Authors:Emma C. Johnson Abstract: Individual creators increasingly struggle to protect their copyrights, especially in the digital age. It is already often difficult for many creators to make a living, and more often than not, they cannot afford to pay thousands in court and legal fees to bring a copyright infringement claim. With the passing of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) in December of 2020, Congress and the United States Copyright Office formed a federal small claims court for creators in such positions to be able to enforce their copyrights.The CASE Act seeks to give small copyright owners a procedurally streamlined and economically feasible forum in which to bring their small copyright claims and avoid full-fledged federal litigation. But substantive complexities that the new legislation failed to address may very well continue to keep small copyright claimants out of court.This note will first give background of the legislative history leading to the enactment of the CASE Act, as well as an overview of how the Copyright Claims Board (“CCB”) operates. Second, it will discuss the difficulties and deterrents for creators of modest means in enforcing their copyrights and the largely procedural ways in which the CASE Act aims to address those barriers. Third, it will point out substantive elements which the CASE Act overlooks—namely, that the decisions of the CCB will be binding to the parties to any particular claim and will have no precedential value for other proceedings in the copyright small claims court, nor within any other court of the United States. Finally, this note will contend that the features of this new copyright small claims court set the stage well for determinations of the CCB to hold precedential weight—or, in the alternative, for the future development of a specialized copyright court akin to the Federal Circuit. Such a narrowly focused court whose determinations are precedential would not only assist small claimants assert their rights against copyright infringement but would also go a long way toward reducing the daunting complexity of the United States’ body of copyright law. PubDate: Fri, 23 Jun 2023 09:28:30 PDT
Authors:Jared Zim Abstract: Music often tells a powerful story, driving emotional connections. As a result, politicians rely on music in every aspect of their political campaigns from political advertisements to campaign rallies. There is a long history of such political uses of music, often without an artist’s permission. While most disputes over such uses have ended in either settlement or the campaign stopping use of the infringed work, former President Donald Trump’s unauthorized use of music on the campaign trail sparked countless artist complaints. The complaining musicians feared any implication that they endorsed Trump and did not want any association with a political figure who they did not support. Politicians and campaigns argue their right to use copyrighted works for political purposes is fair use, they are protected by the First Amendment, or that they are the owner of a valid license in a particular work through a blanket license. Recently, in Grant v. Trump, the U.S. District Court for the Southern District of New York denied Trump’s motion to dismiss copyright infringement, finding Trump’s use of a song in his campaign advertisement did not constitute fair use. Politician’s use of a song must not constitute fair use when no change is made to the work, and politicians must ask for permission when using a copyrighted work. This comment will analyze the recent ruling in Grant v. Trump declining dismissal of a copyright infringement claim based on fair use, consider constitutional rights in copyright, discuss the role music has played in political campaigns and recent suits on the matter, and examine ways to protect copyright owners. PubDate: Fri, 23 Jun 2023 09:28:29 PDT
Authors:Rayaan Hossain Abstract: This Note comments on how recent developments in securities regulation deal with today’s securities industry challenges. As usual, the law advances much slower than technology. After decades of debate over heightened standards for broker-dealers giving investment advice, the Securities and Exchange Commission (“SEC”) introduced Regulation Best Interest (Reg BI). Our modern market demands that broker-dealers execute quick trades on behalf of their clients as well as provide broader investment advice. The popularity of online trading platforms (“OTPs”) only exacerbated the need for regulatory changes. The theme of this paper surmises how Reg BI responds to the rise of the retail investor’s trading app.Part II, the Introduction, will provide a brief history of the American brokerage business. This timeline will demonstrate how equities started out as a market only for the wealthy but eventually turned into an exchange where brokers compete for the everyday person’s business.Part III will then explore the SEC’s issues with current securities providers. Part III(A) discusses the methods that OTPs use to garner clients and bring in revenue. It will discuss how application designers use “gamification” to retain clients and encourage trading. Brokerages use a free-to-play system that encourages more trading through visual, process, and social media components. Part III(B) will explain the payment for order flow (“PFOF”) model. OTPs allow clients to conduct “cost-free” trading on the OTP while still bringing in revenue for the brokerage. The practice of PFOF involves selling retail market order data to market makers. After all, data is the new oil. In contrast to the expansive regulations in the oil and gas industry, however, Reg BI obligations show a more measured approach. Thus, consumers derive significant cost savings from PFOF even when retailers sell their order data to market makers who in turn sell securities to those same consumers. Part III(C) of this Note will provide insights into market interactions from a behavioral finance perspective. Behavioral finance studies show how OTPs subtly influence