Fordham Intellectual Property, Media and Entertainment Law Journal
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Open Access journal
ISSN (Print) 1079-9699
Published by Fordham University [6 journals]
- The Riddle of the Mysterious Patent Dance Wrapped in an Enigma: Is the
Patent Dance of the BPCIA Optional or Mandatory?
Authors: Dov Hirsch
Abstract: Recently, the nature of one of the aspects of the Biosimilar, Price, Competition, and Innovation Act of 2009 (“BPCIA”) has been called into question: Is the “patent dance,” the structured patent dispute resolution process of the BPCIA, mandatory or optional? A mandatory patent dance requires a biosimilar applicant to comply with all its requirements, while an optional patent dance allows the biosimilar applicant to opt out of the entire dance if it so chooses. This question is important because it has the potential to affect that delicate balance of the BPCIA. This Note focuses on some of the consequential implications of deciding whether the patent dance of the BPCIA is optional or mandatory. This Note ultimately argues that the patent dance of the BPCIA should be mandatory.
PubDate: Mon, 17 Apr 2017 08:12:55 PDT
- Locking Out Locke: A New Natural Copyright Law
Authors: Joseph A. Gerber
Abstract: For decades lawyers, professors, philosophers, and law stu- dents have been trapped in an endless, two-sided debate regarding the justification for copyright law in the United States. On one side stand the utilitarians, who argue that modern American copyright law amounts to nothing more than positive law2 in the form of an economic incentive for authors to express themselves creatively. Natural law theorists, on the other hand, argue that there is some- thing more substantial behind the current copyright regime—that copyright is not merely a formulation of positive law, but a recogni- tion of philosophical principles of ownership inherent in the natural order of the world. Discourse on this subject has resolved little, all the while exposing flaws for anti-copyright proponents to exploit along their path toward a complete[ly destructive] public domain. For this reason, copyright advocates desperately need a new theory—one that replaces the questionable reliance on John Locke but also incorporates the economic incentives argued for by the uti- litarians. This Note attempts to start that process by rebuilding the understanding of copyright law from a teleological perspective. Part I outlines the arguments on both sides of the copyright law debate, including their weaknesses. Part II introduces an Aristote- lian natural law theory, and Part III applies these principles to the U.S. Constitution. Part III also explores the consequences of think- ing teleologically about the Copyright Clause of the Constitution. Finally, Part IV explains how this new perspective both aligns with current copyright jurisprudence and answers some of the field’s most vexing questions that are crucial amid a growing anti- copyright movement.
PubDate: Mon, 17 Apr 2017 08:12:47 PDT
- Obviousness as Fact: The Issue of Obviousness in Patent Law Should Be a
Question of Fact Reviewed with Appropriate Deference
Authors: Ted L. Field
Abstract: One of the most common defenses that an accused infringer raises in a patent infringement lawsuit is that the patent claims at issue are invalid for obviousness. The question of obviousness is based on several factual determinations, and the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit should sensibly review these determinations with deference to the jury’s or trial court’s findings. But these courts instead treat the ultimate determination of obviousness as a question of law to be reviewed de novo. This Article challenges the correctness of this standard of review and argues that courts should treat the ultimate determination of obviousness as a question of fact reviewed with appropriate deference. The Article considers several theoretical and practical reasons that support this argument. The Article concludes: (1) based on general policy considerations concerning standards of review, obviousness should be a question of fact; (2) the precedent on which the courts have relied in determining the standard of review for obviousness does not support the conclusion that obviousness is a question of law; (3) the treatment of obviousness as a question of law is inconsistent with the Federal Circuit’s treatment of analogous issues in patent law; and (4) based on an examination of recent case law, the Federal Circuit almost always treats obviousness as a de facto question of fact even though it is a de jure question of law. Thus, this Article concludes that the Supreme Court should hold that the ultimate issue of obviousness is properly a question of fact to be reviewed with appropriate deference.
PubDate: Mon, 17 Apr 2017 08:12:43 PDT
- Trademark Trial and Appeal Board, Meet the Constitution
Authors: David S. Welkowitz
Abstract: For many years, the Trademark Trial and Appeal Board has re-fused to address constitutional claims raised in the course of registration or cancellation proceedings. A recent example involves the Washington Redskins trademark, which is the subject of a cancellation proceeding now before a U.S. Court of Appeals. The Board’s refusal to address constitutional issues rests on the assumption that the Board lacks the authority to make constitutional decisions. That may seem odd, given the fact that the Board is an arm of the federal government, and its members are bound to uphold the Constitution. This Article examines the basis of the Board’s claim of incapacity. Although the Board’s claim is not with-out precedent, it is argued that the better reading of current law is that the Board does have the capacity to address constitutional claims and that it should do so. The Article further examines ways in which the Board can decide constitutional issues without overstepping its bounds as an administrative agency. In particular, the Article examines the possible use of a familiar constitutional principle of avoidance as a means of allowing the Board to incorporate constitutional principles into its decision-making without having to rule on the constitutionality of the provisions of the federal trademark statute.
PubDate: Mon, 17 Apr 2017 08:12:35 PDT
- Musicians, Politicians, and the Forgotten Tort
Authors: Arlen W. Langvardt
Abstract: Election seasons regularly reveal uses of songs and recordings at campaign events and in campaign ads. Frequently, well-known performers who have recorded the songs object to the uses of the songs and recordings (and their recognizable voices). Often, the performers do not own the copyright to the songs or the recordings, so they have no copyright infringement claim to bring. Performers who seek legal relief against those responsible for the political uses have relied, thus far, on right of publicity claims or false endorsement claims under section 43(a) of the Lanham Act. However, judicial concerns about the proper reach and application of those theories, and uncertainties about how to account for First Amendment interests, make the right of publicity and false endorsement less-than-reliable theories for performers to invoke against political users. This Article proposes the use of a different theory in this setting: the forgotten tort of false light publicity. It is well established that this theory—one that performers have yet to invoke and commentators have not addressed—may be employed in response to defendants’ noncommercial speech, assuming the relevant First Amendment requirements are met. The First Amendment aspects of false light publicity were set long ago by the Supreme Court. For courts, the false light publicity theory has the virtues of setting the governing rules relatively clearly and avoiding the uncertainties presented by the theories that performers have employed thus far against political users. Some performers’ claims should succeed under false light publicity principles, and others should not. At least, however, the false light publicity theory offers reasonable ways to balance the competing expressive interests of performers and political candidates.
PubDate: Mon, 17 Apr 2017 08:12:28 PDT
- Tort Vision for the New Millenium: Strengthening News Industry Standards
as a Defense Tool in Lawsuits Over Newsgathering Techniques
Authors: Michael W. Richards
Abstract: “A Generation of Vipers,” proclaimed the cover story in The Columbia Journalism Review, as the nation’s most esteemed voice of media criticism evaluated the journalistic landscape of the mid- 1990s. The healthy skepticism that prompts journalism professors to instruct: “if your mother says she loves you, get a second source,” has been replaced by wholesale cynicism, suggests this critique. “It’s worth noting that, in several dozen interviews, no journalist reported becoming less cynical over a lifetime of reporting.” If cynicism has infected contemporary journalists, then it ap- pears the public has responded with cynicism of its own— apparently viewing the news media, as an institution, with a more jaundiced eye. Survey data from a leading media research think tank, The Pew Center for the People & The Press, in 1997, found the American public “more critical of press practices, less enthusiastic about the news product and less appreciative of the watchdog role played by the news media than it was a dozen years ago.” Empirically, The Pew Center survey found that in 1985, a solid majority polled believes news organizations were accurate. A dozen years later, a similar majority believed they did not “get the facts straight.” An even more solid majority believed the news media unnecessarily invaded people’s lives – even when it was not in the public interest to do so. The Supreme Court’s majority has paid homage to “the press as a watchdog of government activity,” insofar as “the basic assumption of our political system that the press will often serve as an important restraint on government” and a “check on government abuse.”8 But three decades since that judicial tribute, these survey data indicate that the public now sees the news media less as watchdog and, perhaps, more as attack dog. As the news media, institutionally, has no clearly enumerated