Law Commons^™

Guidelines To Limit Criminal Prosecutions Of Filesharing Services, Benton C. Martin, Jeremiah R. Newhall

Benton C. Martin

This short essay acknowledges certain efficiencies in enforcing copyright law against "secondary" infringers like filesharing services through criminal proceedings, but it proposes guidelines for prosecutors to use in limiting prosecutions against this type of infringer.

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

U.S. Government Counterterrorism Asset Freezes: Regulatory Seizures In A Digital Age Of Terrorism, Adam S. Wallwork

Adam S Wallwork

This Article addresses the question of when, if ever, the Department of the Treasury’s counterterrorism asset freezes against US persons (US citizens, resident aliens, and US-based organizations) violate the Fourth Amendment. It addresses two questions that currently divide the federal courts: (1) whether OFAC blocking orders are seizures subject to the Fourth Amendment and (2) whether the Fourth Amendment’s warrant and probable-cause requirements apply to OFAC counterterrorism blocking orders if these orders are in fact seizures.

My Originalist analysis of OFAC counterterrorism blocking orders draws on evidence of the Framers’ original understanding of “unreasonable . . . seizures,” including the …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Criminal Copyright Enforcement Against Filesharing Services, Benton C. Martin, Jeremiah R. Newhall

Benton C. Martin

The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?

This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why "secondary" theories of infringement apply in the criminal, as well as civil, context and why the DMCA "safe harbor" defense is a red herring in criminal …

The Four Factor Test, Susan Freiwald

Susan Freiwald

No abstract provided.