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FLUID AGENCY IN AI SYSTEMS: A CASE FOR FUNCTIONAL EQUIVALENCE IN COPYRIGHT, PATENT, AND TORT
No full textModern artificial intelligence (AI) systems lack human-like consciousness or culpability, yet they exhibit fluid agency: behavior that is (i) stochastic (probabilistic and path-dependent), (ii) dynamic (co-evolving with user interaction), and (iii) adaptive (able to reorient across contexts). Fluid agency generates valuable outputs but collapses attribution, irreducibly entangling human and machine inputs. This fundamental unmappability fractures doctrines that assume traceable provenance—authorship, inventorship, and liability—yielding ownership gaps and moral “crumple zones.”
This Article argues that only functional equivalence stabilizes doctrine. Where provenance is indeterminate, legal frameworks must treat human and AI contributions as equivalent for allocating rights and responsibility—not as a claim of moral or economic parity but as a pragmatic default. This principle stabilizes doctrine across domains, offering administrable rules: in copyright, vesting ownership in human orchestrators without parsing inseparable contributions; in patent, tying inventor-of-record status to human orchestration and reduction to practice, even when AI supplies the pivotal insight; and in tort, replacing intractable causation inquiries with enterprise-level and sector-specific strict or no-fault schemes. The contribution is both descriptive and normative: fluid agency explains why origin-based tests fail, while functional equivalence supplies an outcome-focused framework to allocate rights and responsibility when attribution collapses
Lawyering for Liberation: A Toolbox for Movement Lawyers
No full textThis fiery manifesto provides a concrete action plan for legal professionals and activists advancing Black liberation and transformative social change. Revolutions happen in the streets, not in courtrooms. But in the struggle against systems increasingly designed to perpetuate inequality and benefit those in power, lawyers must do their part. As leaders from the acclaimed movement lawyering and advocacy organization Law for Black Lives, editors Marbré Stahly-Butts and Ameca Reali have spent years on the front lines of transformative social change. With Lawyering for Liberation, they offer concrete tools for fellow legal workers and lawyers working to achieve a just future. Grounded in the politics of abolition, Black queer feminism, and anticapitalism, this approachable how-to guide distills key concepts of movement lawyering and assembles advice from dozens of lawyers, legal workers, and organizers in areas like jail and bail support, stop-and-frisk litigation, protester defense, reparations, family law, housing, and more. The result is not just a manual for resistance but an urgent call to join the movement.https://digitalcommons.law.uw.edu/faculty-chapters/1076/thumbnail.jp
FISCAL SPONSORSHIP IN TRULY INDEPENDENT FILM: ENTITY AND MODEL CHOICE AND LEGAL RISKS
No full textThis article examines fiscal sponsorship as a legal and financing structure for “truly independent” films—low-budget, non-commercial projects created by filmmakers without access to studio financing, tax incentives, or traditional investors. Neither standalone nonprofit incorporation nor purely for-profit entity structures adequately address the unique needs of such projects. After surveying the development of fiscal sponsorship as a means of funding projects that meet an exempt purpose, relevant IRS guidance, and current prevailing practices and organizational structures in independent film, the article contends that a Model C (“regranting”) fiscal sponsorship paired with a single-member limited liability company (SMLLC) offers the optimal balance of compliance, liability protection, fundraising access, and filmmaker/producer creative control. The article compares alternative entities and sponsorship models, identifies key governance and contractual requirements, and analyzes common compliance risks through IRS rulings and case law. It concludes by recommending clearer regulatory guidance to legitimize and stabilize fiscal sponsorship as an important tool for funding independent artistic film projects in an increasingly constrained industry landscape against the backdrop of Trump-era cuts to traditional arts organizations
DEATH OF SUBSTANTIALITY: WHY THE LEGAL SYSTEM SHOULD RETHINK THE APPLICATION AND WEIGHT OF THIS FAIR-USE FACTOR IN THE CONTEXT OF SOCIAL MEDIA
No full textThe fair use test for exemption for liability from copyright infringement was codified in the 1970s and has not been updated since—despite major technological changes in the interim. While three of the test’s four prongs are still useful when applied to short-form media that now dominates worldwide media consumption, the factor that considers the substantiality of the portion used relative to the total work is obsolete. The current dysfunctionality of this prong in social media settings is not the only reason it should be reassessed by courts and Congress. The prong and its analysis are a bit of a Frankenstein. The courts have directly changed it by introducing considerations for whether the portion taken, though small, was the “heart” of a work. They have indirectly changed it by heavily relying on another factor of fair use, the “transformativeness” of the work, as dispositive for decades. Together, the direct and indirect changes paired with inoperability in the social media context paint a damning picture for the substantiality prong. Furthermore, as applied to many contemporary social media examples, the factor always produces the same result: that the portion borrowed is not substantial. This is in large part attributable to the design of these platforms, which lean into short-form content. Inoperable legal tests deserve reconsideration, and the substantiality prong of fair use is no exception. The judiciary, as the entity that applies and interprets law, has the authority to and should change how substantiality is weighed in social media cases. This change in interpretation will hopefully provide a blueprint for a subsequent meaningful Congressional amendment to the actual fair use test to better represent social media’s presence and influence on how fair use is applied.
