Ledger Vol. 2 – No. 1 (Winter 2010)
Recently, the Court of Chancery in eBay v. Newmark doubted the ability of firms to cite a threat to corporate culture as legitimate grounds for implementing a takeover defense. Just over a year ago, the Court in Amylinexpressed doubt about a firm’s ability to impede changes of control by embedding financial penalties, for lack of a better word, in otherwise ordinary business transactions. Jason Tyler argues that Hollywood presents an exceptional context, or, to put it another way, that the economic reality of movie studios pushes at the logical assumptions that underlie the eBay and Amylinholdings. Accordingly, if applied broadly, eBay and Amylin may threaten movie studios in particular.
Since the financial crisis of 2008, many contractual partners who formerly looked rock solid have experienced major cash-flow problems. In addition, it has always been the case that in some fields of technology, such as biotech, a significant number of businesses are expected to fail. Thus, it is important to think through at the outset how a license might be treated by a bankruptcy court, and where possible, to structure the agreement accordingly. How to best do this will depend primarily on whether a party is the patentee or the licensee, and on the extent to which rights are transferred (i.e. whether the transaction results in a sale or merely a license agreement). As Jordan Markham argues, in the context of a bankruptcy proceeding, the patentee is generally better served by a greater, and a licensee by a lesser, transfer of rights.
Do Facebook, Twitter, and MySpace require courts to Tinker with the Supreme Court’s student speech trilogy of Tinker to Bethel to Morse?Michael J. Kasdan examines the struggle to define the proper place of so-called “student internet speech.”
For U.S. filmmakers, the People’s Republic of China represents a prodigious market opportunity. Yet, true exploitation of the market is simply chimerical due to an obstinate web of import quotas, censorship, and government intervention, all founded upon a guise of cultural protectionism.Brian R. Byrne argues that: (i) China’s authoritarian approach to film distribution, coupled with its deficient intellectual property regime, actually promotes the dissemination of Western culture within its borders – a direct perversion of its intentions; and (ii) in order to achieve its cultural objectives, China must undertake a number of key reforms.