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Volume 2, Number 2 Spring 2011 Contents ARTICLES from Whether Volume 2, Number 2 Spring 2011 Contents ARTICLES From Whether to How: The Challenge of Implementing a Full Public Performance Right in Sound Recordings Mary LaFrance Adjusting the Stream? Analyzing Major League Baseball’s Antitrust Exemption After American Needle Michael J. Mozes & Ben Glicksman The French Revolution 2.0: Copyright and the Three Strikes Policy Eldar Haber Corking the Cam Newton Loophole, a Sweeping Suggestion Darren A. Heitner & Jeffrey F. Levine NOTE Head Hunters: The Rise of Neurological Concussions in American Football and Its Legal Implications Andrew B. Carrabis Volume 2, Number 2 Spring 2011 Contents ARTICLES From Whether to How: The Challenge of Implementing a Full Public Performance Right in Sound Recordings 221 Mary LaFrance Adjusting the Stream? Analyzing Major League Baseball’s Antitrust Exemption After American Needle 265 Michael J. Mozes & Ben Glicksman The French Revolution 2.0: Copyright and the Three Strikes Policy 297 Eldar Haber Corking the Cam Newton Loophole, a Sweeping Suggestion 341 Darren A. Heitner & Jeffrey F. Levine NOTE Head Hunters: The Rise of Neurological Concussions in American Football and Its Legal Implications 371 Andrew B. Carrabis EDITORIAL BOARD Editor in Chief Josh Podoll Executive Editor Executive Editor Executive Editor Ben Glicksman Abigail E. Hackler Michael J. Mozes Submissions Chairs Production Chair Technical Chairs David J. Kiefer Zachary Rosenthal Robin Achen Annie Smith Trisha Ananiades Dave Zucker Michael Saltzman Faculty Liaison Online Editor Symposium Chair Jeffrey M. Monhait Brent Bernell Annie Villanueva Article Editors Emilie K. Aguirre Trisha Ananiades Eduardo Jose Casal David J. Kiefer Kevin Lewis Jeffrey M. Monhait Michael Saltzman Anne E. Selden Dave Zucker Editors Victoria Blohm Adam Derry Jenna Hayes Eugene Karlik Hunter Landerholm Zachary Rosenthal Annie Villanueva Staff Daniel Adler Cynthia Chen Brandon Hammer Dov Kogen Yen-Ju Judy Lai Timothy Lamoureux Michael Lieberman Michael McCauley Gidon Slomowitz Sam Spears Austin Stack George Tsivin Kyle Watson Katie Weiss Justin Wiley Miles C. Wiley 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. Faculty Advisor’s Introduction Peter Carfagna It has been my great pleasure to serve as Faculty Supervisor of the Journal of Sports and Entertainment Law again this year. From the first week of the school year, I have felt privileged to work closely with Editor in Chief Josh Podoll, Executive Editors Ben Glicksman, Abigail Hackler, and Mike Mozes, and the rest of JSEL’s Editorial Staff as they embarked on the most ambitious project of publishing not just one, but two Editions of JSEL in only its second year of existence. Yet, they have proven more than equal to this exciting challenge, as those of you who read both Volumes of this Issue will agree. My congratulations therefore go out to everyone on the JSEL Staff who contributed so mightily to this singular accomplishment. In particular, regular readers of JSEL will note that a wonderful “evolution” occurred this year, under Josh's guidance. This year's editions have tipped favorably in the direction of “Entertainment Law,” while at the same time publishing cutting-edge pieces on “sports and the law” – a discipline that led the way last year under then-Editor in Chief Ashwin Krishnan's direction. This evolution has produced some unique and thought-provoking scholarship, which will hopefully initiate ongoing dialogue between JSEL and its readers – another new challenge Josh, his Staff, and future editors of the Journal have embraced. This second edition contains a number of insightful pieces in my area of expertise: sports law. An agent-related piece by my good friend and professional colleague, Darren Heitner, with his co-author, Jeffrey F. Levine, will guide the avid sports law “fanatic” through the intricacies of the Cam Newton “loophole.” And the student-published article co-authored by Senior Editors Ben Glicksman and Mike Mozes will bring into relief nuances contained in the oft-studied American Needle Supreme Court case that will justify re-reading and further dialogue. Of course, there are articles that might have been accepted, if greater publication space were available. Accordingly, the Journal strongly encourages authors whose work was not published to re-submit next year, and to continue to submit new publications to JSEL in the future. In that regard, I am proud to welcome next year's Editor in Chief, Dave Zucker. Dave will, I am sure, pick right up where his predecessors Josh Podoll and Ashwin Krishnan have left off. Good luck to Dave, as he embarks on leading the next stage in the continuing evolution of JSEL, in which I am proud to have played a part since its inception last year. From Whether to How: The Challenge of Implementing a Full Public Performance Right in Sound Recordings Mary LaFrance* TABLE OF CONTENTS I. INTRODUCTION .................................................................................222 II. COSTS AND BENEFITS .......................................................................223 A. The Goal: Reciprocity ...................................................................223 B. How Much is at Stake? .................................................................226 III. C URRENT LAW .................................................................................230 IV. CRITIQUE OF CURRENT LEGISLATIVE PROPOSALS ............................232 A. Provisions Unique to the House Bill ............................................236 B. Provisions Unique to the Senate Bill ............................................237 V. LOOKING AHEAD: PUBLIC VENUES ..................................................239 VI. PROBLEMS IN SETTING RATES ..........................................................241 A. Procedures ....................................................................................241 B. Relative Amounts of the Two Royalties ........................................246 VII. A COMPARATIVE PERSPECTIVE ........................................................252 VIII. CHALLENGES ....................................................................................256 A. Tracking Usage .............................................................................256 B. Building, Maintaining and Sharing a Database of Rights Holders .....................................................................................................256 C. One Collecting Society or More? .................................................259 D. Exceptions and Limitations ...........................................................260 E. Section 114(i) ................................................................................261 F. A Note on Derivative Works .........................................................262 * IGT Professor of Intellectual Property Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author would like to thank the participants in the Intellectual Property Works-in-Progress (WIPIP) Colloquium at the Boston University School of Law, February 11–12, 2011, for their helpful comments on an earlier version of this article. This research was awarded a 2011 Sponsored Scholarship Grant by the Institute for Intellectual Property and Information Law (IPIL) at the University of Houston Law Center. Copyright © 2011 by the President and Fellows of Harvard College. 222 Harvard Journal of Sports & Entertainment Law / Vol. 2 IX. CONCLUSION ....................................................................................263 I. INTRODUCTION As early as the discussions leading to the Rome Convention,1 a major objection to the full recognition of public performance rights in sound recordings was
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