Law Commons^™

Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

Domain Names, Trademarks, And The First Amendment: Searching For Meaningful Boundaries, Margreth Barrett

Faculty Scholarship

No abstract provided.

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

Network Neutrality And Industry Structure, T. Randolph Beard, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak

UC Law SF Communications and Entertainment Journal

In its attempt to establish rules that preserve the "openness" of the Internet, the federal government has recently considered implementing various regulatory constraints on the behavior of broadband service providers in order to ensure that consumers can freely access third-party applications over broadband networks without the fear that the network provider will deteriorate transmission to third-party services in favor of their own. Adopting these proposed "Network Neutrality" requirements, however, could exacerbate the very highly-concentrated industry structure by increasing industry concentration, and plausibly even rendering monopoly. Such forced commoditization of broadband access will leave consumers unambiguously worse off.

Antitrust And Sports League Franchise Relocation: Bringing Raiders I Into The Modern Era Of Antitrust Law, Brett Gibbs

UC Law SF Communications and Entertainment Journal

Sports relocation is traumatic for die-hard sports fans. History and long-standing tradition are often thrust aside in pursuit of lucrative offers of stadium financing. Scholars often cite the leading case on sports relocation, Los Angeles Memorial Coliseum v. National Football League (Raiders I), for the proposition that restrictions on sports franchise relocation are illegal under the Sherman Act. However, since Raiders I, there have been two significant developments in antitrust law: the in-depth rule of reason approach and the "small but significant increase in price" approach. In light of these developments, sports leagues should not blindly rely on Raiders I, …

Who Owns A Home Run - The Battle Of The Use Of Player Performance Statistics By Fantasy Sports Websites, Jason Shane

UC Law SF Communications and Entertainment Journal

Fantasy sports are becoming increasingly popular, and with the increase in popularity comes an increase in legal scrutiny. Fantasy sports trade on the statistics of professional athletes. This raises the question: who owns these statistics? Copyright law, the right to publicity and the First Amendment are all implicated. Ultimately, the public interest in this information trumps assertions of ownership by both the professional athletes and the leagues in which they play.

Fisher Of Genes: Patentability Of Expressed Sequence Tags, Joshua Kim

UC Law SF Communications and Entertainment Journal

The patentability of Expressed Sequence Tags (ESTs), small fragments of DNA that scientists use to identify genes, has been a topic of heated debate in intellectual property law and the scientific community. Much of the debate encompasses the far-reaching consequences of effectively placing control of thousands of ESTs into the hands of a few patent holders. In re Fisher, a recent Federal Circuit decision, was anticipated to settle the question of EST patentability, but may have failed to establish a decisive standard. A more workable standard calls for a clearer articulation of specific utility requirements as well as non-obviousness standards …

The Fourth Amendment And Cell Phone Location Tracking: Where Are We, Kevin Mclaughlin

UC Law SF Communications and Entertainment Journal

Cell phones are a way of life in our society. While most people readily use their cell phones, they don't realize that cell phones also provide signals to track their location. This manner of cell phone tracking may be a violation of the Fourth Amendment right to be free of unreasonable searches and seizures. Under the test developed in Katz and its progeny, depending on a number of factors, cell phone tracking may qualify as a reasonable search. However, because cell phone tracking appears to implicate a number of core Fourth Amendment doctrines, it appears to constitute an unreasonable search.

Evolution In Slow Motion: Opting Into A Digital World, Kristin Richards

UC Law SF Communications and Entertainment Journal

Google's "Library Project" which allows users to view snippets from books that have been scanned from library collections is the subject of two recently filed lawsuits. This article takes an in-depth look at the "Library Project" in light of modem copyright law. The "Library Project" presents courts with the difficult task of balancing consumers' desire for information on demand and authors' legal rights.

An Economic Model For The Incentive/Access Paradigm Of Copyright Propertization: An Argument In Support Of The Orphan Works Act, Sami J. Valkonen, Lawrence J. White

UC Law SF Communications and Entertainment Journal

This article proposes an economic model of the incentive-access paradigm for copyright designed to correspond to the goal of maximizing societal welfare.

The article begins with a discussion on the foundations of copyright and the objectives of the Constitution's Copyright Clause. The article adopts the majority view that the Constitution mandates that the copyright regime is designed to optimize the positive welfare impacts from copyright protection. Under this view, similarly as antitrust "protects competition, not competitors," the copyright regime should protect creativity, not creators. The result of this underlying policy objective is that the level of copyright propertization becomes a …

New Architectures For Music: Law Should Get Out Of The Way, Henry H. Perritt Jr.

