Law Commons^™

Tetris Holding V. Xio Interactive Isn’T As Great A Case As Video Game Developers Think It Is, Sam Castree Iii

AELJ Blog

Advances in technology have once again allowed a lone individual, or a small group, to create video games and get them out to the world. I have previously written on the growing problem of cyber-plagiarism – thieves completely copying the works of others and selling them via digital distribution in major online retailers. However, there are many other cases in which games are not blatantly stolen. Sometimes, game developers will merely take inspiration from an existing game, or even make completely coincidental similarities. Fortunately, judges have at their disposal a robust body of law dealing with the copyright’s idea/expression dichotomy, …

Save The Date – April 10th Cultural Property Event, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Committee for Cultural Policy and the Cardozo Arts and Entertainment Law Journal (AELJ) will be hosting a symposium at the Benjamin N. Cardozo School of Law on April 10, 2014 at 2 pm. Tentatively titled, Reform of U.S. Cultural Property Policy: Accountability, Transparency, and Legal Certainty, the event is a response to the forthcoming publication by William Pearlstein, A Proposal to Reform U.S. Law and Policy Relating to the International Exchange of Cultural Property, being published in AELJ’s Volume 32, Issue 2.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on December 12, …

Using Social Media In Rulemaking: Possibilities And Barriers, Michael E. Herz

Online Publications

“Web 2.0” is characterized by interaction, collaboration, non-static web sites, use of social media, and creation of user-generated content. In theory, these Web 2.0 tools can be harnessed not only in the private sphere but as tools for an e-topia of citizen engagement and participatory democracy. Notice-and-comment rulemaking is the pre-digital government process that most approached (while still falling far short of) the e-topian vision of public participation in deliberative governance. The notice-and-comment process for federal agency rulemaking has now changed from a paper process to an electronic one. Expectations for this switch were high; many anticipated a revolution that …

“Share His Dream” Getting Shared In Callmann’S Treatise, Cardozo Arts & Entertainment Law Journal

AELJ Blog

Joshua Bloomgarden’s note, Share His Dream: A Fair Use Standard for Historico-Political Figures’ Rights of Publicity, 31 Cardozo Arts & Ent. L.J. 149, has been cited by Callmann on Unfair Compet., TMs, & Monopolies in Section 22:32, Use of a natural person’s identity; the right of publicity.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 12, 2013. The original post can be accessed via the Archived Link button above.

“Stealing Bacardi’S Thunder” Cited By Treatise, Cardozo Arts & Entertainment Law Journal

AELJ Blog

We are so proud to congratulate our Volume 31 Editor-in-Chief, Sarah L. Farhadian, on having her Note cited by Callmann on Unfair Competition, Trademarks and Monopolies (4th Edition).

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 21, 2013. The original post can be accessed via the Archived Link button above.

The Brca Patents: The Good, The Bad, And The Science Excerpt, Amie Gibbons

AELJ Blog

Consider these scenarios: A man on the run from a corporation who has the rights to a specific gene line in his body, and the willingness to take samples from him by force; babies genetically engineered with genes to emphasize height, strength, and intelligence, and jobs granted based on genetic testing instead of proven merit; an airborne biological weapon designed to target members of a specific ethnic group to wipe them out efficiently without worries of killing those the wielder deems worthy to inherit the earth.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website …

2013 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life

Table of Contents:

Campus News, page 3

Clinics News, page 16

Faculty Briefs, page 18

Felix Wu, page 22

Booting Up, page 24

Michel Rosenfeld, page 36

Legal Style, page 40

Our New York, page 44

Peter Markowitz, page 46

Alumni News & Class Notes, page 58

Floyd Abrams, page 68

Defining Privacy And Utility In Data Sets, Felix T. Wu

Articles

Is it possible to release useful data while preserving the privacy of the individuals whose information is in the database? This question has been the subject of considerable controversy, particularly in the wake of well-publicized instances in which researchers showed how to re-identify individuals in supposedly anonymous data. Some have argued that privacy and utility are fundamentally incompatible, while others have suggested that simple steps can be taken to achieve both simultaneously. Both sides have looked to the computer science literature for support.

What the existing debate has overlooked, however, is that the relationship between privacy and utility depends crucially …

Guerilla Radio: How Unlicensed Live Tv Retransmissions Threaten The Music Industry, Brandon Sherman

AELJ Blog

Since February 2012, online live TV service “Aereo” has given its subscribers the ability to watch, record and replay over-the-air (“OTA”) broadcast television on any Internet-connected device. Since Aereo’s technology is precariously styled to avoid making public performances or infringing upon reproductions under the Copyright Act, it has so far avoided paying any license fees to broadcasters or content owners for its retransmissions. In July 2012, broadcasters sued Aereo for copyright infringement, but their motion for a preliminary injunction against the service was denied, and on April 1, 2013, the Second Circuit affirmed.

