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Category: Blog Posts (Page 1 of 27)

Posting Pics or Posting Bail?

By: Kara Powell

5 tips for using Facebook to get consistent referrals

Now more than ever, some people tend to post their whole lives on social media. Not only “friends” are seeing these posts anymore – photos and messages on social media may end up in court. New York State Supreme Court Judge Michael Corriero explains his experience with social media as follows: a defense attorney for a weapons charge tells Judge Corriero “he’s never had a weapon in his life, judge.”[1] Judge Corriero goes “on Facebook and [he] see[s] the kid there with two guns in each hand with a big smile on his face.”[2]

Social Media and Discovery:

A trend has been emerging to allow discovery of social media posts and messages, both public and private.[3] For example, the Florida Court of Appeals held both private and public photographs on Facebook are discoverable evidence in a civil suit.[4] The court explained that “Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.”[5]

However, the Florida Court of Appeals distinguished the Nucci case from Root v. Balfour Beatty Construction, LLC.[6] The Root court ordered a much broader production of evidence from Facebook.[7] The requested material included videos, postings, photos, statuses, and likes, without any limitation.[8] The Root court held the discovery request was “’overbroad’” and compelled “’the production of personal information . . . not relevant to’ the [party]’s claims.”[9] In general, as long as the request is not overbroad, social media posts and messages are discoverable evidence.

Social Media and Bail Hearings:

Due to the increasing discoverability of social media posts and messages, such evidence can come in against defendants at every stage of the adjudication process. Even before trial, social media posts can affect defendants at bail hearings, determining whether a defendant is released or detained pending trial.

Federal judges must consider four factors set out in 18 U.S.C. § 3142(g) when determining whether a defendant should be released pending trial. A defendant’s Facebook posts are most relevant to the second factor: “the weight of the evidence against the person.”[10] For instance, if the government presents evidence of a defendant’s social media posts with photographic proof of the defendant committing the alleged crime, this increases the weight of the evidence against the person. In United States v. Choate,[11] the firearm with which the defendant was charged was “identical to one that [d]efendant can be seen holding in a video posted to Facebook.”[12] The judge determined the weight of the evidence (the second factor under § 3142(g)) was substantial, and noted the “alarming content” of the defendant’s Facebook posts.[13]

In addition, in United States v. Tolbert, the court concluded the weight of the evidence against the defendant was strong because the government introduced evidence of a Facebook message the defendant sent on the day of his arrest which included threats to the victims of his alleged crimes.[14]

At any point in the adjudication process, past posts and messages from Facebook can come in against defendants. In sum, be careful what you post.

 

[1] Eames Yates, A Judge Explains How Facebook Can Be Used Against You in Court, Bus. Insider (May 14, 2017, 7:19 AM), https://www.businessinsider.com/judge-explains-how-facebook-social-media-photos-can-be-used-against-you-in-court-2017-5.

[2] Id.

[3] See Heather Antoine, Judges Increasingly Allow Discovery of Private Facebook Content, IPWatchDog (Apr. 23, 2015), http://www.ipwatchdog.com/2015/04/23/judges-increasingly-allow-discovery-of-private-facebook-content/id=57060/.

[4] Nucci v. Target Corp., 162 So. 3d 146, 153–54 (Fla. Dist. Ct. App. 2015).

[5] Id. (internal quotations omitted).

[6] See Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867 (Fla. 2d DCA 2014).

[7] See Id. at 869.

[8] See Id.

[9] Nucci v. Target Corp., 162 So. 3d 146, 154–55 (Fla. Dist. Ct. App. 2015) (citing Root v. Balfour Beatty Construction, LLC, 132 So. 3d 867, 868 (Fla. 2d DCA 2014)).

[10] 18 U.S.C. § 3142(g)(2).

[11] See United States v. Choate, No. 18-30179, 2018 U.S. Dist. LEXIS 58869, at *4 (E.D. Mich. Apr. 6, 2018).

[12] Id.

[13] United States v. Choate, No. 18-30179, 2018 U.S. Dist. LEXIS 58869, at *9 (E.D. Mich. Apr. 6, 2018).

[14] See United States v. Tolbert, No. 3:09-CR-56-TAV-HBG, 2017 U.S. Dist. LEXIS 198744, at *16-18 (E.D. Tenn. Dec. 4, 2017).

 

The Unwinnable War on Video Game Piracy

By: Kirk Kaczmarek

Pirates exist all over the world – not of the swashbuckling Captain Jack Sparrow variety, but the digital. Napster, Limewire, and The Pirate Bay are all popular platforms for sharing digital media freely and illegally. All three platforms have lost their preeminence due to litigation. However, even without their proverbial ships, the pirates remain. The music industry loses $12.5 billion to pirates annually.[1] Current trends project the film and television industry will hit $52 billion in losses to pirates by 2022.[2] And in 2014, Tru Optik estimated the video game industry lost $74 billion to pirates.[3]

To place these losses into perspective, consider global revenue. In 2018, the global video game industry produced $135 billion in revenue.[4] By comparison, the global music and film/television industries produced about $130 and $286 billion respectively.[5]

Digital rights management (DRM) has emerged as video game developers’ solution to the piracy problem. Transactions with DRM typically are not sales. Rather, the consumer pays a one-time licensing fee for access to the content. The DRM itself is a technology that prevents consumers from copying software. For the consumer, the transaction feels like a sale. For the business, the transaction protects copyrighted material by preventing piracy. However, this layer of security comes with drawbacks for consumers – law-abiding consumers cannot create additional copies for personal use, nor sell the original copy.[6] Furthermore, DRM is hardly a foolproof defense. Hackers regularly crack DRM and distribute the software.[7]

The music industry has already run its experiment with this form of DRM. In the early 2000’s, Apple, Microsoft, and other music distributors attached DRM to their digital music files. In the old days, people could go buy a vinyl record, an 8-track tape, or a CD and play it on any machine capable of reading the data; people could make as many copies as they wanted, or sell the original copy. With DRM, this kind of activity became impossible – for example, a song purchased on from Apple’s digital marketplace could only work on Apple devices and could not easily convert to a CD.[8] Additionally, consumers who purchased music with DRM ran the risk of losing that music if the servers hosting the media ever shut down.[9] Consumer outcry, (ultimately unsuccessful) antitrust lawsuits, and the advent of streaming services prompted digital music distributors to drop this form of DRM.[10] Streaming services like Spotify still attach DRM to the music files, but consumers view this as less intrusive – they aren’t paying to “own” the music. The film and television industries followed a parallel pattern, resulting in streaming services like Netflix.

