Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P48 pot

integration follow in the tradition of Marshall and MARTIN LUTHER KING, JR., who insisted that integration would lead to increased freedom, power, and opportunities for African Americans. “In our society,” King insisted, “libera tion ca nnot come without integration and int egration cannot come w ithout liberation.” More recently, Andrew Young, civil rights activist, former U.N. ambassa- dor, and former m ayor of Atlanta, has emphasized that integration does not lead to assimilation . “Thos e who reject integration,” he said, “do so because they see the black community as one-way assimilation.” In contrast, he said, “integration i s a two-way street, each side contributing their own values, virtues, and traditions.” Other black scholars and political leaders have followed the lead of Du Bois, questioning the value of integration for African-Americans and recommending instead separate black schools, churches, and economic networks. In the 1960s, members of the black power and black nationalist movements, including MALCOLM X, argued that integration was an inappropriate strategy for blacks, who they believed could free themselves from racism and repression only by separating themselves from the mainstream white culture. Integration, they asserted, would result in African Americans being assimilated into the white community. In 1967 for example, STOKELY CARMICHAEL , a leader of the black-power move- ment, said, “The fact is that integration, as traditionally articulated, would abolish the black community.” More recently, some legal theorists of race relations have criticized the theory of stigmatic injury that Marshall presented in Brown, contending that it rests on a notion of African American inferiority by asserting that black children can receive an adequate education only in the presence of white children. DERRICK A. BELL, JR., a leading legal theorist on race relations, has been a particularly vocal critic of integrated schools, insisting that they do not meet the needs of African American children, whom, he says, would be better served by increased funding for schools in black neighborhoods, more black teachers and administrators, increased parental involvement, and higher expectations for aca- demic achievement. Many educational experts concur, suggesting that many young black males would receive a higher-quality education by at- tending black male academies where the ap- proach and curriculum were specifically designed to counter the social and cultural challenges faced by those young men in today’s world. Many of the black leaders who today advo - cate integration have refined the notion, insist- ing that it means more than simply mixing black and white students in the same school. Legal scholar john a. powell (who spells his name with only lowercase letters) said that true integration “transforms racial hierarchy” by “[creating] a more inclusive society where individuals and groups have opportunities to participate equally in their communities.” Similarly, Ellis Cashmore, a leading scholar of race relations, said integration “describes a condition in which different ethnic groups are able to maintain group boundaries and unique- ness, while participating equally in the essential processes of production, distribution and gov- ernment.” Cashmore conceded, however, that in the United States, this type of integration “remains more of an ideal than a reality.” Cashmore and other current race-relations scholars suggest that integration no longer means simply desegregation but rather that it now includes pluralism. Pluralism, in this context, refers to a condition in which no ethnic hierarchies exist, so there are no ethnic minorities per se; instead, the various groups in society participate equally in the social system, therefore experiencing balance and cohesion rather than contention and resentment. In this sense, said scholar Harold Cruse, “the SEPARATE- BUT-EQUAL doctrine that Brown ruled uncons ti- tutional should have been supplanted by the truly democratic doctrine of plural but equal. FURTHER READINGS Brown-Scott, Wendy. 1994. “Justice Thurgood Marshall and the Integrative Ideal.” Arizona State Law Journal 26. Carmichael, Stokely, and Charles Hamilton. 1967. Black Power: The Politics of Liberation in America. New York: Random House. Cashmore, Ellis. 1994. Dictionary of Race and Ethnic Relations. 3d ed. London: Routledge. Christian, William. 1994. “Normalization as a Goal: The Americans with Disabilities Act and Individuals with Mental Retardation.” Texas Law Review 73. Cruse, Harold. 1987. Plural but Equal. New York: Morrow. Davis, Maia. 2003. “Harvard Study Finds New Segregation.” The Record. (January 19): A1. Frankenberg, Erica; Lee, Chungmei; and Orfield, Gary. 20003. “A Multiracial Society with Segregated Schools: Are We Losing the Dream?” The Civil Rights Project at Harvard University. (January) Kimerling, Joshua E. 1994. “Black Male Academies: Re- examining the Strategy of Integration.” Buffalo Law Review 42. King, Martin Luther, Jr. 1968. Where Do We Go from Here— Chaos or Community Boston: Beacon Press. 458 INTEGRATION GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Middleton, Michael A. 1995. “Brown v. Board: Revisited.” Southern Illinois University Law Journal 20. Powell, John A. 1996. “Living and Learning: Linking House and Education.” Minnesota Law Review 80. Stewart, Carter M., and S. Felicita Torres. 1996. “Limiting Federal Court Power to Impose School Desegregation Remedies—Missouri v. Jenkins.” Harvard Civil Rights– Civil Liberties Law Review 31. Wolters, Raymond. 1996. “Stephen C. Halpern, on the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act.” American Journal of Legal History 40. Young, Andrew. 1995. “Reaffirming Our Faith in Integra- tion.” St. Louis University Law Journal 39. CROSS REFERENCES Disability Discrimination; School Desegregation; Separate But Equal. INTELLECTUAL PROPERTY Intangible rights protecting the products of human intelligence and creation, such as copyrightable works, patented inventions, trademarks, and trade secrets. Although largely governed by federal law, state law also governs some aspects of intellectual property. Intellectual property describes a wide variety of property created by musicians, authors, artists, and inventors. The law of intellectual property typically encompasses the areas of copyright, patents, and trademark law. It is intended largely to encourage the development of art, science, and information by granting certain property rights to all artists, which include inventors in the arts and the sciences. These rights allow artists to protect themselves from infringement, or the unauthorized use and misuse of their creations. Trademarks and service marks protect distinguishing features (such as names or package designs) that are associated with particular products or services and that indicate commercial source. Copyright laws have roots in eighteenth- century ENGLISH LAW. Comprehensive patent laws can be traced to seventeenth-century England, and they have been a part of U.S. law since the colonial period. The copyright and patent concepts were both included in the U.S. CONSTITUTION. Under Article I, Section 8, Clause 8, of the Constitution, “The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first trademark laws were passed by Congress in the late nineteenth century, and they derive their constitutional authority from the COM- MERCE CLAUSE . The bulk of intellectual PROPERTY LAW is contained in federal statutes. Copyrights are protected by the Copyright Act (17 U.S.C.A. §§ 101 et seq. [1994]); patents are covered in the Patent Act (35 U.S.C.A. §§ 101 et seq. [1994]), and trademark protection is provided by the LANHAM ACT (also known as the Trademark Act; 15 U.S.C.A. §§ 1501 et seq. [1994]). Intellectual property laws give owners the exclusive right to profit from a work for a particular limited period. For copyrighted material, the exclusive right lasts for 70 years beyond the death of the author. The length of the right can vary for patents, but in most cases it lasts for 20 years. Trademark rights are exclusive for ten years and can be continually renewed for subsequent ten-year periods. Intellectual property laws do not fall in the category of CRIMINAL LAW, per se. Some copyright laws authorize criminal penalties, but by and large, the body of intellectual property law is concerned with prevention and compensation, both of which are civil matters. This means that the owner, not the government, is responsible for enforcement. Intellectual property laws provide owners with the power to enforce their property rights in civil court. They provide for damages when unauthorized use or misuse has occurred. They also provide for injunctions, or court orders, to prevent unauthorized use or misuse. The property protected by copyright laws must be fixed in a tangible form. For example, a musician may not claim copyright protection for a melody unless it has been written down or somehow actualized and affixed with a recog- nizable notation or recorded. A formula or device may not receive patent protection unless it has been presented in whole to the U.S. PATENT AND TRADEMARK OFFICE; even then, it must satisfy several tests in order to qualify. A symbol may not receive trademark protection unless it has been placed on GOODS or used in connection with services. Copyrights Copyright law s grant authors, artists, compo- sers, and publishers the exclusive right to produce and distribute expressive and original work. Only expressive pieces, or writings, may receive copyright protection. A writing need not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTELLECTUAL PROPERTY 459 be words on paper: In copyright law, it could be a painting, sculpture, or other work of art. The writing element merely requires that a work of art, before receiving copyright protection, must be reduced to some tangible form. This may be on paper, on film, on audiotape, or on any other tangible medium that can be reproduced. The writing requirement ensures that copy- righted material is capable of being reproduced. Without this requirement, artists could not be expected to know whether they were infringing on the original work of another. The writing requirement also enforces the copyright RULE that ideas cannot be copyrighted: Only the individu- alized expression of ideas can be protected. Copyrighted material must be original. This means that there must be something sufficiently new about the work that sets it apart from previous similar works. If the variation is more than