The Importance of Neutrality in Technology-Forcing

By: VeJay Vicino

Concerns about the ways countries generate their energy have grown steadily over the second half of the 20th and continued to grow in the 21st century. The United States legislature attempted to assuage a number of these concerns in the 1970’s with the passage of the Clean Air Act.[1] The Clean Air Act is a piece of legislation that requires industries to meet emission standards that technology has not yet made possible.[2] Setting goals or requirements that are not yet possible is referred to as “technology-forcing”. The establishing of industry standard emission limits has allowed members of various industries a great deal of freedom in developing and licensing new technology to meet these requirements.[3] Limits on emissions as well as cap and trade taxation schemes are examples of “technology-neutral” forms of technology-forcing. These schemes are referred to as being technology neutral because they do not prescribe any specific ways in which emissions should be reduced. Technology-neutral legislation establishes an economic incentive to have a smaller environmental impact through any available means.[4]
While emission limits and taxing schemes are generally technologically neutral, other there exists other forms of technology-forcing legislations that are not.[5] When Obama was running for office in 2008, he made campaign promises to pass legislation that would require 25 percent of American electricity be generated from renewable sources by 2025.[6] This proposed legislation would be an example of legislation that is not technology-neutral, as it prescribes exactly what kind of technologies must be developed in order to generate our country’s electricity. The issue with non-neutral approaches to technology forcing is that is that it forces the industries to invest their time and resources into developing technology in specific areas that may be less efficient than others. This may be a problem for developing or rapidly industrializing countries as they attempt to develop infrastructure that allows their people to be more productive.
An example of the issues non-neutral policies can produce is readily observed with the current energy situation in China. China is a rapidly industrializing country that began technology-forcing policies in areas such as auto-emissions and energy production in 2010. China has aggressively pursued these technologies to reduce urban smog and increase industrial development.[7] Chinese success in technology-neutral emissions standards led to massive joint ventures between Chinese and American companies. An example of this success is the $765 million dollars that Ford has recently committed towards building electric vehicles alongside a Chinese based partner.[8] However, China’s attempts to use non-neutral technology-forcing policy to generate increased reliance on solar and wind have been far less successful.[9]
The amount of power generated from coal in the first 7 years of China’s reliance on industrialized coal consumption far outgrew the amount of energy generated from wind and solar in the same span of time over a decade later.[10] China’s rapid growth as a world power was largely reliant on the energy coal produced during this span. However, despite massive investments China’s wind and solar energy efforts have been largely unsuccessful. An example of this can be seein in the Xinjiang Uighur region, where issues resulting from grid constraints have led to large amount of the energy generated by the windfarms in this region being wasted.[11] Thus, while technology-forcing as a way to cut emissions has lead to advancements in technology in the various areas industries see promise in has been quite effective, the mandatory focus on renewable sources of energy for a percentage of a countries power seems to be an less effective solution for a majority of the world’s countries.
  1. Ann Johnson, Environmental regulations and the technological development in the U.S. auto industry, Washington Center for Equitable Growth (May 2016), https://equitablegrowth.org/research-paper/environmental-regulation-technological-development-u-s-auto-industry/ ↑
  2. Id. ↑
  3. Id. ↑
  4. Schalk Cloete, The dangers of green technology-forcing, Energy Post (May 3,2018), http://energypost.eu/the-dangers-of-green-technology-forcing/ ↑
  5. Id. ↑
  6. Louis Jacobson, Cap-and-trade bill died, though other trenchers may achieve goal without a law, Politifact (November 8th, 2012), https://www.politifact.com/truth-o-meter/promises/obameter/promise/444/require-25-percent-renewable-energy-by-2025/ ↑
  7. Greg Dotson, Why EPA’s U-Turn on Auto Efficiency Rules Gives China the Upper Hand, EcoWatch (March 29th, 2018), https://www.ecowatch.com/epa-automobiles-pollution-china-2554480585.html ↑
  8. Id. ↑
  9. Cloete, supra note 3 ↑
  10. Id. ↑
  11. Coco Liu, Facing Grid Constraints, China Puts a Chill on New Wind Energy Projects, Inside Climate News (March 28, 2016), https://insideclimatenews.org/news/28032016/china-wind-energy-projects-suspends-clean-energy-climate-change ↑

Forced Labeling Guidelines for Clean Meat Violates the First Amendment

By: Sam Taddeo

In the March 1932 issue of the magazine Popular Mechanics, a well-known quote by Winston Churchill reads: “We shall escape the absurdity of growing a whole chicken in order to eat the breast or wing, by growing these parts separately under a suitable medium.”[1] The idea was far-fetched at the time, and even now, seventy plus years hence, supermarket coolers have yet to see the appearance of such meat. However, while it hasn’t made it to market yet, laboratories across the country have begun creating this futuristic food that goes by a variety of names: cultured meat, clean meat, synthetic meat, in vitro meat, etc., and with its arrival has also arrived a new dispute in law. On Tuesday August 28, the general assembly of the state of Missouri passed Senate Bill Nos. 627 and 925, the first pieces of state legislation to regulate the labeling of the term “meat” on food labels.[2]
Supporters of the law, which includes groups such as the Missouri Cattlemens Association, argue that equivalent labeling will lead to consumer confusion and be detrimental to the interests of ranchers who take the care and time to raise livestock for consumption.[3] Supporters also point to the definitions of meat in state statutes, such as Missouri’s, which would lead to inconsistencies if alternative meat producers are allowed to engage in equivalent labeling.[4]
The opposition to the law, which includes clean meat supporters such as the Good Foods Institute, argue that it violates the 1st Amendment and is discriminatory against out-of state companies that compete with those that are in-state.[5] A main contention among alternative meat producers is that they should be free to label their products as they wish so long as their packaging clearly lists the ingredients for consumers to see.[6] Regulating the labeling of clean mean products carries the risk of inflicting negative impressions with consumers. Words that have been proposed to be a component of the labels, such as “biotech,” carry negative connotations with many, if not most, consumers, and could negatively impact the companies’ bottom line.[7]
In today’s world of ever complicating technology, consumers are often left none the wiser when confronted with an increasingly diverse and sophisticated array of choices. Statutes like the one passed in Missouri add a new layer of confusion. Although produced in an alternative manner, lab-grown meat shares the same basis as its conventional counterpart, being produced from animal cells.[8] Producers of clean meat should be allowed to exercise their commercial speech as they see fit. To not have the freedom to do so could subject them to injury to their brand and reputation. Clean meat is our future and deserves the full support of our lawmaking bodies.
  1. Winston Churchill, Fifty Years Hence, Popular Mechanics, Mar. 1932, at 390. ↑
  2. S. B. 627 & 925, 99th Gen. Assembl., Reg. Sess. (Mo. 2018). ↑
  3. Press Release, Missouri Cattleman’s Assoc., Missouri Cattlemen’s Fake Meat Bill Passes, (May 17, 2018) (on file with author). ↑
  4. Id. (“The current definition of meat in Missouri Statutes is:  ‘any edible portion of livestock or poultry carcass or part thereof.’”). ↑
  5. Matt Ball, GFI Goes to Court for First Amendment, The Good Foods Inst.: Blog (Sept. 7, 2018, 10:00AM), https://www.gfi.org/gfi-goes-to-court-for-first-amendment. ↑
  6. Tofurky Sues to Stop Missouri law over meat terminology, Ap news (Sept. 7, 2018), https://apnews.com/80be8d989eb04d909dbdf073036f6dbb. ↑
  7. Zachary Schneider, Comment, In Vitro Meat: Space Travel, Cannibalism, and Federal Regulation, 50 Hous. L. Rev. 991, 1021 (2013) (proposing the adoption of the adjective “biotech” as part of a federal regulation scheme for labeling clean meat). ↑
  8. Complaint at 3, Turtle Island Foods et al. v. Richardson et al., No. 18-CV-4173 (W.D. Mo. Aug. 27, 2018). ↑

LEGAL CONSIDERATIONS FOR THE UNVEILING OF 5G TECHNOLOGY

By: Andrew Strafaci

Telecommunication companies have set a  2020 deadline for the unveiling of functional 5G networks, legislators at the local, state, and federal levels will need to actively consider the legal effects that the new technology will have on our society. 5G networks will allow downloadable bandwidth speeds of up to 20 gigabytes per second (to put this into perspective 4G LTE networks, currently the fastest available, allow 1 gigabyte per second).[1] When fully integrated into our society, 5G could make the most recent technological advancements seem archaic. The potential advancements that 5G will provide, as well as the means of installing the network itself, will create an urgent need to reexamine an expansive list of laws ranging from privacy, to property rights.
5G will jumpstart the next leap in technological advancements. The ability to transfer almost 20 times the amount of data that current networks can provide will be a catalyst for the redefinition of every day apps and social media, as well as powering both the “internet of things” and self-autonomous vehicles.[2] However, with new technology comes a need to reexamine the law, and how it will need to adapt in a constantly changing world. Exponentially increased data speeds will allow an individual to stream a high definition movie to their phone with the ease of watching a Snapchat video.[3] It will also allow individual users to upload such videos.[4] Theoretically, the way in which people interact on social media could transition to predominantly video messages.[5] to copyright can become more when everyone can upload a movie about their daily life on a whim. Yet even these legal arguments pale in comparison to the issues of liability when 5G networks allow self-driving cars to communicate regularly with each other and their surroundings, effectively eliminating the need for a human driver.[6]
Before the advancements can become a reality, the network itself must be installed, which requires hurdling a litany of property rights issues.[7] 5G networks are powered by small-cell radio antennas.[8] and cellular service by numerous large cell towers that broadcast a signal to miles of surrounding area mall cell systems will shrink that broadcast down to a mere couple of dozen feet.[9] nstead of one cell tower covering a area, companies will roll out hundreds of small antennas in discrete locations, creating a web-like network.[10] With shorter distances to travel, larger amounts of information can be transferred between antennas, and with more reliable accuracy.[11]
cells being installed within right of way. Predominantly, telecom companies have turned to utility poles and street signs as reliable mounting points for 5G radios.[12] In response, local municipalities have begun to fight, and sometimes prohibit, companies from intruding on public right of way for further utility installations.[13] Companies have turned to either case law, the Telecom Act of 1996, and more recent state legislation in order to prevent local government blocking of network installations.[14] Often, the issue at hand is negotiating rental fees for mounting antennas within the public right of way.[15] While municipalities seek higher fees to justify public interest, telecom companies argue that high rental fees will greatly undermine the efforts of creating the next wireless internet network.[16]
he issue turns to state legislators, who can either limit or enhance the power of municipalities.
  1. Tim Fisher, How reG and G Different?, Lifewire (Sep. 12, 2018), ↑
  2. ↑
  3. Michael Nunez, What s 5G and How illt Make My Life Better?, Gizmodo (Feb. 24,2016), ↑
  4. Alissa Fleck, The Shift rom 4G to 5G ill Change Just About Everything Adweek (Jun. 18, 2018), ↑
  5. Id. ↑
  6. Nathan . Greenblatt, Self-Driving Cars ill e Ready Before ur Laws Are, IEEE (Jan. 19, 2016), ↑
  7. Carey L. Byron, Cities Argue 5G Internet Rollout Laws Violate Property Rights, The Christian Science Monitor (Mar. 2, 2018) ↑
  8. See ↑
  9. ↑
  10. ↑
  11. ↑
  12. ↑
  13. Rick Boucher, Clearing a Way for a 5G Wireless World, Bloomberg Law (Nov. 15, 2017), ↑
  14. Jonathan Babcock, Joshua Turner, and Anna Gomez, 5G Deployment Faces Unique Challenges Across The US, Law 360 (Aug. 1, 2017), ↑
  15. See. ↑
  16. See ↑

Web 3.0- A Decentralized Future?

By: John Meyer
In today’s online environment we are faced with rapid innovation and creation, especially when referring to data integration, collection, and utilization. Since its inception the internet has grown to gargantuan size boasting an incredible 4.4 billion active users worldwide.[1] This tremendous influx of users has changed the very structure of the internet. The idea of read-only web pages has long since passed to now feature highly interactive user created content.[2] This era of user created content taking the forefront of internet activity is known as Web 2.0, and is the current iteration of internet we exist in.[3]
As user content and input began to generate value it became important for corporations to collect and utilize user data.  This data, such as web behavior, device information, and personal information is collected by corporations, and are often stored in “centralized” data warehouses[4] through the use of cookies, and other tracking methods.[5] A centralized data warehouse is a collection of information in a single location that serves the needs of multiple entities, usually businesses, allowing for access from multiple locations at fast speeds.[6]
Concerns are raised, however, regarding the vulnerability of centralized data stores to breaches in privacy. If personal data stores serving multiple large corporations are in one location, then one breach could mean compromised personal data of thousands of individuals. As the United States does not have a single cohesive statute governing the use of commercial user data, but rather a patchwork of laws such as the Electronic Communications Privacy Act[7], the Federal Trade Commission Act[8], or privacy torts, remedies are limited and regulations are loose.[9] Faced with privacy issues and vulnerability of individual data, Web 3.0 seeks to ameliorate some of these concerns.
While Web 2.0 revolved around the collection and centralization of user data, Web 3.0 seeks to do away with the idea of centralized data by integrating both AI and user input coupled with Blockchain technology to access and utilize data across multiple platforms to deepen and enhance web experiences while maintaining control over one’s own data.[10] By melding AI and user input, the integrated AI learns a user’s “context” and creates relevant searches and experiences for the user by gathering and organizing user data across devices.[11] What is more enticing about Web 3.0 however, is the ability to control that data.
Through Blockchain technology, a method of encryption wherein users verify and maintain a ledger via encrypted public addresses that tracks transactions, individuals do not have to surrender their data to corporations without first giving them the “key” to their encrypted address.[12] Without the “key” to the user’s information, data giants are hard pressed to gather user information without consent as the encryption would prevent traditional methods of data collection.[13] Thus, the individual maintains the power to divulge their information when they please rather than being at the mercy of other’s tracking devices. By storing data in individuals and multiple entities rather than centralized data warehouses, data is thereby dispersed and decentralized throughout the web.
While these components sound enticing, Web 3.0 is still in it’s infancy, and sets forth difficult and concerning issues. Blockchain technology has been criticized as a method to sidestep financial regulations through anonymous transactions.[14] Additionally, though Web 3.0 provides a method for greater privacy, the question of data breach remedies still remains. Nations worldwide have recently taken steps to protect user data through legislative enforcement. Such notable regulations as the European Union’s recently enacted GDPR, place consent requirement from users to corporations before allowing the data to be collected while failing to comply can result in up to a twenty million Euro fine.[15] However, in the United States, data mining laws remain sparse. In an age of ever mounting importance on user data and the value it creates, it is extremely important that individuals be able to take control of their own individual information and value. While Web 3.0 provides a novel response to an important issue, it is still a long way off, and still leaves sizable gaps in the realms of privacy breach enforcement, and accountability.
  1. Global Digital Population as of July 2018, Statista (Jul., 2018), https://www.statista.com/statistics/617136/digital-population-worldwide/. ↑
  2. Brian Getting, Basic Definitions: Web 1.0, Web 2.0, Web 3.0, Practical Ecommerce (April 18, 2007), https://www.practicalecommerce.com/Basic-Definitions-Web-1-0-Web-2-0-Web-3-0. ↑
  3. See Id. ↑
  4. Indika, Difference Between Distributed Database and Centralized Database, Difference Between (May 29, 2011), https://www.differencebetween.com/difference-between-distributed-database-and-vs-centralized-database/. ↑
  5. How Do Data Companies Get Our Data?, Privacy International (May 25, 2018), https://privacyinternational.org/feature/2048/how-do-data-companies-get-our-data. ↑
  6. Centralized Data Warehouse, Geek Interview (Dec. 18, 2007), http://www.learn.geekinterview.com/data-warehouse/data-types/centralized-data-warehouse.html. ↑
  7. Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-2704, 2707 (2018). ↑
  8. Federal Trade Commission Act, 15 U.S.C. § 45(a) (2018). ↑
  9. John Yates, Privacy and Data Mining on the Internet, Morris, Manning, and Martin, LLP., https://www.mmmlaw.com/media/privacy-data-mining-on-the-internet/ (last visited Sept. 6, 2018). ↑
  10. Kumar Sharma, How is Blockchain Verifiable by Public and Yet Anonymous?, Blockchain Council (Jul. 10, 2018), https://www.blockchain-council.org/blockchain/how-is-blockchain-verifiable-by-public-and-yet-anonymous/.  ↑
  11. See All Innovated Usage of Blockchain in Web 3.0 Applications, CIS (Feb. 9, 2018), https://www.cisin.com/coffee-break/technology/all-innovative-usage-of-blockchain-in-web-3-0-applications.html. ↑
  12. What is Blockchain Technology? A Step-by-Step Guide For Beginners, Block Geeks (Sept. 13, 2018) https://blockgeeks.com/guides/what-is-blockchain-technology/. ↑
  13. See Sharma, supra note 10. ↑
  14. See William Magnuson, How Should Financial Regulators Handle the Bitcoin Era, Harvard Law School (Apr. 19, 2018), https://corpgov.law.harvard.edu/2018/04/19/how-should-financial-regulators-handle-the-bitcoin-era/. ↑
  15. Commission Regulation 2016/679 of Apr. 17, 2016, On the Protection of Natural Persons With Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC, 2016 O.J. (L 119/1) 83. ↑

The Fair Use Doctrine Remains an Issue in the Courts Even for Tech Giants

By: Veronica Medina
As technology advances, the fair use doctrine in 17 U.S.C. § 107 is becoming more of an issue in the courts. The application of the fair use doctrine by judges in courts portrayed inconsistencies in variance because the factors are applied on a case-by-case basis.1 The courts apply a four factor analysis from the fair use doctrine to cases where a defendant is accused of copyright infringement.2 17 U.S.C. § 107 considers whether a work is transformative, its purpose, the nature of the original, the amount taken, and the market effect.3
Once a work is considered transformative, the fair use doctrine then analyzes the other factors.4 To apply the factors in a way that would not cause too much variance in decisions, the courts balance the weight of the factors.5 The main factors they focus on are the work’s
__________________
1 T. Randolph Beard et. al., Fair Use in the Digital Age, 65 J. Copyright Soc’y, 1, 23 (2018).
2 17 U.S.C.S. § 107 (LexisNexis 2018).
3 Id.
4 Richard Stim, Fair Use: The Four Factors Courts Consider in a Copyright Infringement Case, NOLO (2018), https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html.
5 See id.; See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584(1994).
purpose and the market effect.6 However, as technology advanced and became the norm, the courts varied in their decisions with the fair use doctrine.
Oracle American Inc. v. Google LLC was described as being deadlocked when centralizing on the issue of fair use.7 The case concerned whether Google’s use of Oracle’s packages from Java application programming interface (API) was within fair use.8 Google used 37 of Oracle’s API packages and formed the rest with their own code.9 Google then used that for Android software.10 The case traveled through the courts since 2012 when the district court held the API packages were not subject to copyright.11 However, the issue of fair use began in 2014 when the federal circuit held Oracle’s API packages were copyrighted.12 The federal circuit sent it back to the lower courts to decide if Google’s actions were within fair use.13 Google was
______________
6 See id.
7 Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1186 (Fed. Cir. 2018).
8 Id.
9 Id.
10 Id. at 1187.
11 Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012).
12 Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1348 (Fed. Cir. 2014).
13 Id.
found to be within fair use in the second jury trial and by the district court.14 The district court also rejected the motion Oracle filed for a judgment as a matter of law.15
In the recent ruling of Oracle Am., Inc. v. Google LLC, the court ruled in favor of Oracle.16 The court held that Google’s code was not transformative because even taking a little portion of the implementing code was not transformative.17 This then weighed into the purpose factor with the court’s analysis of profitability, which ruled against Google that Google’s Java in Android was commercial.18 The second and third factors were also against Google because the court found the API to be creative, which Google plagiarized a sufficient amount.19 The fourth factor was found against Google because the court claimed Google competed with the same market as Oracle.20
_______________
14 Oracle Am., Inc. v. Google Inc., No. C 10-03561, 2016 U.S. Dist. LEXIS 74931 (N.D. Cal. June 8, 2016).
15 Id.
16 Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1211 (Fed. Cir. 2018).
17 Id. at 1197-98.
18 Id.
19 Id. at 1204-1207.
20 Id. at 1211.
Oracle Am., Inc. v. Google LLC is of great significance. The case depicts evidence that the fair use doctrine needs reform. Specifically, in obtaining more direct and fair rules that are applicable to software. For example, lower courts like the one presented in this case applied fair use differently than the court of appeals here.21 For instance, it should be a form of transformation when Google used a small portion of Oracle’s code and then used its own code.22 Software, as Android stated, is complicated to form.23 Hence, it should be within fair use to use little portions of other software to advance technology at a quicker speed.
Since courts do not focus on the second and third factors, perhaps the doctrine should re-word them more specifically or not include them.24 Lastly, for the fourth factor, the doctrine should be more specific in which types of markets count as competition for software purposes.25 This way, Tech Giants in the future can be more aware before they use another’s software that is not counted as fair use.
_________________
21 See id. at 1186.
22 See Oracle, 886 F.3d at 1186; See also id. at 1199.
23 Id. at 1187.
24 See 17 U.S.C.S. § 107(2-3) (LexisNexis 2018).
25 See id. at (4).

The Case for Recognizing (Once Again) the Internet as a Public Utility on the Federal Level

By: Logan LeCates
Since the end of net neutrality, various entities have been throttling bandwidth.[1] Is it fair or reasonable (or arguably a breach of contract) for the provider of a service to, of their own volition and lacking necessity, to throttle service to one customer who has already paid, in order to provide superior service to another? Detractors would contend that the buffering of a few YouTube or Netflix videos is a trivial convenience, and that consumers should consider using another ISP or internet service. However, ISPs often function as regional monopolies, and consumers in rural regions often have no alternative methods for internet access.[2] Furthermore, failing to hold ISPs accountable for this behavior can have far-reaching consequences. In fact, this behavior has already endangered emergency responders, who are often reliant on broadband for communications.[3]
Two points of interest alone would be sufficient to justify restoring the federal regulation of the internet: The Constitution, and the First Amendment. Article I, § 8, clause 3 provides that Congress has the power to regulate interstate commerce.[4] For most Americans, the days of walking down to the nickel and dime are gone; we use our phones or laptops to order products from Amazon, pre-order groceries (or even have them delivered), and transfer money for privately rendered services through applications such as Venmo. For example, in July 2018, the U.S. Census Bureau estimates that Americans spent $ 507.5 billion via e-commerce.[5] The necessity and volume of use are alone sufficient to allow Congress to justify passing legislation regulating broadband.
The other obvious concern is censorship – social media companies have the ability to permit and deny use of their platforms for the expression of thoughts and ideas, and this can be weaponized for political or ideological purposes. Considering how reliant we have become on the internet for communication, this is a legitimate concern; print is dead, and our public squares are now digital. If we are not free to express ourselves online, then how can diversity of thought and opinion prevail? Free market advocates would argue that these are companies and should not be subject to regulation, but they are behemoths, and like ISPs, function together as an oligopoly. There is no mechanism to incentivize or disincentivize their behavior, and they have no true competition. Under government regulation, these platforms could be precluded from this activity, and legislators could be held accountable for enforcement by the democratic process.
  1. Olga Kharif, YouTube, Netflix Videos Found to Be Slowed by Wireless Carriers, Bloomberg Technology (Sept. 4, 2018, 5:00 AM), https://www.bloomberg.com/news/articles/2018-09-04/youtube-and-netflix-throttled-by-carriers-research-finds. ↑
  2. Kayleigh Rogers, More Than 100 Million Americans Can Only Get Internet Service From Companies That Have Violated Net Neutrality, Motherboard (Dec. 11, 2017, 2:30 PM), https://motherboard.vice.com/en_us/article/bjdjd4/100-million-americans-only-have-one-isp-option-internet-broadband-net-neutrality. ↑
  3. Jon Bodkin, Verizon Throttling Could Trigger FTC Investigation of Deceptive Practices, Ars Tecnica,(Aug. 27, 2018, 12:10 PM), https://arstechnica.com/tech-policy/2018/08/verizon-throttling-could-trigger-ftc-investigation-of-deceptive-practices/. ↑
  4. U.S. Const. art. I, § 8, cl.3. ↑
  5. Advanced Monthly Sales for Retail and Services, August 2018 (Release Number: CB18-140), https://census.gov/retail/marts/www/marts_current.pdf (last visited Sept 4, 2018). ↑

3D-Printing: Three Dimensional Dangers of CAD Files

By: Andrea Hageman
Although the concept of 3D printing has existed since 1981[1], it wasn’t until 2009 when a 3D printer first became commercially[2] available that the technology began to slowly become more accessible, even though they were still $10,000[3] a pop. Since then, the 3D printing movement has only gained more traction as they become more accessible[4]. As accessibility increases so have speculations about their potential uses. The obvious appeal is the ability to print anything you want and become one’s own personal manufacturer. However, a recent federal case has recently brought to light that this kind of technology has as much potential to be dangerous as it has to be convenient.
3D printers work by turning a computer aided design, or CAD file and converting the data into a series of two-dimension layers and printing those layers on top of each other[5]. In short, similar to downloading a word document to print, a user downloads CAD files to print an item. In essence, this allows a person to share an item to multiple people just by sending a simple
file. This is exactly what Cody Wilson, founder of Defense Distributed, did in December 2012[6] when he designed and released a CAD file of a plastic gun,[7] until he was and was told to remove the file[8]. In May 2015 Wilson sued the federal government alleging that the government in requiring him to remove the CAD file of the plastic gun violated his right to free speech and to bear arms and seeking an injunction to stop the government from requiring any pre-publication approval of Defense Distributed files so that they and others would be free to publish these and similar CAD files without governmental intervention.[9] The Court denied Wilsons’s motion for the injunction to stop the federal governments regulatory enforcements, reasoning that that by publishing the files Defense Distributed by facilitating access to the product of weapons would increase the type of global conflicts the government is empowered to regulate[10]. However, years later the controversy over 3D printed guns has only increased.
The regulations Wilson challenged in 2015 were recently scaled back by an agreement between the government and Defense Distributed which would allow the company and others to be able to publish CAD files of guns and other weapons.[11] In response however, Washington DC as well as eight other states filed their own lawsuit to invalidate the agreement between Defense Distributed and the federal government in order to stop the company from being able publish the weapons again[12]. This lawsuit has brought the potentially dangerous implications of 3D printing back into the public eye. Although the court granted the states’ motion, holding that they have sufficiently proven that the likelihood of injury due to the publishing of the CAD weapons is high and therefore warrants at least the temporary staying of the agreement[13], the once bright future of 3D printing is now dimmed by practical considerations of what the technology means not only for the way we live our lives but also by what kinds of regulatory reforms would be necessary to combat the dangers that come with people being able to print anything with the click of a button.
Although a preliminary injunction has been granted[14], therefore stopping Defense Distributed from being able to publish these files, the larger issue still stands: if 3D printing continues to become more accessible, will its social utility outweigh its potential dangers and if so, what if any regulations may the federal government place on the types of files people share and create in order to counteract these dangers? The more accessible this type of technology is, the easier it becomes for people to use it to get around the sorts of protects and regulations already in place, necessarily requiring that our protections evolve with technology. However what kinds of evolution with be sufficient as well as constitutional still remains to be seen. No doubt cases similar to this one will continue to pose this question as CAD files of weapons serve as a solemn reminder that being able to printer anything means being able to print anything.
  1. See generally Dana Goldberg, History of 3D Printing: It’s Older Than You Are (That Is, If You’re Under 30), Redshift by Autodesk (Apr. 13, 2018), https://www.autodesk.com/redshift/history-of-3d-printing/. ↑
  2. See generally The Free Beginners Guide, 3D Printing Industry, https://3dprintingindustry.com/3d-printing-basics-free-beginners-guide#02-history. ↑
  3. Id. ↑
  4. See generally Hannah Bensoussan, The History of 3D Printing: 3D Printing Technologies from the 80s to Today, Sculpteo (Dec 14, 2016), https://www.sculpteo.com/blog/2016/12/14/the-history-of-3d-printing-3d-printing-technologies-from-the-80s-to-today. ↑
  5. Chris Woodford, 3D Printers, Explain that Stuff! (Aug 4, 2018), https://www.explainthatstuff.com/how-3d-printers-work.html. ↑
  6. See generally Defense Distributed v. United States Dep’t of State, 121 F. Supp. 3d 680, 687 (W.D. Tex. 2015). ↑
  7. Megan Redman, Jessica Hopper, Knez Walker and Alexa Valiente, Entrepreneur behind fight for sharing 3D printed gun blueprints on why he’s advocating for ‘the people’s right to keep and bear arms, ABC News (Aug 9,2018), https://abcnews.go.com/US/man-fight-sharing-printed-gun-blueprints-hes-advocating/story?id=57117087. ↑
  8. Washington v. United States Dep’t of State, 315 F. Supp. 3d 1202, 1204 (W.D. Wash. 2018). ↑
  9. Id. at 1203. ↑
  10. Id. at 1205. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. David Sherfinski, Federal Judge Grants Preliminary Injunction in 3-D Printed Gun Case, The Washington Times (Aug 27, 2018), https://www.washingtontimes.com/news/2018/aug/27/judge-grants-injunction-3d-printed-gun-case/. ↑

Samsung Electronics Co., SK Hynix, and Micron Technology, Inc. Accused of DRAM Price Fixing

By: Michael Furda
Earlier this year, several large Dynamic Random Access Memory, also known as DRAM, manufacturing companies have been accused of colluding to fix prices on DRAM memory since June 2016.[1] DRAM is a type of memory used in computers, servers, graphics cards, printers, and many other common forms of technology.[2]
In April 2018, a group of consumers filed the first of several class action complaints against Samsung, Hynix, and Micron.[3] The plaintiffs allege that these manufacturers engaged in price fixing for DRAM starting in June 2016 to February 2018.[4] The plaintiffs seek to represent consumers that purchased products containing DRAM within that period.[5] They contend that during the class period, prices of DRAM more than doubled.[6] The price increase has drawn a lot of suspicion, mainly because in early 2016, Samsung, the largest DRAM manufacturer, publicly announced that it was experiencing negative growth on DRAM due to the previous years in which the three manufacturers competed heavily to capture market share from each other.[7] Shortly after Samsung’s announcement, DRAM prices began increasing and have only continued to grow.[8] For example, one 16GB DRAM memory kit was sold for $68.99 in June 2016, and by May 2018 it was being sold for $169.99.[9]
Following the complaint filed in April, another consumer filed a complaint against the same DRAM manufacturers with allegations almost identical to the complaint made in April.[10] The main difference between these complaints is that the more recent one seeks to represent only U.S. purchasers who bought DRAM directly from the companies and the class period continues to the present.[11]
Both complaints contend that the named manufacturers control approximately 95 percent of the worldwide market for DRAM.[12] Furthermore, the complaints state that because of the large market share these manufacturers hold, they deliberately reduced production of DRAM in order to increase prices.[13] Additionally, during the class period, Micron, Samsung, and Hynix have experienced a significant increase in revenue for DRAM sales; 322 percent, 260 percent, and 277 percent, respectively.[14]
These recent complaints are not the first time that these large manufacturers have been accused of price fixing DRAM. In 2006 a similar suit was filed that covered a time period between April 1999 and June 2002.[15] That suit ended up resulting in a $300 million settlement in 2006.[16] In 2005, the DOJ charged Samsung, Hynix, and several other DRAM manufacturers with price fixing.[17] Further investigation by the DOJ also resulted in several executives serving jail time.[18] Later in 2013, the manufacturers agreed to pay $310 million in California for price fixing the cost of DRAM.[19]
While it is certainly possible that these manufacturers could have engaged in price fixing during the current class periods, it is also possible that the price increase resulted from an increase in market demand. In recent years, there has been an increase in demand for DRAM due to its use in common technology such as smartphones, graphics cards, and NAND; which is used in USB flash drives, solid state drives, and many other pieces of technology.[20] In February, it has been observed that DRAM prices have begun to decrease shortly after Samsung agreed to increase its production following a memorandum of understanding with the National Development and Reform Commission, a department in China that has been recently investigating allegations of price fixing by DRAM manufacturers.[21]
Overall, only further investigation into the activity of these DRAM manufacturers over these last few years will reveal whether they have taken part in another price fixing scheme. If they are found guilty once again, it begs the question of how the courts will react to these repeat antitrust violations.
  1. Bryan Koenig, Samsung Facing Another DRAM Price Conspiracy Class Suit, Law360.com (June 27, 2018), https://advance.lexis.com/api/permalink/61044528-c3df-4152-b12d-9d0231382e4b/?context=1000516. ↑
  2. Samsung: Settles DRAM Price-Fixing Class Action for $310-Mil, Class Action Reporter (August 13, 2014), https://advance.lexis.com/api/permalink/e9a76e86-3b21-4940-864c-a5b3699f7cc8/?context=1000516. See generally Margaret Rouse, Definition: DRAM (dynamic random access memory) (May 2015), https://searchstorage.techtarget.com/definition/DRAM (provides definition for DRAM). ↑
  3. Kat Greene, Samsung Named In Suit Over Alleged DRAM Price Conspiracy, Law360.com (April 27, 2018), https://advance.lexis.com/api/permalink/b5e5bb66-f17e-4f32-be47-9cf996045fd1/?context=1000516. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. ↑
  9. James Sanders, Samsung, Hynix, Micron Sued for DRAM Price Fixing That Could Have Raised PC Prices, Tech Republic (May 1, 2018), https://www.techrepublic.com/article/samsung-hynix-micron-sued-for-dram-price-fixing-that-could-have-raised-pc-prices/. ↑
  10. Koenig, supra note 1. ↑
  11. Id. ↑
  12. Id.; See generally Trendforce, DRAM Revenue in 1Q18 Rose by 5.4% QoQ to Another Record High as the Upswing of ASPs Continued (May 14, 2018), https://www.dramexchange.com/WeeklyResearch/Post/2/4980.html/. ↑
  13. Koenig, supra note 1. ↑
  14. Complaint at 14, Onshore Networks of IL, LLC v. Micron Technology, Inc., No. 4:18-cv-03905 (N.D. Cal. 2018) http://www.classactionsreporter.com/sites/default/files/dram_antitrust_complaint.pdf. ↑
  15. Bruce Zagaris, IX. International Anti-Trust Enforcement Three Samsung Executives Plead Guilty for Role in DRAM Price Fixing Conspiracy, International Enforcement Law Reporter (May 2006), https://advance.lexis.com/api/permalink/ac94ceb9-3c57-4711-b5be-6827c136f465/?context=1000516. ↑
  16. Koenig, supra note 1. ↑
  17. Zagaris, supra note 15. ↑
  18. Id. ↑
  19. Koenig, supra note 1. ↑
  20. DRAM Revenues to Top $100 Billion in 2018, ETMAG.com (August 21, 2018), https://advance.lexis.com/api/permalink/3480fc77-0182-4634-94d8-ba947327138f/?context=1000516. ↑
  21. Green, supra note 3. ↑

DJs and Sampling: Is the Transformative Prong of Fair Use the Key to Avoiding Copyright Infringement?

By: Bradley Fenniman
  1. Introduction
Electronic dance music, commonly referred to as “EDM” is a broad term that encompasses a multitude of musical subgenres produced using a computer and other technological instruments.[1] For example, the subgenre referred to as “dubstep” is created by mixing certain basslines and chord progressions at the 140 beats per minute (bpm) range using different programs and electronic synthesizers. Commonly, dubstep artists and artists in electronic genres will use short clips of other people’s artistic creations, called “samples”, to enhance their own song.[2] Sampling songs in DJ’s live performances and created works present a major issue: is this fair use under the federal copy right law?
  1. Sampling Sound
Sampling sound is the act of taking small sound bites or “clips” from other creative works and incorporating them in to a new piece of music.[3] This is encompassed in new songs as well as live performances. It is an incredibly common production tool that electronic music producers use to enhance their own creation.[4] Sampling is popular in electronic music production because of its availability in the digital era.[5] No longer does a producer need to hire musicians for vocals for other musical elements.[6] One can simply download sample packs online and chop and break beats in countless combinations until their creation is complete. However, DJs and producers can face legal claims if they do not obtain the rights to use the sampled works or cannot claim fair use.[7]
  1. What Constitutes Fair Use in EDM?
DJs can legally sample other works of art if they can successfully assert an affirmative defense of fair use under 17 U.S.C. § 107.[8] 17 U.S.C. § 107 highlights four elements that the court can weigh to determine fair use:  the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.[9] These enumerated elements act as a defense to an infringement claim in order to allow courts to avoid stifling the artistic creativity and ingenuity that copyright law was meant to protect.[10]
  1. What are the Options?
A DJ or producer could simply purchase the rights of other’s creations, but that requires resources.[11] However, a DJ or producer can try to use fair use as an affirmative defense.[12] Out of the four factors from the Fair Use Doctrine, the court in Campbell makes the argument that the more transformative the artwork is, the less important the other factors will be.[13] While the 4th prong is not necessary to find fair use, this decision means that DJs and producers have a stronger argument if they distort or change the sampled use so much so that their work will be considered different enough from the original to avoid copyright infringement.[14] If the courts continue this trend it could be very positive for electronic music producers as new production technology allows for unlimited combinations of alteration to sampled music.
  1. John Masachi, What Is Electronic Music?, World Atlas (Apr. 25, 2017), https://www.worldatlas.com/articles/what-is-electronic-music.html. ↑
  2. Glenn Jackson, Modern Approaches: Sampling, Red Bull Music Academy Daily, (Jul. 26, 2016), http://daily.redbullmusicacademy.com/2016/07/modern-approaches-sampling. ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. See 17 U.S.C. § 107 (2012). ↑
  8. Id. ↑
  9. Id. ↑
  10. Campbell v. Acuff Rose Music, 510 U.S. 569, 577 (1994). ↑
  11. See Ian Clifford, Sample Clearance – a cautionary tale, Make It In Music, (Oct. 11, 2011), https://www.makeitinmusic.com/sample-clearance-tale/. ↑
  12. See Campbell, 510 U.S. at 590. ↑
  13. See Campbell, 510 U.S. at 579. ↑
  14. Id. ↑

Private Search Doctrine and Known Hashes

By: Dana Domenick
A Fourth Amendment search occurs where a government official invades an individual’s reasonable expectation of privacy.[1] However, Fourth Amendment protection is not invoked against an unreasonable search conducted by a private party.[2] A private search terminates the individual’s expectation of privacy.[3] Under the private search doctrine, government officials are authorized, without a warrant, to replicate a private search undertaken so long as the government search does not exceed the scope of the private search.[4] When government officials reconstruct a private search which reveals no more information than that which was previously learned by the private search, an individual’s privacy is not further infringed on, thus no Fourth Amendment violation occurs.[5]
The private search doctrine is applicable where a private party detects illegal files in an individual’s electronic device and either sends the files or turns the device over to law enforcement.[6] Most commonly, internet providers scan its users files by comparing each file’s hash value to known hash values corresponding to images of child pornography.[7] Service providers, in accordance with federal law, subsequently forward the files to the National Center for Missing and Exploited Children (NCMEC).[8] Once a NCMEC analyst confirms the images contain illegal content, NCMEC alerts law enforcement.[9]
The manner in which law enforcement receives the file impacts the court’s ruling. Circuits are split on what constitutes a search under the private search doctrine. In the Sixth, Tenth, and Eleventh Circuits, where a private party opened one file on a device, law enforcement agents may access only that single file and nothing more, otherwise an unlawful Fourth Amendment search is triggered.[10] For instance, in United States v. Ackerman, the Tenth Circuit court found a Fourth Amendment search where law enforcement agents who received a folder from NCMEC, viewed all four images in the folder, despite that only one file was flagged as child pornography. [11] Conversely, the Seventh Circuit found no Fourth Amendment search where a private party opened one file on a computer and law enforcement subsequently accessed the entire computer.[12]
In the aforementioned cases, each circuit ruled that law enforcement is protected under the private search doctrine in opening individual files that have hashes which match known hashes corresponding to child pornography. [13] Although this investigative technique is beneficial for the purposes of identifying violent offenders, it raises concerns that any file with a known hash, not limited to images of child exploitation, are subject to law enforcement’s viewing.[14]
  1. See Katz v. United States, 389 U.S. 347, 360-61 (1967). ↑
  2. See United States v. Ackerman, 831 F.3d 1292, 1295 (10th Cir. 2016). ↑
  3. See United States v. Johnson, 806 F.3d 1323, 1334 (11th Cir. 2015). ↑
  4. See United States v. Jacobsen, 466 U.S. 109, 122, 130 (1984). ↑
  5. See id. at 117. ↑
  6. See United States v. Runyan, 275 F.3d 449, 463-64 (5th Cir. 2001). ↑
  7. See Ackerman, 831 F.3d at 1294. ↑
  8. See id. ↑
  9. See id. ↑
  10. See id. at 1306-08; United States v. Lichtenberger, 786 F.3d 478, 491 (6th Cir. 2015); Johnson, 806 F.3d at 1335 (11th Cir. 2015). ↑
  11. See Ackerman, 831 F.3d at 1306-08. ↑
  12. See Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012). ↑
  13. See id.; Runyan, 275 F.3d at 464; Ackerman, 831 F.3d at 1294; Lichtenberger, 786 F.3d at 491; Johnson, 806 F.3d at 1335. ↑
  14. See Orin Kerr, Opening a File After A Hash Was Made and Matched to Known Image of Child Pornography is not a “Search,” Fifth Circuit Rules, (Aug. 17, 2018) https://reason.com/volokh/2018/08/17/opening-a-file-after-a-hash-was-made-and. ↑