Category: Blog Posts Page 24 of 75

By Eleni Poulos

Attorneys adhere to a strict level of moral, ethical, and legal competency, as required by the Model Rules of Professional Conduct.[1] As technology use and knowledge evolved, so did the Model Rules.[2] As of August 2012, the American Bar Association modified the rules as the direct result of technology’s influence on the practice of the law.[3] Since its adoption more than half the states—including Virginia—have implemented this rule into their own state rules, especially as the influence of technology only increases.[4] In these states, licensed attorneys are required to maintain a basic level of competence in technology use in the field of law.[5] This knowledge is particularly important because “by remaining technologically incompetent, lawyers are knowingly wasting clients’ time and money due to a lack of computer skills.”[6]

First, it’s important to know what exactly the change that was made is. While Rule 1.1 itself remains unmoved, the comment attached to it “makes it clear that lawyers authorized to practice in a state…have an affirmative obligation to acquire and maintain an awareness and understanding of developments in technology.”[7] Technology competency includes basic knowledge is several areas, such as cybersecurity, e-discovery, internet-based investigations, and a basic understanding of technology usage by clients.[8]

So how can attorneys ensure that they are up caught up on the latest technology and are competent in their field of work? For starters, attorneys are generally required to complete some variance of continued legal education to remain in good standing with the state’s bar association in which they are licensed.[9] In Virginia, continued legal education is required—and this now includes continued legal education targeted specifically to technology training.[10]

In 2017, the Supreme Court of Florida not only required the duty of technology, but also mandated training through at least three hours of CLE training dedicated to technology every three years.[11] John Stewart, the chair of the Technology Subgroup of the Florida Bar’s Vision 2016 commission was a strong proponent of this change and believes “if you are going to be competent in the practice of law, you have to understand technology related to your practice area.”[12]

Other options include the Legal Technology Assessment, which was created to evaluate a firm or legal department’s abilities with basic technology and provide the necessary training, online training, and more concrete training for students while attending law school.[13] Law librarians might also be a useful resource.[14]

It is important that attorneys put in the time and effort to remain competent not just in their legal knowledge, but also their knowledge with technology, especially as the legal field continues to implement technology further into the basic function of practice.

[1] Don Macaulay, What Is a Lawyer’s Duty Of Technology Competence, SmartLawyer (Feb. 2, 2018), https://www.nationaljurist.com/smartlawyer/what-lawyers-duty-technology-competence.

[2] Darla W. Jackson, Lawyers Can’t Be Luddites Anymore: Do Law Librarians Have a Role in Helping Lawyers Adjust to the New Ethics Rules Involving Technology?, 105 L. Library J. 395, 395 (2013).

[3] Id.

[4] Tech Competence, LawSites, https://www.lawsitesblog.com/tech-competence.

[5] Id.

[6] Macaulay, supra note 1.

[7] Id.; Jackson, supra note 2.

[8] Macaulay, supra note 1.

[9] Id.

[10] Tech Competence, supra note 4.

[11] Robert Ambrogi, Florida Becomes First State To Mandate Tech CLE, LawSites (Oct. 3, 2016), https://www.lawsitesblog.com/2016/10/florida-becomes-first-state-mandate-tech-cle.html.

[12] Id.

[13] Robert Ambrogi, OK, We Get Technology Competence, But How Do We Get Technologically Competent?, Above The Law (Nov. 6, 2017), https://abovethelaw.com/2017/11/ok-we-get-technology-competence-but-how-do-we-get-technologically-competent/?rf=1.

[14] Jackson, supra note 2.

Image Source: https://search.creativecommons.org/photos/06f7b1de-f958-404f-b397-3e8ae8481257

By Annalisa Gobin

It is no surprise that the pandemic has paved way for numerous advancements in medicine and technology. However, it may be surprising that much of this progress has been spearheaded by the new technology itself.[1] Artificial Intelligence is reported to have played a role in numerous inventions throughout the pandemic, including having a hand in the development of Covid-19 vaccines.[2] Artificial intelligence’s new role in developing materials, manufacturing processes, pharmaceutical drugs, and software has sparked debate in the legal community on several points: (1) whether AI can be considered an inventor under patent doctrine, (2) if so, should AI be able to obtain patents on the products and technology it created, and (3) whether granting AI patents would eventually lead to the extinction of patent law.[3]

AI has been credited with the development of various products with an uptick of innovation occurring during the pandemic, especially in the medical field.[4] Artificial Intelligence can now read chest X-rays at the level of a doctor and has developed sophisticated algorithms that can collect global data for the purpose of Covid-19 contact tracing.[5] Notably, AI technology and machine learning helped to gather data necessary to produce the Johnson and Johnson Covid-19 vaccine.[6]

However, the idea that AI technology should be able to obtain patents for its work was rebuffed in the recent case, Thaler v. Hirshfeld, which was heard in the U.S. District Court for the Eastern District of Virginia.[7] In Thaler, a federal judge ruled that only a human can be an inventor under U.S. law.[8] The judge reasoned that patent applicants are required to take an oath and that patent doctrine refers to inventors as “individuals,” which is defined in dictionaries as a natural person.[9]

Critics argue that the creations made by AI technology would easily qualify for patents if they had been made by humans and that other countries have already begun to patent AI inventions.[10] They argue that refusal by the USPTO to grant AI patents could lead companies to develop groundbreaking AI technology overseas, rather than in the United States.[11]

If the debate were ever to finish in the favor of AIs being suitable patent applicants, it could lead to a decline of human-made inventions, and as result, diminished need for the majority of current patent law.[12] Further, the refusal to acknowledge AI as inventors may itself lead to the breakdown of present patent law, if it leads to the rise of inventions that cannot be patented.[13] However, it is unlikely that patent law would become entirely extinct, instead the need to fill in these new silences in the law on AI inventions would lead to a dramatic reform of patent law.[14]

With appeals to Thaler v. Hirshfeld pending, we may soon have an answer to whether AI has secured its new gig as inventor. Pending the reform of current law, patent lawyers may want to follow its lead on trying their hand at something new.

