Tuesday, 08 June 2010 00:00
Kristen Decker
LOOKING FOR LAGNIAPPE: PUBLICITY AS A CULPRIT TO SOCIAL NETWORKING WEBSITES
The Big Apple is to the Big Easy, as the New Yorker is to the Times Picayune. Style, in life and prose, sways in tandem with geographic appetite. The hustle and bustle of New York City finds a necessity in swift sound bytes as fiery as a Red Delicious, as balanced as a Fuji, or even as juicy as a Granny Smith. New Orleans, on the other hand, relishes the alluring aroma of French gumbo slowly rising from a page. Although distinct, both news providers are able to find neutral ground in a shared area of interest in satisfying the public’s hunger for news and entertainment.
Tulane University, which can be found nestled in the New Orleans Garden District, offers an annual expository writing course. In the spring of 2008, for three and a half months, two and a half hours a week, fifty minutes a day, students were asked to disregard the creative Mecca that laid beyond the stone steps of the classroom doors and dive into the required textbook, a current issue of the New Yorker. Although there was no “Introduction to Theater” pre-requisite to the course, in each writing assignment there was a hidden role-playing component. Each student, invisibly cloaked as a New Yorker columnist, set out to decipher the true technique and talent behind a final published piece. Scrutiny over words, length, style, and connotation resulted in final drafts, colored in personal pride.
Each journalistic piece was eventually posted on a website created by the professor. The underlying rational behind the website was that although an actual New Yorker columnist may have to go through extrinsic feats to be published in an edition of the famous magazine, each student was his or her own qualified journalist in the online community. A whimsical notion unknowingly inundated with tangible significance.
The transition of university to publishing institution and professor to editor occurred through education blogging, a form of student expression enhanced by the use of the internet, but confined in an education setting. Inherent to the concept, placement of material online (“posting”) is generally done with an actively involved chaperone—like a professor or a parent. However, MySpace.com (“MySpace”) popularized the use of social networking sites (“networking sites”), websites which allow registered users to create “visible profiles” that are displayed to “an articulated list of friends” sans the supervision of Tulane, a professor, or any other external regulator. With the initial screening component relinquished, many individuals are seizing the opportunity to post personal and private information and are concurrently underestimating the need to venture prudently into the realm of networking sites.
Yath v. Fairview Clinics exemplifies a situation of concern for both a MySpace user who posted another’s private information on the internet and Minnesota courts, which are in debate over the proper way to apply the publicity element in an invasion of privacy claim. Courts routinely analyze publicity by first designating a medium of communication as either private or public. Though suitable for earlier approaches to mass communication, this approach is much too broad for assessment of the internet, and more specifically, networking sites. In the past, mass communication was essentially an exclusive monopoly dominated by professional news sources, like the New Yorker and the Times-Picayune. However, networking sites are allowing the general public to effortlessly access an infinite amount of people without possessing the awareness of possible legal consequences, a quality alternatively inherent in specialty news sources. To designate all networking sites as strictly public mediums of communication would be to ignore the intrinsic features of a networking site availing to its users the ability to determine the extent of information released into cyberspace. Moreover, a purely private characterization of networking sites would overlook the immeasurable impact of a website void of restrictive safeguards.
Last Updated on Sunday, 13 June 2010 17:26
Sunday, 16 May 2010 00:00
Todd E. Saucedo
THE QUANDARY OF BEING INTERACTIVE: THE IMPACT OF ARISTA RECORDS V. LAUNCH MEDIA ON THE VIABILITY OF WEBCASTING SERVICES
The advent of the Internet helped spawn an age of user based interactivity that brought forth a new venue for the public performance of sound recordings, and with it a whole new set of complexities and questions for the recording industry and the holders of copyrights. Adding a further layer to the query, various methods and means came into use that allowed the transfer and streaming of music in ways that had been unimaginable to both the recording industry and to lawmakers just a decade prior. A commentator has noted, “The legal implication raised by the Internet's lack of centralized control is the resulting difficulty for copyright owners to… ‘track use of intellectual property.’” Copyright violations became “commonplace,” and “moreover, the anything goes attitude held by many Internet users, many of whom [consider themselves] ‘huge music enthusiasts,’ complicated the process of enforcing copyright protection.” At the turn of the millennium the focal point in the mainstream media that captured the attention of the general public was that of the litigation war that took place over peer to peer file sharing. The record industry relentlessly pursued Internet users who exchanged digital copies of entire songs through centralized mechanisms such as Napster and Aimster. Beyond mere peer to peer file sharing, another concern that caught the attention of the record industry was that of “streaming audio,” or “webcasting.” Streaming allows an Internet user to listen to music via the web without having to download and permanently store audio files onto their computers, essentially giving the listener access to whatever is playing on that station at that moment. A basic summation of webcasting is that “audio is transmitted over the Internet bit by bit, but never as a complete file,” thus preventing a “listener from record[ing] or sav[ing] a copy of the audio file.” The recording industry became increasingly concerned that the traditional balance that had existed between radio broadcasters and themselves would be disturbed, and that consumers would find alternative avenues to purchase music or at least find ways to circumvent the entire process of purchasing that would extract the recording industry’s products and “thus erode sales of recorded music.” Webcast streaming has evolved in different stages, resulting in several attempts by Congress, through multiple amendments to the Copyright Act of 1976, to categorize and more narrowly define the limitations of web streaming and its applications to copyright law.
Thursday, 13 May 2010 00:00
Wes Deweese
FRACTURING MISCONCEPTIONS: A HISTORY OF EFFECTIVE STATE REGULATION, GROUNDWATER PROTECTION, AND THE ILL-CONCEIVED FRAC ACT
Hydraulic fracturing is a safe, environmentally sound oil and gas recovery method. It is also essential to meeting America’s growing demand for natural gas. Each year, there are approximately 35,000 wells completed using hydraulic fracturing, with nearly one million wells to date completed using hydraulic fracturing. Hydraulic fracturing has allowed for the production of more than 600 trillion cubic feet of natural gas and 7 billion barrels of oil. The hydraulic fracturing process is effectively regulated by states, but there are efforts being made in the U.S. Congress to bring its regulation under the purview of the Safe Drinking Water Act. By attempting to regulate hydraulic fracturing under this Act, the federal government will only serve to impose costly regulatory hurdles that will inhibit the development of the United States’ vast reserves of natural gas trapped in shale and tight sand formations throughout the country. This proposed regulation is a one-size-fits-all approach, unnecessarily transferring to the federal government the regulation of an industry practice that has been effectively regulated by states. Each state has a vested interest in the protection of its natural environment. To that end, they have been effectively regulating the oil and gas industry since the early twentieth century. The additional hurdle proposed before Congress is unnecessary and lacks an understanding of the technology and regulation concerning the development of the nation’s indigenous hydrocarbon resources. Further, in a hearing before the Senate Committee on Environmental and Public Works, representatives from the Environmental Protection Agency testified that they had not heard of one case of ground water contamination due to hydraulic fracturing. Imposing unnecessary federal regulations on a process that has a sixty-year history of effective state regulation would cause much of the domestic energy supply to remain unproduced, further increasing U.S. dependence on foreign sources of oil and natural gas. As US gas is developed, LNG and pipeline imports will decline.
Last Updated on Thursday, 27 May 2010 11:12
Thursday, 29 April 2010 00:00
Amanda Higgins
NOT SO FAST: QUON V. ARCH WIRELESS IS NOT EMPLOYEES’ LICENSE TO TEXT THE WORKDAY AWAY Last year, the Ninth Circuit Court of Appeals decided Quon v. Arch Wireless, a case that had privacy advocates jumping for joy, but only because they were jumping the gun. Many thought it was the beginning of a new level of privacy for employees in the workplace. One CNET blogger insisted that the Quon decision meant that “employees’ text messages are now safe from their bosses’ prying eyes.” Similarly, a newspaper headline shouted “Prying Bosses Get the Message,” going on to claim that the ruling would affect “all employers who contract with an outside provider for messages.” “Bosses Can’t Read Employees’ Messages, Court Says” proclaimed a headline from Entrepreneur Information Management Journal in the Fall of 2008. The same article goes on to quote from Newsweek in its conclusion that the Ninth Circuit’s ruling “means that Quon’s texts—and by proxy, millions of other messages from millions of other users—are protected from ‘employers prying eyes.’” So many were eager to report that every employee was now free to message away at any time, without their boss reading those messages. But these articles, in general, overstate the effect of the Quon decision, with some reactions in those early days being just plain wrong. The September 2008 issue of Privacy & Data Security Law Journal asks whether “text messages . . . (are) fair game for review by employers interested in checking up on their employees . . .” The same article answers its own question with a resounding “No,” because of its own unequivocal interpretation that “The Ninth Circuit . . . held that an employer may not read its employees’ text messages without the consent of the employees and the recipients of the text messages . . . (creating) a new set of challenges for employers.” Given the limited effect of the decision, these articles are far from the truth. Given the multitude of mistaken interpretations of the Quon opinion, a realistic assessment of the decision and the current state of the law in this area is warranted. Read the full article (pdf)...
Last Updated on Saturday, 01 May 2010 18:02
Monday, 26 April 2010 00:00
Julie Myers
THE MOMENT OF TRUTH FOR fMRI: WILL DECEPTION DETECTION PASS ADMISSIBILITY HURDLES IN OKLAHOMA?
