In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that "[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.
{"title":"Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003","authors":"Colin Miller","doi":"10.2139/SSRN.1101509","DOIUrl":"https://doi.org/10.2139/SSRN.1101509","url":null,"abstract":"In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that \"[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.\" This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"25 1","pages":"168"},"PeriodicalIF":0.0,"publicationDate":"2008-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78766893","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}
Courts and commentators have misunderstood, and consequently underestimated, the recent Supreme Court case of Dastar Corp. v. Twentieth Century Fox Film Corp. Voicing concern that once a copyrighted work has fallen into the public domain it should stay there, the Dastar Court held that authors of such works cannot use federal unfair competition law to force copiers to give them credit. The Court guaranteed that result by stipulating that "origin" in § 43(a)(1)(A) of the Lanham Act does not refer to the source of an idea, concept, or communication. That holding barred a reverse passing off claim brought under § 43(a) against Dastar Corp. for its having sold videotapes without crediting the plaintiffs as the origin of formerly copyrighted material included on those tapes. Because lower courts have focused on the legal means employed by the Dastar Court, however, rather than its evident policy goals, they have extended it to facts materially different from those at issue in the case. Courts have applied the case to bar Lanham Act claims against the unauthorized use of copyrighted, uncopyrightable, and trade secret-protected goods. Courts have stretched it to cover services, too. Most significantly, in a move that effectively doubles Dastar’s reach, courts have even begun applying the case to bar unfair competition claims brought under state law. Although they don’t apparently realize it, courts relying on Dastar to preempt state unfair competition claims have signaled a revolution in copyright law. Ever since the enactment of Copyright Act § 301(a) nearly thirty years ago, the express terms of that section have monopolized copyright preemption doctrine. But § 301(a) cannot explain or justify Dastar’s evident power to preempt state unfair competition claims. Intentionally or not, the Dastar Court has revived the long-moribund and somewhat ill-defined doctrine of implied copyright preemption. Here, even more than with regard to unfair competition, Dastar’s consequences look likely to far outreach the Court’s original, modest aims. We have surely misunderestimated Dastar’s impact on unfair competition law. With regard to copyright law, however, we may still have time to understand and estimate Dastar’s ultimate ramifications.
{"title":"Misunderestimating Dastar: How the Supreme Court Unwittingly Revolutionized Copyright Preemption","authors":"T. Bell","doi":"10.2139/SSRN.2292659","DOIUrl":"https://doi.org/10.2139/SSRN.2292659","url":null,"abstract":"Courts and commentators have misunderstood, and consequently underestimated, the recent Supreme Court case of Dastar Corp. v. Twentieth Century Fox Film Corp. Voicing concern that once a copyrighted work has fallen into the public domain it should stay there, the Dastar Court held that authors of such works cannot use federal unfair competition law to force copiers to give them credit. The Court guaranteed that result by stipulating that \"origin\" in § 43(a)(1)(A) of the Lanham Act does not refer to the source of an idea, concept, or communication. That holding barred a reverse passing off claim brought under § 43(a) against Dastar Corp. for its having sold videotapes without crediting the plaintiffs as the origin of formerly copyrighted material included on those tapes. Because lower courts have focused on the legal means employed by the Dastar Court, however, rather than its evident policy goals, they have extended it to facts materially different from those at issue in the case. Courts have applied the case to bar Lanham Act claims against the unauthorized use of copyrighted, uncopyrightable, and trade secret-protected goods. Courts have stretched it to cover services, too. Most significantly, in a move that effectively doubles Dastar’s reach, courts have even begun applying the case to bar unfair competition claims brought under state law. Although they don’t apparently realize it, courts relying on Dastar to preempt state unfair competition claims have signaled a revolution in copyright law. Ever since the enactment of Copyright Act § 301(a) nearly thirty years ago, the express terms of that section have monopolized copyright preemption doctrine. But § 301(a) cannot explain or justify Dastar’s evident power to preempt state unfair competition claims. Intentionally or not, the Dastar Court has revived the long-moribund and somewhat ill-defined doctrine of implied copyright preemption. Here, even more than with regard to unfair competition, Dastar’s consequences look likely to far outreach the Court’s original, modest aims. We have surely misunderestimated Dastar’s impact on unfair competition law. With regard to copyright law, however, we may still have time to understand and estimate Dastar’s ultimate ramifications.","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"123 1","pages":"206"},"PeriodicalIF":0.0,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79487526","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":"The human rights of persons with mental disabilities: a global perspective on the application of human rights principles to mental health.","authors":"Lawrence O Gostin, Lance Gable","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"63 1","pages":"20-121"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24833869","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":"The futility of futility?: on life, death, and reasoned public policy.","authors":"M Strasser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"57 2","pages":"505-57"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22141994","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 : 1998-01-01DOI: 10.4324/9781315179025-47
J. H. Sommer
{"title":"Where is a Bank Account","authors":"J. H. Sommer","doi":"10.4324/9781315179025-47","DOIUrl":"https://doi.org/10.4324/9781315179025-47","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"10 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75456244","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":"Paying for Suffering: The Problem of Human Experimentation","authors":"L. Palmer","doi":"10.31228/osf.io/pjnuv","DOIUrl":"https://doi.org/10.31228/osf.io/pjnuv","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"86 1","pages":"604"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76224862","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":"Domestic Violence and the Per Se Standard of Outrage","authors":"M. Weiner","doi":"10.2139/ssrn.3441319","DOIUrl":"https://doi.org/10.2139/ssrn.3441319","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"29 1","pages":"183"},"PeriodicalIF":0.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85214147","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":"The right to refuse life-sustaining medical treatment: national trend and recent changes in Maryland law.","authors":"K E Goldmeier","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"53 4","pages":"1306-43"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22257420","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":"The new Uniform Health Care Decisions Act: paving a health care decisions superhighway?","authors":"C P Sabatino","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81936,"journal":{"name":"Maryland law review (Baltimore, Md. : 1936)","volume":"53 4","pages":"1238-54"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22257419","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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