Intellectual Property Law Commons^™

Information Property And The Internet, Henry V. Barry

UC Law SF Communications and Entertainment Journal

The concept of information as property is not new, but has gained new momentum with the development of the Internet. During the past century, courts have developed theories recognizing and protecting limited property rights in information, and prohibiting forms of information misappropriation. The author argues that the expanding use of the Internet generally, and the World Wide Web in particular, have resulted in a "misappropriation explosion" which, if unmoderated, could result in reduced access to information.

The author traces the evolution of property rights in information. Next, the author discusses the recent expansion in the law of misappropriation in federal …

Privacy And The Internet, Maureen S. Dorney

UC Law SF Communications and Entertainment Journal

This Article provides an overview of United States privacy status and regulations governing privacy issues and recent European privacy initiatives. The author explores how, in the absence of an overarching regulatory framework, steps have been taken by government and industry to address consumers concerns about privacy and the Internet.

War.Com: Why The Battles Over Domain Names Will Never Cease, Deborah Howitt

UC Law SF Communications and Entertainment Journal

In this Note, the author discusses the history of disputes over Internet domain names and presents potential solutions to the problem. The author reviews the International Ad Hoc Coalition's proposal for additional top-level domains, and concludes that new domains will not provide an adequate solution to disputes over domain names.

The author provides an overview of trademark law, including the Federal Trademark Dilution Act of 1995, which created a federal cause of action for trademark dilution. Although the addition of this cause of action has made it easier for trademark owners to prevent the use by others of "famous" marks …

Alternative Dispute Resolution And Emerging Online Technologies: Challenges And Opportunities, George H. Friedman

UC Law SF Communications and Entertainment Journal

By all measures, 1995 was a watershed year for the so-called "Information Superhighway." In increasing numbers, individuals, governments, and businesses-including attorneys, their clients, and the courts-are enjoying the expanded use of the burgeoning information and services available on computer networks such as the Internet. As courts and lawyers moved online, it was only natural that the Information Superhighway would ultimately build an "on-ramp" for the alternative dispute resolution (ADR) movement. This indeed occurred late in 1995 with the creation of innovative online ADR projects, several World Wide Web sites related to ADR, and a rapid increase in the use of …

The Talent Agencies Act: Time For A Change, Edwin F. Mcpherson

UC Law SF Communications and Entertainment Journal

Several years ago, the Talent Agencies Act was an effective tool for regulating unscrupulous agents and would-be agents, and the Labor Commissioner was a rigorous enforcer of the law. As recently as two to three years ago, the Act was interpreted and enforced uniformly and strictly, and wreaked havoc on the personal management profession. However, more recently the Labor Commissioner has left much of the enforcement and interpretation of the Act up to the courts. Superior Court judges do not understand (or do not care to understand) the Act, and appellate justices appear to be just as confused. The author …

Virtual Trade Dress: A Very Real Problem, Tom W. Bell

Maryland Law Review

No abstract provided.

An Investigation Into The Australian Position On Software Copyright, Nicholas Pinakis

Theses : Honours

Copyright Is the primary means most software authors seek to protect their software. Software, that is work (the ordered expression of thought) put into some tangible form (such a being written down, stored in a computer, programs, data and distributed files) is a truly international product. Where does this copyright protection come from? The current governing laws in Australia are the Australian Copyright Act of 1968 (Cwlth) and the Australian Copyright Amendments Act 1984 (Cwlth) which afford copyright protection to computer software. In copyright law, a number of words and terms have specialised meanings, which are different to their meanings …

Genomic Patents And Product Development Incentives, Rebecca S. Eisenberg

Book Chapters

Patents on human genetic information have been controversial among different groups for different reasons. The purpose of a patent system is to motivate the commercial development of new technologies; it is thus unsurprising that those who have fundamental misgivings about commercial biotechnology would oppose gene patents. More intriguing is the controversy over gene patenting among those who welcome the commercial development of biotechnology products by private firms. While many proponents of commercial biotechnology assert that gene patents are essential to motivate product development, some have expressed more nuanced views, endorsing patents under some circumstances and condemning them as unnecessary or …

Sifting Through The Wreckage Of Abc Reportage: Little Victories, Big Defeats & (And) Unbridled Media Arrogance, Clay Calvert

UC Law SF Communications and Entertainment Journal

This Article analyzes two recent high-profile cases involving investigative journalism by ABC News. It points out journalistic victories achieved in both cases that ultimately were overshadowed by other events. The Article also critiques the arrogance on the part of some journalists who flaunt generally applicable legal principles and cloak themselves in the First Amendment and the "right-to-know" justification for their actions. The author argues that journalists must provide both courts and the public with well reasoned explanations for their news gathering tactics if they want to expand the boundaries of First Amendment protection and boost journalistic credibility in the eyes …