investor strategy, execution, and long-term goals. Studies show that the accessibility and visual appeal of online brokerage applications affects investor risk tolerance as well as trading patterns. Firms want their customers to use as many of their applications as possible. The implication is that firms want customers to use their digital applications because then they can influence them to use premium features, other firm products, or engage in behavior that adds more value to the brokerage or its other lines of business. These influences can lead to serious consequences for uninformed customers who cannot properly assess the firm’s financial products or services.After spending time on the technical aspects of OTPs, Part IV will review the history of stockbroker duties. Part IV(A) goes into common law fiduciary duties: stockbrokers maintained an agency relationship through contract. Thereafter, Part IV(B) discusses circumstances that turn a broker into a fiduciary. A popular analysis—the “trust and confidence test”—determines whether a stockbroker has a fiduciary duty to its customer. In addition to the trust and confidence test, courts look at other control factors to determine whether to impose obligations on brokerages. In Part IV(C), this Note will also expound on the historical dichotomy between broker-dealers and financial advisers. Because brokers perform an increasingly enlarged advisory function, one must understand the different standards brokers and advisers are held to. The historical context gives an added justification for Reg BI’s supplemental obligations to their customers.Part V will opine on the new SEC rule that requires broker-dealers to only recommend financial products that are in their customers’ best interests. Falling under the Securities and Exchange Act of 1934, Reg BI hopes to safeguard investors and standardize the conduct of broker-dealers who also provide financial advice. This Note will discuss the benefits and criticisms of the new regulation. For the most part, Reg BI adds needed reinforcement of securities laws while not overburdening broker-dealers.Ultimately, Part VI suggests that we should remain cautiously optimistic about such technologies. No doubt, the market should encourage fintech innovations. Consumer access to markets should remain a large priority given today’s economic climate. Still, financial services remain a highly regulated industry because of the need to protect risk-bearing consumers PubDate: Fri, 23 Jun 2023 09:28:29 PDT
Authors:J. Christopher Hamilton Abstract: Most people are familiar with superstar rappers like Kanye West, Nicki Minaj, and Drake, who continue to anchor hip-hop in a competitive culture of braggadocio, high fashion, and lethal lyrics. Many are also familiar with the recent deaths of rising stars like King Von, Pop Smoke, PnB Rock, and Takeoff due to gun violence. However, beyond the megastars, melodic music, and the high-profile murders, hip-hop represents a global marketplace valued at over $15 billion, which is shocking considering the poverty surrounding its birth. On the eve of its 50th anniversary in 2023, hip-hop’s position as the dominant form of contemporary music remains unassailable.2However, hip-hip as a business sector has also been known for shady business tactics, thuggery, unsavory individuals, and a longstanding history of using organized crime and violence to resolve conflict. Issues like these merit real examination from a new perspective such as: “what’s the accountability within the music industry and law enforcement community for these events” and “what responsibilities do the media companies funding rap music have when they employ rogue artists engaged in criminality.” Simply put, if hip-hop artists are engaged in criminal activity sanctioned and funded indirectly by their music labels, then those companies should also be held criminally responsible for the resulting harm. For that reason, this paper sets forth the legal framework to establish criminal culpability on behalf of the financiers that have been inadvertently or intentionally funding these criminal enterprises in hip-hop over the last 50 years PubDate: Fri, 23 Jun 2023 09:28:28 PDT
Authors:Carlos Ragazzo et al. Abstract: Between 2007 and 2021, several South American companies carried out IPOs outside their home countries, with the subsequent overseas primary listing of their shares on U.S. stock exchanges. The acceleration of this trend from January 2018 (with the IPO of PagSeguro Digital Ltd. on the New York Stock Exchange—NYSE) is not explained solely by the possibility of adopting dual-class shares structure for companies listed on U.S. stock exchanges. In this sense, factors such as: (1) biases and subjectivities in the decision-making process; (2) cultural proximity and history of successful precedents; (3) better valuation in comparison with local markets; and (4) access to global markets, sophisticated investors, and reputation; were found to be key explanatory elements for this wave of IPOs and overseas primary listings on U.S. stock exchanges, especially Nasdaq. This Article concludes that this trend, which Brazilian companies mainly carried, can be replicated or accelerated in other specific sets of countries if more advanced conditions are fulfilled in their private equity and venture capital industry. The U.S. markets provide an attractive level of know-how for its participants and scale, resulting in a better valuation of technology companies. This is particularly important for companies that cannot rely on thriving capital markets where they concentrate their operations. PubDate: Mon, 03 Apr 2023 09:10:44 PDT
