Marc Melzer

With the academic year and new NCAA football season well underway, and the Supreme Court’s decision whether to hear the appeal in O’Bannon v. NCAA expected in late September or early October, it is an ideal time for us to look at the challenging intellectual property questions raised by this case. Although the NCAA’s petition also raised an antitrust issue, this article will focus on: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the… Show more

With the academic year and new NCAA football season well underway, and the Supreme Court’s decision whether to hear the appeal in O’Bannon v. NCAA expected in late September or early October, it is an ideal time for us to look at the challenging intellectual property questions raised by this case. Although the NCAA’s petition also raised an antitrust issue, this article will focus on: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim based on the realistic portrayal of a person in an expressive work (here, a student-athlete in a college sports video game).” Show less

Almost everyone knows that it is a violation of law to copy other people’s works of authorship without the owner’s permission or a valid fair use exemption. But the number of social network users has exploded (estimated to exceed two billion people worldwide) and, at its core, social media is all about sharing content. So the question arises, to what extent has the evolution of social media expanded the permissibility of posting content created by third parties beyond the traditional limits of… Show more

Almost everyone knows that it is a violation of law to copy other people’s works of authorship without the owner’s permission or a valid fair use exemption. But the number of social network users has exploded (estimated to exceed two billion people worldwide) and, at its core, social media is all about sharing content. So the question arises, to what extent has the evolution of social media expanded the permissibility of posting content created by third parties beyond the traditional limits of fair use? This article will review several recent fair use cases and identify key takeaways and lessons learned. Show less

In connection with the World Intellectual Property Organization (WIPO) project on Intellectual Property and Competition Policy, WIPO commissioned the Center on Law and Information Policy at Fordham University School of Law (CLIP) to undertake a review of relevant literature in order to analyze the role of intellectual property (IP) rights as a barrier to entry. In particular, WIPO sought information on literature that addressed developing countries and that was empirical in nature. WIPO… Show more

In connection with the World Intellectual Property Organization (WIPO) project on Intellectual Property and Competition Policy, WIPO commissioned the Center on Law and Information Policy at Fordham University School of Law (CLIP) to undertake a review of relevant literature in order to analyze the role of intellectual property (IP) rights as a barrier to entry. In particular, WIPO sought information on literature that addressed developing countries and that was empirical in nature. WIPO further hoped that the study would reveal literature that identified factors in the use of IP rights as exclusionary measures. And, lastly, WIPO sought information on whether additional empirical studies will be feasible and/or necessary to better understand how and how much IP rights can be used to bar or delay the entry of competitors. Show less

The increasing digitization of content has created numerous challenges to copyright enforcement over the last two decades, as copies became near-perfect and infringement became easy and inexpensive. The spread of digital content shares a symbiotic relationship with the growth and development of the internet as a tool for communication and commerce. Innovations in digitization technology have been spurred by the desire for efficient and high-quality methods of transmitting content via the… Show more

The increasing digitization of content has created numerous challenges to copyright enforcement over the last two decades, as copies became near-perfect and infringement became easy and inexpensive. The spread of digital content shares a symbiotic relationship with the growth and development of the internet as a tool for communication and commerce. Innovations in digitization technology have been spurred by the desire for efficient and high-quality methods of transmitting content via the internet. This technology has evolved as internet transmission technologies have improved, allowing more data–thus larger and higher-quality content files – to speed around the globe.

The last several years have seen the growth of “cloud computing,” allowing users to employ a variety of protocols, applications and transmission techniques to store data in and harness the processing power of remote servers, often controlled by third-party providers. The development of cloud computing, heralded by more-expansive and less-expensive broadband internet connections, is poised to add a new challenge to copyright enforcement as more users take to the cloud to store, transmit, manipulate and share content.

This article will identify likely problem areas for copyright enforcement arising from this technological trend and, by analysis of recent copyright jurisprudence involving cloud computing, describe the present and near-term viability of copyright enforcement in the cloud. Part I will focus on cloud computing itself, what the term comprises and what its design and implementation suggest about the viability of copyright enforcement, including those challenges posed by different types of cloud computing. Part II will set out the framework of copyright law relevant to this issue. Part III will review some recent cases involving copyright and different types or aspects of cloud computing. Show less

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the… Show more

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use. On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history. Show less

In the seven decades since the United States sounded the death knell of the "Noble Experiment" by ratifying the Twenty-first Amendment to the Constitution, Prohibition's legacy has remained in statutes and on dockets across the nation. State statutes codifying the powers believed to be granted to the states by the Amendment's second clause, which has long been interpreted as carving a niche out of the Commerce Clause for state regulation of alcohol, have repeatedly been challenged as… Show more

In the seven decades since the United States sounded the death knell of the "Noble Experiment" by ratifying the Twenty-first Amendment to the Constitution, Prohibition's legacy has remained in statutes and on dockets across the nation. State statutes codifying the powers believed to be granted to the states by the Amendment's second clause, which has long been interpreted as carving a niche out of the Commerce Clause for state regulation of alcohol, have repeatedly been challenged as unconstitutional by interested parties seeking to unburden the interstate commerce of wine and liquor. A recent spate of such cases has arisen largely due to increasing interest in national wine sales over the Internet. These cases, which have been winding their way through several judicial circuits over the last several years, have created a legal conflict that the Supreme Court must resolve. The Court has heeded the call to clarify the placement of the line dividing permissible state regulation and unconstitutional encroachment on interstate commerce, and it should narrowly construe section two of the Twenty-first Amendment, as has been its trend in recent years, to foster more vigorous interstate commerce, in line with other industries in this age of e-commerce. Show less