constitutional role beyond the generally stated principle that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” journalists must depend on a combination of judicial interpretation, statutory immunities, and jury decisions to maintain their ability to gather editorial material as freely as possible. While the law of defamation is generally settled by New York Times v. Sullivan and its progeny, the United States Supreme Court has never extended First Amendment press freedoms and protection to the gathering of editorial information. In fact, Cohen v. Cowles Media Co., suggests that the First Amendment does not protect the right to gather news. Newsgathering is governed by the same statutory and tort law principles that apply to the public generally – as long as these applications do no more than incidentally interfere with the ability to disseminate editorial material. The Supreme Court has not precisely defined “incidental” – leaving the definition to evolve through the common law. Given the difficulties of pursuing defamation cases as a result of New York Times v. Sullivan and its progeny, plaintiffs alleging media mistreatment are increasingly bypassing slander and libel causes of action and, instead, entering Cohen’s open door to pursue newsgathering claims. The outcomes in these cases demonstrate that “incidental” is in the eye of the beholder: the increasingly jaundiced eye of public opinion. In Food Lion, Inc. v. Capital Cities/ABC, Inc., a North Carolina jury awarded just $1,402 dollars in actual damages but $5.5 million in punitive damages for ABC News’s use of hidden cameras to expose a supermarket chain’s unsanitary practices. Although the damage award was later reduced to just two dollars on appeal, the case remains illustrative: the truth of ABC’s report was not at issue, only the means used to gather information. In Food Lion, the entire jury award hinged on misrepresentations made by an ABC News journalist when applying for a supermarket job needed for the undercover access necessary to visually document Food Lion’s sanitary practices. Similar stealth led a jury in Maine to hold NBC News liable for $525,000 in damages after it falsely promised a trucker and his employer that, if given access during a transcontinental journey, the network would air a piece with a positive spin. After the trucker violated federal safety regulations, NBC aired the video documentation. Although the information was wholly true, the jury focused on the initial breach of promise to hold NBC liable. Even when news organizations successfully defeat law suits attacking newsgathering practices as violations of laws of general applicability, judges sometimes chide plaintiffs’ attorneys for failing to raise all possible claims such as fraud or trespass or breach of contract, that might have succeeded. With judicial interpretation more likely to assign newsgathering to an analytic box at the edges of First Amendment protection, juries can be expected to continue expressing the general public’s well-documented, growing distrust of American journalism. As a post-trial interview with a Food Lion juror, 64-year-old Marie Bozeman, illustrates: She is particularly concerned about the invasiveness of the hidden camera and its potential for exaggerating or misrepresenting events. She painted a scenario in which an employee unburdens himself about his employer to a fellow “employee” who is secretly videotaping. “The next day they may feel different about their company, but it’s on TV! Nobody should be made to share their innermost thoughts unless they want to. Because of such tactics, says Bozeman, “I don’t trust them to do an honest job – not all the way.” ‘People don’t see journalism as public service anymore,’ said former Washington Post ombudsman J...
PubDate: Sun, 26 Feb 2017 15:39:24 PST
- The Split on the Rogers v. Grimaldi Gridiron: An Analysis of Unauthorized
Trademark Use in Artistic Mediums
Authors: Anthony Zangrillo
Abstract: Movies, television programs, and video games often exploit trademarks within their content. In particular, various media often attempt to use the logos of professional sports teams within artistic works. Courts have utilized different methods to balance the constitutional protections of the First Amendment with the property interests granted to the owner of a trademark. This Note discusses these methods, which include the alternative avenues approach, the likelihood of confusion test, and the right of publicity analysis. Ultimately, many courts utilize the framework presented in the seminal Rogers v. Grimaldi decision. This test analyzes the artistic relevance of the trademark’s use in the allegedly infringing work, while also protecting against explicitly misleading uses. Currently, federal circuits apply the Rogers test inconsistently, particularly in the Second, Sixth, Seventh, and Ninth Circuits. This Note calls for a consistent method to harmonize First Amendment protections with trademark property interests through the Rogers test. This Note proposes that the threshold for First Amendment protections should remain relatively low for culturally relevant marks. This Note also argues that courts should analyze a First Amendment defense before engaging in a likelihood of confusion inquiry. This Note’s suggested approach would implement important safeguards to avoid lengthy trademark litigation, and thus, incentivize more artistic works by lowering transaction costs.
PubDate: Sat, 25 Feb 2017 15:18:15 PST
- The Time Is Now: Why the United States Should Adopt the British Model of
Sports Betting Legislation
Authors: Zach Schreiber
Abstract: Gambling has been the subject of controversy since its inception. While some claim that it is a “gentleman’s game” and a means of social entertainment, others argue that it is a sinful endeavor that enables corruption, scandal, and addiction. Today, there are several different types of gambling that occur in the United States—all with varying degrees of legality and regulation. For example, betting on horse racing is legal throughout the United States, and state-sanctioned lotteries are present in forty-four of fifty states.3 Commercial casinos, like those in Las Vegas and Atlantic City, are regulated on a state-by-state basis, and gambling on card games is legal in over twenty states (and counting). This Note focuses on betting in professional sports, which is more tightly con-trolled than any of the other games of chance. With the prevalence of daily fantasy sports and the tentative merger between its two largest providers, FanDuel and DraftKings, sports betting has been at the forefront of the news as it relates to gaming law. The United States has taken a strict regulatory approach toward sports betting, which is inconsistent with its stance toward other types of gambling, such as slot machines, horse racing, lotteries, and, most recently, daily fantasy sports. On the other side of the Atlantic, the United Kingdom has taken a drastically different approach. According to a study on gam-bling prevalence conducted in 2010, over seventy-three percent of the British population have engaged in some form of gambling. While there were certainly issues of concern with the legalization of sports betting, the U.K. Parliament believed it would be counterintuitive to outright prohibit a multi-billion dollar industry, especially one with overwhelming participation by a majority of the population. Part I of this Note examines the history of sports betting and discusses its origins and the motivations behind the legislation in both countries, such as notorious betting scandals in professional sports. Part II reviews the federal framework currently in place in the United States by surveying the history and implementation of the Wire Act and discussing the legislative history and subsequent enactment of PASPA. Part II also considers one of the latest attacks on these laws by state governments. Part III analyzes the sports betting landscape in the United Kingdom by reviewing the history of sports betting internationally and presenting a discussion of the laws that regulate legal sports gambling in the United Kingdom. Part III also examines the Betting and Gaming Act of 1960—the first major change in the United Kingdom’s betting policy—and reviews the Gambling Act of 2005 (on which this Note intends to base its model). Part IV proposes that the United States should adopt the U.K. model of sports betting legislation, wherein Congress should follow the lead set by the U.K. Parliament, and dis-cusses the economic benefits of a legalized sports betting industry. This Note concludes that the United States should set up a gaming commission and legalize sports betting nationwide, while regulating it to protect against corruption.
PubDate: Sat, 25 Feb 2017 15:18:07 PST
- Recreating Copyright: The Cognitive Process of Creation and Copyright Law
Authors: Omri Rachum-Twaig
Abstract: Copyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts of creativity, copyright law’s constraints on creativity actually push authors to create more original and creative works. This Article’s goal is to offer a broader assessment of creativity studies and to question whether they indeed fit with copyright law’s assumptions about creativity. This Article focuses on four main doctrines and concepts in copyright law. The first is the originality requirement in copyright law. The second is the concept of romantic authorship. The third is the idea/expression dichotomy that grants copyright protection to expressions and denies it to ideas. The fourth, which is closely related to the third, is the right to make derivative works. Copy- right law treats derivative works separately from original works and creates, to some extent, an identity between derivative works and reproductions. This attitude toward derivative works is not easy to justify. This Article examines whether the cognitive psychology of creativity is consonant with this legal doctrine and how to best apply cognitive psychology’s findings to the law. This Article is organized in the following manner: Part I discusses cognitive psychology’s relevance to the law. Part II presents the predominant theories of the process of creation and emphasizes the main characteristics of each group of theories. Part III divides the cognitive process of creation into two main stages: the stage of abstract unfocused ideation, and the stage of crystallization of a preliminary idea using previous domain-relevant knowledge and memory. Part IV uses theoretical, empirical and historical research to explain the role of prior domain-relevant knowledge and memory in the process of creation. Finally, Part V discusses how the discourse of cognitive psychology and the notions extracted from it may affect copyright law and, specifically, the right to make derivative works.
PubDate: Sat, 25 Feb 2017 15:17:57 PST
- Liar! Liar? The Defamatory Impact of “Liar” in the Modern
Authors: Roy S. Gutterman
Abstract: Calling someone a liar is an age-old epithet. Depending on the context, calling someone a liar could be defamatory, causing harm to a reputation. But, more often than not, calling someone a liar may be simply an expression of opinion. In some settings, litigation surrounding the publication also implicates the First Amendment. In recent years, several courts have weighed in on this issue, some with conflicting outcomes. This Article examines whether accusations of dishonesty or lying in a modern media world has a defamatory impact.
PubDate: Sat, 25 Feb 2017 15:17:50 PST
- The IEEE-SA Revised Patent Policy and Its Definition of “Reasonable”
Rates: A Transatlantic Antitrust Divide?
