Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1767419
P. Aufderheide
Judge Pierre Leval’s commentary on the centrality of transformativeness in interpreting fair use decisively changed the way the copyright doctrine was interpreted. He leveraged the forum successful...
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766888
Nina Brown
Copyright law is under constant pressure to evolve. Since the Copyright Act of 1790, which protected only maps, charts and books from unauthorized copying, the law has grown to cover dramatic and audiovisual works, music, choreography, pictures, graphics, sculptures, architecture and more. As emerging technologies have created opportunities for new modes of creative expression and distribution, copyright law has been forced to respond. It may seem curious then, that a law review article written fifty years ago — and primarily about book publishing — could have continued relevance today. This is particularly true considering it was published before the Copyright Act of 1976, which remains the primary basis of copyright law in the United States. Yet “The Uneasy Case for Copyright” continues to have a lasting significance for copyright scholars. It was the first piece Justice Stephen Breyer — then an assistant professor at Harvard Law School working toward tenure — published
{"title":"Breyer, Stephen. The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970)","authors":"Nina Brown","doi":"10.1080/10811680.2020.1766888","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766888","url":null,"abstract":"Copyright law is under constant pressure to evolve. Since the Copyright Act of 1790, which protected only maps, charts and books from unauthorized copying, the law has grown to cover dramatic and audiovisual works, music, choreography, pictures, graphics, sculptures, architecture and more. As emerging technologies have created opportunities for new modes of creative expression and distribution, copyright law has been forced to respond. It may seem curious then, that a law review article written fifty years ago — and primarily about book publishing — could have continued relevance today. This is particularly true considering it was published before the Copyright Act of 1976, which remains the primary basis of copyright law in the United States. Yet “The Uneasy Case for Copyright” continues to have a lasting significance for copyright scholars. It was the first piece Justice Stephen Breyer — then an assistant professor at Harvard Law School working toward tenure — published","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"374 - 377"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766888","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49669110","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766324
Dean C. Smith
Australian citizen Julian Assange is still locked up in Britain’s most notorious prison at the behest of the United States government with no end in sight. He faces no criminal charges in Britain, Australia or Sweden, but awaits a decision on whether he will be extradited to the United States on charges of espionage. He is held in solitary confinement twenty-three hours a day. He cannot contact family or friends and has little contact with lawyers. A special rapporteur for the United Nations has described his treatment as torture. A recent
{"title":"Blanchard, Margaret A. The Institutional Press and Its First Amendment Privileges, 1978 Sup. Ct. Rev. 225","authors":"Dean C. Smith","doi":"10.1080/10811680.2020.1766324","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766324","url":null,"abstract":"Australian citizen Julian Assange is still locked up in Britain’s most notorious prison at the behest of the United States government with no end in sight. He faces no criminal charges in Britain, Australia or Sweden, but awaits a decision on whether he will be extradited to the United States on charges of espionage. He is held in solitary confinement twenty-three hours a day. He cannot contact family or friends and has little contact with lawyers. A special rapporteur for the United Nations has described his treatment as torture. A recent","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"348 - 353"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766324","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48517047","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766876
Philip M. Napoli
In selecting my article, I pivoted at decision time from an article that was influential in my development as a scholar to one that has recently begun to strike me as particularly relevant to ongoing policy debates about social media platforms, despite falling a bit out of favor over the years. With that brief preface, I’ll begin my revisiting of Lee Bollinger’s 1976 article, and attempt to make the case that his defense of the regulatory distinctions that separate print and broadcast media in the United States may be useful in developing a regulatory framework for social media that is distinct from the rest of the Internet. Bollinger starts from the premise that there are both First Amendment benefits and costs associated with government intervention in the media sector. The benefits Bollinger focuses on are derived from the role that the government can play in ensuring “the widespread availability of opportunities for expression within the mass media.” Consequently, the partial regulatory system that emerged (with a regulated broadcast sector and unregulated print sector) is one that “captures the benefits of access regulation yet still minimizes its potential excesses.” Bollinger contends that, in upholding government intervention in the broadcast sector as constitutional, the Supreme Court of the United States “pursued the right path for the wrong reasons.” Specifically, the logic and rationality of this bifurcated regulatory framework did not have to be justified on the basis of any unique characteristics of broadcasting, such as spectrum scarcity (as it has been,
{"title":"Bollinger, L.C. Jr. Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 Mich. L. Rev. 1 (1976)","authors":"Philip M. Napoli","doi":"10.1080/10811680.2020.1766876","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766876","url":null,"abstract":"In selecting my article, I pivoted at decision time from an article that was influential in my development as a scholar to one that has recently begun to strike me as particularly relevant to ongoing policy debates about social media platforms, despite falling a bit out of favor over the years. With that brief preface, I’ll begin my revisiting of Lee Bollinger’s 1976 article, and attempt to make the case that his defense of the regulatory distinctions that separate print and broadcast media in the United States may be useful in developing a regulatory framework for social media that is distinct from the rest of the Internet. Bollinger starts from the premise that there are both First Amendment benefits and costs associated with government intervention in the media sector. The benefits Bollinger focuses on are derived from the role that the government can play in ensuring “the widespread availability of opportunities for expression within the mass media.” Consequently, the partial regulatory system that emerged (with a regulated broadcast sector and unregulated print sector) is one that “captures the benefits of access regulation yet still minimizes its potential excesses.” Bollinger contends that, in upholding government intervention in the broadcast sector as constitutional, the Supreme Court of the United States “pursued the right path for the wrong reasons.” Specifically, the logic and rationality of this bifurcated regulatory framework did not have to be justified on the basis of any unique characteristics of broadcasting, such as spectrum scarcity (as it has been,","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"366 - 369"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766876","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43148076","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1765638
J. Kirtley
{"title":"Anderson, David A. Freedom of the Press, 80 Texas L. Rev. 429 (2002)","authors":"J. Kirtley","doi":"10.1080/10811680.2020.1765638","DOIUrl":"https://doi.org/10.1080/10811680.2020.1765638","url":null,"abstract":"","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"327 - 330"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1765638","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42227302","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766870
Samuel A. Terilli
Professor Vincent Blasi in The Checking Value in First Amendment Theory demonstrated not only his insightful knowledge of the Constitution, history and law, he also revealed his keen understanding of the power of rhetoric: “To become a vital part of the living Constitution, a value must have more than a strong historical and analytical foundation. The value must also succeed at the level of rhetoric; it must have its great quote.” Blasi identified that great quote for the checking value as he concluded the article with the stirring words of Justice Hugo Black’s opinion in New York Times v. United States, more commonly known as the Pentagon Papers case:
Vincent Blasi教授在《第一修正案理论中的价值制约》一书中不仅展示了他对宪法、历史和法律的深刻认识，他还透露了他对修辞力量的敏锐理解：“要成为现行宪法的重要组成部分，一种价值观必须有强大的历史和分析基础。这种价值观还必须在修辞层面上取得成功；它必须有伟大的引用。”。“Blasi在文章结尾引用了Hugo Black大法官在《纽约时报》诉美国案（通常称为五角大楼文件案）中的观点，这句话很有说服力：
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Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766877
E. Ugland
To the extent that Judge Robert Bork lives on in the American consciousness, it is too often as a caricature. Many on the right lionize Bork as an ideological visionary, a cultural warrior, an arch...
{"title":"Bork, Robert H. Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1 (1971)","authors":"E. Ugland","doi":"10.1080/10811680.2020.1766877","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766877","url":null,"abstract":"To the extent that Judge Robert Bork lives on in the American consciousness, it is too often as a caricature. Many on the right lionize Bork as an ideological visionary, a cultural warrior, an arch...","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"370 - 373"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766877","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42905515","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766869
Gregory C. Lisby, Timothy Barouch
In Branzburg v. Hayes, 1 the Supreme Court of the United States determined that the First Amendment to the Constitution 2 does not protect privileged relationships between journalists and their sou...
{"title":"Blasi, Vince. The Newsman’s Privilege: An Empirical Study, 70 Mich. L. Rev. 229 (1971)","authors":"Gregory C. Lisby, Timothy Barouch","doi":"10.1080/10811680.2020.1766869","DOIUrl":"https://doi.org/10.1080/10811680.2020.1766869","url":null,"abstract":"In Branzburg v. Hayes, 1 the Supreme Court of the United States determined that the First Amendment to the Constitution 2 does not protect privileged relationships between journalists and their sou...","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"354 - 361"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1766869","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48502302","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1765641
Jared Schroeder
{"title":"Anderson, David A. The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983)","authors":"Jared Schroeder","doi":"10.1080/10811680.2020.1765641","DOIUrl":"https://doi.org/10.1080/10811680.2020.1765641","url":null,"abstract":"","PeriodicalId":42622,"journal":{"name":"Communication Law and Policy","volume":"25 1","pages":"331 - 335"},"PeriodicalIF":0.3,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/10811680.2020.1765641","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47481814","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}
Pub Date : 2020-07-02DOI: 10.1080/10811680.2020.1766896
A. Kenyon
One of Thomas Emerson’s lasting contributions to understanding free speech is his emphasis on the system of freedom of expression, as his well-known book is titled. Free speech needs broad analysis that pays attention to supports for, as well as limitations of, speech; the freedom encompasses practices, principles and institutions as well as rights; and it is the structures underlying speech that should concern legal scholarship. The point is frequently recognized — scholarly references to a system of free speech following Emerson are common — but the positive or affirmative dimensions of Emerson’s approach are not always brought out. (The literature uses many terms for these aspects of the freedom; here I use both “affirmative,” after Emerson, and “positive,” which has currency across relevant disciplines.) While positive dimensions are evident in much of his work, they are encapsulated in “The Affirmative Side of the First Amendment.” The article is now somewhat poignant, for at least two reasons. The first is the confidence it displays in U.S. constitutional law developing and better supporting the system of public speech. While Emerson recognizes that U.S. affirmative doctrine is relatively inchoate, he sees the courts as moving toward clarifying and strengthening it: “[T]he courts are on a one-way road: to the extent that they are willing to act, the result can only be an expansion, not a restriction, of the system of freedom of expression.” In many ways, U.S. courts have not acted since then and such development has not (yet) come to pass, even as the environment in which public speech occurs has transformed. Second, the article
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