trivial, the work will merit copyright protection. Functionality can be a factor in copyright law. The copyrights to architectural design, for example, are generally reserved for architectural works that are not functional. If the only purpose or function of a particular design is utilitarian, the work cannot be copyrighted. For instance, a person may not copyright a simple design for a water spigot. However, if a person creates a fancy water spigot, the design is more likely to be copyrightable. Copyrighted material can receive varying degrees of protection. The scope of protection is generally limited to the original work that is in the writing. For example, assume that an artist has created a sculpture of the moon. The sculptor may not prevent others from making sculptures of the moon. However, the sculptor may prevent others from making sculptures of the moon that are exact replicas of his own sculpture. Copyright protection gives the copyright holder the exclusive right to (1) reproduce the copyrighted work; (2) create derivative works from the work; (3) distribute copies of the work; (4) perform the work publicly; and (5) display the work. The first two rights are infringed whether they are violated in public or in private. The last three rights are infringed only if they are violated in public. Public showing is defined under the Copyright Act of 1976 as a performance or display to a “substantial number of persons” outside of friends and family (17 U.S.C.A. § 101). Infringement of copyright occurs whenever someone exercises the exclusive rights of the copyright owner without the owner’s permis- sion. The infringement need not be intentional. Copyright owners usually prove infringement in court by showing that copying occurred and that the copying amounted to impermissible appro- priation. These showings require an analysis and comparison of the copyrighted work and the disputed work. Many general rules also relate to infringement of certain works. For example, a character created in a particular copyrighted work may not receive copyright protection unless he or she is developed in great detail and a character in the disputed work closely resembles that character. The most important exception to the exclu- sive rights of the copyright holder is the “fair use” doctrine. This doctrine allows the general Napster, an online company that provided users the ability to share music files freely, was sued by the Recording Industry of America and was eventually forced to changed its business model. Shawn Fanning, founder of Napster, speaks at a February 2001 news conference following a court ruling against the company. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 460 INTELLECTUAL PROPERTY public to use copyrighted material without permission in certain situations. To varying extents, these situations include some education- al activities, some literary and social criticism, some parody, and news reporting. Whether a particular use is fair depends on a number of factors, including whether the use is for profit; what proportion of the copyrighted material is used; whether the work is fictional in nature; and what economic effect the use has on the copyright owner. The rise in electronic publication in the late twentieth century, particularly the widespread use of the INTERNET since the mid 1990s, caused new concerns in the area of copyright. A web site called Napster, which provided a file-sharing system whereby users could trade electronic music files, became one of the most popular sites on the Internet. The company had an estimated 16.9 million worldwide users, and the system accommodated about 65 million downloads. The Recording Industry Association of America sued Napster, eventually causing Napster to close down. During the late 1990s Congress enacted a series of laws that had significant impacts on the law of copyright. In 1998 Congress enacted the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (17 U.S.C. A. §§ 101 et seq.), which extended the terms of existing and new copyrights by 20 years, against the protests of several lobbying groups. Also in 1998, Congress approved the Digital Millenni- um Copyright Act (DMCA), Pub. L. No. 105- 304, 112 Stat. 2860 (17 U.S.C.A. §§ 101 et seq.), a broad-based piece of legislation designed to bring copyright law into the digital age. Several years after the lawsuit involving Napster, the issue of file sharing again took center stage in the area of copyright law. In 2005 the U.S. Supreme Court issued a decision in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., wherein it had examined a challenge to a file-sharing system known as Grokster. The software at issue allowed computer users to share files through peer-to-peer networks, meaning that the computers could communicate directly with one another, rather than through a central server. Users of Grokster primarily used the software to share copyrighted video and music files without authorization. Because the Supreme Court found that Grokster had the objective that its software be used to download copyrighted works without authorization, and took active steps to encourage infringement, it was liable for the infringing acts of its users. In the wake of the Supreme Court decision, Grokster ceased opera- tions. The impact of the Grokster decision is ongoing, but commentators have emphasized the decision’s focus on Grokster’sbehavior,rather than on the technology itself. Patents Patent laws encourage private investment in new technologies by granting to artists the right to forbid all others to produce and distribute technological information that is new, useful, and non-obvious. The statutory requirements for patent protection are more stringent than those for copyright protection. Furthermore, because patent protection for commercial products or processes can give a tremendous market advan- tage to businesses, those seeking patents often find opposition to their applications. Patent protection can be obtained only through the U.S. Patent and Trademark Office (PTO). The novelty requirement focuses on events that occur prior to the invention. Under Section 102 of the Patent Act, an invention is not novel if it is publicly used, sold, or patented by another inventor within 12 months of the patent application. This definition implements the public policy that favors quick disclosure of technological progress. Often, two inventors apply for a patent for the same product or process within the same 12-month period. Three factors determine who wins the patent: the date and time that the product or process was conceived; the date and time that the product or process was reduced to practice; and the diligence that was used to pur- sue patent protection and to perfect the discov- ery. Generally, the first inventor to conceive the product or process has priority in the application process. However, if the second inventor is the first to reduce the product or process to practice, and the first inventor does not use diligence to obtain patent protection, the second inventor is given priority in the application process. The utility requirement ensures that the product or process receiving patent protection will have some beneficial use. The inventor must specify in the application a specific utility for the invention. If the application is for a patent on a process, the process must be useful with respect to a product. A process that is new GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTELLECTUAL PROPERTY 461 and non-obvious, yet useless, does not increase knowledge or confer any benefit on society. Non-obviousness is not the same as novelty. Not everything that is novel is non-obvious. Anything that is non-obvious is novel unless it already has been patented. The non-obviousness requirement focuses on existing technology, or “prior art.” In determining whether an invention is non-obvious, the PTO analyzes the prior art, examines the differences between the invention and the prior art, and determines the level of ordinary skill in the art. Generally, if an invention is obvious to a person of ordinary skill in the relevant art, it is not patentable. When an inventor claims that his or her patent has been infringed, the court engages in a two-step process. First, it analyz es all of the relevant patent documents. It then reads the patent documents and compares them with the device or process that is accused of infringe- ment. If each element of the accused device or process substantially duplicates an element in the patented device or process, the court may declare that the patent has been infringed. Infringement can occur only if another person uses, makes, or sells the patented device or process without the permission of the person who has received the patent. When a patented device or process is in- fringed, the patent holder, or patentee, may recover in damages an amount equal to a rea- sonable royalty. If the infringement was willful, the infringing party may be forced to pay three times the reasonable royalty. If successful in court, the patent holder may recover court costs and attorneys’ fees. If the patent holder antici- pates infringement, he or she may apply for an injunction, which would prohibit a certain party from infringing the patent. An injunction may also be issued after a finding of infringement to prevent repeat infringement. Trademarks Trademark laws allow businesses to protect the symbolic information that relates to their goods and services, by preventing the use of such features by competitors. To receive trademark protection, a mark usually must be distinctive. Distinctiveness applies to any coined or fanciful word or term that does not closely resemble an existing mark. A mark generally will not receive trademark protection if it is a common or descriptive term used in the marketplace. To receive trademark protection, a mark must be used in commerce. If two or more marketers claim ownership of a certain mark, the first user of the mark will usually receive the protection. When the mark is known to consumers only in a limited geographic area, it may not receive protection in areas where it is unknown. Infringement occurs if a mark is likely to cause confusion among consumers. In deter- mining whether confusion is likely, the court examines a number of factors, including the similarity between the two marks in appearance, sound, connotation, and impression; the simi- larity of the goods or services that the respec tive marks represent; the simila rity of the markets; whether the sale of the goods or services is inspired by impulse or only after careful consideration by the buyer; the level of public awareness of the mark; whether shoppers are actually confused; the number and nature of similar marks on similar goods or services; the length of time of concurrent use without actual confusion on the part of shoppers; and the variety of goods or services that the mark represents (In re E. I. duPont de Nemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563 [1973]). Defenses to infringement include fair use and COLLATERAL use. Fair use occurs when the second user, or repossessor, uses a protected mark in a non-conspicuous way to identify a component of a good or service. For example, a restaurant may use a protected mark to advertise that it serves a particular brand of soft drink, without infringing the mark. How- ever, the restaurant may not identify itself by the mark without infringing the mark. Collateral use is use of the same mark in a different market. For example, assume that a tree surgeon has received trademark protection for the mark Tree Huggers. This protection might or might not prevent a business that sells logging boots from using the same mark. However, if the mark for the boots is written or otherwise appears with the same defining characteristics as the mark for the tree surgeon, it risks being denied trademark protection, depending on whether it can be confused by consumers. Remedies for infringement of a protected trademark consist of damages for the profits lost owing to the infringement; recovery of the profits realized by the infringer owing to the infringement; and attorneys’ fees. A trademark GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 INTELLECTUAL PROPERTY holder also may obtain injunctive relief to prevent infringement. Other Forms of Intellectual Property The body of intellectual property law also includes laws relating to trade secrets, UNFAIR COMPETITION , and the right of publicity. TRADE SECRET laws, which function at the state level, protect any formula, pattern, device, or compila- tion of information that provides a business advantage over competitors who do not use or know of it. A strategy to increase worker pro- ductivity, for example, is a trade secret. Trade secrets do not receive patent protection because they are not inventive. Trade secret laws are included in intellectual property laws because, like other intellectual property laws, they pre- vent the unauthorized use of certain intangible subject matter. The right of publicity is the right of a person to control the commercial value and exploita- tion of his or her name, voice, or likeness. Because right-of-publicity laws promote artistic and commercial pursuits, they are included among intellectual property law. These laws are usually reserved for celebrities and other public figures whose name and image are important to their career. By allowing celebrities the righ t to Napster and Intellectual Property I B n early 1999 Shawn F anning, who was only 18 at the time, began to develop an idea as he talked with friends about the difficulties of finding the kind ofMP3filestheywereinterestedin.Hethoughtthat there should be a way to create a program that combined three key functions into one. These functions included a search engine, file sharing (the ability t o trade MP3 files directly, wi thout having to use a centralized server for storage), and anInternetRelayChat(IRC),whichwasameansof finding and chatti ng wi th other MP3 users while online. Fanning spent several months writing the code that would become the utili ty later k nown world-wide as Napster. Napster became a non- profit on-line music-trading program that became especially popular among colle ge students who typically have access to hi gh-speed Internet connections. In April 2000 the heavy metal rock group Metallica sued the on-line music-tra ding Website Napster for copyright infringement. Several univer- sities were also named in this suit. Metallica claimed that these universities violated Metallica’s music copyrights by permitting their students to access Napster and illegally trade songs using university servers. A number of universities had banned Napster prior to April 2000 becau se of concerns abo ut potential copyrigh t infringement and/or because traffic on the Internet was slowing down university servers. Yale University, which was named in the suit, immediately blocked student access to Napster. Metallica argued that Napster facilitated illegal use of di gital audi o devices, which the group alleged was a violation of the Racketeering Influenced and Corrupt Organizations (RICO) ac t, 18 U.S.C. § 1961. Napster responded that the Fair Use A ct allows owners of compact discs to use them as they wish. Therefore if an owner of the disc decides to copy it into a computer file, he or she should be allowed to do so. If this file happens to b e accessible on the Internet, then others ca n also access or download it without being guilty of a crime. Napster further claimed that since it made no profit off the trades, it owed no money in royalties. The Ninth Circuit held that Napster ’ soperation constituted cop yright infringement. FURTHER READINGS Alderman, John. 2001. Sonic Boom: Napster, P2P, and the Battle for the Future of Music. New York: Perseus. Merriden, Trevor. 2001. Irresistible Forces: The Business Legacy of Napster and the Growth of the Underground Internet. New York: John Wiley and Sons. CROSS REFERENCE Art Law GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTELLECTUAL PROPERTY 463 control the commercial use of their name, voice, and image, right -of-publicity laws protect the commercial potential of entertainers. Developments Artists face problems protecting their property in other countries because not all countries subscribe to international agreements regarding intellectual property. This has led to widespread unauthorized copying. In the 1990 s China and Mexico were identified as especially serious offenders. In both countries music and films are copied and sold openly without compensation to the creators. The United States threatened to impose trade sanctions against China if it did not observe INTERNATIONAL COPYRIGHT treaties. Such threats illustrate that the United States places a high priority on protecting the right of artists to profit from their work. FURTHER READINGS Burgunder, Lee B. 2002. “Reflections on Napster: The Ninth Circuit Takes a Walk on the Wild Side.” American Business Law Journal 39 (summer): 683–707. Byrne, John G. 1995. “Changes on the Frontier of Intellectual Property Law: An Overview of the Changes Required by GATT.” Duquesne Law Review 34 (fall): 121–37. Goldstein, Paul. 2008. Copyright, Patent, Trademark, and Related State Doctrines: Cases and Materials on the Law of Intellectual Property. 6th ed. New York: Foundation Press. Gray, Megan E., and Will Thomas DeVries. 2003. “The Legal Fallout from Digital Rights Management Technology.” Computer and Internet Lawyer 20 (April): 20–35. Helprin, Mark. 2009. Digital Barbarism. New York: HarperCollins. Kuney, George W., and Donna C. Looper. 2009. Mastering Intellectual Property. Durham, N.C.: Carolina Academic Press. LaFrance, Mary. 2009. Understanding Trademark Law. New Providence, N.J.: LexisNexis. Lamoureux, Edward Lee, and Steven L. Barron. 2009. Intellectual Property Law and Interactive Media. New York: Peter Lang Publishing. Letterman, G. Gregory. 2001. Basics of International Intellectual Property Law. Ardsley, NY: Transnational Publishers. McJohn, Stephen M., and Roger S. Haydock. 2003. Intellectual Property: Examples and Explanations. New York: Aspen. CROSS REFERENCES Art Law; Copyright, International; Entertainment Law; Literary Property; Music Publishing; Trade Dress; Trade Name. INTEMPERANCE A lack of moderation. Habitual intemperance is that degree of intemperance in the use of intoxicating liquor which disqualifies the person a great portion of the time from properly attending to business. Habitual or excessive use of liquor. CROSS REFERENCE Alcohol. INTENT A determination to perform a particular act or to act in a particular manner for a specific reason; an aim or design; a resolution t o use a certain means to reach an end. Intent is a mental attitude with which an individual acts, and therefore it cannot ordinar- ily be directly proved but must be inferred from surrounding facts and circumstances. Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. For example, suppose Billy calls Amy names and Amy throws a snowball at him. Amy’s intent is to hit Billy with a snowball. Her motive may be to stop Billy’s taunts. The legal importance of what an individual intended depends on the particular area of law. In contract law, for example, the intention of the parties to a written contract is fixed by the language of the contract docu ment. In TORT LAW, intent plays a key role in determining the civil liability of persons who commit harm. An intentional tort is any deliber- ate invasion of, or interference with, the property, property rights, personal rights, or personal liberties of another that causes injuries without JUST CAUSE or excuse. In tort an individual is considered to intend the consequences of an act—whether or not she or he actually intends those consequences—if the individual is substan- tially certain that those consequences will result. Basic intentional torts include ASSAULT AND BATTERY , conv ersion of property, FALSE ARREST, FALSE IMPRISONMENT, fraud, intentional infliction of emotional distress, invasion of privacy, and TRESPASS. It is ordinarily not necessary that any wrongful or illegal means be used to accomplish the negative result, provided the wrongful conduct was intentional and was not accompa- nied by excuse or justification. In CRIMINAL LAW the concept of criminal intent has been called MENS REA, which refers to a criminal or wron gful purpose. If a person innocently causes harm, then she or he lacks GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 INTEMPERANCE mens rea and, under this concept, should not be criminally prosecuted. Although the concept of mens rea is generally accepted, problems arise in applying it to particular cases. Some crimes require a very high degree of intent, whereas others require substan- tially less. LARCENY, for example, requires that the DEFENDANT intentionally take property to which the person knows he or she is not entitled, intending to deprive the rightful owner of possession permanently. On the other hand, negligent HOMICIDE requires only that the defen- dant negligently cause another’sdeath. Criminal law has attempted to clarify the intent requirement by creating the concepts of “specific intent” and “general intent.” SPECIFIC INTENT refers to a particular state of mind that seeks t o accomplish the precise ac t that the law prohibits—for example, a specific intent to commit RAPE. Sometimes it means an intent to do something beyond that which is done, such as ASSAULT with intent to commit rape. The prosecu- tion must show that the defendant purposely or knowingly committed the crime at issue. GENERAL INTENT refers to the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result that occurred. Thus, in most states, a defendant who kills a person with a gun while intoxicated, to the extent that the defendant is not aware of having a gun, will be guilty of second-degree MURDER. The law will infer that the defendant had a general intent to kill. Criminal law dispenses with the intent requirement in many property-related crimes. Under COMMON LAW the prosecution had to establish that the defendant intended to steal or destroy property. By 1900 many statutes elimi- nated the “intent-to-defraud” requirement for property crimes. Passing a bad check, obtaining property under FALSE PRETENSES, selling mortgaged property, and embezzling while holding public office no longer required criminal intent. Criminal law and tort law share the concept of transferred intent. For example, if A shoots a gun at B, intending to strike B, but the bullet hits C, the intent to strike is transferred to the act of shooting C and supplies the necessary intent for either a criminal conviction or a civil tort action. Under the criminal doctrine of transferred intent, the intent is considered to follow the criminal act regardless of who turns out to be the victim. Under the tort doctrine of transferred intent, the defendant is liable for monetary damages to the unintended victim. INTER ALIA [ Latin, Among other things. ] A phrase used in pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. Inter alia is also used when reporting court decisions to indicate that there were other rulings made by the court but on ly a particular holding of the case is cited. INTER VIVOS [ Latin, Between the living. ] A phrase used to describe a gift that is made during the donor’s lifetime. In order for an inter vivos gift to be com- plete, there must be a clear manifestation of the giver’s intent to release to the donee the object of the gift, and actual delivery and acceptance by the donee. An inter vivos gift is distinguishable from a gift CAUSA MORTIS, which is made in expectation of impending death. INTEREST A comprehensive term to describe any right, claim, or privilege that an individual has toward real or personal property. Compensation for the use of borrowed money. There are two basic types of interest: legal and conventional. Legal interest is prescribed by the applicable state statute as the highest that may be legally contracted for, or charged. Conventional interest is interest at a rate that has been set and agreed upon by the parties themselves without outside intervention. It must be within the legally prescribed interest rate to avoid the criminal prosecution of the lender for violation of usu ry laws. INTEREST ON LAWYERS TRUST ACCOUNT A system in which lawyers place certain client deposits in interest-bearing accounts, with the interest then used to fund programs, such as legal service organizations who provide services to clients in need. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTEREST ON LAWYERS TRUST ACCOUNT 465 Originating in Canada and Australia in the 1960s, interest on lawyers trust account (IOLTA) programs made their first appearance in the United States in Florida in 1981. Since then, all 50 states and the District of Columbia have established IOLTA programs. The concept is straightforward. Lawyers routinely place large client deposits—such as escrow accounts—in interest-bearing accounts, with the interest to be paid to the client. Deposits that would individu- ally be too small or too short-term to generate interest are pooled into IOLTA accounts. The interest generated by these funds is then used to fund a variety of public legal services, usually geared toward those who cannot afford lawyers. Nationwide, IOLTA programs earned more than $200 million in interest in 2002. Over the years IOLTA programs faced challenges from individuals and lawyers who felt that the interest, however small the amount, belonged to the clients. They cited the Fifth Amendment’s prohibition against the taking of private property without JUST COMPENSATION. IOLTA proponents countered that, since the deposits individually would yield no interest, the clients were not actually losing money. The U.S. Supreme Court weighed in on March 26, 2003, when it narrowly decided in favor of IOLTAs (Brown v. Legal Foundation of Washington, U.S. Supreme Court, 01-1325, 2003). The Court found that the Fifth Amendment’s Just Compen- sation Clause did not apply because without the existence of the IOLTA accounts no other depository accounts would exist, and conse- quently the clients whose money was being held would not have received any interest. FURTHER READINGS Anderson, Tony. 2003. “U.S. Supreme Court Upholds Use of Interest on Lawyer Trust Account.” Wisconsin Law Journal (April 23). Greenhouse, Linda. “Method of Legal Services Financing is Challenged before Supreme Court.” The New York Times (December 10, 2002). Available online at http:// www.commondreams.org/headlines02/1210-07.htm; website home page: http://www.commondreams.org (accessed August 1, 2009). IOLTA.org Web site. Available online at http://www.iolta. org/ (accessed September 5, 2009). CROSS REFERENCES Fifth Amendment; Group Legal Services. INTERFERENCE In the law of patents, the presence of two pending applications, or an existing patent and a pending application that encompass an identical invention or discovery. When interference exists, the PATENT AND TRADEMARK OFFICE conducts an investigation to ascertain the priority of invention between the conflicting applications, or the application and the patent. A patent is customarily granted to the earlier invention. INTERGOVERNMENTAL IMMUNITY DOCTRINE A principle established under constitutional law that prevents the federal government and individ- ual state governments from intruding on one another’s sovereignty. Intergovernmental immu- nity is inten ded to keep government agencies from restricting the rights of other government agencies. The principle of intergovernmental immu- nity was established by the U.S. Supreme Court in McCulloch v. Maryland, 17 U.S. at 426 (1819), in which Chief Justice JOHN MARSHALL and his fellow justices ruled unanimously that states may not regulate property or operations of the federal government. (Under Maryland state law, banks not chartered by the state were subject to restrictions and taxes; the state government had attempted to impose these restrictions on the Second Bank of the United States.) The doctrine of intergovernmental immu- nity is frequently invoked in TAXATION cases. In Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989), the U.S. Supreme Court ruled that the state of Michigan was in violation of federal law when it exemp ted state and local government pensions from taxation but levied taxes on federal government pensions. At the time, more than two dozen other states handled federal pensions in a similar manner. The doctrine also keeps certain federal entities immune from state laws. The Smithso- nian Institution is an example. While not a government agency in the strict sense of what that implies, it is considered an “instrumentality of the United States,” and thus under federal jurisdiction. Therefore, the Smithsonian can establish charitable gift annuities and similar funding tools without being required to register under the charitable solicitation laws of indi- vidual states. Intergovernmental immunity also governs the taxation of Native Americans living on federal lands, as well as tribal WATER RIGHTS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 466 INTERFERENCE FURTHER READINGS Anzovin, Steven, and Janet Podell, eds. 1988. The U.S. Constitution and the Supreme Court. New York: Wilson. Engdahl, David E. 1987. Constitutional Federalism in a Nutshell. Eagan, MN: West. “Immunity of Smithsonian Institution from State Insurance Laws.” April 25, 1997. Department of Justice Memoran- dum. Available online at http://www.justice.gov/olc/ smithsonop2.htm; website home page: http://www. justice.gov (accessed August 1, 2009). CROSS REFERENCE States’ Rights. INTERIM [ Latin, In the meantime: temporary; between. ] An interim dean of a law school, for example, is an individual who is appointed to fill the office of dean during a temporary vacancy or a period during which the regular dean is absent due to an illness or disability. INTERIOR DEPARTMENT The Interior Department is a federal agency responsible for U.S. natural resources and for land owned by the federal government. The department fulfills this responsibility by pro- mulgating and enforcing numerous regulations concerning natural resources and public lands. The head of the department is the secretary of the interior, who sits on the president’s CABINET and reports directly to the president. The Department of the Interior was created by Congress in 1849 (9 Stat. 395 [43 U.S.C.A. § 1451]). Its original duties included supervision Department of the Interior Secretary Deputy Secretary Inspector General Solicitor Assistant Secretary Policy, Management and Budget Bureau of Indian Affairs National Business Center Assistant Secretary Indian Affairs Special Trustee for American Indians Chief Information Officer U.S. Fish and Wildlife Service National Park Service Assistant Secretary Fish and Wildlife and Parks Minerals Management Service Office of Surface Mining Reclamation and Enforcement Assistant Secretary Land and Minerals Management Bureau of Land Management Assistant Secretary Water and Science U.S. Geological Survey Bureau of Reclamation ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INTERIOR DEPARTMENT 467 . REFERENCE Art Law GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTELLECTUAL PROPERTY 463 control the commercial use of their name, voice, and image, right -of- publicity laws protect the commercial potential. writing need not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INTELLECTUAL PROPERTY 459 be words on paper: In copyright law, it could be a painting, sculpture, or other work of art. The writing. Strategy of Integration.” Buffalo Law Review 42. King, Martin Luther, Jr. 1968. Where Do We Go from Here— Chaos or Community Boston: Beacon Press. 458 INTEGRATION GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD