Richmond Journal of Law and Technology

The first exclusively online law review.

Author: Courtney Gilmore (Page 1 of 6)

From LOL to WOW: eSports & IP Implications

By: James Williams,

Sure, we all know that one friend or group of people who play(ed) League of Legends, World of Warcraft, Call of Duty, or other online games. You probably heard parents or teachers say at some point, “you’ll never go anywhere playing those games all day.” However, for some hardcore gamers over the past decade, that threat has been proven false.

eSports has become a new “real job” prospect for elite gamers.[1] These competitions involve high-earning possibilities[2], and there is even a list of earnings by some of the most successful players.[3] Now, there is even a need for lawyers who specifically represent these gamers in terms of reviewing contracts and meeting other legal needs.[4]

Aside from the amount of money flowing around the competitions being insane, there are several intellectual property issues that arise with the growing popularity of eSports. While it is true that the performance of the gamers is unique to them, they are still using the game, which involves the copyrighted artwork of the publisher, the branding associated with the trademarks, and potentially any patents that are related.[5]

Currently, the various tournament hosts appear to contract around the IP issues with gaming publishers.[6] The game publisher or developers are usually still the copyright holders, so enforcement rests upon their discretion.[7] Advertising creates several opportunities for both the game developers as well as the gamers because both can find benefits from advertising the game and potentially, the gameplay.

Streaming gameplay online through platforms like Twitch and YouTube is also a concern for game developers.[8] The current defense that has been suggested for streamers is fair use[9], but this is not the sturdiest defense. Aside from trying to put game streaming into one of the narrow categories of fair use, four factors also need to be weighed.[10] For competitive players, streaming the video games that they play is equivalent to a job[11], so the use itself may be considered as commercial if they are making money and branding themselves. Some game companies, such as Blizzard, are trying to circumvent this by creating a space where players can stream content as long as those players are not charging money to view their content.[12] While Blizzard is trying to keep the players pushed into the fair use category, grounds for infringement may still exist depending on how the courts define the streaming of game content. This is something that gamers, developers, and the legal community will be watching for the future.

Atlus attempted to enforce its rights by threatening suit for those who streamed its game, Persona 5, after a certain point in the beginning of the game to protect the storyline from being spoiled.[13] However, they received so much criticism from Let’s Players and the gaming community, that they issued an apology and removed the warning.[14] This may be an important reminder that the game developers do own enforcement rights, but they are also subject to the market and the buying public.

Trademark sponsorship is not as much of a concern because this is still a growing field compared with other registered sports marks, like Michael Jordan.[15] Although eSports has made it onto ESPN and other non-streaming services, major players and the games themselves are not widely recognized by the general public, so trademark sponsorship may still be a matter of years away.[16]

Moving forward, we’ll want to keep an eye out for fair use as applied to streaming, copyright licenses, and the possibility of individual or corporate trademark issues within the eSports arena. The world of gaming has officially left the basement and is now walking into the spotlight.

 

[1] See Jas Purewal & Isabel Davies, The eSports Explosion: Legal Challenges & Opportunities, 9 Landslide 2 (2016), https://www.americanbar.org/publications/landslide/2016-17/november-december/the_esports_explosion_legal_challenges_and_opportunities.html. (last visited Apr. 3, 2018).

[2] The International 2017 Dota 2 competition had a prize pool of $24.7 million USD. Largest Overall Prize Pools in eSports, E-Sport Earnings, https://www.esportsearnings.com/tournaments. (last visited Apr. 3, 2018).

[3] The highest overall earning player was Kuro Takhasomi for a Dota 2 competition where he earned $3.6 million USD. Highest Overall Earnings, E-Sport Earnings, https://www.esportsearnings.com/players. (last visited Apr. 3, 2018).

[4] See Esports Law and Agent, Kelly Warner, http://kellywarnerlaw.com/esports-law-contracts-agent/. (last visited Apr. 3, 2018).

[5] Supra note 1.

[6] Id.

[7] Advertising these competitions can also help advertise the games themselves, so some game developers may turn the other cheek when it comes to enforcing their copyright and trademark rights. See Aaron Swerdlow, The emerging legal battle over video game streaming rights, Venturebeat (May 27, 2017 at 6:00 AM) https://venturebeat.com/2017/05/27/the-emerging-legal-battle-over-video-game-streaming-rights/.

[8] Id.

[9] 17 U.S.C. § 107 (“Notwithstanding the provisions of 106 and 106A, the fair use  of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,  is not an infringement of copyright. […]”).

[10] Id. (“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used  in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”).

[11] Supra note 7.

[12] Id.

[13] Id.

[14] Id.

[15] Supra note 1.

[16] ESPN, http://www.espn.com/esports/. (last visited Apr. 3, 2018).

Image Source: https://www.nasdaq.com/article/the-incredible-rise-of-esports-cm904589.

“Technological Competence”: The Role Bar Associations Will Play in Explaining a Lawyer’s Duty of Competence with Technology

By: Caroline Grossweiler,

The past few decades have been filled with significant technology advancements. While almost all professions have had to adapt to this technology change, lawyers are experiencing a unique challenge. Lawyers are bound by a duty of competence, which may subject them to additional, more severe pressures to keep up with technological advancements.[1]

The duty of technology competence was first encountered in 2012 when the American Bar Association formally approved a change to the Model Rules of Professional Conduct to require that lawyers have a duty to be competent not only in the law and its practice, but also in technology.[2] However, the Model Rules are a suggested framework for the ethical practice of law; states can choose to adopt or not to adopt these rules.[3]

Whether or not the duty of technology competence has been adopted in a specific state, states generally agree that this duty exists in some form.[4] As of March 2018, 31 states have formally adopted the rule of a lawyer’s duty to be technologically competent.[5] Regardless of formal adoption of the rule, the general concept in support of a duty of technology competence is premised on the belief that “… as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”[6] But, this begs the question: How do we get lawyers to become technologically competent?

One approach, taken only by Florida, is to formally educate lawyers on changing technologies.[7] Florida is one of the 31 states that have adopted the duty of technology competence, but more significantly, became the first state to require technology CLE for lawyers.[8]

Another approach, taken by Illinois and New York, focuses on tools and services that can be given to lawyers in order to answer their specific concerns.[9] “…Illinois focuses … on helping lawyers with their technological needs as they come up.”[10] Illinois does not think CLE requirements for technology are an appropriate response to the concern, and that state bar associations should be able to trust lawyers to take CLEs in areas where they need more education.[11] New York focuses on helping lawyers by giving them the tools they need to be technologically competent; CLE classes are not one of these tools.[12]

In conclusion, while states agree that lawyers should probably be technologically competent, no one really agrees on how to achieve this goal. Within the next decade or so, it would not be surprising to see additional methods other than the ones listed in this article arise out of other states. One of the main concerns the American Bar Association and each state bar association should have when making these judgments is this: How can we set up our profession to comply with the ever-changing technology while not unduly burdening lawyers? With this focus in mind, lawyers will be able to swiftly adapt to technology as it grows.

 

[1] See Model Rules of Prof’l Conduct, r. 1.1 (Am. Bar Ass’n 1983).

[2] See Model Rules of Prof’l Conduct, r. 1.1, cmt. (Am. Bar Ass’n 1983).

[3] See Model Rules of Prof’l Conduct, Preamble and Scope (Am. Bar Ass’n 1983).

[4] See Robert Ambrogi, 31 States Have Adopted Ethical Duty of Technology Competence, LawSites (Mar. 16, 2015), https://www.lawsitesblog.com/2015-01/11-states-have-adopted-ethical-duty-of-technology-competence.html.

[5] See id.

[6] Id.

[7] See generally Robert Ambrogi, Florida Becomes First State to Mandate Tech CLE, LawSites (Oct. 3, 2016), https://www.lawsitesblog.com/2016/10/florida-becomes-first-state-mandate-tech-cle.html (discussing Florida’s use of Continuing Legal Education (“CLE”) to address technology changes).

[8] See id.

[9] See Victor Li, Florida Requires Lawyers to Include Tech in CLE, ABA Journal (Feb. 2017, www.abajournal.com/magazine/article/technology_training_cle/).

[10] Id.

[11] See id.

[12] See id.

Image Source: https://edepoze.com/legal-ethics-duty-technology-competence/.

Might an End of Net Neutrality Mean an End to Internet Piracy?

By: James DeSantis,

Years after the high profile legal battles between the media companies and popular peer-to-peer (P2P) file sharing sites, the specter of widespread copyright infringement continues to haunt the entertainment industry to this day.[1] There are conflicting reports as to whether Internet piracy is still growing or has plateaued with the popularity of legal streaming services like Netflix and Spotify.[2] Regardless of whether there is a national trend suggesting that the worst days of Internet piracy may be over, the entertainment industry still loses billions to illegal streaming services and torrent sites.[3] Fortunately, the recent Federal Communications Commission (FCC) decision to repeal Obama era net neutrality regulations on ISPs may allow for a novel way to combat Internet piracy.[4]

Net neutrality is the principle that ISPs should be governmentally mandated to treat all data on the Internet equally regardless of the type content.[5] Following Comcast’s successful lawsuit against the FCC in 2010, ruling that the FCC did not have ancillary jurisdiction to require ISPs to treat all Internet traffic equally, the FCC voted 3-2 to expand their authority to do just that.[6] However, on December 14, 2017, the FCC, under new administration, voted to end the very regulations that had required ISPs to treat all Internet activity the same. The net neutrality regulations are currently set to officially end on April 23, 2018.[7]

Without the FCC restrictions, ISPs will soon be capable of restricting access to specific websites without fear of governmental interference including sites engaging in copyright infringement.[8] While many free-speech and anti-censorship advocates on both sides of the political spectrum have lamented the end to net neutrality, Alexander Graham Bell, the grandfather of the telecommunications industry, perhaps said it best: that “when one door closes, another opens.” ISPs heavily rely on the entertainment industry to maintain ISP revenue from television programming should use the end of net neutrality to pursue a grand bargain with ISPs. The entertainment therefore has leverage and possibly could induce ISPs to eliminate access to illegal file sharing websites in exchange for the entertainment industry’s agreement to continue allowing ISPs to carry the entertainment industry’s channels on ISP’s television services.

A similar idea is already gaining traction North of the border with a coalition of Canadian ISPs, media content providers, and entertainment industry trade organizations, called FairPlay Canada.[9] The coalition recently filed an application with Canada’s FCC equivalent, the Canadian Radio-television and Telecommunications Commission (CRTC), asking regulators to create an “Independent Piracy Review Agency” that will identify piracy sites and order ISPs to block their customers access to the offending websites.[10] The idea being that Canada has far more to lose in the way of lost revenue and entertainment sector jobs then it stands to gain by protecting citizens access to pirating websites. FairPlay Canada’s proposal is not unlike recent attempts in the U.S. to pass similar regulations like the Stop Online Piracy Act (SOPA) that Congress has repeatedly failed to pass.[11] The main difference between this novel proposal and FairPlay Canada or SOPA and the reason why there is a greater potential for it to likely succeed, is that under the new FCC regulations no governmental approval is required.

While restricting access to illegal file-sharing websites will not magically put an end to all Internet piracy in the United States, making it more difficult for the casual netizen to obtain illegal copyrighted works will likely dissuade all but the most devoted of infringers. With only the most committed copyright scofflaws engaging in online piracy, the entertainment industry should be more comfortable prosecuting said individuals without fear of public backlash. Though the U.S. government has been of limited help in actively tackling the issue of online piracy, the recent decision for the government to not interfere with ISPs may give the entertainment industry its best chance yet to address the crisis.

 

[1] See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); Metro-Goldwyn-Mayer Studios Inc. et. al., v. Grokster, Ltd. et al., 125 S. Ct. 2764; 162 L.Ed. 2d 781 (2005); Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398 (2011).

[2] See Dan Rys, Music Piracy Grew 14.7 Percent in 2017, But Positive Signs Exist, Billboard (March 21, 2018).

[3] See Todd Spangler, Global Piracy in 2017: TV and Illegal Activity Rose, While Film Declined, Variety, March 21, 2018.

[4] Brian Fung, The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation, The Washington Post (Dec. 14, 2017).

[5] See Wikipedia, Net neutrality, https://en.wikipedia.org/wiki/Net_neutrality (describing the history of net neutrality in the U.S. and around the world).

[6] Sam Gustin, FCC Passes Compromise Net Neutrality Rules, Wired (Dec. 21, 2010).

[7] Seth Fiegerman, Net Neutrality Rules Will Officially End On April 32, CNN Money (Feb. 22, 2018),  http://money.cnn.com/2018/02/22/technology/fcc-net-neutrality-date/index.html.

[8] Klint Finley, Here’s How the End of Net Neutrality Will Change the Internet, Wired (Nov. 22, 2017).

[9] FairPlay Canada, https://www.fairplaycanada.com.

[10] Jordan Pearson, Canada’s Telecoms and National Media Want the Government to Block Internet Piracy Websites, Motherboard (Jan. 30, 2018).

[11] Stop Online Piracy Act, H.R.3261; House Judiciary Committee (Oct. 26, 2011).

Image Source: http://www.680news.com/2018/01/29/fairplay-crtc-online-theft/.

What Two-Tier Stock Systems Have to Do with the Cambridge Analytica Scandal

By: Jon Neri,

Today, Facebook CEO, Mark Zuckerberg, submitted to Republican Senator Charles Grasley’s call for him to appear before the Senate Judiciary Committee on April 10.[1] The Committee wants Zuckerberg to answer questions about Facebook’s policies “regarding the protection and monitoring of consumer data.”[2] Such summons follows the discovery that political data firm Cambridge Analytica harvested information on millions of Facebook users which it utilized in relation to its work in the 2016 Presidential election.[3] Considering this is not Facebook’s first misstep when it comes to protecting its users’ private information, one must question what aspects of the company’s structure sustains its bad practices and, conversely, its positive reputation.

The discovery referred to above resulted from an investigation led by the Federal Trade Commission.[4] The FTC acknowledgment of its investigation noted that Facebook had entered into a “consent decree” in 2011.[5] In doing so it promised to reform its misleading privacy policies, as well as specifically protect its users from breaches via third-party apps.[6] Considering the decree was made over seven years ago, it is safe to say Facebook has had a long history, and certainly a reputation with lawmakers, of privacy concerns and miscarriage of private user information.[7] The social media mogul has a practice of “pushing the limits of privacy expectations,” operating under a doctrine that is very much similar to the quip “act without permission and ask for forgiveness later.”[8] The company consistently fails to notify users that information they lend, and commonly believe to be as private, is actually often open to public view during particular circumstances, such as the user accessing a publicly shared app within the Facebook interface.[9] It is not, however, new to having to publicly apologize for breaches in its user data, and is quick to come up with an excuse for the incident and a promise that the issue will be fixed.[10]

In the case of this most recent discovery, Zuckerberg took out full-page ads in several British and American newspapers on Sunday, March 25, to apologize for a “breach of trust” relating to the Cambridge Analytica scandal.[11] “This was a breach of trust, and I’m sorry we didn’t do more at the time,” said Zuckerberg before ensuring that the company was taking steps to make sure such a breach never occurs again.[12] Meanwhile, the CEO has come under harsh criticism for this most recent scandal which sent Facebook’s value plunging by nearly $50 billion last week.[13]

Some speculate that Facebook’s long history of privacy violations, even under its own consent decree to the FTC, is strongly linked to Zuckerberg’s secure position as the company’s CEO and majority shareholder.[14] Facebook is structured according to a two-tier stock option system in which Zuckerberg controls 77% of the company’s class B shares, which carry 10 votes each and easily outweigh the voting-power of the company’s 2.4 billion class A shares.[15] What this means is that Facebook’s CEO owns barely 16% of the company, but controls nearly 60% of the votes, meaning Zuckerberg is essentially not subject to the initiatives of Facebook’s board of directors to any significant extent and can’t be removed from his position as CEO.[16] As could be suspected, investors are now showing concern that the value of their investment could be rapidly deteriorating while they are left with no practical means of weighing in on how the company should address its issues.[17] The current argument circling the tech world is whether Facebook would be better off moving forward without Zuckerberg at the forefront. There is no dispute that the company would not be what it is today without Zuckerberg at its helm, but it can also be argued that many of its scandals could have been avoided, and might still be avoided in the future, if Zuckerberg were to relinquish some of his control.

The practice of companies to have multiple stock classes has traditionally been frowned on by the stock market, in fact the practice was banned by the New York Stock Exchange in 1940, only to reinstate their trade in 1956.[18] More recently, however, the New York Stock Exchange has displayed renewed doubts about the practice.[19] For Facebook, the issue is more pressing than ever before and a question arises as to whether or not publicly-traded companies should be more closely regulated in terms of their structure. For now, public opinion leans towards reserving the privilege of citizens to build our companies according to our own discretion and with fairly minimal government intervention. However, if the capitalist ideals that underline free trade continue to intrude on privacy, we may begin to see more legislature proposing increased regulation of companies that specialize in handling private information.

 

[1] See Kaya Yurieff, These are the Lawmakers Who Want Mark Zuckerberg to Testify, CNN tech (Mar. 26, 2018, 2:06 PM), http://money.cnn.com/2018/03/26/technology/lawmakers-seek-mark-zuckerberg-testimony/index.html.

[2] Id.

[3] See id.

[4] See Michael Hiltzik, Mark Zuckerberg Shows Why Giving Company Founders Total Control Can Be Disastrous, Los Angeles Times (Mar. 26, 2018, 12:35 PM), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-zuckerberg-20180326-story.html.

[5] Id.

[6] See id.

[7] See id.

[8] Id.

[9] See Hiltzik, supra note 4.

[10] See id.

[11] Sheena McKenzie, Facebook’s Mark Zuckerberg Says Sorry in Full-Page Newspaper Ads, CNN World (Mar. 25, 2018, 2:17 PM), https://www.cnn.com/2018/03/25/europe/facebook-zuckerberg-cambridge-analytica-sorry-ads-newspapers-intl/index.html.

[12] Id.

[13] See id.

[14] Hiltzik, supra note 4.

[15] Id.

[16] Id.

[17] See id.

[18] See id.

[19] See Hiltzik, supra note 4.

Image Source: https://www.theverge.com/2018/3/27/17168228/mark-zuckerberg-congress-testify-cambridge-analytica.

