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What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming Scènes à Faire
Get PDFRecent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that certain themes, events, or settings in question belong to a certain genre. To measure what may fall within the scope of unprotected stock, a court focuses on supplementary factors such as the public’s perception of genre conventions, which are culturally dependent and drastically evolve over time.However, many courts fail to consider “timing” when applying the scènes à faire doctrine. Courts do not necessarily evaluate whether certain aspects or elements within a work were “standard or stock” when the copyrighted material was created. For that reason, an infringing work that becomes popular may use the scènes à faire doctrine as a sword against what was once original singular expression. This inequitable scenario could arise if the scènes à faire doctrine is applied to a work at the commencement of litigation and not at the time of the work’s original drafting.In reasoning that courts should focus a scènes à faire inquiry from the perspective of the writer at the time that the copyrighted material was written, this Comment explores the claiming systems of patent law with a view toward how they may remedy the scènes à faire doctrine’s shortcomings. To rectify the doctrine’s inadequacies, primarily within the context of screenplays and teleplays, this Comment ultimately proposes an author-drafted copyright registration supplement that details the intricacies of how a genre’s conventions were implemented in a work at the time of creation through plot, character, theme, and setting, among other things
Proving Economic Loss for In-And-Out Traders in Light of First Solar
Get PDFFederal courts have grappled with the issue of whether or not to include in-and-out traders in federal securities class action lawsuits. One set of courts has excluded in-and-out traders on the grounds that they could not prove loss causation, while another set of courts has included in-and-out traders because of the possibility that they could prove that they had suffered a loss. In Mineworker’s Pension Scheme versus First Solar, Inc., the Ninth Circuit recently addressed what should be the correct standard for loss causation. While the Ninth Circuit’s decision resolved its own intra-circuit split, the Court’s decision widened an already existing circuit split. Where some circuits have adopted a restrictive view of loss causation that requires a corrective disclosure revealing the fraud, the Ninth Circuit adopted the view of loss causation that requires a corrective disclosure revealing the fraud, the Ninth Circuit adopted the view that loss causation only requires that plaintiff’s economic loss be proximately caused by a defendant’s misstatement. By embracing the Ninth Circuit’s standard, this note argues that in-and-out traders can show economic loss in the absence of any corrective disclosures. Through proximate cause’s intervening event pattern, it can be shown that an in-and-out trader has suffered a loss in the absence of a disclosure, obviating the need to show that a corrective statement was issued to the market
The OCC FinTech Charter and the Bank Holding Company Act
Get PDFThe definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in financial services in a meaningful way. Despite the OCC initially suggesting that the BHCA could apply to FinTech companies chartered as special purpose national banks (“SPNBs”), these entities do not and cannot meet the definition of a bank under the BHCA because FinTech SPNBs are not permitted to take deposits. This Comment sets out a framework by which to analyze whether the definition of a bank under the BHCA should include FinTech firms who make loans and do not take deposits, i.e., “marketplace leaders.” This Comment finds that including FinTech firms, specifically marketplace lenders, in the statutory definition of a bank would serve a majority of the BHCA’s underlying policy rationales
The Power of Being Present: Lessons from Diplomacy in Latin America and the Caribbean for the Private Sector
Get PDFSuccessful modern diplomacy and private sector engagements require being physically present. Based on the experience of the authors in diplomacy and corporate government affairs, this article argues that the trust that forms the basis of effective diplomacy and corporate engagement with the communities in which they operate is established best through direct physical interaction. With examples from Latin America and the Caribbean, the article explores how both diplomacy and corporate government affairs have evolved into a model of being present that emphasizes seeking to empower local populations. The article delves into how and why the United States carries out its policy, engages with governments and societies overseas, and the lessons for the private sector that can be learned from how embassies operate and how diplomats practice the art of diplomacy. Using Microsoft’s approach as an example, the article shares cases of how companies also can seek to empower communities through their physical presence
Defend Forward & Sovereignty: How America’s Cyberwar Strategy Upholds International Law
Get PDFTo thwart a seemingly neve rending bombardment of cyberattacks, the U.S. Department of Defense recently implemented a new strategy – defending forward. This approach demands persistently engaging the enemy on a daily basis to disrupt cyber activity. Rather than waiting to be attacked, the United States is bringing the fight to the enemy. However, this strategy poses fascinating and complex questions of international law. In particular, because most defend forward operations fall within the gray zone of warfare, it remains unclear whether these operations violate the sovereignty of American adversaries or even third party nation states in whose cyberspace U.S. Cyber Command is operating. This paper proposes that defend for-ward does not violate sovereignty within international law. First, sovereignty is a principle of international law, not a rule the United States can violata. Second, American domestic law has limited defend forward operations to proportional responses to persistent cyber-attacks and threats Finally, America\u27s chief adversaries have fundamentally different understandings of sovereignty, which reinforces the necessity and legality of defend forward. Overall, defend forward should be viewed as fitting squarely in the existing framework of international law. Whether defend forward will succeed, however, is another questio
Russia’s Constitutional Dictatorship: A Brief History
Get PDFWhy is the word impeachment so terrible? After all, if the Congress passed such a motion it would have no legal force. A popularly elected president could not be removed from power by the Congress, especially this Congress, which had long ago lost the people’s trust.
Arguing for Insulation: How American and Canadian Legal Practitioners Can Bring Neutrality to Their Immigration Systems
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Coining New Tax Guidance: How the IRS is Falling Behind in Crypto
Get PDFIn October 2019, the Internal Revenue Service offered its first guidance on cryptocurrency reporting standards in nearly five years. As digital investments become more commonly accepted, the need for regulation and guidance becomes clearer. Issues such as how to classify cryptocurrencies and how a transaction’s purpose impacts reporting standards are currently being addressed across the globe as governments work to develop protocols that organize this rapidly developing field. This note analyzes the developing reporting standards of select countries and the potential impacts on use as cryptocurrencies become more mainstream as a potential investment and method of payment
Anti-Science Ideology
Get PDFPolitical attacks against scientists and scientific research are nothing new, though the Trump Administration appears to have increased both the breadth and the depth of such attacks. What is new, it seems, are attacks on science that are not in service of protecting any identifiable regulated industry. Under the Trump Administration, the attacks on science are more systemic, and aimed more at reducing scientific capacity in the federal government, rather than mere one-off policy interventions to help an individual industry.
This Article suggests that the Trump Administration, more than previous administrations, has sought to use science as part of a political culture war, reviving a populist suspicion of intellectuals that has a long and cyclical history in American culture. This current episode of anti-intellectualism, while targeting social science as past episodes have, has also uniquely targeted the biological and physical sciences, the difference being that findings in these fields are more firmly grounded in empirical fact than in the social sciences. The Trump Administration’s attacks on science, writ larger, are non-epistemic in nature, seeking to build an ideology of hostility to science. This strategy builds upon a decades-long and continuing misinformation campaign to discredit climate scientists but goes further and seeks to portray scientists as part of the “deep state” that is conspiring to victimize Americans.
To be sure, federal funding for most research unrelated to industry regulation remains robust, even higher in some programs. But a manufactured suspicion of “regulatory science” (relating to industry regulation) has begun to bleed ominously over into policy arenas completely outside of regulation. The Trump Administration’s policy meanderings to deal with the COVID-19 crisis are emblematic of a growing and systemic subjugation of science to political objectives, ones that can be bizarrely unscientific. A number of cultural, political, and economic factors contribute to this latest resurgence of anti-intellectualism, one with a unique animus towards the hard sciences. A restoration of endangered and broken societal norms governing the advancement of science will require vigorous enforcement of federal administrative laws but will also require the development of government policies that address the cultural, political, and economic roots of this latest crisis of science