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Articles 271 - 300 of 873
Full-Text Articles in Intellectual Property Law
Are You Still Settling For Cable? A Case For Broader Application Of The Fcc’S Over-The-Air Reception Devices Rule, Lavonda N. Reed-Huff
Are You Still Settling For Cable? A Case For Broader Application Of The Fcc’S Over-The-Air Reception Devices Rule, Lavonda N. Reed-Huff
UC Law SF Communications and Entertainment Journal
Many renters in the United States have no choice when it comes to selecting a video or communications service provider for their residence, due to their inability to install satellite dishes on their rental property. Because of this lack of choice, many must rely on traditional broadcast television, cable service and traditional telephone dial-up for receiving video programming and accessing advanced technologies such as the Internet. Others simply go without service altogether. While the FCC has attempted to address this problem, the rule they have promulgated, known as the "OTARD Rule," fails to go far enough to make video and …
Cross Burning Revisited: What The Supreme Court Should Have Done In Virginia V. Black And Why It Didn’T, W. Wat Hopkins
Cross Burning Revisited: What The Supreme Court Should Have Done In Virginia V. Black And Why It Didn’T, W. Wat Hopkins
UC Law SF Communications and Entertainment Journal
The Supreme Court of the United States, in R.A. V. v. St. Paul, created a complicated framework of law that, despite years of case law to the contrary, would allow a court to hold a law banning cross burning to be constitutional, even if the law was not content-neutral. The ruling caused considerable problems in cases involving cross burning that reached lower appellate courts. In Virginia v. Black, the Court had the opportunity to resolve the problem, but refused to do so. Instead, the Court restructured the law related to intimidating and threatening speech, creating even more ambiguity. Under the …
Play It Again, Sam: Webcasters’ Sound Recording Complement As An Unconstitutional Restraint On Free Speech, Amanda S. Reid
Play It Again, Sam: Webcasters’ Sound Recording Complement As An Unconstitutional Restraint On Free Speech, Amanda S. Reid
UC Law SF Communications and Entertainment Journal
Music embodies two copyrights: one for the words and notes, and another for the particular sound recording. Copyright law provides for a compulsory license that enables a Webcaster to transmit songs without first negotiating price and permission, provided a royalty fee is paid. A condition for being eligible for the statutory license is compliance with the "sound recording performance complement," which limits the number of songs that may be played during a three-hour period to no more than three songs from one album, and no more than two songs back to back. This Article argues that the "sound recording performance …
Redefining The Transformative Use Of Copyrighted Works: Toward A Fair Use Standard In The Digital Environment, Jisuk Woo
UC Law SF Communications and Entertainment Journal
This paper analyzes the transformative use factor in fair use analysis of copyright law. The author argues that, in the changing information environment stimulated by digital information technology, the end user's creativity in their activities of using works of authorship should be the focus in applying the principle of transformative use rather than the subsequent creation of transformed work as found in the lower court cases after Campbell.
But We Have To Protect Our Source: How Electronic Voting Companies' Proprietary Code Ruins Elections, Andrew Massey
But We Have To Protect Our Source: How Electronic Voting Companies' Proprietary Code Ruins Elections, Andrew Massey
UC Law SF Communications and Entertainment Journal
In the wake of the disastrous 2000 Presidential election, reformers turned to touch-screen electronic voting machines, or DREs, to avoid repeating Florida's experience with endless recounts and hanging chads. As soon as DREs were introduced, however, criticism quickly mounted, focusing on the machines' error-ridden code, inability to perform recounts, and susceptibility to hacking. This note explores how the problems associated with DREs stem directly from their reliance on proprietary source code. This note puts forth the argument that proprietary code place's electronic voting companies' intellectual property rights ahead of the public's need for an accountable and transparent voting system. In …
Holding The Spymasters Accountable After 9/11: A Proposed Model For Cia Disclosure Requirements Under The Freedom Of Information Act, Martin E. Halstuk
Holding The Spymasters Accountable After 9/11: A Proposed Model For Cia Disclosure Requirements Under The Freedom Of Information Act, Martin E. Halstuk
UC Law SF Communications and Entertainment Journal
For the last two decades, near-blanket CIA secrecy has gone largely unchecked, principally because of CIA v. Sims, a sweeping 1985 U.S. Supreme Court decision that exempted the Agency from virtually any disclosure requirements under the Freedom of Information Act (FOIA). The uncurbed secrecy that the Court has sanctioned effectively blocks public and press efforts to evaluate CIA performance, thus making Agency accountability difficult, if not impossible. The well-publicized missteps and failures by the CIA in connection with the 9/11 terrorist attacks illustrate the follies of how excessive secrecy can conceal grave problems in Agency management. This article argues that …
The Open Source Biotechnology Movement: Is It Patent Misuse?, Robin Feldman
The Open Source Biotechnology Movement: Is It Patent Misuse?, Robin Feldman
Faculty Scholarship
No abstract provided.
Consolidating The Diffuse Paths To Trade Dress Functionality: Encountering Traffix On The Way To Sears, Margreth Barrett
Consolidating The Diffuse Paths To Trade Dress Functionality: Encountering Traffix On The Way To Sears, Margreth Barrett
Faculty Scholarship
No abstract provided.
Sharing And Stealing, Jessica Litman
Sharing And Stealing, Jessica Litman
UC Law SF Communications and Entertainment Journal
The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. The lion's share of the economic proceeds of copyrights were therefore channeled to publishers and distributors, and the law was designed to facilitate that. Digital distribution invites us to reconsider all of the assumptions underlying that model. We are still in the early history of the networked digital environment, but already we've seen experiments with both direct and consumer-to-consumer distribution of works of authorship. One remarkable example of the difference …
Picking Up The Pieces Of Grokster: A New Approach To File Sharing, Tom Graves
Picking Up The Pieces Of Grokster: A New Approach To File Sharing, Tom Graves
UC Law SF Communications and Entertainment Journal
The introduction of peer-to-peer file-sharing has created a plethora of new legal issues regarding the creation and distribution of music recordings. The music, however, is only half of the story. The case of MGM Studios v. Grokster addresses the tension between promoting progress in music and protecting the development of new technologies. Although it may be time to revisit the judicial standard for vicarious and contributory copyright infringement in the file-sharing context, a new legislative framework must ultimately be found. The creators of music should be compensated for their work, but not at the unnecessary expense of new and useful …
Can The Right Of Publicity Afford Free Speech - A New Right Of Publicity Test For First Amendment Cases, Jason K. Levine
Can The Right Of Publicity Afford Free Speech - A New Right Of Publicity Test For First Amendment Cases, Jason K. Levine
UC Law SF Communications and Entertainment Journal
The right of publicity finds itself increasingly threatened by the First Amendment. Recent decisions at both the state and federal levels have served to highlight the confusion and lack of uniformity. For example, the Ninth Circuit recently held that an artist could not sell T-shirts with a charcoal drawing of the Three Stooges without permission, yet shortly thereafter the Sixth Circuit rejected Tiger Woods' attempt to prevent an artist from selling a painting of him winning a golf tournament, on essentially the same grounds. The author argues that the right of publicity and the First Amendment can co-exist, but that …
Jazz Photo And The Doctrine Of Patent Exhaustion: Implications To Trips And International Harmonization Of Patent Protection, Daniel Erlikman
Jazz Photo And The Doctrine Of Patent Exhaustion: Implications To Trips And International Harmonization Of Patent Protection, Daniel Erlikman
UC Law SF Communications and Entertainment Journal
The doctrine of patent exhaustion prevents the patent owner from controlling the further destiny of the patented invention once the owner authorized the first sale or use of the product in the marketplace. In recent years, the United States Court of Appeals for the Federal Circuit advanced a modified rule of exhaustion, which permits the U.S. patent holder to contractually restrict the first purchaser's subsequent re-use or re-sale of the product. The recent Jazz Photo decision is a controversial and unjustified switch from existing U.S. jurisprudence in the field of patent exhaustion and parallel imports. By applying a territorial rule …
The Biology Of The Broadcast Flag, Susan P. Crawford
The Biology Of The Broadcast Flag, Susan P. Crawford
UC Law SF Communications and Entertainment Journal
The Motion Picture Association of America (MPAA) and its content affiliates would like all consumer electronics and information technology companies to innovate "according to the rules." The arguments made by the MPAA and its content colleagues in support of national (and, eventually, global) control over the functionality of the devices that manipulate content are fundamentally troubling for the future of innovation and the future of law itself. But the content industry has hit on a very important way of thinking about law. We should pay attention to the evolutionary ecosystem of the law as the background medium in which innovation …
Considerations On The Emerging Implementation Of Biometric Technology, Robin Feldman
Considerations On The Emerging Implementation Of Biometric Technology, Robin Feldman
UC Law SF Communications and Entertainment Journal
The United States is embarking on widespread implementation of biometric technology, which uses automated methods to identify people based on their physiological and behavioral characteristics. Regardless of how much we invest in establishing standards for reliability of the technology and protections of the data, no system will be foolproof. Biometric determinations will be subject to mistakes, fraud, and abuse through human and technological error, both intentional and inadvertent. We should, therefore, take this opportunity to develop methods for individuals to review and challenge biometric determinations. In particular, this article suggests a doctrinal framework for challenging biometric determinations made by administrative …
The Perils Of Telemarketing Under The Telephone Consumer Protection Act Sending Unsolicited Faxes Costs Dallas Cowboys $1.73 Million, Leaves Dallas Mavericks Under Full Court Pressure, Paul J. Batista
UC Law SF Communications and Entertainment Journal
In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to "protect the privacy interests" of outraged constituents who received annoying phone calls from telemarketers. The Act prohibits sending unsolicited faxes to unwilling recipients, and creates fines up to $1,500 for each individual fax. The Dallas Mavericks have been sued under the Act, creating potential liability of $135 million. Fax broadcasters have unsuccessfully challenged the Act under the First and Fifth Amendments. The Act grants jurisdiction to individual state courts, and a Georgia case has resulted in a final judgment of $11,899,000.
How To Constitutionally Protect Against Virtual Child Pornography, Emanuel Shiarzi
How To Constitutionally Protect Against Virtual Child Pornography, Emanuel Shiarzi
UC Law SF Communications and Entertainment Journal
The improvement of computer graphics and its resulting burden on prosecuting real child pornography led Congress to pass the Child Pornography Prevention Act (CPPA) of 1996. However, in addition to prohibiting virtual child pornography the CPPA banned many other areas of protected speech and was held unconstitutional in 2002. This article gives an overview of the First Amendment concerns of future virtual child pornography laws, the laws currently being proposed in Congress, and then proposes its own constitutional virtual child pornography law.
China And The Prior Consent Requirement: A Decade Of Invasion And Counter-Invasion By Transfrontier Satellite Television, Mei Ning Yan
China And The Prior Consent Requirement: A Decade Of Invasion And Counter-Invasion By Transfrontier Satellite Television, Mei Ning Yan
UC Law SF Communications and Entertainment Journal
This paper examines and analyzes why the majority of television viewers in China can only have access to domestic television at the beginning of the 21st century, despite direct broadcasting by satellite, which respects no national borders being widely employed in Asia for a decade. By applying national broadcasting rules, this paper argues, the Chinese authorities have successfully given effect to the "prior consent requirement," a concept which was fiercely debated in the international arena and has supposedly long been discarded because of disagreement among nations and technological advances.
Examining The Evidence: Post-Verdict Interviews And The Jury System, Nicole B. Casarez
Examining The Evidence: Post-Verdict Interviews And The Jury System, Nicole B. Casarez
UC Law SF Communications and Entertainment Journal
Although jury deliberations are kept secret, jurors sometimes speak out to the press after the conclusion of a trial about the rationale for their verdict, what pieces of evidence were important to their decision, and similar issues. Some argue that post-verdict juror interviews are harmful to the very foundation of the jury system, because they endanger defendants' fair trial rights, invade jurors' privacy, and distort public perception of jury verdicts. However, others, such as the author, consider these post-verdict interviews important, because they permit the public to gain a better understanding of the verdicts as well as the nature of …
Unmasking Crack_Smoking_Jesus: Do Internet Service Providers Have A Tarasoff Duty To Divulge The Identity Of A Subscriber Who Is Making Death Threats, Jon B. Eisenberg, Jeremy B. Rosen
Unmasking Crack_Smoking_Jesus: Do Internet Service Providers Have A Tarasoff Duty To Divulge The Identity Of A Subscriber Who Is Making Death Threats, Jon B. Eisenberg, Jeremy B. Rosen
UC Law SF Communications and Entertainment Journal
Based on a personal experience. During ongoing litigation, the authors' clients began receiving pseudonymous threats by email and on an Internet message board maintained by Yahoo! Inc. This experience led the authors to ask themselves a question: What should lawyers do when their clients receive anonymous death threats electronically during the pendency of litigation? In their case, the Federal Bureau of Investigation (FBI) determined the identity of the perpetrator and the local United States Attorney's office eventually commenced prosecution. However, pursuant to rules of federal grand jury secrecy, the perpetrator's identity still remained a secret. When the identity was sought …
File-Sharing Copyright, And Privacy, Stephen Keating
File-Sharing Copyright, And Privacy, Stephen Keating
UC Law SF Communications and Entertainment Journal
Lawsuits brought by the recording industry against Internet users accused of illegal file sharing raise provocative questions about legal tactics, the piracy of copyrighted material, the openness of the Internet, and the future of peer-to-peer (P2P) file sharing. The history of satellite TV piracy may provide a key to understanding what comes next.
Newton V. Diamond: Measuring The Legitimacy Of Unauthorized Compositional Sampling— A Clue Illuminated And Obscured, Susan J. Latham
Newton V. Diamond: Measuring The Legitimacy Of Unauthorized Compositional Sampling— A Clue Illuminated And Obscured, Susan J. Latham
UC Law SF Communications and Entertainment Journal
This article discusses how the district court in Newton v. Diamond could have provided the music industry with a path of reasonable determination via which the risk of infringement due to unauthorized digital sampling of a musical composition could be reasonably estimated and prudent licensing decisions made. At the very least, it illuminated a clue through its threshold determination of protectability. However, as the author explains, the court of appeals obscured that clue beneath a conundrum of de minimis use analysis, highlighting the need for courts to settle upon a clear and consistent standard for de minimis use analysis.
Racial Minorities And The Quest To Narrow The Digital Divide: Redefining The Concept Of “Universal Service”, Patricia M. Worthy
Racial Minorities And The Quest To Narrow The Digital Divide: Redefining The Concept Of “Universal Service”, Patricia M. Worthy
UC Law SF Communications and Entertainment Journal
The future of the United States as a nation depends, in large measure, on its ability to achieve equality for each member of its society. Historically there has been a national policy, known as universal service, of requiring that everyone should be provided the opportunity to receive basic telephone service at an affordable rate, regardless of geographic location or economic status. As computer technology developed, Congress and the Federal Communications Commission appropriately recognized its value. They have, through statutory mandates and regulatory policies, implemented various initiatives to achieve a universally level "playing field" to prevent a gap between information "haves" …
An Economic Analysis Of Domain Name Policy, Karl M. Manheim, Lawrence B. Solum
An Economic Analysis Of Domain Name Policy, Karl M. Manheim, Lawrence B. Solum
UC Law SF Communications and Entertainment Journal
One of the most important features of the architecture of the Internet is the Domain Name System (DNS), which is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). The DNS is organized into a hierarchy of domains. The physical infrastructure of the DNS consists of name servers, which provides the information that directs name queries to the appropriate server. These facilities and devices are scarce resources in the economic sense, since they have a finite capacity and expansion is costly. The name space is scarce because each address (or set of characters) can only be allocated to …
Publishing Privacy: Intellectual Property, Self-Expression, And The Victorian Novel, Jessica Bulman
Publishing Privacy: Intellectual Property, Self-Expression, And The Victorian Novel, Jessica Bulman
UC Law SF Communications and Entertainment Journal
Though typically invoked in legal writing for their portrayals of criminal trials and judicial failings, Victorian authors also probed a more subtle aspect of the law: the interrelationship of privacy and intellectual property. In their novels, this paper argues, these authors treated literary creations as uniquely private expression and used copyright-and the formal control it furnishes over publication-as a model for understanding privacy.
