Science and Technology Law Commons^™

Panel 1: Copyright Law, Michael W. Carroll, Peter Karol, Christopher Sprigman, Jacob Noti-Victor

Cardozo Arts & Entertainment Law Journal

The Warhol v. Goldsmith case has reshaped the interpretation of fair use in copyright law, emphasizing market competition and the commercial purpose of the use. The Supreme Court's decision focused on the commercial licensing of Warhol's work, highlighting the importance of assessing whether the use competes with the original work's market. This shift could influence future cases, particularly in technology and art, by potentially altering how transformative use and market competition are evaluated.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

The Law Of The New Musical Author, Eyal Brook

Cardozo Arts & Entertainment Law Journal

The process of musical creation has been transformed materially in the Digital Age due to technological developments, both regarding the technologies for making music and regarding novel stylistic developments. New musical practices, based on novel technology, afford entirely new modes of creative authorship. The effects of such shifts have redefined the nature of music and the role of musicians in fundamental ways. This article opens a new debate regarding the identity ofthe new musical author and the changes to the musical creative process.

As such changes have impacted the musical creative process, there are necessary changes required to adapt the …

Bias Notification Duty, Eldar Haber, Shai Stern

Cardozo Arts & Entertainment Law Journal

Algorithms are often tainted with bias that could negatively affect subjects' lives in many aspects. But while policymakers and scholars tend to focus their attention on methods to fix the bias within the algorithm or its output, they neglect a crucial piece of the puzzle: when companies discover bias and fix it in the algorithmic output, they do so behind the scenes. While such a move might debias the output, society remains in the dark about its existence or how it might have affected the outcome. Society thus misses a unique opportunity to study social and cognitive biases that shape …

The Structure Of Secondary Copyright Liability, Felix T. Wu

Articles

Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.

The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends …

Privacy Shield 2.0—A New Trans-Atlantic Data Privacy Framework Between The European Union And The United States, Sara Gerke, Delaram Rezaeikhonakdar

Cardozo Law Review

This Article is the first to thoroughly examine the new adequacy decision for the Trans-Atlantic Data Privacy Framework (also known as “Privacy Shield 2.0”), including the relevant events and milestones ultimately leading to its adoption. The European Commission adopted the new Privacy Shield on July 10, 2023, to restore transatlantic data flows and commercial exchanges between the European Union and the United States. This Article first explores the holdings of the Court of Justice of the European Union in the groundbreaking cases Schrems I and Schrems II and elaborates on the reasons for the invalidation of the Safe Harbor Decision …

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Cardozo Law Review

On August 5, 2020, five members of a family were killed when their house was set ablaze. Kevin Bui admitted to investigators that he and two other teens burned the house down after his iPhone had been stolen. He used the Find My application and located his phone at the Green Valley Ranch home. It was not until the next day while reading the news about the arson that he realized he had targeted the wrong residence.

Juvenile Genetic Privacy In New York: Dna Collection And Maintenance Post-Francis O., Cassidy Moon

Cardozo Journal of Equal Rights & Social Justice

The note argues that the compulsory collection and indefinite maintenance of juvenile forensic DNA profiles violate the Fourth Amendment's protection against unreasonable searches and seizures. It asserts that such practices are particularly problematic for minors due to their heightened privacy interests, the low recidivism rates among juveniles, and the contradiction with the juvenile justice system's focus on rehabilitation and confidentiality. The note advocates for legislative reforms, such as New York Senate Bills 998 and 3104, to address these issues and protect juveniles' privacy rights.

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

Growth Beyond Its Limits - How Much Growth Is Too Much For The Purpose Of The Local Government Antitrust Act Of 1984?, Katherine Stern

Cardozo Law Review

No abstract provided.

The Meta Oversight Board's Human Rights Future, Laurence R. Helfer, Molly K. Land

Cardozo Law Review

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board's ability to hold Meta accountable or to protect the company's users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its …

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Articles

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

The Art World Of Digital Assets: How Non-Fungible Tokens Create A Loophole In Anti-Money Laundering Regulations, Sofia Aizenman

Cardozo Law Review

No abstract provided.

Digital Purgatory And The Rights Of The Dead: Protecting Against Digital Disinterment In The Age Of Artificial Intelligence, Greyson Cohen

Cardozo Law Review de•novo

This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media.

Part I will explain how synthetic media may contribute to an increase in the harms associated with rights of publicity violations, particularly after death. Part II will begin by outlining the legal landscape of …

Applying Family Mediation To The Creation Of Psychiatric Advance Directives, Olivia Kalsner Kershen

Cardozo Journal of Conflict Resolution

No abstract provided.

The Power Of Influence: Standardizing The Influencer Marketing Industry Through Alternative Dispute Resolution, Michele Lehat

Cardozo Journal of Conflict Resolution

No abstract provided.

Negotiation Theories Engage Hybrid Warfare, Nancy A. Welsh, Sharon Press, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

When Calvin Chrustie and Chris Honeyman first approached the authors of this Article regarding the potential application of negotiation scholars' expertise to the problem of hybrid warfare, our first reaction was confusion. First, what exactly was hybrid warfare? Second, since "war" was in its name, what did our field have to say that could even potentially be useful? This Article, in some sense, is designed to begin to respond to those questions and, hopefully, to encourage other scholars in our field to weigh in with their contributions and criticisms. This Article represents only a start.

Improving New York City's Covid-19 Vaccine Mandate For Public Sector Workers: A Collaborative Framework For Labor-Management Relations In High Impact Circumstances, Chelsea Hill

Cardozo Journal of Conflict Resolution

No abstract provided.

A Theory Of Interests In The Context Of Hybrid Warfare: It's Complex, Cynthia Alkon, Sanda Kaufman

Cardozo Journal of Conflict Resolution

In the 2020 British TV series The Undeclared War, the Russians launch a series of attacks against the United Kingdom that destabilize key sectors in the UK and (spoiler alert) almost end in a full-scale conventional war. In this fictionalized account, the UK only considers fighting back against cyber warfare with cyber warfare. There is no negotiation. Despite knowing who is responsible for these attacks (the Russian government), negotiation is never even considered.

Opening The Virtual Window: How On-Line Processes Could Increase Access To Justice In The Criminal Legal System, Cynthia Alkon, Amy Schmitz

Cardozo Journal of Conflict Resolution

No abstract provided.

Introductory Remarks, Ethan Bordman, Ira S. Dizengoff, Sophie Dizengoff

Cardozo Arts & Entertainment Law Journal

The article discusses the legal implications and challenges surrounding college athletes' rights to profit from their name, image, and likeness (NIL), following the NCAA's 2021 decision to lift its ban on athletes cashing in on their fame. The symposium explores the evolving legal landscape, including regulatory frameworks, equity issues, and the role of collectives, highlighting the need for clearer guidelines to address the complexities arising from this change.

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Putting Trust In Technology: A Pandemic's Effect On Remote Estate Planning, Amy Weiss

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated the adoption of remote witnessing and notarization in trusts and estates, offering convenience but introducing risks like fraud and privacy concerns. The article advocates for a balanced approach, suggesting uniform national standards to mitigate these risks while maintaining the benefits of remote processes.

Combating False Election Information In A Section 230 Protected World: To Moderate Or Not To Moderate, Caitlin Muraca

Cardozo Arts & Entertainment Law Journal

The note examines the challenges of combating false election information on social media platforms, focusing on the role of Section 230 of the Communications Decency Act. It argues that while Section 230 is crucial for protecting online speech, its current form is inadequate in addressing the spread of misinformation in the modern digital landscape. The note evaluates various proposals for reform, including the repeal or modification of Section 230, and suggests a balanced approach that maintains its protections while incentivizing improved content moderation to combat false election information.

Accelerating Toward The Inevitable: How Covid-19 Helped Alter Traditional Models Of Talent Compensation In The Film Industry, Raven Berzal

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated a significant shift in the film industry’s talent compensation models, driven by the rise of streaming platforms and the decline of traditional theatrical releases. This transformation has moved compensation structures from backend profit-sharing to upfront payments, raising legal and contractual challenges. The Johansson v. Disney case exemplifies these disputes, highlighting the need for clearer definitions of success and compensation in the streaming era. The industry is likely to adopt hybrid models, blending upfront fees with alternative compensation methods, as streaming continues to reshape how talent is paid.

Randomness, Ai Art, And Copyright, Richard H. Chused

Cardozo Arts & Entertainment Law Journal

The article argues that art created with the assistance of AI tools should generally be eligible for copyright protection. It posits that human agency is present in the creation of AI-generated art, as traditional artistic works also incorporate randomness and unpredictability. By examining works by artists like Alexander Calder, Robert Rauschenberg, and John Cage, the analysis demonstrates that randomness and unpredictability have long been protected under copyright law, suggesting that AI-generated art should receive similar treatment.

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

Mute Eloquence: A Gallery Of Contracting Emojis, Courtney Leon

Cardozo Arts & Entertainment Law Journal

The increasing use of emojis in electronic communications, exacerbated by the COVID-19 pandemic, has introduced complexity into contract law due to the lack of standardized interpretation. Courts are encountering disputes over emoji meanings, highlighting the need for a uniform framework. The proposed Emoji Codebook aims to address this by categorizing emojis and providing consistent interpretations, aligning with existing laws like the UCC and E-SIGN Act to facilitate clearer contract formation and mitigate misunderstandings.

Pay No Attention To The Influencer Behind The Curtain, Eliza Logan

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission (FTC) must strengthen its regulation of social media influencers, particularly on platforms like Instagram, due to their significant influence on consumer behavior and the potential for deceptive marketing practices. It emphasizes that influencers should be held accountable similarly to advertising agencies, as their unique ability to build trust and authenticity with followers makes their endorsements more impactful than traditional advertising.

The Advent Of Facial Recognition And The Erosion Of The Rule Of Law In "Moscow Smart City", Antonina Semivolos

Cardozo Journal of Equal Rights & Social Justice

The Russian government's deployment of facial recognition technology in Moscow, exemplified by the Popova case, highlights the erosion of civil liberties due to insufficient legal regulation and the absence of safeguards against surveillance overreach. This deployment underscores the broader decline in democratic principles and civil society's diminished capacity to challenge authoritarian measures.