Intellectual Property Law Commons^™

The Broadcast Flag: It's Not Just Tv, Wendy Seltzer

Federal Communications Law Journal

No abstract provided.

Broadcast Flags And The War Against Digital Television Piracy: A Solution Or Dilemma For The Digital Era?, Debra Kaplan

Federal Communications Law Journal

With the advent of digital TV, many homes in the U.S. are now on the cutting edge of what is likely to be a sea change in how this country watches TV. While these homes can now begin to enjoy the numerous benefits of the technology, regulators and industry experts are working to craft responses to problems, both actual and anticipated, that the technology creates. Mindful of the piracy issues that came with the popularity of digital file formats in the music industry, the FCC addressed piracy in the digital TV context by endorsing the use of "broadcast flags" on …

An Earthy Enigma: The Role Of Localism In The Political, Cultural And Economic Dimensions Of Media Ownership Regulation, Paul Cowling

UC Law SF Communications and Entertainment Journal

This article examines the Federal Communications Commission's public interest principle of localism and its role in media ownership regulation, particularly the National Television Station Ownership rule. The article explains the enigmatic concept of localism by approaching it from several angles, including other regulatory spheres, such as banking and antitrust; Canadian nationalism; historical broadcast regulation; federalism; and contemporary debates on media ownership. While * explaining what localism means, the article identifies the territorial impulse behind media ownership regulation and its link with territorial reference points in the self-determination of national and local communities. In doing so, the article constructs a simple …

Into The Grey: The Unclear Laws Of Digital Sampling, Bryan Bergman

UC Law SF Communications and Entertainment Journal

When Congress enacted the 1976 Copyright Act, the musical engineering process of digital sampling was not a common practice, nor explicitly contemplated by the Act. Over the last few decades sampling has become a very common practice. Early court decisions regarding sampling, viewed the practice as stealing; however, these decisions failed to take into account the positive transformative possibilities that sampling provides. Recently, DJ Dangermouse came out with an album entitled The Grey Album that mixed vocal content from the rap artist Jay-Z's The Black Album and musical content from the Beatles' White Album. However, Dangermouse never asked permission for …

The War Against The Illegal Antiquities Trade: Rules Of Engagement For Source Nations, Jason Mcelroy

UC Law SF Communications and Entertainment Journal

This article addresses the problems of retrieving stolen cultural property in a practical manner. Instead of proposing new legislation or changes in the current cultural property regime, this article argues that countries that are source nations for the growing illegal trade in antiquities should better prepare themselves for their retrieval attempts, which in turn gives them a better chance at retrieving them through civil cases. By focusing on settlements and cases won in the United States, the paper submits guidelines by which source nations can be best equipped to prevail in a United States civil suit of replevin.

Words Signifying Nothing - The Evolution Of 315(A) In An Age Of Deregulation And Its Effect On Television News Coverage Of Presidential Elections, Colin Vandell

UC Law SF Communications and Entertainment Journal

Focusing on private networks' television news coverage of presidential campaigns, this Note addresses the enactment and rise of Section 315(a) of the Communications Act of 1934 (the equal time rule) and the fairness doctrine that it officially operated in conjunction with for forty years. The Note then turns to the deregulation trend that abolished the fairness doctrine and took much of the bite out of Section 315(a). The Note concludes by examining the rise of ideology-driven and also of marketdriven political coverage that a laxly-enforced Section 315(a) has allowed.

No Animals Were Harmed...: Protecting Chimpanzees From Cruelty Behind The Curtain, Lorraine L. Fischer

UC Law SF Communications and Entertainment Journal

Many people, interested in the way animals are treated in the entertainment industry, rely on the American Humane Association's end credit disclaimer, "No Animals Were Harmed During the Making of this Production" to quiet their concerns about animal mistreatment and to avoid supporting films or television programs that injure animals. However, the AHA's end credit disclaimer is misleading because it suggests that projects with the disclaimer are cruelty free. Even if a film or television show receives the "No Animals Were Harmed..." designation, chimpanzees cannot become "actors" and appear on the stage or screen without being subject to severe physical …

Why Protect Political Art As Political Speech, David Greene

UC Law SF Communications and Entertainment Journal

Politics and art make for a volatile combination both socially and jurisprudentially. Although the capacity of artistic expression to relay political ideas was one of the driving forces behind the recognition of strong First Amendment rights for artistic expression, governmental officials tend toward the censorious when art communicates too much and "offends" or causes "controversy." Indeed, when art is "public," that is funded or exhibited by a governmental entity, public officials would often prefer that it contain no message at all. This article reviews the evolution of First Amendment protection for artistic expression, discusses why artistic expression is protected by …

Leveling The Ip Playing Field: Conditional Waiver Theory And The Intellectual Property Protection Restoration Act, Jason Karasik

UC Law SF Communications and Entertainment Journal

In 1999 and 2000, a group of federal court decisions ruled that the Eleventh Amendment precludes Congress from holding states and their institutions liable in damages for infringing federal intellectual property protection laws. These rulings have created a marked imbalance in the American intellectual property system, in which states can fully protect their own intellectual property yet freely infringe on the intellectual property rights of others. Private intellectual property owners argue that this imbalance increasingly threatens the health of the American economy. In response, Congressional reformers enacted the Intellectual Property Protection Restoration Act. The legislation uses a conditional waiver scheme …

Undermining The Initial Allocation Of Rights: Copyright Versus Contract And The Burden Of Proof, Thomas A. Mitchell

UC Law SF Communications and Entertainment Journal

Copyright law is designed to provide authors with incentives to create work. Publishers have usurped these incentives, however, by leveraging their superior bargaining power to contractually require authors to transfer all rights to a work. This Note argues that this problem could be resolved by a shifting the burden of proving that the contract was voluntary, and not coerced, from the author to the publisher. Proving that a contract was not voluntarily entered into forms an affirmative defense for a breach, which places the burden on the author. This Note will show that intellectual property cases are different, because, inter …

On A Clearplay, You Can See Whatever: Copyright And Tradmark Issues Arising From Unauthorized Film Editing, Gail H. Cline

UC Law SF Communications and Entertainment Journal

A growing number of companies are offering "E-rated" versions of motion picture VHS tapes and DVDs-that is, versions which have been edited to remove nudity, sexual situations, and offensive or graphic language. These third-party editors do not own the copyrights or trademarks for the motion pictures they edit, nor do they have the permission of the owners. This article explains the processes that the thirdparty editors use to create the edited versions, as well as the copyright and trademark laws that apply, and analyzes the activities of the third-party editing companies actions in light of current copyright and trademark laws.

Reformulating The On Sale Bar, Frank Albert

UC Law SF Communications and Entertainment Journal

The On Sale Bar has been construed narrowly to require that an invention be ready for patenting and that a commercial offer for sale be made in order for the Bar to apply. Although this approach provides certainty for patent applicants, it potentially increases monopoly profits for patentees by disregarding commercial activity designed to increase demand for an invention that is ready for patenting. This Note concludes that a broader formulation of the On Sale Bar that considers this type of activity is more in line with the relevant underlying policies.

A Bipolar Copyright System For The Digital Network Environment, Alexander Peukert

UC Law SF Communications and Entertainment Journal

The widespread adoption of peer-to-peer software has allowed for fast, cheap, and easy distribution of content all over the world. Although this technology promises great advances for the global exchange of knowledge, it also greatly threatens copyright owners' interests. This article analyzes possible solutions to this conflict from an international copyright law prospective, considering requirements imposed by TRIPS, The Berne Convention, and The WIPO Copyright Treaty. This article proposes a flexible "bipolar" system, in which authors are allowed to choose between compensation provided by a levy-tax system and protection of their works through digital rights management technology, as a solution …

The Reporter's Privilege: The Necessity Of A Federal Shield Law Thirty Years After Branzburg, Leila Wombacher Knox

UC Law SF Communications and Entertainment Journal

To date, thirty-one states and the District of Columbia have enacted shield laws that provide varying degrees of protection to reporters, their sources, and their notes. Several federal lawmakers have publicly considered whether a similar federal law would be appropriate. This note examines the roots of the reporter's privilege, surveys selected state shield laws, and considers the impact of the seminal Supreme Court case in the federal realm.

The Failure Of The Broadcast Flag: Copyright Protection To Make Hollywood Happy, Lisa M. Ezra

UC Law SF Communications and Entertainment Journal

Digital online piracy of television programming is a growing problem that has the television industry, production studios, and the Motion Picture Association of America searching for a cure. The FCC's planned cure is the "broadcast flag," which requires manufacturers of television equipment to bear the burden of protecting broadcast programming from pirates. The FCC's scheme not only contains several loopholes allowing pirates to circumvent the flag technology, it also protects only a tiny fraction of digital television content, at the cost of consumers. This note explains the ineffectiveness of the "broadcast flag," and suggests an alternate scheme based around copyright …

Will Mechanicals Break The Digital Machine: Determining A Fair Mechanical Royalty Rate For Permanent Digital Phonographic Downloads, David Kostiner

