Month: December 2020

By Alexandra Tillman

 

The future is here. Artificial Intelligence (AI) is being used in virtually every aspect of our lives—smart phones, smart watches, smart cars, even smart refrigerators.

 

But the problem with the future is that you do not know what lies ahead.

 

And unfortunately, neither does AI.

 

AI is being used throughout the criminal justice system, from prediction to adjudication.[1]

 

But even the creators of AI algorithms will admit they often do not know how the algorithm makes its decisions. In fact, many studies have shown that AI is far from fair and impartial, as many hope and believe it to be.[2]

 

One study created an algorithm with a seemingly simple objective: to differentiate pictures of wolves from pictures of dogs.[3] From an output perspective, the algorithm seemed to have accomplished its goal, correctly identifying wolves and dogs. But upon analyzing what factors weighed most heavily in its determination, the study found that the algorithm’s most weighted factor was not at all similar to how a human would identify a wolf. The algorithm determined that the most likely indicator of whether the photo was of a wolf…was snow in the background.[4]

 

Now consider this example when applied to identifying a potential criminal. While we may know what the inputs and outputs are, e.g. years of datasets on criminal offenders, what if we do not know how the system makes its determination. The ultimate result may seem correct, but the truth is we do not fully understand how algorithms create their outputs—and we may not like what we find when we look deeper. What if the AI we already use in the criminal justice system is equally flawed? What is the criminal equivalent of snow = wolf?

 

One recent study looked at an algorithm used by judges to determine the likelihood of a convicted criminal being a repeat offender.[5] This study found that the algorithm was heavily biased against minorities in creating its output.[6](Smithsonian, id.) So how can we continue to use AI if it is so flawed?

 

The key to improving is understanding. To justify and bolster its continued use, here are few things the legal community needs to understand about AI:

 

1. Not All AI is created Equal

Several types of systems fall under what many think of as AI. “AI” has actually existed since the 1950s as a branch of computer science focused on performing specific tasks—there are inputs and outputs, but it does not learn on its own.[7]Then in the 1980s a new kind of AI came along called Machine Learning, which processes algorithms and analyzes the results to learn more and improve the algorithm on its own.[8] Finally, in the 2010s came the most recent development in AI, Deep Learning, which uses both machine learning and artificial intelligence “to break down tasks, analyze each subtask and [use] this information to solve new sets of problems.”[9] Each kind of AI serves a different purpose and function. And thanks to the technological advances of the last decade, such as our ability to store and analyze big data,each of these areas has recently grown in popularity and are being used as never before.[10] In other words, AI is not just one thing. It works in many ways with varying objectives, capabilities, and limitations.

 

 

2. Humans, Datasets, & Algorithms

Humans create algorithms as well as the datasets we plug into those algorithms. And as the myriad of polls and data we see in our daily lives show, data is not always the most accurate representation of the world as it truly is.[11] Data can be biased. So, when humans create datasets and algorithms, they may, often unintentionally, include those biases. This results in outputs that do not represent the world accurately, and those outputs are thus inherently biased.

 

 

3. AI Does Not Think as Humans Do –

As may be clear from the prior examples, AI has not yet reached the equivalent of human reasoning.[12] In fact, AI does not “reason” at all.[13] It takes the data presented to it, follows the rules of the algorithm, and creates an output. So, it is important for practitioners, policy-makers, and judges alike to be actively skeptical of the inputs and outputs of these systems, by questioning the data, the algorithms, and constantly asking how these systems can be improved. Even though some of these systems can learn, they learn based on the information they are fed, and learning is not equivalent to reasoning.[14]

 

In order for the pros to outweigh the cons when it comes to criminal justice and AI, its practitioners and judges must know the strengths and limitations inherent in AI. The more active we are in learning how AI works, the more we can use and improve this powerful technology to aid in the criminal justice system—making the system more fair, from investigation to adjudication.

 

The future may be here, but we still have a long way to go until the future is as fair as we want it to be.

 

[1] Randy Rieland, Artificial Intelligence Is Now Used to Predict Crime. But Is It Biased? Smithsonian Magazine, (Mar. 5, 2018), https://www.smithsonianmag.com/innovation/artificial-intelligence-is-now-used-predict-crime-is-it-biased-180968337/.

[2] Id.

[3] Marco Tulio Ribeiro et. al., “Why Should I Trust You?” Explaining the Predictions of Any Classifier (Aug. 9, 2016), https://arxiv.org/pdf/1602.04938.pdf.

[4] Cameron Boozarjomehri, Is This A Wolf? Understanding Bias in Machine Learning, Mitre (2018) https://kde.mitre.org/blog/2018/10/28/is-this-a-wolf-understanding-bias-in-machine-learning/.

[5] Reiland, supra.

[6] Reiland, supra.

[7] Ramdev Canadam Sunder Rao, “New Product Breakthroughs with Recent Advances in Deep Learning and Future Business Opportunities”, Stanford Management Science And Engineering 238 Blog, (July 6, 2017), https://mse238blog.stanford.edu/2017/07/ramdev10/new-product-breakthroughs-with-recent-advances-in-deep-learning-and-future-business-opportunities/.

[8] Id.

[9] Id.

[10] Id.

[11] Nate Silver, The Real Story of 2016, FiveThirtyEight (Jan. 19, 2017), https://fivethirtyeight.com/features/the-real-story-of-2016/.

[12] Brian Bergstein, What AI Still Can’t Do, MIT Technology Review (Feb. 19, 2020), https://www.technologyreview.com/2020/02/19/868178/what-ai-still-cant-do/.

[13] Id.

[14] Id.

Image Source: https://p0.pxfuel.com/preview/729/37/117/advanced-ai-anatomy-artificial.jpg

By Peyton Reed

 

Twitch is an online streaming platform owned by Amazon that allows creators to host watch parties. While creators can make a variety of content, from cooking classes to wildlife cameras, it is most popular for game streaming. Hundreds of thousands of viewers tune in to see top twitch streamers play popular games like Among Us or Minecraft. [1] Twitch’s popularity has seen a slow but consistent growth since the site’s creation in 2011.[2] In 2018, monthly broadcasters nearly doubled. [3] A survey by GlobalWebIndex shows that 42% of young adults have watched a twitch stream recently.[4]

 

Twitch is popular for both amateur and professional game streamers. After building a successful following, the creator can join the Twitch Affiliate Program.[5] To be eligible, Affiliates need at least 50 followers and to meet specific viewer milestones over a 30 day period. [6] The top-performing creators are able to become a Twitch Partner.[7] Both Affiliates and Partners can charge subscription prices and earn income from their streaming services.

 

In June, Twitch began to crack down on copyright violations and issue Digital Millennium Copyright Act (DMCA) take down notifications.[8]  The most frequently tagged content for DMCA violations are clips. Clips are short, sixty second highlight reels for longer gaming sessions that contain the most exciting parts of the stream.[9]

 

A new wave of DMCA notices rolled out in late October, but this time Twitch has taken additional measures.[10] Typically, DMCA takedown notices give the recipient the ability to file a counter notice to keep up the flagged content. Rather than giving creators an opportunity to file a counternotice, Twitch decided to delete the content instead. Rod Breslau, an esports and gaming consultant, tweeted a portion of the email Twitch creators received after the content was deleted from their video archives.[11] The email reads “We recognize that by deleting this content, we are not giving you the option to file a counter-notification or seek a retraction from the rights holder. In consideration of this, we have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel.”

 

This new wave of DMCA crack downs has created a lot of fear and anger. Affiliates and Partners are concerned because the Twitch Terms of Service threaten to ban repeat copyright infringers.[12] Not only are creators losing their content, but their livelihoods are at stake for those who rely on their streaming income. One of the biggest complaints is that the email notifications do not specifically identify what content is in violation of copyright law. Devin Nash, the former CEO of CLG CEO and Twitch streamer, is highly critical of Twitch’s approach.[13] Nash call’s Twitch’s solution to DMCA “pure, gross negligence.”[14]

 

Twitch streamers are beginning to respond to the DMCA take downs in creative ways. In response to Twitch’s suggestion to mute in-game audio, one user posted a video on Twitter playing Skyrim using her own sound effects. She reads the lines, makes sound effect, and even sings the Skyrim theme song.[15] Her video has over 300,000 views.[16] In the coming months, it will be interesting to watch Twitch streamers adapt to the copyright crackdowns and watch how it effects content creation on the site.

 

[1] Twitch, https://www.twitch.tv/p/en/about/ (last visited Nov. 19, 2020).

[2] Mansoor Iqbal, Twitch Revenue and Usage Statistics (2020), Business of Apps (Last Updated Oct. 30, 2020), https://www.businessofapps.com/data/twitch-statistics/#1

[3] Id.

[4] Duncan Kavanagh, Watch and Learn: The Meteoric Rise of Twitch, GlobalWebIndex (Aug. 20, 2019), https://blog.globalwebindex.com/chart-of-the-week/the-rise-of-twitch/

[5] Twitch Affiliate Program, https://affiliate.twitch.tv/ (last visited Nov. 19, 2020).

[6] Id.

[7] Twitch Partner Program, https://www.twitch.tv/p/partners/ (last visited Nov. 19, 2020).

[8] Bijan Stephen, Twitch streamers are getting blindsided by years-old copyright notices, The Verge (Jun 8, 2020), https://www.theverge.com/21284287/twitch-dmca-copyright-takedowns-clips-controversy-broken-system

[9] Id.

[10] Bijan Stephen, Twitch streamers are getting DMCA takedown notices (again), The Verge (Oct. 20, 2020), https://www.theverge.com/2020/10/20/21525481/twitch-streamers-dmca-takedown-notices-riaa-copyright

[11] Rod Breslau (@Slasher), Twitter (Oct. 20, 2020, 2:26 PM), https://twitter.com/Slasher/status/1318619536191594502?s=20

[12] Twitch: Digital Millennium Copyright Act Notification Guidelines, https://www.twitch.tv/p/legal/dmca-guidelines/ (last visited Nov. 19, 2020).

[13] Alan Bernal, Twitch streamers outraged as new DMCA warning forces them to delete clips, Dexerto (Oct. 21, 2020), https://www.dexerto.com/entertainment/twitch-streamers-outraged-as-new-dmca-warning-forces-them-to-delete-clips-1436293/.

[14] Id.

[15] Jambo All The Way (@PlayWithJambo), Twitter (Nov. 12, 2020, 8:55 PM), https://twitter.com/PlayWithJambo/status/1327067580163645445.

[16] Id.

 

Image Source: https://search.creativecommons.org/photos/49d92f8a-2767-4325-97e4-95c626f4a414

By Christopher Vinson

 

2020 has been challenging for everyone. Social distancing, and the accompanying social isolation, exacerbate challenges for patients suffering through mental health illnesses. To combat increased feelings of isolation therapists began utilizing teletherapy.[1] Teletherapy has emerged as an online mental health resource to connect patients to therapists in a quicker, safer, and more convenient manner. A recent survey by the American Psychological Association reveals that nearly 75% of therapists around the country are providing remote services exclusively.[2] However helpful, the increased use of teletherapy also raised new concerns regarding privacy, insurance policies, and state-to-state licensing requirements.[3]

 

The privacy of patients is mostly governed through the Health Insurance Portability and Accountability Act (HIPAA). Any platform used to communicate between health provider and client must be HIPAA compliant.[4]Such a platform must enable the health professional to secure the client’s data and privacy.[5] Ensuring that the platform chosen has signed a HIPAA-compliant business associate agreement can alleviate these concerns.[6] Taking this step will fulfill the goal of patient privacy and prevent future legality issues concerning HIPAA compliance.[7]

 

Mental health professionals and clients have also experienced issues regarding individual insurance policies. The pandemic only heightened concerns over health insurance coverage for telemedicine and teletherapy.[8]Prior to the pandemic, the market had been slow to embrace this new form of medicine. The increased adoption of teletherapy during social isolation has led to rushed policy changes regarding this issue.[9]Patients are now unsure whether or not their current health insurance plan will actually cover this new method of treatment.[10]

 

The pandemic has renewed the focus on telehealth parity laws around the country. Mental health parity is the equal treatment of mental health conditions in insurance plans.[11] Parity was first passed in Congress in 2008 with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA).[12]However, this law only mandated certain health plans to follow parity laws which has left in a gap in coverage.[13]

 