[1] AI, COVID-19 and the long haul, Nat. Mach. Intell. (Mar. 18, 2021), https://www.nature.com/articles/s42256-021-00328-9.

[2] Id.

[3] Ryan Abbott, I Think, Therefore I Invent: Creative Computers and the Future of Patent Law, 57 B.C.L. REV. 1079, 1091 (2016).

[4] Tanveer Syeda-Mahmood, IBM AI algorithms can read chest X-rays at resident radiologist levels, IBM RESEARCH BLOG (Nov. 4, 2020), https://www.ibm.com/blogs/research/2020/11/ai-x-rays-for-radiologists/.

[5] Stephanie A. Harmon et. al., Artificial intelligence for the detection of COVID-19 pneumonia on chest CT using multinational datasets, 11 Nat. Comm. 1, 2 (2020).

[6] Terri Park, Behind Covid-19 vaccine development, M.I.T. News (May 18, 2021), https://news.mit.edu/2021/behind-covid-19-vaccine-development-0518.

[7] Thaler v. Hirshfield, 2021 WL 3934803 (E.D. Va. Sep. 2, 2021).

[8] Id.

[9] Id.

[10] Tim W. Dornis, Artificial Intelligence and Innovation: The End of Patent Law as We Know It, 23 Yale L.J. 97, 150 (2020).

[11] Id. at 97.

[12] Id.

[13] Id. at 103.

[14] Id.

Image source: https://www.law.com/legaltechnews/2021/02/19/with-ai-technology-legal-is-finding-out-the-sky-isnt-the-limit/?slreturn=20210828184359

By Elizabeth Jacobs

Over the past few decades, the United States, alongside other countries, have revealed new technologies that have sparked conversation of how to use the technology in an international law realm. For one, some of these technologies can be used as war weapons, sparking a particular interest in international law.

Drones are of particular interest for scholars in the international law field. Broadly, “drones, or unmanned aerial vehicles (UAVs), are aircraft controlled remotely or autonomously via computer without a human pilot.”[1] From the basic definition, it is clear that drones may pose questions regarding safety, control and regulation.

Since drones are a rather new technology and can be used in military war missions, drones have also made their way into the conversation regarding armed conflict. Drones have a variety of uses, which has created problems in how to regulate the technology. Specifically, one aspect of drones that draws concern is how much is truly unknown about the technology, the wide variety of uses, and the best way to execute its use.

There have been several technologies that affect international terrorism and the law of armed conflict. Here, there are several viewpoints on how drones have made an impact and what kind of law should be implemented to control the use of this new technology. Overall, there have been growing concerns as to how drones will be used by countries for terrorism purposes.[2]

Drone technology is not just a popular concept in the United States but is talked about universally. Drones have a broad variety of uses, including recreational ones. It is important to note that a drone someone could go buy at a store is not similar to the one used in military efforts. While drones may be seen as a fun “toy” to some, drones can be invasive when used in international contexts.[3] Drones’ variety of contexts are cause for concern to some because often it is unclear whether a drone flying in the air is a threat or one somebody bought down the street for recreational use.[4]

In particular, U.S. drone strikes represent a significant challenge to the international rule of law. This challenge is not because drone strikes are inherently unlawful on the international spectrum, but rather because drone strikes defy straightforward legal categorization.[5] The unknown of the technology of drones have raised many legal questions.

The concern on the international law level is whether drones further or hurt the international law goal of constraining and ordering power and violence. While drones provide plausible alternatives to violence, they can also contribute to the problem. A drone can contribute to the counterterrorism mission by providing pervasive intelligence and aggressive strike capabilities.[6] Clearly this technology can further support terrorism and violence, which clearly violates the legal goal of constraining violence.

It is clear that new technologies are raising questions about what effect they should have on legal measures, especially when some of the technology’s capabilities are unknown. There are a variety of plausible solutions, but ultimately, how international law handles new technologies is ever evolving. It is important that international law continue to change alongside the technologies to better guarantee its safeguarding.

[1] Christopher J. Coyne & Abigail R. Hall, The Drone Paradox: Fighting Terrorism with Mechanized Terror, 23 INDEP. REV. 51, 51 (2018).

[2] Renske van der Veer, Terrorism in the Age of Technology, CLINGENDAEL (Dec. 4, 2019, 10:28 PM), https://www.clingendael.org/pub/2019/strategic-monitor-2019-2020/terrorism-in-the-age-of-technology/.

[3] Id.

[4] Id.

[5] Rosa Brooks, Drones and the International Rule of Law, 28 J. ETHICS & INT’L AFF. 83, 83 (2014).

[6] Alexander Farrow, Drone Warfare as a Military Instrument of Counterterrorism Strategy, 28 AIR UNIV. 4, 8-10 (2016).

Image Source: http://opiniojuris.org/2020/05/22/tools-to-violate-international-law-armed-drones-in-germany-and-the-governments-legal-position/

By Michael Millstein

Throughout most of American history, both cryptocurrency and the gaming industry respectively have endured copious amounts of scrutiny and uncertainty from the public. In fact, in an effort to eradicate gambling from society, then U.S. Attorney General Robert F. Kennedy put forth great efforts into enacting the Federal Wire Act, utilizing the government’s interstate commerce power to outlaw gambling.[1] Fast forward to 1992, the government enacted the Professional and Amateur Sports Protection Act, which prohibited state or government entities from permitting sports wagering.[2] Now, in 2021, sports betting is legal in 24 states, and other types of traditional gambling are legal in all but two states: Utah and Hawaii.[3] This trend of public acceptance and engagement with time has also seeped into the world of cryptocurrency.[4] In 2015, PwC conducted a survey in which only 6% of respondents claimed they were very familiar with cryptocurrency.[5] Currently, over 14% of Americans own and trade with cryptocurrency.[6] As a result, with both industries growing at rapid speed, the opportunity to combine the two into a business model presents endless lucrative possibilities.[7]

Coupling the 14% of Americans who own cryptocurrency and the 49% of Americans who engage in gambling, a major question for casinos and other gaming industry giants is what the overlap between those numbers is.[8] For example, if only 5% of the crypto-crowd engages in gambling, could the decision for casinos to expand their platforms, allowing in-person and/or online gambling with cryptocurrency, reel in the other 9% of that market? With cryptocurrency gambling only fully legal and integrated within Curacao and the UK, the first US casino to explore this world could potentially sweep up the entire crypto market and be flooded with even more consumers.[9] Not only does this present an excellent financial opportunity for those in the gaming industry, but also for crypto-giants such as Bitcoin. By engaging in a partnership with any gaming platform, consumers may feel inclined to purchase more of that specific coin in order to use it for gaming purposes.

Though the potential for financial success rouses the senses, combing a poorly moderated form of currency with gambling could lead to a plethora of legal problems. Much of why gambling was outlawed in the United States, aside from religious purposes, stems from the criminal activity frequently associated with it.[10] During the 1940’s-60’s, Las Vegas earned its nickname as “Sin City” due to its wild-west tendencies.[11] The mafia and other high level criminals used Las Vegas as their headquarters for their illegal activities.[12] Similarly, cryptocurrency has experienced much of the same trouble, as traders have used cryptocurrency for illegal purposes such as drug trafficking.[13] What makes cryptocurrency an even bigger concern for crime than gambling, is the lack of an arena in which to contain the activity. While most traditional gambling occurs in casinos, cryptocurrency trading occurs online, where preventing crime is marginally more difficult.[14] As the surge of online gambling opportunities rapidly increases in unison with the popularity of cryptocurrency (and the lack of an ability to police it), the gaming industry in America must soon evaluate the risks and rewards of limitless profits and inevitable crime.[15]

As the likelihood of this intersection increases with time due to popularity, acceptance, and prospective financial gain, a whole new set of legal professionals may be needed in order to combat the inevitably ensuing crime wave.[16] The essence of the matter boils down to the question not of whether the legal system can keep pace with the intertwinement of these two industries, but rather what types of protections are available, and if going down this path is worth it.

[1] Brett Smiley, A History of Sports Betting in the United states: Gambling Laws and Outlaws, Sportshandle (Nov. 13, 2007), https://sportshandle.com/gambling-laws-legislation-united-states-history/.

[2] Id.; see Jill R. Dorson, What is PAPSA, The Federal Ban on Sports Betting?, Sportshandle (July 1, 2020), https://sportshandle.com/what-is-paspa-sports-betting-ban-professional-amateur-sports/.

[3] Lou Cannon, Utah’s Gambling Referendum Sparks Emotional Debate in Mormon Zion, Wash. Post. (Aug. 19, 1992), https://www.washingtonpost.com/archive/politics/1992/08/19/utahs-gambling-referendum-sparks-emotional-debate-in-mormon-zion/739ae2ad-acf5-4436-a89e-40b714d1bae8/.

[4] See generally Mindy Lowy et al., Money is no object: Understanding the evolving cryptocurrency market, PwC (Sept. 19, 2017), https://www.pwc.com/us/en/industries/financial-services/library/cryptocurrency-evolution.html (detailing how just a few years ago, a small, yet increasing, numbering of Americans were engaging with cryptocurrency).

[5] Id.

[6] Dawn Allcot, 14% of Americans Own Crypto Right Now: Who’s Actually Doing it Right, Yahoo (Apr. 21, 2021), https://www.yahoo.com/now/study-reveals-crypto-biggest-investors-132102315.html.

[7] Id.; Lowy, supra note 4.

[8] Lowy, supra note 4; Allcot, supra note 6; American Attitude on Casino Gaming 2019, American Gaming Association (Oct. 15, 2019), https://www.americangaming.org/resources/american-attitudes-on-casino-gaming-2019/.

[9] All You Need To Know About Gambling With Cryptocurrency, Great Bridge Links (2015), https://greatbridgelinks.com/all-you-need-to-know-about-gambling-with-cryptocurrency/.

[10] Cannon, supra note 3; see also Beata Pastwa-Wojciechowski, The relationship of pathological gambling to criminality behavior in a sample of Polish male offenders 669, 674 (2011) (exploring how indulging in gambling is correlated with theft offenses).

[11] See generally Sin City secrets: the incredible story of Las Vegas, Love Exploring (Sept. 2, 2020), https://www.loveexploring.com/gallerylist/99342/sin-city-secrets-the-incredible-story-of-las-vegas (providing a timeline of the history of Las Vegas, including its infamous criminal roots).

[12] Bo J. Bernhard et al, From Maverick to Mafia to MBA: Gaming Industry Leadership in Las Vegas from 1931 through 2007, 49 Cornell Hosp. Q. 177, 180 (2008); Dominik Stroukal et al., Bitcoin And Other Cryptocurrency As An Instrument Of Crime In Cyberspace 219, 220-21 (2016).

[13] Claire Nolasco Braaten et al., Convenience Theory of Cryptocurrency Crime: A Content Analysis of U.S. Federal Court Decisions, 42 J. Deviant Behavior 959, 959 (2019).

[14] Hyoun S Kim et al., Do Social Casino Gamers Migrate to Online Gambling? An Assessment of Migration Rate and Potential Predictors, 31 J. Gambling Studies 1819, 1826-1828 (2014); Phillip Larratt, Innovation and The Application of Knowledge for More Effective Policing 1, 2–3 (2017).

