Intellectual Property Law Commons^™

Privacy And The Internet, Maureen S. Dorney

UC Law SF Communications and Entertainment Journal

This Article provides an overview of United States privacy status and regulations governing privacy issues and recent European privacy initiatives. The author explores how, in the absence of an overarching regulatory framework, steps have been taken by government and industry to address consumers concerns about privacy and the Internet.

War.Com: Why The Battles Over Domain Names Will Never Cease, Deborah Howitt

UC Law SF Communications and Entertainment Journal

In this Note, the author discusses the history of disputes over Internet domain names and presents potential solutions to the problem. The author reviews the International Ad Hoc Coalition's proposal for additional top-level domains, and concludes that new domains will not provide an adequate solution to disputes over domain names.

The author provides an overview of trademark law, including the Federal Trademark Dilution Act of 1995, which created a federal cause of action for trademark dilution. Although the addition of this cause of action has made it easier for trademark owners to prevent the use by others of "famous" marks …

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 …

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 …

Fame, Roberta Rosenthal Kwall

Indiana Law Journal

No abstract provided.

Deregulatory Takings, Breach Of The Regulatory Contract, And The Telecommunications Act Of 1996, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

Professors Baumol and Merrill reply to Deregulatory Takings and Breach of the Regulatory Contract, published last year in this Review, which argued that the price incumbents may charge potential competitors for bottleneck facilities under the Telecommunications Act of 1996 should be based not on forward-looking costs but on historical costs. Professors Baumol and Merrill contend that pricing with reference to historical costs would depart from the principles called for by economic analysis for efficient pricing and they further argue that neither the Takings Clause nor the regulatory contract precludes the use of forward-looking costs in setting prices. If a taking …

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.

Impact Of The Communications Decency Act Of 1996 On Federal Prosecutions Of Computer Dissemination Of Obscenity, Indecency, And Child Pornography, William P. Keane

UC Law SF Communications and Entertainment Journal

With the passage of the Communications Decency Act of 1996, Congress provided federal prosecutors with a potentially powerful new tool for combating "indecent" communications sent or made available to minors through computer networks. The author offers an early examination of the CDA on the use of computer and computer networks as instrumentalities of federal obscenity, indecency, and child pornography crimes, as well as the possible Constitutional challenges that are likely to emerge. He also outlines anticipated problems with enforcement, proof, and various defense strategies.

Regulating Competition In The Information Age: Computer Software As An Essential Facility Under The Sherman Act, David Mcgowan

UC Law SF Communications and Entertainment Journal

This Article examines the application of the antitrust laws to computer software markets, beginning with a discussion of the different economic approaches underlying the antitrust and copyright laws. The Article contends generally that antitrust does not provide the analytical tools necessary to determine the optimal scope of copyright protection. The Article then examines more particularly the increasingly common argument that access to software code-including at least some form of copying-may be an "essential facility" under the antitrust laws. In this regard the Article discusses the analytical confusion surrounding the essential facilities concept and argues that application of the concept should …

Hilton Davis And Jury Trials,, William Alsup, Carolyn Wiggin

UC Law SF Communications and Entertainment Journal

Congress' creation of the Court of Appeals for the Federal Circuit in 1982 led to a boom in patent litigation that has continued into the 1990's. As this boom has continued, the role of juries in patent infringement cases has been criticized, with commentators suggesting jury bias in favor of patent holders. In particular, critics of patent infringement jury trials have argued that the doctrine of equivalents favors plaintiffs by allowing juries too much discretion in finding a patent infringement when there has been no literal infringement.

In 1995, the Federal Circuit's decision in Hilton Davis Chemical Co. v. Warner-Jenkinson …

The Copyright Term Extension Act: Is Life Plus Seventy Too Much, Jenny L. Dixon

UC Law SF Communications and Entertainment Journal

The Copyright Term Extension Act, if enacted, will increase the term of copyright protection to include the life of the author plus seventy years. Proponents of this legislation argue that such an increase is necessary for the United States to remain competitive in international intellectual property matters. This Note examines that proposition in light of the United States copyright tradition, the international copyright agreements currently in effect, and the negative impact the extension could have upon users of the public domain.

The Application Of Securities Laws In Cyberspace: Jurisdictional And Regulatory Problems Posed By Internet Securities Transactions, Kenneth W. Brakebill

UC Law SF Communications and Entertainment Journal

This Note examines the impact of the Cyberspace revolution upon our current American system of securities regulation. The Author discusses several recent technological innovations, including the advent of electronic media to deliver corporate information to investors, the use of the Internet to consummate public stock offerings, and the creation of on-line securities trading systems to match buyers and sellers, and addresses the response of securities regulators to these novelties. In large part, the author will explore the legal uncertainty that has been thrust upon the American courts, federal and state regulators, and investors in light of the growing use of …

Patent Protection For Computer-Related Inventions: The Past, The Present, And The Future, Nancy J. Linck, Karen A. Buchanan

UC Law SF Communications and Entertainment Journal

Intellectual property protection is important to the United States' economic welfare, in particular to the computer industry. This Article briefly overviews the underlying purpose of the United States' patent laws and the confusion present in the law regarding patent protection for computer software and computer-related inventions. It begins its discussion of this confusion with a review of the history of patent protection for these inventions, characterizing the history as "marked by 'stops and starts.'" The initial "starts" are numerous cases from the Court of Customs and Patent Appeals reversing the Patent and Trademark Office's (PTO's) refusal to issue a patent …

Patent Law's Nonobviousness Requirement: The Effect Of Inconsistent Standards Regarding Commercial Success On The Individual Inventor, Reed W. L. Marcy

UC Law SF Communications and Entertainment Journal

This Note examines the Federal Circuit's approach to determining nonobviousness, the most difficult of the statutory patent requirements to satisfy, and the effect that inconsistent nonobviousness standards have on the individual inventor.

Since 1982, the Federal Circuit has made the commercial success of an invention the most important factor in determining whether an invention was not obvious and thus patentable. For the most part, the Federal Circuit's approach has helped the individual inventor. However, numerous obstacles arise when too much emphasis is placed on the marketing of the invention rather than on the creative act of inventing. In addition, the …

Ball Four: The Irs Walks The Kansas City Royals, Myreon Sony Hodur

UC Law SF Communications and Entertainment Journal

The IRS will grant deductions for money spent on charitable purposes. One such purpose is lessening the burdens of governments. In 1993 the IRS granted a deduction worth almost $100 million to the estate of Ewing M. Kauffman for his donation of the Kansas City Royals baseball team to a local community foundation under a "Succession Plan." That arrangement would give local buyers preference in bidding to purchase the team from the foundation. The IRS found that the Succession Plan lessened the burden of government insofar as it relieved Kansas City area governments of their burden in keeping the franchise …

The Right Of Publicity Versus Free Speech In Advertising: Some Counter-Points To Professor Mccarthy, Stephen R. Barnett

UC Law SF Communications and Entertainment Journal

Professor J. Thomas McCarthy, in a recently published lecture, has defended recent expansions of the right of publicity and rejected the idea of a free-speech defense that would in some cases protect the unlicensed use of a celebrity's name, likeness, or "identity" in an advertisement. In this "counter-lecture" Professor Barnett focuses on what he sees as the growing conflict between the right of publicity, as embodied in Ninth Circuit decisions such as the Vanna White and Abdul-Jabbar cases and in the Restatement (Third) of Unfair Competition, and free speech in advertising, as protected by the Supreme Court's doctrine of "commercial …

Vara's First Five Years, Simon J. Frankel

UC Law SF Communications and Entertainment Journal

This article addresses the background, provisions, and brief history of the Visual Artists Rights Act of 1990 (VARA), a federal law protecting the "moral rights" of visual artists. These non-economic rights, which give artists some control over their creations even after the works are sold, have a long history in continental Europe, but are a recent import to the United States. After American courts declined to recognize such rights under common law earlier in this century, approximately a dozen states enacted laws protecting the rights of creators of "fine art." These statutes generally protect the artist's right of integrity-to protect …