UC Law SF Communications and Entertainment Journal

Copyright law is constitutionally justifiable only to the extent that it provides incentives for creative effort by reducing the risk of free riding. Technological advances repeatedly have revolutionized the economics of music creation, production and distribution. The latest developments in recording, digital compression, e-commerce and file sharing technologies are only the latest in a long line of disruptive technological developments. These technologies reduce the risk of free riding, thereby justifying a narrowing of the scope of copyright protection for music. The paper carefully examines the elements of production and consumption functions for music, explaining how greatly reduced barriers to entry …

Betting On Success: Can The Unlawful Internet Gambling Enforcement Act Help The United States Achieve Its Internet Gambling Policy Goals, James N. Brenner

UC Law SF Communications and Entertainment Journal

This note addresses the effectiveness of the Unlawful Internet Gambling Enforcement Act (UIGEA) in achieving the United States' policy goals on tnternet gambling. This note does not discuss the wisdom of the United States' policy on Internet gambling, or the wisdom of the government's choice to prohibit, instead of regulate, Internet gambling to achieve its policy goals. Rather, this note focuses on whether or not the UIGEA adequately addresses the policy concerns over offshore Internet casinos. First, this note discusses federal laws, treaties, proposed legislation, and policy concerns which address Internet gambling. Second, this note discusses the language of the …

Pirates Of The Carribean: Offshore Internet Gambling Sites Cursed B Unlawful Internet Gambling Enforcement Act, Bunnam Sprehichet

UC Law SF Communications and Entertainment Journal

Internet gambling, once coined the "crack cocaine of gambling," has become somewhat of a reality. The industry has grown exponentially, attracting thousands of offshore Internet gambling operators that are unlicensed, untaxed, and unregulated. Policing these operators under decades old antigambling laws presents a difficult task because such laws were enacted before the advent of the Internet. Policy concerns including gambling by minors, gambling addiction, racketeering, tax preservation, and the recommendations by the National Gambling Impact Study Commission collectively prompted the promulgation of the Unlawful Internet Gambling Enforcement Act (UIGEA). The note analyzes the UIGEA to clarify its misconceptions and to …

Imus, Indecency, Violence & (And) Vulgarity: Why The Fcc Must Not Expand Its Authority Over Content, Clay Calvert

UC Law SF Communications and Entertainment Journal

This article, pivoting on events and controversies that occurred in 2007, addresses two questions affecting freedom of expression on the broadcast airwaves: (1) Should the regulatory power of the Federal Communications Commission be expanded to include control over racist and sexist language like that used by radio host Don Imus in his infamous "nappy head hos" remark?; and (2) Should the regulatory power of the FCC be expanded, per its request to Congress, to include control over violent imagery and storylines on television, including broadcast, cable and satellite television? This article contends that the answer to both questions is the …

Constitutionalizing Mandatory Retraction In Defamation Law, Elad Peled

UC Law SF Communications and Entertainment Journal

This article discusses mandatory retraction, which court rulings and legal literature rarely have addressed. The article proposes a solution designed to provide adequate protection for the reputation of public figures, which may be defined as "constructive mandatory retraction." Under the proposed solution, courts handling public figures' libel actions against the media would be empowered to grant a new remedy, namely, a declaratory judgment stating that the falsity of the defaming publication has been established by clear and convincing proof, accompanied by an injunctive relief ordering the defendant to report on that decision in a prominent manner. Courts may grant this …

The California Supreme Court's Decision In Barrett V. Rosenthal: How The Court's Decision Could Further Hamper Efforts To Restrict Defamation On The Internet, Joshua Azriel

UC Law SF Communications and Entertainment Journal

In November 2006, the California Supreme Court ruled in Barrett v. Rosenthal that Internet "users" are immune from liability when they post or forward online information that is defamatory. The court cited section 230 of the 1996 Communications Decency (CDA) Act as precedent for its decision. The law grants immunity to Internet Service Providers (ISPs) and other "users" for any offensive material posted on their online interactive computer services. This article analyzes the Barrett ruling and argues that it leaves three questions unanswered: (1) How does the CDA apply to conspiracies between two users of the Internet where one is …

A Modern Analytical Framework For Monopolization In Innovative Markets For Products With Network Effects, John Mcgaraghan

UC Law SF Communications and Entertainment Journal

In the most recent of three landmark antitrust cases against software giant Microsoft, the company argued that courts should apply a different approach to analyzing monopolization charges against "new economy" industry defendants. The court rejected Microsoft's proposal, and this note explores the merit of some of its foundational principles. The note proposes an analytical framework that employs several mechanisms to address unique features of technology markets, such as the "competition for the field"" and "network effects." Under the proposed model, monopolization analysis would condemn those firms which misuse the power to control innovation in the market over time, rather than …

Network Neutrality Or Bias - Handicapping The Odds For A Tiered And Branded Internet, Rob Frieden

UC Law SF Communications and Entertainment Journal

This article takes an in-depth look at the clash between "Bellhead" and "Nethead" cultures in the complex world of internet access pricing and cost recovery schemes. In examining Bellhead business models, Rob Frieden identifies what constitutes reasonable price discrimination and what represents unfair trade practice. This article concludes that most Bellhead cost recovery models are lawful even though they will actually be a reduction in perceived value proposition for most consumers.