Authors:Casey Sandalow Abstract: American copyright law is predominantly utilitarian. Fair use—codified to promote copyright’s utilitarian goals—has emerged as one of the most nebulous doctrines in American law. This is partially by design. Passing the Copyright Act of 1976 (the “Act”), Congress sought to endorse “the purpose and general scope of the judicial doctrine of fair use,” but made clear that “there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change.” This judicial deference—combined with the case-by-case nature of fair use determinations—has led to evolving and inconsistent applications of section 107. Interpretation of section 107(4), which instructs courts to consider “the effect of the use upon the potential market for or value of the copyrighted work,” is illustrative. Though a plain reading of section 107(4) leaves room for consideration of all market effects, most courts and commentators agree that the inquiry into this factor concerns only deleterious effects on the copyright owner’s actual or potential markets. Some have expressed hostility toward consideration of positive market effects on the ground that an infringing use that might improve sales of a copyrighted work is also likely to invade the market for derivative works. In limited circumstances, courts and commentators have recognized the relevance of an unauthorized use providing financial gain for a copyright holder. In Authors Guild, Inc. v. Google Inc., Judge Chin indicated that Google Books increased exposure and sales for the copyright holders, concluding that “the fourth factor weighs strongly in favor of a finding of fair use.” While the Second Circuit declined to adopt Judge Chin’s explicit reasoning, Authors Guild remains a powerful endorsement of the plain reading of section 107(4). In Google LLC v. Oracle Am., Inc., the Supreme Court indicated that analysis of the fourth factor should weigh public benefits against private harms, endorsing a more holistic balancing of interests. In the wake of a reinvigorated fourth factor, it is worth reassessing whether economic benefits from infringement have any place in the market impact inquiry. This Note addresses the current status of market benefits: monetary gains conferred upon a copyright holder by a third party’s unauthorized use of a copyrighted work. While courts are still unwilling to treat market benefits as dispositive, they are moving away from the view that the fourth factor concerns only market harm. Expanded analysis of a fourth factor now balances private economic effects, public benefits, and in some cases, non-monetary concerns related to the value of a work. Market benefit proponents assert that their inclusion is more in line with the text and history 1976 Act, as well as the overall goals of copyright. Further, weighing market benefits against market harms helps to address problems related to circularity. This Note considers the viability of market benefits as both a dispositive and a relevant component of fourth factor interpretation. Part I provides a basic overview of the traditional approach to the fourth factor before defining and distinguishing between different types of market benefits. Part II analyzes recent caselaw acknowledging market benefits and proposes a framework for proving market benefits as part of a reinvigorated fourth factor. Part III addresses the viability of market benefit arguments across different sectors of copyrighted works and the possible implications of increased acceptance. It concludes that, despite enhanced recognition, market benefits still lack widespread applicability and are unlikely to change the outcome of any present fair use determination. PubDate: 2023-05-13 DOI: 10.52214/jla.v46i4.11239 Issue No:Vol. 46, No. 4 (2023)
Authors:Siena Stanislaus Abstract: The City of New York has historically struggled with equitable funding in its public education system. As a result, funding for arts education in New York City public schools has steadily declined. This trend further perpetuates a widespread cultural attitude that undervalues the academic benefits of arts education for students. This lack of support for the arts has particularly impacted schools located in low-income neighborhoods which suffer from low engagement with—and participation in—arts programs and arts instruction. Rocco Landesman, Former Chairman of the National Endowment for the Arts, wrote in his study on arts and achievement for at-risk youth that “the only outcomes we should need to measure for a music class is whether the child had the chance to create, enjoy, and understand music.” The New York City Department of Education has attempted to offer all students the chance to participate in arts education through various policy initiatives. In particular, New York City’s Blueprint for the Arts curriculum initiative and its supplemental accountability program, ArtsCount, were implemented to enhance students’ access to arts instruction. The decade following their implementation, however, revealed obvious shortcomings and failures. Moreover, the lack of reform of these initiatives perpetuates the culture of unequal access that is so commonly associated with arts education. Title VI of the 1964 Civil Rights Act states: “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Particularly, Title VI imposes regulations for the implementation of federal funds. Such regulations require that recipients may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.” In 2014, the NYC Comptroller released a report describing the failures of ArtsCount, focusing in part on inequities in the distribution of arts instruction across New York City school districts. The results demonstrate a positive correlation between the presence of art instructors, art classrooms, and art programs to socioeconomic status and racial makeup of particular districts. These results are especially problematic as the very purpose of these initiatives is to enhance access to arts education for New York City students. This Note will explore several possible explanations for these failures, including societal and policy-based influences on school leaders in low-income neighborhoods, and how those influences were exacerbated by inefficient systems of reporting such as New York City’s ArtsCount. Prior to the implementation of BluePrint for the Arts and ArtsCount, New York City provided arts funding through Project ARTS, a grant program that provided schools with dedicated arts funding. This program required that Project ARTS funding was spent in areas related directly to the arts. Transitioning to Blueprint for the Arts and ArtsCount allows the New York City Department of Education to take a passive approach to implementing arts education funding. With ArtsCount, funding that would have previously been dedicated to the arts is now provided to school leaders through general school budgets using ArtsCount as a method to ensure accountability for investing in arts programs. However, the inadequacy of ArtsCount has led to many students in areas of lower socioeconomic status—primarily students of color—having to go without the necessary arts education curriculum as put forth by BluePrint for the Arts, the very curriculum that ArtsCount was meant to ensure. The inadequacy of this accountability program poses the question of possible Title VI violations. The several years following the Comptroller report have seen little change, despite recommendations for how to mitigate such discriminatory effects. In order to prove a violation of Title VI’s implementing regulations, proof of discriminatory effect will suffice to establish liability and proof of discriminatory intent is not needed. While it could be argued that such a funding structure is necessary and justified, offering less discriminatory alternatives would demonstrate that this structure is still indeed a Title VI violation. This Note explores potential alternatives to the current accountability framework, including reframing how arts education should and may be spent, and rethinking the way that data regarding arts education instruction is collected. Overall, the goal of this Note is to assess the current status of arts education in New York City Public Schools and how its current funding structure and accountability program impacts the presence of arts education across New York City school districts. This assessment will focus primarily on the New York City public school system, as New York City is a cultural hub of the world with communities of different races, ethnicities, and many socioeconomic backgrounds. Part I of this Note provides background information on Title VI of the Civil Rights Act, societal conceptions on the value of arts education, the history of arts education funding in New York City, and the implementation of ArtsCount. Part II of this Note assesses New York City’s current accountability framework in context of Title VI’s implementing regulation, considering the history of race disparities within arts education at the national and local levels. Part III of this Note proposes an alternative which may mitigate such discriminatory implications and increase acc... PubDate: 2023-05-13 DOI: 10.52214/jla.v46i3.11240 Issue No:Vol. 46, No. 4 (2023)
Authors:Haochen Sun Abstract: Disinformation is endemic in the digital age, seriously harming the public interest in democracy, health care, and national security. Increasingly, disinformation is created and disseminated by social media algorithms. Algorithmic disinformation, a new phenomenon, thus looms large in contemporary society. Recommendation algorithms are driving the spread of disinformation on social media networks, and generative algorithms are creating deepfakes, both at unprecedented levels. The regulation of algorithmic disinformation is therefore one of today’s thorniest legal problems. Against this backdrop, this Article proposes a novel approach to regulating algorithmic disinformation effectively. It first explores why transparency, intelligibility, and accountability should be adopted as the three major principles of the legal regulation of algorithmic disinformation. Because of its market-based technology development and regulation policy, the United States has yet to adopt any laws regulating algorithmic disinformation, let alone these three principles. The Article then examines legislative reforms in France and China, where the three principles have been translated into legal rules requiring social media companies to disclose their disinformation-related algorithms, render them intelligible to users, and assume legal responsibility for curbing the spread of disinformation on their platforms. Based on a critical discussion of the major problems with these legal rules, the Article puts forward a multi-stakeholder approach to better implement the three principles. It argues that the United States should take the lead in creating and piloting an algorithmic disinformation review system. This new system would empower the administrative oversight of algorithmic disinformation and promote the dynamic engagement of social media users and experts in policing algorithms that generate and disseminate disinformation. The ADRS would thus promote the transparency and intelligibility of algorithms and hold social media platforms accountable for curbing disinformation. PubDate: 2023-05-13 DOI: 10.52214/jla.v46i3.11237 Issue No:Vol. 46, No. 4 (2023)
Authors:Leila A. Amineddoleh Abstract: Last year witnessed the conclusion of a long-fought dispute between a private party and a foreign government over an art collection with significant cultural value. It involved a treasure of ecclesiastical objects dating back to Medieval Germany that had once belonged to the royal House of Guelph and housed in the muralled medieval Brunswick Cathedral in Braunschweig, Germany. Ultimately, after over a decade of fighting, the controversy’s resolution did not involve an ownership determination by a U.S. court. Rather, the high court abstained from making a determination and instead declined to exercise jurisdiction over Germany. The lack of decision was not surprising, particularly in light of delicate foreign policy issues at play and the importance of keeping the judiciary out of international political disputes. The court’s unanimous decision was consistent with prior holdings, and so perhaps it was foreseeable that the court did not examine the merits of the ownership claims. However, a line of cases against Greece, Switzerland, and Italy did come as a shock, because they involved claims against foreign countries for asserting ownership interests in antiquities that were suspected of having been looted. Never before had governments been sued for their actions regulating the antiquities market and working to protect cultural artifacts. PubDate: 2023-05-13 DOI: 10.52214/jla.v46i4.11238 Issue No:Vol. 46, No. 4 (2023)
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