Authors: Nicolas Petit
Abstract: The Institute of Electrical and Electronics Engineers Standards Association’s (“IEEE-SA”) updated patent policy and a business review letter issued by the United States Department of Justice (“DOJ”) have caused much discussion in the United States. The purpose of this Article is to assess whether a similarly lenient antitrust approach to Standard Setting Organizations’ (“SSOs”) rate-setting policies would prevail under the European Union’s (“EU”) competition rules. Recent EU competition case law has promoted a very hard line in the area of coordinated conduct. Cases such as Dole Food Company, Inc. v. European Commission, T-Mobile Netherlands BV v. Raad van bestuur van de Nederlandse Mededingingsautoriteit, and Expedia, Inc. v. Auto-rité de la concurrence have expanded the scope of the per se prohibition rule found in article 101 of the Treaty on the Functioning of the European Union (“TFEU”) to forms of horizontal coordination with less than obvious anticompetitive potential, such as “cheap-talk” pre-pricing communication (Dole Food Company), episodic collusion (T-Mobile), and horizontal agreements with limited market coverage (Expedia). Those judgments, and others, share a common rationale—that of deter-ring any coordinated interference with the price system. In the EU courts’ view, joint interference by competitors with the price system seems to be a sin in itself, regardless of actual or potential market effects. Horizontal coordination is thus increasingly prohibited on its incipiency, and punished as a means to set an example. From an enforcement stand-point, this trend in the case law has pros (lower enforcement costs) and cons (deters pro-competitive coordination). But, perhaps more importantly, it has a major normative implication, which is that it raises the antitrust risk for all forms of coordination, including arrangements of the type found in the IEEE-SA updated patent policy. This Article explains that the antitrust risk generated by SSOs rate-setting policies is presumably higher in the European Union than in the United States, where the case law on horizontal coordination is less stringent.
PubDate: Sat, 25 Feb 2017 15:17:41 PST
- Biovail v. Hoechst Aktiengesellschaf, Inc: An Analysis Under the Sherman
Act and the Noerr-Pennington Doctrine
Authors: John F. Resek Ph.D.
Abstract: The Hatch-Waxman Act of 1984 regulates approval by the Food and Drug Administration (“FDA”) of generic counterparts to patented drugs. In a series of recent cases, large pharmaceutical companies have been accused of exploiting Hatch-Waxman in violation of the antitrust laws. In essence, the allegations are concerned with the large pharmaceutical companies that have paid manufacturers not to market inexpensive generic versions of patented drugs, thereby restraining trade and maintaining a monopoly. In the case of Biovail v. Hoechst Aktiengesellschaf, Inc., the generic drug manufacturer, Biovail, sued Hoechst Aktiengesellschaf (“Hoechst”), a pharmaceutical company, for antitrust violations resulting from Biovail’s effort to gain approval from the FDA to market a generic version of Cardizem, a heart drug patented by Hoechst. The claims are that Hoechst unfairly manipulated the Hatch-Waxman Act to prevent Biovail from obtaining FDA approval for a generic counterpart to Cardizem. Even though the defendant Hoechst, may have intended to exclude the plaintiff, Biovail, as competitors, Hoechst will be substantially immune from antitrust liability under the Noerr-Pennington doctrine (“Noerr Immunity”), because Hoechst was acting within its constitutionally protected rights. The Noerr Immunity enjoyed by Hoechst is necessary to insure that the free- competition goals of the antitrust laws do not destroy Hoechst’s right to petition the government, as guaranteed by the First Amendment. Part I of this Comment discusses both the legal framework of the Hatch-Waxman Act as well as Biovail’s claims. Part II analyzes Biovail’s claims with respect to potential violations by Hoechst under section 1 and section 2 of the Sherman Antitrust Act (the “Sherman Act”). Part III analyzes Hoechst’s immunity under the Noerr Immunity doctrine. This Comment concludes that the Noerr Immunity doctrine protects Hoechst, even if they intended to manipulate the Hatch-Waxman Act.
