Monthly Archives: December 2016

Keeling v. Hars: A New Take on Fair Use

Meg Franklin, Associate Member, University of Cincinnati Law Review

The Balance Between Monopoly and Public Domain

Fair use is often seen as a statutory check to the monopoly power copyright holders receive from the Copyright Office.[1]  By excluding certain activities from copyright infringement, the fair use doctrine balances the tension between the copyright holder’s rights and the public’s interest in a rich public domain.  In the midst of this tension, fair use “makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive.”[2]  Academics and judges oft ponder the right balance between copyrights and fair use.[3]  Yet, instead of mere one-dimensional territorial gain—with fair use either expanding or contracting—there might be a different, multi-dimensional approach to the doctrine.

The doctrine of fair use is traditionally applied as an affirmative defense. Yet, the Ninth Circuit took a nontraditional approach to fair use in Lenz v. Universal Music Corp.[4] where Similarly, the Second Circuit in Keeling v. Hars[5] was confronted with fair use in an unusual context.  In both cases, the courts balanced the purposes of copyright law with the fair use doctrine.  Yet, each case also showcased new contexts that may allow copyrights to adapt to technological or cultural changes in the arts and media. Continue reading

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Stop Upstream Surveillance: The NSA is Overreaching, and Congress Can Respond

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

On December 31, 2017, the FISA Amendments Act of 2008 (FAA) is set to expire.[1] The Foreign Intelligence Surveillance Act of 1978 (FISA) enumerated powers and checks on the federal government’s ability to conduct surveillance and investigation on foreign parties.[2] FISA sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.[3] The 2008 Act amended FISA and broadened the government’s power to target foreign communications without warrants.[4] However, the government has used loopholes in the Act to justify mass, warrantless surveillance of American citizens’ international communications.[5] The government’s surveillance of Americans has been a contested and salient topic since 2005, when the New York Times exposed that the Bush administration had authorized the National Security Agency (NSA) to wiretap American citizens.[6] The surveillance then became one of the largest political issues of the decade, when Edward Snowden disclosed that the NSA had intercepted over 160,000 private conversations, most between ordinary Americans, not legally-targeted foreigners.[7] Many Americans are uncomfortable with the amount of information that the NSA has collected and continues to access. But beyond their discomfort, the American people have certain constitutional rights—most prominently the Fourth Amendment right against unreasonable searches and seizures—that the NSA violates through its surveillance. Fortunately, in the wake of the FAA’s inevitable expiration, current litigation is challenging the NSA’s practices, pressuring Congress, to reevaluate the Act and protect our rights. Continue reading

When Can I Fire My Lawyer?

Author: Andrew Fernandez, Associate Member, University of Cincinnati Law Review

The Sixth Amendment of the United State Constitution protects a criminal defendant’s right to counsel. A significant component of this fundamental right is the ability of a defendant to choose their own counsel if they can afford to do so.[1] A criminal defendant is denied the right to choose counsel if they are not provided the opportunity to choose their own counsel.[2] The court must grant a substitution of counsel must if the substitution does not interfere with the “fair, orderly, and effective administration of the courts.”[3] In many cases, if a criminal defendant cannot afford a lawyer, a criminal defendant will be provided counsel pursuant to the Sixth Amendment.[4] However, under these circumstances, a criminal defendant does not have the right a specific lawyer, nor may a defendant fire the appointed attorney absent good cause.[5] Good cause can constitute “a fundamental problem, ‘such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict.’”[6] The circuit courts are split on whether the Constitution protects a right for a defendant to fire counsel if the defendant seeks to substitute court-appointed counsel in place of their own. The Eleventh Circuit in U.S. v. Jimenez held that a defendant does not need to demonstrate good cause in order to replace their attorney with a court-appointed attorney.[7] Alternatively, the First Circuit in United States v. Santana argued the defendant must show good cause in order to substitute their retained lawyer for a court-appointed lawyer.[8] The Eleventh Circuit is the better opinion because it protects the fundamental right of the ability to choose one’s counsel protected by the Sixth Amendment, is supported by case law, and helps to ensure criminal defendants make the best choice for their well-being. Continue reading