UC Irvine Law Review

Copyrights and patents are differently structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as a complete defense to claims of infringement while patent law does not. This distinction entails that the two legal systems differ in their effects on the “intellectual commons,” or what exactly they give to rights-holders and take away from the rest of the world. It also entails that Seana Shiffrin’s seminal challenge to Lockean theories of intellectual property—arguably the most significant philosophical exploration of intellectual property so far, but which fails to distinguish between these two areas of law—is a success as to patents but not as to copyrights. Disentangling this and other distinctions in copyrights and patents within the Lockean framework, as well as between tangible and intellectual property generally, this Article outlines a number of possible implications for intellectual property doctrine. Specifically, it identifies revisionary implications for copyright required by the Lockean framework in order to better protect the intellectual commons, as well as for the copyright/patent division of labor if the two legal systems have distinct theoretical grounds. The Article thereby uses the Lockean framework to call attention to intellectual property’s underexplored philosophical complexity, as well as its doctrinal stakes, so that we begin considering it more carefully than it has yet been.

Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.

As streaming music platforms continue to siphon off listeners from analog radio, a new form of payola has emerged. In this new streaming payola, musicians and labels simply shift their payments from radio to streaming music platforms like Spotify, YouTube, TikTok, and Instagram. Instead of going to DJs, payments (or their equivalents) go to platforms, third-party playlisters, and influencers who can help promote a song by directing audiences toward it. Because online platforms do not fall under the Federal Communications Commission’s (FCC’s) jurisdiction, streaming pay-for-play is not currently regulated at the federal level, although some of it may be subject to state advertising disclosure laws.

In this Article, we describe the history and regulation of traditional forms of pay-for-play and explain how streaming payola practices differ. Our account is based, in substantive part, on a novel series of qualitative interviews with music industry professionals. Our analysis finds the normative case for regulating the most common form of streaming payola lacking: contrary to conventional wisdom, we show that streaming pay-for-play paid to third parties, whether disclosed or not, likely causes little to no harm to consumers and may even help independent artists gain access to a broader audience. The case of “reverse payola,” in which a platform itself offers promotion in exchange for paying out a lower-than-market royalty rate, is potentially more concerning. Given this state of affairs, regulators should proceed with caution to preserve the potential advantages afforded by streaming payola while avoiding further exacerbating extant inequalities and anticompetitive concerns in the music industry.

The First Amendment allows a business to sue its competitors even if the result of the suit would destroy them and lessen competition. It should not, however, protect a lawsuit that is designed primarily to inflict harm that is collateral to the proceedings. Unfortunately, courts have no solution for the case that simultaneously achieves both goals. As a result, they routinely fail to distinguish legitimate lawsuits from anticompetitive shams.

Sophisticated businesses are weaponizing litigation to inflict harm on their competitors and being rewarded with antitrust petitioning immunity thanks to the Noerr-Pennington doctrine. After decades of divergence between the courts and economists, the doctrine’s sham exception has been outsmarted. Economic analysis proves that the sham exception is woefully underinclusive and that more complex predatory suits are being inappropriately immunized. The Third Circuit’s recent AbbVie decision highlights how the existing sham standard sometimes forces courts into anticompetitive outcomes. My proposal is an aggressive, economically robust solution to properly and fairly prosecute predatory litigation.

This Article intervenes in the debate concerning the conflict between religious liberties and LGBTQ rights. Strictly focusing on the market, it makes three salient contributions. First, it reveals the appearance of a preemptive legal strategy that has started to generate unprecedented jurisprudence in lower courts. This latest shift is the peak of an ecopolitical practice called “market evangelism,” which the Article defines as the organized project that uses market activities, entities, and tools to evangelize society by excluding LGBTQ parties from the marketplace. Second, the Article adds to the current understanding of the harm that market evangelism inflicts. It depicts the recent concerted efforts to conceal the damage and explains market evangelism as an intentional effort to humiliate LGBTQ people, causing intense and enduring emotional harm that spreads from LGBTQ individuals to their entire community. Third, the Article proposes an original resolution particularly tailored to the market. It argues that business activity that relies on corporations and contracts must include a duty to serve all—an obligation that flows from what the Article conceptualizes and coins as “market citizenship.” Significantly, the proposal goes beyond adding strong arguments for the necessary passing of the Equality Act. It further includes a novel call to utilize private law, namely corporate law and contract law, to bar market evangelism and secure full market citizenship for all.

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article examines that question in depth, focusing specifically on the availability of meaningful alternatives for detained noncitizens. The Article analyzes challenges for noncitizens in bringing civil rights actions under Section 1983 or Bivens, tort actions under the Federal Tort Claims Act and state tort laws, and actions for injunctive relief directly under the Fifth Amendment and under the Administrative Procedure Act. By demonstrating that meaningful alternatives to habeas are often illusory for detained noncitizens, the Article argues that courts should err on the side of exercising habeas jurisdiction instead of making cursory conclusions that alternative remedies can be pursued.

This Article examines the paradoxical world of Article V—the amending power of the Constitution—in light of the recent ratification of the Equal Rights Amendment (ERA). It explores the question of whether Article V issues are justiciable, what role the federal and state courts play in determining Article V procedures, and who has the jurisdiction to evaluate the legal sufficiency of state ratifications. This is a confounding area of law, and with a few judicial precedents, some textualism and originalism arguments, and recourse to logic and scholarship, I conclude that the ERA is validly the Twenty-Eighth Amendment. I provide a detailed analysis of the congressional deadline and rescission issues that are currently before the courts and explore the unique role of the states in exercising their Article V powers to effect constitutional change.

Traditionally, antitrust law has served as both deterrent against and remedy for the monopolistic behavior known as patent holdup. Yet those who profit from patent holdup not only deny its existence but also until very recently wielded an enticing critique of the role of antitrust law in its deterrence—namely, that antitrust law (1) disincentivizes technological innovation and (2) incentivizes infringement.

After exploring patent holdup and why the modern and historical goals of antitrust law are well suited to combatting it, this Note provides direct and circumstantial evidence of the existence of patent holdup as a real-world problem. It also looks at how a sociopolitical power imbalance at work from 2017 until 2021 bolstered attempts to immunize standard-essential patents from antitrust scrutiny. Next, it covers why contract law alone is insufficient to remedy or deter patent holdup. Additionally, this Note debunks the misguided admonition that innovation will be deterred by antitrust scrutiny. Such admonition is premised on the notions that unqualified patent rights, such as the right to maximize prices and the right to exclude others from practicing one’s patent, are necessary incentives for innovation and that antitrust enforcement suppresses these incentives. This Note ends with a realistic view of the role of injunctions in the context of standard-essential patents and the conclusion that a recent governmental policy shift towards continuing to allow firms to seek injunctions while preserving the role of antitrust law is the only sensible approach to take.

This Note presents the first interdisciplinary scholarship analyzing the depiction of domestic violence in commercial feature film as a means of understanding the legal rights and remedies afforded survivors. I trace domestic violence law across various cultural movements and filmmaking stages, demonstrating that “reel-life” domestic violence reflects and informs the legal remedies afforded or withheld from “real-life” domestic violence survivors. Since the 2000s, independent films have depicted more accurate representations of domestic violence, promoting restorative justice policies that hold the most promise for survivors. Ultimately, these reflections call Hollywood to action. After all, film—unlike the American legal system—has transformative power, borne of its unique ability to transport viewers from physical reality, force audiences to question expectations, reshape attitudes, and envision a world different from—and undeniably better than—existing legal precedent affords.