Communications Law Commons^™

Alternative Dispute Resolution And Emerging Online Technologies: Challenges And Opportunities, George H. Friedman

UC Law SF Communications and Entertainment Journal

By all measures, 1995 was a watershed year for the so-called "Information Superhighway." In increasing numbers, individuals, governments, and businesses-including attorneys, their clients, and the courts-are enjoying the expanded use of the burgeoning information and services available on computer networks such as the Internet. As courts and lawyers moved online, it was only natural that the Information Superhighway would ultimately build an "on-ramp" for the alternative dispute resolution (ADR) movement. This indeed occurred late in 1995 with the creation of innovative online ADR projects, several World Wide Web sites related to ADR, and a rapid increase in the use of …

The Talent Agencies Act: Time For A Change, Edwin F. Mcpherson

UC Law SF Communications and Entertainment Journal

Several years ago, the Talent Agencies Act was an effective tool for regulating unscrupulous agents and would-be agents, and the Labor Commissioner was a rigorous enforcer of the law. As recently as two to three years ago, the Act was interpreted and enforced uniformly and strictly, and wreaked havoc on the personal management profession. However, more recently the Labor Commissioner has left much of the enforcement and interpretation of the Act up to the courts. Superior Court judges do not understand (or do not care to understand) the Act, and appellate justices appear to be just as confused. The author …

The Association Of American Law Schools, Section On Mass Communications Law 1997 Annual Conference Panel: Sex, Violence, Children & The Media: Legal, Historical &Empirical; Perspectives, Lili Levi

Articles

No abstract provided.

Sifting Through The Wreckage Of Abc Reportage: Little Victories, Big Defeats & (And) Unbridled Media Arrogance, Clay Calvert

UC Law SF Communications and Entertainment Journal

This Article analyzes two recent high-profile cases involving investigative journalism by ABC News. It points out journalistic victories achieved in both cases that ultimately were overshadowed by other events. The Article also critiques the arrogance on the part of some journalists who flaunt generally applicable legal principles and cloak themselves in the First Amendment and the "right-to-know" justification for their actions. The author argues that journalists must provide both courts and the public with well reasoned explanations for their news gathering tactics if they want to expand the boundaries of First Amendment protection and boost journalistic credibility in the eyes …

Definite Confusion Over Likely Confusion, James W. Soong

UC Law SF Communications and Entertainment Journal

The U.S. circuit courts disagree on whether the likelihood of confusion determination in trademark law is a question of fact, law, or both. While the likelihood of confusion issue divides the circuits, scholarly commentary has been substantially uniform. Many legal commentators have argued that the likelihood of confusion determination should be deemed a question of fact for various reasons. In contrast, this Article proposes that the ultimate likelihood of confusion determination should be a question of law because of legal and policy considerations. This Article borrows the reasoning of recent Supreme Court precedent deciding that patent claim construction is a …

Sex Online: Is This Adultery, Christina Tavella Hall

UC Law SF Communications and Entertainment Journal

Should online infidelity be included as grounds for divorce in modern adultery statutes? This Note explores the history of divorce law and evaluates the possibilities of alleging online adultery as a sustainable reason for divorce. The author concludes that, in light of the normative goals of divorce law, the courts are an improper venue for addressing online affairs. Thus, online affairs, though possibly detrimental to marriage, are not "adultery" for legal purposes and therefore should not constitute adequate grounds for divorce in fault-based divorce proceedings.

Don't Bite The Hand That Feeds: A Call For A Return To An Equitable Talent Agencies Act Standard, Chip Robertson

UC Law SF Communications and Entertainment Journal

This Note addresses the current conflict in case law surrounding the California Talent Agency Act. It examines the validity of the Wachs v. Curry incidental procurement exemption and Waisbren v. Peppercorn's strict rule prohibiting procurement without a license. The Note discusses the negative implications of the California Labor Commissions decision to abandon the Wachs incidental exemption and enforce the Waisbren holding. The author then suggests alternatives which may lead to more equitable solutions for artists, personal managers, and talent agents.

Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship, Timothy E. Nielander

UC Law SF Communications and Entertainment Journal

The global distribution of digitized materials through the Internet creates new challenges for traditional copyright law. Protection for moral rights continues to be a subject of international contention because of the global and interactive nature of cyberspace. Moral rights contemplate highly personal control over creative expression even after the artist has obtained the economic benefit provided by copyright laws throughout the globe. This Article argues that policies predicated on the free flow of information and of creative works in international trade may diminish the capacity of artists to claim violations of a right of integrity in digitized reproductions of their …

Forgive Us Our Press Passes, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

Law And Order In Cyberspace: Washington Report, Nicholas W. Allard, David A. Kass

UC Law SF Communications and Entertainment Journal

Electronic commerce in cyberspace faces an uncertain legal environment. In many instances the laws that will shape the future growth and development of electronic commerce have yet to be written. Gaps in the regulatory framework, and rules from other contexts that are made obsolete by cyberspace technology, promote chaotic market conditions and impede innovation. Today, business activity or interaction with people which employs 19th and 20th Century communication technology is governed by an array of civil and criminal laws. It is, however, not at all clear which existing legal rules do or ought to apply to markets in cyberspace. From …