Parity ensures that health providers are compensated equally for in-person and virtual visits.[14] The gap in coverage created by the MHPAEA has yet to be adequately filled through state telemedicine parity laws.[15] A state has the ability to adopt a stronger parity law that could ensure coverage for mental health conditions through telemedicine.[16] Passing additional telemedicine parity laws would reduce any stress associated with teletherapy by ensuring that those visits will be covered equally under individual’s insurance.[17]

 

Finally, state licensing regulations has threatened to derail the rise in teletherapy. These regulations typically prevent therapists from practicing in different jurisdictions from the one they are licensed in.[18] This obstacle was briefly avoided during the pandemic as many states exempted teletherapy providers from this requirement.[19] However, this was short-lived as many of these exemptions have been lifted with the expiration of public health orders around the country.[20]

 

This challenge has particularly affected universities and colleges who wish to provide care for their out-of-state students.[21] Some institutions, such as Johns Hopkins University, partnered with telehealth companies to increase access for treatment of its students.[22] This allows for students to maintain continuity of care without worrying about the limitations set by state licensing requirements.[23] Johns Hopkins saw substantial usage of this service and were satisfied that it was allowing them to provide care to more students.[24]

 

There are also efforts to pass a federal law that will allow telehealth visits from any state during the pandemic.[25] The TREAT Act was introduced to the Senate on August 4, but has seen little traction.[26] Passing this law would remove the volatility of state to state regulations and public health orders.[27] State laws are subject to change at any moment so passing a federal law would make providing care to out-of-state patients more reliable.[28]

 

Social distancing has impacted many who miss the daily interactions of pre-pandemic life. Providing care for those who are struggling during this time is of the utmost importance. These are the times where innovation is key. It is encouraging that most therapists have adopted the teletherapy methodology. Expansion of the teletherapy market can provide a great service to many, further enhancing and saving lives.

 

[1] Jeff Wisler, Teletherapy, Popular in the Pandemic, May Outlast It, N.Y. Times (July 9, 2020), https://www.nytimes.com/2020/07/09/well/mind/teletherapy-mental-health-coronavirus.html.

[2] Psychologists Embrace Telehealth to Prevent the Spread of COVID-19,  Am. Psychol. Ass’n (Jun. 5, 2020),https://www.apaservices.org/practice/legal/technology/psychologists-embrace-telehealth.

[3] Wisler, supra note 1.

[4] Platforms that are HIPAA Compliant, CPH & Associates, https://www.cphins.com/platforms-that-are-hipaa-compliant/ (last visited Nov. 12, 2020).

[5] Id.

[6] Id.

[7] Id.

[8] Sara Lindberg, Does Health Insurance Cover Online Therapy, Verywell Mind (May 8, 2020), https://www.verywellmind.com/does-my-health-insurance-cover-online-therapy-4842511.

[9] See id.

[10] Id.

[11] What is Mental Health Parity?, National Alliance of Mental Illness, https://www.nami.org/Your-Journey/Individuals-with-Mental-Illness/Understanding-Health-Insurance/What-is-Mental-Health-Parity (last visited Nov. 12, 2020).

[12] Id.

[13] See id.

[14] Kristen Fisher, New Survey Highlights Pros and Cons of Teletherapy for Mental Health, Verywell Health (Oct. 14, 2020). https://www.verywellhealth.com/telehealth-mental-health-5081863.

[15] Id.

[16] National Alliance of Mental Illness, supra note 11.

[17] Fisher, supra note 14.

[18] Greta Anderson, Extending the Reach of Mental Health Therapy, Inside Higher Ed (Oct. 1, 2020),https://www.insidehighered.com/news/2020/10/01/teletherapy-platforms-extend-reach-college-counseling-centers.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Livia Gimenes & Julia Grossman, Students Struggle with Navigating CAPS’ Resources Remotely, The Brown Daily Herald  (Oct. 20, 2020), https://www.browndailyherald.com/2020/10/20/students-struggle-navigating-caps-resources-remotely/.

[26] See id.

[27] Id.

[28] Id.

Image Source: https://www.nytimes.com/2020/07/09/well/mind/teletherapy-mental-health-coronavirus.html

By Kyle Durch

 

If a picture is worth a thousand words, then a video is priceless. In court, the fallibility of witness testimony favors the introduction of photographic or video evidence, when available, rather than a description of its content by a witness.[1]Video evidence is seen as so obviously reliable that it provides the foil against which witness testimony is compared.[2]

 

But just as Adobe Photoshop forever changed digital photography, “deep fake” processing threatens the reliability of video and audio recordings. Rather than simply pasting a photo on top of an underlying video,[3] a “deep fake” video is produced by training a machine learning algorithm with example images of a subject face, then digitally stitching the resulting model onto a target host.[4] The same technique applies to audio to produce convincing, though fake, recordings.[5] Complicating the issue further is the source of training data, which may be voluntarily-uploaded images scraped (automated extraction of data) from Facebook, LinkedIn, or YouTube, or actively collected by from across the entire internet by companies such as Clearview AI.[6] Because of their unapproachable cost, traditional Hollywood movie techniques have largely been ignored as a threat to “everyday” recordings.[7] “Deep fakes,” on the other hand, may be produced using free applications running on relatively low-cost, retail graphics processors installed in home computers.[8]Results vary depending on the available computing power, extent of training data, and time to process.[9]

 

“Deep fakes” present several issues, and although some uses may be benevolent, potential threats are substantial. For instance, one artist used this medium to produce synthetic videos of prominent people doing things that they have never done publicly, such as responding to sexual assault allegations or discussing the spread of conspiracy theories.[10]Similarly, others leveraged the technology to develop a satire news report placing various public figures in ironic situations.[11] Both of these sets of examples are acknowledged by their producers to be fake videos. But in 2019, videos went viral on Facebook depicting House Speaker Nancy Pelosi “drunkenly slurring her words.”[12] Though the editing technique was fairly rudimentary, these Speaker Pelosi videos illustrated how an anonymous producer can make a reasonably believable video with ease. People shared the videos without much thought, spreading doubt and sowing discord through the click of a mouse.[13] Ideologically opposed communities may be entrenched further through tactical use of skewed information.[14] Many public figures and celebrities have fallen victim to similar tactics; as the process proliferates, those most impacted will likely be women and marginalized communities.[15] As “deep fake” production software continues to metastasize and those who use it access more and more social media profiles, the likelihood of victimization of regular folks becomes more acute.[16]

 

While these developments present obvious concern over public discourse, safety, and the understanding of truth, what implications do they have on evidence presented in court? Assuming that an initial recording is itself considered reliable, any break in the chain of custody of video evidence could cast doubt on a video’s authenticity, especially as “deep fake” integration continues to improve.[17] Juries may “be swayed by arguments to not take certain evidence into their consideration” in the absence of authentication by qualified experts.[18] Indeed, this development is related to a phenomenon termed “reality apathy,” where “constant contact with misinformation compels people to stop trusting what they see and hear.”[19] This apathy spread quickly as Donald Trump allegedly coined the term “fake news” following the 2016 election and continued to repeat it over the ensuing years.[20] For these reasons, and to combat the rising presumption against accuracy, it is likely that video editing experts will be commonplace in courtroom protocol in the near future.[21]

 

However, it will not be long until “deep fake” production transcends the so-called “uncanny valley,” the point at which it will be nearly indistinguishable from reality.[22] Detection will become more important than ever, but technology to conclusively detect and block “deep faked” media may be decades away.[23] Use of “defensive artificial intelligence” may eventually become commonplace to provide requisite expertise on the question of authenticity.[24] Of course, such a protocol raises critical access to justice questions, especially when parties are unable to bear the cost of expert testimony, let alone the additional use of complex computer analysis.[25] And in spite of the assurance of experts, reality apathy could erode trust and negatively affect the basic assumptions made by jurors even before entering the courtroom.[26]

 

Federal and state efforts have attempted to address cybercrimes, but these efforts failed to directly target the spread of “deep fakes” and did nothing to address evidentiary concerns. California, Texas, Florida, and New York each attempted to address “revenge porn” and cyberstalking.[27] Existing federal law chews around the edges, while efforts to pass reform have all died in committee.[28] A cohesive federal strategy is likely required to address the threat of “deep fakes,” the effects of which respect no border, are instigated by actors from behind layers of anonymity and encryption, and against which requires expensive and complex litigation.[29]

 

As for evidence at trial, the federal rules are written to afford judges’ discretion.[30] Similar to the way courts, in many cases, defer to agency expertise to resolve statutory ambiguities rather than substitute their own interpretation,[31] the flexible nature of the evidence rules may leave too much ambiguity for judges to effectively rule when faced with a possible “deep fake.” Realizing that the absence of qualified expert testimony could become commonplace, it may be necessary to build presumptions into the rules to guide judges in their rulings. Regardless, the rapid advance of “deep fake” technology will continue to challenge courts and society for years to come.

 

[1] Fed. R. Evid. 1002.

[2] See generally Stephen L. Chew, Myth: Eyewitness Testimony is the Best Kind of Evidence, Psych. Sci. (Aug. 20, 2018), https://www.psychologicalscience.org/teaching/myth-eyewitness-testimony-is-the-best-kind-of-evidence.html (comparing the unreliability of witness testimony with the completeness of a video recording).

[3] See, e.g., JibJab (2020), https://www.jibjab.com/ (providing a service with which consumers may send greeting cards featuring friends and family in humorous videos).

[4] See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Calif. L. Rev. 1753, 1759 (2019).

[5] 3 Computer Contracts § 15.02(2)(p) (2020).

[6] See Angela Morris, Don’t Roll That Tape: Deepfakes Creating Litigation Nightmares, Tex. Law. (Feb. 10, 2020, 11:40 AM), https://www.law.com/texaslawyer/2020/02/10/dont-roll-that-tape-deepfakes-creating-litigation-nightmares/.

[7] See 6 Best Deepfake Apps and Tools in 2020, RankRed (Mar. 1, 2020), https://www.rankred.com/6-best-deepfake-apps-and-tools-in-2020/#:~:text=DeepFaceLab.

[8] See id.

[9] See id.

[10] About, Deep Reckonings, http://www.deepreckonings.com/about.html (last visited Nov. 9, 2020) (depicting the likenesses of Mark Zuckerberg, Justice Brett Kavanaugh, and Alex Jones).

[11] Sassy Justice, YouTube (Oct. 26, 2020), https://youtu.be/9WfZuNceFDM; Dave Itzkoff, The ‘South Park’ Guys Break Down Their Viral Deepfake Video, N.Y. Times (Oct. 29, 2020), https://www.nytimes.com/2020/10/29/arts/television/sassy-justice-south-park-deepfake.html.

[12] Corinne Reichert, Congress Investigating Deepfakes After Doctored Pelosi Video, Report Says, CNet (June 4, 2019, 3:35 PM), https://www.cnet.com/news/congress-investigating-deepfakes-after-doctored-pelosi-video-report-says/.

[13] See Wallace Baine, Welcome to Deepfake Hell, Good Times (Nov. 26, 2019), https://goodtimes.sc/cover-stories/deepfake/.

[14] See Oscar Schwartz, You Thought Fake News was Bad? Deep Fakes are Where Truth Goes to Die, Guardian (Nov. 12, 2018, 5:00 AM), https://www.theguardian.com/technology/2018/nov/12/deep-fakes-fake-news-truth.

[15] Symposium, 21st Century-Style Truth Decay: Deep Fakes and the Challenge for Privacy, Free Expression, and National Security, 78 Md. L. Rev. 882, 885–86 (2019).

[16] See Baine, supra note 12.

[17] See David Notowitz, Deepfakes and the Growing Trend of Fabricated Video Evidence, Recorder (May 2, 2019, 11:50 AM), https://www.law.com/therecorder/2019/05/02/deepfakes-and-the-growing-trend-of-fabricated-video-evidence/.

[18] Id.

[19] Schwartz, supra note 14.

[20] See Andrew Beaujon, Trump Claims He Inveneted the Term “Fake News”—Here’s an Interview with the Guy Who Actually Helped Popularize It, Washingtonian (Oct. 2, 2019), https://www.washingtonian.com/2019/10/02/trump-claims-he-invented-the-term-fake-news-an-interview-with-the-guy-who-actually-helped-popularize-it/.

[21] Notowitz, supra note 16.

[22] Baine, supra note 13 (explaining that “the ‘uncanny valley effect’ . . . [defines that] the closer technology got to reality, the more dissonant small differences would appear to a sophisticated viewer”).

[23] Chesney & Citron, supra 4, at 1788.

[24] 3 Computer Contracts § 15.02(2)(p) (2020).

[25] See generally David Medine, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 Hastings L.J. 281, 303 (1990) (arguing that the Supreme Court should develop a “right to expert assistance based upon equal protection principles”).

[26] Chesney & Citron, supra note 4, at 1779.

[27] Rebecca Delfino, Pornographic Deepfakes: The Case for Federal Criminalization of Revenge Porn’s Next Tragic Act, 88 Fordham L. Rev. 887, 909–17 (2019).

[28] See id. at 904–10.

[29] See Chesney & Citron, supra note 4, at 1792–93.

[30] See, e.g., Fed. R. Evid. 1008 (instructing that “the court determines whether the proponent has fulfilled the factual conditions for admitting” evidence, rather than specifying very particular lists of requirements for each type of evidence).

[31] See Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984).

Image Source:  “Security Cameras” by JeepersMedia is licensed under CC BY 2.0

By Sophia Studer

 

The creation of third-party real estate listing services like Zillow are undoubtedly valuable to consumers of real estate. These sites allow for remote consumers to catch a glimpse into the real estate market of any location and grant free and transparent access to available real estate listings.[1] These are objectively beneficial things in the eyes of a consumer, but what effect does this have on real estate agents and brokers?

 

A core pillar of a realtor’s job is creating real estate listings. Courts have recognized listing information as important realtor work product by “entitling copyright protection for the following contents: photographs, virtual tours, artistic renderings, floor plans, list price, architectural drawings, [and] listing descriptions that include creativity.”[2] While it is great that these protections are in place, these entitlements alone are not enough to keep third party websites–like­ Zillow–from taking realtor-created listing information and publishing it to their own website.[3] This concept is called data scraping and it happens when “websites . . . pull information without permission from . . .  the [Multiple Listing Service].”[4] Thus, realtors are putting in all the work, and third-party sites are reaping the benefits.[5]

 

The National Association of Realtors (“NAR”) attempts to combat the takings of listing information by calling on courts and legislatures for “intellectual property-based right[s] to prevent portals like Zillow . . . from accessing . . . listing data.”[6] This call for intellectual property rights is based on the fact that the listings are created from the time, resources, and know-how invested by real estate brokers and agents doing their jobs each day.[7]This is why home buyers are required to pay for access to the Multiple Listing Service (“MLS”) or hire a realtor to access it for them. The MLS consolidates realtor-created listings for homes on the market in a specific  geographic locality.[8] The small scope of an individual MLS, however, has forced brokerages to combine their active listings and send them out to be viewed on other MLSs or on third party websites like Zillow.[9] This practice is where data scraping became most prevalent, and why the courts and legislatures are being called upon to entitle further copyright protections to real estate listings.[10]

 

Placing listing data on third party sites is helpful for consumers in their home-buying search; usually it is the first thing a buyer will look to.[11] But protecting real estate agents and brokers is a key component to keeping the real estate market healthy. Real estate brokers and agents do more than just create listing data; they help buyers navigate the daunting task of purchasing a home. Without the reliable listing information cultivated by real estate agents and brokers, the real estate market would not be nearly as trustworthy.[12] Realtors provide verified and accurate information, as required of them by law, which creates the valuable data that companies like Zillow are currently scraping without repercussions.[13] As technology and the real estate market progress, real estate brokers and agents must not be left behind. Protecting realtors through listing copyrights would be a step toward making the market work for all.[14]

 

[1] James S. Bradbury, Revenge of the Realtors: The Procompetitive Case for Consolidating Multiple Listing Services, 90 U. Colo. L. Rev. 267, 270 (2019).

[2] Kathryn S. Robinson, Providing Copyright Protection to Real Estate Listings: Protecting Brokers, Sellers, and Consumers, 15 J. Marshall Rev. Intell. Prop. L. 318, 328 (2016) (internal quotations omitted).

[3] Id.

[4] Id. at 323-24.

[5] Id.

[6] Bradbury, supra note 1, at 312.

[7] Id.

[8] Robinson, supra note 2, at 324.

[9] Id.

[10] Id. at 331.

[11] Id. at 329.

[12] Id. at 332.

[13] Id.

[14] See id.

Source: “3D Realty Handshake” by lumaxart is licensed with CC BY-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/2.0/