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Volume 20 - Issue 1


Copyright and Federalism: Why State Waiver of Sovereign Immunity is the Best Remedy for State Copyright Infringement

Ellis, Leroy J., V | November 30, 2022

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission. However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay or permission? Can the copyright owner seek damages from the university for infringement? If not, then how can a copyright owner recover damages for state infringement? Until recently, the answer was that copyright owners could obtain damages from the university for copyright infringement under the Copyright Remedies Clarification Act, 17 U.S.C. §511, but in Allen v. Cooper, the United States Supreme Court held the Act unconstitutional in part because there was not enough evidence of state infringement to support waiving sovereign immunity. Now the question has no clear answer. While some state cases have copyright owners attempting to obtain damages through alternative means, there does not seem to be an easy way for copyright owners to obtain monetary relief for state copyright infringement. National legislation could be proposed once again, but how well would that fair against the Court’s current precedent? Would it be better to ask the states to waive immunity themselves? Monetary remedies for wrongs should be available, even when the wrong is committed by the state or its entities. The issue is finding a way around sovereign immunity. Sometimes the way around sovereign immunity is by using federalism.

Countering Personalized Speech

Ho, Leon G | October 1, 2022

Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform’s predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users’ affective needs to drive engagement to greater and greater heights. Lastly, they erode end user privacy and autonomy as both sources and incentives for data collection. As with any harmful speech, the solution is often counterspeech. Free speech jurisprudence considers counterspeech the most speech-protective weapon to combat false or harmful speech. Thus, to combat problematic recommendation decisions, social media platforms, policymakers, and other stakeholders should embolden end users to use counterspeech to reduce the harmful effects of platform personalization. One way to implement this solution is through end user personalization inputs. These inputs reflect end user expression about a platform’s recommendation decisions. However, industry-standard personalization inputs are failing to provide effective countermeasures against problematic recommendation decisions. On most, if not all, major social media platforms, the existing inputs confer limited ex post control over the platform’s recommendation decisions. In order for end user personalization to achieve the promise of counterspeech, I make several proposals along key regulatory modalities, including revising the architecture of personalization inputs to confer robust ex ante capabilities that filter by content type and characteristics.


The First Amendment and Online Access to Information About Abortion: The Constitutional and Technological Problems with Censorship

Villasenor, John | November 30, 2022

To what extent could an abortion-restrictive state impede access to online information about abortion? After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding the extent of state power to limit access to information in this domain. The essay also considers the technological implications of state efforts to censor online access to information about abortion, concluding that these efforts would be mostly, though not completely, unsuccessful.


Rethinking Equitable Estoppel in Patent Law

Lustig, Joshua J | October 1, 2022

In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit’s recent equitable estoppel jurisprudence is inconsistent with equity’s goal of fairness and presents a new theory of equitable estoppel — “inchoate estoppel” — which would create fairer outcomes for patentees and defendants alike.