Digital video game marketplaces today mirror those of the early 2000’s music and film industries. For example, Valve’s industry-leading digital video game marketplace for PC, Steam, attaches DRM to all game files.[11] To play a game via Steam, the consumer must launch the Steam application and either have an internet connection, or place the account in “offline mode” and reauthorize that mode on a bi-monthly basis; this prevents people on other computers from accessing games associated with that account. Consumers cannot make copies of the game, nor sell the original copy.[12] And because all the games require access to Steam’s servers, consumers are completely locked into the Steam ecosystem – if Steam were to go out of business, then presumably all 125 million of its users would lose access to the games they have “purchased.”[13]

And yet DRM remains a false barrier. Hackers invariably break the DRM and release the software, and pirates invariably steal it. If DRM does not prevent piracy and hurts the consumer, then why have it? Elmar Fischer, sales director for leading DRM technology firm Denuvo, claims initial sales are the focal point. DRM is only intended to actually function for a few weeks.[14] Thus, DRM and its associated licensure contracts are tools poorly suited to fighting an unwinnable war against piracy.

Furthermore, Fischer’s explanation cannot fully explain DRM’s prevalence. Because DRM is only briefly useful against piracy, and because consumers do not like DRM, why not allow it to expire following its usefulness? A short thought experiment may reveal some of the rational. If you are a developer, then you can place your game with Steam and other distributors – like the Xbox marketplace – to sell with DRM. This DRM locks the software into that distributor’s gaming application. If consumers purchase your game on Steam, but also want to play it on their Xboxes, they will need to buy additional copies for their Xboxes too.[15]

Some distributors, however, are pushing the industry away from this type of DRM. Notably, CD Projekt’s GOG only sells DRM-free games through its digital marketplace, though its catalogue of games is older and much smaller than Steam’s.[16] Additionally, free-to-play mobile games circumvent this particular issue altogether by basing their pricing plans on micro-transactions made during gameplay. However, traditional and free-to-play games appeal to different markets, and therefore a discussion of their different anti-piracy and contracting strategies may not be directly comparable.[17]

 

[1]The True Cost of Sound Recording Piracy to the U.S. Economy, RIAA (2019) https://www.riaa.com/reports/the-true-cost-of-sound-recording-piracy-to-the-u-s-economy/.

[2]DTVE Reporter, Piracy Cost to TV and film industry US$52bn by 2022, DTVE (Oct. 30, 2017), https://www.digitaltveurope.com/2017/10/30/piracy-to-cost-tv-and-film-industry-us52bn-by-2022/.

[3]See Luke Graham, Can Can video game piracy be stopped in two years?, CNBC (Jan. 14, 2016), https://www.cnbc.com/2016/01/14/can-video-game-piracy-be-stopped-in-two-years.html.

[4]See James Batchelor, Global games market value rising to $134.9bn in 2018, Gameindustry.biz (Dec. 18, 2018), https://www.gamesindustry.biz/articles/2018-12-18-global-games-market-value-rose-to-usd134-9bn-in-2018.

[5]Films Industry – Statistics & Facts, statistahttps://www.statista.com/topics/964/film/.

[6]See Digital Rights Management and Technical Protection Measures, Office of the Privacy Commissioner of Canada (Nov. 2006), https://web.archive.org/web/20160414002554/http://www.priv.gc.ca/resource/fs-fi/02_05_d_32_e.asp.

[7]See Ian Birnbaum, The Best Video Game DRM in the Business Is Getting Cracked Before Games Even Launch, Motherboard (Nov. 12, 2018), https://motherboard.vice.com/en_us/article/3k9qnw/the-best-video-game-drm-in-the-business-is-getting-cracked-before-games-even-launch.

[8]See Josh Lowensohn, Jury Finds Apple not liable of harming consumers in iTunes DRM case, The Verge (Dec. 16, 2014), https://www.theverge.com/2014/12/16/7402695/jury-decision-in-iTunes-iPod-DRM-case; Is it possible to burn Apple Music songs to CDs?,  NoteBurner, https://www.noteburner.com/apple-music/burn-apple-music-to-cd.html.

[9]See Mike Masnick, Reason #9,358 For Not Buying DRM’d Music: Walmart Shuts Down DRM Servers, techdirt (Sep. 29, 2008), https://www.techdirt.com/articles/20080929/0004132388.shtml.

[10]See id.  

[11]See Jennifer Menendez, How Steam Employs DRM & What That Means For Your Game, Black Shell Media (Jun. 28, 2017), https://blackshellmedia.com/2017/06/28/steam-employs-drm-means-game/.

[12]See id.

[13]See id.See also Taylor Soper, Valve reveals Steam’s monthly active user count and game sales by region, GeekWire (Aug. 3, 2017), https://www.geekwire.com/2017/valve-reveals-steams-monthly-active-user-count-game-sales-region/.

[14]See Haydn Taylor, Denuvo: “There is no uncrackable game. What we do is protect initial sales”, Gamesindustry.biz (Aug. 29, 2018), https://www.gamesindustry.biz/articles/2018-08-29-denuvo-and-irdeto-on-protecting-early-sales-from-piracy.

[15]See Charlie Osborne, Google engineer: DRM has nothing to do with piracy, ZDNet (Mar. 20, 2013), https://www.zdnet.com/article/google-engineer-drm-has-nothing-to-do-with-piracy/.

[16]See About GOG.com, https://www.gog.com/about_gog.

[17]See Max Preusse, The Dual Audience Dilemma: Appealing to Both Traditional and Crypto Gamers, Medium (May 23, 2018), https://medium.com/the-notice-board/the-dual-audience-dilemma-appealing-to-both-traditional-and-crypto-gamers-d75c584de84e.