[15] Giannis Tziakouris, Cryptocurrencies – A Forensic Challenge or Opportunity for Law Enforcement? An INTERPOL Perspective, 16 Ieee Security and Privacy 92, 93 (2018); see Allcot, supra note 6.

[16] See, e.g., Lowy, supra note 4; Allcot, supra note 6; American Attitude on Casino Gaming 2019, supra note 8.

Image Source: https://www.casino.org/blog/what-cryptocurrency-is-best-for-gambling

By Alexis Laundry

The Commonwealth of Virginia has emerged practically overnight as a leader in solar energy development. Previously dubbed the “darkest state” by solar developers, in 2020 the Commonwealth ranked 4th in the nation for solar development.^[1] The catalyst for this change was the General Assembly’s passage of the Virginia Clean Economy Act (VCEA) in April of 2020, which has been called “the single largest shift in energy policy as it relates to the electricity sector that’s ever been achieved in any state.”[2] The landmark omnibus energy package established ambitious targets for zero-carbon emissions, renewable energy deployment, energy efficiency standards, and more.^[3] It completely reshaped the regulatory landscape for Virginia’s two major public utilities, Dominion and APCo, and forces compliance with the state’s sustainability goals by establishing mandatory renewable portfolio standards and development goals.^[4] The 2021 RPS requirements include 6% of annual sales from renewable sources for APCo and 14% for Dominion.[5] Both utilities also have specific renewable energy development targets: 600 megawatts of APCo capacity by 2030 and 16,100 megawatts of Dominion capacity by 2035.[6] The overall goal is to reach 100% renewable energy by 2050 and net-zero carbon emissions by 2045.[7]

The VCEA became effective in July 2020. Now, more than a year later, we can see that it’s achieving its purpose, especially when it comes to solar development. The new requirements have led to a solar explosion across that state that puts Virginia on track to become one of the largest producers of solar energy in the nation.[8] According to SEIA, over 1,400 MW of solar capacity was installed in 2020 (ranking 4th) and 236 MW was installed during the first quarter of 2021(ranking 5th), the vast majority of which came from utility-scale development.[9] The 2021 Q1 deployment alone is more than the state’s annual deployment in 2018 and 2019.[10] The number of installations across the state total 19,797, which provide 2.57% of the state’s electricity.[11] There’s still a long way to go in order to meet the 2050 goal of 100% renewable energy, but this is encouraging progress that shows the transition is not only possible, but can be rolled out quickly.

One of the most important factors contributing to the success of the program over the last year is support from local governments, who control where the newly required renewable energy projects will be located. In general, local governments have responded positively to the VCEA. There has been an increase in the number of projects approved and localities have been working to update their planning policies and regulations to allow for more solar and wind development.^[12] This positive response is partly due to other laws enacted in 2020 that gave localities more tools to maximize revenue and minimize risks from solar projects.^[13] These laws include a Solar Revenue Share law that allows localities to assess up to $1,400 per megawatt of capacity;[14] new rules allowing localities to require solar siting agreements or conditions to permits that provide for cash payments for certain capital needs or assisting the locality with infrastructure projects;[15] and changes to the tax exemptions that apply to solar equipment that will allow localities to collect more tax revenue over the life of the project.[16] By taking advantage of these new laws, localities can reap more benefits from solar projects than before, such as upfront cash payments or assistance with broadband deployment.[17] These options serve as powerful incentives for local governments to approve more projects and make their counties attractive to further development by reducing barriers in their permitting process.

On the other hand, not everyone is satisfied with the increased pace and volume of solar deployment in the state; a major barrier to projects making it into the ground is organized public opposition.^[18] For example, last May Culpeper County denied a permit for a large solar project after more than 30 people participated in the public hearing before the Board of Supervisors, the vast majority of which expressed vehement opposition.[19] The complaints embodied classic NIMBY arguments,[20] including concerns about losing the county’s rural character, environmental damage, noise and traffic during construction, and impacts to historic sites, such as Revolutionary War and Civil War battlegrounds.[21] In the end, public opinion obviously swayed the Board, which unanimously voted to reject the application, despite at least two Board members believing the project was in accordance with the county’s Comprehensive Plan.[22] Board meetings just like this have led to many proposed solar farms being denied permits, despite projects seeming to meet all county requirements.[23] This trend is a clear sign that supportive local regulations, and even local government bodies, by themselves are not enough to get solar into the ground. The next step is convincing the people in these communities that these projects are more beneficial than detrimental and finding ways to compromise so that counties can reap the benefits of hosting solar farms while preserving their character. This roadblock is not insurmountable, but it will take a coordinated effort by developers, state and local governments, and the utilities to overcome.

[1] Elizabeth McGowan, As policy impacts kick in, Virginia climbs into top five states for solar, Energy News Network (June 15, 2021), https://energynews.us/2021/06/15/as-policy-impacts-kick-in-virginia-climbs-into-top-five-states-for-solar/; Virginia Solar, Solar Energy Indus. Ass., https://www.seia.org/state-solar-policy/virginia-solar (last visited Sept. 24, 2021).

[2] Sarah Vogelsong, Virginia’s Clean Energy Transition: A special series by the Virginia Mercury, Virginia Mercury (Nov. 30, 2020), https://www.virginiamercury.com/2020/11/30/virginias-clean-energy-transition-a-special-series-by-the-virginia-mercury/.

[3] Virginia Clean Economy Act, 2020 Va. Acts ch. 1194.

[4] Id. at pp. 21–24.

[5] Id. at p. 22.

[6] Id. at p. 23.

[7] Id. at pp. 21–22.

[8] Virginia Solar, supra note 1 (projecting a growth of 5,872 MW over the next 5 years, which ranks 5th in the nation).

[9] Id.; see also McGowan, supra note 1.

[10] McGowan, supra note 1.

[11] Virginia Solar, supra note 1.

