Can a Tweet Break the Law if it’s “just a joke?” That is the Question.

By: Alex Glassman

Openly breaking the law is usually not a good idea.  However, what if your “crime” was “just a joke?”

Dave Portnoy is the founder of the “sports and pop culture website” Barstool Sports.[1]  On June 4, 2015, Portnoy wrote an article discussing how he would crush Barstool employees if they tried to unionize.[2]  On August 12, 2019, Portnoy tweeted out the link to this article when another media company discussed unionizing to remind his followers of his thoughts on a potential Barstool union.[3]  This might have been a bad ideas because threatening to fire an employee for attempting to unionize is against the law.[4]

Hundreds of people responded to Portnoy’s tweets stating he violated labor laws.[5]  Furthermore, when an individual responded to Portnoy’s tweet offering his services, Portnoy quote-tweeted and stated: “If you work for @barstoolsports and DM this man I will fire you on the spot.”[6]  That tweet sparked a conversation on Twitter as it received over 7,000 replies discussing whether Portnoy violated labor laws or was “just joking.”[7]

When this story became national news, Portnoy went on Fox News to discuss how his tweets did not violate labor laws because he was clearly “just joking.”[8]  Portnoy stated, “We are a comedy site, we’re pretty clear about that, we have no union at Barstool Sports, nobody is trying to make a union at barstool sports.”[9]  Although Portnoy might see this a joke and great for business, it may have serious consequences as the National Labor Relations Board launched an investigation and the Committee to Preserve the Religious Rights to Organize filed charging papers with the NLRB against Portnoy.[10]

Portnoy’s antics, while potentially a labor law violation, had an astoundingly positive impact for Barstool, as “Barstool received over 1.1 BILLION media impressions from [Portnoy’s tweets].  That’s over $22 million worth of free media at a $20 CPM[.]  @barstoolsports gained more Twitter followers yesterday than any other day this year. . . .”[11]  If there are no legal repercussions, this has the potential for other companies to follow suit to gain publicity.

So, the question remains: Did Dave Pornoy’s tweets break the law or was he “just joking?”

[1] Molly Freeman, Barstool Sports Founder’s Anti-Union Controversy Explained, ScreenRant  (Aug. 14, 2019), https://screenrant.com/barstool-sports-website-founder-union-controversy-explained/

[2]  David Portnoy, Gawker Writers Vote To Unionize, Barstool Sports (Jun. 4, 2015, 1:10 PM), https://www.barstoolsports.com/undefined/gawker-writers-vote-to-unionize

[3] Dave Portnoy (@stoolpresidente), Twitter (Aug. 12, 2019, 12:23 PM), https://twitter.com/stoolpresidente/status/1160949935593988096

[4] National Labor Relations Act, 74 P.L. 198 § 1, 49 Stat. 449 (1935) (codified as Amended at 29 USCS § 151)

[5] Portnoy, supra note 3.

[6]  Dave Portnoy (@stoolpresidente), Twitter (Aug. 13, 2019, 9:30 AM), https://twitter.com/stoolpresidente/status/1161268795278790658

[7] Id.

[8] Fox News (Fox News Broadcast Aug 14, 2019).

[9] Id.

[10] Jackie Salo, Barstool Sports founder David Portnoy under investigation over anti-union tweets, N.Y. Post (Aug. 18, 2019, 9:41 AM), https://nypost.com/2019/08/18/barstool-sports-founder-david-portnoy-under-investigation-over-anti-union-tweets/

[11] Gaz (@stoolsalesguy), Twitter (Aug. 14, 2019, 9:31 AM), https://twitter.com/stoolsalesguy/status/1161631406872760323

Shield Your Eyes; The Ubiquity of Facial Recognition

By: Matthew Bodi

The use of facial recognition technology by government agencies, police departments and commercial businesses has been increasing in the United States and the lack of oversight or regulation of this developing technology is troubling to both Republicans and Democrats alike. On May 22, and June 4 the Congressional Committee on Oversight and Reform held hearings regarding the use and need for oversight of facial recognition technology as used by commercial entities and the government.[1] At that hearing a number of a experts testified about the increasing need for federal legislation regulating the use of facial recognition technology.[2] A primary fear being that the rapid development of this technology could mean that it may become ubiquitous before the courts have an opportunity to rule on the constitutionality of its use by federal agencies.[3]

The most unsettling use of facial recognition has been by the Chinese government to monitor its Uighur citizens, a Muslim minority in its western provinces, as part of its efforts at repressing and reeducating them.[4] The Chinese government had been using this technology to distinguish its Uighur population from its majority Han population in an effort to monitor the Uighur’s movements and activities, citing security concerns as the justification.[5]Between several hundred thousand and one million Uighurs have been placed in internment camps[6], and this technology is being used as a powerful tool in a mass surveillance program aimed at monitoring as many of the non-interned 24 million Uighur as possible.[7]

In the United States some cities have banned the use of facial recognition technology from being used by their police force, while others police departments have used it to solve otherwise hard to crack cases.[8] Beyond concerns of privacy invasion, studies have consistently shown a bias in the technology, as its accuracy significantly decreases when it is used on women or on people of color.[9] As municipalities decide their policy on this emerging technology, the federal government has so far not decided on any legislation regulating use of this technology by Federal agencies. This was showcased recently when it was discovered ICE had used facial recognition software to mine millions of driver’s license photos, in part to find undocumented immigrants who had legally obtained driver’s licenses.[10]

Since those hearings in May and June, Congress now has four different bills before it to consider in deciding how to regulate the use of this powerful and rapidly developing technology.[11] One in particular which has been reported to soon be introduced by Rep. Elijah Cummings (D-MD) and Rep. Jim Jordan (R-OH) illustrates the bipartisan concern for the potential misuse of this technology.[12] Whatever bill is ultimately put to vote, it is important action is taken. Considering the proven inaccuracies in the facial recognition technology employed within the United States and its deeply disturbing use as a tool of authoritarian repression in China, it is incredibly important that Congress come together and place limits on its use before it is put to use for more invasive purposes.

