California Western School of Law Legal Studies Research Paper Series最新文献

{"title":"Veil Piercing and the Untapped Power of State Courts","authors":"Catherine A. Hardee","doi":"10.2139/SSRN.2969109","DOIUrl":"https://doi.org/10.2139/SSRN.2969109","url":null,"abstract":"The Supreme Court in recent years has embraced an antimajoritarian trend toward providing constitutional protections for the elite who own or control corporations. This trend is especially troubling as it threatens to undermine the balance found in state corporate law between private ordering for internal corporate matters and government regulation to police the negative externalities of the corporate form. The Court’s interventions also have the potential to leave vulnerable groups without the protection of religiously-neutral laws designed to prevent discrimination, protect workers, or provide essential services such as health care. While the Supreme Court has not yet explicitly preempted what has traditionally been the province of states, the Court has relied, both implicitly and explicitly, on its own controversial definitions of state law as the foundation on which to create speech rights for corporations and religious rights for corporate owners. Absent explicit federal preemption, states can and should fight back against this creeping federalization of state corporate law. \u0000 \u0000This Article provides a roadmap. It suggests modest changes to the veil piercing doctrine that can help to restore, at least in part, the balance of power between states and their corporate creations. A state court signaling to business owners even a potential for piercing, and thus the potential for unlimited personal liability, could discourage corporations doing business in the state from seeking religious exemptions to neutrally applicable laws. Most importantly, these changes do not threaten to undermine the corporate control mechanisms that have allowed for efficient private ordering within corporations, nor will they allow corporations to avoid these third-party protections by reincorporating in a different state. Forcing the federal courts to confront state assertions of their right to limit and define corporations will, at the very least, require the Supreme Court to be transparent about the extent to which it intends to federalize state corporate law, advancing rule of law values like certainty and predictability that are important to individuals and corporations alike.","PeriodicalId":443973,"journal":{"name":"California Western School of Law Legal Studies Research Paper Series","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123607352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fixing Section 512 - Legislative Reforms for the DMCA Safe Harbor Provisions","authors":"Arthur H. Neill, Erika Lee","doi":"10.2139/SSRN.2879696","DOIUrl":"https://doi.org/10.2139/SSRN.2879696","url":null,"abstract":"Since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998, both the creative landscape and the way internet users interact with this landscape has changed as well. Over the last eighteen years, everyone from remix artists to independent creators to Hollywood has experimented and exploited various online media platforms in ways that were only distant imagination in 1998. With this experimentation have come unexpected consequences, affecting both the creative decisions and protection measures of large-scale copyright holders and individual artists alike. In this ever-changing landscape, there is a constant power struggle between those who have the ability to protect their content, and those who do not. The DMCA has provided a shield for innovation in intermediary technologies by protecting these technologies against legal claims for third party user infringement. However, there are deficiencies within section 512 of the DMCA and the flawed, out-of-court resolution process it creates.This article is based on work directly with clients who rely on section 512 and lawful content reuse, particularly internet users, smaller intermediaries, and independent creators. First, we address key problems with 17 U.S.C. § 512 and offer a proposal for legislative solutions to these problems. Specifically, we discuss the fact that section 512(f) is ineffectual at preventing copyright overreach and bullying. Second, we address the section 512 notice and takedown procedures, and the particular problem of large-scale automated takedowns. Specifically, we analyze the vagueness of the law as it pertains to a fair use consideration before sending a takedown notice. We also propose three legislative solutions that would clarify fair use in section 512(c)(3)(A)(v), impose a gross negligence standard for section 512(f), and clarify section 512(f) damages. Third, we focus on the significant power imbalance between large- and small-scale copyright holders, and the settling culture that results from the financial disparity between rightsholders and defendants. Fourth, we focus on the problem of the inaccuracies of mass automated takedowns, and reject “notice and staydown” style changes that would place extraordinary further burdens on internet users and service providers.","PeriodicalId":443973,"journal":{"name":"California Western School of Law Legal Studies Research Paper Series","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127424831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}