Intellectual Property Law Commons^™

Internet Telephony - The Regulatory Issues, Hank Intven, Mark Zohar, Jay Howard

UC Law SF Communications and Entertainment Journal

No abstract provided.

The College Bowl Alliance And The Sherman Act, Lafcadio Darling

UC Law SF Communications and Entertainment Journal

This Note examines the factual features of the college football Bowl Alliance and analyzes the antitrust issues that they raise. Ultimately, this Note discusses whether a court would find that the Bowl Alliance does indeed cross the line drawn by the Sherman Act.

Censorship In Chinese Cinema, Mary Lynne Calkins

UC Law SF Communications and Entertainment Journal

With any film or play produced in China receiving close government scrutiny at each step of production, this article examines censorship in Chinese cinema in an attempt to make sense of a tradition of sometimes seemingly arbitrary decisions by the authorities. Film, as a particularly visible and communicative media, is particularly subject to governmental interference, and the Chinese government has exploited that vulnerability to the fullest. This article attempts to demonstrate that China takes a similar approach to film censorship as it does to contracts, in the sense that censorship involves continual "negotiations" rather than binding agreement, and in the …

Interpreting The Communications Assistance For Law Enforcement Act Of 1994: The Justice Department Versus The Telecommunications Industry & (And) Privacy Rights Advocates, Hildegarde A. Senseney

UC Law SF Communications and Entertainment Journal

This Note examines what began as a very common-sense idea: law enforcement's surveillance capabilities needed to be protected in the face of new, high technology communications devices that were making law enforcement's task much more difficult, if not impossible. This was the primary motivation behind the passage of the Communications Assistance for Law Enforcement Act of 1994.

As the compliance date fot the Act draws nearer, many issues are still open to fierce debate between the Federal Bureau Of Investigation, the telecommunications industry and privacy rights advocates. The telecommunications industry claims that the FBI is demanding capacity and technological standards …

Regulating Cyberspace: Metaphor, Rhetoric, Reality, And The Framing Of Legal Options, Clay Calvert

UC Law SF Communications and Entertainment Journal

This Article argues that the "information superhighway" metaphor is a strategically chosen rhetorical device used to frame debate about Internet and telecommunications regulation, to implicitly suggest the particular legal choices are more viable-and valid-than others, and to guide the future of law in cyberspace. In particular, the metaphor embraces a commerce-based, marketplace model of regulation that emphasizes speed and quantity of information as a product or good rather than the content or quality of communication and its ability to sustain extant communities and cultures. Along the way, the Article traces the development of the "information superhighway" metaphor and explores some …

Coscarart V. Major League Baseball: No Field Of Dreams, Ronald P. Wargo

UC Law SF Communications and Entertainment Journal

This note explores a less glamorous aspect of baseball's "golden" past: the sport's forgotten and financially neglected players. Due to the structure of Major League Baseball's retirement compensation system, a certain group of former players--some of whom were stars in their day--were entitled to no retirement benefits at all from the sports which they helped make great. Focusing on an action brought by one of these former players against Major League Baseball (MLB), the note explores both the statutory and common law right of publicity claims that these ex-players may have against MLB for the uncompensated exploitation of the players' …

Down In Front: Entertainment Facilities And Disabled Access Under The Americans With Disabilities Act, Katherine C. Carlson

UC Law SF Communications and Entertainment Journal

This note deals with the problem of compliance with the Americans with Disabilities Act (ADA) in sports and entertainment venues. The beginning of the note briefly describes the scope of the ADA and the meaning of the provisions which are relevant to the problem of public entertainment facilities. It also discusses the remedies that the ADA offers in such accommodation situations. After this overview of the ADA's theoretical application, the note then looks at the ADA in actual practice and whether it has actually caused sports and entertainment facilities to adequately accommodate disabled patrons. An examination of some prominent cases …

A Proposal To Shore Up The Foundations Of Patent Law That The Underwater Line Eroded, A, Edwin H. Taylor, Glenn E. Von Tersch

UC Law SF Communications and Entertainment Journal

This article examines the trend of modern patent jurisprudence in the United States, focusing on the development of the law since the landmark Federal Circuit decision of Underwater Devices Inc. v. Morrison Knudsen Co. Inc. in 1983. Specifically, the authors contend that Underwater and its progeny have skewed the proper interpretation and use of the rule against willful infringement, causing litigants to overuse (or even abuse) the willful infringement doctrine and, more importantly, inhibiting one of the twin goals of the patent laws, disclosure of useful inventions. To address this negative trend, the authors propose a change in the standard …

A Brief Return To The Digital Sampling Debate, Matthew G. Passmore

UC Law SF Communications and Entertainment Journal

This note revisits the problem of digital sampling by musicians and the copyright law issues that arise from it. After briefly surveying the historical and technical aspects of digital sampling, the note asks the question: "are transformative digital samples art?" and answers in the affirmative. The note then looks at the goals and doctrine of copyright law, and how they are implicated by the digital sampling problem. Finally, the note advocates an expanded interpretation of the fair use copyright defense in digital sampling cases, arguing that such an expansion would both effectuate the goal of copyright enforcement and recognize the …

Bowie Bonds: A Key To Unlocking, The Wealth Of Intellectual Property, Nicole Chu

UC Law SF Communications and Entertainment Journal

Before David Bowie broke a new frontier in financing by selling $55 million in bonds backed by future music royalty payments and copyrights, music royalties and copyrights had never previously been securitized due to the uncertainty in predicting future cash flows. The concept of intellectual property securitization resolves the dilemma of inexpensively raising a large amount of money, while still retaining ownership in the underlying intellectual property. Asset securitization of intellectual property touches upon copyright, bankruptcy, tax, and securities law, as well as being impacted by the Uniform Commercial Code. This Note provides a brief overview of the securitization structure, …

Copyright, Culture & (And) Black Music: A Legacy Of Unequal Protection, K. J. Greene

UC Law SF Communications and Entertainment Journal

This article explores how African-American music artists, as a group, were routinely deprived of legal protection for creative works under the copyright regime. The issue of copyright deprivation and Black artists is highly significant, given the enormous cultural contribution of Black music to American society, the importance of the music to Black culture, and the tremendous economic benefits at stake. As new issues develop in copyright law, it will be important to people of color, and to an egalitarian society as a whole, that the new copyright regime not duplicate the inequalities of the old. An underlying assumption of race-neutrality …

Signal Bleed: Congress Attacks When It Sounds Like Sex, Josh C. Grushkin

UC Law SF Communications and Entertainment Journal

Section 505 of the Telecommunications Act of 1996 attempts to eliminate the phenomenon of signal bleed from sexually explicit adult channels. This Note argues that section 505 of the Telecommunications Act of 1996 should ultimately be found unconstitutional, and that Congress address the phenomenon of signal bleed of sexually explicit programming through other alternatives which are less constitutionally offensive.

Toxic Television, Editorial Discretion, & (And) The Public Interest: A Rocky Mountain Low, Clay Calvert

UC Law SF Communications and Entertainment Journal

In the modem world of newsmedia, the lines between informative news and gratuitous entertainment have been blurred by a increase in "infotainment" broadcasting and by news shows which often use violence or other entertainment devices to increase audiences. This trend has given rise to concerns that the current regulatory scheme is not properly categorizing this type of "news" and is not sufficiently warning or protecting viewers. In this article, Professor Calvert examines the questions surrounding this controversy. To illustrate some of these issues, this article looks at a recent challenge brought by a Colorado group to the renewal of the …

Tobacco Is A Filthy Weed And From The Devil Doth Proceed: A Study Of The Government's Efforts To Regulate Smoking On The Silver Screen, Jason Edward Lavender

UC Law SF Communications and Entertainment Journal

Many of the negative effects of tobacco have been addressed by recent litigation and federal regulations. The federal government already regulates tobacco label and advertisement content and prohibits tobacco promotion on television and radio. There are lingering concerns, however, about the effects of depicting tobacco use in movies. This Note examines current tobacco regulations and the justifications asserted for new restrictions on the use of tobacco in movies. This Note further analyzes the First Amendment implications of a ban on tobacco use in movies, and concludes that such use is commercial speech that should be granted heightened Constitutional protection.

Keeping The World Safe From Naked-Chicks-In-Art Refigerator Magnets: The Plot To Control Art Images In The Public Domain Through Copyrights In Photographic And Digital Reproductions, Kathleen Connolly Butler

UC Law SF Communications and Entertainment Journal

This article addresses an emerging and significant problem in the realm of copyright and art law: the control of public domain art images through the copyright of photographic and digital reproductions. This problem occurs since galleries or collections have control over the duplication of fine art images by the public and have used this control to generate exclusive reproductions of the art, which, under present law, are copyrightable themselves, precluding public use of these images of concededly public domain art. Professor Butler argues that this de facto control over art which is rightfully in the public domain both gives economic …

Hong Kong's Copyright Ordinance: How The Ban On Parallel Imports Affects The U.S. Entertainment Industry And Hong Kong's Free Market, Alison L. Morr

UC Law SF Communications and Entertainment Journal

Parallel importing has attracted debate, pairing free trade and consumer choice against copyright owners and exclusive licensees' rights. Hong Kong law prevents licensees from exporting a product outside a designated area, but also forms geographic monopolies from which the exclusive licensee receives economic benefits. This Comment assesses Hong Kong's copyright protection by comparing proponent and opponent arguments, and analyzing the external pressures surrounding the passage of the Copyright Ordinance and a similar Taiwanese restriction. The focus of this Comment is on the Copyright Ordinance's effects on parallel importing in exclusive licensees' territories, specifically the influx of international entertainment products.

Trade Dress Protection For Product Configurations And The Federal Right To Copy, Margareth Barrett

UC Law SF Communications and Entertainment Journal

No abstract provided.

A New Program For Action: Strengthening The Standards For Noncommercial Educational Licensees, Randi M. Albert

UC Law SF Communications and Entertainment Journal

This article explores the history of noncommercial television and radio broadcasting, and evaluates the utility and efficacy of the FCC's current standards for determining when broadcasting qualifies as "noncommercial" and is eligible for benefits concomitant with this status. Professor Albert posits that, in order to effectively evaluate the existence of a commercial/noncommercial broadcast distinction at all, one must look at the development of the law in this area and determine whether the current rules are serving their stated function. To this end, the article traces the history of noncommercial broadcasting and explicates the purpose for such a status. It also …

Einstein's Hair, Jonathan A. Franklin

Michigan Journal of International Law

Review of From Privacy Toward a New Intelletual Property Right in Persona: The Right of Publicity (United States) and Portrait Law (Netherlands) Balanced with Freedom of Speech and Free Trade Principles by Julius C.S. Pinckaers

Linking Copyright To Homepages, Matt Jackson

Federal Communications Law Journal

The explosive growth of the Internet as a widespread medium of communication raises many novel copyright issues. One issue that has escaped much examination is the copyright implications of "links"--references to other Internet Web sites that allow immediate access to those sites. This Comment analyzes such questions as whether linking gives rise to direct or contributory liability to the copyright owner of a linked site, and whether the links themselves are copyrightable. It concludes that, although contributory liability is possible, linking cannot constitute a direct infringement any more than dialing a phone number to reach an answering machine with a …

Contributory Liability For Access Providers: Solving The Conundrum Digitalization Has Placed On Copyright Laws, Wendy M. Melone

Federal Communications Law Journal

Courts should not rely upon a standard of vicarious liability to hold service providers responsible for copyright infringement. Rather, courts should rely on a contributory liability standard which will not undermine the growth of the Internet.

Son Of Son Of Sam: Trashing Popular Media And Criminalizing Crime-Related Expression, David Sternbach

UC Law SF Communications and Entertainment Journal

When the Supreme Court struck down New York's "Son of Sam" statute on First Amendment grounds, it nonetheless found that states have "an undisputed compelling interest in ensuring that criminals do not profit from their crimes." The Court in effect invited states and lower courts to find less restrictive means to restrict crime-related expression, yet declined to address the question of how, or whether, expression-related income can be considered profit from crime. This Article examines that question, and discusses judicially-imposed restrictions on receipt of payment for expression deemed to be crime-related, including fines intended to forestall sales of stories by …

The Fairness In Musical Licensing Act: The Tavern Bill Casts A Shadow, Julie B. Raines

UC Law SF Communications and Entertainment Journal

The Fairness in Musical Licensing Act, now pending before Congress, would allow restaurants owners and other businesses to play copyrighted music in their place of business without paying royalties or licensing fees to the copyright owner. This Article discusses the Fairness Act in the context of the 1976 Copyright Act and analyzes the effect of the Fairness Act on the future of the music industry if it passes into law. This Article also offers other possible solutions to the underlying conflicts that the Fairness Act seeks to remedy. The author concludes that the Fairness Act unreasonably exempts a large group …