This post was originally published on the …

Is Your Birthday Suit An Intangible Medium Of Expression Or Are You Bound To The Shackles Of Copyright Law?, Arrielle Millstein

AELJ Blog

Human flesh is miraculous; it is the body’s largest organ weighing in at eight pounds, and measuring a total of twenty-two square feet. The skin not only functions as a protectant from life’s daily elements through its regenerative qualities, but also serves as a means for individuals to demonstrate self-expression; whether that is through body modifications, plastic surgery, tattoos, unique body piercings, skin stretching, or skin alterations for cultural traditions.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 29, 2013. The original post can be accessed via the Archived Link button above.

Annual Aelj Alumni Reception, Cardozo Arts & Entertainment Law Journal

AELJ Blog

All AELJ Alumni are invited to attend our annual reception at WinedUp Wine Bar, 913 Broadway, New York, NY on Thursday, November 7, 2013. Please RSVP by November 1, 2013.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 25, 2013. The original post can be accessed via the Archived Link button above.

Announcing Publication Of 31.3!, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The Staff and Editors of Volume 31 are pleased to announce that Volume 31, Issue 3 is on it’s way to subscribers, directly from the publisher. Grab a sneak peek of new scholarship from David Nimmer, Victoria Ekstrand, Richard Whitt, Lee Burgunder, and Guy Pesssach. Also, if you missed our Spring Symposium, a full transcript has been reprinted for your review.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on August 22, 2013. The original post can be accessed via the Archived Link button above.

Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz

Online Publications

I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about.

Rules Or Standards For Intestate Succession?, Stewart E. Sterk

Online Publications

Intestate succession law has traditionally been directed toward accomplishing two objectives: effectuating the likely intent of intestate decedents and minimizing administrative costs. Within the so-called “traditional” family, those objectives are rarely at odds. As a result, intestate succession law has traditionally been relatively simple: the decedent’s property is distributed to the decedent’s spouse and issue, and the only areas of controversy surround how much the spouse should take, and whether distribution to issue should be per stirpes, per capita, or by the UPC’s more refined “by representation” scheme.

Welcome New Staff Editors!, Cardozo Arts & Entertainment Law Journal

AELJ Blog

The June writing competition is complete. We are pleased to congratulate our new staffers on being selected to join us for 2013-14!

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on July 1, 2013. The original post can be accessed via the Archived Link button above.

Thirty-Fifth Annual Commencement Exercises, Benjamin N. Cardozo School Of Law

Pre-2019 Commencement Programs

Order of Exercises

Processional:

Herbert C. Dobrinsky, Vice President for University Affairs, Yeshiva University; Herald

Presiding:

Morton Lowengrub, Provost and Senior Vice President for Academic Affairs, Yeshiva University; Chief Marshal

Richard M. Joel, President and Bravmann Family University Professor, Yeshiva University

National Anthem:

Cantor Ira W. Heller, Class of 2008

Invocation:

Rabbi Ozer Glickman, Adjunct Professor, Benjamin N. Cardozo School of Law

Welcome:

Leslie E. Payson, Chair, Cardozo Board of Overseers, Benjamin N. Cardozo School of Law; Class of 1991

Remarks:

Matthew Diller, Dean, Benjamin N. Cardozo School of Law

Commencement Address:

The Honorable Dianne T. Renwick, Associate Justice of …

The Powers Of Congress And The President On Matters That Affect U.S. Foreign Affairs, Malvina Halberstam

Articles

No abstract provided.

Judicial Deference And Institutional Character: Homeowners Associations And The Puzzle Of Private Governance, Michael C. Pollack

Articles

Much of the study of judicial review of governing institutions focuses on the institutions of public government at the federal, state, and local levels. But the courts' relationship with private government is in critical need of similar examination, and of a coherent framework within which to conduct it. This Article uses the lens of homeowners associations-a particularly ubiquitous form of private government-to construct and employ such a framework. Specifically, this Article proceeds from the premise that judicial deference is less appropriate the more unaccountable a governing institution is, and therefore develops a set of tests for institutional accountability. Applied to …

Combating Counterfeits, David Bonilla

AELJ Blog

Counterfeiters continue to find creative and inventive ways to knock off goods and place those knockoffs in the marketplace. One need only take a brisk walk-through Times Square in order to come across tables laden with counterfeited fare, from not-so-red-bottomed Louboutin shoes to DVDs of movies not yet in theaters. The increasing prevalence of counterfeit goods in the marketplace has caused law firms and in-house legal departments to attempt numerous methods, beyond traditional civil litigation, to thwart counterfeiters. Cardozo’s Intellectual Property Law Society brought a panel together on November 15 to discuss the practices currently employed by law firms and …

Careers In Trademark Law, David Bonilla

AELJ Blog

Networking remains the name of the hiring-game. As the summer rapidly approaches and IPminded Cardozo students continue their attempts to secure IP-related summer employment, Cardozo’s Intellectual Property Law Society brought together a panel of IP attorneys to discuss careers in trademark law. The consensus: all’s quiet on the hiring front. Nonetheless, the panelists offered sage advice for legal job seekers in general and those interested in careers in trademark law in particular. Danielle Gorman, co-acquisitions editor of the Cardozo Arts & Entertainment Law Journal (“AELJ”), moderated the panel discussion.