Technology is Leading to Fight Against Partisan Gerrymandering

By: Rachel Weinberg-Rue,

Just this week, on March 19, 2018, the Supreme Court of the United States rejected a request from Pennsylvania Republicans to block a new Pennsylvania congressional district map created to combat partisan gerrymandering.[1] GOP leaders in Pennsylvania’s state House and Senate sought to block the new maps which were released by The Pennsylvania Supreme Court after it ruled in January that the previous maps had been unconstitutionally gerrymandered.[2] The Pennsylvania Supreme Court held that the previous congressional map from 2011 violated the Constitution because the map diluted the votes of Democrats. [3]Justice Debra McCloskey Todd noted that because elections should be free and equal, it is “axiomatic that a diluted vote is not an equal vote.”[4]

This case is not just notable for its role in state and national politics. It is also notable for the smart use of technology used to provide evidence of gerrymandering that has never been used before in such cases. Historically, gerrymandering cases have been difficult to bring because they are hard to prove. This Pennsylvania case has shown that mathematical metrics and data can be used as concrete evidence of partisan gerrymandering.[5] For example, Carnegie Mellon mathematician, Wes Pegden, developed a computer program to show that the Pennsylvania map was drawn with partisan intent.[6]

Pegden’s program began with using the current Pennsylvania map.[7] The program then made tiny changes to the existing map to create 1 trillion slightly different maps, drawing possible districts that a court would accept (districts that are contiguous, reasonably shaped, and that have similar population sizes).[8] Pegden then analyzed the partisan slant of each new map using a metric known as the median versus mean test.[9] In the end, Pegden found that the 2011 Pennsylvania map involved in the case exhibited more partisan bias than 99.9% of all of the computer generated maps that he tested.[10] In other words, he found that making even the smallest changes in any direction to the existing map would take away the partisan advantage.[11]

Until now, researchers weren’t able to find a good system that used random maps to compare to gerrymandered maps, but thanks for Pegden’s theorem, this has become possible.[12]

Pegden was not the only expert to contribute to the evidence in the case. Christopher Warshaw, a political scientist at George Washington University provided mathematically derived data to show that the partisan map actually impacted representation in Pennsylvania’s Congress.[13] Jowei Chen, a political scientist at the University of Michigan, Ann Arbor, also provided simulated data using a different statistical method that backed up Pegden’s data.[14]

Now, thanks to the experts behind the technology and data in this case, we may see more successful gerrymandering cases being brought by advocates in other states.[15]

 

[1] See Turzai v. League of Women Voters, No 17A909 2018 U.S. LEXIS 1911*.

[2] See Ariane de Voque, et. al, Supreme Court Rejects Pennsylvania GOP Plea to Block New Congressional Maps, CNN (March 19, 2018, 9:25 PM), https://www.cnn.com/2018/03/19/politics/pennsylvania-congressional-voting-map-new-ruling/index.html.

[3] See Sam Levine, Pennsylvania’s Supreme Court Explains Why It Struck Down Congressional Map Favoring GOP, Hᴜꜰꜰɪɴɢᴛᴏɴ Pᴏꜱᴛ (Feb. 7, 2018, 8:47 PM), https://www.huffingtonpost.com/entry/pennsylvania-supreme-court-gerrymandering_us_5a7b8f9de4b08dfc92ffcb68.

[4] Id.

[5] See Issie Lapowsky, The Geeks Who Put a Stop to Pennsylvania’s Partisan Gerrymandering, Wɪʀᴇᴅ (Feb. 20, 2018, 11:21 AM), https://www.wired.com/story/pennsylvania-partisan-gerrymandering-experts/.

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] Lapowsky, supra note 5.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See Levine, supra note 3.

Image Source: https://whowhatwhy.org/2016/10/29/gerrymandering-source-wrong-us-politics/.

The Unimaginably Silly Resistance to Inseams in Women’s Clothing: The Battle for Pants in the Courtroom

By: Spencer Allen,

What makes a piece of clothing proper? As a historian, tailor, and now a law student, this is a question I’ve spent some time considering. In its most pure, clothing is technology. Though simpler than a computer or artificial intelligence, clothing is perhaps the most fundamental way human societies use tools to manipulate the natural environment and change the way we live. As the human species developed society and civilization the things we wore shifted from a matter of pure survival to a matter of technological communication. The things we wear, like the way we speak or the way we walk, is a rough compromise between the individual and society. More than pure individual expression, clothing is communication, and communication needs an interpretive audience. Just like the artist, the wearer of clothes is not fully in charge of what his clothes mean—and any choice of clothing will be given meaning through the analysis of the society. Simply put, clothing is not just a matter of individual preference. All clothing is on some level technological communication—using tools and materials to interact with the world and to shape day to day life. Just as a speaker must rely on society to interpret language, the wearer must rely on society to interpret communication via clothing.

When a person enters the public space, their clothing becomes a uniform—a symbol of who they are and what they are about. My father’s uniform is a heavy blue cotton long sleeve shirt. He has worn it for thirty years at the Toyota factory in Georgetown, Kentucky. For a time, my uniform was the woolen coatee with 3 rows of custom cast buttons, tails, and black and gold piping that I wore as a cadet at the Virginia Military Institute when I marched in the inauguration of the President. As a law student, my new uniform is the business suit. Though the general popularity of suits has declined in recent years, the garment remains the basic uniform of the legal profession—and a symbol to society of the legal profession. That uniform is a powerful symbol. So much so that the word “suit” itself is now strongly enough identified with lawyers to be the title of a television show about lawyers.[1]

The suit’s connection to law is not one forged by personal expression. Instead, the suit has been, for many hundreds of years (at least in the west), intimately connected to those whose work, like lawyers, is building, leading, and maintaining the mechanisms of society.

It is truly astounding in this age of un-hemmed pants, ballooning shirts, and wrinkled jackets with glued interfacing, that women wearing pantsuits is still a “big deal” in the legal profession.[2] In fact, it was not until 1993 that women were allowed to wear pants on the Senate floor.[3] Defying logic, in the era of the “power suit,” women in pants was somehow the sartorial problem.[4]

While the trouser-resistance seems to have crumbled significantly since the 1980’s, women in the profession, including women at Richmond Law, report that there is an unwritten rule in certain courts and offices that women should not wear trousers.[5] Though perhaps not the feeling of the majority, the sentiment exists firmly enough that the Career Development Office at the University of Richmond School of Law counsels 1L women to always wear a skirt to legal interviews.[6]

Now I’m no Jacobin, and I whole heartedly endorse formal and traditional etiquette in the legal profession—but there is absolutely no sartorial, historical, or practical reason to oppose trousers for all. Resistance to lawyers in trousers is purely and simply an insult to the dignity of women in the legal profession. Its time to move on.

I. What are pants?

The rise of pants coincided with the rise of ancient equestrian societies.[7] The relatively complex bit of tailoring technology offered a comfortable buffer between the horse and rider.[8] Pants in ancient times were a symbol of a person who rode a horse—a person of status, a warrior, or leader.[9] The horse rider is the cowboy, the knight, the cabillero, the person who is in control, the person who has authority. In contemporary society, the phrase “he/she wears the pants in the family,” seems to acknowledge the power of the pants-wearer beyond just gender.[10] The pants wearer is the bread winner. The person in control. The person who participates outside the domestic sphere, and thus controls domestic life.

Famously, the ancient Greeks were not a pants wearing people.[11] Even so, pants were a powerful symbol in ancient Greece.[12] In the below vase from circa 470 BC, the patriarchal Greeks represent the matriarchal Amazon warrior wearing pants.[13] The pants are a symbol of the woman’s independence, of her status as a warrior and a leader separate from toga-clad and exclusively male Greek society.[14]

As male-dominated equestrian societies began to become more prevalent, the pants-wearer (and thus the warrior/leader) became exclusively male.[15] Although robes were still popular among aristocratic men, the end of the Roman Empire basically saw the end of pants-free societies, and, speaking generally, the norm in Europe became trousers for men and skirts for women.[16]

The birth of the modern suit—and in a sense modern suit sensibility—came in 1666.[17] As a part of the restoration of the English monarchy, parliament sought to bring back the heir to the throne, Charles II.[18] There was some resistance to the idea of installing a monarch—largely due to a fear of monarchial opulence and excess.[19] During his exile, Charles II spent considerable time in France with the uniquely opulent Louis XIV, the “sun king” (the one who built Versailles).[20]

Many of the English feared Charles II would bring French opulence back to England, and so Charles tapped the breaks on over the top courtly clothes.[21] Instead of the lacey, brightly colored silk suits of the French ruling class, Charles II adopted a plainer look.[22] On October 7, 1666, Charles declared that English court dress would consist of an English wool, knee-length coat and a long waistcoat.[23] The emphasis in this new uniform was “on cloth and cut, not ruffles and accessories.”[24]

In this way Charles II brought the ruling class a bit closer to the people. Dressing not as a “sun king” but as “an ordinary bloke.”[25]

Suits and trousers, progressed through the years until the turn of the 19th century, when the stylish Edward VII popularized modern-styled trousers.[26]

Figure 1: 1066, the Normans can be seen wearing trousers in the Bayeux Tapestry. Supra note 6.

Figure 2: This Greek vase from c. 470 BCE depicts an Amazon woman wearing trousers–maybe even a suit. Does her arming coat match her trousers? Supra note 6.

Figure 3: Edward VII displaying the modern trousers he helped to popularize. Supra note 6.

Figure 4: Louis XIV wearing so much silk he actually needs a small table to hold his cloak. Even the globe in the bottom left corner gets a silk cloak… http://www.voltaire.ox.ac.uk/about-voltaire/explore-world-louis-xiv.

Figure 5: 1675 Charles II reeling it in on the silk (and being presented with the first royal pineapple). http://www.newworldencyclopedia.org/entry/Charles_II_of_England.

