YouTube is an important platform for user-generated content and serves as a positive space for creativity on the internet. Nevertheless, there are some glaring problems with the way YouTube handles copyright infringement. Congress enacted the Digital Millennium Copyright Act (DMCA) before the internet had taken shape into the vast and complex body we know today. Copyright holders are given far more leniency than the creators accused of infringement, largely due to a subjective good faith standard imposed by the courts. This article proposes the good faith standard in § 512(c) of the DMCA be amended to incorporate an objective standard instead of the harmful subjective good faith standard.

Intellectual Property and Technology Forum

Keeping the Good Faith: YouTube, Fair Use, and the DMCA

In the wake of the Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, personal data has become a means of investigating and prosecuting individuals who seek or provide abortion services. With little federal oversight into the collection and disclosure of users’ personal data, third parties have significant latitude to sell or profit from sensitive information. The recent use of location and personal data implicates the privacy of millions of individuals and raises significant questions around health care and technology laws in states where abortion is now illegal. In the absence of sweeping federal regulations around data collection and disclosure, states ought to enact stronger legislation to protect their citizens from the exploitation of their most sensitive data.

iSpy Someone Getting an Abortion: The Use of Personal Data in the Post-Dobbs Era

Stare decisis may not be an “inexorable command,” but it certainly commands a substantial amount of the Supreme Court’s time and attention. Nowhere is this truer than in the fraught context of the Court’s abortion jurisprudence. In its landmark 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a narrowly divided Court connected the continued constitutional protection for abortion rights to the perceived necessity of adhering to its earlier decision in Roe v. Wade. Since then, the Court’s abortion decisions have often featured sharp divisions over the proper understanding and application of stare decisis.

In a prior Article, I suggested a framework for extracting precedential guidance from plurality decisions that focused on identifying the universe of future cases that fall within the domain of overlapping agreement shared between the various judgment supportive opinions in a case. The Court’s decisions in Ramos and June Medical provide an occasion to revisit and extend that framework by illustrating how courts applying this “shared agreement” approach should think about plurality decisions in relation to prior majority-supported precedent.

The shared agreement approach provides a way of thinking about plurality precedent that helps to identify plurality decisions that overturn or alter prior precedent and to distinguish them from decisions that leave preexisting precedent untouched. In particular, the shared agreement approach recognizes the ability of plurality decisions to alter precedent only in those circumstances where a majority of Justices whose votes were collectively necessary to the judgment in the original case agree that the earlier precedent should be overruled. Where, by contrast, the members of the judgment-necessary majority disagree about prior precedent, the willingness of a subset of the majority to overrule an earlier decision leaves the precedential status of the earlier decision undisturbed.

Boston College Law School Faculty Papers

Plurality Decisions and Prior Precedent

The Brazilian Worker Center (BWC) is a community-based organization that supports immigrants on issues of workplace rights, and provides a variety of community support services. We work in partnership with community members; supporting them in executing their rights through organizing, advocacy, education, leadership, capacity building, and civic engagement. We join Brazilians and other immigrants by supporting them in organizing against economic, social, and political exclusion in order to create a more just society. The passage of the Massachusetts Domestic Workers Bill of Rights (DWBR) in 2014 was the culmination of such an organizing effort by five community groups, including BWC, and represents a monumental step toward such justice. 

Nearly seven years since the DWBR went into effect, BWC thought it vital to study the impact of this law on domestic workers. Domestic workers are essential to our community – they take care of our homes and our loved ones – and therefore, it is our duty, as a community, to also take care of them. We hope this study will push all of us to work harder to fulfill the promise of the DWBR. 

This report is being released at a crucial time for the immigrant community. Nearly a decade after our coalition passed the DWBR, and after years of advocacy and challenges from opposition groups, we passed a new law, the Work and Family Mobility Act. This law allows people, regardless of immigration status, to obtain their driver’s license in the state of Massachusetts. However, our work for immigrant workers must continue and this Report provides a blueprint for how we can further advance the rights of domestic workers in our state.

Making it Work for Workers: A Study on the Efficacy of the Massachusetts Domestic Workers Bill of Rights

The U.S. biotechnology industry got its start and grew to maturity over roughly three decades, beginning in the 1980s. During this period genes were patentable, and many gene patents were granted. University researchers performed basic research—often funded by the government—and then patented the genes they discovered with the encouragement of the Bayh-Dole Act, which sought to encourage practical applications of basic research by allowing patents on federally funded inventions and discoveries. At that time, when a researcher discovered the function of a gene, she could patent it such that no one else could work with that gene in the laboratory without a license. She had no right, however, to control genes in nature, including in human bodies. Universities licensed their researchers’ patents to industry, which brought in significant revenue for further research. University researchers also used gene patents as the basis for obtaining funding for start-up enterprises spun out of university labs. It was in this environment that many of today’s biotechnology companies started. In 2013, the Supreme Court held that naturally occurring genes could no longer be patented. This followed a 2012 decision that disallowed patents on many diagnostic processes. These decisions significantly changed the intellectual property protections in the biotechnology industry. Nevertheless, the industry has continued to grow and thrive. This Article investigates two questions. First, if some form of exclusive rights still applied to genes, would the biotech industry be even more robust, with more new entrants in addition to thriving, well-established companies? Second, does the current lack of protection for gene discoveries incentivize keeping such discoveries secret for the many years that it can take to develop a therapeutic based thereon—to the detriment of patients who could benefit from knowledge of the genetic associations, even before a treatment is developed? The Article concludes by analyzing what protection for discovering genetic associations, if any, will most increase social welfare.

Patenting Genetic Information

David Ricardo, John Stuart Mill and other classical economists highlighted the important potential gains from specialization and trade. Today, economists refer to the concept of the terms of trade to analyze which trading party manages to obtain what share of those gains. From a normative perspective, trade is a prime example of what Rawls calls the “circumstances of justice”: trading parties have both overlapping interests—they can enhance their wealth through trade—and conflicting interests—they want to maximize their share of the gains from trade.

Mathias Risse and Gabriel Wollner’s book On Trade Justice provides us with a normative toolkit to assess what terms of trade can be considered just. Their analysis of justice in trade is not limited to trading relations between states, even though they recognize the important role that states play, but extends to the obligations that arise from trade for other actors such as corporations.

On Trade Justice represents an important and unique contribution to the growing literature on trade justice. The contributions to this special issue critically assess some of the central arguments put forward by Risse and Wollner. Encouraging this constructive dialogue on the different facets of trade represents one important step towards more just trading practices.

The goal of this brief introduction is twofold. First, we pick up on a number of fundamental questions raised by both Risse and Wollner and by the contributors to this special issue. Second, we provide a short overview of each of the articles.

On Whose Terms? Power and Exploitation in Trade

The Massachusetts Guide to Evidence is prepared annually by the Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law. By direction of the Justices of the Supreme Judicial Court, the Guide organizes and states the law of evidence applied in proceedings in the courts of the Commonwealth, as set forth in the Federal and State Constitutions, General Laws, common law, and rules of court. The Committee invites comments and suggestions on the Guide.

Massachusetts Guide to Evidence: 2023 Edition

Side effects of COVID-19 or other vaccinations may affect an individual’s safety, ability to work or care for self or others, and/or willingness to be vaccinated. Identifying modifiable factors that influence these side effects may increase the number of people vaccinated. In this observational study, data were from individuals who received an mRNA COVID-19 vaccine between December 2020 and April 2021 and responded to at least one post-vaccination symptoms survey that was sent daily for three days after each vaccination. We excluded those with a COVID-19 diagnosis or positive SARS-CoV2 test within one week after their vaccination because of the overlap of symptoms. We used machine learning techniques to analyze the data after the first vaccination. Data from 50,484 individuals (73% female, 18 to 95 years old) were included in the primary analysis. Demographics, history of an epinephrine autoinjector prescription, allergy history category (e.g., food, vaccine, medication, insect sting, seasonal), prior COVID-19 diagnosis or positive test, and vaccine manufacturer were identified as factors associated with allergic and non-allergic side effects; vaccination time 6:00–10:59 was associated with more non-allergic side effects. Randomized controlled trials should be conducted to quantify the relative effect of modifiable factors, such as time of vaccination.

CC BY 4.0 Attribution

Identifying Modifiable Predictors of COVID-19 Vaccine Side Effects: A Machine Learning Approach

Recent revisions to ABA accreditation standards provide yet another exciting opportunity for faculty teaching lawyering skills to position our courses as central to preparing students for excellence in professional practice, particularly in terms of offering opportunities for professional identity formation in the first-year curriculum.

ABA Standard 303(b)(3) now formally requires that law schools provide “substantial opportunities” to law students for “the development of a professional identity.” Interpretation 303-5 provides that professional identity “focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” Importantly, the Interpretation counsels that this practice requires “requires reflection and growth over time,” including frequent opportunities for development “during each year of law school” and “in a variety of courses . . . and activities.”

Like many of our colleagues across the country even prior to the February 2022 standards revision, the first-year lawyering skills faculty at Boston College Law School has integrated professional identity formation into our teaching in a variety of ways. This article briefly describes our comprehensive, experiential lawyering skills curriculum that specifically incorporates professional identity formation into its learning outcomes. Then, it offers the “oral report to a supervising attorney” module as an example of a traditional skills exercise that we’ve reframed to offer a specific opportunity for professional identity formation which incorporates the perspectives of practicing lawyers and judges, including BC Law alumni, and allows students to better envision themselves as lawyers in a wide range of professional practices. Finally, the piece offers suggestions for faculty seeking to recreate the exercise at other schools and reflects on enhancements we will make to the activity going forward. 

Integrating the Perspectives of Alumni Practitioners into the Oral Report Module to Provide an Opportunity for Professional Identity Formation Early in the First Year

Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation. In support of findings of facts and conclusions of law about whether the divorcing couple has established a separation, some jurisdictions will ask whether the couple has lived in the same abode and, if so, will inquire about the divorcing couple’s roles and choices vis-à-vis one another—for example, preparing meals for one another or engaging socially with one another. Other jurisdictions will make explicit inquiries into whether a couple has had sex with one another. Probing into families’ living arrangements and adults’ sexual choices does real and particular harm to marginalized social groups, and doing so defies the liberty and privacy interests of families and couples. In explicating this litany of critiques, this project attempts to avoid the trap that family law scholarship can too easily fall into; namely, criticizing doctrine “on a low level of abstraction” and rushing to a proposed reform. This piece, therefore, offers a taxonomy of the harm that separate and apart requirements cause—paying particular attention to the ways in which these laws are classist, heteronormative, gendered, and racially charged—and illuminates how constitutionally precarious such laws are. The project is ambitious as it attempts to situate and expose the deep-seated problems of separate and apart requirements as reflective of the deep-seated flaws in family law jurisprudence generally. The piece offers a comprehensive analysis and investigation of separate and apart requirements, and it serves as an invitation to further conversation and exploration of the themes raised herein.

Based on the author’s practice experience as much as her scholarship, the proposal insists that where couples are struggling deep in the heart of the matter about their choices—the good ones and the mistakes—they do not need or desire a judicial officer to ask them to wait or to organize their life a certain way before allowing them to divorce. Nothing and no one is served by insisting on some normative view about what the end of a marriage looks like and requiring some time period for performance of that view. The proposal in this piece joins a growing chorus of practitioners, judges, and scholars talking about administrative divorces. The distinct voice in this piece advocates for administrative divorce as a procedural decoupling of divorce from any underlying or attendant economic and custody issues. The piece motivates this argument based on the premise that allowing families to proceed thusly will enhance the self-determination of families in transition and promote use of the courts when, and only when, the families determine that court involvement in matters of children and economics will improve their stability.

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