This post was originally published on the Cardozo Arts & Entertainment …

Are Risks Wrong?, Anthony J. Sebok

Online Publications

In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong. Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”). Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on …

With Great Internet Bandwidth Comes Great Responsibility…Maybe, Gill Benedeck

AELJ Blog

We live in tumultuous times. Or so Professor David Nimmer, a prolific copyright law scholar, proposed during the Annual Burns Senior Lecture in Intellectual Property on January 17th 2013, at the Benjamin N. Cardozo School of Law. Armed with a highly animated PowerPoint presentation, Professor Nimmer guided over 100 students and practitioners through critical cases and legislative developments that address online copyright infringement.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 16, 2013. The original post can be accessed via the Archived Link button above.

The D.C. Circuit As "Hostile Stranger", Michael E. Herz

Online Publications

No abstract provided.

Rethinking The Boundaries Between Public Law And Private Law For The Twenty First Century: An Introduction, Michel Rosenfeld

Articles

The distinction between public law and private law has been both ever present and unwieldy in civil law as well as in common law jurisdictions. Kelsen found the distinction “useless” for “a general systematization of law,” and Paul Verkuil has remarked that “[i]f the law is a jealous mistress, the public-private distinction is like a dysfunctional spouse. . . . It has been around forever, but it continues to fail as an organizing principle.”

Response To Zadoff On Kwall, Roberta Rosenthal Kwall

Cardozo Law Review de•novo

In The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study, I demonstrate that a cultural analysis of halakhah views the norms of female ritualistic participation concerning being called to, and reading from the Torah as the result of environment, conditioning, history, and context, rather than as an unalterable mandate. To my knowledge, the idea that halakhah should be understood through a cultural analysis lens has not previously been explored in either the legal or Jewish studies literature. The paradigm developed in the Article was based on an extensive review of the cultural analysis literature and represents …

Zadoff On Kwall: A Historian’S Critique, Ethan Zadoff

Cardozo Law Review de•novo

The relationship between law and culture is a complex, dynamic, variegated, and multifaceted accord, an entanglement that belies the traditional dynamic of categorical distinction that, many posit, lies at the center of the two amorphous terms. Increasingly over the last decade and a half, scholars, particularly legal scholars, have started to reconsider the complexities of the legal in social and cultural environs, partially as a result of interdisciplinary methods of cultural theory, which have permeated the guarded borders of legal studies. Roberta Kwall’s article titled “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study” in the December …

Symmetry For Symmetry’S Sake: Why Bose Does Not Require Independent Review Of A Trial Court’S First-Amendment-Favorable Findings Of Fact, Joshua Wurtzel

Cardozo Law Review de•novo

This Note argues that Bose does not support the symmetrical application of independent review of facts by appellate courts in First Amendment cases, regardless of whether the First Amendment claimant won or lost below. While symmetrical procedures and results may be desirable in most parts of the law, symmetry is not required where that symmetry will inhibit a greater constitutional interest. In the independent review context, symmetrical application of Bose results in the reversal of First Amendment wins that would otherwise be upheld under clear error review. This result is clearly antithetical to Bose’s purpose of enhancing First Amendment protections.

The Second Circuit’S En Banc Crisis, Mario Lucero

Cardozo Law Review de•novo

Part I of this Note is an empirical survey of the history of the en banc practice in the Second Circuit. First is an explanation of the en banc process and an examination of the hearings en banc that did take place and their outcomes in the Supreme Court. Second is a discussion of the mini en banc, which is the practice of circulating opinions that serves as an abbreviated substitute for full en banc hearings. Third is an examination of the myriad opinions that have been inspired by the denials of rehearing en banc, with special attention to the …

Five Oft-Repeated Questions About China’S Recent Rise As A Patent Power, Peter K. Yu

Cardozo Law Review de•novo

This Article focuses on five key questions that I have been repeatedly asked in presentations or conferences exploring recent intellectual property developments in China. As the answers will suggest, the future of the Chinese intellectual property system is rather complex. This future reflects neither a rosy picture of China’s “great leap forward” in the intellectual property arena nor a continuously gloomy picture of pirates and counterfeiters. Instead, the picture is dualistic and highly dynamic. It includes both yin and yang—the yin of continued massive piracy and counterfeiting and the yang of China’s rise as a patent power.

Using Valuation-Based Decision Making To Increase The Efficiency Of China’S Patent Subsidy Strategies, William J. Murphy, John L. Orcutt

Cardozo Law Review de•novo

This Article explains how a disciplined and transparent valuation-based decision-making process can help the Chinese government design patent fee subsidy programs that allocate funds more consistently to deserving patents. In addition, this Article offers the outline of a practical valuation model the Chinese government could use to filter patent fee subsidy requests.