Intellectual Property Law Commons^™

Combating Impunity: Some Thoughts On The Way Forward, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Introduction Of Daniel Schorr, Betty Medsger

UC Law SF Communications and Entertainment Journal

No abstract provided.

The First Amendment Under Pressure, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

What Are The Limitations On Freedom Of The Press, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

Diversity And Minority Stereotyping In The Television Media: The Unsettled First Amendment Issue, Patricia M. Worthy

UC Law SF Communications and Entertainment Journal

Racial dissention and divisiveness continue to be among the most destructive and debilitating aspects of our society. Social scientists have raised serious questions about the role that television has played both in increasing the level of violence and intensity of racial disharmony in America. Most findings reveal that ethnic minorities are still negatively stereotyped as "criminals," "dangerous characters," or "clowns." The research literature also suggests that media distortions negatively impact the self-esteem of African- American children and may preclude them from achieving self-actualization or impede their ability to realize their full potential. In response to these and other concerns, the …

Markman And Hilton Davis, The Federal Circuit Strikes And Awkward Balance: The Roles Of The Judge And Jury In Patent Infringement Suits, Jason Scully

UC Law SF Communications and Entertainment Journal

The Court of Appeals for the Federal Circuit recently rendered two decisions which represent a compromise between increasing the power of the judge and maintaining a role for the jury. This Note. with reference to studies in juror comprehension and improved trial techniques, explores whether the court struck an appropriate balance.

The Case For Color-Blind Distress Sales, Michael E. Lewyn

UC Law SF Communications and Entertainment Journal

Under the Federal Communications Commission's "distress sale" policy, a broadcaster whose license has been designated for a revocation hearing, or whose renewal application has been designated for hearing, may assign the license to an FCC-approved minority enterprise at a discount price before the hearing. Under recent Supreme Court precedent restricting the use of race-conscious federal measures, the distress sale policy may soon be declared unconstitutional.

If the distress sale policy is declared unconstitutional, the FCC has two significant alternatives. First, the FCC may abolish the distress sale policy altogether. Second, the FCC may create a color-blind distress sale policy which …

Return To Hot Wheels: The Fcc, Program-Length Commercials, And The Children's Television Act Of 1990, Allen K. Rostron

UC Law SF Communications and Entertainment Journal

In the Children's Television Act of 1990, Congress directed the FCC to address the problem of "program-length commercials" aimed at children. Such programs, essentially thirty-minute ads for toys and other products, proliferated during the 1980s as the FCC deregulated children's television. In response to the Children's Television Act, the FCC adopted a policy that purported to address the problem, but actually avoided facing it. In its rule-making proceeding, the FCC disregarded Congress' concerns, misconstrued the issue presented, and mischaracterized the ineffective policy adopted as consistent with FCC rulings of the 1960s and 1970s. The need continues for a more effective …

The Communications Decency Act And The Indecent Indecency Spectacle, David Kushner

UC Law SF Communications and Entertainment Journal

This essay situates the Communications Decency Act in contemporary jurisprudence and our postmodern culture. The author analyzes why both the proscription of indecency in cyberspace and the prescription of television ratings are unconstitutional. More importantly, the essay argues that cyberspace must be viewed as a post modern spectacle. The production forces of late capitalism have commodified sex and violence, making them the principal fruits of desire in cyberspace. These cultural urges, in conjunction with the convergence of telecommunications technologies, render the CDA and like forms of censorship fundamentally unenforceable. The essay concludes by suggesting the serious implications for First Amendment …

The Shirts Off Their Backs: Colleges Getting Away With Violating The Right Of Publicity, Vladimir P. Belo

UC Law SF Communications and Entertainment Journal

The popularity of college athletics is at an all-time high in the United States. Colleges and universities have capitalized on the enthusiasm through marketing merchandise aimed at taking advantage of the growing popularity. Recently, colleges have begun using the popularity of individual student-athletes by marketing clothing featuring uniform numbers of high-profile players on their tiams. This Note examines this latest trend in college sports merchandising.

