Category: Blog Posts Page 41 of 75

By: Cassidy Crockett-Verba

If you allow a person to record a concert, and trade that recording with others, it is less likely that those who obtained the music for free will buy your band’s music. So how would a transaction that you do not make money on ultimately increase your profits? Two bands have figured out how to do just that and build a cult following along the way.

The  Grateful Dead, (also known as “the Dead”) began in the 1960s, and by the 1980s they were one of the highest grossing concert acts.[1] A large part of their draw was their improvisation or “jams” during concerts that made each show inherently unique.[2] This improvisation led groups of fans, known as “deadheads” to follow the Dead across the country on tours, creating their own community.[3] However, a hallmark of Grateful Dead concerts was the ability to tape them to listen later or trade with friends who had attended different performances.[4] This tape trading allowed fans to appreciate the improvisation in each show long past the night it was recorded. However, it is a long-standing rule that recording concerts is a form of copyright infringement.[5] It is therefore hard to imagine why the band members would actively allow taping, going so far as to sell “tapers tickets” for the section of seats behind the soundboard.[6] The Grateful Dead’s motto of sorts was “When we’re finished with it, they can have it,” in response to allowing tapers the opportunity to share the unique-ness of the shows with others.[7] Lyricist Perry Barlow directly attributes their success to tape trading as it created a culture around the band and provided a way for their music to spread.[8] Their music was spreading to a wider audience with little cost to them which in turn led to a wider audience to purchase tickets to concerts.

As the Grateful Dead gained popularity, groups of fans began congregating in parking lots before the show, possibly hoping to find a spare ticket. The parking lot scene, called “Shakedown Street” was a place to buy anything from clothing to stickers and even food such as grilled cheese sandwiches.[9] Often found here was unauthorized merchandise as well.[10] This merchandise, typically t-shirts, usually parodied popular culture icons (such as Nike) with lyrics or imagery.[11] While a shirt with a Nike swoosh with the words “Just Dew It” (a reference to the song “Morning Dew”) would be considered a parody, the lyrics and name of the song are protected by copyright.[12]  For a long time, the band ignored the unlicensed merchandise, but eventually decided that they would begin enforcing their rights.[13] They exercised their trademark rights over the iconic “Steal Your Face” design as well as the “Dancing Bears”, and “Skull and Roses” designs.[14]  Rather than suing their own fans, the Dead decided to license their copyrights to select fans in order to obtain royalties but still allow this lot culture to thrive.[15] However, their relaxed approach to enforcing their copyright not only created a subculture in itself but allowed the Grateful Dead to skyrocket in both popularity and wealth.

The Grateful Dead was not the only band to embrace tapers and a parking lot scene. Phish is another notable band that took a slightly different approach. Phish does not tacitly allow taping, but rather they post their taping policy online and make the rules and regulations clear to anyone who cares to look.[16] Their clear and concise taping policy being open and available on the internet is likely a product of its time as the internet was not available to the Grateful Dead. However, also due in part to the boom of technology, Phish does explicitly prohibit live-streaming of any kind (visual or audio) as well as soundboard patches.[17]  They release live-streamed video and audio as well as live recordings themselves and this allows for a controlled level of reciprocity with fans (or phans as they call themselves).[18] It can be said that while the Grateful Dead laid the framework for taping, Phish innovated and perfected it.[19]

As for “Shakedown Street” at Phish concerts, they have the same general concept as at Grateful Dead concerts. One can buy almost anything they would want, including shirts with lyrics or song titles creatively placed or parodying famous logos.[20] This “scene” has become its own culture and is considered symbiotic with the band.[21] Like the Dead, Phish mostly allows the scene to police themselves, aside from a few exceptions.[22] Provided that sellers do not use the band’s name or likeness, the word “Gamehendge” (a fictional world in which several songs take place), or videos and recordings of the show, the band allows sellers to create unlicensed merchandise.[23] These “lot designs” as they are known in the community often inspire official merchandise or other creations and improvisations from the band.[24]

This reciprocal relationship is a large part of the success enjoyed by Phish and other jam bands. Without the Grateful Dead allowing taping of their shows, it is unlikely that they would have seen such widespread success and recognition. It is also less likely that Phish would have set the stage for modern jam bands as they began after the members obtained traded Grateful Dead tapes. Had the bands to cracked down on creation of unlicensed works with their copyrighted lyrics, it is unlikely that the culture seen in the parking lots surrounding shows would have existed. The culture outside of the show influences the bands to keep creating and sharing the music which contributes to the band’s ticket sales and widespread recognition. Jam bands have figured out a way to profit off of transactions that do not directly involve them and in doing so, have managed to create their own culture and wealth.

image source: https://commons.wikimedia.org/wiki/File:Shakedown_St_-_GD50_-_Fare_Thee_Well_-Grateful_Dead_-_Chicago_2015.jpg

[1] See David L. Pelovitz, “No but I’ve Been to Shows”: Accepting the Dead and Rejecting the Deadheads in Perspectives on the Grateful Dead: Critical Writing 55-56 (Robert G. Weiner ed., 1999).

[2] See

[3] See generally, Dennis McNally, Long Strange Trip: The Inside History of the Grateful Dead 385-88 (1st ed. 2003) (describing the dedication of the fans of the Grateful Dead).

[4] See Casey Lowdermilk, Improvisation and Reciprocity: An Analysis of the Jam Band Community and Its Unique Business Model, 7 J. Music & Ent. industry Educators Ass’n 159, 161 (2007).

[5] See Copyright Act of 1976, 17 U.S.C. §1101 (2018).

[6] See, e.g., Mark F. Schultz, Fear and Norms and Rock & Roll: What Jam Bands Can Teach Us About Persuading People to Obey Copyright Law, 21 Berkeley Tech. L.J. 653, 670 (2006).

[7] David Fraser & Vaughan Black, Legally Dead: The Grateful Dead and American Legal Culture in Perspectives on the Grateful Dead: Critical Writing 33 (Robert G. Weiner ed., 1999).

[8] See Id.

[9] See Jacob A. Epstein, Note, Molly and the Crack House Statute: Vulnerabilities of a Recuperating Music Industry, 23 U. Miami Bus. L. Rev. 95, 120 (2014) (noting the popularity of “Shakedown Street”).

[10] See Brian C. Drobnik, Truckin’ In Style Along the Avenue: How the Grateful Dead Turned Alternative Business and Legal Strategies Into a Great American Success Story, 2 Vand. J. Ent. L. & Prac. 242, 255 (2000). See also Fraser & Vaughan supra note 7, at 29-30 (describing the parking lot culture at Grateful Dead concerts).

[11] See, e.g., Fraser & Vaughan, supra note 7, at 30.

[12] See id.

[13] See Drobnik, supra note 10, at 255.

[14] See id.

[15]  See id. at 255-56.

[16] See FAQ: Taping Policy, Phish, https://phish.com/faq/.

[17] See id.

[18]  See Lowdermilk, supra note 4, at 161-62.

[19] See, e.g., id.

[20] See Lowdermilk, supra note 4, at 162. See generally Phunky Threads, https://www.phunkythreads.com/ (providing examples of the kinds of shirts and goods found on “Shakedown Street”).

[21] See id.

[22] See, e.g., Pete Mason, Smart Art in the Phish Community, PhanArt (Jan. 17, 2012) http://www.phanart.net/smart-art-in-the-phish-community/.

[23] See id.

[24] See Lowdermilk, supra note 4, at 161-62.

By: William Nash

With an increasing amount of state’s legislatures legalizing and decriminalizing recreational marijuana usage, there have been a multitude of secondhand legal issues that have arisen from such legislation. One of these secondhand issues is the enforcement and prevention of persons driving a motor vehicle while under the influence of marijuana. Until recently, the issue of driving under the influence of marijuana, while a concern, wasn’t as much of a critical issue because driving under the influence of marijuana fell under the broader category of possessing or being under the influence of an illicit drug.[1]

The issue of marijuana consumers driving under the influence is particularly concerning because of the popularity of the drug within the younger generation, a generation that accounts for a “disproportion share of traffic accidents” in the United States.[2] Marijuana has adverse effects on concentration as well as motor skills, which poses an obvious threat to one’s ability to drive while under the influence of marijuana.[3] While studies have not arrived at some of the specifics regarding motor vehicles and marijuana, there has been conclusive evidence that being under the influence of marijuana while driving increases your risk of being in an accident, specifically fatal ones.[4]

Studies have been conducted on states that have legalized recreational marijuana usage and its effect on motor vehicle accidents, but the studies have been relatively inconclusive.[5] Regardless of legalization’s effect, the issue poses a new question: detection. The legalization of marijuana has been a heavily debated topic in the state of New Jersey recently, one of the main arguments against being the lack of means for enforcement as well as an upkeep of safety.[6] New Jersey Senator Gerald Cardinale, who opposes legalization, claimed enforcement would be difficult because “there is no Breathalyzer for marijuana.”[7]

What Cardinale is unaware of is that Hound Labs, a breath technology company from Oakland, California, as well as other companies and researchers, have released just that: a marijuana breathalyzer.[8] Hound Lab’s breathalyzer can detect if a person has used marijuana in any form within the past 2 hours, as well as being able to conduct the standard alcohol detection that regular breathalyzers perform.[9] This two hour window the breathalyzer detects is representative of a person’s “peak window of impairment” after using marijuana.[10]

Hound Labs has raised over 30 million dollars dedicated to achieving their goal of creating this breathalyzer.[11] Creating this kind of technology has not been an easy feat for any company. Creating the necessary sensitivity to detect THC, the main compound in marijuana, is far more difficult than detecting alcohol.[12] Putting things in perspective, it takes approximately a billion times the sensitivity needed to detect alcohol to detect THC.[13]

While Hound Labs testifies that their “two hour” approach is beneficial because it detects how recently a patron has used marijuana, this approach also has multiple critiques.[14] The device reacts to a low use the same way it responds to a large amount of use, it only works in detecting if marijuana has been used within 2 hours regardless the quantity.[15] Without a quantitative measurement, there’s an immediate risk of someone receiving a driving while impaired charge for smoking the equivalent of “half a beer.” [16]

This “half a beer” issue is especially concerning regarding the increased amount of patrons who use marijuana for medical reasons.[17] Frequently, people who are prescribed or instructed to use marijuana for medical treatment take very small doses for their medical conditions.[18] Being criminally liable for using a relatively low amount of marijuana, which would have little to no effect on one’s cognitive or physical ability, would pose concerns of justice and public policy in the medical industry.[19]

Hound Labs has released the results of their own relatively limited field tests which have proved in favor of the device, but outside sources are more skeptical.[20] As a whole we are still waiting on more released data and outside tests on Hound Lab’s device, as well as other devices similar to it.[21] Before such devices become a part of law enforcement, Kevin Davis, the assistant chief of the California Highway Patrol Enforcement and Planning Division claims that the device needs to be “more accepted in the scientific community.”[22]

 

 

[1] See Paul J. Larkin, Jr., Article: Medical or Recreational Marijuana and Drugged Driving, 52 Am. Crim. L. Rev. 453, 457 (2015).

[2] Id.

[3] Id. at 474-76.

[4] Id. at 477.

[5] Id. at 471.

[6] See Matthew Nesto, NJ Dems Reach Deal On Pot Bill; Vote May Come In Weeks, law360 (Mar. 12, 2019, 6:00 PM), https://www.law360.com/tax-authority/articles/1137838/nj-dems-reach-deal-on-pot-bill-vote-may-come-in-weeks.

[7] Id.

[8] See Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006; see also Ashley May, Stanford Engineers Develop Roadside Marijuana Test, USA Today (Sep. 9, 2016, 9:44 AM), https://www.usatoday.com/story/news/nation-now/2016/09/09/stanford-engineers-develop-roadside-marijuana-test/90043312/.

[9] See Lilly Price, Marijuana Breathalyzer Aims to Detect High Drivers ‘Without Unjustly Accusing’, USA Today (Aug. 7, 2019, 8:22 AM), https://www.usatoday.com/story/news/nation-now/2018/08/07/pot-breathalyzers-hound-labs-marijuana/912705002/.

[10] Id.

[11] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html.

[12] Id.

[13] Id.

[14] Id.; Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[15] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] See Mike Plaisance, Q&A as California Manufacturer Develops Marijuana Breathalyzer, Masslive (2019), https://www.masslive.com/news/erry-2018/09/51f3811b5f7893/qa-as-california-manufacturer.html;

Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[21] Chris Taylor, Is this Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer/.

[22] Cheryl Miller, Higher Law: Watch This Colorado Patent Case | A Prosecutor’s Salty Take on Marijuana | Plus: New Lobbying, and Who Got the Work, law.com (Aug. 9, 2018, 4:00 PM), https://www.law.com/2018/08/09/higher-law-watch-this-colorado-patent-case-a-prosecutors-salty-take-on-marijuana-plus-new-lobbying-and-who-got-the-work/?slreturn=20190918072006.

 

image source: https://www.axios.com/marijuana-weed-legalization-new-york-illinois-48f0c827-a734-4c0d-9acd-81bfc51740df.html

By: Katie Snyder

Have you ever feared you might be replaced by a robot? With the evolution of technology, the use of artificial intelligence in the workplace is increasing. Various studies have been conducted to determine the level at which artificial intelligence is infiltrating the workplace. According to a 2018 report made by the U.S. Bureau of Labor Statistics, “a startling 1.4 million jobs in the U.S. will be gone in just eight years.”[1]

Artificial intelligence is changing the environment of the job market, specifically the process of hiring candidates. The development of artificial intelligence provides companies with the ability to use algorithms to cut costs and improve efficiency.[2] The use of artificial intelligence in hiring removes recruiters.[3] The algorithms are written to highlight specific traits wanted by the employer for the available job.[4] The algorithms then find candidates that share those specific traits as persons currently working in the field.[5]

Companies such as Amazon have created algorithms to recruit and sort potential employees.[6] The algorithm tested by Amazon was designed to rank employees’ applications and then present employers with a limited number of resumes that the algorithm found to be the “best” potential candidates.[7] While algorithms like Amazon’s have reduced the cost and increased the speed at which hiring can be completed, they have presented a new set of problems.[8]

The use of technology in hiring is raising concerns, specifically surrounding the removal of the humanist aspect of hiring and the likelihood of discrimination.[9] These concerns are not unwarranted. In 2018, Amazon was forced to terminate its hiring algorithm when the company  discovered that the algorithm was discriminating against women.[10] Dastin, a tech columnist for Reuters, writes, “[B]y 2015, the company [Amazon] realized its new system was not rating candidates for software developer jobs and other technical posts in a gender-neutral way.”[11] Amazon’s algorithm was written to analyze resume patterns and characteristics of candidates over the previous ten-year period.[12] Since the tech world has been historically dominated by men, the resumes Amazon received over the ten-year period were mostly from men.[13] The male-centered data resulted in an algorithm that was biased towards hiring male candidates.[14] It “penalized resumes that included the word ‘women’s,’ as in ‘women’s chess club captain.’”[15] Although Amazon attempted to correct the algorithm’s biased nature, there continued to be a threat of implicit bias towards women.[16]

Amazon is not the only company transitioning its hiring process to artificial intelligence algorithms. Companies such as Target and Pepsi are also testing algorithms to “improve” their hiring processes.[17] While the shift to artificial intelligence is inevitable with the advancements in technology, lawmakers are attempting to introduce legislation to combat discrimination. In early 2019, the Algorithmic Accountability Act was introduced into Congress by Rep. Yvette Clarke.[18] The intention of this bill is “to require large companies to audit their algorithms for potential bias and discrimination and to submit impact assessments to Federal Trade Commission officials.”[19] The introduction of this bill shows that lawmakers are aware of the potential dangers of artificial intelligence in the hiring process and want to create legislation that regulates this problem.