Image Source: https://www.publicdomainpictures.net/en/view-image.php?image=119017&picture=pirate-ship-silhouette

What’s Next for the Legal Profession?

By: Eric Richard

A big question floating around the legal industry these days is “what’s next?” There are mounting threats from artificial intelligence (AI), machine learning automation, and alternative legal service providers (ALSP) that seem to grow without hindrance on a regular basis.[1] There’s even competition specifically from four of the largest accounting firms that are threatening to siphon off work usually done by big law firms.[2] The legal industry has always been fierce with competition, such is a hazard of the profession, but what is changing the game recently is competition coming from other industries, as just mentioned.[3]

Deloitte & Touche, Ernst & Young, KPMG, and PricewaterhouseCoopers (the “Big Four”) are the four largest accounting firms in the world.[4] Over the past ten years, the Big Four have been creeping in on services traditionally offered by big law firms.[5] While the Big Four are not able to provide legal services in the U.S., they can in fact provide services that are “legal adjacent,” like e-discovery.[6] “Legal adjacent” meaning services that are able to be performed by those without a legal education and are usually done in preparation for services that do require them to be performed by a licensed attorney. E-discovery is a good example because anyone or any company is capable of gathering information in preparation for litigation, but only a licensed attorney can litigate the issue being researched. This selection of services is carving out a niche for itself among providers that can accomplish the tasks at less of a cost than the average law firm.[7]

So, what exactly has been the effect of these alternative legal service offerings from non-law firms? According to reports, approximately 23 percent of large firms and 21 percent of medium firms say that they have lost at least some of their business to the Bog Four over the previous year.[8] It’s not just individuals and business capitalizing on ALSPs, it’s law firms themselves as well.[9] In another report performed by Thomson Reuters in 2019, 87 percent of law firms that responded said that they were utilizing ALSPs 56 percent more than the rate of use in 2015.[10] This shows that not only do firms themselves have to worry about losing business to ALSPs, but the lawyers working for those firms are losing out as well. After all, faced with competition, what other choice do firms have than to incorporate the new business practices in order to keep up with the changing market?

Often this is referred to as “future proofing.” It’s the practice of taking steps now to take advantage of innovative ideas or practices in order to transition a business more successfully into the future.[11] In further efforts to “future proof” law firms have also begun looking inward for adaptation and not just to what is being offered by ALSPs.[12] Firms are even beginning to grapple with the concept of cryptocurrency when it comes to estate planning and accepting payments for services.[13] While this adaptations may seem small to some, they are an indication of drastic change to come in both the way law firms operate and the type of services that are likely to be offered.

[1] See Jason Tashea, ABA Techshow to delve into ‘future proofing’ law practices, A.B.A.J. (Jan. 29, 2019), http://www.abajournal.com/news/article/techshow-to-deal-with-future-proofing-the-practice-of-law.

[2] See Jason Tashea, Should BigLaw firms worry about increasing competition from the Big Four accounting firms?, A.B.A.J. (Sept. 2018), http://www.abajournal.com/magazine/article/law_firms_competition_accounting.

[3] See id.

[4] See id.

[5] See id.

[6] See Jason Tashea, Alternative legal services providers come into their own as major players, says news report, A.B.A.J. (Jan. 30, 2019), http://www.abajournal.com/news/article/alternative-legal-service-providers-worth-over-10-billion-come-into-their-own-says-new-report/.

[7] See id. See also Jason Tashea, Should BigLaw firms worry about increasing competition from the Big Four accounting firms?, A.B.A.J. (Sept. 2018), http://www.abajournal.com/magazine/article/law_firms_competition_accounting.

[8] See Jason Tashea, Alternative legal services providers come into their own as major players, says news report, A.B.A.J. (Jan. 30, 2019), http://www.abajournal.com/news/article/alternative-legal-service-providers-worth-over-10-billion-come-into-their-own-says-new-report/.

[9] See id.

[10] See id.

[11] See Jason Tashea, ABA Techshow to delve into ‘future proofing’ law practices, A.B.A.J. (Jan. 29, 2019), http://www.abajournal.com/news/article/techshow-to-deal-with-future-proofing-the-practice-of-law.

[12] See id.

[13] See id.

Two Florida Congressmen Deserve a Treat for Their Work on This Bill

By: Annie Mullican

File:Happy dog.jpg

These days, it is hard to read an article or get on any form or social media or television without hearing about politics, and how terrible everything is. Every headline is a scandal or a mean quote by one public figure about another public figure. I gave up looking forward to a time when Democrats and Republicans would begin to work together years ago. But I was pleasantly surprised when I saw a news article about the PACT Act that is projected to be passed by Congress this session. The PACT Act stands for the Preventing Animal Cruelty and Torture, and it is a bill that would make animal cruelty a federal felony. Having taken an Animal Law class, I am keenly aware of the little protections that animals are afforded legally. However, I think many people both in law school and throughout the country will be most shocked by this law because they will realize that animal cruelty is actually not a federal felony. Videos depicting animal cruelty are considered a federal crime, but the underlying acts of cruelty themselves right now are not, which makes no sense. In my opinion, this law is monumental for our government in many ways right now.

 

The men behind this movement are two Florida congressmen: Ted Deutch (Democrat) and Vern Buchanan (Republican).[1] These two congressmen say that they believe this law will close a large gap in our federal laws.[2] Right now, all 50 states have laws that outlaw animal cruelty at the state level.[3] However, if those criminals were to take animals across state lines, the original state would have no jurisdiction, and thus no power to go after those criminals.[4] I think these two Congressmen are right – this bill will close a gaping gap in our country’s laws federal laws, and immensely aid law enforcement in catching abusers – especially those involved in animal fighting. Congressman Ted Deutch stated, “This is common sense, bipartisan legislation to bring some compassion to our animal laws.”[5] So, if this is such a common sense law (which it is) why hasn’t it been passed already? According to these two Congressmen, in the past, the PACT Act has received unanimous support in the Senate, with over 284 bipartisan House cosponsors.[6] In fact, the only reason the act has not passed in the past, according to these Congressmen was because House Judiciary Chairman Bob Goodlatte prevented it from coming to the floor.[7] The Congressmen are optimistic that the bill may be passed with new Chairman Jerrold Nadler (D-NY) serving.[8] The bill of course contains exceptions for hunting, veterinary care, or any actions to protect life or property from a serious threat from an animal.[9]

 

I, too, am optimistic about this law. In a world where it feels like values and compassion have been abandoned, it is very nice to know that kindness and compassion for our furry friends is what continues to bring people together.

[1] Proposed law could make animal cruelty a federal felony,”WECT NEWS, (Jan. 28, 2019) http://www.wect.com/2019/01/28/proposed-law-would-make-animal-cruelty-federal-felony/

[2] Id.

[3] Id.

[4] Cole Higgins, “A Proposed Law will Make Animal Cruelty a Federal Felony,” CNN, (Jan. 28, 2019) https://www.cnn.com/2019/01/28/us/animal-cruelty-federal-felony-bill-trnd/index.html

[5] Id.

[6] Id.

[7] Id.

[8] Christopher Brito, “Proposed Law Would Make Animal Cruelty a Felony Across the U.S.” CBS, (Jan. 28, 2019) https://www.cbsnews.com/news/animal-cruelty-bill-re-introduced-congress-pact-vern-buchanan-ted-deutch/

[9] Id.

Juuls: A Summary

By: Tevin Bowens

Have you ever heard of the term JUULing? It refers to using a JUUL e-cigarette to heat up and vaporize liquid to be inhaled through the mouth. While there are various kinds of e-cigarettes on the market, the JUUL is by far the most popular of them all.[1] The JUUL device was designed and created by James Monsees and Adam Bowen of PAX Labs who later formed JUUL Labs.[2]

The JUUL Device

A JUUL is a small hand-held device that has the outward appearance of a thumb drive and was created for the purpose of helping cigarette smokers make the transition away from cigarettes. Brandishing a $49.99 price tag for its starter pack, a JUUL device uses nicotine salts found in leaf tobacco as its core ingredient[3] and uses a closed loop temperature control algorithm designed to deliver the ideal amount of power at any given time to the JUULpod.[4] The JUULpod, located at the top of a JUUL, is a refillable pod filled with glycerol, glycol, and other ingredients.[5] The most notable of those other ingredients is nicotine. The nicotine content in a JUULpod ranges from 23mg to 40mp per pod,[6] which amounts to the amount of nicotine found in 1-2 packs of cigarettes.

JUUL’s Target Demographic

As of today, JUUL Labs asserts that JUUL was created to provide an alternative option for adults who wished to no longer smoke cigarettes and that their product is not intended for anyone else.[7] JUUL requires a minimum age requirement of thirty-five years old and a person must be a previous cigarette smoker if they wish to model in JUUL’s advertisement campaign. But this was not always JUUL’s strategy.

Back in 2015, JUUL used models as young as twenty-one years old and they also advertised heavily on social media platforms—locations known for high teenage use. The popularity of the JUUL device and its use among teens was so widespread that the topic was the primary focus of an episode of the Comedy Central show South Park.[8] This popularity amongst teens continued to rise and spread through the onset of 2018 until the Food and Drug Administration finally stepped into the picture. Initially, back in April of this year, the FDA sent a collection letter to JUUL labs seeking documents “relating to marketing practices and research on marketing, effects of product design, public health impact, and adverse experiences and complaints related to JUUL products.”[9] Five months later, the FDA conducted a surprise investigation of JUUL labs seizing documents relating to the company’s sales and marketing practice. [10] Finally, the FDA ordered that JUUL find a way to address youths having access to their devices or risk having their flavored pods banned in the country.[11] In response, JUUL Labs pulled its flavored pods out of retail stores, created an age restriction system on its website, and deleted most of their social media accounts.[12] All done in the effort to prevent youths from having access to JUUL devices.

The Future

            JUUL Labs is currently worth around $15 billion.[13] These changes are a step in the right direction, but it appears to be too little too late. There is evidence showing that this outcome may have been the intention of JUUL labs. Dating back to 2015, management for JUUL Labs was apparently aware that the devices were appealing to teenagers.[14] But nothing was done for nearly three years and even that came only after being threatened by the FDA.

The damage is already done. For nearly three years teens have been using and becoming addicted to JUUL pods. JULL’s prevention measures in place will do little in terms of stopping teenagers from procuring flavored JUUL pods. At best, the age restriction will slow teens down from getting their hands on flavored JUUL pods. Even if the FDA fined the company JUUL would still come out ahead. It is well-known that nicotine is a profitable business and JUUL just enlisted almost an entire generation of people who will buy their products for many years to come. While the FDA determines its next course of action, we are left to determine the sincerity of JUUL efforts to thwart the use of teenagers using their products.

 

[1] Will Yakowicz, Why Juul, the Most Popular E-Cig on the Market, Is in Trouble, Inc. (May 11, 2018), https://www.inc.com/will-yakowicz/juul-has-a-problem-its-too-cool.html.

[2] Rakesh Sharma, Which Company Is Behind Popular E-Cigarette, JUUL?, Investopedia (December 7, 2018), https://www.investopedia.com/news/which-company-behind-popular-ecigarette-juul/.

[3] Alyssa Stahr, New Product: PAX LABS Introduces E-CIGARETTE JUUL, VapeNews (June 01, 2015), https://vapenews.com/vape-news/new-product-pax-labs-introduces-e-cigarette-juul/.

[4] JUUL Support, https://support.juul.com/home/learn/faqs/juulpod-basics.

[5] Id.

[6] Id.

[7] Korin Miller, What Is Juuling And Is It Really That Bad For Your Health?, Women’s Health (September 12, 2018), https://www.womenshealthmag.com/health/a18377132/juuling/.

[8] David Hookstead, the new ‘south park’ episode will cover vaping. Check out the hilarious preview here, The Daily Caller (October 17, 2018), https://dailycaller.com/2018/10/17/south-park-vaping-tegridy-farms-preview-video/.

[9] Food & Drug Administration, JUUL Document Collection Letter, https://www.fda.gov/downloads/tobaccoproducts/labeling/rulesregulationsguidance/ucm605490.pdf.

