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Pirate Tales from the Deep [Web]: An Exploration of Online Copyright Infringement in the Digital Age
Full text linkTechnology has seen a boom over the last few decades, making innovative leaps that border on science fiction. With the most recent technological leap came a new frontier of intellectual property and birthed a new class of criminal: the cyber-pirate. This Article discusses cyber-piracy and its interactions and implications for modern United States copyright law. The Article explains how copyright law, unprepared for the boom, struggled to adapt as courts reconciled the widely physical perceptions of copyright with the digital information being transferred between billions of users instantaneously. The Article also explores how cyber-piracy has made, and continues to make, its mark on copyright enforcement through political movements that vie for reduced copyright protections and support elusive distribution platforms that are nearly impossible to shut down permanently. As technology continues to surge forward, and 3D printers become increasingly available to consumers, copyright law will have to account for a new field of works that may need to be protected in the face of rising political turmoil
Design Patent Infringement Needs a Free Expression Defense (La infracción de patentes de diseño necesita una defensa de libre expresión)
Full text linkEnglish Abstract: As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression.
Spanish Abstract: Las patentes de diseño se propagan en abundancia en el derecho de la propiedad intelectual. Mientras tanto, las patentes de diseño enfrentan desafíos legales aún inexplorados. Enfocándose en la ley estadounidense, este artículo postula que las patentes de diseño violan los derechos fundamentales si no hay una defensa a la infracción fundada en la libertad de expresión. Diseño es único entre las patentes debido a su capacidad expresiva. Por lo tanto, debe acomodarse a la libertad de expresión con defensa de uso o trato justo, comparable a la ley de los derechos de autor
Gun Control to Major Tom: An Analysis of Failed Gun Regulations and the Terrorist Watchlist
Full text linkAs a division of the Federal Bureau of Investigation’s National Security Branch, the Terrorist Screening Center maintains the Terrorist Watchlist, a central database for identifying individuals known or suspected to engage in terrorism or terrorist activities. Subsumed under the Terrorist Watchlist is the No Fly List, which prohibits individuals from boarding commercial aircrafts in and out of the United States. Placement on either list presumes named individuals as a potential threat to U.S. national security, yet there is no restriction preventing them from legally purchasing firearms. Following a mass shooting at an Orlando nightclub in June of 2016, which was perpetrated by an individual recently removed from the Terrorist Watchlist, the Senate proposed two gun control measures specifically aimed at preventing individuals on the Terrorist Watchlist from purchasing firearms. Both proposals were rejected. This article explores the constitutional and procedural concerns that led the Senate’s rejection of both proposals, and concludes by introducing gun control regulation tailored to address those concerns
Fall 2017 Newsletter: The Docket
Full text linkCopy of the Fall 2017 issue of the UMass Law Library Newsletter, The Docket
Final Cut: The West’s Opportunity to Accommodate Asylee Victims of Female Genital Mutilation
Full text linkIn an era where immigration and asylum is at the forefront of many western nationals’ minds, so too should be the reasons behind an individual’s intent to seek refuge in a new country. Statistics have shown that one of the pragmatic reasons women and girls, particularly from Middle Eastern and African nations, seek refuge through western asylum programs is to escape or recover from Female Genital Mutilation (FGM). While the practice has been a longstanding tradition in various communities around the world, modern western governments and international entities have moved to abolish the tradition completely, given its alarming implications against human rights.
In order to reconcile the stark differences between what many regard as a traditional practice and others now consider a human rights violation, there must be a comprehensive understanding of the history and evolution of FGM, its significance to female asylum seekers, and its implications for the future of western immigration processes
International Legal Education and Specialist Certification (Year in Review)
Full text linkThe American Bar Association (ABA) promulgates rules and regulations that apply to all United States law schools with ABA-accreditation and approval. Those rules apply specifically to schools offering programs leading to a J.D. degree. In August 2016, the ABA Council approved certain changes to the ABA Standards and Rules of Procedure for Approval of Law Schools, which became effective on August 9, 2016. The changes affected not only J.D. programs, but also study abroad programs offered by ABA member schools
Agency Imprimatur & Health Reform Preemption
No full textAt this moment, there exists nearly unanimous agreement that the American health care system requires reform, but also vehement disagreements over what form regulation should take and who should be in charge of regulating—state or federal authorities. Preemption doctrine typically referees disputes between federal and state regulatory efforts, but it also exacerbates them. There exists nearly as unanimous opinion that preemption doctrine in health law is a mess. This Article identifies an inventive structure that may help defuse some preemption problems in health reform.
The Affordable Care Act’s (ACA) individual and employer mandates, health insurance exchanges, and insurance coverage standards established preemptive federal baselines for health insurance regulation. Yet the ACA also permits states to apply for a waiver of all these baseline provisions, if they promise to enact state legislation with equivalent protections. Through this waiver provision—the “section 1332” or “state innovation” wavier—the federal agencies may sanction state variations if the agencies find suitable evidence that the variations will further the goals of the federal baselines.
The ACA’s combination of express preemption and guided waiver raises a novel confluence of “big waiver” theory and preemption doctrine. This Article posits that this confluence offers an “agency imprimatur” model that has great potential for managing health law federalism issues by circumventing conflict. At its best, the agency imprimatur model offers advantages over preemption in expertise, transparency, and communicative federalism. These potential advantages, however, hinge on the presence of meaningful waiver standards that preserve the statutory priorities and require reliance on agencies’ substantive expertise. The section 1332 wavier is not without its pitfalls, but the recently proposed mega-waivers would erode all of these potential gains
Protecting Homeowners\u27 Privacy Rights in the Age of Drones: The Role of Community Associations
Full text linkHomeowners\u27 notions of privacy in their dwellings and surroundings are under attack from the threat of pervasive surveillance by small civilian drones equipped with highly sophisticated visual and data-gathering capabilities. Streamlined rules recently issued by the Federal Aviation Administration ( FAA\u27) have unleashed technological innovation that promises great societal benefits. However, the new rules expose homeowners to unwanted snooping because they lack limits on the distance drones may operate from residential dwellings or time of operations. Indeed, our society should not expect a federal agency to deal effectively with the widely diverse issues of drone technology facing the states, given the different needs of urban and rural communities. The FAA wisely anticipates adopting a multi-layered regulatory framework to address privacy issues. State and local governments, by contrast, are lagging far behind in regulatory efforts, and Fourth Amendment jurisprudence has not kept pace with the privacy issues raised by drones operating in residential areas. Municipalities are best prepared to craft reasonable limitations to safeguard their residents, but few are doing so at the neighborhood level. Fortunately, the sixty-eight million homeowners living in condominium and homeowner associations and cooperatives ( community associations\u27)may look to such quasi-governmental organizations for nimble and responsive action where they live. Community associations have authority and powers similar to municipalities and constitute the level of government closest to homeowners. This Article demonstrates that community associations, home to twenty percent of America\u27s homeowners, constitute the level of government most familiar with characteristics of their neighborhoods and are the best positioned entities for safeguarding the privacy expectations of their homeowners as society adjusts to the uncertain and accelerating world of drone technology
Emerging Adults: A New Understanding of Millennial Law Students
Full text linkThe challenges facing emerging adults in law school can be some of the vexing for Academic Success professionals if these students are assumed to have the adult life experiences of prior generations of law students. However, their challenges can be some of the simplest to solve when Academic Success professionals are aware of trends in law school admissions and undergraduate education. Academic Success professionals have the tools to work with doctrinal or substantive professors to provide context to the difficulties students are experiencing with understanding class discussions
Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government in Second U.S. Supreme Court Privacy Case with International Implications
Full text linkFall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises under the SCA, involves criminal investigation and new technology, and implicates collision between the third-party doctrine and European privacy law. In United States v. Microsoft, however, the implications for international law loom larger