Artificial intelligence is a fairly new concept, so it is developing and evolving daily. That means that there is a lot of opportunity for legislation regarding the artificial intelligence community to evolve as well. The discussion of hiring algorithms’ potential implicit biases and discrimination will likely continue to be a pressing issue in the coming years. Legislators will have to work to create laws to ensure that all are continued to be protected equally in the hiring and employment process, and lawyers will have to work to ensure that these laws are actually doing just that. While robots might not be replacing you at your job just yet, be wary of the algorithm when applying for your next job!

[1]Robby Berman, Infographics Show Jobs Most Likely to be Lost to Robots,  Big Think (Apr. 6, 2018), https://bigthink.com/robby-berman/infographics-show-jobs-most-likely-to-be-lost-to-robots.

[2]Aaron Holmes, AI could be the key to ending discrimination in hiring, but experts warn it can be just as biased as humans, Business Insider (Oct. 8, 2019), https://www.businessinsider.my/ai-hiring-tools-biased-as-humans-experts-warn-2019-10/.

[3]Id.

[4]Jeffery Dastin, Amazon scraps secret AI recruiting tool that showed bias against women, Reuters (Oct. 9, 2018, 11:12 PM), https://www.reuters.com/article/us-amazon-com-jobs-automation-insight/amazon-scraps-secret-ai-recruiting-tool-that-showed-bias-against-women-idUSKCN1MK08G.

[5]Id.

[6]Holmes, supra note 2.

[7]Dastin, supra note 4.

[8]Holmes, supra note 2.

[9]Id.

[10]Dastin, supra note 4.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]Id.

[17]Holmes, supra note 2.

[18]Jaclyn Diaz, Congress Plays Catch-Up on Artificial Intelligence at Work, Bloomberg Law (Aug. 27, 2019, 6:05 AM),  https://news.bloomberglaw.com/daily-labor-report/congress-plays-catch-up-on-artificial-intelligence-at-work.

[19]Id.

image source: https://condenaststore.com/featured/replaced-by-robot-farley-katz.html

By: Davina Seoparsan

The Case

In 2002, Lester Packingham was convicted of taking indecent liberties with a minor.[1] Lester was sentenced to a year of imprisonment with an additional 24 months of supervised release.[2] Upon his release, he was told to stay away from the minor involved in his case, but no further special instructions were given other than the contact ban.[3] In 2010, Lester Packingham was arrested for a violation of North Carolina’s law regarding sex offenders and social media.[4] The reason for his arrest? A Facebook post thanking god and celebrating having a parking ticket dismissed.[5] At the time, a North Carolina law prohibited registered sex offenders from using various social media sites such as Snapchat, Twitter, Instagram and LinkedIn.[6] The social media forms that were banned were mainly those which allowed children under 18 to create accounts. Lester’s case overturned that law.[7]

The Supreme Court of the United States reviewed the case and had two main reasons for overturning the law. Firstly, the Supreme Court discussed the important role that the internet plays in everyday life and determined that the internet is now included in the process of citizens exercising their First Amendment rights.[8] Secondly, the Court was unconvinced by the state’s argument that internet and social media restriction for sex offenders was absolutely necessary to protect innocent children and future potential victims.[9] The court did not challenge the assertion that registered sex offenders pose a risk to children and other individuals, rather, it rejected the notion that broadly banning access to certain social media platforms directly served the purpose of protecting victims.[10]

 

The Controversy

The debate regarding whether sex offenders should have the ability to access social media has been extremely controversial. On one hand, social media is considered fundamental to modern society. As Justice Kennedy noted, social networking sites are “the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the fact realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”[11] One of the (often forgotten) objectives of the criminal justice system is rehabilitation: an attempt to transform the offender into a valuable member of the general population once their time served in prison is complete.[12] Sex offenders already face restrictions on many aspects of life, including where they can live and what kind of environments, they can work in.[13] By not allowing sex offenders to have access to certain websites and platforms, their ability to re-enter into society is greatly impacted. Research suggests that feelings of isolation can prevent sex offenders from reentry, which in turns increases their likelihood of reoffending.[14]

On the other hand, sex offenses are considered especially heinous in society.[15] Logic indicates that those who commit especially heinous crimes should face stronger restrictions than those who have been convicted of other types of crimes. It is clear why advocates for sex offender restrictions have focused on social media; between dating apps, picture platforms and the amount of information that many have posted online, a sexual predator not only has every access to a large amount of information, but also has a way to communicate with any potential target they desire.[16] Crimes committed through the use of dating apps and other social media are not uncommon, and include rape, kidnapping, sex trafficking and even murder.[17] Those who support sex offender restrictions argue that by imposing these restrictions and banning sex offenders from access to these sites, many of these crimes will be prevented.

 

The Consensus

Though it might seem that the decision in Packingham was mainly supporting the anti-restriction advocates, the law has provided ways to limit sex offenders without infringing on their First Amendment rights.[18] That being said, a court can still impose social media, or even more broadly, internet, restrictions as a part of an individual’s probation.[19] Some states have enacted narrowly tailored laws in order to restrict and monitor the online activities of registered sex offenders without infringing on their rights. For example, there is a California Bill that was passed in 2016 which requires sex offenders to disclose their internet identifiers, including usernames, emails, and any names they use to send direct messages.[20] Pro-restriction advocates have recommended that states adopt laws requiring dating apps to do background checks on users to prevent sex offenders from utilizing the dating app, but few have chosen to act on this due to privacy concerns.[21] As modern technology develops and the amount of information that is accessible online expands, it is likely that we can expect a new wave of laws that aim towards protecting the youth without infringing on the First Amendment rights of sex offenders.

 

[1] State v. Packingham, 748 S.E.2d 146 (N.C. Ct. App. 2013).

[2] Id at 149. See also Packingham v. North Carolina, 137 S. Ct. 1730 (2017).

[3] Id.

[4] State v. Packingham, 748 S.E.2d 149 (N.C. Ct. App. 2013).

[5] Id.

[6] Id at 148.

[7] See Packingham v. North Carolina, 137 S. Ct. 1730 (2017).

[8] Id at 1735.

[9] Id at 1737.

[10] Id.

[11] Id 1732.

[12] See Edward L. Rubin, The Inevitability of Rehabilitation, 19 U. Minn. L. Rev. 343 (2001).

[13] See Samantha Olson, Moving the Sex Offender Registry to a Risk of Re-offense Model, 96 Oregon l. Rev. 314 (2017).

[14] Id at 321.

[15] See The Justice System, bureau of justice statistics, https://www.bjs.gov/content/justsys.cfm. See generally id at 328; Law and Order: Special Victims Unit: Title (NBC television broadcast).

[16] See Sam A. Wilcox, Should Registered Sex Offenders be Banned from Social Media?, 48 am. psychol. ass’n. 27 (2017).

[17] See Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts…”). See generally Child Sexual Abuse Statistics, the national center for victims of crime, https://victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics.

[18] See id at 1737 (“Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”).

[19] Id at 1738.

[20] See generally S.B. No. 448 (Ca. 2016).

[21] Wilcox, supra note 15.

 

image source:  https://www.irishtimes.com/polopoly_fs/1.3959186.1563369177!/image/image.jpg_gen/derivatives/box_620_330/image.jpg

By: Trevor Vonu

Starting in May of 2019, Facebook began to develop its cryptocurrency, known as Libra.[1] The social media giant hopes to use its worldwide reach to help Libra revolutionize the exchange of currency in the modern world.[2] Libra aims to allow consumers, especially those seeking an alternative to traditional currency and banking, to buy products or simply exchange money with virtually zero fees.[3] By eliminating transaction fees, a common staple of credit card companies, Libra could have a profound impact on the world’s paperless exchange of money.[4] Unlike its competitors, namely Bitcoin and Ethereum, Libra aims to maintain a stable price point, providing merchants and consumers comfort in using Libra as a regular method of exchange.[5] Another problem plaguing cryptocurrency pioneers, is the issue of widespread acceptance; most merchants only accept traditional forms of currency and lack the means and/or desire to allow payment via cryptocurrency.[6] This issue has proven to be quite challenging to current cryptocurrencies, however, Libra has the potential to become integrated throughout American and foreign economies.[7] Facebook already has a relationship with millions of advertisers and businesses.[8] With its foot already in the door, Facebook may be able to provide Libra the push it needs to become a common form of exchange among merchants.