For decades, authors like George Orwell, Ayn Rand and Ray Bradbury have depicted catastrophic visions of dystopia arising out of our society’s advancement: a world where the government sees all and men must fear their own thoughts. Conversely, the ability to prove veracity has been a power sought by society throughout history, evident in all cultures from the oracles of ancient mythology to the “veritaserum” in the Harry Potter series. The clash of these two interests may seem to be exaggerated in novels like 1984, Fahrenheit 451 and Anthem, but this balance may soon be evaluated in Oklahoma courts in a very real way. On June 12, 2008, a woman in India was convicted of murder based on evidence that included a “brain fingerprinting” scan, which essentially analyzed the content of her memory and found her brain to contain stored knowledge regarding the circumstances of the murder. This is the first instance of neuro-lie-detection technology to have been admitted for the prosecution in court anywhere, and the reactions range from enthusiasm to horror. The battle over admitting neuroimagery evidence has been heated since the widely publicized trial of John Hinckley, Jr., for his assassination attempt on President Reagan. In that case, computer tomography scans were admitted to prove that Hinckley was incapable of the mental state required for the crime, and the resulting acquittal by reason of insanity caused outrage. Some proponents of neuro-imaging evidence point to the use of neuro scanning technology in Roper v. Simmons as an endorsement of neuro-evidence by the United States Supreme Court. However, the most recent advancements claim not simply to scan the brain for functional or developmental deficiency as in these past cases, but to truly translate a person’s thought process from the images. Although India’s novel ruling has raised serious ethical questions of whether such evidence is reliable enough for use in court, the potential for new neuroimaging methods is undeniably astonishing. Functional magnetic resonance imaging, or fMRI, as a lie-detector is especially promising, despite the fact that other forms of lie detection technology have been held inadmissible for over eighty years. Although there is some debate over the exact accuracy of fMRI, to date, this technology has even demonstrated the ability to recognize a specific item - such as a screwdriver or a window - that a person is thinking of merely by reading the computerized images of that person’s brain activity. Proponents claim the ability of fMRI technology to discern truth from deception will soon be absolute. Case law on these advanced deception detection technologies is sparse at best, but the Oklahoma Court of Criminal Appeals has had one of the few unique opportunities to confront the early use of neuro-lie-detection evidence. Because the Oklahoma Evidence Code parallels the Federal Rules of Evidence regarding expert testimony, an understanding of federal interpretation concerning novel science will be significant for fMRI evidence in Oklahoma. In fact, early cases of neuro scanning evidence in Oklahoma may have great influence on the outcome of the battle over fMRI admissibility in many jurisdictions. This comment will discuss fMRI and its chances at admissibility in Oklahoma courts and in the Tenth Circuit, which both follow the Daubert decision when evaluating novel scientific evidence, and propose an explanation of why it should be admitted as reliable.
Last Updated on Saturday, 01 May 2010 18:04
Friday, 05 March 2010 14:31
William G. Banowsky
Science fiction concepts are becoming reality. Biometric scanning has long been a staple in science fiction. From fingerprint identification and faking in the 1951 film “Fingerprints don’t lie”, to retinal scanning in 1985’s “Star Trek II: The Wrath of Kahn,” biometric scanning has had wide usage in film. As technology and innovation progress, once far-flung ideas have taken root in our daily experiences. Title 49 U.S.C.A. § 44902(h)(7)(A)1 defines a biometric identifier information as “the distinct physical or behavioral characteristics of an individual that are used for unique identification, or verification of the identity, of an individual.” Fingerprints are the most commonly used “distinct characteristic” though iris and facial recognition technology is gaining ground.
Last Updated on Friday, 23 April 2010 15:57
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Friday, 02 October 2009 16:29
Nathan K. Shrewsbury
Patentability of Living Matter Related to Biofuel production in the U.S. With energy prices soaring, the development of renewable biofuels in the United States is a national priority motivated by both economic and environmental concerns, including enhancement of the domestic fuel supply, and maintenance of the rural economy. Biofuels are closely associated with living material, as opposed to long dead organic matter that is associated with fossil fuels. Given this connection, it is not surprising that intellectual property rights in living matter play an enormous role in emerging biofuel technologies. Patents of actual living organisms are important to the U.S. biofuel industry because, as this paper will demonstrate, patents give innovators in the biofuel industry the tools required to protect the intellectual property developed through vital scientific research. This paper will focus on the ways various forms of living matter may be patented based on the intellectual property laws of the U.S and various foreign laws that the U.S. is obligated by treaty to follow. Patentability of plant life, microorganisms, and animals will be evaluated in detail with regard to production of alcohols (ethanol), biodiesel and methane gas. Plant life will be examined from the perspective of its use as a feedstock. Microorganisms will be examined as agents of fermentation for the biofuels. It will be shown that without the ability to patent living matter, the biofuel industry would be severely hampered. Read the full article (pdf)...
Last Updated on Friday, 02 October 2009 16:33
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