PubDate: Sat, 25 Feb 2017 15:09:19 PST
- The NBA’s Deal with the Devil:
The Antitrust Implications of the 1999
NBA-NBPA Collective Bargaining Agreement
Authors: Dan Messeloff
Abstract: A frigid dawn had not yet begun to rise when a group of weary negotiators concluded an eleven-hour, eleventh-hour meeting high above the streets of midtown Manhattan. At 7:00 p.m. on January 6, 1999, six men gathered to decide the fate of what had become, essentially over the course of the previous decade, an immensely successful element of American popular culture – professional basketball. At approximately 5:30 a.m. on January 7, 1999, an agreement was finally reached between the representatives of the National Basketball Association (“the NBA” or “the league”) and of the National Basketball Players’ Association (“the NBPA” or “the union”), the union representing players in the NBA. The landmark agreement ended a six-month lockout and rescued the NBA from becoming the first professional sports league to cancel an entire season due to labor strife. The agreement curtailed strike-related losses at $1 billion in revenue for owners and more than $500 million in salaries for players, and permitted both parties to vie for the remaining $1 billion in estimated revenue still to be earned in the shortened season. Yet while the NBA’s settlement certainly offered immediate, short-term benefits, most notably the restoration of the 1999 NBA season, the consequences of that agreement – anticompetitive price-fixing of players’ salaries – set a dangerous precedent which reaches far beyond a single basketball season. In fact, the effects of the NBA’s agreement go so far as to undermine labor relations between all players’ unions and leagues, and the legal relationship as a whole between athletes and their teams in all professional sports. The agreed-upon contract came one day before NBA Commissioner David Stern’s self-imposed deadline, at which point he said he would recommend to the owners of the 29 NBA teams that the entire season, which would normally have begun in October, be cancelled. Stern’s pressure was heaped upon the public’s growing resentment of a 191-day labor dispute between “short millionaires” and “tall millionaires.” “You’ve got a bunch of pigs at the trough,” commented Allen Sanderson, an economist and professor of sports business at the University of Chicago, “and all they’re trying to do is nudge each other out of the way for the spoils.” Thus, while both parties had initially approached the bargaining sessions in June “like two locomotives . . . bearing down on each other [with] alarm bells . . . clanging,” by January, the negotiators for both sides came to the table looking to compromise and reach an agreement. In the end, the players’ union received an increase in minimum salary and two mid-level salary provisions, improving the salaries among both rookie and journeyman players. League officials projected an increase in the average player salary as a result of the agreement, from $2.6 million in 1998 to $3.4 million in 1999. The league, however, demanded and eventually received two staggering concessions. First, the NBA amended the existing team salary cap to eliminate many of the loopholes that had allowed crafty owners to sign desired players to long-term contracts of $100 million or more. The public saw these mega-contracts as excessively extravagant, while NBA owners watched their competitors sign players to contracts worth more than some entire franchises, and recognized the paradoxical need for better (read: more expensive) players for their own teams and, at the same time, self-restraint on the part of other teams and the league as a whole. The second concession won by the league was an unprecedented “individual” salary cap, which acted as a further barrier to escalating salaries by unconditionally limiting the amount any player may earn; the individual salary cap was devised to curb owners from the temptation of signing more players to large contracts, and evading the newly- revised team salary cap. The revised team salary cap obtained by the owners, referred to as a “soft” cap, restricted the amount of money a team could spend on its roster, the total sum of salaries of the players on a team, to no more than $30 million in 1999 and $34 million in 2000. Thus, if a team wanted to acquire a particular player, but did not have enough money remaining under the salary cap to accommodate the player’s salary, the team would be precluded from signing him. The new cap also limited the amount to which a team could re-sign its own players, and the amount other teams could offer to a player under free agency. A team’s own players could receive no more than a 12% annual salary increase, while free agents were only entitled to a 10% increase, an arrangement devised to provide an additional disincentive for players intending to pursue the open market of free agency. The legality of the salary cap as a restraint on players’ mobility has been challenged and upheld in court, and the Supreme Court recently reinforced professional sports leagues’ authority to implement similar measures. The second of the NBA’s demands was an “individual” salary cap, an unprecedented mechanism which limits the amount that any team may pay any particular player, irrespective of the player’s worth in an unrestricted market, or, conversely, how much money a team might otherwise be willing to offer that player. In contrast to the “soft” team salary cap, this type of restriction is a “hard” cap, as there are strictly no exceptions in which teams can offer to pay a player more than the stipulated figure. According to the cap, players with up to five years of experience in the NBA can earn no more than $9 million. Players who have been in the league between six and nine years can receive up to $11 million, while for players who h...
