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Law and Sexuality: A Review of Lesbian Gay Bisexual and Transgender Legal Issues

Law and Sexuality: A Review of Lesbian Gay Bisexual and Transgender Legal Issues
-from Hein Online
1991-

Legal Literature (1905-1911)

Legal Literature
-from Hein Online
Holdings: 1905-1911

Law and Society Review

Law and Society Review
-from JSTOR
Holdings: 1966-

Law and Sexuality: A Review of Lesbian Gay Bisexual and Transgender Legal Issues

Law and Sexuality: A Review of Lesbian Gay Bisexual and Transgender Legal Issues
-from Hein Online
1991-

Copyright (c) 2008 Regents of the University of California UC Davis Law Review December, 2008 42 U.C. Davis L. Rev. 343

he dominant project of cyberlaw is to parse the implications of the Internet's structural rules or "code." n302 Legal scholars seeking to explain the Internet's dynamism as a unified platform have emphasized a particular structural factor: the so-called "end-to-end" model. n303 An end-to-end network is one that pushes control out to the endpoints. n304 The network focuses on moving bits from one place to another, without considering what those bits contain. Any edge device, such as a computer or mobile phone, can add a new application, and those edge devices are solely responsible for factors such as reliability and security that ensure the success of that application. Because innovations do not require the consent or updating of the network core, those innovations can be deployed more quickly.n305 As edge devices become more powerful, which they do as computing power improves over time, their enhancements can immediately be joined to the network. So, new services such as Google, Skype, Hotmail, Facebook, and Amazon.com can catch on and grow rapidly, generating significantly more social and economic benefits than in a network like the PSTN, where central control nodes must approve new features. n306

The end-to-end model emphasizes only one side of the equation - the edges. The Internet gives extraordinary power to its endpoints, but it also embodies linkages between those endpoints, and between [*400] aggregations of systems that connect into a composite network. The fact that the edges of the network define the applications say nothing about how those edges are wired together. An endpoint can offer a brilliant innovation, but such innovation will be of no value if other endpoints cannot access it, or cannot access it easily. n307 Something more than the end-to-end principle must explain how the Internet holds together.

Gambling and the Law: An Introduction to the Law of Internet Gambling

H.R. 2267: Internet Gambling Regulation, Consumer Protection, and Enforcement Act

H.R. 2267: Internet Gambling Regulation, Consumer Protection, and Enforcement Act, 2009. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2267ih.txt.pdf

In May 2009, Rep. Barney Frank (D-Mass) resurrected a bill similar to one he was unable to pass in the previous congress. HR 2267, or the Internet Gambling Regulation Consumer Protection and Enforcement Act, “would establish a federal regulatory and enforcement framework under which Internet gambling operators could obtain licenses authorizing them to accept bets and wagers from individuals in the United States.” Currently slated for the September session, many poker players are betting that this bill will finally legalize their Internet gambling. One of the other two bills that join HR2267 is HR2266 (Internet Gambling Regulation and Tax Enforcement Act) with the purpose of framing the regulation and taxation of this new enterprise; namely, “a 2 percent fee (i.e. federal tax) on all deposits.” The third counterpart, the Reasonable Prudence in Regulation Act, is the last ditch effort to stall the UIGEA, which calls for a one-year delay in date for compliance.

In Frank’s own words, “The government should not interfere with people's liberty unless there is a good reason. This is, I believe, the single biggest example of an intrusion into the principle that people should be free to do things on the Internet. It's clearly the case that gambling is an activity that can be done offline but not online.” Most advocates point to the revenue stream this bill would create, while opponents argue “legalized online gambling is a ‘clear danger to our youth’ and encourages gambling addiction at a young age.” However, Frank’s response to this claim is “The notion that a society should prohibit something entirely because of the possibility that children will abuse it is a terrible blow to liberty.” The authors have stressed that the bill includes safeguards to prevent underage or compulsive gambling and protect consumers who gamble online.

Until the bill comes to session, lobbying efforts have been promised by the Poker Players Alliance that include a $3 million campaign. HR2267 moves contrary to the traditional prohibitive stance the government has taken to online gambling. In an economic downturn, it’s no surprise that novel revenue streams become more appealing, which makes passing the Internet Gambling Regulation Consumer Protection and Enforcement Act a no-brainer. According to Harrah's Entertainment's senior vice president of communications and government relations Jan Jones, "We really believe this industry already exists. It just exists in a wild west setting. If you say you care about protecting children and fraud and money laundering, then the only way you can put those protections in place is to put in a strong regulatory frame."

Unlawful Internet Gambling Enforcement Act of 2006

Public Law 109 - 347 - Security and Accountability For Every Port Act of 2006 or the SAFE Port Act: H.R. 4954 (S. 2008) (S. 2459) http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:h4954enr.txt.pdf

Although the SAFE Port Act was mainly an anti-terrorism bill, the Unlawful Internet Gambling Enforcement Act (UIGEA) was tacked on at the last moment. The entire package was passed at midnight on the day Congress adjourned for the 2006 elections. Very few of the representatives had a chance to review the full bill and the UIGEA portion was not even included in the original SAFE Port Act passed by the Senate. The UIGEA was indeed a resurrection of the HR4411 IGPEA that failed in 1999 but several portions had been scrapped, namely any text relating to the Wire Act. Even though the UIGEA was signed into law in 2006, its provisions were marked for “notice of proposed rulemaking” that delayed any real legitimacy to the act until final regulations were released November 12, 2008 to become effective January 19, 2009. Additionally, due to the complicated enforcement issue the UIGEA placed on payment processors, compliance was not required until December 1, 2009. So even though the Bush administration had successfully passed an anti-gambling via the Internet bill, it took over three years to become effective, under a new administration that could possibly overturn the law.

While this bill does not expand the Wire Act provisions, it does add language to cover “interactive computer services” which obviously refers to the Internet. The real problem with the UIGEA is that it declares “unlawful Internet gambling” is illegal, but never defines Internet gambling. In an attempt to target poker and casino-style games specifically, the language expands on what is considered a bet or wager to include “games subject to chance.” However, poker enthusiasts and advocates claim that poker is a game of skill and not chance.

UIGEA does affirm that one should ignore intermediary computers and look to the place where the bet is made or received. However, the main purpose of the bill is to force the financial institution to become watchdogs over transactions. This reason alone is why banks heavily lobbied against the bill. While the long-term consequences are yet to be seen, the immediate effects resulted in Neteller and several other prominent payment processors to unilaterally stop serving the gambling community. Of course, other processors gladly stepped up in this vacuum alongside poker sites utilizing workarounds through phone cards and other innovative approaches.

UNITED STATES COURT OF APPEALS: In Re: MASTERCARD INTERNATIONAL INC. INTERNET GAMBLING LITIGATION

In re MasterCard Int'l, et al., 132 F. Supp. 2d 468, 472 (E.D. La. 2001). http://www.ca5.uscourts.gov:8081/isysquery/irlc1e/1/doc

This 2001 class action case targeted several banks and credit card companies (such as Mastercard and Visa International) for alleged unlawful interaction with Internet casinos per the Racketeer Influenced and Corrupt Organizations Act (RICO). However, the defendants were able to successfully move to dismiss the case. During the appeal hearing in 2002, the judge affirmed the previous decision.

In short: “In this lawsuit, Larry Thompson and Lawrence Bradley (“Thompson,” “Bradley,” or collectively “Plaintiffs”) attempt to use the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, to avoid debts they incurred when they used their credit cards to purchase “chips” with which they gambled at on-line casinos and to recover for injuries they allegedly sustained by reason of the RICO violations of MasterCard International, Visa International, and banks that issue MasterCard and Visa credit cards (collectively “Defendants”). The district court granted the Defendants’ motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We AFFIRM”

The judge wrote the following in his decision, “Because the Wire Act does not prohibit non-sports internet gambling, any debts incurred in connection with such gambling are not illegal.” Trumpeted by poker players unanimously, this case law set a precedent that although sports betting conducted over the Internet may be illegal, casino games are legal according to the Wire Act. The judge’s opinion was indeed influenced by previous attempts to expand the ambiguous Wire Act, as seen by his comments, “[T]he recent legislative history of internet gambling legislation reinforces the Court's determination that internet gambling on a game of chance is not prohibited conduct under 18 U.S.C. § 1084. Recent legislative attempts have sought to amend the Wire Act to encompass ‘contest[s] of chance…’ the ‘Internet Gambling Prohibition Act of 1999’ …sought to amend Title 18 to prohibit the use of the internet to place a bet or wager upon a ‘contest of others, a sporting event, or a game of chance…’”

How a Lobbyist Stacked the Deck

Susan Schmidt; James V. Grimaldi (October 16 2005). "How a Lobbyist Stacked the Deck—Abramoff Used DeLay Aide, Attacks On Allies to Defeat Anti-Gambling Bill". Washington Post. p. A01. http://www.washingtonpost.com/wp-dyn/content/article/2005/10/15/AR2005101501539_3.html.

Although this Washington Post article was written in 2005, the subject of the story centers on the 1999 Internet Gambling Prohibition Act (IGPA) that never came to be. IGPA was bill that cleared the Senate and "appeared on its way to passage by an overwhelming margin in the House of Representatives." Although a strong lobbying effort from the moral right and anti-gambling groups such as the Christian conservatives thought they had sealed the passage of this bill, political payoffs behind the scene derailed the process.

Even though the National Gambling Impact Study Commission’s Final Report gave fresh life to an anti-gambling bill, powerful lobbying efforts orchestrated by Jack Abramoff eventually scuttled the passage. These efforts employed a “win-at-any-cost strategy that went so far as to launch direct-mail attacks on vulnerable House conservatives” and included at one point, “circulat[ing] a forged letter of support from Florida Gov. Jeb Bush.” After the $2 million pro-gambling campaign defeated the bill, several charities tied to Abramoff and his accomplices helped launder the money.

This story serves as an example of how powerful lobbyists and corruption is capable of manipulating Capitol Hill and eventually national law. Although for the average gambler, they were never the wiser. Conservatives swore that they would one day resurrect the bill and that day eventually came also surrounded in controversy. [See UIGEA 2006]

Final report / the National Gambling Impact Study Commission.

National Gambling Impact and Policy Commission (U.S.) . Final report / the National Gambling Impact Study Commission. series Washington, D.C. : The Commission, [1999]
Call#: Van Pelt Library KF3992 .N375 1999

In 1996 the National Gambling Impact Study Commission Act was signed into law which established the National Gambling Impact Study Commission, “charged by Congress with a ‘very broad and very difficult task – to conduct a comprehensive legal and factual study of the social and economic implications of gambling in the United States.’” The Commission efforts included “holding a series of hearings around the country…received testimony from hundreds of experts…making several site visits, commissioning original research, conducting surveys of the existing, wide-ranging literature, and soliciting and receiving input from a broad array of individuals and organizations.” This process took two years, and the final report was published in 1999. During the report’s introduction, the Commission addresses Internet gambling specifically, “Thus, with only a few exceptions in areas such as the Internet, we agree that gambling is not a subject to be settled at the national level, but is more appropriately addressed at the state, tribal and local levels.”

It seems that the authors’ limited understanding of cyberspace permitted them to treat the Internet as a unified jurisdiction capable to being encompassed by a national law, since any state would be hard pressed to enforce a law governing the de-centralized Internet’s transmissions across state lines. They did include a specific section devoted to Internet gambling in which they came to no clear conclusion, but rather harped on the uncertainty that the technology has brought to the legal field. Mainly they assert that the most likely law to invoke is the Wire Act, but simultaneously admit that “wire communications” may not apply to the World Wide Web that can employ satellite technology and other wireless technology. They also raise the issue that the statute does not clearly define gambling “contests” and if it should apply to nonsports betting such as Internet bingo, lotteries, or casino-style games. More poignantly, the Commission asks relevant but unanswered questions such as “What are the legal jurisdictions when it comes to Internet gambling? Where are the bets and wagers actually taking place?” Such questions were already covered for brick-and-morter establishments and accompanying telephone communications as a result of the RICO laws and the like.

In conclusion, the Commission made four recommendations regarding Internet gambling: 1) the federal government should prohibit…Internet gambling not already authorized, 2) prohibit wire transfers to known Internet gambling sites or the banks who represent them, 3) prohibit states from permitting the expansion of gambling into homes…, 4) the federal government should take steps to encourage foreign government not to harbor Internet gambling organizations that prey on US citizens.

While the report focused on addressing both the social and economic situation regarding gambling, the only technological solutions in regards to Internet gambling they came up with were recommending enforcement strategies that targeted ISPs, credit card providers, money transfer agencies, and makers of wireless communication systems. In order to police the nebulous Internet, they planned on holding the financial facilitators responsible.

Federal Wire Act of 1961

Sporting Events – Transmission of Bets, Wagers, and Related Information Act,Pub. L. No. 87-216, § 2, 75 Stat. 491, 552-553 (1961) http://uscode.house.gov/download/pls/18C50.txt

Adopted in 1961, the intent of this law was to help law enforcement agencies, especially at the state level, fight organized crime. The Federal Wire Act, in companionship with other federal bookmaking statutes – Travel Act, Interstate Transportation of Wagering Paraphernalia Act, and the Illegal Gambling Business Act – established how organized gambling activities would be deemed illegal and punishable.

Subsection (a) of the Wire Act, a criminal provision, provides:
Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both [18 U.S.C. § 1084(a).]

Two provisions standout from the above clause. Namely, “engaged in the business of betting or wagering” and “wire communication facility.” The first quote is most often interpreted to exclude casual bettors. It has been argued, even by congressmen during the debate on this bill, that “[t]his bill only gets after the bookmaker, the gambler who makes it his business to take bets or to lay off bets. . . It does not go after the causal gambler who bets $2 on a race. That type of transaction is not within the purvue of the statute” [United States v. Baborian, 528 F. Supp. 324, 328 (D.R.I. 1981) (quoting 107 Cong.Rec. 16,534 (1961)).]

Regarding the definition of a “wire communication facility,” the following wording applies, “[A]ny and all instrumentalities, personnel, and services (among other things, the receipt, forwarding, or delivery of communications) used or useful in the transmission of writings, signs, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission.” It remains unclear if the Internet falls in this category. It may be true that certain cables and wires facilitate the Internet, but information also can be transmitted wirelessly between destinations. Wireless transmissions would fall outside the scope of a “wire communication facility.” Since the authoring of this bill preceded the Internet, no consensus has been made on whether it should be applied to online gambling.

One thing is for sure, the Wire Act clearly separates sports betting from nonsports betting, and has been used to define the legality of nonsports betting online. That is to say, the Wire Act fails to prohibit using the Internet to bet on games of chance, such as poker.

American Gaming Association : Industry Issues Detail: Fact Sheet: Internet Gambling

American Gaming Association, Fact Sheet on Internet Gambling, accessed 7/20/2009: http://www.americangaming.org/Industry/factsheets/issues_detail.cfv?id=17

The American Gaming Association (AGA) presents a succinct review of the current disagreement between the U.S. Department of Justice and U.S. courts that have decided online gambling cases. They address most of the historic and current legal issues surrounding U.S. law in regards to online gambling. “Due to the divergent views of its members, the AGA is neutral on the issue of Internet gambling.” The following cases were described: Wire Act of 1961, Professional and Amateur Sports Protection Act of 1992, The WTO ruling of the U.S. violation of the General Agreement on Tariffs and Trade, the Unlawful Internet Gambling Enforcement Act of 2006, as well as the 2009 Internet Gambling Regulation Consumer Protection and Enforcement Act, Reasonable Prudence in Regulation Act, and the Internet Gambling Regulation and Tax Enforcement Act.

This factsheet is a good primer on the relevant background and current legal issues facing online gambling. It was a good place to start in order to be more informed when locating more substantive sources.

The Legislative History of Online Gambling: A Case Study of Poker on the Internet

This project looks at the legislative history surrounding gambling over the Internet. Although gambling has been a part of human culture throughout the ages, several countries have attempted either to regulate or prohibit this behavior. Traditionally gambling took place in brick-and-mortar establishments where local law had clear jurisdiction; however, since the advent of the Internet gambling has moved into the borderless territory of cyberspace. A majority of this project evaluates recent attempts within the United States to enact legislation surrounding online gambling. Namely I will outline how the government's first attempt, retroactively invoking the 1961 Wire Act, remained weak in its ability to prohibit online poker until the 2006 Unlawful Internet Gambling Enforcement Act (UIGEA) made the processing of payments for online gambling illegal. Currently there is legislation slated for September 2009 that would repeal the UIGEA and move to regulate and tax rather than prohibit online gambling.

Existential Dilemma: Librarians as Gatekeepers

Traditionally, librarians have been viewed as gatekeepers (among other things). However, Librarians (for the most part) view themselves as catalysts helping patrons getting the material they want as quickly and as "painlessly" as possible. For most patrons the ideal librarian is one who can find whatever information they need quickly, easily, possibly be able to teach them how to do it themselves, and -- most importantly -- do all of this for free. Most librarians, I assert, want to be the patron's ideal librarian. So, why then are librarians gatekeepers -- shouldn't librarians be ignoring copyright all-together in order to be the ideal librarian? The answer is that most librarians don't feel as if copyright law is some moral code they must abide by; rather, most librarians are afraid their library is going to get sued. Is having one's library being sued a legitimate fear for librarians? I argue that it is not a legitimate fear. In addition, library's and librarians have come to a breaking point in regards to copyright. Library's can barely afford the high prices for copyrighted material and most librarians believe there needs to be a universal embrace of open access in order for libraries to continue providing the services they have historically provided. Librarians need to be rebellious against copyright in order to push publishers away from price-gouging and the strangle-hold they have over their content. If librarians adopt an end-to-end policy, learn to circumvent copyright law as legally as possible, and know how likely it is that their library will be sued, then librarians will finally be taking a truly proactive and rebellious stance against copyright.

Georgia State Lawsuit Release and "Legal Complaint"

The above article is a PR address from the Association of American Publishers regarding the infringement lawsuit brought up on Georgia State University by Oxford University Press, Cambridge University Press and SAGE Publications. The document gives the reasons why these three publishers felt it necessary to bring up charges against GSU and why it is important that the copyright they hold over their published works is important (mainly because of the significant funds they spend publishing their works).

http://publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf

The above link directs you to the legal complaint in its original form. Using the above legal cliam and the press release to help decipher and guide me through this legal document will help me to better understand why the publishers feel they have been wronged by Georgia State University. The infringements listed by Georgia State University have most assuredly been facilitated by the library/libraries of GSU or at least exacerbated by the library/libraries.

I will use the above article as a way of understanding what was it exactly that publishers feel are significant reasons to bring up suit against an entity. By examining the stated reasons for the lawsuit, I could further research as to what could be done to eliminate the possibility of being sued for supplying copyrighted works to students, faculty, and staff by the university library. The above articles will help me to define in my essay what is sufficient cause for a publisher to take up suit against a university / library.

Second District of Texas Court of Appeals | Judiciary Opinion

Kaufman vs. Islamic Society of Arlington, Texas, Islamic Center of Irving, DFW Islamic Educational Center, INC., Dar Elsalam Islamic Center, Al Hedayah Islamic Center, Islamic Association of Tarrannt County and Muslim American Society of Dallas. No. 2-09-023-CV. January 22, 2009.

This court of appeals decision from Texas rules on the case of Kaufman, the author of an online article asserting that Islamic extremists and terrorists were invading Six Flags during their Muslim Family Day. The court decided in favor of Kaufman, arguing that his article did not refer to any of the groups that filed suit against him, and that a 'reasonable reader' would in no way link the groups and implicate the Islamic groups in question with the groups mentioned by Kaufman as terrorist affiliated. The court asserts that "...an internet author's status as a member of the electronic media should be adjudged by the same principles that courts should use to determine the author's status under more traditional media." It's decision classifies Kaufman as an 'online journalist' and argues that his legal rights are thus equal to those of traditional journalists.

Though the court's decision in favor of Kaufman holds little bearing on my thesis, their ruling affects the validity and status of online journalism because it equates it with print and traditional journalism. They argued that a blogger writing without an editor and without performing investigation and substantiation of their claims would not necessarliy be considered an online journalist and would not necessarily receive the same legal rights as online journalists like Kaufman. The questions is, of course, what makes Kaufman a 'journalist'. The court quoted U.S.C.A 552(a)(4)(A)(ii) (West Supp. 2009), arguing that media includes "any 'person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the way materials into a distinct work, and distributes that work to an audience.'" By this measure, bloggers who discuss news (as opposed to just personal experience and opinion) are certainly included in the realm of online media.

A LAY PERSPECTIVE ON THE COPYRIGHT WARS: A REPORT FROM THE TRENCHES OF THE SECTION 108 STUDY GROUP HORACE S. MANGES LECTURE: APRIL 1, 2008

Note: Lexis Nexis doesn't give persistent links (or else I am unable to find where they do) in order to retrieve this article simply search for "a lay perspective on the copyright wars" with only the legal box checkmarked and it will be the first result.

In this Lecture, Columbia University's University Librarian, James G. Neal, addresses the current environment of libraries in regards to copyright and open access. Neal's lecture mostly addresses the findings of the 108 Study Group which was formed to research copyright. Neal explains the current state of copyright, the findings of the 108 Study Group, and the framework necessary in order to facilitate a more open environment for publications and libraries. Neal's lecture defines the library as an all encompassing entity which disseminates information, a center for research, a publisher in its own right. Because of the library's role as a center for just about everything scholarly, the library has a vision of embracing legacy as well as current trends. The library is an information repository and a portal to information. Serving so many roles simultaneously makes the library at the forefront of the copyright war.

In my essay it will be important to state why it is the duty of the librarian to rebel against copyright in order to push for more open access. Neal helps define the library as the center of the copyright war, the very front of the action. By citing Neal and his 108 Study Group's findings, I will be able to convey the importance of the librarian to stand up against copyright in order to defend the very embodiment and idea of the library itself. Neal's article also gives information on the opninion of librarians and library organizations on the issue of copyright and open access. Using some of this information will help me to define how to faciliate a better enviornment for the sharing of intellectual materials.

U.S. Code TITLE 17--COPYRIGHTS

U.S. Code Title 17 is the definitive legal resource for the U.S. Laws regardining copyright. This resource has relevant information on what constitutes copyright infringement and what actions are needed to remedy said infringements.

I will use the above resource as a primary source. This source will help me to define exactly what copyright infringement is according to the law. The above material will help me to define what actions a librarian could take when addressing sensitive copyrighted materials. By knowing the extent of the law I could then determine what are suitable actions to take when coming in contact with something which is questionable -- and in turn what is definitively illegal -- in order to argue for what actions a librarian could take to "push the envelope" on copyright law.

Copyright Resources for Schools and Libraries

This resource aims to address as many legal aspects of copyright infringement that the site's authors deem are most relevant to instruction and libraries. The site acts as a bibliography or index to various topics within coypright right law and links the user to a main source of information on each specific topic. In addition to linking to various topics on copyright law, it also links to legal information on copyright law and how it pertains to libraries and instruction. Under each section and sub-headings are abstracts explaining what is covered under each topic.

The following resource is an invaluable tool for addressing specific copyright concerns of libraries. After researching what each of the concerns are and making note of them, I will then be able to click through to find out more information on each specific topic. Though likely not a comprehensive source of copyright law which specifically affects libraries, it seems to be fairly wide ranging and well written.

The legal problems of document supply by libraries: an international perspective

The following article compares copyright law in so much as it involves document delivery (or Interlibrary loan) in different countries: Australia, Canada, Germany, the United Kingdom, and the United States. The section of the law, deemed most relevant by the author, is listed and an examination of the law is undergone. The author tries to re-explain the word of the law in laymans terms and make it more approachable to the average reader.

I plan on using the following article to get a better understanding of how copyright law differs in western countries and how it affects libraries and their ability to provide free documents to patrons. Using the authors explanations will help me to get a better grasp of "legal-ese," so as to better understand U.S. Law when conducting my own research.

Cambridge U.P., Oxford U.P. and SAGE Publications v Georgia State University

When One Man's Video Art Is Another's Copyright Crime

Smith, Roberta. "When One Man's Video Art Is Another's Copyright Crime." 6 May 2004. Thew New York Times.

Roberta Smith's When One Man's Video Art is Another's Copyright Crime digresses from the traditional discussion of visual artists' taking single images, and instead, focuses in on video artists appropriating. Jon Rouston is an artist that makes movies of already made movies. His process involves going to the theatre on opening night and recording what happens both on and off the screen. Although he doesn't sell his work, his installations still fall in that grey copyright area between theft and inspiration.

More troubling to Rouston is that Maryland, the state in which he works, is making it illegal to film inside movie theaters. Additionally, the Senate Judiciary Committee is taking harsh steps to ensure that illegal filming cannot happen in movie theatres. With 80 percent of pirated films coming from filming inside theatres, the MPAA has many lobbyists in Washington trying to create new laws that decrease piracy. However, Rouston argues that his films are not pirated DVDs that take away from seeing a film in theatres. Instead, he believes his film propone the movie going experience.

The author concludes that these new camcorder bans inhibit people from commenting and criticizing. According to Ms. Smith, our pop culture is comparable to 19th century landscape-would you ban 19th century artists from making pastorals? Her point hits home. Appropriation art that creates new meaning-whether parodic or scathing-should be allowed to exist, uninhibited by the law. In the end, Rouston decided to stop creating his films. This article is symbolic of artists moving away from appropriation (and thus, a type of commentary) because of laws that inadvertently protect copyright.

Index to Foreign Legal Periodicals

Hein Online

THOMAS

LexisNexis Congressional

Index to Foreign Legal Periodicals

Law Journal Library - HeinOnline.org

laws from hein

Koons v. Rogers: String of Puppies as Appropriation Art

This article from Art Law department at Harvard explains that artists have certain rights within the creation of their works. One-way is through appropriation art: the quoting of work from other artists. Artists borrows elements from the original that may stay completely unchanged, however, the new work uses the original to create something new. Appropriation art took place as far back as Raphael’s Judgment of Paris c.1515, which was since lost but one of the artist’s employees, Raimondi, made an etching of it, which proceeded to be copied over and over. Three centuries later, Manet took part of this image and inserted it into his painting, Le Dejeuner Sur L’Herbe. A century later, Picasso translated Manet’s work in a series of paintings. Thus, artists’ have always relied on being inspired and influenced by earlier works.

The Roger v. Koons (1992) case, wherein Jeff Koons commissioned a sculpture of Art Roger's photograph postcard, and in so doing, violated Rogers’ copyright of his original work, is regarded as the primary modern day case of appropriation art. Koons’ work copies the original exactly, although the puppies are painted a vivid blue, have bulbous noses, and the two figures are decorated with three flowers, which does not occur in the original.

Koons has been in a number of cases in which he has tried to argue for parody or satire, for example, in order to deem his work transformative enough from the original, and thus fair use. Appropriation art is a major get-out-of-jail free card, that gives artists the ‘artistic license’ that is arguably essential in creating great works, as exemplified by the fact that the most well recognized artists have been doing this for centuries.

The Sinking of YouTube.com in the DMCA's Safe Harbor

Vanderbilt University – Law School

Vanderbilt Law Review
Trevor Cloak, The Digital Titanic: The Sinking of YouTube.com in the DMCA’s Safe Harbor, 60 Vand. L. Rev. 1559 (2007).

    In this article, Trevor Cloak begins by introducing the start-up of YouTube and how it soared in popularity to eventually be purchased by Google for its advertising revenues. He then continues by describing how it is potentially protected by the DMCA given its status as a qualified ISP. Cloak devotes a section to describe copyright law prior to the DMCA and how issues were dealt with before the safe harbor provision could be applied toward the liability of certain companies (ex case: Playboy Enterprises, Inc. v. Frena, p. 1567 and Religious Technology Center v. Netcom Online Communication Services, Inc. p. 1568.) Netcom was ruled not directly liable for infringement because it didn’t directly facilitate the infringement. Automated processes did so without the knowledge and deliberate uploading of the operators. Questions were raised howeer, if it received and financial benefit from the infringing material.
    YouTube may or may not have been considered to be a Direct Copyright Infringer depending on how the legislation is interpreted (prior to the DMCA) (p.1572 – use Netcom case as example).   In addition, however, YouTube could be guilty of Vicarious Copyright Infringement (p 1573-1576). The DMCA as a result, allows these charges to be lifted and for the promotion of creativity.
    This article provides a few new interpretations on the ability of YouTube to seek safe harbor protection. I hope that the historical cases that it provides as examples will be of aid in determining how the courts have traditionally viewed the copyright issues.

Copyright Law of the United States of America: Chapter 5 - Copyright Infringement and Remedies, 92 United States Code - Title 17 Section 501-504 (US Copyright Office).

This is the Copyright Law of the United States of America. I am referring to sections 501-504. In these sections of the law, copyright infringement is defined. The parts of the definition that are applicable to file sharing are that only the owner of the copyright can “reproduce the copyrighted work in copies,” and that only the owner of the copyright can distribute copies.
The interpretation of this law depends on whether or not file sharing should be viewed as legal or illegal. If the definition of a copy includes an mp3 file, then file sharers are most likely guilty of copyright infringement. However, the user of the P2P program isn’t actually distributing any copies. The program allows other users to access someone’s files, and download copies of them. Isn’t the downloader the one making the illegal copy? If I left a cassette tape in a room, and someone else came in, made a copy of it and ran away, would I be breaking the law?
Section 504 outlines the amounts of money that infringers should be sued for. It says the infringer should have to pay for “the copyright owner’s actual damages and any additional profits of the infringer.” In this case, the infringer makes no profit, and the actual damages are difficult to determine. The court would need to know how many people downloaded copies of one person’s copyrighted file. It is very possible that this number could be very low. Based on this logic, the lawsuits wouldn’t be very expensive. However, there is a statutory damages clause in the law that allows copyright owners to recover between $750 and $30,000 from the infringer per song, no matter the circumstances. And if the infringement is committed willfully, the maximum amount goes up to $150,000. (These high dollar amounts are a result of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. Previously, the range was $500 - $20,000.)
The statutory damages part of the law is one of the main reasons I believe the RIAA lawsuits are unfair. The court should have to determine the actual damages of the infringement, and no arbitrary dollar amount should exist. This part of the law makes it easier for the RIAA to exploit individuals without proof of damages. If a song costs about 99 cents, it is unlikely that one person’s sharing of the file would cause $750 in damages. The government needs to get rid of these statutory damages, or drastically lower the dollar amounts. I find it hard to believe that the Digital Theft Deterrence and Copyright Damages Improvement was passed in 1999, given how arbitrary and high the values are. It must have been pushed for by lobbyists.

The Piracy Paradox: Innovation and Intellectual Property in Fashion Design

Raustiala, Kal and Sprigman, Chris,The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Virginia Law Review, Vol. 92, p. 1687, 2006; UCLA School of Law Research Paper No. 06-04.

This paper is extremely informative in that it addresses both sides of fashion copyright, whereas most other papers point out only one side of the argument. Moreover, it explores the question of why other major industries have obtained and used powerful IP protections for their products, while the fashion industry is for the most part still ineffective yet very economically successful. First, the paper argues that there should be an effective copyright on fashion because it protects the designers' creativity. However, it also argues that a weak IP actually helps the fashion industry in its innovation. Specifically, the terms "induced obsolescence" and "anchoring" are mentioned to explain that copying is actually beneficial for the fashion industry and in fact promotes fashion.

I will be able to refer to this article a great deal when writing my own paper because it explains how the fashion industry’s piracy paradox works and explores how copying plays an important role in the fashion industry’s innovation cycle. It also gives an ample of amount of history about fashion copyright, which is very important for my paper. Finally, it will help me to support my thesis because it talks about both sides of the argument. Therefore, in my paper, I will be able to address both sides of the fashion copyright problem and give reliable information to support either side, although ultimately, I will acknowledge that there should not be a fashion copyright.

Wiehe, Kristy. "Dollars, Downloads and Digital Distribution: Is "Making Available" a Copyrighted Work a Violation of the Author's Distribution Right?" UCLA Entertainment Law Review 15 (2008): 117-25.

NOTE: This article is difficult to find on Lexis-Nexis. You must do a powersearch and specify "UCLA Entertainment Law Review" as your source.

This is a journal article in the UCLA Entertainment Law Review. The article is by Kristy Wiehe, the Editor-in-Chief of the journal. This article examines how the RIAA uses copyright law to sue individuals, and whether or not the RIAA’s interpretation of the law is correct. The author first describes how P2P file-sharing programs work, explaining that most of them scan the user’s computer for media files, and place these files in a “shared” folder that is uploaded to the P2P network. When the files are uploaded to the network, the user is making the files available for other users to download. The RIAA claims that if these files are copyrighted material, then this “making available” is defined as copyright infringement. In the Napster case in 2001, the court agreed with the RIAA’s view. The author, however, disagrees with the RIAA’s interpretation of the law. She contends that copyright law says it is illegal to distribute copies in the form of material objects to the public, and that the RIAA should have to prove that an actual transfer of the copyrighted material took place from one user to another. Parts of copyright law are quoted in the article to make this point. She believes that without a definitive “transfer of ownership,” the RIAA should not be able to sue someone. The RIAA believes that the “making available” of files is considered distribution, and this is the fundamental disagreement between the RIAA and the author.
In addition, the author compares the use of these lawsuits to stop file-sharing to an “effort to rearrange deck chairs on the Titanic.” The problem is so large that suing a few individuals will most likely not fix it. The solution proposed in the article is for the record companies to make it “economically rational” for consumers to pay for music files instead of downloading them illegally. She suggests pricing that asymptotically approaches zero as the number of songs purchased increases. Therefore, if a person downloads thousands of songs, they won’t have to make extremely high payments.
I strongly agree with the author’s interpretation of copyright law, and I believe that the record companies should have to present more proof than a file being in a “shared folder” in order to file a lawsuit. Also, the P2P programs should eliminate their scanning programs because there is a significant chance that they could incriminate an unknowing person who has legally obtained copyrighted work and stored it on his or her computer. Proof of a transfer should be necessary for a lawsuit, and it is also questionable whether or not an mp3 file is a “material object.” People are being sued without concrete proof of infringement, and the RIAA needs to be stopped from abusing the law to gain money. This argument will be part of my contention that these suits are unfair.
The author’s suggested business solution may be unfair to the record companies, but these companies certainly need to focus on making large-scale changes to their sales techniques.

Metro-Goldwyn-Mayer v. Grokster: Unpredictability in Digital Copyright Law

This article considers the implications of the Supreme Court's Grokster II ruling, which considered four internet file sharing technologies that were previously found by district courts to have been liable for copyright infringement. The technologies considered are Napster, Grokster, Morpheus and Aimster. The article outlines a Grokster II test used to identify infringing file sharing programs. The test relies heavily on whether the producer of the technology advertised intent to distribute copyrighted material. The four factors used to determine liability outlined by the author are whether: (1) defendants made express statements of intent to induce copyright infringement, (2) defendants advertised that they intended to replace a known source of infringement, (3) defendant attempted to filter or reduce infringing use and (4) defendants' business models used as evidence bolstering defendants unlawful intent. The author points to the fact that these factors, while universal in their use in determining the liability in the four aforementioned technologies, were used to produce inconsistent judgments regarding contributory infringement by the producers of the respective technologies. The concept of unpredictability in digital media copyright law stems from these inconsistencies in Grokster II.

The piece of this article that will be most useful for my paper is the section that follows where the author tests the four factors from Grokster II on three new technologies. The technologies discussed here include TiVo ToGo, MyTunes Redux and Limewire. Each technology produces ambiguous judgments using this four factor test since TiVo ToGo can not be assumed to have an underlying infringing use, and MyTunes Redux and Limewire do not operate for profit and it is also ambiguous whether any of these products advertisements can be shown to induce users to infringe copyright. This will serve as evidence in my paper that the current system by which courts evaluate potential copyright infringers is not effective for many technologies currently available that bear striking similarities upon which action has been taken. I suspect that in the future many new technologies will arise whose purpose is, in fact, to replace those that have been shut down by the recording industry-precisely one of the reasons Grokster, itself was found guilty. These developments suggest, as does evidence in my other sources, that the recording industry and the courts will have to work more closely with users of peer to peer file sharing networks and internet service providers to either devise new methods of preventing illegal file sharing or establish a new system by which digital music is made available.

Visual Artists Rights Act

This is the text for the Visual Artists Rights Act of 1990. The first section defines a work of visual art as "a painting, drawing, print, or sculpture" or "a still photographic image produced for exhibition purposes only" The work has to have no more than 200 copies, and each has to be signed and consecutively numbered by the author. This act protects the works of authors in the visual artistic field, and allows the authors to take credit for their work, and also to remove their name from any altered version of that work. The author can also prevent intentional changes of their work, especially if it would hurt the author's reputation. This also enumerates certain exceptions and also the duration of the rights, which is the life of the author. The act also has a transfer and waiver section that lists that rights cannot be transferred, but the author can waive them. In addition, if the work is part of the structure of a building or something of the sort, then the owner of the building needs to get permission from the author in order to remove his or her work. However, if the moving of the work will not ruin or destroy it at all, then it is permitted.
This act is the basis for subsequent cases and claims of copyright for visual works. The Visual Artists Rights Act of 1990 (VARA) adds more specifics to the United States Copyright Act of 1976. The extension to include visual artists works is an example of how changing times need new legislation. Under the original act, visual works are somewhat protected, but VARA gives more rights to the authors. Under VARA, the author can still control what is done with and to his or her work, even if he or she is not the owner of the physical piece. This is a major step forward in the United States copyright realm, because this is the first time that moral rights are given to authors; although, in Europe author’s already had moral rights.

EFF: DVD-CCA v. Bunner

DVD CCA v. McLaughlin - Plaintiff Opposition to Pavlovich Quash Motion

Profiting from Being Pirated

This article introduces another argument to support the one that states that pirates can actually be beneficial to the original producers of fashion products. The authors render that pirates are not merely copiers. On the contrary, they often inspire high-end fashion designers in new directions. Specifically, the article cites the example of Fred Nuovo, the designer of the Nokia luxury brand, recognizing his idea of creating Vertu came from pirates who were selling counterfeit Nokia phones with diamonds on them. In addition, the article describes an incident in which Coco Chanel, a high-end fashion designer, used raffia in her collection after her press secretary bought a counterfeit Coco Chanel knockoff outfit that had included raffia trim, a detail the original lacked. If this were to be true, the usually pirated firms are the ones who are pirating from the so-called "pirates." In the conclusion, the article admits that the overall impact on social welfare remains ambiguous and calls for further research into this topic as a whole.

This article adds another argument that is important for my topic: that often producers not only gain financial benefits from pirates, but that they also often take creative ideas and details from counterfeited products. In addition, I appreciate the way that the author notes that the beneficial gains from pirating are still, at this point, ambiguous and that further research is needed to be conducted in order to fully understand the implications piracy has on fashion designers and their revenue of sales.

Design Piracy Prohibition Act

This is a bill pending in the United States Senate that would broaden the already existing Copyright Act of 1976, extending copyright protection to fashion designs for a period of three years. Under this act, the rather ambiguous terms relating to fashion are clarified. For example, the bill extends protection to "the appearance as a whole of an article of apparel, including its ornamentation." Furthermore, the bill identifies what constitutes the term "apparel," including, "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear." If a designer wishes to receive the three-year protection, he or she would be required to register with the U.S. Copyright Office within three months of going public with the design. In addition, the bill lists the monetary penalties for any individual who is guilty of copyright infringement under these terms.

I almost did not include this bill in my project, but I found it very noteworthy how many of my sources referred to this bill. Thus, I found it important to actually read and have in front of me the primary source of many of their arguments. I also think it is interesting to see how designers would be protected under law. I am planning on arguing whether or not designers should have protection under law for their designs, so it is helpful to see an example of how proponents of fashion copyright hope to protect fashion designs.

Copyright Protection for Fashion Designers

This article recognizes that fashion design does not currently receive protection under U.S. Copyright law. H.R. 2033, the "Design Piracy Prohibition Act" would amend Chapter 13 of the U.S. Copyright Act, which now protects the designs of vessel hulls. This article analyzes the amendments that H.R. 2033 would make to Chapter 13 of the Copyright Act, including granting fashion designs a three-year term of protection, based on registration with the U.S. Copyright Office. Lastly, it summarizes arguments both in favor of and against giving protection to fashion designs. In the article, the author points to the fact that those against protection of fashion designs fail to recognize fashion as an artistic form of creativity. They simply view fashion and clothing as utilitarian. In addition, those in favor of protection highlight how easily runway photographs can be accessed from the Internet, making it easy to be copied. They also say that young designers specifically have difficulty in establishing themselves because of how easily designs are copied, and they point to the protection granted to fashion designs in other areas of the world.

This article is important for my topic because it complicates my argument that pirates actually benefit the original designers. In this article the arguments made against my thesis are clearly stipulated, which I will include in my paper in order to acknowledge the opposing argument. This article is also important because of the way that it analyzes the impending "Design Piracy Prohibition Act" and its implications for future fashion designs.

Brand piracy: faking it can be good

This article's overall argument is that although counterfeiting is a criminal activity, the act of counterfeiting is not always damaging to brands and can actually work to a brand's advantage. The author lists numerous ways in which this is accomplished, such as that it can increase a brand's awareness and desirability in the public's eye. A new way of looking at how counterfeited products help the original is by analyzing who is purchasing the counterfeits. The article argues that the people who buy the fake products are not financially able to buy the original, and that if they were, they would be the first in line to purchase the original. In this way, the increased brand exposure only helps to entice those who are able to buy the original. The counterfeit proves as no competition for the original. Another new piece of argumentation is that it closes off competition. The author notes that high priced branded goods encourage competition at slightly lower prices. Then, the "fake" products are priced as significantly lower prices. Thus, the competition is squeezed out because it is prices out of the top market by the original brand and is unable to compete with the very low prices of counterfeited products.

I chose this article to use for my final project because it clearly explains that way in which counterfeited products eliminate the real competition for the original higher priced products. This adds a new dimension to my argument because previous articles did not deal with the actual competition of the original producers of fashion goods in the way that this author does.

Shopping for Gucci on Canal Street

This article argues against the thinking enforced by the incentive thesis, which argues for strict enforcement of intellectual property rights against piracy, or imitation. According to this theory, if the original producers are not protected, they will lose the incentive to produce new items. The article states that counterfeiting in fact does not always diminish the original producers' innovation incentives. The author gives two reasons to back up his argument. First, the introduction of copies will increase the amount of money that the elite are willing to pay for the original fashion product. In addition, the fact that a product is being copied will increase the desirability of the product to the non-elite consumers. Because of this increase in perceived desirability, such consumers will believe that the status benefits acquired from owning the product make the product worthy of a purchase. Thus, not only will the elite increase their purchasing of the item, but the non-elite consumers will also more often buy the fashion good. Both increase the producer's revenues on sales of the original, despite the counterfeiting.

This article is important for my topic because it argues against the need for protection against counterfeit products. Here, the consumer is not only the one being aided by the pirates, but the producer, too, is gaining more benefits, in the form of an increase in the revenue of sales on a fashion good, with the appearance of counterfeited products. I think it is important to note that the author specifies the counterfeiting is "imperfect," which increases the desirability of the product, both for the elite and non-elite consumers.

Piracy Parodox

This article questions why the fashion industry has failed to secure U.S. copyright protection for its designs, despite the rampant view that piracy is an extremely fatal and potentially destructive threat to the drive to engage in creative pursuits. It tracks the film, music, software, and publishing industries, illustrating that such industries have used this argument for demanding increased legal protection. On the other hand, fashion firms and designers have not. The author gives several reasons for his argument. First, the article states that even original producers are sometimes copiers themselves. Different designers at different times set the trends for a season, and all engage in copying at some point. Also, because of the fashion industry's quick design cycle, a firm's position as either copier or originator is constantly and very swiftly changing. Furthermore, the article notes that the fashion industry is dependent on whether or not the consumer is aware of the newest trends. Thus, widespread copying results in some coherence. There is always a range of new designs produced each season, and the counterfeited products make clear to the consumers was is "trendy" at the time.

This article is important for my overall topic because it gives claim to the argument that lack of protection rights for top designers are actually increasing the sales for these designers' products. Without counterfeiting, the American public will not be aware of what is "trendy," which would result in greater distribution of sales, but less concentrated sales for a particular design. Also, it gives substance to the argument that all designers borrow from one another at some point, for the industry is constantly evolving.

Creativity in Fashion & Digital Culture

This article explores the relationship between creativity and the community at large. The authors use as their example of a creative industry the fashion industry, and shows the ways that creativity should not be considered only as a matter of individual creativity. Instead, it should involve a "conversation" between individuals and larger communities of people and traditions. In this way, fashion takes many of its stylistic elements from the past. The article gives examples of taking elements from the Polynesian islands, urban street corners, stock-car races, and bowling alleys, and then transforming them into new trends. The evolution of fashion is described, beginning with haute couture in Paris, Milan, and New York that was the fountainhead of new styles, to the introduction of women in the work world, which resulted in a waning of the cultural appeal of high fashion. Then, celebrities and movie stars took the place of elite fashion shows, making fashion a more year-round passion than before. Lastly, the article recognizes the problem of "originality," and denotes the lineage of high fashion. It states that fashion shows the ways in which creativity involves building upon the past and sharing inspiration. Because of this, creativity requires freedom, in the authors opinion. The most innovative work comes from the artful recombination of existing work.

This article is important for my topic because it examines the issue at large from a less monetary way of looking at things. The article does not discuss whether or not the designers will be hurt financially, but argues that in order for the creativity of designers to flourish, they must have the freedom to borrow inspiration from the community, others, and the past.

Software piracy: An analysis of protection strategies

This article relates the common belief that software piracy is harmful both to the firms and to the consumers. Because of lower profits, with more people buying the copied products, the firms are financially hurt. Because of higher prices employed since their revenue of sales is cut, the buying customers are hurt if they do not purchase the copied products. The model that this article shows, however, suggests that even with significant piracy, firm profits will raise and prices will be lowered for the consumers. In addition, the article calls piracy an efficient "gift-giving" method. In other words, the product is made available to the public to increase its circulation, but it is only given to those who desire the product. The software does not end up being discarded by someone who has no use for it. The author compares piracy to mailing free copies to all computer owners in an attempt by a firm to make his product more well-known. Not only would many of the copies be discarded by those who do not want them in the first place, but the firm also would have had to pay for the copies to be made then distributed. With piracy, the firm receives free advertisement.

Although this article deals directly with software and piracy, I found that its argument was relevant to my own. Just as pirates serve as free advertisement for the software firms, the pirates in the fashion industry help to circulate news of which are the most current and popular trends. The top designers do not have to pay for copies of their designs to be made known to the public in this way, and they are sure that those concerned about fashion are buying the copies.

Narciso Rodriguez's Testimony

This Congressional testimony came from Narciso Rodriguez, who speaks on behalf of the Council of Fashion Designers of America, a not-for-profit trade association of America's fashion and accessory designers. First, he speaks about how frequently fashion designs are being copied. Then, he relates his journey from being the only son of Cuban immigrants, growing up in Newark, NJ, and finally becoming a fashion designer. This journey, he tells, took training, hard work, and financial capital. Then, he attempts to argue that fashion designs are not utilitarian in nature, but that they are works of art, citing specific designers and giving examples of their work. He then covers certain specifics of the HR 2033. For example, no previous designs would be protected by the bill; thus, past designs can be used for inspiration. Also, he states that the market will not be drained of reasonably priced items. Furthermore, the consumers of pirated products are not to be punished. As a whole, the speaker urges that the protection bill for fashion designs be passed.

This is important for my topic because it complicates my thesis. If, as many of my sources argue, pirates really do benefit the producer of the original, I wonder why so many producers are asking for protection of their products. This testimony gives voice to one of these producers, a man who is responsible for original fashion designs and feels as though pirates and copiers are hurting him financially.

LexisNexisB. Academic: Document

U.S. Copyright Office - Copyright Law: Chapter 12

GRAND UPRIGHT MUSIC LIMITED, Plaintiff, v. WARNER BROTHERS RECORDS, INC.

This fairly short case played a large part in the demise of sampling as a legitimate artform. The case begins "Thou shalt not steal," which places sampling clearly in the category of theft. The case follows the incident in which Biz Markie sampled a portion of "Alone Again (Naturally)" by Gilbert O'Sullivan for his track, titled "Alone again." Biz Markie attempted to acquire the rights to use the samples and upon failing prodeeded to use the sample anyway. The court decided that "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records.This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures."

This case's relevance is fairly obvious - this case was one of those that helped to create the anti-sampling precedent which makes it so difficult for a sampling artist to legally go about creating material. Particularly shocking is the complete absense of any discussion or consideration of Fair Use. The judge in this case simply assesses whether or not Biz Markie acquired a license to sample O'Sullivan's track and whether Markie knew that he needed to get a license. There is no mention of whether or not the use is transformative or of the potential market impact of the new version on the original. I have never heard either song, so I cannot make the evaluation myself. Nevertheless, I find it shocking that the court wouldn't even consider the possibility that it could have been a fair use.

Wex

Collaboratively built legal encyclopedia and dictionary from Cornell's Legal Information Institute.

Natural Gas Act of 1938

Less than the Least

Biddleblog

Journal of International Media and Entertainment Law

Journal of International Media and Entertainment Law
-from Hein Online
Holdings: 2006-

The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook

This book presents a guide to the resource acquisition, legal, and financial necessities of producing an independent film. Every aspect of the planning and execution of the business side of filmmaking is discussed, including hypothetical situations based on the personal experience of the entertainment lawyers who co-authorized the book. The book introduces the roles of producer and lawyer, then outlines the film development process through deal making, financing, hiring, licensing and distribution.

As is pertains to my project, this book provides valuable insight into the warranted concern that filmmakers have had with the 21st century dispute over Internet distribution rights. In the case of Viacom v. Youtube, the exclusive rights per the 1976 Copyright Act for copyright owners to reproduce their works became the basis for allegations against YouTube for a count of direct copyright infringement. The authors of this book advise filmmakers to negotiate with distributors on the basis that they "cannon distribute on the Net until there is adequate 'border protection' to prevent access outside licensed territories" (132).

Erickson, Gunnar, Harris Tulchin, Mark Halloran, and J. Gunnar Erickson. The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook . New York: Schirmer Trade Books, 2005

The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing

The rights to intellectual property and the revenue thereof can make or break an entrepreneurial business. This book covers the gambit of trade secrets that tech-savvy entrepreneurs may need to protect intellectual property in the dynamic arena of copyright law, licensing, patenting, and trademark acquisition. The book makes examples of the infringement issues faced by international business icons such as Microsoft and Amazon.com.

As it pertains to my project, the book also goes over the provisions for statutory versus actual damages in the 1976 Copyright Act (115). These provisions are under review in the Viacom v. YouTube case.

Guide, Gilbert. The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing . New York: The Berkley Publishing Group, 2004

Legal culture in the age of globalization : Latin America and Latin Europe / edited by Lawrence M. Friedman and Rogelio PeL