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The Digital Millennium Copyright Act – In Need of a Major Software Update
Get PDFThe Digital Millennium Copyright Act (DMCA) unfairly discriminates against copyright holders by allowing online service providers to employ inadequate and outdated takedown protocols of copyright infringement. These protocols promote piracy resulting in illegal advertisement revenue streams. Congress must reform the DMCA to ensure online service providers are held properly accountable when copyright infringement occurs on their platforms. Specifically, the DMCA’s existing takedown protocols should be reformed to ensure online service providers cannot benefit from issues associated with advertisements attached to posts containing infringing material. This Note examines the pertinent sections of the DMCA; relevant caselaw concerning the DMCA, online service providers, copyright holders, and internet users; and recommendations for changes to be made to reconstruct the DMCA so that it may fulfill its original purpose. The proposed recommendations address rising tensions between copyright holders and online service providers. These proposed solutions involve revising existing takedown protocol requirements to give copyright holders more freedoms rather than limiting their remedies to a “band-aid” fix that only provides an illusory remedy. Efficient and updated procedures should be added to the DMCA, to ensure that copyright holders are protected from the issues presented by an ever-digital climate. We cannot continue to apply a law written in Short Code to a world living in the Metaverse
Impossibility of Emergent Works’ Protection in U.S. and EU Copyright Law
Get PDFProtection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they can be transformed through creative expression of an author–– possibly becoming works, but also not being authorless or emergent anymore. This is argued as a matter of the U.S. and EU legal doctrines, the international framework, and copyright theory
Why the Supreme Court Avoided Using Traditional Tools of Statutory Interpretation in West Virginia v. EPA
No full textDebates and scholarship over what the major questions doctrine is—and what it will meanfor administrative law—have proliferated since the Supreme Court’s decisions in AlabamaRealtors v. HHS , NFIB v. OSHA , and West Virginia v. EPA . The Association of American LawSchools (AALS) annual meeting last week was no exception, with multiple panels on themajor questions doctrine. These included the Federalist Society’s annual faculty debate ,moderated by my colleague Chris Walker. That conversation focused on whether the majorquestions doctrine is consistent with traditional tools of statutory interpretation and how thedoctrine relates to constitutional values like the separation of powers and nondelegation,particularly in the West Virginia v. EPA case
Dethroning Langdell
No full textI come not to bury the case method. I come merely to dethrone it. While the case method’s monopolistic hold on the law school classroom has loosened somewhat in recent years, it is still the dominant approach to pedagogy in many law school classrooms—and especially in the first-year law student experience. That is also true of the case method’s traditional pedagogical partners, the Socratic method and the cold call: their dominance has declined somewhat, even while they still have remarkable staying power.
This Essay identifies one fault with our continued acquiescence to these pedagogical mainstays of law school classrooms: it gives law students inaccurate information about what lawyers actually do and whether they are likely to be successful in law practice. Part I describes the problem in detail. Part II explains the source of that problem—Langdell’s 140-year-old “innovation”—that introduced the Socratic method, the case method, and cold calling to law school classrooms. And Part III suggests alternative pedagogical techniques that should compete for classroom time and syllabus space
The New Orleans Transformation: Foster Care as a Rare, Time-Limited Intervention
No full textThis Article offers an initial evaluation of one reformed child protection system— New Orleans, Louisiana—and describes how a system that dramatically reduces the number of children in foster care might look. This system shows how a major metropolitan area can shrink its daily population of children in foster care to the low double digits, which would correspond to a reduction of the national daily foster care population by about 360,000. This reduction was mostly due to sending children home—usually to the homes from which they were removed—within days or weeks of removal, raising questions about the necessity of the original removal. This reduction occurred without harming children’s safety, suggesting that keeping children in state custody is not necessary to keep them safe. Moreover, New Orleans data reveal a particularly large reduction in the time Black children are separated from their families, an increase in the number of children living with kinship caregivers compared to strangers, and a near elimination of congregate care placements and termination of parental rights. All of these are positive outcomes, which demand widespread attention in the field. Several features of the reformed New Orleans system stand out. First, in the period before any adjudications (when most foster care exits occurred), the family court took on a dispute resolution role, focused on ensuring cases were prepared for trial or moving toward settlement. This contrasts with the family court’s historically more common and more interventionist problem-solving role. Second, the court insisted on compliance with pretrial procedures. Third, legal representation, especially of parents and the agency, was vigorous and adversarial. Some notes of caution are warranted. A significant minority of children leave foster care in New Orleans via a quick permanent change of custody to a relative, which ends the court’s involvement in the family’s life but sacrifices some potential benefits of a longer case, especially a parent’s opportunity to engage in rehabilitative services and more easily seek reunification
Mandating Repair Scores
No full textRestrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First Amendment challenges in the United States, such a regime is likely to survive constitutional scrutiny
Feedback Loops: E-D-I-T
No full textThe Keep/Cut Framework we learned about back in the December 2022 Feedback Loops column is, admittedly, a bit of a blunt feedback instrument. When the only feedback you can give is “Keep” or “Cut,” there’s not a ton of room for nuance or gradation. Your comments are restricted to either endorsing what already exists or pushing for something to be removed. hat’s a pretty limited menu.
So in both this column and in the June 2023 column, we’re going to learn about a feedback framework that creates opportunities for a greater range of opinions and recommendations: “E-D-I-T.
Feedback Loops: More Valuable Than Money
No full textIn an essay called Secrets of Positive Feedback,” Douglas Conant, the former CEO of Campbell Soup Company, shares a key element of the leadership style that helped him resurrect Campbell’s from financial ruin in 2001 and turn it into both a highly profitable business by the time he stepped down in 2011 and an award-winning, much more inclusive workplace: During his ten years at the helm, he wrote more than 30,000 thank-you notes to his employees and customers
COVID-19 Pandemic’s Impact on Online Sex Advertising and Sex Trafficking
No full textDisruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease occurring around the time of the start of the pandemic and the issuance of stay-at-home orders followed by an increase to levels well above pre-pandemic levels corresponding in time to when COVID-related restrictions were relaxed. We argue that the initial decrease could have been induced by a loss of demand for sexual services due to pandemic-related health concerns, but that a confluence of factors, including the lack of economic and social support for those working in the commercial sex industry, may have increased the number of people vulnerable to being exploited and becoming trafficking victims. This research adds to the under-standing of the way sex trafficking adapts to events in the public sphere
The Dormant Commerce Clause as a Way to Combat the Anti-Competitive, Anti-Transmission-Development Effects of State Right of First Refusal Laws for Electricity Transmission Construction
Get PDFTo quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using a circuit split between the Fifth and Eighth Circuits as a jumping off point, argues that these state right of first refusal laws violate the dormant Commerce Clause because they serve as impermissible local presence requirements that prevent companies not already operating in a state from accessing and competing in a state’s markets. The Note concludes by analyzing how the Supreme Court would potentially rule if they resolved this Circuit split