Author: JOLT Page 6 of 9

By Alexandra Hathaway Tillman

Think about how your digital footprint has grown since the pandemic began.

 

Have you used a restaurant delivery app?

 

Signed up for delivery groceries?

 

Done a little more online shopping than usual?

 

The internet has undoubtedly brought us greater convenience, but at a potentially dangerous cost that many do not fully understand. Each click of the “buy” button sends your data to a new place on the internet. And each new place your data is stored increases the chances of your data being leaked or exposed.[1]

 

In the US, several data privacy laws regulate specific sectors rather than a single, overarching data protection law.[2] The US argument for these weaker policies typically centers around the First Amendment and freedom of speech. The “code” of the internet, at its core, is inherently American[3]—open and First Amendment-centric—and any act to regulate the internet is seen as an attack on free speech, one of the many reasons US policymakers are hesitant to create an all-encompassing data privacy act.[4]

 

The White House released a report in June 2018 on “How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World”, but little has been done policy-wise to strengthen US data protection laws and regulations.[5]

 

The European Union (EU) has taken a broader approach, with data protection laws that cover all sectors in a comprehensive rather than piecemeal manner. In the EU, Data protection laws were enacted as early as 1995, with its strongest legislation, the General Data Protection Regulation (GDPR) coming into effect in 2018. The GDPR made data protection a fundamental right that requires strong protections in all member states.[6]

 

China started small, passing legislation that protected user data in specific sectors as the US had done.[7] But in recent years, China has amped up its policymaking in this area, and has quickly developed broad, EU-style data privacy policies.[8]

 

But these laws differ greatly from the EU in what and how they protect users’ data.[9] These new laws allow individuals to take legal action against a company or organization that fails to protect their data, but not against the government when it fails to do so.[10] They also require “data sovereignty” or “data localization” in which any company wanting to do business in China must store its data in China.[11] This requirement comes with huge risks since China is known for its heavy surveillance and data collection; companies could very well find their data misused and leaked by the government.[12]

 

In other words, China’s policies force data to be stored within its borders, and will protect individuals in China from data intrusions by other private individuals and companies—but never from leaks or misuse by the government.

 

Certainly, the world is in need of strong data privacy laws in the digital age, but the Chinese model is not the answer. Its policies heavily limit not just the freedom of the internet, but who can be held responsible when data leaks and breaches occur.

 

If the US does not quickly bolster its data privacy policies, it will not only lose influence in the global conversation on data protection, but risk allowing an authoritarian regime (or a surveillance state?) to set the standard for where and how data is protected worldwide.

 

To keep the internet as open as it was created, the US must develop a strong data protection policy that covers all markets and sectors. Picking and choosing which sectors need data privacy, with a breach in hindsight,[13] is not enough.

 

As the US falls behind in data privacy policy, it gives countries like China the opportunity to lead. In the midst of a pandemic, we are sharing information online more than ever. Whose policies do we want controlling the future of the internet and our privacy?

 

[1] See Have I Been Pwned? http://haveibeenpwned.com (showing the number of recorded websites and accounts that have been the subject of data breaches.

[2] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[3] Lawrence Lessig, Code Version 2.0 33 (2006).

[4] Eugene Volokh, Freedom Of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking about You, 52 Stan. L. Rev., 1, 2 (2000)(stating that broader information privacy rules are not easily defensible under existing free speech law.)

[5]  White House Office of Trade and Manufacturing Policy, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World (June 2018).

[6] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[7] Huizhong Wu, In land of big data, China sets individual privacy rights, Reuters, May 26, 2020. https://www.reuters.com/article/us-china-parliament-lawmaking-privacy/in-land-of-big-data-china-sets-individual-privacy-rights-idUSKBN2320EF

[8] Id.

[9] Samm Sacks, New China Data Privacy Standard Looks More Far-Reaching than GDPR, CSIS, Jan. 29, 2018, https://www.csis.org/analysis/new-china-data-privacy-standard-looks-more-far-reaching-gdpr.

[10] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[11] White House Office of Trade and Manufacturing Policy, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World (June 2018).

[12] Emmanuel Pernot-Leplay, Data Privacy Law in China: Comparison with the EU and U.S. Approaches (Updated on Sept. 27 2020), https://pernot-leplay.com/data-privacy-law-china-comparison-europe-usa/#12_Chinas_Belated_Building_of_its_Legal_Framework.

[13] Lydia Beyoud and Daniel R. Stoller, Equifax Target of Data-Breach Bill Allowing Consumer Lawsuits, Bloomberg Law, Aug. 15, 2019, https://news.bloomberglaw.com/banking-law/porter-taking-aim-at-equifax-with-new-data-security-proposal.

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By Walker Upchurch

 

On Tuesday, October 20, 2020, shockwaves were felt throughout the tech law community as the tech hegemon Google had an antitrust suit brought against it by the Justice Department.[1] The states of Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, and Texas also joined the suit.[2] The suit alleges that Google had abused its dominance in online search and advertising.[3]

 

The suit further alleges that Google violates section 2 of the Sherman Act, 15 U.S.C. § 2. The Act states: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding ten years, or by both said punishments, in the discretion of the court.”[4]The Department of Justice alleges that Google violates this statute as it has unlawfully maintained monopolies in the markets for general search services, search advertising, and general search text advertising through anticompetitive and exclusionary practices.[5]

 

The case has been filed in federal court in Washington, D.C., and it alleged that google uses money that has been collected from advertisers to payphone manufacturers, such as Apple, for a monopoly. Examples of this look to the average person in practice is how the Iphone’s search from the Safari Application is a google search; the android employs a Google search, and so does the Galaxy s10.[6] Likewise, all Apple products, such as the Macbook, use Google as the primary search engine on their default Safari Browser.[7]

 

Likewise, Google’s revenue-sharing agreements with Apple and its other partners will likely be a significant issue as it significantly limits competition.[8] Additionally, the case will hinge on the ideology that General Search Services is a Relevant Antitrust Market.[9] The Department of Justice argues that Google has monopoly power within the general search service market. Additionally, through these exclusionary agreements, the suit alleges that Google has harmed the competition by substantially foreclosing competition in general search services by impeading other potential distribution paths for general search service rivals.[10]

 

It will be quite interesting to see how the antitrust suit will affect Silicon Valley. Companies like Oracle, Amazon, Apple, and Facebook will be watching with bated breath and there are certainly no shortage of new players within the tech space praying for the downfall of these giants. This will most likely be the most important lawsuit as it relates to how we the American people consume our technology that has taken place thus far. While it seems like this suit will be on a crash course with the Supreme court, it will be an extremely important one to watch. Will the behemoth still stand, or will it be picked apart the same way that Standard Oil was? Time will tell, and the American consumer will feel the repercussions.

 

[1] See Michael Balsamo & Marcy Gordon, Justice Dept. files landmark antitrust case against Google, (Oct. 23, 2020, 10:03 A.M.), https://apnews.com/article/google-justice-department-antitrust-0510e8f9047956254455ec5d4db06044.

[2] See Id.

[3] See Id.

[4] Sherman Antitrust Act of 1890, 15 U.S.C. § 2.

[5] See Complaint at 2, Department of Justice Et. Al. v. Google LLC, No. 03010 (D. D. C. filed Oct. 20, 2020).

[6] See Id at 16.

[7] See Id.

[8] See Id. at 25.

[9] See Id. at 28.

[10]See id. at 55.

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By Logan Childress

 

Unless you are living off the grid, you likely use, or at least encounter, artificial intelligence (“AI”) daily, whether you realize it or not.[1] A 2017 global survey revealed that only “34 percent of respondents thought they had directly experienced AI; however, when asked about the technologies in their lives, the survey found 84 percent actually use at least one AI-powered service or device – such as virtual home assistants, intelligent chatbots, or predictive product suggestions.”[2] And, like our personal lives, AI is dramatically impacting how businesses of all sizes operate.[3]

 

Traditionally, AI is thought to be reserved for large, wealthy corporations.[4] But, thanks to its rapid innovation, AI is available to nearly everyone and every business.[5] At this point, AI is developed for nearly every task and offers benefits including: Reduced time spent on tasks, lower costs, increasing results, improving flexibility and responsiveness, and reducing risk.[6]

 

What does this all mean for small business owners? How can AI help make a small business more efficient? Microsoft offers this helpful example:

 

Imagine you own a florist shop, which also has a website [paired with AI]. If a customer searches your site for “red flowers,” you [can] teach your website how to respond. You can train it to show the customer roses, tulips, and Gerbera daisies. What if it’s the holidays? You could tell it in November or December to also show your customers Poinsettias, Christmas cacti, and Christmas Lilies. You could also teach it to show the customer that you make custom Christmas wreaths.[7]

 

In this way, AI allows small businesses to become more efficient by learning how to lead customers to what they want, making interactions and transactions simpler. But, all of these benefits are not just confined to florists, any small business owner can implement AI to help with:

