SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL
Volume 30                                                                                                                                            Fall 2005
 

Compulsory Licenses in Peer-to-Peer File Sharing:
A Workable Solution?
Michael Botein & Edward Samuels ...........................................................................................................................69
Peer-to-peer sharing of creative works over the Internet creates a particularly difficult issue for copyright law. Full copyright liability may be inappropriate since it might inhibit the broad dissemination of creative works promised by the new technology. On the other hand, blanket immunity from copyright liability might erode the commercial value of creative works. In an effort to strike a balance between these two extremes some commentators have proposed a compulsory license to authorize and regulate peer-to-peer distribution of copyrighted works over the Internet.
Compulsory licenses are not new to intellectual property. In fact, they have been invoked to resolve several troublesome technological issues over the past quarter of a century. While some of these licenses have been moderately successful, their overall track record has been disappointing. In considering whether compulsory licenses are appropriate for peer-to-peer file sharing, this Article reviews existing compulsory licenses and their results. This Article discusses audio compulsory licenses, television compulsory licenses, and concludes by considering other aspects of the copyright system that should be kept in mind as we contemplate the adoption of yet another compulsory licensing system
 

Cyber Chaos: The Clash Between Band Fansites
And Intellectual Property Holders
Krissi J. Geary-Boehm ............................................................................................................................................87
Since the advent of the Internet, fans of musical artists have used the medium to express their fandom through the creation and maintenance of fansites devoted to these artists. This Article explores the proliferation of fansites and their creators’ clashes with intellectual property (IP) holders. It identifies the legal issues IP holders could assert against fansite creators and the possible defenses available to cyber fans. The Article also examines how some IP holders have tried to control fans both legally and contractually via cease-and-desist letters and often one-sided terms of usage agreements and the effectiveness of the disclaimers fansite operators commonly place on their fansites to ward off IP holders. Potential problems with how IP law would treat fansites is also examined as well as the potential for fan backlash and damaging media coverage of disputes between fans and IP holders. The Article proposes a resolution in the form of IP holders providing authorized content packages for fansite creators and engaging in controlled fan interactions, which would more adequately balance the fans’ rights with those of the IP holders.

 

COMMENTS

Does this Home Rule the Courts? Carbondale’s Tort
Reform Ordinance
Jim Webb ............................................................................................................................................................123
In response to the Illinois medical malpractice crisis, the city of Carbondale decided to take matters into its own hands. In July 2004, the Carbondale City Council, using its home rule authority, passed an ordinance requiring every malpractice claim arising within Carbondale to be tried in Jackson County court. This Comment will examine whether Carbondale acted within the proper bounds of Illinois home rule authority when it enacted this venue-setting ordinance. This Comment will consider whether the Illinois Constitution, which limits home rule power to matters relating to a community’s government and affairs, and the surrounding case law will allow such an ordinance regulating court procedure to stand. Given the way Illinois courts have interpreted the scope of home rule power, Carbondale’s ordinance will be overturned because it seeks to manage the procedure of state court, an institution of state-wide concern. Also, this Comment will include an argument that perhaps Illinois courts have defined the bounds of home rule too narrowly.

Game Over For Minors? Analyzing The Constitutionality of
Illinois’ Restrictions on Video Game Sales
Todd C. Chapman ..............................................................................................................................................145
The video game industry is no longer aimed just at children, and instead many games are now produced specifically for an adult audience as the industry has turned into a legitimate entertainment alternative to movies and television. Throughout the year 2005, video games with violent and sexually explicit content were constantly in the news as the public debated whether minors should be playing these games. Illinois Governor Rod Blagojevich took action, proposing legislation to ban the sales of violent and sexually explicit video games to minors, even though previous similar attempts had been struck down as unconstitutional by federal courts. The Violent Video Games Law and the Sexually Explicit Video Games Law were passed in July 2005, making Illinois the first state to ban the sale of these games to minors. The Illinois restrictions are very similar to the previous unsuccessful attempts to ban the sale of violent games to minors, and a lawsuit challenging the constitutionality of this Act was filed as soon as Governor Blagojevich signed the bill.
This Comment analyzes the previous cases regarding past attempts to restrict the sale of violent and sexually explicit video games, and compares the Illinois legislation to these unsuccessful efforts to determine whether it will withstand a constitutional challenge. In addition, this Comment will explore alternative methods Illinois could explore in order to achieve the overall goal of preventing minors from playing violent and sexually explicit games.


A Troublesome Good Idea: An Analysis of the
Illinois Gestational Surrogacy Act
Jeremy J. Richey ..............................................................................................................................................169
Emerging reproductive technologies raise difficult questions. In January of 2005, the Illinois Gestational Surrogacy Act went into effect to answer some of the questions raised by gestational surrogacy. This Article takes the position that the Gestational Surrogacy Act is a good idea because of the security it provides intended parents, however, this Comment also wrestles with the troublesome ethical issues raised by surrogacy and the statute.

 

CASENOTES

How Secure Are Your Lifetime Benefits?, Vallone v. CNA
Financial, 375 F.3d 623 (7th Cir. 2004)
Jennifer Claire Sprague ....................................................................................................................................195
In Vallone v. CNA Financial Corp., the Seventh Circuit recently decided that, with a reservation of rights clause, employers may amend or terminate a retirement plan, so long as employers do not knowingly misrepresent the plan. While the court followed Seventh Circuit precedent, the Vallone result failed to effectuate ERISA’s purpose. This Note examines the definition of “lifetime” and the employees’ reliance on the medical benefits and uses a negligence or strict liability standard to determine that the court could have ruled against the employer. The Note also analyzes the lasting effect rulings such as this will have on the uninsured and the economy as a whole. The Note’s conclusion is that until ERISA is amended or the court eases its use of the strict approach towards misrepresentation and fiduciary duty, the employees will not be protected and the passing of ERISA will have been futile attempt to protect employees’ benefits.

Mountain Becomes Valley: Has the Practice of Mountain-
top Mining Been Leveled?: Ohio Valley Environmental
Coalition v. Bulen, No. 3:03–2281, 2004 U.S. Dist. LEXIS
12690 (S.D. W. Va. July 8, 2004)
Chad M. Kruse ..................................................................................................................................................225
How many mountains must be flattened and valleys must be filled before the practice of mountaintop mining is put to a stop? Many residents of West Virginia have been pondering this question since the first mountaintop mining operation began destroying the mountainous landscape of the state in the late 1960s. On July 8, 2004, the United States District Court for the Southern District of West Virginia took a step toward the answer with its decision in Ohio Valley Environmental Coalition v. Bulen. Federal authorization to conduct mountaintop removal and valley fill operations became significantly more difficult to achieve when the court found a nationwide permit, relied on by mining companies, violated the Clean Water Act. The Note analyzes the Ohio Valley case from the perspective of the Clean Water Act’s frequently stated goal, “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” 33 U.S.C. § 1251(a) (2000). Through this analysis the Note illustrates how the Ohio Valley decision has laid the foundation for a stronger statement of the law, protecting coal-rich mountaintops, under the Clean Water Act and the nationwide permitting system.
 

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