Digital Commons Network^™

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health care …

Keeping Up With New Legal Titles, Tina M. Brooks

Law Faculty Scholarly Articles

In this book review, Tina M. Brooks discusses Voters' Verdicts: Citizens, Campaigns, and Institutions in State Supreme Court Elections by Chris W. Bonneau and Damon M. Cann.

A Revolution In Favor Of Television: Wcvb-Tv And Robert Gardner's Screening Room, Brian L. Frye

Law Faculty Scholarly Articles

In the 1970’s, WCVB-TV in Boston produced many innovative and unusual programs. Among them was Robert Gardner’s Screening Room, one of the most delightfully unlikely programs ever aired on a network television station. Essentially, Screening Room was a talk show about independent filmmaking. Once a week, Gardner invited an independent filmmaker to show and discuss a selection of films or film clips. But Screening Room wasn’t just a showcase for independent film. It also introduced a network television audience to intellectual film critics like Rudolf Arnheim and Stanley Cavell, in a uniquely accessible and entertaining way. In any case, …

Plagiarism Is Not A Crime, Brian L. Frye

Law Faculty Scholarly Articles

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that …

Utilitarianism And Wealth Transfer Taxation, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

This article is the third in a series examining the continued relevance and philosophical legitimacy of the United States wealth transfer tax system from within a particular philosophical perspective. The article examines the utilitarianism of John Stuart Mill and his philosophical progeny and distinguishes the philosophical approach of utilitarianism from contemporary welfare economics, primarily on the basis of the concept of "utility" in each approach. After explicating the utilitarian criteria for ethical action, the article goes on to think through what Mill's utilitarianism says about the taxation of wealth and wealth transfers, the United States federal wealth transfer tax system …

Instrumental And Transformative Medical Technology, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article considers how medical technologies impact universality in health care. The universality principle, as embodied in the Patient Protection and Affordable Care Act (ACA), eliminated widespread discriminatory practices and provided financial assistance to those otherwise unable to become insured—a democratizing federal act that was intended to stabilize health care policy nationwide. This Article posits that medical technology, as with all of medicine, can be universalizing or exclusionary and that this status roughly correlates to its being “instrumental technology” or “transformative technology.” Instrumental technology acts as a tool of medicine and often serves an existing aspect of health care; in …

The Ethics Of Visual Legal Rhetoric, Michael D. Murray

Law Faculty Scholarly Articles

This article discusses both visual rhetoric and visual narrativity. Visual rhetoric is the use of graphics, photographs, and other depictions for communication, for construction of knowledge and understanding, and ultimately for persuasion in the truth and rightness of the communication. Narrativity, which is sometimes described as narrative reasoning or storytelling," is the modern movement to focus our legal writing on the tools that best communicate our clients' stories-their situation, conditions, and circumstances-along with the "story" of the development, growth, and meaning of the law itself that provides the context for the clients' legal situation. Communicating the story of the development …

Visual Rhetoric: Topics Of Invention And Arrangement And Tropes Of Style, Michael D. Murray

Law Faculty Scholarly Articles

This Article evaluates visual legal rhetoric in order to demonstrate the potential of visual-graphical devices and narrative elements for use in legal discourse. The subject of my demonstration of graphical rhetorical devices is the famous work of modern rhetoric, Reverend Dr. Martin Luther King, Jr.'s "Letter from Birmingham Jail." I will perform a rhetorical analysis of the verbal topics of invention and tropes of style in the text of the letter, and simultaneously demonstrate the use of images and visual elements in an "illustrated" form of the letter.

Part II of this Article provides an introduction and background information regarding …

Notes From The Underground (Sometimes Aboveground, Too), Richard H. Underwood

Law Faculty Scholarly Articles

When I was invited by Savannah Law Review to be a panelist at The Walking Dead Colloquium at Savannah Law School, I thought . . . that’s no crazier than the Bob Dylan and the Law Symposium. I was compelled to accept.