Month: March 2021 Page 1 of 2

By Jeffrey Phaup

 

Customers who signed up for a beta test of SpaceX’s Starlink satellite internet service have had to agree, under section nine of the services terms and conditions, that Mars is a “free planet”.[1] The provision states:

 

“For services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith at the time of the Martian settlement.”[2]

 

If this language is taken literally Starlink users are agree that Mars is a “free planet” and that any disputes concerning Starlink services provided on Mars, or while travelling to Mars on a SpaceX Starship will be settled through self regulation.[3] This adherence to a set of “self governing principles” attempts to sidestep international law.[4]

 

Elon Must has plans to create a self-sustaining city on Mars that is entirely self-sufficient and not dependent on links to Earth for its survival.[5] Any future colony on Mars created by SpaceX would use constellations of Starlink satellites orbiting the planet to provide internet connectivity to the colonists and machinery on the planet’s surface.[6]

 

While states have no sovereignty on Mars, this does not leave Mars a “free planet” up for grabs by SpaceX, as it also has no sovereignty.[7] International law deals with this issue through Articles II, VI, and VIII of the 1967 Outer Space Treaty (OST).[8]

 

Article II states that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.[9] Article VI states that nation states bear international responsibility for national activities in outer space, which includes Mars, and includes activities conducted by “non-governmental entities”.[10] Article VIII states that all parties on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.[11]

 

Essentially, each country is responsible for all objects and people they send into space and each country also retains jurisdiction over those objects and people when they go into space.[12] The Unites States thus bears the fault-based liability for any injury or damage that SpaceX’s space bound objects cause to other states’ persons or property as they are SpaceX’s launch state.[13] Additionally, the United States is the sole state that retains jurisdiction and control over SpaceX objects as it is SpaceX’s state of registry.[14]

 

From a legal viewpoint, Clause 9 of Starlink’s terms of service should be regarded as void.[15] Declaring that Mars is a “free planet” and refusing any Earth-based authority over SpaceX’s activities on Mars conflicts with the international obligations of the United States under the Outer Space Treaty, which takes precedence over any contractual terms of services presented by Starlink to its customers.[16] As a company SpaceX can declare anything that it wants; what remains to be seen is how the nations of the world will react to its declarations as it moves forward with its goal to colonize Mars.[17]

 

[1] Mike Brown, SPACEX MARS CITY: LEGAL EXPERTS RESPOND TO ‘GIBBERISH’ FREE PLANET CLAIM, Inverse (Nov. 3, 2020 2:00 PM), https://www.inverse.com/innovation/spacex-mars-city-legal.

[2] Id.

[3] Antonio Salmeri, No, Mars is not a free planet, no matter what SpaceX says, space news (Dec. 5, 2020), https://spacenews.com/op-ed-no-mars-is-not-a-free-planet-no-matter-what-spacex-says/.

[4] See Anthony Cuthbertson, ELON MUSK’S SPACEX WILL ‘MAKE ITS OWN LAWS ON MARS’, INDEPENDENT (Oct. 28, 2020), https://www.independent.co.uk/life-style/gadgets-and-tech/elon-musk-spacex-mars-laws-starlink-b1396023.html.

[5] Id.

[6] Id.

[7] Brown, supra note 1.

[8] Id.

[9] See Cristian van Eijk, Sorry, Elon: Mars is not a legal vacuum – and it’s not yours either, Völkerrechtsblog (Nov. 5, 2020), https://voelkerrechtsblog.org/sorry-elon-mars-is-not-a-legal-vacuum-and-its-not-yours-either/.

[10] Id.

[11] Brown, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Salmeri, supra note 2

[16] See id.

[17] See Brown, supra note 1.

Image Source: “Mars” by Kevin M. Gill is licensed under CC BY 2.0.

By Emma Phillips

 

Musicians around the world have vocalized their disdain for streaming services, stating that platforms like Spotify cater to the labels and the consumers, but not the artists themselves.[1]  As things currently stand, for example, after taking their share, Spotify sends the remainder of the profits from streaming directly to the labels, and it is up to the discretion of the label executives to determine how much its artists receive as compensation.[2] Major labels tend to be less generous than indie labels- they traditionally give their artists 15%-20% of the profits from streaming services, while indie labels have been known to go as far as making it a 50/50 split -but either way, these streaming services serve as just another party that takes funds from the musicians themselves.[3]

 

As a result, artists have attempted to develop creative ways of generating revenue.  In 2014, Michigan-based band named Vulfpeck released an album titled “Sleepify,” which was quite literally just a few minutes of silence.[4]  They uploaded it to Spotify in hopes of generating more revenue- by encouraging listeners to stream the album on repeat while they were sleeping (since it had no noise, and therefore would not interrupt one’s sleep schedule), they generated over $20,000 in streaming revenue without even actively recording music.[5] Spotify later pulled the album without citing a reason as to why- it was not in violation of the terms and conditions Vulfpeck agreed to when they uploaded their music to the service -but no album of a similar nature has been uploaded to the platform since.[6]

 

Since then, bands have been searching for ways to circumvent streaming platforms like Spotify, and as of 2021, there are new possibilities arriving for them to do so.  Linking the purchase of music with cryptocurrency has long been alluring to musicians, since it operates on a blockchain (a form of digital ledger that eliminates the possibility of copying the cryptocurrency and using the copy to purchase something else, which, to frame it more accessibly, is a comparable process to copying a dollar bill and then attempting to spend that copy).[7]  Because of this, instead of being able to freely copy and distribute digital files, those purchasing music by way of cryptocurrency would be held accountable to their transaction since they would not be able to distribute the files freely.

 

The Nashville-based band Kings of Leon is one of the first bands to take concrete steps to make this system of distributing music a reality.  On March 3, 2021, the band announced that their newest album would be released as a non-fungible token (hereafter referred to as an NFT).[8]  An NFT is simply another type of cryptocurrency, once again housed on the blockchain.[9]  The difference between monetary cryptocurrencies like Bitcoin and NFTs, however, is that NFTs house assets like art and music instead of money.[10]  As a result, consumers of Kings of Leon’s new album would exchange their money for an NFT that houses the music on the album itself. Although the album will also be released on streaming platforms such as Spotify and Apple music, Kings of Leon will be attempting to incentivize purchase of the NFT edition of the album by including unique perks within it, such as concert tickets and digital art.[11]  Their hope with this album is to introduce their audience to the idea of integrating cryptocurrency into the process of music consumption.[12]  If they’re successful, and if other bands follow their lead, the way the world consumes music could be completely transformed, and artists could see a dramatic increase in the revenue they generate for their hard work.

 

[1] David Byrne, David Byrne: “The Internet Will Such All Creative Content Out of the World”, The Guardian, (Oct. 11, 2013, 10:53 AM), https://www.theguardian.com/music/2013/oct/11/david-byrne-internet-content-world

[2] Id.

[3] Id.

[4] Hugh McIntire, How a Band Made $20,000 on Spotify from 5 Minutes of Silence, Forbes, (Jul. 28, 2014, 9:00 AM) https://www.forbes.com/sites/hughmcintyre/2014/07/28/how-a-band-made-20000-on-spotify-from-5-minutes-of-silence/?sh=454b0cb418ed

[5] Id.

[6] Id.

[7] Samantha Hissong, A Field Guide to Music’s Potential Crypto Boom, Rolling Stone, (Feb. 4 2021, 12:36 PM), https://www.rollingstone.com/pro/features/music-crypto-blockchain-nfts-guide-1116327/

[8] Samantha Hissong, Kings of Leon Will Be the First Band to Release an Album as an NFT, Rolling Stone, (Mar. 3, 2021, 8:00 AM), https://www.rollingstone.com/pro/news/kings-of-leon-when-you-see-yourself-album-nft-crypto-1135192/

[9] Id.

[10] Id.

[11] Id.

[12] Id.

Image Source: “Bitcoin, bitcoin coin, physical bitcoin, bitcoin photo” by antanacoins is licensed under CC BY-SA 2.0.

By Peyton Reed

 

Reliance and the expansion of technology has changed the way many small business owners operate. Increasingly, small business owners have turned to online marketplaces as a way to sell their products. In 2005 Etsy was founded, giving creators a platform to sell handmade and vintage items across the globe.^[1] Etsy shops have popped up at a consistent rate—and from 2019 to 2020, the number of sellers operating Etsy shops nearly doubled.^[2] Etsy sellers offer a variety of goods, a few particular categories of products available on Etsy shops is a cause of concern—gun accessories and parts.

 

Selling guns, firearm parts, and accessories for assault weapons is generally prohibited on Etsy.^[3] However, Etsy allows the sale of some gun accessories as long as they are either “not affixed to the gun, or are purely cosmetic or decorative in nature.”^[4] This includes products like gun cases, holsters, scopes and stocks. Etsy also bans the sale of toy guns that resemble real firearms.^[5] Fake guns are allowed to be sold “if it is unlikely to be mistaken for a real firing weapon by an average person.”^[6] Etsy’s weapons policy tasks the seller with ensuring they comply with the state’s weapons laws.^[7]This policy, without any real enforcement, is essentially just a safeguard to shield Etsy from liability if and when an Etsy seller ignores state law.

 

On Etsy, there were at least 17 shops selling either high-capacity magazines or couplers in early February.^[8] Magazines feed ammunition into the fire arm, and high-capacity magazines have more than 10 rounds of ammunition.^[9] Couplers are attachment parts for guns, usually used with semi-automatic and automatic assault rifles, that connect multiple magazines together.^[10] They allow the users to reload bullets faster.^[11] It seems like Etsy is taking some measures to prevent these listings. If you directly search the term “coupler,” Etsy shows no results. However, if you search terms like “mag” or “ar-15,” couplers start to pop up after some scrolling. After pressure from TheMarkup, a non-profit news source that specifically investigates technology, Etsy removed some of the listings for magazines, but left up the couplers.^[12]

 

One Etsy shop, FlexCoupler, sells three different coupler options that are 3D printed. ^[13]  Quite a few Etsy shops sell imitation guns, but most of them seem to have an orange tip to signal they are fake. Etsy’s Weapons policy requires all imitation guns to adhere to 15 CFR § 272.3—which requires a permanent blaze orange cap on the guns.^[14] The shop YourCustomStuff sells cosplay guns with removable orange safety caps.^[15] These removable caps seem to directly conflict the Etsy Weapons policy. Even several of the review photos have pictures of the replica guns with the safety caps removed.^[16]

 

Etsy is not the only platform struggling to enforce their own policies. Google, Facebook and Amazon have all faced similar issues recently.^[17] In response to the insurrection at the Capitol, Etsy posted a blog condemning the acts and reaffirming their commitment to providing a safe marketplace.^[18] The blog also stressed the importance of community reporting to alert Etsy about any violations.^[19] It will be interesting to watch how Esty continues to attempt to enforce their policies as their platform continues to grow.

 

[1] Etsy, https://www.etsy.com/about (last visited Mar. 10, 2021).

[2] Craig Smith, 70 Etsy Stats and Facts (2021) | By the Number, DMR (Mar. 2, 2021), https://expandedramblings.com/index.php/etsy-statistics/#:~:text=Number%20of%20active%20Etsy%20users,2018%3A%2039.4%20million.