Definite Confusion Over Likely Confusion, James W. Soong

UC Law SF Communications and Entertainment Journal

The U.S. circuit courts disagree on whether the likelihood of confusion determination in trademark law is a question of fact, law, or both. While the likelihood of confusion issue divides the circuits, scholarly commentary has been substantially uniform. Many legal commentators have argued that the likelihood of confusion determination should be deemed a question of fact for various reasons. In contrast, this Article proposes that the ultimate likelihood of confusion determination should be a question of law because of legal and policy considerations. This Article borrows the reasoning of recent Supreme Court precedent deciding that patent claim construction is a …

Sex Online: Is This Adultery, Christina Tavella Hall

UC Law SF Communications and Entertainment Journal

Should online infidelity be included as grounds for divorce in modern adultery statutes? This Note explores the history of divorce law and evaluates the possibilities of alleging online adultery as a sustainable reason for divorce. The author concludes that, in light of the normative goals of divorce law, the courts are an improper venue for addressing online affairs. Thus, online affairs, though possibly detrimental to marriage, are not "adultery" for legal purposes and therefore should not constitute adequate grounds for divorce in fault-based divorce proceedings.

Don't Bite The Hand That Feeds: A Call For A Return To An Equitable Talent Agencies Act Standard, Chip Robertson

UC Law SF Communications and Entertainment Journal

This Note addresses the current conflict in case law surrounding the California Talent Agency Act. It examines the validity of the Wachs v. Curry incidental procurement exemption and Waisbren v. Peppercorn's strict rule prohibiting procurement without a license. The Note discusses the negative implications of the California Labor Commissions decision to abandon the Wachs incidental exemption and enforce the Waisbren holding. The author then suggests alternatives which may lead to more equitable solutions for artists, personal managers, and talent agents.

Reflections On A Gossamer Thread In The World Wide Web: Claims For Protection Of The Droit Moral Right Of Integrity In Digitally Distributed Works Of Authorship, Timothy E. Nielander

UC Law SF Communications and Entertainment Journal

The global distribution of digitized materials through the Internet creates new challenges for traditional copyright law. Protection for moral rights continues to be a subject of international contention because of the global and interactive nature of cyberspace. Moral rights contemplate highly personal control over creative expression even after the artist has obtained the economic benefit provided by copyright laws throughout the globe. This Article argues that policies predicated on the free flow of information and of creative works in international trade may diminish the capacity of artists to claim violations of a right of integrity in digitized reproductions of their …

Forgive Us Our Press Passes, Daniel Schorr

UC Law SF Communications and Entertainment Journal

No abstract provided.

Ulysses And The Ten Years War: A Survey Of Missed Opportunities, Robert Spoo

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Law And Order In Cyberspace: Washington Report, Nicholas W. Allard, David A. Kass

UC Law SF Communications and Entertainment Journal

Electronic commerce in cyberspace faces an uncertain legal environment. In many instances the laws that will shape the future growth and development of electronic commerce have yet to be written. Gaps in the regulatory framework, and rules from other contexts that are made obsolete by cyberspace technology, promote chaotic market conditions and impede innovation. Today, business activity or interaction with people which employs 19th and 20th Century communication technology is governed by an array of civil and criminal laws. It is, however, not at all clear which existing legal rules do or ought to apply to markets in cyberspace. From …

Enforcement Of Use Limitations By Internet Services Providers: How To Stop That Hacker, Cracker, Spammer, Spoofer, Flamer, Bomber, Keith J. Epstein, Bill Tancer

UC Law SF Communications and Entertainment Journal

As the Internet continues its rapid growth and development, concerns regarding the potential for its misuse are also growing. Many of the abuses and misuses of the Internet defy simple solutions. Unacceptable uses of the Internet have triggered calls for regulation of cyberspace, harmed Internet users, and have sometimes resulted in liability for unwary Internet Service Providers. The authors considers the difficulties of Internet Service Providers and others who do business on or over the Internet caused by unacceptable Internet use, and proposes a set of solutions designed to protect their interests. Contractual use limitations, in conjunction with policies designed …

An Updated Consideration Of A Taxing Problem: The Harmonization Of State And Local Tax Laws Affecting Nonresident Professional Athletes, Marc Yassinger

UC Law SF Communications and Entertainment Journal

Professional athletes today can no longer merely concern themselves with their on-the-field performances. More and more states and cities, driven by growing deficits and the need to create more tax dollars, have made diligent efforts to focus their tax collection resources on visible individuals who earn sizable salaries in their jurisdictions. With their big salaries, nonresident professional athletes are easily identifiable targets who justify the effort. The author examines how the collection of taxes from nonresident professional athletes has created numerous problems, including inconsistent formulas employed by different jurisdictions, which has lead in some cases to double taxation.

This Note …

Race As A Hiring/Casting Criterion: If Laurence Olivier Was Rejected For The Role Of Othello In Othello, Would He Have A Valid Title Vii Claim, Heekyung Esther Kim

UC Law SF Communications and Entertainment Journal

This Note analyzes whether an actor or actress has a cause of action against casting directors and/or producers under Title VII of the 1964 Civil Rights Act for employment discrimination based on race. The author discusses what constitutes a violation of the Act and the procedural requirements a plaintiff must comply with in order to establish a prima facie case of discrimination. This Note then addresses how the law does not effectively deal with the issue and how this inapplicability of the law affects employment opportunities for minority actors and actresses. The author proposes that currently, the only appropriate remedy …

The Quality Of First Amendment Speech, Randall P. Bezanson

UC Law SF Communications and Entertainment Journal

One of the core axioms of First Amendment jurisprudence is that the quality of speech-its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audienceshould bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First …

Curing The Inequitable Conduct Plague In Patent Litigation, Glenn E. Von Tersch

UC Law SF Communications and Entertainment Journal

The defense of unenforceability due to inequitable conduct in patent infringement suits has become an absolute plague. Senior Judge Nichols of the Federal Circuit said as much ten years ago, and the problem still remains. Because of the expense of litigating such a defense, patent owners settle valid infringement claims for cents on the dollar, while infringers suffer little more than the slight risk of sanctions. This Note defines inequitable conduct in patent prosecution, details the consequences of inequitable conduct, and describes the restricted method available for curing inequitable conduct. Next, the author describes the problems with the current state …

Has The Fda Bought The Winston Cup: A Takings Analysis Of The Proposed Ban On Sports Sponsorships By Tobacco Companies As Applied To Nascar, Andrew B. Dzeguze

UC Law SF Communications and Entertainment Journal

In 1996 the Department of Health and Human Services announced that the FDA would regulate all tobacco advertising, classifying tobacco as a drug. This Note explores the ramifications of this announcement as it relates to the ongoing sponsorship of NASCAR auto races by tobacco companies. Initially, this Note provides a brief history of NASCAR and its tobacco sponsorship. The Note then explores three legal theories for invalidating the FDA regulations: First Amendment defenses, lack of jurisdiction defenses, and takings claims. The author concludes that a takings claim provides the best method of challenging the FDA regulations, because it would not …

Legitimacy And The Useful Arts, Craig Allen Nard

Faculty Publications

The fundamental question this Article addresses is who should be primarily responsible for making patent validity determinations: the courts5 or the Patent and Trademark Office (“PTO”)?6 Which entity *517 would best serve the constitutional goal of promoting the progress of the useful arts?

Copyright And International Trips Compliance, Shira Perlmutter, Jerome H. Reichman, Whitmore Gray

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Defining The Limits Of The Home-Type Receiver Exemption In 17 U.S.C. 110(5): Cass County Music Co. V. Muedini, James B. Macdonald Ii

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Procd, Inc. V. Zeindenberg: An Emerging Trend In Shrinkwrap Licensing?, Jerry David Monroe

Marquette Intellectual Property Law Review

The author discusses the implications of the United States Court of Appeals for the Seventh Circuit's decision in ProCD, Inc. v. Zeindenberg. As Monroe explains, until this decision, the courts have been reluctant to uphold the legal consequences of shrinkwrap licenses. Monroe provides an analysis of the interplay between contract law and copyright law to provide a thorough understanding of this emerging trend in intellectual property.

Biotechnology And The Patenting Of Living Organisms, Matthew Mcgovern

Animal Law Review

Mr. McGovern discusses the reasoning behind the leap from patentability of non-living things to the living thing~ within the last twenty years. He concludes that neither the Supreme Court or Court of Customs and Patent Appeals has offered a convincing rationale for the inclusion of living things within 35 U.S.C. Section 101.

Protection Of Famous Trademarks In Japan And The United States, Kenneth L. Port

Faculty Scholarship

The concepts of trademark jurisprudence in Japan and the United States differ drastically. This difference is apparent in many aspects of trademark protection in both countries and is most evident in the treatment of famous marks. Although Japan and the United States share elements of trademark law that cause some observers to claim that Japan is legally the fifty-first State, the conceptual differences at the foundation of trademark law in each country are so significant that such a claim seems inaccurate and misleading.

Keynote Colloquy: Finding Justice In The Internet Dimension, Hon. Alex Kozinski

Seattle University Law Review

The Internet community—just like all other speech communities—ought to be afforded First Amendment protections. I don't see any reason why Internet speech should be treated any less favorably than other kinds of speech. But the vastly overblown claim that the communications medium somehow deserves to be put outside normal legal constraints--because it's so global, or because it's so different—is self-defeating. It substitutes generalities and sentiments for real thinking. The kind of analysis we've seen at this conference—the kind of debate we've had here—is very useful, because we're talking about the specifics of what legal constraints should be allowed. Not whether …

Reverse Passing Off: Preventing Healthy Competition, Catherine Romero Wright

Seattle University Law Review

In order to protect creativity, the development of products, and access to the marketplace, the Ninth Circuit should readopt the strict bodily appropriations test when determining whether a plaintiff has a legitimate claim under the Lanham Act for reverse passing off. This test protects product originators from having their products mislabeled and it protects entrepreneurs like Chad, who can make valuable contributions to products. This Comment begins with a brief description of the origins of reverse passing off, followed by its evolution in the Ninth Circuit. The expansion of this cause of action in some other circuits is examined; and …