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A New Blue Sky: SEC Considerations in the Regulation of Autonomous AI Misconduct
No full textThe mission of the U.S. Securities and Exchange Commission (SEC or the Commission) is to “protect[] investors, maintain[] fair, orderly, and efficient markets, and facilitat[e] capital formation.” The SEC upholds this mission by regulating U.S. financial activity, an industry particularly sensitive to recent advancements in technology. After the explosion of the Internet, the SEC established the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system to make corporate filings accessible to the public online. Similarly, the exponential growth of cryptocurrency and other digital assets challenged the way the SEC regulates securities. Now, nearly every industry benefits from utilizing artificial intelligence (AI), and the SEC must assess whether it can effectively regulate its use to protect investors, markets, and capital formation from malicious, reckless, or inadvertent uses of AI
Can Prior Censorship be a Necessary Tool for the Protection of Human Rights?
Full text linkPrior censorship is unequivocally interpreted by the Inter-American Human Rights System (“Inter-American System”) as a step too far in moderating expression. Except in the quite narrow circumstances allowed for under Article 13(4) of the American Convention on Human Rights (“ACHR”), the Inter-American System has reiterated that prior censorship is forbidden. However, prior censorship is widely used in social media platforms as a tool of content moderation. Should such techniques be banned, or should more exceptions be allowed in the regulation of speech
Book Review The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens
Full text linkThe autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.
In The Making of a Justice: Reflections on My First 94 Years, Stevens who died in July 2019, at age 99, spent 130 pages on his life before he joined the Supreme Court and then 394 pages describing the decisions during his thirty-four year as a Justice. Stevens was an agile writer and did as good a job as anyone can of making the narrative accessible, but it is a tough road to go from one case to another for what must be at least 150 decisions
A Peek Behind the Scenes of Supreme Court Decision Making Concerning the Federal IP System
Full text linkIn the 1970s and 80s, the Supreme Court decided three cases that continue to define the limits of the authority of the states within the federal intellectual property system: Goldstein v. California (1973); Kewanee Oil Co. v. Bicron Oil Co. (1974); and Bonito Boats v. Thunder Craft Boats, Inc. (1989). The papers of the Supreme Court Justices that decided these cases show the Court as a human institution wrestling with this complex issue. This issue has assumed new importance as state legislatures have rushed to enact laws on the use of generative artificial intelligence to replicate the voice and likeness of celebrities. Additionally, as ever more content is distributed to consumers in digital formats subject to license agreements, courts will have to consider whether license terms inconsistent with copyright exceptions are enforceable under state contract law
Cross-border Limitations and Exceptions to Copyright: “Powered by AI”
Full text linkBusinesses and institutions that wish to utilize copyright-protected works in multiple countries face a multiplicity of national copyright laws; although national copyright laws have been harmonized in accordance with several international treaties, and harmonized even more in the European Union member states by European Union legislation, countries’ copyright laws continue to vary. The multiplicity of national copyright laws raises costs of transnational operations, including for businesses and institutions that rely on limitations and exceptions to copyright (“L&Es”) in multiple countries. For example, AI companies might want to rely on L&Es to train and deploy their AI in multiple countries, as the recently adopted European Union AI Act anticipates, but complying with the conditions of numerous national copyright laws on L&Es can be burdensome and complex. This article discusses several possibilities for ensuring that L&Es operate smoothly across national borders; attempts have been made to this end by the Marrakesh Treaty (for accessible format copies for the visually impaired) and the European Union (for example, in its treatment of orphan works), and there are other examples. This article surveys, categorizes, and critically analyzes the examples, and proposes possible solutions to the problems of the cross-border operation of L&Es, including in the AI context
ReCreate\u27s Amicus Submission to the Constitutional Court in South Africa, May 2025
Full text linkThe Copyright Amendment Bill in South Africa aims to reform the copyright regime to provide additional rights to creators and users of copyrighted material. The main provisions for creators are a royalty right and increased control over commissioned works. For users, a series of exceptions and limitations are to be introduced.These include fair use for purposes such as education, personal use and research, as well as exceptions for libraries, archives and people with disabilities. South African President Cyril Ramaphosa referred the legislation to the Constitutional Court, primarily over concerns that the new rights for creators and users would constitute an “arbitrary deprivation of property” from rights holders (primarily publishers, broadcasters and other large corporations. ReCreate South Africa, a coalition of South African creators and users was admitted as amicus curiae to the court, to add its views on the legislation. In this document, ReCreate’s legal team sets out the key arguments, focused on the view that there can be no arbitrary deprivation of property where a law is being introduced to fulfill the rights of South Africans in a rational way through a law of general application.
Abstract written by Ben Cashdan, convener of ReCreate
Without Noncompete Agreements, Can Employers Keep A (Trade) Secret?
Full text linkData, algorithms, and proprietary information and processes are critical assets for increasing numbers of companies. Since information assets often cannot be protected through patent, companies may instead rely on trade secret law. To meet the legal standard of a trade secret, companies must show that their information assets confer a competitive advantage to them by virtue of the secret status, and that they have taken reasonable measures to preserve the secrecy.
One of the reliable methods companies use to maintain secrecy, and to show that they have taken the required reasonable measures, is the use of restrictive covenants. Traditionally, companies have relied heavily on contracts, especially nondisclosure agreements and noncompete agreements. However, now that a number of states have greatly limited the enforceability of noncompete clauses and agreements, or banned them entirely, using noncompete clauses and agreements to secure trade secrets is risky. A proposed Federal Trade Commission (FTC) ban on all noncompete agreements in 2024 almost removed the practice as an option forever.
Although the FTC rulemaking was halted at the eleventh hour, companies that rely on noncompete agreements to protect their trade secrets do so at their peril. At a time when information assets are ubiquitous as well as critical to a company’s competitive position, companies must instead build out a system of corporate policies, technological solutions, and other more enforceable contractual provisions to protect their trade secrets going forward
Certainly Uncertain: An Analysis of the Patent Eligibility Restoration Act of 2023
Full text linkPatentable subject matter eligibility has been a topic of major policy debate over many years, culminating in the recent introduction of a bill that would entirely overhaul current law. This article reviews the proposed legislation in view of its historical context, the purported need to reduce uncertainty, and the likely effects of the bill. Based on this analysis, the article concludes that the legislation is unnecessary, ill conceived, and likely to be harmful to scientific research, a variety of industries, and the public good
Remote Work\u27s Complication of Companies\u27 Personal Jurisdiction Standings: Morphing the Historical Analysis to Fit Modern Remote Work Characteristics
Full text linkPersonal jurisdiction ensures that the proper forum adjudicates civil disputes to prevent burdening a defendant with litigating in inconvenient forums. International Shoe Co. v. Washington established that defendants must have minimum contacts with the forum state such that exercise of jurisdiction comports with fair play and substantial justice. Following International Shoe, many cases have provided examples of the minimum contacts that would establish personal jurisdiction.
However, the ability for employees to work remotely from their homes using technological devices and software has exponentially increased over the past five years. Because of the increased ability to work remotely from anywhere in the United States, companies may be responsible for litigation in forums they never anticipated.
To maintain notions of fair play and substantial justice, courts should create a uniform analysis of a company’s contacts with a forum state, through its remote workers, meeting International Shoe’s minimum contacts requirement. This is an emerging issue; the Supreme Court has yet to rule on this, and a limited number of lower courts have attempted to establish specific factors. This Comment discusses how courts can create a uniform approach to remote worker personal jurisdiction issues that may arise specific to remote work technology
Connecting the Dots: Trump’s Tightening Grip on Press Freedom
No full textA free press is a pillar of democracy, just as state-controlled media is a hallmark of autocracy. That is why monitoring actions that stifle the freedom of the press is a time-tested means of tracking the health of a democratic system. As journalists themselves scramble to keep up with the firehose of executive orders that President Donald Trump has issued since returning to power on Jan. 20, infringements on press freedom in the United States are reported piecemeal, making it hard to grasp the full extent of the threat now in play