[12] See, e.g., Sylvia Allen, Supervisors, Planning Commission work on Solar Facilities Ordinance, Brunswick Times-Gazette (Mar. 24, 2021), https://www.brunswicktimes-gazette.com/article_111a9ca0-8bf1-11eb-94ad-73b1098a0f2f.html.

[13] New laws offer better deal for solar hosts, SoVaNow.com (Aug. 12, 2020), http://www.sovanow.com/index.php?/news/article/new_laws_offer_better_deal_for_solar_hosts/.

[14] S.B. 762, 2020 Sess. (Va. 2020).

[15] H.B. 1675, 2020 Sess. (Va. 2020); H.B. 655, 2020 Sess. (Va. 2020).

[16] H.B. 1434, 2020 Sess. (Va. 2020).

[17] New laws offer better deal for solar host, supra note 13.

[18] Allison B. Champion, Culpeper County Board denies Maroon Solar power plant project, Culpeper Star-Exponent (May 5, 2021), https://starexponent.com/news/culpeper-county-board-denies-maroon-solar-power-plant-project/article_77dcd980-0e0a-5f37-9445-f6fdfa6e8659.html.

[19] Id.

[20] See Linda Poon, When Residents Support Solar—Just ‘Not in My Backyard’, Bloomberg (Nov. 20, 2019), https://www.bloomberg.com/news/articles/2019-11-20/how-to-get-around-solar-energy-s-nimby-problem.

[21] Champion, supra note 18.

[22] Id. (A key criteria for project approval is finding that the project is in accordance with the county’s Comprehensive Plan for land use and development).

[23] See, e.g., Laura Peters, Augusta County solar project not in accord with comprehensive plan, per planning commission vote, Staunton News Leader (Jan. 14, 2021, 12:15 PM), https://www.newsleader.com/story/news/2021/01/13/augusta-county-solar-projects-special-use-permit-denied-after-hours-long-public-hearing/6636612002/; Jimmy LaRoue, Whaleyville solar farm denied, Suffolk News-Herald (June 16, 2021, 11:29 PM), https://www.suffolknewsherald.com/2021/06/16/whaleyville-solar-farm-denied/.

Image Source: https://www.virginiabusiness.com/article/sunny-days-ahead-for-solar

By Mirae Heo

Within the last two decades, interpolation has become extremely popular in the music industry. Interpolation is an audio technique where an artist re-records an element of a song of another artist—such as the lyrics or a guitar melody—and incorporates it into their own song.[1] The artist still has to give credit to the writer of the song that was interpolated and negotiate fees, but it is generally cheaper than sampling a song.[2]

Some well-known examples of interpolation are Bon Jovi’s “You Give Love a Bad Name” which interpolated parts of the melody from Bonnie Tyler’s “If You Were a Woman (And I Was a Man)”[3] and Coolio’s “Gangsta’s Paradise” which interpolated parts of the melody and lyrics from Stevie Wonder’s “Pastime Paradise”.[4]

The best way to go about interpolating a song is to reach out to an artist or songwriter before using snippets of their song in order to get permission and negotiate royalties. This way, an artist can avoid potential lawsuits. Taylor Swift did this when she reached out to the band, Right Said Fred, before she released “Look What You Made Me Do” in 2017.[5] Right Said Fred received an offer from Swift to interpolate their song “I’m Too Sexy.”[6] Because Swift reached out for permission before her song was released, both parties were able to negotiate and come to an agreement on the percentage that Right Said Fred would receive from Swift’s song.[7]

When credit is retroactively given, however, legal problems may arise. After Sam Smith released their song “Stay With Me” in 2014, rock singer Tom Petty’s legal team contacted Smith’s legal team due to the similarities between Smith’s song and Petty’s song, “I Won’t Back Down.”[8] Fortunately, the two parties were able to amicably negotiate the matter. Smith claimed that they had never heard Petty’s song before, but nevertheless resolved the matter by crediting Petty and Jeff Lynne, the co-writer of “I Won’t Back Down,” for interpolating their song.[9]

Unfortunately, many issues of potential copyright infringement are not as easily resolved. Robin Thicke, Pharrell Williams, and the estate of Marvin Gaye fought a nearly five-year lawsuit trying to determine whether Thicke and Williams’ song, “Blurred Lines,” infringed the copyright of Gaye’s song, “Got to Give it Up.”[10] It was a war of artistic integrity; with Thicke and Williams contending that they did not need to copy someone else’s work in order to create a hit song,[11] and the Gaye family arguing that Marvin Gaye deserved credit for his hard work.[12] Williams admitted that the “feel” of the two songs were similar, but that a “feel” was not entitled to copyright protection.[13] The issue came to a close when the Ninth Circuit affirmed in part the district court’s decision in favor of the Gaye family and awarded the family nearly $5 million.[14]

Interpolation is a great way to incorporate past hit songs into brand new masterpieces. Many popular artists of 2020 and 2021 have done just that. Ava Max’s 2020 single, “Kings & Queens,” which interpolated the chorus melody of “If You Were a Woman (And I Was a Man),” reached number thirteen on the Billboard Hot 100 chart.[15] Doja Cat’s 2021 single “Kiss Me More,” which interpolated Olivia Newton-John’s “Physical,” peaked at number two on the same Billboard chart.[16]

Ava Max and Doja Cat credited the writers of the interpolated songs prior to their songs’ release, avoiding liability for potential copyright claims, but a recent album of Olivia Rodrigo came under fire from listeners who spotted similarities between some of Rodrigo’s songs and other songs. Hayley Williams and Josh Farro, member and former member of the band Paramore, were listed as co-writers of Rodrigo’s song, “Good 4 U,” after fans noticed heavy similarities between it and Paramore’s “Misery Business.”[17] Rodrigo’s song, “Brutal,” was also criticized for plagiarizing Elvis Costello’s “Pump It Up.”[18] However, Costello came to her defense, saying that “It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy.”[19] Unlike Thicke and Williams, Rodrigo came out legally unscathed. But, who is to say whether she will be so lucky a second time around?

