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Full-Text Articles in Law

The Games People Play: Sega V. Accolade And The Right To Reverse Engineer Software, William S. Coats, Heather D. Rafter Jan 1993

The Games People Play: Sega V. Accolade And The Right To Reverse Engineer Software, William S. Coats, Heather D. Rafter

Hastings Communications and Entertainment Law Journal

In Sega v. Accolade, a case involving the legality of reverse engineering of computer software, the Ninth Circuit resolved copyright and trademark issues of first impression. The decision is of great significance for its legal analysis of the fair use doctrine and policies underlying the trademark law. This article provides background information useful to understanding Accolade from a technical and legal perspective. The authors conclude that the decision is consistent with the recent trend among the courts to limit the use of intellectual property laws to stifle competition.


Software Look And Feel Protection In The 1990s, Jack Russo, Jamie Nafziger Jan 1993

Software Look And Feel Protection In The 1990s, Jack Russo, Jamie Nafziger

Hastings Communications and Entertainment Law Journal

This article reviews the historical development of "look and feel" copyright protection of computer software, including discussion of decisions favoring broad protection, decisions favoring competitive principles, and decisions taking an analytic approach to software copyright protection. The article also analyzes recent U.S. Supreme Court decisions to explore how the Court may decide the computer software "look and feel" issues, including consideration of how Lanham Act trade dress protection might be applied to protect computer software visual displays.


It Is Time To Put Look And Feel Out To Pasture, Douglas K. Derwin Jan 1993

It Is Time To Put Look And Feel Out To Pasture, Douglas K. Derwin

Hastings Communications and Entertainment Law Journal

The author, who was present at the creation of "Look and Feel," now feels that the time has come to lay the theory to rest, because it is vague, confusing, and promotes overbroad analysis. Instead, he suggests analysis focusing on the different legal standards that apply to different elements in a computer program's user interface.


Add-On Infringements: When Computer Add-Ons And Peripherals Should (And Should Not) Be Considered Infringing Derivative Works Under Lewis Galoob Toys, Inc. V. Nintendo Of America, Inc., And Other Recent Decisions, Edward G. Black, Michael H. Page Jan 1993

Add-On Infringements: When Computer Add-Ons And Peripherals Should (And Should Not) Be Considered Infringing Derivative Works Under Lewis Galoob Toys, Inc. V. Nintendo Of America, Inc., And Other Recent Decisions, Edward G. Black, Michael H. Page

Hastings Communications and Entertainment Law Journal

The large and growing installed base of computer products is quickly giving rise to a large secondary market for computer add-ons that add new features to or enhance the performance of primary computer products. This article discusses how copyright doctrines, including the derivative works and fair use doctrines, have been-and should be-applied to computer add-ons. After analyzing the current state of the law under the Ninth Circuit's decision in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., and other decisions, the authors argue that copyright doctrines should be construed to encourage the use of add-ons that add new features …


Shrinkwrap License Agreements: New Light On A Vexing Problem, David L. Hayes Jan 1993

Shrinkwrap License Agreements: New Light On A Vexing Problem, David L. Hayes

Hastings Communications and Entertainment Law Journal

Computer software companies rely widely on the use of "shrinkwrap" license agreements. Previous decisions have called into question the general enforceability of these agreements as contracts of adhesion, and the enforceability of specific provisions under policies of federal supremacy. This article analyzes the implications of a more recent decision, Step-Saver Data Systems, Inc. v. Wyse Technology, which focused on the rules of contract formation under the U.C.C. and their application when deciding if a shrinkwrap license governs a transaction at all. The analysis of the case calls into question the legal efficacy of many widespread marketing practices currently used in …


Crime Scene Videotapes: Are Television Techniques Violating The Confrontation Clause, Katharyn Bond Jan 1993

Crime Scene Videotapes: Are Television Techniques Violating The Confrontation Clause, Katharyn Bond

Hastings Communications and Entertainment Law Journal

Videotape presentations in courtroom proceedings are admissible upon the proper foundation of accuracy and faithfulness. Anyone present at the taping of the crime scene may establish the requisite foundation. The admissibility of videotaped evidence is premised on the assumption that the technology itself is neutral and reliable, and that it accurately conveys what is in front of the camera. This note counters the validity of this assumption in the context of crime scene videotapes. Grisly crime scenes are now videotaped by police officers and later used by prosecutors at trial as demonstrative evidence. This note argues that it is the …


The Use Of Amateur Videotapes As Evidence In Criminal Prosecutions: Citizen Empowerment Or Little Brother's New Silver Platter, Nicholas R. Mack Jan 1993

The Use Of Amateur Videotapes As Evidence In Criminal Prosecutions: Citizen Empowerment Or Little Brother's New Silver Platter, Nicholas R. Mack

Hastings Communications and Entertainment Law Journal

As public access to inexpensive and versatile "camcorders" grows, U.S. courts face a new source of crime evidence. Through a survey of recent examples, including the Rodney King beating, this note addresses the potential of private citizens' videotapes of criminal acts. Videotapes may empower citizens to fight crime safely and legally, as courts will probably receive such videotaped evidence favorably. However, with the increasing means and incentives for "video vigilantism" comes a risk of invasions of privacy, as technology outpaces the law. Limited neither by the Fourth Amendment nor the Electronic Communications Privacy Act of 1986, citizens' videotapes can introduce …


Why Can't I Watch This Video Here - Copyright Confusion And Performances Of Videocassettes & (And) Videodiscs In Libraries, J. Wesley Cochran Jan 1993

Why Can't I Watch This Video Here - Copyright Confusion And Performances Of Videocassettes & (And) Videodiscs In Libraries, J. Wesley Cochran

Hastings Communications and Entertainment Law Journal

The dramatic growth of video resources in library collections in the past twenty years brought with it disagreement between librarians and copyright owners concerning performances of videocassettes and videodiscs in libraries. This article reviews the application of copyright law to performances of videocassettes and videodiscs and describes typical uses of these resources in academic, public, and private libraries. The author then relates the availability of statutory defenses to claims of infringement and concludes that many performances of videocassettes and videodiscs in libraries are permitted by the fair use limitation and the educational exemption found in the Copyright Act of 1976. …


California Art Legislation Goes Federal: Progress In The Protection Of Artists' Rights, Thomas M. Goetzl Jan 1993

California Art Legislation Goes Federal: Progress In The Protection Of Artists' Rights, Thomas M. Goetzl

Hastings Communications and Entertainment Law Journal

The author of this article was Program Chair of the Art Law Section meeting at the 1993 annual convention of the Association of American Law Schools. In the article, he briefly reviews state and federal legislative enactments that have affected the visual arts. The author then summarizes the presentations of each of the panelists at the Art Law Section meeting. Finally, the author offers his own comments on the Resale Royalty Report that was prepared by the Copyright Office and submitted to Congress in December 1992.


What's Wrong With Vara: A Critique Of Federal Moral Rights, Peter H. Karlen Jan 1993

What's Wrong With Vara: A Critique Of Federal Moral Rights, Peter H. Karlen

Hastings Communications and Entertainment Law Journal

The Visual Artists Rights Act of 1990 (VARA) may represent the most important artists' rights legislation in the history of the United States. Yet, according to the author, VARA is replete with ambiguities, trouble spots, omissions, and potential problems which will only be resolved in the courts or, preferably, through early legislative amendments. This article analyzes the key portions of VARA dealing with subject matter, ownership, rights, duration, waiver, works in buildings, and preemption. Each area of the statutory text is followed by the author's commentary.


Moral Rights And Real Life Artists, Peter H. Karlen Jan 1993

Moral Rights And Real Life Artists, Peter H. Karlen

Hastings Communications and Entertainment Law Journal

Although both moral rights legislation and moral rights litigation have proliferated in recent years, there is still a dearth of published opinions dealing with moral rights issues. This article, derived from the author's extensive experience with moral rights cases, provides an insight into the critical issues in moral rights litigation. The author cites anecdotal information as well as cases that have garnered attention in the art world but did not yield published court opinions.


A Comparison Of State And Federal Moral Rights Protection: Are Artists Better Off After Vara, Edward J. Damich Jan 1993

A Comparison Of State And Federal Moral Rights Protection: Are Artists Better Off After Vara, Edward J. Damich

Hastings Communications and Entertainment Law Journal

VARA, which became effective June 1, 1991, provides the first federal statutory recognition of the moral rights of integrity and attribution for works of visual art. Prior to VARA's enactment, some states, including the art centers of California and New York, had already enacted moral rights statutes. This article compares VARA with state moral rights statutes. It concludes that VARA is clearly an advance since only eleven states have moral rights statutes and not all provide more protection. However, the author suggests that the state statutes, taken as a whole, protect more kinds of works and offer broader protection than …


Droit De Suit: The Artist's Right To A Resale Royalty, Marilyn J. Krestinger Jan 1993

Droit De Suit: The Artist's Right To A Resale Royalty, Marilyn J. Krestinger

Hastings Communications and Entertainment Law Journal

This article discusses an artist's right to participate in the profits or royalties from the resale or use a work. It briefly traces the right to its European roots, notes the current countries that have an effective resale royalty, and then discusses the status of the right in the United States, summing up the recent report of the U.S. Copyright Office to Congress. The article concludes that if the European Community harmonizes existing droit de suite laws within the Community, then the United States may move in that direction.


California Arts Legislation Goes Federal, Richard Mayer Jan 1993

California Arts Legislation Goes Federal, Richard Mayer

Hastings Communications and Entertainment Law Journal

The author provides a unique perspective from which to view moral rights and resale royalty legislation-that of an artist. His article relates his personal insights into the inception and enactment of the California Resale Royalties Act, the California Art Preservation Act, and VARA. In doing so, he also explores the issues surrounding resale royalties and moral rights.


Creators Caught In The Middle: Visual Artists Rights Act Preemption Of State Moral Rights Law, Joshua H. Brown Jan 1993

Creators Caught In The Middle: Visual Artists Rights Act Preemption Of State Moral Rights Law, Joshua H. Brown

Hastings Communications and Entertainment Law Journal

VARA is the first federal legislation allowing American artists to protect their works' integrity and to be recognized as authors despite the continuing sale or other transfer of their art. Such privileges, known as "moral rights," have been an integral part of European law for over a century, and have been incorporated into many American states' laws within recent years. With the passage of VARA, the moral rights laws of many states became redundant. This note attempts to determine the extent to which VARA preempts state laws, focusing on the New York, California, and Massachusetts statutes.


In Memory Of Chief Judge Robert F. Peckham, Wayne D. Brazil, Jordan Eth, Thelton E. Henderson Jan 1993

In Memory Of Chief Judge Robert F. Peckham, Wayne D. Brazil, Jordan Eth, Thelton E. Henderson

Hastings Law Journal

No abstract provided.


Nude Dancing, Expressive Conduct, And The First Amendment: Reviewing Barnes V. Glen Theatre, Edward Mckinley Urschel Jan 1993

Nude Dancing, Expressive Conduct, And The First Amendment: Reviewing Barnes V. Glen Theatre, Edward Mckinley Urschel

Hastings Constitutional Law Quarterly

No abstract provided.


Copyright Registration For Computer Programs And Screen Displays, Nancy H. Lawrence Jan 1993

Copyright Registration For Computer Programs And Screen Displays, Nancy H. Lawrence

Hastings Communications and Entertainment Law Journal

This article summarizes the practices of the U.S. Copyright Office for registration of copyright claims in computer programs and screen displays, and touches on some of the new software developments that raise issues relevant to registration.


The Civil Jury In America: Scenes From An Unappreciated History, Stephan Landsman Jan 1993

The Civil Jury In America: Scenes From An Unappreciated History, Stephan Landsman

Hastings Law Journal

In his article, Professor Landsman surveys the historical progress of the civil jury. He argues that the jury has not been an unchanging icon of courtroom procedure but an exceptionally adaptable adjudicatory device. The earliest jury was an inquisitorial mechanism devoted to gathering information for England's Norman Conquerors. While the jury's association with state authority continued for centuries, by the time of the Stuarts' reign it had been transformed into a bulwark of liberty and a vehicle for democratic action.

The American jury too has been protean. In early Colonial times, it served as the essential instrument of governance. The …


Bargaining With Uncertainty, Moral Hazard, And Sunk Costs: A Default Rule For Precontractual Negotiations, Juliet P. Kostritsky Jan 1993

Bargaining With Uncertainty, Moral Hazard, And Sunk Costs: A Default Rule For Precontractual Negotiations, Juliet P. Kostritsky

Hastings Law Journal

Traditionally, courts have refused to compensate disappointed bargainers for reliance costs incurred prior to the formation of a bargained-for contract. Although these results could be justified under the economic assumptions that prevailed in the late nineteenth and early twentieth centuries, they are wholly inapposite to the structure of modem contracting. Negotiations for complex or long-term transactions often proceed incrementally today, with each party learning more at successive stages before making a final decision whether to commit. Under current law, a promisor may require a promisee to make significant, transaction-specific precontractual investments (sunk costs), profit from the information produced by those …


The Supreme Court And Its First Amendment Constituency, Mark Tushnet Jan 1993

The Supreme Court And Its First Amendment Constituency, Mark Tushnet

Hastings Law Journal

In this Essay, Professor Tushnet argues against the common perception that rulings favoring First Amendment claims by a conservative Supreme Court are surprising. The Court's decisions result from doctrinal concerns-particularly the desire of some Justices for clear rules that reduce judicial discretion-and, more importantly, from the Court's desire to satisfy the interests of an important constituency, the respectable media. Those media disseminate the Court's decisions to the wider public, and the Court can ensure a favorable public image by satisfying the media's interests. Professor Tushnet indicates how this broad argument must be qualified to distinguish between the print and broadcast …


History, Tradition, The Supreme Court, And The First Amendment, Erwin Chemerinsky Jan 1993

History, Tradition, The Supreme Court, And The First Amendment, Erwin Chemerinsky

Hastings Law Journal

In the last decade, the Supreme Court increasingly has declared that constitutional interpretation should be controlled by tradition and history. Most importantly, the Court has ruled that rights should not be judicially protected under the Constitution unless there is a tradition of protection. Professor Chemerinsky describes this trend and accounts for its origins. He then argues that this heavy emphasis on history and tradition in constitutional interpretation fails to provide the desired constraint on judicial discretion and is undesirable as a method of analysis.


Trouble On Track Two: Incidental Regulations Of Speech And Free Speech Theory, Larry A. Alexander Jan 1993

Trouble On Track Two: Incidental Regulations Of Speech And Free Speech Theory, Larry A. Alexander

Hastings Law Journal

In this Essay, Professor Alexander examines the First Amendment status of laws regulating the noncommunicative impact of speech, what Lawrence Tribe calls "track two" laws. Professor Alexander argues that there is and should be no First Amendment distinction between time, place, and manner analysis and symbolic speech analysis. He argues, moreover, that all laws have information effects, not just laws aimed at communicative impact or the narrow categories of time, place, and manner regulations and regulations violated to effect symbolic speech. Notwithstanding their information effects, laws not aimed at communicative impact cannot be handled in any principled manner under the …


The Four American Constitutions: A New Perspective, Ray Forrester Jan 1993

The Four American Constitutions: A New Perspective, Ray Forrester

Hastings Law Journal

The United States Constitution is treated as a singular document in the study of law. In this Essay, Professor Forrester posits that there are actually four Constitutions, each sufficiently distinct to warrant treatment as an individual source of constitutional law.

The Essay presents a paradigm of four Constitutions: The "First" Constitution is the original, adopted in 1787; the Second Constitution is the Bill of Rights; the Third Constitution consists of the Civil War Amendments; and the Fourth Constitution is the Due Process Clause of the Fourteenth Amendment, as interpreted by the Supreme Court. Professor Forrester believes that the significance of …


A Clash At The Bedside: Patient Autonomy V. A Physician's Professional Conscience, Judith F. Daar Jan 1993

A Clash At The Bedside: Patient Autonomy V. A Physician's Professional Conscience, Judith F. Daar

Hastings Law Journal

Advances in medical science and technology have enabled physicians to effectively sustain patients' biological existence without curing or relieving their underlying illnesses. In some cases, physicians may perceive the application of these advances as medically futile or inappropriate. However, the jurisprudence of medical decision making has focused on patient autonomy, often giving patients the right to demand whatever treatments are available, regardless of cost, prognosis, and the advice of their physician.

Professor Daar examines the role a physician's professional conscience plays in the jurisprudence of medical decision making. After criticizing the courts' inconsistent response to a physician's assertion of professional …


Don't Ask--Don't Tell: The Secret Practice Of Physician-Assisted Suicide, Julia Pugliese Jan 1993

Don't Ask--Don't Tell: The Secret Practice Of Physician-Assisted Suicide, Julia Pugliese

Hastings Law Journal

The United States Supreme Court recently acknowledged that the constitutional right to privacy encompasses a patient's right to refuse medical treatment. The Court has been reluctant, however, to extend this right to encompass physician-assisted suicide. This Note argues that legalization of physician-assisted suicide is the next logical step in granting freedom and personal autonomy for suffering, terminally ill patients. However, because of the need for specific guidelines the proper forum for this issue is not the Supreme Court, but state legislatures.

The Note begins by examining the reality that assisted suicide presently occurs in an unregulated environment and posits that …


The Impression Of Possible Bias: What A Neutral Arbitrator Must Disclose In California, Matthew David Disco Jan 1993

The Impression Of Possible Bias: What A Neutral Arbitrator Must Disclose In California, Matthew David Disco

Hastings Law Journal

In Commonwealth Coatings Corp. v. Continental Casualty Co., the United States Supreme Court held that when a neutral arbitrator fails to disclose a relationship that gives rise to an impression of possible bias, the arbitrator's award is subject to vacation. California courts adopted this holding and have applied it when interpreting the California Arbitration Act. Identifying a "relationship that gives rise to an impression of possible bias" might seem straightforward; however, the California courts have struggled with this question.

This Note surveys the California court of appeal decisions interpreting and applying the impression of possible bias standard, and concludes that …


Accountants' Liability After Bily V. Arthur Young & Co.: A More Equitable Proposal For Third Party Recovery, Thomas G. Mackey Jan 1993

Accountants' Liability After Bily V. Arthur Young & Co.: A More Equitable Proposal For Third Party Recovery, Thomas G. Mackey

Hastings Law Journal

In today's business world, the "unqualified opinion"-an auditor's statement that a business's financial statements conform to accounting industry standards-has become a prerequisite for attracting investment in business ventures. When third parties are economically injured after relying on such opinions, the question arises whether the auditor owes a duty of care to third parties.

From 1986 until 1992, California's answer was that an accountant was liable for injury to a third party if that injury was reasonably foreseeable. The 1992 California Supreme Court decision Bily v. Arthur Young discarded this approach in favor of new standard. The new standard requires a …


Fraud And Insider Trading In American Securities Regulation: Its Scope And Philosophy In A Global Marketplace, Donald C. Langevoort Jan 1993

Fraud And Insider Trading In American Securities Regulation: Its Scope And Philosophy In A Global Marketplace, Donald C. Langevoort

Hastings International and Comparative Law Review

The principal antifraud provision of securities law in the United States is rule lOb-5. Fraud consists of either a material misstatement reasonably calculated to influence the investing public or silence when an independent duty to speak arises because of prior conduct or a pre-existing fiduciary duty. Judicial theories pursuant to this rule such as the "abstain or disclose" theory and the "misappropriation" theory constitute the major part of U.S. insider trading law. The author contends that the two main tests used to determine when rule lOb-5 rule is applicable, the "effects test" and the "conduct test," are too broad and …


Business Buy Outs And International Regulation, Keizo Sakata Jan 1993

Business Buy Outs And International Regulation, Keizo Sakata

Hastings International and Comparative Law Review

Although business buy-outs have traditionally been disfavored in Japan, recently Japanese businesses have begun to recognize the numerous benefits business buy-outs offer. The number of Japanese corporations purchasing foreign businesses has dramatically increased in recent years. Business buy-outs, however, pose numerous problems for both the purchasing company and the company being purchased. The author argues that government regulation of business buy-outs should be increased to minimize the problems which may result from such business activity.