Category: Notes

The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation – Note by Jordan Raphael

From Volume 80, Number 2 (January 2007)
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Smokers who plan to smoke in public probably should avoid doing so in Calabasas, California. On March 17, 2006, the city’s smoking ban – the most restrictive in the nation – went into effect, prohibiting smoking virtually anywhere that another person could be exposed to secondhand smoke. The designated nonsmoking areas include bars, restaurants, stadiums, parks, and even streets and sidewalks. The Calabasas ordinance is enforceable by the city attorney or, alternatively, by “private enforcers,” private individuals filing civil suits on behalf of themselves or the general public. To avoid the various penalties that the ordinance imposes, smokers must seek out special smokers’ outposts or light up at least twenty feet away from nonsmokers or others who might potentially be offended by secondhand smoke.

Over the past thirty years, smoking-regulation advocates have fought to curb secondhand smoke, or environmental tobacco smoke (“ETS”), in a variety of settings where it imposes health risks on nonsmokers. Early efforts targeted ETS in workplaces and airplanes, where it was difficult – and in some cases, impossible – for nonsmokers to avoid exposure. Buoyed by victories in these settings and a concomitant shift in public norms regarding the propriety of smoking, advocates agitated for and won smoking restrictions in bars, restaurants, and other public locations. Smoking-regulation forces were especially successful at the local level, pushing through 3000 county and city anti-smoking laws. In California, which serves as a national test bed for anti-smoking legislation, local ETS ordinances tend to be stricter and more comprehensive than those imposed at the state level. The Calabasas ordinance follows this paradigm; by outlawing smoking in public outdoor areas, it goes further than any state law – or any local law – and perhaps even beyond what is justified by the scientific findings on ETS. The ordinance is the logical next step in the progression of ETS legislation, and it demonstrates how strongly rooted the notion that nonsmokers have a right to be free of secondhand smoke has become in our culture. The Calabasas secondhand smoke ordinance, while applicable to only a 13.2-square-mile patch of the San Fernando Valley, is in fact an important model for other states, counties, and cities that would like to enact smoking bans or to strengthen those bans that they currently have.

 

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To Agree, or Not to Agree: That Is the Question when Evaluating the Best Mode Preferences of Joint Inventors After Pannu v. Iolab Corp. – Note by Melissa N. McDonough

From Volume 80, Number 1 (November 2006)
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One of the many requirements for patentability is that the inventor must disclose the “best mode” of the invention. This requirement is set out in the first paragraph of 35 U.S.C. § 112, which states that the patent’s specification “shall set forth the best mode contemplated by the inventor of carrying out his invention.” Based on the statutory language, the test for whether the best mode has been properly disclosed has a subjective element – whether or not the inventor believed that there was a best way to practice the invention at the time the patent application was filed. If the inventor believed that a certain method of practicing the invention was better than other methods, the inventor had to disclose that mode. If the inventor did not have a preferred method of practicing the invention, then there was no best mode to be disclosed.

At first, the test seems fairly straightforward. An inventor either had a preferred mode at the time of filing, or the inventor did not. The test becomes far more complicated, however, when the involvement of more than one inventor requires the consideration of multiple opinions. For example, what happens if there are two inventors and they disagree as to what is the best mode? Whose view controls and which mode or modes must be disclosed? In a case of joint inventorship where each inventor works on different parts of an invention, what happens when an inventor who did not work on a certain part prefers a best mode for that part, and that preference is not shared by the person who actually invented it? If a joint inventor is accidentally omitted from a patent, and the omitted inventor had a best mode preference that was not disclosed at the time of the application’s filing, should the patent be invalidated for failure to disclose that mode when the omitted inventor is added to the patent later? These are all questions that are critical to best mode analysis, as patent infringers currently are able to use the best mode requirement as a weapon to invalidate patents in litigation. And in order to answer these questions effectively, it is increasingly important to understand how the ease of establishing joint inventorship under the current statutory framework affects best mode analysis. Unfortunately, the Federal Circuit neglected to consider the impact of liberalized joint inventorship principles in Pannu v. Iolab Corp., where, in a footnote in dicta near the end of the opinion, the court appeared to set a standard that required any joint inventor who has a best mode preference for any claim to disclose it.

 

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A Little Help with Sharing: A Mandatory Licensing Proposal to Resolve the Unanswered Questions Surrounding Peer-to-Peer Liability for Contributory Copyright Infringement in the Wake of Grokster – Note by Julie Zankel

From Volume 80, Number 1 (November 2006)
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In June 2005, the Supreme Court held that the peer-to-peer (“P2P”) networks Grokster and Streamcast1 could be held liable for contributory copyright infringement upon a showing that network administrators clearly expressed support for or took other affirmative steps to encourage infringement. In the Supreme Court’s only prior holding on the issue of secondary liability, Sony Corp. of America v. Universal City Studios, Inc., the Court established that a manufacturer could not be held liable for contributory infringement if the device was “capable of substantial noninfringing uses.” In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Court focused on the networks’ culpable conduct-relying on an inducement theory-and came to a conclusion that would allow the lower court to find Grokster liable on remand without resolving the current circuit split on the issue4 or rethinking or reinterpreting its prior holding in Sony. This ruling essentially overturned the Ninth Circuit’s holding that Grokster was not liable for its users’ infringement merely by virtue of the fact that the system also had substantial noninfringing uses. The Grokster Court instead held that the Sony doctrine did not foreclose the possibility that an actor could be liable for contributory infringement, even if the device is capable of substantial noninfringing uses, when there is evidence the actor encouraged and induced illegal use of the product.

Thus, while it is now clear that a P2P network that encourages infringing uses of its product can be liable for contributory copyright infringement, the extent of liability for a network that does not actively induce users to infringe copyrights where the system is capable of both infringing and noninfringing uses remains uncertain. Further, the Grokster decision is not instructive as to what exactly inducement entails. While the Court was adamant that Grokster’s actions amounted to inducement in the present case, it gave no explanation regarding what actions a network would have to take to be considered “intentionally inducing… infringement,” or alternatively what a network would have to do to avoid inducing infringement on a system capable of both infringing and noninfringing uses. This lack of clarity is of particular importance considering the growing popularity of these types of networks. P2P networks, in particular, are increasingly being used by universities, government agencies, corporations, libraries, and other organizations. Exchange over P2P networks is not limited to music (the digital files at issue in Grokster), but includes motion pictures, novels, videogames, television programs, and photographs.8 In addition, as digital technology rapidly advances, it will be feasible to disseminate more and more types of copyrighted and uncopyrighted works through P2P networks “with ever greater speed and efficiency.”

Further, considering the amount of money that is at stake (Grokster, for example, agreed to “pay up to $50 million in damages”), it is extremely important that P2P networks have some sense of their potential liability in a case where no inducement exists, and what they could and should do to avoid such liability. The Grokster opinion is not instructive on this point, and this is exactly where the two concurring opinions diverge. Justice Ginsburg’s concurring opinion seems to imply that, had there been no “inducement,” a network such as Grokster would still fail the Sony test. On the other hand, Justice Breyer’s concurrence maintains that without culpable intent, a network such as Grokster should not be liable for contributory copyright infringement.

Prior to the Grokster case, both the Ninth Circuit and the Seventh Circuit confronted contributory copyright liability issues in A&M Records, Inc. v. Napster, Inc. and In re Aimster Copyright Litigation, respectively. Although in both cases the defendants were found liable for the infringement of their users, due to the unclear standard set forth in Sony, these two courts came to divergent conclusions in their analysis with respect to the circumstances under which contributory liability should and could be imposed. While the Ninth Circuit focused on whether the defendant had actual or constructive knowledge of the infringement and subsequently failed to act to curb the infringing activity, the Seventh Circuit concentrated on whether the device was actually used for noninfringing purposes. The Seventh Circuit interpreted Sony to further require that even where noninfringing uses exist, the network provider must demonstrate it would have been disproportionately costly to design the server or monitor the network in a way that would eliminate or reduce the infringing uses in order to escape liability. 

This debate regarding issues surrounding secondary liability is one that must be resolved quickly. Clarification of the Sony rule is necessary to encourage legitimate P2P networks by ensuring that networks are fully informed of the extent of their potential liability. Without a resolution, servers will have no way to determine their liability or know what reasonable steps should be taken to avoid such liability. The Grokster majority avoided this question by basing its decision on an inducement theory-arguing this would enable copyright owners to protect themselves while keeping the Sony rule intact so as not to chill innovation. The lack of guidance in the Grokster decision, however, could itself chill innovation as it will lead P2P network providers to take economically inefficient steps to avoid liability, disallow uses on their servers even though the uses would not infringe and might further education or some other important goal, or completely abandon their networks in favor of something less risky.

This Note will argue that the best way to resolve this conflict is through a mandatory licensing scheme that puts the burden on the content industry rather than the technology provider to track the use of protected works and petition the service provider for a reasonable royalty.

 

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Pacifica is Dead. Long Live Pacifica: Formulating a New Argument Structure to Reserve Government Regulation of Indecent Broadcasts – Note by Joshua B. Gordon

From Volume 79, Number 6 (September 2006)
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At 9:00 PM on April 7, 2003, Fox Broadcasting (“Fox”) aired the penultimate episode of Married by America, a reality television show that allowed the public to select potential spouses for its contestants. Six minutes of the episode detailed the remaining two couples’ bachelor and bachelorette parties, during which strippers attempted to “lure participants into sexual activities.” Of the five million people who watched the broadcast, ninety complaints were filed with the Federal Communications Commission (“FCC” or “Commission”), the government agency that regulates television communications. In October 2004, the FCC determined that the six-minute segment contained explicit and patently offensive depictions of sexual activities. It thus determined that the content was indecent and in violation of federal law. For this violation, the FCC penalized both Fox and 169 Fox affiliates by issuing a Notice of Apparent Liability for $1,183,000 in fines. At the time, this was the largest proposed fine, or “forfeiture,” in FCC history.

 

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(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony – Note by Raymond LaMagna

From Volume 79, Number 6 (September 2006)
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The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.

 

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Waiting for Watergate: The Long Road to FEC Reform – Note by Lauren Eber

From Volume 79, Number 5 (July 2006)
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In a February 2005 press conference about his proposed 527 Reform Act of 2005, Senator John McCain (R-AZ) vehemently expressed his views about the Federal Election Commission: “the Federal Election Commission has failed to do their duty….This is a corrupt organization. And I don’t use the word lightly. We need to reform the Federal Election Commission.” This was not McCain’s first public contribution to the litany of derogatory rhetoric about the FEC, which has been called the “Failure to Enforce Commission,” a “toothless tiger,” “FEC-less,” a “muzzled watchdog,” and “The Little Agency That Can’t.” McCain has previously called the FEC a “rogue agency” and “weak and failing.” But in a comment that is more than just name-calling, McCain gets to the heart of what is really wrong with the FEC: it is “structured by Congress to be slow and ineffective.”

Legislators have a vested interest in keeping the FEC weak and inefficient because they are among the potential targets of enforcement actions. Because reelection is the “dominant goal” of most legislators, they are unlikely to enact legislation contrary to their self-interest unless they perceive that failure to do so would cost them votes. Consequently, a substantial increase in the FEC’s power is unlikely until legislators feel pressure from the public to strengthen campaign finance enforcement. But FEC reform is currently too low on the public’s political agenda to capture politicians’ attention. Not even a major political scandal, like lobbyist Jack Abramoff’s admission that he bribed Republican members of Congress, was enough to alter the public’s apathy toward campaign finance. In fact, a January 2006 Pew Research Center survey found that “[t]he public has been hardly stirred” by the scandal and that “Jack Abramoff’s admission that he bribed members of Congress has sparked little interest.”

 

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Controlling Our Borders Through Enhanced Employer Sanctions – Note by Jeffrey L. Ehrenpreis

From Volume 79, Number 5 (July 2006)
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As a nation built by immigrants, the United States has historically maintained a generally pro-immigration policy. For many Americans, however, the current immigration system appears broken. Proponents of tighter immigration controls often point to the fact that two of the terrorists involved in the attacks on September 11, 2001 received approval of their immigration applications six months after the attacks took place. This oversight proved especially embarrassing to the then Immigration and Naturalization Service (“INS”), evidencing the ease with which a terrorist could enter the United States. With terrorism currently the chief policy concern of the United States, immigration issues play an increasingly important role on the American national security agenda.

 

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Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)
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Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.

 

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