Congratulations to SHU Law Professor Frank Pasquale

Seton Hall University School of Law has announced the appointment of Frank Pasquale as the Schering-Plough Professor in health care regulation and enforcement.

Professor Pasquale has been a member of the Seton Hall Law Faculty since 2004 and is the Associate Director of the Center for Health & Pharmaceutical Law & Policy. He has distinguished himself as an internationally recognized scholar in health, intellectual property, and information law. He has made numerous academic presentations at universities across North America and at the National Academy of Sciences.

A prolific writer, Professor Pasquale’s work has been featured in top law reviews, books, peer-reviewed journals, and online blogs, including Health Reform Watch, of which he is Editor-in-Chief. A frequent media presence, he has appeared in the New York Times, San Francisco Chronicle, Los Angeles Times, Boston Globe, Financial Times, and on CNN, WNYC’s Brian Lehrer Show, and National Public Radio’s Talk of the Nation.Professor Pasquale has testified before Congress and before the New York City Broadband Advisory Commission. He has presented before the Task Force on Competition Policy and Antitrust Laws of the House Committee on the Judiciary, appearing with the General Counsels of Google, Microsoft, and Yahoo.

At Seton Hall Law, Professor Pasquale has taught courses in health care finance and regulation, intellectual property law, and administrative law. He received his J.D. from Yale Law School, his M.Phil. from Oxford University, and his B.A. summa cum laude from Harvard University.As the Schering-Plough Professor in Health Care Regulation and Enforcement, Professor Pasquale will contribute scholarship which will include public policy analysis of issues related to administrative law, the regulatory and enforcement concerns of providers and patients, FDA law, and drug and device innovation.

This Professorship was made possible by a $2.5 million endowment from the former Schering-Plough Corporation and the Schering-Plough Foundation. The Schering-Plough Foundation supported the advancement of health, education, public policy, and community initiatives.

Article courtesy of Seton Hall Law School

Threading the American Needle.... SCOTUS Rules Against NFL

In what has been described as the Sports Case of the Century, today the Supreme Court has laid down its ruling.... The conduct that the NFL sought approval of was considered "concerted activity" and in violation of The Sherman Act.

In a unanimous opinion authored by Justice Stevens (likely a tribute to the Justice during his last few weeks on the court), lacking both a concurrence or a dissent, the Justices said the league should be considered 32 SEPARATE teams, not a single business falling under the "Single Entity" exception to The Sherman Act.

The league sought to get the same broad protection that is enjoyed by professional baseball, where individual teams can make financial decisions as one business. The case arose from a small Illinois-based manufacturing company that previously held long-term contracts with NFL Properties, the licensing division (and separate company) of the NFL. But, right after the most recent licensing agreement between American Needle and NFL Properties expired, the leagued entered into a 10 year exclusive deal with Reebok. This meant that American Needle was no longer free to continue to negotiate their own manufacturing agreements with ANY team.

In the absence of this competition, fans have complained about skyrocketing prices of team merchandise, to which Justice Stevens addressed in his opinion by stating: "The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under the Sherman Act."

So what does this mean for players and fans? In a statement released earlier today from NFLPA Executive Director DeMaurice Smith, he stated that: "Today's Supreme Court ruling is not only a win for players past, present and future, but a win for the fans." He also went on to note that they would continue to fight for a fair collective bargaining agreement in good faith to avoid a lockout.

Celebrity Justice???

On Thursday, May 20, Judge Marsha Revel was tough as nails on the fallen-from-grace, Lindsay Lohan. While Lohan was partying in Cannes and claiming that her Passport was stolen (although the French police have reported to US Authorities that no police report was filed), her attorney, Shawn Chapman Holley, told the judge that she tried to make the flight but was turned away. Judge Revel set Lohan's bail at $100,000, which posted this morning so she will avoid arrest upon return to the States, and set several conditions upon Lohan when she returns. Most notably: Lohan will have to wear the SCRAM bracelet, which will alert authorities (by report every 30 minutes) of Lohan's blood alcohol level. Lindsay was ordered to not drink any alcohol until her formal hearing, and is to be randomly drug tested as well. Attorney Holley argued against the random drug testing, but the judge reminded her that Lindsay was charged with being under the influence of cocaine in 2007, to which the attorney responded "I don't know what else to tell you."

Although Lohan has allegedly sent out pleas to friends to find a private jet to get her back to the states, pictures as recently as this morning show her getting off a party yacht at 7:30am French time. Other pictures have surfaced of her partying during the days immediately preceding the hearing that she failed to show for. Her attorney reports that she will come back to the United States sometime today, and that they will be at the Beverly Hills Courthouse on Monday morning at 8:30am.

Will Lindsay Lohan have to finally face the music?

Should Hollywood be nervous about the latest Supreme Court nominee?

A few days ago Eriq Gardner of The Hollywood Reporter wrote an article that warned Hollywood of the reprecussions that would occur should the Senate confirm President Obama's Supreme Court nominee, Elena Kagan.

While Mr. Gardner correctly asserts that much isn't known about Kagan's philosophy, is there a reason for movers and shakers in the entertainment industry to be worried about what Kagan's effect on the Supreme Court will mean for copyright protection?

The issue of "fair use" in copyright law is hardly concept that has been so precisely defined by courts so as to leave little room for interpretation. In fact, judicial history indicates almost the complete opposite. While Kagan was the Dean of Harvard Law School between 2003-2009, she recruited Lawrence Lessig and others who have a very liberal version of fair use for copyright holders.

To hear his opinion in more detail, watch the video below from March 6, 2010, in which Mr. Lessig delves into understanding fair use.

Kagan is most notorious in the IP world for her opinion on the infamous Cablevision case, in which she wrote from her role as U.S. Solicitor General. The Cablevision argument arose when Cablevision announced its intention to enlist a Remote Storage Digital Video Recorder system (RS-DVR) so that customers would actually be storing their recorded programs on Cablevisions internal servers rather than on a physical box in their own homes. The 2nd Circuit famously overturned the trial court in holding that this was not a violation of copyright holders rights in 2008. Naturally the case was appealed to The Supreme Court, which is where Kagan's opinion came in, where she recommended that SCOTUS not hear the case.

What do you think? Will Kagan push against Hollywood in protecting copyright holders rights, fight for stronger protections for First Amendment rights, or will it even matter because her confirmation won't get approved by the Senate? Should Hollywood be afraid?

S.D.N.Y. hands down new copyright decision. RIAA gets the big W.

The music industry has landed another blow in a recent string of copyright cases against Peer-2-Peer networking giants. U.S. District Court Judge Kimba Wood for the Southern District of New York has ruled, on summary judgment mind you, that Limewire, one of the oldest file-sharing networks on the internet, is guilty of inducement of copyright infringement and engaging in unfair competition.

The theory of copyright inducement was first officially proffered by the Supreme Court in the landmark case of MGM v. Grokster, 545 U.S. 913 (2005), when one "engages in culpable expession or conduct" that would encourage another to commit infringement.

Similar to Grokster, surveys indicated that nearly 98.8% of the material downloaded through LimeWire are copyrighted materials, therefore making them unauthorized for distribution through LimeWire's network.

The RIAA has already reacted to the news in releasing the following comment: "This definitive ruling is an extraordinary victory for the entire creative community," said Mitch Bainwol, the organization's chairman and CEO. "Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their legal conduct following the Supreme Court's decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court's decision is an important milestone in the creative community's fight to reclaim the Internet as a platform for legitimate commerce."

Arista Records Summary Judgment Opinion

Two new industry blogs

Two new industry-related blogs have been launched recently.

The first, National Developments in Labor and Employment Law, is published by Greenberg Traurig's Labor and Employment Law Group. This blog is run by veteran attorneys Jonathan L Sulds and John Scalia.

The second, Labor Relations Today, is published by McKenna Long & Aldridge's Labor and Employment Group. This blog is run by Seth H. Borden and Richard F. Hankins.