Law Commons^™

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …

The Supreme Court Gets The Ball Rolling: Ncaa V. Alston And Title Ix, Arianna Banks

Northwestern University Law Review

Student-athlete compensation has been a consistent topic of controversy over the past few years, as critics question the legitimacy of the NCAA’s notion of amateurism and proponents favor the status quo. The Supreme Court decision in NCAA v. Alston has only served to intensify the debate, opening the door to alternative compensation structures. Despite a unanimous ruling in favor of the athletes, the limited holding of the case has only produced further questions. In his scathing concurrence, Justice Kavanaugh raises one such question: how does a student-athlete compensation structure comply with Title IX? This Comment seeks to address that question …

Countering Personalized Speech, Leon G. Ho

Northwestern Journal of Technology and Intellectual Property

Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user …

Cheating In E-Sports: A Proposal To Regulate The Growing Problem Of E-Doping, Jamie Hwang

Northwestern University Law Review

E-sports, also known as professional video gaming, is growing rapidly around the world. In the United States, e-sports events sell out at large sporting venues, including the Staples Center in Los Angeles and the Barclays Center in New York. The growth of this multibillion-dollar industry comes with a host of new legal issues. Among them is the regulation of “e-doping”: the use of hacks and cheats during e-sports games, which gives e-dopers an unfair advantage. E-doping compromises the integrity of the industry, which is vital to its continued growth, by discouraging gamers and fans from trusting the fairness of e-sports. …

The Dawn Of A New Era: Antitrust Law Vs. The Antiquated Ncaa Compensation Model Perpetuating Racial Injustice, Amanda L. Jones

Northwestern University Law Review

Two crises in 2020 fueled the fire underlying a debate that has been smoldering for years: whether student athletes should be compensated. The COVID-19 pandemic coincided with the Black Lives Matter movement and drew unprecedented attention to systemic racism permeating society, including college sports that rely disproportionately on Black men risking physical harm to support an entire industry. The Supreme Court’s decision in NCAA v. Alston opened the door for some athletic conferences to offer student athletes unlimited education-related benefits and called out the NCAA’s business model that relies on not paying student athletes under the justification of amateurism. Alston …

Title Ix Administers A Booster Shot: The Effect Of Private Donations On Title Ix, Charlotte Franklin

Northwestern Journal of Law & Social Policy

Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination on the basis of sex in federally funded education programs or activities. Since its enactment, Title IX has dramatically increased interscholastic and intercollegiate athletic opportunities for women and girls. Despite indisputable progress since Title IX’s enactment, particularly for female athletes, many high schools and universities still fail to offer equal athletic opportunities for members of both sexes. Inadequate educational resources for high school and university athletic department administrators leads to a misunderstanding of Title IX’s requirements. This misunderstanding results in institutional misconduct and non-compliance with Title IX. In …

Long-Term Preservation Of Public Art: From Cultural Heritage To The Confederacy, Maliha Ikram

Northwestern Journal of Law & Social Policy

No abstract provided.

Whitewashing Expression: Using Copyright Law To Protect Racial Identity In Casting, Brandon Johnson

Northwestern University Law Review

Porchlight Music Theatre, a non-equity theatre company in Chicago, decided to capitalize on the popularity of Lin-Manuel Miranda’s smash hit Hamilton by producing one of Miranda’s earlier works, In the Heights. This earlier work tells the story of a predominantly Latinx community in New York’s Washington Heights neighborhood. Porchlight’s production, however, received significant negative attention when it was revealed that the lead character—Usnavi, an immigrant from the Dominican Republic—would be played by a white actor. While casting white actors in nonwhite roles is nothing new and has been a persistent (and persistently criticized) practice in both theatre and film, …

Disentangling The Right Of Publicity, Eric E. Johnson

Northwestern University Law Review

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.

This Article explains how, in the absence of a clear enunciation of its …

Apple Pie Propaganda? The Smith–Mundt Act Before And After The Repeal Of The Domestic Dissemination Ban, Weston R. Sager

Northwestern University Law Review

For over sixty years, the Smith–Mundt Act prohibited the U.S. Department of State and the Broadcasting Board of Governors (BBG) from disseminating government-produced programming within the United States over fears that these agencies would “propagandize” the American people. However, in 2013, Congress abolished the domestic dissemination ban, which has led to a heated debate about the role of the federal government in free public discourse. Although the 2013 repeal of the domestic dissemination ban promotes greater government transparency and may help counter anti-American sentiment at home, it also gives the federal government great power to covertly influence public opinion. To …

Derivative Works 2.0: Reconsidering Transformative Use In The Age Of Crowdsourced Creation, Jacqueline D. Lipton, John Tehranian

Northwestern University Law Review

Apple invites us to “Rip. Mix. Burn.” while Sony exhorts us to “make.believe.” Digital service providers enable us to create new forms of derivative work—work based substantially on one or more preexisting works. But can we, in a carefree and creative spirit, remix music, movies, and television shows without fear of copyright infringement liability? Despite the exponential growth of remixing technologies, content holders continue to benefit from the vagaries of copyright law. There are no clear principles to determine whether any given remix will infringe one or more copyrights. Thus, rights holders can easily and plausibly threaten infringement suits and …

Hero With A Thousand Copyright Violations: Modern Myth And An Argument For Universally Transformative Fan Fiction, Natalie H. Montano

Northwestern Journal of Technology and Intellectual Property

Copyright law is designed to protect the ownership and financial rights of the original author of a literary work. However, the internet has created new opportunities for amateur writers to create their own fan fiction based on such literary works. Borrowing from the ideas and characters of a work, fan fiction authors build upon and re-imagine these stories. Such fan works should be protected under the Fair Use Defense, but the power imbalance between amateur fan fiction authors and successful published authors often leads to the eradication of fan stories from the public domain.

This Comment argues that fan fiction …

Antitrust And Free Movement Risks Of Expanding U.S. Professional Sports Leagues Into Europe, Marc Edelman, Brian Doyle

Northwestern Journal of International Law & Business

This article discusses the legal risks that would emerge if the NBA and NFL decide to expand into Europe. Part I of this article explains the differences in operating structure between U.S. and European professional sports leagues. Part II discusses the differences in competition law between the United States and European Community. Part III explains why the legal status of age and education (age/education requirements) is more favorable to professional sports leagues under U.S. law than under EC law. Part IV explains why the legal status of league drafts and reserve systems also might be more favorable to professional sports …

"The Little State Department": Hollywood And The Mpaa's Influence On U.S. Trade Relations, Kevin Lee

Northwestern Journal of International Law & Business

In this article, I argue that the U.S. government has actively advocated domestic film industry interests in bilateral and multilateral trade agreements because of Hollywood's importance to the U.S. economy, and also because of the MPAA's influential lobbying efforts. Furthermore, I show that the MPAA has intervened directly in bilateral trade relations to protect its interests, even when such interests may run counter to the benefit of the U.S. economy.

Taxing The International Athlete: Working Toward Free Trade In The Americas Through A Multilateral Tax Treaty, Jeffrey Dunlop

Northwestern Journal of International Law & Business

At first glance, it does not appear that taxation issues facing the international athlete and developing free trade between North and South America are closely related; they represent very different aspects of cross-border transactions and investment. On the other hand, they may be related when viewed as sequential steps in the process toward developing sustained economic relationships. This article will attempt to bridge that gap. First, Part II of this article discusses the current United States approach toward taxation of international athletes. Next, Part III reviews the history and issues facing tax treaty negotiations between the United States and developing …