[1] Facial Recognition Technology (Part I): Its Impact on Our Civil Rights and Liberties: Hearing before the H. Comm. on Oversight and Reform, 116th Cong. (2019); Facial Recognition Technology (Part II): Ensuring Transparency in Government Use: Hearing before the H. Comm. on Oversight and Reform, 116th Cong. (2019).

[2] Id.

[3] Facial Recognition Technology (Part I): Its Impact on Our Civil Rights and Liberties, supra note 1. (statement of Andrew G. Ferguson, Professor of Law, University of the District of Columbia, David A. Clarke School of Law).

[4] Paul Mozur, One Month, 500,000 Face Scans: How China Is Using A.I. to Profile a Minority, N.Y. Times (April 14, 2019) https://www.nytimes.com/2019/04/14/technology/china-surveillance-artificial-intelligence-racial-profiling.html?register=google&auth=register-google; See also Chris Buckley, China Is Detaining Muslims in Vast Numbers. The Goal: ‘Transformation’, N.Y. Times (September 8, 2018), https://www.nytimes.com/2018/09/08/world/asia/china-uighur-muslim-detention-camp.html, Corrected as per R.18.2.2(c)

[5] Mozur, supra note 4.

[6] Buckley, supra note 4.

[7] Mozur, supra note 4.

[8] Compare Corinne Reichert, Facial Recognition Banned in Another City, CNet (July 17, 2019), https://www.cnet.com/news/facial-recognition-banned-in-another-city/; with Jon Schuppe, How Facial Recognition Became a Routine Policing Tool in America, NBC News (May 11, 2019), https://www.nbcnews.com/news/us-news/how-facial-recognition-became-routine-policing-tool-america-n1004251.

[9] Queenie Wong, Why Facial Recognition’s Racial Bias is So Hard to Crack, CNet, (March 27, 2019), https://www.cnet.com/news/why-facial-recognitions-racial-bias-problem-is-so-hard-to-crack/.

[10] Bill Chappel, ICE Uses Facial Recognition To Sift State Driver’s License Records, Researchers Say, NPR, (July 8, 2019), https://www.npr.org/2019/07/08/739491857/ice-uses-facial-recognition-to-sift-state-drivers-license-records-researchers-sa.

[11] Shirin Ghaffray, How Facial Recognition Became the Most Feared Technology in the US, Vox (August 9, 2019), https://www.vox.com/recode/2019/8/9/20799022/facial-recognition-law.

[12] Id.

Wait, It Gets Worse: Big Pharma Price Gouging And The Infinite Suffering Machine

By: Jeremy Bond

Ah, 2019.  The memories! When looking back on this sordid year we (the people) may remember it containing the hottest month yet-recorded in human history[1];  an inflection point in violent ethno-nationalism[2], or the year justice remained tantalizing just beyond our grasp[3]. Does our ailing biosphere and society have you down, consumer?  After you download a mindfulness app and purchase a subscription, be sure to become a C-suite pharmaceutical executive. Rest assured, their memories of 2019 will be quite fond.

It has been a productive year for big pharma, despite some speed bumps[4].  Across the industry, more than 3400 drugs increased in price from January to June of 2019[5]. The average price increase of 10.5% exceeds the rate of inflation by a factor of five[6]. One particularly horrifying example is antidepressant Prozac, the cost of which has spiked 879%[7].

In human terms, these hikes represent a distilled, perfected vision of profit extraction from suffering. A recent survey indicates that three in ten Americans have skipped taking their prescription medication as directed due to high cost[8].  Skipping medication often leads to tragic consequences[9].

These price increase exist at the brutal intersection of price inelasticity, shareholder demands for ever larger profits and the life or death decisions made by people that need these drugs[10]. Michael Rea, founder and CEO of Rx Savings Solutions, describes the situation succinctly: “It’s a good that people need, in many cases in order to stay alive. . . [y]ou have a lot of flexibility to drive prices higher and higher.”[11]

This situation is unacceptable. It is untenable. It is morally repugnant. Buying life-saving medication is not a normal market transaction; you pay or you die. Of course, any systemic push for drug pricing regulations and laws must be part of a more comprehensive effort tackling skyrocketing health insurance costs and the crippling influence of money on our politics.

One proposal to reign in drug costs is Sen. Elizabeth Warren’s plan to nationalize the manufacture of generic drugs through a hypothetical Office of Drug Manufacturing[12]. This office would be housed within the Department of Health and Human services and would be granted the authority to manufacture generic versions of “any drug for which the U.S. government has licensed a patent, whenever there is little or no competition, critical shortages, or exorbitant prices that restrict patient access.”[13]

While we wait for anything resembling relief from under the crushing boot of Big Pharma, I suggest some cautious optimism. Even if you can’t afford your Prozac. Even if you need to decide between buying food and a $300 generic EpiPen (manufactured by Mylan, who conveniently also makes the name-brand version)[14].  This naked greed will ultimately suffocate itself. Some CEOs are rapidly trying to get ahead of the growing political wave before substantive regulation makes decisions for them[15]. Such shameless profiteering exposes the rot central to unchecked capitalism. This issue unites real people of all political persuasions. Our health is more important than a pharma executive’s bonus. We will prevail if we fight for it.

 

 

 

[1] See Brady Dennis & Andrew Freedman, Here’s how the hottest month in recorded history unfolded around the world, Wash. Post (Aug. 5, 2019), https://beta.washingtonpost.com/climate-environment/2019/08/05/heres-how-hottest-month-recorded-history-unfolded-around-globe/?outputType=amp

removed underline per rule 18.1

[2] See Nicholas Bogel-Burroughs, ‘I’m the Shooter’: El Paso Suspect Confessed to Targeting Mexicans, Police Say, N.Y. Times (Aug. 9, 2019), https://www.nytimes.com/2019/08/09/us/el-paso-suspect-confession.html?searchResultPosition=17

Corrected to remove underline from URL per rule 18.1

[3] See Marc Fisher & Nonathan O’Connell, Final evasion: For 30 years, prosecutors and victims tried to hold Jeffrey Epstein to account. At every turn, he slipped away. Wash. Post (Aug. 10, 2019), https://www.washingtonpost.com/politics/final-evasion-for-30-years-prosecutors-and-victims-tried-to-hold-jeffrey-epstein-to-account-at-every-turn-he-slipped-away/2019/08/10/30bc947a-bb8a-11e9-a091-6a96e67d9cce_story.html

Corrected to remove underline from URL per rule 18.1

[4] See Martha Bebinger, Purdue Pharma Agrees To $270 Million Opioid Settlement With Oklahoma, (Mar. 29, 2019, 2:20 PM), https://www.npr.org/sections/health-shots/2019/03/26/706848006/purdue-pharma-agrees-to-270-million-opioid-settlement-with-oklahoma

Correct per rule 18.1

[5] See Aimee Picchi, Drug prices in 2019 are surging, with hikes at 5 times inflation (July 1, 2019, 11:34 AM), https://www.cbsnews.com/news/drug-prices-in-2019-are-surging-with-hikes-at-5-times-inflation/ correct per rule 18.1

[6] See id. correct per rule 4.1

[7] See id. correct per rule 4.1

[8] See Public Opinion on Prescription Drugs and Their Prices, Henry J Kaiser Family Foundation, https://www.kff.org/slideshow/public-opinion-on-prescription-drugs-and-their-prices/ italicized per rule 18.1

[9] See Sarah Jones, Another Person Has Died After Rationing Insulin, New York Magazine (July 15, 2019), http://nymag.com/intelligencer/2019/07/another-person-has-died-from-rationing-insulin.html correct per rule 18.1

[10] See Aimee Picchi, Drug prices in 2019 are surging, with hikes at 5 times inflation (July 1, 2019, 11:34 AM), https://www.cbsnews.com/news/drug-prices-in-2019-are-surging-with-hikes-at-5-times-inflation/ correct per rule 18.1

[11] Id. per rule 1.2 “See” is not necessary, correct per rule 4.1

[12] See David Dayen, Elizabeth Warren Plan Would Allow the Government to Manufacture Its Own Generic Drugs, The Intercept, (Dec. 18, 2018, 8:54 AM), https://theintercept.com/2018/12/18/elizabeth-warren-generic-drugs-bill/ Per T12, December needs to be abbreviated.

[13] Id. correct per rule 4.1

[14] See Beth Mole, Big Pharma is using faux generics to keep drug prices high, critics say, Ars Technica, (Aug. 8, 2019, 12:55 PM), https://arstechnica.com/science/2019/08/big-pharma-is-using-faux-generics-to-keep-drug-prices-high-critics-say/ Correct per rule 18.1

[15] See Jena McGregor, Group of top CEOs says maximizing shareholder profits no longer can be the primary goal of corporations. Wash. Post (Aug. 19, 2019), https://www.washingtonpost.com/business/2019/08/19/lobbying-group-powerful-ceos-is-rethinking-how-it-defines-corporations-purpose/ Correct per rule 18.1

Twenty-one-year-old Jesimya David Scherer-Radcliff might still be alive if he could have afforded his insulin. KARE 11 reported on Sunday that the Minnesota man had been rationing the insulin he needed to treat his diabetes. “The cost of insulin is ridiculous,” Jesmiya’s father, David Radcliff, told the news station. “It is hard for me to even go in there and look at his casket. He is gone now.” Radcliff added, “I just think this country is backwards and I am a veteran. I have seen other countries and how they operate.”

Scherer-Radcliff’s death is not an isolated event.

Drug prices are rising because of a combination of pressure from shareholders to deliver higher profits and what Rea calls an “inelastic market.”

“It’s a good that people need, in many cases in order to stay alive,” he says. “You have a lot of flexibility to drive prices higher and higher.”

But CEOs who favored the move said it would benefit shareholders in the long run as well.

“CEOs work to generate profits and return value to shareholders, but the best-run companies do more. They put the customer first and invest in their employees and communities. In the end, it’s the most promising way to build long-term value,” said Tricia Griffith, president and CEO of Progressive Corp.

Untitled

By: Daniel Garcia

In response to unprecedented changes and challenges in the music industry, The 115th Congress recently passed – and President Trump signed into law – the Music Modernization Act (MMA).[1]  The MMA has sweeping consequences for both performance and mechanical licenses, which are part of the bundle of rights any copyright owner is entitled to.[2]

 

Firstly, with respect to performance licenses, Title III, statutorily guarantees (for the first time ever) performance license royalties for sound engineers, mixers, and producers.[3]  Previously, if those collaborators wanted in on the performance royalties of a collaboration, they needed a work-around to the loophole know as a split-sheet contract.[4]  While split-sheets are seemingly intuitive, independent artists just beginning to develop an online presence may be worse off than, say, larger recording artists with access to a breadth of management resources, including agents and legal teams that are in the know.[5]  In fact, sometimes even for those in the know are confused, which may have been in some part responsible for the 2016 DOJ investigation about “full-work” licenses. [6]

 

Secondly, also with respect to performance licenses, the MMA set an incremental rate court increase for Performance Rights’ Organizations to enact over the next five years, which is a huge development that partially repeals the ongoing consent decrees governing PRO’s.[7]  Typically, any dispute between the PROs and licensees is resolved, pursuant to the consent decrees, by a single rate judge in the Southern District of New York – with the most recent dispute occurring in 2016.[8]

 

Thirdly, the act has designated the creation of a Mechanical Licensing Collective (MLC), which effectively gets rid of the Notice of Intent requirement.[9]   Previously, if a music streaming service wanted to the use a copyright protected recording on their platform, they needed to obtain a compulsory license by filing a notice of intent with the publisher.[10]  The system had its faults, with publishers receiving tens-of-thousands NOIs – more than they could process –daily.[11] Streaming services were not only aware that the system didn’t work, some – like Spotify – even created slush funds in anticipation of future lawsuits.[12]

 

The MLC will function like a non-profit, with a freely accessible public database, while providing blanket licenses to streaming services for the recording-composition matching process.[13]  While two groups bid on the right to establish the technological infrastructure for the MLC, only one secured the designation.[14] On the one hand was the industry consensus coalition comprised of the board members from the private sector (like NMPA) that previously handled this composition-matching processing.[15]  On the other hand was the AMLC, advocating for a competition-based approach to licensing collect.[16] Ultimately, the former prevailed.[17]  Given the recent legislation and sector-wide trends, perhaps other industry actors, such as the DOJ and PROs, will take preemptive actions to update their own outmoded regimes before being statutorily-mandated to do so.[18]

 

[1] See Orin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551, Pub.L. 115-264.

[2] See U.S. Copyright Office, Orrin  G. Hatch—Bob Goodlatte Music Modernization Act (2019), https://www.copyright.gov/music-modernization/ (last visited Sep. 22, 2019) [hereinafter Copyright Site]; see generally 17 U.S.C. §106 (2019).

[3] See Copyright Site, supra note 2.

[4] Dae Bogan, Understanding The Difference Between A Split Sheet And Collaboration Agreement And Why You Should Have Both For Every Song Collaboration, TuneRegistry (Dec. 14, 2018), https://www.tuneregistry.com/blog/understanding-the-difference-between-a-split-sheet-and-collaboration-agreement-and-why-you-should-have-both-for-every-song-collaboration.

[5] See Id.

[6] See U.S. Dep’t of Justice, ASCAP and BMI Consent Decree Review Public Comments 2014, https://www.justice.gov/atr/public-comments (last updated Sept. 22, 2018).

[7] See U.S. Copyright Office, Musical Works Modernization Act, https://www.copyright.gov/music-modernization/faq.html(last visited Sept. 22, 2019).

[8] See Ben Sisario, Judge Rejects Justice Department Ruling on Music Licensing, N.Y. Times (Sept. 16, 2016),  https://www.nytimes.com/2016/09/17/business/media/judge-rejects-justice-department-ruling-on-music-licensing.html?searchResultPosition=6.

[9] See U.S. Copyright Office, Designation of Mechanical Licensing Collective and Digital Licensee Coordinator, https://www.copyright.gov/rulemaking/mma-designations/ (last visited Sept. 22, 2019); see also Request for Information on Designation of Mechanical Licensing Collective and Digital Licensee Coordinator,  83 Fed. Reg. 65,747, 65,748 (Dec. 21, 2018).

[10] See Bill Rosenblatt, Here are the Loopholes Closed by the Music Modernization Act, Forbes (Oct. 11, 2018, 3:26 PM), https://www.forbes.com/sites/billrosenblatt/2018/10/11/music-modernization-act-now-law-leaves-one-copyright-loophole-unclosed/#3a8f12927272.

[11] See Id.

[12] See Ed Christman, Spotify and Publishing Group Reach $30 Million Settlement Agreement Over Unpaid Royalties, Billboard (Mar. 17, 2016), https://www.billboard.com/articles/business/7263747/spotify-nmpa-publishing-30-million-settlement-unpaid-royalties.

[13] See Bill Rosenblatt, Music Modernization Act Proposed Single Solution to Mechanical Licensing Problem, Copyright and Technology (Dec. 30, 2017), https://copyrightandtechnology.com/2017/12/30/music-modernization-act-proposes-single-solution-to-mechanical-licensing-problem/.

[14] See Ed Christman, Why the U.S. Copyright Office Chose the Mechanical Licensing Collective, Billboard (July 5, 2019), https://www.billboard.com/articles/business/8518824/why-the-us-copyright-office-chose-the-mechanical-licensing-collective.

[15] See Ed Christman, Industry Consensus Group Announces Board Members for Proposed Mechanical Licensing Collective, Billboard (Feb. 4, 2019), https://www.billboard.com/articles/business/8496417/industry-consensus-group-board-members-mechanical-licensing-collective.

[16] See American Music Licensing Collective, American Music Licensing Collective Says ‘Competition is Needed’ In Forming Music Modernization Act’s MLC (Guest Op-Ed), Billboard (Feb. 20, 2019), https://www.billboard.com/articles/business/8499237/american-music-licensing-collective-competition-needed-forming-mma-mlc.

[17] See Ed Christman, Why the U.S. Copyright Office Chose the Mechanical Licensing Collective, Billboard (July 5, 2019), https://www.billboard.com/articles/business/8518824/why-the-us-copyright-office-chose-the-mechanical-licensing-collective.

[18] See Diane Bartz, U.S. Justice Department to review 1941 ASCAP, BMI consent decrees, Reuters, (June 5, 2019, 3:25 PM), https://www.reuters.com/article/us-usa-antitrust-ascap-bmi/u-s-justice-department-to-review-1941-ascap-bmi-consent-decrees-idUSKCN1T62GP/

 

Is Big Tech Too Big to Fail?

By: Daniel Yang

Elizabeth Warren, U.S. Senator and Democratic presidential candidate for the 2020 election, wrote in Medium “It’s time to break up our biggest tech companies . . . we must give people more control over how their personal information is collected, shared, and sold.”[1] She was serious about her proposal that her team put up a billboard, which read “Break Up Big Tech,” in the heart of San Francisco where major tech companies are based in.[2] In fact, she is not alone in calling for this idea. There are scholars and commentators voicing growing concerns about how big tech companies control everything from business to personal lives.[3]

The emergence of internet and social media, backed by information systems and financial technology, played a critical role in connecting the world together and creating innovative businesses. This gave rise to big tech giants with its own unique specialized features that market to users everywhere in the world, including the government.[4] While big tech companies, like amazon, have bettered some aspects of our lives by shortening shipping time to one day, they control user data and unilaterally maintain a platform based on our information.[5] Their sheer size is immense and powerful that foreign governments used their platform to manipulate information during the 2016 U.S. presidential election. Big tech giants are aware of their gravitas and reach of influence, making them relentless in lobbying the federal government and pursuing litigation.[6] Recent court cases and settlements of big tech giants show how their strong grip in user information and unilateral platform threatens consumers every day.

In July of 2019, Facebook settled with the Federal Trade Commission on a case that started with an investigation into Cambridge Analytica, whereby Facebook provided unauthorized user data to third parties, and several privacy breaches.[7] The FTC ruled that Facebook violated the law by unlawfully distributing data to third parties, mispresenting to users that facial recognition program was turned off by default, and placing advertisements through the use of phone numbers provided for security.[8] While Facebook agreed to pay $5 billion and comply with an independent, federal committee about privacy risks as part of the settlement, it showcased yet again the pitfalls of big tech giant harvesting user data and using the information for their gain.[9]

Another example is Amazon. The Court in Oberdorf v. Amazon.com Inc. ruled that Amazon can be liable for defective goods that were sold by third-party vendors.[10] The case was first brought when a woman became blind when a defective dog collar, which she bought from a third-party Amazon vendor, broke and snapped her eyes.[11] This type of ruling was a first for Amazon because many other courts ruled in similar cases that Amazon was not liable for defective products because it is not simply the seller.[12] This ruling was a good direction towards fair trade and dealing, but it once again showed how a tech giant could harness a big market power by selling cheap, unvetted products to consumers and still getting away with liabilities.

 

 

[1] Elizabeth Warren, Here’s How We Can Break Up Big Tech, Medium (Mar. 8, 2019), https://medium.com/@teamwarren/heres-how-we-can-break-up-big-tech-9ad9e0da324c.

[2] Makena Kelly, Elizabeth Warren Puts a Giant Tech Breakup Billboard in San Francisco’s Office Face, The Verge (May 29, 2019), https://www.theverge.com/2019/5/29/18644590/elizabeth-warren-break-up-big-tech-billboard-amazon-facebook-apple-google.

[3]Scott Galloway, We let big tech off the hook. Now it’s time to break them up, NBC News: Think, Opinion, Analysis, Essays,https://www.nbcnews.com/think/video/we-let-big-tech-off-the-hook-now-it-s-time-to-break-them-up-1213992003940; Nilay Patel, It’s Time to Break Up Facebook, The Verge (Sep. 4, 2019), https://www.theverge.com/2018/9/4/17816572/tim-wu-facebook-regulation-interview-curse-of-bigness-antitrust; Greg Ip, econ. Wall St. J. (Jan. 16, 2018), https://www.wsj.com/articles/the-antitrust-case-against-facebook-google-amazon-and-apple-1516121561.

[4] James Sanders, The Top Cloud Providers for Government, ZdNet (Aug. 1, 2019), https://www.zdnet.com/article/the-top-cloud-providers-for-government/.

[5] Chaim Gartenberg, Amazon Prime’s One-Day Shipping is Already Rolling Out, The Verge (May 10, 2019), https://www.theverge.com/2019/5/10/18564593/amazon-prime-one-day-shipping-rolling-out; Steven Hill, Should Big Tech Own Our Personal Data?, Wired (Feb. 13, 2019), https://www.wired.com/story/should-big-tech-own-our-personal-data/.

[6] Steven Overly, Amazon, Facebook Lobbying Hits Record High Amid Heightened D.C. Scrutiny, Politico (Jul. 23, 2019), https://www.politico.com/story/2019/07/23/amazon-facebook-lobbying-record-1611958.

[7] Lesley Fair, FTC’s $5 Billion Facebook Settlement: Record-breaking and History-making, Federal Trade Commission (Jul. 24, 2019), https://www.ftc.gov/news-events/blogs/business-blog/2019/07/ftcs-5-billion-facebook-settlement-record-breaking-history.

 

[8] Id.

[9] Id.

[10] Oberdorf v. Amazon.com Inc., 930 F.3d 136, 146 (3rd Cir. 2019).

[11] Id. at 140.

[12] Kate Cox, Court Rules Amazon Can be Held Responsible For Defective Third-party Good, Ars Technica (Jul. 8,  2019), https://arstechnica.com/tech-policy/2019/07/amazon-on-the-hook-for-third-party-goods-that-cause-injury-federal-court-says/.

An Apple Lawsuit a Day, Keeps the Monopoly Away

By: Eleni Farrell

“You’ve got to be kidding me…” You groan with frustration as you reach down to pick up your now shattered iPhone. You head to the mall to see how long the wait at Apple is going to be. The Genius says there are 42 people ahead of you and “by the way, that could cost up to $300 depending on your model and warranty status.”1 You decide to have the screen fixed by the little tech kiosk by the food court; thankfully it was only $100.2 After a few weeks pass, however, you receive an Error 53 message after updating your phone.3 Through some quick research, you learn this is supposedly a security measure implemented by Apple.4 Apple claims the message appears when a “device fails a security test.”5 Except now you’re phone is essentially useless. Does this have anything to do with your screen cracking?

 

Good news and bad news… The bad news is that Apple, among many other companies, has been trying to restrict its users from repairing products by themselves and with the assistance of a third party.6 The good news? They’re getting in trouble for it.7

 

In the past, tech savvy consumers were able to replace malfunctioning parts or, at the very least, take it to a mom-and-pop shop.  With companies increasing restrictions surrounding accessibility, consumers are driven to pay higher prices to have the original equipment manufacturer (OEM) repair the product.8 When comparing repair prices to the cost of a new product, users may find the two are on par, resulting in the trend of cutting losses and upgrading.9This trend has caused a major environmental concern: electric waste, or e-waste.10

 

If consumers were able to repair their electronics without the assistance of the OEM or a certified parts distributor, our electronics would last longer which would considerably cut down our e-waste.11 Theoretically, the result of this would be less money spent by the consumer on regular upgrades and less money spent by international environmental agencies on attempts to correct e-waste.   E-waste is a major, and quite scary, concern because it can affect every aspect of life, especially pollution of air, soil, and water.12

 

Before you freak out and start to think about all the electronics you’ve had over the years that have contributed to this problem, remember there was good news too! There has been an international movement to bring these Goliath companies down.

