Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (88)
- Entertainment, Arts, and Sports Law (61)
- Constitutional Law (30)
- Internet Law (20)
- Communications Law (13)
-
- Privacy Law (12)
- Law and Society (11)
- Science and Technology Law (10)
- Human Rights Law (6)
- Civil Rights and Discrimination (5)
- Computer Law (5)
- Jurisprudence (5)
- Legislation (5)
- Property Law and Real Estate (5)
- Torts (5)
- Antitrust and Trade Regulation (4)
- Business (4)
- Commercial Law (4)
- International Law (4)
- Law and Politics (4)
- Sexuality and the Law (4)
- Consumer Protection Law (3)
- Law and Gender (3)
- Legal Writing and Research (3)
- Marketing Law (3)
- Social and Behavioral Sciences (3)
- Arts and Humanities (2)
- Business Organizations Law (2)
- Institution
-
- Fordham Law School (50)
- Selected Works (14)
- Boston University School of Law (9)
- University of Georgia School of Law (9)
- SelectedWorks (8)
-
- Vanderbilt University Law School (8)
- Chicago-Kent College of Law (7)
- Pepperdine University (6)
- American University Washington College of Law (5)
- Maurer School of Law: Indiana University (5)
- University of Colorado Law School (5)
- Georgetown University Law Center (4)
- Case Western Reserve University School of Law (3)
- The Catholic University of America, Columbus School of Law (3)
- University of Florida Levin College of Law (3)
- University of Pennsylvania Carey Law School (3)
- BLR (2)
- Brooklyn Law School (2)
- Columbia Law School (2)
- Loyola Marymount University and Loyola Law School (2)
- Marquette University Law School (2)
- Mitchell Hamline School of Law (2)
- Notre Dame Law School (2)
- Pace University (2)
- Touro University Jacob D. Fuchsberg Law Center (2)
- University at Buffalo School of Law (2)
- University of Cincinnati College of Law (2)
- University of New Hampshire (2)
- University of Oklahoma College of Law (2)
- University of Pittsburgh School of Law (2)
- Publication Year
- Publication
-
- Fordham Intellectual Property, Media and Entertainment Law Journal (50)
- Faculty Scholarship (8)
- Journal of Intellectual Property Law (8)
- Vanderbilt Journal of Entertainment & Technology Law (8)
- Chicago-Kent Journal of Intellectual Property (6)
-
- Faculty Publications (6)
- Scholarship Chronologically (6)
- Publications (5)
- Articles in Law Reviews & Other Academic Journals (4)
- Georgetown Law Faculty Publications and Other Works (4)
- Journal Articles (4)
- Pepperdine Law Review (4)
- All Faculty Scholarship (3)
- Indiana Law Journal (3)
- UF Law Faculty Publications (3)
- Articles (2)
- Ashley R Brown (2)
- Brooklyn Law Review (2)
- Catholic University Journal of Law and Technology (2)
- ExpressO (2)
- Law Faculty Scholarship (2)
- Mark A. Conrad (2)
- Oklahoma Law Review (2)
- The Journal of Business, Entrepreneurship & the Law (2)
- The University of Cincinnati Intellectual Property and Computer Law Journal (2)
- Touro Law Review (2)
- Akron Law Review (1)
- Amir Khoury (1)
- Anthony J. King (1)
- Articles by Maurer Faculty (1)
- Publication Type
- File Type
Articles 1 - 30 of 183
Full-Text Articles in Intellectual Property Law
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler
IP Theory
The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …
Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon
Akron Law Review
Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …
Texas’ War On Social Media: Censorship Or False Flag, Leni Morales
Texas’ War On Social Media: Censorship Or False Flag, Leni Morales
DePaul Journal of Art, Technology & Intellectual Property Law
No abstract provided.
The Hollywood Circuit’S Protection Of The Batmobile Provides An Uncertain Future For First Amendment Protections, Nicole Geiser
The Hollywood Circuit’S Protection Of The Batmobile Provides An Uncertain Future For First Amendment Protections, Nicole Geiser
The Journal of Business, Entrepreneurship & the Law
This Comment analyzes the potentially damaging impact the Ninth Circuit’s decision in Towle could have on modern copyright law and the First Amendment. Part I will provide an overview of modern copyright law, challenges faced when deciding the level of protection that should be afforded to characters, and the important difference between literary characters and visually depicted characters and how it can affect the degree of protection allowed. Part II will discuss the history of character copyright, specifically, the different tests adopted by circuit courts and the impact each one has on the protection of characters. Part III will analyze …
Justice Breyer And Intellectual Property Law
Justice Breyer And Intellectual Property Law
Marquette Intellectual Property & Innovation Law Review
None
Four Privacy Stories And Two Hard Cases, Jessica Silbey
Four Privacy Stories And Two Hard Cases, Jessica Silbey
Faculty Scholarship
In the context of reviewing Scott Skinner's book "Privacy at the Margins" (Cambridge University Press, 2021), this article discusses four "privacy stories" (justifications for and explanation of the application of privacy law) that need substantiation and reinterpretation for the 21st century and for what I call "fourth generation" privacy law and scholarship. The article then considers these stories (and Skinner's analysis of them) in light of two "hard" cases, one he discusses in his book and one recently decided by the Massachusetts Supreme Judicial Court, both concerning privacy in taking and dissemination of photographs.
Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad
Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad
Dickinson Law Review (2017-Present)
One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …
Protecting The First Amendment Rights Of Video Games From Lanham Act And Right Of Publicity Claims, Yen-Shyang Tseng
Protecting The First Amendment Rights Of Video Games From Lanham Act And Right Of Publicity Claims, Yen-Shyang Tseng
Pepperdine Law Review
In 2013 and 2015, the Ninth Circuit decided two nearly identical cases in which professional football players alleged a video game publisher used their likenesses without authorization in a game that simulates real football games. One plaintiff brought a false endorsement claim under the Lanham Act, while others brought state law right of publicity claims. That made all the difference. The Ninth Circuit found the First Amendment protected the game against the false endorsement claim, but not against the right of publicity claims. These contradictory results stem from court’s application of the Rogers v. Grimaldi test to Lanham Act claims …
From Lex Informatica To The Control Revolution, Julie E. Cohen
From Lex Informatica To The Control Revolution, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the …
The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley
The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley
Loyola of Los Angeles Law Review
Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …
Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen
Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen
Georgetown Law Faculty Publications and Other Works
According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored …
Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly
Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly
Faculty Scholarship
Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.
Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr
Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr
Marquette Intellectual Property Law Review
No abstract provided.
Copyright And Human Rights In The Ballroom: A Minuet Between The United States And The Eu, Maria Lillà Montagnani, Alina Trapova
Copyright And Human Rights In The Ballroom: A Minuet Between The United States And The Eu, Maria Lillà Montagnani, Alina Trapova
Mitchell Hamline Law Review
No abstract provided.
Internet Architecture And Disability, Blake E. Reid
Internet Architecture And Disability, Blake E. Reid
Publications
The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …
Courts, Trademarks, And The Icann Gold Rush: No Free Speech In Top Level Domains, Jerome O'Callaghan, Paula O'Callaghan
Courts, Trademarks, And The Icann Gold Rush: No Free Speech In Top Level Domains, Jerome O'Callaghan, Paula O'Callaghan
Loyola of Los Angeles Entertainment Law Review
In recent years, the Internet Corporation for Assigned Names and Numbers (ICANN) expanded top-level domains, such as .com, .net, and .org, to include a very wide variety of new terms. One of the new options is .sucks. This Article examines the potential for conflict when trademark holders seek to protect their mark in the context of the .sucks domain. There is a temptation to see this issue in terms of consumers’ free speech rights pitted against corporate interests. However, the recent privatization of ICANN does not bode well for promoting consumers’ First Amendment rights in domain name battles.
Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora
Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora
The Journal of Business, Entrepreneurship & the Law
This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses …
Scotus's Second Take On Trademark Registration As Speech, Christine Farley
Scotus's Second Take On Trademark Registration As Speech, Christine Farley
Editorial Contributions
Professor Farley offers her take on Iancu v. BrunettiURL: https://patentlyo.com/patent/2019/06/scotuss-trademark-registration.html
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
All Faculty Scholarship
The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.
The lecture (as adapted for this Article) explores …
Copyright Policy As Catalyst And Barrier To Innovation And Free Expression, Amanda Reid
Copyright Policy As Catalyst And Barrier To Innovation And Free Expression, Amanda Reid
Catholic University Law Review
At its core, copyright is an innovation policy, a competition policy, and a free expression policy. Copyright seeks to balance incentivizing a public good with providing a private interest. Copyright’s purpose to catalyze creative expression and innovation is canonical; creativity and innovation are synergetic. Copyright is a means of promoting progress; copyright is not an end in itself. Much like freedom of expression and new innovations are not ends in themselves, copyright protection is not for its own sake. Freedom of expression is often heralded as a means of fostering democratic self-governance, truth, and happiness. Innovation is seen as a …
The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart
The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart
Catholic University Journal of Law and Technology
This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …
Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons
Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons
Vanderbilt Journal of Entertainment & Technology Law
This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …
Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert
UF Law Faculty Publications
This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …
Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum
Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum
The University of Cincinnati Intellectual Property and Computer Law Journal
This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …
Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall
Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall
Catholic University Journal of Law and Technology
Videos, known as deepfakes, use readily available software to create a work that shows people saying and doing things they may never have uttered or engaged in. The technology making the videos appear very authentic is advancing at such a rate that people may not be able to detect if the videos are fact or fiction. Given the hasty acceptance of other forms of fake news in society, deepfake videos have the ability to affect the nature of information the public receives about candidates and policies. This study examines the potential use of deepfake videos in the democratic process, analyzes …
Brand Renegades Redux, Jeremy N. Sheff
Brand Renegades Redux, Jeremy N. Sheff
Faculty Publications
In "Brand Renegades," 1 NYU J. Intell. Prop. & Ent. L. 128 (2011), I identified a new frontier in trademark enforcement: consumers who use branded products out of affiliation with some aspects of the image cultivated by the brand owner, but whose conspicuous consumption of the brand generates social meanings that are inconsistent with that image. As far-right political movements have built momentum in the consumer economies of the West, this type of "brand renegade" consumption has taken a much darker turn. Over the past two years, neo-Nazis and white supremacists have conspicuously adopted well-known brands in their bids to …
Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano
Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano
Fordham Intellectual Property, Media and Entertainment Law Journal
Today, protectable speech takes many forms in many spaces. This Note is about the spaces. This Note discusses whether President Donald J. Trump’s personal Twitter account functions as a public forum, and if so, whether blocking constituents from said account amounts to viewpoint discrimination—a First Amendment freedom of speech violation. Part I introduces the core legal devices and doctrines that have developed in freedom of speech jurisprudence relating to issues of public fora. Part II analyzes whether social media generally serves as public fora, whether the President’s personal Twitter account is a public forum, and whether his recent habit of …
Watching Big Brother: A Citizen’S Right To Record Police, Vincent Nguyen
Watching Big Brother: A Citizen’S Right To Record Police, Vincent Nguyen
Fordham Intellectual Property, Media and Entertainment Law Journal
Due to growing technological advances and the ubiquity of mobile phones, it has become increasingly common for citizens to use these devices to photograph and record events. Though largely uncontroversial, when used to record public police activity, some citizens have been arrested and charged under state wiretapping r eavesdropping statutes. Over time, various circuit courts have held that this right to record public police actions is a protected activity. Most recently, however, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court decision, which held that this act of recording is unprotected, thereby exemplifying how circuit courts …
Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood
Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood
Fordham Intellectual Property, Media and Entertainment Law Journal
In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.
The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman
The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman
All Faculty Scholarship
This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …