Richmond Journal of Law and Technology

The first exclusively online law review.

Month: August 2018

Kickstarting Fraud: When a Love of Board Games Requires Legal Intervention

By: Eli Hill,

In recent years, the board gaming industry has experienced an economic renaissance.  One factor fueling this revival is the crowdsourcing marketspace made available through Kickstarter.[1]  To date, the ‘games’ category has earned the most dollars on the site, outpacing both the design and technology categories.[2]  Within the games category, board games pull in substantially larger earnings than video games.[3]  In just the last year, the public pledged over $135 million towards Kickstarter board game campaigns alone.[4]

For the most popular games on Kickstarter, campaign creators often offer ‘group pledge’ options for their backers.[5]  By purchasing a game in bulk, the backer is able to save significant expense, particularly on shipping.[6]  While this method of purchase is typical for the seasoned retailer, online forums now enable individual hobbyists to pool their funds and benefit from the group pledge savings much more easily.[7]

Board game enthusiasts living outside the western commercial markets often lack access to modern board game retailers.[8]  Because the crowdsourcing campaigns are often run by smaller, less experienced publishers, options for delivery outside the U.S. and U.K. are minimal or otherwise beleaguered by absurdly expensive shipping costs.[9]

To address this obstacle within the Southeast Asian markets, a company named Boarders Tabletop Game Studio (“Boarders”) became the premier distributor of the area for the most highly sought after Kickstarter board games.[10]  Several years ago, Boarders began to coordinate group pledges on behalf of its customer base as a way to increase access to Kickstarter exclusive board games for its isolated clientele.[11]

Backers of all Kickstarter campaigns are used to rolling the dice.[12]  Most understand the projects that their financial pledges go towards may not pan out according to the timeline and quality projections originally advertised.[13]  Kickstarter is not a store and has no obligation to deliver the products funded via its marketplace, but such an obligation does fall on the creators of each campaign.[14]

Regarding those indebted to Boarders group pledges, the majority of customer contributions never went towards any Kickstarter campaign.[15]  Suspicions first arose after publisher shipping information and delivery timelines didn’t align with customer expectation.[16]  Attempts to contact Boarders directly about the problems went unanswered.[17]  Some dedicated hobbyists had put thousands of dollars into the numerous campaigns Boarders claimed to be backing.[18]  Most publishers never received any money from Boarders, and for those few that did, still lost money refunding payments on cargo that Boarders had picked up, but never distributed.[19] Collectively, those harmed are now exploring what legal action may be brought against Boarders.[20]

Undoubtedly, the pairing of the board game industry with Kickstarter crowdsourcing has produced more success stories than scams.[21]  However, as the events in Southeast Asia show, digital crowdsourcing is still hampered by the business limitations in distribution.[22]  Kickstarter may provide a valuable international market for the board game industry, but for the publishers operating with limited market presence, the threat of fraud still looms large.[23]

 

[1] See Charlie Hall, Tabletop Games are Exploding on Kickstarter, Video Games are Flat, Polygon (Jan. 2, 2018, 4:06PM), https://www.polygon.com/2018/1/2/16842204/tabletop-games-are-exploding-on-kickstarter-video-games-are-flat (detailing annual growth of Kickstarter board games).

[2] Kickstarter, https://www.kickstarter.com/help/stats (click on ‘categories’ breakdown from main menu).

[3] See Hall, supra note 1.

[4] See id.

[5] Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[6] See Jay H. Ganatra, When a Kickstarter Stops: Exploring Failures and Regulatory Frameworks for the Rewards-Based Crowdfunding Industry, 68 Rutgers L. Rev. 1425, 1459 (Spring 2016) (describing the cost savings of a bulk order on Kickstarter).

[7]  See id.

[8] See Wong, supra note 5.

[9] See Ganatra, supra note 6 (referencing the higher international shipping costs).

[10] See Wong, supra note 5.

[11] See id.

[12] See Ganatra, supra note 6 at 1465 (describing investor risk on Kickstarter).

[13] See id.

[14] See Michael M. Epstein & Nazgole Hashemi, Crowdfunding in Wonderland: Issues and Investor Risk in Non-Fraudulent Creative Arts Campaigns Under the Jobs Act, 6 Am. U. Bus. L. Rev. 1, 8 (detailing cases where fraudulent Kickstarter campaigns were obligated to defrauded customers).

[15] See Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[16] See id.

[17] See id.

[18] See id.

[19] See id.

[20] See Calvin Wong, Boarders Tabletop Game Studio defrauds thousands in Kickstarter scandal, Board Game Prices (Apr. 10, 2018), https://www.boardgameprices.com/articles/boarders-tabletop-game-studio-defrauds-thousands-in-kickstarter-scandal.

[21] See generally, Kickstarter, https://www.kickstarter.com/help/stats (showing the data for successfully funded projects).

[22] See Wong, supra note 19.

[23] See Christopher Moores, Kickstart My Lawsuit: Fraud and Justice in Rewards-Based Crowdfunding, 49 U.C. Davis L. Rev. 383, 390 (Nov. 2015) (describing vulnerabilities to fraud that are exposed by Kickstarter campaigns).

Image Source: http://monopoly.wikia.com/wiki/Go_to_Jail_(card).

Green Energy

By: Lindsey Rhoten,

Elon Musk’s curiosity for dabbling into green technologies beyond Tesla’s electric cars emerges at the most critical moment in time; when the state of Earth’s health and the fate of the human race depends on morphing anthropogenic behavior. The human race desperately needs someone that prioritizes Earth’s integrity to invest the endless hours and the billions of dollars into innovating green alternatives for human mobility and energy consumption. This energy innovation is invaluable in moving away from operating power plants that burn fossil fuels, to a source that does not insulate solar heat in the atmosphere.[1]

Telsa is progressing towards a sustainable lifestyle with Telsa’s new Powerpack and Powerwall batteries that allow private homes, business entities, and utilities to collect sustainable and renewable solar energy to “manage power demand, provide backup power and increase grid resilience.”[2] These two energy storage mechanisms now provide a simple do-it-yourself method to utilizing the output of the renewable energy source.[3] The Powerwall is a rechargeable battery designed to store excess energy from solar panels, or the grid if there are no solar panels, and provide access to the left over energy for residential use upon demand.[4] The Powerpack is similar but adjusted to a larger size for business and utility usage.[5] This enables the commercial or larger entity to disconnect the Powerpack from the main power source and convert into its own independent micro grid source using stored energy.[6]

The United States electricity infrastructure is comprised of legacy grids that serve to generate, transmit, and distribute electricity to consumers.[7] One of the greatest shortcomings of the current energy system is that the grid must balance the energy supply to ensure that the electricity availability is contemporaneously adaptable to the increases in demand.[8] The legacy grid relies on peaking plants to elevate the supply with the demand; however, these plants waste energy if the demand is not present and they also generate more pollution than nonpeak plants.[9]

While decreasing fossil fuel use and slowing the flow of overcrowded grids are logical alternatives for those compelled to clean up the environment and save money on the monthly power bill, utility companies are certainly not the first to lobby support of this technology.[10] When consumers connect these energy storage batteries to their home or business as a power source, they are no longer dependent on the services provided by public utility companies.[11] Consequently, public utility profits decrease and the company may not be able to guarantee the viability of the company.[12]

The Federal Energy Regulation Commission (FERC), with regulation by the state, protects this natural monopoly,[13] which is where one company can provide a cheaper service to the entire market than multiple companies could.[14] Utility companies are trying to charge renewable energy users a higher fee because some users still connect to the grid as a backup emergency source and as a result, utilities want to recoup their fair share of grid infrastructure maintenance costs.[15] However, utilities cannot continue to resist this innovative technology. The industry must evolve alongside the technology and adopt flexible practices, while continuing to provide an equitable and safe product for all consumers, renewable energy users or not.

 

[1] See Union of Concerned Scientists, Is There a Connection Between the Ozone Hole and Global Warming?, https://www.ucsusa.org/global-warming/science-and-impacts/science/ozone-hole-and-gw-faq.html#bf-toc-0 (last visited Apr. 11, 2018) (stating that global warming is largely caused by humans burning fossil fuels, such as oil and coal, which put an excessive amount of carbon dioxide in the atmosphere. Instead of the solar heat radiating out into space, the carbon dioxide particles act as a blanket to insulate solar heat in the atmosphere).

[2] Chaunceton B. Bird, Growth and Legal Implications of Energy Storage Technologies, Utah L. Rev. OnLaw 33, 41 (2017) (describing the Tesla Powerpack and Powerwall as innovative green technologies for energy storage and consumption).

[3] See id.

[4] See Tesla, Powerwall Overview: What is Powerwall?, https://www.tesla.com/support/energy/learn/powerwall/overview (last visited Apr. 11 2018).

[5] See Tesla, Powerpack: Applications, https://www.tesla.com/powerpack (last visited Apr. 11, 2018).

[6] See id. at Powerpack: Microgrid.

[7] See Lindsay Breslau et al., Batteries Included: Incentivizing Energy Storage, 17 Sustainable Dev. L. & Pol’y 29, pt. I, § A (2017).

[8] See id. at 2.

[9] See id.

[10] See id. at pt. II, § C.

[11] See Bird, supra note 2, at 60.

[12] See id. (stating that if people disconnect from the grid, consumers will not be able to receive the rewards of resource sharing, which would subsequently result in an unequal and expensive electricity system).

