UCLA Entertainment Law Review

[No abstract]

[No abstract]

As home to that fictional piece of real estate known as Hollywood,

the Ninth Circuit has dealt with the copyright law issue of substantial

similarity more than any other jurisdiction, yet it has not developed

useful principles for analyzing it. This article examines the history of

the Ninth Circuit's two-step test for substantial similarity in literary infringement

cases, showing how a quirk in the evolution of the test has

created a confusing and ineffectual body of law on the subject. The article

argues that the courts have underestimated the complexity of the

issue and have given too much credit to their own judgment, unaided

by expert input. The absence of a genuine understanding of the issue

has led courts to look for substantial similarity where it cannot be

found: in the individual elements of literary works. The article presents

a proposed rule to re-direct the court's inquiry from the individual

elements of the work, where copyright protection cannot be found,

to the artistic structure of the work, where it must be found if it exists at

all.

In Capitol Records v. ReDigi, the District Court for the Southern

District of New York ruled that the first sale doctrine does not apply

when consumers resell copyrighted goods by digital distribution, even

if they use "forward-and-delete" software that ensures that the seller's

copy is deleted during the transaction. This ruling hinged on the

court's interpretation of the word "particular" in § 109 of the Copyright

Act. The court reasoned that when copyrighted music is downloaded,

the specific location on the disk to which it is downloaded is a

"phonorecord." According to the court, a digital copy is made

anywhere else constitutes a reproduction for the purposes of copyright

infringement. Because it is impossible for that physical piece of the

disk to be transferred via digital transmission, and every digital

transmission thus necessarily requires a reproduction, there can be no

first sale protection for the distribution of digital goods.

Because of the metaphysical differences between physical and digital

media, this comment argues that the fair use doctrine cannot be applied

in a media-neutral fashion. Digital goods cannot be moved from place

to place in the same way that physical goods can be moved, even

though the use of forward-and-delete technology (such as the kind

ReDigi utilizes) can cause the functional result to be the same: one

copy before the transmission, one copy after the transmission. The

court's strict demand that the physical substrate where a copyrighted

work is fixed must remain identical in order to be considered the same

"particular" copy (and thus eligible for first sale protection) is at odds

with earlier courts' rulings that repaired and restored works are eligible

for first sale protection. The court's demand is also at odds with its

own conclusion that iPods and other mobile devices containing music

can be legally resold. These inconsistencies demonstrate that the

phrase "particular copy or phonorecord" in 17 U.S.C. § 109 (which

codifies the first sale doctrine) makes the statute unable to account for

digital media and thus unable to apply in a media-neutral fashion. A

specific carve-out for digital media is necessary for the law to keep up

with the development of technology. Such a change is preferable because

media-neutral application of the first sale doctrine permits a secondary

market for digital goods to exist, which better serves both ends

of copyright-the instrumental goal of rewarding authors and the ultimate

goal of providing the public access to creative works-by promoting

economic efficiency.

California has a longstanding issue with the Talent Agency Act, which

states that only a licensed agent may seek out, or procure, employment

for an artist. The TAA has caused major headaches for Hollywood's

personal managers, who find their contracts with artists voided for engaging

in even minor acts of procurement. Many commentators initially

believed that Marathon Entertainment Inc. v. Blasi solved the dilemma.

However, it turns out that the Labor Commissioner, who has

exclusive jurisdiction to hear claims arising under the TAA, continues

to void contracts between California's personal managers and their clients

at an alarming rate. Personal managers disapprove of the Labor

Commissioner's failure to employ the doctrine of severability, as advised

by the Blasi court, to these contracts. In response, the personal

managers recently filed a challenge to the constitutionality of the TAA.

The United States District Court for the Central District of California,

however, dismissed the claim and upheld the constitutionality of the

controversial Act. Because this debate spans over one hundred years,

and the constitutional challenge was unsuccessful, the authors of this

comment advocate a two-fold approach to correcting the dilemma: (1)

place the burden of production in Labor Commissioner hearings on the

artist to prove that the entire manager contract should be voided, and

(2) assess statutory civil penalties to those personal managers who willfully

violate the TAA by procuring employment. The authors of this

Comment argue that the California legislature should consider applying

this approach because it is not only easily adaptable, but also in line

with the true purpose of the TAA.

When Congress enacted Section 230 of the Communications

Decency Act, it made an implicit deal with every Interactive Computer

Service (ICS): at least attempt to clean your website of defamatory or

otherwise illegal third-party content in exchange for immunity from

vicarious liability. However, the majority of courts applying Section

230 have since construed this aptly-titled "good Samaritan" law as a

grant of blanket ICS immunity, offering protection regardless of

whether an ICS actually regulates or edits its website. This piece

analyzes an aparent split among the circuit courts, and explains that

blanket ICS immunity does not square with Congress' underlying

intent of encouraging ICS self-regulation. In the end, this article

highlights four potential scenarios in which an ICS could lose its

Section 230 "good Samaritan" immunity status when it does not act

like a "good Samaritan."