Despite Justice Scalia’s dissent and the claims of Aereo and its amici, this Note will argue that, when viewed on the whole, any potential fears that the Aereo decision could implicate the legality of cloud-based technology or affect copyright infringement analysis with respect to this industry are likely unwarranted. First, there are substantial structural differences between how Aereo operated and how cloud-based services (particularly remote storage systems) continue to run. Second, the Aereo decision is a narrow response particularly attenuated to that company’s practice of functioning like a traditional cable system while failing to pay the fees required by such systems when they rechannel broadcast networks’ signals. Thus, because the case addresses such a specific factual scenario, its holding is unlikely to be extended to other cloud-based services. To illustrate this point, Part I will discuss Aereo’s technology to clarify how the system physically functioned to stream practically live television through the Internet. Part II will analyze the key reasons why the Supreme Court found this particular technology to violate the networks’ rights, while also analyzing Justice Scalia’s concerns about potential fallout from the majority opinion, particularly with respect to the cloud industry. And finally, Part III will contrast Aereo’s technological infrastructure with that of several common cloud-computing service providers and will examine the shortcomings of the argument that Aereo leaves in flux: the legality of cloud-computing services and the copyright infringement analysis with respect to those services.
The scholarship on “politics as markets” reveals that dominant political parties use “lockups” to control the political system. So stronger, process-oriented judicial review is necessary to disrupt existing lockups. This Note comparatively applies this scholarship to campaign finance laws in the United States and United Kingdom. It shows that these countries’ campaign finance regimes function as lockups that permit the major parties to dominate their countries’ politics. Lockups allow these parties to control elections and the national discourse. These campaign finance lockups raise significant normative concerns because they restrict alternative voices’ political participation. This challenges democracies’ need for varied, pluralist free speech. In both nations, judicial review has disrupted the system and weakened these lockups, but this disruption has been more extensive in the United States. Finally, this disruption may bring its own costs by giving wealthy elites further, disproportionate speechmaking power.
Part I of this Note provides a brief background regarding the history of the Supreme Court’s treatment of eyewitness identification, the current standard of admissibility of eyewitness identification testimony at both the federal and state levels, and the status of scientific research into eyewitness identifications today. Part II describes the changes that two states, New Jersey and Oregon, have made to their judicial frameworks to reflect the current state of empirical research into the dangers of eyewitness misidentification. This Part will also highlight how these new tests differ from the Manson framework set forth by the Supreme Court in the 1970s, which is the prevailing test for admissibility of eyewitness evidence, on which California’s existing framework is modeled. Part III will examine the pros and cons of New Jersey and Oregon’s approaches, especially in light of their underlying goals of deterring improper police conduct and obtaining reliable verdicts. Part IV describes the history of eyewitness identification reform in California and suggests that in states like California, where attempts to pass legislation modifying police eyewitness identification procedures have been unsuccessful, judicial reform similar to that of Oregon’s Lawson framework is necessary to ensure the integrity of the criminal justice system.
What happens when an iconic cartoon mouse and an internationally renowned, electronic dance music disc jockey face off? While this may sound like the making of a fictitious scenario, this was actually the underlying context of the 2015 trademark dispute between Walt Disney Company (“Disney”) and Joel Zimmerman —stage name “deadmau5” (pronounced “dead mouse”)—in which Disney challenged the trademark registration of deadmau5’s logo. Though short-lived, and likely best remembered for its attention grabbing headlines, the dispute is instructive as to how U.S. trademark law should adapt to international trademark disputes. While the deadmau5-Disney dispute ended by a settlement between the parties, it is extremely probable that there will be more trademark disputes with common factual underpinnings in the future; thus, the dispute raises more questions than answers.
On December 31, 2013, a car accident killed one and injured two pedestrians. The deceased: a six-year-old girl. Her family brought suit in San Francisco against the driver for wrongful death and personal injuries and against Uber Technologies, Inc., Rasier LLC, and Rasier-CA LLC on a theory of vicarious liability. The driver had a contract with Uber and Rasier-CA LLC when the accident occurred and at that time was allegedly waiting to “match” with a passenger through Uber’s app. The question of Uber’s liability centers around whether it should be liable for the acts of its driver at all, and if so, whether it should be liable for the acts of a driver when no passenger is yet in the vehicle. Uber answered the complaint claiming that because it is not a transportation carrier, has an independent contractor relationship with its drivers, and the driver-defendant was neither transporting a passenger nor en route to pick up a passenger, Uber was not liable for any damages.
People do not like billboards. These off-site signs, or signs advertising goods and services not available in the near vicinity, allegedly create visual blight, cheapening communities and cluttering the landscape. In addition, they have proven to be hard to control. Local government ordinances aimed at limiting the spread of outdoor advertising and controlling its visual impacts are continually challenged by the well-funded billboard industry. While courts have developed criteria, which often incorporate guidance from the Supreme Court, for determining whether billboard-control ordinances are legal,5 new technologies in the outdoor advertising industry require local governments to update their regulations and include new definitions to maintain visual protections. Specifically, supergraphics, or oversized signs painted on or attached to building façades, are becoming popular in many areas. This new type of sign results in the same negative visual impact as traditional billboards and is often significantly larger in size. In addition, because supergraphics are often vinyl or mesh affixed to a building façade, they can be erected without the investment in infrastructure required to create a traditional, pole-standing billboard. This means that supergraphics are easier and cheaper to erect, while often creating much more visual disruption.
At about 8:15 a.m. on May 2, 2012, National City Police picked up a fourteen-year-old runaway for loitering and suspected prostitution. Lauren’s twenty-eight-year-old “boyfriend” had brought her from her hometown of El Paso, Texas, to California to pimp her out.
While her “boyfriend” was exploiting her, Lauren performed hundreds of sexual acts on clients. Typically meeting with seven to ten “johns” each day, she was shuffled from one seedy southern California hotel room to the next. Her trafficker moved her from Los Angeles, down to San Diego, back up to Los Angeles, down to Orange County, and finally back to San Diego where she was arrested. During this time, her “boyfriend” had total control over Lauren—he posted online advertisements offering her sexual services on Backpage.com, arranged and paid for the hotel rooms in which she met her clients, dictated how she should dress, and took all of her earnings.
After being picked up by police in National City, Lauren ran away from a victim’s service center back to her “boyfriend.” She was arrested again for prostitution less than a week later in Los Angeles. Her trafficker was arrested as well and eventually charged by the United States Attorney’s Office for the Southern District of California with Sex Trafficking of a Child in violation of 18 U.S.C. § 1591 and Transportation of a Minor to Engage in Prostitution in violation of 18 U.S.C. § 2423(a).
Consider a fourteen-year-old boy whose entire life was spent moving in and out of foster care because his mother was an alcoholic and his stepfather was abusive. This boy suffered from early-onset depression, and had already attempted suicide four times by the age of fourteen. One night, the boy and his friend went to a trailer owned by his mother’s drug dealer to drink and do drugs. After the adult drug dealer passed out from consumption, the boy—seeing an opportunity for some quick cash—took the dealer’s wallet from his back pocket to steal his money. However, the dealer woke up and grabbed the boy by the throat. The boy’s friend hit the dealer with a nearby baseball bat. Once the boy was released, he repeatedly struck the drug dealer with the bat until he believed the man to be dead. To hide the evidence of the crime, the boys set fire to the drug dealer’s trailer, ultimately killing the man inside. This fourteen-year-old boy was sentenced to die in prison for his crimes, without any hope for release. This boy’s name is Evan Miller.
“Once upon a time, not so long ago, culture, in the lower case, was primarily an anthropological preoccupation. Not any more. It is hardly news that peoples across the planet have taken to invoking it, to signifying themselves with reference to it, to investing it with an authority, a determinacy, a superorganic unity of which even the most conservative anthropologist would be wary. Culture, now capitalized in both senses of the term, has come to provide the language, the Esperanto, of difference spoken in the active voice.”
Your client, CreativeSoft, produces CreativeDesign, a computer program that creates cards and brochures. In the 1990s, CreativeSoft sold the program on CD-ROMs. To keep up with the market, CreativeSoft now sells CreativeDesign2.0 only as a downloadable file from its website. CreativeSoft has come to your firm because MockSoft is selling CreativeDesign2.0 as its own product.
This reminds you of the Lanham Act § 43(a)(1)(A) “reverse passing off” (“RPO”) claim you brought against MockSoft when it sold CreativeDesign CD-ROMs packaged in MockDesign boxes. Now, MockSoft copies CreativeDesign2.0, removes copyright notices from the splash screens, and resells the program from its website. Further, MockSoft confuses customers by creating the impression that MockSoft is the origin of the program.
Should you file a RPO claim? You prevailed on this claim when MockSoft repackaged CreativeDesign CD-ROMs. However, a RPO claim may not survive the pleading stage of litigation if CreativeDesign alleges that MockSoft has repackaged CreativeDesign2.0. There is a risk of copyright preemption, and many district courts interpret a Supreme Court case, Dastar Corp. v. Twentieth Century Fox Film Corp., as precluding producers of digital products from bringing claims under § 43(a) of the Lanham Act. Why?