This paper begins with a history of fair use and the substantiality prong, in particular, followed by documentation of the prong’s judicial abrogation since fair use’s codification. It then considers whether the substantiality prong is workable contemporarily in light of our changing media environment, and provides social media case studies ranging from musical remixes to snippets from TV series in which the prong would fail by always producing the same result, that the infringing use is fair use, and therefore exempt from liability
Teaching Cross-Cultural Communication in Law School: Lessons from Medicine, Social Work, and Business
No full textLegal clients in the United States are increasingly multilingual and multicultural. More than 71 million people living in the United States communicate in a language other than English. Consequently, the lawyer’s duty of shared understanding is taking on new meaning. With the advent of ABA Ethics Opinion 500, cross-cultural communication skills are a lawyer’s ethical duty and a law school’s mandate. Additionally, ABA Standard 303(c) and the potential of increased experiential learning credit requirements make clear that immediate curricular changes are needed. To prepare for the modern practice of law, tomorrow’s lawyers need to develop cross-cultural skills while in law school. Yet only sixty-seven schools list cultural competence as a learning objective.
This Article proceeds in three parts. In Part II, this Article assesses the need for comprehensive cross-cultural competency training in law school, outlining how and when cross-cultural communication skills specifically can—and should—be incorporated into the legal curriculum. In Part III, this Article reviews the cross-cultural competency training and best practices of similarly situated professional fields, identifying common components of cross-cultural competence duties, curricular approaches, and best practices for fostering effective cross-cultural and cross-lingual professional relationships. In Part IV, this Article reviews legal education’s pedagogical approaches to cross-cultural competence, centers our discussion on cross-cultural communication in that framework, and identifies four key concepts necessary for cross-cultural communication and how to incorporate them across the first-year curriculum
CARANO V. DISNEY: THE FIRST AMENDMENT RIGHT OF EXPRESSIVE ASSOCIATION AS A DEFENSE TO FIRING EMPLOYEES FOR THEIR POLITICAL SPEECH
Full text linkFollowing a series of controversial social media posts by actress Gina Carano, a cast member of the Disney+ Star Wars series, The Mandalorian, Disney terminated her employment on the show and announced that Carano would not appear in any future Star Wars projects. According to Disney, Carano was terminated because the views expressed in her posts did not align with the company’s values. Carano filed suit against Disney, claiming Disney violated California state labor laws that generally prohibit employers from sanctioning employees for their political activities. In response, Disney claims that the First Amendment right of expressive association provides an absolute defense to Carano’s action. Disney argues that this right allows an employer who is engaged in expressive activity, or protected speech, to terminate employees who the employer believes will interfere with or compromise the message the employer wants to send with its speech, even when that termination would otherwise violate the law. In essence, Disney is arguing that the high-profile, controversial positions Carano has taken detracts viewers of The Mandalorian from the show’s messages, and that the First Amendment protects its decision to terminate her employment as a result. This article examines case law on the right of expressive association, as well as the main arguments made by each of the parties in the case, to conclude that the weight of authority is on Disney’s side
Redefining Intellectual Property Protection: NFL Plays in the Digital Age
Full text linkAmerican copyright law is fluid. Its changes have mirrored evolutions in society, be they technological, cultural, or economic. At its core, copyright law exists to promote the progress of the arts and sciences; yet, the law’s outdated nature leaves many creations on the outside looking in. The last substantial copyright legislation to pass through Congress was the Copyright Act of 1976, which was nearly fifty years ago. Much has changed since, including vast technological improvements, new and emerging interests in American society, and now global economic drivers. One industry that meets these characteristics and is not currently afforded protection is sport.
Sport, at its core, is born out of creativity. Games that span the globe would not have evolved into a staple of daily life without the evolution of design, skill, and originality. Particularly in the National Football League, creativity plays a huge role in the game’s success. Coaches are tasked with drawing up complex play designs for their players, who then perform them on a high level. Sport, in many ways, is similar to choreographic works, a category of copyrightable subject matter under the 1976 Copyright Act. The two share many characteristics, including physical movement and compositional arrangement. Congress’s lack of definitiveness about the definition of choreographic works leaves room for interpretation of what really constitutes a choreographic work.
The sport industry, while already holding copyrightable attributes, has now evolved into a new form of expression. The National Football League’s launch into virtual reality in 2022 resulted in creative play designs crossing into the digital medium. Now, users at home can perform like real-life athletes with plays drawn up by real-life coaches. At its peak, the sport industry reaches into all sectors of American society. Virtual reality is the next frontier within intellectual property discussions and presents new opportunities to extend copyright protection to an industry that is long overdue for attention. This Comment aims at furthering copyright law’s goal of progressing the arts by extending protection to creative sport play design. By looking at the law’s history and its evolution through time, this Comment seeks to redefine the statute’s text, either by expanding already established forms of protectable material like choreographic works, or by expanding the law as we know it