Copyright (c) 2009 All rights reserved. http://works.bepress.com/hannibal_travis Recent documents in Hannibal Travis en-us Sun, 01 Feb 2009 04:11:47 PST 3600 http://works.bepress.com/hannibal_travis/14 http://works.bepress.com/hannibal_travis/14 Mon, 04 Aug 2008 09:14:51 PDT This article analyzes the claim that the Bush doctrine, the declaration of President George W. Bush in September 2001 that all states harboring terrorists or otherwise supporting terrorism would see their leaders replaced by force, has profoundly advanced the cause of human rights in Afghanistan and Iraq. The article focuses on the constitutional process in Afghanistan, and its thesis is that the Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but that the constitution's many provisions requiring compatibility of government policy with an unspecified code of Islamic law may frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. These provisions are particularly dangerous in the hands of the Afghan religious fundamentalists that have been elevated to prominent positions in the post-Taliban political and legal system. The article proposes four test cases for judging the implementation of Afghanistan's new constitution from the perspective of democracy and individual rights: the treatment of secular political parties, the use of blasphemy laws to undermine Afghan democracy, the revival of fundamentalist punishments such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls. It concludes by drawing parallels between the Afghan constitutional process and the political and legal transition of Iraq from a Baathist dictatorship into a so-called Islamic democracy. As in Afghanistan, the Iraqi government installed by the U.S. and its allies has established Iraq as a religious state with judicial review of legislation for conformity to an unspecified version of Islamic law, and Iraqi women and religious minorities continue to face grave violations of their human rights. Hannibal Travis Genocide, Human Rights, and International Law http://works.bepress.com/hannibal_travis/13 http://works.bepress.com/hannibal_travis/13 Mon, 04 Aug 2008 09:13:29 PDT This is a contribution to an edited volume on the legal and human rights implications of the government's response to Hurricane Katrina and other natural and man-made disasters. The book's table of contents is available at the Library of Congress: http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2007021275&CNT=10+records+per+page Hannibal Travis Genocide, Human Rights, and International Law http://works.bepress.com/hannibal_travis/12 http://works.bepress.com/hannibal_travis/12 Mon, 04 Aug 2008 09:11:31 PDT The Ottoman Empire's widespread persecution of Assyrian civilians during World War I constituted a form of genocide, the present-day term for an attempt to destroy a national, ethnic, or religious group, in whole or in part. Although there were no extermination camps on the scale of Auschwitz, the genocide of the Assyrians resembled the Holocaust of Jews, Slavs, Roma people, leftists, homosexuals, and other minorities under Nazi occupation during World War II because Ottoman soldiers and their Kurdish and Persian militia allies subjected hundreds of thousands of Assyrians to a deliberate and systematic campaign of massacre, torture, abduction, deportation, impoverishment, and cultural and ethnic destruction. According to the American ambassador to Constantinople from 1913 to 1916, Henry I. Morgenthau, widely regarded as a principal source of information on the Armenian genocide: "The story which I have told about the Armenians I could also tell with certain modifications about the Greeks and the Syrians," as Assyrians were often known to the West. He added that the Ottoman Empire "decided to apply the same methods [of "wholesale massacre"] on a larger scale not only to the Greeks but to the Armenians, Syrians, Nestorians [i.e., Assyrians], and others of its subject peoples." In 1918, according to the Los Angeles Times, Ambassador Morgenthau confirmed that the Ottoman Empire had "massacred fully 2,000,000 men, women, and children¿Greeks, Assyrians, Armenians; fully 1,500,000 Armenians."This article will argue that the hesitation to recognize the Assyrian genocide is unjustified, for the evidence is overwhelming that Turks and their Kurdish allies massacred hundreds of thousands of Assyrians in order to exterminate the Christian population; raped and enslaved thousands of Assyrian women in a systematic fashion; and deported the Assyrians en masse from their ancestral lands under conditions that led to famine and widespread death. Established principles of international law outlawed this war of extermination against Ottoman Christian civilians before it was embarked upon, and ample evidence of genocidal intent has surfaced in the form of admissions by Ottoman officials. Nevertheless, the international community has been hesitant to recognize the Assyrian experience as an instance of genocide. The more rapid legal recognition of the Armenian genocide is attributable to the larger numbers of Armenian victims and survivors, the dispersion and political voicelessness of the Assyrian people, and more copious evidence of an intention on the part of the Ottomans to wipe out the Armenians.In conclusion, I will contend that the legal and historical recognition of the Assyrian genocide at the hands of the Ottomans is vital to focus the world's attention on the Assyrian remnant in Iraq. That remnant has been scattered by more than a century of massacre, discrimination, and religious persecution into non-viable communities that are still waiting for their homelands and human rights to be restored. U.S. officials have documented an "ethnic-cleansing campaign" against Assyrians in present-day Iraq, with "systematic attacks" against Assyrian civilians, bombings of Assyrian churches, and the driving of most Assyrians out of Iraq. Genocide and ethnic cleansing give rise to legally enforceable claims for reparation and restoration of property and the value of lives lost. But because their genocide has rarely been recognized, the Assyrians driven from their homes over the past century have received relatively little by way of compensation or assistance with rebuilding. This article calls upon the international community to focus its efforts on the security and resettlement of the Assyrian people. Hannibal Travis Genocide, Human Rights, and International Law http://works.bepress.com/hannibal_travis/11 http://works.bepress.com/hannibal_travis/11 Mon, 04 Aug 2008 09:07:27 PDT This is a review of The Armenian Genocide: Cultural and Ethical Legacies (Richard Hovannisian ed., New Brunswick, NJ: Transaction Publishers, 2006). This volume stands as an important achievement in the field of comparative genocide studies, as well as commanding the attention of scholars of Middle East Studies. The subjects addressed include the cleansing of virtually all Christian communities from Anatolia as a result of widespread massacres over three decades; the complicity of some European and American leaders in these events; the rise of total war along Prussian lines in the nineteenth-century Ottoman Empire, and its prosecution throughout Anatolia from 1914 on; and the influence of proto-Nazi ideology on late Ottoman leaders and the propaganda they created. The editor of this book, and the contributor of a sophisticated introductory essay, is Richard G. Hovannisian, a professor of Armenian and Near Eastern History at the University of California, Los Angeles (UCLA). A conference commemorating the 90th anniversary of the Armenian genocide, held at UCLA in 2005, inspired the essays collected for the volume. The emphasis in Part I is predominantly on philosophical approaches to the history and nature of genocide, specifically regarding when an episode of genocide begins; whether it arises from a dehumanization of its victims or an assertion of its perpetrators' overwhelming power by inflicting maximum degradation on victims; and whether genocide gives rise to any moral obligation to preserve the targeted culture, or to transform the perpetrators' culture. Part II discusses literary, artistic, musical, and cinematic depictions and commemorations of the Armenian genocide. Part III addresses education, with particular attention to the difficulty confronting teachers of history who want to devote class time to genocide education despite the constraints imposed by the federal No Child Left Behind Act. In Part IV, Anahit Khosroeva gathers diverse sources to support the conclusion that the Ottoman military and its Kurdish allies massacred tens of thousands of Assyrians in 1895 and, in the decade after 1914, between half and two-thirds of the 500,000 to 750,000 Assyrians living in Anatolia, Mesopotamia, and Persia. Also in Part IV, Speros Vryonis, Jr. supplies wrenching details of the experiences of Greek civilians enslaved by Ottoman and Turkish forces, and subjected to large-scale bayoneting and shootings, death marches, and the intentional spreading of dysentery. Part V turns to the future of Turkish historiography, and the prospects for Armenian-Turkish reconciliation. Hannibal Travis Genocide, Human Rights, and International Law http://works.bepress.com/hannibal_travis/10 http://works.bepress.com/hannibal_travis/10 Mon, 04 Aug 2008 09:04:53 PDT Hannibal Travis Genocide, Human Rights, and International Law http://works.bepress.com/hannibal_travis/9 http://works.bepress.com/hannibal_travis/9 Mon, 04 Aug 2008 09:02:55 PDT The author analyzes the ongoing expansion of American copyright law from the standpoint of the comparative history and philosophy of exclusive rights in lands on the one hand, and in creative expression on the other. He documents the persistence of a particularly influential mode of discourse about property rights from the English Enclosure Movement of the seventeenth and eighteenth centuries down to the Internet copyright debates of the present day. During this time, the duration and breadth of copyright have been extended to economically dubious and arguably unconstitutional lengths. At each new incursion into the intellectual commons, substantially the same dual-pronged justification has been brought to bear, combining a one-sided emphasis on certain "natural" rights with a rudimentary and poorly documented account of the "tragedy of the commons." This unmooring of copyright from the historical limits on its scope and duration threatens to chill the flow of public domain material and transformative works onto the World Wide Web. The author argues that a searching First Amendment inquiry into the dubious origins of Blackstonian copyright, along with a more critical appraisal of its philosophical provenance, should precede implementation of "notice-and-take-down" schemes and other statutory, technological, and contractual restrictions on imitation and quotation in cyberspace and elsewhere. Absent such an inquiry, the redefinition of "piracy" to include evaluation, critique, parody, and even reproduction of public domain works will undo the advances in the accessibility and heterogeneity of information that the advent of cyberspace communication has wrought, and that the First Amendment was explicitly intended to achieve. Hannibal Travis Cyberspace Law and Intellectual Property http://works.bepress.com/hannibal_travis/8 http://works.bepress.com/hannibal_travis/8 Mon, 04 Aug 2008 08:55:57 PDT This article describes the development of trademark liability for engaging in corporate criticism or parody on the Internet, and the emerging judicial consensus that imposing liability on this form of political speech violates the First Amendment rights of Internet users. The article begins by analyzing the expansion of trademark rights from a method of protecting merchants against counterfeiting into a broad-ranging tort against any invasion of consumers' good feelings towards a business or its products. Courts and Congress made this expansion possible by eroding the requirement of commercial competition as a prerequisite to trademark liability, and by crafting sometimes overbroad rules against creating initial interest confusion, establishing negative associations with a trademark, or cybersquatting on a domain name similar to a mark. Fortunately, the federal appellate courts are making it increasingly clear that the First Amendment shields Internet speech devoted to criticizing or making fun of corporations from censorship under trademark law. The author argues that this emerging consensus is consistent with the principal normative justifications for trademark rights as a means of preserving valuable property interests and promoting economic efficiency. Finally, he contends that trademark rights should be restricted to policing commercial competition, rather than non-commercial Internet speech. This limitation is essential if consumers are to preserve their autonomy in light of the pervasive influence of advertising, and their ability to participate fully in a democratic society in light of the considerable power of the business world. Hannibal Travis Cyberspace Law and Intellectual Property http://works.bepress.com/hannibal_travis/7 http://works.bepress.com/hannibal_travis/7 Mon, 04 Aug 2008 08:48:32 PDT This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative copyright liability on technologists. This article's case for reform begins with rolling back the copyright term extensions of recent years, which were upheld by the Supreme Court in Eldred v. Reno. Indefinitely renewable copyrights threaten to marginalize Internet publishing and online libraries by entangling them in endless disputes regarding the rights to decades- or centuries-old works. Similarly, digital library projects are becoming unnecessarily complicated and expensive to undertake due to the assertion by libraries and copyright holding companies of exclusive rights over unoriginal reproductions of public domain works, and the demands of authors that courts block all productive digital uses of their already published but often out-of-print works. Courts should refuse to allow the markets in digital reproductions to be monopolized in this way, and Congress must introduce greater certainty into copyright licensing by requiring more frequent registration and recordation of rights. Courts should also consider the digitizing of copyrighted works for the benefit of the public to be fair use, particularly where only excerpts of the works are posted online for public perusal. A digital library like Google Print needs a degree of certainty - which existing law does not provide - that it will not be punished for making miles of printed matter instantly searchable in the comfort of one's home, or for rescuing orphan works from obscurity or letting consumers preview a few pages of a book before buying it. Finally, the Supreme Court's recognition of liability for inducement of digital copyright infringement in the Grokster case may have profoundly negative consequences for digital library technology. The article discusses how recent proposals for statutory file-sharing licenses may reduce the bandwidth and storage costs of digital libraries, and thereby make them more comprehensive and accessible. Hannibal Travis Cyberspace Law and Intellectual Property http://works.bepress.com/hannibal_travis/6 http://works.bepress.com/hannibal_travis/6 Mon, 04 Aug 2008 08:42:39 PDT Cheap, ubiquitous high-speed Internet access promises to accelerate economic growth, create new jobs and industries, advance education and lifelong learning, inform and improve health care decision-making, and raise living standards. Conversely, foregone broadband access by low income and other underserved Americans is imposing high economic and social costs. As much as $1 trillion in economic growth may be delayed due to structural and legal limitations on U.S. broadband access.Since 2004, city officials across the U.S. have increasingly endorsed the idea of providing universal broadband access to their citizens. They hope to deploy wireless fidelity (Wi-Fi) mesh networks to cast high-speed Internet signals across entire metropolitan areas. San Francisco mayor Gavin Newsom has proclaimed that he will not rest until every San Franciscan has access to free wireless Internet service. Philadelphia is planning to provide Wi-Fi broadband access for a mere $20 a month throughout 135 square miles of the city. Other cities, from New York City and Atlanta to Chicago and Portland considered ways to equalize high-speed Internet service through publicly-funded Wi-Fi clouds wafting high-speed Internet signals across many miles. Finally, New Orleans has launched the nation's first free city-owned wireless broadband network, with plans to expand citywide to spur economic redevelopment. Citywide Wi-Fi as a public service is no longer a bureaucratic pipe dream, but has the backing of America's technological titans, as Google and Earthlink have offered to provide free ad-sponsored citywide Wi-Fi broadband in the city of San Francisco, and Intel has endorsed legislation that would liberate municipalities from anticompetitive restraints on their ability to contract with technology companies for city-supported Wi-Fi.Although universal access to telecommunications services is at the core of American telecommunications law and policy, the U.S. has fallen far short of achieving this goal. Forty percent of American homes lacked Internet access in 2003, often because it was too expensive. Roughly two-thirds of American households did not have high-speed Internet access in 2005. One-fifth of Americans had never used the Web at all. The provision of high-speed Internet access by private industry alone is leaving behind most of the poor, vast numbers of racial and ethnic minorities, and many residents of rural and inner-city communities. Forbidding monthly fees and surcharges for broadband, at up to five times the cost of a dialup Internet connection, remain the principal obstacle to universal broadband connectivity to the Internet. For tens of millions of other families, including over twenty million American households in rural or underserved areas as of 2005, broadband access is totally unavailable.The most controversial proposed solution to these gaps in broadband access has been for municipal governments, i.e. cities and counties, to offer broadband access as a public service. Over 600 municipalities offered such service as of 2005, a small but rapidly growing percentage of the over 18,000 municipalities in the U.S. Currently, however, more than fourteen U.S. states prohibit or restrict cities and counties from ensuring universal broadband access. Despite the proliferation and growing importance of such state law restraints, most legal scholarship on broadband policy has focused on common carrier rules imposed on broadband infrastructure providers, rather than federal and state laws on municipal competition in broadband markets.The primary thesis of this article is that Congress and the states should encourage cities and counties to provide free and low-cost Wi-Fi broadband to their citizens. The American public has a compelling national interest in equalizing access to computers and the Internet across racial, economic, and geographical lines. Municipal broadband projects, and particularly the provision by cities and counties of free or low-cost wireless broadband networks subsidized by tax revenues, hold great potential to bridge the digital divide. Existing municipal broadband efforts in the U.S., as well as state-subsidized broadband deployment in other nations, have already successfully brought broadband to previously underserved areas. Many nations with higher broadband penetration rates than the U.S., including Canada, Sweden, Japan, and South Korea, have developed municipal and government-supported broadband infrastructure to universalize access.Part II describes the history of the broadband market in the U.S., and the anticompetitive implications of the market's natural monopoly and network industry characteristics. Part III contends that a trio of recent Supreme Court cases construing the Telecommunications Act of 1996 achieved a sweeping deregulation of the broadband industry. An in-depth analysis of these cases - Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), and National Cable & Telecommunications Ass'n v. Brand X Internet Services, 125 S. Ct. 2688 (2005) - reveals that they have