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Campbell at 30: A Retrospective Appreciation
No full textThis Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to the intellectual history of fair use.
This Article demonstrates how contested the role of fair use in copyright law had been both before and after Congress codified the doctrine in 1976 until Campbell. Some parties and Justices treated fair use as a narrow doctrine, limited by presumptions against its application. Others understood the doctrine to be a central counterbalance to copyright law’s exclusive rights. By carefully analyzing the Court’s fair use jurisprudence up to, and including, Campbell, this Article shows that the Court and counsel appearing before it went through a learning process about fair use. In particular, until Campbell, the Court had not fully appreciated the impact of fair use’s codification or the need for the Court to provide lower courts with a coherent theory for applying the four fair use factors in § 107.
This Article’s second claim rebuts recent attempts by some courts and commentators to construe Campbell narrowly in the wake of the Court’s Warhol decision. As of this writing, these revisionist arguments have been submitted in two currently pending appellate cases, one in the Ninth Circuit and the other in the Tenth Circuit. By analyzing both the public filings and the now-public internal case files of some of the Justices, this Article provides several new insights to support the case for reading Campbell capaciously. Indeed, Campbell’s adoption of the transformative use standard reflects the hard-won triumph of an important idea about the role of fair use in copyright law
The Stored Communications Act at 40: Re-Examining ECS and RCS in the Age of AI
No full textIn an increasingly interconnected digital world, law enforcement and national security’s access to data stored across borders presents complex legal and policy challenges. In the United States, such access is primarily regulated by the Stored Communications Act (SCA), which was passed in 1986 as Title II of the Electronic Communications Privacy Act (ECPA). Next year marks the statute’s 40th anniversary. The SCA applies to “electronic computing services” and “remote computing services.” In essence, these key terms delineate the scope of the Act. Their definitions were written for a tech world that is dramatically different from the one we live in today. When ECPA was first passed, Tim Berners-Lee had just proposed the idea of the World Wide Web at CERN, which wasn’t released to the public until the following decade. Mainstays of today’s digital economy, such as Google and Amazon, only emerged in the 1990s. Apple launched its first iPhone in the 2000s, and Facebook, now Meta, was created. The 2010s saw the proliferation of the gig economy, with notable examples such as Uber and Airbnb, and the global debut of 5G networks. The rise of artificial intelligence over the past decade, and the explosive growth of large language models in the recent past, raises fundamentally new questions about our relationship to technology. Through it all, the SCA’s definitions of “electronic computing service” and “remote computing service” have remained unchanged. Indeed, their impact has grown significantly, and they now play an influential role in defining the scope of key legal instruments, such as Section 702 of the Foreign Intelligence Surveillance Act, the CLOUD Act, and international instruments governing government access to private sector data. Over the years, stakeholders in industry, government, and civil society have raised questions about the SCA’s ability to protect the privacy of electronic communications.1 With the dramatic changes brought about by artificial intelligence in how people and organizations interact with the world around them, the time has come to examine whether the SCA is due for an update. This paper will provide a brief history of the SCA, an overview of how the terms “electronic communication service” and “remote computing service” have been interpreted by courts, and an examination of how the SCA applies to companies developing artificial intelligence. It will then examine the SCA’s expanded impact in newer legal instruments
(D)evolution of International Commercial Arbitration in Mexico
No full textThe 1990s were a time of vibrant international rulemaking in the field of international economic law, during which Mexico transformed from a closed to an open economy. In 1993, Mexico adopted the 1985 UNICITRAL Model Law on International Commercial Arbitration. In 2011, Mexico amended its commercial code by introducing a specific proceeding to enforce and set aside arbitration awards titled “Juicio Especial sobre Transacciones Comerciales y Arbitraje.” Alongside these amendments, Mexico became an internationally relevant jurisdiction for the recognition and enforcement of foreign arbitral awards. This article analyzes the evolution of the Mexican Supreme Court of Justice’s jurisprudence concerning international commercial arbitration to lay out the procedural evolution that Mexican courts have faced when enforcing or setting aside international arbitral awards. This article will also discuss the impact of the constitutionalization of alternative dispute resolution mechanisms established in Article 17 of the 2008 Federal Constitution amendment to adopt the features of the new adversarial criminal law and issues of public security. Though the Supreme Court of Justice and practitioners have interpreted this provision to both protect and redefine arbitration
Improving Arbitration: Restoring Consensual Judicial Review of Arbitration Awards, and Expediting Review with Fast-Track Judicial Procedures
No full textThe United States Supreme Court has often held that the primary virtue of arbitration is promoting freedom of contract, one of the great tools for self-determination. Although federal and state governments provide courts where parties can adjudicate every kind of legal dispute, our adherence to freedom of contract dictates judicial support when parties opt out of the court process and into a private dispute resolution procedure. Thus, even when parties walk away from our courts, the court system remains available to enforce their arbitration agreements
Collaborative Dispute Resolution: Five Essential Questions
Full text linkThis essay identifies five key questions regarding the dispute resolution process and explores the answers to these. The five questions are: How Should Parties Decide Whether to Participate in Dispute Resolution? What are the Roles of Advocates and Advisors? Does Dispute Resolution Provide Accountability and Remedy? How Can Dispute Resolution Foster Institutional Learning for dfis? Why Is it Important for Dispute Resolution to be Independent rather Than Embedded in DFI Management
Documentary History of the Limitations and Exceptions in the SCCR
Full text linkThe objective of this study is to systematically map all meetings of the Standing Committee on Copyright and Related Rights (SCCR) and the General Assemblies (GA) of the World Intellectual Property Organization (WIPO) to extract, compile, and organize all relevant statements made by Member States regarding the Limitations and Exceptions (L&Es).
