Filtering, Piracy Surveillance and Disobedience

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players have opted in favor of “tolerated use,” a term coined by Professor Tim Wu to denote the allowance of uses that may be otherwise infringing, but that are allowed to exist for public use and enjoyment. Thus, while the eventual specter of copyright enforcement and monitoring remains a pervasive digital reality, the market may fuel a broad degree of consumer freedom through the toleration or taxation of certain kinds of activities. This Article is meant largely to address and to evaluate these shifts by drawing attention to the unique confluence of these two important moments: the growth of tolerated uses, coupled with an increasing trend towards more passive forms of piracy surveillance in light of the balance between copyright enforcement and civil liberties. The content industries may draw upon a broad definition of disobedience in their campaigns to educate the public about copyright law, but the market’s allowance of DRM-free content suggests an altogether different definition. The divide in turn between copyright enforcement and civil liberties results in a perfect storm of uncertainty, suggesting the development of an even further division between the role of the law and the role of the marketplace in copyright enforcement and innovation, respectively

Sexuality and Sovereignty: The Global Limits and Possibilities of Lawrence Symposium: Legal Rights in Historical Perspective: From the Margins to the Mainstream

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas\u27 prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the decision; it represents a culmination of nearly a century\u27s worth of work in dismantling prejudicial views on gays and lesbians in American law and, indeed, the rest of the world. In this article, I explore Lawrence\u27s hidden and unstated implications for the recent globalization of gay civil rights, and contemplate whether Lawrence is yet another symbol of a global wave of change, or whether it represents an ultimately unfulfillable goal worldwide, particularly in places where gay civil rights movements have been met with considerable backlash. I will argue in this paper that a close reading of Lawrence represents a culmination of a historic, and increasingly global, convergence between liberty, privacy, and anti-essentialist theories of sexual identity. Indeed, the ultimate significance of Lawrence lies not in its overt shielding of sexual minorities from criminalization, but rather in its willingness to offer to the American (indeed global) public, a version of sexual autonomy that is filled with both promise and danger, fragility and universality. For, quite unlike Bowers, which largely directed its judicial gaze towards gays and lesbians in particular, the court in Lawrence carried a message of sexual self-determination for everyone, irrespective of sexual orientation. Emerging from this decision is a vision of sexual self-determination, what I call sexual sovereignty, that represents the intersectional convergence of three separate prisms: spatial privacy, expressive liberty, and deliberative autonomy. At the same time, by examining the case law that has flourished in its wake, we see that it has often been correlated with an implicit logic of containment that has relegated the exercise of sexual autonomy to private, rather than public, spaces. In creating a space for the convergence of all three facets, I would argue that Lawrence is a triumph - and a product - of anti-essentialism, but its implicit logic of containment limits its potential to traverse both theoretical and global divisions regarding culture and sexuality. Consequently, ultimately, despite the power of its universalist vision, this Article argues that Lawrence is circumscribed by potential limitations wrought by culture, property, nationality, and citizenship

Notes Toward a Critical Contemplation of Law

In this tribute to Professor Derrick Bell’s legacy, Professor Katyal reflects on one of Bell’s greatest gifts: the necessary, and perhaps unfinished gift of critical contemplation of law, along with its possibilities and its concomitant limitations. In her paper, Katyal reflects on two seemingly disparate areas of civil rights that might benefit from Bell’s critical vision: the area of LGBT rights and equality, and federal Indian law. Relying on some of Bell’s most valuable insights, Katyal calls for the creation of a “critical sexuality studies” and a “critical indigenous studies” that employs some of Bell’s groundbreaking lessons in reimagining broader and more inclusive concepts of equality and equal protection

Three dimensional maps of the Magellanic Clouds using RR Lyrae Stars and Cepheids II. The Small Magellanic Cloud

We use data on variable stars from the Optical Gravitational Lensing Experiment (OGLE III) survey to determine the three-dimensional structure of the Small Magellanic Cloud (SMC). Deriving individual distances to RR Lyrae stars and Cepheids we investigate the distribution of these tracers of the old and young population in the SMC. Photometrically estimated metallicities are used to determine the distances to 1494 RR Lyrae stars, which have typical ages greater than 9 Gyr. For 2522 Cepheids, with ages of a few tens to a few hundred Myr, distances are calculated using their period-luminosity relation. Individual reddening estimates from the intrinsic color of each star are used to obtain high precision three-dimensional maps. The distances of RR Lyrae stars and Cepheids are in very good agreement with each other. The median distance of the RR Lyrae stars is found to be 61.5 +/- 3.4 kpc. For the Cepheids a median distance of 63.1 +/- 3.0 kpc is obtained. Both populations show an extended scale height, with 2.0 +/- 0.4 kpc for the RR Lyrae stars and 2.7 +/- 0.3 kpc for the Cepheids. This confirms the large depth of the SMC suggested by a number of earlier studies. The young population is very differently oriented than the old stars. While we find an inclination angle of 7{\deg} +/- 15{\deg} and a position angle of 83{\deg} +/- 21{\deg} for the RR Lyrae stars, for the Cepheids an inclination of 74{\deg} +/- 9{\deg} and a position angle of 66{\deg} +/- 15{\deg} is obtained. The RR Lyrae stars show a fairly homogeneous distribution, while the Cepheids follow roughly the distribution of the bar with their northeastern part being closer to us than the southwestern part of the bar. Interactions between the SMC, LMC, and Milky Way are presumably responsible for the tilted, elongated structure of the young population of the SMC.Comment: 13 pages, 6 figures, 4 tables, published in A

In Defense of Property

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate property with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of peoples rather than persons, arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law\u27s dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples\u27 cultural property claims in terms of non-owners\u27 fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests

Effect of P-wave interaction in 6He and 6Li photoabsorption

The total photoabsorption cross sections of six-body nuclei are calculated including complete final state interaction via the Lorentz Integral Transform method. The effect of nucleon-nucleon central P-wave forces is investigated. Comparing to results with central potentials containg S-wave forces only one finds considerably more strength in the low-energy cross sections and a rather strong improvement in comparison with experimental data, in particular for 6Li.Comment: 11 pages with 4 figure

Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name

A difficult set of legal issues stem from the crossover between stealth marketing and user generated content in both real and digital space. Today, branding opportunities can be cloaked within ordinary noncommercial expression, as corporate sponsorship extends further and further toward resembling user generated content, making it difficult to discern when content is sponsored and when it is not. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the antibrand, destabilizing the division between them. This shift carries substantial legal implications for trademark owners. When advertising is no longer limited to its traditional channels, the public sphere becomes littered with examples of both branding and antibranding. As a result, it becomes all the more necessary for trademark law to intervene, leading brand managers to act more readily to protect the goodwill behind their marks through an increasing reliance on trademark surveillance and ceaseand- desist strategies. In this symposium piece devoted to the study of advertising in the law, I focus on the relationship between the brand and the antibrand, and the implications of their dialectic for trademark law generally. Trademark law, I argue, has facilitated a dual trend: while brand sponsorship stretches into noncommercial domains, mimicking the style and substance of user-generated content, it risks overtaking the traditional sphere and functions occupied by the antibrand. In Parts I and 11, I discuss the rise of both the brand and the antibrand in public spaces. In Part 111, I discuss how advertising, increasingly, has begun to draw upon the traditional channels occupied by antibranding strategies, and in Part IV, I discuss some potential legal implications from this expansion