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Volume Twenty-Four, Number 2, 2004
TABLE OF CONTENTS ARTICLE Let's Swap Copyright for Code: The Computer Software Disclosure Dichotomy One of the goals of the Copyright Act is to promote the creation of new works by granting public access to existing material while simultaneously providing incentives for authors by granting them a monopoly for their work. This theory is supported by the copyright deposit requirements, which obligate authors to submit a complete copy of the best edition of the work to the Library of Congress in exchange for federal registration. These requirements apply to all types of works submitted for registration, except computer code. Federal copyright protection for computer code is an anomaly because it requires limited disclosure to obtain the same privileges. For various reasons, discussed in this Article, computer code only requires the submission of, in most cases, the first and last twenty-five pages of the document. Thus, in exchange, the creator receives all of the benefits of federal copyright protection, yet society receives nothing. The Article recommends implementing an open source model, an alternative approach for computer software where computer code is published for all users, under the Copyright regime. The author asserts that the open source model is more aligned with the basic premise of the Copyright Act, offering protection to the creator while simultaneously allowing others to build upon the prior knowledge. NOTES & COMMENTS On February 4, 2004 , the Florida Supreme Court was presented with oral arguments in Tyne v. Time Warner Entertainment Co. , which comes on the heels of several high profile right of publicity cases. In Tyne , a former crew member and the surviving family members of individuals killed aboard a fishing vessel caught in a torrential storm sued the producers and distributors of the hit motion picture The Perfect Storm under Florida's convoluted right of publicity statute. Because the United States Supreme Court has yet to completely resolve this controversial area of the law, this case could potentially impact all forms of media. The commercial use at issue in Tyne is the production and distribution of the film itself, which neatly falls into the newsworthy and public interest exceptions found in the Florida statute. This Comment argues that it is both burdensome and unconstitutional for this statute to require filmmakers to obtain the consent of every living person and the descendants of every deceased person that had any connection with a historical event that is depicted in a motion picture. According to the author, the plaintiffs' interpretation of the Florida statute could potentially hinder the production and distribution of many notable docudramas and turn Florida into a hotbed for misappropriation litigation. Therefore, the Florida Supreme Court should give the relevant statutory provisions the pro-First Amendment interpretation that has stood for twenty-three years, looking beyond the defamation arguments and statutory interpretation urged by the plaintiffs in Tyne . 4th and Goal: Maurice Clarett Tackles the NFL Eligibility Rule A pitcher with a 90-MPH fastball can be drafted onto a Major League Baseball team after his senior year of high school. A talented power forward can jump right into the NBA without even stepping foot in a college gymnasium. Even a tennis phenom with a great serve-and-volley game can play professional tennis at the age of 14. So why can't the best running back in college football play in the NFL after his freshman year of college? That is what Maurice Clarett wants to know. In a buried paragraph in the NFL's constitution and by-laws sits the “Special Eligibility” provision, which states that “college players for who at least three full college seasons have elapsed since their high-school graduation” will be eligible for the NFL Draft. On September 23, 2003 , Clarett filed suit against the NFL asking a federal judge to sack the league's Eligibility Rule, alleging that it violates antitrust law. This Comment, written prior to the decision of the Southern District Court of New York, examines the merits of Clarett's claim, the defenses that may be drawn up by the NFL, and the policy rationales in favor of and against this rule. Should the challenged league rule be shielded from antitrust scrutiny? Is the Eligibility Rule reasonable when tested under a rule of reason analysis? What effect will a negative ruling have on the NFL? Furthermore, this Comment includes a Postscript analyzing Judge Shira A. Scheindlin's initial decision to strike down the NFL Eligibility Rule. Was this ruling correct, or does the NFL have compelling arguments to overturn the decision when an appellate court takes a look on “instant replay?” In light of preceding case law and similar rules throughout the sports world, this Comment contends that the present form of the NFL Eligibility Rule is overly restrictive and in violation of antitrust law—thus, Maurice Clarett and many other talented athletes should get the chance to market their labor skills in their chosen profession. Many people want to hear the stories about famous crimes, criminals, and trials. Some famous stories will be told through colorful depictions of the criminals involved, while others may not be told at all due to “Son of Sam” laws, which are state and federally enacted laws that prohibit criminals from profiting off their notoriety through books, movies, and other mediums. Over forty states and the federal government have enacted Son of Sam laws, but no Son of Sam law has been constitutionally upheld. Opponents of Son of Sam laws claim that they violate criminals' First Amendment right to freedom of speech. States have taken different approaches in addressing this issue after the landmark case of Simon & Schuster v. Members of the N.Y. State Crime Victims Board. Some states amended their Son of Sam laws in an attempt to make their laws pass constitutional muster. Meanwhile, other states have sought to forfeit criminals' profits through other statutes, completely side-stepping the Son of Sam laws. In fact, in the 2002 case Arizona v. Gravano , the profits from former mobster Salvatore “Sammy the Bull” Gravano's book, The Underboss , were successfully forfeited under Arizona 's general forfeiture statute, completely avoiding the state's Son of Sam statute. Thus, there is no real uniformity in this area of law, and there are currently lawsuits filed in many states that will likely invoke the various Son of Sam laws. The author of this Comment proposes how a state can create a Son of Sam law that could withstand constitutional muster while not violating the First Amendment rights of criminals. Specifically, this Comment argues that a constitutional attack against a Son of Sam law could be defended if it is content neutral and narrowly tailored, like limiting the term “profits” of the crime, defining specific crimes and convictions, and restricting automatic forfeiture. While Son of Sam laws have undergone many transformations and reconstructions since their introduction in the 1970s, this Comment concludes that clarification in this area is necessary to clarify the ambiguities states face in seeking to compensate victims of the crimes, while preserving criminals' rights to free speech.
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