empowered the owners of broadband infrastructure with natural monopoly characteristics, such as telephone and cable networks, to act with near impunity in impairing their smaller rivals' ability to compete. As a result, congressional action is necessary to reinvigorate competition and promote municipal participation in the broadband marketplace. Finally, Part IV argues that a federal ban on municipal entry into broadband markets that has been proposed in the U.S. Congress represents an unsound public policy in light of the growing digital divide, and the capacity of municipal Wi-Fi networks to remedy it. Congress can best promote the federal policy of ensuring universal broadband service at affordable prices by passing legislation, such as the Community Broadband Act of 2005, which would preempt state laws prohibiting the municipal provision of broadband to underserved communities. Hannibal Travis Cyberspace Law and Intellectual Property http://works.bepress.com/hannibal_travis/5 http://works.bepress.com/hannibal_travis/5 Mon, 04 Aug 2008 08:38:35 PDT Google plans to digitize the books from five of the world's biggest libraries into a keyword-searchable book-browsing library. Some publishers and authors allege that this constitutes a massive piracy of their copyrights in books not yet in the public domain. But I argue that Google Book Search may be a fair use for two interrelated reasons: it is unlikely to reduce the sales of printed books, and it promises to improve the marketing of books via an innovative book marketing platform featuring short previews. Books are an experience good in economic parlance, or a product that must be consumed before full information about its contents and quality becomes available. This makes new technologies that are capable of rapidly searching and previewing relevant passages from books a development that the law should encourage, not burden or restrain.After introducing the topic, I describe Google's ambitious plan to scan and index up to 15 million library books by 2010, and provide short previews of a few lines each to help users decide whether to buy the books or check them out from a library. I then argue that the fair use limitation on exclusive rights has historically protected efforts such as Google's to address the economic problem of marketing experience goods like books, albums, movies, or games, which consumers must decide whether to buy without assessing their quality and characteristics beforehand. Fair use partially resolved this problem by permitting the unauthorized dissemination of extracts of another's work in a catalogue, review, abridgement in a periodical, or other work of criticism or commentary.The bulk of the Article analyzes the copyright and fair use implications of lawsuits challenging Google Book Search, filed by several publishers and a putative class of up to 8,000 published authors. I contend that by reproducing excerpts from scanned books for the purpose of improving access to information about books on the internet, Google is making a transformative use of the books that should qualify as a fair use. Courts have recognized that copyright owners are not entitled to gain a monopoly over the market for information about their works, or to suppress efforts to improve the public's access to information and high-quality research tools. Google Book Search is distinguishable from prior attempts to disseminate complete copies of protected works, from newspaper articles in the Free Republic case to songs in the Napster and MP3.com cases. Insofar as most works being scanned by Google have already been published, and are nonfictional and fact-based, these facts also strongly support Google's fair use arguments.Most importantly, the evidence so far is that Google Book Search will dramatically improve, rather than detract from, the sales of books that it permits users to find, preview, and purchase. Google Book Search has tripled the sales of many books, and other online previews of books have also markedly increased sales. Total book sales are up substantially in the period after Google began scanning copyrighted books, indicating a fair use under the Sony Betamax case and other precedents.I conclude by analyzing the antitrust implications of the struggle between copyright owners and technology companies for control over digital marketing and distribution technologies. Joint ventures between major copyright holders may be the only viable alternative for the foreseeable future to technology company search technologies such as Google Book Search, just as MusicNet and Movielink proved to be the only viable alternative for many years to peer-to-peer digital media search technologies. Such joint ventures may facilitate price-fixing and suppression of digital media output, dangers that courts considering the legality of Google Book Search should explore carefully. At the same time, I suggest reasons for courts to be skeptical about publishing industry assertions that by scanning books, Google will seize control over all the content in the world. Hannibal Travis Cyberspace Law and Intellectual Property