Building Rome In A Day: What Should We Expect From The Riaa?, Valerie Alter
Building Rome In A Day: What Should We Expect From The Riaa?, Valerie Alter
UC Law SF Communications and Entertainment Journal
When a new technology enters the entertainment market, incumbents may look backwards rather than forwards. Today, peer-to-peer file sharing services enable users to get the weekly chart-toppers for free by downloading desired songs, depriving the record companies of their rightful royalties. The record companies fear that this free online peer-topeer systems will mean the end of the recording industry. In response, the Recording Industry Association of America (RIAA) has begun to prosecute individual users, including a 12-year-old girl. However, this approach is problematic, and there are two other potential solutions that may be preferable. First, the recording industry could abandon …
The Insufficiency Of Antitrust Analysis For Patent Misuse, Robin Feldman
The Insufficiency Of Antitrust Analysis For Patent Misuse, Robin Feldman
Faculty Scholarship
No abstract provided.
Facing The Music: The Dubious Constitutionality Of Facial Recognitiontechnology, John J. Brogan
Facing The Music: The Dubious Constitutionality Of Facial Recognitiontechnology, John J. Brogan
UC Law SF Communications and Entertainment Journal
Recent advances in biometric identification technology, along with ever more extensive databases of information about ordinary citizens, inspire concern among civil liberties advocates about whether there are any meaningful limits on government's ability to keep track of ordinary citizens. In this Article, Professor Brogan discusses facial recognition technology, and argues that courts should draw a distinction between wide area scans, which should be severely limited or banned, and focused facial scans, which may be allowable under limited circumstances involving particularized suspicion.
Speaking Out Of Thin Air: A Comment On Hurley V. Irish-American Gay, Lesbian And Bisexual Group Of Boston, Randall P. Bezanson, Michele Choe
Speaking Out Of Thin Air: A Comment On Hurley V. Irish-American Gay, Lesbian And Bisexual Group Of Boston, Randall P. Bezanson, Michele Choe
UC Law SF Communications and Entertainment Journal
The appropriation and use of others' speech - through quotation, compilation, or republication - is ubiquitous; however, traditional First Amendment jurisprudence is often at a loss when it confronts "speech selection judgments." In this Comment, the Authors explore the phenomenon of speech selection, and the attributes of speaking and communication that may account for its status as speech under the First Amendment. The Authors then analyze the Supreme Court's reasoning in a single case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, according to four different theories of speech and communication; in order to comment on ambiguities inherent …
Free As The Air: Rethinking The Law Of Story Ideas, Brian Devine
Free As The Air: Rethinking The Law Of Story Ideas, Brian Devine
UC Law SF Communications and Entertainment Journal
This note discusses idea submissions in Hollywood, arguing for the necessity of idea protection in the entertainment industry. As in copyright, the law should provide protection for ideas to promote progress and incentives to create, thus achieving the aims of intellectual property. Devine states that the most significant form of protection for ideas is achieved through contract law, and he argues that preemption by federal copyright law is endangering idea protection.
The Tragicomedy Of The Public Domain In Intellectual Property Law, Samuel Oddi
The Tragicomedy Of The Public Domain In Intellectual Property Law, Samuel Oddi
UC Law SF Communications and Entertainment Journal
As the overall amount of protected and protectable subject matter expands, duration of protection grows longer, and overlap between types of protection increases, constituencies who rely upon intellectual subject matter as stimuli for the creative process grow concerned about incursions of the private domain into the public. This Article explores the relationship between the public domain as a source of sensory stimuli, the creative process as a generator of ideas, and the interaction among the public and private domains and the intellectual process - both in a "state of nature" and under the protections of an intellectual property system - …