Month: November 2019

By: Brandon Baker

Baseball: America’s pastime. The sport conjures up images of summer days, sunflower seeds, and wait, gambling? The Supreme Court ruled that the Professional and Amateur Sports Protection Act (PASPA) violates the anticommandeering rule, and thus is unconstitutional.[1] This ruling allows states to decide whether they want to enact sports betting.[2] This new found freedom also puts the pressure on umpires to get calls right. The need for umpires to be flawless is more dire than ever, as many Americans will be using their hard-earned money to bet on these games. Even more so, Major League Baseball could receive harsh criticism than before if blatant calls are missed or called incorrectly. This harsh criticism could cause sports fans to take their money elsewhere.

This is a real issue that Major League Baseball needs to fix. Everyone has heard someone yelling at an umpire for making what the fan deems to be a “bad call”, but how often is the fan right and umpire wrong?  With regards to home plate umpires, at least 20% of the time. [3] One out of every five calls, called incorrectly and possibly changing the outcome of the game.[4] That is way too high of a percentage for errors when emotions and pride are at stake. When gambling gets involved, that number is completely unacceptable.

Clearly this issue has made its way onto Major League Baseball’s desk and they have begun to try to fix it. This past summer, Major League Baseball experimented with an electronic strike zone in an independent league. [5] The technology used is called TrackMan, which is a Doplar radar that analyzes each pitch and is able to accurately adjust the strike zone for each hitter. [6] Once the pitch has been thrown, TrackMan analyzes the data and relays the pitches location to the umpire. [7] This information is transmitted to the home plate umpire in real time by way of an ear piece. [8]

So far, the technology seems to be doing its job well and has been received positively where it has been implemented. [9] That is not to be said that the reaction to this robotic umpire technology has been all positive.  Some view baseball as great the way that it is and that there is no need to change such an integral part of the game. [10] While baseball may be good the way that it is, it is not perfect.

The goal of perfection and 0% errors on calls will be almost impossible, but lowering the amount of errors down from 20% would only be good for the game and it seems that robotic umpires can help.  With states now being allowed to look into sports betting, there is going to be a greater push for umpires to be more accurate. If Major League Baseball fails to tackle this issue head on and sides with the tradition aspect of the game, they may lose out on their slice of the sports betting pie.

 

 

 

 

 

 

 

[1] See Murphy v. Nat’l  Collegiate Athletic Ass’n, 138 S.Ct. 1461, 1478-79 (2018).

[2] See Tyler Lauletta, The Supreme Court has Overturned the Federal ban on Sports Betting — here’s what that means for the Immediate Future of Gambling in America, Bus. Insider (May 14, 2018), https://www.businessinsider.com/supreme-court-sports-betting-decision-what-it-means-2018-5.

[3] See Mark T. Williams, Are Baseball Umpires Wrong as Often as fans Think they are? Yes, one study says, Time (Apr. 8, 2019), https://news.yahoo.com/baseball-umpires-wrong-often-fans-112353048.html.

[4] Id.

[5] See Katherine Acquavella, Robot Umpires: How it works and its Effect on Players and Managers in the Atlantic League, plus what’s to come, CBS (Aug. 27, 2019), https://www.cbssports.com/mlb/news/robot-umpires-how-it-works-and-its-effect-on-players-and-managers-in-the-atlantic-league-plus-whats-to-come/.

[6] Id.

[7] Id.

[8] See Brian Heater, ‘Robot Umpires’ make Independent League Baseball debut, TechCrunch (July 11, 2019), https://techcrunch.com/2019/07/11/robot-umpires-make-independent-league-baseball-debut/.

[9] Supra note 5.

[10] See Frank Bodani, Baseball History made: Inside the debut of Robot Umpires, USA Today (July 11, 2019), https://www.usatoday.com/story/sports/mlb/2019/07/11/mlb-trackman-system-makes-history-calls-balls-and-strikes-pro-game/1702431001/.

 

image source: https://kwhs.wharton.upenn.edu/2011/05/baseball%E2%80%99s-bottom-line-the-money-behind-the-game/

By: Nadeem Bohsali

Music sampling is on the rise. In 2018, twenty percent of songs on the Billboard Top 100 contained music samples.^[1] That same year, sixty-six percent of all albums found on the Billboard Top 50 contained samples, averaging a staggering four samples per album.^[2] Over the past 3 years, this figure remained in the neighborhood of twenty and twenty-five percent.^[3] However, roughly ten years ago, only fourteen percent of songs on the Billboard Top 100  contained samples. With Hip-Hop, Pop, and Electronica representing substantial portions of the Billboard top 100, music sampling is likely to become more ubiquitous over time.^[4]

While music has been circulated, adapted, and transformed by oral tradition for many years, the practice of mechanical sampling only grew popular during the 1980’s, as hip-hop rose to fame.^[5] However, this practice has been used in commercial music since before 1967, when the Beatles introduced All you Need is Love with the beginning instrumental from La Marseillaise (the French National Anthem).^[6] The practice has evolved technologically from the early days when two turntables and a cross fader were the only tools of the trade, allowing for easier, quicker, and more complex samples.

The legal status of music sampling is hotly contested, to say the least. Since Biz Markie sampled Gilbert Sullivan’s instrumental track in “Alone Again (Naturally)”, scholars and judges have evaluated the propriety of the Fair Use defense to copyright infringement and its application to sampling works.^[7] In Bridgeport, the Court specifically declined to apply a de minimis exception to a musical work, instead applying a bright-line zero-tolerance approach to sampling, which has been widely criticized as having a “chilling effect” on hip hop music.^[8]

Critics of Bridgeport characterize the ruling as stifling creativity through an overly strict characterization of the utilitarian framework upon which American intellectual property theory rests.^[9] While a strict prohibition on sampling may have conformed to days past prior to the electronic age, advocates argue that a music sample is the modern day equivalent of a guitar chord–a single unit of expression used to construct a song.

The result of these varying interpretations is a circuit split. In May 2016, the Ninth Circuit explicitly declined to follow Bridgeport, holding that music sampling copyright infringement cases necessitate a substantial similarity infringement analysis, including the application of the de minimis analysis.^[10]

Music sampling, however, may not be as nefarious a form of appropriation as some might suggest. In fact, a recent study exploring the commercial effect of samples on sales of the original work, identified with 99% significance that sales of sampled songs increased after being repurposed within new songs.^[11] They concluded that their findings lend support for a restructuring of the fair use analysis as applied to music sampling.^[12] If music sampling increases the notoriety and revenue of the original artist, then sampling disseminates both works. These findings controvert the zero-sum justification which stipulates that unauthorized use by sampling a copyrighted musical work disincentivizes the creation of subsequent works.  Instead, if music sampling increases popularity of a given work, then repurposing songs in new, transformative works could incentivize the creation and dissemination of music.

Because their findings were very recently published, the Schuster study may prove to be interesting fuel for the next music sampling case that makes its way through the courts. Empirical data could very well foster faith and certainty in the success of the fair use doctrine as applied to music sampling.

 

^[1] 1. See Oskar, State of Sampling, tracklib (Feb. 7, 2019), https://www.tracklib.com/blog/tracklib-presents-state-of-sampling/

^[2] See id.

^[3] See id.

^[4] See The Hot 100, Billboard, https://www.billboard.com/charts/hot-100.

^[5] Add authority.

^[6] All You Need Is Love by The Beatles, WhoSampled, https://www.whosampled.com/The-Beatles/All-You-Need-Is-Love/.

^[7] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005); Erik J. Badia, Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases, 7 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 131 (2017), available at https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1061&context=pipself.

^[8] See Nelson, Hip Hop America (Penguin 2005).

^[9] Supra Note 7.

^[10] See id.

https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1061&context=pipself

^[11] See Schuster et al., Sampling Increases Music Sales: An Empirical Copyright Study, 56 AMER. BUS. L. J. 177 (2019), available at https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12137.

^[12] See id. (“Findings of this nature favor a judicial determination

that sampling constitutes a fair use, even when considering the influence that a new work

has on extant licensing markets for sample clearance.”)

image source: https://producelikeapro.com/blog/5-most-sampled-drum-beats-in-hip-hop/

By: Jacob Newton

The Right to Allocution

 

A defendant’s right to allocution has a long and controversial history. Allocution is a trial judge’s formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed.[1] The right of allocution goes all the way back to 1689, where England courts risked reversal of its sentencing decisions if the judge failed to directly ask defendants if they had anything to say prior to sentencing when the death penalty was a possibility.[2] The original purpose of allocution was to “. . . afford the prisoner an opportunity to move in arrest of judgment pleading specific legal defenses available to him.”[3] Some of these specific were pardon, pregnancy, insanity, misidentification, or benefit of the clergy.[4] If successful, an allocution would result the case being “set aside,” but could later be brought again.[5] At the height of the death penalties popularity in England, allocution played a vital role in the English legal system. The American legal system incorporated the right to allocution, but it did not adopt every aspect of it established in the English legal system.[6] In the United States, the opportunity for allocution was not restricted to just to the context of the death penalty, and provided the right to an abundance of other felonies.[7] The concept of allocution developed differently in federal and state courts over time in the United States.

On the federal level, Rule 32(i)(4)(A)(ii), of the Federal Rules of Criminal Procedure, requires that all defendants be allotted allocution in a federal criminal prosecution.[8] Rule 32 provides, “[b]efore imposing sentencing, the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”[9]

In most state courts, defendants do not have a statutory right to allocution, but they do have a general right allocution.[10] The difference between the general right in most states and the federal statutory right is the requirement for a trial judge to inform the defendant of the right. The difference is best illustrated by the Court of Special Appeals in Maryland, when it directly stated a Maryland state trial judge is not required to inform a defendant of their right to allocution.[11] In general defendants on both levels have a right to allocution, even though there are a few other differences between allocution in state and federal courts.

The effectiveness of allocution is a hot topic of debate, but the discussion of effectiveness is not necessary for this post.

 

Sentencing Algorithms

 

The fact that these algorithms have been successfully used in other parts of the criminal justice system may help explain why lawmakers and judges have been relatively quick to embrace them in the sentencing context.[12] However, predictive algorithms tools may be better suited and easier to assess in other contexts, such as during pre-trial release, when a judge is evaluating whether a criminal defendant should be held in jail prior to her scheduled appearances in court.[13]

Sentencing algorithms are just electronic risk assessment tools used to predict recidivism.[14] Judges have factored recidivism predictions into sentencing for decades, but it is still a controversial method.[15] However, using recidivism predictions is still supported by the American Bar Association, so a number of states are still adopting legislation requiring the use of these algorithms.[16] Judges only use this risk assessment as one tool in the consideration of an appropriate sentence. A judge may not even give the risk assessment a lot of weight when making their determination. Even though the risk assessment may not necessarily change the outcome on most occasions, it could potentially affect the legitimacy of the process. If the general public is uncomfortable with judges relying on predictive algorithms to make decisions, predictive algorithms will never become widespread regardless of how efficient or fair they may be.[17] The general public’s mistrust of machines will transfer to mistrust of the legal system. Nobody wants to be defined by a risk assessment number, they want their entire story to be heard. People put their faith in a Judge; who has experience, listens to the whole story, and assesses all factors involved in a case when pronouncing a sentence. Legitimacy stems from the people’s faith in judges.

 

 

 

 

Can they Exist Together?

 

Upon initial thought, allocution and sentencing algorithms appear to be polar opposites. Among other things, allocution is the defendants one chance to put their humanity on display to a judge before sentencing. The mere act of talking, no matter what the content, emphasizes the defendant’s humanity.[18]  Sentencing algorithms on the other hand produce hard data, which is completely indifferent to a person’s humanity. In a system where judges rely heavily on risk assessment data, a defendant’s right to allocution could be potentially eliminated. However, the purpose of allocution may be even more importance in this technological age. A judge will take both considerations and give them as much weight as they see fit. As long as a judge allows a defendant to speak before sentencing, then the defendant will not feel as though they are being defined by a risk assessment number. Ensuring a defendant’s right to allocution will aid in maintaining the legitimacy of the legal system as technology is being introduced integrated into sentencing.

[1] Allocution, Black’s Law Dictionary (10th ed. 2014).

[2] See Rex & Regina v. Geary, (1689) 91 Eng. Rep. 532 (K.B.), 2 Salk. 630; Anonymous, (1689) 87 Eng. Rep. 175 (K.B.), 3 Mod. 265; see also Green v. United States, 365 U.S. 301, 304 (1961); Bennett & Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 741.

[3] See Bennett & Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 741.

[4] See Paul W. Barrett, Allocution, 9 Mo. L. Rev. 115, 121 (1944) (citing J. Chitty, A Practical Treatise on the

Criminal Law 700 (2d ed. 1816).

[5] See id. at 117.

[6] See John H. Dawson, Jr., Note, Federal Rules of Criminal Procedure-Court Should Afford Defendant a Personal Opportunity to Speak Before Sentence Is Pronounced, 6 Am. U. L. Rev. 117, 118 (1957); see also Thomas, Kimberly A. “Beyond Mitigation: Towards a Theory of Allocution.” Fordham L. Rev. 75, no. 5 2641, 2646 (2007).

[7] See Ball v. United States, 140 U.S. 118, 131 (1891) (“[A] defendant should be personally present before the court at the time of pronouncing the sentence . . . [so] that he might have an opportunity to say why judgment should not be given against him . . . .”); see also Bennett & Robbins, supra note 2 at 741-42.

[8] Fed. R. Crim. P. 32(i)(4)(A)(ii).

[9] Id.

[10] See e.g. Perry v. State, 150 Md. App. 403 (2002); State v. Nelson, 173 N.J. 417 (2002); State v. DeCiantis, 813 A.2d 986 (R.I. 2003); State v. Maestas, 2002 UT 123, 63 P.3d 621 (Utah 2002); see also 24 C.J.S. Criminal Procedure and Rights of Accused § 2255.

[11] See Perry, 150 Md. App. at 456.

[12]

[13] See id.

[14] See Leah Wisser, 56 Am. Crim. L. Rev. 1811, 1811 (2019).

[15] See John Monahan, Risk Assessment in Sentencing, 4 Reforming Criminal Justice 77, 79 (2017).

[16] American Bar Association, State Policy Implementation Project (2011), https://www.americanbar. org/content/dam/aba/administrative/criminal_justice/spip_handouts.authcheckdam.pdf.

[17] Ric Simmons, Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System, 52 U.C. Davis L. Rev. 1067, 1090 (2018).

[18] See Shelton v. State, 744 A.2d 465, 492 (Del. 2000).

image source: https://www.bbc.com/news/technology-40980004

By: Davina Seoparsan

Can you think of a time when you were driving and thought, “I wish I could be doing something else?” Maybe you have a meatball sub to eat? Maybe you had makeup to apply? Maybe you had notes to review before a big test? Short from taking public transportation or using a private transportation service, there are not many options for safe multi-tasking while driving. But what if the car could do the driving for you?

Forbes has predicted that over the next decade, a self-driving feature will be as common as cruise control.[1] Google, one of the leading companies in self-driving cars, has already stated their intent to have completely autonomous vehicles on the market in a few short years.[2] Though self-driving cars offer convenience and bring the excitement of futuristic technological developments, are they really a good thing?

 

The Reality

 

Would people actually use self-driving cars? Yes. The autonomous vehicle industry is projected to be worth around 7 trillion dollars in the next 30 years.[3] Though there will likely be a transition period for those who are more skeptical to autonomous technology, the market is huge for these types of vehicles. By bringing in trillions of dollars, the economy will likely be stimulated by the purchasing, maintenance and advertising of these self-driving cars.

Of the nearly 1.3 million people that die in traffic fatalities every year, 94% of the deaths are the result of human error.[4] One of the appeals of self-driving cars is that they would be able to reduce traffic accidents caused by human error.[5] In addition to saving lives, self-driving cars could drastically reduce the 500 billion dollars that are lost in traffic accidents annually around the world.[6]

 

The Technology

 

Many aspects of self-driving cars already present, as modern cars already perform complex tasks without the driver’s doing, including braking, steering, and objection detection.[7] Tesla is one of the most popular electric car manufactures and has been in the spotlight for its development of an Autopilot feature.[8] Though Autopilot can control steering, braking and acceleration, some have criticized the feature because it is inherently difficult to remain attentive when technology has control over driving tasks.[9]

 

 

 

The Accident

 

How safe is Autopilot? A recent survey of Tesla users found that twenty-eight percent of respondents believe that Autopilot had saved them from a dangerous situation, while 13% said the feature had actually put them in one.[10] The first person known to die using Autopilot was Joshua Brown, whose “Model S” Tesla vehicle crashed into a truck that turned across his path in Florida, in May 2016.[11] Both Joshua and the technology were unable to see the truck coming in its path.[12]

Tesla and the Autopilot feature have attracted controversy due to another recent fatality. Dr. Omar Awan was burned alive following a fiery crash in his Model S Tesla, after his car veered off the road and hit a tree.[13] The car’s lithium battery caught on fire, and the door handles malfunctioned.[14] Awan, who survived the impact, was unable to exit and rescuers were unable to free him, due to the retractable door handles on the Model S.[15]

 

The Case

 

A wrongful death suit has been filed following Awan’s death.[16] “After the Tesla hit the tree, [Awan] was alive,” the suit notes, “He had no internal injuries or broken bones. He died from the smoke he inhaled as he sat locked inside.”[17] Stuart Grossman, the attorney for Awan’s family, says what makes the doctor’s death doubly tragic, is that Awan purposely chose the Tesla Model S over luxury cars because he was concerned about the environment and safety, both of which Tesla have advertised heavily.[18]

In Awan’s case and others, Tesla has argued that high-speed crashes can result in fires whether the car is powered by gasoline or batteries.[19] The lawsuit further asserts that the features rendered the car “defective” and “dangerous” — the door handles compounding the problem of an “inherently unstable” battery. “[20] Tesla failed to warn users about the scope and extent of the defective and unreasonably dangerous conditions of the Model S,” the complaint says.[21]

 

The Future

 

At least 41 states and the District of Columbia (DC) have considered legislation related to autonomous vehicles.[22] That being said, there are still many questions surrounding the future of autonomous vehicles. Who will be held liable for crashes involving self-driving vehicles and regular automobiles? Will Tesla accept responsibility or modify their designs pending litigation? Will other companies, like Google, learn from Tesla and add safety- features to their models? Only ti

[1] Daniel Araya, The Big Challenges in Regulating Self-Driving Cars, Forbes (Jan. 29, 2019, 9:00AM), https://www.forbes.com/sites/danielaraya/2019/01/29/the-challenges-with-regulating-self-driving-cars/#7571800bb260.

[2] Waymo, https://waymo.com/tech/.

[3] Supra note 1.

[4] Automated Vehicles for Safety, National Highway Traffic Safety Administration, https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety.

[5] Id.

[6] Accelerating the Future: The Economic Impact of the Emerging Passenger Economy, Strategy Analytics, https://newsroom.intel.com/newsroom/wp-content/uploads/sites/11/2017/05/passenger-economy.pdf?cid=em-elq-26916&utm_source=elq&utm_medium=email&utm_campaign=26916&elq_cid=1494219.

[7] Jack Boeglin, The Costs of Self-Driving Cars: Reconciling Freedom and Privacy with Tort Liability in Autonomous Vehicle Regulation, 17 Yale J.L. & Tech. 171 (2015).

[8] Tesla, https://www.tesla.com/autopilot.

[9] Id.

[10] Mark Matousek, Over 90% of the 5,000 Tesla Model 3 owners surveyed by Bloomberg said they believe Tesla’s most controversial feature makes them safe, Bus. Insider (Nov. 5th, 2019) https://www.businessinsider.com/tesla-model-3-owners-say-autopilot-makes-them-safer-2019-11.

[11] Id.

[12] Id.

[13] In re Awan v. Tesla Inc., 19-021110 (Fla. Broward County Ct. Oct. 10, 2019).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] Reis Thebault, A Man Died in a Burning Tesla because its futuristic doors wouldn’t open, lawsuit alleges, Wash. Post (Oct. 23, 2019), https://www.washingtonpost.com/business/2019/10/23/man-died-burning-tesla-because-its-futuristic-doors-wouldnt-open-lawsuit-alleges/.

[19] Id.

[20] In re Awan v. Tesla Inc., 19-021110 (Fla. Broward County Ct. Oct. 10, 2019).

[21] Id.

[22] Self-Drive Act, H.R. Rep. No. 115-294 (2017)

image source: https://www.roboticsbusinessreview.com/wp-content/uploads/2019/05/AdobeStock_Self-DrivingCars-Activities-1000×500.jpeg

By: Dylan Phillips

You’ve probably heard about White Claw, a popular hard seltzer drink owned by Mark Anthony Brands.[1] According to one source, a student at The University of Toledo recently fell asleep at a Taco Bell drive-thru in the midst of trying to get a late-night snack.[2] When an officer arrived at the scene and asked the student for identification, the student presented the officer with a White Claw, and stated, “There are no laws, when you’re drinking The Claw.”[3] Aside from this particular incident, it seems that the catchy phrase has been interpreted as a joke by the general public, rather than as a statement that a reasonable person would ever take seriously.

