Fall 2013 Issue

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On The Duality of Internet Domain Names: Propertization and its Discontents
by Frederick Abbott

Domain names may have substantial economic and social value. They are often the objects of dispute. There is a recent judicial trend, particularly in the Court of Appeals for the Ninth Circuit, toward characterizing domain names as “property” subject to rules of sale and transfer typical of personal property. This judicial characterization identifies “alienability” as a fundamental characteristic of domain names. This sets up a real or potential conflict with jurisdictions or forums where domain names have been judicially or administratively characterized as “contract rights” based on the legal relationship between the domain name registrant and the registrar. Several recent decisions among Ninth Circuit courts applying the federal Anticybersquatting Consumer Protection Act (ACPA), on one side, and administrative panels applying the Uniform Domain Name Dispute Resolution Policy (UDRP), on the other, call attention to the possibility for different dispute settlement outcomes depending on whether domain names are treated as freely alienable property or contract rights incorporating various obligations on transferors and transferees. In this article, the author analyzes the legal bases used to characterize Internet domain names, and suggests that it may not be necessary to draw a line between “intangible property” and “contract rights”. Domain names may be treated as both.
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Handle with Care: The Evolving Actual Malice Standard and Why Journalists Should Think Twice Before Relying on Internet Sources
by Kimberly Chow

This note examines two phenomena at the intersection of traditional media law and evolving forms of expression on the Internet, focusing on whether courts’ increasing tendency to view Internet sources as dubious will result in more findings of defamation among journalists who rely on those sources. First, the article considers the pressure that the “24-hour news cycle” has put on journalists, who with increasing frequency are relying on what they read on the Internet as research for their articles. When those Internet sources turn out to be incorrect, the harm has often already been done because a respected news outlet such as CNN has re-reported the incorrect news. The second phenomenon considered is a spate of recent cases in which courts have stated that certain Internet sources should automatically be viewed with skepticism, including sites that do not undergo a rigorous editorial process. Given these developments and the recent spate of embarrassing mistakes by news media in high-profile cases such as the misreporting of the name of the Sandy Hook shooter, the author advocates for greater diligence by reporters in checking the Internet sources upon which they rely, and discusses how societal recognition of the dubious nature of Internet sources could chip away at the significant protection against legal action traditionally given to journalists.
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The Merger and The Damage Done: How the DOJ Enabled an Empire in the Live Music Industry
by Josh Baker

In 2010, the Antitrust Division of the Department of Justice approved the merger of Ticketmaster and Live Nation, who combined to form Live Nation Entertainment. This paper revisits the Department's antitrust analysis from its merger investigation in light of recent trends in the live music industry. It explores alternative theories of antitrust scrutiny that the Department either did not emphasize or omitted discussion of. Finally, it concludes that the merger posed a more significant threat to competition than the Department acknowledged, and that the remedies the Department imposed as conditions on the merger were insufficient to preserve effective competition in the relevant markets. The Department missed a tremendous opportunity to establish long-term competition in the nascent market for vertically integrated services. Artists, competing service providers, and ultimately consumers are worse off for it.
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Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts
by Catherine Riley

Reality television is a modern phenomenon that can be found on both daytime and primetime television. Using “real” people creates unique problems for production teams. Real people do not have the industry knowledge or legal assistance from industry professionals to actively participate in contract negotiations. As “unscripted” shows, reality television presents new risks the producers must consider while developing contracts. While most entertainment contracts are longer and more restrictive than employment contracts for other industries, reality television contracts are even more complex. Recently, questions about the enforceability of these contracts have begun to emerge. If litigated, the courts, rather than a jury, would decide whether these contracts were void due to unconscionability. This note argues that as currently drafted, reality television contracts are not unconscionable, even though at first read they might seem unfair.
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The Distinctiveness of a Fashion Monopoly
by Haochen Sun

By focusing on the recent fashion warfare over the red sole used on luxury shoes, this Article reconsiders the implications of trademark protection of single color marks for regulating the development of the fashion industry and the cultural evolution of human society. Courts and commentators have focused on the role of the aesthetic functionality doctrine in deciding whether Christian Louboutin’s red sole mark should be protected by trademark law. This Article takes a different approach. It calls for a social justice–based re-examination of whether the red sole mark is distinctive enough to warrant trademark protection. Based on a close look at the distinctiveness of the red sole mark, the Article puts forward a social justice mandate that should be incorporated into trademark law. It contends that social justice should have the trumping power to deny trademark protection of marks even if they are adequately distinctive. It also shows how the new mandate resonates with the equality-oriented protection under the First and Fourteenth Amendments. The Article further addresses practical concerns for implementing the mandate and discusses its merit in solving the problems caused by the aesthetic functionality doctrine.
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