[3] Our House Rules: Weapons, Etsy, https://www.etsy.com/legal/policy/weapons/207958817249 (last updated Nov. 20, 2020).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Maddy Varner, For Sale on Etsy: Greeting Cards and … Gun Parts?, The Markup (Feb. 2, 2021),  https://themarkup.org/news/2021/02/02/for-sale-greeting-cards-and-gun-parts.

[9] Assault Weapons and Large Capacity Magazines, EFSGV, https://efsgv.org/learn/policies/assault-weapons-and-large-capacity-magazines/#:~:text=buy%20back%20programs.-,A%20large%20capacity%20magazine%20is%20a%20magazine%20used%20in%20any,100%20%E2%80%94without%20having%20to%20reload (last updated July 2020).

[10] Magpul, https://magpul.com/maglinkcoupler-pmag30genm2moe-genm3.html?mp_global_color=118 (last visited Mar. 10, 2021).

[11] Id.

[12] Varner, supra note 8.

[13] FlexCoupler, Etsy, https://www.etsy.com/shop/FlexCoupler (last visited Mar. 10, 2021).

[14] Etsy, supra note 3; Approved Markings, 15 CFR § 272.3 (2020).

[15] YourCustomStuff, Etsy, https://www.etsy.com/shop/YourCustomStuff (last visited Mar. 10, 2021).

[16] Id.

[17] Jeremy B. Merrill, Tech Firms Profited from Far-Right Militia Content Despite Ban on “ThreePercenters,” The Markup (Jan. 21, 2021), https://themarkup.org/news/2021/01/21/tech-firms-profited-from-far-right-militia-content-despite-ban-on-three-percenters.

[18] Josh Silverman, Zero Tolerance for Hate, Etsy (Jan. 12, 2021), https://blog.etsy.com/news/2021/zero-tolerance-for-hate/?ref=press_blog_title.

[19] Id.

Image Source: “FN SCAR Assault Rifle (Light) 5.56 NATO” by brian.ch is licensed under CC BY 2.0

 

By Kyle Durch

 

Think back to the last time you drove on a freeway. The vehicles around you were all driven by people. Were any of those drivers distracted? Were there any speeders. Were you speeding? Assuming the best intentions, people just want to get from point A to point B in the quickest, most convenient way possible. To make transportation safer for everyone, shifting the driving burden from people to autonomous vehicles (AVs) is now feasible, and the transition must happen as quickly as possible with the guidance of smart regulation.

 

Poor decision-making on the road is one of the leading causes of injury and death. The National Highway Traffic Safety Administration (NHTSA) reported that over 36,000 people were killed in motor vehicle crashes in 2018.[1] And although traffic decreased by forty-one percent nationwide thanks to the COVID-19 pandemic—including a decrease of more than sixty percent in urban areas—the remaining drivers made riskier decisions, contributing to a spike of over thirteen percent in traffic fatalities during the summer of 2020.[2] AVs strike at the core of this problem, allowing drivers to safely engage in non-driving activities. Although critics argue that current systems have difficulty dealing with unusual driving circumstances, they acknowledge that driver assistance/replacement systems show great promise in preventing accidents that result from common situations like fatigue and distraction.[3] But how does this “sci-fi” technology work?

 

AVs are functionally the same as any other vehicle on the road, differing only in the use of advanced sensing and control technology. Self-driving technology can be built into electric cars, gas cars, and even into tractor trailers.[4] AVs are equipped with sensors that feed data to an onboard computer, which in turn controls the vehicle. Different kinds of sensors are currently in use, including radio range finders, or radar; light detection and ranging, or lidar; and suites of cameras and ultrasonic obstacle sensors.[5] Combined with Global Positioning System (GPS) location awareness, the computer analyzes the sensor data to produce a simulated representation of the world.[6] The computer then uses that representation to react to the world by sending control signals to the vehicle’s steering, acceleration, and braking systems.[7]

 

But the vast amount of data collected outstrips the computing power available in each vehicle, requiring the use of off-board processing. For example, Tesla uses a data center to run a centralized neural net—a type of artificial intelligence program—that processes data sent to it by its global fleet of cars.[8] The learning produced is then transmitted to every vehicle on the network. In this way, a single Tesla encountering a new stretch of road shares its experience with every other Tesla. Like the Borg in Star Trek, AVs operating on a neural net share a “hive mind” that proactively adapts to the world.[9] Given enough time and experience, these systems have the potential to far exceed the capability of any human driver. That said, connection to the “mothership” is essential.

 

Consistent secure communications enable the neural net to function. Cellular networks provide the bulk of this connectivity.[10] Like any other use of wireless communication, or network connections in general, these networks may be exposed to attack. Hackers may jam signals, insert false inputs, or even directly control vehicles.[11] Preventing these attacks will require standardization, based on an intelligent approach to cybersecurity.

 

Unfortunately, the current regulatory framework is woefully unprepared for this new paradigm. The NHTSA has regulatory authority over all highway vehicles, but no authority over cybersecurity.[12] Lacking the requisite authority and expertise, the agency must rely on the Federal Communications Commission (FCC).[13] The FCC in turn approaches cybersecurity more generally, with efforts such as spectrum availability for transportation and internet of things devices.[14] Without a single entity focused on the best application of cybersecurity to AVs, there is a strong likelihood that uncoordinated implementations by different manufacturers will result in a fragmented, less-secure mess.[15]

 

On the bright side, the NHTSA is aware of its lack of expertise in cybersecurity and is taking initial steps to address the problem. Currently, the agency seeks comments in an advanced notice of proposed rulemaking on Automated Driving System (ADS) safety, now extended to Apr. 1, 2021.[16] Although early in the process, this rulemaking is a critical opportunity to ensure that the NHTSA sets proper benchmarks and limits for the industry. Technology-specific rules based on current capabilities would stifle innovation. On the other hand, overly broad technology-neutral rules may fail to guide industry into safe and secure AV development. The agency needs to adopt a middle-ground approach, requiring industry to use best-practice security measures while incentivizing implementation of any AV system with proven effectiveness. In fact, any manufacturer who fails to implement AV systems in its vehicles should be held accountable for failing to take steps to protect the public health and welfare.