UC Law SF Communications and Entertainment Journal

Digital Downloading has become an exciting distribution model that has made large amounts of music available to consumers for a fraction of the price of a compact disc. However, if the mechanical royalty rate paid to composers for the reproduction of their work remains pegged to a fixed number, fluxuations in the retail price of downloads will either reduce or increase the relative value of the payment. To avoid smaller margins, which could dissuade independent labels from making masters available online, or a disproportionately low mechanical rate, the statutory mechanical royalty should be set as a percentage of wholesale receipts, …

As A Matter Of Fact, It's A Question Of Law: A Case For De Novo Review Of Likelihood Of Confusion In Trademark Cases, Richard A. Dilgren Iii

UC Law SF Communications and Entertainment Journal

A stark circuit split mars the consistency of trademark infringement analyses within U.S. Circuit Courts of Appeal; some circuits review likelihood of confusion as a matter of fact, while others review it as a matter of law. This disparity places appellants at a disadvantage in some circuits and unnecessarily hinders the function of appellate courts by constraining their review of a substantially subjective balancing of facts. This Note concludes that although the individual factors indicating a likelihood of confusion are issues of fact, the ultimate issue of likelihood of confusion should be reviewed as a matter of law, allowing Circuit …

The Ghost Of Telecommunications Past, Philip J. Weiser

Publications

Paul Starr's The Creation of the Media presents modern policymakers with an important opportunity to consider the historical lessons of the telecommunications industry. This Book Review underscores how Starr's book richly explains some key components of U.S. information policy - such as relying on an integrated strategy of intellectual property, antitrust law, and telecommunications policy - and that some historical lessons are misplaced as to today's environment - such as a categorical skepticism of vertical integration. Moreover, Starr's account of telecommunications history explains that the U.S.'s success in promoting innovation in the information industries reflects our reluctance to manage key …

Digital First Sale: Friend Or Foe?, Eurie Hayes Smith Iv

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Whose Idea Is It Anyway? Protecting Idea Purveyors And Media Producers After Grosso V. Miramax, Aileen Brophy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Comment: Riaa V. Verizon And How The Dmca Subpoena Power Became Powerless, Katherine Raynolds

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Une Anticommons: Why The 1996 Telecom Reforms Blocked Innovation And Investment, Michael A. Heller

Faculty Scholarship

The United States is losing its competitive edge in telecommunications partly because of FCC mistakes in fragmenting property rights in, and in the regulatory oversight of local telephone facilities and services. As with postsocialist transition, reformers created a "tragedy of the anticommons" in which too many owners and regulators each can block the others' investments and all players forego innovation. By forcing existing companies to unbundle network elements (UNEs) and sell them too cheaply, the FCC has created an industry where the players cannibalize the legacy network, divert resources to regulatory arbitrage, and have little incentive for bold new investments.

Copyright Law And Digital Millennium Copyright Act, Neda Ballard Panula

Honors Capstones

Capstone submitted as a graduation requirement for the BSU Honors Program.

The System Of Syllogism, Richard Dien Winfield

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Types Of Universals And The Forms Of Judgment, Richard Dien Winfield

Cardozo Public Law, Policy & Ethics Journal

The article argues that the forms of judgment are central to objective thought and knowledge, critiquing Kant for failing to account for their diversity and proposing a systematic approach to understanding judgment starting from the concept itself. It explores Hegel's differentiation of judgment forms through self-development, emphasizing the necessity of understanding universals and their interrelations.

An Introduction To Lessigian Thought, Russ Taylor

Federal Communications Law Journal

Book Review: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, New York: Penguin Press, 2004, 306 pages.

A review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig. Lawrence Lessig is a frequent commentator and prolific writer on media and communications topics. His body of work touches copyright issues, radio spectrum policy, media ownership issues, and legal ownership and control of the physical platforms that deliver broadband content. In this 2004 publication, he focuses on copyright policy. …

The Origins Of Cctld Policymaking, Peter K. Yu

Cardozo Journal of International and Comparative Law

The article explores the evolution of country-code top-level domain (ccTLD) policymaking, tracing its transition from an informal, ad hoc system managed by individuals like Jon Postel to a formalized, international governance structure under the Internet Corporation for Assigned Names and Numbers (ICANN). It highlights the power struggles between various stakeholders, including national governments, ICANN, and the Internet Assigned Numbers Authority (IANA), and discusses the implications for global internet governance.

Theories Of Cyber-Sociology: Communicating Culture Through Codes, Erica Schlesinger Wass

Cardozo Journal of International and Comparative Law

The article explores the cultural and social significance of country code top-level domains (ccTLDs), arguing that they extend beyond technical identifiers to reflect national identity, values, and priorities. By examining the history, structure, and policies of ccTLDs, the author illustrates how these domains serve as tools for communication, cultural expression, and social change, influenced by a nation's unique history and societal norms.

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …