I am a loyal fan of the Jeopardy television game show. It is a daily ritual of mine. I am one of those people who sometimes shouts out the answers at the television, to everyone's annoyance. I also am a law professor, however, who has been teaching constitutional law for four decades. Imagine my professor's dismay and viewer's ambivalence when the two-day championship match ended in a Final Jeopardy category called “Constitutional Amendment Math” that included a mistake of substantive constitutional law. This essay corrects that error dehors the record.
{"title":"Dehors the Record: A Correction of a Final Jeopardy Question","authors":"T. Baker","doi":"10.2139/ssrn.3606245","DOIUrl":"https://doi.org/10.2139/ssrn.3606245","url":null,"abstract":"I am a loyal fan of the Jeopardy television game show. It is a daily ritual of mine. I am one of those people who sometimes shouts out the answers at the television, to everyone's annoyance. I also am a law professor, however, who has been teaching constitutional law for four decades. Imagine my professor's dismay and viewer's ambivalence when the two-day championship match ended in a Final Jeopardy category called “Constitutional Amendment Math” that included a mistake of substantive constitutional law. This essay corrects that error dehors the record.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"118 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125017494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article evaluates the decision by the UK Supreme Court in One Step (Support) Ltd. v. Morris-Garner (2018), in which the Court laid down the circumstances in which damages for breach of contract may be measured by reference to the amount of the fee that the innocent party could have demanded from the breaching party for a release of the latter from the relevant obligation ("negotiating damages").
{"title":"Negotiating Damages in English Contract Law","authors":"Sirko Harder","doi":"10.25148/lawrev.14.1.7","DOIUrl":"https://doi.org/10.25148/lawrev.14.1.7","url":null,"abstract":"This article evaluates the decision by the UK Supreme Court in One Step (Support) Ltd. v. Morris-Garner (2018), \u0000in which the Court laid down the circumstances in which damages for breach of contract may be measured by reference to the amount of the fee that the innocent party could have demanded from the breaching party for a release of the latter from the relevant obligation (\"negotiating damages\").","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125149642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The advent of three-dimensional (3D) printing presents unprecedented challenges to the regulation of digital speech. Whereas previously, ideas constructed solely of computer code remained reliably in cyberspace, 3D printing allows for near unlimited physical realization of previously electronic concepts through relatively rapid prototyping. No controversy better exemplifies these challenges than that of 3D printed firearms. Those promoting the availability of 3D printed firearms have waged a years-long legal battle for the right to participate in the marketplace of ideas, and, at every turn, have raised First Amendment challenges to the regulations preventing them from doing so. However, even decades after the near ubiquitous adoption of the personal computer and internet, the Supreme Court still has not addressed the status of computer code under the First status by viewing lower court precedent through the lens of a detailed understanding of computer science, and by providing originalist support through a historical analog. Then, this comment applies the accurate First Amendment status of computer code to address the 3D printed gun controversy.
{"title":"Cracking the Code: Computer Code as Pure Speech and Its First Amendment Implications on the 3D Printed Firearms Controversy","authors":"Brian E. Heckmann","doi":"10.25148/lawrev.14.2.13","DOIUrl":"https://doi.org/10.25148/lawrev.14.2.13","url":null,"abstract":"The advent of three-dimensional (3D) printing presents unprecedented challenges to the regulation of digital speech. Whereas previously, ideas constructed solely of computer code remained reliably in cyberspace, 3D printing allows for near unlimited physical realization of previously electronic concepts through relatively rapid prototyping. No controversy better exemplifies these challenges than that of 3D printed firearms. Those promoting the availability of 3D printed firearms have waged a years-long legal battle for the right to participate in the marketplace of ideas, and, at every turn, have raised First Amendment challenges to the regulations preventing them from doing so. However, even decades after the near ubiquitous adoption of the personal computer and internet, the Supreme Court still has not addressed the status of computer code under the First status by viewing lower court precedent through the lens of a detailed understanding of computer science, and by providing originalist support through a historical analog. Then, this comment applies the accurate First Amendment status of computer code to address the 3D printed gun controversy.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133913870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Nationwide Injunctions","authors":"Russell L. Weaver","doi":"10.25148/lawrev.14.1.10","DOIUrl":"https://doi.org/10.25148/lawrev.14.1.10","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122810340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Algorithmic copyright enforcement – the use of automated filtering tools to detect infringing content before it appears on the internet – has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content ("UGC") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads. To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.
{"title":"Institutionalized Algorithmic Enforcement—The Pros and Cons of the EU Approach to UGC Platform Liability","authors":"Martin Senftleben","doi":"10.25148/LAWREV.14.2.11","DOIUrl":"https://doi.org/10.25148/LAWREV.14.2.11","url":null,"abstract":"Algorithmic copyright enforcement – the use of automated filtering tools to detect infringing content before it appears on the internet – has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content (\"UGC\") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads. To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"187 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132525129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction: Intelligent Entertainment: Shaping Policies on The Algorithmic Generation and Regulation of Creative Works","authors":"Hannibal Travis","doi":"10.25148/lawrev.14.2.4","DOIUrl":"https://doi.org/10.25148/lawrev.14.2.4","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128307622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars have long debated whether the outputs of AI systems should be subject to copyright. On the one hand, the automated nature of many AI systems may make copyright unnecessary as an incentive for the creation of those AI systems’ outputs, in which case society would be better off withholding copyright protections from them. On the other hand, those outputs often exhibit sufficient creativity to merit copyright protection, and without copyright, parties that use AI systems to create such outputs may lack the necessary incentives to do so. In this Essay, prepared as part of the Florida International University Law Review's symposium on intelligent entertainment, I argue that copyright law’s independent creation defense, as well as the widespread availability of AI systems for helping authors in their creative efforts, help address some of the concerns embedded in these debates. Historically, the independent creation defense has rarely applied, simply because independent creation of similar expression is highly unusual. But as this Essay explores, AI increases the likelihood of multiple parties creating similar expression independently, meaning that the defense can help defuse worries that applying copyright to AI outputs will result in a copyright quagmire. Furthermore, the availability of AI systems for assisting authors in their creative efforts means that authors have tools for more readily creating unique works that avoid many of the remaining copyright landmines. Other copyright issues linger, however, and the last part of this Essay examines some of these concerns in brief. In particular, parties may wish to use specific AI outputs in their own creative efforts, and neither the independent creation defense nor the availability of AI tools for creating something unique help address this problem. Copyright law’s fair use defense may, however, and the Essay concludes by briefly examining how.
{"title":"Independent Creation in a World of AI","authors":"C. Asay","doi":"10.25148/lawrev.14.2.5","DOIUrl":"https://doi.org/10.25148/lawrev.14.2.5","url":null,"abstract":"Scholars have long debated whether the outputs of AI systems should be subject to copyright. On the one hand, the automated nature of many AI systems may make copyright unnecessary as an incentive for the creation of those AI systems’ outputs, in which case society would be better off withholding copyright protections from them. On the other hand, those outputs often exhibit sufficient creativity to merit copyright protection, and without copyright, parties that use AI systems to create such outputs may lack the necessary incentives to do so. \u0000 \u0000In this Essay, prepared as part of the Florida International University Law Review's symposium on intelligent entertainment, I argue that copyright law’s independent creation defense, as well as the widespread availability of AI systems for helping authors in their creative efforts, help address some of the concerns embedded in these debates. Historically, the independent creation defense has rarely applied, simply because independent creation of similar expression is highly unusual. But as this Essay explores, AI increases the likelihood of multiple parties creating similar expression independently, meaning that the defense can help defuse worries that applying copyright to AI outputs will result in a copyright quagmire. Furthermore, the availability of AI systems for assisting authors in their creative efforts means that authors have tools for more readily creating unique works that avoid many of the remaining copyright landmines. \u0000 \u0000Other copyright issues linger, however, and the last part of this Essay examines some of these concerns in brief. In particular, parties may wish to use specific AI outputs in their own creative efforts, and neither the independent creation defense nor the availability of AI tools for creating something unique help address this problem. Copyright law’s fair use defense may, however, and the Essay concludes by briefly examining how.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131888671","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t make cakes condemning homosexuality, and the relationship between that refusal and the commission’s deeming Jack Phillips in violation of state law by declining to make a custom cake for a same-sex wedding celebration.
{"title":"Barnette and Masterpiece Cakeshop: Some Unanswered Questions","authors":"Abner S. Greene","doi":"10.25148/LAWREV.13.4.7","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.7","url":null,"abstract":"This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t make cakes condemning homosexuality, and the relationship between that refusal and the commission’s deeming Jack Phillips in violation of state law by declining to make a custom cake for a same-sex wedding celebration.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128521802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Functionalism and the Infield Fly Rule","authors":"M. Graber","doi":"10.25148/LAWREV.13.5.6","DOIUrl":"https://doi.org/10.25148/LAWREV.13.5.6","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116399238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"More Transparency, Please","authors":"Kyle P. McEntee","doi":"10.25148/LAWREV.13.3.7","DOIUrl":"https://doi.org/10.25148/LAWREV.13.3.7","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121450404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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