This Note suggests that the marketing of this type of merchandise may violate student-athletes' common law and statutory rights of publicity. This Note chronicles the development of right of publicity law, concluding that a college …

Making The World Wide Web Safe For Democracy: A Medium-Specific First Amendment Analysis, Andrew Chin

UC Law SF Communications and Entertainment Journal

The World Wide Web, a vast speech domain that may ultimately swallow all current forms of telecommunications media, presents urgent First Amendment issues. Most significantly, the structure of linked documents on the Web has served to concentrate speech power and impoverish democratic discourse. As extensive surveys by the author and others demonstrate, commercial speech dominates the Web and political discourse on the Web has become balkanized.

Using a quantitative model, it is possible to isolate and identify the characteristics of Web sites that contribute to robust public debate. These findings suggest a range of structural policies that would support the …

Access To Premises And Easements: Can The Cable Operator Come In, Philip Kantor

UC Law SF Communications and Entertainment Journal

This article reviews the attempts by cable television operators to access easements in order to provide their service to television watchers. Cable operators first attempted to use state common law of apportionment in order to access utility easements. In order to argue that an easement could be apportioned, the operator needed to show that the easement was compatible for cable use and that use would not place an additional burden on the servient estate. Many courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or …

Rating The Net, Jonathan Weinberg

UC Law SF Communications and Entertainment Journal

Rating systems provide an impressive solution to the problem of sexually explicit speech on the Internet. Members of the Internet community are rightly enthusiastic about the benefits filtering software promises. Those benefits, though, come at a cost. Sites may be stripped out of the filtered universe because of deliberate political choices on the part of ratings service administrators, and because of inaccuracies inherent in the ratings process. If a ratings service is to categorize a large number of sites, it cannot simultaneously achieve consistency and nuance; the techniques it must rely on to achieve consistency make it more difficult to …

Berne, Cfta, Nafta & (And) Gatt: The Implications Of Copyright Droit Moral And Cultural Exemptions In International Trade Law, Stephen Fraser

UC Law SF Communications and Entertainment Journal

Beginning with the United States' accession to the Berne Union in 1988-89, through the negotiations for the Canada-United States Free Trade Agreement (CFTA), the North American Free Trade Agreement (NAFTA), and the latest round of the General Agreement on Tariffs & Trade (GAIT), copyright law and its attendant industries have become important foci in the area of international trade. Although the United States may be the world leader in the dissemination of movies, television programs, music, and books and even though through Berne, CFTA, NAFTA, and GATT the United States has managed to obtain increased protection for copyrighted content, it …

The Un-Worth-Y Decision: The Characterization Of A Copyright As Community Property, Debora Polacheck

UC Law SF Communications and Entertainment Journal

This Article examines the impact of In re Marriage of Worth, the only reported case which has considered the effect of California's community property law on an author's rights under the Copyright Act of 1976. The author challenges the California Court of Appeal's holding that a copyright is a community property asset. The court, when faced with a clear conflict between state and federal law, failed to preempt state law. Instead, the court created a situation which not only will be felt by spouses upon dissolution of marriage but also will be felt by the author-spouse who will no longer …

Parody (Of Celebrities, In Advertising), Parity (Between Advertising And Other Types Of Commercial Speech), And (The Property Right Of) Publicity - A Substantive And Procedural Path - Through Glitz, Wit, Rap, Suds, And Ink - To A Balanced Constitutional And Common Law Vindication Of Each, Michael E. Hartmann, Daniel R. Kelly

UC Law SF Communications and Entertainment Journal

In 1992's highly controversial White v. Samsung Electronics America, Inc., the United States Court of Appeals for the Ninth Circuit refused to create a parody exception to the common law right of publicity for a parodic advertisement. Almost all of the early legal commentary on White criticized the Ninth Circuit for not having created such an exception, most of it urging an emulation of federal statutory copyright law's fair use exception. In 1993's Cardtoons v. Major League Baseball Players Ass'n, the Northern District Court of Oklahoma similarly refused to create a parody exception to the right of publicity for an …

Emerging Antitrust Issues Affecting The Computer Industry, Kelly A. O'Connor

UC Law SF Communications and Entertainment Journal

Computer industry marketing practices have been subject to frequent challenge under U.S. antitrust laws since the early 1980s. These challenges have principally been based on tying arrangement analysis under section 1 of the Sherman Act and section 3 of the Clayton Act, or monopolization under section 2 of the Sherman Act. This article discusses the background of the Supreme Court's treatment of computer industry marketing practices under U.S. antitrust law, establishes qualifications for acceptable marketing practices by reviewing the recent Supreme Court decisions Eastman Kodak Co. v. Image Technical Services and Data General Corp. v. Grumman System Support Corp., and …