[1] Max Foreman, How Music Copyright Works: Sampling, Covers, Mixtapes & Fair Use, Pro Audio Files (Mar. 22, 2018), https://theproaudiofiles.com/music-copyright.

[2] Id.

[3] WhoSampled, https://www.whosampled.com/sample/90037/Bon-Jovi-You-Give-Love-a-Bad-Name-Bonnie-Tyler-If-You-Were-a-Woman-(And-I-Was-a-Man) (last visited Sept. 24, 2021).

[4] WhoSampled, https://www.whosampled.com/sample/114/Coolio-L.V.-Gangsta%27s-Paradise-Stevie-Wonder-Pastime-Paradise (last visited Sept. 24, 2021).

[5] Kory Grow, Right Said Fred on Taylor Swift’s ‘Cynical’ ‘Look What You Made Me Do’, RollingStone (August 25, 2017, 6:24 PM), https://www.rollingstone.com/music/music-features/right-said-fred-on-taylor-swifts-cynical-look-what-you-made-me-do-205808.

[6] Id.

[7] Id.

[8] Katie Shonk, Copyright Negotiation: In Dealmaking with Tom Petty, Sam Smith Backs Down, Program on Negotiation | Harvard Law School (Feb. 7, 2017), https://www.pon.harvard.edu/daily/dealmaking-daily/in-dealmaking-with-tom-petty-sam-smith-backs-down.

[9] Id.

[10] Althea Legaspi, ‘Blurred Lines’ Copyright Suit Against Robin Thicke, Pharrell Ends in $5M Judgment, RollingStone (Dec. 13, 2018, 12:47 AM), https://www.rollingstone.com/music/music-news/robin-thicke-pharrell-williams-blurred-lines-copyright-suit-final-5-million-dollar-judgment-768508.

[11] Eriq Gardner, Robin Thicke Sues to Protect ‘Blurred Lines’ from Marvin Gaye’s Family (Exclusive), The Hollywood Reporter (Aug. 15, 2013, 6:13 PM), https://www.hollywoodreporter.com/business/business-news/robin-thicke-sues-protect-blurred-607492.

[12] Kory Grow, Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit, RollingStone (Mar. 10, 2015, 9:42 PM), https://www.rollingstone.com/music/music-news/robin-thicke-pharrell-lose-multi-million-dollar-blurred-lines-lawsuit-35975.

[13] Gardner, supra note 11.

[14] Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).

[15] Chart History: Ava Max, Billboard, https://www.billboard.com/music/Ava-Max/chart-history/HSI (last visited Sept. 24, 2021).

[16] Chart History: Doja Cat, Billboard, https://www.billboard.com/music/Doja-Cat/chart-history/HSI (last visited Sept. 24, 2021).

[17] Ethan Millman, ‘No Shelf Life Now’: The Big Business of Interpolating Old Songs for New Hits, RollingStone (Sept. 7, 2021, 2:53 PM), https://www.rollingstone.com/pro/features/olivia-rodrigo-doja-cat-interpolation-music-1220580.

[18] Billy Edwards (@biiilyedwards), Twitter (June 28, 2021, 9:16 AM), https://twitter.com/biiilyedwards/status/1409500964516777992.

[19] Elvis Costello (@ElvisCostello), Twitter (June 28, 2021, 1:42 PM), https://twitter.com/ElvisCostello/status/1409567943520931847.

Image Source: https://www.audacy.com/music/lou-ottens-inventor-of-the-audio-cassette-tape-dies-at-94

By Eleni Poulos

Public policy is generally understood as what the legislative branch of a government creates in the form of laws and regulations as the response to a public problem.[1] Public policy is created through legislative bodies and for centuries has been the result of grassroots advocacy, lobbying efforts, and constituent pressure. Often public policy processes follow the same custom it has for decades, after all it is a country’s regulatory system and consistency is often necessary for stability.

In comparison, technology has continued to change processes in all sectors.[2] However, it has lagged in its efforts to infiltrate the development and implementation of public policy.[3] One issue that naturally arises is the discrepancy between the rate in which technology is evolving and policy makers’ inability to ensure the legislation and regulations keep up.[4] However, despite this slow integration, technology and public policy actually have the ability to work seamlessly together. [5]

Most importantly, as the tech industry continues to grow, it will require better policies that will allow the industry to grow and prosper.[6] This means that the tech industry leaders will need to work with public policy makers—legislators and lobbyists—to ensure that the public policies reflect this expansion throughout society.[7] For example, as technology expands into spaces such as corporate workplaces and the car industry, it is important that the policy makers pass legislation that will be conducive to supporting the evolution of these technologies. To do so, the policy makers must understand the effects certain policies would have on the tech industry. And to do that, it will require leadership in both sectors to work together. Leaders in technology also see a need for better policies regarding artificial technology.[8] Though that is just the beginning, as “we need policy around the rapidly advancing technologies of bioengineering, such as genome edition and synthetic biology.”[9] To bridge this gap, leaders in the industry believe introducing public policy to those interested in technology and science at a younger age is the first step.[10]

Another reason technology should be better integrated into society is its ability to assist policy makers in the development process of all public policies—not just those associated with the technology industry.[11]  More technology in the process could produce more thoroughly researched and data-driven policies.[12] A recent report by the Institute for Research on Public Policy (IRPP) and the Canadian Academy of Engineering (CAE) detailed how government can better utilize technology to create a more streamlined process in policy making.[13] “As governments grapple with evermore complex policy problems, science and technology must play a bigger role in providing an evidence base for decisions and supporting government efforts to manage risk and uncertainty.”[14] Based off several cities in Canada, the report recommends using the increased accessibility to credible research through the internet and technology to inform the legislatures decision-making when forming policies.[15] Though the report concedes that scientific evidence and technology cannot be the only basis for forming a policy, as citizen concerns and budget considerations play an important role, the report argues it is important that public debate and policy making be informed by science produced by better technology.[16]

[1] What is Public Policy?, Project Citizen, https://www.civiced.org/project-citizen/what-is-public-policy.