However, it did not take long for lawmakers to push back against Facebook’s launch of Libra. Throughout the latter half of 2019, Facebook has been hit with a seemingly endless barrage of questions and concerns surrounding Libra.[9] Uneasiness concerning Facebook’s entrance into the financial arena should not come as a surprise, considering Facebook’s past struggles with user privacy and protection of personal information.[10] Lawmaker’s and regulatory concerns, however, stem far beyond the privacy interests of its users.[11] The U.S. Treasury Department voiced its concern regarding Libra’s potential to be misused for money laundering and financing criminal activity.[12] Based on the government’s concerns, it seems evident that the current regulatory infrastructure is simply not prepared for the shock that Libra could bring to the current financial system.[13] Further, widespread incorporation of Libra could drastically hamper the Federal Reserve’s ability to moderate United States financial policy.[14]

Expecting an avalanche of regulation and red tape, several of Libra’s partners, including Visa, Mastercard, and PayPal have already abandoned the project, at least for now.[15] Due to the government’s reluctance to accept Libra’s entrance into the finance arena, Facebook faces an uphill climb in its mission to launch its cryptocurrency brand.[16] However, Facebook shows no signs of abandoning the project.[17] Consequently, the U.S. government will likely do whatever it can to maintain regulatory control over Libra.[18]

Stemming from the controversy sparked by Facebook’s announcement of Libra, the House of Representatives held a hearing primarily purposed to determine how Libra would affect the current financial system.[19] Some of the concerns voiced in the hearing include financial regulations, consumer protection, and whether Libra coins should be regulated as securities.[20] Perhaps most notably, the lawmakers discussed Libra’s potential impact on the U.S. financial system, as well as public policy concerns.[21] Evidently, Libra is currently seen as a serious threat to the Federal Reserve’s ability to regulate currency.[22] As such, Facebook and Libra will likely be subject to continued governmental oversight as lawmakers work to ensure that the government will be able to maintain a degree of control of Libra’s impact on the American financial system.[23] Consequently, at the time of its launch, Libra will likely be less innovative than initially expected.[24] That said, it will certainly be interesting to see whether Facebook unveils Libra as it was originally designed.

image source: https://images.theconversation.com/files/286737/original/file-20190802-117871-qda2ij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=926&fit=clip

[1] AnnaMaria Andriotis, Peter Rudegeair, & Liz Hoffman, Wallstreet Journal (Oct. 16, 2019, 12:19 PM), https://www.wsj.com/articles/facebook-wanted-to-create-a-new-currency-it-wasnt-ready-for-the-backlash-11571242795?mod=searchresults&page=1&pos=11.

[2] Id.

[3] Josh Constine, Tech Crunch (June 18, 2019, 5:01 AM), https://techcrunch.com/2019/06/18/facebook-libra/.

[4] See Id; Outside Perspectives on the Collection of Beneficial Ownership Information: Hearing Before the S. Comm. on Banking, Housing, and Urban Affairs, 116^th Cong. 15 (2019) (statement of Sen. Jack Reed, Chairman, S. Comm on Banking, Housing, and Urban Affairs).

[5] Jonathan L. Marcus, Recent Cryptocurrency Regulatory Developments, 38 Banking & Fin. Services Pol’y Rep. 1, 7 (2019).

[6] Constine, supra note 3.

[7] Id.

[8] Id.

[9] See supra note 3, at 14-15.

[10] Jonathon Shaw, The Privacy Implications of Facebook’s Surreptitious and Exploitive Utilization of Facial Recognition Technology, 31 Temp. J. Sci. Tech. & Envtl. L. 149, 150 (2012).

[11] Androitis, supra note 1.

[12] Examining Facebook’s Proposed Cryptocurrency and its Impact on Consumers, Investors, and the American Financial System: Hearing Before the H. Comm. on Fin. Serv., 116^th Cong. (2019).

[13] See Outside Perspectives on the Collection of Beneficial Ownership Information: Hearing Before the S. Comm. on Banking, Housing, and Urban Affairs, 116^th Cong. 15 (2019) (statement of Sen. Jack Reed, Chairman, S. Comm on Banking, Housing, and Urban Affairs).

[14] See Andriotis, supra note 1.

[15] Id.

[16] See hearings, supra note 12.

[17] See Andriotis, supra note 1.

[18] See hearings, supra note 13, at 15.

[19] See hearings, supra note 12.

[20] Id.

[21] Id.

[22] See id.

[23] See Marcus, supra note 5, at 8.

[24] Andriotis, supra note 1.

By: Bhavik Shukla*

Blockchain technology is a significant development on the technological canvas of the world. Be it commerce, entertainment, logistics or even functioning of the government, this technology finds its footing in all avenues. Blockchain technology refers to a distributed ledger over which transactions are validated, executed and recorded. The feature which makes this technology attractive is that it is tamper-proof, permanent and functions without the involvement of an intermediary. It certainly appears that this technology is here to stay and develop. However, this development appears to be stifled in India due to the recent governmental moves which aim at banning some applications of blockchain. Through this piece, the author shall discuss the recent Indian developments restricting the application of blockchain technology in India, and the problems that accompany such a restrictive approach.

Blockchain Technology and the Indian Legal Fabric

India has been highly receptive in experimenting and accepting the applications of the blockchain technology since its introduction. Though this move was initially spearheaded by businesses in India; over the course of time formal institutions such as banks[i] and few state governments[ii] have deployed blockchain-based applications. However, cryptocurrencies which work on the blockchain platform have not found the desired acceptance in India. An inter-ministerial committee headed by Subash Chandra Garg recently expressed its intention to ban private cryptocurrencies.[iii] Simply put, cryptocurrencies refer to digital currency which comprise a code and hold monetary value. The Reserve Bank of India (“RBI”), India’s central bank, has also expressed its reservations on permitting transactions in cryptocurrencies in the past.  The notification dated April 6, 2018[iv] is an excellent specimen of this as it indirectly imposed a ban on cryptocurrencies by prohibiting entities regulated by it from facilitating transactions in such digital currencies. This translates into a situation wherein a Bank ‘A’, regulated by the RBI shall no longer, after the publication of notification, clear payments for the purchase of cryptocurrencies or otherwise. This ban has been challenged before the Supreme Court of India by the Internet and Mobile Association of India, and the matter is sub judice before the Court.[v] Additionally, the Enabling Framework for Regulatory Sandbox, 2019 published by the RBI also included cryptocurrencies in the negative list of the sandbox, thereby prohibiting its application in the testing of FinTech services.[vi]

Due to the aforementioned measures of the RBI, entities have resorted to a half-hearted use of the blockchain technology in India. Most Indian entities use blockchain for its rudimentary function of recording data and are unable to harness its benefits through platforms powered by cryptocurrencies. This has hindered the development of a mature blockchain technology-driven landscape in India.

Potential pitfalls of the Indian approach on the blockchain technology

However, this piecemeal application of the technology is detrimental towards realization of a developed blockchain economy which India desires[vii], the reasons for which are as follows:

1. Inefficient blockchain technology without cryptocurrencies

Regardless of the insular Indian position on the adoption of blockchain, it offers staggering independent uses like verifying the source of goods in supply chain, collecting viewership preferences on video applications, maintaining the ownership and royalty details for music artists etc. If viewed through a wide lens, all independent uses of blockchain technology fundamentally concern recording of data in a permanent and immutable form. For example, the move of the regional Indian state of Andhra Pradesh aimed at managing land deeds through blockchain merely concerns the record-keeping function of the technology. Similarly, the supply-chain details to determine the source of seafood and their subsequent transfer also encompasses the basic function of recording and further transmitting data. This implies that the primary function of blockchain if not used in collaboration with cryptocurrencies is limited merely to recording data and further transmitting it in whichever way appeals to the public.

