Law Commons^™

Digital Music Garage Sale: An Analysis Of Capitol Records, Llc V. Redigi Inc. And A Proposal For Legislative Reform In Copyright Enabling A Secondary Market For Digital Music, Nicholas Costanza

UC Law SF Communications and Entertainment Journal

In 2011, ReDigi, Inc., a Massachusetts-based tech company, created the first resale marketplace for lawfully purchased digital music. This "digital resale" platform immediately drew the attention of copyright holders in the music industry. In early 2012, Capitol Records, LLC sued ReDigi, claiming that the service violated Capitol's exclusive rights to reproduction and distribution of their copyrighted words under the Copyright Act of 1976. Ultimately, the United States District Court for the Southern District of New York held in favor of Capitol. This note explains this case and discusses the complex relationships between "secondary digital market" technology and current copyright law. …

Proxy.Gov: A Proposal To Modernize Shareholder Lists And Simplify Shareholder Communications, Kevin Kearney

UC Law SF Communications and Entertainment Journal

The SEC is conducting a comprehensive reevaluation of the U.S. corporate proxy system. One issue under the SEC's microscope is public companies' inability to communicate directly with shareholders. When stock trading migrated to the depository system, securities intermediaries undertook the book-entry settlement function. As a result, a public company issuer today cannot identify who holds the right to vote its shares without going through intermediary proxy service providers. Public companies thus communicate with shareholders through a proxy system that is indirect, inefficient, and expensive. Commentators, including issuers, believe that recent developments in the corporate governance landscape require a system that …

Conflict In The Network Of Networks: How Internet Service Providers Have Shifted From Partners To Adversaries, Rob Frieden

UC Law SF Communications and Entertainment Journal

This paper will examine new models for the carriage of Internet traffic with an eye toward providing insights on how the interconnection process has changed and what positive and negative consequences have resulted. Internet carrier interconnection used to constitute a cooperative undertaking, but now it increasingly requires difficult and protracted negotiations between ventures that consider themselves adversaries in a winner take all transaction. The paper concludes that new commercial arrangements, such as paid peering, can achieve mutually beneficial outcomes. However, the paper also identifies instances where migration from traditional interconnection arrangements has the potential to reduce overall utility of the …

“Fair Compensation” In The Digital Age: Realigning The Audio Home Recording Act, Monica Zhang

UC Law SF Communications and Entertainment Journal

This note examines how the Audio Home Recording Act of 1992 falls short of providing “fair compensation” due to copyright owners in the digital age under the Copyright Act. The note focuses on the narrow language of the statute and the impact on royalties generated, as well as the shifts in global music consumption that reveal a pressing need for expansion. By examining how Canada and Finland have enacted similar statutes with forward-looking royalty structures, this note suggests better alternatives to our current model by expanding the royalty-bearing pool to truly provide “fair compensation” to recording artists and record labels …

Hands Up, Don't Shoot: Policing, Fatal Force, And Equal Protection In The Age Of Colorblindness, Zach Newman

UC Law Constitutional Quarterly

This note discusses race, policing, the use of fatal force, and the Black Lives Matter movement, contextualizing it within the "prison industrial complex," the "New Jim Crow," the hegemony of colorblindness and postracialism, and jurisprudential limitations placed on Equal Protection. It argues that narrow legal reforms of policing, like body cameras or increased training, cannot be conceived of as complete solutions. Although these reforms are important, they must be connected to critiques of and actions against overarching structures of stratification, subordination, and social control in advanced capitalism. Contemporary policing is one manifestation of a deeply flawed and racialized criminal punishment …

Fair Use In The Classroom; A Conundrum For Digital User-Generated Content In The “Remix” Culture, Samantha Von Hoene

UC Law Science and Technology Journal

The age of digital media has broadened the ability of consumers to access, create, manipulate and reproduce content with great ease and speed. With these advances in technology comes the growing trend of user-generated content, which involves a wide variety of media that is created by consumers and end-users. While this user-generated content has allowed creativity to flourish, and has in part led to the creation of the “remix culture,” many copyright concerns have arisen from this growing trend.

Neutering Net Neutrality: What Verizon V. F.C.C. Means For The Future Of The Internet, Alexander Hurst

UC Law Science and Technology Journal

Few things are as ingrained in Americans’ daily lives as the Internet. A one-stop source for information, communication, and entertainment, the Internet has, for many, supplanted the old media that came before it such as books, telephones, fax machines, and television. Yet the Internet is an incredibly nebulous thing, a network of various private networks the regulation of which is currently even more amorphous. A recent decision of the D.C. Circuit, which has national effect, has rendered the traditional model of the Internet subject to upheaval. The fundamental principle in question, so-called “net neutrality,” stands for the idea that Internet …

Using Gatt-Trips To Improve Development Opportunities: A Proposal For Central America, Cecily Anne O’Regan, Patrick T. O’Regan

UC Law Science and Technology Journal

Given the geographic and natural resource advantages that countries in the Americas have which will likely shape the business and trade climate in the 21st century, accelerating the development process for developing countries in the region takes on new significance for all involved. This work assesses ways in which Central American countries can use compliance with GATT-TRIPs and TRIPs-plus bilateral agreements to promote their economic development. The first section describes current approaches to IP protection in Costa Rica and El Salvador. The final section goes on to propose regional strategies and legal changes, which are GATT-TRIPs compliant that could potentially …

Cascade Lake, Vincent Vu

UC Law Environmental Journal

No abstract provided.

Getting To Zero: A Roadmap To Energy Transformation In California Under The Clean Air Act, Paul Cort

UC Law Environmental Journal

No abstract provided.

Mcway Falls, Nicholas Whipps

UC Law Environmental Journal

No abstract provided.

The Facts Of The Matter: Creative Approaches To Complicated Facts In Environmental Law, Los Angeles County Flood Control District V. Natural Resources Defense Council, 133 S. Ct 710 (2013), Aaron Schaer

UC Law Environmental Journal

No abstract provided.

Public Trust Or Equal Footing: A Historical Look At Public Use Rights In American Waters, Sean Morrison

UC Law Environmental Journal

No abstract provided.

A Fishery, A Sanctuary, A Sink, And A Disaster: The Often-Hapless Management Of California’S Salton Sea, William M. Mclaren

UC Law Environmental Journal

No abstract provided.

Misconstruing Size Of Economic Impacts As The Determinant Of Penn Central Test Does Not Invoke Average Reciprocity Of Advantage, William W. Wade

UC Law Environmental Journal

No abstract provided.

Climate Change Law In California And Massachusetts: Lessons For State Policy Makers, Riti Chandiok

UC Law Environmental Journal

No abstract provided.

The Health Insurance Mandate - A Tax Or A Taking, Karl Manheim

UC Law Constitutional Quarterly

The Patient Protection and Affordable Care Act requires Americans to have or buy health insurance. The Act, particularly the "individual mandate," has generated enormous political controversy and constitutional litigation. The House of Representatives has voted 54 times to repeal the law, and President Obama's implementation has spurred calls for his impeachment.

The Act has already reached the Supreme Court twice. In National Federation of Independent Business v. Sebelius ("NFIB"), the Supreme Court held the mandate could not be sustained as an exercise of Congress' power over interstate commerce, but was valid under the Tax and Spend Clause. Other constitutional challenges …

Eugenics Then And Now: Constitutional Limits On The Use Of Reproductive Screening Technologies, Hannah Lou

UC Law Constitutional Quarterly

Advancements in assisted reproductive technologies ("ARTs") have allowed prospective parents to exercise unprecedented control over the reproductive process and their progeny. Among ARTs, prenatal screening and diagnosis is a particularly powerful category of tools due to its mass accessibility, non-invasiveness, and availability before conception and during pregnancy. However, increased adoption of these tools also forces parents and societies to confront a broad range of ethical, legal, and personal questions about how genetic information should be used to screen for or preselect the traits of prospective offspring.

This Note advocates that based on historical experience, previous court decisions, and modern evolution …

The Unconstitutionality Of The Current Housing Arrangements For Intersex Prisoners, Nicole Antonopoulos

UC Law Constitutional Quarterly

The perpetuation of a binary society with regards to sex creates problems for intersex persons who do not easily categorize as male or female. The current housing and treatment of intersex prisoners are based partly on this classic male-female dichotomy. This Note sheds light on sex as a spectrum, and examines the potential constitutional violations that arise from the current prison housing arrangements and treatment. It also analyzes the experiences of intersex prisoner Miki Ann DiMarco and her constitutional challenges as brought forward in DiMarco v. Wyoming Department of Corrections. Additionally, this Note suggests that intersex discrimination is a form …

Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality, Snehal Desai

UC Law Constitutional Quarterly

Revenge pornography is an increasingly prevalent form of cyberharassment, in which embarrassing and sexually explicit pictures and videos are posted on the internet without the consent of the depicted individual. Due to the First Amendment's protection of speech and expression, victims have had little legal recourse against their cyber-harassers. Many states have started to pass laws prohibiting revenge pornography, which have fortunately created some protections for victims. However, the recent passage of such statutes has also led to the debate about their constitutionality.

This Note first examines revenge pornography from various First Amendment perspectives, concluding that courts should carve out …

Beyond Coordination: Defining Indirect Campaign Contributions For The Super Pac Era, Brent Ferguson

UC Law Constitutional Quarterly

This Article addresses a legal issue that has rapidly gained relevance since Citizens United and the proliferation of Super PACs: the constitutionally acceptable boundaries of treating campaign expenditures as contributions, and therefore allowing them to be limited in amount. The government may not limit Super PACs' spending because such groups may not legally coordinate with candidates, but Super PACs and other organizations have blurred the line of independence by spending millions on single candidates and employing people with close ties to the supported candidate. Current rules prevent some of this collaboration, but still allow much of it to occur.

Because …

The Politics Of Statutory Interpretation: The Hayekian Foundations Of Justice Antonin Scalia's Jurisprudence, Gautam Bhatia

UC Law Constitutional Quarterly

During his time on the Court, Justice Scalia has developed a uniquely personal approach to statutory interpretation, constituted by diverse aspects such as textualism, a rejection of legislative history, original public meaning, the use of dictionaries, a rejection of precedent, the rule of lenity, and so on. Over the years, individual aspects of his approach have been subjected to critical scrutiny. There has not yet, however, been an attempt to synthesize the various strands of his jurisprudence into one coherent framework, and to examine the normative foundations that underlie it. The need is particularly acute, because in 2012, Justice Scalia, …

Airbnb And The Housing Segment Of The Modern Sharing Economy: Are Short-Term Rental Restrictions An Unconstitutional Taking, Jamila Jefferson-Jones

UC Law Constitutional Quarterly

The last few years have seen a reinvention of the economy through the growth of the "sharing economy" or the "new economy." The sharing economy has redefined consumption in the housing context in a manner that implicates the exclusivity of the use and enjoyment of real property. However, there is a brewing conflict between this genesis and the realities of economic regulation. Recently, controversy erupted in New York after New York Attorney General Eric Schneiderman subpoenaed Airbnb's records requesting data on its hosts for the previous three years. Schneiderman contended that Airbnb hosts in New York City were violating a …

The New Data Marketplace: Protecting Personal Data, Electronic Communications, And Individual Privacy In The Age Of Mass Surveillance Through A Return To A Property-Based Approach To The Fourth Amendment, Megan Blass

UC Law Constitutional Quarterly

The Supreme Court's Fourth Amendment jurisprudence is often critiqued, particularly the Court's refusal to acknowledge the distinction between secrecy, limited disclosure, and public disclosure. The Snowden leaks only fueled the fervor. With the revelations about the National Security Agency's PRISM, XKeyscore, and similar mass surveillance programs came renewed concern and discussion about the legal and regulatory framework protecting Americans' privacy. Privacy is en vogue.

The critiques of Katz v. United States and celebrations of Justice Sotomayor's concurrence in United States v. Jones are well-worn. As an alternative, this Note proposes vesting property rights in personal data and electronic communications to …

Protecting Immigrants From Prolonged Pre-Removal Detention: When It Depends Is No Longer Reasonable, Michelle Firmacion

UC Law Constitutional Quarterly

Most undocumented immigrants who are detained pending resolution of their removal proceedings are neither criminals nor actually deportable. Many are women and children with legitimate claims for remaining in the United Sates. Yet thousands of undocumented immigrants are detained for more than six months, longer than some convicted criminals. Because of this, one might ask: how "civil" is civil immigration detention?

In 2013, the United States Court of Appeals for the Ninth Circuit imposed a bright-line rule in Rodriguez v. Robbins, establishing an undocumented immigrant's right to a bond hearing when his detention exceeds six months. This rule ensures that …

Why California's Second-Degree Felony-Murder Rule Is Now Void For Vagueness, Evan Tsen Lee

UC Law Constitutional Quarterly

In late June 2015, the U.S. Supreme Court struck down part of a federal three-strikes statute as unconstitutionally vague. Although that would seem to have nothing to do with the felony-murder rule, since the two rules would never come up in the same case, in fact the Court's rationale for finding the federal statute vague applies to California's unique seconddegree felony-murder rule all the way down the line. Like other states, California insists that the predicate felony in felony-murder be "dangerous to human life." Unlike any other state, however, California decides which felonies are dangerous not by looking at the …

Emtala: Medicare's Unconstitutional Condition On Hospitals, E. H. Morreim

UC Law Constitutional Quarterly

The Emergency Medical Treatment and Active Labor Act ("EMTALA") requires every Medicare-contracting hospital with an emergency department ("ED") to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare's initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA's constitutionality. Although this longstanding statute may not be reconfigured any time soon, it is important to consider the constitutional legitimacy of legislation carrying such an enormous and growing impact.

This Article proposes that EMTALA violates the Fifth Amendment's Takings …

Using The Endangered Species Act To Preempt Constitutional Challenges To Gmo Regulation, Caitlin Kelly-Garrick

UC Law Constitutional Quarterly

Scientific studies show that genetically modified organisms ("GMOs") have an adverse impact on biodiversity, especially pollinating species. Enforcement of the laws regulating the introduction of GMOs into the environment has not kept pace with this finding. Under existing judicial interpretation of the GMO regulatory framework, a loophole exists by which no single agency is responsible for assessing the cumulative environmental impacts of GMOs on biodiversity. Section 7 of the Endangered Species Act ("ESA") requires the government to consult with the Fish and Wildlife Service ("FWS") when an action might endanger the continued survival of a species. This paper argues that …

A Visit With Guanyin, Carol Collins

UC Law SF Journal on Gender and Justice

No abstract provided.

Combatting Gender Privilege And Recognizing A Woman’S Right To Privacy In Public Spaces: Arguments To Criminalize Catcalling And Creepshots, Marc Tran

UC Law SF Journal on Gender and Justice

This comment explores two permutations of entitlement to women’s attention and bodies in public: street harassment (“catcalling”) and upskirt and down-blouse photography (collectively, “creepshots”). Part I is devoted to discussing street harassment—its harms (on an individual and societal scale), legal solutions, and the limits of the law. Part II is devoted to creepshots—their harms, the evolution of the perpetrator, and legal solutions. Both catcalling and creepshots disproportionately impact women. As such, an acknowledgement of gender privilege is a necessary prerequisite to exploring the harms and possible remedies of street harassment and up-skirt photography. There have been various attempts by men …