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Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Faculty Scholarship
This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
Law Faculty Publications
No abstract provided.
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Journal Articles
As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …
Art As Speech, Edward J. Eberle
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Publications
No abstract provided.
Can The Irs Silence Religious Organizations, Meghan J. Ryan
Can The Irs Silence Religious Organizations, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of …
The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls
The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls
Faculty Scholarship
Under provocative titles like "Fared Use"1 and "The End of Friction,"2 commentators argue about whether or not the copyright doctrine of fair use3 should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present …
Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe
Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe
UF Law Faculty Publications
This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …
Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers
Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers
UF Law Faculty Publications
In recent decades, several federal judges and Supreme Court Justices have stated that, at some time or another in the past, the Court determined that public universities or their professional schools are entitled to institutional academic freedom (or institutional autonomy) under the First Amendment. Notwithstanding the views of many learned commentators, the Court has never so held. Concurring opinions and dicta do not constitute Constitutional law. This article traces the series of misattributions, misreadings and other errors that have contributed to the present peculiar state of confusion in regard to these matters.
Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett
Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett
Journal Articles
The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.
How, then, should we understand church-state separation? …
Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss
Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss
Publications
First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …
Church, State, And The Practice Of Love, Richard W. Garnett
Church, State, And The Practice Of Love, Richard W. Garnett
Journal Articles
In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.
The specific goal for this paper is to draw from Deus caritas est some insight into …
Substantive Media Regulation In Three Dimensions, Gregory P. Magarian
Substantive Media Regulation In Three Dimensions, Gregory P. Magarian
Scholarship@WashULaw
Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian
Scholarship@WashULaw
First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …
Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter
Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter
Faculty Journal Articles and Book Chapters
It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment - pouring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation - their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values. Three things seem very clear. First, there are a lot of IRBs - at least 4,000 - and their numbers are growing. Second, they have recently "increased their …
Getting Permission, Philip A. Hamburger
Getting Permission, Philip A. Hamburger
Faculty Scholarship
Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …