Intellectual Property Law Commons^™

An Economic Assessment Of Ucita, Robert W. Hahn, Anne Layne-Farrar

UC Law SF Communications and Entertainment Journal

The Uniform Computer Information Transactions Act ("UCITA") is a model contract law for computer products. This note examines the potential advantages and disadvantages of adopting the UCITA and discusses its effects on consumer transactions. Benefits include reducing costs and providing a consistent standard of law. Hahn and Layne-Farrar conclude that the prospective benefits of passage of the UCITA outweigh any potential burdens.

Digital Divide: Myth, Reality, Responsibility, Nicholas W. Allard

UC Law SF Communications and Entertainment Journal

The author explores the fundamental benefits of eliminating the digital divide. Improving access to technology is both a positive thing with respect to social conscience, but it is an imperative of democracy, as well as making fundamentally good, hardheaded economic sense. John Nash's game theory applies, expounding the benefits of selfish self-interest for individuals, for social groups and for society as a whole.

Smells Like Slavery: Unconscionability In Recording Industry Contracts, Phillip W. Hall Jr.

UC Law SF Communications and Entertainment Journal

The music recording industry today is fundamentally broken: artists are in open revolt against the labels over their recording contracts; and one U.S. Senator has even stated, "this is the only industry in which after you pay off the mortgage the bank still owns the house." In this Note, Phillip Hall argues that although the equitable doctrine of unconscionability is clearly satisfied by the substantive and procedural unfairness in standard industry recording contracts, flaws in the judicial process make it unfeasible for most artists to seek relief in the courts; thus, what is needed to save the industry is legislation …

The Fcc's Third Report On Broadband Deployment: Inequitable, Untimely And Unreasonable, Allen S. Hammond

UC Law SF Communications and Entertainment Journal

This article challenges the findings of the February 2002 report of the Federal Communications Commission regarding the status of broadband advanced network and high-speed service development in the US. The author questions the reports conclusion that current network development is reasonable and timely, based on both the data itself and contradictory evidence. Further, the Commission's measurement is inadequate to determine the extent of service. The article advocates that inadequate measurements should not be a basis for deregulating the industry at a time when future availability of technology will dramatically impact the lives of many Americans.

Figure This: Judging Or Federal Fraud? A Proposal To Criminalize Fraudulent Judging And Officiating In The International Figure Skating Arena, Kelly Koenig Levi

UC Law SF Communications and Entertainment Journal

In 2002, the "Salt Lake Scandal" - in which it was revealed that judges had colluded to predetermine the gold medal winners of figure skating events - tarnished the public image of the sport of international figure skating. However, aside from the involvement of an alleged Russian mobster, the scandal came as no surprise to competitive figure skaters or their followers. In this Article, Professor Levi argues that the fraudulent activity prevalent in international figure skating judging and officiating is comparable to the behavior prohibited by current federal fraud statutes, and proposes federal legislation to address the problem.

The Inevitable Disclosure Doctrine: Inequitable Results Are Threatened But Not Inevitable, Adam Gill

UC Law SF Communications and Entertainment Journal

Currently, courts have split on the issue of whether the inevitable disclosure doctrine ("IDD") applies in California. This note analyzes the IDD, its possible adoption in California, potential pitfalls, and ways to alleviate problems that may arise. Gill argues that the doctrine poses an obstacle to employee mobility and innovation, and proposes standards for applying the doctrine in California.

Your Trade Secret Is Safe With Us: How The Revision To Federal Rules Of Civil Procedure Makes Discovery Presumptively Confidential, Kurt Putnam

UC Law SF Communications and Entertainment Journal

This note addresses the debate in circuits regarding the propriety of stipulated protective orders to protect trade secrets in federal litigation. Putnam explores the approaches utilized by the 2nd and 1st Circuits, analyzing them in light of the former rules and the common law, respectively. He takes the position that the 2000 revisions to the Federal Rules of Civil Procedure to Rule 5(d) and a Rule 26(c) protective order help protect parties' confidentiality during litigation.

The Global Digital Divide: Focusing On Children, Susanna Frederick Fischer

UC Law SF Communications and Entertainment Journal

Professor Fischer takes a comparative look at children's access to information and communications technologies (ICT) in six countries across five continents- the United States, the United Kingdom, France, Australia, Mongolia, and Tanzania. Children's levels of access to ICT is strongly linked to the "global development divide." The article explores the difference between access in highly developed countries and lesser developed countries. The article further explores the extent of the global developmental divide, including the potentially bleak future facing children born in less developed countries. Next the article explores both sides of the debate that simply increasing ICT access can eliminate …

Equality And The Digital Divide, Gerald Doppelt

UC Law SF Communications and Entertainment Journal

Although distribution of computers and Internet access is important in equalizing information access, this article considers the concept of digital literacy. People not only need access to information, but an understanding of what to do with the knowledge acquired. Explore with Professor Doppelt the idea that the digital divide is a new aspect to the literacy divide, and the crucial role that education in public schools plays in equalizing opportunity.

Golfers' Tort Liability - A Critique Of An Emerging Standard, Daniel E. Lazaroff

UC Law SF Communications and Entertainment Journal

This article argues that the recklessness standard applied by most contemporary courts to tort claims initiated by one sports participant against a co-participant is inappropriate in the context of golf. Rather, Professor Lazaroff asserts that golf is an activity in which a negligence standard should apply and that this lower threshold for liability can be utilized without chilling participation or altering the inherent nature of the sport. In sum, the recklessness standard generally used for more active or contact sports is unnecessary in the more passive and genteel setting of golf competition.

The Digital Divide And Equal Access To Justice, Mark Lloyd

UC Law SF Communications and Entertainment Journal

This article begins by considering the problem of equal access to justice between those with access to communication technology and those without. It then goes on to challenge the current market-centered technology by exploring some of the dangers and limits of new communications technology as a corrective to a problem that has long divided rich and poor, a problem that defines the degree to which we can truly call ourselves a civilization, and the real and important opportunities made possible by new technologies.

Ownership Issues In The Digital Divide, Yale M. Braunstein

UC Law SF Communications and Entertainment Journal

Unlike broadcast and telecommunications media, the Internet has developed largely without governmental regulation both in terms of service and content providers. Major communications and media firms essentially control both access to and content of the Internet. Policies to promote access to the Internet are crucial in closing the gap in the digital divide. This article focuses on how the concentration of ownership impacts Internet access and content, as well as on how industry structure affects broadband access.

Digital Divide, Digital Opportunities: A Statistical Overview, Lee Price

UC Law SF Communications and Entertainment Journal

Excerpted from remarks made at the Comm/Ent Symposium on the Digital Divide.

On The Digital Divide: Selected Remarks, Carl Wood

UC Law SF Communications and Entertainment Journal

Excerpted from remarks made at the Comm/Ent Symposium on the Digital Divide.

Vote-Swapping Over The Internet: Free Speech Or Voter Corruption, Jesse Sisgold

UC Law SF Communications and Entertainment Journal

In Fall 2000, the electoral process and high technology collided in creating an 'update' to the Electoral College. From the slew of websites.

Hung Out To Dry: Clothing Design Protection Pitfalls In United States Law, Anne Theodore Briggs

UC Law SF Communications and Entertainment Journal

The United States' trend toward longer, stronger intellectual property protection has failed to include protection for clothing design. The design of clothing itself lacks protection, while the surface decoration, fabric design, and labels are protected. This article examines current United States intellectual property law and its shortcomings, while discussing why enactment of design legislation fails. The author argues that passage of clothing design protection laws would benefit both United States consumers and clothing designers.

The Irony Of News Coverage: How The Media Harm Their Own First Amendment Rights, Clay Calvert, Robert D. Richards

UC Law SF Communications and Entertainment Journal

This article argues that the First Amendment protection provided to the news media today actually may be harming -- unjustifiably and unnecessarily -- the scope of First Amendment protection given to other sectors of the media, most notably, the Hollywood entertainment industry and non-mainstream journalists. Using the death of Princess Diana and the school shootings at Columbine High School to illustrate a seven-step process that the authors assert gives rise to this disturbing irony, the article contends that high-profile journalistic coverage of these events produced false public perceptions of reality and media culpability - a false perception that the paparazzi …

Regulating Sexual Images On The Web: Last Call For Miller Time, But New Issues Remain Untapped, Clay Calvert

UC Law SF Communications and Entertainment Journal

The article suggests that the test for obscene speech under the Miller case should be abandoned because the new technologies and innovations of the World Wide Web present significant difficulties in apply the test in its traditional form. The author recommends alternatives, which would alleviate the problems of applying the Miller test to the Internet. First, he advocates adopting a national community standard. Second, he suggests that a "Web-specific test for obscenity" be created. Part I of the article examines the first high profile case, which exposed the flaws in applying the Miller test to the Internet. Part II discusses …

The Future Of The Concurrent Use Of Trademarks Doctrine In The Information Age, David S. Barrett

UC Law SF Communications and Entertainment Journal

This article focuses on the concurrent use doctrine of trademarks. This doctrine allows different owners to use the same or similar trademarks in business if (1) the junior use is geographically remote to the senior use and (2) the trademark was adopted in good faith. The second element is interpreted differently, with a shrinking minority requiring no actual knowledge and the minority requiring no intent of the junior user to imply his goods are those of the senior user.

The author argues that the internet revolution has created substantial problems with the concurrent use doctrine. The first major issue is …

Fashion Runways Are No Longer The Public Domain: Applying The Common Law Right Of Publicity To Haute Couture Fashion Design, Samantha L. Hetherington

UC Law SF Communications and Entertainment Journal

Under present United States intellectual property law, clothing design is not protected by federal copyright, trademark/trade dress, or patent law. In fact, design piracy is sanctioned, if not encouraged. This article analyzes current intellectual property law and its failure to afford protection for clothing design. The author proposes that the doctrine of the right of publicity or personality could be applied to haute couture.

Trade Secrets, The First Amendment And The Challenges Of The Internet Age, David Greene

UC Law SF Communications and Entertainment Journal

Trade secret owners often come into conflict with the First Amendment rights of free speech and free press when they seek to restrict the publication of their trade secrets by others. Although the Uniform Trade Secrets Act provides some remedies for the unauthorized disclosure of trade secrets, First Amendment principles can make it difficult for trade secret owners to obtain such relief, especially when the publisher of the trade secret owes no duty of confidentiality to its rightful owner. Some trade secret owners have argued that trade secrets should be immune from First Amendment scrutiny, but there is no historical …

The Supreme Court And Trade Dress - A Short Comment, William P. Kratzke

UC Law SF Communications and Entertainment Journal

In the last nine years, the United States Supreme Court decided four cases that concern trade dress and the doctrine of functionality. With these decisions, the Court broadened the doctrine of functionality and narrowed the protection available for product configuration. The Court correctly held that the protection for a product's trade dress should not be as high as the protection for its trademark because consumers do not expect trade dress to function as trademarks do in identifying a product and its source. The author concludes that the Court has redefined the protection of trademark interests in these four cases so …

Year Of The Living Dead: California Breathes New Life Into Celebrity Publicity Rights, Rhett H. Laurens

UC Law SF Communications and Entertainment Journal

The use of images of deceased actors in film has become increasingly controversial in recent years. Advances in digital imaging technology have made it possible to manipulate these images to such an extent that it will soon be feasible to produce films in which they play leading roles. The lack of legal protections available to the deceased actors' heirs, who want the rights to control the use of the actors' images for both creative and economic reasons, prompted Fred Astaire's widow and other Hollywood celebrities to push for passage of the Astaire Celebrity Image Protection Act. Signed into law in …

The Marriage Of Intellectual Property And Insurance Law: An Introduction, Leo P. Martinez

Faculty Scholarship

No abstract provided.

Turning Gray Into Green: Some Comments On Napster, Shubha Ghosh

UC Law SF Communications and Entertainment Journal

File sharing involves a combination of legitimate distribution and illegitimate copying, and the two cannot be separated. The prevailing argument in the Ninth Circuit's Napster opinion, that he infringement is not in the distribution or the sharing, but in the copying, ignores the merger of copying and distribution. This article analyzes the economics of intellectual property, and applies that economic analysis to Napster as an alternative mechanism for the distribution of music. This article suggests that owners of file sharing systems like Napster privatize their economic interests through intellectual property law, by obtaining business method patent protection for file sharing …

The First Amendment As A Check On Copyright Rights, Alan E. Garfield

UC Law SF Communications and Entertainment Journal

Parties are increasingly raising the First Amendment as a potential limit on the scope of copyright rights. However, courts have traditionally found that copyright law already incorporates First Amendment interests, as it precludes protection of ideas and allows for the "fair use" of expression. This article addresses the issue of whether there needs to be additional First Amendment restraints. The author focuses on the broader principles of the First Amendment, and whether copyright law fully incorporates those principles. The author then discusses two recent cases, Worldwide Church of God v. Philadelphia Church of God and Los Angeles Times v. Free …

Using Technology To Circumvent The Law: The Dmca's Push To Privatize Copyright, Matt Jackson

UC Law SF Communications and Entertainment Journal

The anti-circumvention provisions of the Digital Millennium Copyright Act of 1998 threaten free speech by giving copyright owners extralegal protection for their works. The Act allows a copyright owner to adopt technological measures that may be used to expand control over their works beyond the limits created by the Copyright Act, including the first sale doctrine and fair use. Rather than restricting circumvention technology, lawmakers and copyright owners should focus on infringing conduct. By focusing on such infringing activity, free speech rights will be safeguarded.

Legislative Prohibitions On The Enforcement Of Post-Employment Covenants Not To Compete In The Broadcasting Industry, Alice J. Baker

UC Law SF Communications and Entertainment Journal

This article examines covenants not to compete in the entertainment industry. In the first section of the article, the author discusses the common-law doctrine of non-competition agreements and their application in the context of the entertainment industry. Next, the author examines state legislative attempts to limit this type of agreement in the broadcasting industry, including possible justifications for a legislative prohibition on them in the entertainment industry. The author concludes that the costs of blanket prohibition outweigh the benefits of prohibitive legislation, and argues that broadcasting companies and employees should be free to negotiate and enforce postemployment covenants not to …

Reconstructing First Amendment Doctrine: The 1990s (R)Evolution Of The Central Hudson And O'Brien Tests, Susan Dente Ross

UC Law SF Communications and Entertainment Journal

In this article, the Supreme Court's shifting and expanding approach to intermediate scrutiny of commercial free speech under the First Amendment is examined. The author maintains that the Supreme Court has increased the level of review for content-neutral laws regulating commercial speech, while decreasing the level of review of laws affecting the media. The author argues that these analytical shifts have eroded First Amendment protection for the media, replacing the traditional notion that the media is central to a functioning democracy with the view that the press is simply a powerful, commercial enterprise. The author concludes by contrasting two recent …

Pricing Network Elements Under The Telecommunications Act Of 1996: Back To The Future, Salvatore Massa, Mark E. Meitzen, Steve G. Parsons

UC Law SF Communications and Entertainment Journal

This article examines the Telecommunications Act of 1996 and Congress' intent that it encourage new local telephone exchange carriers to enter the local telephone market, thereby increasing competition and reducing consumer cost. The authors give an overview of the Act, and then examine the disputes surrounding how the new carriers should pay for the use of existing network facilities under it. The authors argue that the Supreme Court should adopt the Eighth Circuit's actual incremental costs approach, because it is based on the expected future costs of an actual market participant, and is therefore more consistent with sound economic principles.