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Quarterly Journal 43-1

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Table of Contents

Myths of the Internet as the Death of Old Media Members Only

Hannibal Travis

The Obama administration and some multinational corporations have claimed that the Internet is destroying the book publishing, music, and movie industries, and that to save jobs and entire industries, we need strict regulation of the Internet by civil and criminal copyright laws. In response to such claims, this article surveys evidence that old media firms that have lost revenue in the Internet era have performed in a manner seemingly unrelated to the scale of copyright infringement, but otherwise closely related to other important factors. Many old media firms have seen sharp increases in their revenues, or a decline in revenues less rapid than suffered by U.S. firms that are not subject to Internet infringement but that are sensitive to general economic trends, such as firms in the automobile-manufacturing and home-building sectors. This article begins with a brief survey of claims that the Internet or digital media will kill book publishing, the music industry, and the Hollywood blockbuster film. It then critically evaluates ten fundamental assertions that are used to justify Internet censorship and draconian copyright legislation. Four of these myths concern the allegedly negative relationship between Internet usage of various kinds and profits or sales at old media firms. Three of the myths are designed to motivate policymakers to endorse restrictions on Internet content using the theory that old media will benefit from such restrictions, thereby creating jobs and economic growth. The final three myths involve false assumptions that criminalizing Internet activity will save old media.

The United States has the largest art market in the world with estimated sales of $25 billion in 2014. This booming business involves artists, collectors, dealers and hobbyists – all of which are subject to the federal income tax. However, not all artists and acquirers of art are treated equally under the Internal Revenue Code. This article begins by attempting to answer the age old questions of “what is art?” and “what is the value of art?” this time for federal income tax purposes. The various categories of individuals who create, acquire, hold, and dispose of art are defined, and the tax issues and tax law that arise with respect to each category are explored. The article reveals the complexity in defining and distinguishing between these categories of individuals and in applying general tax principals to each category. These categories of individuals are important because they affect the application of numerous provisions of the Internal Revenue Code such as the home-office deduction, capital gains treatment, charitable contributions, business deductions, casualties and thefts, and like-kind exchanges. As illustrated, many grey areas exist with respect to the taxation of art and the individuals who are involved in the art world, making tax planning within this world another form of creative endeavor.

Cynthia Dahl

Lawyers’ professional use of social media is widespread and a critical component to running a successful practice. Yet some common uses of social media easily—and often innocently—violate the professional rules of ethics. The American Bar Association recently passed amendments to the Model Rules of Professional Conduct to include topics related to social media use, but the amendments still do not address all issues. Likewise, advisory opinions of state and local bar associations and court opinions give scant and sometimes contradictory advice about when a use does or does not violate a Rule. This essay discusses four topics at the intersection between social media and ethics, chosen because they are either unsettled, very common, implicate Rules that are easy to violate, or all three. The topics include when posting turns into advertising; when posting breaches confidentiality obligations; using social media to investigate during discovery; and using social media in court, including investigating jurors and friending a judge. This article presents the issues involved under each topic, the state of play in various jurisdictions, and solid recommendations for practitioners to take in order to remain confident as well as ethical users of social media.

The pharmaceutical industry is unique because it is especially sensitive to changes in the incentive structure. The sensitivity results from high cost, high risk nature of pharmaceutical research and development, and the public health need for affordable, convenient drug products. This note examines how interplay between the FDA’s phase-out of CFC propellants and the Hatch–Waxman Act changed the incentive structure such that a cheap, widely available inhaler treatment once in the public domain was recaptured under patent laws resulting in a drastic increase to consumers who need it. This note argues that future FDA regulations more strongly consider its effects on patent laws and the Hatch–Waxman Act to prevent future situations of recapture.​

Blueprints of Character: Applying the Distinct Delineation Test and Character Copyright Protection to Original Literary Places​ Members Only

Kaileigh Wright

Original literary places, viewed as characters of their respective literary works, deserve copyright protection so long as they meet the same delineation standards required of more traditional, animate characters. Alternative definitions do not limit characters to living persons, but acknowledge the potential for uniqueness among inanimate characters, such as original literary places. Because intricately detailed literary places may be easily recreated or reused, these places should be given copyright protection so that authors might maintain the integrity of and control over any future development of iconic characters. The threshold standard of required delineation for copyright protection is analyzed through case studies of Hogwarts Castle, from the Harry Potter series, and Satis House, from Charles Dickens’ classic novel “Great Expectations.” This note suggests that the Second Circuit’s Distinct Delineation Test, when applied to original literary places, may extend copyright protection to certain previously unprotected characters, potentially affecting the established idea/expression dichotomy of traditional copyright law.