Intellectual Property Law Commons^™

Online Data Breaches, Standing, And The Third-Party Doctrine, Adam Lamparello

Cardozo Law Review de•novo

This Essay argues that, in the context of online data breaches, these doctrines hinder consumers from receiving full monetary compensation and do not adequately safeguard privacy rights. For example, courts frequently dismiss consumers’ suits against online service providers for lack of standing, which results in consumers bearing the cost for damages that the providers were in a position to prevent. This Essay argues that the Supreme Court should relax the standing doctrine’s “imminent harm” requirement and permit consumers to sue providers for mitigation damages. In addition, the Court should abandon the longstanding principle that citizens lose all privacy protections in …

Abc V. Aereo And The Humble Judge, James Y. Stern

Faculty Publications

No abstract provided.

The Bomb Keeps The Lights On: The Use Of Final-Offer Arbitration In Failed Retransmission Consent Negotiations, Daniel J. Weiss

Cardozo Journal of Conflict Resolution

This Note will consider the imposition of binding arbitration in instances of failed retransmission consent negotiations between broadcasters and cable companies. It will first consider the FCC's authority to do so under the Communication Act of 1934 and the ADRA. Central to this discussion will be the debate and legislative history surrounding the 1992 Act and the way that mandatory binding arbitration has been used other contexts by the Commission. Further, this Note will explore the specific type of arbitration to be employed by the FCC in event the Commission finds they have the authority to mandate such a procedure. …

A Legislative Pendency Proposal To Address The Consumer Harm Caused By The Broken Retransmission System, Marla S. Merchut

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Free Speech Institutions And Fair Use: A New Agenda For Copyright Reform, Hannibal Travis

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Surfing For Protection: Why Websites Should Be Categorically Excluded From Trade Dress Protection, Matt Mikels

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Guarding Against Abuse: The Costs Of Excessively Long Copyright Terms, Derek Khanna

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Copyright, Fair Use And Author’S Rights Ii (October/November 2014), Paul Royster

University of Nebraska-Lincoln Libraries: Presentations

Copyright is a battlefield, and an author’s control over his/her own work can easily become collateral damage or go missing in action. Many publishers believe they have an inherent right to own the intellectual property arising from your grant-funded research and to live off the earnings of written works that you had little choice but to give them for free or pay them to publish. In this session you will learn more about U.S. Copyright Law, Author’s Rights, and protecting your Intellectual Property. Faculty members Paul Royster and Sue Gardner will speak on Copyright, Fair Use, and Author Rights. You …

Aereo: Cutting The Cord Or Splitting The Circuit?, Julie Borna

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Aggregating Defendants, Greg Reilly

Florida State University Law Review

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and Bit-Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to …

Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri

Articles

Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2-1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be "transformed," the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …

American Broadcasting Cos. V. Aereo, Inc.: Brief Of 36 Intellectual Property And Copyright Law Professors As Amici Curiae In Support Of Respondent, Jessica Litman

Appellate Briefs

Amici curiae are law professors who teach and write about intellectual property and copyright law at law schools, colleges, and universities throughout the United States and Canada. We have no personal stake in the outcome of this case; our interest is in seeing that copyright law is applied in a manner most likely to fulfill its Constitutional mandate "to promote the Progress of Science," taking into account both the protections afforded to and the obligations imposed upon copyright holders and users of copyrighted works.

Rereading A Canonical Copyright Case: The Nonexistent Right To Hoard In Fox Film Corp. V. Doyal, Shane D. Valenzi

UC Law SF Communications and Entertainment Journal

Do copyright owners have the right to hoard their creative works? The right to exclude on an individual basis is the keystone of copyright law, yet using copyright protection to prevent all public access to a work runs counter to the very premises upon which copyright law is based. This right to exclude the world from use of a creative work-referred to as the right to "hoard" by Justice O'Connor in Stewart v. Abend, is commonly traced to a Lochner-era tax case: Fox Film Corp. v. Doyal. This article examines the right to hoard and its origins in Fox Film, …

Aaron Swartz’S Fbi Files

United States Department of Justice: Publications

Aaron Hillel Swartz (November 8, 1986 – January 11, 2013) was an American computer programmer, writer, political organizer and Internet Hacktivist.

Swartz was involved in the development of the web feed format RSS, the organization Creative Commons, the website framework web.py and the social news site, Reddit, in which he became a partner after its merger with his company, Infogami. Swartz's later work focused on sociology, civic awareness and activism.

He helped launch the Progressive Change Campaign Committee in 2009 to learn more about effective online activism. In 2010 he became a research fellow at Harvard University's Safra Research Lab …

Aaron Swartz’S Secret Service Files

United States Department of Justice: Publications

These documents concern the indictment in Massachusetts for downloading JSTOR content from MIT library network.

Parts 1 & 2 are included in the main document.

Additional files are linked below, as follows:

Part 3 (3 files) -- 379 pages, 4067 pages (spreadsheet), & 190 pages (photos)

Part 4 -- 1 page

Part 5 -- 1 page

Part 6 -- 1 page

Part 7 -- 7 pages

Part 8 -- 237,397 pages (yes)

Part 9 -- 90 pages

Part 10 -- 259 pages

Part 11 -- 17 pages

Part 12 -- (not released as of 9/29/2014)

Part 13 -- 254 pages …

Says Who?: The Futility Of Authenticating Art In The Courtroom, Valerie Medelyan

UC Law SF Communications and Entertainment Journal

In a 1993 case involving the authenticity of a mobile by sculptor Alexander Calder, Judge Louis F. Oberdorfer bitterly conceded that if a prominent art expert testified that a work was a forgery, it would become so in the eyes of the market and its value would be destroyed. However, the judge went on to say, "this is not the market, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence." While acknowledging that the opinion of the more respected expert (that the Calder mobile was a fake) …

The Sound Recording Performance Rights At A Crossroads: Will Market Rates Prevail?, Jeffrey A. Eisenach

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

Starting in the 1990s, Federal policy has moved in the direction of a market-oriented approach towards sound recording rights, beginning with Congress’ decision to create a sound recording performance copyright in 1995. In 1998, Congress provided that most statutory royalty rates, including the rates paid by webcasters like Pandora Radio, would be set using a market-based “willing buyer, willing seller” (“WBWS”) standard. Since then, the WBWS standard has been applied in several rate setting proceedings, but complaints from webcasters that the rates were “too high” have led to Congressional intervention and, ultimately, to adoption of rates below market levels. Now, …

Pinterest's Secondary Liability: The Dmca Implications Of Holding Pinterest Responsible And What Pinterest Can Do To Avoid Liability, Monica Yun

UC Law SF Communications and Entertainment Journal

This note explores Pinterest's possible liabilities for copyright infringement and what it can possibly do to shield itself from prosecution. Part II will address the basics of Pinterest and how it relates to other social media and online service providers. Part III will delve into the legal background of the Copyright Act of 1976, the Digital Millennium Copyright Act of 1998, secondary liability, the fair use defense, and legislation that has already been proposed to address this issue. Part IV will analyze Pinterest's indirect liability and how it may use the fair use defense. And finally, Part V will propose …

Political Broadcasting Fairness In The Twenty-First Century: Putting Candidates And The Public On Equal First Amendment Footing, Mark R. Arbuckle

UC Law SF Communications and Entertainment Journal

There is a fundamental inconsistency in the current political fairness and access rules for U.S. broadcasting. While political candidates enjoy a long-standing right of access to broadcast stations to express their views and attack and answer attacks from opponents, stations have no obligation to be fair to noncandidate citizens who may be personally attacked, nor to make any good-faith effort to present opposing views on controversial public issues. However, this has not always been the case. Under the Fairness Doctrine, in place from 1949 to 1987, broadcasters were expected to present controversial issues of public importance and provide reasonable opportunity …

Lost In Translation: The Obstacles Of Streaming Digital Media And The Future Of Transnational Licensing, Jasmine A. Braxton

UC Law SF Communications and Entertainment Journal

This note examines the possibility of a unified transnational licensing system for digital streaming services. The note reviews the development of current streaming services and their individual struggles with domestic copyright law as a barrier to entry to new markets. The note draws a connection between the rise of streaming services and the reduction in piracy in certain regional markets. Finally, the note analyzes previous approaches to multinational licensing and uses these current streaming services in case studies to exemplify how successful a global licensing syndicate would be.

A Possibility Of The Korean Wave Renaissance Construction Through K-Pop: Sustainable Development Of The Korean Wave As A Cultural Industry, Yeojin Kim

UC Law SF Communications and Entertainment Journal

In the era of the "digital road," Korean popular music ("K-Pop") has disseminated into every part of the world. In fact, South America, the farthest continent from Korea, goes wild for K-Pop, and the craze moves on to other continents naturally. Without Koreans having to recommend K-Pop, if listeners of K-Pop around the world believe that K-Pop has some charm, they absorb the trend and pass the music on to others. It has now come to the point where government agencies, the press, and entertainment management companies do not need to promote K-Pop because foreigners are consuming K-Pop feverishly on …

Copyright And Choreography: The Negative Costs Of The Current Framework For Licensing Choreography And A Proposal For An Alternative Licensing Model, Matt Kovac

UC Law SF Communications and Entertainment Journal

Although approaches rooted in copyright law are available, choreographers tend to rely instead on contract law in order to control distribution of their work; choreographers license their ballets to dance companies via contracts which are typically negotiated on an ad hoc basis. This relatively conservative approach allows choreographers to maintain tight artistic control over subsequent reproductions of their ballets, but it comes at a cost to both the dance community and the general public. This conservative approach to distribution means that a choreographic work may be performed infrequently or not at all, and it also forecloses the possibility for transformative …

Blurred Lines - Where Copyright Ends And Cultural Appropriation Begins - The Case Of Robin Thicke Versus Bridgeport Music And The Estate Of Marvin Gaye, Toni Lester

UC Law SF Communications and Entertainment Journal

Were Robin Thicke and Pharrell Williams perpetuating perceptions of misappropriation when they filed their declaratory judgment claim against the estate of Marvin Gaye? Or were they legitimately contributing to the evolving genre of R&B and soul music originated by black greats like Gaye and others? This article will answer these questions by first exploring the extent to which the song "Blurred Lines" constitutes illegal copyright infringement of "Gotta Give It Up" under the U.S. Copyright Act and traditional judicial interpretations thereof. It will then make some predictions about the outcome of the declaratory judgment claim currently under consideration in California.

The Fcc And Ancillary Power: What Can It Truly Regulate, Matthew Eller

UC Law SF Communications and Entertainment Journal

This article will examine the turbulent history of section 629 of the Telecommunications Act, including its adoption and amendments, its claims as to "plug & play" devices, and the effects of the recent EchoStar Satellite LLC v. FFC holding. This article will begin with a brief history of section 629 and its proposed purpose, then discuss the industry's first attempt at industry-wide standards-first with CableCARD technology, then its successor, AllVid technology. This article will then analyze the purpose and history of the FCC's ancillary jurisdiction, the holding in the newly decided EchoStar Satellite LLC v. FCC, and the possible future …

Runaway Film And Television Production: Carrots, Sticks, & International Tax Reform, Paul Battista

UC Law SF Communications and Entertainment Journal

"Runaway" film and television production is a public policy issue that has been targeted for reform with the goal of its eradication, a goal that has not been achieved. The discussion has framed the issue as one relating to international trade policy and labor policy, and as a result proposals to eradicate the problem have been focused on these areas. This article takes the position that runaway film and television production is an international tax law issue that should be examined within the framework of U.S. international tax policy. In general, the U.S. international tax laws require reform because they …

Legal And Economic Challenges To The Business Model Of The Television Industry, John B. Meisel

UC Law SF Communications and Entertainment Journal

Gaining access to content is critically important for entrance into the television industry; this is a necessary input to become a viable competitor against incumbent video industry players. However, incumbents have the ability and incentive to withhold programming that discourages potential competitors from entering the market. Entrants, built up over a long period of time, confront a symbiotic relationship between traditional content providers and incumbent content distributors. Access to video programming or access in the format (i.e., online) that a viewer chooses is in high demand. This demand is evident by an increasing number of legal, technological, economic, and political …

Authorship Atomized: Modeling Ownership In Participatory Media Productions, Elisabeth S. Aultman

UC Law SF Communications and Entertainment Journal

The aim of this article is to posit a solution, grounded in legal realism, for the practical issues that arise when copyright law and content monetizers encounter a work (or perhaps more accurately, a series of interdependent works) with an unprecedented number of people who could ostensibly assert authorship over some element of the content.

Regulating The Unregulable: Finding The Proper Scope For Legislation To Combat Copyright Infringement On The Internet, Melis Atalay

UC Law SF Communications and Entertainment Journal

This note seeks to critically evaluate the current trend of copyright legislation, and use the response for legislation to hypothesize what sort copyright legislation for the Internet may be successful in the future. The SOPA/PIPA legacy provides evidence for today's legislature that broad reforms will not work. Indeed the reigning in seen in OPEN was a reflection of SOPA/PIPA progeny being responsive to public outcry over SOPA/PIPA. I conclude that OPEN would have been an appropriate balance of constriction and Internet availability. If passed, OPEN would have been a step in the right direction to combat the illegal access and …

Celebrity Politicians And Publicity Rights In The Age Of Obama, Michael G. Bennett

UC Law SF Communications and Entertainment Journal

The right of publicity is a relatively marginalized yet increasingly radical form of intellectual property. Typically, celebrities use it to prevent freeloaders from profiting on their fame by making unauthorized use of their image, likeness or signature to make goods or services more attractive to consumers. The right of publicity allows famous individuals to stop this type of behavior by providing a property right in identity or persona. Brandished by celebrities who are also political figures, though, the doctrine can become a powerful means of chilling political speech, and therefore a direct threat to First Amendment free speech rights. The …

Bag Men And The Ghost Of Richard Jewell: Some Legal And Ethical Lessons About Implied Defamation, Headlines, And Reporting On Breaking Criminal Activity From Barhoum V. Nyp Holdings, Clay Calvert, Daniel Axelrod, Sarah Papadelias, Linda Riedemann

UC Law SF Communications and Entertainment Journal

This article analyzes and explores the complex issues of libel by implication and defamatory meaning raised in the ongoing libel suit of Barhoum v. NYP Holdings. The case pivots on the New York Post's "BAG MEN" cover that ran on April 18, 2013, and featured a large photo of two men cleared of wrongdoing in connection with the Boston Marathon bombing. This article, which compares and contrasts Barhoum to decisions such as Kaelin v. Globe Communications Corp. and Stanton v. Metro Corp., also examines the possible impact of the New York Post's tiny front-page disclaimer. Furthermore, this article considers how …