[10] Jen Christensen, FDA seizes thousands of documents from e-cigarette maker Juul, CNN Health (October 2, 2018), https://www.cnn.com/2018/10/02/health/fda-juul-e-cigarette-surprise-inspection-bn/index.html.

[11] Anna Edney, FDA Threatens to Pull E-Cigarettes to Fight the Rise of Kids Vaping, Bloomberg (September 12, 2018), https://www.bloomberg.com/news/articles/2018-09-12/fda-threatens-to-pull-e-cigarettes-to-fight-rise-of-youth-vaping.

[12] ABC Chicago, Juul to eliminate social media accounts, stop retail sales of flavors, abc7 Chicago (November 13, 2018), https://abc7chicago.com/health/juul-to-eliminate-social-media-accounts-stop-retail-sales-of-flavors/4681584/.

[13] Olivia Zaleski, E-Cigarette Maker Juul Labs Is Raising $1.2 Billion, Bloomberg (June 29, 2018), https://www.bloomberg.com/news/articles/2018-06-29/e-cigarette-maker-juul-labs-is-raising-1-2-billion.

[14] Matt Richtel and Sheila Kaplan, Did Juul Lure Teenagers and Get ‘Customers for Life’?, NYTimes (August 27, 2018), https://www.nytimes.com/2018/08/27/science/juul-vaping-teen-marketing.html.

The Uncertain Road Ahead for Transportation Network Companies

By: Tevin Bowens

When it comes to the gig economy—specifically transportation network companies (TNCs) such as Uber and Lyft—uncertainty in legislation is one of their toughest problems to overcome. Today, forty-nine states in the U.S. have some form of state-wide legislation regarding TNCs.[1] There are a handful of states that focused only on creating insurance requirements. The biggest group of states sought to clarify the laws in their state in an attempt to help TNCs by allowing them to effectively plan for the future. However, two states—California and New York—are taking the “quality over quantity” approach thinking such an approach will benefit all parties involved, but in reality their approach does more harm than good.

The California Approach: The ABC Test

The California Supreme Court issued the new ABC test[2] in an attempt to make it easier for employers to label their workers properly as employees or independent contractors.[3] This ruling comes in response to countless wrongful employment classification suits against TNCs in the state. The rationale being that if more people are properly classified as employees it will allow for more benefits such as minimum wage and overtime that ultimately improve living conditions for drivers in the state.

The unfortunate truth is that the law makes the future an uncertain one for TNCs by making it hard to accurately pinpoint who should be labelled as a cheaper work-for-hire independent contractor or a benefits-entitled employee. The ABC test opens TNCs up to lawsuits that will oftentimes end with expensive settlements.[4] Some TNCs, such as Uber, respond by offering the lowest possible wages,[5] give less incentives,[6] and raise customer prices without paying the drivers any of it.[7]

The New York Approach: Driver Cap & Minimum Wage Floor

Earlier this year New York’s city council passed a number of “for-hire vehicle” legislation.[8] However, the two that have the most impact on TNCs are Int. No. 890-B[9] and Int. No. 144-B.[10] Together these two laws are meant to increase the minimum fare per ride, minimum wage, and an unprecedented cap to the amount of TNC drivers to be authorized each year. These laws come in response to public outcry regarding poor driver treatment and the congestion of New York’s streets by drivers of TNCs. New York hopes that with higher pay and less traffic everyone will be happy.

Similar to California’s approach, New York creates an uncertain future. The only difference from California is that the uncertainty, in New York, will be felt primarily by the drivers and customers of TNCs. The discussion for increase in pay is no different than the previous one for California’s approach. What is new is New York’s novel attempt at limiting the amount of TNC drivers on the roads. The simple truth is that there was traffic before Uber and Lyft and there will be traffic afterwards as well.[11] Uber has already made the warning that less drivers will only lead to longer waits and higher prices, which will not pass onto their drivers.[12]

California or New York Approach: Who Wins?

Short answer is that nobody actually wins, but larger TNCs such as Lyft and Uber will walk away the least harmed. Both approaches have the legislatures attempting to make the hard decisions for the TNCs. In California, lawmakers are trying to force benefits on drivers for TNCs. In New York, lawmakers will tell TNCs how much to pay their drivers and how many drivers they can hire. Both sides created these laws adding a level of uncertainty to TNCs, the drivers, and even the customers, but ultimately, they fail to realize the ineffectiveness of this approach.

TNCs will always have the final say when it comes to legislation such as New York and California’s. TNCs can penny pinch at the driver and customer’s expense or they can make the decision to leave the jurisdiction altogether. Either way, it’s the drivers and customers who are taking the biggest blow.

 

[1]Rachel Monahan, Bill to Legalize Uber Across Oregon Dies in Legislative Committee, Willamette Week, (April 17, 2017), https://www.wweek.com/news/state/2017/04/17/bill-to-legalize-uber-across-oregon-dies-in-legislative-committee/.

[2]The three factors that make up the ABC test are as follows: A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

[3]Dynamex Operations W. v. Superior Court4 Cal. 5th 903.

[4]Heather Somerville, Judge approves $27 million driver settlement in Lyft lawsuit, Reuters, (March 16, 2017), https://www.reuters.com/article/us-lyft-drivers-idUSKBN16N30D.

[5] Rani Mola, Uber drivers and other gig economy workers are earning half what they did five years ago, Recode (September 24, 2018), https://www.recode.net/2018/9/24/17884608/uber-driver-gig-economy-money-pay-lyft-postmates.

[6]Christian Perea, Everyone Is Upset About New Surge and Prime Time. Should They Be?, The Rideshare Guy (June 6, 2018), https://therideshareguy.com/everyone-is-upset-about-new-surge-and-prime-time-should-they-be/.

[7]JC, Uber Raising Prices – But Drivers Won’t Benefit, Ridester (November 10, 2018), https://www.ridester.com/uber-raising-prices/.

[8]Mayor de Blasio Signs For-Hire Vehicles Legislation, New York City Gov, (August 14, 2018), https://www1.nyc.gov/office-of-the-mayor/news/409-18/mayor-de-blasio-signs-for-hire-vehicles-legislation.

[9]The New York City Council, INT 0890-2018 Introduction, https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3487613&GUID=E47BF280-2CAC-45AE-800F-ED5BE846EFF4.

[10]The New York City Council, INT 0144-2018 Introduction, https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3331789&GUID=6647E630-2992-461F-B3E3-F5103DED0653.

[11]Allssa Walker, NYC’s Uber cap won’t solve the city’s traffic problem, Curbed New York, (August 9, 2018), https://ny.curbed.com/2018/8/9/17671300/nyc-uber-lyft-regulation-traffic-congestion-pricing.

[12]Emma G. Fitzimmons, Uber Hit With Cap as New York City Takes Lead in Crackdown, The New York Times, (August 8, 2018), https://www.nytimes.com/2018/08/08/nyregion/uber-vote-city-council-cap.html.

You Post on Instagram; What Happens Next?

By: Darden Copeland

When you tap “post” on Instagram, you are “capturing and sharing the worlds moments,”[1] as their slogan cleverly states, but with whom are you sharing these moments? It may seem like you’re merely sharing your photographs that you snapped while on vacation, for example, with those on your friends list, also known as your “followers,” but it doesn’t stop there.  With over one billion users worldwide, Instagram is one of the most popular forms of social media; is this massive pool of users the extent of who can see what you’ve posted?  Unfortunately, no.  Several seemingly innocuous provisions of Instagram’s Terms of Use allow your photographs to be shared with virtually anyone in the world.[2]

The governing document for using Instagram is its Terms of Use.  As somewhat of a “gatekeeper,” the Terms of Use must be accepted in order to use the app, so Instagram’s one billion daily users have already assented to its terms.  Unsurprisingly, 97% of Instagram’s target market was found to click “agree” to terms of use agreements before reading a single word[3]—so what you’re about to read may (and probably will) be news to you.

Though its terms provide that Instagram does not claim ownership of your posted photos, it claims the next best thing.  By posting on Instagram, you, “grant to Instagram a non-exclusive, fully paid and royalty-free, transferrable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.”[4]  That’s one hefty license.  In essence, with the tap of your thumb, you give Instagram the right to use, disseminate, and even modify any of your posted photos for free and for any reason.[5] Does this mean that you could be strolling along Times Square and see a large, blown-up picture of yourself that you once posted as a neat portrait for your followers to see—but this time with a massive mustache for the people of New York City to see?  Yep, it does. Scary, right?

Another section of Instagram’s terms poses a less concerning, yet potentially more damaging concern.  What happens if you were to post something such as a pretty mountain scene that you found somewhere on the internet?  Seems like an innocent—at most disingenuous—way of gaining the likes of your followers, but this move could cost you way more than just a frowning follower or two.  Instagram’s Terms of Use provide that when you post something, you certify that it is in fact yours, so that when you grant them their exceedingly broad license, they can use what you post without worry of infringing on someone else’s intellectual property rights.[6]  The terms further provide that, “you agree to pay for all royalties, fees, and any other monies owed by reason of content you post.”[7]  This means if you were to do something as seemingly innocent as save a pretty photo that’s not your own and post it for your followers to see, you could face a myriad of debts and financial repercussions from, once again, tapping your thumb on that post button.

While all of this does sound bleak, there is a silver lining for Instagram users. The scary prospect of photos meant for several hundred finding their way before the eyes of literally everyone in the world is probably an unlikely scenario.  Instagram is not likely to exploit its license that you granted it by blissfully clicking “accept” because it would deal a damaging blow to its reputation, and among other things it would cultivate a sense of weariness amid the social media platform’s users.[8]

This of course doesn’t mean Instagram can’t share your posts, though, so in order to post with utmost caution, Instagram users should make their profiles “private.”  Instagram notes in its Terms of Use that all of its licensure language is subject to the user’s own Privacy Policy, meaning that publicly shared photos will only come from profiles that are set to public.[9]  But, the categorization of public and private profiles is merely a construct within the Instagram platform itself, so at any moment that dichotomy could dissolve, dumping all one billion users into the public pool of possible worldwide sharing.  Next time you want to “share the world’s moments,”[10] remember that you might just be sharing them with the whole world.

[1]See Instagram Logo and Tagline, Logo and Taglines, (https://www.logotaglines.com/instagram-logo-tagline/).

[2]See Nerushka Bowen, Who Owns Your Instagram Content, Social Media Law Bulletin, (Jan. 28, 2015), https://www.socialmedialawbulletin.com/2015/01/who-owns-your-instagram-content/.

[3]See Caroline Cakebread, You’re Not Alone, No One Reads Terms of Service Agreements, Business Insider, Nov. 15, 2017, https://www.businessinsider.com/deloitte-study-91-percent-agree-terms-of-service-without-reading-2017-11(presenting survey results of individuals aged 18-34).

[4]Terms of Use, Instagram, https://help.instagram.com/581066165581870(last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017), https://www.copyrightlaws.com/instagram-content-copyright/.

[5]See Bowen, Who Owns Your Instagram Content, Social Media Law Bulletin, (Jan. 28, 2015).

[6]See Terms of Use, Instagram, (last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017).

[7]Id.

[8]See, e.g. Mike Isaac and Sheera Frenkel, Facebook Security Breach Exposes Accounts of 50 Million Users, The New York Times, (Sept. 28, 2018), https://www.nytimes.com/2018/09/28/technology/facebook-hack-data-breach.html(explaining that Facebook’s data breach hurt the website’s reputation).

[9]See Terms of Use, Instagram, (last visited Dec. 6, 2018); see also Instagram and Copyright – What Are the Terms of Use?, Copyrightlaws.com (Dec. 11, 2017).

[10]See Instagram Logo and Tagline, Logo and Taglines.

