Washington Journal of Law, Technology & Arts

Volume 11  | Fall 2015  | Number 3

Throwing the Flag on Pay-for-Play: The O'Bannon Ruling and the Future of Paid Student-Athletes

Joseph Davison
11 Wash. J.L. Tech. & Arts  155

12/22/2015

Litigation

A group of former and current football and men’s basketball players, led by ex-UCLA basketball star Edward O’Bannon, brought an antitrust suit against the NCAA in the U.S. District Court for the Northern District of California. Their goal was to obtain an injunction ending the NCAA’s rules preventing players from being paid for the use of their names, images, or likenesses. Relying in large part on a 1984 Supreme Court case, NCAA v. Board of Regents of the University of Oklahoma, the NCAA claimed that there are specific procompetitive justifications for the restrictions, namely, amateurism and competitive balance. The district court found that the alleged procompetitive justifications did not excuse the challenged restraints, a decision that the Court of Appeals for the Ninth Circuit recently upheld. Such rulings are contradictory to the fundamental principles of antitrust law and have the potential to eliminate the college sports product entirely.

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The Woolly-Mammoth in the Room: The Patentability of Animals Brought Back From Extinction Through Cloning and Genetic Engineering

Miriam Ricanne Swedlow
11 Wash. J.L. Tech. & Arts  183

12/22/2015

Intellectual Property

Advances and success in cloning and genetic engineering may mean passenger pigeons, dodos, gastric-brooding frogs, thylacines, woolly mammoths, and other extinct species will once again grace this planet. As de-extinction becomes a reality, it is uncertain whether these animals are patent eligible. Diamond v. Chakrabarty opened the door to cloning multicellular organisms. Since then, the U.S. Patent Office’s Board of Patent Appeals and Interferences has found “non-naturally occurring, man-made organisms including animals” to be patentable subject matter under 35 U.S.C. § 101. Because the initial case challenging this decision failed on procedural grounds, the underlying legal issue has not been addressed in a federal court. Congress forbids patents directed at, or encompassing, human organisms, but has been silent with respect to animals. The Supreme Court holds that sections of naturally occurring DNA are not patent eligible, while non-naturally occurring synthetic strands are. But the Court has not considered organisms created from both naturally occurring and synthetic DNA, as would be the case in de-extinction. The Federal Circuit upheld a decision denying a patent for Dolly the cloned sheep, yet left room for successful patents of other cloned animals. The Federal Circuit’s distinction may lie between patenting the clone of an animal that already exists and patenting an animal that does not or no longer exists. In light of ever-changing science and technology, there are few clear boundaries of what organisms can or cannot be patented. Practitioners need to be aware of the boundaries and the gray areas in the existing law to navigate a path towards patentability of de-extinct species. 

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The Limits of the Freedom Act's Amicus Curiae

Chad Squitieri
11 Wash. J.L. Tech. & Arts  197

12/22/2015

Constitutional & Regulatory

The federal government’s power to engage in surveillance for national security purposes is extensive. In an effort to reform the current national surveillance regime, scholars have called for, among other things, the creation of a “special advocate” to counter the government’s arguments before the Foreign Intelligence Surveillance Court. Feeling political pressure to improve an ever-unpopular national surveillance regime, lawmakers passed the USA FREEDOM Act (“Freedom Act”).

Section 401 of the Freedom Act provides for the creation of an “amicus curiae,” a position that differs from earlier conceptions of a “special advocate” in important respects. This Essay examines those differences, and counsels against conflating the Freedom Act’s amicus curiae with a true special advocate. By doing so, this Essay highlights the need for continued calls for a special advocate.

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The DMCA Rulemaking Mechanism: Fail or Safe?

Maryna Koberidze
11 Wash. J.L. Tech. & Arts  211

12/22/2015

Intellectual Property

This Article analyzes seventeen years under the Digital Millennium Copyright Act (“DMCA”) rulemaking mechanism and suggests changes to reinforce its successes while remedying its failures. Part I briefly discusses the legislative history of the rulemaking mechanism and policy justifications for its adoption within the DMCA scheme. Part II reviews legal and evidentiary standards of the rulemaking and recent changes to its administrative procedure. Part III provides an overview of the prior rulemakings and their impact on non-infringing uses, with a particular focus on the “e-book” and “cellphone unlocking” exemptions. Part IV applauds the Breaking Down Barriers to Innovation Act of 2015—which suggests numerous improvements to the rulemaking mechanism—and then recommends other possible changes. Part V emphasizes the continued need for the rulemaking mechanism, but concludes with some modifications and restructuring.

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