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Copyright Infringement Pushin\u27: Google, YouTube, and Viacom Fight for Supremacy in the Neighborhood That May Be Controlled by the DMCA\u27s Safe Harbor Provision
Get PDFNo longer does it seem that a copyright infringer is anyone who violates any of the exclusive rights of the copyright owner. Now, one who uses the copyrighted material without the permission of the owner is not an infringer until the court decides that the infringer has gone too far in appropriating content that he or she did not create. This new world order was most recently challenged in Viacom International Inc. v. YouTube, Inc. This Article will explore why the Viacom/YouTube litigation should be the case that reestablishes the rights of copyright owners and clarifies the seemingly disparate views of copyright ownership between the Ninth and Second Circuits, in addition to reconciling the most prominent copyright decisions of the Supreme Court
The Advance Directive Registry or Lockbox: A Model Proposal and Call to Legislative Action
Get PDFIn times of need, what portal or place could we go to easily to retrieve a person\u27s advance directives when we have need to employ and use them? A handful of states have come up with a solution. Nevada, Washington, and Vermont now have legislation in place that allow citizens of those states to electronically store their advance directives on the internet -in an electronic lockbox or portal of sorts. These states have addressed a critical need of their citizens: the need to have their advance directives accessible and readily available to health care providers so that their intent and wishes will be honored.
This Article advocates that other states follow the lead of Nevada, Washington, and Vermont by adopting similar legislation and embracing digital or electronic technology by creating Internet lockboxes, registries, or portals where citizens can store their advance directives and where health care providers can access these advance directives in the most pressing and critical situations
A Tale of Two Carbon Sinks: Can Forest Carbon Management Serve as a Framework to Implement Ocean Iron Fertilization as a Climate Change Treaty Compliance Mechanism?
Get PDFAny post-Kyoto climate change treaty regime must seek to fully engage the use of carbon sinks to complement emissions reduction measures in order to comply with the treaty\u27s mandates. The Kyoto Protocol did not include avoided deforestation as a mechanism for earning emission reduction credits. However, reducing emissions from deforestation and degradation (REDD) quickly gained popularity as a viable climate change compliance strategy in the period immediately preceding the negotiations at the Fifteenth Conference of the Parties (COP 15) in Copenhagen in 2009. The Copenhagen Accord is replete with references to REDD as a focus for the international community\u27s progression toward a binding successor agreement to the Kyoto Protocol. Ocean iron fertilization (OlF) is an emerging and controversial strategy to promote climate change treaty compliance, and may be the next step in engaging the creative use of carbon sinks to fulfill carbon reduction mandates. Both REDD and OIF must overcome challenges such as developing effective monitoring techniques, ensuring the permanence of emission reductions, and avoiding leakage of such reductions. Like REDD, OIF could promote a global carbon trading market that may help ensure the success of a post-Kyoto climate change treaty. Unlike REDD, however, OIF is hampered by moral hazard and unintended consequences concerns associated with its techniques. In addition, to ensure effective regulation of the research and implementation of OIF projects, OIF must overcome significant international law governance challenges
Technical Services IS Public Service: Or How I Got Out of the Back Room and Why You Should Too
Get PDFLibrary traditions are rapidly being broken. Job descriptions, organizational structures, and managerial styles are in flux against a backdrop of stunning advances in technology, the explosion of information and formats, and shrinking budgets. Many people feel they no longer need to visit the library because information is accessible, 24-7, from almost anywhere. What can you do as a traditional technical services librarian to adapt to these changes and their implications? Get out of the back room
An Elucidating Response to Erroneous Outrage: Why Continued Law of War Detention under Executive Order 13,567 Is Legal
Get PDFExamining the Stick of Accreditation for Medical Schools through Reproductive Justice Lens: A Transformative Remedy for Teaching the Tuskegee Syphilis Study
Get PDFThe Tuskegee Syphilis Study, like the traditional recounting of the event, failed to acknowledge the direct impact of untreated syphilis in women. Arguably, the most infamous biomedical research study ever performed by the United States government is the Tuskegee Syphilis Study, which occurred between 1932 and 1972 in Macon County, Alabama. The stated purpose of the Tuskegee Syphilis Study was to determine the effects of untreated syphilis on Black men in Macon County, Alabama. Accordingly, historical and legal accounts have primarily told the stories of the male participants of the Study.
However, an overlooked yet important question looms: What about the women of the Tuskegee Syphilis Study? To date, there have not been consistent and adequate substantive challenges to the omission of the women affected by the study, whether in historical accounts or contemporary bioethical discourse. This Article fills the gap in this historical and contemporary omission by calling for a reproductive justice framework to not only critically examine the Tuskegee Syphilis Study, but also to offer curricular content on cultural competency to aid medical schools in their quest to attain accreditation
Apprendi Land Becomes Bizarro World: Policy Nullification and Other Surreal Doctrines in the New Constitutional Law of Sentencing
Get PDFImagine a final exam essay answer in constitutional law premised upon the following doctrinal principles: (i) identical findings of fact that produce identical effects on the outcome of a decision should sometimes be constitutional and should sometimes be unconstitutional based on formalistic doctrinal lines unrelated to the substantive merits of the issue being decided; (ii) decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings; (iii) appellate review of trial court decision-making is unconstitutional; and (iv) courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law. In fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature\u27s non-constitutional policy preferences. Naturally, we might expect such an exam answer to receive an F. But if the exam question involved the United States Supreme Court\u27s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land-which has now become Bizarro World. How did we get to this point? Little more than a decade ago, if you had asked any criminal procedure professor, criminal law practitioner, or judge to describe the doctrines of constitutional law that specifically govern the sentencing of a convicted criminal defendant, the answer would have been simple and reflexive: leaving aside the myriad of special rules for capital cases, there were not any. Of course, the basic, general principles of constitutional law applied to sentencing and ensured, for example, that the sentencing judge was neutral and unbiased as a matter of procedural due process, or that the sentence imposed was not motivated by an impermissible classification of race or sex as a matter of equal protection. But there was no constitutional law of sentencing as such, no set of doctrines specifically directed at either the procedure or the substance of determining each particular defendant\u27s sentence. Beginning with its landmark Apprendi decision in 2000, the United States Supreme Court has dramatically repudiated this traditional answer. In just ten years, the Court has used a series of significant decisions to develop an extensive new constitutional law of sentencing. Most prominently, the decisions in Blakely and Booker declared that mandatory sentencing guidelines which had bound state and federal judges in the determination of sentences were unconstitutional. By invalidating these provisions, the Court has used its new constitutional law of sentencing to restore the power of sentencing judges to exercise their discretion in imposing sentences; in doing so, the Court has privileged the objective of an individualized punishment for each particular offender over the objective of systemic uniformity in maintaining consistent treatment of similar facts in similar cases. In the abstract, there is nothing objectionable about the concept of having a constitutional law of sentencing. Especially with contemporary sentencing reform measures becoming more frequent and more pervasive since the mid 1980s, the imposition of some constitutional constraints on sentencing-related laws likely was inevitable. After all, even the justices who dissented from the Court\u27s early Apprendi doctrine decisions conceded the need for at least some minimal constitutional limits on legislative power. In reality, however, the constitutional law of sentencing the Court actually developed is subject to several serious objections. For one, the Court has grounded its analysis in the defendant\u27s Sixth Amendment right to a jury trial, yet the doctrines promulgated in its decisions have nothing to do with protecting jury power. For another, the Court\u27s doctrine produces bizarre outcomes when applied, having the effect of treating functionally identical sentencing findings differently based on formalistic criteria unrelated to the substantive merits of the sentence. And the Court has unjustifiably constitutionalized the primacy of individualized punishment over systemic uniformity in sentencing particular defendants, when in fact the balance between those competing values at sentencing should have remained a nonconstitutional policy choice entrusted to state and federal legislatures, not to the preferences of judges. The Court could have been forgiven for initial missteps in its incipient doctrine if it had corrected course in later decisions. But the Court has not done so. Instead, its most recent decisions have only made the analytical flaws worse, and have only compounded the problems its doctrines create. Today, the Court\u27s new constitutional law of sentencing is all but unrecognizable when compared to its origin in Apprendi. The absurd formalisms embedded in the doctrine have been exacerbated. The doctrine now provides an incentive for sentencing judges to reason more arbitrarily and less transparently when determining punishment. And the doctrine has completely lost touch with any basis in jury trial rights, instead focusing entirely on protecting judicial power In fact, the Court has become almost brazen in its emphasis on judicial power, claiming for sentencing judges the authority to engage in policy nullification by declining to follow legislatively-adopted sentencing policies in favor of the judges\u27 own policy preferences. Worse, this authority is not constrained to discarding the implicit spirit of the law so long as the judge follows its literal letter, but seemingly extends to a constitutionally mandated authority to ignore express declarations of sentencing policy enacted in statutes. The time has come for the Court to recognize these serious problems with the new constitutional law of sentencing, and to correct course by bringing the doctrine back to its foundational principles. To do so the Court will have to overturn several of its own recent precedents and roll back the scope of constitutional law in this area. It may be true that legislatures have enacted a wide range of unwise, if not downright stupid, sentencing policies over the last quarter century. But not every poor policy choice is unconstitutional, and the solution to bad legislative judgment should not be bad constitutional law
