Law Commons^™

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

More Than A Feeling: Emotion And The First Amendment, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law.

Part I of this Symposium contribution examines the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. Only false factual statements can defame, not mere derogatory opinions. …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

How Many Wrongs Make A Copyright?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full …

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

A Tale Of Two Rights, Robin West

Georgetown Law Faculty Publications and Other Works

In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades …

All Of This Has Happened Before And All Of This Will Happen Again: Innovation In Copyright Licensing, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses …