By Michael J. Kasdan*

A pdf version of this article may be downloaded here.

Introduction

The move toward online communication has the potential to throw off the historically careful balance that has been struck regarding First Amendment issues in the realm of “student speech.”  In a seminal trilogy of cases, the Supreme Court balanced the free speech rights of students with school districts’ ability – and even responsibility – to regulate student speech that disrupts the learning environment.  Before the proliferation of instant messaging, SMS texts, and social networking sites, the Court allowed schools to regulate on-campus speech in limited circumstances (i.e., when the speech disrupts the learning environment) but did not extend the school’s authority to regulate speech that occurs off-campus (i.e., speech subject to traditional First Amendment protection).  Electronic communication blurs the boundary between on- and off-campus speech.  While a student may post a Facebook message from the seeming privacy of his or her own home, that message is widely accessible and could have a potentially disruptive effect on campus.

By Brian R. Byrne*

A pdf version of this article may be downloaded here.

I.  Introduction

For U.S. filmmakers, the People’s Republic of China represents a prodigious market opportunity.[FN1] As the Chinese middle-class expands,[FN2] enjoying an increase in disposable income,[FN3] the thirst for quality entertainment intensifies.[FN4] Cinema construction rampages across the mainland in an effort to satisfy demand for theatrical releases.[FN5] Yet despite this consumer demand,[FN6] supply methodology remains a perplexing phenomenon. 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.[FN7]

However, notwithstanding the obstacles to legitimate distribution, the channels of illegitimate distribution remain relatively unencumbered. Piracy is rampant throughout China[FN8] and high quality copies of pirated films are widely available, often before the film in question has even been released through lawful channels. Moreover, in contrast to lawful distribution, pirates are subject to neither an import quota nor the rigorous censorship regime that would otherwise apply.[FN9] Thus, China appears to offer a distinct advantage to illegitimate market players.

By Steven Olenick*

A pdf version of this article may be downloaded here.

Prized basketball recruit Renaldo Sidney has yet to step foot on the court for the Mississippi State Bulldogs.   His eligibility status remains uncertain due to an ongoing investigation by the National Collegiate Athletic Association (NCAA) into his amateurism status regarding receiving improper benefits.[FN1]Oklahoma State star wide receiver, Dez Bryant, was ruled ineligible by the NCAA this past season for lying about a meeting with NFL great Deion Sanders.[FN2] Major League Baseball prospect Andrew Oliver was suspended by Oklahoma State University because he had violated Bylaw 12.3.1 by allowing his former attorney to contact a Major League club and by having his former attorney present when a Major League Baseball club tendered him a contract.[FN3] Recently, another Major League Baseball prospect, James Paxton, had his eligibility questioned for his dealings with a Major League Baseball club.[FN4]

By Scott Gelin and G Roxanne Elings*

A pdf version of this article may be downloaded here.

It has never been easier for sellers of counterfeit goods to avoid getting caught. The Internet is particularly well suited for anonymity, and counterfeiters readily take advantage of the Internet’s cloaking abilities. Counterfeiters are able to register domain names, operate web stores that sell counterfeit goods and/or sell counterfeit goods on third party auction platforms, accept and process credit card payments, and ship these illicit goods directly to customers, all without revealing their true identities to consumers, who often think they are buying the real thing, or to brand owners who might try to stop them.

But if brand owners cannot catch the actual counterfeiters and make them pay, why not pursue the selling platforms, credit card processors, shippers, and Internet service providers who make these counterfeit sales possible? After all, these entities garner fees when counterfeiters use their services to sell and distribute fake goods. Also, these service providers may know the counterfeiters’ true identities and be in the best position to make them stop. Another advantage for brand owners to focus on service providers rather than the counterfeiters themselves is that the former are generally easier to locate and often have deeper pockets.

By Brendan J. Coffman*

A pdf version of this article may be downloaded here.

INTRODUCTION

A man sits in his apartment in a major United States city checking his email. He may or may not be a U.S. citizen, and may or may not be associated with a significant international organization. The government’s intelligence agencies are not aware of the man, and local police officials have no overt reason to suspect anything abnormal or threatening. His email is transmitted and stored by a major electronic communications service provider, and his private messages on the server contain information vital to his plot—to attack a major U.S. city.

In the adjacent apartment, a man sends an email to a friend discussing his desire—mostly imaginary, but frighteningly realistic—of assaulting his female neighbor. The friend’s wife intercepts the email. The wife does not believe the man would follow through on his desires, and goads him on in response. Much like the case above, the police have no reason to suspect any dangerous intention from this man.

By Paul A. Ragusa and Jack Chen*

A pdf version of this article may be downloaded here.

In Pfaff v. Wells Elecs., Inc.[FN1] the Supreme Court formulated the now well known test for determining when an invention cannot be patented due to a sale or offer for sale more than one year prior to the filing of a patent application. Specifically, the Court held that an invention need not be “reduced to practice” at the time of the sale or offer to create a statutory bar against patent protection. [FN2] Instead, a sale or offer of an invention “ready for patenting,” is sufficient to raise a statutory bar. [FN3] The purpose of the on-sale bar is to encourage early disclosure of inventions to the public as well as to prevent a de facto patent term extension by those who would commercially exploit an invention for an extended period of time prior to filing a patent.

During the past twelve years, the courts have applied the Pfaff test to various technologies, some with more clarity than others. One thorny area involves the application of the Pfaff test in the context of software related inventions. Although the Pfaff Court rejected precedent that an invention needed to be “substantially complete” to provide a statutory bar, [FN4] it did not address how a software related invention can be ready for patenting where the code is incomplete, and untested. As a practical matter, how is a court to determine whether an unfinished software-related invention is ready for patenting and therefore can operate to trigger an on-sale bar? A recent district court decision addresses this issue head-on and is discussed below.

by Alexandra Schwartz*

A pdf version of this article may be downloaded here.

I.  Introduction

On June 24, 2008, ABC Executive Vice President Howard Davine wrote a memo to ABC’s executive producers and show-runners which raised eyebrows in the industry when it was leaked. The memo suggested that there may be no need to license a foreign television show (“foreign format”) when all that is being taken from the show is the “underlying premise.” [FN1] He strenuously urged the executive producers and show-runners to first go to ABC’s Creative Affairs group when they had seen or were about to see a show that they were potentially interested in licensing so that ABC could decide, both creatively and legally, whether licensing was truly necessary.

Mr. Davine made four main points regarding business reasons that licensing these formats are to the disadvantage of ABC and should be avoided. First, he noted that the foreign format copyright holders will want recognition and seek Executive Producer credit as well as a degree of creative control, typically to be rendered from a foreign location — adding an “unnecessary layer” to the creative process. [FN2] Second, he argued against licensing because there would likely be a decrease in profits from format rights fees and Executive Producer fees as well as the reality that a large portion of the backend [FN3]would have to be shared with the format’s right holder. [FN4] Third, the studio may be limited in its ability to exploit derivative works from the show depending on the stature of the rights holder. Fourth, if a show is licensed, the deal may be dependent upon the studio’s ability to sell the U.S. series internationally without restriction and the interest of the foreign rights holder to sell episodes of their underlying series in the U.S. market — motivations that are often not compatible or economically equivalent. [FN5]

by Brian Pearl*

A pdf version of this article may be downloaded here.

I. INTRODUCTION

Girl Talk is the self-imposed moniker of Pittsburgh, Pennsylvania-based artist Gregg Gillis. Since his first album, “Secret Diary,” [FN1] Gillis’s work has evolved from glitch-heavy electronic music interspersed with pre-existing samples to a collage of the most recognizable (and dance-able) moments from hit songs spanning decades as well as musical genres. [FN2] “Night Ripper,” the third Girl Talk album, pushed Girl Talk out of the underground and onto the pages of magazines including Rolling Stone, Blender, and SPIN. [FN3]Influential taste-maker Pitchfork Media fawned over “Night Ripper,” calling the album a “voracious music fan’s dream: a hulking hyper-mix designed to make you dance.” [FN4] “Night Ripper” also enabled Gillis to accomplish every musician’s goal – quitting his day job. [FN5]

by Josh Kaplan*

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In recent years, the music industry has morphed at an alarming pace. The music label system has failed to evolve with equal speed, and the result is the demise of the music label and its surrounding infrastructure. The music label system has traditionally sold physical records at inflated prices while sharing a very small percentage of such sales with the musician. With the advent of digital music, the utilities that the labels possess have become available to any musician with a good internet connection. A band no longer needs a label to manufacture, promote and distribute its new LP.

Today’s indie bands are resourceful, and tap into every free and inexpensive resource readily available. Bands utilize websites, social networking tools, street teams, e-stores and digital distribution companies to “break” into the business. Even still, the band needs one thing to take it to a national or international level: money.

By David H. Faux*

A pdf version of this article may be downloaded here.

I.    Introduction

The current debate over increased protection for fashion design is largely focused on a dichotomy: whether additional protection is necessary or if it is actually counter-productive for the industry. This dichotomy is false. The proper contrast is between protection of authorship versus protection of reputation. In short, while elite design houses enjoy some tools for protecting their reputations, beginning designers need legislation that will enable them to enforce rights based on notions of authorship.

Underlying this article is the assumption that fashion designs deserve copyright protection. Each design has a unique “character,” [FN1] and expresses a point of view. [FN2] Combine these original expressions with the fact that clothing is a tangible form, and it seems obvious that fashion designs are copyrightable material.