The Sports Broadcasting Act: Calling It What It Is - Special Interest Legislation, David L. Anderson

UC Law SF Communications and Entertainment Journal

Since the Sports Broadcasting Act (SBA) was enacted in 1961, professional sports leagues have enjoyed an exemption to the antitrust laws that permits a league to sell package deals to broadcasting companies for the exclusive televising of league games. Recently, the necessity of the SBA has been challenged, both by legal commentators and in the courts. This Note examines the challenges to the SBA and the intent of Congress when it passed the SBA, suggesting that much of the criticism focused on the SBA is unfounded. The author concludes that in enacting the SBA Congress intended to keep professional sports …

The Electronic Filing Of Applications With The United States Patent & (And) Trademark Office, Hunter L. Auyang

UC Law SF Communications and Entertainment Journal

The U.S. Patent & Trademark Office (PTO) has long recognized that if it could develop the capabilities to accept and process electronically-filed patent and trademark applications, the quality of its services to the public would be improved. Applications in electronic format are necessary in order for the PTO, as one of the world's largest repositories of technical literature, to establish a "paperless" office, which would relieve it of its current burden of handling massive volumes of paper.

This Article discusses the scope of the PTO's efforts to date in computerizing and automating its operations to enable electronic application filing. The …

Telecommunications In The United Kingdom: A Prototype For Deregulation Or A Flash In The Pan, Sean P. Farrell

UC Law SF Communications and Entertainment Journal

The United Kingdom maintains the world's most extensively deregulated telecommunications market. This Note examines the United Kingdom's history of telecommunications deregulation, the principal components of its deregulatory efforts, and the results obtained thus far. With respect to the principal components of deregulation, this Note's analysis focuses upon the United Kingdom's regulatory policy decisions, the efficacy of the British regulatory agency, and the adaptability of the British regulatory framework. In addition to drawing certain conclusions regarding the United Kingdom's deregulatory success, this Note also offers some general comparisons regarding proposed regulatory reforms within the United States.

Children's Television Act: Encouraging Positive Television For Our Children, The - A Proposal To The Fcc, Gary E. Knell

UC Law SF Communications and Entertainment Journal

Congress overwhelmingly passed the 1990 Children's Television Act to address policy concerns involving excessive violence and other inappropriate broadcast material in children's programming. The Act requires broadcasters to contribute to meeting children's educational needs in order to remain licensed. The Act also sets forth stipulations designed to encourage more constructive programming for children. Unfortunately, the Act has not proven as powerful as originally expected, leaving children's programming in much the same state it was before the Act. This Proposal sets forth a model to the Federal Communications Commission. The model is already used by the Children's Television Workshop and provides …

Everything That Glitters Is Not Gold: Songwriter-Music Publisher Agreements And Disagreements, Don E. Tomlinson

UC Law SF Communications and Entertainment Journal

The standard-form long-term exclusive songwriter-music publisher "agreement" may be as good an example of a classic adhesion contract as any in American business life.. Music publishers have tremendous bargaining power; songwriters, at least in their early professional years, have little or none. It is no surprise, then, that such contracts heavily favor the music publisher and almost always are offered to beginning professional songwriters on a take-it-or-leave-it basis. While English courts have begun to recognize the "unconscionability" issue in these contracts-especially in relation to music publishers having no contractual obligation to "exploit" the copyrights received from songwriters under such agreements-American …

The Work Made For Hire Doctrine And California Recording Contracts: A Recipe For Disaster, Joseph B. Anderson

UC Law SF Communications and Entertainment Journal

Recording artists provide their recording or songwriting services pursuant to "work made for hire" clauses present in the vast majority of recording industry contracts. Under the work made for hire doctrine, the record labels can retain ownership in the ultimate artistic creations and thus ensure maximum profits for the labels. However, in 1982 the California Legislature mandated that persons who create works made for hire are deemed employees for purposes of workers' compensation benefits as well as unemployment and disability insurance. As a result, record labels may face substantial liability under California labor laws. At a minimum, it appears that …