II. Women in pants, gasp.

Pants for women began, ironically, with the horse.[27] With the advent of automobiles in the early 20th century, horse riding became more a matter of sport and leisure than of practicality.[28] As with all things impractical and expensive, equestrian sports increasingly became a symbol of wealth and status.[29] Before the 19th century, women in European society rode side saddle, and in skirts.[30] As women became more involved in equestrian sport, they began to ride astride—thus requiring an inseam to separate the rider from the horse.[31]

As cultural norms shifted to allow women more access to physical activity, trousers became a new and important symbol for women who lived more active and not exclusively domestic lives.[32] Just as with men, women’s trousers represented that the wearer was the doer of certain tasks, and that the wearer had an increased independence and control.[33]

One of the first women’s suits came in 1910, when the American Ladies Tailors’ Association created the “suffragette suit,” a blouse, jacket, and ankle length skirt.[34] This served as the precursor to the modern skirt-suit.[35] As women gained ground in the working world, women’s suits became more and more common.[36] Trousers with suits, however, remained for men.[37]

As women gained more power in the political sphere, the skirt-suit, and later the pantsuit, became the uniform.[38]  After a rebellion led by several female members of Congress, the Senate finally allowed women to wear pants in 1993.[39] Margaret King, stylist to renowned suit wearer Margaret Thatcher, remarked in 1987 that the prime minister wore suits so much because “she was in a man’s world, and had to look the part.”[40]

In some sense the word “pantsuit” itself highlights the strange state of women’s suits. Strictly speaking, a pantsuit is just a suit. It is the skirt-suit that is the different garment. In the 2008 presidential election, the pantsuit took center stage when Hillary Clinton referred to her followers as “the sisterhood of the travelling pantsuit.”[41] Perhaps the greatest modern champion of the pantsuit, secretary Clinton has lauded the garment as a uniform that makes her feel professional, and a “visual cue that she was different from men but also familiar.”[42]

More than a symbol, though, Secretary Clinton also praised the pantsuit as useful in avoiding the assault of having photographs taken up her skirt as she was on stage or climbing stairs—both of which happened to her while she was first lady.[43]

Figure 6: Two representative examples of the “suffragette suit.”

III. Court dress: what does it mean, why does it matter?

It may be an old-fashioned sentiment, but what lawyers wear to court matters. For many thousands of years, human societies have used clothing to highlight what is important and what is sacred.[44] The uniform of the profession is more than personal expression, it is an elevation of the idea of law and society. Like incense in a church, or a mansion for the president, the clothes that lawyers wear summon the transcendental. They proclaim that what lawyers do, what people do, matters. Suits and trousers in court boldly assert that the work of society today taps into and flows from the lives of humanity through history, and the tradition of civilization.

For at least 100,000 years clothing and jewelry have held significance in human societies.[45] While often diminished as “individual expression” in this, the age of the selfie, adornment and decoration of the body is perhaps the most ancient and pervasive medium for human communication about who we are, what we do, and what we are worth.[46] Indeed, corporal adornment may be older than language.[47]

Refusing women’s right to wear pants in the courtroom is not an inconvenience. It is not a silly rule to be laughed at and ignored. It is a denial of women’s right to participate in the work of society. Wearing trousers in court means something beyond personal expression. It symbolizes a tradition and a history of society and law that women have a right to be a part of. The inseam represents the warrior, the leader, the king, the cowboy, the cabillero.[48] It denotes those who perform the work of creating and sustaining civilization. Pants have never been about gender, but about power.

Hillary Clinton once remarked that the pantsuit was an “anti-distraction technique” and that “[if] there wasn’t much to say or report on what I wore, maybe people would focus on what I was saying instead.”[49]

There is no historical or sartorial reason for women to be scoffed at for wearing trousers in court (and I can’t believe I have to say that). For God’s sake, the Queen wore trousers on a royal tour of Canada nearly fifty years ago.[50] Clearly, access to pants will not change much about circumstances or society. Pants have not and will not lead to any sort of measurable change. But symbols, like art, bear the ineffable. Sometimes feeling leads to being—or in the laconic words of SGM Neel, patriarch of the VMI barracks, “dress like a soldier, feel like a soldier.”

The sort of silly sounding truth is that for a very long time pants have been the uniform of lawyers and leaders. Not because they were men, but because they jumped on the horse and took command. Try jumping on a horse in a skirt. The statement may sound silly, but opposition to such a thing is anything but trivial Absent any compelling reason, there is only one reason left for opposition to inseams—that those opposed to trousers fear women may have something to say, and that others may listen.

Figure 7: https://www.popsugar.com/news/Girl-Pantsuit-Meets-Hillary-Clinton-Book-Signing-44090750.

 

[1] Suits, USA Network (Mar. 19, 2018 12:26 PM), http://www.usanetwork.com/suits.

[2] Ann Farmer, Order in the Closet: Why Attire for Women Lawyers Is Still an Issue, 19 Perspectives 4, 6-7 (Fall 2010), https://www.americanbar.org/content/dam/aba/publishing/perspectives_magazine/2010_fall_order_in_closet.authcheckdam.pdf; Katie J.M. Baker, Forget the Glass Ceiling, We Have Hemlines to Consider, Jezebel (Mar. 16, 2018, 7:12 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider; Gina Rubel, Women lawyers wearing pants: part II, Avvo (Mar. 16, 2018, 7:18 PM), https://jezebel.com/5916586/forget-the-glass-ceiling-we-have-hemlines-to-consider.

[3] Megan Garber, Why the Pantsuit? For Hillary Clinton and Many of Her Fellow Women Politicians, a Single Outfit Represents an Uneasy Compromise between Gender and Oower, Atlantic, (Mar. 16, 2018, 6:05 PM), https://www.theatlantic.com/entertainment/archive/2016/08/youre-fashionable-enough-hillary/493877/.

[4] Id.

[5] Id.; informal interview with Jane Baber, president of Richmond Women’s Law.

[6] See generally Career Development Office, General Interviewing Tips, Richmond Law (Mar. 16, 2018, 6:11 PM), https://law.richmond.edu/docs/cdo/interview-guide.pdf (advising women to always wear panty hose to an interview).

[7] A Brief History of Trousers, King and Allen Bespoke Tailoring, (Mar. 16, 2018, 6:15 PM), https://kingandallen.co.uk/a-brief-history-of-trousers/.

[8] Id.

[9] Id.

[10] Wear the Pants, The Free Dictionary by Farlex, (Mar. 16, 2018, 6:22 PM), https://idioms.thefreedictionary.com/wear+the+pants.

[11] Supra note 6.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Supra note 6.

[17] How Charles II Invented the Three-Piece Suit, Permanent Style (Mar. 16, 2018, 6:27 PM), https://www.permanentstyle.com/2009/04/how-charles-ii-invented-the-three-piece-suit.html.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Supra note 17.

[23] Id.

[24] Id.

[25] Id.

[26] Supra note 6.

[27] Ane Bjølgerud Hansen, Horses, fashion & history, Equilife (Mar. 16, 2018, 6:41 PM), http://www.equilifeworld.com/lifestyle/horses-fashion-history/.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Hansen, supra note 27.

[33] Id.

[34] Kate Sullivan, The Fascinating History of Women Wearing Suits, allure (Mar. 16, 2018, 6:50 PM), https://www.allure.com/story/women-suits-history.

[35] Id.

[36] Farmer, supra note 2.

[37] Supra note 6.

[38] Farmer, supra note 2.

[39] Id.

[40] Hansen, supra note 27.

[41] Farmer, supra note 2.

[42] Id.

[43] Id.

[44] Nancy Hynes, Oldest Known Jewelry Discovered: Beads Made from Shells Represent Earliest Personal Adornment, Nature (Mar. 16, 2018, 7:01 PM), https://www.nature.com/news/2006/060619/full/news060619-10.html.

[45] Id.

[46] Id.

[47] Id.; Vyv Evans, How Old is Language? On time Machines, Talking Neanderthals, and the Long(ish) Past of Language, Psychology Today (Mar. 16, 2018, 7:06 PM), https://www.psychologytoday.com/blog/language-in-the-mind/201502/how-old-is-language.

[48] Supra note 6.

[49] Farmer, supra note 2.

[50] The Queen’s Wardropedia; 2 Inch Heels, 200 Handbags and Why She’s Only Worn Trousers Once, Telegraph (Mar. 16, 2018, 7:34 PM), https://www.telegraph.co.uk/fashion/people/shes-only-worn-trousers-publicly-once-and-other-fashion-facts-to/.

Image Source: https://weeklysilence.wordpress.com/2011/12/09/research-paper-pants-phenomenon-the-switch-from-skirts-to-trousers/.

John Henry, the Steam Drill, and the Increasing Demands of Rule 26(g)

By: Kate Bauer,

John Henry, well, he told his captain /

“Captain, a man, he ain’t nothing but a man /

Before I let your steam drill /

beat me down /

I’m gonna die with a hammer /

in my hand, Lord, Lord /

I’ll die with a hammer in my hand”[1]

 

John Henry cut through a mountain, exerting extraordinary effort to beat the steam drill.  The price was steep, costing Henry his life.[2]  Today new technologies providing reliable, cost-effective alternatives to routine human tasks seem to crop up daily.  Innovators wield data to justify adopting the new technology; once adopted, technology’s capabilities eventually become the standard against which human efforts are measured.  Even superb workers struggle to compete with machines that do not eat, do not sleep, and do not tire.

John Henry’s story is currently playing out in the eDiscovery field.  When identifying responsive documents for production, responding parties have a duty under Rule 26(g) to make a reasonable inquiry.[3]  Requirements for a reasonable inquiry have been evolving in recent years.  In the past, having humans manually review the documents was assumed to be accurate, with courts deferring to an attorney’s professional judgment that he had made a reasonable inquiry unless the requesting party could show a deficiency.[4]  The increasing use of technology-assisted review (TAR)—computer algorithms that analyze relevance decisions humans make on a small set of documents, and then extrapolate those decisions to the document collection[5]—has led to an increased emphasis on statistically validating the quality of the production set up front.[6]  These validation requirements were initially intended to objectively verify the accuracy of TAR algorithms, ensuring their results constituted a reasonable inquiry.[7]  Now, at least one court has proposed requiring statistical validation of manual review as well, with threshold recommendations for what values constitute a “high-quality” review.[8]  While research indicates that TAR can probably meet these requirements with ease, the accuracy demands will likely tax the capabilities of human reviewers.