 

1. Email marketing. As mentioned above, there is AI for nearly every task. And, every small business owner knows it is difficult to stay on top of sending emails to customers. Thankfully, AI can solve that issue by collecting data.[8] This data allows AI to (a) optimize send times to maximize engagement, (b) learn buying behaviors to send relevant products and services to customers, (c) increase personalization, (d) optimize the email subject line, and (e) create engaging content.[9]
2. Cybersecurity. Even low tech-businesses could be at risk of digital threats.[10] AI powered cybersecurity actively looks for unusual activity instead of waiting until after a loss to deal with the threat.[11] This feature helps save small businesses from the heartache of a security breach.
3. Engaging with customers. AI can further help customers by: (1) giving them help after hours and provide help 24/7, (2) talking to them, and (3) answering common questions.[12] This kind of AI is normally called a “chatbot.”[13]

 

Ultimately, AI is here to stay.[14] The good news is that it is accessible to any business and will give small businesses the ability to operate and compete more efficiently.[15] You know the saying… If you can’t beat them, join them!

 

[1] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

[2] Press Release, Pegasystems Inc., New Research Reveals Deep Confusion About Artificial Intelligence: Global Consumer Study Shows Hesitancy to Use AI Technology Even Though Most Unwittingly Already Are (Apr. 4, 2017), https://www.pega.com/about/news/press-releases/new-research-reveals-deep-confusion-about-artificial-intelligence.

[3] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

[4] See id.

[5] See Prajwal Paudyal, Cheaper AI, Electricity, and the New Data Scientist, towards data science (May 8, 2019), https://towardsdatascience.com/electricity-cheap-ai-and-the-role-of-the-new-data-scientist-e1e23d1e6910.

[6] Chad Otar, Four Ways Artificial Intelligence Can Help Your Small Business, Forbes (Apr. 9, 2019, 8:00 AM), https://www.forbes.com/sites/forbesfinancecouncil/2019/04/09/four-ways-artificial-intelligence-can-help-your-small-business/#50204dd44a1a.

[7] Lisa Steinmann, How to Use AI for Small Business, Microsoft (Oct. 23, 2019), https://www.microsoft.com/en-us/microsoft-365/business-insights-ideas/resources/how-ai-help-small-business.

[8] See Josh Biggs, Ways Big Data And AI Are Changing Email Marketing, Meldium (Mar. 12, 2019), https://www.meldium.com/ways-big-data-and-ai-are-changing-email-marketing/.

[9] Josh Biggs, Ways Big Data And AI Are Changing Email Marketing, Meldium (Mar. 12, 2019), https://www.meldium.com/ways-big-data-and-ai-are-changing-email-marketing/.

[10] Lisa Steinmann, How to Use AI for Small Business, Microsoft (Oct. 23, 2019), https://www.microsoft.com/en-us/microsoft-365/business-insights-ideas/resources/how-ai-help-small-business.

[11] Id.

[12] Id.

[13] Adrienne Morgan, What is a Chatbot?, discover.bot (Sept. 29, 2020), https://discover.bot/bot-talk/what-is-a-chatbot/.

[14] Nikolas Kairnios, AI Is Here to Stay – Here’s Why, Towards AI (May 22, 2020), https://towards.ai/ai-is-here-to-stay-heres-why/.

[15] Nicole Walters, How Artificial Intelligence Can Help Small Businesses, Bplans (July 24, 2018), https://articles.bplans.com/how-artificial-intelligence-can-help-small-businesses/.

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By Mike Marciano

 

In recent years, music streaming services have maintained strong and promising upward trajectories in terms of popularity and usage statistics.[1] For instance, Spotify, “the world’s biggest music streaming platform by number of subscribers,”[2]reported 286 million monthly active users in its Q1 2020 report, up significantly from the 217 million the company reported in its Q1 2019 report.[3] Such an increase in users has been relatively consistent, as Spotify reported its usership at 131 million in Q1 of 2017, and 96 million in Q1 of 2016.[4]

 

As the popularity of streaming platforms such as Spotify continued on such a consistently positive trend, it became abundantly clear that the copyright law protecting music needed reform.[5] Indeed, lawmakers considered it necessary to curate a law to, “reflect modern consumer preferences and technological developments in the music marketplace.”[6]

 