Baseball's Antitrust Exemption, Michael H. Juarez

UC Law SF Communications and Entertainment Journal

Major League Baseball (Baseball) traditionally has enjoyed an exemption from antitrust laws even though Baseball is a business that clearly engages in interstate commerce. This antitrust immunity has allowed owners to restrict franchise expansion and relocation as well as to shackle players to a given team by using the reserve system. 1993 congressional hearings indicate that Congress has maintained the exemption in exchange for Baseball acting in the best interests of the American public. However, incidents over the past few years point to Baseball's repeated disregard of the public interest. This Note contrasts the relevant case law and congressional response …

Intellectual Property Rights In Joint Research Ventures With The National Laboratories, William A. Eklund

UC Law SF Communications and Entertainment Journal

The United States Department of Energy (DOE) founded its National Laboratories shortly after World War II. The National Laboratories are large, multi-program research institutions conducting research on various aspects of nuclear energy. This Article focuses on the intellectual property rights issues that arise in business transactions between the National Laboratories and the private sector where research is to be performed. including: research and development subcontracts, cooperative research and development agreements, sponsored research and user facility agreements. and the licensing of intellectual properties.

Swifties, Shifties, And That E-Biz Jazz: The Ethical Roles Of Attorney/Literary Agents, Bruce S. Stuart

UC Law SF Communications and Entertainment Journal

It is no secret that attorney authors are making their mark on the book publishing industry as books by and about lawyers occupy more than a fair share of both THE NEW YoRK TIMES and PUBLISHER'S WEEKLY bestseller lists. But what about the lawyers behind the scenes-those who broker those bestseller deals? From the late literary agent extraordinaire Swifty Lazar to power literary deal maker Morton Janklow, this Article will examine how the attorney literary agent evolved and the ethical considerations incumbent upon attorneys who also don the hat of author representative.

This article will demonstrate through the use of …

Facilitating Telemedicine: Reconciling National Access With State Licensing Laws, Stacey Swatek Huie

UC Law SF Communications and Entertainment Journal

Telemedicine is a growing phenomenon which is being promoted by the states, the federal government, and private groups. Telemedicine offers many benefits not available through traditional forms of medical practice. As certain practices involved in telemedicine conflict with state licensing laws, a solution balancing the needs of telemedicine against the states' interest in preserving the health and safety of their citizens is needed if telemedicine is to prosper. This Note outlines the benefits and problems associated with telemedicine, discusses the current state licensing laws and the dangers those laws seek to prevent, and proposes solutions reconciling the two.

Reducing The Cost Of Free Expression: A Call For Fee Shifting In Cases Challenging Freedom Of Expression, Neil I. Shapiro, Ross D. Tillman

UC Law SF Communications and Entertainment Journal

Those who offer information or express ideas, whether in book, essay, film, or music, and those who distribute or sell the vehicles for such expression have sometimes been sued by individuals claiming physical or emotional injury allegedly flowing from such expression. Suits have included claims that reliance on factual or quasi-factual representations in expressive or informative works resulted in injury to the plaintiff, as well as claims that such works influenced the conduct of third parties who in turn inflicted injury on the plaintiff.

While those faced with such claims routinely prevail, the costs of so doing can be substantial. …

Medical Device Eligibility For The Statutory Experimental Use Exception To Patent Infringement, Veronica Lanier

UC Law SF Communications and Entertainment Journal

Federal patent laws grant exclusive rights to inventors and prohibit infringement of these rights. The Food, Drug, and Cosmetic Act (FDCA) exempts from patent infringement activities undertaken to meet regulatory requirements that delay commercial marketing of certain products regulated by the FDCA. The Supreme Court held the exception applicable to medical devices subject to significant premarket regulatory delay, but the recent district court decision of Baxter Diagnostics, Inc. v. AVL Scientific Corp. restricted the experimental use exception to those medical devices that must meet specific premarket approval requirements. This Note examines the codification and judicial interpretation of the statutory experimental …

The Know-How Gap In The Trips Agreement: Why Software Fared Badly, And What Are The Solutions, J. H. Reichman

UC Law SF Communications and Entertainment Journal

The TRIPS Agreement establishes universal minimum standards of intellectual property protection that will enable software producers to repress the wholesale duplication of their products in the global marketplace. These standards, however, will not effectively require World Trade Organization member states to issue software patents or to provide copyright protection for the functionally determined components of computer programs that account for most of their commercial value. Nor does this Agreement prevent the reverse engineering of technical ideas by honest means if competitors express their analytical results in independently created programs.

This Article discusses the impact of the TRIPS provisions governing patents, …