Intellectual Property Law Commons^™

In The Ordinary Course Of Business: The Legal Limits Of Workplace Wiretapping, Martha W. Barnett, Scott D. Makar

UC Law SF Communications and Entertainment Journal

The use of telecommunications monitoring and recording devices in the workplace has generated considerable controversy. The authors untangle the interlocking web of federal and state laws that limit the extent to which private businesses may engage in workplace wiretapping, using the laws of Florida as a paradigm of state regulation. In particular, the authors' analysis of cases which interpret federal and Florida wiretapping statutes indicates that courts often take dissimilar approaches to resolve workplace wiretapping issues. The authors also discuss FCC and state public service commission regulations, as well as the effect of a proposed federal "beeper bill." In conclusion, …

The Copyrightability Of Computer Program Screen Displays, Laurie Zeeb Kullby

UC Law SF Communications and Entertainment Journal

Copyright protection for computer programs has traditionally centered on the computer program itself. Recently, a debate has developed in the computer industry as to whether copyright protection should be expanded to cover the audiovisual screen displays generated by the programs. The author traces the development of the current law on this issue and distinguishes it from video game copyright law, in which the screen display has always been the primary object of copyright protection. The author concludes that computer program screen displays should not be registered separately, but instead should be protected under the copyright of the underlying computer program.

Piracy And Gray Markets, Robert W. Steele

UC Law SF Communications and Entertainment Journal

The author discusses parallel imports or "gray market goods" in the context of the federal trademark laws, the regulations promulgated by the Customs Service and its enforcement of these regulations. In the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., the author argued on behalf of K Mart. In this speech, the author discusses and rebuts the arguments made by his opponent, the Coalition to Preserve the Integrity of American Trademarks (COPIAT) and contends that parallel imports are advantageous to the American consumer and necessary in any effort to reduce the foreign trade deficit. He concludes …

Some Revisions Of A Gray Market Decalogue: A Response To Messrs. Lewin And Steele, William H. Allen

UC Law SF Communications and Entertainment Journal

The author, who represented the Coalition to Preserve the Integrity of American Trademarks (COPIAT), in the recent United States Supreme Court case, K Mart Corp. v. Cartier, Inc., rebuts the arguments in favor of parallel importation made by Nathan Lewin and Robert W. Steele. The author argues that the Customs Service regulations interpreting section 529 of the Tariff Act of 1930 are incompatible with the Act itself and make no economic sense. He contends that there are policy and legal arguments for enforcing section 526 as written, not as the Customs Service has interpreted it, thereby prohibiting parallel importation. Although …

Piracy And Gray Markets In The European Economic Community, Richard L. Moxon

UC Law SF Communications and Entertainment Journal

This Article summarizes the establishment and principal purposes of the European Economic Community (EEC) and selected provisions of the Treaty of Rome. The author analyzes the inherent shortcomings of the provisions of the Treaty as they apply or fail to apply to piracy and counterfeiting of various goods, services and labor within the EEC. The author concludes that counterfeit goods and piracy will continue to be a substantial problem in the EEC absent increased cooperation among the member countries and the development of a common policy designed to deal with these issues.

Emerging Gray Market Balance: A Global Perspective On Solutions For The Nineties, Timothy P. Rumberger

UC Law SF Communications and Entertainment Journal

Significant harms attend both the unrestrained influx of parallel imports and their blanket exclusion. In light of the recent United States

Supreme Court decision in K Mart Corp v. Cartier, Inc., the author examines the causes, symptoms and competing interests of consumers, manufacturers, domestic trademark owners and gray market importers. This Note considers the contemporary legislative, Judicial and executive approaches toward balancing these interests. The author suggests a solution to capture the benefits of parallel imports while effectively eliminating the dangers by means which fairly allocate the policy burdens on those who enjoy the benefits.

Only The News That's Fit To Print: Student Expressive Rights In Public School Communications Media After Hazelwood V. Kuhlmeier, Christopher J. Palmero

UC Law SF Communications and Entertainment Journal

Free expression rights guaranteed to high school students vary widely across America. High school student journalists' first amendment rights were drastically curtailed recently by the United States Supreme Court in Hazelwood v. Kuhlmeier, but California has enacted a statute giving substantial free speech protection to public school students. The author analyzes legal standards articulated by the U.S. Supreme Court, the California legislature, and California courts, applying both federal and California standards to a variety of student expressive media. The author concludes that both standards could be improved by requiring schools to adopt written guidelines and suggests criteria for such guidelines.

Where Will The Buck Stop On California Penal Code Section 330: Solving The Stud-Horse Poker Conundrum, Michael Pierce Singsen

UC Law SF Communications and Entertainment Journal

In California, while it is legal to gamble at the game of draw poker, it is unlawful to play other types of poker, including stud and hold'em. The source of this curious distinction is an 1885 amendment to California Penal Code § 330, which specifically forbids the game of "studhorse poker." One hundred years later, the courts are wrestling with the scope and meaning of this statutory prohibition of a game which is undefined and no longer played by that name. The focus of the dispute is whether the popular game of hold'em poker is outlawed. The author traces the …

May It Rest In Peace: Public Interest And Public Access In The Post-Fairness Doctrine Era, Richard E. Labunski

UC Law SF Communications and Entertainment Journal

Until it was abolished by the Federal Communications Commission in 1987, the Fairness Doctrine was the clearest symbol of broadcasting's "second-rate" first amendment status. This Article traces the history and demise of the Fairness Doctrine and urges Congress to abandon current efforts to enact the Doctrine into law. The author proposes, instead, a system of access that provides broadcast journalists with the full first amendment protection they have long sought, and at the same time protects and enhances the public's interest in broadcasting.

Ideological Exclusions: A Prior Restraint Analysis, Daniel M. Torrence

UC Law SF Communications and Entertainment Journal

The McCarran-Walter Act gives the State Department and the Immigration and Naturalization Service the power to deny visas to visiting foreigners because of their political beliefs. The author argues that excluding foreigners in this way prevents U.S. citizens from exchanging ideas and information with these excluded people, thus infringing the constitutional rights of citizens. Because the first amendment includes a right to receive information and ideas, regardless of their source, the author contends that these ideological exclusions under the authority of the McCarran-Walter Act are unconstitutional.

Advertiser Liability: Soldier Of Fortune Cases Take Deadly Aim At Publishers, Neil L. Shapiro, Karl Olson

UC Law SF Communications and Entertainment Journal

Publishers traditionally have enjoyed immunity from tort liability in running other parties' advertisements. Two recent suits against Soldier of Fortune magazine, arising from the publication of ads for mercenaries, have proved an exception to this rule. In this Commentary, the authors review the law and urge that negligence alone is an insufficient basis on which to impose liability upon a publisher for running another's ad. Rather, the authors argue that liability should be imposed only when the ad promotes a likelihood of lawless conduct which, in turn, creates a substantial risk of serious bodily harm.

If It Ain't Broke, Don't Fix It, John R. Worthington

UC Law SF Communications and Entertainment Journal

The author argues that the Department of Justice and the divested Bell Operating Companies are trying to persuade the divestiture court to do directly what the Dole Bill tried to accomplish indirectly, namely, eliminate the provisions of the AT&T consent decree which restrict those companies from entering lines of business in which they could abuse their bottleneck power. The author suggests that the Department's recommendations to remove these restrictions are fundamentally flawed and completely unprincipled - and that, furthermore, recent history and present realities show that federal regulators cannot prevent the anti-competitive abuses which the decree was crafted to prevent. …

Mfj: Judicial Overkill - Further Perspective And Response, Robert B. Mckenna, Ronald L. Slyter

UC Law SF Communications and Entertainment Journal

The authors postulated in Volume 9:1 of COMM/ENT that the line-ofbusiness restrictions imposed in the AT&T divestiture decree-which sharply limit the business activities in which the divested exchange carriers may operate-were based upon fundamentally flawed premises. In this rejoinder, the authors take issue with those who would oppose the rights of the regional holding companies to own non-telecommunications- related enterprises. The authors suggest that the regulators are fully capable of properly fulfilling their statutory tasks in areas where exchange carriers have market power, and that the United States Congress has the legislative and constitutional power to eliminate the consent decree's …

Freeing The Telephone Company Seven: The Justice Department Joins The Chorus, James P. Denvir

UC Law SF Communications and Entertainment Journal

In January of this year, the Department of Justice submitted to the United States District Court for the District of Columbia its recommendations concerning the line-of-business restrictions contained in the consent decree which was entered in U.S. v. AT&T. The Department recommended that restrictions on information services and manufacturing be lifted entirely and that the inter-exchange service restrictions be modified. The author discusses the marked departure from earlier positions of the Justice Department that these recommendations represent. The rationale for the Justice Department's change in position, as well as anticipated difficulties the Department would likely encounter in persuading the court …

Congress And The Federal Communications Commission: The Continuing Contest For Power, Harry M. Shooshan Iii, Erwin G. Krasnow

UC Law SF Communications and Entertainment Journal

This article discusses the changing relationship between Congress and the Federal Communications Commission. The authors suggest that the Commission's status as an independent agency has been eroded by the emergence of a new system of checks and balances imposed by Congress. The use of riders on appropriations bills and the enactment of statutory moratoriums have served to increase Congressional involvement in, and control over, Commission decision-making. After discussing specific examples of how these new tools of legislative oversight have affected major Commission decisions, the authors conclude that the challenge for the Commission in the future will be to learn from …

Cameras In The Courtroom: A First Amendment Right Of Access, Richard H. Frank

UC Law SF Communications and Entertainment Journal

In Westmoreland v. Columbia Broadcasting System, Inc., the U.S. Court of Appeals for the Second Circuit held that a per se ban on television access to a federal courtroom does not violate the first amendment to the U.S. Constitution. The author asserts that Westmoreland and two similar courts of appeal decisions upholding absolute prohibition of electronic access to judicial proceedings are indefensible under recent U.S. Supreme Court decisions such as Chandler v. Florida and the Richmond Newspapers, Inc. v. Virginia line of cases. The author details the widespread success of television access to courtrooms in over eighty percent of the …

Constitutional Struggle Over Telecommunications Regulation, Rita M. Cain

UC Law SF Communications and Entertainment Journal

For almost two decades, federal telecommunications regulators had preempted state telecommunications regulations based on the supremacy of federal policy. The federal courts consistently upheld this federal exercise of power. This article examines that trend and the recent Supreme Court decision that abruptly reversed the trend, Louisiana Public-Service Commission v. FCC. The immediate and substantial impact of that decision is examined and, in some cases, questioned.

United States Regulation Of Transborder Speech, Stephen R. Barnett

UC Law SF Communications and Entertainment Journal

Regulation of transborder speech - speech flowing into or out of the country - is a relatively neglected subject that now appears to be attracting increased attention in American law. This article presents a survey and commentary on United States laws regulating transborder speech. Its many topics include ideological restrictions on visitors' visas, regulation of "political propaganda" distributed by foreign agents in the United States, government certification of "educational" films for dutyfree circulation abroad, and restrictions on the reception of television programming from foreign communications satellites for purposes of home viewing, university study, or retransmission by American news organizations. The …

Allocation Of Risk Based On The Mechanics Of Injury In Sports: A Proposed Presumption Of Non-Fault, Gerald J. Todaro

UC Law SF Communications and Entertainment Journal

This article analyzes the interrelationship between sports safety measures and sports injury litigation. The author urges the courts to abandon the doctrine of assumption of the risk and proposes a presumption of non-fault to ensure that unavoidable injuries in sports are excluded from compensation. The evidentiary presumption is predicated on the assumption that some injuries are impervious to injury avoidance practices and techniques. Under the presumption, coaches and instructors who negligently create additional risk of injury for the athletic participant face liability.

Introduction, Dennis Patrick

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Works Made For Hire Doctrine And The Employee/Independent Contractor Dichotomy: The Need For Congressional Clarification, Bennett J. Fidlow

UC Law SF Communications and Entertainment Journal

The author examines the "works made for hire" doctrine and the confusion that has arisen in the federal courts over it. The author reviews the development of the doctrine and recent case law interpreting its codification in the 1976 Copyright Act. He concludes that, although the U.S. Supreme Court may render a decision on the doctrine, Congresional legislation would be the best course for its clarification.

California Art Preservation Act: Proving Actual Damages, Ronald T. Michioka

UC Law SF Communications and Entertainment Journal

California became the first state in the nation to statutorily recognize the personal rights of artists in their creations when it enacted section 987 of the California Civil Code. The California Art Preservation Act prohibits the alteration of a work of fine art by anyone other than its creator. In addition to other remedies, an aggrieved artist may seek to recover "actual damages" for an unauthorized alteration of his or her

work. Addressing the difficulty of proving actual damages, this Note discusses the types of proof of actual damages which are allowed in other torts which protect a person's reputation …

Stone Got Caught Between A Rock And A Hard Place: Grand Juries' Power To Subpoena Outtakes That Reveal Confidential News Sources, Marty Kassman

UC Law SF Communications and Entertainment Journal

Detroit television journalist Bradley Stone had a brief stay in jail because he refused to provide a grand jury with a few seconds of videotape. The tape consisted of outtakes from Stone's report on violent teenage gangs. Stone claimed a first amendment right to withhold that tape from the grand jury, which was investigating the murder of a state trooper. This note explores whether there is, and whether there should be, first amendment protection of confidential news sources. The author analyzes the various opinions in the key Supreme Court case on the subject, Branzburg v. Hayes. The note traces the …

Visual Arts And The Law: A Bibliography, Part I, Gail I. Winson

UC Law SF Communications and Entertainment Journal

No abstract provided.

Consistency Over Time: The Fcc's Indecency Rerun, L. A. Powe Jr.

UC Law SF Communications and Entertainment Journal

The FCC reinvigorated the decade-old Pacifica indecency standard in a trio of cases involving Howard Stern's popular radio talk show, songs aired on a college station, and a play about two gays dying of AIDS who discuss their sexual fantasies over the phone that was aired on Pacifica's Los Angeles station. The trio maintains a surprising consistency with past commission behavior. First, it is the direct result of politics and the need to give the Republican right a victory. Second, it reestablishes what the original Pacifica action was meant to cover. Finally, it is yet another example of the belief …

Posadas De Puerto Rico V. Tourism Company Of Puerto Rico: The End Of The Beginning, P. Cameron Devore

UC Law SF Communications and Entertainment Journal

In a speech delivered in November 1987, the author analyzes developments in the commercial speech doctrine since the Supreme Court's 1986 decision in Posadas de Puerto Rico v. Tourism Company of Puerto Rico. The speech argues that Posadas is distinguishable on its unusual facts from other commercial speech cases, and is fundamentally inconsistent with the Supreme Court's seminal commercial speech decision in Central Hudson Gas & Electric v. Public Service Commission (1980). The author believes that a total ban on tobacco advertising would be impermissible under the first amendment, and not legitimized by Posadas. Finally, the speech reviews other significant …

A Critique Of The Fowler Fcc's 1984-85 Multiple Ownership Rule, Herbert H. Howard

UC Law SF Communications and Entertainment Journal

In 1984-85, the Federal Communications Commission liberalized its rules governing multiple ownership of broadcast stations. Since then, television station ownership has undergone rapid change as stations and entire groups have become vehicles for quick capital gains by speculators. Elimination of the Commission's three-year holding rule, coupled with economic speculation and rising station values resulted in a marked increase in station trading and ownership instability. The author analyzes the Fowler Commission's multiple ownership rule and the elimination of the long held "anti-trafficking" policy and questions the wisdom of the latter in terms of industry instability.

Policy-Making At The Fowler Fcc: How Speeches Figured In, Daniel Brenner

UC Law SF Communications and Entertainment Journal

Part of the legacy of FCC Chairman Mark Fowler are the speeches in which he advocated his theory of deregulation. The author, Fowler's legal advisor and principal speech-writer, states his view of the Fowler chairmanship, indicating which speeches were intended, at least by those in office, to be the milestones of that period. He offers an appraisal of the successes and failures of the chairmanship. Additionally, he generalizes about the limits of the speech-making function at an administrative agency, given its responsibility to Congress.

The Fcc Under Mark Fowler: A Mixed Bag, Henry Geller

UC Law SF Communications and Entertainment Journal

The FCC's performance under Chairman Mark Fowler (1981-87) calls for a mixed verdict, in the author's estimate. Fowler's reliance on competition, the marketplace, and deregulation, fit the common carrier area, but ill served the present public interest standard of the Communications Act in the broadcast field. This article assesses FCC activities in this period in the above two fields, and also in the cable television and spectrum areas.

The Federal Communications Commission 1981-1987: What The Chairman Said, Mark S. Fowler

UC Law SF Communications and Entertainment Journal

Speeches of Mark Fowler-Chairman of the Federal Communications Commission from 1981-1987-are edited and arranged according to subject matter. The speeches represent Fowler's vision for the FCC during his tenure. They may serve as a useful research tool for scholars and practitioners in the communications field.