Assigning Infringement Claims: Silvers v. Sony Pictures

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are the risks of losing the suit? You will have to fight against a defendant with almost unlimited financial resources, so even if your case is strong, there is a real risk that you may not prevail. A better option might be to sell your accrued infringement claim to a third party who is better able to take on the financial risk of the litigation. This allows you to retain your copyright in the script and walk away with a tidy sum, without risking your life savings trying to win in a David-versus-Goliath fight against the Hollywood studio. But can you transfer the accrued claim without also selling your rights in the copyright itself? Will the third party investor have standing to bring the suit if he does not also own the copyright in the script? Recently, the Ninth Circuit answered no to both these questions. In Silvers v. Sony Pictures Entertainment, Inc., the court, sitting en banc, found that accrued claims for infringement may be assigned only along with the underlying copyright. The majority\u27s decision is, however, riddled with problems. First, the majority ignores the common law background against which all statutes must be interpreted. Second, the majority opts for a logically inconsistent reading of the Copyright Act to justify its holding. Third, the majority draws an untenable analogy between standing to sue in patent and copyright cases. Finally, the court\u27s conclusion contravenes the basic purposes of the Copyright Act: to provide ex ante incentives for creativity by providing protection to copyright holders, regardless of their wealth

Striking an Equitable Balance: Placing Reasonable Limits on Retroactive Zoning Changes after Kittery Retail Ventures, LLC v. Town of Kittery

Thirty years ago, a developer who wanted to build a shopping center had to do little more than obtain a building permit to go forward with the project. Today, however, the regulation and review of development projects involves a lengthy process of securing a series of permits, often including site plan or subdivision approvals, traffic studies, and environmental impact reviews. Navigating this review process forces developers to negotiate with the community and design their projects to fit the applicable standards adopted by the local, state, and federal regulations, arguably improving the quality of development in our communities. But the lengthy review process also forces developers to invest enormous amounts of money in the planning phase of development, a phase during which the developer in most states has few (if any) vested rights and in which land use ordinances can be changed in a manner that would prevent the entire project. In Kittery Retail Ventures, LLC v. Town of Kittery, the Maine Supreme Judicial Court, sitting as the Law Court, upheld a citizen-initiated zoning change that had this very effect-a retail development project was blocked. The project had been proposed and was being reviewed by the town\u27s planning board under then-existing ordinances, before the referendum proposal was filed. Indeed, the referendum was a direct effort to defeat the developer\u27s proposal. Rather than acknowledging the increasingly complex development process, the Law Court adhered to traditional vested rights rules, holding that a developer does not obtain a vested right to develop until a valid building permit has been issued and physical construction has actually begun. After rejecting the developer\u27s argument that the targeted nature of the zoning change should give the developer an equitable vested right, the court found that retroactive application of the zoning change did not violate the developer\u27s right to substantive due process because the developer did not have a vested property right in the project. Thus, the zoning change was permitted to reach back and bar a project that had been proposed months before the citizen-initiated referendum at issue in the case had been proposed. By validating a virtually unlimited reach-back power, the Law Court has failed to properly balance the equities that underlie a traditional vested rights analysis. Instead of strik[ing] a fine balance between the competing interests of the developer and the municipality, the court has virtually ignored the interests of the developer. At the same time, by allowing municipalities to enact zoning changes with unlimited reach-back provisions, the court has removed any incentive for meaningful, comprehensive planning. Instead, municipalities are free to change their standards at will to disapprove individual projects that a group of citizens happen not to like. Ultimately, this power to zone retroactively renders any attempts at prospective planning completely meaningless. At roughly the same time that the Law Court was undermining the importance of prospective planning with its holding in Kittery Retail Ventures, the Maine Legislature, like many other legislatures across the country, was sending precisely the opposite signal, mandating prospective planning by enacting a revised comprehensive planning statute. The Law Court should remove the serious disincentives to planning it has created, by reconsidering its holding in Kittery Retail Ventures. Unless the court does so, the Maine Legislature should act to reinforce the importance of comprehensive, prospective planning by enacting a statute that limits the retroactive application of changes in land use standards

Chipping away at gamma-H2AX foci

The mammalian histone H2AX protein functions as a dosage-dependent genomic caretaker and tumor suppressor. Phosphorylation of H2AX to form gamma-H2AX in chromatin around DNA double strand breaks (DSBs) is an early event following induction of these hazardous lesions. For a decade, mechanisms that regulate H2AX phosphorylation have been investigated mainly through two-dimensional immunofluorescence (IF). We recently used chromatin immunoprecipitation (ChIP) to measure gamma-H2AX densities along chromosomal DNA strands broken in G(1) phase mouse lymphocytes. Our experiments revealed that (1) gamma-H2AX densities in nucleosomes form at high levels near DSBs and at diminishing levels farther and farther away from DNA ends, and (2) ATM regulates H2AX phosphorylation through both MDC1-dependent and MDC1-independent means. Neither of these mechanisms were discovered by previous if studies due to the inherent limitations of light microscopy. Here, we compare data obtained from parallel gamma-H2AX ChIP and three-dimensional IF analyses and discuss the impact of our findings upon molecular mechanisms that regulate H2AX phosphorylation in chromatin around DNA breakage sites

Long-duration exercise at moderate work loads

Metabolic effects of long duration exercise at moderate work loads including tables of heart rate, rectal temperature, minute volume, water balance, and respiratory quotien