Authors:Jenna Reifler Abstract: Municipal bonds are generally understood as mutually beneficial for both issuer and holder—they allow cities to secure capital for local improvements and investors to earn reliable and tax-exempt profits. It turns out, however, that the lack of disclosure for issuing general obligation bonds presents the perfect camouflage for cities to secure funding despite their local social responsibility inadequacies.Cities quietly shell out millions of dollars in settlements to the victims of police-misconduct. Largely unreported and untracked, many municipalities fund such settlements through general obligation bonds, which are colloquially termed police brutality bonds. As a result, and often unbeknownst to the layperson, the burden of accountability for police misconduct lies with the taxpayer. Moreover, and in many cases, the lack of required disclosure for general obligation bonds renders the bondholders themselves unaware that their financial gain is tied to police brutality. Emerging data shows that police brutality bonds aid the transfer of “wealth from communities—especially over-policed communities of color—to Wall Street and wealthy investors.” Under increased public scrutiny for socially responsible investing, large financial institutions purchasing municipal bonds risk catastrophic reputational implications. Environmental, social, and governance criteria (“ESG”) have become the modern threshold of investment decision making, and many large banks are revising their strategies in accordance with ESG. But, absent the requisite knowledge of police misconduct to invest in accordance with ESG criteria, investors face risks when sourcing funds to municipalities.As lawmakers’ efforts to reform policing are often thwarted by barriers like qualified immunity, financial limitations, and political disputes, incremental solutions may offer hope. By demanding information or withholding funds, large investors in the municipal bond market hold the power of the purse that can bring pressure for policy reform from all sides. PubDate: Mon, 03 Apr 2023 09:10:44 PDT
Authors:Megan M. O’Malley Abstract: Data from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance. PubDate: Mon, 03 Apr 2023 09:10:43 PDT
Authors:Ryan Greenberg Abstract: Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law would benefit from timely, uniform, and comprehensive reform. The Uniform Restrictive Employment Agreement Act (“UREAA”) has emerged as a forward-thinking piece of legislation that seeks to unify the current patchwork of state laws targeting various renditions of restrictive employment agreements. Every state should adopt UREAA, and the federal government should join their surging fight against restrictive employment agreements.This Note expresses the state of the law as it exists on August 1, 2022. Part I ushers in the concept of labor mobility and its particular importance to low-wage workers. Part II explains how current events are influencing workers’ changing attitudes towards their jobs, spotlighting the need for labor mobility. Part III introduces a widespread barrier to labor mobility—restrictive employment agreements, which function as restraints of trade. Part IV presents the role of antitrust as a safeguard against unreasonable restraints of trade. Part V synthesizes common arguments for and against restrictive employment agreements as unreasonable restraints of trade, exploring the changing landscape of restrictive employment agreement laws, as jurisdictions re-examine their usefulness and fairness. Part VI presents this author’s view that action against restrictive employment agreements should be timely, uniform, and comprehensive. Part VII encourages states to adopt UREAA in consideration of these metrics, while also acknowledging the Act’s limitations and highlighting areas in which the federal government can contribute. Part VIII concludes by providing a model for multilevel enforcement of restrictive employment agreement laws. PubDate: Wed, 04 Jan 2023 06:29:17 PST
Authors:Megan Elizabeth Norris Abstract: The entertainment industry is undergoing quite the transformation following the recent termination of the Paramount Consent Decrees, which effectively regulated the industry to prevent monopolization and promote competition for almost a century. The industry now faces a drastic surge in the utilization of streaming services and a new wave of antitrust issues.“With great power comes great responsibility;” however, the dominant streaming companies in the industry have raised suspicion about emerging anticompetitive concerns. While long overdue, the termination of the Paramount Consent Decrees leaves a gaping hole in antitrust policy regarding the nuanced business practice of streaming platforms. Existing antitrust laws may be insufficient to protect consumers from potential harms as streaming services gain prominent traction in the film and television arenas. Expansion through vertical integration and related business practices echoes antitrust violations from over 70 years ago, when the Paramount Consent Decrees were first implemented. Thus, anticompetitive consideration is “paramount” to prevent history from repeating itself. This Note seeks to compare past violations with present actions, address one of the most dominant legal challenges in the entertainment media industry, and discuss possible solutions to counter this growing concern. PubDate: Wed, 04 Jan 2023 06:29:17 PST
Authors:Alexa Rosen Grealis Abstract: Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.This Note posits that it is a mistake to treat corporate spin-offs as the de facto corollary to government-supervised structural separations. Tax-free spin-offs are not the self-mediated equivalent to structural remedies for at least three reasons: (1) section 355 allows dominant firms to engineer future market conditions and concentrate power in ways government-supervised separations simply do not; (2) parent companies may spin-off fictitious competitors to artificially inflate competition and deflate power in a given market; and (3) the parent-controlled process invites parent firms to structure progeny firms in patently self-serving ways. The harm continues because the parent company never redistributes monopoly power. Section 355’s authorization of voluntary tax-free spin-offs without regard to anticompetitive effect is in tension with antitrust policy. Yet, no legal mechanisms currently exist to stop or prevent firms from using spin-offs to evade antitrust liability.In response, this Note proposes a doctrinal shift in the way antitrust courts and plaintiffs approach section 355 spin-offs, beginning with the proper test for market power and anticompetitive effect. As to prevention, regulators should adopt strategies to understand, detect, and stop anticompetitive spin-offs. Legislation is needed to align section 355 with the goals for competitive markets. Nonetheless, the path forward must distinguish between anticompetitive spin-offs and competition on the merits. PubDate: Wed, 04 Jan 2023 06:29:17 PST
