: The 2012 UsedSoft decision of the Court of Justice of the European Union ( ‘ ECJ ’ ) disrupted the digital distribution of computer programs. Since then, unauthorised sellers of product and game keys often try to utilise the UsedSoft ruling and its principles to justify the resale of key codes. Against this background, we will review the new developments in this area, taking into account recent court decisions in Germany, which are based on European Directives. Furthermore, the impact of the UsedSoft decision on the gaming sector, where game keys are often distributed in digital form only, will be examined. Since the ECJ in its Nintendo decision and the German Federal Supreme Court ‘ BGH ’ ) in its World of Warcraft I decision both considered video games to be hybrid products, we will discuss whether and to what extent the Software Directive 2009/24/EC and the InfoSoc Directive 2001/29/EC are applicable. We then apply the findings to the distribution models used in the gaming sector and examine their legality.
{"title":"The long and winding road of digital distribution. Or: why the ECJ's UsedSoft decision is of no use to keysellers","authors":"Andreas Lober, S. Klein, Florian Groothuis","doi":"10.4337/ielr.2018.01.03","DOIUrl":"https://doi.org/10.4337/ielr.2018.01.03","url":null,"abstract":": The 2012 UsedSoft decision of the Court of Justice of the European Union ( ‘ ECJ ’ ) disrupted the digital distribution of computer programs. Since then, unauthorised sellers of product and game keys often try to utilise the UsedSoft ruling and its principles to justify the resale of key codes. Against this background, we will review the new developments in this area, taking into account recent court decisions in Germany, which are based on European Directives. Furthermore, the impact of the UsedSoft decision on the gaming sector, where game keys are often distributed in digital form only, will be examined. Since the ECJ in its Nintendo decision and the German Federal Supreme Court ‘ BGH ’ ) in its World of Warcraft I decision both considered video games to be hybrid products, we will discuss whether and to what extent the Software Directive 2009/24/EC and the InfoSoc Directive 2001/29/EC are applicable. We then apply the findings to the distribution models used in the gaming sector and examine their legality.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/ielr.2018.01.03","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48448166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As virtual reality (VR) products increase in popularity, stakeholders in the games industry wanting to promote their VR products, or to leverage VR technology for advertising more generally, need to be aware of the most common legal and regulatory pitfalls, particularly as this is an area in which advertising and consumer protection regulators are likely to take a keen interest. Meanwhile, the regulators themselves will also have to be agile. They face the challenge of having to apply laws and self-regulatory codes which were not drafted with VR technology in mind to new situations, in a fair and rational manner which does not expose them to the risk of judicial review.
{"title":"Advertising and VR: regulatory challenges ahead","authors":"K. Lobov","doi":"10.4337/ielr.2018.01.04","DOIUrl":"https://doi.org/10.4337/ielr.2018.01.04","url":null,"abstract":"As virtual reality (VR) products increase in popularity, stakeholders in the games industry wanting to promote their VR products, or to leverage VR technology for advertising more generally, need to be aware of the most common legal and regulatory pitfalls, particularly as this is an area in which advertising and consumer protection regulators are likely to take a keen interest. Meanwhile, the regulators themselves will also have to be agile. They face the challenge of having to apply laws and self-regulatory codes which were not drafted with VR technology in mind to new situations, in a fair and rational manner which does not expose them to the risk of judicial review.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/ielr.2018.01.04","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45279509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Solid Oak Sketches v. 2K Games: is this lawsuit the beginning of the end of uncertainty concerning the enforceability of tattoo copyrights?","authors":"Yolanda M. King","doi":"10.4337/IELR.2018.01.06","DOIUrl":"https://doi.org/10.4337/IELR.2018.01.06","url":null,"abstract":"","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/IELR.2018.01.06","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44657036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.
