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Volume 7 - Fall 2006
In Facetiis Verititas: How Improvisational Comedy Can Help Trial Lawyers Get Some Chops
Steven Lubet & Thomas Hankinson
Why did the lawyer cross the road? To get to the
improv theater. Lubet and Hankinson explore how
principles of improvisational comedy could inform
the practice of trial lawyering. Improvisers have
developed tools that help them draw an audience into
a constructed stage reality. Trial lawyers have a
similar goal: drawing a jury into a reconstructed
version of events. While lawyering is (usually) no
joke, many useful parallels exist between trial
advocacy and improv comedy.
"Hail to the Potamac
Drainage Basin Indigenous Persons": Has Political
Correctness Gone Too Far?
Marvin L. Longabaugh
Does the federal government have an obligation to
restrict the NFL’s Washington franchise’s use of the
moniker “Redskins”? This article discusses the
obligation that the U.S. Supreme Court has placed on
the federal government with respect to Native
Americans due to tribes’ unique status as “domestic
dependent nations”. Further, the article describes
two approaches that have been employed with varying
degrees of success in abolishing the nickname. Free
speech concerns are also explored. Finally, the
article briefly discusses some proposed methods that
the government could employ to “encourage” the
Redskins and the NFL to change the nickname.
Conflicting Beats:
Proposing the Adoption of an Additional Obligation
Within the WTO TRIPS Agreement Under Article 14 to
Recognize Digital Sampling and Digital Sampling
INfringement
Tara E. Castillo
Existing domestic and international copyright
regulations fail to address new developments in
music technology. The regulation of digital sampling
of sound recordings exemplifies this shortcoming.
The negative impact of digital sampling upon the
international music industry continues to grow in
light of current regulation deficiencies in
international intellectual property agreements.
Digital sampling directly affects many actors within
the international music industry; sampling
contributes an average of $45 billion U.S. to the
international service industry. A poor international
regime of copyright enforcement leaves countries,
such as the United States and the United Kingdom,
devoid of applicable standards to incorporate into
their domestic copyright laws and forces domestic
courts to generate law on this timely and dynamic
issue.
This comment suggests that despite the broad
overarching framework of the World Trade
Organization Agreement on Trade-Related Aspects of
Intellectual Property Rights (“TRIPS”), new
developments in technology surpass this legal
instrument’s original scope. This results in the
implementation of weak national legislation on
copyright enforcement and ultimately results in
varying degrees of copyright protection. More
importantly, poor regulation of digital sampling
goes against TRIPS’s primary intent to harmonize
international intellectual property law. This
harmonization would help to ensure that the new
forms of infringement are addressed in the domestic
copyright laws of member states.
The resolution of this pressing problem rests upon
TRIPS’s members. These members must create an
additional obligation that provides member states
with clear, definitive standards as to what
constitutes digital sampling and digital sampling
infringement. Failure to provide this needed
regulation will create a lack of uniformity of
interpretation among members. An example of this
inconsistency occurred when the United States and
the United Kingdom implemented conflicting levels of
enforcement in the absence of firm international
guidance.
Attempting to Herd Spam
and the Effects of White Buffalo VEntures, LLC. v.
University of Texas at Austin
Carl M. Szabo
Technology is changing the world at a frantic pace.
Congress, however, has lagged far behind technology
by enacting anachronistic legislation addressing the
growing problems created by these new technologies.
This is particularly reflected by the CAN-SPAM Act,
Congress’s ineffective attempt to curb the
ever-mounting dilemma of spam email.
The CAN-SPAM Act attempts to regulate spam by using
a crime and punishment model. If a company violates
the Act it faces a fine. Unfortunately, the Act
fails because of Congress’s shortsightedness in not
recognizing the difficulties in enforcement due to
spam’s underground nature and international
component.
One thing the Act does correctly is to centralize
internet spam regulation at a federal level. This
ensures consistency across state lines and
eliminates the possibility of lost emails due to
differing state spam policies. Despite the
importance of this section of the Act, the 5th
Circuit, in White Buffalo Ventures, LLC v.
University of Texas, chose to void it – albeit
through a misapplication of the preemption doctrine.
A solution to both the court’s misapplication and
the overall failure of the Act would be to convert
all email to a levy-based system. By paying a
nominal fee for all email sent, consumers would not
be encumbered by unwanted email, and the federal
government could increase tax revenue through
efficient, market-based regulation.
Sharing Television Through
the Internet: Why the Courts Should Find Fair Use
and Why It May Be a Moot Point
Sheila Zoe Lofgren
Collins
Television recording has greatly advanced since the
landmark Supreme Court decision in Betamax. In 1984,
when Betamax was decided, viewers could use a
Betamax VCR to record their favorite programs. The
recording quality was adequate and it significantly
increased the convenience of watching television.
Since then, not only has technology related to
broadcasting television advanced, allowing users to
see improved quality through high-definition
television sets and signals, but the Internet came
into being. It became possible to record a
television program through a computer, using an
antenna and some software. And it became possible to
compress those recordings and upload them to the
Internet, where other viewers, sometimes halfway
around the world, could download and watch them.
These advances reflect a change in technology, but,
as yet, there has been no corresponding change in
the law. The Supreme Court has not ruled on the
issue television recording since Betamax, which
leads some to ask whether downloading and uploading
television programs is legal at all.
This Note addresses the legality of such downloading
and uploading, through a careful examination of the
history of video recording, fair use in relation to
television programming, the Supreme Court’s decision
on music downloading in Grokster, and the
application of the Digital Millennium Copyright Act.
After assessing the legal questions relating to
television programming, this Note argues that
downloading and uploading should be considered fair
use by the Supreme Court, but that advances in
commercial television file-sharing sites will likely
make the issue irrelevant when viewers turn to
file-sharing sites where television programming is
easily available and inexpensive.
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