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The First Sale Doctrine and Foreign Sales: The Economic Implications in the United States Textbook Market
Full text linkThis Article investigates the impact of the Kirtsaeng decision. After discussing the first sale doctrine, this Article presents the issues around implementing a worldwide first sale doctrine. International treaties attempt to ensure that authors can benefit from their work by affording them similar protections in different jurisdictions. But a worldwide first sale exhaustion limits the ability of copyright holders to profit from their work because it allows the author to compete with its own work that had been priced differently in different jurisdictions. Finally, this Article tests whether, in the United States, the price of textbooks has been affected by the Kirtsaeng decision and finds that the price of textbooks increased between 2001 and 2018 but not more rapidly or slowly after the decision. In other words, the decision may not have had any effect (yet)
Massachusetts at the Forefront: How to Protect the Most Vulnerable Group in a Post-Legal Sports Betting World—NCAA Student-Athletes
Full text linkChange is coming to sports gambling in the United States. No longer is it restricted to Nevada casinos or your “friendly” neighborhood sports bookie. The individual states have spoken, with state after state passing legislation authorizing legalized sports betting. It is clear that there is an appetite for legal sports gambling in this country. But how did we get here? And what will the ramifications be? This Note first analyzes the keystone sports gambling case, Murphy v. NCAA, and its impact on the destruction of the Professional and Amateur Sports Protection Act, which was commonly viewed as a federal ban on sports gambling. With states now able to create their own unique laws authorizing sports gambling within their borders, it is imperative that the legislation protect arguably the most vulnerable group affected by the Murphy decision: NCAA student-athletes. There are likely many problems, issues, and harms that current NCAA student-athletes will now face, including temptations to fix games. These new concerns create a duty for Massachusetts to enact sports gambling legislation with NCAA student-athletes in mind. This Note will conclude with solutions to these newly raised issues, including proposed changes to NCAA amateurism rules as well as proposed legislation which Massachusetts must adopt to protect this vulnerable group of individuals
Meat Wars: The Unsettled Intersection of Federal and State Food Labeling Regulations for Plant-Based Meat Alternatives
Full text linkDue to technological advances and the rise in popularity of plant-based meat alternatives (i.e., Beyond Meat, the Impossible Burger, etc.), nearly thirty states have proposed or enacted legislation to limit which foods can be labeled with terms that have traditionally been used to describe products derived from animal carcasses (i.e., meat, burger, sausage, etc.). Fueled in many places by the cattle industry, the states’ legislation proposes stricter guidelines than the federal counterparts in an attempt to specifically prohibit plant-based, cell-based (lab-grown meat), and even insect-based products from being labeled in meat-associated terms. To date, lawsuits have been filed by opponents to the enacted laws in three states (Missouri, Arkansas, and Mississippi), challenging the laws as unconstitutional on First and Fourteenth Amendment grounds. All lawsuits are currently pending at the time of this writing. This Note will use the recent litigation regarding the “dairy wars” (i.e., lawsuits regarding laws that limit almond/soy/non-dairy beverages use of the term “milk”) as a parallel comparison to the “meat wars,” and proposes a potential resolution to the labeling of plant-based meat alternatives dispute that allows those products to continue using meat-related terms by amending federal guidelines
Dalliances, Defenses, and Due Process: Prosecuting Sexual Harassment in the Me Too Era
Full text linkThis Article will likewise examine the prosecution of sexual harassment in what has come to be called the Me Too Era, not only by analyzing the constitutional application and limitations of due process, the promulgation of Title IX policies4 on campuses and their effect on public students and employees, and the limited remedies available to workers in private entities, but to suggest as well ways by which academics can move their message beyond theory and into pragmatic solutions with greater impact
Brief of \u3cem\u3eAmicus Curiae\u3c/em\u3e Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent
Full text linkThis brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court
The Problem of Online Manipulation
No full textRecent controversies have led to public outcry over the risks of online manipulation. Leaked Facebook documents discussed how advertisers could target teens when they feel particularly insecure or vulnerable. Cambridge Analytica suggested that its psychographic profiles enabled political campaigns to exploit individual vulnerabilities online. And researchers manipulated the emotions of hundreds of thousands of Facebook users by adjusting the emotional content of their news feeds. This Article attempts to inform the debate over whether and how to regulate online manipulation of consumers. Part II details the history of manipulative marketing practices and considers how innovations in the Digital Age allow marketers to identify, trigger, and exploit individual biases in real time. Part III surveys prior definitions of manipulation and then defines manipulation as an intentional attempt to influence a subject’s behavior by exploiting a bias or vulnerability. Part IV considers why online manipulation justifies some form of regulatory response. Part V identifies the significant definitional and constitutional challenges that await any attempt to regulate online manipulation directly. The Article concludes by suggesting that the core objection to online manipulation is not its manipulative nature but its online implementation. Therefore, the Article suggests that, rather than pursuing direct regulation, we add the threat of online manipulation to the existing arguments for comprehensive data protection legislation
Unmasking the Right of Publicity
No full textIn the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity—a transferable intellectual property right. The right has since been seen to protect the commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Among other frequent criticisms, the right of publicity is accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for a proprietary right in one’s personality. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through influential books including Law and the Modern Mind and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. This Article suggests that the modern right of publicity’s aim, as perhaps intended by Judge Frank in considering his psychoanalytic jurisprudence, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and new media increasingly blur the traditional distinctions between public and private. The Article thus concludes by examining intersubjective personality theory. Intersubjectivity could provide publicity law with a useful conceptual update given its view of the self and personality as a relational, contextual, and social construct, rather than a public-private dichotomy
Fall 2020 Newsletter: The Docket
Full text linkCopy of the Fall 2020 issue of the UMass Law Library Newsletter, The Docket
Spring 2020 Newsletter: The Docket
Full text linkCopy of the Spring 2020 issue of the UMass Law Library Newsletter, The Docket
Complicated Lives: A Look Into the Experience of Individuals Living with HIV, Legal Impediments, and Other Social Determinants of Health
Full text linkThose living with HIV continue to have challenges that extend well beyond their medical needs Public misconceptions surrounding HIV transmission and treatment have resulted in systemic and pervasive discrimination against those living with the disease. Common misconceptions include overly optimistic perceptions of the modern state of medical treatment, leading the uninformed to conclude that people living with HIV are minimally impacted by the disease, and misunderstandings regarding how the disease is transmitted from person-to-person, leading to stigma and social prejudice. Because of these misconceptions, three professors from the University of Massachusetts Dartmouth formed a community partnership to determine the unmet needs of individuals living with HIV in the Southcoast region of Massachusetts. The team used the social determinants of health as its framework for conducting a community assessment. The goal of the study was to uncover factors preventing individuals living with HIV from attaining optimal health outcomes. The study addressed the concerns of those living with HIV in Southcoast, Massachusetts. However, the barriers faced by those living with HIV in Southcoast mirror difficulties faced by those in other areas of the country in fundamental ways. This study and others reveal that the social determinants of health influence the quality of life experienced by those living with HIV as much as the condition itself. Out of this study developed the University of Massachusetts School of Law Human Rights at Home Clinic which provides services to low income residents of Southcoast Massachusetts with an interest in serving people living with HIV or AIDS and others experiencing stigma. The implementation of the clinic and its work is not the subject of this article, but its ongoing community activism informs the article’s discussion. Part I describes the study partnerships as well as the study processes. Part II addresses legal and other stressors on those living with HIV that impact many HIV positive individuals locally and across the country. Part III includes a discussion of the study results and the ongoing needs of those living with HIV with a focus on transportation