- Biotechnology (3)
- Constitutional Law (1)
- Copyright (5)
- Cyber Law (3)
- E-Commerce (1)
- Evidence (1)
Online Edition Articles - Volume 9
Recent Development: Just Age Playing Around? How Second Life Aids and Abets Child Pornography
NC JOLT Online Edition, Volume 9, Page 88 (July 2008)
Abstract
In 2002, Ashcroft v. Free Speech Coalition held that the possession, creation, or distribution of “virtual child pornography,” pornography created entirely through computer graphics, was not a punishable offense because regualtion impermissibly infringed on the First Amendment right to free speech and did not harm real children. Only a few years after that decision, however, the Court’s wisdom is being put to the test. A virtual world called Second Life, coupled with motion sensing technology, may provide a means for child pornographers to exploit real children while escaping detection. Second Life also provides a forum where users actively engage in sexual conduct with what appears to be a child. Thus, the Free Speech Coalition Court too narrowly construed “harm to a real child” and failed to render a decision that would keep pace with evolving technology.
Subject Areas:
Recent Development: Jacobsen v. Katzer: Failure of the Artistic License and Repercussions for Open Source
NC JOLT Online Edition, Volume 9, Page 65 (July 2008)
Abstract
The case of Jacobsen v. Katzer is among the earliest to consider the enforceability of open source software licenses, and is therefore of key interest to the open source community. To the disappointment of that community, the United States District Court for the Northern District of California held that an open source project creator could pursue a breach of contract claim but not a copyright infringement claim against a defendant for violating the project’s license terms. However, Jacobsen should not be read to suggest a general judicial approach to all open source licenses, but rather as confirmation of the long-thought weakness of the Artistic License. Jacobsen suggests the relevant legal rules could be improved to create a stronger presumption of copyright enforceability for open source licenses as well as a clear ability to enforce nonstandard open source license terms under contract.
Recent Development: A Bill Without Bite: Why Effective Copyright Monitoring Was Not a Fair Trade-Off for Making College More Affordable
NC JOLT Online Edition, Volume 9, Page 46 (December 2007)
Abstract
Senator Harry Reid proposed S. 1642, an amendment to the Higher Education Act of 1965. This amendment was a diluted version of his original amendment, S.A. 2314, which was proposed as an addition to the College Cost Reduction Act. Each of these amendments proposed procedures that would work to monitor copyright infringement more effectively on college campuses, especially in the areas of peer-to-peer sharing and digital downloading. Under constitutional standards established in South Dakota v. Dole, Senator Reid's original amendment would not have passed constitutional muster, as its purpose was not reasonably related to the stated governmental interest. The purpose of the College Cost Reduction Act is to make college more affordable. Cutting college costs is unrelated to the goal of effectively monitoring copyright infringement, and therefore Congress would seem to be attempting to sneak a control on peer-to-peer sharing through a seemingly innocuous and beneficial statute. The possible constitutional problem, combined with the public outcry in response to S.A. 2314, resulted in the watered-down version now sitting as a potential amendment to the Higher Education Act of 1965. However, as Congress is continually trying to adjust copyright monitoring to advances in technology, the concerns voiced by the public and by Senator Reid have not been completely resolved.
Subject Areas:
Recent Development: Protecting Free Speech in Electioneering Communications: FEC v. Wisconsin Right To Life
NC JOLT Online Edition, Volume 9, Page 30 (December 2007)
Abstract
In June 2007, the United States Supreme Court ruled in FEC. v. Wisconsin Right To Life (“WRTL”), by a 5-4 decision, that section 203 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) was unconstitutional. The Court’s majority, however, could not agree to why BCRA was unconstitutional. The opinion by Chief Justice John Roberts held that there is a distinction between “issue advocacy” and “express advocacy” in the context of federal elections, and it was constitutionally impermissible for them to be lumped together. The concurring opinion by Justice Scalia held section 203 never should have been upheld in McConnell v. FEC, and BCRA is facially unconstitutional. The effect of the WRTL decision is that corporations and unions may now broadcast issue ads on television and radio using their general treasury funds in the days leading up to a federal primary or general election.
Recent Development: Lorraine v. Markel: An Authoritative Opinion Sets the Bar for Admissibility of Electronic Evidence (Except for Computer Animations and Simulations)
NC JOLT Online Edition, Volume 9, Page 16 (December 2007)
Abstract
Lorraine v. Markel may have a profound impact on the world of electronic evidence admissibility for its guidance to lawyers, but in the area of computer animations and simulations, it carries a mixed message. The opinion takes a progressive approach to the unfair prejudice standard, granting broad discretion to courts to admit computer animation and simulation into evidence. However, the opinion takes a conservative approach to the treatment of computer simulations as scientific evidence. Lorraine’s real effect is yet to be seen, but its on-the-fence approach to computer animations and simulations may cause confusion. Lawyers should therefore use extra caution in meeting all relevant standards when introducing these forms of evidence.
Subject Areas:
Recent Development: Perfect 10 and Contributory Liability: Can Search Engines Survive?
NC JOLT Online Edition, Volume 9, Page 1 (December 2007)
Abstract
Search engines allow millions of users to locate content on the Internet, including content offered by individuals and companies who have infringed upon a copyright holder’s rights. Copyright Law’s contributory infringement doctrine presents a dilemma for search engines like Google, whose services may facilitate the infringement of copyrights by enabling users to locate such content on the Internet. The Ninth Circuit’s recent decision in Perfect 10, Inc. v. Amazon.com, Inc. highlights the problems associated with contributory liability doctrine in copyright law in the digital era. The Ninth Circuit Court of Appeals remanded the case to the district court, holding that “reasonable and feasible” means were available to Google, enabling it to block access on its search engine to content that violates a copyright holder’s rights. This recent development illustrates some of the problems of applying the standard of contributory liability to search engines on the Internet.
