SOUTHERN ILLINOIS UNIVERSITY
LAW JOURNAL
Volume 30 |
Spring 2006 |
ARTICLES
The Society of Information: Freedom, Pluralism, Resources.
Antonella Mularoni ...................................................................................................................................................................................................................................................................................417
In the United States, freedom of speech enjoys significant protections. However, in Europe, freedom of expression, because it carries with it duties and responsibilities, is subject to certain conditions and restrictions as Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms states. This Report explores recent case law of the European Court of Human Rights interpreting Article 10 of the Convention for the Protection of Human Rights and of Fundamental Freedoms. The European Court of Human Rights hears a case when an applicant feels that his or her rights have been infringed in their own country and seeks to have his or her rights vindicated. All European countries, except for Belorussia, have ratified the Convention and the cases span a wide array of disputes regarding the freedom of expression. This Report summarizes many of the recent decisions of the Court, which are indicative of the Court’s recent jurisprudence. Articles Editor: Nate Strickler
The Society of Information and Constitutional Laws
Giovanni Cordini .......................................................................................................................................................................................................................................................................................429
The constitutional problem posed by the “society of information” seems to answer an old question concerning the weight of power and its concrete exertion in the relationships between the rulers and the ruled, the problem of protecting the person from the abuse by the means of communication, and safeguarding private life. While the society of information includes and sums up all communication messages, legislatures and public powers─in defining, organizing, and managing the information of public interest─must accurately choose such messages and regulate various stages; the production, the gathering and classification, and subsequently the utilization and communication of information. The essay deals with the complex issue of the “right of information,” with a specific reference to the constitutional, legislative, and judiciary profiles existing in the Italian legal system, and to the thereby arising issues, also in the light of technological evolution. Articles Editor: Jeremy Richey
If A Picture Is Worth A Thousand Words, Then Advertising is Worth a Thousand Deaths
Kenneth B. Baren ....................................................................................................................................................................................................................................................................................469
Alcohol and tobacco manufacturers advertise their products in both electronic and print medium. These advertisements are geared towards youth under the age of 21 resulting in an alarming rate of addiction. This article discusses the advertising efforts tobacco and alcohol manufacturers use to market their products. The article shows youth are far more susceptible to these advertisements than adults. This article concludes that a new federal regulatory agency, the Alcohol and Tobacco Advertising Administration, must be established to regulate the advertising efforts of both industries so as to limit the amount and effect the advertisements have on youth under the age of 21. Articles Editors: Mollie Nolan & Jeremy Tillman
COMMENTS
The Not-So-Organic Dairy Regulations of the Organic Food Production Act of 1990
Chad M. Kruse .........................................................................................................................................................................................................................................................................................501
Ever since the regulations implementing the Organic Food Production Act of 1990 were finalized in December of 2000, some farmers have been searching for ways to reap the benefits of the higher profits available to producers of organic goods without sacrificing the industrialization of modern American agriculture. As demand for organic products continues to grow, the means to produce the products become more and more complicated. Organic farmers, much like their counterparts who still use synthetics, now face competition with much larger factory-style farms labeling their products with the USDA Organic label and offering cheaper products. Meanwhile, consumers are left in the dark as to what the new USDA Organic label means, especially in the case of dairy and meat products. The Comment explores the recent actions taken against the USDA by citizens and citizen groups seeking clarification and strict regulation and enforcement of Organic Food Production Act of 1990. In addition, the Comment explains the commonly held consumer belief that organic foods are more healthful. Finally, the Comment argues that future amendment and interpretation of the organic regulations should be made with consumer beliefs and natural animal behavior in mind.
Search for Original Expression: Fan Fiction and the Fair Use Defense
Mollie E. Nolan ..........................................................................................................................................................................................................................................................................................533
Since its very beginning, the Internet has given people the opportunity to communicate and express their ideas to the world in a previously unimaginable scale. While the internet did not create fan fiction, fan fiction writers have taken advantage of the ability to share their stories about their favorite television and movie characters with a limitless audience. This phenomenon has the potential to create numerous questions for the courts and legislatures to answer regarding copyright law and balancing the interests of those who own the characters and those who want to use those established characters to create something original. This Comment examines those questions in light of the history and purposes underlying copyright law and offers some solutions to these challenges.
CASENOTES
Internet Service Providers and Copyright Liability─Don’t Touch! . . . or at Least Not Too Much: CoStar v. LoopNet, 373 F.3d 544 (4th Cir. 2004)
Elizabeth Schuerman ..............................................................................................................................................................................................................................................................................573
Internet service providers generally provide the technology to allow others access to the Internet. Prior to 2004, internet service providers were shielded from copyright liability if their involvement in the process was passive and if the data flow was automatic. In CoStar v. LoopNet, the Fourth Circuit held that even though an internet service provider hired an employee to specifically scan submitted photographs for copyright infringement, the company was nonetheless shielded from liability because its review was brief and essentially insignificant. The author argues that this decision inappropriately expanded the safe harbor granted to internet service providers for copyright liability. As a result, internet service providers are left with no guidance for their future conduct and copyright owners are left with decreased protection for their works.
Cercla and its Limited Extraterritorial Reach: Arc Ecology v. U.S. Department of the Air Force, 294 F. Supp. 2d 1152 (N.D. Cal. 2003)
Lauren C. Stocks .....................................................................................................................................................................................................................................................................................595
The United States military functions not just within American borders but throughout the world, as part of its inherent purpose of protecting the United States and promoting world peace. Problems can arise, as they did in Arc Ecology v. U.S. Department of the Air Force, 294 F. Supp. 2d 1152 (N.D. Cal. 2003), when the land is not returned to the host country in its previous condition.
Arc Ecology, a case decided on December 3, 2003, by the U.S. District Court for the Northern District of California, San Jose Division, dealt with the issue of whether the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies extraterritorially to foreign counties. The plaintiffs, both Filipino citizens and two non profit organizations, brought a citizen suit, claiming the United States was responsible for contamination on two former U.S. military bases in the Philippines.
Evidenced by the evolution of the case law related to the issue of extraterritoriality, a strong presumption in American law exists that the congressional intent of most legislation is for the laws to only apply domestically. Thus, the Arc Ecology court obviously began its analysis with such a presumption. The presumption proved to be once again a useful tool. In addition, the court followed the logic of the majority of courts preceding it by looking for a “clear statement” of congressional intent, as well as examining CERCLA’s language and legislative history.
The Casenote not only compares the logic of the Arc Ecology court to that of prior courts which have addressed similar issues, but also addresses policy issues the court did not consider in deciding the case. The Note ultimately concludes, after a careful review of the decision made in Arc Ecolgy, that the court correctly held CERCLA was not intended to reach extraterritorially. The court’s logic is consistent with that of preceding similar cases and is in agreement with relevant public policy issues. The Arc Ecology court wisely held that the U.S. military was not responsible for environmental cleanup in that case.