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Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment
Get PDFProfessional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks to the more general challenge of balancing privacy and freedom of expression in the digital age.At the outset of this essay, I describe the scope of the empirical project and the process of collecting data. Then, in three parts, I describe how photographers simultaneously collaborate with and control the subjects of the photographs they make in order to assert themselves as civic storytellers with broad free speech rights in our digital age. I identify a conflict between photographers and their subjects, which serves to maximize the aesthetic freedom of photographers at the expense of their subjects. This conflict resolves in the photographers’ accounts through their caretaking role over their photographs on behalf of the subjects themselves. I conclude with a brief explanation of why it matters to better understand these professional photographic norms in our Internet age when free speech and privacy are increasingly in conflict
Manufactured Emergencies
Get PDFEmergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce this threat to political order, we must re-calibrate judicial incentives to reward good-faith invocations of limited emergency power, while punishing efforts to solve ordinary public-policy disputes by fabricating or grossly exaggerating problems. This Essay is a start: it recommends the situational loss of deference whenever there is reason to believe public officials are lying about an emergency or have grossly exaggerated the nature, severity, or duration of a real problem. It also urges minimum review of emergency-salient facts for sufficiency. These moves are more important, not less, in situations where the government invokes national security. And while it would entail a change in current practice, it would actually represent a return to an older effort on the part of judges to insist upon truth and empiricism. The approach would be helpful in such matters as legal challenges to Trump’s executive order imposing a “Muslim ban,” and unilateral efforts to build a physical border wall and rewrite immigration policy
Stirring the Pot: A Response to Rothman\u27s Right of Publicity
Get PDFAny commentary on Jennifer Rothman’s terrific book has to begin with a compliment to her extraordinary commitment to the right of publicity. For the uninitiated, her website, Rothman’s Roadmap to the Right of Publicity, provides a treasure trove of information about the right of publicity in each of the fifty states. Professor Rothman has also written several articles and a number of excellent amicus briefs in some of the most important right-of-publicity cases in recent years. Finally, this latest contribution—her book—harnesses this exhaustive research and presents it as a historical narrative that is comprehensive, thoughtful, and readable. This book will serve as required reading for scholars, lawyers, and historians trying to understand the history, foundations, and key attributes of this perplexing area of law
Public Health Law, 3rd ed.
No full textThis new edition offers a fresh take on the rapidly evolving field of public health law. Grounding students in foundational thematic concepts—what counts as a public health issue, choosing among multiple legal options, the changing scope and limits of government power, and ensuring justice and fairness—it examines major shifts in constitutional doctrine including federalism, speech, religion, reproductive rights, and privacy, as well as human rights at the global level. Cases and materials critically examine how these concepts apply to contemporary and future issues, including substance use, firearms, health insurance, food supply, big data, surveillance, epidemics, and disaster preparedness. This provides a useful framework for analyzing competing interests among governments, private entities, individuals, and human rights in multiple contexts and as the law changes.
The new edition is designed not only for those interested in public health law, but also for students in many other areas of law and public policy, including law students and graduate students in public health, public policy, and medicine.https://scholarship.law.bu.edu/books/1123/thumbnail.jp
Rising Confusion About \u27Arising Under\u27 Jurisdiction in Patent Cases
Get PDFBy statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . . . to the federal system as a whole.”Despite the Supreme Court’s holding that “fact-bound and situation-specific” patent issues do not warrant exclusive jurisdiction outside of infringement cases, the lower courts’ precedent in this area remains unsettled. The Federal Circuit has, at times, tried to resurrect its older case law extending exclusive jurisdiction to practically any patent-related tort, contract, or antitrust case. But, in other decisions, the Federal Circuit has constricted jurisdiction so dramatically that the Fifth Circuit recently refused to accept a case transferred to it by the Federal Circuit, deriding the Federal Circuit’s jurisdictional ruling as not just wrong but “implausible.” All of this uncertainty incentivizes costly and wasteful procedural maneuvering in a field where litigation is already expensive.This Article is the first to chronicle the rising confusion about the scope of the federal district courts’ and the Federal Circuit’s exclusive jurisdiction over cases arising under patent law. The Article critiques the case law emerging in the lower federal courts and proposes a jurisdictional rule that is both clear and consistent with Supreme Court precedent: For a case that does not involve claims of patent infringement to nevertheless arise under patent law, it must present a dispute about the content of federal patent law or a question about the interpretation or validity of the federal patent statute; questions about the validity or scope of a particular patent are not sufficient.In arguing for this new approach, the Article also engages broader questions about the jurisdictional structure of patent litigation. Among other things, it suggests that the courts or Congress should rethink longstanding doctrine that makes the test for Federal Circuit appellate jurisdiction identical to the test for exclusive original jurisdiction in the district courts. Exclusive district court jurisdiction entirely precludes state courts from shaping their own state’s law, so federal courts should be hesitant to exercise jurisdiction over a tort or contract claim simply because there is a patent lurking in the background. But when a patent-related case is properly in federal district court, the Federal Circuit’s expertise in patent law and ability to provide uniformity counsel in favor of giving the court a broad scope of appellate jurisdiction
Campaigns Must Prepare for Deepfakes: This Is What Their Plan Should Look Like
No full textIt is only a matter of time before maliciously manipulated or fabricated content surfaces of a major presidential candidate in 2020. Here is what every campaign needs to do in advance of a deepfake emergency
Digital Platforms and Antitrust Law
Get PDFThis Article is about big data and antitrust law. Big data, for my purposes, refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of consumer data by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct, but to economies of scale. This Article discusses three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require a reform of the antitrust laws. Some are described as two-sided markets, but this designation, even after Ohio v. American Express Co., should not present an obstacle to the application of antitrust law
Reparations for Central American Refugees
Get PDFIn the midst of vicious and unrelenting attacks on Central American asylum seekers in the United States, this Article seeks to understand historic and present-day patterns of animus and discrimination facing this group of refugees, and to propose solutions. This Article begins by examining decades of prejudice faced by Central American asylum seekers, as well as attempts to right those wrongs through litigation, legislation, and the creation of Temporary Protected Status (TPS). Next, this Article identifies the predominant push and pull factors driving Central American refugees north—and the U.S. role in creating them. The Article then lays out the impact of this Administration’s systemic attacks on Central American asylum seekers, in particular, through family separation and zero-tolerance, the asylum ban and Matter of A-B-, and the framework in which refugees should be permitted to seek protection under current U.S. law. Finally, this Article evaluates several potential solutions including humanitarian asylum, an expansion of TPS, and litigation. Ultimately, this Article concludes that, in light of decades of abuse and prejudice directed at this class of refugees, the only adequate means of reparation is congressional legislation that would carve out special, tailored protections for this vulnerable group
Employer Losses and Deferred Compensation
Get PDFMost large public companies offer their executives the opportunity to defer the receipt and taxation of their salary or other current compensation until retirement or some other future date, and equity compensation, which also entails deferral of pay and taxation, constitutes a large fraction of the typical executive pay package. Conventional wisdom holds that employer net operating losses (NOLs) improve the joint economics of deferred and equity compensation (henceforth together deferred compensation ) for the parties. However, empirical studies provide little evidence of an association between employer NOLs and deferred compensation use. This paper focuses on two potential explanations for this apparent disconnect. First, this paper shows that the relationship between employer NOLs and the attractiveness of deferred compensation is more complex and less predictable than is generally recognized, that a large NOL position does not necessarily produce a larger driving force for use of deferred compensation, and that in some cases employer NOLs can actually result in poorer deferred compensation economics. As a result, some employers and executives may rationally choose to ignore employer NOLs when making compensation decisions. Second, even if companies are sensitive to the existence of employer NOLs when making compensation decisions, it is not clear that research methods currently in use would detect the sensitivity. The commonly used proxies and simulations of employer effective marginal tax rates that have been employed in these studies may not adequately capture the complexity of the relationship between NOLs and the economics of deferred compensation
Tech Companies Get a Free Pass on Moderating Content It’s time to change that.
No full textIn 1996, Congress faced a challenge. Lawmakers wanted the internet to be open and free, but they also knew that very openness could allow for noxious activity. Federal agencies could not tackle that problem alone—they would need help from tech companies. So Congress passed Section 230 of the Communications Decency Act, which provided a shield from liability for platforms that tried to moderate “offensive” content. Then-Reps. Chris Cox and Ron Wyden saw it was a way to protect “Good Samaritans” trying to “clean up the internet.” As Wyden put it in 2018, Section 230 offered protection from liability in exchange for “being responsible in terms of policing their platforms.” Twenty-three years later, Section 230 has come under fire from both sides of the aisle—from conservatives who claim that tech platforms are unjustifiably filtering or blocking their speech and from liberals who think that the same companies are not doing enough to filter or block hate speech and extremism online