License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software

License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software
FOSS (free/open source software) is a growing player in the end-user market, as evidenced by the popularity of everything from Wordpress to Firefox. One of its key appeals to developers is the egalitarian nature of its “access for everyone” model, which allows everyday users to develop and share tweaks that make the program more useful to them. In executing these goals, however, developers can often get lost in the world of legalese surrounding available FOSS licenses. Often, developers choose a license without a full understanding of its contents, or even attempt to draft their own. One of the biggest risks in the wording of a license is that of the “condition”/“covenant” dichotomy. Incorrectly worded, a covenant-based license runs the risk of foreclosing copyright-based remedies and limiting the scope of arguments available when a user breaches a program’s license. In approaching the choice of which license to apply to a new program, then, both developers and their attorneys should be aware of the critical importance of its choice of words.

Where the Trade Secret Sits: How the Economic Espionage Act Is Inflaming Tensions in the Employment Relationship, and How Smart Employers and Employees Are Responding

Where the Trade Secret Sits: How the Economic Espionage Act Is Inflaming Tensions in the Employment Relationship, and How Smart Employers and Employees Are Responding
The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.

Using Copyright to Combat Revenge Porn

Using Copyright to Combat Revenge Porn
The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.

The Distinctiveness of a Fashion Monopoly

The Distinctiveness of a Fashion Monopoly
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.

Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts

Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts
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.

The Merger and the Damage Done: How the DOJ Enabled an Empire in the Live Music Industry

The Merger and the Damage Done: How the DOJ Enabled an Empire in the Live Music Industry
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.

Handle with Care: The Evolving Actual Malice Standard and Why Journalists Should Think Twice before Relying on Internet Sources

Handle with Care: The Evolving Actual Malice Standard and Why Journalists Should Think Twice before Relying on Internet Sources
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.

On the Duality of Internet Domain Names: Propertization and Its Discontents

On the Duality of Internet Domain Names: Propertization and Its Discontents
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.

Three-Dimensional Printing and Open Source Hardware

Three-Dimensional Printing and Open Source Hardware
This Article shows how the maturing technology of three-dimensional printing can be used to construct an enforceable open hardware license. Open hardware lacks the legal tools which allow the easy implementation of enforceable open source software licenses. As such, existing licenses cannot successfully implement open hardware principles. The author proposes the “Three-Dimensional Printing Open License” (the “TDPL”). The TDPL draws on the unique characteristics of three-dimensional printing to construct a license that incorporates enforceable documentation, attribution and copyleft provisions. As the technology of three dimensional printing improves and is gradually integrated into a broad range of industries, the scope of the license’s application will increase.

Protecting Artistic Vandalism: Graffiti and Copyright Law

Protecting Artistic Vandalism: Graffiti and Copyright Law
Does copyright law protect graffiti? Preserving graffiti art and protecting it against unauthorized reproductions are growing concerns in the art scene. This article argues that copyright law should cover graffiti works because copyright should be neutral towards works created by illegal means. Because copyright should only be concerned with protecting expression, material transgressions related to the physical embodiment of an artistic work should not exclude the work from copyright protection. This is true even under an incentive-based copyright system, such as the one established by the United States Copyright Act. Illegal graffiti works are creative acts that fit within the scope of promoting “the progress of Science and Useful Arts,” as stated in the United States Constitution. Moreover, protecting graffiti may incentivize graffiti artists to create more legal works. This article analyzes the challenges that artists face when enforcing their rights in their graffiti, both under the Copyright Act and the Visual Artists Rights Act (VARA).