The Telecommunications Act Of 1996: Predicting The Winners And Losers, Robert M. Frieden

UC Law SF Communications and Entertainment Journal

The Telecommunications Act of 1996 has created substantial upheaval across the telecommunications landscape. On one hand, the 1996 Act created broad deregulatory and market entry opportunities for new market players; on the other hand, those implementing the Act have presumed that incumbent carriers will cooperate with new market entrants thereby accelerating the loss of market share, but gaining new market entry opportunities once competition begins to flourish. This Article analyzes the Various different factions that are likely to benefit from the Act, as well as those that are likely to suffer losses from telecommunications deregulation. The author concludes that the …

Is A Website Like A Flea Market Stall - How Fonovisa V. Cherry Auction Increases The Risk Of Third-Party Copyright Infringement Liability For Online Service Providers, Kenneth A. Walton

UC Law SF Communications and Entertainment Journal

In a recent decision, Fonovisa v. Cherry Auction, the Ninth.Circuit allowed a record company to sue a swap meet for copyright infringement committed by the swap meet's vendors. The vendors rented a stall from the Cherry Auction swap meet and sold counterfeit music cassettes that infringed the plaintiff Fonovisa's copyright. The Ninth Circuit held that the swap meet could be sued under theories of contributory infringement and vicarious infringement.

The Fonovisa decision extends the scope of third-party copyright infringement liability beyond previously established boundaries. This extension may make it much easier to hold an online service provider (OSP) liable for …

Should Trade Secret Appropriation Be Criminalized, I. Neel Chatterjee

UC Law SF Communications and Entertainment Journal

Trade secret law is a rapidly developing and increasingly popular system of intellectual property which strikes a tenuous balance between individual profit benefit through secrecy and maximization of social welfare. In doing so, trade secret law adopts some property-based and some liability-based principles. This Article argues that criminalizing trade secret appropriation unjustifiably extends protection as a property-based concept beyond economically efficient goals. The author concludes that punitive damages within the context of civil liability are a more economically efficient means to deter unauthorized use of trade secrets and "socially blameworthy" conduct.

Patent Opinions, Privileges, And The Advice Of Counsel Defense To Claims Of Willfull Patent Infringement: Litigation Counsel Caught In The Crossfire, Michael M. Markman

UC Law SF Communications and Entertainment Journal

The interests advanced by the attorney-client privilege and work product doctrines are a subject of frequent debate. Scholars and practitioners agree, however, that both forms of discovery protection must be waived in certain circumstances. One such situation is where a client asserts the "advice of counsel" as a defense. In the arena of patent litigation, the waiver of discovery protection arises where the alleged patent infringer asserts the advice of counsel defense to claims of willful patent infringement.

The scope of waiver of discovery protections upon asserting the advice of counsel defense to claims of willful patent infringement is expanding …

Lessons From Oz: Quantitative Guidelines For Children's Educational Television, Angela J. Campbell

UC Law SF Communications and Entertainment Journal

To implement the Children's Television Act of 1990, the Federal Communications Commission recently adopted a guideline assuring license renewal to television stations that air three hours per week of children's educational programming. This Article explores the likely success of the guideline by examining Australia's long experience with a children's television quota. The author argues that Australia's experience suggests that quantitative guidelines can lead to an increase in the quantity of children's educational programming. At the same time, as in Australia, broadcasters may try to count as children's educational programming programs that are not specifically designed for children, are of low …

Limitations On Claims Of Ownership And Claims For Royalties, Donald E. Biederman

UC Law SF Communications and Entertainment Journal

No abstract provided.

Information Property And The Internet, Henry V. Barry

UC Law SF Communications and Entertainment Journal

The concept of information as property is not new, but has gained new momentum with the development of the Internet. During the past century, courts have developed theories recognizing and protecting limited property rights in information, and prohibiting forms of information misappropriation. The author argues that the expanding use of the Internet generally, and the World Wide Web in particular, have resulted in a "misappropriation explosion" which, if unmoderated, could result in reduced access to information.

The author traces the evolution of property rights in information. Next, the author discusses the recent expansion in the law of misappropriation in federal …