PubDate: Sat, 25 Feb 2017 15:09:15 PST
- Rio Grande: The MP3 Showdown at Highnoon in Cyberspace
Authors: Paul Veravanich
Abstract: As the new millennium dawns, a battle is shaping up in cyber- space that may redefine the manner in which many people obtain copies of their favorite music. In one corner stands the record and music industry, seeking to protect their current distribution channels and to control the dissemination of their intellectual property over the Internet. In the other corner, a group consisting of Inter- net mavens, some musical artists, including acts ranging from in- dependent bands to well-established headliners, and the ever present cyberpirates, stand ready to exploit the Internet as a means to quickly and cheaply distribute and download songs. The development of compressed music files is the catalyst for this struggle over the use of the Internet to distribute songs. Our society increasingly accepts and values the Internet as an integral part of everyday life. For example, the nation’s use of the Internet has grown significantly in the past year alone. Forty-six percent of the estimated 74 million American Internet users began their use within the past twelve months. As a consequence, more people than ever are turning to the Internet to shop, gather news, socialize, and play. Currently, the two most popular uses for the Internet are email and on-line shopping. In connection with the increased general use of the Internet, musical artists and consumers have turned to the Net as a means to distribute songs. The Internet provides artists with another avenue to disseminate their works while also enabling consumers to sample various recordings with ease. The availability of data compression formats such as MP3 enable web surfers to both upload and download music files with an efficiency that was previously un- heard of. The ability of consumers to gain ready access to music files via the Internet may ultimately transform the manner in which the entire music industry operates. Unfortunately, although many of the files available on-line are copies authorized by the artists, there are also a large number of pirated files that users post without the artists’ permission. This article addresses the current controversy over the distribution of unauthorized digital music files over the Internet. The recent introduction of the Rio, essentially a Walkman for MP3 digital music files, and the record industry’s efforts to prevent the sale of the Rio raise the issue of whether today’s federal copyright framework is sufficient to protect copyright owners, in this case the music industry, from piracy on the Net. Part I of this article provides background information on the current use of the Internet to distribute music files and a brief analysis of how the distribution of unauthorized music files violates a copyright owner’s fundamental rights under the Copyright Act of 1976. Part II provides the technical background necessary to understand the technology at issue, namely the MP3 format and the Rio MP3 player, and introduces the litigation between a record industry group and Diamond Multimedia, the manufacturer of the Rio, over Diamond’s right to market and distribute the Rio. Part III presents an analysis of the current copyright law as it pertains to the distribution of digital music over the Net. This section of the article includes an analysis of the Audio Home Recording Act of 1992 which formed the basis for the record industry’s recent action against Diamond Multi- media, and a critique of the decision in that case. Part III additionally examines the recently enacted Digital Millennium Copyright Act to determine whether the Act contains adequate protections for copyright owners’ rights in cyberspace. Part IV contains proposals for measures that Congress, the record industry, and musical artists might consider in order to further the protection of musical copyrights on the information superhighway. This article concludes that while technological innovations such as the Rio and MP3 technology may have rendered the amendments to the copy- right statute contained in the Audio Home Recording Act obsolete, the new Digital Millennium Copyright Act represents significant progress in furthering the protection of copyrights on the Internet and provides a framework of information regulation.
PubDate: Sat, 25 Feb 2017 15:09:11 PST
- The Rational Basis of Trademark Protection Revisited: Putting the Dilution
Doctrine into Context
Authors: Mathias Strasser
Abstract: The adoption of the Federal Trademark Dilution Act (the “FTDA”) in 1995, which incorporated a federal dilution clause into the Lanham Act, was preceded by a great deal of debate. The question lying at the heart of the discussion was whether the dilution doctrine is consistent with sound trademark policy or whether the far-reaching entitlements that the FTDA affords the owners of famous marks have instead created “dilution” of a kind that Congress may not have envisaged: a blurring of the conceptual boundaries of trademark law. It turns out that this question has important implications on a number of trademark doctrines (such as inherent distinctiveness, functionality, and trade dress). This Article’s thesis is that the dilution doctrine and the traditional tests for trademark infringement have the same rational basis – that they may all be coherently explained on the basis of the functional approach. To prove this the- sis, I will introduce two concepts: the “communication function” and “intrinsic reputation.” On the basis of these concepts, I