The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis

New Voyager radio spectrograms of Uranus

New, high-resolution spectrograms of the Voyager-2 radio observations at Uranus were produced from the original, six-second Planetary Radio Astronomy (PRA) data and these show a number of new features which were not obvious in previous versions. Among these new features are the detailed structure of the so-called broadband-bursty (b-bursty) emissions, unexpected sloping striations in the smooth high-frequency (SHF) component, and the overlap of these two components during the first rotation after closest approach. In addition, a slightly different planetary rotation rate from the b-bursty emissions, was found, and at the initial onset of the SHF component, what appears to be the shadow of a Uranian plasmasphere. These new spectrograms were prepared using a special dithering algorithm to show signal strengths as gray shadings, and the data were also manually cleaned to suppress noise and interference. This produced spectrograms of exceptional quality and certain details of their production on a stand-alone personal computer are also discussed

Increasing vertical mixing to reduce Southern Ocean deep convection in NEMO3.4

Most CMIP5 (Coupled Model Intercomparison Project Phase 5) models unrealistically form Antarctic Bottom Water by open ocean deep convection in the Weddell and Ross seas. To identify the mechanisms triggering Southern Ocean deep convection in models, we perform sensitivity experiments on the ocean model NEMO3.4 forced by prescribed atmospheric fluxes. We vary the vertical velocity scale of the Langmuir turbulence, the fraction of turbulent kinetic energy transferred below the mixed layer, and the background diffusivity and run short simulations from 1980. All experiments exhibit deep convection in the Riiser-Larsen Sea in 1987; the origin is a positive sea ice anomaly in 1985, causing a shallow anomaly in mixed layer depth, hence anomalously warm surface waters and subsequent polynya opening. Modifying the vertical mixing impacts both the climatological state and the associated surface anomalies. The experiments with enhanced mixing exhibit colder surface waters and reduced deep convection. The experiments with decreased mixing give warmer surface waters, open larger polynyas causing more saline surface waters and have deep convection across the Weddell Sea until the simulations end. Extended experiments reveal an increase in the Drake Passage transport of 4 Sv each year deep convection occurs, leading to an unrealistically large transport at the end of the simulation. North Atlantic deep convection is not significantly affected by the changes in mixing parameters. As new climate model overflow parameterisations are developed to form Antarctic Bottom Water more realistically, we argue that models would benefit from stopping Southern Ocean deep convection, for example by increasing their vertical mixing

Out with the Old, in with the New: The Mini-Trial Is the New Wave in Resolving International Disputes

Historically, merchants used arbitration to settle commercial disputes among themselves.1 However, the early American courts viewed arbitration unfavorably, often refusing to acknowledge its validity. 2 During the 1970\u27s, however, the courts\u27 attitude toward arbitration shifted. The United States Supreme Court decision, The Breman v. Zapata Off-Shore Co.,3 ushered in an era of growing acceptance toward arbitration agreements. The change in the Court\u27s attitude has allowed businesses to provide for arbitration agreements in their contracts without fearing that their desire to avoid litigation would be thwarte

Ultrasonic locating devices for central venous cannulation: meta-analysis

OBJECTIVES: To assess the evidence for the clinical effectiveness of ultrasound guided central venous cannulation. DATA SOURCES: 15 electronic bibliographic databases, covering biomedical, science, social science, health economics, and grey literature. DESIGN: Systematic review and meta-analysis of randomised controlled trials. POPULATIONS: Patients scheduled for central venous access. INTERVENTION REVIEWED: Guidance using real time two dimensional ultrasonography or Doppler needles and probes compared with the anatomical landmark method of cannulation. DATA EXTRACTION: Risk of failed catheter placement (primary outcome), risk of complications from placement, risk of failure on first attempt at placement, number of attempts to successful catheterisation, and time (seconds) to successful catheterisation. DATA SYNTHESIS: 18 trials (1646 participants) were identified. Compared with the landmark method, real time two dimensional ultrasound guidance for cannulating the internal jugular vein in adults was associated with a significantly lower failure rate both overall (relative risk 0.14, 95% confidence interval 0.06 to 0.33) and on the first attempt (0.59, 0.39 to 0.88). Limited evidence favoured two dimensional ultrasound guidance for subclavian vein and femoral vein procedures in adults (0.14, 0.04 to 0.57 and 0.29, 0.07 to 1.21, respectively). Three studies in infants confirmed a higher success rate with two dimensional ultrasonography for internal jugular procedures (0.15, 0.03 to 0.64). Doppler guided cannulation of the internal jugular vein in adults was more successful than the landmark method (0.39, 0.17 to 0.92), but the landmark method was more successful for subclavian vein procedures (1.48, 1.03 to 2.14). No significant difference was found between these techniques for cannulation of the internal jugular vein in infants. An indirect comparison of relative risks suggested that two dimensional ultrasonography would be more successful than Doppler guidance for subclavian vein procedures in adults (0.09, 0.02 to 0.38). CONCLUSIONS: Evidence supports the use of two dimensional ultrasonography for central venous cannulation

Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for a Half Decade of Avoidance, Minimalism & Partisanship

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and contentneutral regulations

Adult Entertainment and the First Amendment: A Dialogue and Analysis with the Industry\u27s Leading Litigator

This article gives Cambria the legal spotlight, at a time when conservatives control the White House and Congress, to discuss the never-ending tension between the First Amendment freedom of speech, which sometimes, although certainly not always, protects the $10 billion adult entertainment industry in the United States and the voices of censorship who would squelch such content. It is a tension that clearly affects many people, given the sheer popularity of sexually explicit speech and the mainstreaming today of adult content; sales and rentals of adult videos in 2002 totaled more than$4 billion, according to the Adult Video News. Pornography on the Internet generates another $2 billion. As a February 2003 article in the Washington Post observed, [t]he popularization of pornography is everywhere. The Video Software Dealers Association predicted in its most recent annual report that by 2006, adult entertainment will be among the three most significant online content providers... In this article, Cambria discusses, from his perch as one of the nation\u27s leading obscenity lawyers, a myriad of First Amendment-based issues including:(I) the continued viability of the obscenity test set forth by the United States Supreme Court in Millerv. California;32 (2) the regulation of so-called virtual child pornography;33 (3) his tactics in both selecting and arguing before juries in obscenity cases; (4) the zoning of adult entertainment establishments and the constitutionality of such efforts; (5) the so-called Cambria List of sexually explicit acts that often attract prosecutors\u27 attention; (6) his beliefs about the intent and purpose of the First Amendment in a democratic society; and (7) his representation of, as well as relationship with, Larry Flynt during the last quarter of a century. Along the way, Cambria comments on the state of the adult entertainment industry and the way it has now become a part of mainstream societ

“Defamation Live”: The Confusing Legal Landscape of Republication in Live Broadcasting and a Call for a “Breaking News Doctrine”

Live, broadcast defamation is a murky area of law garnering surprisingly scant scholarly attention. But because libel law typically creates republication liability for broadcasters who air defamatory statements uttered by third parties—even when news organizations have no idea what the third parties are about to say— broadcasters covering live, breaking news events face significant risks of liability for remarks by people at the scene. This Article analyzes the case law of live and spontaneous broadcast defamation, explores the statutory backdrop in such cases and, ultimately, proposes a solution in the form of a “breaking news doctrine” that relieves broadcasters of republication liability if five prerequisites are satisfied

The Open Mic, Unplugged: Challenges to Viewpoint-Based Constraints on Public-Comment Periods

Perhaps the purest form of citizen political expression is addressing a government body directly during the public-comment period. Despite its salutary civic benefits, the public-comment period faces escalating threats, with local elected officials imposing rigid controls on speakers. Disturbingly, these rules sometimes are enforced via arrest. The U.S. Supreme Court recently confronted this scenario in Lozman v. City of Riviera Beach, involving the arrest of a citizen-critic who refused to stop using his city council\u27s open-mic period to decry public corruption. While narrowly fact-specific, the Court\u27s June 2018 resolution of the case reaffirms the importance of protecting speakers at government bodies against retaliation for disagreeable views. This Article surveys recent instances in which speakers addressing government bodies were silenced--at times, forcibly--and how courts address both facial and as-applied challenges to restrictions on public comment. The Article also examines the constitutionality of commercially available standard-form policies increasingly adopted by local governments to restrict “insulting” speech, “personal attacks,” and other citizen criticism. It proposes taking the next logical step that the Lozman Court hesitated to take--namely, recognizing a framework to help courts assess all First Amendment retaliation claims by speakers punished for noncompliance with content- or viewpoint-based directives to refrain from speaking. Ultimately, the Article concludes that the simple burden-shifting analysis that the Court found applicable under Fane Lozman\u27s unique set of facts--in which it is the speaker\u27s burden to establish a prima facie case of a speech-punitive cause-and-effect--is in fact the appropriate standard for all such retaliation claims, so that the existence of an independent basis for arrest does not mechanistically defeat a speaker\u27s claim where a retaliatory motive is proven