Law Commons^™

Fair Use Challenges In Academic And Research Libraries, Peter Jaszi

Copyright, Fair Use & Open Access

Academic and research libraries are key players in the generation and propagation of knowledge in the U.S., and their interpretation of the balancing features of copyright is critical to the quality of research, teaching, and learning they support. Approaches and methods for research, teaching, and learning are changing rapidly with opportunities presented by digitization and Internet communication. Academic and research librarians need and use the balancing features of copyright—including exemptions listed in Sections 108 and 110 of the Copyright Act, as well as fair use (codified in Section 107)—in order to accomplish the routine tasks of their profession. This report …

Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking, David S. Levine

Joint PIJIP/TLS Research Paper Series

The negotiations of the Anti-Counterfeiting Trade Agreement (ACTA) have been marred by a level of attempted secrecy heretofore unseen in international intellectual property lawmaking. Simultaneously, the Freedom of Information Act (FOIA) has been used in several significant national contexts to prevent the disclosure of data and information in ways that call into question its efficacy as an effective regulation of governmental knowledge. This paper seeks to tie together these two recent developments in order to (a) prevent future international intellectual property law negotiations from being unduly secret and (b) encourage Congress to consider reforming FOIA in light of current public …

Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The grand jury is a "much maligned" organ of the criminal justice system.' Regularly employed in only about half of the states and grudgingly tolerated in the federal system,2 the American grand jury for two centuries has been criticized as costly, ineffective, overly-compliant, and redundant. Prescriptions have ranged from reforms designed to improve the grand jury's performance of its traditional filtering and charging functions to the outright abolition of the grand jury. Consequently, much of the scholarly defense of the grand jury seemingly has done little more than attempt to justify its very existence.

This Article seeks to take the …

No Student Left Behind: Ensuring The Accessibility Of Reading Technologies At Universities, Gary C. Norman

The Modern American

The author discusses the perspective of blind and vision impaired persons in relation to the introduction of emerging technologies. If they are not accessible to all students, such technology will impede an equal education of students with disabilities.

A Modern Twist On The Prison Industrial Complex, Isis Goldberg

The Modern American

The author discusses a new NPR article, “Prison Economics Help Drive Arizona Immigration Law,” that sheds light into the role that the private prison industry played in pushing forward Arizona´s controversial legislation, SB 1070. She relates this to the theory of prison-industrial complex postulated by Angela Davis, professor and former Black Panther member, and concludes that private corporations should not have influence or participate in drafting legislation because they do not have the public welfare at interest.

Prison Labor, Human Experimentation, & The Bp Oil Disaster, Zannie Carlson

The Modern American

The author argues that when BP hired prison labor to clean up the spill, corrections agencies failed to consider the impact of handling toxic chemicals on prisoner health.

For Every Scholar, There Must Also Be The Occasional Frivolity: Heard Any Good Films?, Gary C. Norman

The Modern American

The author discusses the strengths and weaknesses of the recently enacted Twenty-First Century Communications and Video Accessibility Act (Public Law 111-260).

Election Report: A "Heartland" Vote For Islamic Bigotry, Richael Faithful

The Modern American

The author discusses the legal community’s reaction to the Oklahoma referendum on November 1, 2010, in which voters approved a state constitutional amendment that bans the use of Islamic Law and international law in state court decisions.

America´S Access To Guns And The Effect It Has On American Gangs And Political Instability Abroad, Isis Goldberg

The Modern American

The author discusses the Second Amendment right to keep and bear arms and how easy access to guns has triggered an epidemic of violence and murder in urban communities, increased insecurity in schools, and made gangs more dangerous.

Dadt, Doma And Fidelity To The Constitution, David Wexelblat

The Modern American

The author defends the Department of Justice’s (DOJ) decision to appeal the “Don’t Ask, Don’t Tell” (DADT) ruling on constitutional grounds: The Executive Branch has a constitutional obligation to defend the laws duly enacted by Congress

A Reflection On Employment Challenges And Opportunities, Gary C. Norman

The Modern American

The author discusses President Obama’s reinstatement of Executive Order 13163 of the Clinton administration that required the federal government to be a model employer and to increase the numbers of targeted disabilities in the federal workforce.

It’S Still A Secret, But Not For Long: A Dadt Play-By-Play, Alexandra Manrique

The Modern American

The author discusses the zig-zag by Congress, the White House, and the Departments of Defense and Justice to repeal “Don’t Ask, Don’t Tell,” the policy prohibiting gay citizens to serve openly in the military.

High Heels In 2010?, Shailee Diwanji

The Modern American

The author discusses modern dress codes that require female employees to wear skirts and high heels, and which the Equal Employment Opportunity Commission has generally held, and courts have ratified, that employers may establish varying dress codes for men and women without violating discrimination laws.

The Peregrinations Of A Post Graduate Law Student And Legal Professional With A Guide Dog, Gary C. Norman

The Modern American

The author offers two personal anecdotes involving a cafeteria worker and taxicab coordinator to illustrate that respect for persons with disabilities has a ways to go.

Education Everywhere: The Popular Awareness Surrounding Education Reform, Alexandra Manrique

The Modern American

The author applauds the extensive media and political coverage of education reform.

Amidst Ongoing Slavery In The South, One Group’S Efforts To Enforce The 13th Amendment, Zannie Carlson

The Modern American

The author lauds the advocacy of the Coalition of Immokalee Workers (CIW) to prosecute Florida landowners engaged in forced labor and indentured servitude of workers.

The Year In Economics At The Fcc: A National Plan For Broadband, Jonathan Baker, Paul De Sa

Articles in Law Reviews & Other Academic Journals

The past year in economics at the Federal Communications Commission (FCC) has focused on encouraging the adoption and deployment of high capacity Internet access and the associated networks, commonly termed “broadband.” Our article sketches important economic themes in the FCC’s National Broadband Plan to show how the application of basic principles of regulatory economics takes account of rapid technological change. We discuss natural monopoly regulation, externalities and cross-subsidies, network effects and interconnection, the allocation of scarce inputs, protecting and fostering competitive markets, and consumer protection and transparency as they apply to the development of broadband.

Dissecting The Pieces From A New Study, Picked Apart: The Hidden Struggles Of Migrant Women In The Maryland Crab Industry, Richael Faithful

The Modern American

The author discusses the findings of the recent report produced by the American University Washington College of Law Immigrant Justice Clinic, “Picked Apart: The Hidden Struggles of Migrant Working Women In The Maryland Crab Industry.”

Help The Homeless -- Is It Enough?, Shailee Diwanji

The Modern American

The author discusses the increase in violence against homeless people and state and federal initiatives to pass legislation designating violence against the homeless as a hate crime.

Religious Exemption Or Exceptionalism? Exploring The Tension Of First Amendment Religion Protections & Civil Rights Progress Within The Employment Non-Discrimination Act, Richael Faithful

Articles in Law Reviews & Journals

The District of Columbia (D.C.) marked a landmark civil rights achievement in December 2009 when the city passed the Religious Freedom and Civil Marriage Equality Amendment Act. The law’s enactment allowed D.C. to become the sixth jurisdiction to sanction same-sex marriage in the United States. Supporters hailed the law as a victory for lesbian and gay equality, while detractors vowed that their efforts to traditionally define marriage would continue.

Among the most public opponents of the law was the Catholic Archdiocese of Washington, which operates Catholic Charities, a leading service provider to low-income residents in the metropolitan area. The Catholic …

Will Individuals Aboard The Cultural Pirate Ship Be Struck By The Acta's Cannon Ball?, Shalom Andrews

Joint PIJIP/TLS Research Paper Series

Combating internet piracy is a global challenge. Fundamentally, piracy lingers because it has become a culturally acceptable behaviour that is under-enforced. The Anti-Counterfeiting Trade Agreement (ACTA) is the latest enforcement measure aimed at sinking the pirate ship.

The first part of this paper will explore piracy as a cultural phenomenon and how it interacts with Australian civil and criminal law. Pirates, who have awareness that their plundering is wrong, convince themselves that: there are moral grounds for their escapades; there is a government conspiracy to reduce internet freedom; they are fighting globalisation by attacking the corporations who reap disproportionate booty, …

The Global Ip Upward Ratchet, Anti-Counterfeiting And Piracy Enforcement Efforts: The State Of Play, Susan Sell

Joint PIJIP/TLS Research Paper Series

Proponents of an IP maximalist agenda increasingly have been rebuffed in recent years. Developing country governments, NGOs, and Access to Knowledge (A2K) advocates have thwarted their efforts to ratchet up standards of intellectual property protection in multilateral intergovernmental forums such as the World Trade Organization, the World Intellectual Property Organization, and the World Health Organization. A2K advocates challenge the premises behind ever higher and broader intellectual property protection and seek, if not a rolling back of IP rights, at the very least a standstill. They argue that in the balance between rights and obligations, IP maximalists assert their rights without …

Where Copyright Enforcement And Net Neutrality Collide - How The Eu Telecoms Package Supports Two Corporate Political Agendas For The Internet, Monica Horten

Joint PIJIP/TLS Research Paper Series

This paper discusses a change to European Union (EU) telecoms law which de facto permits operators to impose restrictions on network traffic, and which enables such restrictions to be imposed for the purposes of copyright enforcement—thus it simultaneously facilitates two different policy agendas from the copyright and telecoms industries—‘three-strikes’ as well as ‘traffic management.’ The mechanism is a provision concerning users’ contracts, supported by generic provisions addressed to EU governments and regulators. The change went into law in late 2009, within the so-called ‘Telecoms Package,’ which, together with the E-commerce directive, establishes the EU legal framework for telecoms networks. In …

Acta: Risks Of Third Party Enforcement For Access To Medicines, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

In its current near-final draft form, the Anti-Counterfeiting Trade Agreement [ACTA] being negotiated plurilaterally—and largely secretly—by a self-selected group of countries proposes to allow preliminary and final injunctive relief against third parties (third-party enforcement) to prevent infringement of intellectual property rights and/or to prevent infringing goods from entering into the channels of commerce. There is lingering uncertainty whether the relevant civil enforcement section will apply to the entire range of intellectual property rights or whether patents will be excluded. If patents are excluded, the dangers in ACTA would be reduced but not eliminated—new globalized forms of third-party enforcement would still …

Acta, Fool: Explaining The Irrational Support For A New Institution, Gabriel Michael

Joint PIJIP/TLS Research Paper Series

The key players in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations were driven to establish a new institution for intellectual property enforcement because the traditional venues for such matters, the WTO and WIPO, had become inhospitable forums. Yet given the significant division in U.S. domestic economic interests over ACTA’s provisions and the lack of solid theoretical or empirical evidence supporting claims made by proponents of the agreement, it is puzzling that ACTA has commanded the support of the U.S. executive, even across two administrations from opposing political parties. I show why this support cannot be explained as a result of the …

Enforcing Intellectual Property Rights By Diminishing Privacy: How The Anti-Counterfeiting Trade Agreement Jeopardizes The Right To Privacy, Alberto Cerda Silva

Joint PIJIP/TLS Research Paper Series

Enforcing the law in the digital environment is one of the main challenges of the Anti-Counterfeiting Trade Agreement (ACTA). In order to enforce the intellectual property law, unlike previous international agreements on the matter, ACTA attempts to set forth provisions concerned with privacy and personal data. Special provisions refer to law enforcement in the digital environment; ACTA would require the adoption of domestic law to allow identifying supposed infringers and, consequently, the collaboration of the online service providers (OSPs) with rights holders. However, those provisions raise some human rights concerns, particularly as related to the right to privacy of Internet …

Flouting The Elmo Necessity And Denying The Local Roots Of Interpretation: "Anthropology's" Quarrel With Acta And Authoritarian Ip Regimes, Alexander S. Dent

Joint PIJIP/TLS Research Paper Series

This paper uses an anthropological definition of culture to examine the intensification of intellectual property policing, coupled with an expansion of its definition. These are ACTA’s aims. I argue that acts of sharing lie at the root of communication; humans must share in order to learn. Furthermore, symbols change their meaning as they circulate in different cultural contexts. Therefore, in denying the fundamental importance of sharing and local interpretation, ACTA will not only fail spectacularly as a policy document. It will also fuel a “war” on file-sharers, users of generic medicines, and manufacturers, sellers, and buyers of imitative goods and …

Wipo And The Acta Threat, Sara Bannerman

Joint PIJIP/TLS Research Paper Series

The new Anti-Counterfeiting Trade Agreement (ACTA) has been seen as a potentially existential threat to the existing World Intellectual Property Organization (WIPO) – as a new plurilateral institution that could replace the older multilateral organization. The ACTA threat to WIPO has a number of predecessors. WIPO’s centrality to international intellectual property norm-setting encountered its first major challenge in 1952 when the Universal Copyright Convention was established under UNESCO. It encountered a second major challenge with the establishment of the Agreement on Trade-Related Aspects of Intellectual Property (the TRIPs Agreement). The ACTA challenge thus potentially represents a third instance where a …

Acta's Abandoned Third-Party Liability Provisions And What They Mean For The Future, Michael R. Morris

Joint PIJIP/TLS Research Paper Series

One of the most controversial aspects of the proposed Anti-Counterfeiting Trade Agreement (ACTA) was its requirement that signatories adopt a system of secondary liability akin to that which has developed in American law, but without the protections that have been carved out by statute and court. This white paper examines and explains the concept of secondary liability; the controversy surrounding its incorporation into ACTA; its exclusion from the ACTA draft leaked in August 2010, and the future of secondary liability expansion.

Acta As A New Kind Of International Ip Law-Making, Kimberlee Weatherall

Joint PIJIP/TLS Research Paper Series

The ACTA negotiations are important not only for the potential impact of the treaty itself, but for what they can teach us about the dynamics of intellectual property law-making and the structure of the IP treaty framework. This paper draws two broad lessons from the progress of the ACTA to date which, while not entirely new, can be understood in a new light by looking at the detailed development of the ACTA text: (1) that the global IP 'ratchet' is not inexorable; and (2) that the international IP treaty framework is very poorly adapted to developing exceptions. The relevance of …