Authors:Gabriella Veronica Coffield Abstract: Aside from Google Play, Apple’s App Store is where the majority of apps are downloaded from across the world. Recently, Apple has faced scrutiny for its management of the App Store and the control Apple has over the market due to the lack of competition. Additionally, developers have criticized the 30% fee Apple charges them for in-app purchases. The recent ruling by the Northern District of California in Epic Games, Inc. v. Apple, Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021) addressed this issue and issued an injunction allowing the possibility for developers to direct consumers to external links to subscribe or make purchases which could allow the developers to circumvent Apple’s high commission rates.In Epic Games, Inc. v. Apple, Inc., the court held Apple was not an antitrust monopolist in the market of mobile gaming transactions under the Sherman Act; however, Apple’s anti-steering restrictions were held to be anticompetitive and unlawful under the unfair prong of California’s Unfair Competition Law. This Comment analyzes how the Northern District of California correctly applied prior law in its holding that Epic Games failed to satisfy the rule of reason test to prove Apple’s app distribution restrictions were anticompetitive effects that were harmful to consumers and unlawful under § 1 of the Sherman Act. While Apple’s app distribution restrictions did have anticompetitive effects, Apple was able to validate the anticompetitive effects with security, interbrand competition, and intellectual property as valid procompetitive justifications since the justifications enhance consumer appeal and make Apple more competitive to brands like Google. Additionally, this Comment focuses on how the court correctly ruled Apple’s anti-steering provisions threaten an incipient violation of an antitrust law under California’s Unfair Competition Law since the anti-steering provisions lack a valid procompetitive rationale and block communications about lower prices on other platforms to consumers. Going forward, this case provides implications on how future developers should structure their arguments when pursuing litigation against companies with significant market power, namely Apple and Google. The fact Apple was granted an injunction for its anti-steering provisions under the California Unfair Competition Law but was not considered to be in violation of § 1 of the Sherman Act may reveal that developers are better off framing their arguments as “incipient violations of antitrust law” rather than more broadly through the Sherman Act § 1 unfair restraint of trade.) PubDate: Wed, 04 Jan 2023 06:29:16 PST
Authors:Brandon Posivak Abstract: The NCAA is not above the law. On June 21, 2021, the Supreme Court unanimously held in NCAA v. Alston that the NCAA’s student-athlete compensation restrictions violated § 1 of the Sherman Act, and student athletes may now obtain education-related benefits from their name, image, and likeness (NIL). The Court’s holding marked the first time the NCAA’s compensation restrictions failed antitrust scrutiny under the Rule of Reason analysis, but by limiting its holding to education-related benefits, the Court refused to open the floodgates to all forms of NIL compensation. Within its holding, the Court notably rejected the NCAA’s procompetitive argument of preserving amateur athletics, which had largely withstood judicial pressure for nearly half a century.While the Court found the NCAA’s compensation restrictions amounted to horizontal restraints on the student-athlete cognizable labor market as the NCAA engaged in blatant price fixing, it is the NCAA’s enforcement of the restrictions rather than the restrictions themselves that manifests the Sherman Act violation. This Note argues that the NCAA should cede its control over to the conferences comprised of its member institutions, which would remedy the Sherman Act violation as the conferences are in competition with each other, thus making the compensation restrictions a reasonable restraint on trade. Significantly, Justice Kavanaugh’s fiery concurrence in Alston implored the Court to expand its holding to other areas of NIL compensation restrictions outside education, which foreshadows that the Court’s decision in Alston may be essentially mark the end of the NCAA’s iron grip on student athletes. PubDate: Tue, 03 Jan 2023 14:17:14 PST
Authors:Stefano Kao Kostas Abstract: In 2021, President Biden issued an executive order that addressed the negative implications of market concentration within the healthcare industry. Specifically, President Biden called for the revision of the Horizontal and Vertical Merger Guidelines to enact antitrust safeguards that limit unchecked hospital mergers and promote competition. This Article delves into the role of the healthcare sector in the U.S. economy and how the current state of hospital mergers limits competition and, thus, the quality of care available to patients. Further, this Article studies U.S. federal regulations, case law, and merger retrospectives to uncover pitfalls within the current Horizontal Merger Guidelines. In conclusion, this Article proposes adding hospital-specific language and more context for merger efficiencies to the guidelines as a remedy for its current anticompetitive consequences. PubDate: Tue, 03 Jan 2023 14:17:13 PST
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