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| Jason Mazzone |
Copyfraud and Other Abuses of Intellectual Property Law (2011)
Abstract
Intellectual property law in the United States does not work well and it needs to be reformed—but not for the reasons given by most critics. The issue is not that intellectual property rights are too easily obtained, too broad in scope, and too long in duration. Rather, the primary problem is overreaching by publishers, producers, artists, and others who abuse intellectual property law by claiming stronger rights than the law actually gives them. From copyfraud—like phony copyright notices attached to the U.S. Constitution—to lawsuits designed to prevent people from poking fun at Barbie, from controversies over digital sampling in hip-hop to Major League Baseball's ubiquitous restriction on sharing any "accounts and descriptions of this game," overreaching claims of intellectual property rights are everywhere.
While there are many other books on intellectual property, this is the first to examine overreaching as a distinct problem and to show how to solve it. Professor Mazzone makes a series of timely proposals by which government, organizations, and ordinary people can stand up to creators and content providers when they seek to grab more than the law gives them.
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| Nelson Tebbe |
Nonbelievers, 86 Va. L. Rev. 0 (2011)
Abstract
How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal.
Professor Tebbe argues that no wholesale response is adequate. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method he applies is polyvalent—it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine.
Two arguments push against this piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, Tebbe contends that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines—including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding—he proposes protecting nonbelievers only in some of these areas. He also suggests that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.
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| Susan Herman |
Taking Liberties: The War on Terror and the Erosion of American Democracy (Oxford University Press 2011)
Abstract
In Taking Liberties, Professor Susan Herman argues that the government’s antiterrorist tactics (such as the Patriot Act) have the ravaged the lives of countless Americans.
From the Oregon lawyer falsely suspected of involvement with terrorism in Spain to the former University of Idaho football player arrested on the pretext that he was needed as a “material witness” (though he was never called to testify), this book is filled with unsettling stories of ordinary people caught in the government’s dragnet. She argues that these are not just isolated mistakes in an otherwise sound program, but are rather demonstrations of what can happen when our constitutional protections against government abuse are abandoned. Whether it’s running a chat room, contributing to a charity, or even urging a terrorist group to forego its violent tactics, activities that should be protected by the First Amendment, can now lead to prosecution.
Blacklists and watchlists keep people grounded at airports and strand American citizens abroad, yet these lists are rife with errors that cannot be challenged. National Security letters allow the FBI to demand records about innocent people from libraries, financial institutions, and Internet service providers without ever going to court. Government databanks now brim with information about every aspect of citizens’ private lives, while efforts to mount legal challenges to these measures have been stymied.
Professor Herman argues that democracy has been undermined and that the courts and Congress should fully examine whether these laws and policies are constitutional, effective, or even counterproductive.