Image Source: https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcT0blVcq0YN6pFe20bCTt44aTdulzefMtxroDO9xwMsJrwiPJP-

 

Broken Processes: Implementing Technology Without Fixing the Underlying Problem

By: Nicholas Gamotis

Stopping for coffee at McDonalds I was surprised to find touch screens installed. I thought that the touch screens would simplify getting my order, making it much quicker and smoother. I had expectations from using similar systems at Sheetz and Wawa where the touch screen ordering system is simple and intuitive to use. At McDonalds ordering a coffee with cream turned out to be less than intuitive. The screen was massive, and there were too many categories to choose from, and once I had my item ordered the option to pay was not readily available. After finally completing my order and paying for it, I waited. I watched as my order was pushed aside and not filled until the manager began hounding the kitchen to fill the coffee order.

My experience at McDonalds was reminiscent of dealing with the DMV trying to register a newly purchased car while I was in the military. After quickly looking up the phone number for customer service I was sent to the website. From the website I was directed to a customer portal that was inoperative. I spent almost an hour searching the form database for the appropriate form to fill out, and finally found a registration form but no way to submit it. I broke down and called customer service and was put on hold for half an hour just to be told that I could not handle registering a newly purchased car online, despite the insistence of the message I endured for thirty minutes telling me that I could do anything I needed on the website.

Bad customer experiences are not limited to the DMV and new technology in our daily lives. A man in New Orleans has received multiple tickets from a speeding camera, ticketing his truck that is parked in front of his house.[1] Adding to the frustration of the citizen was the fact that citations have to be approved by two people who review the photograph before authorizing the citation.[2] After repeated complaints by the citizen the city sent a contractor to reposition the camera to not capture parked cars, which fixed the problem for a while, but ultimately the camera was repositioned and restarted the problem for the citizen.[3]

What did these experiences have in common? These situations can be distilled down to replacing human interaction with automation. All of the situations were poorly implemented. And all of them caused the user to spend more time dealing with them than the process they replaced. All of the problems could have been fixed with simple tweaks.

What can we take away from this? First, we can evaluate our processes when dealing with clients and the public. Are the processes in place simple? If you are getting feedback are you listening to it? Second, we can push the government at all levels to apply these same basic principles. Benefits can range from increased confidence in the government agency (in the case of traffic cameras),[4] decreased program costs, and increased customer satisfaction.

Whether implementing a new process, or revisiting an existing process, either in a firm or government agency, taking the time to make sure that the process (online or in person) is performing as it should is an opportunity to improve customer relations. As Dan Gingiss says “[i]t’s the little things that matter in customer experience, and a lot of little things can go a long way to differentiating your company’s experience from that of a competitor.”[5] By implementing simple processes that work, rather than technology for the sake of technology, the legal market and government alike can leverage technology to increase both customer confidence and satisfaction.

[1]See Jonathan Ramsey, New Orleans Resident Keeps Getting Speeding Tickets for his Parked car, Autoblog(Apr. 11, 2018), https://www.autoblog.com/2018/04/11/speed-camera-wrong-car-new-orleans-police/.

[2]Id.

[3]Id.

[4]See generally supra note 1.

[5]Dan Gingiss, How to ‘Do Simple Better’ in Your Customer Experience, Forbes(Mar. 21, 2018), https://www.forbes.com/sites/dangingiss/2018/03/21/how-to-do-simple-better-in-your-customer-experience/#706c4f307204.

Image Source: https://jalopnik.com/a-speed-camera-in-new-orleans-keeps-ticketing-this-guys-1825177553

WeWork’s Identity Crisis

By: Jonathan Walter

WeWork is the largest co-working company in the world.[1] The company takes on long-term leases for office space, redevelops the space, and then subleases the space for various period of time.[2] Tenants include individuals, small start-ups, established midsize businesses, and even large corporations like Microsoft. Founded in New York City in 2010, the company is now worth over $20 billion dollars.[3] On top of being the biggest office tenant in New York City, WeWork manages over 10 million square feet of space in over 144 offices across the globe.[4]

 To get an idea of just how much space WeWork manages and what that means for its valuation, it’s best to compare it to peer companies. The largest publicly traded office real estate company, Boston Properties, has a market cap of roughly $18 billion and owns about five times the square footage that WeWork does.[5] Lyft, another well-known startup, has a valuation of just over $15.1 billion dollars.[6]

In addition to real estate, WeWork has plans to branch into other business sectors as well. The company has already announced that it will be moving on to housing (WeLive), retail (WeMRKT), and education (WeGrow).[7] As the company expands, its identity changes. So, what is WeWork? Is it a technology company? Is it a real estate company? Is it both or is it something else entirely?

With this rapid growth has come a number of legal (and non-legal) issues, some of which are more common to the technology companies that WeWork considers peers than a real estate company like Boston Properties.

At the beginning of 2018, WeWork made the decision to remove beer taps from their workspaces in California.[8] This is because the company operates in a regulatory grey area and does not have a liquor license in the state.[9] While California law allows for employers to provide alcohol to employees, it is silent on whether or not co-working spaces can serve alcohol to their members and at least one attorney believes it could be problematic that the company provides access to the beer in exchange for leasing the space or paying a membership fee.[10] Although WeWork is technically a landlord, in many ways the company treats its tenants like employees. In addition to beer taps, it furnishes the office with amenities like beanbag chairs, pool tables, and Ping-Pong tables.[11] This is very different than a traditional landlord-tenant relationship and has more in common with the silicon valley start-ups who provide these amenities to their employees than a typical landlord who just leases out office space.

Despite WeWork’s efforts to differentiate itself from an office real estate company like Boston Properties, the company has still fallen into some of the same pitfalls that a more traditional real estate company would face. Most notably, it was revealed that the company owes $18 billion dollars in rent,[12] and some insiders believe that the company is still susceptible to economic downturns.[13] Despite WeWork’s unique business model, rising interest rates and a loss of customers could put the company in a difficult spot.[14] There is an argument to be made that should an economic downturn happen and WeWork becomes unable to pay its rents, the company’s size could force landlords to keep the the company afloat.[15] Additionally, WeWork’s  other ventures could provide the company with other more stable sources of revenue.

It is difficult to pin down exactly what kind of company WeWork is, but so far, the company has seemed to use that to its advantage. With its expansion in to other areas, the question may only grow more difficult to answer as the company faces new challenges.

