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Recent Cites


In his recent opinion in American Needle, Inc. v. National Football League, Justice Stevens referred to Zinichi Shishido’s essay in Hastings Law Journal, entitled Conflicts of Interest and Fiduciary Duties in the Operation of a Joint Venture, to determine whether the National Football League could be subject to a suit under the Sherman Act. The question presented was whether an agreement amongst all teams to grant licenses to apparel vendors could be treated as an action of a single entity or as a concerted action based on an agreement amongst competitors. Justice Stevens cited Shishido’s piece in his discussion of whether the teams’ interest in licensing team trademarks aligned with promoting a single entity or with promoting each team individually. See Am. Needle, Inc. v. Nat’l Football League, No. 08-661, slip op. at 13, 16 (U.S. May 24, 2010) (citing Zenichi Shishido, Conflicts of Interest and Fiduciary Duties in the Operation of a Joint Venture, 39 Hastings L.J. 63, 69-81 (1987)).

Current Issue (Volume 61, Issue 5)

Articles



Copyright Infringement and Harmless Speech

Christina Bohannan

Abstract
Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes real harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right-of-publicity laws, require that the defendant’s speech is likely to cause harm, copyright law does not make harm a requirement of infringement. Copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, but harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement, and therefore burden speech, where harm is nonexistent or purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not justify their aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Drawing from cases holding that speech restrictions must be justified by an important or compelling governmental interest, this Article argues that the First Amendment requires real harm to the copyright holder’s incentives in order to impose liability. It also explores the types of harm that might arise in copyright infringement cases. It concludes that demonstrable harm of market substitution is cognizable under First Amendment principles. On the other hand, the First Amendment generally would not permit recognition of harm to the reputation of copyrighted works, or, except in cases of unpublished works, harm to an author or copyright holder’s privacy, right not to speak, or right not to associate.


Sodom’s Shadow: The Uncertain Line Between Public and Private Morality
Todd E. Pettys


The “New” Presumption Against Preemption
Mary J. Davis

Abstract
Is there or isn’t there a “presumption against preemption”? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court’s preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a “new” presumption in the sense that it is born of the Court’s active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The “new” presumption is stronger in express preemption cases, operating as a true default rule in the absence of clear and manifest congressional intent to preempt, but is less rigid, or, in other words, more forgiving in implied preemption cases, giving breathing room to the definition of actual conflict while maintaining focus on articulated congressional objectives.

The uncertain course of preemption doctrine in the last two decades has contributed to a substantial increase in preemption arguments being made that perhaps never should have been made. The Court opened the door to many of those arguments by its display of uncertainty over the place of the presumption against preemption. The Court may have closed that door by its recent preemption decisions that clarify the importance of the presumption against preemption in both express and implied preemption cases. This Article explains the “new” presumption against preemption that has resulted, and hopes to reduce the current uncertainty over the role of the presumption in preemption doctrine.




Book Review


Law, Liberalism, and the New History of the Civil Rights Movement
Reuel Schiller

Notes



Inequitable Sentencing for Possession of Child Pornography: A Failure To
Distinguish Voyeurs from Pederasts

Jesse P. Basbaum

Immoral Immunity: Using a Totality of the Circumstances Approach To
Narrow the Scope of Section 230 of the Communications Decency Act

Ali Grace Zieglowsky



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