 

The catchy phrase seems to have gained some of its popularity, at least in part, through YouTube comedian, Trevor Wallace.[4] Wallace created a video titled “*drinks White Claw once*,” which used the phrase, “There ain’t [sic] no laws, when you’re drinking Claws;” the video now has over 2.8 million views.[5] Wallace is well known for creating satirical videos, often making fun of “bro culture.”[6] Recently, however, White Claw’s legal team issued a cease and desist order[7] to Wallace on the grounds of trademark infringement[8] to get him to stop selling shirts with the phrase, “There Ain’t [sic] No Laws, When You’re Drinking Claws.”[9] After White Claw burst Wallace’s bubble, Wallace refunded everyone who bought the shirts and then tweeted in response, “I’m TRULY[10] sorry.”[11]

 

Although it appears that Wallace has capitulated in this spirited fight, whether there are violated trademark infringement laws, when regarding Wallace’s usage of Claws is not so certain.[12] The main federal trademark law in the United States is the Lanham Act, which was enacted in 1946 and most recently amended in 1996.[13] Since the enactment of the Lanham Act, federal law has tended to set the standards for trademark law, which state law typically follows.[14] For White Claw to have a valid claim under this act, it would likely have to prove that it had a valid trademark that Wallace diluted by “blurring” or “tarnishing” the trademark.[15] Despite Wallace using White Claw’s logo without the permission of the mark owner, whether his acts constitute infringement under these categories is not so simple. Regardless of whether a company has a valid trademark, fair use, which is granted through First Amendment right to freedom of speech, and the rationales, which set the need for the existence of trademark protection, must be considered.[16] Based on this right and the rationales for trademark protection, it is apparent that the scope of trademark protection should be narrowed to exclude protection to certain goods, such as Wallace’s t-shirts, which can be easily produced and sold through e-commerce. This is because e‑commerce and social media have led to an environment in which, under certain circumstances, all parties will be in a superior position when a mark owner ignores potential or actual infringement.

FREEDOM OF SPEECH IS A QUESTIONABLE DEFENSE

The First Amendment right to freedom of speech has continuously been found to carry greater weight than the Lanham Act.[17] The right of fair usage of the marks of others has generally been found to be protected by the First Amendment, when a non-owner’s usage of a mark is not deceptive to customers, such as in circumstances with parodies of trademarks.[18] This right of fair use was reinforced in the most recent federal act directly related to addressing trademark infringement, when President Bush signed off on the Trademark Dilution Revision Act in 2006, which explicitly carved out an exception for parody usage of a mark.[19] Furthermore, the Court recently expanded this notion that free speech outweighs the Lanham Act by holding that “[t]he Lanham Act’s prohibition on registration of ‘immoral or scandalous’ trademarks violates the First Amendment.”[20] However, whether courts will actually enforce a parody exception, regarding a commercial good as a part of the fair use doctrine granted by the First Amendment, rather than finding dilution by blurring or tarnishment of the trademark that is outside the scope of fair use, has seemingly been in a state of constant flux as society changes.[21]

 

Here, it seems that no reasonable person would believe that there ain’t [sic] no laws, when drinking Claws. Nevertheless, whether Wallace’s t-shirts would fall within the fair use parody exception[22] is questionable because the courts have been reluctant to specify when the exception is applicable for commercial products.[23] The courts may find it to be an expression of permissible free speech within fair use, but might find that one should not have the court’s authority to promote anarchy with another’s mark, even if the expression could not be interpreted as a serious statement by a reasonable person. Ergo, parody law has not been established to the extent to which it should be relied upon as the sole defense for commercial goods pertaining to such a unique statement, such as in the subject case. The confusion produced by this exception should be heavily considered in the question of whether an expansive trademark protection should apply to certain commercial goods when courts are unable to establish a consistent standard for when fair use applies.

 

RATIONALES UNDERLYING THE NEED FOR TRADEMARKS SUPPORTS A NARROWED PROTECTION

New Kids on the Block v. News Am. Publ’g, Inc. is commonly referenced when describing the roots of modern trademark law, which states, “[t]hroughout the development of trademark law, the purpose of trademarks remained constant and limited: Identification of the manufacturer or sponsor of a good or the provider of a service. And the wrong protected against was traditionally equally limited: Preventing producers from free-riding on their rivals’ marks.”[24] The Supreme Court of the United States addressed the reasoning behind trademark law in the 1995 case of Qualitex Co. v. Jacobson Products Co., where the Court described the roots of trademark law as “preventing others from copying a source-identifying mark” and assisting the customer in making purchasing decisions.[25] The purpose of trademark law is to grant one a limited usage of his or her mark, rather than an unlimited usage of a mark, and to protect the public from confusion from what goods are in the market.[26]

 

Expansive trademark protection, such as with dilution liability, far surpasses the traditional limits of this protection in certain markets. When expansive trademark protection is applied towards goods that can be easily produced and entered into e-commerce markets, such as Wallace’s t-shirts, the law is neither able to protect the interests of the public nor of the mark owner. Thus, the rationales underlying trademark protection should not be found to expand into the broadened trademark protection doctrines, such dilution by blurring or tarnishment, when the rationales for trademark protection are irrelevant to those doctrines.

 

THE STREISAND EFFECT NARROWS THE PRACTICALITY OF ADDRESSING TRADEMARK RATIONALES

With the rise of social media, there are many things going viral because of what is known as the “Streisand effect.”[27] The Streisand effect, named after the singer and actor Barbra Streisand, “describes how efforts to suppress a juicy piece of online information can backfire and end up making things worse for the would-be censor.”[28] This effect has a surprisingly strong influence on intellectual property litigation resulting from social media because suppression of information can inadvertently lead to increased publicity.[29] The increased publicity can then ironically lead to an increased connection between the information fought to be suppressed and the entity trying to suppress the information.[30] Because it has become increasingly easier to spread information, and because it has become quite simple to engage in e-commerce, as soon as a popular idea goes viral, such as with a product that is simple to reproduce, an uncontrollable amount of sellers will inevitably enter the marketplace.[31]

 

Once the marketplace is flooded with sellers—many of whom are likely individuals with small operations and who are selling products through third-party marketplaces, such as Amazon[32] and Etsy[33]—the owner of the mark has only limited courses of action that it may take: (1) ignoring all potential infringers and allowing them to continue to use the mark; (2) getting a court order to enjoin each and every actual infringer from using the mark; or (3) going after a larger seller of the infringed mark and hope that smaller sellers cease usage of the mark out of fear. In matters pertaining to goods that are easy to produce and enter into e-commerce, the first option, which is ignoring potential infringement, would be the most practical action by a mark owner.

 

The first option of ignoring all possible infringement has much less appeal at first glance than the other options. Ignoring all infringement claims may lead to a substantial number of sellers wrongfully using an owner’s mark for unjust financial gain. However, it could also have an antithetical consequence than that of the Streisand effect, allowing social media to have less reason to mention Wallace’s phrase, thereby permitting the next viral video to usurp the internet’s attention.[34] Although allowing the trademark to possibly be infringed upon is not an ideal option for a mark owner, permitting the internet to have fun with the phrase would likely allow for the least amount of attention being drawn towards the possible infringement. Because less attention would be drawn towards the infringement, it would foreseeably live its life quickly, just as any other internet sensation.[35] In the subject matter, it seems likely that a shirt related to a viral video would not last longer than the time it takes before the next YouTube sensation goes viral.[36] Thus, ignoring the infringement in its entirety may be a preferable option, if the goal is to cease infringement.

 

The second option seems to have great appeal at first glance because it would be fairer for a court to decide each situation; however, it would not be practical in reality. First, if the claim for a potential parody were to lose in court, the potential infringer would be found free to expand his or her operations. Nevertheless, if a claim were to be found valid, many sellers may not have much incentive to exit the marketplace. A significant number of sellers in e-commerce are running small operations, such as using an at‑home printer to make t-shirts with an infringed mark and then selling them online.[37] If there are hundreds of these sellers online, it seems unlikely that a single company could bring each and every one of them to court to enjoin them from future sales. If they were enjoined by court order, other sellers could easily enter the void in the market and continue to sell the same items. The infringers may also not have any money, because of the small scale of their operations, thus, the infringers may not change their actions because there is nothing to which the mark’s owner could collect upon if it were to try to get money damages. Lastly, and most significantly, many online sellers would be quite difficult to identify and provide notice.[38] If someone does not reveal his or her identity, beyond a virtual account hidden behind a proxy or is located in a foreign state, it would be quite difficult to give notice to a seller.[39] Thus, in the modern age of e-commerce, an owner of a mark cannot feasibly take each infringer to court.

 

In the subject matter, it is likely that the Streisand effect[40] would occur if White Claw were to go after each potential infringer of its mark.[41] Instead of White Claw being known as a fun drink, possibly associated with Wallace’s humorous phrase,[42] social media could foreseeably spread the news of the owner’s litigiousness, regardless of whether it is justified, and would most likely increase the public’s awareness that there is a connection between White Claw and Wallace’s phrase.[43] This would foreseeably hurt White Claw’s reputation, rather than benefit White Claw; thus, it would not be a reasonable or practical course of action for White Claw to take.

 

The third option of only going after the most popular sellers seems to be a more reasonable middle ground to the other two options. However, this option would likely not be feasible for the reasons discussed above; if the largest sellers were to be discharged from the e-commerce market, it would be reasonably expected that smaller operations would fill the void in the market.[44] In the subject matter, selling t-shirts through e-commerce carries little barriers to enter into the market, smaller operations will have little reason to worry about potential litigation, and the more attention White Claw would draw to the infringement, the greater the association will be between the mark and the possible infringement. This concern has already begun to become a reality as third-party have started to fill the void in the market from Wallace’s exit of the business selling t-shirts.[45] It is, therefore, apparent that going after the larger sellers is not a feasible option to carry out the trademark protection rationales of limiting infringement and limiting the burden of knowing the source of products for consumers. Thus, White Claw enjoining only the major sellers is still a less desirable option than simply ignoring possible infringement in this matter.

 

THE MOST PRACTICAL WAY FOR WHITE CLAW TO ADDRESS THE SUBJECT INFRINGEMENT CONCERN IS WITHOUT JUDICIAL INTERFERENCE

The trademark protection rationales of “preventing others from copying a source-identifying mark and assisting the customer in making purchasing decisions,” are irrelevant, when a t-shirt parodying White Claw could not be reasonably excepted to be produced by White Claw.[46] Moreover, the prevention of the expanded trademark protection of dilution by blurring or tarnishment ironically seems to be best addressed by ignoring the possible infringement for matters in which the possibly infringing product can be easily produced at a low cost and easily introduced into the e-commerce market. To prevent the customers from copying a mark, in the age of e‑commerce and viral internet sharing, the most practical solution in some matters is to ignore the possible infringement and to allow the internet sensation to end by the public moving on to the next sensation in due time. To assist the customers in making purchasing decisions, the matter is also not practically addressed by permitting the bigger sellers of the possibly infringing product to continue to sell their products. If the bigger sellers were to be enjoined, it is then reasonably foreseeable that more small operations would replace the market’s void for the particular item, but with less uniformity because of the individualized operations.[47] Because of less uniformity, there would not only be further possible infringement, but also, there would be similar products being sold with varying degrees of quality.[48] Because of the varying degrees of quality, customers would have greater likelihoods of buying a cheaper possibly infringing product, rather than a nicer quality shirt that is possibly infringing on a mark.[49] Thus, the most practical option to protect a mark would be to ignore the infringement in certain matters, such as with the selling parody t-shirts associated with a YouTube video.

 

An example of how ignoring possible infringement, when a good can be easily produced and entered into e-commerce, may be the best solution for a mark owner is demonstrated in Coca-Cola Co. v. Gemini Rising, Inc..[50] In 1972, Coca-Cola brought a trademark infringement suit to enjoin Defendant from printing and selling a poster with an almost identical mark that instead of reading “Enjoy Coca-Cola,” read “Enjoy Cocaine.”[51] The court held that the posters use of the Coca-Cola format in its poster was an unauthorized use of the trademark and that because of the potential injury to the reputation of the mark owner, injunctive relief was necessary.[52] However, despite the court enjoining the sale of such products, there are many e-commerce sellers still selling Enjoy Cocaine products with the precise logo the court ordered enjoined from further sales.[53] Thus, it is apparent that Coca-Cola decided to exercise the first option, and now ignores the infringement of its mark on products that can be easily produced and entered into markets from both large and small vendors.

 

The most practical option for addressing the trademark concerns for all parties in certain matters, such as when an easily producible product borders between fair use through parody law and possible infringement, can be ignoring the infringing acts until the possibly infringing product lives its life. The ease of entering into e-commerce markets demonstrates why trademark protection should be narrowed for goods that can be easily produced and entered into the market. Due to the narrowed ability of trademark law to now address the concerns of infringement, the courts should reconsider whether the current policy behind trademark law is still best addressed by not carving out an exception for goods that can be easily produced and sold through e‑commerce. If the best solution to address potential infringement of a mark is to have a mark owner ignore the issue, rather than judicial interference, the issue should not be addressed by the court. Ignoring potential infringement in this circumstance leaves all parties in a superior position: the mark owner will not enable further entrants to join the market selling subpar goods in a difficult to manage circumstance through enjoining sellers, the potential infringer will benefit by being able to partake in commerce and create art through humor, and the governmental policy interest in protecting consumers in the market will be best addressed by not having to manage an influx of poorly identified sellers with unwanted goods in the marketplace that adds to consumer confusion. Thus, the issue should not be addressed through trademark law because the matter is best addressed without interference by the court. Moreover, the question of whether there is possible blurring or tarnishment of the trademark is irrelevant, if measures to prevent such types of dilution contribute towards dilution. This means that in certain circumstances mark owners should simply acquiesce to a possible infringement since e-commerce and social media have narrowed the ability of trademark laws to address infringement concerns.

 

Although this does not draw a clear line as to when there is an infringement on any particular type of product, solely regarding the possibly infringing t-shirts in the subject matter, the court should narrow the scope of trademark protection because the issue is best addressed without judicial interference. Wallace’s t-shirts can be easily created by new market entrants to be sold through e‑commerce markets, new market entrants would likely usurp Wallace’s now exited spot in the market if Wallace exited the market, and the rationale of trademark protection for addressing the concern of confusing consumers in the marketplace would be threatened from the influx of new market entrants. Since Wallace has ceased selling his shirts, the market has already been increasing with a number of products, which arguably hurt the White Claw brand to a much greater extent.[54] Similarly to Coca-Cola,[55] acquiescing to infringement of its mark, White Claw should choose to follow the same path and ignore, rather than fight, potential infringement. Because the most practical course of action for White Claw would be to ignore potential infringement for instances, such as Wallace’s t-shirts, the need for trademark protection in the realm of e-commerce is narrowed. Therefore, should the subject matter or a similar case be brought before the court, the court should narrow the scope of trademark protection for easily producible goods, such as Wallace’s t‑shirts, which can be sold with relative ease through e-commerce, because e-commerce and social media have caused a major decrease in the benefits of trademark protection.

image source: https://www.gearbubble.com/aint-n

[1] Stacy Ritzen, What Is White Claw—and Why Is the Beverage Inspiring Memes?, The Daily Dot (Sept. 6, 2019 12:43 PM), https://www.dailydot.com/unclick/white-claw-memes/ (last visited Oct. 13, 2019).

[2] Univeristy of Toledo Student Tries to Use Can of White Claw as Identification, Snickersee.com (Sept. 4, 2019), https://snickersee.com/2019/09/04/university-of-toledo-student-tries-to-use-can-of-white-claw-as-identification/. (last visited Sept. 6, 2019).

[3] See id.

[4] Kate Bernot, Last Call: Turns Out, There Are Laws When You’re Drinkin Claws, The Takeout (July 11, 2019 4:33 PM), https://thetakeout.com/aint-no-laws-drinkin-white-claws-shirt-cease-desist-1836290580.

[5] Trevor Wallace, *drinks White Claw once*, YouTube (June 25, 2019), https://www.youtube.com/watch?v=FApbkER3uIY (having 2,885,518 views). (last visited Oct. 13, 2019 2:10 PM).

[6] Ritzen, supra note 1.

[7] A cease and desist order alone has no actual legal effect. See Staff Author, Cease and Desist, Investopedia (May 24, 2019), https://www.investopedia.com/terms/c/cease-and-desist.asp.

[8] See 15 U.S.C. §§ 1051, et seq. (2012) (providing laws regarding what constitutes trademark infringement).

[9] Bernot, supra note 4.

[10] “TRULY” is a pun referencing Truly Hard Seltzer, a hard seltzer drink sold by a competing brand;  see also The Truly Story, Trulyhardseltzer.com (2019), https://trulyhardseltzer.com/story. (last visited Oct. 13, 2019).

[11] Bernot, supra note 4.

[12] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law, Harvard.edu, https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm (discussing when trademark infringement has occurred). (last visited Oct. 13, 2019).

[13] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law, supra note 12.

[14] See id.

[15] 15 U.S.C. § 1125(c) (2012). Another possible cause of action could be infringement based on consumer confusion as to whether White Claw sponsored or endorsed the t-shirts, however, it seems quite unlikely that a consumer would reasonably believe that White Claw sponsored or endorsed a phrase making fun of its own product.  See id.

[16] U.S. Const. amend. I.

[17] See, e.g., Iancu, 139 S. Ct. at 2302 (holding that First Amendment rights are given greater weight than trademark prohibitions under the Lanham Act and stating “the ‘immoral or scandalous’ bar is substantially overbroad . . . the Lanham Act covers them all.  It therefore violates the First Amendment”) (ellipsis added); see also Rivera v. Carter, No. 2:09-cv-2435-FMC-VBKx, 2009 U.S. Dist. LEXIS 131958, at *28-30 n.8 (C.D. Cal. July 31, 2009) (“Neither the strictures of the first amendment nor the history and theory of anti-dilution law permit a finding of tarnishment based solely on the presence of an unwholesome or negative context in which a trademark is used without authorization. . . . A trademark is tarnished when consumer capacity to associate it with the appropriate products or services has been diminished”) (citing L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir. 1987)).

[18] See, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 269 (4th Cir. 2007) (holding that a parody exception to trademark infringement existed when a company used the Louis Vuitton mark on “Chewy Vuiton” [sic] dog toys because consumers would not have a likelihood of confusion in purchasing the products).

[19] The Trademark Dilution Revision Act of 2006 (TDRA), codified as 15 U.S.C. § 1125 (2012), was passed because of Moseley. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (holding that claims under the Lanham Act for trademark dilution required proof of actual dilution).  TDRA overruled this case and established that no actual proof of dilution was required.

[20] Iancu, 139 S. Ct. at 2296.

[21] Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996) (denying relief for trademark owner of “Spam,” when a Muppet movie used a pig-like character named “Spa’am” because the fair use parody exception permitted use of the mark when there was not a likelihood of confusion in the usage of the marks);  L.L. Bean, 811 F.2d at 26 (holding that an article displaying L.L. Bean’s trademark and featured pictures of nude models in sexually explicit positions using Bean’s products was crudely humorous, thus, the parody exception exempted Defendant from infringement through the fair use parody exception).  But see, e.g., Gucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977) (holding the fair use parody exception did not apply, because there was a likelihood of confusion for customers, when “Gucchie Goo” diaper bags were sold that had a similar design to Gucci brand bags.

[22] See 15 U.S.C. § 1025(c)(3) (2012) (codifying the trademark law exception for parody exclusions).

[23] See supra note 21.

[24] New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 305 (9th Cir. 1992).

[25] Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163 (1995).

[26] See id.

[27] T.C., What Is the Streisand Effect?, The Economist (Apr. 16, 2013), https://www.economist.com/the-economist-explains/2013/04/15/what-is-the-streisand-effect.

[28] See id.

[29] See id.

[30] See id.

[31] Many e-commerce sites allow sellers to begin advertising and selling products in a new store within minutes through certain platforms, making it quite simple for one to begin an e-commerce store.  See, e.g., Amazon, https://www.amazon.com. (last visited Oct. 13, 2019);  Etsy, https://www.etsy.com. (last visited Oct. 13, 2019).  Currently, although the number of e-commerce retailers is difficult to ascertain with precision, it is estimated that there are between twelve and twenty-four million e-commerce sites in the world.  See 50 Ecommerce Statistics to Guide Your Strategy in 2019, 99Firms.com (Apr. 10, 2019), https://99firms.com/blog/ecommerce-statistics/.

[32] See Amazon, supra note 31.

[33] See Etsy, supra note 31.

[34] See generally T.C., supra note 27.

[35] See generally Simon Parkin, The Youtube Stars Heading for Burnout: ‘The Most Fun Job Imaginable Became Deeply Bleak’, The Guardian (Sept. 8, 2018 4:00 PM), https://www.theguardian.com/technology/2018/sep/08/youtube-stars-burnout-fun-bleak-stressed (discussing the rise and fall of social media sensations).

[36] See id.

[37] See Susan Ward, Easy Ways to Get Your Small Business into E-Commerce, The Balance Small Business (Apr. 14, 2019), https://www.thebalancesmb.com/small-business-ecommerce-2948415 (discussing the ease of entering ecommerce as a retailor). (last visited Oct. 13, 2019).

[38] Even tech giants, like Amazon, struggle to verify the identity and control the products sold by third-party retailers on its own platform.  See Dave Bryant, How Chinese Sellers are Manipulating Amazon in 2019, EcomCrew (June 1019), https://www.ecomcrew.com/chinese-sellers-manipulating-amazon/. (last visited Oct. 13, 2019).

[39] See generally id.

[40] See generally T.C., supra note 27.

[41] See infra note 55.

[42] Wallace, supra note 5 (“There ain’t no laws, when drinking Claws”).

[43] See id.

[44] See generally Lesson 3: Open Markets, Foundation for Teaching Economics (2019), https://www.fte.org/teachers/teacher-resources/lesson-plans/efllessons/lesson-3-open-markets/ (last visited Oct. 13, 2019) (discussing how the supply in the market will be replaced when a seller exits the marketplace because of the marketing being pulled toward supply-and-demand equilibrium).

[45] See infra note 55.

[46] Qualitex, 514 U.S. at 163.

[47] See Lesson 3: Open Markets, supra note 44.

[48] Jason Aten, Amazon Just Got Some Really Bad News About Banned Products on Its Site. Its Response Says a Lot About the Company, Inc. (Aug. 23, 2019), https://www.inc.com/jason-aten/amazon-just-got-some-really-bad-news-about-banned-products-on-its-site-its-response-says-a-lot-about-company.html (discussing the extent of products on Amazon that are banned or mislabeled).

[49] See infra note 53.

[50] Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972).

[51] See id. at 1186.

[52] See id. at 1191, 1193 (enjoining the appropriation and use of products, “where the resemblance is so close as to be likely to produce confusion as to such identity to the injury of the corporation to which the name belongs”).

[53] The Enjoy Cocaine logo is still being sold at many retailers and has not since been brought back to court.  See, e.g., Amazon, https://www.amazon.com/Epicdelusion-Funny-Shirts-Enjoy-Cocaine/dp/B07CPKRPN9. (last visited Oct. 13, 2019); Etsy, https://www.etsy.com/market/enjoy_cocaine. (last visited Oct. 13, 2019); teeshirtpalace, https://www.teeshirtpalace.com/products/enjoy-cocaine-t-shirt. (last visited Oct. 13, 2019).

[54] See, e.g., TeeShirtPalace, https://www.teeshirtpalace.com/products/ain-t-no-laws-when-you-re-drinking-claws-baby-bodysuit? (expanding the market of “There ain’t no laws, when drinking Claws” shirts into the market of clothing for babies and children). (last visited Oct. 13, 2019);  BelleLily, https://www.bellelily.com/aint‑no‑laws‑when‑youre‑drinking‑claws‑t‑shirt‑tee‑black‑g‑55905?vsid=33873&gclid=EAIaIQobChMIwp75tb‑a5QIVyp6zCh3zxQ3vEAkYBCABEgKAHvD_BwE (expanding the market of “There ain’t no laws, when drinking Claws” shirts into shirts with additional features of political figures drinking) . (last visited Oct. 13, 2019);  Etsy, https://www.etsy.com/listing/729251151/aint-no-laws-when-youre-drinking-claws? (expanding the market of “There ain’t no laws, when drinking Claws” into the market of hats, key chains, and many other accessories). (last visited Oct. 13, 2019).

[55] See supra notes 50, 53.

By: Trevor Vonu

With election season looming on the horizon, tensions surrounding Facebook’s allowance of un-censored political advertisements continue to grow in Washington.[1] During a speech at Georgetown University earlier this month, Facebook Chief Executive Mark Zuckerberg vocalized his opinion on the matter by claiming to prioritize his commitment to freedom of speech and expression over instituting an aggressive policy to police information advertised on the social media platform.[2] Zuckerberg stated, “Some people believe that giving more people a voice is driving division rather than bringing people together. I am here today because I believe we must continue to stand for free expression.”[3]

Zuckerberg recently traveled to Capitol Hill where he fielded questions from legislators regarding the company’s policy to refrain from fact-checking political advertisements.[4] During a Q & A with Congresswoman Alexandria Ocasio-Cortez, D-NY, Zuckerberg recognized this policy creates the potential for political candidates to spread false information, however, Zuckerberg remained steadfast in his position that it would be improper to censor the information presented in these advertisements.[5] That said, many critics believe Zuckerberg’s decision is primary fueled by the goal to maintain advertisement revenue.[6]

Most recently on October 29^th, Senator Mark Warner, D-VA sent a letter to Zuckerberg asking him to reconsider his decision to leave political advertisements unchecked for truthfulness. Warner is one of Congress’ most active legislators working to regulate ‘Big Tech’ companies.[7] In his letter, Warner criticizes Zuckerberg’s position and justifications, stating,

 

In defending its refusal to remove false political advertisements by candidates, Facebook has pointed to provisions of the Communications Act that prohibit broadcast licensees from rejecting or modifying candidate ads, regardless of their accuracy . . . This comparison is inapt. A more appropriate comparison for a platform like Facebook would be cable networks, which (like Facebook) face no such prohibition on rejecting demonstrably false advertisements from political candidates – nor are they bound by related obligations such as rules on advertising rates and reasonable access requirements.

 

Letter from Sen. Mark Warner to Mark Zuckerberg, Facebook Chief Exec. Officer (Oct. 28, 2019).

 

Despite receiving substantial pushback from legislators on Capitol Hill, Zuckerberg recently reinforced his position on the company’s policy regarding political advertisements.[8] During Facebook’s third-quarter earnings call on October 30^th, Zuckerberg responded to those criticizing his decision not to fact check political advertisements, saying, “I believe strongly and I believe that history supports that free expression has been important for driving progress and building more inclusive societies around the world.”[9] During Facebook’s earnings call, Twitter Chief Executive Jack Dorsey released his own announcement, stating the company will “stop all political advertising on Twitter globally.”[10]

This response is uncharacteristic of Zuckerberg and is quite different from his past responses to criticism, most notably the debacle involving Cambridge Analytica.[11] In the past, Zuckerberg apologized and pledged to make the necessary improvements to Facebook.[12] Now, amid widespread criticism, Zuckerberg is sticking to his guns and doubling down on his position on the matter.[13] It will be interesting to see if Zuckerberg retreats on this position in the coming months. The Federal government is pleading with Zuckerberg to reconsider, however, with no enacted law regulating this specific subject matter, the decision is completely up to the company and its position will likely change only under two circumstances.[14] First, the decision may change if Congress, or a regulatory agency, passes a law requiring Facebook to fact check all political advertisements.[15] Alternatively, Facebooks policy on the matter may change if the current policy leads to substantial user dissatisfaction and lower share prices.[16]

 

 

 

 

[1] Therese Poletti, Zuckerberg stands defiant on political ads, swinging ‘free expression’ at critics like a hammer. Market Watch (Oct. 30, 2019, 8:44 PM), https://www.marketwatch.com/story/zuckerberg-stands-defiant-on-political-ads-swinging-free-expression-at-critics-like-a-hammer-2019-10-30.

[2] Ryan Tracy, Facebook’s Mark Zuckerberg defends free expression, will allow political adds without fact checking. Market Watch (Oct. 17, 2019 2:54 PM), https://www.marketwatch.com/story/facebooks-mark-zuckerberg-defends-free-expression-will-allow-political-adds-without-fact-checking-2019-10-17.

[3] Id.

[4] Salvador Rodriguez, Watch video of AOC grilling Zuckerberg on Facebook allowing lies in political ads, CNBC (Oct. 24, 2019, 4:57 PM), https://www.cnbc.com/2019/10/23/aoc-grills-zuckerberg-over-facebook-allowing-lies-in-political-ads.html.

[5] See id.

[6] See Poletti, supra note 1.

[7] William Feuer, Sen. Warner asks Mark Zuckerberg to reconsider Facebook’s policy that allows false political ads, CNBC (Oct. 29, 2019, 10:59 AM), https://www.cnbc.com/2019/10/29/sen-warner-asks-zuckerberg-to-reconsider-false-political-facebook-ads.html.

[8] See Poletti, supra note 1.

[9] Id.

[10] Kate Conger, Twitter Will Ban All Political Ads, C.E.O. Jack Dorsey Says, New York Times (Oct. 30, 2019), https://www.nytimes.com/2019/10/30/technology/twitter-political-ads-ban.html.

[11] Ashley Smith-Roberts, Facebook, Fake News, and the First Amendment, 95 Denv. L. Rev. 118, 118-19 (2018).

[12] Therese Poletti, Zuckerberg appears to be done apologizing for Facebook and taking Tim Cooks, Market Watch (Oct 31, 2018, 6:59 AM), https://www.marketwatch.com/story/zuckerberg-appears-to-be-done-apologizing-for-facebook-and-taking-tim-cooks-punches-2018-10-30.

[13] See Poletti, supra note 1.

[14] See Feuer, supra note 6.

[15] See id.

[16] Josh Constine, Zuckerberg defends politician ads that will be 0.5% of 2020 revenue, Tech Crunch (Oct. 30, 2019, 5:32 PM), https://techcrunch.com/2019/10/30/zuckerberg-political-ads/.

image source: https://i.ytimg.com/vi/mZaec_mlq9M/maxresdefault.jpg

By: Ryan Leonard

Doorbells with a security camera feature are now a billion-dollar industry in the United States.[1]  Ring, a subsidiary of Amazon, has been marketing its product as a device that can help secure homes against crime.[2]  However, as Ring as partnered with local police departments, civil liberties organizations like the American Civil Liberties Union have become concerned about violations of privacy.[3]

 

Ring’s doorbell works by equipping an inconspicuous camera to a doorbell, installing it, and linking it to the owner’s Wi-Fi.[4]  The owner is then able, at any time, to view who, if anyone, approaches the house via smartphone, tablet, or computer.[5]  Its natural doorbell appearance is no doubt part of the appeal, as well as what makes it effective at catching would-be burglars.

 

The concerns over privacy are two-fold.  First, neighbors of Ring customers may become objects of regular surveillance without their knowledge or consent.[6]  Secondly, when a homeowner’s doorbell camera works in conjunction with local police departments, it is no longer just a security-conscious neighbor doing the surveilling.[7]  In other words, if one lives directly across the street from someone who has installed such a doorbell, and the doorbell’s camera is being utilized by police, one is the unknowingly under 24 hour police surveillance.[8]

 

The legal standard to consider when analyzing the privacy interests of third parties is the reasonable expectation of privacy protected by the Fourth Amendment, as articulated in Katz v. United States.[9]  In Katz, the United States Supreme Court held that it is a violation of the Fourth Amendment’s unreasonable search clause to wire-tap a public phone booth without a search warrant.[10]  The reasoning of the Court was that, even when no physical intrusion has occurred, an individual may still be protected from information-gathering when she has a reasonable expectation of privacy.[11]

 

The question then becomes whether individuals have a reasonable expectation of privacy in regards to the things they do daily and weekly, as visible from the outside of their home.  In United States v. Jones the Court stated that a GPS tracker on a car is a search that requires a warrant even though the information collected is publicly available (the location of the car), and could be collected by anyone following said car.[12]  In sum, a person’s public behavior may still be protected by the Fourth Amendment and individuals may maintain a reasonable expectation of privacy, even in regards to things they do and say beyond the walls of their home.[13]

 

The counterargument, however, would be that, as surveillance becomes more easily available, more discreet, and more ubiquitous, the expectations of privacy at an individual as well as societal level will adjust accordingly.  Oddly enough, the Fourth Amendment standard of privacy established in Katz may make non-consensual, warrantless surveillance unconstitutional when done to a small number of people, but may nevertheless be perfectly constitutional when done to nearly everyone; as society’s expectations change so too might constitutional protections.[14]  The growth and popularity of doorbell companies like Ring may make video monitoring sufficiently commonplace so as to alter privacy expectations, and Fourth Amendment protections along with them.

image source: https://www.aclu.org/sites/default/files/styles/blog_main_wide_580x384/public/field_image/web19-ring-doorbell-neighbor-app-ap-blogimage-1160×768.jpg?itok=DpcifaRA

[1] See Brandt Ranj, 5 Smart Home Devices that Prove Why Amazon’s $1 Billion Acquisition of Doorbell Startup Ring, a ‘Shark Tank’ Reject, Makes Total Sense, Business Insider (Jul. 26, 2018, 2:34 PM), https://www.businessinsider.com/ring-video-doorbell-amazon-sale-2018-7.

[2] See Jay Stanley, Should You Buy a Ring Doorbell Camera?, ACLU (Sept. 10, 2019, 11:30 AM),  https://www.aclu.org/blog/privacy-technology/surveillance-technologies/should-you-buy-ring-doorbell-camera.

[3] See id.

[4] See Ali Montag & Sarah Berger, Amazon Bought ‘Shark Tank’ Reject Last Year – Here’s What the Founder Says About Jeff Bezos, CNBC (Feb. 22, 2019, 10:33 AM), https://www.cnbc.com/2018/02/27/amazon-buys-ring-a-former-shark-tank-reject.html.

[5] See id.

[6] See Drew Harwell, Doorbell-Camera Firm Ring has Partnered with 400 Police Forces, Extending Surveillance Concerns, The Washington Post (Aug. 28, 2019, 6:53 PM), https://www.washingtonpost.com/technology/2019/08/28/doorbell-camera-firm-ring-has-partnered-with-police-forces-extending-surveillance-reach/.

[7] See id.

[8] See id.

[9] See Katz v. United States, 389 U.S. 347, 505, 516 (1967).

[10] See id. at 515.

[11] See id. at 516.

[12] United States v. Jones, 132 S.Ct. 945, 948 (2012).

[13] See Katz, supra note 9, at 516.

[14] See id.