Intellectual Property Law Commons^™

Catching Up To Our Biometric Future: Fourth Amendment Privacy Rights And Biometric Identification Technology, Rudy Ng

UC Law SF Communications and Entertainment Journal

As biometric identification technology companies strive to make their products more accurate, faster, and more affordable for the mass market, the public is likely to see an increase in the use of biometrics in the future. While emerging biometric identification technology such as iris scanning and face recognition technology may be a fast, cutting-edge way for law enforcement to keep track of convicted felons and suspected terrorists, the government should not be allowed to unreasonably intrude on individual privacy rights under the Fourth Amendment. Ultimately, the legislature and the courts will need to weigh society's need to feel secure against …

Locking Down The Library: How Copyright, Contract, And Cybertrespass Block Internet Archiving, Rebecca Bolin

UC Law SF Communications and Entertainment Journal

Internet archiving has kept millions of websites from disappearing completely. Yet this ambitious effort, the largest archiving project in history, is neither legal nor comprehensive. Archives are rampant copyright infringers with no recourse to traditional library and affirmative defenses. Further, sophisticated authors have started "protecting" their creations with restrictive contracts, technical restrictions, and the shaky cybertrespass doctrine. Our legal regime has strayed from the constitutional values underlying copyright. Despite the social value in preserving cultural expression, the law has evolved to encompass a de facto right to withdraw and opt out of history itself.

Digitized Scholarship And The Library Concept: Allowing The History Of The Library Exemption To Inform How We View Google's Digitized Library, Kodj Gbegnon

UC Law SF Communications and Entertainment Journal

Google Inc., one of the most visible portals on the Internet, strives to "organize the world's information and make it universally accessible and useful." However, Google's Print Library database, which copies millions of books into a database and offers snippets of those books free of charge, may exceed the current confines of copyright law. After an in-depth look at Google's digitization projects and specific criticisms from library specialists, this article argues that the library exception to copyright infringement must be re-conceptualized to include commercial information enterprises such as Google's Print Library.

Rationalizing Software Patents: Suggestions For A Livable System, Shane Glynn

UC Law SF Communications and Entertainment Journal

In examining the historical development of software as patentable subject matter, the jurisprudence of the Supreme Court and Federal Circuit, the Patent and Trademark Office's regulations and guidelines, and the application of these rules in the legal and business community, this article explores the deficiencies of the current US software patent system. The article argues that by increasing patent examiners' knowledge of computer science and publishing domestic patent applications to allow competitors to search for relevant prior art, the US software patent system can be significantly improved.

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution: Is It Unconstitutionally Overbroad, Erin Treacy

UC Law SF Communications and Entertainment Journal

The RAVE Act was designed to thwart use and distribution of the illegal street drug ecstasy by holding the owner of a nightclub or other venue criminally responsible for any illegal drug-related activities that occur at an electronic music concert held on his or her property. This article argues that the RAVE act is unconstitutionally overbroad because it has a real and substantial impact on the First Amendment rights of electronic music concert performers and attendees. The article further argues that the RAVE act has driven electronic music concerts underground, making them less regulated than if held in legitimate commercial …

Catching A Black Cat In A Dark Room: Evaluating The Shortcomings Of Federal And State Anti-Spyware Legislation, Josh Sugnet

UC Law SF Communications and Entertainment Journal

This note analyzes state anti-spyware legislation and the latest federal anti-spyware bill, considering criticism raised and evaluating their potential to be effective in stopping spyware. The note concludes that these laws are best aimed at regulating the use of adware, the allegedly more legitimate commercial type of spyware, but do little to protect users from more malicious types of spyware authored by hackers and cyber-criminals. Also, the federal government must regulate the software industry to ensure that a competitive market for technological solutions to these security problems exists. Only by coupling law enforcement with effective industry regulation can the federal …

A Minor Conundrum: Contracting With Minors In Canada For Film And Television Producers, Bob Tarantino

UC Law SF Communications and Entertainment Journal

Concerns surrounding the enforcement of a contract with minors have plagued the entertainment industry, particularly in the areas of film and television. Amidst a confusing hodgepodge of laws, various North American jurisdictions have responded with a series of judicial decisions and legislative initiatives. These changes have increased marketplace certainty for the benefit of film producers and the minors with which they do business. The Canadian province of Ontario, however, remains without the benefit of such a regime of laws, creating uncertainty in Ontario's film and television marketplace. If Ontario wishes to develop as a major film and television production center, …

At The Intersection Of Comic Books And Third World Working Conditions: Is It Time To Re-Examine The Role Of Commercial Interests In The Regulation Of Expression, David Kohler

UC Law SF Communications and Entertainment Journal

This article examines how a speaker's commercial interests factor into evaluating First Amendment protection. The author criticizes the current state of the law in the United States, which forces courts to draw categorical distinctions between commercial and noncommercial speech which are largely artificial, unwieldy, and likely unworkable. The article suggests a new approach that largely jettisons any attempt to draw broad categorical distinctions based on the underlying commercial motivation for communication and, instead, evaluates such expression in the same way that other kinds of fully protected speech are evaluated.

From Hockey Gloves To Handcuffs: The Need For Criminal Sanctions In Professional Ice Hockey, Tracey Oh

UC Law SF Communications and Entertainment Journal

Citing recent on-ice incidents, this article argues that the level of violence in the National Hockey League (NHL) has grown out of control. The NHL's sanctions have been unable to deter the steadily increasing amount of violence in the sport. The article argues that allowing courts to intervene and impose criminal sanctions against on-ice offenders would send a strong message to the players, and promote a sense of social responsibility.

I Always Feel Like Someone Is Watching Me: A Technological Solution For Online Privacy, David Goldman

UC Law SF Communications and Entertainment Journal

This article develops the concept for a technological solution to the problem of online privacy. While most proposals endeavor to come to a consensus upon either a common definition or a common value system for privacy, the author instead proposes that the ultimate goal of an automated transaction should simply be to make optimal use of the online market. Rather than define privacy, the government should instead encourage trust, which will result in the maximum benefits for the economy as a whole.

The Conceptual Game In Copyright, Lior Zemer

UC Law SF Communications and Entertainment Journal

This article examines the nature of copyright as a concept and discusses the benefits that can be derived from understanding copyright as a vague conceptual framework, or, alternatively as an arsenal of competing interpretations and permutations, rendering its meaning essentially contested. The best way to make meaningful progress in the way we approach and think of copyright is by admitting into our discourse on copyright alternative approaches to ownership which emphasizes the public interest. We can protect the integrity of the copyright discourse by ensuring that no single voice can exclude other voices, and allow sufficient conceptual flexibility to permit …

Amending Its Anti-Paparazzi Statute: California's Latest Baby Step In Its Attempt To Curb The Aggressive Paparazzi, Lisa Vance

UC Law SF Communications and Entertainment Journal

The financial rewards of celebrity photos have driven the paparazzi to increasingly dangerous tactics, often endangering celebrities and others in their pursuit of a valuable photo. In response to this danger, California amended its anti-paparazzi statute in 2005. The amended statute provides stiff penalties, including punitive and treble damages, and allows a celebrity to recover these damages for assault. However, assault requires the intent to cause apprehension of imminent contact, and much of the outrageous conduct of the paparazzi does not evidence this sort of intent. If California is serious about curbing improper behavior by the paparazzi, it should penalize …

Faulting San Andreas: The Call To Arms For Sensible Regulation Of Violent Video Games, Jessica Williams

UC Law SF Communications and Entertainment Journal

Video game violence has escalated to shocking limits. Murder and sex are glorified in modern games. California Assembly Bill 1179 is the latest attempt to curb the sale of video games encouraging this type of violence. Because it is improbable that current social science research will be able to prove the causal connections necessary to satisfy the Brandenburg standard for regulating free speech, AB 1179 violates the First Amendment rights of California's citizens. In the future, increased parental controls and the Entertainment Software Ratings Board's active role in enforcing compliance with its rating system will be the most effective means …

Reclaiming Copyright, Christina Bohannan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Compulsory Licenses In Peer-To-Peer File Sharing: A Workable Solution?, Michael Botein, Edward Samuels

Articles & Chapters

No abstract provided.

Progress On The Wipo Broadcasting And Webcasting Treaty, Matthew D. Asbell

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Pop-Up Ads And Trademark Infringement: Whenu.Com Litigation, Janet Rubin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

January 1, 2003: The Birth Of The Unpublished Public Domain And Its International Implications, Elizabeth Townsend Gard

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Censure The Tree For Its Rotten Apple: Attributing Liability To Parents For The Copyright Infringement Of Their Minor Children, Chad Silver

Cardozo Public Law, Policy & Ethics Journal

The note argues that holding parents legally responsible for copyright infringement committed by their minor children could serve as an effective deterrent against illegal music downloading. It explores the legal frameworks for parental liability, including contributory and vicarious liability, and evaluates the potential benefits and challenges of this approach in addressing the decline of the recording industry due to illegal file sharing.

Catch 1201: A Legislative History And Content Analysis Of The Dmca Exemption Proceedings, Bill D. Herman, Oscar H. Gandy Jr.

Cardozo Arts & Entertainment Law Journal

17 U.S.C. § 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for § 1201 were laundered through international treaties, …

Software Copyright Law And The Digital Millennium Copyright Act Under The Microscope: Blizzard V. Bnetd As The Lens, David Brett Kinitsky

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Gibson V. Prs: The Applicability Of The Initial Interest Confusion Doctrine To Trademarked Product Shapes, Paul Anthony Marchisotto

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Catch 1201: A Legislative History And Content Analysis Of The Dmca Exemption Proceedings, Bill D. Herman, Oscar H. Gandy

ExpressO

17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Revolution has created the apparent anomaly that information, though very cheap to create and near costless to share, is managed by industries that are increasingly concentrated and roiled by endless legal warfare. This paper surveys the major legal battles by subjecting all of them to the familiar norm of "maximizing economic value added", as defined by neo-classical "welfare economics". The various legal wars are traced to defects and confusions in current legal approaches to intellectual property (the "property wars") and to antitrust doctrines (the "monopoly wars").

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

ExpressO

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Thus, we have seen a slew of national laws and court decisions purporting to regulate a wide variety of online activities, from gambling to chat rooms to auction sites, and seeking to enforce territorially based rules regarding trademarks, contractual relations, privacy norms, “indecent” content, …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Innovation Policy In Telecommunications: Revisiting The Successes Of Guglielmo Marconi, John M. Williamson

Federal Communications Law Journal

Book Review: Signor Marconi's Magic Box: The Most Remarkable Invention of the 19th Century & the Amateur Inventor Whose Genius Sparked a Revolution, Gavin Weightman, Cambridge, Mass.: Da Capo Press, 2003, 312 pages.

A review of Gavin Weightman's Signor Marconi's Magic Box, Da Capo Press, 2003. An entertaining and informative biography of the inventor of applied wireless communications, this book also gives practical insight into the effect of patent policy on innovation. The Marconi story parallels the challenges faced by today's telecommunications innovators and offers a significant historical perspective relevant to present-day debates over the direction of innovation policy and …