Several recent case studies have explored industries in what Kal Raustiala and Christopher Sprigman have described as intellectual property’s “negative space”: areas in which creation and innovation thrive without significant protection from intellectual property law. These include such diverse industries as fashion, cuisine, magic tricks, stand-up comedy, typefaces, open source software, sports, wikis,
academic science and even roller derby pseudonyms. Most scholarship in the area has focused on case studies of particular industries and social movements that occupy IP’s negative space. This Article looks deeper into the nature of IP’s negative space itself, seeking a unifying theory of what makes a type of work well suited to IP’s negative space. The emerging theory sheds light onto what may make a lack of protection preferable to protection for certain types of works and gives us a new tool for optimizing intellectual property law to promote creation and innovation.
Broadcast journalism’s foundational role of informing and engaging the American public in order to further America’s self-governing democracy is in crisis. Corporate broadcast owners’ efforts to maximize profits and increase advertising revenue during traditional network news and related public affairs programming have led to the closing of many investigative and correspondent television news bureaus and have arguably hastened the devolution of broadcast journalism into a depoliticized spectacle filled with political and celebrity, gossipdriven infotainment.1 Furthermore, as viewers have abdicated their reliance on broadcast journalism as their primary source of political knowledge, they have also disengaged from professional broadcast journalists’ dispassionate, impartial and aspirationally objective method and manner of presentation.2 This Article contends that these definitional shifts in viewer engagement, which serve as underlying challenges to broadcast journalism’s deliberative role, are the symptoms, rather than the root cause of its deliberative peril. These shifts are instead the net effect of long-standing mainstream societal norms and presumptions that led to the narrowing in scope and definition of civic engagement.
Muhammad Ali—arguably the greatest boxer of all time—lay beaten in a hospital bed. Defeated by his former sparring partner, Larry Holmes, Ali was battered and prone: King Arthur run through by Mordred. An aide to Don King, Ali’s long-time promoter, stole into the room with a briefcase. At the time, King owed Ali over $1 million. Inside the briefcase was $50,000 in cash, which Ali— defeated—accepted after signing a release dropping all claims against King. While the Senate’s version of what was to ultimately become the Muhammad Ali Boxing Reform Act (“Ali Act”), referenced only Ali’s “unsurpassed” “career achievements and personal contributions to the sport [of boxing],” it is likely that this shameful episode was present in legislators’ minds when honoring their bill’s revered—yet tragic—eponym.
In 2009, the National Hockey League (“NHL”), National Football League (“NFL”) and National Basketball Association (“NBA”) became the first major North American sports leagues to announce social media restrictions. The major sports leagues have similar social media policies, the broadest of which extends longstanding copyright infringement warnings to social media websites like Facebook and Twitter. The more narrow social media restrictions limit only playby- play uploading by players, personnel and coaches, while the broader restrictions purport to prohibit real-time uploading of play-by-play game approximations by all Internet users. The NFL, which has always barred play-by-play descriptions of games in progress, extended that ban to social media platforms, requesting that social media play-by-play game accounts be time delayed and limited in amount, in order to protect the game coverage of accredited licensees. The leagues’ request that social media platforms not host game time play-by-play approximations raises questions regarding sports leagues’ enforcement of their intellectual property rights. Given that billions of social media users around the globe are able to upload from virtually any public sporting event or broadcast using mobile devices, the sports leagues’ social media policies face issues of enforceability. Contract and property law supply the legal framework for leagues’ authority to control the uploading capabilities of sports arena attendees. Employment law forms the legal backbone of the leagues’ uploading restrictions covering players, coaches, officials and league personnel. Yet, by purporting to extend traditional copyright law to social media sites, and by stating that play-by-play approximations might infringe accredited rights holders, the new restrictions potentially reach millions of independent users. As the sports leagues may face challenges as to whether social media restrictions are legal and enforceable, the leagues might look to copyright law through theories of secondary liability and the Digital Millennium Copyright Act (DMCA). Alternatively, the leagues can look to state law, with claims tailored to navigate around the so-called “hot news” preemption doctrine.
Baseball is widely regarded as America’s pastime. With that designation comes certain expectations from the American public about the integrity of the game. Major League Baseball (“MLB”) has faced challenges to that integrity in the past, including gambling and drug use, but its response has generally been timely and adequate. To the extent these controversies involved illegal activity, the government has stepped in accordingly.
Presently, the sport is mired in a well documented controversy regarding player use of performance enhancing drugs. By and large, the government has not had to police the league itself. This time, however, MLB’s response was slow and insufficient. As a result, each branch of the government got involved. President George W. Bush directly addressed the issue in his State of the Union Address on January 20, 2004, calling on “team owners, union representatives, coaches and players to take the lead, to send the right signal, to get tough and to get rid of steroids now.” On March 17–18, 2005, six players and four executives testified before the House Committee on Government Reform regarding drug use inbaseball. During that same year, members of Congress introduced at least three bills aimed at curbing the drug problem in professional sports. Each bill required all players in the four major professional sports leagues to submit to mandatory uniform testing for performance enhancing drugs (“PEDs”). Meanwhile, federal investigators began targeting an illegal drug ring in Northern California, which subsequently ballooned into protracted litigation. The origin and resolution of United States v. Comprehensive Drug Testing, Inc. is the primary focus of this Note.
In 1998, congressional and public sentiment was set ablaze by the publication of a seemingly esoteric academic article by three previously little-known psychologists. The article, in an American Psychological Association (“APA”) journal, Psychological Bulletin, challenged the “lay belie[f] that child sexual abuse (CSA) causes intense harm” and concluded that the common construct of child sexual abuse was “of questionable scientific validity.” The authors suggested further that psychologists researching child sexuality use different terms, “adultchild sex, a value-neutral term” for “a willing encounter with positive reactions,” reserving “child sexual abuse, a term that implies harm to the individual,” for a nonconsensual experience accompanied by negative feelings. The National
Association for Research and Therapy of Homosexuality (“NARTH”), a group that claims to “help” gays and lesbians rid themselves of “unwanted homosexuality,” was the first to comment. NARTH claimed that the APA was attempting to “normalize pedophiles.” Dr. Laura Schlessinger agreed, and together with NARTH and the conservative organization Family Research Council, prodded Congress to respond. House Majority Whip Tom DeLay (R-Texas) and Dr. Schlessinger appeared at a press conference convened by the Family Research Council, introducing a bill requiring the APA to renounce the findings of the study. A House Resolution condemning the psychologists’ conclusions passed 355 to zero in 1999.8 Looking back on the episode, literary critic Kathryn Bond Stockton comments that “Congress, it would seem, has acted only once to resolve against science: in order to say that children must be harmed.”