Law Commons^™

The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson

Kernochan Center for Law, Media, and the Arts

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).

The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. …

The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio

Kernochan Center for Law, Media, and the Arts

Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.

Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress …

Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher

Kernochan Center for Law, Media, and the Arts

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part …

"Anything Goes": Regulating The Conduct Of Money-Bundling Broadway Co-Producers, David Manella

Kernochan Center for Law, Media, and the Arts

This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether moneybundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements. In Section I of this Note, I provide a history of Broadway producing models, so as to understand how today’s dominant model developed. In Section II, I unpack that model by describing the structure of theatrical investment vehicles and identifying the different types of Broadway producers. In Sections III and …

Creative Sparks: Works Of Nature, Selection, And The Human Author, Neal F. Burstyn

Kernochan Center for Law, Media, and the Arts

It is now common knowledge that if you put a bunch of monkeys in a room with a typewriter, they will eventually reproduce the works of Shakespeare. But according to the United States Copyright Office, if you give that same group of monkeys a camera, you do not get copyright in any pictures they may happen to take. In 2011, British wildlife photographer David Slater was in Indonesia when a group of crested black macaques began playing with his camera equipment and snapped some pictures, one of which went viral and proved temporarily profitable for Slater. The popular image, known …

Robots, Pirates, And The Rise Of The Automated Takedown Regime: Using The Dmca To Fight Piracy And Protect End Users, Zoe Carpou

Kernochan Center for Law, Media, and the Arts

This very second, a battle between robots and pirates is being waged online. Pirates are stealing content from copyright holders and uploading it to various websites. Robots are crawling the Web, searching for pirated content. When a robot encounters pirated content, it is programmed to attack — either by reporting back to the copyright holder, or by going straight to the source and requesting that the material be removed. Sometimes the pirates fight back, re-posting the content online soon after it is taken down or posting newly infringing content. The cycle continues, and the battle rages on.

Generally speaking, “robots” …

Fragmented Literal Similarity In The Ninth Circuit: Dealing With Fragmented Takings Of Jazz And Experimental Music, Michael Zaken

Kernochan Center for Law, Media, and the Arts

Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.

The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music.... A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.

The difficulty of applying standard infringement measures to musical compositions in a way …

Constitutional Hazard:The California Resale Royalty Act And The Futility Of State-Level Implementation Of Droit De Suite Legislation, Nithin Kumar

Kernochan Center for Law, Media, and the Arts

Répétition d’un Ballet, the famous painting by French artist Edgar Degas, sold for $401,000 in 1965. The jubilant seller bragged that Degas originally asked a mere $100 for the painting. In his early career, celebrated American artist Norman Rockwell sold original works like Homecoming Marine and Breaking Home Ties for a few hundred dollars each. In the last decade, these paintings were resold for $9.2 million and $15.4 million at Sotheby’s auctions, but the Rockwell estate received nothing in these transactions. Over the centuries, great wealth in the arts has rarely translated into great wealth for the artist. Since …

Taming The "Frankenstein Monster": Copyright Claim Compatibility With The Class Action Mechanism, Renee G. Stern

Kernochan Center for Law, Media, and the Arts

In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” …

The Demise Of The Copyright Act In The Digital Realm: Re-Engineering Digital Delivery Models To Circumvent Copyright Liability After Aereo, Megan Larkin

Kernochan Center for Law, Media, and the Arts

This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability. Part I provides the background of the public performance right, focusing on the role that technology has played in the addition of the Transmit Clause and on relevant judicial interpretation. Part II argues that the Second Circuit’s interpretation of the Transmit Clause was improper; it tests the court’s blueprint by re-engineering past business models to show how they could have evaded liability. Part III proposes that, …

You Can’T Go Home Again: The Righthaven Cases And Copyright Trolling On The Internet, Ian Polonsky

Kernochan Center for Law, Media, and the Arts

In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.” The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll …

The (Im)Possibility Of "Standard Technical Measures" For Ugc Websites, Laura G. Gallo

Kernochan Center for Law, Media, and the Arts

In today’s highly litigious legal landscape, one might doubt that there could ever be an “open, fair, voluntary” agreement between copyright owners and service providers to police infringement. Congress nevertheless envisioned such a consensus when it developed § (i) of the Digital Millennium Copyright Act (DMCA): “Conditions for [Safe Harbor] Eligibility.” An often-overlooked provision of the DMCA, § 512(i) directs right holders and Internet service providers to work together and agree on “standard technical measures” to “identify or protect copyrighted works.” In addition to being the product of consensus, these measures must be “available ... on reasonable and nondiscriminatory terms” …

Audiovisual Works And The Work For Hire Doctrine In The Internet Age, John L. Schwab

Kernochan Center for Law, Media, and the Arts

The work for hire doctrine is a legal mechanism by which the creator of an artistic work’s employer is deemed the author of that work. While, historically, such employer ownership schemes were not recognized by courts, today the work for hire doctrine is a firmly embedded part of American copyright law. In particular, work for hire has developed into an essential tool of the audiovisual entertainment industry. As discussed in Part I.B, infra, there are a number of reasons that work for hire is a particularly useful ownership allocation scheme for audiovisual works.

Modern technological developments are, however, rapidly altering …

The Right To Remain Anonymous: Anonymous Speakers, Confidential Sources And The Public Good, Jocelyn Hanamirian

Kernochan Center for Law, Media, and the Arts

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities.

The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege …