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
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.
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.
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.
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).
The Recent DOJ and FTC Policy Suggestions for Standard Setting Organizations – The Way out of Standard-Essential Patent Hold-Up
When patent holders employ the threat of an injunction as a weapon against competitors, it raises eyebrows among antitrust lawyers and agencies instinctively. Such is the case when standard-essential patents are used to hold members of standard setting organizations hostage by threatening sunk technology investments. Prominently last year, Google purchased Motorola Mobility Inc., which included 17,000 patents predominately relating to smartphones, and Apple and Microsoft acquired Nortel Networks and its 6,000 telecommunications patents. The FTC and the DOJ reacted with concern about potential patent abuse in light of the ever-more salient “smartphone patent wars.” In this setting, Renata Hesse, Deputy Assistant Attorney General at the DOJ, and Joseph F. Wayland, then Assistant Attorney General of the FTC, published governance suggestions aimed at lessening the likelihood of hold-up in the standardization process. This article applies a law and economics analysis to three of the suggestions: disclosure requirements, cross-licensing provisions, and limitations of exclusion through injunctions. The discussion addresses problems relating to joint negotiation and monopsony, as well as royalty stacking and cournot complements. It demonstrates how cross-licensing among upstream firms can effectively raise their downstream rivals’ costs, and it explores the concept of “reverse hold-up.” The article finally concludes that Hesse and Wayland identify critical issues, but fail to provide a fully satisfying solution to the problem of standard-essential patent hold-up.
Standard-essential patents can be used to hold members of standard setting organizations hostage by threatening sunk technology investments. Renata Hesse, Deputy Assistant Attorney General at the DOJ, and Joseph F. Wayland, then Assistant Attorney General of the FTC, published governance suggestions aimed at lessening the likelihood of hold-up in the standardization process. This article applies a law and economics analysis to three of the suggestions: disclosure requirements, cross-licensing provisions, and limitations of exclusion through injunctions. The discussion addresses problems relating to joint negotiation and monopsony, as well as royalty stacking and cournot complements. It demonstrates how cross-licensing among upstream firms can effectively raise their downstream rivals’ costs, and it explores the concept of “reverse hold-up.” While Hesse and Wayland identify critical issues, they fail to provide a fully satisfying solution to the problem of standard-essential patent hold-up.
Part of the Team: Building Closer Relationships Between MLB Teams and Independent Agents in the Dominican Republic through an MLB Code of Conduct
Every year in the Dominican Republic, hundreds of boys enter baseball academies run by one of Major League Baseball’s (MLB) franchise teams. When the vast majority of these athletes, who have devoted their lives to baseball, eventually wash out of the academy system after two or three years, they are thrown back into the working population with little education and no transferrable skills to show for the years they spent playing baseball. In the Dominican Republic, the situation is exacerbated by the treatment that players receive before they even get to the MLB academies, by independent handler-agents known as buscones. Given the type and scope of labor rights violations that occur as a result of MLB’s presence in the Dominican Republic, MLB should promulgate a voluntary corporate code of conduct to govern the relationship between MLB and buscones in the Dominican Republic. Any solution should encourage cooperation between MLB, the teams, buscones, and the Dominican government, instead of punishing players or forcing teams to leave the Dominican Republic if violations are found.
Despite the continued reliance on the rhetorical device that modern invention is performed by individual inventors in their garages, few would disagree that today most patentable inventive activity occurs in corporate and university settings and that most individuals who would be labeled “inventors” in the twenty-first century are employees of a corporate entity. Yet, while copyright law’s work made for hire doctrine automatically vests employers with ownership of works made within their employees’ scope of employment, except in a few limited circumstances, patent law continues to require a written assignment of the rights to a patented invention. In order to resolve resulting issues and bring patent law into the twenty-first century, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine that would grant employers the rights to their employees’ inventions made within the scope of their employment.
Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications
As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines advisory only and no longer mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders. By analyzing federal sentencing data for sentences imposed between 1997 and 2011, this article presents an empirical analysis of how Booker has impacted the ways in which district courts impose sentences on offenders convicted of intellectual property crimes. This analysis reveals, inter alia, that (1) sentences imposed on intellectual property offenders deviate from Guidelines-recommended sentences in two out of every three cases; (2) prosecutors seek and judges impose reduced sentences for intellectual property crimes more frequently than for other comparable crimes; and (3) judge-initiated downward deviations from the Guidelines occur after Booker about seven times as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.
The Patent Act’s omission to define inventorship leaves a paramount concept in a legal vacuum. Where courts have stepped in to fill the void, they have largely deferred to the inventor, and joint inventor, status articulated in the patent claims. This fixation fails to accurately reflect the contributions of those who, by common understanding, are inventors. In doing so, the patent system incentivizes not invention, as the Constitution and Congress conceived, but legal claims of invention, playing to the advantage of the legally sophisticated rather than the scientifically innovative. In this article Professor Fellmeth explores this fundamental disconnect, and proposes several legal solutions.