With an epic historical sweep, “Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan,” reveals how the struggles by nations and empires to establish their regional supremacy resulted in the destruction of families and human groups. This book presents a new theory of the meaning and scope of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide of 1948, based on the drafting history, the case law of international criminal tribunals, and practice of the states parties to the convention since the 1950s. It then paints an expansive portrait of genocide against populations on all six inhabitable continents, with a special focus on the greater Middle East and North Africa since the nineteenth century. In the Ottoman Empire, the Interior Minister issued orders describing the Armenian, Assyrian, and Greek subjects of the empire as saboteurs allied to Russia who needed to be deported from their homes, and led efforts to massacre entire cities, carry out systematic rapes, and impose famine and disease on the surviving remnants. Similarly, in 1980s Iraq the Revolutionary Command Council of the Ba’ath party issued orders that served as the basis of convictions for genocide and other crimes in the Iraqi High Tribunal. These orders declared that areas serving as a base of operations for Kurdish and pro-Iranian insurgents should be rendered devoid of all life. Finally, in the Darfur region of Sudan, as in southern Sudan before it, the President and Interior Minister issued orders to the army and allied militia to kill and drive out entire communities in regions seeking independence, autonomy, or simply political equality. This book also provides cause for hope, explaining how former dictators have been tried and convicted of genocide and crimes against humanity, and how their victims have won independence and compensation for their losses after the fact in places like Armenia, Israel, Bosnia and Herzegovina, Kosovo, northern Iraq, East Timor, and southern Sudan.

What others are saying:

“The comprehensive research is breath-takingly evident. This historical account of the lesser know genocidal conflicts is incredibly revealing. Perhaps the best thing one could say about this book is that the familiar adage—'Those who ignore history are bound to repeat it'—reverberates throughout this intensely engaging volume.” — ASIL UN21 Newsletter

“This ambitious book in its research and coverage tells a sorry tale of mankind’s inhumanity and intolerance over millennia of genocidal deeds and rhetoric. A fast-moving narrative reaches from biblical times to Darfur, describing tragic events accompanied by selective quotations from their participants and observers. Genocide may be a recently invented term, but its occurrences based on a variety of causes and reasons seem to have been a deep part of the human experience of group interactions.” — Henry Steiner, Professor of Law, Emeritus, Harvard Law School, and co-author, International Human Rights in Context: Law, Politics, Morals (Oxford and New York: Oxford University Press, 3d ed. 2007)

“In Genocide in the Middle East, Hannibal Travis breaks new ground in genocide studies by unveiling the full panoply of genocidal processes in the Middle East and West Asia as no previous scholar has. But he does much more: in terms of its twentieth and twenty-first-century coverage, this is simply the most expansive, detailed, and up-to-date history of genocide we possess.” — Adam Jones, Associate Professor, Political Science, University of British Columbia Okanagan, and author of Genocide: A Comprehensive Introduction (London: Routledge, 2006)

"[T]he book seeks to present a comprehensive study of genocide.... Eyewitness accounts and diplomatic reports are effectively interwoven with other documentary evidence and academic research to produce a very thorough and disturbing portrait of this history."

Mark Welton, Professor of International and Comparative Law, U.S. Military Academy, West Point

This chapter in a forthcoming book attempts to map global patterns by which local tyrannies become sources of potentially global infringements on freedom of expression, particularly but not exclusively on the YouTube Web site. It illustrates certain parallels between the efforts to force copyright filters on YouTube and the Web in the West, and to harden the Great Firewalls of China, Arabia, and Persia in the East. The parallels include preemptive filtering, deep packet inspection, overbroad restrictions, and harms to user privacy.

Generally speaking, blasphemy and seditious libel are the dominant forms of censorship in the impoverished and/or dictatorial societies of Africa and central and southern Asia, with insulting the great leader similarly controversial at the fringes of Asia including China, Thailand, and Turkey, and in the South Atlantic including Colombia, Honduras, and Zimbabwe. By contrast, intellectual property is prompting many of the Web site takedowns for political and cultural speech in the North Atlantic including Europe and the United States. Resistance to censorship around the world employs both legal and extra-legal tactics. Internet freedom has worked its way into our constitutional and statutory law in the North Atlantic and Europe, and parts of Africa, Latin America, and Asia. Therefore, a judicial consensus is emerging that freedom of expression must rein in the enforcement of corporate catalogs of intellectual property rights.

In large swaths of Africa and Asia, however, constitutions often do not mandate robust judicial protection of freedom of expression, so public intolerance of censorship presents a more direct battle of forces. In these societies, self-help, surreptitious defense of new public spheres, trans-border cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights. There, YouTube bans and shutdowns of the entire Internet with proxy servers and aid from foreign Web firms, sometimes enjoying explicit diplomatic support.

This Essay, a contribution to a symposium on censorship and the media, explores the legal history of the censorship of antiwar speech. It devotes particular attention to postmodern techniques for chilling the production of pacifist content, or reducing the total output of it. Pacifist speech is defined broadly, as speech advocating peaceful alternatives to war or militarism, articulating doctrines or principles which urge forswearing war or violence in international disputes, or expressing reasons to oppose specific military episodes or entire wars.

A fundamental assumption of democratic governance is that the public keeps informed of important news and points of view by exposure in the press, whether print or electronic. Yet the public is often denied complete information by governments and private media conglomerates acting in close concert. While legal scholars frequently condemn direct censorship by the federal government, they too often neglect the extent to which private parties may be mobilized by the government to foment false beliefs and propagate misleading portraits of vital public policy issues.

This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing apparently private activity, in contrast to a modern way of censoring speech by using violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.

Studies on nationalism and the emergence of modern ethnic identities rarely examine sources dating from the period between 0 CE (A.D.) and 1453 CE, or the period between the fall of the Neo-Assyrian Empire in the mid-first millennium CE and the Age of Discovery in the mid-second millennium CE. Testing generally accepted theories of national and ethnic distinctiveness against these sources reveals that a similar case exists for the existence of an Assyrian identity and nation as for a Greek, Kurdish, Jewish, or Persian identity or nation. Assyrian populations, religions, and political formations survived in present-day Iraq, Iran, and Turkey from 0 CE well into the 1800s CE.

Commentators on modern nationalism in relation to Assyrian identity have assumed, with little evidence, that the non-Arab, non-Jewish peoples of the East lacked the agency or the intellect to maintain a consistent identity or national movement, and that these peoples relied in their ignorance and indolence on the theories of Western missionaries and colonial officials. In the 1980s, a new generation of scholars emerged who posited that nations and peoples emerged in conjunction with modern capitalistic cultural forms and secular nationalistic liberalism. The new theory of "imagined communities" represented a departure from a long tradition of historical and cultural work which assumed nations and peoples as subjects of analysis without critically examining the linguistic, cultural, or religious foundation of these groups of individuals or families. This new theory, however, has the risk of degenerating into a vulgar instrumentalism, which speculates that identity entrepreneurs can manufacture ethnic, racial, or religious identity for their own purposes and little objective foundation. Thus, more recent research points out the flaws in grounding national and ethnic distinctions in modern nationalism by compiling evidence that nations and peoples perceived themselves and were perceived as such by other collectivities, long before the rise of European humanism or the Enlightenment.

This study attempts to show that the longevity and diversity of national and ethnic distinctions undermines a one-size-fits-all explanation of such distinctions in the manner of Benedict Anderson’s “Imagined Communities.” The evidence from the Assyrian case suggests that the undifferentiated hordes of Asia did not coalesce and order themselves in modern times and under Western influence into nations created and sustained by advanced technology. This “Imagined Communities” narrative suffers from hindsight bias and an exaggerated Eurocentrism. It also insults and infantilizes the peoples and nations of premodern eras and non-Western regions by assuming they lacked the intelligence with which modern Europeans constructed national cultures, laws, literatures, schools, and economies. Historians have long since disproved such ideas.

By examining translations of and academic commentary on Aramaic, Greek, Roman, and Persian literature and inscriptions, among other sources, this Essay demonstrates that the British Empire invented neither the modern Assyrians as a people, nor the territory of modern Assyria that was considered for statehood by the League of Nations after World War I. Rather, the identification of present-day northern Iraq, northwestern Persia, and southeastern Turkey as “Assyria” draws support from the Middle Assyrian and Neo-Assyrian usage of the second and third millennia BCE, and the Greek, Roman, Persian, and Aramaic usage in the first millennium CE. Finally, the contribution of ancient Assyria to the cultures, languages, and religions of the non-Muslim populations of contemporary Iran, Iraq, and Turkey may no longer be doubted, especially when it comes to the Assyrian Christians, Mandaeans, and Yezidis. This ancient contribution is present in these peoples' daily vocabularies, place-names, and indigenous beliefs.

This Essay, a contribution to a symposium on censorship and the media, explores the legal history of the censorship of antiwar speech. It devotes particular attention to postmodern techniques for chilling the production of pacifist content, or reducing the total output of it. Pacifist speech is defined broadly, as speech advocating peaceful alternatives to war or militarism, articulating doctrines or principles which urge forswearing war or violence in international disputes, or expressing reasons to oppose specific military episodes or entire wars

A fundamental assumption of democratic governance is that the public keeps informed of important news and points of view by exposure in the press, whether print or electronic. Yet the public is often denied complete information by governments and private media conglomerates acting in close concert. While legal scholars frequently condemn direct censorship by the federal government, they too often neglect the extent to which private parties may be mobilized by the government to foment false beliefs and propagate misleading portraits of vital public policy issues.

This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing apparently private activity, in contrast to a modern way of censoring speech by using violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.

Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to determine its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels.

Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact.

The debate surrounding the GBS settlement is critically important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago.

The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books.

This article describes the Federal Communications Commission’s new theory of the First Amendment, as articulated in the agency's decision sanctioning Comcast for blocking certain peer-to-peer file sharing traffic, later reversed by the U.S. Court of Appeals for the District of Columbia Circuit. The article proposes a unified theory with which to analyze First Amendment challenges to proposed regulation of discriminatory denials of access to broadcast, cable, or Internet media. It builds on my previous research into the democracy-promoting implications of decentralized, collaborative Internet media as opposed to traditional media's top-down model.

My analysis begins with an account of the fall and rise of FCC regulation of the mass media and the Internet through four distinct eras in the FCC’s conception of its own authority and the constraints imposed upon it by the First Amendment. In the first era, the “statist regulatory period,” the FCC doled out telecommunications licenses to entities favored by the government and vigorously regulated broadcast content. In the second era, the “democracy-promotion period,” the FCC regulated the content of speech in an attempt to engender a more robust democratic culture in the aftermath of World War II. In the third era, the “deregulatory period,” the FCC tolerated blatant discrimination against minority political or ethnic viewpoints, as well as long-term campaigns to reduce competition in media content by merging corporate owners. In the fourth and most recent era, which began in 2005 with renewed citizen activism and congressional attention to bias within the mass media and Internet, the FCC announced new nondiscrimination principles focused on the Internet, but with clear implications for broadcast media.

The FCC handed a stunning victory to advocates of media accountability in 2005 and again in 2008 when it endorsed a different theory of the First Amendment. This new theory moves away from selective deregulation of corporate media (i.e. granting federal or state exclusive rights without any countervailing responsibilities to the public) by prioritizing the right of media consumers to access content and communications platforms on a more equal footing, rather than the right of large corporations to acquire and control ever-larger combinations of media infrastructure. The decision, if upheld, may herald a new era of attention to voters’ First Amendment interests in accessing and benefiting from regulated telecommunications facilities such as broadcast airwaves or cable networks. I attempt to theorize this new vision of the First Amendment using four strands of constitutional and legal theory: formalist attention to constitutional text and precedent, purposivist and originalist emphasis on the principles and contexts underlying constitutional text, economic approaches to efficient or cost-avoiding interpretations of legal language, and egalitarian advocacy of citizen-empowering constitutional narratives.

Except, perhaps, for formalist analysis, which applies ambiguously to FCC regulation of private telecommunications firms, the theories support the FCC’s new emphasis on free speech and access to knowledge. Formalism, whether at the level of text or precedent, provides little clear basis for a theory of the First Amendment that permits the federal government to regulate electronic speech in the interest of large corporations, but without any safeguards for the public interest in accessing scarce rights-of-way, or airwaves. Originalist analysis reveals that the purposes of the First Amendment were to prioritize the penetration of facts and debate relevant to controversial political issues throughout the body of the citizenry, rather than the illusory liberty interests of corporations or combinations of government infrastructure licensees. Economic analysis confirms that permitting federal or state infrastructure licensees to leverage their unique control over strategic communications bottlenecks into ownership of content providers threatens the total output, competitive pricing, and overall quality of content. Not only the theorists of antitrust and telecommunications economics, but also those scholars doing empirical work on the output of news and political content, confirm the materialization of these threats. Finally, substantive political theory underlines the link between media consolidation and deregulation and a resulting crisis in access by citizens and voters to essential information and diverse viewpoints.

Keywords: FCC, BitTorrent, Comcast, Verizon, AT&T, Viacom, CBS, NBC, ABC, Disney, First Amendment, Constitution, free speech, free press, freedom, Media, Television, Internet, Blogs, YouTube, Facebook, Telecommunications Law

This paper will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public-interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act (“UCITA”), including provisions encouraging terms in violation of public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is the much greater importance today of European Community directives on the subject of consumer protection and electronic commerce, particularly given the explosion in e-commerce between the United States and Europe. This paper will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with European Community and domestic European law. My thesis is that the Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the European Community’s directives, especially those on the Legal Protection of Software Programs (1991), Unfair Terms in Consumer Contracts (1993), and Protection of Consumers in Respect of Distance Contracts (1997). To that extent, the Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, or develop the law in a desirable direction. Finally, the paper will discuss whether and when it is appropriate to harmonize U.S. and E.C. law and public policy.

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art.

The European Union has probed these violations of indigenous people's rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees.

My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished.

This article also describes the growing body of law governing indigenous peoples' rights, particularly in Europe. Applicable general international law standards are set forth in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Hague Convention with Respect to the Laws and Customs of War on Land, the Hague Regulations Respecting the Laws and Customs of War on Land, the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Convention on Biodiversity, the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, and the United Nations Declaration on the Rights of Indigenous Peoples.

European standards are embodied in the European Convention on Human Rights and Fundamental Freedoms, the Copenhagen principles on human rights in the EU, the Framework Convention for the Protection of National Minorities, the OSCE Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the Council of the European Union's Framework decision on Racism and Xenophobia. In the United States, additional standards are set forth in the Foreign Relations Act of 1961, the International Religious Freedom Act of 1998, the Alien Tort Claims Act, and the Torture Victims Protection Act.

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

As the fastest-growing technology company in the United States, Google has been at the center of some of the most contentious technology policy disputes of recent years. These disputes range from controversies over the fair or noncommercial use of copyrighted work or trademarks on the Internet; to those over the ability of innovators to avoid discriminatory or exorbitant charges by broadband or wireless infrastructure providers; to those over governmental control over content.

Copyright lawsuits arising out of search engines and user-generated content sites such as Google Video and YouTube may change the rules governing communication over the Internet. Similarly, trademark litigation alleging that comparative advertising and Internet keyword-based advertising are infringing may limit the ability of technology companies and their customers to compete online. Many technology companies also believe that injunctive relief obtained by the owners of patents in comparatively minor components of complex software-enabled products or services may chill innovation and divert capital away from applied research. But it seems to be the power of infrastructure providers to favor allied content providers that has truly spooked technology leaders like Google. Meanwhile, members of Congress have expressed growing concern about foreign governments that block entire Web sites or types of Internet content from being accessed by persons present in their territory.

This Essay contends that two of the most likely candidates for important technology policy initiatives in the next presidential administration are two of Google’s public policy priorities, namely net neutrality and global online freedom. The adoption of these initiatives as policy priorities of the next administration would be a very positive development for users and producers of technology around the world. Their success would mean that two of the foremost threats to online freedom had been deferred, at least for a while. Overbroad copyright, trademark, and (to a lesser extent) patent rights will continue to bedevil technology firms, however, as they did for much of the last century.

This Article analyzes the legal and human rights implications of efforts by copyright owners such to "opt out" of the Internet in general, and out of Web 2.0 sites in particular. I argue that courts and legislatures should reject the argument by copyright owners that absent a license agreement respecting a copyrighted work, technology and Internet companies should be forced to monitor for and technologically filter out any quotations or clips on their sites unless a copyright owner affirmatively "opts in" to being included on a given site. Instead of this type of an "opt-in" framework, judges and policymakers should permit Internet companies to respond to allegations of infringement by removing offending files from their sites, and should require copyright owners to identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement. This "opt out" framework will better preserve technological innovation and freedom of expression than would a system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users' speech.

I briefly describe the development of "Web 2.0" services such as YouTube and Wikipedia, and the complex intellectual property issues that they engender. I then summarize the case law in the U.S. on opting out of the Internet, from the early cases in which courts struggled with the possibility that copyright law would chill the development of online services, to the more recent judicial consensus shielding online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases such as Perfect 10 v. Google (9th Cir. 2007), Perfect 10 v. Visa (9th Cir. 2007), and Parker v. Google (3d Cir. 2007). My distinctive contribution to the field consists in showing that European courts have erected a similar knowledge-based opt-out framework for online intermediaries such as Internet service providers, creators of peer-to-peer file sharing software, and user-generated content platforms. Some cases have bucked this trend, of course, notably such as the Google News case in Belgium have bucked this trend. The court's ruling in that case would do untold damage to freedom of expression and the process of Web-enabled innovation, as would the similar rulings of the French courts in the Dailymotion and MySpace cases. If such cases become the norm, Internet companies will scramble to reduce user freedom so as to block infringing uploads.

Many European courts base their rulings on the European Community's Electronic Commerce Directive of 2000, which provides that storing or "hosting" information provided by users does not give rise to monetary liability if an Internet company does not control the user and either does not have actual knowledge of infringement or expeditiously removes the infringing material upon becoming aware of its presence on the site. The developing consensus of the European courts resembles the celebrated ruling in Kelly v. Arriba Soft (9th Cir. 2003) that reproducing copyrighted work in order to improve access to information over the Internet constitutes a fair use, and that respecting clear opt-outs is evidence of a lack of intent to disregard the copyrights of others. Moreover, I address, and rebut, the common objection that international copyright treaties, and specifically the minimum level of copyright protection required by the Berne Convention and GATT-TRIPs agreement, preclude the establishment of an opt-out regime for copyright disputes. Finally, I discuss the implications of these findings for currently pending cases that will define the future of Web and Web 2.0 services such as digital libraries and online video sites. Search engines and hosting sites for books, news, and videos are the focus of this section.

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.

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.

In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.

This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.

Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.

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.

This article describes the development of trademark liability for 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.

Conduct potentially subject to regulatory scrutiny by federal agencies such as the Securities Exchange Commission (SEC) is not necessarily immune from antitrust liability. The Supreme Court previously held that an anticompetitive conspiracy in the mutual fund industry was immune from antitrust liability because the SEC had the primary statutory authority to prohibit or permit such conspiracies. This case raises the question of whether another alleged conspiracy—to restrict the availability of certain initial public offerings of securities (IPOs)—is similarly immune.

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.