On October 11, 2018, the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (hereinafter “the MMA”) was enacted.[7] Broadly speaking, the MMA, “updates U.S. copyright law to make music licensing fairer for creators and more efficient for music providers.”[8] While the MMA provides redress for various important music copyright issues, such as the incorporation of pre-1972 sound recordings into the federal copyright system,[9] and the streamlined allocation of royalties to music producers,[10] the MMA importantly creates an entirely new framework for licensing music distributed on streaming services like Spotify.[11]

 

Specifically, the MMA begins with Title I: Musical Works Modernization Act.[12] Title I, “replaces the existing song-by-song compulsory licensing structure for making and distributing musical works with a blanket licensing system for digital music providers,”[13] such as Spotify, “to make and distribute digital phonorecord deliveries . . . .”[14] To make such a marked change, the MMA establishes the creation of the Mechanical Licensing Collective (hereinafter “the MLC”).[15] A nonprofit organization, one important purpose of the MLC will be to establish this blanket licensing system pursuant to the MMA, in part by playing the role of, “administer[ing] blanket mechanical licenses to eligible streaming and download services (digital service providers or DSPs) in the United States,”[16] starting in January of next year.[17] The MLC can then store user data in The MLC Portal, which, “puts songwriters and publishers in a position to manage and control their data to ensure they get paid properly.”[18] In short, after one has registered for one of these licenses, “[t]he MLC will then collect the royalties due under those licenses from the DSPs and pay songwriters, composers, lyricists, and music publishers.”[19]

 

The MMA was born out of a recognized need to remedy the chaos and arbitrariness that defined music law.[20] Virginia Representative Bob Goodlatte, in speaking about the MMA, noted that in taking a “comprehensive review” of copyright laws, “ . . . the most complicated area, and the most contentious, but also by far the most in need of reform, was the area of music copyright law.”[21] “The [MMA],” according to Rep. Goodlatte, “treats various sectors of the music industry – our creative artists and songwriters, and others – in a much more fair way in terms of sharing the rewards for the creativity that takes place in that industry.”[22]

 

This month, the MLC confirmed the location of its new headquarters in Nashville, Tennessee, and expects to be operational in that location by the Spring of next year.[23] With the location set, and the new year around the corner, it will be interesting to see the effect of the MMA and the MLC on the music industry in the years to come.

 

[1] See Mansoor Iqbal, Spotify Usage and Revenue Statistics, Business of Apps (Oct. 2, 2020), https://www.businessofapps.com/data/spotify-statistics/#2.

[2] Id.

[3] Id.

[4] Id.

[5] See The Music Modernization Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/.

[6] Id.

[7] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018).

[8] U.S. Copyright Office, The Music Modernization Act in 2 Minutes, YouTube (Apr. 13, 2020), https://www.youtube.com/watch?v=sjBpQ7_Pl5Q.

[9] See Classics Protection and Access Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/pre1972-soundrecordings/.

[10] See Allocation for Music Producers, U.S. Copyright Off., https://www.copyright.gov/music-modernization/amp/.

[11] See Musical Works Modernization Act, U.S. Copyright Off., https://www.copyright.gov/music-modernization/115/.

[12] U.S. Copyright Off., supra note 5.

[13] U.S. Copyright Off., supra note 11.

[14] Id.

[15] Id.

[16] Mechanical Licensing Collective, About the MLC, The MLC, Themlc.com/our-story.

[17] Id.

[18] Jessica Nicholson, Mechanical Licensing Collective Offers Early Look into the MLC Portal, Music Row (Sept. 30, 2020), https://musicrow.com/2020/09/mechanical-licensing-collective-offers-early-look-into-the-mlc-portal/ (statement of Mechanical Licensing Collective CEO Kris Ahrend).

[19] Mechanical Licensing Collective, supra note 16.

[20] U.S. Copyright Office, The Creation of the Music Modernization Act, YouTube (Mar. 18, 2020) https://www.youtube.com/watch?v=rzGaaKRy93o (Statement of Rep. Jerrold L. Nadler) (“Well, before the MMA, music law was chaotic, and arbitrary, arbitrary in the sense that it was unfair.”).

[21] Id. (statement of Rep. Bob Goodlatte).

[22] Id. (statement of Rep. Bob Goodlatte).

[23] Jessica Nicholson, The Mechanical Licensing Collective Sets Nashville Headquarters Location, Music Row (Oct. 6, 2020), https://musicrow.com/2020/10/the-mechanical-licensing-collective-sets-nashville-headquarters-location/.

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By Anna Hargett

The Supreme Court heard its first arguments since the death of Justice Ginsburg last month.[1] The Court appeared divided upon hearing the arguments of Oracle and Google regarding software code copyright.[2] The Court is expected to rule in June on this case,[3] which has been called the “copyright case of the century.”[4]

Oracle alleges that Google infringed upon Oracle’s copyright when Google used thousands of lines of Java code without a license.[5] When Google developed its Android smartphone platform, it used Java code, which is now owned by Oracle.[6] The Java code operates as an application programming interface (“API”) that provides integration across multiple programs that “speak” to Java programs.[7] Based on these facts, the court will decide if copyright protection extends to APIs.[8]

In 2018, the U.S. Court of Appeals for the Federal Circuit ruled in favor of Oracle, holding that Google’s differing format of smartphone integration was not a significant transformation of the code and therefore could not fall under the “fair use” exception.[9] This ruling overturned a San Francisco jury’s finding that allowed Google’s usage of the code under the “fair use” exception.[10]

At argument, Oracle’s legal team harped on the specialization of the Java code, and defended claims by Google that the Java language merely acts as an organization system.[11] E. Joshua Rosencrantz, counsel for Oracle, defended the unique attributes of the code when Chief Justice Roberts analogized the language to the organization and description of a restaurant’s menu.[12] Rosencrantz replied by emphasizing that, “We fill in the blanks 30,000 times over,” and that “each item had its own description that no one else was using.”[13]

Google argued that the API language is not copyrightable.[14] However, counsel for Google focused more on the “fair use” exception, which Google argues would apply if the Court found that the language is protected.[15] The fair use exception would only apply in this case if Google proves that its use of Java was transformative in nature. [16] Google claims that since the code was used to create a new smartphone platform, it was significantly transformative.[17]However, Oracle views the platform change as infringement because it simply moves the same content into a different format.[18] Google also emphasized the fact that API use is commonplace in the industry, and that this method is the “only way” to accomplish this.[19] However, this did not sit well with Justice Gorsuch when he replied that other competitors such as Microsoft and Apple have been able to write their own languages.[20]

Both parties claim that ruling in favor of the opponent will stunt innovation.[21] If Oracle wins, Google claims that it will give software developers too much power by allowing copyrights by the giants in the industry and quelling competitors.[22] If the Court holds for Google’s fair use, or that APIs are not subject to copyright laws, then it will weaken copyright protections for computer programs and disincentivize innovation from that prospective.[23]

How will this decade-long legal battle end?[24] Based on the Justices’ questions, it seems that Oracle may have the upper hand.[25] However, the Court may decline to rule on API copyright altogether by ruling for Google on procedural grounds.[26] Either way, increased litigation in the software industry will likely ensue as a result.[27]

[1] Jan Wolfe & Andrew Chung, U.S. Supreme Court Divided Over Google Bid to End Oracle Copyright Suit, Reuters (Oct. 7, 2020, 6:04 AM), https://www.reuters.com/article/usa-court-google-oracle/us-supreme-court-to-mull-google-bid-to-end-oracle-copyright-suit-idUSKBN26S1H2.

[2] See id.

[3] Id.

[4] Adam Liptak, Supreme Court Hears Copyright Battle Between Oracle and Google, The New York Times (Oct. 7, 2020), https://www.nytimes.com/2020/10/07/us/supreme-court-google-oracle.html.

[5] Wolfe & Chung, supra, note 1.

[6] Ina Fried, 1 Big Thing: Supreme Court to Weigh Software’s Future, Axios Login (Axios, Arlington, V.A.), Oct. 6, 2020, https://www.axios.com/newsletters/axios-login-89adf203-c2b8-4ded-990b-0754b7bf29c3.html.

[7] Id.

[8] Id.

[9] Wolfe & Chung, supra, note 1.

[10] Liptak, supra, note 4.

[11] Id.

[12] Id.

[13] Id.

[14] Timothy B. Lee, Google’s Supreme Court Faceoff with Oracle Was a Disaster for Google, Ars Technica (Oct. 8, 2020, 11:00 AM), https://arstechnica.com/tech-policy/2020/10/googles-supreme-court-faceoff-with-oracle-was-a-disaster-for-google/.

[15] Id.; see 17 U.S.C. § 107 (2020).

[16] Wolfe & Chung, supra, note 1.

[17] Id.

[18] See Liptak, supra, note 4.

[19] Wolfe & Chung, supra, note 1.

[20] Id.

[21] Fried, supra, note 6.

[22] Lee, supra, note 14.

[23] Id.

[24] See Wolfe & Chung, supra, note 1.

[25] See Lee, supra, note 14.

[26] See id.

[27] Id.

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