Author Archive for alfred-yen

Saving “Peyton Manning”

posted by Alfred Yen

File this one under “Thank goodness for the courts!”. Yahoo reports that a Judge in Chicago stopped a Bears fan from changing his legal name to “Peyton Manning.” The fan in question, Scott Wiese, lost a bet on the Super Bowl. If the Bears lost to the Colts, Wiese promised he’d change his name to “Peyton Manning.” The judge stopped him on grounds it might be confusing or invade Manning’s privacy.

  March 28, 2007 at 9:00 pm   Posted in: Culture, Intellectual Property, Tort Law   Print This Post   No Comments

Professor Suit Against Joyce Estate Settled

posted by Alfred Yen

The highly publicized suit by Stanford Professor Carol Loeb Schloss against the estate of James Joyce has been settled. The Yahoo!/Reuters story suggests that the settlement was reached on terms reasonably favorable to Schloss. However, although I congratulate her and those who helped her bring the suit, I’m a little disappointed that law wasn’t made. Professors need concrete guidance about the extent to which scholarly quotation constitutes infringement, and the lack of final judgment preserves the ambiguity that copyright holders sometimes exploit to stifle criticism they don’t like.

  March 25, 2007 at 7:31 am   Posted in: Culture, Intellectual Property   Print This Post   2 Comments

Pet Food Scare

posted by Alfred Yen

Pet owners have understandably begun suing Menu Foods over the deaths of pets from tainted pet food. Rat poison has apparently been discovered in the food, but it’s a mystery how the poison got there. Aminopterin, the poison in question, cannot be used for killing rats in the U.S. The FDA had apparently been investigating whether wheat gluten in the food had been contaminated, but spraying rat poison on wheat doesn’t make a lot of sense.

So, taking license to speculate, let’s assume that a good explantion is never found. What happens to these lawsuits? Will this become the res ipsa case that replaces Byrne v. Boadle (the man hit on the head by a barrel of flour that apparently fell out of a building)? Or, will this case test whether (or come to exemplify that) strict products liability is (or is not) truly strict? If we conclude the defendant wasn’t negligent, the only possible action will be strict liability. Recent case law seems to have pushed strict products liability into a form of negligence, but will courts really deny pet owners recovery?

  March 24, 2007 at 7:31 am   Posted in: Tort Law   Print This Post   6 Comments

Constructing an IP Curriculum

posted by Alfred Yen

A major challenge for law schools working with limited resources is the construction of IP course sequences. The three primary courses, patent, copyright, and trademark have each grown to the point that professors talk about making them 4 credits instead of 3. At the same time, there is continued student demand for an IP Survey course, usually of 4 credits, which is valuable to those unfamiliar with IP or who take it as part of a larger corporate law curriculum.

Here are some possibilities for how to structure things. First, have everyone start with an IP Survey course, making it a prerequisite for advanced courses in copyright, patent, and trademark. The problem here is that “serious” IP-focused students find it inefficient and would rather start off with more in-depth treatment, and there is also the inefficienty of unavoidable overlap (e.g. everyone reads certain cases in each course).

Second, have separate tracks. Students can start with IP Survey, or they can start with patent, copyright, and trademark. If one assumes that students who take IP Survey won’t take the other three, then concerns about overlap disappear. However, if someone who takes IP Survey decides to pursue IP as a career, they wind up with a lot of overlap between the two courses, raising an argument that the person who takes IP Survey before the other classes has an unfair advantage (something I’m not too sure about) or should get one less credit for the other courses.

At BC Law, we presently use the first solution, but I’m not entirely satisfied with it. What do others do?

  March 20, 2007 at 11:18 am   Posted in: Intellectual Property, Law School (Teaching)   Print This Post   10 Comments

You Can’t Make This Stuff Up

posted by Alfred Yen

Just up on Yahoo!: One of the judges in the Anna Nicole Smith case has apparently been cited for smoking marijuana in a city park. I won’t provide any flip comments, but I don’t think readers will have any trouble.

  March 20, 2007 at 11:11 am   Posted in: Culture, Humor   Print This Post   One Comment

March Madness, Part 3

posted by Alfred Yen

Well, after having been diverted by the recent storm and its effect on travel plans, I returned home yesterday to see the sweet 16 in the NCAA tournament has been determined. It reminded me of an idle thought I’ve had in response to the suggestion often made that NCAA athletes ought to be paid (let’s leave aside for now whether we even care if they’re really enrolled in school). How much would they get paid?

My idle (and somewhat abstract) thought is that it ought to be theoretically possible to estimate the size of these salaries by measuring the legal and illegal incentives given to athletes now, plus/minus a fudge factor for risks incurred by participants because “paying” athletes in certain forms is illegal.

For example, if NCAA institutions can’t presently pay athletes, they can provide them with things like fancy special dorms, special charter flights, nice hotels, swank locker rooms and training facilities, tuition (of course), etc. Additionally, boosters surreptitiously give athletes summer jobs, gifts/travel/housing to family members (see reports about Reggie Bush, whose family apparently got more than $100k in beneifts etc). Together, these roughly total what it takes to get an athlete to play for a particular college.

If paying athletes above board became legal, is there any reason to think that this isn’t a crude approximation of what athlete salaries will be? Perhaps it also suggests that the few “big time” stars will get a lot, while run of the mill squad players will get rather little?

  March 19, 2007 at 4:30 pm   Posted in: Culture, Economic Analysis of Law   Print This Post   One Comment

Viacom sues YouTube

posted by Alfred Yen

Just up on Yahoo!….Viacom sues YouTube for $1 billion.

I have not seen the complaint for the suit, so I don’t know whether the basis for the suit is contributory infringement, inducement, or some direct infringement theory. The most obvious cause of action would be contributory infringement, but it isn’t hard to find stories that YouTube follows DMCA notice and takedown provisions. This makes me think that YouTube is inside the DMCA safe harbor and unlikely to lose. But perhaps there’s something in the complaint that will make the suit stick.

In the meantime, I imagine that the suit is actually a way for Viacom to “scream and yell” at YouTube, letting them know they want some kind of licensing deal for their content. Any speculation (or informed insight) on what the eventual settlement will be?

  March 13, 2007 at 12:06 pm   Posted in: Intellectual Property, Technology   Print This Post   2 Comments

March Madness, part 2

posted by Alfred Yen

A propos of some of the comments made in response to my earlier March Madness post, readers may be interested in the recent Graduation Rate Study of NCAA Div. 1 Tournament teams, authored by Dr. Richard Lapchick of the Institute for Diversity and Ethics in Sport.

In a nutshell, athlete graduation rates aren’t very good at some of the schools (but not all) sending teams to March Madness. Two notable high seeds posted scores that look pretty bad. Number 1 seed Ohio State graduated only 10% of its players in a 6 year span, and the University of Oregon a whopping 0%. That isn’t a typo. It’s “zero.” At the other end of the scale, Holy Cross (86%) and Butler (82%) led the honor role. Lapchick also lamented a significant disparity in the graduation rates of whites and African-Americans.

Granted, graduation rates don’t tell you everything about a program’s commitment to the student-athlete, but it’s striking how low some of the graduation rates are. Hmmm….now maybe this will lead to a new way to fill out those brackets….

  March 12, 2007 at 9:22 pm   Posted in: Culture, Race   Print This Post   One Comment

March Madness

posted by Alfred Yen

Mike Jarvis, former men’s basketball coach at Boston University, St. John’s, and George Washington, writes in his Yahoo! column about the academic costs of division 1 basketball, particularly at tournament time. He recounts his GW team’s run in the NCAA tournament and the classes his players had to miss, along with the assistance provided by the univerisity (tutors, advisers, and administrators) to ameliorate the problem. He candidly admits that these measures were not full compensation for missed class time. He suggests having internet connections to live classes and class archives as solutions to the problem. He then laments that measures like this will not be taken because of money: “The rationale usually given is that it will cost too much, and if we do it for the men, then we have to do it for the women. What a great idea. Why not do it for both?”

I hope that colleges would take steps like this. It doesn’t seem that hard or costly. It would be really bad if colleges wouldn’t do it because they don’t want to do it for women, too.

That having been said, Jarvis points to money as the problem in the wrong way. The problem isn’t the cost of helping athletes keep up with their classes. The problem is the desire of the NCAA and its member institutions to earn money from weekday TV broadcasts. According to cnn.com, CBS pays about $545 million per year to televise the NCAA tournament games. That’s serious money, enough to pull some excellent academic institutions into athletic schedules that not only take athletes away from class, but also make it effectively impossible to study certain subjects (particularly lab science classes).

Real remedies for this problem go way beyond the Internet solution proposed by Jarvis. It would be naive to think that the NCAA and its members will give up this cash flow anytime soon, so athletes will continue to miss classes and find it impossible to take others. College athletes therefore ought to get extra guaranteed years of scholarship assistance (including room and board) after eligibility expires so they can take classes that were impossible during their playing years. Alternatively, they could receive money that could be spent on tuition (or something else – maybe grad school?) after their playing days. Sports Illustrated proposed an athletes’ bill of rights in a recent story on college sports (particularly Ohio State).

I’m not optimistic that reforms like this will happen soon. For all the good that they do, the NCAA and its member institutions seem bent on growing the commercial enterprise of college sports. As self-professed educators first, they ought to do more to ensure the academic success of the talent that makes all that money possible.

  March 9, 2007 at 7:02 am   Posted in: Culture, Current Events, Education   Print This Post   4 Comments

A One Sport Only Rule

posted by Alfred Yen

A story that has stuck in my mind is the recent misfortune of a swimmer/hockey player at Latin Academy in Boston. According to the Boston Globe, the freshman athlete competed in both swimming and hocky, thereby violating a Massachusetts Interscholastic Athletic Association rule restricting students to one sport per season. The penalty is loss of eligibility for the season and forfeiture of all games in which the athlete played. Latin Academy and the athlete appear to have suffered those penalties.

I am not ordinarily someone who thinks that penalties against athletes are too light. Star athletes get a lot of preferential treatment in our society. But this one struck me as quite a pity. The young woman in question is a freshman and had no idea she was violating a rule. Her school missed it.

According to an MIAA spokesperson, the rule exists to protect athletes from injury and to “allow adequate time for academics.” Fair enough. However, if the MIAA were really concerned about sports taking up too much time, they’d have rules about how many hours a week students can spend in practice for a single sport. Or, perhaps Massachusetts should have a limit on time spent for ANY extracurricular school related activity. They presumably don’t stop children from playing in both the school musical and a sports team, and the hours spent could be comparable. And, of course, if the student had been a figure skater, she could easily have spent more hours doing that while playing hockey. Indeed, if she competes for a swim club, she would spend the same amount of time training even though she didn’t swim for her school team.

The partial disconnect between the rule and its stated purpose makes me wonder if there aren’t other reasons for the rule that better justify it. For example, the limitation of one sport per season preserves roster spots for other students to participate.

In the end, I don’t know if I really think the outcome here was a gross miscarriage of justice, but I do think the young woman and her school suffered a pretty harsh penalty for violating a rule that seems not to serve its stated purpose too well. Quick perusal of the MIAA rules indicates that the suffered penalties are roughly the same (ineligibility and forfeiture of games) as if she had taken money to compete. Anyway, it seems to me that rethinking of this rule and/or its penalties is warranted.

  March 8, 2007 at 8:42 am   Posted in: Culture, Education   Print This Post   4 Comments

Justice Clarence Thomas Speaks in Business Week Online

posted by Alfred Yen

Business Week Online has published excerpts of an exclusive interview with Justice Thomas. Interesting reading!

  March 7, 2007 at 2:14 pm   Posted in: Race, Supreme Court   Print This Post   One Comment

Microsoft, Google, and Copyright Scofflaws

posted by Alfred Yen

I saw in Michael Geist’s BNA newsletter that Tom Rubin, Microsoft’s Associate General Counsel, will accuse Google of having a “cavalier” attitude towards copyright in a speech to the Association of American Publishers. FT.com has a preview of the speech, and WSJ online has the text available to subscribers. I’ve only the read the FT.com preview (I don’t subscribe to wsj.com), but I’m curious how far Mr. Rubin’s speech will go to address the problem of online piracy.

Rubin describes Google as a copyright scofflaw, saying ““companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”. Rubin will apparently try to distinguish Microsoft from Google by offering to cooperate with content producers to eliminate piracy.

I wonder how far Microsoft is prepared to go in eliminating piracy from the online sites like YouTube. I went to Microsoft’s YouTube competitor Soapbox, and put in searches for “Mariah Carey” and “Ice Age.” Both searches turned up what I presume content providers consider infringement. If Microsoft is offering to police its site for infringement (presumably the behavior most respectful of copyright), they’ve obviously done a poor job. If they’re not prepared to go that far, then they must think that there is some less aggressive behavior that is a reasonable, appropriate response to the problem of user piracy. I hope and would very much like to see what Mr. Rubin’s company thinks is the right thing for sites like Soapbox to do. If Microsoft is not prepared to do everything content creators demand, it has to articulate a theory of what their obligation is. Otherwise, it looks like Microsoft is simply criticizing its more commercially successful rival.

  March 6, 2007 at 9:35 am   Posted in: DRM, Google & Search Engines, Intellectual Property, Technology   Print This Post   2 Comments

Stanford and Cal Cooperate over Big Game

posted by Alfred Yen

As a loyal Stanford alum, I don’t think I ever thought I’d see the day where Stanford and Cal would link arms over The Big Game. Thank goodness for the NFL, which has applied for a trademark on “The Big Game,” a title that has been applied for many decades to the annual football game between Stanford and Cal.

I’m hardly the first to think that the NFL’s behavior is ill-advised and heavy handed. A quick Google search turns up blog after blog making fun of the NFL’s behavior. That having been said, I’m curious…..Is there anyone other than NFL counsel who’s out there supporting this behavior or the asked-for result?

The NFL’s explanation is that they want to stop people from piggy-backing on the goodwill of the Super Bowl — you know, selling TV’s for “your big Super Bowl party.” In the story linked to above, the NFL says it sells sponsorship rights to Samsung, and suggests that the value of those rights would dissipate if they didn’t get the trademark. I’m a little surprised that someone isn’t defending this outcome as “correct” because it allows internalization of all social value from the Super Bowl to the NFL, thereby giving the NFL the proper market signal to invest in putting on its annual extravaganza. Perhaps I’ve missed it? Heaven knows I don’t read the whole blogosphere. Or, has the NFL taken us past the limits of the “internalize all externalities” policy?

  March 5, 2007 at 8:36 pm   Posted in: Advertising, Culture, Economic Analysis of Law, Intellectual Property   Print This Post   2 Comments

The Professor Exception and Work Made for Hire

posted by Alfred Yen

A minor puzzle in copyright, but one of interest to faculty, is the continuing vitality of the so-called “professor exception” to the work made for hire rule. In a nutshell, the 1976 Copyright Act gives copyright to the employer for any work prepared by an employee within the scope of his or her employment. Traditionally, professors have retained copyright to their works – particularly their scholarly books and articles. But, if professors are employees of universities and they are expected to write, how does this traditional retention of copyright survive?

I am wondering if the answer lies in a nuanced understanding of the agency test promulgated by the Supreme Court in CCNV v. Reid. In particular, no one considers a professor the agent of her university when writing scholarship. If I say something outrageous in one my articles, people do not think that I speak on behalf of Boston College, nor would anyone expect to hold the university responsible for what I say. Thus, while a professor is an employee of the university in a payroll sense, he is not the university’s agent for purposes of the work made for hire doctrine because he does not write as the university’s agent.

Contrast this with how people would understand things if I were to say something outrageous in an exam I give to my students, or if I were to act inappropriately in class. In those situations, I think people would correctly understand that I am acting on Boston College’s behalf. If I committed a tort against students in those contexts (intentional infliction of emotional distress?), students would reasonably expect recourse against the university. However, to make the point again, people do not expect recourse against the university if I libel someone in my articles.

It occurs to me that this distinction may help sort out some of the tricky issues surrounding materials authored by professors for distance learning or other web-related content. In those cases (perhaps material for a branded distance learning course) where the professor is truly creating material on behalf of the university, copyright goes to the university under the agency test. In other cases where the professor writes for himself, copyright stays with the professor. Of course, contracts or other employment policies could alter this outcome. Thoughts?

  March 5, 2007 at 11:22 am   Posted in: Intellectual Property   Print This Post   5 Comments

Greetings!

posted by Alfred Yen

I’d like to take a quick moment to thank Dan for inviting me to guest blog. Readers, please bear with me, as I’m a rookie blogger. Nevertheless, I hope to take advantage of the freedom provide by this platform to muse (speculate?) about a wider range of subjects than I’ve published about as an academic. I think it’s going to be a lot of fun.

  March 5, 2007 at 7:43 am   Posted in: Administrative Announcements   Print This Post   2 Comments

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