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The Triumph of Three Big Ideas in Fair Use Jurisprudence
No full textIn two recent cases, Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), the Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law’s fair use provision. In doing so, the Court withstood significant pressure from industry participants in these cases to change course. This Article argues that the Court’s decisions, which represent one third of the Court’s total merits decisions on fair use, are historic. The principal contribution this Article makes is to demonstrate to courts and parties in future fair use disputes how the holdings in these cases readily synthesize to provide useful guidance that will be relevant, for example, in disputes about generative artificial intelligence. This Article disagrees with those who argue that Warhol represents a retreat from transformativeness, demonstrating instead that the Court in Warhol simply rejected a caricatured version of this form of analysis.
This Article also makes an original argument that shows how these cases reflect the hardwon triumph of three big ideas that were hotly contested in the evolution of the fair use doctrine. First, this Article summarizes how courts disagreed about whether fair use was distinct from the question of substantial similarity in infringement analysis. This Article shows that this issue was not fully resolved until Congress codified fair use as a distinct doctrine in the Copyright Act of 1976. Second, this Article summarizes how legislators resolved the debate over whether to codify fair use or to leave it as a judicially-implied limit on exclusive rights. In doing so, this Article credits Barbara Ringer, the Copyright Office’s point person in the legislative process, as the primary draftsperson of the core of codified fair use in § 107. Finally, this Article shows how codification facilitated increased Supreme Court review of fair use disputes, which led the Court to adjudicate fair use issues in four cases decided within a single decade, culminating in its adoption of transformative use
A welfare analysis of Medicaid and recidivism
No full textWe present conservative estimates for the marginal value of public funds (MVPF) associated with providing Medicaid to inmates exiting prison. The MVPF measures the ratio between a policy\u27s social benefits and its governmental costs. Our MVPF estimates suggest that every additional 3.45 and $10.62. A large proportion of the benefits we consider stems from the reduced future criminal involvement among former inmates who receive Medicaid. Employing a difference-in-differences approach, we find that Medicaid expansions reduce the average number of times a released inmate is reimprisoned within 1 year by approximately 11.5%. By combining this estimate with key values reported elsewhere (e.g., victimization costs, data on victimization and incarceration), we quantify specific benefits arising from the policy. These encompass diminished criminal harm due to lower reoffense rates, direct benefits to former inmates through Medicaid coverage, increased employment opportunities, and reduced loss of liberty resulting from fewer future reimprisonments. Net-costs consist of the cost of providing Medicaid net of changes in the governmental cost of imprisonment, changes in the tax revenue due to increased employment, and changes in spending on other public assistance programs. We interpret our estimates as conservative since we deliberately err on the side of under-estimating benefits and over-estimating costs when data on specific items are imprecise or incomplete. Our findings align closely with others in the sparse literature investigating the crime-related welfare impacts of Medicaid access, underscoring the substantial indirect benefits public health insurance programs can offer through crime reduction, in addition to their direct health-related advantages
The Effects of 401(k) Vesting Schedules—in Numbers
No full textMany Americans terminate employment, voluntarily or involuntarily, prior to vesting in their 401(k) plans. This costs them a lot of money; it also saves companies a lot of money. Vesting schedules used by some 401(k) plans cause plan participants to forfeit significant portions of their compensation—employer contributions made on their behalf—that should be increasing their retirement savings. This money is recycled by such plans to offset their employer contribution obligations and other costs. We analyzed data from Form 5500s to identify trends in and implications of vesting schedule use by 408 single-employer 401(k) plans over the five-year period of 2018-2022. Our findings show that the number of participants terminated before full vesting is growing rapidly. Further, we an-alyzed data from Form 5500s for 909 single-employer 401(k) plans for 2022. We found that 1.8 million plan participants forfeited compensation because they terminated employment (voluntar-ily or involuntarily) without being fully vested in their employer plan contributions. Amazon’s and Home Depot’s 401(k) plans have had the most affected participants for the past three years. Additionally, in the 909 plans we analyzed, we found that forfeitures used in 2022 amounted to a staggering $1.5 billion, most of which was used to reduce an employer’s contribution obligation. Our findings highlight the magnitude of the implications of 401(k) vesting schedule use and identify key companies whose plans have the most affected participants and the highest amounts of forfeitures at their disposal
Addressing trauma and emotions in human rights: Reflections from teaching and practice
No full textAs academics and practitioners operating within the sphere of human rights and immigrant rights - work that requires listening to and engaging with experiences and narratives grounded in oppression, repression, violence, insecurity, discrimination - we are challenged to intentionally and effectively address the direct and vicarious trauma that surface in our work. We are also increasingly called upon by our students to recognize and respond to the full range of emotions that human rights work entails. This chapter incorporates the expertise of a licensed clinical social worker with experience working within the immigrant rights movement and human rights advocacy spaces and the insights of two clinical law professors. Together, we address strategies for acknowledging and giving space for the emotions and trauma we and our students grapple with in clinical human rights work. In doing so, we hope to enable the next generation of advocates to consciously and actively connect with the joy and rewards that can come from the work itself, from engagement with community - a community of clients, partners, and collaborators - and from our own lives
Fulfilling the Promise? Recognizing the 25th Anniversary of \u3ci\u3eOlmstead\u3c/i\u3e
No full text2024 marks the 25th anniversary of Olmstead v. L.C. and E.W., the landmark U.S. Supreme Court decision hailed as the Brown v. Board of Education for people with disabilities. In Olmstead, the Court held that unjustified institutional isolation of people with disabilities is a form of unlawful discrimination under Title II of the Americans with Disabilities Act. Five years ago, a symposium was held in Atlanta, the “home of Olmstead,” that explored the history of this groundbreaking civil rights decision, the impact it had on the lives of thousands of people, and the steps still to be taken. This year, we reflect on how far we have come, and also extend our vision of Olmstead to end the isolation of people with disabilities, not just in psychiatric institutions or hospitals, but also in settings such as schools, jails or prisons, nursing homes or foster care. How do we realize the promise of Olmstead for all
Matter of Mantilla v. New York City Dept. of Hous. Preserv. & Dev.
No full textThe landlord challenged the tenant\u27s succession rights to a Mitchell-Lama apartment. The tenant argued that he resided with his brother in the apartment for at least one year prior to the brother\u27s death. The court found that the tenant failed to provide sufficient documentation to establish primary residency. The court upheld the landlord\u27s denial of the succession rights application
CONSULTING SS, INC. v. FAISON
No full textAT2 consolidated three appeals by the same landlord, who sought to evict tenants from a basement apartment and two SRO units, claiming the building was a two-family dwelling and not rent-stabilized. Each tenant argued the building had seven residential units—one apartment and six SROs—making it subject to rent stabilization. The lower court agreed with the tenants, granting summary judgment due to the landlord\u27s failure to serve required statutory termination notices. The Appellate Term affirmed, ruling that the building’s rent stabilization status depends on the units’ function as residences, regardless of their legality under a certificate of occupancy