Courts CP - Emory 2024

Courts CP
Courts CP---1NC
The Supreme Court of the United States should require licensing for generative artificial intelligence that trains on copyrighted material.
Courts are a more effective venue for copyright reform, but avoid the link to the politics DA.
Lauren Gorab 18. J.D. Candidate, Fordham Law School. “A Fair Use To Remember: Restoring Application Of The Fair Use Doctrine To Strengthen Copyright Law And Disarm Abusive Copyright Litigation.” Fordham Law Review 87, 10-7-2018. https://fordhamlawreview.org/wp-content/uploads/2018/10/07_Gorab-703-731.pdf
A. Proposed Reforms of Existing Law While Copyfraud anticipates that the legislative system will deal with copyright abuse, I suggest that the judicial system may prove a more effective venue for some reforms that Mazzone recommends. Copyfraud proposes, for instance, that Congress revise U.S. copyright statutory damage rules so that legitimate fair users will feel freer to engage in lawful (if edgy) uses of copyrighted works (pp. 201–03).82 Under current law, a successful copyright claimant can opt for an award of statutory damages instead of actual damages.83 The normal range for statutory damage awards is between $750 and $150,000 per infringed work.84 Mazzone believes that the risk of substantial statutory damage liability has undue chilling effects on users (pp. 202–03). Imagine, for instance, a town historical society that owned a set of 100 historically significant photographs by an unknown photographer from the 1960s, which it wanted to post on its website. Even if the society firmly believed doing so would be fair use, it might well refrain from posting the photographs online because of its potential exposure to a statutory damage award that could send it into bankruptcy.85 Mazzone would have Congress limit statutory damages for noncommercial infringements (p. 203). Reform of copyright’s statutory damages provision would be a very good idea.86 However, Congress seems unlikely to reform it as Mazzone recommends, given that copyright industry groups favor statuto-ry damages awards precisely because of their deterrent (that is, in terrorem) effects.87 A more feasible way to reform statutory damages would be to persuade judges to adopt guidelines to ensure that statutory damages awards are “just,” as the statute says they should be.88 In many cases, this approach would mean awarding an amount that approximates actual damages, and in some cases, courts have done just that.89 Another reform recommended in Copyfraud concerns contractual and technical measures aimed at overriding lawful uses of public domain or copyrighted works.90 The book recommends that Congress enact legislation to forbid contractual overrides to fair use (for example, anti–reverse engineering clauses in software licenses) so that such restrictions would be null and void (pp. 114–15). Mazzone would similarly have Congress amend laws outlawing circumvention of technical protection measures (TPMs), which are used to protect copyrighted works, so that circumvention for fair use purposes or for purposes of accessing public domain materials would be lawful (p. 93). Given the failure of previous legislative efforts to limit contractual overrides to fair use and to enable circumvention for fair use purposes,91 Copyfraud’s proposals are admirably idealistic, yet unrealistic. As with statutory damages reform, a more viable way to accomplish these objectives would be to persuade courts to treat contractual restrictions on fair use and other privileged uses as unenforceable on public policy grounds.92 Mazzone might also find comfort in plausible interpretations of the anticircumvention rules under which circumvention for fair use and other public interest purposes is already lawful.93 A complete ban on contractual or technical overrides to privileged uses may be overbroad.94 Copyfraud also recommends that Congress amend fair use to make it lawful to take samples from existing sound recordings to make new recordings (p. 65),95 but if Congress truly cared about creative sampling of sound recordings as fair use, it would probably have already taken action, given how well known the problem is. The book further recommends that initial purchasers of digital copies of or access rights to copyrighted works should have the right to transfer that copy or access right (p. 135), which would allow purchasers to resell these copies, give them away to friends, or donate them to nonprofit libraries. Congress has, however, had a chance to be receptive to a similar recommendation but declined the opportunity.96 Courts are a more likely venue than is Congress for achieving these two reforms. Courts could become more receptive to sampling as fair use and could draw upon common law exhaustion of rights principles to allow resales of digital copies.97 Nor is Congress likely to amend the Digital Millennium Copyright Act98 (DMCA) so that users would have considerably more due process rights with respect to materials they have stored on ISP sites that copyright owners claim are infringing, as Copyfraud recommends (pp. 92–93).99 Under Mazzone’s regime, a user would first have the chance to oppose a takedown notice, whereupon the ISP would do nothing unless and until the owner filed an infringement lawsuit (p. 93). Perhaps Mazzone is right that more should be done to encourage ISPs to take fair use and free speech principles into account when they process takedown notices, but it seems inefficient to require copyright owners to file a lawsuit when sending a letter identifying infringing works and asking the ISP to take them down would resolve most disputes. Courts are more likely than is Congress to interpret the noticeand-takedown rules in a way that takes into account public interest concerns.100
Solvency---AT: Congress Key---2NC/1NR
Courts are better at making IP policy, especially for emerging technologies.
Dan L. Burk & Mark A. Lemley 9. *Distinguished and Chancellor's Professor of Law at the University of California, Irvine; **William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. "Why Courts And Not Congress Offer A Way Out Of The Crisis". OUP Academic, in The Patent Crisis and How the Courts Can Solve It.
5-1-2009. https://academic.oup.com/chicago-scholarship-online/book/17136/chapter/174495140
Even if industry-specific patent legislation is legal, we are not persuaded that it is a good idea, for several reasons. First, while economics can make useful policy suggestions as to how patents work in different industries, we are skeptical of the ability of a statute to translate those suggestions into detailed patent rules for each industry. Many of the predictions of economic theory are fact-specific—they suggest different factors that should bear on the outcome of particular cases, but that require case-by-case application that cannot easily be captured in a statute. Economic theory is more useful in making general suggestions about how the patent system can be adapted to particular factual contexts than it is dictating hard and fast statutory rules.
Second, rewriting the patent law for each industry would involve substantial administrative costs and uncertainty. Congress would have to write new statutes not just for biotechnology and software but for numerous different industries with special characteristics. Semiconductors, pharmaceuticals, chemicals, nanotechnology,22 telecommunications, and other industries would all need separate statutes. District court judges, who already have enough trouble learning the arcane rules of patent law in the relatively few patent cases they hear, would have to learn a host of new statutes. The law supporting these statutes would be slow to develop, since fewer cases would come up involving each statute. The resulting uncertainty might enrich lawyers, but it surely would not be conducive to encouraging innovation.
Industry-specific legislation would also require a great deal of line drawing, as the boundaries between industries are vague and notoriously mutable. Semiconductor manufacturers and computer hardware companies patent and use software all the time. So, for that matter, do carmakers. Indeed, one study suggests that most software patents are obtained not by software companies but by hardware or electronics manufacturers. Drug delivery systems might be thought of as medical devices, pharmaceuticals, or biotechnology; presumably a different law would apply depending on how the invention was characterized. Even technologies that seem radically different, such as biotechnology and software, may unexpectedly converge, as recent developments in bioinformatics and proteomics have made clear.23 Further, a significant percentage of inventions fall into more than one field. John Allison and Mark Lemley find that on average each patented invention fits into 1.5 different technology categories,24 a number that is increasing with time.25 And new fields arise regularly. Nanotechnology, for example, combines advances in semiconductors, biotechnology, materials science, and even optics. As a result, it would prove impossible to carve up innovation into static fields. Imagine trying to fit all modern inventions into categories created fifty or one hundred years ago. The result would likely be a combination of constant legislative tinkering with categories and a system that was nonetheless behind the times.
