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This Content is Unavailable in Your Geographic Region: The United States\u27 and the European Union\u27s Implementation of Anti-Circumvention Measures
Get PDFRecently, people streaming movies and TV shows have begun to use virtual private networks (VPNs) to access content that streaming services restrict to certain geographic regions. Because of the ambiguity in international law and the implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty, domestic law fails to offer streaming services a recourse to sue foreign VPN users. The WIPO Copyright Treaty established an anti-circumvention provision that would seem to apply to using VPNs to stream from other countries. But because of the provision\u27s ambiguity, many of the WIPO Copyright Treaty member countries have adopted different standards. This problem is exemplified by the United States and the European Union (EU). The United States adopted the Digital Millennium Copyright Act from the WIPO Copyright Treaty\u27s language, but the US circuit courts have split on whether circumventing a technological measure requires a connection to an infringement of US copyright law. Similarly, the EU member countries have also split on whether their respective domestic laws require a connection to domestic infringement. This has resulted in varying regimes, harming the WIPO Copyright Treaty\u27s goal of harmonizing international copyright law. But if the United States were to adopt the Austrian implementation of this treaty provision, the United States would take steps toward fulfilling the WIPO Copyright Treaty\u27s goal of harmonization. Specifically, - the United States should adopt a statute that creates liability for circumventing a technological measure for the purposes of streaming a copyrighted work
Challenging Some Baseline Assumptions about the Evolution of International Commissions of Inquiry
Get PDFConventional accounts of the historical development of international commissions of inquiry reflect a progress narrative consisting of three propositions: (1) that recourse to inquiry bodies has increased dramatically in the post-Cold War era, (2) that inquiry bodies have evolved from mechanisms for pure fact- finding into quasi-judicial bodies that engage with international law, and (3) that the function of inquiry bodies has shifted from diplomatic dispute settlement to norm enforcement and accountability. Part I explains how this narrative simplifies and distorts the rich history of inquiry bodies in international affairs. Part II shows how the idea of a post-Cold War turn to inquiry downplays the extent and scope of earlier practice. Part III examines how inquiry bodies have long engaged with questions of international law, even if the form of that engagement has varied. Part IV then considers historical inquiry bodies that, like their modern-day counterparts, engaged in norm enforcement, pursued accountability, and addressed human rights violations and atrocity crimes. Ultimately, a more nuanced understanding of past practice has value for ongoing debates about the usefulness of inquiry bodies and the extent to which their contemporary role reflects a measure of progress
The Law and Politics of Ransomware
Get PDFWhat do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly four thousand ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, ransomware attacks reached a staggering number, between twenty thousand and thirty thousand per day in the United States alone. That is a ransomware attack every eleven seconds, each of which cost victims on average nineteen days of network downtime and a payout of over 20 billion.
This Article offers an account of the regulatory challenges associated with ransomware prevention. Situated within the broader literature on underenforcement, the Article explores the core causes for the limited criminalization, prosecution, and international cooperation that have exacerbated this wicked cybersecurity problem. In particular, the Article examines the forensic, managerial, jurisdictional, informational, and resource allocation challenges that have plagued the fight against digital extortions in the global commons.
To address these challenges, the Article makes the case for the international criminalization of ransomware. Relying on existing international regimes-namely, the 1979 Hostage Taking Convention, the 2000 Convention Against Transnational Crime, and the customary prohibition against the harboring of terrorists-the Article makes the claim that most ransomware attacks are already criminalized under existing international law. In fact, the Article draws on historical analysis to portray the criminalization of ransomware as a fourth generation in the outlawry of Hostis Humani Generis (enemies of mankind).
The Article demonstrates the various opportunities that could arise from treating ransomware gangs as international criminals subject to universal jurisdiction. The Article focuses on three immediate consequences that could arise from such international criminalization: (1) expanding policies for naming and shaming harboring states, (2) authorizing extraterritorial cyber enforcement and prosecution, and (3) advancing strategies for strengthening cybersecurity at home
Exponential Growth Bias and the Law: Why Do We Save Too Little, Borrow Too Much, and Fail to React on Time to Deadly Pandemics and Climate Change?
Get PDFMany human decisions, ranging from the taking of loans with compound interest to fighting deadly pandemics, involve phenomena that entail exponential growth. Yet a wide and robust body of empirical studies demonstrates that people systematically underestimate exponential growth.
This phenomenon, dubbed the exponential growth bias (“EGB”), has been documented in numerous contexts and across different populations, using both experimental and observational methods.
Despite its centrality to human decisionmaking, legal scholarship has thus far failed to account for the EGB. This Article presents the first comprehensive study of the EGB and the law. Incorporating the EGB into legal analysis sheds a new light on a long list of policy debates and highlights new solutions to many problems that the legal scholarship has been grappling with. More concretely, in the sphere of policymaking, the EGB explains the systematically delayed legal response to novel exponential risks such as the COVID-19 pandemic and climate change. Building on this insight, this Article highlights new legal strategies that could improve officials’ ability to react promptly and effectively to such threats. In the sphere of individual decisionmaking, this Article shows that the EGB causes people to systematically err when making decisions that involve exponential phenomena. Consequently, people often borrow too much, save too little, and fall prey to sophisticated marketing tactics. In light of these findings, this Article presents a novel regulatory framework, which includes new disclosure duties that could assist people to grasp the long-term implications of their choices, and the imposition of mandatory rules that would minimize the exploitation of the EGB by savvy profit-maximizing entrepreneurs
Conservation Options: Conservation Easements, Flexibility, and the In Perpetuity Requirement of IRC § 170(h)
Get PDFConservation easements have been closely tied to tax incentives since the 1970s, when Congress passed legislation to encourage land preservation. In an attempt to balance the desire to conserve more land with the desire to prevent tax abuses, Congress later passed § 170(h) of the Internal Revenue Code, which requires that conservation easements be donated “in perpetuity” to be eligible for the federal tax deduction.
As climate change increases global temperatures, shifts migratory patterns, and causes sea levels to rise, conservation easements’ ability to adapt to changing circumstances must also become part of Congress’s balancing equation. This Note evaluates the “in perpetuity” requirement and proposed alternatives as avenues for promoting the preservation of land for conservation purposes in light of climate change. Ultimately, this Note argues that by extending the Internal Revenue Code to provide a tax deduction for donors who gift an option to purchase a conservation easement coterminous with a fixed-term conservation easement, Congress can promote meaningful land conservation in the face of a rapidly changing world
Identifying the Plessy Remainder: State Exploitation of Private Discriminatory-Impact Actions
Get PDFPublic education in the U.S. is arguably more racially segregated now than it was in 1954, when the U.S. Supreme Court declared in Brown v. Board of Education that in the field of public education the doctrine of separate but equal\u27 has no place. Although scholars may differ in the extent they believe that racial integration might be necessary for educational equality, most agree that educational segregation, whether imposed by law, socioeconomics, or happenstance, is not likely to reverse in any meaningful way in the near future.
In the absence of a recognized federal right to education, federal-court- supervised school desegregation has been, perhaps, the most viable vehicle for students of color to access educational opportunities enjoyed by white students. This phenomenon remains salient, almost to the point of truism, but not because of any inherent or behavioral differences among students by race or because of any benefits proximity to whiteness affords students of color. Rather, the desegregation remedy is primarily a function of intractable political and socioeconomic realities that enable educational opportunity hoarding by wealthier and whiter stakeholders at the expense of poorer Black stakeholders and stakeholders of color
The Public Perception of the #GeneEditedBabies Event Across Multiple Social Media Platforms: Observational Study
Get PDFIn November 2018, a Chinese researcher reported that his team had applied clustered regularly interspaced palindromic repeats or associated protein 9 to delete the gene C-C chemokine receptor type 5 from embryos and claimed that the 2 newborns would have lifetime immunity from HIV infection, an event referred to as #GeneEditedBabies on social media platforms. Although this event stirred a worldwide debate on ethical and legal issues regarding clinical trials with embryonic gene sequences, the focus has mainly been on academics and professionals. However, how the public, especially stratified by geographic region and culture, reacted to these issues is not yet well-understood.
Objective:
The aim of this study is to examine web-based posts about the #GeneEditedBabies event and characterize and compare the public’s stance across social media platforms with different user bases
Worth a Shot: Encouraging Vaccine Uptake Through “Empathy”
Get PDFPro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.
This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies these perspectives to the issue of vaccine uptake. Finally, it deconstructs empathy messaging in pro- and anti- COVID-19 vaccine social media messaging and at a rally opposing Indiana University’s vaccine “mandate” on June 10, 2021
Technological Self-Sufficiency and the Role of Novelty Traps
Get PDFThe COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a structural feature of modern patent law traps technologies in a legal limbo, where there are inadequate incentives to invest in the adaptations and efforts needed to make technologies effectively available in low-income countries. Moreover, the current regime deprives potential innovators of an opportunity to protect their intellectual contributions and begin to build robust innovative ecosystems. The Article proposes a modified patent regime designed to break what we call the “novelty trap” and discusses its compatibility with international intellectual property law
Basketball On Strike: The All-Stars of the Fight for Racial Equality
Get PDFNational Basketball Association players have a long history of fighting against racial injustice. In August 2020, players participated in the most attention-grabbing endeavor to date: a league-wide strike against racial discrimination in the United States. Refusing to play games entails financial risk for players because of a no-strike clause in the collective bargaining agreement between the National Basketball Players Association and National Basketball Association team governors. Team governors can fine, bench, or fire players for refusing to play. However, it may be infeasible to discipline players for attempting to fight for racial equality—-players are extremely important to the well-being of the league, and team governors could face public backlash given society’s overwhelming support of the players’ efforts. The National Labor Relations Board, the federal agency overseeing labor disputes, has yet to determine the legality of a professional athlete political strike. Legal scholars are divided as to whether union employees, including National Basketball Association players, can successfully strike against racial injustice.
Waiting for the National Labor Relations Board to make a decision can be a lengthy and costly process. Accordingly, this Note proposes that team governors and the National Basketball Players Association proactively agree to include provisions regarding racial equality in their collective bargaining agreement. These provisions should address racial discrimination in the United States and strike a balance between each party’s interests. In reaching a contractual agreement, both parties can collaborate in the fight for racial equality and avoid potential conflict or work stoppage altogether