Newspaper Revitalization Act 2009.<http://cardin.senate.gov/pdfs/newspaperbill.pdf> March 24, 2009.

If it pases, this proposed legislation by Senator Cardin will allow certain newspapers with 'educational' value to restructure as non-profits and benefit from tax-exemption under IRS code 501(a).

This proposal is one of many ideas that are currently on the table to 'rescue' the faltering newspaper industry. According to many sources, this legislation will not suffice to solve the problems of journalism (for a full critique see "Saving the News"), but it may provide a new avenue for some newspapers. Furthermore, the bill may suffice to protect enough investigative journalism to protect democracy, while other solutions turn to helping media turn a profit and meet the needs of the public.

Thesis: Because first amendment protections and laws protecting Internet Service Providers impede a great deal of government regulation, the best way to ensure minors are protected from improper content online is to empower individuals, companies and organizations to take the intiative to self-regulate.

Citation: "Children's Internet Protection Act." 2000. Internet Free Expression Alliance. 4 April 2009. <http://ifea.net/cipa.pdf>.

 

The Children’s Internet Protection Act (CIPA) is a law passed by Congress that encourages filtering the Internet to protect minors by giving schools and libraries financial incentives to do so.  Throughout the text, the legislation defines terminology used in the remainder of the document.  It states that schools and libraries cannot use federal funds to buy computers or aid Internet access unless they have policies and softwares in place designed to filter visuals on the Internet that contain obscenity, child pornography and material harmful to minors.  There is also discussion of how the government plans to implement the law in schools and libraries and how groups can waive this requirement.  An exception to the filtering rule is also provided; schools can disable filtering softwares for research purposes.  The law concludes by discussing how schools and libraries need to document and enforce the policies outlined in CIPA, and what the legal ramifications for the schools and libraries are if they do not enforce the policies.

 

            CIPA is relevant to my paper because it demonstrates how the government can constitutionally play a role in protecting children online and it shows governmental support for self-regulation. CIPA, unlike parts of the CDA and COPA, has been ruled to be Constitutional and not in violation of the first amendment, because Congress is providing incentives for schools and libraries to regulate content on their own computers, rather than requiring regulation. Congress seemed to take the Supreme Court’s ruling concerning the CDA into consideration when drafting CIPA, because the law allows filtering of obscene and pornographic material but not indecent material.  Encouraging communities to enact regulations protecting children themselves is also a better strategy than governmental regulation because it allows communities to better apply their own standards regarding what is obscene and harmful to minors.  The government’s established definitions of obscenity and harm to minors involve applying community standards, so this law does a good job of following past legislative precedents, giving the law even greater validity.

Citation: Ashcroft v. ACLU 542 U.S. 656. 2004. Cornell Law School. 4 April 2009.  <http://www.law.cornell.edu/supct/html/03-218.ZS.html>.

This document is a Supreme Court decision that ruled the Child Online Protection Act (COPA) unconstitutional.  COPA, a law passed by Congress, established a $50,000 fine and six months in prison for knowingly posting content online for commercial purposes that is harmful to minors.  A person could avoid conviction for posting such content by making a concerted effort to have prevented minors from having access to the content.  The justices ruled that COPA was unconstitutional because it restricted some speech protected by the first amendment of the US Constitution.  The definition of content harmful to minors is broader than the definition of obscenity, which is the type of speech not protected by the first amendment.  In the decision, Justice Kennedy also wrote that there were probably more effective alternatives to govermental regulation, such as encouraging parents to use filtering software.  According to the majority opinion, the government is only allowed to restrict free speech as much as it is absolutely necessary to achieve its desired goal, and there was no proof that free-speech had to have been curtailed as much as it was in COPA in order to protect children.

 

            Ashcroft v. ACLU is important because it helped to define the legal restrictions on governmental regulation of Internet content for purposes of protecting children.  This case is similar to Reno v. ACLU in that laws were struck down on first amendment grounds because they restricted types of protected speech.  Congress tried to fix the mistakes it made with the CDA by having COPA apply to material harmful to minors, rather than to indecent material.  However, the Supreme Court still thought that content harmful to minors was too broad a terminology using a strict scrutiny approach to the law. The court case is also relevant to my paper because it explains how the government could legally help regulate Internet content. By suggesting Congress protect children from potentially threatening content by promoting use of filtering software, Kennedy is essentially laying out for Congress what he believes to be the most constitutionally acceptable method of governmental online content-regulation.  Note that by promoting filtering, the government would be indirectly involved with regulation, implying the government cannot fix the problem of youth exposure to harmful content alone.

Curb Illegal Downloading on College Campuses Act of 2007

    The goal of this bill is to combat illegal downloading on university campuses.   In the ‘findings’ section of the bill, it states that illegal downloading of a variety of mediums are used and have been used increasingly on university and college campuses. It also claims that peer-to-peer file sharing puts a strain on the university and costs the university money. Congress also finds that illegal downloading puts the university networks at a higher risk of being infected with computer viruses. The last point made in congress’ findings is that programs that stop illegal downloading can do so without violating the privacy of students or their academics. The bill also amends the ‘Higher Education Act’ of 1965 by adding support for pilot programs and policies that reduce the amount of illegal downloading.

    This bill that was introduced in the House is valuable to my topic because it provides congress' standings on the relationship between universities and file sharing. The bill demonstrates that congress recognizes the downfalls of file sharing, not only from a legal standpoint but also from the effect it has on universities. Although the bill supports the fight against illegal downloading, it does not necessarily make universities responsible, nor does it directly support the RIAA.

U.S. Congress. House. Design Piracy Prohibition Act. 110th Cong., 1st sess., H.R. 2033. (25 April 2007).

This is one piece of legislation proposed to protect fashion designs from piracy. This Design Piracy Prohibition Act would basically give fashion designs protection for three years after the application for registration is submitted. Within this act, the terms fashion design, design, and apparel are defined so as to create a definition of what can actually be protected under this bill. The reason these are defined within this bill is the ambiguous nature of these words. Without a clear definition, there would be way too many interpretations of the clauses of the Design Piracy Prohibition Act. The bill also states the terms for submitting a design for copyright protection. Basically, any rights to protection are lost if the design is not submitted within three months after the design is made public. The bill also briefly lists the monetary penalties for any pirates if found guilty of copyright infringement.

This bill is an important source for any paper on fashion copyright since it provides an example of the types of legislation that would supply design protection. Even though this bill has not gone through, many of the Design Piracy Bills follow this basic structure for fashion copyright. Therefore, this source provides an example of how effective bills can be in providing protection. In addition, many sources reference this bill and its contents. So, it is useful to have the actual bill and its wording to look back upon and analyze as a primary source. The bill basically amends title 17 in the United States Code to provide for fashion design protection. By looking at how proponents of fashion copyright will protect fashion designs, I can decide, within my paper, whether these laws are beneficial or effective enough to even bother enacting. Thomas, the site where this bill is located, also provides a list of sponsors for this bill. There are only fourteen sponsors, which creates suspicion as to how effective or plausible this bill may actually be. Information like this surrounding pieces of legislation make bills useful sources.

U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. Testimony of Steve Maiman in Opposition to H.R. 2033. 14 February 2008.

This source is the testimony of Steve Maiman, co-owner of Stony Apparel, against the Design Piracy Prohibition Act. Maiman is completely opposed to extending copyright protection to fashion design. According to Maiman, fashion has grown into a huge, thriving, competitive industry without any help from copyright protection. Nothing has changed recently within the fashion industry to suddenly need copyright protection now. He claims that enacting bill H.R. 2033 will be detrimental to the fashion industry and economy, reduce creativity, and hurt the consumers. He speaks against fashion design protection proponents by stating that customers in fancy boutiques are willing to pay more for apparel despite pirates creating imitation designs. He then addresses the negative consequences this bill will have on the fashion industry, especially firms like Stony Apparel. This bill will make financing firms extremely difficult since retailers will immediately return anything claimed, even falsely claimed, to be infringing. Invoices would become meaningless. Since retailers would also be held liable with this bill, retailers would refuse to do business unless the manufacturing firm can provide compensation for any possible loss. This new demand for compensation will create an even larger finanacial risk for manufacturers and retailers. The fashion industry is already an area filled with risk and this bill will simply add another layer of risk since everyone will have to now deal with the possibility of frivolous law suits. This fear of infringement will lead to an increase in the prices of apparel since designers will need to hire lawyers to interpret their every design out of fear of suit. In addition to price inflations, the innovation rate would slow down. However, the biggest consequence of this bill would be the effect on designers interpreting a trend. If designers are too scared to work with a trend, one of the biggest methods the industry uses to attract consumers will be cut off. This bill will only aid rich, established designers who can afford lawyers. However, the young generation of rising designers with fresh, new ideas will disappear. Fashion copyright will hurt designers, consumers, manufacturers, and retailers. Only lawyers will benefit. Benefitting lawyers is not worth splitting America into a class that can purchase copyrighted clothes and a class who cannot afford to anymore.

This is a very crucial source since it provides a primary account of a fashion manufacturer. Since it is a primary source, it provides real concerns plauging manufacturers and store owners within the fashion industry. Maiman actually has to deal with the consequences of the bill. So, what he has to say comes from experience and is very reliable. Although he is obviously biased since he has a stake in the outcome of this war, his arguments arise from legitimate concerns he would have to deal with if this bill passed. Secondary sources are just opinions of people outside of the industry looking in. He basically structures his argument around the negative consequences of enancting the Design Piracy Prohibition Act. He also addresses the concerns brought up by the other side and then explains why these are unreasonable. By showing the possible consequences of going through with fashion copyright for players in the industry besides himself, such as consumers, designers, and retailers, he effectively makes his position against protection appear to be beneficial for the majority of the industry.

This is the most important primary document relevant to my study.  This is the portion of the Digital Millenium Copyright Act that pertains to provisions to prohibit the circumvention of technologies that effectively control access to a copyrighted work.  It is Section 1201 in Title 17 of the United States Code.  This is the legislation that has been referenced in some way or another in all of my sources, thus it is suitable to include it in my bibliography. A truly academic study of the adverse effects of the DMCA's anti-circumvention provisions would be incomplete without a scrupulous reading of the legislation itself.

The portions of the legislation that concern me the most are those that have the greatest endogenous effect on the economy, as well as those that misinterpret their economic utility.  For example part c section iv allows the triennial board to consider granting exemptions if the non-infringing use is shown to have negligible effects on the potential market value for the work.  This is one of several factors that is set up to be judged arbitrarily by an unspecified potentially unqualified board at a period of time that is quite too long between evaluations.  In the booming tech industry, market values change every week, needing consideration in periods of time much more regular than every three years.

While writing my paper, I plan to supplement my reading of scholarly analysis of the DCMA with my own original analysis of the regulation. Much of the legislation is explicitly anti-competitive, and seems as though it would easily be counteracted with traditional anti-trust legislation passed by the United States Congress and reaffirmed by the judicial system.

Hedrick, Lisa J. "Tearing Fashion Design Protection Apart at the Seams." Washington and Lee Law Review, Vol. 65, No. 1, pp. 215-273, 2008. http://ssrn.com/abstract=1127190

This article presents both side of the copyright debate more in terms of the pieces of legislation proposed for fashion copyright. It goes through the pros and cons of either side of the fashion copyright argument and then argues against the enactment of these laws. Fashion design falls within the negative space of copyright protection. Therefore, designers cannot prevent knockoffs of their original designs. This paper acknowledges that these knockoffs are harmful as they hurt the designer's profits and reputation due to the low quality of imitation products. Piracy causes almost $12 billion of loss in the fashion year annually. The paper is set up this way and the author then skillfully uses all these facts that seem to support fashion copyright to show why copyright laws are ineffective in stopping any of these problems. First of all, terms such as fashion design, apparel, and design are extremely ambiguous but are used within the Design Piracy Bills. This is simply because fashion is hard to define and consequently very difficult to protect. The author also explains that fashion also cannot effectively use patents, trademark, trade dress, or copyright (due to its utilitarian function) for protection purposes. In addition to the vagueness of fashion lingo, the Design Piracy Bills would simply cause congestion of the courts with senseless cases due to the extreme subjectivity that would be involved in fashion court cases. Even if the bills went through, there are so many loopholes that pirates can find within these bills to basically render any protection useless. Finally, Hedrick looks at the fashion laws in the European Union and shows that even with laws hardly any cases come to court regarding piracy. However, she points out the cultural differences in that America is much more litigious and these laws could force designers to pay large amounts of money for lawyers to protect clothing that has a short shelf life. In addition, there is no guarantee that courts will even be able to punish pirates. It is also very possible that the laws enacted in the US would be much stronger than those in the European Union, which could lead to monopolies that would stifle creativity. Although Hedrick is opposed to these laws, she does make some suggestions on how to improve fashion copyright dealings if these laws go through. Overall though, her basic argument is that effective protection by Congress for fashion design is impossible. So, no protection is better than minimal protection. Any benefits that might arise from design protection would diminish rapidly with the cost and time of court decisions on piracy.

This source is obviously beneficial to my argument since it supports my thesis. However, the importance of this source is due to the rational and legal method used by the author to argue against fashion copyright. The author basically looks at the problems with the fashion industry at present and then shows the correlating proposed laws. However, she then analyses these legal proposals to show that they are extremely ineffective at solving the issues surrounding the fashion industry. If anything, these "solutions" might actually make things worse. The argument basically concludes that the fashion industry is inherently incapable of useful intellectual property protection. Therefore, time and energy should not be wasted on implementing laws that will most likely not benefit the industry.

Picker, Randal C. "Of Pirates and Puffy Shirts: A Comment on the Piracy Paradox: Innovation and Intellectual Property in Fashion Design." Virginia Law Review, Forthcoming; University of Chicago Law & Economics, Olin Working Paper No. 328. http://ssrn.com/abstract=959727

This article takes the side of those individuals supporting the enactment of fashion copyright. This argument is made using past attempts at employing fashion copyright laws to protect designs and the results of these attempts. One major example used to support this claim of positive effects resulting from design protection is the Fashion Originators' Guild of America. This guild basically organized registration and monitoring for apparel with a threat of boycott of any retailer who sold knockoffs. The claim here is that this increased intellectual property protection resulted in greater innovation efforts. Although the Federal Trade Commission took down this organization, the article argues that the fact that it formed demonstrates that high end designers do want greater protection. This argument is made against other claims that the members of the industry do not even want increased protection. The argument then continues into the present time and the benefits these laws would endow on the fashion industry. With fashion design protection, high end designers can make credible promises to their consumers, which is impossible with the current amount of knockoffs in the market. With the ability to make credible commitments, high end designers could raise their prices and make more money off their original designs. Therefore, there is clearly a benefit to high end designers that accompanies increased protection. Also, the author argues that imitation in the industry is only one sided with the high end designers having to deal with the rapid imitation of their original designs. With copyright, these designers could promise their consumers that this rapid copying of the apparel they are buying would not occur. Basically, the author here argues that the rampant copying in the fashion industry is detrimental to the high end designers and their customers. Therefore, copyright protection is necessary to protect their rights and keep low end designers from exploiting the low protection regime of the fashion industry.

Although this source complicates my thesis by working against my claims that fashion copyright laws should not be enacted, sources like these are absolutely necessary to develop a strong paper. These claims will provide something for me to argue against and prove incorrect in my argument. Without addressing opposing opinions, the argument and paper would be weak. This article clearly utilizes an analysis of the high end or elite designers to support the claim for increased fashion design protection. However, it avoids looking at the effect of copyright laws on the rest of the fashion industry. However, it is still a useful source as it provides the perspective of a high end designer, the biggest victim of piracy or imitation.

Zakolski LA. Exclusive Rights in Copyrighted Works; Exploitation of Artistic and Literary Property A. Exclusive Rights 2. Visual Arts. American Jurisprudence 2, September, 2008.

This is a treatise from the Westlaw database, and is specifically from AMJUR.  Just like most of the other readings, it first outlines the Visual Artists' Rights Act. Interestingly, it states that the rights under VARA only apply to the creator or owner of the work, regardless of if that author is the copyright owner.  The main body of this piece of research summarizes court cases having to do with VARA.  In such cases as, Pollara v. Seymour, 150 F. Supp. 2d 393 (N.D. N.Y. 2001), a precedent was set that just because the work was not actually up for exhibition, does not mean it does not get protection under VARA.  Citing Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003), it was determined that when a banner is hand painted but used for a political message, and specifically when paid for by the organization that the message is for, then it is not protected under VARA.  In another noteworthy case that is mentioned, Martin v. City of Indianapolis, a ruling was made regarding “recognized stature.”  This stated that although the city claimed that it did not know the work was of prominence or supported by VARA, the fact that there were newspaper and magazine articles about the work prove that the city had access to the information; therefore the city could not claim ignorance. 
This research examines the scope and implication of VARA, and exemplifies how VARA was put into use.  By compiling summaries of major court cases, the treatise allows quick access to decisions regarding VARA; thus prompting further research and exploration about the topics discussed.  These cases highlight how works are not protected if they are considered “work for hire” and that if sufficient information is available to the public about the significance of a work, someone cannot damage or destroy it and then claim lack of knowledge.  It is necessary to research these cases further to analyze their significance entirely, but having a quick summary is useful to get the main points and facts that resulted from the decisions.

    In response to the National Football League trying to ban churches from holding Super Bowl viewing parties, Pennsylvania Senator Arlen Specter has proposed new legislation.  The bill, which was introduce to the Senate on February 4, 2008, is still in the first stage of the legislative process, was read twice and referred to the Committee on the Judiciary. 
    The bill, S. 2591, is intended to amend chapter 1, title 17 of the United States Code.  The proposed legislation, if passed, would allow nonprofit organizations to show live football games without being penalized under copyright law.  Section 110, title 17 of United States legal code outlines the exemptions of certain performances and displays from infringement of copyright law.  Specter proposes that in Section 110(5), a subparagraph (C) should be added to account for nonprofit organizations wishing to display football games.  The subparagraph specifies that transmission or retransmission of a professional football contest be exempted if no direct charge is made to watch it, no other money is collected by the organization during the game, and that the game is not further retransmitted.
    By proposing this legislation, Senator Specter is not only arguing against the National Football Leagues intended ban, but also taking action to protect churches and other nonprofit organizations from the NFL’s strict interpretation of copyright law.  Furthermore, the importance of this legislation is great.  If Specter’s bill is to pass, it will virtually end disputes between the National Football League and churches over the holding of Super Bowl viewing parties.   Thus, churches and other nonprofit organizations would have the legal right to hold these parties without violating copyright law.

Berne Convention for the Protection of Literary and Artistic Work, first established in Berne Switzerland, 1886, is an international agreement between parties of the convention about copyright that provides an equalized system where artworks will be evaluated and given same protection term abroad or at home. The United States adopts the convention in 1989, with adoption of “Berne Convention Implementation Act of 1988." Article 2 of the convention focuses on setting lines to define “protected works.” Section 1 of the article defines types of works, both literary and artistic that can be protected under copyright. In regard to two dimensional art, the convention states, “cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches” are types of art to be protected under copyright. With just the adoption of section 1, just about everything created in shape of the above can be protected. Sections 2 and 4 gives ultimate power to the legislatives of each country to determine types of work to be protected and the translation of the guideline set in the convention. Section 3 goes on to say appropriated works will be “protected as original works without prejudice to the copyright in the original work,” and section 5, along the similar line, goes to declare that collection of intellectual or artistic works can be protected under copyright since its arrangement and selection requires artistic and intellectual genius. Section 7 further points to the power of each state to design and model their own copyright law in regards to applied and industrial art.  In section 8, it declares news and press release are reported facts and do not qualify for copyright protection.

The convention is very important to the topic because it demonstrates a way of setting legislative standard to subjects of copyright with minimal use of aesthetic qualifications. Even thought it attempted to equalize the law in international scale, it was written broadly to allow interpretations by the each state—to set their own standards and qualifications in regard to protected works. While United States court relied on judging protection of two-dimensional artwork based on evaluating the work on aesthetic qualities, the Berne convention defines types of protected work without using words such as “original” and “minimum creativity.” By laying out technical and physical basis to judging protected work, it creates little confusion to society in defining what art is. But at the same time, the danger of such technical term is that its scope allow to many works to be protected, therefore possibly devaluing the worth of “art” in the society. Berne points out to the fact that perhaps aesthetic decisions are necessary to promote progress of art.

GovTrack.us is a nexus of information about the United States Congress. GovTrack follows the status of federal legislation and the activities of your senators and representatives. Research on bankruptcy, trade and taxation etc.