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Harvard International Law Journal HARVARD JSEL VOLUME 1, NUMBER 1 – SPRING 2010 Contents Preface Peter A. Carfagna & Paul C. Weiler Editor’s Note Ashwin M. Krishnan Articles Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance Clay Calvert, Wendy Brunner, Karla Kennedy & Kara Murrhee The NBA and the Single Entity Defense: A Better Case? Michael A. McCann Hardball Free Agency: The Unintended Demise of Salary Arbitration in Major League Baseball Eldon L. Ham & Jeffrey Malach Wiki Authorship, Social Media and the Curatorial Audience Jon M. Garon The Integrity of the Game: Professional Athletes and Domestic Violence Bethany P. Withers Case Comment In re Dewey Ranch Hockey Ryan Gauthier HARVARD JSEL VOLUME 1, NUMBER 1 – SPRING 2010 Contents Copyright © 2010 by the President and Fellows of Harvard College. Preface Peter A. Carfagna & Paul C. Weiler 1 Editor’s Note Ashwin M. Krishnan 3 Articles Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance Clay Calvert, Wendy Brunner, Karla Kennedy & Kara Murrhee 7 The NBA and the Single Entity Defense: A Better Case? Michael A. McCann 39 Hardball Free Agency: The Unintended Demise of Salary Arbitration in Major League Baseball Eldon L. Ham & Jeffrey Malach 63 Wiki Authorship, Social Media and the Curatorial Audience Jon M. Garon 95 The Integrity of the Game: Professional Athletes and Domestic Violence Bethany P. Withers 145 Case Comment In re Dewey Ranch Hockey Ryan Gauthier 181 Volume 1 Harvard Journal of Sports Number 1 Spring 2010 & Entertainment Law EDITORIAL BOARD Editor-in-Chief Ashwin M. Krishnan Submissions Editor Managing Editor Technical Editor Josh Podoll Ryan Gauthier Abigail E. Hackler Assistant Technical Editors Article Editors Comment Editors Matthew Greenfield Paul Anderson Jeremy Campbell Kristina Katz Christopher Clark Anne E. Smith David Kiefer Ashley Flucas Elizabeth Rich Benjamin Glicksman Meredith Rovelli Michael Mozes Damir Valeev Michael Saltzman Annie Villanueva Bethany P. Withers Leah Watson Peter Zuckerman Outreach Editor Online Editor Production Editor Tiffany Graddick Brent Bernell Elizabeth Rich Editors Robin Achen Sara Croll Mary Mazzello Emilie Aguirre Steven Eisenberg Katherine Miller Trisha Ananiades Abraham Funk Zachary Rosenthal Brent Bernell Lawrence Horsburgh Noah Weiss Eduardo Casal Kevin Lewis David Zucker Alexander Marcus Staff Christina Causey John Gulliver Jeffrey Monhait Robert Derivaux Brent Herlihy Jenny Paul Bridget Devoy Russell Herman Javier Peral Mehdi Eddebbarh Jason Krochak David Roth Jeremy Glapion Joseph LaBaw Brent Speed Tiffany Graddick James McGinnis Chandler Tanner Submissions Committee Emilie Aguirre Brent Herlihy Brian Reider* Deepa Alagesan Ramy Ibrahim Colleen Riley Trisha Ananiades David Kiefer William Roberts* Christopher M. Assise* Kevin Lewis Zachary Rosenthal Jeremy Campbell Joseph LaBaw Meredith Rovelli Katie Clemens Eric Lopata Michael Saltzman Brian Conlon* Moshe Mandel* Anne E. Smith Lynna Cobrall Mary Mazzello* Brent Speed Andrew Domer Joseph Meginnes* Kevin Valsi* Steven Eisenberg Michael Mozes Matthew Vittone* Shaunicie Fielder Jenny Paul Annie Villanueva Abraham Funk Jennifer Parsigian Ryan Ward Jeremy Glapion Javier Peral David Zucker * Submissions Committee Team Leader Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (18th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso. Submissions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribution to students, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. HARVARD JSEL VOLUME 1, NUMBER 1 – SPRING 2010 Preface Peter A. Carfagna* and Paul C. Weiler† We cordially welcome readers to the first volume of the Harvard Journal of Sports and Entertainment Law. It is with great pride that we have worked with students of the Harvard Law School to create this journal, and, in the process, contribute to the broader debates about law and the sports and entertainment industries. As our years at the Harvard Law School have shown us, there is a high degree of enthusiasm for these subjects, and a realization among students and faculty that the sports and entertainment fields are rich topics, worthy of consideration in an academic journal. The Harvard Law School has offered basic courses in sports and entertainment law for several years. General courses such as antitrust, international trade, labor, tort, copyright, and trademark law augmented these offerings. Over the years, courses have been given relating to the marketing and economics of sports and entertainment, both at the Law School and at other schools across Harvard University. Recently, a deeper interest in the fields has emerged, leading to two additional courses: “Representing the Professional Athlete” and “Advanced Contract Drafting.” Students have also been involved for a long time in sports and entertainment law outside the classroom. Since the early 1980s, the Harvard Law School has had a Committee on Sports and Entertainment Law. The Committee has been instrumental in engaging the student body on these topics, holding symposia, bringing in alumni who have worked in the sports and entertainment fields, and advising students on their career choices. Beginning in 2007, the Sports Law Clinic offered students another way to get involved in the field. The program has placed students in over thirty clinical placements within the head offices of various teams in the three major sports leagues, and with many other professional and amateur sports organizations. On the * Visiting Lecturer on Sports Law, Harvard Law School. † Henry J. Friendly Professor of Law, Emeritus, Harvard Law School. Copyright © 2010 by the President and Fellows of Harvard College. 2 Harvard Journal of Sports and Entertainment Law / Vol. 1 entertainment side, the Recording Artists Project gives students a chance to provide pro bono legal work for musicians, record labels, and new media companies under the supervision of a practicing attorney, through the Transactional Practices Clinic. Students over the years have taken advantage of these opportunities to move on to careers in the sports and entertainment industries. Whether as in-house counsel, members of law firms, professors, or even general managers of teams, these former students have utilized the skills honed at the Harvard Law School to advance in these industries and to have an impact on the evolution of sports and entertainment law. Notably, some Harvard Law School students have gone on to become professors of sports law, including one of the authors of an article in this inaugural issue, Michael McCann, LLM ’05. With all the contributions that have been made by past students of the Harvard Law School, it is wonderful to see that current students share the same passion and that this has culminated in the creation of the Harvard Journal of Sports and Entertainment Law. And a timely creation it is. At this moment, professional sports leagues are dealing with antitrust scrutiny of a kind that they have not faced in almost two decades, while up-and-coming sports are facing issues of regulation and legitimacy. The entertainment industry must cope with ever-shorter ratings cycles, while also trying to navigate the waters of what is and what is not acceptable in terms of content. But this is not all. The entertainment industry also faces rapid changes in technology, altering not only consumption of songs, movies, and books, but also raises concerns about authorship and intellectual property. In both industries, today’s legal concerns impact both company and consumer alike. The Harvard Journal of Sports and Entertainment Law will contribute to the debate and evolution of these concerns. It will examine elements of these issues today and into the future, tracking how the sports
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