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Fair Use Factor Four Revisited: Valuing the Value of the Copyrighted Work
Get PDFRecent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies independent kinds of harm, and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of” the copied work may be its utility as a “draw” for goods or services other than the copied work. Relevant considerations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.
Corporate Crime and Punishment: The Crisis of Underenforcement
No full textIn the early 2000s, federal enforcement efforts sent white collar criminals at Enron and WorldCom to prison. But since the 2008 financial collapse, this famously hasn\u27t happened. Corporations have been permitted to enter into deferred prosecution agreements and avoid criminal convictions, in part due to a mistaken assumption that leniency would encourage cooperation and because enforcement agencies don\u27t have the funding or staff to pursue lengthy prosecutions, says distinguished Columbia Law Professor John C. Coffee. “We are moving from a system of justice for organizational crime that mixed carrots and sticks to one that is all carrots and no sticks,” he says.
He offers a series of bold proposals for ensuring that corporate malfeasance can once again be punished. For example, he describes incentives that could be offered to both corporate executives to turn in their corporations and to corporations to turn in their executives, allowing prosecutors to play them off against each other. Whistleblowers should be offered cash bounties to come forward because, Coffee writes, “it is easier and cheaper to buy information than seek to discover it in adversarial proceedings.” All federal enforcement agencies should be able to hire outside counsel on a contingency fee basis, which would cost the public nothing and provide access to discovery and litigation expertise the agencies don\u27t have. Through these and other equally controversial ideas, Coffee intends to rebalance the scales of justice.https://scholarship.law.columbia.edu/books/1255/thumbnail.jp
Emergency Exemptions From Environmental Laws
Get PDFThe national response to the coronavirus crisis may face several impediments but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. However, there is concern that some agencies and corporations will use this as an excuse to bypass environmental laws that aren’t actually getting in the way of responses to the crisis
COVID-19 and LGBT Rights
Get PDFEven in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.
This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) heightened health risks and vulnerabilities seeking healthcare; 3) family recognition and COVID-19; 4) employment discrimination; and 5) populations at special risk.
It also bears noting at the outset that LGBT people already have close and long-lasting experience with HIV/AIDS, which has been described by many as a pandemic and which brought with it enduring stigma and many forms of discrimination and other harms. Even Dr. Anthony Fauci, who is a new hero to many Americans for his clarity in press briefings on COVID-19, is a familiar presence for AIDS activists because of his role in the 1980s and 90s as a leader of the federal government\u27s response to HIV/AIDS
Restructuring vs. Bankruptcy
Get PDFWe develop a model of a firm in financial distress. Distress can be mitigated by filing for bankruptcy, which is costly, or preempted by restructuring, which is impeded by a collective action problem. We find that bankruptcy and restructuring are complements, not substitutes: Reducing bankruptcy costs facilitates restructuring, rather than crowding it out. And so does making bankruptcy more debtor-friendly, under a condition that seems likely to hold now in the United States. The model gives new perspectives on current relief policies (e.g., subsidized loans to firms in bankruptcy) and on long-standing legal debates (e.g., the efficiency of the absolute priority rule)
Strengthening the U.S.-Japan Alliance: Pathways for Bridging Law and Policy, Columbia Law School, 2020
Get PDFDuring the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.
The workshop participants explored the underlying causes of the gap in understanding between the United States and Japan with respect to these issues, and they considered the alliance in the conte xt of each state’s interpretation of international law and policy positions regarding its rights and obligations under such law. In doing so, they also examined how the differing approaches could be applied to possible crisis situations of current concern in East Asia, and what that might mean for alliance relations
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No full textLine art image of Petros C. Mavroidis and Anu Bradford.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1018/thumbnail.jp
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No full textLine art image of Lynnise E. Pantin and Timothy Wu.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1012/thumbnail.jp
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No full textLine art image of Peter Conti-Brown, Assistant Professor of Legal Studies & Business Ethics at the Wharton School of the University of Pennsylvania.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1005/thumbnail.jp
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No full textLine art image of Edward R. Morrison, Charles Evans Gerber Professor of Law at Columbia Law School.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1007/thumbnail.jp