Hank Fisher*
In 1998 Congress enacted the Digital Millennium Copyright Act (“DMCA”) in order to “provide certainty for copyright owners and Internet service providers with respect to copyright infringement liability online.”[1] The DMCA safe harbors protect Internet and online service providers such as YouTube from secondary copyright infringement liability.[2] The DMCA, however, does not provide full protection as certain caveats greatly reduce the safe harbor protection, disqualifying a service provider from protection if it is “aware of facts or circumstances from which infringing activity is apparent.”[3] Courts and commentators refer to this level of awareness as “red flag” knowledge.[4] If the service provider obtains red flag knowledge of infringing activity, it must act “expeditiously to remove, or disable access to, the material,” or be subject to liability.[5] As the DMCA currently stands, the red flag knowledge provision constricts safe harbor protection to the point where online service providers are being held liable when they have actively attempted to comply with the statute. Because compliance with the law in its current form is so difficult, the open accessibility of video-sharing websites is in jeopardy.
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*J.D. Candidate 2015, University of Richmond School of Law; B.A. 2012, University of Virginia. I am highly grateful to my parents for their never-ending support. I would like to thank Morgan Ackerman, Alex Fisher, and Caroline Lamberti for their valuable revisions and suggestions throughout the writing process. I would also like to thank the editors and staff of the University of Richmond Law Review who sacrificed many hours to make this publication possible.
[1]. S. Rep. No. 105-190, at 2 (1998).
[2]. See 17 U.S.C. § 512 (2012).
[3]. Id. § 512(c)(1)(A)(ii).
[4]. See, e.g., Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012) (defining “red flag” knowledge).
[5]. § 512(c)(1)(A)(iii).
The University of Richmond Law Review proudly presents the twenty-ninth issue of the Annual Survey of Virginia Law. The Annual Survey serves as a comprehensive guide to recent legislative, administrative, and judicial developments in the Commonwealth of Virginia. The 2014 Annual Survey includes seven articles, each providing readers with a comprehensive, in-depth update of a specific area of the law. Authors of these updates are practitioners and experts in their respective fields, bringing significant insight to their articles. In addition to updates on the law, each year the Annual Survey publishes essays on important legal topics in Virginia. The 2014 Annual Survey includes two essays written by Virginia judges. This year’s essays address and provide practical advice on the areas of election recounts and appellate advocacy. The Law Review is proud to include two comments written by former members of the Law Review staff.
The Annual Survey attributes its continued success to each of the authors who devoted significant time, dedication and hard work to create high-quality articles that will truly benefit the legal community of Virginia. Each author devoted substantial time and effort to provide readers with thorough, informative, and poignant pieces. I genuinely appreciate the efforts put forth by each of you, and thank you for your commitment to the Annual Survey.
The Annual Survey could not exist without the efforts of the Law Review members. I thank each and every member of the Law Review staff for your diligence and hard work. I especially want to thank Sarah Bennett, Nick Dantonio, and Amy Whitelaw for your unwavering support, dedication and assistance in this process. I am grateful for the extra help I received from each of you. Thank you to the members of the Law Review Executive Board, Rina Van Orden, Leah Stiegler, and Derek Schnitzer, for your diligence and the time you spent working on the Annual Survey. A special thank you to Paul Holdsworth, Sheherezade Malik, and Sarah Padway, not only for your unfaltering dedication and unwavering commitment to the Annual Survey, but also for the hours of companionship and invaluable laughter you provided during this process. It has truly been a pleasure to work with such intelligent and good-humored individuals. I could not have done it without you. Thank you to Chris Bascom, the 2013 Annual Survey Editor, for your mentorship, confidence and support. And my most sincere and genuine appreciation goes to Glenice Coombs, the heart, soul, and guiding hand of the Law Review. Glenice, your guidance and advice is truly invaluable, but more than that, you bring cheer and light to every day and the Law Review truly could not succeed without you. Lastly, I want to thank my family for your patience, love, and motivating words, and Rob Cassidy for your advice, support and encouragement.
It has truly been an honor to serve as the Editor of the 2014 Annual Survey of Virginia Law. Thank you for your continued patronage and readership.
Tara Badway
Annual Survey Editor
John Paul Jones*
John R. Mohrmann**
This article is a report of certain developments during the last two years relating to the Virginia Administrative Process Act (“the VAPA”), which governs rulemaking and adjudication of cases by state agencies as well as judicial review of both.
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*Professor of Law Emeritus, University of Richmond School of Law. LL.M., 1982, Yale University; J.D., 1980, University of San Diego; B.A., 1969, Marquette University.
** J.D., 2014, University of Richmond; B.A., 2011, Hampden-Sydney College. The authors are much obliged to the reference specialists of the Muse Law Library for their outstanding assistance in the research for this article.
Andrew P. Sherrod*
Jaime B. Wisegarver**
This article surveys recent significant developments in Virginia civil practice and procedure. Part I of this article discusses opinions of the Supreme Court of Virginia from June 2013 through June 2014 addressing noteworthy civil procedure topics. Part II addresses amendments to the Rules of the Supreme Court of Virginia concerning procedural issues during the same period. Part III discusses legislation enacted by the Virginia General Assembly during its 2014 session that relates to civil practice.
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*Principal, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 2000, University of North Carolina at Chapel Hill School of Law; B.A., 1996, Hampden-Sydney College.
**Associate, Hirschler Fleischer, P.C., Richmond, Virginia. J.D., 2010, University of Richmond School of Law; B.A., 2005, University of Virginia.
Aaron Campbell*
This article aims to provide a succinct review of noteworthy cases in the areas of criminal law and procedure that the Supreme Court of Virginia and the Court of Appeals of Virginia decided this past year. Instead of covering every ruling or procedural point in a particular case, this article focuses on the “take-away” of the holdings with the most precedential value. This article also summarizes significant changes to criminal law and procedure enacted by the 2014 Virginia General Assembly.
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*Assistant Attorney General, Criminal Litigation Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.
Sean P. Byrne*
Garrett Hooe**
It has been several years since the Annual Survey of Virginia Law published a comprehensive Health Care Law update.[1] In that time, health care reform has taken center stage on the national level with the implementation of the Affordable Care Act and related federal legislation. Here in the Commonwealth, we have seen incremental change in the health care law landscape, both in case decisions from the Supreme Court of Virginia impacting medical malpractice jurisprudence, and in a host of reform measures and legislative changes from the General Assembly. It is beyond the scope of this article to detail every change in this complex and fast-changing area of law, but noteworthy developments are highlighted here in an effort to inform the health law practitioner.
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*Director, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1993, University of Richmond. Mr. Byrne’s practice concentrates on medical malpractice defense and health care risk management advice. He is also an assistant adjunct professor at the University of Richmond School of Law.
**Associate, Hancock, Daniel, Johnson & Nagle, P.C., Richmond, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2006, James Madison University. Mr. Hooe’s practice concentrates on medical malpractice defense in trial and appellate courts. The authors wish to thank and recognize Timothy Patterson, J.D. Candidate 2015, University of Richmond School of Law, for his able assistance with research and drafting.
[1]. See generally Kathleen M. McCauley & Kristri L. VanderLaan, Annual Survey of Virginia Law: Health Care Law, 44 U. Rich. L. Rev. 473 (2009) (the most recent such Health Care Law update).
