A New Theory of Fair Use, Reconceptualized and Updated for Today's Information Society
Many modern-day critical modes of expression that have emerged from the proliferation of digital technologies do not fall within the traditional bounds of the fair use standard. Yet, fair use is one of the most vital legal mechanisms, as it is charged with reconciling the Free Speech Clause with the Copyright Clause. Today, the way courts apply fair use is increasingly unsuited to appraise the cultural value of internet-era, often heterodox, collage and appropriation forms of art. The uncertainty arising from fair-use jurisprudence severely chills critical expression. In this paper, I offer recommendations for reforming fair use to meet the communication needs of today's information society. My hope is that my doctrinal and procedural proposal for reform will offer a way to realign fair use with contemporary expressive activity as well as protect the high-order set of conditions that nurture the hallmarks of cultural democracy—i.e., individual self-determination and equal access to participation in cultural meaning-making through critical expression. To start, Part I provides background on the relationship between First Amendment and copyright law, as well as why fair use in particular is poised for reform. Part II then explains how digital technologies have fundamentally changed the nature of expression in terms of free speech and copyright. Part III discusses at length the theoretical framework guiding the bulk of this essay’s analysis. Part IV delves into the legal landscape of fair use, that is, it provides an analysis of how it is applied in the judicial system. Drawing from that, Part IV identifies issues stemming from the application of the fair use standard that, in reality, counters its underlying goal. Based on the analysis in the foregoing sections, Part V lays out a two-part proposal for fair-use reform. Lastly, Part VI provides justifications supporting each part of the proposal.
Reconfiguring CDA § 230-Immunity: Where Should Courts Draw The Line Between An "Interactive Computer Service" Provider And "Information Content Provider"? (Fall 2016)
In what is perhaps the most vital instrument for safeguarding free speech online, Section 230 of the Communications Decency Act protects websites from liability for illegal content third parties create or post online. Specifically, it provides immunity from legal liability for “interactive computer service” providers that merely distribute and make available information created by third parties. In stark contrast to “interactive computer service” providers (ICSs), “information content provider[s]” (ICPs) are considered as being outside the scope of Section 230-immunity. These classifications naturally hold a great deal of import for any online service provider, as the question of whether immunity applies to a given case largely turns on them. Unfortunately, ICS and ICP are both defined in vague and somewhat overlapping terms, making it difficult for courts to categorize service providers in a consistent, coherent manner. Today’s rapid growth of technology further exacerbates the problem: The development of new, unexpected, and more sophisticated Internet technologies and interactivity has contributed to the blurring of publisher and content provider functions. As such, the hazy distinction between an “interactive computer service” provider and “information content provider” has become a wellspring for judicial confusion over applying Section 230 to such technologies. This paper seeks to answer the question of where courts should place the fulcrum between ICSs and ICPs, such that congressional intent and policy objectives regarding Section 230-immunity are upheld. In doing so, it proposes and justifies a new judicial standard for assessing Section 230-immunity, one that equitably balances the two competing interests at play: encouraging innovation of Internet technologies while safeguarding certain legitimate civil liberties (i.e., victims' access to means of effective recourse when circumstances warrant treating a defendant ISP as a traditional publisher).
The Pervasive Presence Of IoT Products In The U.S. Home, The Citadel of Private Sovereignty: What An IoT-Dominated House Means For Consumer Protection (Spring 2016)
Where does consumer privacy stand in the face of IoT household products, whose embedded data is beholden to the third party doctrine? The "Internet of Things" (IoT) describes a class of objects that are embedded with identifiers or recognizable by sensors that continually collect digital information and communicate it to other like devices. IoT is based on the premise that, as devices become increasingly interconnected and interactive with each other, the more the Internet will comprise of "things" rather than just people and computers. The grand vision of IoT is a community entrenched with networked intelligent objects to a high degree of detail, where every car, refrigerator, and tea kettle will be able to be distinguished and tracked by its embedded RFID chip and inter-communicate constantly and seamlessly in real time to create a much more efficient world. Crucially, however, IoT also has the potential to erode many of the protections traditionally afforded by privacy law--especially so, as those technologies gradually evolve from functioning as opt-in features to those that are standard, included by default. Privacy law in the U.S. is proving to be increasingly ill-suited to capture the contemporary privacy concerns and harms arising out of emerging tech. The pervasive use of “smart” products in the home and the wealth of mineable data embedded within them make the IoT industry especially ripe for violations of privacy. This paper assesses how IoT-ubiquity will disrupt judicial thought on privacy law and erode principles of consumer privacy.
Why CFIUS'S Review Process Should Include A Mandatory Filing Requirement, Given Today's Foreign Investment Climate In Emerging High Tech In The U.S. (Spring 2016)
The Committee on Foreign Investment in the United States (CFIUS) is charged with reviewing and investigating the national security implications of any foreign investment transaction and blocking any such transaction that could involve critical infrastructure or result in the control of any U.S. business or asset by a foreign person. Through its review process, CFIUS tries to balance maintaining economic competitiveness with protecting U.S. national security interests. "National security," however, is a product of context that is constantly evolving in response to real-world pressures and changes. (The flexibility of the term affords CFIUS wide discretion.) Moreover, high-tech is advancing at a rapid pace and technological capabilities are accordingly viewed as prerequisites for a country's economic and national security. In its current form, however, CFIUS's review process is not optimized to analyze potential national security concerns with respect to foreign direct investment in high-tech. At present, CFIUS's review process operates on a voluntary submission basis. Yet in light of the wide, definitional scope of the some of Foreign Investment and National Security Act's key terms that determine whether a particular transaction qualifies for review, submission by investors is effectively mandatory. This paper argues that it is therefore imperative that the review process be structured in such a way that it can incorporate novel technological concerns (e.g., cybersecurity concerns stemming from the "Internet of Things") into its understanding of U.S. "national security" needs. In doing so, the paper provides and justifies a solution for reform in CFIUS's review process, that CFIUS should require all proposed foreign direct investments to be submitted for initial review.
Formal And Substantive Equality in Education For The Scheduled Caste Under The Indian Constitution: Analyzing The Gap Between Text And Enforcement (Fall 2015)
Is the right to education--gilded as a fundamental right--an effective tool of justice? The overall aim of this paper is to compare and assess the means by which various judiciaries ensure and enforce positive social rights for social groups that have long been marginalized by mainstream society. In India, the lingering vestiges of the Indian Caste system and British colonialism have heavily informed the country's contemporary constitutional framework and socialist constitutional jurisprudence. Naturally, the idea of "equality" is a central theme that is threaded throughout the Indian Constitution. Indeed, it houses a number of positive, fundamental rights that are ideal on paper, but problematic in practice, as they are nearly impossible to actualize at the ground level. One key question that emerges from time to time in this paper: To what extent has a positive fundamental right to education been able to meaningfully uplift the social, civic and economic participation of Scheduled Caste members of society? In attempting to answer that question, this paper analyzes the interesting dynamic between formal and substantive forms of equality--concepts that have been weaved in and out of Supreme Court consciousness from 1950 up until today. Going further, this paper assesses the practical and legal costs and benefits involved in implementing Article 21-A, the fundamental right to education in the Indian Constitution and the object of analysis in this paper. Article 21-A is then compared to its American counterparts, specifically those that are provided in the Texas and New York State constitutions, i.e., how effective those fundamental rights have been in enabling equal access to education for blacks and Hispanics. Lastly, this paper also looks at how a provision similar in kind to Article 21-A would fare in wealthier and more homogenous countries.
The Legal Rift Between Copyright Doctrine And "Copynorms" With Respect To The Music Industry: A Policy Analysis (Fall 2015)
In an age of abundant creative expression and peer-to-peer filesharing as facilitated by the Internet, copyright enforcement has largely failed to keep up. There is a growing rift between “copynorms” (i.e., society norms as they relate to use of copyrighted materials) and copyright doctrine. Naturally, copyright legislation and enforcement have not adequately addressed these prevailing copynorms, some of which severely undermine copyright. This paper argues the following: Copyright enforcement and legislation embrace exclusivity at the expense of access, effectively signaling a departure from copyright’s constitutional origins, goals, and limitations; Copyright law does not take into account the diversity of uses and motivations that exist among music-listeners and musicians whom are influenced by copynorms; Copyright legislation, court decisions and the music industry in general equate incentives with rewards, skewing the market power towards copyright owners. Taken together, one fact is resoundingly clear: the overall copyright regime largely out of pace with today’s norms and technologies, and current legislative instruments in force and enforcement methods are counterproductive solutions. The Creative Commons licensing model, however, has potential to recalibrate copyright with its constitutional mandate. In addition to the above, this piece assesses the extent to which Creative Commons can bridge the gap between law and actual compliance, such that copyright regime actually does promote the "Progress of Science and useful Arts" in the modern era.