will argue that trademarks could not fulfill their economic functions if they were not protected against dilution. Hence, I will conclude that the FTDA should be welcomed and that it should be applied to any name or device that is capable of fulfilling the functions for which we consider trademarks beneficial, be it a word, a symbol, or a product configuration. Part I explores the economic functions that trademarks per- form, how they relate to each other and whose interests they serve, arguing first, that trademarks fulfill both a product-identifying function and a communication function, and finally, that some trademarks have an intrinsic reputation. These two concepts suggest a utilitarian justification of the dilution doctrine. Part I also examines the various ways in which the likelihood of confusion test and the dilution doctrine (as well as the so-called identity rule in European trademark regimes) act together to ensure that trademarks can fulfill their economic functions. Part I concludes that the dilution doctrine is as vital to preserving the economic and social benefits that are expected to ensue from trademarks as the traditional tests. Part II examines why the dilution doctrine has sparked so much criticism in academia. My explanation is essentially twofold. First, one’s attitude towards the dilution doctrine depends on one’s understanding of the functional canon of trade- marks. So long as the debate surrounds the issue of trademark functionality, the dilution doctrine will remain controversial. Second, the lack of popularity of the dilution doctrine in the academic world may have to do with the exclusive rights-free competition dichotomy that characterizes intellectual property law in general. Although this dichotomy is sometimes thought to apply to trademarks with particular force, I will argue that it should not. The questions discussed in this Article are not Lanham Act- specific; they are basic questions every modern trademark regime confronts. As a result, it is interesting to see how other jurisdictions address them. A comparative analysis will also complement the historical context in which the dilution doctrine has evolved in the United States. The idea of protecting trademarks in the absence of a likelihood of confusion on the part of consumers began with an article that Frank Schechter wrote for the Harvard Law Review in 1927. Schechter’s views were markedly influenced by the German trademark law of that period.5 As we will see, German trademark law has undergone a number of major changes since 1927, one of the most significant ones involves the impact of European Community (“EC”) law on national law. It may, for this reason alone, be interesting to see how the dilution doctrine, that has remained a debated topic in the United States for almost a century, is construed and applied both in Germany and Europe today.
PubDate: Sat, 25 Feb 2017 15:09:07 PST
- Trademark Practice in a Dynamic Economy: More Deals, More Laws, More
Resources than ever for the Trademark Practitioner
Authors: Jill C. Greenwald et al.
PubDate: Sat, 25 Feb 2017 15:09:02 PST
- Tort Vision for the New Millennium: Strengthening News Industry Standards
as a Defense Tool in Law Suits over Newsgathering Techniques Essay
Authors: Micahel W. Richards
PubDate: Sat, 25 Feb 2017 15:08:57 PST
- Inter Partes Patent Reexamination Essay
Authors: Mark D. Janis
PubDate: Sat, 25 Feb 2017 15:08:53 PST
- The Non-Contractual Nature of Privacy Policies and a New Critique of the
Notice and Choice Privacy Protection Model
Authors: Thomas B. Norton
PubDate: Tue, 22 Nov 2016 22:36:19 PST
- The Need for "Supreme" Clarity: Clothing, Copyright, and
Authors: Jacqueline Lefebvre
Abstract: For the first time in history, the U.S. Supreme Court will address copyright protection in the context of apparel in the case Star Athletica, LLC v. Varsity Brands, Inc. This case tackles arguably the most vexing, unresolved question in copyright law: How to determine whether artistic features of a useful article—such as a garment or piece of furniture—are conceptually separable from the article and thus protectable. Indeed, this case comes more than sixty years after Mazer v. Stein, the Supreme Court’s first and,until this date, only decision in this area. A lack of clear guidance from the Supreme Court and Congress in determining whether the artistic and utilitarian aspects of useful articles are conceptually separable, has resulted in a multitude of conflicting and effectively unreliable approaches by courts and scholars in an attempt to establish a standard. Given this reality, the current state of conceptual separability demands clarity and reform. This Note proposes a two-part conceptual separability test, which asks: (1) what are the claimed design elements of the article; and (2) can those design elements be identified separately from, and exist independently of, the utilitarian features of the article? This Note’s proposed test is an effective and appropriate approach for determining when a feature of a useful article is protectable under the Copyright Act for several reasons: focusing the conceptual separability inquiry on the article’s design elements as opposed to its utilitarian features avoids inconsistent results; the two-part inquiry draws from language of the Copyright Office, which in turn reflects agreement between the legislative and judicial branches; the ordinary, reasonable observer standard is consistent with other aspects of copyright law; and the proposed test is practical in its application.
PubDate: Tue, 22 Nov 2016 22:36:16 PST