Humans, meet the steam drill.  Good luck keeping up.

 Reasonable Inquiry: Historically, a Deferential Standard

The Rules require an attorney to conduct a reasonable inquiry when putting together a production set.[9] A reasonable production must be substantially complete, as “[a]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[10]  To determine whether an inquiry is reasonable, the court looks to the totality of the circumstances.[11]  The most common remedy for an inadequate production is a motion to compel, with sanctions generally reserved for when an attorney has failed to discover the obvious,[12] when a party fails to timely disclose relevant information,[13] or when a party obstructs access to relevant information.[14]  Absent a showing of deficiency by the requesting party, courts treated a responding party’s assertion of reasonableness deferentially.[15]

To meet the “reasonable inquiry” requirement, it was standard to hire armies of review attorneys to examine potentially relevant documents for privilege and production.[16]  Although utilizing massive review teams was generally considered reasonable if the team was adequately staffed and trained,[17] the exhaustive review approach became increasingly unsustainable from a cost perspective as document volumes continued to grow.

TAR: Reasonable Inquiry Requires Verification

At the turn of the 21st century, document discovery was an area ripe for innovation.  The document review process was painfully expensive: a 1998 study of federal cases found that discovery amounted to at least half of all litigation expenses, and discovery represented 90% of total litigation costs in the most expensive cases.[18]  By 2014, most Fortune 1000 corporations were spending between $5 million and $10 million annually on eDiscovery costs, with seventy percent of those costs spent on document review.[19]  Several companies reported spending as much as $30 million on eDiscovery.[20]

Innovators developed technology-assisted review to address the increasing data volume.  These computer algorithms promised to drastically reduce the time and cost of document discovery by “learning” from attorney decisions regarding relevance for a subset of documents, then applying the same designations to similar documents in the review set.[21]  Attorneys initially regarded these machine-learning claims with skepticism, so TAR advocates plied statistics to make the case that TAR was at least as accurate as exhaustive human review, and possibly more so.[22]  On top of its documented accuracy, on average TAR saved parties 45% of the costs of a traditional document review.[23]  Like the steam drill operators of old, small teams of specialists using TAR could replace the armies of human reviewers laying eyes on every document.[24]

Today TAR advocates have largely succeeded: numerous courts have embraced TAR usage, albeit usually with caveats.[25]  In contrast to the historical deference to human judgment, when TAR was first adopted courts had concerns about its accuracy.  Though academic studies had demonstrated impressive results for certain TAR solutions, the wide variety of solutions purporting to be TAR created fears about the “black box” of the technology.[26]  That one TAR solution worked did not mean a different one would.  Courts were therefore interested in objective statistical measurements such as precision and recall[27] that would help them in determining whether the TAR process had worked (i.e. whether it was reasonable).[28]  Statistical validation allows parties to determine whether TAR is making good predictions or bad ones without verifying TAR’s predictions for every document in the document set.[29]

To ensure TAR was reasonable, courts encouraged parties to be more transparent with TAR productions.[30]  Rather than accepting an attorney’s representation that he had conducted a reasonable inquiry, courts advocated (and at times required) that parties disclose unprecedented access detailing exactly how accurate their review had been.[31]  This approach, though understandable, broke with the deferential approach courts had historically taken to manual review.

Reevaluating Reasonable Inquiry: From Deference to Verification for Manual Review

The same statistics that supported TAR’s superiority also exposed an uncomfortable truth: exhaustive human review is not the “gold standard” it had previously been assumed to be.[32]  In fact, research shows that manual human review is fraught with inconsistency: information retrieval professionals disagree about whether a document is relevant at least as often as they agree.[33]  Attorneys fare even worse: in one study, attorneys agreed on relevance, at best, a mere 28.1% of the time.[34]  Alternative methods to reduce document volume such as using search terms, or “keywords,” also have significant shortcomings.[35]

Nevertheless, before TAR’s emphasis on statistical validation, little effort was expended to measure the accuracy of attorney coding decisions.[36]  Absent a showing to the contrary, courts accepted an attorney’s professional judgment that a review was complete,[37] which was embodied in the Rule 26(g) certification.[38]  A requesting party who disagreed had the burden of showing that the responding party’s production was inadequate before a motion to compel would be granted.[39]

The widespread usage of statistics to validate machine predictions has caused some to suggest applying a similar approach to manual review.  As TAR became more mainstream, so too did awareness about the statistical metrics necessary to evaluate its performance.[40]  The Rule 26(g) reasonableness inquiry is an objective one: what could be more objective than statistical validation?[41]

Special Master Maura Grossman recently ordered parties to apply statistical validation to manual review in In Re Broiler Chicken Antitrust Litigation, a class action currently pending in the Northern District of Illinois.[42]  Anticipating document-intensive discovery, Magistrate Judge Jeffrey Gilbert brought in Grossman, a well-known TAR expert, to arbitrate eDiscovery disputes.[43]  On January 3, 2018, Grossman issued a comprehensive Order governing processing, search methods, and validation.[44]  The Order observes that “[t]he review process should incorporate quality-control and quality-assurance procedures to ensure a reasonable production consistent with the requirements of Federal Rule of Civil Procedure 26(g).”[45]  Uniquely, the Order requires parties to use a Subject Matter Expert (SME) to calculate recall regardless of whether the parties use manual review or TAR.[46]  While recognizing that recall alone is not dispositive, the Order states that “a recall estimate on the order of 70% to 80% is consistent with, but not the sole indicator of, an adequate (i.e., high-quality) review.”[47]

The Broiler Chicken validation provisions weigh heavily in favor of choosing TAR over manual review.  Research shows that manual review tends to produce a wide range of recall values.[48]  For example, in their influential 2011 JOLT study Maura Grossman and Gordon Cormack compared the results of a TAR methodology against a manual review for five different review topics.[49]  While the TAR algorithms averaged a recall of 78.7% across all five categories (ranging from 67.3% to 86.5%), the human reviewers finished with an average recall of 59.3% (ranging from 25.2% to 79.9%).[50]  Similarly, in another study, researchers found that the recall of manual review ranged from 52.8% to 83.6%.[51]  Contrasting the wide range of manual review recall values with the tight band of TAR recall values supports the conclusion that manual review runs a greater risk of failing the Broiler Chicken recall validation protocol.

In addition to the increased risk of failing the Broiler Chicken validation protocol, manual human review involves a costly level of effort. While Rule 1 asserts that the Rules “should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding,”[52] purely human efforts generally involve greater time and expense than TAR.[53]  As shown by the JOLT study, the increased time and expense of human review is unlikely to translate into greater accuracy than TAR provides.[54]

Electing human review over TAR will usually run afoul of Rule 1’s objectives to increase the speedy determination of actions while reducing costs and preserving justice.[55]  Most obviously, manual review takes longer and incurs higher costs that TAR.[56]  Manual review is usually billed at a per-reviewer hourly rate, or on a per-document basis across the entire corpus of potentially relevant documents.[57]  TAR, by contrast, only requires human review of a small subset of documents, with the technology eliminating the need to manually review large portions of the document set.[58]  Additionally, when more reviewers are used, there is a greater chance that their interpretations of relevance will vary, increasing the risk of low recall.[59]  In contrast, a small number of SMEs using TAR to extrapolate their judgments will likely have a more consistent view of relevance than dozens of reviewers.[60]  Lastly, if the recall of the manual review is not at an acceptable level, the existing coding must be manually reevaluated on a document-by-document basis—a laborious and costly process.  However, correcting a TAR algorithm’s incorrect predictions is simple: just change the coding designation on the document the algorithm used to make its prediction.  Within hours (if not minutes) the algorithm will adjust its predictions for all related documents in the document set.  Not even the John Henrys of the document review world can compete with such speed.

Broiler Chicken: A Pecking Order for the Future?

Does Broiler Chicken portend a shift in how courts will assess the Rule 26(g) reasonable inquiry going forward?  Though the Order permits parties to choose either manual review or TAR, there is little doubt that the validation protocol favors TAR usage.  Academic studies and in-the-field usage have established that using TAR is less expensive and faster than manual review, while being at least as accurate (if not more so).[61]  A party who chooses manual review risks (1) falling short of the accuracy mark after incurring substantial time and expense, and (2) having to reevaluate its coding decisions one-by-one.

TAR has not yet entirely surpassed human capabilities, but that time may be coming.  In the Grossman and Cormack JOLT study, on one topic the humans did outperform the algorithm.[62]  Though less than 1% separated man from machine,[63] this slim win for human accuracy shows that traditional methods are not yet obsolete.  For now, courts generally accept that “[r]esponding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.”[64]  Still, the time may be coming when “it might be unreasonable for a party to decline to use TAR.”[65]  After all, John Henrys are rare, but the technology to rival him is cheap, fast, and readily available.

 

[1] Bruce Springsteen with the Seeger Sessions Band, BBC Four Sessions (2008) (covering Pete Seeger’s song “John Henry”), https://www.youtube.com/watch?v=U3eutnpTr3E.

[2] For an alternative theory, see William Grimes, Taking Swings at a Myth, With John Henry the Man, N.Y. Times (Oct. 18, 2006) (“A smoothly coordinated human team had an advantage over the early drills, which constantly broke down.  The machines were highly efficient, however, at generating clouds of silicon dust. Contrary to the picture presented by the ballads, John Henry would have died not of exhaustion or a burst heart, but of silicosis, a fatal, fast-moving lung disease that took the lives of hundreds of railroad workers.”).

