsel Caught In The Crossfire, Michael M. Markman Jan 1997

Patent Opinions, Privileges, And The Advice Of Counsel Defense To Claims Of Willfull Patent Infringement: Litigation Counsel Caught In The Crossfire, Michael M. Markman

Hastings Communications and Entertainment Law Journal

The interests advanced by the attorney-client privilege and work product doctrines are a subject of frequent debate. Scholars and practitioners agree, however, that both forms of discovery protection must be waived in certain circumstances. One such situation is where a client asserts the "advice of counsel" as a defense. In the arena of patent litigation, the waiver of discovery protection arises where the alleged patent infringer asserts the advice of counsel defense to claims of willful patent infringement.

The scope of waiver of discovery protections upon asserting the advice of counsel defense to claims of willful patent infringement is expanding ...


The Fairness In Musical Licensing Act: The Tavern Bill Casts A Shadow, Julie B. Raines Jan 1997

The Fairness In Musical Licensing Act: The Tavern Bill Casts A Shadow, Julie B. Raines

Hastings Communications and Entertainment Law Journal

The Fairness in Musical Licensing Act, now pending before Congress, would allow restaurants owners and other businesses to play copyrighted music in their place of business without paying royalties or licensing fees to the copyright owner. This Article discusses the Fairness Act in the context of the 1976 Copyright Act and analyzes the effect of the Fairness Act on the future of the music industry if it passes into law. This Article also offers other possible solutions to the underlying conflicts that the Fairness Act seeks to remedy. The author concludes that the Fairness Act unreasonably exempts a large group ...


Don't Bite The Hand That Feeds: A Call For A Return To An Equitable Talent Agencies Act Standard, Chip Robertson Jan 1997

Don't Bite The Hand That Feeds: A Call For A Return To An Equitable Talent Agencies Act Standard, Chip Robertson

Hastings Communications and Entertainment Law Journal

This Note addresses the current conflict in case law surrounding the California Talent Agency Act. It examines the validity of the Wachs v. Curry incidental procurement exemption and Waisbren v. Peppercorn's strict rule prohibiting procurement without a license. The Note discusses the negative implications of the California Labor Commissions decision to abandon the Wachs incidental exemption and enforce the Waisbren holding. The author then suggests alternatives which may lead to more equitable solutions for artists, personal managers, and talent agents.