N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Museums’ Right to License Images in the Public Domain

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On October 4, 2023

In Contributions

by Sophia Cianfrani*

Copyright protection may be extended to original works and photographs of three-dimensional works, but courts in the United States and elsewhere have declined to extend such protection to photographs of two-dimensional works. Nonetheless, many museums erroneously claim to own the copyright to photographs of objects in their collections that are in the public domain and license these images for a profit. This Contribution argues that, rather than attempting to license these non-copyrightable photographs, museums, especially those that are 501(c)(3) nonprofits, should make their collections accessible and free to the public through an open access program, which would serve the benefit of the public and better comply with the scope of copyright law.

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Protecting Innovation by Private Companies in Partnership with Government Agencies

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On October 2, 2023

In Contributions

By Heather Walker*

To encourage innovation, the government may provide a private company with an equipment authorization to develop new technology or create rules and regulations encouraging such development. However, private companies risk losing money on their innovations if the government later revokes an equipment authorization or changes a project unless the government compensates them. Although the Constitution prevents the government from taking property without providing just compensation, in order for the Takings Clause to apply, what was taken has to be deemed property in the first place. Where the government has passed rules and regulations to incentivize a specific private company to invest and develop innovative technology, the authorizations and created property should be found to be a property interest that can support a takings claim. By recognizing these interests as property interests, companies will be more inclined to partner with and support innovation that deals with pressing problems as they know they are guaranteed a certain level of protection.

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Deterring Private Prosecution: Why Current Jurisprudence Does Not Permit a Direct Cause of Action Against Secondary Violators of Rule 10b-5

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On September 27, 2023

In Contributions

By Rudra Reddy*

In Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful to “use or employ . . . any manipulative or deceptive device or contrivance” in violation of the Securities Exchange Commission’s (“SEC”) rules. The Supreme Court has recognized the right of private plaintiffs to bring claims against primary violators of § 10(b). However, only the SEC is permitted to bring claims against persons who provide “substantial assistance” to primary violators. This Contribution addresses the potential liability under Rules 10b-5(a) and (c) of a specific category of defendants who fall somewhere between primary and secondary violators—those who neither “make” nor distribute false or misleading statements themselves but ask an employee to distribute such statements to investors. Consistent with the plain text of § 10(b) and Rule 10b-5, Supreme Court precedent, and congressional intent, this Contribution argues that primary liability should not be extended to junior managers.

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My Mind, My Choice: The First Amendment Right of Mature Minors to Refuse Psychotropic Medication

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On September 20, 2023

In Contributions

by Amanda Cort*

In Parham v. J.R., the Supreme Court infamously limited due process protections for children in the medical context. At the same time, the Supreme Court has acknowledged that children enjoy First Amendment protections—to the point where they have rights beyond the traditional parent-child relationship. Additionally, lower courts have articulated a strong connection between First Amendment protection from intrusions into mental processes and the right to refuse treatment. This Contribution argues that the First Amendment can be used as a new avenue to advocate for the rights of mature minors to refuse psychiatric drugs that alter their ability to think and express themselves.

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“You’re Blocked”: Section 1983 Liability in the Age of Social Media

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On April 25, 2023

In Contributions

by Emma Becker*

With the advent of social media, a digital “town square” was created whereby elected officials and their constituents could interact in new, unforeseen ways. With the creation of this new space, however, came difficult First Amendment questions regarding digital access to officials via social media. When elected officials block constituents from their social media accounts are they acting under “color of state law,” thereby violating the First Amendment rights of those who are blocked? This Contribution argues that to determine whether an elected official is acting under “color of state law” when blocking constituents, courts should undertake a totality of the circumstances analysis, focusing on whether the social media account is swathed in the trappings of the official’s office, and whether the social media account was used as a tool of governance.

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Mastering the Internet Experience: Why Section 230 Carve-Outs for “Neutral Assistance” Should Not Extend to Algorithmic Recommendations

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On April 24, 2023

In Contributions

by Amanda Frame*

Section 230 is sometimes referred to as “the internet’s most important law.” The statute, which amends the Communications Decency Act, generally provides immunity for website platforms from liability arising from the content produced by third parties. In doing so, Section 230 eliminates many ordinary legal responsibilities assumed by traditional publishers of third-party content. Protections initially meant to facilitate the growth of the internet now shield powerful social media corporations and incentivize risky and permissive content moderation rules. A proposed shift in the statutory interpretation of “development” would make it easier for plaintiffs to bring facially valid claims against big tech and would allow finders of fact to properly determine when the existing “good faith” requirements have been violated.

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The “Independent State Legislature Theory”: A Disaster for Democracy

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On April 21, 2023

In Contributions

by Claire Bartholomew*

It has long been accepted that although state legislatures have inherent constitutional authority to set the “Times, Places and Manner of holding Elections,” other state judicial and executive officials, such as Governors, Secretaries of State, and state supreme courts, may alter or nullify duly enacted state election regulations if they violate that state’s constitution or the federal constitution. However, in recent years, some state legislatures have argued that their authority over state election regulations is absolute and untouchable by non-legislative state officials, promulgating what they have termed the “independent state legislature theory.” This Contribution argues that this theory must be fully repudiated; to protect our democracy from authoritarian rule, non-legislative state officials must be allowed to alter or nullify state election regulations if they violate their state or the federal constitution.

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Why the Original Meaning of the Confrontation Clause Governs the Admissibility of Video Testimony at Criminal Trials

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On April 20, 2023

In Contributions

by Daniel Cook*

The Sixth Amendment’s Confrontation Clause calls into question an increasingly common practice during the COVID-19 pandemic: testimony by two-way video teleconferencing at criminal trials. Proponents of video testimony argue that it is consistent with Maryland v. Craig, which held that the Confrontation Clause might be satisfied absent a physical confrontation as long as the denial of confrontation is necessary for trial and the testimony’s reliability is otherwise assured. Opponents of video testimony rely on Crawford v. Washington, which was decided two decades after Craig and held that the Sixth Amendment’s original meaning categorically mandates confrontation, at least with respect to testimonial hearsay. Importantly, Crawford held that judicial determinations of reliability are an insufficient basis for departing from the original meaning of the Confrontation Clause. Although Crawford did not directly address video testimony, some courts and commentators believe that Crawford supplanted Craig with a categorical rule requiring face-to-face confrontation, which video testimony may violate. This Contribution argues that Crawford embodied a sea change in Confrontation Clause jurisprudence, such that Craig no longer governs the admissibility of video testimony at criminal trials.

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Modernizing Royalties: How a Retroactive Application of the CLASSICS Act is Necessary to Make Legacy Artists Whole

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On April 19, 2023

In Contributions

by David Schulman*

Prior to 2018, copyright law did not require payment of royalties for sound recordings to pre-1972 artists (or the respective copyright owner), creating a massive pay disparity between pre-1972 artists and contemporary artists who had a statutory right to receive those royalties. In 2018, Congress enacted the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (“CLASSICS”) Act to remedy this gap in protections and payments between legacy and contemporary artists. Essentially, the CLASSICS Act ensures that pre-1972 artists are afforded copyright-like protections and liberties in line with what their contemporary peers have enjoyed for years. The question yet to be resolved is whether the Act should apply retroactively. Retroactive application of a new legal right implicates due process rights given that vested interests, particularly in previously negotiated contracts, may be negatively impacted. This Contribution argues that the CLASSICS Act should apply retroactively given its purpose and status as economic legislation. Moreover, retroactive application of the CLASSICS Act would not violate due process rights notwithstanding potential adverse effects on reliance interests because the Act meets the requisite rational basis test.

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A SLAPP in the Face: How State Anti-SLAPP Statutes Can Still Apply in Federal Courts Exercising Diversity Jurisdiction

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On April 18, 2023

In Contributions

by Conner Kozisek*

A Strategic Lawsuit Against Public Participation (“SLAPP”) is a meritless lawsuit designed to chill constitutionally protected speech, thereby posing a dangerous threat to First Amendment rights. To challenge the chilling effects of SLAPP suits, more than 30 states and the District of Columbia have adopted anti-SLAPP legislation, many of which create a special motion to strike a claim based on a defendant’s speech in furtherance of their First Amendment rights. Because there is no federal anti-SLAPP legislation, the federal judiciary is divided on whether anti-SLAPP laws should apply in federal courts exercising diversity jurisdiction, especially in the wake of the Court’s fractured opinion in Shady Grove Orthopedic Associates v. Allstate Insurance Co. This Contribution argues that federal courts sitting in diversity should apply the approach set forth in Justice Stevens’s Shady Grove concurrence to recognize the potential substantive rights created by or protected through anti-SLAPP legislation.

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