{"title":"The key to key presses: eSports game input streaming and copyright protection","authors":"S. Kelly, Kirk A. Sigmon","doi":"10.4337/IELR.2018.01.01","DOIUrl":"https://doi.org/10.4337/IELR.2018.01.01","url":null,"abstract":"The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/IELR.2018.01.01","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44090945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
So called loot boxes are one of the most important monetization methods for many companies in the video gaming, social gaming and social casino gaming industry. After the global skin betting scandal in 2016 and the 2017 loot-box uproar, loot boxes are now under investigation or even subject to legislative measures in several jurisdictions. Since then, numerous regulatory authorities, politicians and other stake holders have issued statements on the matter. From a legal perspective, loot boxes can touch gambling, youth protection, consumer and even financial laws. Characteristic of the 2017 loot-box debate was a black or white view and people taking extreme positions. In particular, gamers and people not familiar with the subject tend to condemn loot boxes as gambling. However, taking a closer look at selected key jurisdictions shows that the application of gambling laws depends on the jurisdiction and on the exact set up of the loot box mechanism. Furthermore, some questions are not conclusively solved yet – not even in those jurisdictions which are regarded as loot-box safe havens. One of these questions is, for instance, the impact of secondary-market trading of loot-box-generated items. This article evaluates the legal situation of loot boxes from a gambling law perspective in selected jurisdictions.
{"title":"Watch your loot boxes! – Recent developments and legal assessment in selected key jurisdictions from a gambling law perspective","authors":"Sebastian Schwiddessen, Philipp Karius","doi":"10.4337/IELR.2018.01.02","DOIUrl":"https://doi.org/10.4337/IELR.2018.01.02","url":null,"abstract":"So called loot boxes are one of the most important monetization methods for many companies in the video gaming, social gaming and social casino gaming industry. After the global skin betting scandal in 2016 and the 2017 loot-box uproar, loot boxes are now under investigation or even subject to legislative measures in several jurisdictions. Since then, numerous regulatory authorities, politicians and other stake holders have issued statements on the matter. From a legal perspective, loot boxes can touch gambling, youth protection, consumer and even financial laws. Characteristic of the 2017 loot-box debate was a black or white view and people taking extreme positions. In particular, gamers and people not familiar with the subject tend to condemn loot boxes as gambling. However, taking a closer look at selected key jurisdictions shows that the application of gambling laws depends on the jurisdiction and on the exact set up of the loot box mechanism. Furthermore, some questions are not conclusively solved yet – not even in those jurisdictions which are regarded as loot-box safe havens. One of these questions is, for instance, the impact of secondary-market trading of loot-box-generated items. This article evaluates the legal situation of loot boxes from a gambling law perspective in selected jurisdictions.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/IELR.2018.01.02","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42935528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Last year the District Court of Amsterdam ruled that using the portrait of former Dutch soccer player Edgar Davids in the online video game ‘League of Legends’ is unlawful towards Edgar Davids. On the occasion of the World Cup 2014, Riot Games, the developer of the League of Legends, introduced four additional character skins that could be purchased by gamers. For the character ‘Lucian’, gamers could purchase the ‘Striker’ skin, and the Court first considered that Striker Lucian is a portrait of Edgard Davids. Furthermore, the Court considered that Edgar Davids has a reasonable interest to oppose the commercial exploitation of his portrait. The Court concluded that Striker Lucian is a portrait of Edgar Davids and Riot Games is acting unlawfully by disclosing Striker Lucian in the Netherlands. Besides, granting a declaratory decision and injunction, Riot Games was ordered to pay damages.
{"title":"Levelling the playing field in eSports – Dutch portrait rights in games","authors":"Kian Hsia, Thijs van den Heuvel","doi":"10.4337/ielr.2018.01.07","DOIUrl":"https://doi.org/10.4337/ielr.2018.01.07","url":null,"abstract":"Last year the District Court of Amsterdam ruled that using the portrait of former Dutch soccer player Edgar Davids in the online video game ‘League of Legends’ is unlawful towards Edgar Davids. On the occasion of the World Cup 2014, Riot Games, the developer of the League of Legends, introduced four additional character skins that could be purchased by gamers. For the character ‘Lucian’, gamers could purchase the ‘Striker’ skin, and the Court first considered that Striker Lucian is a portrait of Edgard Davids. Furthermore, the Court considered that Edgar Davids has a reasonable interest to oppose the commercial exploitation of his portrait. The Court concluded that Striker Lucian is a portrait of Edgar Davids and Riot Games is acting unlawfully by disclosing Striker Lucian in the Netherlands. Besides, granting a declaratory decision and injunction, Riot Games was ordered to pay damages.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/ielr.2018.01.07","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42663045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The system for licensing music in the United States for public performances through radio, television, digital services and other distribution media is complicated, arcane and heavily regulated. Its basic structure is oriented toward transmitting music through analog channels. Although much of the pricing of music rights is supposed to be based on competitive prices, the current interdependent system of collective licensing of performing rights and widespread regulation of music prices (royalties) is inconsistent with the development of a competitive market and the associated efficiencies. Collective licensing by a handful of performing rights organizations (PROs) provides the major rationale for price regulation. However, the existence of price regulation has entrenched collective licensing and the position of those PROs. A more competitive system entails moving away from collective licensing. In this paper we review the current structure of the music licensing system and suggest ways of making it more competitive and less reliant on regulation. Central to our proposals are: a) a comprehensive, standardized database of musical compositions (including the specific sound recording version, where relevant) and their owners so that distributors and users can readily identify from whom they need to license rights, along with a “safe harbor” provision that would provide the appropriate incentives for rights owners to contribute their information to the database; b) a greater ability of intermediaries to aggregate the various categories of music ownership rights; and c) the consequent development of more competitive negotiations and transactions between music rights holders and music distributors.
{"title":"Moving Music Licensing into the Digital Era: More Competition and Less Regulation","authors":"Thomas M. Lenard, L. White","doi":"10.2139/SSRN.2740656","DOIUrl":"https://doi.org/10.2139/SSRN.2740656","url":null,"abstract":"The system for licensing music in the United States for public performances through radio, television, digital services and other distribution media is complicated, arcane and heavily regulated. Its basic structure is oriented toward transmitting music through analog channels. Although much of the pricing of music rights is supposed to be based on competitive prices, the current interdependent system of collective licensing of performing rights and widespread regulation of music prices (royalties) is inconsistent with the development of a competitive market and the associated efficiencies. Collective licensing by a handful of performing rights organizations (PROs) provides the major rationale for price regulation. However, the existence of price regulation has entrenched collective licensing and the position of those PROs. A more competitive system entails moving away from collective licensing. In this paper we review the current structure of the music licensing system and suggest ways of making it more competitive and less reliant on regulation. Central to our proposals are: a) a comprehensive, standardized database of musical compositions (including the specific sound recording version, where relevant) and their owners so that distributors and users can readily identify from whom they need to license rights, along with a “safe harbor” provision that would provide the appropriate incentives for rights owners to contribute their information to the database; b) a greater ability of intermediaries to aggregate the various categories of music ownership rights; and c) the consequent development of more competitive negotiations and transactions between music rights holders and music distributors.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":"61 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81422845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Author(s): Aslam, Jamil | Abstract: The notion that the Federal Communications Commission can restrict speech on broadcast radio and broadcast television more strictly than on other media, such as the Internet, is so familiar today that its constitutionality is often taken for granted.In a landmark 1978 decision, Federal Communications Commission v. Pacifica Foundation, the Supreme Court of the United States stated that broadcast media receive less First Amendment protection than other media. The Supreme Court has given two rationales for its distinction between media (referred to in this article as the “media distinction doctrine”). First, broadcast radio and television are unique because the frequencies that they use could become flooded if not regulated, and thus nobody would be able to transmit content over broadcast radio and television without the government’s intervention. Second, broadcast radio and television are uniquely pervasive into the home, and thereby risk transmitting unwanted vulgarities to listeners and their children.In this article, I argue that, given the technological development since Pacifica was decided, it is no longer sound to afford less First Amendment protection to broadcast media. After exploring the effects of technological development, I argue that neither of the above rationales remains sound. I also argue that other factors, such as consumer demand, would prevent broadcast media from transmitting offensive content even without the media distinction doctrine in place.
{"title":"Taking Free Speech Sirius-ly: How the Modern Appearance of Personalities on Various Media Supports Overturning Red Lion and Pacifica","authors":"Jamil Aslam","doi":"10.5070/LR8222027682","DOIUrl":"https://doi.org/10.5070/LR8222027682","url":null,"abstract":"Author(s): Aslam, Jamil | Abstract: The notion that the Federal Communications Commission can restrict speech on broadcast radio and broadcast television more strictly than on other media, such as the Internet, is so familiar today that its constitutionality is often taken for granted.In a landmark 1978 decision, Federal Communications Commission v. Pacifica Foundation, the Supreme Court of the United States stated that broadcast media receive less First Amendment protection than other media. The Supreme Court has given two rationales for its distinction between media (referred to in this article as the “media distinction doctrine”). First, broadcast radio and television are unique because the frequencies that they use could become flooded if not regulated, and thus nobody would be able to transmit content over broadcast radio and television without the government’s intervention. Second, broadcast radio and television are uniquely pervasive into the home, and thereby risk transmitting unwanted vulgarities to listeners and their children.In this article, I argue that, given the technological development since Pacifica was decided, it is no longer sound to afford less First Amendment protection to broadcast media. After exploring the effects of technological development, I argue that neither of the above rationales remains sound. I also argue that other factors, such as consumer demand, would prevent broadcast media from transmitting offensive content even without the media distinction doctrine in place.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85089744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The digitalization of digital media has repeatedly forced Copyright Law to address cutting edge issues of Law. The Digital Performance in Sound Recordings Act extended compulsory licenses to digitally broadcast media. Notwithstanding the complications intrinsic to this provision, the Act stopped short of creating a compulsory license for interactive and on demand services. Streaming services like Spotify, Rdio and now Google Play All-Access are transforming music distribution. Yet these companies are subject to a rate-hike cliff, whereby labels and copyright owners can license content to upstart distributors for relatively little compensation, only to subsequently raise these rates as distributional platforms begin to become profitable. To combat this phenomenon, a compulsory rate should be extended to interactive digital webcasters, and should be structured so as to incentivize both parties to negotiate for a fair rate, outside of the compulsory one.
数字媒体的数字化一再迫使著作权法解决法律的前沿问题。《数字录音表演法案》将强制许可扩展到数字广播媒体。尽管这一规定具有内在的复杂性，但该法没有为互动式和按需服务规定强制许可。流媒体服务如Spotify、Rdio和现在的Google Play All-Access正在改变音乐分销。然而，这些公司面临着涨价悬崖，唱片公司和版权所有者可以以相对较低的报酬将内容授权给新兴的分销商，但随着分销平台开始盈利，这些公司随后会提高这些费率。为了解决这一现象，应将强制性费率扩展到交互式数字网络广播公司，并应在结构上激励双方在强制性费率之外谈判一个公平的费率。
{"title":"The Spotify Paradox: How the Creation of a Compulsory License Scheme for Streaming On-Demand Music Services Can Save the Music Industry","authors":"James H. Richardson","doi":"10.2139/SSRN.2557709","DOIUrl":"https://doi.org/10.2139/SSRN.2557709","url":null,"abstract":"The digitalization of digital media has repeatedly forced Copyright Law to address cutting edge issues of Law. The Digital Performance in Sound Recordings Act extended compulsory licenses to digitally broadcast media. Notwithstanding the complications intrinsic to this provision, the Act stopped short of creating a compulsory license for interactive and on demand services. Streaming services like Spotify, Rdio and now Google Play All-Access are transforming music distribution. Yet these companies are subject to a rate-hike cliff, whereby labels and copyright owners can license content to upstart distributors for relatively little compensation, only to subsequently raise these rates as distributional platforms begin to become profitable. To combat this phenomenon, a compulsory rate should be extended to interactive digital webcasters, and should be structured so as to incentivize both parties to negotiate for a fair rate, outside of the compulsory one.","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89277913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
IntroductIon ��������������������������������������������������������������������������������������������������������������2 I� the exemptIon establIshed: the supreme court trIlogy ��������������������������������4 A. The Divergent Beginnings of Baseball and Antitrust Law ��������������������������4 B� Federal Baseball and the Creation of the Exemption ����������������������������������6 C. Fundamental Changes, Same Result: Toolson and the Non-Baseball Cases ���������������������������������������������������������������������������������������������������������������������7 D� Flood and the End of the Reserve Clause Era ������������������������������������������� 11 II� the exemptIon In QuestIon: the lower court splIt In authorIty ����������������14 A. The Broad View: An Exemption for the Entire Business of Baseball ��������14 B. The Middle View: An Exemption for the Integral Aspects of the Business of Baseball �����������������������������������������������������������������������������������������������������15 C. The Narrow View: An Exemption Only for the Reserve System ����������������17 D. The Curt Flood Act: Congress’ Ineffective Intervention ����������������������������19 III� the exemptIon reasserted: FranchIse relocatIon and cIty oF san Jose v� oFFIce oF the commIssIoner oF baseball ���������������������������������������������������������21 A. MLB’s Rules on Franchise Relocation and Territorial Rights ������������������21 B. The Bay Area Divided ��������������������������������������������������������������������������������25 C. The Fight to Move the A’s ��������������������������������������������������������������������������26 D. Findings in City of San Jose ����������������������������������������������������������������������29 1� The Baseball Exemption Is Not Limited to the Reserve Clause ��������29 2. Though Its Limits Remain Undefined, the Exemption Is Broad Enough to Protect MLB’s Restrictions on Franchise Relocation �������32 Iv� the exemptIon ahead: the busIness oF baseball aFter City of San JoSe �����35 A. The Flaws of the Integral Test �������������������������������������������������������������������37 B. A Properly Broad Exemption for the Business of Providing Baseball to the Public ���������������������������������������������������������������������������������������������������������42 conclusIon ���������������������������������������������������������������������������������������������������������������44
{"title":"Keeping the A’s in Oakland: Franchise Relocation, City of San Jose, and the Broad Power of Baseball’s Antitrust Exemption","authors":"A. Haber","doi":"10.5070/LR8221025202","DOIUrl":"https://doi.org/10.5070/LR8221025202","url":null,"abstract":"IntroductIon ��������������������������������������������������������������������������������������������������������������2 I� the exemptIon establIshed: the supreme court trIlogy ��������������������������������4 A. The Divergent Beginnings of Baseball and Antitrust Law ��������������������������4 B� Federal Baseball and the Creation of the Exemption ����������������������������������6 C. Fundamental Changes, Same Result: Toolson and the Non-Baseball Cases ���������������������������������������������������������������������������������������������������������������������7 D� Flood and the End of the Reserve Clause Era ������������������������������������������� 11 II� the exemptIon In QuestIon: the lower court splIt In authorIty ����������������14 A. The Broad View: An Exemption for the Entire Business of Baseball ��������14 B. The Middle View: An Exemption for the Integral Aspects of the Business of Baseball �����������������������������������������������������������������������������������������������������15 C. The Narrow View: An Exemption Only for the Reserve System ����������������17 D. The Curt Flood Act: Congress’ Ineffective Intervention ����������������������������19 III� the exemptIon reasserted: FranchIse relocatIon and cIty oF san Jose v� oFFIce oF the commIssIoner oF baseball ���������������������������������������������������������21 A. MLB’s Rules on Franchise Relocation and Territorial Rights ������������������21 B. The Bay Area Divided ��������������������������������������������������������������������������������25 C. The Fight to Move the A’s ��������������������������������������������������������������������������26 D. Findings in City of San Jose ����������������������������������������������������������������������29 1� The Baseball Exemption Is Not Limited to the Reserve Clause ��������29 2. Though Its Limits Remain Undefined, the Exemption Is Broad Enough to Protect MLB’s Restrictions on Franchise Relocation �������32 Iv� the exemptIon ahead: the busIness oF baseball aFter City of San JoSe �����35 A. The Flaws of the Integral Test �������������������������������������������������������������������37 B. A Properly Broad Exemption for the Business of Providing Baseball to the Public ���������������������������������������������������������������������������������������������������������42 conclusIon ���������������������������������������������������������������������������������������������������������������44","PeriodicalId":36418,"journal":{"name":"Interactive Entertainment Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87161276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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