In June 2018, Apple was fined $6.6 million for violating Australian Consumer Law for numerous Error 53 messages.13 A Norwegian court also cracked down when they ruled in favor of an independent repair shop owner who was sued by Apple for importing restored screens as replacement parts.14 For US residents, as of March 2019, there have been twenty states who have considered a Right to Repair bill which would assist consumers in accessing necessary parts to fix their electronics instead of throwing them away.15

On Thursday, August 29th, 2019, Apple made an announcement that they will start to give tools and instructions to allow independent repair shops an opportunity to fix Apple products.16 One source states that qualifying companies must have an Apple-certified technician to perform repairs and certifications require passing online, authorized exams.17 Another source postulates that this is Apple’s way of avoiding the Right to Repair bills.18

 

 

1 Daniel W., How Much Does An iPhone Screen Repair Cost?, HomeGuide https://homeguide.com/costs/iphone-screen-repair-cost (last visited Aug. 29, 2019).

2 Id.

3 Nathan Proctor, Countries are Taking Apple to Court Over Right to Repair – and Sometimes, They’re Winning, U.S. PIRG (July 9, 2018), https://uspirg.org/blogs/blog/usp/countries-are-taking-apple-court-over-right-repair%E2%80%8A%E2%80%94%E2%80%8Aand-sometimes-they%E2%80%99re-winning.

4 Id.

5 If you see error 53 when you update or restore your iPhone or iPad, Apple (Jan. 2, 2018), https://support.apple.com/en-us/HT205628.

6 See Proctor, supra note 3

7 Id.

8 See Michael Hiltzik, Column: How Apple and other Manufacturers Attack Your Right to Repair Their Products, L.A. Times (Nov. 16, 2018), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-right-repair-20181116-story.html.

9 Id.

10 Catie Keck, Right to Repair is Less Complicated and More Important Than You Might Think, Gizmodo (May 10, 2019), https://gizmodo.com/right-to-repair-is-less-complicated-and-more-important-1834672055.

11 Id.

12 Id.

13 Proctor, supra note 3

14 Id.

15 Nathan Proctor, California Becomes 20th State in 2019 to Consider Right to Repair Bill, U.S. PIRG (March 18, 2019), https://uspirg.org/news/usp/california-becomes-20th-state-2019-consider-right-repair-bill.

16 Annie Palmer, Apple reverses stance on iPhone repairs and will supply parts to independent shops for the first time,CNBC (Aug. 29, 2019), https://www.cnbc.com/2019/08/29/apple-to-provide-independent-repair-shops-with-iphone-parts.html.

17 While Apple continues to Fight the “Right to Repair” Movement, they introduced an “Independent Repair Provider Program” today, Patently Apple (Aug. 29, 2019), https://www.patentlyapple.com/patently-apple/2019/08/while-apple-continues-to-fight-the-right-to-repair-movement-they-introduced-an-independent-repair-provider-program-today.html.

18 Vincy Davis, Is Apple’s ‘Independent Repair Provider Program’ a bid to avoid the ‘Right To Repair’ bill?, Packt(Aug. 30, 2019), https://hub.packtpub.com/is-apples-independent-repair-provider-program-a-bid-to-avoid-the-right-to-repair-bill/.

 

Will Americans have the Right to Be Forgotten?

By: Jessica Friesen

In 2014, the European Court of Justice ruled that individuals, corporations and government officials in the European Union have the right to have their information removed from internet search engine if the listed information is deemed “inaccurate, inadequate, irrelevant or excessive.”[1] From 2014 to 2018, Google has received more than 650,000 requests to have 2.4 million URL delisted from their search engine.[2] However, the links are only delisted within the European Union, and will still appear in on the search engine in countries outside of the European Union.[3]

Currently, the European Union is the only government that has declared that a person has the Right to Be Forgotten in internet search engines. In the United States, 88% of Americans support having the Right to Be Forgotten, however, there is faint hope of legislation being passed in the U.S. soon.[4] However, there has been one newspaper that has decided to take action into their own hands. The news site, cleveland.com, has begun their own Right to Be Forgotten project.[5] Their project includes taking requests from those who believe they should have their information removed, and the staff discusses whose names should be removed from old stories.[6] While their system is not perfect, it could be a step towards Americans having the Right to Be Forgotten.

[1] See Case C-131/12, Google Spain SL v. Agencia Española de Protección de Datos, (2014), http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=133613; See alsoRebecca Heilweil, How Close Is An American Right-To-Be-Forgotten?, Forbes (Mar. 4, 2018), https://www.forbes.com/sites/rebeccaheilweil1/2018/03/04/how-close-is-an-american-right-to-be-forgotten/#16d4023626ef.

[2] See James Doubek, Google Has Received 650,000 ‘Right To Be Forgotten’ Requests Since 2014, National Public Radio (Feb. 28, 2018), https://www.npr.org/sections/thetwo-way/2018/02/28/589411543/google-received-650-000-right-to-be-forgotten-requests-since-2014; Heilweil, supra note 1.

[3] See Jake Swearingen, Europe’s ‘Right To Be Forgotten’ Will Be Staying In Europe, Intelligencer(Jan. 10, 2019), http://nymag.com/intelligencer/2019/01/europes-right-to-be-forgotten-will-be-staying-in-europe.html.

[4] See Heilweil, supra note 1; See also Rich Matta, Americans deserve a ‘right to be forgotten,’The Hill (May 27, 2019), https://thehill.com/opinion/technology/445604-americans-deserve-a-right-to-be-forgotten.

[5] See Mary Kilpatrick, Radiolab Podcast Features Cleveland.com’s Right To Be Forgotten, Cleveland.com (Aug. 23, 2019), https://www.cleveland.com/metro/2019/08/radiolab-podcast-features-clevelandcoms-right-to-be-forgotten.html.

[6] Id.

Footnote 6: Per rule 1.2(a), correct omission of signal; Per rule 4.1, correct use of Id.

Curtailing the “Dark Recesses” of the Internet in 2019

By: Alma Godinez

Another mass shooting shocked the nation on August 3, 2019 in which, 22 people were killed and 24 were injured in a Walmart in El Paso, Texas. [1] This tragedy exposed to the world  unpopular internet media platforms which are havens for hate.[2] Prior to the attack, the shooter published a white nationalist and anti-immigrant manifesto on 8chan.[3] This is not the only tragedy 8chan, an image board website without user restrictions, has been linked to. As result to the incident, internet security firm Cloudflare, terminated their services to 8chan denouncing the platform.[4]

Cloudflare was not the only entity to respond, President Donald Trump decried the “dark recesses” of the internet.[5] In his speech the president announced that he would direct the Justice Department to work with social media companies to proactively detect potential tragedies.[6]  Currently, the only entities responsible or able to take down hateful or dangerous content are the content provider themselves.[7] Although the president’s move sounds like a positive and needed reaction to regulate social media platforms it will come at the cost of the “forum for true diversity of political discourse”.[8]

Currently, content providers are protected by section 230 of the 1996 Communications Decency Act.[9] This provision allows companies to restrict content and protects them from any legal liability arising from content on their platforms. The liability attaches to the users of the website not the companies themselves.[10] In recent years, content providers, like Facebook and Twitter, have began policing their platforms taking down harmful content.[11] The same big companies and NGOs created the Global Internet Forum to Counter Terrorism in 2017 to combat violent and extremist content on their websites due to public and political pressure.[12] However, 8chan and other less popular platforms do not have an incentive to police themselves especially if they cannot be held accountable for any mishaps.[13] Allegedly, big social media providers’ efforts to police their users has led to censor bias towards conservative users.[14] While there is no factual evidence of such a thing, censoring conservative users would not be illegal conduct for private entities to engage.

This could all change with the upcoming presidential executive order which promises to “censor the internet”.[15] The executive order calls on the FCC to develop regulations which ultimately would give the governmental agency the power to pick which internet material is unacceptable. The draft as it stands now would remove any protections provided by section 230 of the Communications Decency Act. Reactive politics are not an efficient way to regulate the internet especially if its fated to judicial challenges. The effects of the executive order remain to be seen.

[1] Anya van Wagtendonk, Sean Collins, and German Lopez, El Paso Walmart Shooting: What We know, Vox (Aug. 6, 2019, 9:15am), https://www.vox.com/2019/8/3/20753049/el-paso-walmart-cielo-vista-mall-shooting-what-we-know.

[2] Patrick Lucas Austin, What Is 8chan, and How Is It Related to This Weekend’s Shootings? Here’s What to Know, Time (Aug. 5, 2019), https://time.com/5644314/8chan-shootings/.

[3] Supra, Austin.

[4] Mathew Price, Terminating Service for 8chan, The Cloudflare Blog (Aug. 05, 2019 1:44AM) https://blog.cloudflare.com/terminating-service-for-8chan/.

[5] Quint Forgey, Trump Decries White Supremacy, Video Games Following Shootings, Politico (Aug. 5, 2019 7:46 AM), https://www.politico.com/story/2019/08/05/trump-shootings-response-background-checks-immigration-1446549.

[6] Supra, Forgey.

[7] Adi Robertson, Why The Internet’s Most Important Law Exists and How People are Still getting it Wrong, The Verge (Jun 21, 2019, 1:02pm), https://www.theverge.com/2019/6/21/18700605/section-230-internet-law-twenty-six-words-that-created-the-internet-jeff-kosseff-interview.

[8] See 47 U.S.C.A. § 230(a)(3) (West).

[9] 47 U.S.C.A. § 230 (West).

[10] Shruti Jaishankar, Note, Earning Immunity Under 47 U.S.C. S 230, 8 Ala. C.R. & C.L.L. Rev. 295, 297 (2017).

[11] Robertson, Supra note 7.

[12] Sam Levin, Tech Giants Team Up To Fight Extremism Following Cries That They Allow Terrorism, The Guardian(Jun. 26, 2017), https://www.theguardian.com/technology/2017/jun/26/google-facebook-counter-terrorism-online-extremism.

[13] Queenie Wong & Richard Nieva, El Paso Massacre Shines Light On 8chan, A Racist Troll haven, Cnet (Aug. 6, 2019 11:53 AM), https://www.cnet.com/news/el-paso-shooting-shines-light-on-8chan-a-racist-troll-haven/.

[14] Cristina Lopez G.,Timeline: How Baseless Right-wing Claims About Tech Bias Led To Trump Drafting An Executive Order, Media Matters for America (Aug. 15, 2019, 2:39PM), https://www.mediamatters.org/donald-trump/timeline-how-baseless-right-wing-claims-about-tech-bias-led-trump-drafting-executive.

[15] Rusell Brandom, Trump is drafting an order to regulate Facebook and Twitter for bias, The Verge (Aug. 9, 2019),https://www.theverge.com/2019/8/9/20798759/trump-social-media-regulation-fcc-ftc-conservative-bias.

“As of Tuesday morning, this article is no longer being updated. For continuing coverage on gun violence, check out Vox’s gun violence section.

A shooter killed at least 22 people and injured at least 27 others at a Walmart in El Paso, Texas, on Saturday.”

“(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

“It’s an online imageboard that was created in 2013 by computer programmer Fredrick Brennan, who came up with the idea while on mushrooms. Unlike other social media sites such as Facebook, users can post anonymously and the company has allowed extremist content. 8chan, which is no longer run by Brennan, has been under fire for being a hub for white supremacists and racists.

8chan lets users post photos and texts about any topic without having to register on the site, according to an FAQ on the site. 8chan has one rule: Don’t post, request or link to any content that’s illegal in the US. But it doesn’t moderate content the way that other tech companies do.”

The Struggle for Technology in Law

By: David Idokogi

The implementation of technology within organizations in virtually all industries has arguably increased business quality, efficiency, transparency, and security. Unfortunately, the legal industry has seen the slowest transition to technology that ultimately could hinder productivity and profitability in the years to come. In a 2018 report, the Center for the Study of the Legal Profession at Georgetown University Law Center highlighted that, generally, law firm productivity has declined in the last eleven years.[1]The report found that the average lawyer is now billing 156 fewer hours per year and is costing firms an average of $74,100 in lost revenues per lawyer each year.[2] Although the listless adoption of adept technology was not the stated cause for such a decline, the report discusses the tendency of law firms to “succumb to the lure of failed strategies,” and the need to take bold and risky steps to meet ever-changing client needs.[3] Of the firms that have proactively addressed the changing environment, one of the strategies implemented was to make better use of innovative technologies.[4]

Not only are firms susceptible to this development, but in-house attorneys face the same issues. According to Forbes contributor Mark A. Cohen, “only 19% of in-house legal teams are well-positioned to support enterprise digital efforts.”[5] The technology reluctancy in the legal field begs the question as to the reason for such. Cohen posits a few explanations: (1) lack of awareness; (2) focus on the immediate demands of the job, not the “big picture”; (3) an internal focus, not a client-centric one; (4) cultural stasis – systemic resistance to change and the new leadership, skills, roles, economics, investment, and socialization that it requires; (5) a short-term mentality; (6) no financial plan; and (7) that few legal buyers are demanding it.[6] The 2019 Future Ready Lawyer survey found that out of the reasons why technology is resisted by legal organizations, 36% of the resistance comes from a lack of technology knowledge, understanding or skills.[7]

However, with every industry comes varying needs for the vast amount of technological advancements and, perhaps, lawyers are patient with the process of rolling out technology-based systems for legitimate reasons. One example of this can be found with the use of cloud services and computing. Although cloud services give attorneys the ability to work on client matters from anywhere and allows for ease of collaboration, there are valid concerns for its use. The American Bar Association (ABA) reviewed the 2018 Legal Technology Survey Report that focused on the basic concept of “web-based software service of solutions,” (i.e. cloud computing).[8] The ABA found that the survey showed that confidentiality, security, data control and ownership were amongst the main concerns for lawyers when using such services.[9] These concerns present complex issues within not only the day-to-day operations as an attorney but also the ethical foundation and ultimately add another layer to the discussion.

[1] 2018 Report on State of the Legal Market, The Center for the Study of the Legal Profession at the Georgetown University Law Center, 6 (2018), http://www.legalexecutiveinstitute.com/wp-content/uploads/2018/01/2018-Report-on-the-State-of-the-Legal-Market.pdf.

[2] Id.

[3] Id. at 3.

[4] Jeff McCoy, Too Many Law Firms Are Still Fighting the Last War: “2018 Report on the State of the Legal Market,” From Georgetown Law and Thomson Reuters Legal Executive Institute, Thomson Reuters (Jan. 10, 2018), https://www.thomsonreuters.com/en/press-releases/2018/january/2018-report-on-the-state-of-the-legal-market-from-georgetown-law-and-thomson-reuters-legal-executive-institute.html.

[5]Mark A. Cohen, Law is Lagging Digital Transformation – Why it Matters, Forbes (Dec. 20, 2018, 5:40 AM), https://www.forbes.com/sites/markcohen1/2018/12/20/law-is-lagging-digital-transformation-why-it-matters/#52258475515c.

[6] Id.

[7] Dean Sonderegger, Lawyers and Transformational Tech: Overcoming the Knowledge Gap, Above The Law (May 28, 2019, 12:15 PM), https://abovethelaw.com/2019/05/lawyers-and-transformational-tech-overcoming-the-knowledge-gap/?rf=1.

[8] Dennis Kennedy, 2018 Cloud Computing, American Bar Association (Jan. 14, 2019), https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cloud/.

[9] Id.

Loot Boxes: Gambling or Necessary Cost of Quality Games

By: Edward Monaghan

In the past few years attention has been drawn to in game micro-transactions in video games, commonly referred to as loot boxes.  Loot boxes are growing more and more common in the gaming industry and the practice has drawn increasing criticism.  The main criticism of loot-boxes is that they are effectively slot machines being sold to young people[1].  Loot boxes, depending on the game, can contain anything from purely cosmetic items to items that will help you in game and each item has a different rate at which it can be obtained[2].

Critics claim that loot boxes are a form of gambling and need to be regulated as such.  Some have gone so far as to demand that games with loot boxes should be made to be unfair trade practices and regulated by the FTC[3].  Critics claim that even if loot boxes are not technically gambling they have the same psychological and addictive properties of gambling[4].

Video game publishers claim that loot boxes are not gambling.  They claim in part that because the items obtained cannot be used to purchase more loot boxes there is a significant difference between slot machines and loot boxes[5].  Games like Fortnite are free to play but have many in game forms of monetization, including loot boxes, which have allowed it to make billions of dollars[6].

Steps are being taken to regulate loot boxes in an appropriate way.  The FTC has investigated loot boxes[7].  Sony, Microsoft, and Nintendo have made an agreement to force game developers to be transparent in respect to the odds of obtaining the items in their loot boxes in order to publish the games on their platforms[8].

 

[1] Caroline Spiezio, What’s Inside the Loot Box? It Could Be Gaming’s Next Big Problem, Law.com (Dec. 12, 2017), https://www.law.com/corpcounsel/sites/corpcounsel/2017/12/12/whats-inside-the-loot-box-it-could-be-gamings-next-big-problem/?slreturn=20190731165801.

 

[2] Id. (“Depending on the game, the items can range from a simple new outfit for a character to a valuable weapon or armor that seriously boosts gameplay ability. And players can spend hundreds of dollars trying to win an item they have a minuscule chance of actually receiving.”).

 

[3] Tiffany Hu, New Bill Would Ban Loot Boxes, ‘Pay-To-Win’ Video Games, Law360 (May 8, 2019), https://www.law360.com/articles/1157737/new-bill-would-ban-loot-boxes-pay-to-win-video-games.

[4] Kishan Mistry, Note, P(l)aying to Win: Loot Boxes, Microtransaction Monetization, and a Proposal for Self-Regulation in the Video Game Industry, 71 Rutgers U. L. Rev. 537, 567 (2018).

[5] Spiezio, supra note 1

[6] Tom Hogins, Fortnite earned record $2.4bn in 2018, the ‘most annual revenue of any game in history,’ The Telegraph (Jan. 17, 2019), telegraph.co.uk/gaming/news/fortnite-earned-annual-revenue-game-history-2018/. Correct per R18.2.2.

[7] Hu, supra note 3.

[8] Makena Kelly, Nintendo, Microsoft, and Sony commit to disclose drop rates for loot boxes, The Verge (Aug. 7, 2019), https://www.theverge.com/2019/8/7/20758626/nintendo-microsoft-sony-loot-box-drop-rate-disclosure-video-games