 

Between the NHTSA and vehicle manufacturers, there are many entities who play a role in highway safety, and they all have a responsibility to the public. The development of the autonomous vehicle is arguably the most important highway safety innovation since the seatbelt and the airbag. And like those innovations, the implementation of AVs will see a long, bitter policy battle.[17] But in the end, a minimum baseline of “responsibility to implement,” along with security guidelines and standards, would go a long way toward reducing suffering on America’s roads.

 

[1] Automated Vehicles for Safety, NHTSA, https://www.nhtsa.gov/technology-innovation/automated-vehicles (last visited Feb. 26, 2021).

[2] Jacob Baumgart, Pandemic Revs Up Bad Driver Behavior in Maryland, Patch (Feb 12, 2021, 8:33 PM), https://patch.com/maryland/annapolis/pandemic-revs-bad-driver-behavior-Maryland.

[3] See Peter Hancock, Are Autonomous Cars Really Safer than Human Drivers?, Sci. Am. (Feb. 3, 2018), https://www.scientificamerican.com/article/are-autonomous-cars-really-safer-than-human-drivers/.

[4] See Michael Hicks & Michelle Fitzsimmons, Self-Driving Cars: Your Complete Guide to Autonomous Vehicles, TechRadar (June 7, 2019), https://www.techradar.com/news/self-driving-cars; Semi, Tesla (2021), https://www.tesla.com/semi.

[5] See What is an Autonomous Car?, Synopsys (2021), https://www.synopsys.com/automotive/what-is-autonomous-car.html.

[6] See, e.g., Future of Driving, Tesla (2021), https://www.tesla.com/autopilot (visualizing the car’s recognition of objects in the world, as compared to the driver’s view).

[7] Id.; see also Dirty Tesla, FSD Beta Gets Updated with V8.2 Software–First Impressions Downtown | 2021.4.11.1, YouTube (Mar. 5, 2021), https://youtu.be/EPg_mi15mls (demonstrating capability of the most-recent Tesla beta release of autonomous driving software, including many examples of reactions to poor human driving and degraded road infrastructure).

[8] See Maarten Vinkhuyzen, Tesla Dojo Supercomputer Explained—How to Make Full Self-Driving AI, CleanTechnica (Nov. 21, 2020), https://cleantechnica.com/2020/11/21/tesla-dojo-supercomputer-explained-how-to-make-full-self-driving-ai/.

[9] See Borg, Star Trek (2021), https://www.startrek.com/database_article/borg.

[10] Shusuke Morimoto et al., Cybersecurity in Autonomous Vehicles, Intro. to Applied Informatics, May 2017, at 1–8.

[11] See id.; Rahul Razdan, Tesla Decepticons? Is Automotive Cybersecurity a National Defense Issue?, Forbes (May 2, 2020, 7:33 AM), https://www.forbes.com/sites/rahulrazdan/2020/05/02/is-automotive-cybersecurity-a-national-defense-issue-/?sh=245c3aea1b75 (recounting demonstration of hacker control of a Jeep through its telematics system).

[12] Framework for Automated Driving System Safety, 85 Fed. Reg. 78,058, 78,064 n. 31 (proposed Dec. 3, 2020) (to be codified at 49 C.F.R. pt. 571).

[13] Id.

[14] See Jennifer Johnson & Thomas Parisi, IoT Update: FCC Proposes New Spectrum Plan for Vehicle Safety and Unlicensed Uses, Inside Tech Media (Dec. 4, 2019), https://www.insidetechmedia.com/2019/12/04/iot-update-fcc-proposes-new-spectrum-plan-for-vehicle-safety-and-unlicensed-uses/.

[15] See Jemima Meyers, Self-Driving Cars: How Automakers Can Overcome Cybersecurity Issues, Tripwire (Dec. 30, 2018), https://www.tripwire.com/state-of-security/featured/self-driving-cars-cybersecurity-issues/.

[16] Framework for Automated Driving System Safety; Extension of Comment Period, 86 Fed. Reg. 7523 (proposed Jan. 29, 2021) (to be codified at 49 C.F.R. pt. 571); see also 85 Fed. Reg. at 78,058.

[17] See generally Anthony Branch, National Traffic and Motor Vehicle Safety Act, Britannica, https://www.britannica.com/topic/National-Traffic-and-Motor-Vehicle-Safety-Act (Mar. 16, 2018).

Image Source: https://upload.wikimedia.org/wikipedia/commons/1/13/Uber_Self_Driving_Volvo_at_Harrison_at_4th.jpg

By Mike Marciano

 

In recent years, there has been heightened focus on the health and fitness of athletes in professional sports leagues.[1] For example, star National Basketball Association player LeBron James reportedly commits close to $1.5 million a year to the maintenance of his body through specific dieting plans and workout routines with the goal of ensuring that he continues to maximize his athleticism as he enters the final years of his career.[2] Seven-time Super Bowl Champion Tom Brady, who most recently won a Super Bowl with the Tampa Bay Buccaneers this February, adheres to an extremely strict and unorthodox diet, even eliminating from his diet certain foods that are traditionally considered healthy, in an attempt to precisely target certain dietary considerations.[3]

 

However, while strict dieting and focused training regimes are undoubtedly important to preserving athlete health, one particular technological advancement has been a massive asset to tracking the health of athletes. Specifically, wearable technology used to monitor athlete health and performance has proven to be an effective benefit to various sports leagues.[4]

 

Body-worn technology helps athletes, coaches, and teams in a variety of important ways. Consider Zephyr, a company that creates advanced body-worn performance systems.[5] Zephyr makes wearable compression shirts and sports bras that, “directly measure six key inputs including heart rate, breathing rate, heart rate variability, posture and impact.”[6]These metrics are helpful to teams monitoring the in-game health of athletes, but also to coaches making roster selections.[7]

 

The Zephyr product, in one instance, forewarned of an athlete’s oncoming heat exhaustion.[8] Specifically, the system implemented into the Zephyr product indicated a “student’s rising core temperature – before he showed physical signs of illness.”[9] Based on that information, the athlete was, “immediately cool[ed] and hydrate[d],” resulting in a “full recovery.”[10]

 

Additionally, some professional athletes have indicated a decline in their health as a result of contracting the COVID-19 virus.[11] Wearable technology, like that offered by Zephyr and other companies, such as STATSports, a Northern Ireland-based company, can offer important information to teams and coaches as they navigate through such trying times for their athletes, and the world.[12]

 

Despite the many positive effects that wearable technology has had on athletes and professional sports as a whole, the technology does not come without apprehension. Specifically, such advanced technology has raised privacy concerns with respect to such intimate data about one’s health.[13] For example, “the NFL is unique in that it allows teams to use the [wearable technology] data during contract negotiations,” but, “players do not have full access to this information, unless specifically granted by individual teams.”[14] Similarly, there are more broad concerns as to who exactly is granted access to this information, and the sensitivity level of the information that is collected, as, “data may reveal more sensitive personal information relating to the athlete’s identity, location, or health status, information that cannot be obtained just by closely observing the individual.”[15]

 

These concerns have been met with at least some response and consideration. For example, Major League Baseball has made an effort to address some of the apprehensions brought about by such personal technology as it is used on professional baseball players.[16] In the European Union, “[t]he GDPR regulates the processing of personal data in the EU and imposes harsh penalties for non-compliance,” a standard which applies to the types of data collected by wearable technology.[17]

 

Despite such important concerns, there can be no doubt as to the importance of this technology. If professional sports leagues are genuinely taking athlete health and safety seriously, then it seems silly to not thoroughly explore advanced wearable technology as a means of supporting such a goal. However, so long as the legitimate privacy concerns of athletes are not offended, wearable technology will hopefully continue to be a contributor to the health and safety of athletes worldwide.

 

[1] See Devika Pawar, LeBron James Spends $1.5 Million on Body Care to Keep Up with Growing Competition: Report, Republic (Apr. 13, 2020), https://www.republicworld.com/sports-news/basketball-news/lebron-james-spends-1-half-million-on-body-care-growing-competition.html.

[2] Id.

[3] Alana Mazzoni, How to Eat Like the G.O.A.T: Tom Brady’s Insane Diet That Keeps Him at the Top of the World’s Most Brutal Football Code at an Age-Defying 43, DailyMail (Feb. 7, 2021), https://www.dailymail.co.uk/news/article-9234625/Tom-Bradys-insane-diet-keeps-worlds-brutal-football-code-43.html.

[4] See Sandy Thin, How Wearable Tech Helped Elite Athletes Through the Pandemic, CNN Business (Mar. 5, 2021), https://www.cnn.com/2021/03/05/tech/statsports-performance-tracking-spt-spc-intl/index.html.

[5] See Shourjya Sanyal, How Are Wearables Changing Athlete Performance Monitoring?, Forbes (Nov. 30, 2018), https://www.forbes.com/sites/shourjyasanyal/2018/11/30/how-are-wearables-changing-athlete-performance-monitoring/?sh=730d8fc2ae09; See generally Medtronic, https://www.zephyranywhere.com/ (last visited Mar. 5, 2021).

[6] Sanyal, supra note 5.

[7] See id.

[8] Id.

[9] Id. (quoting Daniel K. Bellamy, Director of Sports Performance, Howard University Bison Athletics).

[10] Id.

[11] See Jackson Thompson, Some Professional Athletes Have Suffered Steep Performance Declines After Contracting COVID-19, Insider (Mar. 4, 2021), https://www.insider.com/these-athletes-suffered-a-steep-decline-after-contracting-covid-19-2021-3.

[12] See Thin, supra note 4.

[13] See Joseph J. Lazzarotti et al., As Wearable Technology Booms, Sports and Athletic Organizations at All Levels Face Privacy Concerns, JacksonLewis (Apr. 5, 2019), https://www.workplaceprivacyreport.com/2019/04/articles/health-information-technology/as-wearable-technology-booms-sports-and-athletic-organizations-at-all-levels-face-privacy-concerns/.

[14] Id.

[15] Id.

[16] Id. (noting that, “Major League Baseball and the Players Association added Attachment 56 to the 2017-2021 Collective Bargaining Agreement to address some of these concerns.”).

[17] Andy Nolan & Lauren Steele, Sports Technology and the GDPR: Data Privacy Concerns in Sports Analysis, Lexology (June 24, 2020), https://www.lexology.com/library/detail.aspx?g=38355c57-547b-4e76-b575-e600d9519d2a.

Image Source: https://www.sporttechie.com/tennis-technology-usta-kinexon-catapult-sports/

By Danielle Taylor

 

As we have just recently passed the one-year anniversary of the global shutdown brought on by the Covid-19 virus, I believe we can confidently say that if it was not clear before, it is clear now that technology and the law are inextricably linked. From Zoom trials and Zoom classes to completely remote internships, lawyers and law students alike have been challenged to take on a new skill set many likely thought they could avoid. However, any contention – before Covid 19 or after – that technological fluency is a skill that can be avoided should be heavily reconsidered by all who intend to practice the law.

 

Research has highlighted a growing need and desire for lawyers who embrace technology.^[1] “Clients want bold, open-minded, and tech-savvy attorneys” and law schools are critical in the effort to meet that need.^[2] In recent years, a number of law schools have broken new ground in their attempts to prepare their students for the changing job market. In 2019, it was determined that at least 10% of law schools in the United States were offering resources for students to learn about the use of AI^[3] and countless others had begun offering technology and innovation courses for credit. In addition to understanding that knowledge regarding technology and innovation is a necessary means of remaining competitive in a rapidly changing field, many law students have embraced these resources and courses offered by their schools out of pure interest – and where they do not find these resources, they create them.

 

In the last few years, student-led technology clubs have grown in popularity at law schools. This Spring, The University of Richmond School of Law welcomed its very own Technology and Innovation Society, started by 2L, Rebecca Pinsky. I sat down with Rebecca to get some insight into her decision to start the club and her plans for its future and hopeful impact on Richmond Law.

 

What was your motivation behind creating the Richmond Law Technology and Innovation Society?

 

I’d like to go to practice with a technology- focused firm after graduation and I wanted to connect with like-minded students while I was here. When I went to join the club, I saw that there wasn’t one. It didn’t exist, so I made it myself!

 

What are your hopes for the club’s future?

 

I’d like to bring in speakers, host panels, and organize workshops. I think our speakers should be a mix of attorneys and technologists… I sent out a pulse survey to students who said they’d be interested in joining and some feedback I got was that people would even be interested in coding bootcamps. They want to learn about technology even if it is not directly related to law.

 

What other campus clubs and organizations would you like to partner with?

 

There are so many interesting crossovers worth exploring. I’d like to do a joint event with the Academic Success Program (“ASP”) about how you can use technology to help you study. I was really pleased to learn that a lot of productivity software is free for students.

 

I would also love to partner with some of the more politically leaning clubs to discuss technology and policy. I can appreciate that everyone may not want to work in tech law but it’s great to be informed about how policy surrounding tech regulation impacts our everyday lives.

 

What impact do you hope the Technology and Innovation Society will have on Richmond Law?

 

I was talking about this recently with our Faculty Sponsor, Professor Kubicki… I came to Richmond Law knowing that it did not have a super strong focus on my interests. I think there are students like me who pick their law school for very pragmatic reasons and then there are students who pick based on a school’s course offerings. Attracting students interested in tech is kind of a chicken-and-egg problem—there usually has to be enough infrastructure in place to draw them in.  The Technology and Innovation Society is one piece of a bigger picture.

 

Thanks, Rebecca!

 

Richmond Law students should be on the lookout for more on events and information coming from the new Technology and Innovation Society. Any student interested in joining or receiving emails should complete this survey.

 

“… proper education can change the course of your career, giving you the opportunity to keep up with the times.” – Valentine Pivovarov ^[4]

 

^[1] See INSIGHT: Tomorrow’s Lawyer Must Embrace Innovation, Bloomberg Law (Apr. 8, 2020) Technologyhttps://www.bloomberglaw.com/bloomberglawnews/us-law-week/X7DG3A08000000?bna_news_filter=us-law-week#jcite.

^[2] Id.

^[3] See Valentine Pivovarov, Future Law School. What Does It Look Like?, Forbes (Feb. 12, 2019) https://www.forbes.com/sites/valentinpivovarov/2019/02/12/futurelawschool/?sh=43e54f2a6a84.

^[4] Id.

Image Source: Rebecca Pinsky, L’22 and Ian McDowell, L’22

By Jacob Newton

 

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”[1] The question becomes, what constitutes confrontation? Face to face confrontation is undoubtedly what the founding fathers intended the Sixth Amendment to encompass. Face to face confrontation was the only possible method to satisfy the confrontation requirement at the time the Sixth Amendment was ratified. The United States Supreme Court has slowly expanded the strict face to face requirements of the Sixth Amendment.

 

In 1988, the Supreme Court held the right of confrontation requires literal face-to-face confrontation.[2] The Supreme Court went on to explain “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’”[3] The “look me in my eye” approach was taken to the confrontation clause. The Supreme Court noted any exception to the right “would surely be allowed only when necessary to further an important public policy.”[4]

 

In 1990, the Supreme Court backed down from this rigid confrontation clause requirement when it was necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant.[5] The child’s testimony still had to be viewed via one-way closed-circuit television, enabling the judge, jury, and defendant to observe the child’s demeanor during testimony.[6] The Court held that the defendant’s confrontation rights did not guarantee an absolute right to face-to-face confrontation at trial since the presence of three of the four confrontation elements (presence, cross-examination of witnesses, the administration of oath, and allowance for observation of witness demeanor by the trier of fact) in the one-way video procedure adequately assured reliability.[7] The Supreme Court has been to silent as to any other specific public policy exceptions to the face to face requirement of the confrontation clause.

 

In Virginia, a Defendant making a required or permitted appearance before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by personal appearance or the use of two-way electronic video and audio communication.[8] The two-way electronic video and audio communication system used for an appearance must meet the following standards: (1) The persons communicating must simultaneously see and speak to one another; (2) The signal transmission must be live, real time; (3) The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and (4) Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.[9]

 

COVID-19 has raised the question, can a judge require a criminal Defendant to appear by video without a waiver? The justification for requiring a Defendant to appear by video is due to the pandemic. It is important to consider the safety for the judge, clerk, attorneys, court security, the Defendant, and other jail population if the Defendant returns to the jail. A judge requiring a Defendant to appear by video eliminates multiple levels of person to person contact. While limiting person to person contact during a pandemic is essential, limiting traditional person to person confrontation in a criminal trial potentially violates the Defendant’s constitutional rights.

 

When looking to Coy v. Iowa, the best argument for requiring a Defendant to appear by two-way electronic video and audio communication is making another exception to the right furthers an important public policy.[10]The public policy argument is to stop the spread of COVID-19 and keep everybody, including the Defendant, safe from unnecessary contact. Three of the four elements of confrontation identified in Coy v. Iowa are present when the Defendant is appearing by two-way electronic video and audio communication. The Defendant’s attorney will still cross-examination witnesses, the Defendant can hear and see the administration of oath, and the trier of fact will still observe the witness’s demeanor. The only deficit is the Defendant’s presence in a traditional sense. The United States Supreme Court in Maryland v. Craig held three out of the four were enough to satisfy the confrontation, so the there is a good faith argument requiring criminal Defendant’s to appear by two-way electronic video and audio communication satisfies the confrontation clause.[11] The requirements set forth in Virginia Code § 19.2-3.1., further bolster the reliability of two-way electronic video and audio communication to satisfy the confrontation clause in Virginia.

 

[1] U.S. Const. amend. VI.

[2] Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801 (1988).

[3] See id. (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).

[4] See id. at 1225.

[5] Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).

[6] Id.

[7] See id. at 841; see also State v. Thomas, 25, 376 P.3d 184, 193 (N.M. 2016).

[8] Va. Code Ann. § 19.2-3.1.

[9] Id.

[10] See Coy, 487 U.S. at 1017, 108 S. Ct. at 2801.

[11] See Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).

Image Source: https://lawshelf.com/shortvideoscontentview/due-process-rights-in-criminal-case-the-right-to-counsel/

By Matt Romano

 

If you have gone to a gym in the last twenty years, you are probably familiar with “spin’ or “spinning” classes. If you are not familiar, they are just exercise classes that take place on a stationary bike. You probably haven’t heard of Mad Dogg Athletics (“MDA”) though, unless you have tried to offer a spinning class yourself. MDA is a stationary bike manufacturer who  has had trademarks on the terms “spin” and “spinning” within the fitness industry since the early 1990s.[1] For years, the company been spending hundreds of thousands of dollars per year on litigation to aggressively enforce these marks across the globe.[2]  This week, Peloton, stationary bike company you’ve actually heard of, filed a petition with the US Patent and Trademark Office’s Trademark Trial and Appeal Board claiming that these trademarked terms MDA has been “abusively enforcing” have now become generic terms within the fitness lexicon.[3] In the petition, Peloton urges “[e]nough is enough. It is time to put a stop to Mad Dogg’s tactic of profiting by threatening competitors, marketplaces and even journalists with enforcement of generic trademarks.”[4]

 

Peloton seems to have a point. Under 15 U.S.C.A § 1064, a petition to cancel the registration of a mark may be filed at any time on the grounds that the registered mark has become “a generic name for the goods or services for which it is registered.”[5] Whether a mark has become generic depends on how it is perceived by the relevant consuming public.[6]Different courts have different ways of doing this analysis, but I thought the Ninth Circuit’s “who-are-you/what-are-you” test explains it well.[7] Under this test, if the relevant public primarily understands a mark as describing “who” a particular good or service is, or where it comes from, then it is valid.[8] However, if the relevant consuming public primarily understand the mark as describing “what” the particular good or service is, then the mark has become generic.[9] Based on this test, I don’t see how MDA can possibly maintain these trademarks. As Peloton points out in the petition, “even five minutes of simple Google searching reveal[s] that everyone in the world — other than Mad Dogg — understands that ‘spin’ and ‘spinning’ are generic terms to describe a type of exercise bike and associated in-studio class.”[10] It’s hard to argue with Peloton there, but, just in case, I did some Google searching myself and it’s pretty undeniable. For example, I googled “spinning near me,” and the first result is Google Maps showing all of the nearest gyms and studios offering cycling classes. None of these places were affiliated with MDA. Moreover, I also stumbled upon the Wikipedia page for “indoor cycling,” where the first sentence reads “indoor cycling, often also called spinning…”, but it makes no mention of MDA in the article.[11]

 

In response Peloton’s petition, MDA called it “meritless” and claimed that it is “little more than retaliation for [MDA]’s patent infringement lawsuit filed against Peloton in December 2020 seeking relief for Peloton’s misuse of [MDA]’s patented technology.”[12] While it very well be a retaliation to the MDA’s suit, calling it meritless seems pretty, well meritless. And since MDA brought up retaliation, it is worth noting that MDA was forced to file Chapter 11 in 2019 due in part to its inability to compete with Peloton in the in-home indoor cycling market after investing in it heavily.[13] In addition, this patent suit comes on the heels of Peloton making over a billion dollars in the final quarter of 2020 alone doing exactly what MDA has failed at.[14]

 

[1] See Mike Masnick, ‘Spinning’ Trademarked; Gyms Being Threatened For Holding Spinning Classes Sans License, TechDirt (Dec. 29, 2010), https://www.techdirt.com/articles/20101227/17284312425/spinning-trademarked-gyms-being-threatened-holding-spinning-classes-sans-license.shtml.

[2] See Timothy Geigner, Peloton Seeks To Invalidate ‘Spinning’ Trademark Held By Trademark Bully, TechDirt (Feb. 18, 2021), https://www.techdirt.com/articles/20210217/07425646259/peloton-seeks-to-invalidate-spinning-trademark-held-trademark-bully.shtml.

[3] See id.

[4] See Rob Lenihan, Peloton Spin-Trademark Argument Meritless, Mad Dogg Athletics Says, TheStreet (Feb. 23, 2021), https://www.thestreet.com/investing/peloton-spin-trademark-fight-meritless-mad-dogg-says.

[5] 15 U.S.C.A. § 1064 (2006).

[6] See, e.g., Threshold Enterprises Ltd. V. Pressed Juicery, Inc., 445 F.Supp.3d 139, 148 (2020).

[7] See id.

[8] Id.

[9] Id.

[10] Lenihan, supra note 4.

[11] Indoor Cycling, Wikipedia, https://en.wikipedia.org/wiki/Indoor_cycling.

[12] Lenihan, supra note 4.

[13] See Thomas J. Ryan, Mad Dogg Athletics Lands In Bankruptcy, SGB Media (Aug. 8, 2019), https://sgbonline.com/mad-dogg-athletics-lands-in-bankruptcy-court/.

[14] See Lauren Thomas, Peloton Quarterly Sales Top $1 billion, But Shares Fall as Cycle Maker Steps Up Further Supply Chain Investments, CNBC (Feb. 4, 2021), https://www.cnbc.com/2021/02/04/peloton-pton-reports-q2-2021-earnings.html.

Image Source: https://cdn11.bigcommerce.com/syn8q9n4bvw/product_images/uploaded_images/2/2017/01/Spinning-2017-Class-Experience.jpg

By Amanda Short

 

In early February you may recall a video of the infamous cat attorney spreading like wild-fire across social media platforms.[1] This video depicted exactly what lawyers and law students dread when using the Zoom platform. You set up your device in an area to ensure your background is professional, click the link to open the Zoom meeting, and then before you have a chance to make any last-minute changes you have an unplanned background or a filter covering your face. This accidental filter may lead to immediate embarrassment in a meeting, competition, interview, or better yet, during a hearing in front of a judge and opposing counsel.

 

Like any other day during in a pandemic world, Attorney Rod Ponton geared up for a civil forfeiture case hearing held over Zoom in Texas’ 394th Judicial District.[2] However, this case would not go as planned when Mr. Ponton joined the hearing only to see his screen portraying a filter of the cutest white kitten over his face.[3] In an interview with BBC, Mr. Ponton stated that before the hearing had started there was no cat filter over his face while in the waiting room, but once the case was called his face was replaced with the cat filter.[4]

 

The 394th Judicial District Court of Texas posted a clip of the hearing on its YouTube page.[5] This 42-second clip started with Judge Roy Ferguson stating “Mr. Ponton, I believe you have a filter turned on in the video settings.”[6] Mr. Ponton, still as a kitten, described that his assistant was trying to take off the filter and he was “prepared to go forward with it.”[7]The infamous line the legal community will remember from this video is “I’m here live. I’m not a cat.”[8] Mr. Ponton practiced as a cat attorney for about a minute before his team was able to remove the filter.[9]

 

Following the fame of the video clip, Judge Ferguson provided a piece of advice to attorneys practicing in a virtual setting.[10] Judge Ferguson stated that “YouTube hears all and never forgets,” so it is important that attorneys are aware that once a virtual hearing has ended the court is still able to see and hear the parties.[11] Judge Ferguson also applauded Mr. Ponton and the other attorneys for keeping a professional composure during the hearing.[12]

 

We can all appreciate the humor that arose from this filter mishap, but what can we do to ensure the same does not happen to us? A stable way to guarantee no virtual background or video filter appears when you are using Zoom is to turn off the settings that allow these functions. Follow these steps to disable the background and filter settings: (1) log into the Zoom platform; (2) access the settings option; (3) choose “In Meeting (Advanced Settings);” and (3) disable the function for virtual backgrounds and virtual filters.[13] Make sure your Zoom settings are set to “purrfection” before you enter any Zoom meetings!

 

[1] See 394th District Court of Texas – Live Stream, Kitten Zoom Filter Mishap, YouTube (Feb. 9, 2021), https://www.youtube.com/watch?v=KxlPGPupdd8.

[2] See Daniel Victor, ‘I’m Not a Cat,’ Says Lawyer Having Zoom Difficulties, N.Y. Times (Feb. 9, 2021), https://www.nytimes.com/2021/02/09/style/cat-lawyer-zoom.html.

[3] See id.

[4] See Cat Zoom: Lawyer Rod Ponton surprised to become internet star, BBC (Feb. 10, 2021) https://www.bbc.com/news/world-us-canada-56009062.

[5] See 394th District Court of Texas – Live Stream, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] See Victor, supra note 2.

[10] See Meryl Cornfield et al., At first, cat lawyer was embarrassed. Then he realized we could all use a laugh., Wash. Post (Feb. 9, 2021, 9:18 p.m.), https://www.washingtonpost.com/technology/2021/02/09/cat-lawyer-zoom-filter.

[11] Id.

[12] See id.

[13] See How to Remove Your Cat Filter, Zoom Help Ctr., https://support.zoom.us/hc/en-us/articles/360056477312-How-to-Remove-Your-Cat-Filter (explaining how to remove a video filter once a person is already in a Zoom meeting).

Image Source: https://www.nytimes.com/2021/02/09/style/cat-lawyer-zoom.html