Law Commons^™

Care For A Sample? De Minimis, Fair Use, Blockchain, And An Approach To An Affordable Music Sampling System For Independent Artists, Sean M. Corrado

Fordham Intellectual Property, Media and Entertainment Law Journal

Thanks, in part, to social media and the digital streaming age of music, independent artists have seen a rise in popularity and many musicians have achieved mainstream success without the affiliation of a major record label. Alongside the growth of independent music has come the widespread use of music sampling. Sampling, which was once depicted as a crime perpetrated by hip-hop artists, is now prevalent across charttopping hits from all genres. Artists have used sampling as a tool to integrate cultures, eras, and styles of music while experimenting with the bounds of musical creativity. Artists whose works are sampled have …

Data Scraping As A Cause Of Action: Limiting Use Of The Cfaa And Trespass In Online Copying Cases, Kathleen C. Riley

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, online platforms have used claims such as the Computer Fraud and Abuse Act (“CFAA”) and trespass to curb data scraping, or copying of web content accomplished using robots or web crawlers. However, as the term “data scraping” implies, the content typically copied is data or information that is not protected by intellectual property law, and the means by which the copying occurs is not considered to be hacking. Trespass and the CFAA are both concerned with authorization, but in data scraping cases, these torts are used in such a way that implies that real property norms exist …

A Patent Reformist Supreme Court And Its Unearthed Precedent, Samuel F. Ernst

Fordham Intellectual Property, Media and Entertainment Law Journal

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules …

Argh, No More Pirating America’S Booty: Improving Copyright Protections For American Creators In China, Johnathan Ling

Fordham Intellectual Property, Media and Entertainment Law Journal

The advent of the internet brought about revolutionary changes and challenges to the world. Internet piracy is one area which is presenting new challenges, particularly to copyright holders such as artists, filmmakers, and creators. China has been a hotbed of piracy and is home to the second highest number of file sharing infringers in the world. China has made strides to improve its copyright protection, such as implementing a copyright law in 1990, as well as joining the World Trade Organization and signing on to the Agreement on Trade-Related Aspects of Intellectual Property Rights, which specifies minimum levels of intellectual …

The Trouble With Tinker: An Examination Of Student Free Speech Rights In The Digital Age, Allison N. Sweeney

Fordham Intellectual Property, Media and Entertainment Law Journal

The boundaries of the schoolyard were once clearly delineated by the physical grounds of the school. In those days, it was relatively easy to determine what sort of student behavior fell within an educator’s purview, and what lay beyond the school’s control. Technological developments have all but erased these confines and extended the boundaries of the school environment somewhat infinitely, as the internet and social media allow students to interact seemingly everywhere and at all times. As these physical boundaries of the schoolyard have disappeared, so too has the certainty with which an educator might supervise a student’s behavior.

Because …

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing …

Barbie In Bondage: What Orly Lobel’S Book “You Don’T Own Me: How Mattel V. Mga Entertainment Exposed Barbie’S Dark Side” Tells Us About The Commoditization Of The Female Body, Ann Bartow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Shopping For Privacy: How Technology In Brick-And-Mortar Retail Stores Poses Privacy Risks For Shoppers, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

As technology continues to rapidly advance, the American legal system has failed to protect individual shoppers from the technology implemented into retail stores, which poses significant privacy risks but does not violate the law. In particular, I examine the technologies implemented into many brick-and-mortar stores today, many of which the average everyday shopper has no idea exists. This Article criticizes these technologies, suggesting that many, if not all of them, are questionable in their legality taking advantage of their status in a legal gray zone. Because the American judicial system cannot adequately protect the individual shopper from these questionable privacy …

Laundering The Art Market: A Proposal For Regulating Money Laundering Through Art In The United States, Alessandra Dagirmanjian

Fordham Intellectual Property, Media and Entertainment Law Journal

As high-net worth individuals have increasingly viewed art as a method of diversifying their portfolios, prices in the high-end global art market have exploded in the past several years. At the same time, investors have developed new methods for accessing art’s liquidity, such as art lending services and exchanges. While the changing character of art towards an asset class has opened the door to new investment opportunities, it has also left the art market particularly vulnerable to money laundering schemes. Existing characteristics of the art market, including a lack of uniform record-keeping standards among dealers and the speculative nature of …

Sovereign Immunity For Rent: How The Commodification Of Tribal Sovereign Immunity Reflects The Failures Of The U.S. Patent System, Katrina G. Geddes

Fordham Intellectual Property, Media and Entertainment Law Journal

Last year, a Fortune 500 pharmaceutical company attempted to rent the sovereign immunity of an American Indian tribe in order to shield its patents on a dry-eye drug from invalidation by generic competitors in inter partes review. Pharmaceutical firms are notorious for pursuing unconventional methods to extend the duration of their patents and, in this sense, the maneuver is unsurprising. The exploitation, however, of an historically disenfranchised community with limited economic opportunities is particularly unsettling. This Article will provide, firstly, a factual summary of the legal background of this case; secondly, a review of the February 2018 decision of the …

How To Evaluate The Constitutional Legitimacy Of Regulating Speech Intermediaries: Lessons From A Century-Long Experience Of Media Regulation, Asaf Wiener

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public interest duties on today’s dominant communicative technologies, such as Netflix, YouTube, or Facebook. In contrast to current literature, which often advocates for adopting either a libertarian or a distributive position about communication policies and free speech values, this Article suggests an ideologically-neutral, fact-based examination for evaluating the various sources of legitimacy with regard to both “old” and “new” media regulation.

The first Part of the Article begins by adopting a sociohistorical perspective to taxonomize consensual sources for legitimizing media regulation within …

The Power Of Distant Rewards: Driving International Innovation Through United States Patent Incentives, Richard S. Gruner

Fordham Intellectual Property, Media and Entertainment Law Journal

Technological innovation outside the United States is increasing. The United States remains the largest single source of new inventions, but the rest of the world produces most technological advances. Yet, even as innovation capacity outside the United States grows, the production of advances remains underincentivized in many developed and developing countries. Weak incentives apply to the outlier advances that are the province of patent laws. These outlier advances—typically reflecting material departures from prior technical knowledge and potentially establishing fundamentally new lines of technological development and consumer products—are particularly important components of technological development. By shortchanging incentives for outlier advances, society …

A History Of Competition: The Impact Of Antitrust On Hong Kong’S Telecommunications Markets, Sandra Marco Colino

Fordham Intellectual Property, Media and Entertainment Law Journal

Hong Kong has only had cross-sector competition law since 2015, but the city’s telecommunications markets have been subject to sector-specific antitrust provisions for over two decades. The importance of nurturing an efficient, innovative, and competitive telecoms industry for Hong Kong’s economic prosperity was acknowledged already at the time the sector was liberalized in the 1990s. Yet until the late 2000s, the government vehemently opposed the adoption of competition law in virtually all other sectors of the economy. This paper examines the effectiveness of the regulatory framework set up to guarantee the protection of competition in the telecommunications sector in Hong …

Dirty Little Secrets: Fracking Fluids, Dubious Trade Secrets, Confidential Contamination, And The Public Health Information Vacuum, Elliot Fink

Fordham Intellectual Property, Media and Entertainment Law Journal

While the carbon energy industry has frequently claimed that hydraulic fracturing processes and ingredients are proprietary and protected by trade secret laws, their large scale and volume nationwide and the well-documented dangers that they pose to public health have brought fracking under scrutiny. When individuals have been adversely impacted in their own backyards, weak federal and state laws and regulation have generally left these impacted citizens with little to no recourse and part of this problem stems from questionable uses of privacy law, specifically dubious claims of trade secrecy. Focusing specifically on Pennsylvania as a model of insufficient state regulation …

The Private-Sector Ecosystem Of User Data In The Digital Age, Fordhamiplj@Gmail.Com

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …

Fictitious Commodities: A Theory Of Intellectual Property Inspired By Karl Polanyi’S “Great Transformation”, Alexander Peukert

Fordham Intellectual Property, Media and Entertainment Law Journal

The puzzle this Article addresses is this: how can it be explained that intellectual property (IP) laws and IP rights (IPRs) have continuously grown in number and expanded in scope, territorial reach, and duration, while at the same time have been contested, much more so than other branches of property law? This Article offers an explanation for this peculiar dynamic by applying insights and concepts of Karl Polanyi’s book “The Great Transformation” to IP. It reconstructs and then applies core Polanyian concepts of commodification (infra, II), fictitious commodities (infra, III), and countermovements (infra, IV) to the three main areas of …

The Gdpr-Blockchain Paradox: Exempting Permissioned Blockchains From The Gdpr, Anisha Mirchandani

Fordham Intellectual Property, Media and Entertainment Law Journal

When considering the legal landscape emerging after the General Data Protection Regulation went into effect on May 25, 2018, the uncertainty surrounding the Regulation reaches its peak when it is applied to blockchain technology. While the goals of storing personal data on permissioned blockchains may align with the goals of accuracy and transparency emulated by the GDPR, the language of the Regulation makes it likely that blockchain technology, as a whole, violates the GDPR. Permissioned blockchains have promising use cases and developments that have not only streamlined data storage, but also allowed users to have increased control over who accesses …

The Fourth Amendment And Technological Exceptionalism After Carpenter: A Case Study On Hash-Value Matching, Denae Kassotis

Fordham Intellectual Property, Media and Entertainment Law Journal

The Fourth Amendment has long served as a barrier between the police and the people; ensuring the government acts reasonably in combating crime. Fourth Amendment jurisprudence is more dynamic than other constitutional guarantees, and has undergone periodic shifts to account for technological and cultural changes. The Supreme Court’s 2018 decision in United States v. Carpenter marks the most recent jurisprudential shift, as the Court departed from the well-settled reasonable expectation of privacy test to account for a new technology (CSLI records). This Note examines Carpenter’s impact on future Fourth Amendment cases, using another novel surveillance technique, hash-value matching, as a …

Bringing Swirly Music To Life: Why Copyright Law Should Adopt Patent Law Standards For Joint Authorship Of Sound Engineers, Andrew Nietes

Fordham Intellectual Property, Media and Entertainment Law Journal

Geoff Emerick, acclaimed sound engineer for The Beatles, passed away in October of 2018. Emerick helped shape The Beatles’ sound and worked to create many of their most recognized songs, yet, under the current joint authorship standards he likely would not be considered an author of these songs. This Note details the work carried out by sound engineers in the music industry and describes how current joint authorship standards affect them. It then proposes a reinterpretation of joint authorship in the copyright statute to ease these standards by borrowing from another area of intellectual property law.

A Tale Of Sovereignty And Liberalism: The Lockean Myth Of Intellectual Property, Shaoul Sussman

Fordham Intellectual Property, Media and Entertainment Law Journal

The influence of John Locke’s thought upon the general legal perception of property rights cannot be overstated. Locke’s Labor theory of property holds that property originally comes about through individual exertion upon natural objects and that legal rights in the result of this labor are in fact property rights. The Lockean theory of property has dominated the Anglo-American legal discourse and is frequently used to justify various property regulation schemes. Despite this fact, many scholars have struggled to apply the theory to the field of intellectual property, and in particular to the field of patents and copyright. Many have attempted …

Standing Up For Stand-Up Comedy: Joke Theft And The Relevance Of Copyright Law And Social Norms In The Social Media Age, Hannah Pham

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article reveals that while social norms offer protection to stand-up comedians against joke theft within the stand-up comedy industry, they do little to prevent joke theft outside the traditional comedy community. Joke theft has risen with the increased popularity and use of social media. In particular, joke aggregators such as “The Fat Jew” take and publish on social media jokes by other comedians. In the social media world, the norms system underperforms. Norms do little to protect against joke theft by joke aggregators because they exist outside of the industry and are unaffected by norms governing stand-up comedians.

This …

Accountability Of Algorithms In The Gdpr And Beyond: A European Legal Framework On Automated Decision-Making, Céline Castets-Renard

Fordham Intellectual Property, Media and Entertainment Law Journal

Automated decision systems appear to carry higher risks today than they ever have before. Digital technologies collect massive amounts of data and evaluate people in every aspect of their lives, such as housing and employment. This collected information is ranked through the use of algorithms. The use of such algorithms may be problematic. Because the results obtained through algorithms are created by machines, they are often assumed to be immune from human biases. However, algorithms are the product of human thinking and, as such, can perpetuate existing stereotypes and social segregation. This problem is exacerbated by the fact that algorithms …

Towards A Transatlantic Concept Of Data Privacy, Erdem BüYüKsagis

Fordham Intellectual Property, Media and Entertainment Law Journal

Due to ever-growing big data and the ease with which information can be transmitted over the Internet, it has become more complicated for individuals to enjoy their rights to access, to rectify and erase personal information, and for the judiciary to apply conventional privacy law rules, such as consent, transparency, and purpose limitation. On both sides of the Atlantic, this phenomenon has motivated legislatures and courts to extend protective measures in data privacy. Nevertheless, data protection standards in the United States and the European Union (“EU”) appear to many observers to be radically different and even mutually incompatible. The European …

Preserving The Artistic Afterlife: The Challenges In Fulfilling Testator Wishes In Art-Rich, Cash-Poor Estates, Hanna K. Feldman

Fordham Intellectual Property, Media and Entertainment Law Journal

Artists’ estates present unique legal issues distinct from the estates of art collectors-cum-investors, as these estates tend to be much more art-rich and cash-poor, leading to difficulties in funding legacies when there is no cash readily available and all of the value of the estate is tied up in the artworks themselves. Robert Indiana, an American sculptor who was frequently exploited throughout his life and now appears to be subject to posthumous exploitation, will be examined as a textbook example of such an artist’s estate. The issues surrounding Indiana’s estate exemplify the challenges in following a testator’s intent to leave …

The Concealed Cost Of Convenience: Protecting Personal Data Privacy In The Age Of Alexa, Lauren Bass

Fordham Intellectual Property, Media and Entertainment Law Journal

In today’s interconnected, internet-dependent, global information economy, consumers willingly, but often unwittingly, divulge to tech companies their personal and private data—frequently with little regard for its safekeeping or intended future use.

Enter Alexa, Amazon’s voice-activated, natural-language processing digital smart assistant. A sophisticated artificial intelligence (“AI”), Alexa insinuates itself into a user’s personal sphere, learns from and adapts to the surrounding environment, siphons personal information and data, and ultimately produces for the user a perfectly tailored, concierge experience. Convenience is the product. Data privacy is the cost.

Over one half of American consumers own an Alexa-enabled device or other AI-powered digital …

Platform Society: Copyright, Free Speech, And Sharing On Social Media Platforms, Fordhamiplj@Gmail.Com

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Towards A Jurisprudence Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Controlling Cargo: Amazon’S Predatory Attempt To Disrupt The Fashion Industry By Dominating The International Transportation Of Goods, Mary Kate Brennan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …