The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases—such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi’s suicide following a privacy violation on Twitter—highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user-generated content. While initially celebrated as a catalyst for online innovation and free speech, § 230 now faces criticism for enabling the spread of misinformation, hate speech, and illegal content while hindering victims’ ability to seek redress. Despite numerous legal challenges, the Supreme Court consistently avoids substantive rulings on § 230’s interpretation, instead deciding cases on procedural grounds. This article explores the Court’s failure to provide substantive guidance and argues that the harms of § 230’s safe harbor provision now outweigh the justification for judicial deference, particularly in an era of congressional gridlock. Without meaningful intervention, the negative impacts of § 230 will likely persist, posing ongoing risks to individuals and society. As these risks escalate, the Supreme Court’s continued sidestep of the substantive issues surrounding § 230 becomes increasingly problematic, leaving a critical gap in digital-age jurisprudence that urgently needs to be addressed.

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings. The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial considerations undermines the original purpose of fair use, which is to encourage critical and transformative uses of copyrighted material. Furthermore, the article critiques the Court’s failure to consider practical aspects of art creation and sale, which are integral to fair use analysis in the context of visual art. It contends that fair use analysis should prioritize the contribution of a work to the overall message or expression of a subsequent work, rather than solely focusing on commercialization. The authors of this paper urge courts to reevaluate fair use in visual art, taking into account the inherent complexities and interpretive nature of the medium. They advocate for a more nuanced approach that balances artistic expression with copyright protection, ensuring that fair use continues to foster creativity and innovation in the visual arts.

This essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight or hearing. Indeed, it is long overdue to think of the world of intellectual property through the perception of those with sensory limitations. Should copyright law be altered in some ways to accommodate that perspective? In the history of art, music, and dance, defiant creative souls have periodically driven a reluctant world to new feelings about the legitimacy of unusual endeavors seen initially by many as bizarre. They have challenged us to think about the creative and artistic meanings of silent music, blank canvases, invisible sculpture, motionless dance, and inaudible drama, and by analogy to the ways in which the deaf and blind process creativity. And they also have challenged us to consider whether the coverage of copyright law should be altered or rethought to better embody the legal needs of the defiantly creative. Copyright protection is available for “original works of authorship fixed in any tangible medium of expression.” What this means for works “filled” with subtle blankness is certainly unclear. Can works lacking characteristics most associated with our standard notions of copyrightable creativity—tangibility, visibility, sound, or movement—still be treated as “fixed,” “original,” and “expressive?” Are they actually “better” suited for those with sensory limitations than for others? Those are the seminal issues explored in this essay.