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A la recherche du “sens” perdu: Copyrightable Creativity Deconstructed
Get PDFThe primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth to this analysis, however, the Article will limit its review to creativity as applied in the context of Feist- based threshold creativity reviews. As a matter of further distillation, such cases will be highlighted where courts rely on an alternatives-based test to find creativity. This very commonly-applied test dictates that a creator’s work is creative under copyright if she enjoyed sufficient alternative means of communicating the idea underlying her work. Part III of the Article will show how the alternatives-based conception of creativity—while perhaps well-meaning and successful in promoting unrelated policy objectives—is ill-suited to measure the presence of actual creativity. This limited fit is demonstrated, in part, via a Proustian hypothetical that reveals inconsistent results between creativity according to courts and creativity in literary practice. Part III also attempts to prove such inconsistencies by drawing on scholarly legal literature on the topic of creativity. Having completed a deconstruction of the legal notion of “creativity,” part IV of this Article concludes on a more constructive, if not wholly restructuring, note by invoking a separate model of creativity that would seem to improve on the views of courts and computers—a model indirectly proposed by the Nobel laureate Bergson in his work The Creative Evolution, among others. Although the Bergsonian model may not be limited to rigid categorization, it focuses on creativity as a function of indeterminacy in the creative process and its embodied result. It is through just such a model that a more accurate, if more fluid, view of the term “creativity” may be conceived, in both general and copyrightable meanings of the word
Memorial: John J. McNeill (1949-2016)
Get PDFJohn McNeill, better known as Jack, died on January 18, 2016, after a lengthy battle with prostate cancer. Jack began working at Pace Law School (now known as Elisabeth Haub School of Law) in September 2000, where he initially served as head of reference services. Two years later, he was promoted to associate director, the position from which he retired in December 2015. He is survived by his sister and brother, two nephews, a niece, and five great-nieces and -nephews
Parenting Childhood Victims of Sexual Abuse: A Comparative Study of Mothers With and Without Histories as Victims
No full textThe goal of this study was to understand how a non-perpetrating female caregiver\u27s history of sexual abuse influences her ability to effectively parent her child who is sexually abused. We analyzed the stress female caregivers experience when their child has been the victim of childhood sexual abuse. This study examined 36 female caregivers, with and without a childhood sexual abuse history and their parenting stress, using the Parenting Stress Index – 4 (PSI-4) and the Stress Index of Parenting Adolescents (SIPA). The study also sought to understand how the female caregiver\u27s therapy after being abused may mitigate this difference. Additionally, we looked at whether the age of the child relative to the age of the parent when they were abused, the gender of the child, and the parent\u27s own perceived support from their own mother after themselves having been the victim of CSA impacts differences in the amount of parenting stress. Results show that female caregivers who reported a history of childhood sexual abuse rated their parenting stress higher, when parenting sexually abused children, than female caregivers who did not report a history of childhood sexual abuse. There was also a specific difference noted in the parenting domain of the combined measures. This finding indicates that differences are noted between female caregivers with a history of abuse, and female caregivers without in the realm of their belief in their own adequacy as parents, and stress related to that. In addition, the study examined how various demographic variables relate to the levels of stress female caregivers experience. Given the low sample size of the study, no further significant differences/associations were noted. However, this study supports the finding that a caregiver\u27s history of sexual abuse can impact parenting of their own child who has been the victim of childhood sexual abuse. The findings were discussed within the context of previous research as supporting the need to provide more services for caregivers of children when treating children who have a history of sexual abuse. Specifically, helping caregivers who have their own history of sexual abuse process their own abuse, may be useful in helping them help their children, and assure their children\u27s successful growth. Limitations of the study, including the small sample size were discussed
Using Factor Patterns to Augment the Interpretation of Continuous Performance Tests in a Child Population
No full textThis paper focuses on one neuropsychological test commonly used in the assessment of attention, the Continuous Performance Test (CPT). On the CPT task (Rosvold, et al., 1956) the subject is required to attend for a period of time and respond to target stimuli. Letters or numbers flash briefly on the screen and the subject is required to press a button every time the target stimulus appears. Since the introduction of the CPT in the 1950s the test has become an important measure used in both research and assessment. This study focuses on one version of the CPT, the Conners (CCPT), (Conners, 1992; 1995; 2004), which is a CPT paradigm that is commercially available and frequently used in neuropsychological assessment. The CCPT shows acceptable reliability (Conners, 2004; Hommack & Riccio, 2006). Validity studies however have been mixed; some have shown that ADHD groups do demonstrate poorer performance in comparison to controls (Conners, 1995, 2004), while other studies show little overlap between the CCPT and other measures of attention (Weis & Totten, 2004; McGee, Clark & Symons, 2000). However, it is suggested that parameters of the CCPT, which require a high number of responses, may be a better measure of sustained attention in comparison to other CPT tasks that require less total responses and may better measure vigilance (Egeland & Kovalik-Gran, 2010a). Recent research with adults suggests that a factor analytic model of attention based on the scores reported for the CPT can better aid in differential diagnosis (Egeland 2010b; Egeland 2007; Egeland 2003) , although this line of research has yet to be implemented with a child sample. Thus, this paper aims to investigate the factor structure of the CCPT in a clinical child population. Furthermore, the present study aims to investigate the correlates of those factor analytically derived scores with parent and therapist ratings of attention, depression, and psychotic symptom and to see what combination of factor scores best discriminates those with high ratings on ADHD symptoms from those who do not show these ratings, but show signs of dysfunctional behavior in other areas
FINRA Dispute Resolution Task Force Releases Its Final Report, with Support for Mediation and Live Hearings
Get PDFLate in 2015, the FINRA Dispute Resolution Task Force, a group formed solely for the purpose of systematically assessing and critiquing securities arbitration, released its Final Report and Recommendations. The report contains 51 individual recommendations designed to improve FINRA\u27s heavily-regulated dispute resolution program. Some recommendations offer specific details on implementation; others urge conceptual reform of a particular aspect of the arbitration process but leave FINRA to take care of fleshing out the details.
This article briefly describes the task force\u27s formation; highlights its key recommendations (such as requiring mediation before arbitration of all claims-- subject to party opt-out, and introducing a more affordable, live hearing option for small claims); analyzes in more detail a few more controversial suggestions (such as expressly banning class action waivers in customer agreements and increasing the use of explained awards), and critiques the task force\u27s inability to reach consensus on other hot-button issues, such as mandatory arbitration
Resilience and Raisins: Partial Takings and Coastal Climate Change Adaptation
Get PDFThe increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The authors argue the government should compensate property owners based on the free market value of their remaining property, the calculation of which should include all non-speculative, calculable benefits of the taking
A Proposal to Allow the Presentation of Mitigation in Juvenile Court so that Juvenile Charges May be Expunged in Appropriate Cases
Get PDFMany people believe that juvenile adjudications of delinquency are automatically expunged upon the youth reaching the age of majority. In reality, a juvenile adjudication of delinquency—especially for a felony—can significantly limit a teenager’s future ability to obtain student loans and scholarships, join the military, participate in athletics, become a firefighter or a law enforcement officer or obtain one of many jobs. As discussed herein, the majority of youth facing charges in delinquency court are suffering from severe socio-economic deprivation, are victims of emotional, physical or sexual abuse, or have serious mental health issues. Many youth caught up in the delinquency system are impacted by more than one of these factors, each of which places a teenager at significantly greater risk of engaging in delinquent behavior. Society tells these young people to “pull themselves up by their bootstraps,” but at the same time significantly limits their ability to do just that by labeling them felons—often violent felons—for the rest of their lives. This article argues that effectively foreclosing a young person’s future based upon behavior that is linked to circumstances beyond their control violates the Eighth Amendment’s proscription on cruel and unusual punishment. This article proposes an alternative framework that allows young people to have their juvenile records expunged if they fulfill certain criteria. This would benefit society as well as the young defendants, as it would lower the levels of adult recidivism.
This article proposes to add a new procedure in juvenile court that would recognize mitigation so that, in appropriate cases, the child’s juvenile record can be expunged. This would allow courts to address cases in which the child suffers from a mental illness that does not rise to the level of an insanity defense but is mitigating enough that it would violate the Eighth Amendment for the child to be found guilty of a felony that would remain on her record for the rest of her life. Similarly, children living in environments that cause the child to be significantly more likely to engage in delinquent behavior would be eligible to have their juvenile records expunged. This article proposes that, upon a plea or adjudication of delinquency at trial, the court should hear evidence on relevant mitigation. If the judge finds that the child’s behavior was significantly impacted by factors beyond her control including, but not limited to, mental health issues, child abuse and socio-economic factors, the child will be able to have her juvenile record expunged upon completing appropriate treatment and demonstrating improved behavior. This would refocus a system that has become increasingly punitive on the purported rehabilitative nature of juvenile court and allow children from disadvantaged backgrounds to lead productive adult lives unconstrained by mistakes they made as teenagers
Improving Enterprise Data Governance Through Ontology and Linked Data
No full textIn the past decade, the role of data has increased exponentially from being the output of a process, to becoming a true corporate asset. As the business landscape becomes increasingly complex and the pace of change increasingly faster, companies need a clear awareness of their data assets, their movement, and how they relate to the organization in order to make informed decisions, reduce cost, and identify opportunity. The increased complexity of corporate technology has also created a high level of risk, as the data moving across a multitude of systems lends itself to a higher likelihood of impacting dependent processes and systems, should something go wrong or be changed. The result of this increased difficulty in managing corporate data assets is poor enterprise data quality, the impacts of which, range in the billions of dollars of waste and lost opportunity to businesses. Tools and processes exist to help companies manage this phenomena, however often times, data projects are subject to high amounts of scrutiny as senior leadership struggles to identify return on investment. While there are many tools and methods to increase a companies’ ability to govern data, this research stands by the fact that you can’t govern that which you don’t know. This lack of awareness of the corporate data landscape impacts the ability to govern data, which in turn impacts overall data quality within organizations. This research seeks to propose a means for companies to better model the landscape of their data, processes, and organizational attributes through the use of linked data, via the Resource Description Framework (RDF) and ontology. The outcome of adopting such techniques is an increased level of data awareness within the organization, resulting in improved ability to govern corporate data assets. It does this by primarily addressing corporate leadership’s low tolerance for taking on large scale data centric projects. The nature of linked data, with it’s incremental and de-centralized approach to storing information, combined with a rich ecosystem of open source or low cost tools reduces the financial barriers to entry regarding these initiatives. Additionally, linked data’s distributed nature and flexible structure help foster maximum participation throughout the enterprise to assist in capturing information regarding data assets. This increased participation aids in increasing the quality of the information captured by empowering more of the individuals who handle the data to contribute. Ontology, in conjunction with linked data, provides an incredibly powerful means to model the complex relationships between an organization, its people, processes, and technology assets. When combined with the graph based nature of RDF the model lends itself to presenting concepts such as data lineage to allow an organization to see the true reach of it’s data. This research further proposes an ontology that is based on data governance standards, visualization examples and queries against data to simulate common data governance situations, as well as guidelines to assist in its implementation in a enterprise setting. The result of adopting such techniques will allow for an enterprise to accurately reflect the data assets, stewardship information and integration points that are so necessary to institute effective data governance
Finding Opportunities to Combat the Climate Change Migration Crisis: The Potential of the “Adaptation Approach”
Get PDFThe aim of this article is to demonstrate the benefits of applying adaptation approach in conceptualising the issue of climate-induced population movement and its potential to respond to the main priorities to be addressed in the context of population movement induced by climate change. This article proceeds with Section 2, which provides an overview of the main difficulties to conceptualization of the issue of climate induced population movement from empirical and legal perspectives. Section 3, drawing upon the state of play presented above, identifies the main priorities that have to be addressed. Section 4 focuses on the opportunities the Cancun Adaptation Agreement offers. First, however, I assess in this section the benefits of treating population movement as a matter of adaptation to find out how the adaptation approach can be utilized to integrate relevant provisions of various legal frameworks and how an effective response to the pending climate migration crisis can be developed and implemented