Intellectual Property Law Commons^™

Enemy Of The People: The Ghost Of The F.C.C. Fairness Doctrine In The Age Of Alternative Facts, Ian Klein

UC Law SF Communications and Entertainment Journal

The FCC Fairness Doctrine required that all major broadcasting outlets spend equal time covering both sides of all controversial issues of national importance. The Fairness Doctrine remained the standard for decades before it stopped being enforced during the Reagan administration, and was removed from the Federal Register during the Obama administration. Since the Fairness Doctrine’s disappearance, the perception by conservatives and progressives alike has been that major media outlets display overt biases towards one political affiliation or the other. As it becomes harder to determine real news from “fake news,” Americans’ trust in media is at an all-time low. An …

Forum Delegation: The Birth And Transposition Of A New Approach To Public Forum Doctrine, Brett Johnson, Shane C. Epping

UC Law SF Communications and Entertainment Journal

This paper introduces and explores the concept of forum delegation: the power of government officials to suggest which forums to allow speakers to use. The concept is born out of a recent legal battle between the University of Minnesota and conservative speaker Ben Shapiro, in which the UMN required Shapiro to speak in a venue away from the heart of campus due to concerns over the school’s ability to provide adequate security for the event. The paper first analyzes the UMN case to assess the constitutionality of forum delegation in the context of regulating speech and public universities. Next, it …

Corruption And College Sports: A Love Story, Andrea Cristiani Closa

UC Law SF Communications and Entertainment Journal

College sports are a staple of American tradition, bringing in hundreds of millions of viewers each year. Fans from all over the country root for their team’s success and hope they will be the ones to take home the national championship each year. Increasingly, however, college sports have been in the public eye for a very different reason: corruption. The National Collegiate Athletics Association’s (“NCAA”) Amateurism Rule, which prohibits student-athletes from receiving compensation, has contributed to this ongoing corruption. The NCAA insists upon its student-athletes remaining amateurs, even though its own rule is damaging the integrity of college sports. Players, …

Harvey Of Hollywood: The Face That Launched A Thousand Stories, Sara Khorasani

UC Law SF Communications and Entertainment Journal

In the fall of 2017, the world was shaken by allegations of sexual misconduct against one of Hollywood’s high-powered movie moguls. The Harvey Weinstein scandal exposed countless accounts of sexual harassment and abuse, along with the settlement agreements that had kept them covered for decades. Since then, social movements have helped knock Harvey off his Hollywood throne and shed light upon a major concern plaguing the entertainment industry. This paper seeks to address how to effectively change an industry that has long bred a systemic culture of sexual harassment and discrimination. Under the accepted norms of Hollywood, victims of sexual …

Mixed Messages: How The Free Press Has A Responsibility To We The People At The Marketplace Of Ideas, Addison O’Donnell

UC Law SF Communications and Entertainment Journal

The Free Press makes possible a fair democracy. It exerts influence on our communities and our consciences, principally in the form of reporting facts through its account of events, endorsing certain viewpoints through editorials, and ultimately producing the “first rough draft of history.” How the public responds to the Free Press speaks to the historic and continued expectation that many different voices should present divergent messages and allow the people to decide which message is the truth. Risks taken by the Free Press in the name of truth enable the theory of our Constitution to endure by facilitating the unbridled …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Youtube, K-Pop, And The Emergence Of Content Copycats, Sam Quach

UC Law SF Communications and Entertainment Journal

YouTube is the internet’s largest and most recognized video streaming platform; the website has millions of daily active users from all over the world and hosts billions of videos. With so much content being hosted on the website, YouTube has developed basic protocol when it comes to copyright issues, including a standardized system for dealing with copyright infringement. But with such a large audience and technology constantly growing and changing, YouTube is constantly faced with new problems. Among content on YouTube, Korean entertainment and pop music (commonly referred to as K-Pop) has quickly become one of the largest markets, with …

Lost In A Novelty Mug: U.S. Telecom, The Fcc, And Policy Resolution For Net Neutrality, Christopher Terry, Scott Memmel, Ashley Turacek

UC Law SF Communications and Entertainment Journal

This paper traces the history of net neutrality and the judicial reviews of the Federal Communication Commission’s multiple attempts at regulation, including the agency’s 2006 guidelines overturned in Comcast v. FCC, the 2010 rules overturned in Verizon v. FCC, and the FCC’s reclassification of broadband in its 2015 net neutrality rules, as well as the contemporary battles over the agency’s decision in November of 2017 to repeal the 2015 rules. As the FCC continues to wrestle with net neutrality and open internet regulations, the agency engaged in a series of continuing delays to impede a potential U.S. Supreme Court review …

Legalizing Federal Sports Gambling Laws: You Got To Know When To Hold’Em, Robert Shawhan

UC Law SF Communications and Entertainment Journal

This paper addresses the current federal laws that prohibits sports gambling. It argues that the introduction of a well-regulated and transparent gambling industry may serve greater protections than what is provided by the law. Politicians are sensibly acknowledging the realities of sports gambling and its benefits. The current political climate, under a Trump Presidency, is ideal for legalizing this form of gambling. Part I of this note will reflect on the most recent history of sports gambling laws. It will draw on New Jersey’s legal struggles, the sports evolution of Las Vegas, and the relevant Daily Fantasy Sports controversy. Part …

From Satirical To Satyrical: When Is A Joke Actionable?, Sandra Davidson Scott

UC Law SF Communications and Entertainment Journal

This Article was selected from Volume 13, Number 2 of the Hastings Communications and Entertainment Law Journal. In light of President Donald Trump’s threats to change the current libel law, this Article was selected to address topics including Jerry Falwell’s unsuccessful suit against Hustler magazine, the public figure/private person distinction, commercial appropriation for name and likeness, and the opinion/fact distinction. The Article concludes that courts show more sensitivity to commercial than personal injury and fail to appreciate that satire can damage reputation by raising suspicions that statements are based on facts that are merely stretched.

Moral Rights For Musical Compositions In The United States:It’S Not Just Fair, It’S An Obligation, Becca E. Davis

UC Law SF Communications and Entertainment Journal

This paper seeks to establish that the United States has a quasi-obligation to enact comprehensive moral rights legislation to remain compliant with the minimum protection standards set forth by the Berne Convention of 1886. In order to alleviate the anticipated economic and societal concerns stemming from this idea, this paper presents musical compositions as the initial work of authorship to receive moral rights, gradually easing the United States’ transition into full compliance with the Berne Convention. Part I of this paper will cover a brief history of music law in the United States, focusing on how the exclusive rights granted …

Patent Law: How Big Pharma Delays Generic Entry, Robin Feldman

The Judges' Book

No abstract provided.

Patent Law: Finding Space For State Authority To Regulate Patents, Robin Feldman

The Judges' Book

No abstract provided.

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

UC Law SF Communications and Entertainment Journal

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

#Ncaa Vs. Student Athletes: An Empirical Analysis Of Ncaa Social Media Policies, Elizabeth M. Heintzelman

UC Law SF Communications and Entertainment Journal

This article argues that the NCAA and its universities should not have any form of social media policy as it creates First and Fourth Amendment violations, as well as a liability for both the NCAA and its member schools. A social media policy should not limit constitutional rights, but rather any policy should educate the youth about important issues such as cyber-bullying, versus limiting constitutional rights. This article will focus on several issues: 1) whether the relationship between the NCAA and its student athletes constitutes an employer-employee relationship; 2) an evaluation of the social media policies concerning private employers and …

Can I Play Too? Transgender Student Athletes’ Inclusion In “Because Of Sex”, Paul Jones

UC Law SF Communications and Entertainment Journal

This article seeks to explore what remedies may be available to transgender student athletes in today's changing legal field. The law is scant as to whether transgender student athletes must be allowed to play on the sex-segregated teams which correspond with their gender identity. New legislation may not be needed. Title VII and Title IX may offer protections for transgender student athletes. The legislative and judicial tools already exist.

Several federal courts have included gender identity under Title VII, yet Title VII currently only protects people who are considered to be employees. There is now a movement across college campuses …

The Pre-1972 Sound Recordings Landscape: A Need For A Uniform Federal Copyright Scheme, P. Dylan Jensen

UC Law SF Communications and Entertainment Journal

Since the rapid expansion of the Internet in the 1990s and through the 2000s, Internet entrepreneurs and technology companies continue to discover new ways to offer music online for free. A large portion of the music offered by these services was created prior to 1972, the year the Sound Recordings Act of 1971 established as the cut-off for federal copyright protection. These pre-1972 sound recordings are covered by a patchwork of state and common law, which varies greatly from state to state. Though some music services have shielded themselves with the safe harbor provision offered to Online Service Providers ("OSPs") …

Will The Federal Communications Commission’S 2015 Open Internet Order Receive Chevron Deference?, John Meisel

UC Law SF Communications and Entertainment Journal

In 2015, the Federal Communications Commission ("FCC") decided to reclassify broadband Internet service as a telecommunications service subject to Title II regulations contained in the Communications Act. This decision is currently under review by a three­ person panel of judges for the D.C. Circuit. A key question in the review will be whether the FCC's reclassification decision is eligible for Chevron deference. The answer to this question will likely be based on lessons learned from similar cases dealing with Chevron deference that the Supreme Court has addressed. For instance, the fact that the reclassification decision is likely to be characterized …

There’S No R In Smoking: A Modified Rating System To Curb Adolescent Smoking, Amanda E. Beckwith

UC Law SF Communications and Entertainment Journal

Smoking is the most common preventable causes of death in the United States and costs society billions of dollars each year. Most smokers become addicted at a young age, but often have no legal remedy from smoke-related injuries. Smoking in movies is a significant factor in the initiation of youth smoking, yet the Motion Picture Association of America ("MPAA") does not factor "smoking" into movie ratings. This note argues that in order to reduce the harmful effects of youth smoking, movies with depictions of cigarettes should be rated R. In order to pressure the MPAA into making this change, potential …

Protecting Journalists From Politically Motivated Claims Of Espionage Under International Law, Allison Brinkerhoff

UC Law SF Communications and Entertainment Journal

Currently, there is not a uniform international standard for the protection of journalists against politically motivated claims of espionage, and this void allows governments to cloak politically motivated claims of espionage as a "national security threats." The purpose of this article is to propose amending the International Covenant on Civil and Political Rights ("ICCPR"), to remove the void, by making Article 19 a nonderogated right for journalists who are reporting and participating in political expression.

Web Accessibility For Impaired Users: Applying Physical Solutions To Digital Problems, Deeva V. Shah

UC Law SF Communications and Entertainment Journal

Title III of the Americans with Disabilities Act ("ADA") aims to prevent discrimination against the disabled in places of public accommodation. Unlike many other anti­ discrimination statutes, the ADA requires places of public accommodation to take affirmative steps to ensure access for the impaired. Courts currently differ on whether a place of public accommodation requires a physical location or whether nonphysical places, such as a retailer's website, also fall under the statute. Some courts apply the nexus test to determine the whether the ADA applies to online content. Under the nexus test, there must be a connection between a physical …

A Call For Minority Involvement In Cybersecurity Legislation Reform And Civil Rights Protests: Lessons From The Anti-Sopa/Pipa Demonstrations., Kiran Sidhu

UC Law SF Communications and Entertainment Journal

This note examines one of the many pieces of cybersecurity legislation currently before Congress, the Cyber Intelligence Protection and Sharing Act (“CISPA”). This note illustrates CISPA’s deleterious effects on the privacy and security of American citizens as a result of its provisions that provide federal agencies and private companies legal immunity for sharing private information. However, this note ultimately avers that bills like CISPA will have a particularly negative impact on civil rights demonstrators–and especially demonstrators belonging to minority groups–given the U.S. history of surveillance of such groups during periods of social and political unrest. As such, this note will …

The Internet Is A Packet-Switched Network, Kendall Koning

UC Law SF Communications and Entertainment Journal

Since the Supreme Court's decision in National Cable Telecommunications Association v. Brand X Internet Services, many legal scholars have considered the question of whether the FCC may choose to regulate Internet access as an information service to be settled law. And, for the second time in five years, the D.C. Circuit in Verizon v. FCC struck down the jurisdictional theory relied upon by the FCC in creating its Open Internet rules because the FCC still classified Internet connections as information rather than telecommunications services. In response, and after a vigorous public debate, the FCC recently reversed its classification and grounded …

Evaluating Intent In True Threats Cases: The Importance Of Context In Analyzing Threatening Internet Messages, P. Brooks Fuller

UC Law SF Communications and Entertainment Journal

Following the Supreme Court's most recent ruling on the true threats doctrine in Virginia v. Black, significant conflict emerged among the federal circuit courts. On one hand, several circuit courts disagreed interpreted the holding in Virginia v. Black as a requirement of applying a subjective intent standard into all statutes that criminalize true threats. On the other hand, some circuit courts interpreted the holding as a requirement for prosecutors to prove that a reasonable person would consider the message as a true threat. A speaker's use of social networking websites and Internet forums for the purpose of posting violent and …

White Men Still Dominate Reality Television: Discriminatory Casting And The Need For Regulation, Henna Choi

UC Law SF Communications and Entertainment Journal

In 2012, two African-American males, who unsuccessfully applied to be the Bachelor, sued ABC under 42 U.S.C. § 1981, alleging that the producers of reality shows The Bachelor and The Bachelorette intentionally excluded people of color from the lead role. The United States District Court for the Middle District of Tennessee concluded that the First Amendment was a complete bar to the plaintiffs' section 1981 claim with respect to casting decisions for the television programs. Moreover, the court did not allow the plaintiffs to litigate their untimely employment discrimination claims under Title VII of the Civil Rights Act of 1964. …

Small Steps For Congress, Huge Steps For Online Privacy, Jugpreet Mann

UC Law SF Communications and Entertainment Journal

As the creation of data has exponentially increased with Internet usage, U.S. companies have found a variety of ways to collect personal data and create value from such data. This innovation, however, comes at the cost of an individual's right to privacy. The U.S. government's current approach to online privacy has failed to properly regulate the collection and utilization of the immense amounts of personal data being generated. This note explains how companies collect and create value from personal information. This note draws upon the history of privacy, how Congress currently addresses online privacy, and the states' and other nations' …

Right-Sizing Broadband Spectrum Auction Licenses: The Case For Smaller Geographic License Areas In The Tv Broadcast Incentive Auction, William Lehr, J. Armand Musey

UC Law SF Communications and Entertainment Journal

This article examines the potential impact of smaller-sized license territories in the context of the FCC's upcoming 2016 Broadcast Incentive Auction-the largest, most complex auction to date. The purpose of the auction is to free up to 120 MHz of prime spectrum in the 600 MHz band, currently licensed to over-the-air television broadcasting, to repurpose for licensing mobile broadband and other higher value wireless services. This article argues that using smaller territories is more consistent with the longterm direction of efficient spectrum management reform and future wireless market. The article also explains how adopting small geographic territories is necessary to …

You Can Use Hidden Recorders In Florida, Thomas R. Julin, Jamie Z. Isani, Paulo R. Lima

UC Law SF Communications and Entertainment Journal

The Florida Supreme Court faces a difficult decision in McDade v. State. The court must decide whether the statements recorded on a hidden recording device can be used to convict a man accused of sexually assaulting his step-daughter. This article traces the controversial history of Florida's Security of Communications Act and shows that it does not in ban the use of secret recordings of face-to-face conversations by any part to the conversations. The Florida courts, however, have misread the law for decades and this article urges the Florida Supreme Court to set the record straight in McDade. This article argues …

Talent Managers Acting As Agentsrevisited: An Argument For California's Imperfect Talent Agencies Act, Myles L. Gutenkunst

UC Law SF Communications and Entertainment Journal

Talent managers in California have traditionally faced severe penalties under the Talent Agencies Act (TAA) for simple acts of procuring employment for their artist-clients. Commentators, interest groups, and justices have pointed out these flaws and proposed alternative remedies to provide managers with some equity when violating the statute. These advocates have argued for an adoption of the incidental booking exception that is present in New York's employment agency statutes. However, this proposal and other proposed alternatives actually undercut the policy that the Talent Agencies Act seeks to protect. This note will compare California's TAA and New York's employment agency laws, …

Digital Music Garage Sale: An Analysis Of Capitol Records, Llc V. Redigi Inc. And A Proposal For Legislative Reform In Copyright Enabling A Secondary Market For Digital Music, Nicholas Costanza

UC Law SF Communications and Entertainment Journal

In 2011, ReDigi, Inc., a Massachusetts-based tech company, created the first resale marketplace for lawfully purchased digital music. This "digital resale" platform immediately drew the attention of copyright holders in the music industry. In early 2012, Capitol Records, LLC sued ReDigi, claiming that the service violated Capitol's exclusive rights to reproduction and distribution of their copyrighted words under the Copyright Act of 1976. Ultimately, the United States District Court for the Southern District of New York held in favor of Capitol. This note explains this case and discusses the complex relationships between "secondary digital market" technology and current copyright law. …