The analysis was based on publicly available data from the WIPO website, particularly the official pages dedicated to each SCCR and GA meeting. Our primary focus was on statements recorded in the official Report document of each session. When available, we also examined supplementary documents, such as the Summary by the Chair or Conclusions . When analyzing the GAs, we focused on the “Report” and “Report on the SCCR” documents. Links to documents containing relevant information on L&Es were also included at the beginning of each section. To maintain the specificity of this study and avoid overlap with separate historical research on the protection of broadcasting organizations, for example, we primarily extracted statements from the sections titled Limitations and Exceptions for Educational and Research Institutions and for Persons with other Disabilities”, “Limitations and Exceptions for Libraries and Archives”, and other related topics. Except when relevant for context, we did not add content for SCCR meetings or GAs where no relevant statements were made under the specific agenda item on L&Es, even if the topic was referenced in discussions under other items.
Unless explicitly stated otherwise, all statements included in this document are direct quotations from official WIPO records. The mapping of documents, as well as the extraction and compilation of information, was carried out in March 2025. At the time of completing this work, no report was available on the SCCR/46 webpage, and no content was available on the WO/GA/58 webpage
Ziada v. Netherlands: Accountability of State Officials in the European Court of Human Rights
Full text linkIn 2014, a Dutch Palestinian man, Mr. Ismail Ziada, lost six close family members in an Israeli airstrike labeled “Operation Protective Edge,”—a seven weeklong military offensive, waged by the Israeli defense forces (“IDF”) in the Gaza Strip. The family’s home, which was destroyed as a result of the attacks, was situated within the Al-Burej refugee camp. Shortly thereafter, the United Nation General Assembly established these attacks on civilians and civilian infrastructure were orchestrated by senior military officials, and strongly indicated the acts constituted a commission of war crimes in violation of international humanitarian law, international human rights law, and international criminal law
Femicide is a Human Rights Violation, not a Cultural Consequence: Why Nigeria is Violating the Maputo Protocol
Full text linkFemicide, the most extreme form of gender-based violence, is the intentional killing of women simply because they are women. It is driven by harmful societal norms, such as oppressive gender roles, systemic discrimination towards women and girls, and gender power imbalances. Femicide is a universal problem but gaps in data on this issue mask the true scale of violence. For the first time since 2013, when the UNODC began publishing regional estimates, Africa surpassed Asia as the region with the highest number of victims
Inteligencia Artificial Y Desinformación En Internet: Regulaciones (In)Compatibles Con Los Estándares De Protección Del Derecho A La Libertad De Expresión En El Derecho Internacional De Los Derechos Humanos
No full textDurante los casi dos años de confinamiento debido a la pandemia por COVID-19, muchas de nuestras interacciones “en vivo” se trasladaron al mundo virtual. Asimismo, las redes sociales se convirtieron en una de nuestras principales fuentes de información y también en los medios más usados para comunicarnos y debatir con nuestros pares. Lamentablemente las mismas no estuvieron siempre sustentadas en información certera, sino más bien en información falsa, que circulaba en medio de viciosas burbujas donde nos era imposible conocer opiniones o pareceres contrarios a los nuestros
The Benefits, Costs, and Uses of AI in the Financial Industry
No full textThe SEC hosted a roundtable discussion on artificial intelligence in the financial industry. The event was held at SEC headquarters in Washington, DC and was open to the public.The roundtable focused on the risks, benefits, and governance of AI in the financial industry. SEC Acting Chairman Mark Uyeda and SEC Commissioners Hester Peirce and Caroline Crenshaw delivered remarks