[2] Lillian Ablon and Andrea Golay, How The ‘Wonks of Public Policy and The ‘Geeks’ of Tech Can Get Together, Tech Crunch (Mar. 17, 2016), https://techcrunch.com/2016/03/17/how-the-wonks-of-public-policy-and-the-geeks-of-tech-can-get-together/.

[3] Id.

[4] Bruce Schneier, We Must Bridge the Gap Between Technology and Policymaking. Our Future Depends on It, World Economic Forum (Nov. 12, 2019) https://www.weforum.org/agenda/2019/11/we-must-bridge-the-gap-between-technology-and-policy-our-future-depends-on-it/.

[5] Ablon and Golay, supra note 2.

[6] Id.

[7] Id.

[8] Schneier, supra note 4.

[9] Id.

[10] Id.

[11] Making Better Use of Science and Technology in Policy-Making, McGill (Mar. 23, 2016), https://www.mcgill.ca/channels/news/making-better-use-science-and-technology-policy-making-259854.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Making Better Use of Science and Technology in Policy-Making, supra note 11.

Image source: “Virginia State Capitol Building” by Sky Noir is licensed with CC BY-NC 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-nc/2.0/

By Brian Kennedy

Zoom video conferencing has become all too familiar during the COVID-19 pandemic, especially in the legal realm. The use of video conferencing raises several legal questions regarding confidentiality, and what methods can be taken to ensure the protection of clients.[1] As attorneys adapt to speaking to their own clients through a screen, it is critical to ensure that attorney-client privilege is effectively protected.

Under the Model Rules of Professional Conduct, “[a] lawyer shall make reasonable efforts to prevent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”[2] This rule establishes trust between the client and the attorney and allows for open communication.[3] Taking this into considerations when Zoom is implemented as a method of communication, risk of disclosing this information should be mitigated if possible.[4] “Knowingly failing to implement commercially and readily available safeguards could later be used as a basis for challenging privilege to your client meetings.”[5]

Using Zoom as a platform poses several threats to ensuring the protection attorney-client privilege.[6] One primary concern is the process of recording a client meeting.[7] “Based on the terms of service from Zoom, and as described by Blue Jeans, when meetings are recorded on these services, the videos can be stored by these third parties.”[8] To avoid this concern, these meetings should not be recorded “through third-party applications.”[9] This is a reasonable step towards ensuring protection of confidential information.

Another concern raised by videoconferencing is the potential for “Zoombombing.”[10] This security risk “occurs when an unauthorized intruder enters into a Zoom meeting.”[11] Again, this security threat jeopardizes the confidentiality of the meeting. However, there are steps that may be taken to mitigate this risk.[12] For example, a password for entering the meeting can be used to ensure authorized participants.[13] Additionally, a virtual waiting room can allow the attorney to essentially screen participants.[14] “If the host does not recognize a name or phone number, that participant stays outside the meeting, adding an additional layer of security to your client meetings.”[15]

Additionally, the network used to conduct Zoom conferences can also play an important role of protecting attorney-client privilege.[16] Using a virtual private network can add another level of increased security versus using just a standard public WIFI.[17] Selecting the appropriate virtual private network can “limit unwanted outside access to the communication.”[18] Even being cognizant of your surroundings and using headphones while on a videoconference can protect information shared between an attorney and a client.[19]  If an attorney does use Zoom’s platform these considerations should be taken seriously, because these simple steps can help mitigate this ongoing risk.

Zoom clearly raises several confidentiality concerns, but it has also provided open communication during a time in which face to face interaction is extremely limited. As Zoom continues to be used for videoconferences, it is important to recognize the importance of trust between attorney and client “which is the hallmark of the client-lawyer relationship.”[20]

[1] David Saunders & David Greenwald, Insight: Zooming and Attorney-Client Privilege, BL (May 22, 2020, 4:01 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/XFII4528000000?bna_news_filter=us-law-week#jcite.

[2] Model Code of Pro. Conduct r. 1.6(c) (Am. Bar Ass’n 2020).

[3] Model Code of Pro. Conduct r. 1.6 cmt. (Am. Bar Ass’n 2020).

[4] Saunders & Greenwald, supra note 1.

[5] Id.

[6] See generally Eric Shaffer, Legal Issues in Zoom Meetings, Law Technology Today (Aug. 2, 2021), https://www.lawtechnologytoday.org/2021/08/legal-issues-in-zoom-meetings/.

[7] Saunders & Greenwald, supra note 1.

[8] Id.

[9] Id.

[10] Shaffer, supra note 6.

[11] Id.

[12] Saunders & Greenwald, supra note 1.

[13] Id.

[14] Shaffer, supra note 6.

[15] Saunders & Greenwald, supra note 1.

[16] Michael Maicher, Are You Maintaining Privilege When Using Zoom?, Imagine That IP Law Blog (Apr. 19, 2021), https://www.vklaw.com/ImagineThatIPLawBlog/are-you-maintaining-privilege-when-using-zoom.

[17] Id.

[18] Id.

[19] Id.

[20] Model Code of Pro. Conduct r. 1.6 cmt. (Am. Bar Ass’n 2020).

Image source: https://www.shutterstock.com/image-photo/september-3-2019-san-jose-ca-1495402889

By Christopher Vinson

By now most people with a social media account have heard of the #milkcratechallenge. The viral sensation requires people to stack milk crates into elaborate formations and then attempt to climb to the top.[1] The funnier the fall in your attempt to reach the top, the more views and likes the video will get on TikTok. The videos proved so popular that they generated over 8 million views in one month.[2] However, what seems like a fun, albeit dangerous, trend may lead to criminal consequences.

Many states have passed statutes banning the use of milk crates outside of dairy distribution and sales.[3] The theft of dairy crates has been a constant thorn in the side of the dairy industry. It is estimated that companies lose around $80 million a year due to the theft of milk crates.[4] Milk crates are prone to theft because they are made out of highly-dense polyethylene which is derived from petroleum.[5] The durability of the material is highly coveted, and the crates are often shredded with the material being resold at higher prices.[6]

The emergence of the #milkcratechallenge renewed attention on these milk crate statutes. One state to have such a statute is Massachusetts.[7] The statute has been in effect since 1975 and expressly covers the theft or conversion of certain milk containers.[8] The penalty for a violation of the statute is a fine ranging from ten to one hundred dollars.[9] The Pennsylvania milk container law carries a sentence of a fine not exceeding $300 or the potential for up to 90 days in jail.[10] The Florida equivalent classifies unlawful possession of a milk crate as a first degree misdemeanor.[11] Violators may be punished with up to a year in prison and a $1,000 fine.[12] The statute has been enforced as recently as 2016 when a man was arrested and charged with possession of a dairy crate.[13]

There is also the looming possibility of a negligence lawsuit arising from participating in the milk crate challenge.[14] The individual who sets up the milk crates is exposing themselves to potential liability if they did not act as a reasonably careful person would when setting up the milk crates.[15] They may be required to pay damages for any injuries caused by the accident.[16] What began as a fun attempt to become internet famous has the potential for serious injuries, both physically and monetarily.

The milk crate challenge is not the only recent TikTok trend that may lead to criminal consequences. A new trend is encouraging students to perform a “devious lick” at their schools.[17] A lick is a successful theft that is accompanied by an impressive payday.[18] The trend calls for students to steal items, such as soap and paper towel dispensers, from their schools.[19] Several schools in Pasco County, Florida have reported broken urinals, stolen exist signs, and toilets filled with Kool-Aid.[20] Schools are rightfully frustrated with the trend and are threatening legal action.[21] One high school in Pasco County has communicated to their students that any violators will be arrested and held liable for the damages.[22]

TikTok trends dominate social media when they first explode onto users’ feeds. Any person with a phone is one post away from becoming internet famous overnight. TikTok themselves are likely insulated from liability due to most of the content being user-generated.[23] That same privilege is not extended to the user. Climbing a pyramid of milk crates does not immediately conjure up thoughts of criminal activity. However, the law is full of surprises, and ignorance of the law is no defense.  Before participating in the next viral TikTok trend, remember that falling down in a video may not be the most painful part of the experience.

[1] Jordan Valinksy, TikTok Bans the ‘Milk Crate Challenge’ Because of Injuries, CNN (Aug. 27, 2021, 10:49 AM), https://www.cnn.com/2021/08/27/business/tiktok-bans-milk-crate-challenge/index.html.

[2] Jessica Sager, Got Milk… Crates? All About the Milk Crate Challenge that Took Over Twitter and TikTok-And Why the Trend Spells Trouble, Parade (Aug. 23, 2021, 11:31 AM), https://parade.com/1252245/jessicasager/milk-crate-challenge/.

[3] Id.

[4] Julia Glum, Doing the TikTok Milk Crate Challenge Could Cost you Hundreds in Fines, Yahoo Money! (Aug. 26, 2021), https://money.yahoo.com/doing-tiktok-milk-crate-challenge-145628592.html.

[5] Sager, supra note 2; Glum, supra note 4.

[6] Glum, supra note 4.

[7] Spencer Buell, The “Milk Crate Challenge” is a Bad Idea. Especially in Massachusetts, Boston Magazine (Aug. 26, 2021, 12:27 PM), https://www.bostonmagazine.com/news/2021/08/26/milk-crate-challenge-massachusetts-illegal/.

[8] Id.

[9] Glum, supra note 4.

[10] Id.

[11] Food Pyramid Crimes: How the Milk Crate Challenge can Land you in Jail, Casanova Law PA (Sept. 6, 2021), https://www.casanovalawpa.com/food-pyramid-crimes-how-the-milk-crate-challenge-can-land-you-in-jail/.

[12] Id.

[13] Glum, supra note 4.

[14] Milk Crate Challenge Injury Attorney in Philadelphia, The Pearce Law Firm P.C. https://thepearcelawfirm.com/milk-crate-challenge-attorney/ (last visited Sept. 16, 2021).

[15] Id.

[16] Id.

[17]Katherine Rodriguez, What is the ‘Devious Lick’ TikTok Trend? What does it Mean? Here’s What to Know, NJ.com (Sept. 15, 2021, 1:54 PM), https://www.nj.com/news/2021/09/what-is-the-devious-lick-tiktok-trend-what-does-it-mean-heres-what-to-know.html.

[18] Id.

[19] Id.

[20] Jeffrey S. Solochek, TikTok’s ‘Devious Licks’ are Trashing School Restrooms. Pasco Cracks Down, Tampa Bay Times (Sept. 15, 2021), https://www.tampabay.com/news/education/2021/09/15/tiktoks-devious-licks-are-trashing-school-restrooms-pasco-cracks-down/.

[21] Rodriguez, supra note 17; Solochek, supra note 19.

[22] Solochek, supra note 19.

[23] Lauri J. Goldstein, Can TikTok Face Liability for the Milk Crate Challenge?, Lauri J. Goldstein, PLLC (Sept. 7, 2021), https://www.femaleinjurylawyer.com/blog/2021/september/can-tiktok-face-liability-for-the-milk-crate-cha/.

Image source: https://news.yahoo.com/viral-milk-crate-challenge-now-155500278.html