[3] Fed. R. Civ. P. 26(g).

[4] See Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM), https://web.archive.org/web/20150405030235/http://orcatec.com/2014/11/04/the-pendulum-swings-practical-measurement-in-ediscovery/ (“We have gone from assessing eDiscovery on the basis of an attorney’s opinion: ‘I’m a professional and I conducted a professional enquiry,’ to . . . a perceived need to ‘prov[e] that we have obtained a certain level of recall.’”); see also Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427–28 (D.N.J. 2009); The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 52 (2018) (“The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.”).

[5] Maura R. Grossman & Gordon V. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 32 (2013) (Technology-assisted review is a “process for Prioritizing or Coding a Collection of Documents using a computerized system that harnesses human judgments of one or more Subject Matter Expert(s) on a smaller set of Documents and then extrapolates those judgments to the remaining Document Collection.”).

[6] See Roitblat, supra at note 4.

[7] See Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182, 192 (S.D.N.Y. 2012) (“[I]t is unlikely that courts will be able to determine or approve a party’s proposal as to when review and production can stop until the computer-assisted review software has been trained and the results are quality control verified. Only at that point can the parties and the Court see where there is a clear drop off from highly relevant to marginally relevant to not likely to be relevant documents.”).

[8] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *50–51 (N.D. Ill. Jan. 3, 2018).

[9] Fed. R. Civ. P. 26(g).

[10] See Fed. R. Civ. P. 37(a)(4).

[11] Fed. R. Civ. P. 26 advisory committee notes to the 1983 amendments.

[12] R & R Sails Inc. v. Ins. Co. of Penn., 251 F.R.D. 520, 525 (S.D. Cal. 2008).

[13] Gucci America, Inc. v. Costco Wholesale, No. 02 Civ. 3190 (DAB) (RLE), 2003 WL 21018832 at *2 (S.D.N.Y. May 6, 2003).

[14] St. Paul Reinsurance Co. v. Commercial Financial Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

[15] See The Sedona Conference, supra note 4, at 52.

[16] See, e.g., Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 at *4 (N.D. Cal. Mar. 11, 2011) (finding that party took reasonable steps to prevent disclosure of privileged documents including providing review attorneys with written instructions and a tutorial for the review); Kandel v. Brother Int’l Corp., 683 F. Supp. 2d 1076, 1085–86 (C.D. Cal. 2010) (finding that party had taken reasonable steps to prevent disclosure of privileged documents by staffing and training a document-review team).

[17] See Datel, 2011 WL 866993 at *4; Kandel, F. Supp. 2d at 1085–86.

[18] Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in A Digital Age, 58 Duke L.J. 889, 892 (2009).

[19] Jennifer Booton, Don’t Send Another Email Until You Read This, MarketWatch (Mar. 9, 2015, 10:10 AM), http://www.marketwatch.com/story/your-work-emails-are-now-worth-millions-of-dollarsto-lawyers-2015-03-06.

[20] Id.

[21] See Grossman & Cormack, supra note 5.

[22] See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 1, 37 (2011) (reporting that manual reviewers identified between 25% and 80% of relevant documents, while technology-assisted review returned between 67% and 86%); see also Herbert L. Roitblat et al., Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, J. of Am. Soc’y for Info.  Sci. & Tech. 70, 79 (2010) (performing an empirical assessment to “answer the question of whether there was a benefit to engaging in a traditional human review or whether computer systems could be relied on to produce comparable results,” and concluding that “[o]n every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of human re-review.”).

[23] eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute 3 (Oct. 21, 2010), https://www.discovia.com/wp-content/uploads/2012/07/2010_EDI_PredictiveCodingSurvey.pdf.

[24] Anne Kershaw & Joseph Howie, Crash or Soar? Will the Legal Community Accept “Predictive Coding?”, L. Tech News, Oct. 2010, http://www.knowledgestrategysolutions.com/wp-content/uploads/LTN_CrashOrSoar_2010_Oct.pdf.

[25] See, e.g., Green v. Am. Modern Home Ins. Co., No. 14–CV–04074, 2014 WL 6668422 at *1 (W.D. Ark. Nov. 24, 2014); Dynamo Holdings Ltd. P’Ship v. Comm’r of Internal Revenue, 143 T.C. 183, 185 (T.C. Sept. 17, 2014); Aurora Coop. Elevator Co. v. Aventine Renewable Energy–Aurora W. LLC, No. 12 Civ. 0230, Dkt. No. 147 (D. Neb. Mar. 10, 2014); Edwards v. Nat’l Milk Producers Fed’n, No. 11 Civ. 4766, Dkt. No. 154: Joint Stip. & Order (N.D. Cal. Apr. 16, 2013); Bridgestone Am., Inc. v. IBM Corp., No. 13–1196, 2014 WL 4923014 (M.D. Tenn. July 22, 2014); Fed. Hous. Fin. Agency v. HSBC N.A. Holdings, Inc., 11 Civ. 6189, 2014 WL 584300 at *3 (S.D.N.Y. Feb. 14, 2014); EORHB, Inc. v. HOA Holdings LLC, No. Civ. A. 7409, 2013 WL 1960621 (Del. Ch. May 6, 2013); In re Actos (Pioglitazone) Prods. Liab. Litig, No. 6:11–MD–2299, 2012 WL 7861249 (W.D. La. July 27, 2012) (Stip. & Case Mgmt. Order); Global Aerospace Inc. v. Landow Aviation LP, No. CL 61040, 2012 WL 1431215 (Va. Cir. Ct. Apr. 23, 2012); Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012).

[26] Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, 25, 29 (“[I]f the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. I may be less interested in the science behind the ‘black box’ of the vendor’s software than in whether it produced responsive documents with reasonably high recall and high precision.”).

[27] To calculate recall, a party must review a mix of relevant and irrelevant documents.  The party then codes the documents for relevance and compares its decisions about relevance against the algorithm’s predictions about relevance.  The more alignment between human reviewer and the algorithm’s predictions, the better the recall. See Grossman & Cormack, supra note 5 at 27 (defining “recall” as “[t]he fraction of Relevant Documents that are identified as Relevant by a search or review effort.”).

[28] Da Silva Moore, 287 F.R.D. at 185 (“The Court explained that ‘where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results,’ since ‘[p]roportionality requires consideration of results as well as costs.’”).

[29] John Tredennick, Ask Catalyst: In TAR, What Is Validation And Why Is It Important?, Catalyst (Sept. 27, 2016), https://catalystsecure.com/blog/2016/09/ask-catalyst-in-tar-what-is-validation-and-why-is-it-important/.

[30] See id.; see also Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 128–29 (S.D.N.Y. 2015); Bridgestone, 2014 U.S. Dist. WL 4923014 at *1 (“[O]penness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.”); Progressive Cas. Ins. Co., 2014 U.S. Dist. WL 3563467 at *11 (declining to allow predictive coding when counsel was “unwilling to engage in the type of cooperation and transparency that . . . is needed for a predictive coding protocol to be accepted by the court . . . .”); Transcript of Record at 9, 14, Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., No. 1:11-cv-06188 (S.D.N.Y. July 24, 2012) (bench decision requiring transparency and cooperation, including giving the plaintiff full access to the seed set’s responsive and non-responsive documents except privileged).

[31] See sources cited supra note 30.

[32] See The Sedona Conference, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 199 (2007) (“[T]here appears to be a myth that manual review by humans of large amounts of information is as accurate and complete as possible– perhaps even perfect–and constitutes the gold standard by which all searches should be measured.”).

[33] Ellen M. Voorhees, Variations in Relevance Judgments and the Measurement of Retrieval Effectiveness, 36 Info. Processing & Mgmt. 697, 701 (2000) (concluding that assessors disagree that a document is relevant at least as often as they agree).

[34] Roitblat et al., supra note 22, at 74.

[35] David C. Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document-Retrieval System, 28 Commc’ns Ass’n Computing Mach. 289, 295–96 (1985) (finding that paralegals who thought they had retrieved 75% of relevant documents using iterative keyword searches had only found 20%).

[36] Roitblat, supra note 4.

[38] See sources cited supra note 4.

[39] See sources cited supra note 4.

[40] See John Tredennick, Measuring Recall in E-Discovery Review, Part Two: No Easy Answers, Catalyst (Dec. 5, 2014), https://catalystsecure.com/blog/2014/12/measuring-recall-in-e-discovery-review-part-two-no-easy-answers/; Ralph Losey, Visualizing Data in a Predictive Coding Project, e-Discovery Team (Nov. 9, 2014, 8:10 PM), https://e-discoveryteam.com/2014/11/09/visualizing-data-in-a-predictive-coding-project/; Herbert L. Roitblat, The Pendulum Swings: Practical Measurement in eDiscovery, OrcaBlog (Nov. 4, 2014, 3:57 PM), https://web.archive.org/web/20150405030235/http://orcatec.com/2014/11/04/the-pendulum-swings-practical-measurement-in-ediscovery/; John Tredennick, Measuring Recall in E-Discovery Review, Part One: A Tougher Problem Than You Might Realize, Catalyst (Oct. 15, 2014), https://catalystsecure.com/blog/2014/10/measuring-recall-in-e-discovery-review-a-tougher-problem-than-you-might-realize-part-1/.

[41] Too bad for the people who became lawyers because they were told there would be no math.

[42] In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 (N.D. Ill. Jan. 3, 2018).

[43] Michele C. S. Lange, TAR Protocol Rules the Roost: In Re Broiler Chicken, The ACEDS eDiscovery Voice (Feb. 8, 2018), http://www.aceds.org/blogpost/1653535/294460/TAR-Protocol-Rules-the-Roost-In-Re-Broiler-Chicken.

[44] Broiler Chicken, No. 1:16-cv-08637, 2018 U.S. Dist. LEXIS 33140 at *45, *47 (N.D. Ill. Jan. 3, 2018).

[45] Id. at *45.

[46] Id. at *45, *47.

[47] Id. at *50–51.

[48] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[49] Grossman & Cormack, supra note 22 at 37.

[50] Id.

[51] Roitblat et al., supra note 22, at 79.

[52] Fed. R. Civ. P. 1.

[53] See eDiscovery Institute Survey on Predictive Coding, eDiscovery Institute, ii, 3 (Oct. 21, 2010), https://www.discovia.com/wp-content/uploads/2012/07/2010_EDI_PredictiveCodingSurvey.pdf.

[54] See Grossman & Cormack, supra note 22 at 37; Roitblat et al., supra note 22 at 79.

[55] See Fed. R. Civ. P. 1.

[56] See eDiscovery Institute, supra note 53.

[57] See, e.g., Patrick Oot et. al., Mandating Reasonableness in A Reasonable Inquiry, 87 Denv. U. L. Rev. 533, 548 (2010) (“[To review 1.6 million documents] [i]t took the attorneys four months, working sixteen hours per day seven days per week, for a total cost of $13,598,872.61 or about $8.50 per document.”).

[58] See Grossman & Cormack, supra note 5.

[59] See Roitblat et al., supra note 22, at 74.

[60] See Voorhees, supra note 33.

[61] See Grossman & Cormack, supra note 22, at 37; Roitblat et al., supra note 22, at 79.

[62] Grossman & Cormack, supra note 22, at 37.

[63] Id.

[64] See, e.g., Hyles v. New York City, No. 10CIV3119ATAJP, 2016 WL 4077114 at *3 (S.D.N.Y. Aug. 1, 2016); Kleen Prod. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465 at *5 (N.D. Ill. Sept. 28, 2012); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009); see also The Sedona Conference, supra note 4, at 52.

[65] Hyles, 2016 WL 4077114 at *3.

Image Source: https://www.nrm.org/2016/06/john-henry-2009/.

Digital Accessibility for Disability

By: Eli Hill,

Under the Americans with Disabilities Act (“ADA”), private entities, including businesses and nonprofits, must provide individuals with disabilities equal access to the services they offer.[1]  When a private entity uses a space for a public gathering with the purpose of education, sales, recreation, or presentation, that service is considered a public accommodation.[2]  Since the dawn of the digital age, the courts have continued to grapple with whether website operations should be classified as a “public accommodation”.[3]

The  courts have been hesitant to classify any business operation within cyberspace as a public accommodation.[4]  At the time the ADA was enacted in 1990, society was not as reliant on the Internet as today.[5]  Listed examples of public accommodations in the policy itself only include services that are offered within “brick and mortar” buildings.[6]  As businesses extended their brands and marketing online, disability advocates pressed the courts to reconcile this shift against the ADA language and intentions.[7]

To date, business websites are still not counted as a public accommodation on its own.[8] However, the courts have found that websites which offer information on physical store locations are a beneficial support for the public accommodation provided in-store.[9]  Expanding this idea further, the courts are exploring the idea of websites as gateways to actual business interactions.[10]   The intangible barriers are earning attention alongside the tangible ones and so committees are again pushing for a more progressive analysis of the ADA.[11]

As the construction of websites grossly outpaces physical space constructions, the obstructions in access to the digital portals require equal attention.[12]  More and more companies continue to abandon the physical storefront model of operation and build their corporate strategies around purely web-based models. [13]  Accordingly, a dynamic interpretation of the ADA against an equally dynamic digital sphere will remain a necessary platform of judicial review.[14]

 

[1] 28 C.F.R. § 35. 104, 35.160 Lexis (Feb. 2, 2018)

[2] See U.S. Dept. of Justice: Civil Rights Div., Title III Technical Assistance Manual III-1 (2000), https://www.ada.gov/taman3.html.

[3] See Joseph L. Friedman & Gary C. Norman, The Norman/Friedman Principle: Equal Rights to Information and Technology Access, 18 Tex. J. on c.l. & c.r. 47, 48-9 (Fall 2012).

[4] Id. at 47.

[5] See id.

[6] See 42 U.S.C.S. § 12181 Lexis (Feb. 26, 2018) (listing out examples of public accommodations).

[7] See, Rendon v. Valleycrest Prods., 294 F.3d 1279, 1283 (11th Cir. 2002).

[8] See e.g., Gomez v. Bang & Olufsen Am., Inc., No. 1:16-cv-23801 LEXIS, 15457 (S.D. Fla. Feb. 2, 2017).

[9] See Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006); see also Earll v. Ebay, Inc., 599 F. App’x 695 (9th Cir. 2015) (finding that there must be a connection between the good and service offered by a public accommodation and an actual physical space).

[10] See generally Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) (comparing “brick and mortar” walls and websites as offering boundaries from which customers operate within).

[11] See Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (referencing the need to address website accessibility).

[12] See Bradley Allan Arehart & Michael Ashley Stein, Integrating the Internet, 83 Geo. Wash. L. Rev. 449, 454 (Feb, 2015).

[13] See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (finding by jury trial for the first time the need to recognize websites as a nexus to the business operation).

[14] See id.

Image Source: https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/website-accessibility-disabilities-regulations-doj.aspx.

Are FBI Anti-Piracy Warnings More Bark Than Bite?

By: James DeSantis,

Thanks to its ubiquitous placement at the beginning and end of commercially released films, the criminality of copyright infringement is perhaps the most widely viewed criminal statute in the United States.[1] Despite its prominent place in the American psyche, the very existence of criminal liability for violating copyright laws is of relatively recent origin and one that has only ever been intermittently enforced.[2] It is important to distinguish between civil and criminal liability for copyright infringement. Civil action by one party against another is by far the most common way of protecting copyright infringement; whereas, criminal action for copyright infringement requires enforcement by government agencies and can lead to prison sentences.[3] Criminal liability for copyright abuse follows a consistent pattern of periodically raising fines and penalties while simultaneously lowering the legal thresholds for what types of activities constitute criminal infringement. Despite the increasingly stiffer penalties, expanded prosecutorial powers, and wide public awareness, criminal enforcement for copyright infringement is more honored in the breach than the observance− rarely does a breach result in serious liability.

Under the Constitution’s Copyright Clause, Congress has the power “to promote the Progress of Science and the useful Arts, by securing limited Times to Authors and Inventors the exclusive Right to their respective writings and Discoveries.[4]” The first criminal provision in U.S. copyright law was introduced 1897, which made it a misdemeanor for the “unlawful performances and representations of copyrighted dramatic and musical compositions” as long as the violation had been “willful and for profit.[5]” Until the implementation of criminal penalties for copyright infringement, copyright concerns were entirely a civil rather than a criminal matter.[6] The idea was that copyright violations were of private financial concerns rather then the purview of the criminal justice system, especially considering that many types of copyright infringement can be beneficial to the public.[7]

As the entertainment industry grew and the technology advanced, the financial gains for reproducing another’s successful work became an ever increasing concern and criminal penalties for copyright infringement were greatly expanded in 1909 with amendments to the Copyright Act.[8] The Act expanded the copyright law to include all copyrighted material and added penalties of up to one year in prison.[9] Over the years, Congress periodically raised the statutory punishment for criminal copyright violations. First, in 1948, fines were increased from $1,000 to $10,000 and again in 1976, fines were raised from $10,000 to $25,000.[10] However, it was not until 1982, coinciding with the advent of home video and compact cassettes, that congress made copyright infringement for audio and visual recordings a felony punishable by both a $250,000 fine and five years imprisonment.[11] While criminal punishments exist on paper, criminal charges for copyright infringement are rarely enforced.[12] Of the 3300 published copyright cases between 1948 and 1997, only sixty-eight (two percent) involved criminal charges.[13]

The first major court decision of the then nascent issue of mass online copyright infringement occurred in United States v. LaMacchia, which exposed the legal limitations the government faced in attempting to enforce criminal copyright laws in the digital age.[14] The 1994 ruling dismissed a criminal action against a 21-year-old MIT student who made copyrighted software freely available for download through his electronic bulletin board.[15] Despite causing over $1,000,000 in losses to the software companies, LaMacchia could not be prosecuted under the existing law because it could not be shown that he personally profited from the scheme.[16] In response to the Supreme Court’s ruling in LaMacchia, which became known as the “LaMacchia loophole,” Congress passed the No Electronic Theft Act (NET Act) in 1997, amending the language requiring “commercial gain” to any “receipt, or expectation of receipt, of anything of value.”[17]

Originally heralded as a major legislative victory for the software and entertainment industries, the NET Act has been so rarely enforced by the Department of Justice (DOJ) that is widely seen as a major disappointment.[18] Despite no shortage of potential prosecutions that could be pursued, the NET Act is emblematic of how the mere existence of a law on the books is of little value, if the law is never actually enforced.[19]

Out of frustration with the lack of governmental assistance in combating rampant online piracy, the entertainment and software industries have aggressively lobbied congress to expropriate federal funds to go after online pirates and to allow the DOJ file civil suits against suspected pirates.[20] These lobbying efforts have had limited legislative success, and the chance that an individual in the United States will be criminally accountable for engaging in online piracy is negligible.[21] For all the efforts lobbying the U.S. government to take a more aggressive role in prosecuting online copyright infringers under federal criminal statutes, the most noticeable effect is the use ever more intimidating anti-piracy banners shown before films and on the back of CDs.[22] While Hollywood and the music industry aggressively warn customers of the criminal repercussions for illegally sharing a copyrighted work, in reality, governmental enforcement against online copyright infringement is rare.[23] So rare that the next time you see the FBI’s intimidating warning label you should see it as a public service announcement on behalf of entertainment companies rather than a genuine threat of prosecution from the U.S.’s highest law enforcement agency.

 

[1]http://thefbiwarningscreens.wikia.com/wiki/The_FBI_Warning_Screens_Wiki. (Public interest in FBI Warning screens is so high that they have even developed their own cult following as evidenced by their own Wikia fan page.)

[2] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

[3] 18 U.S. Code § 2319.

[4] U.S. Const. Art. I, § 8, cl. 8.

[5] Act of Jan. 6, 1897, ch. 4, 29 Stat. 481-82.

[6] See 17 U.S.C. §§ 502-505.

[7] Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. Rev. 731, 733 (2003). (Copyright laws have always been a balance between private interests and benefits that accrue to the public).

[8] The Criminalization of Copyright Infringement in the Digital Age, 112 Har. L. R. 7, 1705, 1707 (1999).

[9] The Copyright Act of 1909 § 28.

[11] Piracy and Counterfeiting Amendments Act of 1982, Pub. L. 97-180, 96 Stat. 91

[12] Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 Wm. & Mary L. Rev. 2209 (2003).

[13] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA 527, 529 (1999).

[14] United Sates v. LaMacchia, 871 F. Supp. 535 (D. Mass 1994).

[15] Benj Edwards, The Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic (Nov. 4, 2016) (Bulletin Board Systems (BBS) were a precursor to the modern Internet in which individuals had their own servers that could be accessed remotely. The advent of Internet service providers and dial up modems destroyed the market for BBS in matter of months).

[16] United States v. LaMacchia, 871 F. Supp. at 542.

[17] No Electronic Theft Act (NET Act) Pub. L. 105-147. 111 Stat. 2678 (1997). (Making it a crime to willfully upload copyrighted materials to the Internet regardless of presence or absence of a profit motive).

[18] See Virginia Man Sentenced for Violation of the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet (March 3, 2000); First Criminal Copyright Conviction Under the “No Electronic Theft” (NET) Act for Unlawful Distribution of Software on the Internet, https://www.justice.gov/archive/opa/pr/1999/August/371crm.htm.

[19] Stuart Biegel, Beyond our Control?: Confronting the Limits of our Legal System in the Age of the Internet, The MIT Press, (2013).

[20] See The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (Aptly titled the PIRATE Act, the bill would allow federal prosecutors to file civil lawsuits against suspected copyright infringers and would allocate federal funds specifically for combating online piracy.); see also, Internet Property Enforcement Act of 2007, S.2317; Contra, Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279)

[21] See Kevin Paulson, Guilty Verdict in First Criminal Trial for Online Music Piracy, WIRED, May 23, 2008 https://www.wired.com/2008/05/guilty-verdict/.

[22] https://www.iprcenter.gov/ip-theft/digital-ip-theft.

[23] Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, 39 IDEA: J.L. and Tech. 527, 529 (1999).

Image Source: https://www.hollywoodreporter.com/thr-esq/fbi-anti-piracy-warnings-over-time-pictures-322495.

New Hope for the Environmental Law Enforcement?

By: Daria Ivanova,

The field of environmental conservation has never been the most technologically advanced one, partially because of the lack of funds and partially because of the lack of motivation on behalf of the conservation community.[1] This, generally, old-school community has been attempting to solve main problems by extending protected areas and investing in ecosystem services, such as water purification.[2] However, a younger generation of conservation actors believes that this is not enough to address exponentially growing and ever-changing environmental problems.[3] Alex Dehgan and Paul Bunje perceived this problem in the environmental conservation field and seized the opportunity.[4] They figured that if technology can help solve wildlife extinction, why can’t they use it?[5] In fact, they believe in the power of technology to the extent that they claim that “[w]e’ll need a tribe of hackers, makers, economists, engineers, and entrepreneurs to help a sometimes technophobic conservation community reverse the sixth mass extinction.”[6]

A device Conservation X Labs has been developing is a child of the problem it is being created to eradicate. Conservation X Labs was awarded $159,000 to work on the development of the device which could analyze the origin and the species of timber imports.[7] These funds were obtained from a giant lumber company, Lumber Liquidators, which violated the Lacey Act protecting wildlife and plants from illegal harvesting.[8] The investigation purporting to uncover those illegal activities spanned for several years.[9] The Environmental Investigation Agency agents have been traveling from across the world to China to find out who smuggled Russian timber there.[10] This all could have been prevented if the law enforcement personnel had a device which could identify the type of timber smugglers were attempting to illegally introduce into the market.[11] Now it seems to be closer to reality.

One of the reasons why the scientific community has not used the technology that much was the price. However, nowadays, it is becoming more accessible. For example, in Biodiversity Conservation All. v. United States Forest Serv., 765 F.3d 1264 (10th Cir. 2014), Biodiversity Conservation Alliance contested the United States Forest Service’s decision to change one of Wyoming’s trails. The Forest Service used satellite imagery to identify the number of fens which could be affected by the change and the plant life in fens.[12] Even though the technology in that case did not necessarily work to preserve the environment, the Conservation X Labs’ device promises incredibly beneficial uses.

The Conservative X device looks like a video game joystick, but it is actually a hand-held scanner which is not as expensive as similar modern prototypes.[13] The system behind using the scanner is following. Living cells have a part which the scientists call a “barcode.”[14] The “barcode” is a sequence of DNA located in mitochondria which has 648 base-pair region.[15] The University of Guelph in Ontario contains the Barcode of Life Database which has the mitochondrial DNA of 275,000 species.[16] Using this database, scientists can identify the sequences specific to a certain species, then synthesize it and freeze-dry onto reference chips.[17] The people using the scanner would insert a small piece of a ground-up tissue mixed with a drop of water in a one of two kinds of microfluidic chips.[18] One type of chip would simply say yes or no, whereas the other type could compare to up to several references chips.[19] Introducing this type of device would not only offer the enforcement agencies a way to efficiently prevent numerous violations, but would it also encourage the innovation in the environmental enforcement field. By showing that technology can be both affordable and beneficial for protecting the environment, Conservation X Labs and other similar entities do way more than just creating technological help for the conservation community. It forces a strong culture clash within the whole community.[20]

 

[1] Scott Dance, Concerned Activists, Lawmakers Waiting for Delayed Data on Maryland’s Environmental Law Enforcement, TheBaltimoreSun.com (Oct. 31, 2016 06:42PM), www.baltimoresun.com/features/green/blog/bs-md-environmental-enforcement-20161027-story.html.

[2] Richard Leakey, Conservation Alone ‘Is Not Enough’, BBCNews (Sep. 10, 2007), http://news.bbc.co.uk/2/hi/science/nature/6983914.stm.

[3] Eillie Anzilotti, Bold Conservation Ideas Go from Concept to Reality on This New Collaboration Platform, Fast Company.com (Sep. 20, 2017), https://www.fastcompany.com/40468095/bold-conservation-ideas-go-from-concept-to-reality-on-this-new-collaboration-platform.

[4] Virginia Gewin, A Handheld DNA Scanner Could Crack Down on Wildlife Identity Theft, The Atlantic.com (Feb. 9, 2018), https://www.theatlantic.com/technology/archive/2018/02/conservation-tech/552779.

[5] Julia Luthringer, Who Are Tomorrow’s Leaders in Ocean Conservation?, Huffpost.com: The Blog (Sep. 15, 2016, 03:17PM),  https://www.huffingtonpost.com/conservation-x-labs/who-are-tomorrows-leaders_b_12031010.html.

[6] Gewin, supra note 4.

[7] Id.

[8] Kiken v. Lumber Liquidators Holdings, Inc., 155 F. Supp. 3d 593 (E.D. Va. 2015).

[9] Jani Actman, From Trees to Tigers, Case Shows Cost of Illegal Logging, National Geographic.com (Nov. 10, 2015), https://news.nationalgeographic.com/2015/11/151110-timber-russian-far-east-illegal-logging-siberia.

[10] Id.

[11] Ian Evans, Deeply Talks: Fighting Illegal Fishing With Big Data, Robots and A.I., NewsDeeply.com (Feb.14, 2018), https://www.newsdeeply.com/oceans/articles/2018/02/14/deeply-talks-fighting-illegal-fishing-with-big-data-robots-and-a-i.

[12] Biodiversity Conservation All. v. U. S. Forest Serv., 765 F.3d 1264 (10th Cir. 2014).

[13] Gewin, supra note 4.

[14] Nick Lane, Biodiversity: On the Origin of Bar Codes, Nature.Com (Nov. 18, 2009), www.nature.com/news/2009/091118/full/462272a.html.

[15] Nicola Davis, How DNA Barcodes Can Beat the Wildlife Traffickers, The Guardian (Aug. 16, 2014), https://www.theguardian.com/science/2014/aug/16/biodiversity-determined-by-difference-in-dna-barcode.

[16] Sue Palminteri, Portable DNA Analysis Tool Identifies Species on Site to Help Combat Wildlife Crime, Mongabay (Dec. 6, 2017), https://news.mongabay.com/wildtech/2017/12/portable-dna-analysis.

[17] Gewin, supra note 4.

[18] Id.

[19] Id.

[20] Id.

Image Source: https://www.theatlantic.com/technology/archive/2018/02/conservation-tech/552779/.

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