Adam J. White has a review of Marc DeGirolami’s book, The Tragedy of Religious Freedom, in the September issue of Commentary Magazine. The print edition features a selection from the book.
Subotnik’s Article on Pre-1972 Sound Recordings Published and Article on Fair Use Picked Up for Publication
Professor Eva Subotnik’s article, Constitutional Obstacles? Reconsidering Copyright Protection for Pre-1972 Sound Recordings, 37 Colum. J.L. & Arts 327 (2014), co-authored with June Besek at Columbia Law School, has been published in the Columbia Journal of Law & the Arts. In their article, Professors Subotnik and Besek examine the constitutional underpinnings of proposed legislation to bring pre-1972 sound recordings under federal copyright protection, in particular, whether such an amendment would violate due process or constitute a taking pursuant to the Fifth Amendment of the Constitution. While concentrating on pre-1972 sound recordings, the article timely addresses issues that have implications beyond that context in the digital age, including implications for the comprehensive review of U.S. copyright law currently under way by the House Judiciary Committee.
In addition, Professor Subotnik’s article, Intent in Fair Use, will be published in the Lewis & Clark Law Review this fall. The article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. The Article first develops a framework for evaluating the degree to which courts, parties, and scholars have deemed conscious compliance with fair use principles relevant to the fair use analysis. It then argues for a limited role for evidence of subjective intent, proposing criteria for when such evidence should, and should not, be weighed in the fair use calculus.
Professor Jeremy Sheff was quoted in an article on today’s decision by the United States Patent and Trademark Office to cancel several trademark registrations owned by the Washington Redskins. The article states in part:
A person (or organization) gets a trademark by using it in commerce, and registration is simply an extra step that confers extra protections. “The Lanham Act gives the senior user of a mark the right to prevent others from using a mark that is likely to cause confusion, regardless of whether the mark is registered,” says Jeremy Sheff, an intellectual property law professor at St. John’s.
. . .
It’s theoretically possible that a judge would restrict the team’s common law rights on the basis that the marks are disparaging, but unlikely — and we probably won’t find that out until the team actually sues someone using the name and logo.
“There’s a chance that the Redskins mark will eventually be found not only unregisterable, but unenforceable,” Sheff says. “But I don’t think it’s a strong one.”
How much deference—or what kind—should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations—at both the Court of Appeals and the U.S. Supreme Court levels—turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case.
What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts—judicial interpretations of statutes and historical executive branch practice in the constitutional arena—courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations—illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations—without acknowledging or justifying the distinction—is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.
Professor Jeff Sovern’s letter in the New York Times on June 10, 2014, responds to reports about General Motor’s failure to prevent the loss of life from its defective cars. The letter states in part:
Candice Anderson was charged with manslaughter and ultimately pleaded guilty to criminally negligent homicide for an accident leading to the death of her boyfriend.
Now that G.M. has concluded that the accident was caused not by her but by a defective part, it will be interesting to see if anyone at G.M. is charged with similar crimes.
Professor Nina J. Crimm has published a chapter, Dilemmas in Regulating Electoral Speech of Non-profit Organisations, with Professor Laurence H. Winer in Not-for-Profit Law: Theoretical and Comparative Perspectives (Matthew Harding, et al., eds. Cambridge University Press 2014). The editors describe the chapter as follows
[S]ound[ing] a note of caution . . . Crimm and Winer compare the regulation of electoral speech of not-for-profits in Australia and the United States. The US experience shows how difficult it can be to manage a distinction between acceptable or beneficial electoral speech by not-for-profits on the one hand, and cynical manipulation of the electoral process by vested interests utilizing not-for-profits on the other; it also shows how striving to achieve such a balancing act is apt to generate legal complexity.
Professor Deepa Varadarajan‘s most recent article, Trade Secret Fair Use, was accepted for publication in Fordham Law Review. Here’s the abstract:
Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies are able to do this, in large part, because trade secret law lacks sufficient limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee who uses proprietary information to identify glitches in software, create a substantially improved product, or disclose grave public health risks.
This Article argues that trade secret law’s indifference to the social benefits of unauthorized use stands in contrast to other intellectual property doctrines, like patent and copyright. Copyright law incorporates the robust affirmative defense of “fair use,” which protects a variety of unauthorized but socially beneficial uses of another’s copyrighted work (e.g., educational uses). To a lesser extent, patent law’s reverse doctrine of equivalents and remedies analysis direct courts to consider the social benefits of a defendant’s technological improvement. Such limiting doctrines act as safety valves to reconcile intellectual property rights with competing innovation and First Amendment interests. This Article demonstrates trade secret law’s need for a similar safety valve and argues that courts should adopt a multi-factor “trade secret fair use” analysis to better address these competing concerns.
The Reverend Joseph T. Tinnelly, C.M., Professor of Law Lawrence Joseph‘s book, The Game Changed: Essays and Other Prose, is the subject of an essay review by Dean Emeritus and Professor of Law Joseph Tomain of the University of Cincinnati College of Law in the most recently published issue of the St. John’s Law Review. Describing Professor Joseph as “the most important lawyer-poet of our era,” Professor Tomain writes
Quite simply, Joseph the lawyer, poet, and scholar has developed a jurisprudence of his own. . . The Game Changed gives us rules to live by, and challenges of love and truth, and beauty and justice, to meet.
On Wednesday, June 4, 2014, Christopher Borgen, Professor and Associate Dean for International Studies, will participate in a roundtable discussion on international law and the crisis in Ukraine at the New York City Bar Association. Professor Borgen will be joined by Ukraine’s Ambassador to the United Nations, Yuriy Sergeyev. Alumnus Mark Meyer ’71, the Honorary Consul of Moldova in New York City, will moderate the discussion.