[13] See id. at 48-49.

[14] Natural monopoly, Cambridge University Press Dictionary (2018), https://dictionary.cambridge.org/us/dictionary/english/natural-monopoly.

[15] See Breslau, supra note 7, at pt. II, § C.

Image Source: http://energypost.eu/green-electricity-europe-isnt-green/.

Issues with Hair-Follicle Drug Testing

By: Jenna Bouley,

Hair-follicle drug testing is different than other drug tests administered because it analyzes hair for drugs within the hair shaft, rather than bodily fluids normally used for drug testing such as urine or saliva.[1] Hair-follicle drug tests are particularly useful because they can be used to determine if a person has ingested drugs in the past 90 days.[2] Employers find this method useful because hair tests can identify drugs in someone’s system from approximately the last three months whereas urine tests can only detect drugs taken approximately a week prior to testing.[3] The use of hair-follicle drug testing has also become more common in the legal industry particularly when court-ordered drug testing may be required.[4] Some examples of when a hair-follicle drug test may be used for legal purposes include: probation, divorce, and child custody cases.[5]

Although the test is called a hair follicle test, it is not actually the root itself that is tested but the first inch and a half of growth from the base.[6] The test works to detect drugs taken in the last 90 days because when a person ingests a drug, it enters into the bloodstream while the body simultaneously metabolizes the drug, causing those metabolites to circulate through the blood as well.[7] Moreover because a person’s blood nourishes their hair follicles, any ingested drugs and their metabolites are deposited into their hair follicle where they remains until the hair grows out of the follicle.[8]

While on the surface hair-follicle drug testing may seem like a great solution for employers and courts there are some issues with the testing. Two major issues include the fact that someone could be exposed to a drug without having ingested it and therefore test positive as well as the fact that the drugs bond with some hair types better than others, which cause inaccuracies about when a drug might have been taken.[9] Some scientists argue that both external and ingested cocaine binds to melanin in the hair thus someone could potentially test positive for cocaine use simply by being in an environment that has cocaine.[10] Moreover, people with black hair, especially with the subtype eumelanin, tend to bind particularly well with cocaine and amphetamines causing disparities in timing between them and their lighter haired counterparts.[11] Additionally, both the amount of melanin and chemical treatment in someone’s hair can make a difference in how much of a drug the hair can absorb.[12] However, even with these issues employers still seem willing to use this method of drug testing.[13]

One example of how the courts have dealt with the issues presented by hair-follicle drug testing was a Massachusetts case involving Boston police officers who tested positive for cocaine in a hair-follicle test.[14] The court concluded that, although hair-follicle drug tests are reliable enough to “be used as some evidence” of drug use, “the risk of a false positive test was great enough to require additional evidence to terminate an officer for just cause.”[15] In other words, the officers failure to pass the hair-follicle drug testing could not be used to conclusively determine that they had used a controlled substance. As a result of the court’s decision the some of the officers were reinstated.[16] In support of the conclusion that this type of testing may be unreliable, Lewis Maltby, president and founder of the National Workrights Institute commented that “every independent scientific organization that has studied hair testing concluded that it isn’t reliable,” and that “the only scientists that support hair testing have ties to the industry.”[17] Moreover according to Michael Walsh, who designed the federal employee drug-testing regime under President Ronald Reagan, and was the executive director of President George H.W. Bush’s Drug Advisory Council: “the science basically just didn’t support integrating it into the federal program—there are still significant scientific issues, not about whether the technology can detect drugs in hair, but more so about the interpretation of how the drugs got there.”[18] Until a better method is found this issue will continue to present employers with the choice of using the potentially problematic hair-follicle drug testing and risk having a law suit brought or alternatively taking the chance that their employees may have used drugs within the last 90 days.

 

[1] See Hair Drug Test Facts and FAQS, Pyschemedics Corp., https://www.psychemedics.com/hair-drug-testing-facts-faqs/#what-is (last visited Apr. 9. 2018).

[2] See Hair Follicle Drug Test, National Drug Screening, Inc.   https://www.nationaldrugscreening.com/hair-follicle-drug-test.php (last visited Apr. 9. 2018).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Supra note 2.

[8] See id.

[9]  See Ellen Airhart, The Hairy Problem with Drug Testing, Wired (Apr. 1, 2018, 8:00 AM) https://www.wired.com/story/the-hairy-problem-with-drug-testing/.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See Hassan Kanu, Hair-Follicle Drug Testing: Lessons for Employers, Bloomberg Law (Oct. 19 2016) https://www.bna.com/hairfollicle-drug-testing-n57982078835/.

[15] Id.

[16] See id.

[17] Id.

[18] Id.

Image Source: https://www.alcopro.com/product/hair-follicle-drug-test/#.

Our White Knight: Exploring the Case that Could Make President Trump Read Your Twitter Snark

By: Mitch Torrence,

Writing in Packingham v. North Carolina, Justice Kennedy stated, “While in the past there may have been difficulty in identifying important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace-the ‘vast democratic forums of the Internet’ in general and social media in particular”. [1] Granted, these words were uttered in dicta but they speak to the important principle, today the most important place wherein ideas are exchanged is the internet. That in mind there comes a fun question: Can the President block people from his viewing his Twitter account? Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al. may provide an answer to that very question. [2]

The Plaintiffs in Knight Institute are individuals, all of whom have been blocked from viewing President Trump’s Twitter account.[3] It is their position that this is a violation of their First Amendment rights and that they have a right to view Mr. Trump’s twitter account and he should be compelled to unblock them.[4] They couch this argument in the proposal that Mr. Trump’s Twitter account constitutes a public forum and that Mr. Trump’s blocking of them of them is impermissible viewpoint discrimination.[5] The Government, of course, disagrees.

The Government concedes that Mr. Trump’s Twitter posts constitute official statements from the Office of the President.[6] However, they disagree with the characterization of Twitter as a public forum and contend that forum analysis is not even appropriate in this context.[7] On the latter point the Government that argues that the public forum doctrine ought not be applied mechanically to contexts that are different from streets or parks.[8] Additionally, they make the argument that the Court must analyze what it is the citizen is seeking access to, in this case Mr. Trump’s Twitter account.[9] At this point it is their contention that because no one else can speak on Mr. Trump’s timeline his account cannot be considered to be a public forum. [10]

The case will likely ultimately come down to the above question: what kind of forum is Mr. Trump’s Twitter account? As Eugene Volokh points out there is a dearth of case law on this particular kind of issue.[11] Again as Volokh points out, it seems the most analogous cases come out of the Eastern District of Virginia in Davison v. Plowman and Davison v. Loudon County Board of Supervisors.[12] In those cases the following split manifested: a government agency Facebook page ought to be viewed as a limited-public forum and an individual politician’s page may not have the same constraints put on it.[13]  If the same logic were to be extended to Mr. Trump’s account the Plaintiff’s in Knight Institute may be in for a rude awakening.  However, viewing Mr. Trump’s account as purely personal is problematic.

As the Plaintiff’s point out in Knight Institute, Mr. Trump’s account is not utilized a personal account. The practice of the account is to have it function as a vehicle to put out official statements and various members of his staff have access to the account.[14]  To that end, Mr. Trump announced the transition from H.R. McMaster as National Security Advisor to John Bolton via his Twitter. Mr. Trump uses his account in an official capacity and ought not to be able to exclude people from the discourse because he doesn’t like their jokes.

Justice Kennedy correctly identified the notion that today the most important forum for our discourse is cyberspace. It is not a hot take to suggest that Twitter, Facebook, etc.  have taken the mantle of the public square. Mr. Trump’s page ought to correctly be viewed as being a limited public forum and ought not be able to block Twitter users willy-nilly. This may all turn out to be a moot point as the Judge in the case suggested Mr. Trump simply mute users as opposed to blocking them. [15]Perhaps that will end the issue, but if we should hope for a more concrete solution that answers the important question here.

 

[1] See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).

[2] See Compl. For Declaratory and Injunctive Relief Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[3] Id.

[4] Id.

[5] Id.

[6]   See Government’s Response to Letter Re: Government’s Concession, Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[7] See Mem. Of Law In Support of Mot. For Summ. J., Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[8] Id.

[9] Id.

[10] Id.

[11] See Euguene Volokh, Is @RealDonaldTrump Violating the First Amendment by Blocking Some Twitter Users?, The Volokh Conspiracy, The Washington Post, Jun. 6, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/06/is-realdonaldtrump-violating-the-first-amendment-by-blocking-some-twitter-users/?utm_term=.4d98f9871585.

[12] Id.

[13] Compare Davison v. Plowman, 191 F. Supp. 3d 553 (E.D.V.A. 2016); with Davison v. Loudoun Cnty. Bd. of Supervisors, 227 F. Supp. 3d 605 (E.D.V.A. 2017).

[14] See Donald Trump (@realDonaldTrump), Twitter (Mar. 22, 2017, 5:26 pm)  https://twitter.com/realDonaldTrump/status/976948306927607810.

[15] See John Herrman, Judge Floats Idea to Settle @realDonaldTrump Twitter Blocking Case, N. Y. Times, Mar. 8, 2018, https://www.nytimes.com/2018/03/08/business/trump-twitter-block.html.

Image Source: http://www.slate.com/articles/technology/technology/2018/01/banning_trump_from_twitter_would_be_counterproductive.html.

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