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

Elizabeth Holmes Trial Begins: Fraud v. Failure

By Charlie McCarthy

Elizabeth Holmes, the infamous founder of Theranos, is on trial for criminal fraud in the United States District Court’s Northern California District Court in San Jose, California.[1] Ms. Holmes has garnered incredible media interest, evidenced by the various books and documentaries detailing the rise and fall of her company and public image.[2] Additionally, the result of the trial could have lasting implications in the “move fast and break things” Silicon Valley start-up culture.[3] In 2003, Ms. Holmes was a 19-year-old Stanford dropout when she founded Theranos Inc., a consumer technology startup focused on delivering at-home blood testing. Ms. Holmes was able to raise approximately $724 million in capital from venture capitalists and individual investors such as Rupert Murdoch (Chairman of News Corp.), Betsey DeVos (former Education Secretary), the heirs of Sam Walton (founder of Walmart), Carlos Slim (Mexican Tycoon), and Robert Kraft (owner of New England Patriots)[4]. Notably, former secretary of state Henry Kissinger and former secretary of defense Jim Mattis served as board members of her company.[5]

Read More

By Mimi Perka

 

Last week, Facebook introduced Ray-Ban Stories – which are Facebook’s first generation of smart glasses.^[1] These glasses are equipped with dual integrated 5MP cameras, LED lights, open-ear speakers, and a three-microphone audio array that allow users to capture photos and 30-second videos.^[2] The glasses are also capable of making calls, taking voice commands, and they connect straight to the new Facebook View app.^[3]

The glasses start at $299 and come in 20 different style combinations, including the classic Ray-Ban styles: Wayfarer, Wayfarer Large, Round and Meteor.^[4] Additionally, the glasses are customizable with prescription or transition lenses if users pay additional costs.^[5]

While these glasses certainly have many features and are much better looking than other first-generation smart glasses,^[6] should users be concerned for their own privacy? Further, should the public at large be concerned about how much user’s might capture in this new discreet and fashion-forward method?

While Facebook boasts that Ray-Ban stories are “designed with privacy in mind,”^[7] the privacy features seem to center mostly around what is shared from the glasses to user’s public Facebook pages, a power switch to turn the glasses off, and an LED light that turns on when a user is taking photos or recording to alert the public.^[8]

Additionally, Facebook’s “dedicated privacy microsuite” is noticeably bare, and has no mention of the legalities that users should be aware of while wearing the glasses.^[9]

As these glasses aren’t designed as solely sunglasses like other smart glasses have traditionally been, this could become legally troublesome for user’s who wear the glasses during the regular work day and will have the capabilities to potentially expose and share private and confidential information.^[10] While most workplaces require employees to agree to confidentiality agreements which if breached could result in termination and a potential breach of contract claim,^[11] certain types of workplace disclosures could also have federally enforced legal implications for users.^[12]

On the other hand, while courts have consistently held that it is a First Amendment right to take photos of others in public spaces,^[13] many people are uncomfortable with having their photographs taken without consent^[14] which could only be exacerbated by this new discrete and non-traditional method of photography. Additionally, although the Constitution does not expressly declare a right to privacy, many elements of privacy are present in the First, Fourth and Fifth Amendments, and it has been recognized as an implied right of the Ninth Amendment.^[15] Many states have also enumerated expressed rights to privacy in their Constitutions.^[16] Some states have even taken this expressed right one step further, to specifically protect unlawful photography.^[17]

For example, a Tennessee law states:

a) It is an offense for a person to knowingly photograph, or cause to be photographed, an individual without the prior effective consent of the individual, or in the case of a minor, without the prior effective consent of the minor’s parent or guardian, if the photograph:

(1) (A) Would offend or embarrass an ordinary person if the person appeared in the photograph; or

(B) Is focused on the intimate area of the individual and would be considered offensive or embarrassing by the individual; and

(2) Was taken for the purpose of sexual arousal or gratification of the defendant.^[18]

The Supreme Court relies on a privacy standard articulated in 1967 in the case of Katz v. United States,^[19] where the Court reasoned that every person is entitled to a “reasonable expectation of privacy.”^[20] However, in today’s technologically advanced society, it can be difficult to know what is “reasonable” or what would “offend or embarrass an ordinary person” due to the ubiquitousness of smart devices and social media and photo sharing.^[21] Thus, the privacy standard is getting more and more difficult for courts to police as people are sharing more information through the use of modern technology.^[22]

While this all could be troublesome for users and the people in their surroundings, the New York Times notes about the Ray-Ban Stories Glasses:

“Many of these privacy concerns are beside the point for technologists who see wearables as inexorable for society. For Mark Zuckerberg, Facebook’s chief executive, the ultimate goal is to eventually release a pair of smart glasses that fully augment reality, which puts a kind of virtual overlay onto the world in front of people. That idea is yet another step on the road to the metaverse, Mr. Zuckerberg’s term for how parts of the virtual and actual world will eventually meld together and share different parts of each other.”^[23]

In sum, maybe 10 years from now we’ll all be videotaping each other through our glasses, driving self-operating cars, and messaging each other through holographic cell phones, and where would the reasonable privacy standard lead us then? Maybe smart glasses are just the beginning.

 

^[1] Introducing Ray-Ban Stories: First-Generation Smart Glasses, About.Facebook.com (Sept. 9, 2021), https://about.fb.com/news/2021/09/introducing-ray-ban-stories-smart-glasses/.

 

^[2] Id.

 

^[3] Id.

 

^[4] Id.

 

^[5] Id.

 

^[6] See, e.g., Spectacles – Sunglasses for Snapchat, Amazon.com, https://www.amazon.com/2016-Spectacles-Sunglasses-for-Snapchat/dp/B01N9ECA5B.

 

^[7] Ray-Ban and Facebook introduce Ray-Ban Stories, first-generation smart glasses, Tech@Facebook (Sept. 9, 2021), https://tech.fb.com/ray-ban-and-facebook-introduce-ray-ban-stories-first-generation-smart-glasses/.

 

^[8] Id.

 

^[9] Designed for privacy, controlled by you, https://about.facebook.com/reality-labs/ray-ban-stories/privacy?_ga=2.214402775.1164369414.1631282119-1594130824.1631282119 (last visited Sept. 10, 2021).

 

^[10] Hoyle et al., Privacy Norms and Preferences for Photos Posted Online, 27 ACM Transactions on Computer-Human Interaction (Issue 4), 30:1, 30:2 (2020), https://dl.acm.org/doi/pdf/10.1145/3380960.

 

^[11] See, e.g., Saini v. Int’l Game Tech., 434 F. Supp. 2d 913, 917 (D. Nev. 2006).

 

^[12] See, e.g., 15 U.S.C.A. § 57b-2 (West).

 

^[13] See, e.g., Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1087 (E.D. Pa. 80); Pemberton v. Bethlehem Steel Corp., 502 A.2d, 1101, 1116-17 (Md. Ct. Spec. App. 1986); Forster v. Manchester, 189 A.2d 147, 150 (Pa. 1963).

 

^[14] Hoyle et al., supra note 10, at 30:3.

 

^[15] Jeremy Fogel, A Reasonable Expectation of Privacy, 40 LITIG. 6, 7 (2014).

 

^[16] Id.

 

^[17] See, e.g., Tenn. Code Ann. § 39-13-605 (2021).

 

^[18] Id.

 

^[19] Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 516 (1967).

 

^[20] Fogel, supra note 15, at 8.

 

^[21] Joshua A.T. Fairfield & Christoph Engel, Privacy as a Public Good, 65 DUKE L.J. 385, 402 (2015).

 

^[22] Fogel, supra note 15, at 8.

 

^[23] Mike Isaac, Smart Glasses Made Google Look Dumb. Now Facebook Is Giving Them a Try., N.Y. Times (Sept. 9, 2021), https://www.nytimes.com/2021/09/09/technology/facebook-wayfarer-stories-smart-glasses.html.

 

Image source: https://tech.fb.com/ray-ban-and-facebook-introduce-ray-ban-stories-first-generation-smart-glasses

By Charlie McCarthy

 

The advance of machine learning Artificial Intelligence (“AI”) technology into legal writing is becoming more of a reality. Spell check and other grammar software have been used in legal writing for many years and have not impacted the composition process of legal writing and analysis.[1] Currently, the legal community regularly uses machine learning AI technology in E-Discovery, expertise automation (e.g., software for individuals to draft their own wills), legal research, document management, contract and litigation analytics, contract generation, and predictive analytics.[2]

However, other legal technologies have emerged that are implementing AI machine learning technology to structure better legal arguments for their clients, find holes in opposing counsel’s briefs, and compose significant portions of briefs.[3] This next step of AI machine learning is significant because it represents the capability for AI machine learning to fully perform the analytical role of the lawyer.[4] Services such as BriefCatch, Compose, and Clearbrief are all companies on the forefront of this next implementation of AI machine learning technology into legal writing.[5] BriefCatch markets themselves as an AI-driven product that “offers insights into your writing and lets you compare your style with that of renowned lawyers and judges.”[6]

Compose provides “all the arguments, legal standards and prepackaged research you need to get things done, faster than ever.” It features a library consisting of pre-formatted motions and adds arguments based on your jurisdiction. Only at the end of Compose’s process, does the software allow the writer to “make it your own … by adding your insights, expertise and style.” Clearbrief is another emerging AI-powered legal writing software that “uses natural language processing to assess how legal writing is backed up by supporting evidence.”[7] Additionally, this software allows lawyers to assess the strength of opposing counsel’s briefs and provides a service known as “judge view” which allows a judge to “view a submitted brief in the cloud with easy access to the cases and documents referenced in the filing.”[8]

The logic-driven foundation of legal thinking allows for AI machine learning to easily integrate into legal arguments.[9] AI machine learning legal technologies will allow lawyers to rapidly create first drafts which will free up time for lawyers to refine their arguments and better advocate on their client’s behalf.[10]  However, AI legal technologies pose risks to ethics and legal writing professional development.[11] Michael Zuckerman, a legal writing professor at Northwestern University Pritzker School of Law cautions against legal technology “mimicking a lawyer’s hand and mind… [that] may well prevent a student from growing into their full potential as a lawyer, replete with a possible lack of foundational professional judgment as a writer.”[12] Furthermore, AI machine learning technology poses significant risks for data bias.[13] Currently, human biases have been found to make their way into AI technologies that are then implemented with sweeping discriminatory impacts.[14] If all legal writing is formed with biased AI technology, then all legal arguments will be biased.

The use of AI machine learning technology in legal writing is inevitable. Clients across the board will soon demand that lawyers are using the best AI machine learning legal technologies for a competitive edge. The successful implementation of this new reality requires thoughtful regulation of legal data and a strict adherence to legal ethics to ensure lawyers are both zealous advocates and responsible professionals.

 

[1] Michael Zuckerman, Law professor makes a case against automating legal writing in law school, ABA Journal (July 21, 2021), https://www.abajournal.com/voice/article/a-law-professor-makes-a-case-against-automating-legal-writing.

[2] Anthony E. Davis, The Future of Law Firms (and Lawyers) in the Age of Artificial Intelligence, American Bar Association (Oct. 2, 2020), https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/27/1/the-future-law-firms-and-lawyers-the-age-artificial-intelligence/.

[3] Zuckerman, supra note 1.

[4] Id.

[5] See Zuckerman, supra note 1; Taylor Soper, This legal writing startup is using AI to spot misrepresentations in litigation docs, Geek Wire (Aug. 26, 2021), https://www.geekwire.com/2021/legal-writing-startup-using-ai-spot-misrepresentations-litigation-docs/.

[6] BriefCatch, https://briefcatch.com/version-2/ (last visited Sep. 9, 2021).

[7] Soper, supra note 5.

[8] Lyle Moran, New AI-powered legal writing tool aims to help lawyers craft winning briefs, ABA Journal (May 19, 2021), https://www.abajournal.com/legalrebels/article/rebels_podcast_episode_064.

[9] Rob Carty, Computer-Written Legal Briefs Are Closer Than You Think, ARTIFICIAL LAWYER (Apr. 11,2019), https://www.artificiallawyer.com/2019/04/11/computer-written-legal-briefs-are-closer-than-you-think/.

[10] Id.

[11] Zuckerman, supra note 1.

[12] Id.

[13] Heather J. Meeker et al., Data Collection & Management, Professional Perspective – Avoiding Human Bias in Artificial Intelligence, Bloomberg Law (Nov. 2020), https://www.bloomberglaw.com/product/privacy/document/X17RNFNC000000.

[14] Id.

 

Image source: https://www.forbes.com/sites/timbajarin/2020/11/06/an-ai-robot-wrote-my-term-paper/?sh=389e86a13cc8

By Mimi Perka

 

Maybe you’ve used it to learn a new dance move, watch a funny video, interact with friends, or perhaps you have even tried your own luck on the app in pursuit of fame and fortune.

The social media app, TikTok, became sensationalized during the height of the COVID-19 pandemic, due to the free-for-all^[1] nature of the app and the app’s incredible Artificial Intelligence (AI) technology that makes the content on the app customized and addictive for any user.^[2]

Among the many genres of video on the app, many content creators have gained a following by sharing internet “dupes” of luxury products.^[3] The term “dupe” has become popularized by internet beauty and fashion influencers, and it has come to colloquially signify that a product is a cheaper alternative to a well-known higher-end product.^[4]

As sensational and entertaining as these dupe TikTok videos are, and as much as consumers are spending more time on the internet shopping looking for deals,^[5] could these internet stars be inadvertently causing legal trouble between these imitation producers and the higher-end businesses who make the ‘real thing’? Or worse, could these viral stars be promoting dangerous products and brands to their followers?

Although it isn’t illegal for these stars to be purchasing dupes,^[6] trademark law protects brands from unfair methods of competition, which includes protection against brand dilution, blurring, and tarnishing.^[7] Trademark law has focused this protection on identifying the general “likelihood of confusion” between one product’s source-identifying aspects (terms, images, and product designs) and another competing product’s use of the same aspects.^[8]

Among the many dupes trending on TikTok, users have been comparing: Maison Francis Kurkdjian’s iconic $325 Baccarat Rouge 540 Eau de Parfum to Ariana Grande’s sweet-but-refreshing $40 Cloud Perfume; Maybelline’s Cheek Heat Blush in comparison to Glossier’s pricier Cloud Paint;^[9] and The Sol de Janeiro’s $45 Brazilian Bum Bum Cream to Trader Joe’s $5.99 Brazil Nut Body Butter.^[10]

To acquire trademark protection, marks must achieve the status of distinctiveness.^[11] Marks are also considered distinctive if they are able to acquire secondary meaning among consumers, which means that consumers would perceive the mark as an indication of the source, or brand.^[12]

When determining direct trademark infringement, courts have generally analyzed the likelihood of confusion between brands based on a multifactor test.[13] Factors relevant to likelihood of confusion include:

1. Strength of the mark;
2. Proximity of the goods;
3. Similarity of the marks;
4. Evidence of actual confusion;
5. Marketing channels used;
6. Types of goods and the degree of care likely to be exercised by the purchasers;
7. Defendant’s intent in selecting the mark; and
8. Likelihood of expansion of the product lines.^[14]

When TikTok stars post these “dupe review” videos, they are generally choosing a mark that they recognize as having achieved a distinctive status and comparing it to another product that they believe others will recognize as achieving the exact same distinctive mark for a fraction of the cost. While a seemingly playful and lighthearted way for these stars to help their followers save money, trademark infringement is not a victimless crime.^[15]

While trademark law facially seeks to protect hardworking and good faithed brands, trademark law also plays an important role in protecting consumers from potentially dangerous products, protecting the economy from sales declines due to fear of counterfeits, protecting the public from resale market deception, and protecting the value of consumer’s products from market dilution.^[16]

Although it is always satisfying to find the next best deal while online shopping, and while Katy Perry might be in her own hot water for knocking-off Maison Francis Kurkdjian’s fragrance, it is important for social media stars to realize the ripple effect the promotion of these replica products could lead to – so TikTok users, “Y U Gotta Be Like That”?^[17]

 

Image source: https://www.nytimes.com/2019/03/10/style/what-is-tik-tok.html

 

 

 

^[1] John Herrman, How TikTok Is Rewriting the World, N.Y. Times (Mar. 10, 2019), https://www.nytimes.com/2019/03/10/style/what-is-tik-tok.html.

 

^[2] Jason Davis, The TikTok Strategy: Using AI Platforms to Take Over the World, INSEAD Knowledge (June 19, 2019), https://www.insead.edu/sites/default/files/assets/faculty-personal-site/jason-davis/documents/TikTok.pdf.

 

^[3] Megan Graham, TikTok teens are obsessed with fake luxury products, CNBC (Mar. 1, 2010), https://www.cnbc.com/2020/02/29/tiktok-teens-are-obsessed-with-fake-luxury-products.html.

 

^[4] Knobbe Martens, Dupe Cosmetics Prove Big Business, But Not Without Legal Complications, The Fashion Lawyer (May 17, 2017), https://www.thefashionlaw.com/dupe-cosmetics-prove-big-business-legally-problematic/.

 

^[5] Ms. Suzanne Malhotra, Empirical Scale for Revenge Buying Behaviour: A Curious Consequence of Pandemic, BIMTECH (2021), https://www.bimtech.ac.in/Uploads/image/1716imguf_BSP_SuzaneeMalhotra-Revised.pdf.

 

^[6]  Erin Fitzgerald, The Fashion Police: Criminalizing the Knowing Purchase of Trademark Counterfeit Fashion Items, 47 NEW ENG. L. REV. 127, 129 (2012).

 

^[7] The Lanham Act, 15 U.S.C. §§ 1051–1127.

 

^[8] Peter S. Menell et al., Intellectual Property in the New Technological Age: 2021, 510, 1042 (2021).

 

^[9] Camila Barbeito, The Affordable Fashion Dupes Trending On TikTok, The List (Aug. 1, 2021), https://www.thelist.com/475740/the-affordable-fashion-dupes-trending-on-tiktok/.

 

^[10] Karishma Desai, The $6 Dupe To Sol De Janeiro’s Bum Bum Cream You Have To Try, The List (July 29, 2021), https://www.thelist.com/473460/the-6-dupe-to-sol-de-janeiros-bum-bum-cream-you-have-to-try/.

 

^[11] Menell et al., supra note 8, at 936.

 

^[12] Id. at 940.

 

[13] It is important to note that tests can vary per jurisdiction, however these factors have generally applied.

 

^[14] AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–349 (9th Cir. 1979), abrogated on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, (9th Cir. 2003).

 

^[15] G. Trenton Hooper & Janna M. Wittenberg, Counterfeiting and the Myth of the Victimless Crime, 4 Landslide 41, 41 (2011).

 

^[16] Id. at 43.

 

^[17] Audrey Mika, Y U Gotta Be Like That (RCA Records 2020).