As it becomes easier to distribute and share music and other digital content on the internet, copyright holders have had to come up with creative ways to protect their work from copyright infringement and digital piracy. Florida’s True Origins of Digital Goods Act (TODGA) is the most recent state law to require anyone that distributes copyrighted material on a website to display their name and contact information on that website. However, TODGA does not prohibit a person from posting copyrighted material without permission from the copyright owner, it only requires that the distributor list their contact information. In fact, TODGA is housed in Florida’s Consumer Protection Act, and its stated purpose of the law is to help prevent the spread of contaminated files, viruses, and malware, yet only copyright holders are able to enforce TODGA, not those people affected by a contaminated file.
Critics of TODGA and other similar state laws criticize the law arguing that the state law is unconstitutional, because it is preempted by federal copyright laws; TODGA infringes on a person’s First Amendment Freedom of Speech; and, the law is invalid because it violates the Commerce Clause of the United States’ Constitution. Furthermore, even if the law is constitutional, Florida courts may not even be able to enforce the law because they may lack personal jurisdiction.
TODGA may have some benefits because other federal laws will now be more easily enforced, but the law’s constitutionality is questionable. Unfortunately, constitutionality is not an issue that can be addressed until a copyright holder attempts to enforce TODGA and someone’s rights have already been infringed upon.
In Bowers v. Hardwick, the U.S. Supreme Court upheld the criminal prohibition of sodomy. In dissent to that landmark decision, Justice Harry Blackmun, quoting Justice Oliver Wendell Holmes, denounced as “revolting” any rule of law that “simply persists from blind imitation of the past.”
Bowers was explicitly overruled in 2003 by Lawrence v. Texas. But by that time, most federal circuit courts had applied the reasoning of Bowers to reject any suggestion that sexual orientation might be a suspect classification under the Fourteenth Amendment. As it turns out, the overruling of Bowers by Lawrence did little to disrupt the blind imitation of bad precedent by the lower courts, which still persists today.
This Article illustrates how federal appellate courts have applied the reasoning of Bowers to foreclose any consideration whether sexual orientation can constitute a suspect class and have applied rational basis scrutiny to state actions targeting gays and lesbians. This Article shows how Bowers’ reasoning has been upheld repeatedly, by district court judges in the wake of United States v. Windsor. Finally, this Article describes how Obergefell v. Hodges has failed to disrupt Bowers-based precedent and what courts still must do, thirty years later, to put to rest a revolting decision that was “wrong when it was decided.”
HEALTH CARE QUALITY IMPROVEMENT ACT: PEER REVIEW, PROCEDURE, PROCESS, AND PRIVACY
Gregory Nowakowski, Michael Nowakowski, Theresamarie Mantese, and Jordan B. Segal
The Health Care Quality Improvement Act (HCQIA, or the Act) provides powerful immunities for hospitals and others in the peer review process that subject health care professionals to “Professional Review Actions.” The law was passed in part in response to a Supreme Court case involving the inappropriate use of the physician peer review process. Now, over thirty years later, the scope of immunity under the HCQIA is still evolving, and HCQIA and its rules are increasingly interacting with other areas of law. For example, in our increasingly litigious world, Alternative Dispute Resolution or ADR concepts may prove a useful mechanism to resolve HCQIA and peer- review related disputes. In light of increased focus on privacy, it is important to review how HCQIA and peer review can interact with various privacy rules, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended.
This Article first reviews the legislative history and health-care policy of the Act as well as recent case law interpreting the Act. The Article then focuses on the procedural protections under the Act and how ADR procedures may offer guidance on bolstering due process protections. Finally, the Article discusses HCQIA’s interaction with HIPAA and other privacy issues that may arise in litigation involving peer review.