Essay

Lessons from DataRescue: The Limits of Grassroots Climate Change Data Preservation and the Need for Federal Records Law Reform

Essay

Shortly after Donald Trump’s victory in the 2016 Presidential election, but before his inauguration, a group of concerned scholars organized in cities and college campuses across the United States, starting with the University of Pennsylvania, to prevent climate change data from disappearing from government websites. The move was led by Michelle Murphy, a scholar who had previously observed the destruction of climate change data and muzzling of government employees in Canadian Prime Minister Stephen Harper’s administration. The "guerrilla archiving" project soon swept the nation, drawing media attention as its volunteers scraped and preserved terabytes of climate change and other environmental data and materials from .gov websites. The archiving project felt urgent and necessary, as the federal government is the largest collector and archive of U.S. environmental data and information.

As it progressed, the guerrilla archiving movement became more defined: two organizations developed, the DataRefuge at the University of Pennsylvania, and the Environmental Data & Governance Initiative (EDGI), which was a national collection of academics and non-profits. These groups co-hosted data gathering sessions called DataRescue events. I joined EDGI to help members work through administrative law concepts and file Freedom of Information Act (FOIA) requests. The day-long archiving events were immensely popular and widely covered by media outlets. Each weekend, hundreds of volunteers would gather to participate in DataRescue events in U.S. cities. I helped organize the New York DataRescue event, which was held less than a month after the initial event in Pennsylvania. We had to turn people away as hundreds of local volunteers lined up to help and dozens more arrived in buses and cars, exceeding the space constraints of NYU’s cavernous MakerSpace engineering facility. Despite the popularity of the project, however, DataRescue’s goals seemed far-fetched: how could thousands of private citizens learn the contours of multitudes of federal environmental information warehouses, gather the data from all of them, and then re-post the materials in a publicly accessible format?

Federal records laws and policies in the U.S., like the FRA, the Presidential Records Act (PRA) of 1978 and the Freedom of Information Act (FOIA), were created to prevent government administrators from engaging in censorship, lack of transparency, and the destruction of relevant government records. The DataRescue project proves that these laws, in their current iterations, are insufficient in the digital information age, and must be reformed to ensure proper records preservation and access. This Essay describes DataRescue’s efforts and limitations, and examines the FRA, prescribing statutory updates that would safeguard online access to government records, allowing volunteers across the nation to rest easy knowing that climate change data and other information will be preserved through changing presidential administrations.

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Avoiding the Prisoner’s Dilemma: Refining the Bruton Rule to Resolve the Split Over Neutral Term Substitution

Essay

Imagine three men—Alex, Brian, and Chris—who rob and kill a young woman in the parking lot of a Pennsylvania shopping mall....

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The Unicorn Governance Trap

Essay

This Essay highlights emerging governance problems presented by persistent Unicorns. It argues that recent market trends and...

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Fit to Play in the NBA? Reconciling the Collective Bargaining Agreement with the Americans with Disabilities Act

Essay

In this Essay, we assert that, despite what is written in the collective bargaining agreement (CBA), NBA players should—and in fact do—maintain their legal rights under employment discrimination statutes. At first blush, allowing players to sue the team or the NBA itself may seem to impose an unwieldy burden on professional sports. However, current disability discrimination laws like the Americans with Disabilities Act (ADA) already strike the proper balance between the employer’s interest in maintaining a safe workplace and the employee’s interest in being free from discrimination. As we will demonstrate, many ADA claims will only be cognizable when the team chooses to ignore a Fitness‐to‐Play decision in favor of the player.

This Essay explores the rights of current NBA players regarding their Fitness‐to‐Play requirements. In Part I, we outline recent changes to the CBA, highlighting how the newly effective agreement governs Fitness‐to‐Play determinations. Part II turns to players’ rights as employees under disability discrimination statutes, using the ADA as a case study. Lastly, Part III explores the interplay between the policies and procedures articulated in the CBA and NBA players’ statutorily protected antidiscrimination rights. We conclude that, at a minimum, the NBA and the NBPA should eliminate the CBA provision that requires players to waive their antidiscrimination rights. Generally speaking, sophisticated parties should be left to privately agree as to how to resolve issues that arise between them. By contrast, because parties cannot prospectively waive their statutorily guaranteed rights, a blanket exemption from employment discrimination laws for professional sports is a question for legislatures, not for the collective bargaining process. With that said, we propose that a more meaningful and reliable alternative to the current regime would be to make the Fitness‐to‐Play proceedings—however defined—binding not only on the players, but also on the team and the NBA.

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Star Athletica’s Fissure in the Intellectual Property Functionality Landscape

Essay

In a perverse twist, the Supreme Court’s 2017 Star Athletica copyright decision might have more significant effects on...

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Clarifying the “Clear Meaning” of Separability

Essay

Speaking of the Copyright Act of 1909, noted copyright scholar Benjamin Kaplan had this to say about the role of judges...

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The Sum is More Public Domain than its Parts?: US Copyright Protection for Works of Applied Art Under Star Athletica’s Imagination Test

Essay

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the “separability” predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented “courts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article’s utilitarian function.” Star Athletica involved the “surface decorations” of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the Supreme Court clarified the meaning and application of the “separability” standard for decorative elements of the kind at issue in that case, the decision leaves the knots as tangled as ever when a claim of copyright concerns the entire form of a useful article.

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What is a “Useful Article” in Copyright Law After Star Athletica?

Essay

The U.S. Supreme Court granted certiorari in Star Athletica, LLC v. Varsity Brands, Inc. to decide “what is the appropriate...

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Forgetting Functionality

Essay

In Star Athletica, LLC v. Varsity Brands, Inc., the U.S. Supreme Court had an opportunity to clarify copyright law’s...

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Knowing Separability When We See It

Essay

According to the majority in Star Athletica v. Varsity Brands, features that are incorporated into a useful article are separable, and thus potentially copyrightable, if they “(1) can be perceived as a two‐ or three‐dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on their own or fixed in some other tangible medium of expression—if they were imagined separately from the useful article.”

This formulation has not been well received, primarily because it seems to allow copyright protection for many more features of useful articles than was permitted by pre‐Star Athletica doctrine, notwithstanding the wide range of tests previously used and the doctrine’s well‐recognized conceptual incoherence. I share the concern about over‐protection, even though the Supreme Court’s test bears some similarity to the one my co‐authors and I proposed in an amicus brief in the case. As we demonstrated in our brief, Congress intended the useful articles doctrine to distinguish applied art from industrial design, making the former eligible for copyright protection but excluding the latter. Courts, we argued, should operationalize that distinction by deeming features separable only when they “(1) can be extracted from the article, even if doing so would destroy the article, and (2) once extracted, would stand alone as an original pictorial, graphic, or sculptural work (PGS work) that is not a useful article.”

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