Enforcement Of Use Limitations By Internet Services Providers: How To Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber, Keith J. Epstein, Bill Tancer

UC Law SF Communications and Entertainment Journal

As the Internet continues its rapid growth and development, concerns regarding the potential for its misuse are also growing. Many of the abuses and misuses of the Internet defy simple solutions. Unacceptable uses of the Internet have triggered calls for regulation of cyberspace, harmed Internet users, and have sometimes resulted in liability for unwary Internet Service Providers. The authors considers the difficulties of Internet Service Providers and others who do business on or over the Internet caused by unacceptable Internet use, and proposes a set of solutions designed to protect their interests. Contractual use limitations, in conjunction with policies designed …

An Updated Consideration Of A Taxing Problem: The Harmonization Of State And Local Tax Laws Affecting Nonresident Professional Athletes, Marc Yassinger

UC Law SF Communications and Entertainment Journal

Professional athletes today can no longer merely concern themselves with their on-the-field performances. More and more states and cities, driven by growing deficits and the need to create more tax dollars, have made diligent efforts to focus their tax collection resources on visible individuals who earn sizable salaries in their jurisdictions. With their big salaries, nonresident professional athletes are easily identifiable targets who justify the effort. The author examines how the collection of taxes from nonresident professional athletes has created numerous problems, including inconsistent formulas employed by different jurisdictions, which has lead in some cases to double taxation.

This Note …

Race As A Hiring/Casting Criterion: If Laurence Olivier Was Rejected For The Role Of Othello In Othello, Would He Have A Valid Title Vii Claim, Heekyung Esther Kim

UC Law SF Communications and Entertainment Journal

This Note analyzes whether an actor or actress has a cause of action against casting directors and/or producers under Title VII of the 1964 Civil Rights Act for employment discrimination based on race. The author discusses what constitutes a violation of the Act and the procedural requirements a plaintiff must comply with in order to establish a prima facie case of discrimination. This Note then addresses how the law does not effectively deal with the issue and how this inapplicability of the law affects employment opportunities for minority actors and actresses. The author proposes that currently, the only appropriate remedy …

The Quality Of First Amendment Speech, Randall P. Bezanson

UC Law SF Communications and Entertainment Journal

One of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First …

Curing The Inequitable Conduct Plague In Patent Litigation, Glenn E. Von Tersch

UC Law SF Communications and Entertainment Journal

The defense of unenforceability due to inequitable conduct in patent infringement suits has become an absolute plague. Senior Judge Nichols of the Federal Circuit said as much ten years ago, and the problem still remains. Because of the expense of litigating such a defense, patent owners settle valid infringement claims for cents on the dollar, while infringers suffer little more than the slight risk of sanctions. This Note defines inequitable conduct in patent prosecution, details the consequences of inequitable conduct, and describes the restricted method available for curing inequitable conduct. Next, the author describes the problems with the current state …

Has The Fda Bought The Winston Cup: A Takings Analysis Of The Proposed Ban On Sports Sponsorships By Tobacco Companies As Applied To Nascar, Andrew B. Dzeguze

UC Law SF Communications and Entertainment Journal

In 1996 the Department of Health and Human Services announced that the FDA would regulate all tobacco advertising, classifying tobacco as a drug. This Note explores the ramifications of this announcement as it relates to the ongoing sponsorship of NASCAR auto races by tobacco companies. Initially, this Note provides a brief history of NASCAR and its tobacco sponsorship. The Note then explores three legal theories for invalidating the FDA regulations: First Amendment defenses, lack of jurisdiction defenses, and takings claims. The author concludes that a takings claim provides the best method of challenging the FDA regulations, because it would not …

Regulation Of The Internet: The Application Of Established Constitutional Law To Dangerous Electronic Communication, Adam R. Kegley

Kentucky Law Journal

No abstract provided.

The Invisible Barbecue, Eben Moglen

Faculty Scholarship

Past legislation subsidizing the development of infrastructural technology has borne the mark of political corruption. The subject matter of the Telecommunications Act of 1996 falls within the same category of legislation that has fallen prey to this process in the past. In an effort to discern whether such forces are at work today, Professor Moglen undertakes a critical examination of the metaphors that pervade the current scholarly discourse on the subject of telecommunications law. Terms such as "Superhighway," "Broadcasting," and "Market for Eyeballs" reveal a great deal about the implicit assumptions at work behind the current scholarship and legislation, and …

Foreword: The New Estates, Lance Liebman

Faculty Scholarship

Telecommunications Law is under pressure from fast-paced technological advances and changes in the industry structure. As the high-stakes debates plays itself out in federal and state legislatures, agencies and courts, the academic study is struggling to catch up. The author poses provocative questions about the present and future of Telecommunications Law. Of paramount interest are the ill-fitting legal categories that continue to influence crucial determinations about the level of First Amendment protection accorded various communications media, and the reach of Constitutional Takings doctrine that pits incumbent regulated industries against government regulators and up-start competitors looking to shake-up the established order. …

Fame, Roberta Rosenthal Kwall

Indiana Law Journal

No abstract provided.

Cable Tv, Indecency And The Court, Jonathan Weinberg

Law Faculty Research Publications

No abstract provided.

Free Speech In Cyberspace: Communications Decency And Beyond, Robert M. O'Neil

Richmond Journal of Law & Technology

It is a great honor to be this year's Emanuel Emroch Lecturer. Though I never had the privilege of knowing Mr. Emroch, I do feel on this occasion as though I were almost an honorary member of the Emroch family. And I am deeply grateful to that family for having continued a tradition which seems to me as fitting and as appropriate a memorial as one could imagine. It is a living memorial in the best sense and it gives those who gather in the name of the person being so honored a chance not only to carry on their …

The Communications Decency Act: Aborting The First Amendment?, Sheryl L. Herndon L. Herndon

Richmond Journal of Law & Technology

On February 8, 1996, President Clinton signed the Telecommunications Act of 1996 into law and explained that the legislation would "stimulate investment, promote competition, [and] provide open access for all citizens to the Information Superhighway." However, contrary to the goal of "opening wide the door to the Information Age," provisions of the Act violate the Constitution's First Amendment guarantee of freedom of speech by imposing far-reaching new federal criminal liabilities on Americans who exercise their free speech rights on the Internet. In particular, a little-noticed provision of the Act, which expands an 1873 law banning abortion-related speech by criminalizing Internet …

How Have The Procedural Aspects Of The Telecommunications Act Of 1996 Worked?, Clinton Miller, Charles H. Carrathers Iii, Michael Schwarzwalder, Rod Johnson, Jill Butler

Richmond Journal of Law & Technology

Good morning. I am Clinton Miller. I'm one of the three members of the Virginia State Corporation Commission and charged with moderating this next panel. I will give you a brief overview before they begin because there may be some people in the room who are not deeply familiar with the procedural aspects of the Telecommunication Act of 1996.

Antitrust: Will It Change The Lives Of Telecommunications Executives?, Deborah V. Ellenberg, Glen O. Robinson, Michael F. Urbanski, James R. Wade

Richmond Journal of Law & Technology

Good afternoon. This is the last panel of the afternoon. I would like to introduce myself. I'm Deborah Ellenberg, one of the hearing examiners at the State Corporation Commission, and I might add, who has a heightened appreciation for the Virginia Commission's wise decision to handle those arbitrations. I am sure on behalf of Howard, Glenn and myself, we thank you for that decision.

Local Franchising: What Role Will Localities Play In The Regulations Of The Telecommunications Industry? Will They Become Providers Of Telecommunications Service To The Public?, Anthony Gambardella, Dana G. Coltrin, Timothy M. Kaine, David W. Ogburn Jr.

Richmond Journal of Law & Technology

Good morning, everybody. I am Tony Gambardella with the firm of Woods, Rogers & Hazelgrove in Richmond--formerly with the State Corporation Commission. We started yesterday's discussion with the promise of the Telecommunications Act of 1996. The main promise was, as of February 8, 1996, Congress had deregulated the telecommunications industry. The problem with the promise is that Congress retained some regulation within the industry. We have regulation at the federal level. We have a huge state role and this morning we are going to add another level--local government. Local governments have a role under the Act. There is some dispute …

Local Exchange Services In The Next Century -- What Still Must Be Done To Bring Us To Where We Want To Be?, Hullihen Williams Moore, Richard L. Cimerman, John J. Langhauser, Philip Mcclelland, Mark J. Mathis

Richmond Journal of Law & Technology

Our panel is Local Exchange Service in the Next Century--What Still must be Done to Bring Us to Where We Want to Be? We have four excellent panelists to address these questions. I expect the panelists to agree, in part, where we want to be, and they won't spend a whole lot of time about increased service, new technology, lower prices, and all those things. I am sure we'll hear some assurances along those lines, at least from three of the panelists. Most of the time will be spent on what still must be done to get us there. I …

Jaffee V. Redmond: Towards Recognition Of A Federal Counselor-Battered Woman Privilege, Fernando Laguarda, Michael B. Bressman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Repeal Of The Financial Interest And Syndication Rules: The Demise Of Program Diversity And Television Network Competition?, Marc L. Herskovitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

To V Or Not To V - That Is The Regulatory Question: The Role Of The V-Chip In Government Regulation Of Broadcast And Cable Indecency, Marie A. Ryan

Cardozo Journal of Equal Rights & Social Justice

The note argues that the current regulatory distinctions between broadcast and cable television in the United States are outdated and should be unified to better protect children from indecent content while respecting adult First Amendment rights. It proposes adopting a consistent "safe harbor" provision for both broadcast and basic cable television, combined with the use of the V-chip technology, as a constitutionally sound and less restrictive means of achieving the government's dual objectives of supporting parental authority and safeguarding children's well-being.