Past experience with such specialized statutes is also not encouraging. The history of industry-specific statutes suggests that many fail because they are drafted with then-current technology in mind and are not sufficiently general to accommodate the inevitable changes in technology. In the United States, the poster child for failed sui generis legislation has been the notoriously neglected Semiconductor Chip Protection Act, or SCPA (17 U.S.C. §§ 901–914 [2000]). Passed at the behest of the U.S. semiconductor industry after six years of legislative debate, the SCPA created a detailed set of rules designed to protect the “mask work” or circuit design pattern etched into semiconductor chips. The statute was tailored specifically to the purported needs of the industry, including special provisions on reverse engineering and other practices common to semiconductor circuit design. The ostensible reason was to protect American innovation from foreign competitors. But the statute has virtually never been used to enforce the rights it created, generating only two published judicial opinions in the quarter century since its enactment.26 The most likely reason is that the particular focus of the SCPA (duplication of mask works) is obsolete because the nature of the semiconductor business changed to make the manufacturing process much more difficult and hence harder to imitate at low cost.27 The foreign competition so feared by U.S. chip fabricators has not vanished, but it is not based on imitation of the sort the SCPA prohibits, and in any event the industry appears to be thriving without recourse to its specialized statute.
Congress is worse for determining copyright law. They are captured by political interests.
Raphael Janove 14. J.D. from the University of Chicago Law School. “Yielding To The Confiscation Of Public And Private Property: Judicial Deference Under The Copyright And Takings Clauses.” Vermont Law Review. Vol. 39:089. https://lawreview.vermontlaw.edu/wp-content/uploads/2011/09/39-06_Janove.pdf
But a good job of fact-finding should not always be presumed. Legislators often act in their self-interest and pursue fact-finding to support a desired legislative outcome.208 If lawmakers do not care about collecting the necessary facts and just want to “deliver[ ] the goods” to interest groups, then judicial deference based on institutional capacity is flawed.209 Therefore, deference based on institutional capacity to collect facts to serve the public must be tempered by the realization that the legislative institution may not have adequate incentives to actually do a good job fact-finding.210 Just because the legislature has superior institutional capacity, it does not follow that the legislature actually uses this capacity wisely. Congressional performance in collecting facts to serve the public preferences is related directly to political salience of the issue.211 Significant public scrutiny or opposition will likely increase the attention or care that legislators take.212 For example, Congress has made “short thrift to fact finding” in certain legislation taken pursuant to the Commerce Clause or the Fourteenth Amendment’s enforcement power. Congress lacked incentives to engage in comprehensive fact-finding because of the lack of interest group or federalism-based opposition to this legislation.213 Thus, perhaps the Supreme Court’s intervention to curtail some congressional activity on behalf of federalism is due to the absence of congressional attention to federalism when enacting legislation.214 In the previous Part, I explained that incentives and structure make it more likely that the strength of opposition ensures a more properly functioning political process in takings than in copyright extensions. If the political process is well-functioning, we should expect the legislature to take fact-finding seriously. By examining the fact-finding behind the governmental action in Kelo and Eldred, it appears that the tools of superior institutional capacity more likely will be exercised in takings than in copyright extensions. Consequently, copyright extension warrants less judicial deference to Congress’s fact-finding than takings.
The counterplan leads to legislation.
Helena Silverstein 96. professor of law at Lafayette College. Unleashing Rights, p. 204-205
In addition, activists noted that education stemming from litigation can influence government decision makers. This potentially includes state and federal legislators as well. Attorney Lauren Smedley suggested that judicial decisions can "serve as a springboard for further legislation." Likewise, another attorney-activist described litigation activity as having three parts: litigation, education, and legislation. Although she does not play a direct role in the third, this attorney asserted that, in conjunction with litigation, "ideally, there should be a piece of legislation ready to go so that an angry public that has just read all about it ... can say 'now Mr. or Ms. Assemblyperson, vote for this."'
From this we see litigation defined beyond the realm of implementation and regulatory enforcement. Litigation is viewed and used as a catalyst for legislation. In addition, the evidence and information revealed during trials may provide the impetus for other activity. As Kaplan noted, even if a case does not result in a direct judicial victory, the "emergence of evidence ... may help us to crystallize the grievance that we have and help us to formulate another strategy either in the courts or not in the courts." In Kaplan's view, litigation has meaning-making power for animal rights advocates. It may contribute to the formulation of complaints and strategies and may foster new ways of thinking about and approaching an issue. More generally, litigation by one group can catalyze litigative activity by others. As was suggested in Animals' Agenda, a court decision that overturned a hunter harassment law in New Hampshire "provides potent ammunition for those who wish to challenge the constitutionality of similar legislation in other states" (Animals' Agenda, December 1986, 28).
Solvency---AT: Say No---2NC/1NR
Other parts of the federal government will follow court orders.
Tara Grove 18. Professor of Law at the College of William & Mary; New York University Law Review, 2018. “The Power of ‘So-Called Judges’,” vol. 93
Another important factor is the institutional role of the Department of Justice (DOJ). The DOJ’s primary function is to represent the interests of the United States in federal court.30 In order to perform this function effectively—that is, to win cases in court—the DOJ must maintain a certain level of credibility with the federal judiciary. The DOJ would have difficulty maintaining that credibility if its “client” (the federal government) threatened to violate adverse federal court orders. Accordingly, the DOJ has a strong institutional incentive to push the rest of the federal executive branch to abide by federal court judgments. 31 These institutional incentives are bolstered by the culture among the attorneys at the DOJ. These attorneys were trained in a legal community that has long promoted compliance with federal court orders.32 Indeed, it likely does not occur to many lawyers at the DOJ that defiance is a viable, much less legal, option.
Empirics prove.
Tara Grove 18. Professor of Law at the College of William & Mary; New York University Law Review, 2018. “The Power of ‘So-Called Judges’,” vol. 93
The Strength of the Norm at the Federal Level
Since the civil rights era, federal executive officials have consistently complied with federal court orders.22 One of the most instructive examples is the George W. Bush administration’s obedience in the wake of the September 11 terrorist attacks. The Bush administration made bold claims about the scope of executive authority in the war on terror—leading some scholars to worry that the administration might not obey a judicial order restricting its power.23 Yet when the Supreme Court held that Guantanamo Bay detainees could file federal habeas corpus petitions to challenge their confinement,24 President Bush announced: “We’ll abide by the Court’s decision. That doesn’t mean I have to agree with it.”25
Recent episodes, however, raise questions about the continuing adherence to this convention. One cause for concern is President Trump’s rhetoric denouncing federal judges that interfere with his travel ban. Although other presidents have criticized the judiciary, most have not mounted seemingly personal attacks against specific judges.26 Another worrisome sign is the pardon of former Arizona Sherriff Joe Arpaio. In 2016, Arpaio was convicted of criminal contempt for violating a federal court order, which restricted his authority to arrest and detain undocumented immigrants.27 On August 25, 2017, President Trump pardoned Arpaio28—a move that could be seen as an endorsement of not only the sheriff’s aggressive law enforcement tactics but also his defiance of the federal court.
Nevertheless, I believe there are good reasons to expect continued compliance by the executive branch, at least for the foreseeable future. Several factors serve to reinforce the convention requiring obedience to all federal court orders. The first is the fact that both Republican and Democratic presidential administrations have consistently complied from the 1970s to the present day.29 That historical record alone places some pressure on current executive officials to continue to adhere to federal court decrees.
Other branches will support the courts.
Lawrence Baum 3. Professor of political science at the Ohio State University. June. “The Supreme Court In Amerian Politics.” Annual Review of Political Science, Vol. 6, 161-180. Annual Reviews.
It is also worth asking why the Court fares so well in Congress. As noted above, few of the Court's most controversial interventions in the past half century have been directly reversed. Nor has Congress enacted any of the numerous bills to remove the Court's jurisdiction over areas in which the Court has aroused congressional anger. A large part of the explanation lies in the difficulty of enacting legislation in a process with so many veto points. That difficulty is especially great in an era like the current one, which lacks a strong or stable law-making majority. In such an era, interventions are likely to have significant support in government regardless of their ideological direction, and even decisions

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