 

[1]See Roland Li, WeWork Revolutionized Co-working. Now it’s Targeting Corporate Headquarters, San Francisco Chronicle, Nov. 27, 2018,https://www.sfchronicle.com/business/article/WeWork-revolutionized-co-working-Now-it-s-13423133.php.

[2]Id.

[3]See Eliot Brown, WeWork: A $20 Billion Startup Fueled by Silicon Valley Pixie Dust, The Wall Street Journal, Oct. 19, 2017, https://www.wsj.com/articles/wework-a-20-billion-startup-fueled-by-silicon-valley-pixie-dust-1508424483

[4]Id.

[5]Id.

[6]Id.

[7]See supra note 1.

[8]Trisha Thadani, Why WeWork Locked Up Its Beer Taps in California, San Francisco Chronicle, Feb. 16, 2018, https://www.sfchronicle.com/business/article/Why-WeWork-locked-up-its-beer-taps-in-California-12620165.php.

[9]See id.

[10]See id.

[11]Id.

[12]Shona Ghosh, WeWork Wants to Raise $500 Million in Bond Sales. Documents Show It Owes $18 Billion in Rent and is Losing Money, Inc., Apr. 25, 2018, https://www.inc.com/business-insider/wework-raise-money-bond-sale-document-shows-owes-18-billion-rent-burning-cash-sotfbank-investment.html.

[13]See Andrew Ross Sorkin, WeWork’s Rise: How a Sublet Start-Up is Taking Over, New York Times, Nov. 13, 2018, https://www.nytimes.com/2018/11/13/business/dealbook/wework-office-space-real-estate.html.

[14]See id.

[15]See id.

Image Source: http://www.new-corner.com/wp-content/uploads/2018/01/wework-3-1050×590.jpg

The First Gene Edited Baby Is Here (Maybe). Can the Law Catch Up?

By: Brandon Larrabee

Scientist He Jiankui might have gotten more than he bargained for after claiming he had created the first gene-edited humans: the Chinese government is now saying his actions broke the law.[1] Xu Nanping, vice minister for science and technology, said He’s breakthrough — if it is confirmed, of course — “blatantly violated China’s relevant laws and regulations.”[2]

The truth is that many nations are still struggling to figure out their policies on gene editing — and those that have policies are dealing with debates over whether those regulations should be more or less stringent.[3] For example, stringent laws in Canada — where editing “germ line” cells could land someone a 10-year prison term — have come under fire from researchers.[4] A similar “crime” could bring a 15-year sentence in Australia.[5]

The United States, for its part, doesn’t ban germ line editing per se.[6] Other countries have a policy somewhere in between. The United Kingdom, for instance, allows use of gene editing techniques as long as the embryos are not maintained for more than 14 days and are not implanted.[7]

The developments could also force countries and other entities to confront arguments that have so far been largely theoretical, or at least on the very verges of science. For example, the prospect of gene-edited babies is likely to bring new focus to a recent ruling by the European Court of Justice on genetic modifications.[8] The court seemed to place techniques like CRISPR — the method used for human gene editing — under the European Union’s regulations for genetically-modified organisms.[9] (Whether humans with edited genomes would have to be labeled somehow is unclear.)

Elsewhere, laws are not as clear as they could be.[10] France, for example, bans anything that would “undermine the integrity of the human species,” but critics say the definition of “crimes against the human species” is vague.[11]

How effective any of these laws will be in the future is questionable, for two reasons. The first is that technology is changing so rapidly that laws simply might not be able to catch up.[12] The other problem is the possibility of “reproductive tourism,” where wealthy families will travel anywhere that they can get a gene-editing procedure done.[13] That has led to questions about whether the problem needs to be tackled internationally.[14]

The problem, of course, is that international law generally moves even more slowly than domestic law. And, while He Jiankui might be taking a break from engineering more gene-edited babies for now[15], the record so far indicates that science will continue plowing new ground whether or the law keeps pace.

 

[1]Sophia Yan, Gene-editing Babies a Violation of Chinese Law, Says Official, The Telegraph (Nov. 29, 2018, 4:57 PM), https://www.telegraph.co.uk/news/2018/11/29/gene-editing-babies-violation-chinese-law-says-official/.

[2]Id.

[3]For more on the debate in the United States, see Michael R. Dohn, Preventing an Era of “New Eugenics”: An Argument for Federal Funding and Regulation of Gene Editing Research in Human Embryos, 25 Rich. J.L. & Tech., no. 2 (forthcoming).

[4]Ben Schaub, Human Gene Editing Could Change the World — What Are the Laws Governing It in Canada, CBC, https://www.cbc.ca/natureofthings/features/gene-editing-in-canada.

[5]Christopher Gyngell & Julian Savulescu, U.K. Gene Editing Breakthrough Could Land an Aussie in Jail for 15 Years: Here’s Why Our Laws Need to Catch Up, The Conversation (Sept. 25, 2017, 11:22 PM), https://theconversation.com/uk-gene-editing-breakthrough-could-land-an-aussie-in-jail-for-15-years-heres-why-our-laws-need-to-catch-up-84590.

[6]Angela Chen, If Someone Wants to Create Gene-Edited Babies, Who Would Stop Them?, The Verge (Nov. 26, 2018, 3:00 PM), https://www.theverge.com/2018/11/26/18112970/crispr-china-babies-embryos-genetic-engineering-bioethics-policy.

[7]James Gallagher, U.K. Scientists Edit DNA of Human Embryos, BBC (Sept. 20, 2017), https://www.bbc.com/news/health-41269200.

[8]See Case C-528/16,Confédération Paysanne v. Premier Ministre, CELEX West 6016CJ0528 (July 25, 2018).

[9]See Paul Rincon, Gene Editing Is GM, Says European Court, BBC (July 25, 2018), https://www.bbc.com/news/science-environment-44953100.

[10]See R. Isasi et al., Editing Policy to Fit the Genome?, 351 Science 337, 338.

[11]Id.at 339.

[12]See id.at 337.

[13]See Chen, supra note 6.

[14]Id.

[15]Yan, supra note 1.

Image Source: ttps://images.newscientist.com/wp-content/uploads/2018/11/26122048/3000-1.jpg

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