Holistic Claim Construction

Abstract Jurisprudence in the area of defining patent scope is opaque and inconsistent. District courts and litigants cannot be certain of the bounds of the exclusive territory covered by a patent—defined by the patent’s claims—until the Court of Appeals for the Federal Circuit—the single patent appellate court in the nation—says what it is in an appeal after final judgement. The appellate court appears to simply redo the analysis of the district courts, yet often inexplicably reaches a different conclusion based… Read More

Nerds v. Nintendo: Video Game Decompilations Versus Rights-Holder Interests

Abstract Video game “decompilations”—a potentially technically inaccurate term referring to fan efforts to entirely reprogram video games based on reverse engineering those games—present an interesting case study for evaluating the scope of video game copyrightability, fair use, and public expectations about content availability. Decompilations usually comprise entirely new code and do not comprise any assets of the original video game, suggesting that the decompilations, if viewed as mere code, do not apparently infringe any video game copyrights. That said, decompilations… Read More

Adjudicating Algorithms: Accountability in Regulation of Surveillance, Privacy, and Discrimination

Introduction The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are… Read More

Against Gap-Filling

Legal scholars delight in gap-filling. They frequently claim that their works have identified a gap in the literature and to have filled (or begun filling) that gap. However, all too often, these same papers fail to explain why the gap needed to be filled at all. Indeed, despite a robust tradition of meta-scholarship, the legal literature is largely devoid of a theory of academic gap-filling. This essay fills that gap, arguing that gap-filling for the sake of gap-filling is an error for three interconnected reasons. First, gaps might exist for a good reason. Second, concern with gap-filling is often a misguided attempt to address other issues that are tangential to legal scholarship. Finally, focusing on gaps is incredibly limiting. Instead, this essay suggests that legal scholars should focus on exploring questions that interest them, regardless of whether that exploration leads them to a “gap.”

Revisiting the Disability Integration Presumption

The Individuals with Disabilities Education Act’s (IDEA) predecessor established a legal presumption in favor of educating all students with disabilities in an integrated, “least restrictive environment” (LRE) to the “maximum extent appropriate.” Yet, the precise meaning of this statutory presumption remains unsettled, which has led to mounting special education disputes in federal court. This Article addresses a less developed area of IDEA litigation: namely, how federal courts should interpret this statutory presumption in light of the disproportionate placement of students with the most significant cognitive disabilities in separate settings.

Digital Purgatory and the Rights of the Dead: Protecting Against Digital Disinterment in the Age of Artificial Intelligence

In the age of synthetic media, software such as OpenAI’s DALL-E or ChatGPT can generate novel pieces of art and increase the overall supply for society. Deepfakes may allow our favorite performers and personalities to entertain us forever. Though this may be wonderful in some regards, there are also downsides. This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media. This Note will then propose key features of a federal postmortem right of publicity statute that would realign federal protection with the interests the right was initially intended to protect—namely, the right to privacy and control over the use(s) of one’s likeness.

How to Alleviate the Repercussions of Wrongful Convictions: Holistically Righting the Wrongs of Inadequate Compensation Statutes

For over two centuries, the United States has been knowingly plagued with innocent people being wrongfully convicted of crimes. As of December 2022, over 3,000 individuals have been exonerated of their wrongful convictions after having lost a combined total of almost 30,000 years of freedom. Part I of this Note will first address the habitually present causes of wrongful convictions. Part II will then highlight the typical issues present within existing wrongful conviction compensation statutes. Part III then proposes that adjudication processes must be streamlined by utilizing the best aspects of both state claims boards and the court system, eligibility requirements must be less restrictive and more inclusive, and awards must be provided to exonerees through more holistic, individualized arrangements.

A No Man’s Land of Fair Use: Marano v. The Metropolitan Museum of Art

The Metropolitan Museum of Art (Met) reproduced a copyrighted photograph by the professional photographer Lawrence Marano on its website without his permission. The District Court for the Southern District of New York decided Marano v. Metropolitan Museum of Art in July 2020, holding that the reproduction of the photo was fair use rather than copyright infringement. Marano is the first case to consider whether a museum’s reproduction of a work in a publication is fair use. Part I of this Case Note provides a background on fair use, categories of fair use cases, and significant cases decided contemporaneously with Marano. Part II outlines Marano’s facts, procedural history, and holdings. Part III argues that the court disputably found the Met’s use transformative, noncommercial, reasonable, and not harmful to Marano’s market. Part III also asserts that Marano is distinguishable from the other historical context cases and considers the impact of Warhol and Google on factors one and two in future cases like Marano.

Beyond Offense: Why the First Amendment Does Not Protect Deliberate Misgendering

With increasing frequency, conservative opponents of antidiscrimination laws that prohibit deliberate misgendering use the First Amendment to challenge these laws, arguing that they encroach on a constitutionally protected right to free speech. In particular, the asserted free speech liberty is the right to deliberately misgender others as an expression of an (offensive) viewpoint. The Court’s current approach to free speech claims not only creates a pathway for these claimants, but also arms them with an effective sword, as invocation of the First Amendment’s free speech protections triggers heightened judicial scrutiny. This Note uses the recent case Taking Offense v. State of California to illustrate what happens when the prevailing approaches to free speech jurisprudence and antidiscrimination laws collide.

Copyright’s Law of Dissemination

This Article argues that copyright has a particular set of policy concerns related to the dissemination of creative works for the public’s consumption, enjoyment, and personal use. In particular, four interrelated goals are reflected to varying degrees in copyright’s many dissemination-regulating institutions: (1) facilitating exchanges in transaction cost-heavy contexts, (2) enabling more efficient and expansive public access to existing creative works, (3) reducing barriers to entry for innovative forms of distribution in concentrated markets, and (4) furthering distributive justice priorities.
Identifying these four goals and examining how they permeate the copyright system is a necessary first step in remedying many of the problems currently faced by copyright’s law of dissemination, particularly its increasingly outmoded, piecemeal, and inconsistent regulatory design. By diagnosing these challenges and their potential roots, this Article provides grounding for assessing how copyright law can be reimagined to fit a world of almost entirely digital dissemination.