Online Journal — Columbia Undergraduate Law Review

“Mood Forever”: Rethinking Fair-Use Cases in the Age of Social Media

In 2019, model Emily Ratajkowski faced a copyright lawsuit from photographer Robert O’Neill. O’Neill, a paparazzi photographer, had taken a street photograph of Ratajkowski. Ratajkowski later reposted the photo on her Instagram story, a feature of Instagram where one can temporarily post a picture for 24 hours, with an additional caption superimposed over the photo stating “mood forever.” [1] Under Section 106 of the Copyright Law of the United States, O’Neill held the exclusive right to authorize the reproduction of the photograph. Citing this exclusive right, O’Neill subsequently filed a complaint against Ratajkowski for her “unauthorized reproduction” of the photograph. However, Section 107 of copyright law outlines certain exceptions that fall under the category of “fair use,” stating that if the original work is reproduced “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then the reproduction does not constitute copyright infringement. [2] Ratajkowski’s lawyers argued that the Instagram story is fair use. In the photograph, Ratajkowski holds a bouquet of flowers over her face, blocking her face from paparazzi; in her repost, Ratajkowski also adds the text “mood forever.” Ratajkowski’s lawyers thus argued that the addition of the text transformed the photograph into a critique of the “abusive, aggressive, and harassing practice of paparazzi.” [3]

Phoebe LuJanuary 18, 2022social media, fair-use, transformative-use, parody

Child Labor and the Human Rights Violations Embedded in Producing Technology

Every new Apple release comes with a media blitz about the new iPhone’s improved camera quality, the speed of the M1 processor chip in the latest MacBooks, or the sound quality of the next generation AirPod Pros. An Apple product’s design interface is carefully curated—all with the goal of arousing a feeling of sleekness and fashion in the consumer. However, despite Apple’s futuristic facade, its labor model is backwards and deeply problematic. Indeed, Apple’s cobalt batteries are built on the backs of child labor in mines, causing severe physical harm to children and violating international standards of human rights.

Amogh DimriJanuary 18, 2022technology, children, children’s rights, human rights, child labor

HIPAA Constraints on Brain Fingerprinting Evidence in Criminal Court: Pitfalls & Possibilities

Orwellian fears of mass-government use of neurotechnologies and the rise of a “thought police'' are seemingly moving beyond fiction to the status quo. Novel neurotechnological applications have emerged in the courtroom, in public policy decision-making, and even in legal education through conferences and coursebooks. Municipalities are aware of this move: they have actively funded it. Sustaining this proliferation is millions of dollars worth of research grants from government agencies like The John D. and Catherine T. MacArthur Foundation. [1] Yet, these investments are not without reason. The current applications of neuroimaging technologies—namely fMRI, EEG, and PET scan evidence—are extensive and versatile when verifying the credibility of witness testimony. From proof of inability to waive Miranda rights to inability to form criminal intent, as well as evidence that certain plaintiffs are still experiencing pain after their accidents, the possibilities are endless. [2] The most recent development, the P300 EEG response tool, is already in use by the CIA, though details surrounding usage are currently undisclosed. [3]

Isabella SouzaJanuary 18, 2022HIPAA, neurotechnologies, EEG, privacy

Consequences of Plea Bargaining: In Consideration of the Rights of the Accused

As Americans currently look to reform the nation’s criminal justice system, with its high incarceration rates and immense racial disparities, plea bargaining is an important consideration. In a plea bargain, also known as a plea deal, the defendant agrees to plead guilty or “no contest,” in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence that is acceptable to the defense. In turn, this allows the defendant to receive a reduced sentence. [1] A plea bargain is a facet of the American criminal justice system that initially became commonplace in the 1920s in order to expedite the trial court process. The prevalence of plea bargaining is constantly being reexamined as the United States reconciles constitutional principles and legal precedent with historic prejudices in its criminal justice system.

Reconciling Cyberwarfare and Big Data Rights: Do International Human Rights and Humanitarian Laws apply?

As cyberattacks and data leaks increasingly become a part of daily news, their impact is more noticeable across every field of society. More importantly, cyberattacks with significant political and civil implications have begun affecting electoral systems—a serious threat to democracy and international human rights. Indeed, the increasing number of cyberattacks has direct implications for the rights laid out in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights (UDHR). For instance, the “Ghostwriter” attack of 2017 targeted elections of several European Union (EU) member states to foment distrust in the North Atlantic Treaty Organization (NATO). Following this series of attacks, the EU formally assigned responsibility to Russian operators in September 2021, implying undue external interference on political systems had occurred. Also in September 2021, a suspected internal cyberattack to Hungarian polling systems caused nationwide election interference, hindering free participation in public affairs, freedom of expression, and voting rights. [1] Thus, as data analytics can facilitate interference with civil and political liberties as well as enable armed attacks and military strategies, data and cybersecurity rights—the rights determining how to collect, process, use, or disclose personal and private data information—should be seen as a logical extension of human rights.

Current Events | How A Forthcoming Supreme Court Decision Could Trigger A New Era of Weakened Gun Laws

This past November, the U.S. Supreme Court heard oral arguments for New York State Rifle & Pistol Association v. Bruen, a case challenging a strict New York state gun law. This marks the first time the Court has taken up a major Second Amendment case in more than a decade. After two hours of questioning, a majority of justices seemed poised to strike down the law, which restricts citizens from carrying concealed handguns outside the home unless they prove a heightened or unique need, known as a “proper cause,” to do so. [1] Considering the Court’s recent 6-3 conservative supermajority, the justices will likely rule the New York law unconstitutional. In turn, the New York case could have lasting ramifications, endangering current restrictions on guns in public spaces such as bars, sports stadiums, and subways, and ushering in a new era of weakened gun control laws, increased litigation, and constitutional questions regarding where and when one can carry a gun in public.

Current Events | Poland and the EU: Legal Supremacy and Fragmentation

On October 7, 2021, the Polish Constitutional Tribunal issued a judgment that threatens to fragment existing frameworks of European law, challenging the legitimacy of international agreements over state sovereignty. In a 10-2 majority, its K 3/21 judgment claimed that select provisions of the Treaty of the European Union (TEU) were “inconsistent” with the Polish Constitution, ultimately placing European Union primary law below the Polish Constitution in the hierarchy of legal authority in the state.

Current Events | Upholding CEDAW: The Fight for Gender Equality in Kenyan Marriage Law

Over the last decade, Kenya has implemented new legislation to ensure legal equality between men and women in marriage. However, there is still a lack of equality between spouses, particularly in reference to matrimonial property and custody. This stands in conflict with Kenya’s obligations as a ratifying party to the 1981 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which requires that member states ensure that men and women be treated equally during, after, and outside of marriage. In order to comply with the standards of international human rights law laid out in CEDAW, Kenya must revise its 2013 Matrimonial Act and the 2014 Marriage Act and amend the 2016 Legal Aid Act to guarantee women legal equality.

Current Events | Supreme Court (In)action on Texas’s S.B. 8: The Growing Vulnerability of Abortion Rights

Last month, plaintiffs in Whole Woman’s Health v. Jackson filed an emergency request to block Texas’s new law prohibiting nearly all abortions. [1] On September 1, the Supreme Court denied their request, allowing the nation’s most restrictive abortion law to go into effect. To fully grasp this case’s significance, it is necessary to examine the content of the Court’s decision, the dissents, and the key legal questions that the judgment leaves behind.