An instinctive question which then arises is – whether such application of the blockchain technology is practically feasible? The answer to this is both “yes” and “no”. The former answer can be obtained in case where the government or an organization creates a private blockchain, meaning thereby that the information in such a network can be monitored as well as altered by that entity. The idea of a private blockchain contradicts the primary reason for the introduction of this technology, precisely for promotion of transparency and decentralization.[viii] Additionally, individuals or a group of individuals discharging their roles as administrators can unilaterally alter information on private blockchains[ix], thereby adversely affecting immutability.

On the other hand, the scales will tip against this aspect where a public blockchain is adopted, which works on the fundamental principles of transparency and trust. Characteristically, a public blockchain involves addition of “blocks” to the “chain” through solving a cryptographic puzzle. Addition of blocks to a public blockchain warrants more legitimacy and acceptability to it. Accordingly, once a solution is found, the miner is awarded cryptocurrencies as incentive for adding legitimacy to the blockchain.[x] Such handling of cryptocurrencies is anonymous in nature, where the miner does not reveal his personal details or account number. Therefore, it cannot be substituted by distribution of legal tender. Without cryptocurrencies or any form of reward, the miners would not have an incentive to maintain or add to a public blockchain.

Without the use of cryptocurrency, the blockchain technology will be crippled and restricted to merely private blockchains. The problems inherent in private blockchain render it an autocratic medium, very similar to the traditional means of recording data in India.

1. Smart contracts and its obliteration

In addition to being used for numerous purposes, cryptocurrency forms the basis for its closest aide, smart contracts. A smart contract comprises a code which executes itself once certain pre-determined conditions are fulfilled. For example, when a particular condition/s is satisfied, the requisite amount of cryptocurrency is transferred to the other party automatically. This method of execution necessarily strikes out a third party of any sort, thereby leading to a direct transaction routed merely through the platform running on the blockchain technology. The obvious advantages of this contract include transparency, security, efficiency and savings. Numerous platforms offering smart contract services have gained traction in the recent past.[xi] China[xii] as well as the U.S. State of Delaware[xiii] have opened up to the introduction of smart contracts in discharging governmental functions.

Attraction towards smart contracts is attributable to its automation and efficiency-oriented features. Cryptocurrencies lie at the heart of powering these features by acting as a method of payment. An isolation of cryptocurrencies from such a setting would deprive the contract from being automatically executed. This is a consequence which smart contracts shall face in India, if implemented. Without cryptocurrencies, authorization would be required for transfer of funds in a contract, thereby doing away with the “smart” aspect of the contract. Therefore, it is impossible for smart contracts to exist without cryptocurrencies, thereby depriving India of its valuable benefits.

Introduction of an Indian digital currency

Recently, the Subash Chandra Garg Committee recommended the introduction of an official digital currency with the status of a legal tender.[xiv] The Report of the Committee undertakes a specific inquiry into such currency being based on the blockchain technology.[xv] Though the move exudes confidence in the technology, it may end up being an inefficient and non-transparent application of the technology. Disadvantages of private cryptocurrencies have come to fore with the recent launch of Libra, Facebook’s private cryptocurrency.

A private cryptocurrency even if officially launched by India would not make its ‘claim to fame’ in the blockchain technology sector. First, the use of a private cryptocurrency launched by the government may be through acquiring it in a special wallet in exchange for legal tender. This means that a person may have to unnecessarily get involved in an additional procedure in order to transact with such currency. Second, the author acknowledges that though public cryptocurrencies are also acquired against legal tender, but they have discernibly substantial advantages. A private cryptocurrency shall essentially be regulated by the RBI making it very much like a digital Rupee. This will mean that such a centrally controlled currency shall not be trustless, decentralized or immutable like most public cryptocurrency. A centralized system lacking trust signifies that the government shall have complete authority to determine the liquidity, value and other conditions attached to the cryptocurrency. In such a case, the government can majorly alter its state and nature in order to help its financial agenda. Third, data concerns are at the head of introduction of a government-regulated cryptocurrency. In usual public systems, such currencies are dealt with anonymously, but a government issuing crypto tokens will be able to keep a track of its expenditure. This infringes the data privacy of the users by exposing their expenditure trends, average spending etc.

Conclusion

The stance of the Indian government on the entire cryptocurrency issue looks non-negotiable. In another recent report published under the guidance of Subash Chandra Garg[xvi], this unassailable stance was implicitly visible. It appears that the Indian government is still oblivious to the handicapped growth that the blockchain technology will undergo due to the imposition of a blanket ban on cryptocurrency. This piece merely coaxes the government to take this into account and reconsider its stance.

image source: https://www.asiablockchainreview.com/indian-finance-minister-confirms-no-law-banning-crypto-in-india/

[i] See Toshendra Kumar Sharma, Which Indian Bank uses Blockchain Technology?, Blockchain Council (May 7, 2018), https://www.blockchain-council.org/blockchain/which-indian-bank-uses-blockchain-technology/.

[ii] See Dhiman Bhattacharyya, Blockchain Technology Adoption in India: Prospects and Challenges, MyIndia (Mar. 31, 2019), https://www.mapsofindia.com/my-india/technology/blockchain-technology-adoption-in-india-prospects-and-challenges#; See also KV Kurmanath, In AP capital, blockchain technology secures land records, Hindu BusinessLine (Jan. 8, 2018), https://www.thehindubusinessline.com/info-tech/in-ap-capital-blockchain-technology-secures-land-records/article10020465.ece.

[iii] See ET Bureau, Inter-ministerial group suggests banning of private cryptocurrencies in India, The Economic Times (Jul. 23, 2019), https://economictimes.indiatimes.com/news/economy/policy/indian-panel-recommends-ban-on-cryptocurrency/articleshow/70331293.cms?from=mdr.

[iv] See Prohibition on dealing in Virtual Currencies, Reserve Bank of India (Apr. 6, 2018), https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11243.

[v] See Aashish Aryan, RBI banned cryptocurrency deals on moral grounds: IAMAI to Supreme Court, Business Standard (Aug. 8, 2019), https://www.business-standard.com/article/economy-policy/rbi-banned-cryptocurrency-deals-on-moral-grounds-iamai-to-supreme-court-119080801517_1.html.

[vi] See Exclusion from Sandbox Testing, Enabling Framework for Regulatory Sandbox, Reserve Bank of India (Aug. 13, 2019), https://www.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=938.

[vii] See Nupur Anand, Here’s what could happen if India bans cryptocurrencies, Quartz India (Nov. 1, 2018), https://qz.com/india/1446880/what-could-happen-if-india-bans-bitcoin-and-cryptocurrencies/.

[viii] See Shannon Appelcline, A Philosophy of Blockchain: What would Satoshi Nakamoto think of Proof of Stake?, Medium (Aug. 1, 2019), https://medium.com/clean-titles/a-philosophy-of-blockchain-what-would-satoshi-nakamoto-think-of-proof-of-stake-f9aac8e4d005.

[ix] See Koshik Raj, Foundations of Blockchain: The pathway to Cyrptocurrencies and Decentralized Blockchain Applications 16 (2019).

[x] See Andre Boaventura, Demystifying Blockchain and Consensus Mechanisms – Everything you Wanted to Know but were Never Told, Medium (Apr. 12, 2018), https://medium.com/oracledevs/demystifying-blockchain-and-consensus-mechanisms-everything-you-wanted-to-know-but-were-never-aabe62145128.

[xi] See John Gilleran, ‘Smart contracts’ on cusp of mainstream adoption, New England In-House (Jul. 17, 2019), https://newenglandinhouse.com/2019/07/17/smart-contracts-on-cusp-of-mainstream-adoption/.

[xii] See Toshendra Kumar Sharma, Top 10 Friendly Countries for Blockchain Startups, Blockchain Council (Apr. 15, 2019), https://www.blockchain-council.org/blockchain/top-10-friendly-countries-for-blockchain-startups/.

[xiii] See Julia Magas, Smart Cities and Blockchain: Four Countries Where AI and DLT Exist Hand-in-Hand, Coin Telegraph (Jun. 17, 2018), https://cointelegraph.com/news/smart-cities-and-blockchain-four-countries-where-ai-and-dlt-exist-hand-in-hand.

[xiv] See Rahul Oberoi, India mulling an official crypto-currency? Looks like govt vering towards the idea, Economic Times (Jul. 23, 2019), https://economictimes.indiatimes.com/markets/stocks/news/india-mulling-an-official-crypto-currency-looks-like-govt-veering-towards-the-idea/articleshow/70343343.cms.

[xv] See Report of the Committee to Propose Specific Actions to be taken in relation to Virtual Currencies, Department of Economic Affairs (Feb. 28, 2019), https://dea.gov.in/sites/default/files/Approved%20and%20Signed%20Report%20and%20Bill%20of%20IMC%20on%20VCs%2028%20Feb%202019.pdf, at pp. 37-45.

[xvi] See Report of the Steering Committee on Fintech Related Issues, Department of Economic Affairs, https://dea.gov.in/sites/default/files/Report%20of%20the%20Steering%20Committee%20on%20Fintech.pdf.

*Bhavik Shukla is a guest contributor from the National Law University, Bhopal.

By: Olivia Akl

When the 2008-2009 financial crisis meant many in the U.S. were facing unemployment or underemployment, the “gig economy” boomed.[1] Based on “[t]he concept of creating an income from short-term tasks,” the gig economy has grown to encompass full-time independent contractors as well as those picking up a few hours or shifts a week to augment other full- or part-time employment.[2] The gig economy includes the more traditional “[m]usicians, photographers, writers, truckdrivers, and tradespeople,” as well as the more modern “independent management consultants…, machine learning data scientists…, delivery drivers,” rideshare drivers, and hosts.[3]

Along with the modern notions of the gig economy, a modern business approach rose up to facilitate it: apps.[4] The apps of companies like Uber, AirBnB, Lyft, Grubhub, DoorDash, Instacart, and more are so synonymous with the business entity that the average individual does not separate the business entity from the service it provides.[5] However, the business entities have drawn very hard legal lines between their services, in the form of the app which serves as a marketplace connecting the gig worker to the client, and the actual service the gig worker performs.[6]

This liability shield is currently under fire in California where the adoption of Assembly Bill 5 (“AB5”), which institutes a three-pronged test to decide whether a gig worker is a contract worker or a hired employee.[7] AB5 effectively expands the Dynamex[8] ruling of the California Supreme Court which applied the “ABC test” first articulated in Martinez v. Combs[9] to a document delivery company, affirming the lower court’s decision that the drivers for Dynamex Operations West were employees as defined by California’s Industrial Welfare Commission.[10] The adoption of AB5 codified the ABC test into California law.[11]

The ABC test, so named for the bulleting system the Martinez Court used in its articulation of the test, breaks down that “to employ” means: “(a) to exercise control over the wages, hours, or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.”[12]

AB5 “will affect at least one million workers,” who have been denied “basic protections like a minimum wage and unemployment insurance.”[13] AB5 could also fundamentally change how these app-based companies have been doing business if the companies in question cannot avoid the employee categorization for their workforce, as Uber believes it can.[14] Some estimates by industry officials say costs will go up “by 20 to 30 percent” as a result of recategorizing gig workers as employees.[15] Uber and Lyft have warned of reduced scheduling flexibility for gig workers.[16]

Perhaps the biggest impact of AB5 for the gig economy app companies will be the loss of their liability shield.[17] Uber, for example “faces many lawsuits over issues ranging from fender benders to wage disputes to more-serious incidents.”[18] Recently, an individual sued Uber and one of the gig workers who drove for it “alleging she nearly lost her leg after being struck by [the gig worker], who she claimed veered off the road.”[19] Uber’s defense in cases such as these relies on the gig worker not being an employee, and thus an agent of Uber which would open Uber up to liability, but rather an independent contractor whose “work is outside the usual course of Uber’s business.”[20] Uber is able to make this claim by maintaining that it is not “in the business of providing transportation,” but in the business of providing a marketplace for independent drivers to contract with those who wish to hire their services.[21] If under AB5 Uber’s gig workers are found to be employees, driving for Uber would be working in “the usual course of business” and thus they would likely be found to be agents of Uber, opening Uber up to legal liability for any accidents their employees have while driving for Uber.

Legal liability is likely the main reason why Uber, Lyft, and DoorDash have announced “they would commit $90 million to a state ballot measure to create an alternative worker classification, somewhere between employee and independent contractor.”[22] Whatever the outcome, AB5 has already had a large impact and more states may follow in California’s steps.[23]

image source: https://www.gigeconomydata.org

[1] John Frazer, How the Gig Economy is Reshaping Careers for the Next Generation, Forbes (Feb. 15, 2019), http://www.forbes.com/sites/johnfrazer1/2019/02/15/how-the-gig-economy-is-reshaping-careers-for-the-next-generation/#292554049ada.

[2] See id.

[3] Id.

[4] See Angela Stringfellow, Best Gig Economy Apps, Wonolo (Sept. 30, 2019), https://www.wonolo.com/blog/best-gig-economy-apps/.

[5] See e.g., Maggie Tillman & Britta O’Boyle, What is Uber and How Does it Work?, Pocket-lint (June 2019), https://www.pocket-lint.com/apps/news/uber/139559-what-is-uber-and-how-does-it-work (describing Uber as “a ride-hailing company”); Cambria Bold, I Had My Groceries Delivered by Instacart, and Here’s How it Went, Kitchn (Jan. 2015), https://www.thekitchn.com/i-had-my-groceries-delivered-by-instacart-and-heres-how-it-went-214795 (describing Instacart as a “grocery delivery company”).

[6] See Greg Bensinger, Uber: The Ride-Hailing App That Says it Has “Zero” Drivers, Wash. Post (Oct. 2019) https://www.washingtonpost.com/technology/2019/10/14/uber-ride-hailing-app-that-says-it-has-zero-drivers/.

[7] See Alexia Fernández Campbell, California Just Passed A Landmark Law to Regulate Uber and Lyft, Vox (Sept.18, 2019) https://www.vox.com/2019/9/11/20850878/california-passes-ab5-bill-uber-lyft.

[8] See Dynamex Operations W. v. Superior Court, 416 P.3d 1 (Cal. 2018).

[9]  See Martinez v. Combs, 231 P.3d 259, 278 (Cal. 2010).

[10] See Dynamex, 231 P.3d at 42.

[11] Kate Conger & Noam Scheiber, California Bill Makes App-Based Companies Treat Workers as Employees, NY Times (Sept. 2019), https://www.nytimes.com/2019/09/11/technology/california-gig-economy-bill.html.

[12] See Martinez, 231 P.3d at 278.

[13] Conger & Scheiber, supra note 11.

[14] See Aarian Marshall, In California, Gig Workers Are About to Become Employees, Wired (Sept. 2019) https://www.wired.com/story/california-gig-workers-become-employees/ (“[Uber] won’t reclassify its drivers as employees on January 1, because the company believes it can pass the law’s three-part test”).

[15] See Conger & Scheiber, supra note 11.

[16] See id.

[17] See Bensinger, supra note 6.

[18] Id.

[19] Id.

[20] Id.

[21] See Id.

[22] See Marshall, supra note 14.

[23] See id. (noting that New York is working on a similar bill).

By: Erin Kidd

The earliest known functional prosthetic device dates all the way back to anywhere between 950-710 BC.[1] The field has been innovating ever since and new technologies, particularly 3D printing, potentially stand to push it forward farther, and faster, than ever before.[2] However, looking at the achievements such as those of The Alternative Limb Project, where UK-based Sophie de Oliveira Barata uses her design expertise and special effects background to create state-of-the-art, completely unique prosthetics,[3] the word innovation starts to feel almost inadequate.

In 2016, de Oliveira Barata and a team of artists, craftsman, 3D modelers, and 3D printers created “The Phantom Limb” for biological science graduate and “amputee gamer” James Young.[4] The project was sponsored by Konami and developed in collaboration with Open Bionics and GTR motorsport and aerospace manufacturers.[5] The result features a 3D-printed hand which receives signals from electrodes in an attached harness to form various grips and gestures, which allow the wearer to form various grips and gestures, using buttons in the forearm.[6] It also features a mechanical elbow, a “Social Space” that can hold and charge devices including a paired quadcopter, built-in lights which can respond to the wearers heartrate, and, last but not least, a Bluetooth enabled wrist with a USB port and a small screen for viewing message, emails, and social media updates.[7] “It is, in short, a prosthetic masterpiece.”[8]

The Phantom Limb is far from the only masterpiece de Oliveira Barata has created, from a leg that can hold art supplies for a creative child to a Swarovski Crystal showstopper, she is “blurring the line between everyday prostheses and body modification”[9] and helping reframe the discussion around prosthetics along the way.[10]

The ability to fully customize a prosthetic, and the resulting body positivity that many people feel when able to do so,[11] is only one of the benefits 3D printing stands to bring to the prosthetics field. The biggest benefits are in time and cost.[12] Where traditional prosthetics could cost anywhere from $5,000 to $50,000 and take anywhere from weeks to months to receive,[13] 3D printed prosthetics can be dreamed up “prototyped, printed and tested in a matter of days [, sometimes hours]”[14] for as little as $50.[15]

There is also another form of customization: fit. Dan Ignaszewski, chief policy and programs officer with the Amputee Coalition of America, estimates about 2.1 million people in the U.S. are living with limb loss and nearly 200,000 amputations occur in the United States every year.[16] Yet, despite such high number, only around half of all amputees receive a prosthetic.[17] Some of these are by choice and most commonly that choice has to do with uncomfortable weight and fit that cannot be overcome by utility.[18] It most commonly happens with arm and hand prosthetics.[19] But some of those going without prosthetics are not doing so by choice; sometimes the law gets in the way.

Over the past few years, the FDA has struggled to keep up with the rapidly changing field of 3D printing, or “additive manufacturing” as they typically refer to it. Overall though, the agency has decided to favor encouraging innovation over restricting through regulation.[20]

With the exception of certain preassembled lower limb prosthetics and types of myoelectric and microprocessor-controlled prosthetic devices, the FDA has largely classified prosthetics of all kinds as Class 1 medical devices which are exempt from much of the regulatory scheme currently in place.[21] In other words the FDA has mostly avoided placing taxing regulations on prosthetic devices that may limit public access to new and rapidly-developing prosthetic technologies. Many, in fact, are exempt from all but a complaint process.[22]

FDA policies on the matter, however, do not prevent states from creating barriers, even those that were not originally intended to act as such. Earlier this year Ohio changed its licensing laws for prosthetics manufacturers specifically to allow companies and charities to make and distribute 3D-printed prosthetics.[23] The previous 2001 law required prosthetic developers to get a license from Ohio’s Occupational Therapy, Physical Therapy, and Athletic Trainers Board (OTPTAT Board)—a license which required a bachelor’s degree, a residency program, a minimum of eight months working under the supervision of an already licensed prosthetist, an examination, and a fee. According to a press release from Lieutenant Governor Jon Husted’s office, the whole process would generally take at least six years to complete.[24]

Husted, along with Ohio Senator Rob McColley, was inspired to propose a change when a charity organization faced resistance and a possibly concerted push to prevent the unlicensed use of 3D printing in the prosthetics field from companies hoping to ward off competition.[25] The charity was Form 5 Prosthetics, which was created by an entrepreneurial twenty year-old business major named Aaron Westbrook, who himself was born with a limb difference which left him without a wrist or hand on his right arm, in order provide task-specific prosthetic limbs to children who normally would never be able to afford them.[26]

Husted and McColley’s proposed change was successful and, starting October 17, 2019, Ohio prosthetic developers working with 3D printing kits will be allowed to work without a license as long as the they seek and receive approval from the OTPTAT Board.[27] But Ohio is one of just fifteen states that regulates the licensure of prosthetics developers and manufacturers.[28]

Perhaps the larger barrier, though, is insurance and how it can differ from state to state. Generally speaking, all insurance providers will cover at least some prosthetics devices to at least some extent, not all insurances are created equal in this light.[29]

Due to the Affordable Care Act (ACA), all individual and small group insurance plans[30] currently cover ten categories of “Essential Health Benefits,” and among those are “rehabilitative and habilitative services and devices.”[31] So, too, do all states participating in the Medicaid expansion.[32] However, federal law does not mandate how much insurance plans have to cover under the ACA and the Department of Health and Human Services elected to allow states to define their own EHBs.[33] According to The Amputee Coalition, a Virginia-based non-profit and advocacy group, this creates a problem where state Medicaid plans can “cut corners,” and those in need face inconsistent care depending on where they may live.[34]

Even though all states seem to cover prosthetics as a Medicaid benefit to some extent, most still allow all sorts of exceptions and exclusions.[35] For instance, Florida’s Medicaid program only covers one prosthetics per lifetime.[36] Even Utah, the only state which did not officially recognize prosthetics as an EHB as of 2018, allows coverage of one prosthetic every five years.[37] As of this year, only fifteen states cover prosthetics without explicit type-based exclusions of some kind.[38] Most frequently, type-based exclusions prevent access to more advanced devices, especially myoelectric prosthetic arm prosthetics, even though they have been available for more than a decade![39]

The previously mentioned Amputee Coalition is at the center of a significant, ongoing advocacy initiatives to change the situation for those in need. The nonprofit drafted a model bill, “Insurance Fairness for Amputees,” and, to date, twenty-one states have adopted legislation based off the model bill.[40] Virginia is one such state, though efforts to strengthen the adopted legislation is still ongoing.[41]

Despite these improvements, it can still be a long-uphill battle for approval and appeals or legal disputes over what counts as “medically necessary” enough to be covered are commonplace even where coverage is available.[42] Battles for coverage, and limited coverage in general, are particularly taxing on families that require access to prosthetics. A traditional prosthetic has an average lifetime of five years, but children and young adults can go through them much faster, either by growing or just by acting like normal kids.[43] With insurance limitation, many families can only afford one general use prosthetic per year for a child, especially when everything supporting a prosthetic typically must be paid for out of pocket.[44] Many insurance policies do not cover repairs, extra unanticipated prosthetics fittings, or physical therapy, let alone a whole new device for when a young child grows too quickly. This also leaves many children without access to task-specific prosthetics which can be designed for sports, playing an instrument, or even just safely riding a bicycle.[45]

It is past time for many states to review their licensure and insurance regulations. In the words of Ohio’s Lt. Governor Husted, “Laws and regulations need to keep people safe and healthy, but we can’t have our regulations ever standing in the way of innovation . . . especially when innovation can improve people’s lives.” Until then, many families will continue to turn to where 3D-printed prosthetics revolution first began: the internet. [46] Until 3D prosthetics can inspire state legislatures to act and improve official access, more and more families (and charity organizations) will continue relying on makerspace designs and software collaborations, along with a good, old fashioned DIY spirit, for more affordable, customizable prosthetic limbs.[47]

image source: https://www.look4ward.co.uk/inspiration/alternative-limb-project-artificial-limbs-turned-works-art/

[1] Jen Owen, Prosthetics Through the Ages, Enabling the Future (Jan 23, 2014), http://enablingthefuture.org/2014/01/23/prosthetics-through-the-ages/.

[2] See, e.g., Meg Bryant, 3D Printing Poised to Disrupt Healthcare, MedTech Dive (Nov. 12, 2018), https://www.medtechdive.com/news/3d-printing-poised-to-disrupt-healthcare/541540/.

[3] See The Alternative Limb Project, http://www.thealternativelimbproject.com/about/the-alternative-limb-project/ (last visited Oct 9, 2019); Katie Armstrong, Interview: Sophie de Oliveira Barata, 3D Printing Industry (Aug 26, 2016), https://3dprintingindustry.com/news/interview-sophie-de-oliveira-barata-93878/.

[4] See The Phantom Limb, The Alternative Limb Project, http://www.thealternativelimbproject.com/project/phantom-limb/ (last visited Oct 9, 2019); Victoria Gruenert, The Alternative Limb Project: Artistic Prosthetic Design, Design Museum Foundation (Apr 30, 2018), https://designmuseumfoundation.org/blog/2018/04/30/alternative-limb-project-artistic-prosthetic-design/; Luke Dormehl, How the Alternative Limb Project is Transforming Prosthetics into an Astonishing Artform, Digital Trends, (Oct 18, 2016, 3:00 AM) https://www.digitaltrends.com/cool-tech/alternative-limb-project/;

[5] The Phantom Limb, supra note 4.

[6] See id.

[7] See id.

[8] Dormehl, supra note 4.

[9] Id.

[10] E.g., Armstrong, supra note 3 (“People like Sophie are helping change the conversation around amputees and prosthetics. Where in the past, where some people would feel pity, now are asking where these amazing limbs come from, which is a refreshing change.”); Dormehl, supra note 4 (“It helps break down barriers, and shows that people are quite happy with their prosthetics. It lets my clients take ownership of their prosthetic by having a piece of their imagination on show. (quote by de Oliveira Barata).

[11] See, e.g., Rachel Oakley, The Alternative Limb Project is the Best Thing to Ever Happen to Prosthetics, Lost In E Minor (Dec. 13, 2018) (“I could see that every year [a small girl needing a custom leg prosthetic] was getting really excited about coming in. And, it wasn’t something she had to do that other people didn’t, it was something she got to do that other people didn’t. It was a nice event for her psychologically.” (quote by Sophie de Oliveira Barata)).

[12] See, e.g., Schwartz, Jonathan, The Future of 3D Printed Prosthetics, TechCrunch (June 26, 2016), https://techcrunch.com/2016/06/26/the-future-of-3d-printed-prosthetics/.

[13] Id.

[14] Owen, supra note 1.

[15] See, e.g., 3D Printed Prosthetics | Where We Are Today, The Amputee Coalition (Feb. 8, 2019), https://www.amputee-coalition.org/3d-printed-prosthetics/; Schwartz, supra note 10.

[16] See Emily Sides, Manassas Woman Seeks Law Requiring That Insurance Cover a Wider Range of Prosthetics, Inside NoVA (Jan. 18, 2019) https://www.insidenova.com/news/prince_william/manassas-woman-seeks-law-requiring-that-insurance-cover-a-wider/article_b9ca6f30-1b21-11e9-97ad-1ff774a75f2d.html; Schwartz, supra note 10.

[17] Sides, supra note 14.

[18] See, e.g., Jelle ten Kate, Gerwin Smit & Paul Breedveld, 3D-Printed Upper Limb Prostheses: A Review, 12:3 Disability and Rehabilitation: Assistive Technology 300, 309 (2017) https://www.tandfonline.com/doi/pdf/10.1080/17483107.2016.1253117.

 

 

[19] See, e.g., Bryant, supra note 2.

[20] See, e.g., 3D Printing of Medical Devices, U.S. Food and Drug Administration (Sept. 27, 2018), https://www.fda.gov/medical-devices/products-and-medical-procedures/3d-printing-medical-devices; The 3 R’s of 3D Printing: The FDA’s Role, U.S. Food and Drug Administration (Dec. 21, 2016).

[21] E.g., 21 C.F.R. § 890.3025 (2001); 21 C.F.R. § 890.3420 (2001); see also 3D Printing of Medical Devices supra note 18.

[22] See generally 21 C.F.R. § 820.198 (2013).

[23] E.g. McColley Joins Lt. Governor Husted to Announce Prosthetics Initiative, The Ohio Senate, 133rd General Assembly (June 13, 2019), http://www.ohiosenate.gov/senators/mccolley/news/mccolley-joins-lt-governor-husted-to-announce-prosthetics-initiative.

[24] See, e.g., Id.

[25] Andrew Tobias, Ohio Officials Seek to Promote 3D-Printing of Prosthetics Via Law Change, Cleveleand.com, https://www.cleveland.com/open/2019/06/ohio-officials-seek-to-help-3d-printing-prosthetics-charity-via-law-change.html.

[26] See Id.

[27] Ohio Rev. Code Ann. § 4779.02 (LexisNexis 2019) (effective Oct. 17, 2019).

[28] See, e.g., Press Conference – Announcing Prosthetics Initiative, The Ohio Channel: A Service Of Ohio’s Public Broadcasting Stations (June 13, 2019), https://ohiochannel.org/video/press-conference-announcing-prosthetics-initiative.

[29] See, e.g., Open Enrollment for Health Insurance Coverage, The Amputee Coalition (Oct. 1, 2019), https://www.amputee-coalition.org/resources/open-enrollment-for-health/; Nikki McCoy, What to Expect During the Insurance Process for Functional Prosthetic Fingers, NP Devices (Mar. 10, 2018), https://www.npdevices.com/what-to-expect-during-the-insurance-process-for-functional-prosthetic-fingers/;  Bryan Ochalla, Will My Insurance Pay for Prosthetics?, QuoteWizard by Lending Tree (Dec. 27, 2018).

[30] The ACA does not impact large employers and the insurances they provide.

[31] Patient Protection and Affordable Care Act, 111 P.L. 148, 124 Stat. 119 (2010).

[32] For states without an expanded Medicaid program, prosthetics need only be an “optional benefit,” but according to the Kaiser Family Foundation, every state offers at least some Medicaid coverage for prosthetics devices when doing so is optional. See, e.g.,Ochalla supra note 29; see also Medicaid Benefits: Prosthetic and Orthotic Devices: 2018 Table, Kaiser Family Foundation, https://www.kff.org/medicaid/state-indicator/prosthetic-and-orthotic-devices/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D

(last visited Oct. 9, 2019).

[33] Open Enrollment for Health Insurance Coverage supra note 29.

[34] Id.

[35] See, e.g., id; Medicaid Benefits supra note 32.

[36] See Medicaid Benefits supra note 32.

[37] See id.

[38] According to the Amputee Coalition, those states are as follows: Colorado, Georgia, Idaho, Indiana, Iowa, Maryland, Massachusetts, New Jersey, North Carolina, Ohio, Pennsylvania, South Carolina, South Dakota, Washington, West Virginia. Open Enrollment for Health Insurance Coverage supra note 29.

[39] See, e.g., Sides supra note 16.

[40] See State Issues, The Amputation Coalition, https://www.amputee-coalition.org/advocacy-awareness/state-issues/ (last visited Oct. 10, 2019).

[41] Virginia: State Outlook, The Amputation Coalition, https://www.amputee-coalition.org/advocacy-awareness/state-issues/virginia/ (last visited Oct. 10, 2019); see also Sides supra note 16.

[42]See, e.g. Schwartz supra note 12; Sides supra note 16; Ochalla supra note 29.

[43] See, e.g., 3D Printed Prosthetics | Where We Are Today supra note 15; Heidi Reidel, The Successes and Failures of 3D Printed Prosthetics; PreScouter (July 2017), https://www.prescouter.com/2017/07/3d-printed-prosthetics/ (last visited Oct. 8, 2019); Schwartz supra note 12.

[44] See, e.g. Tobias supra note 25.

[45] See, e.g., Sarah Sole, Form5′s Aaron Westbrook Helping Others With Task-Oriented Prosthetic Devices, ThisWeek Community News (July 13, 2019, 9:00 AM), https://www.thisweeknews.com/news/20190713/form5s-aaron-westbrook-helping-others-with-task-oriented-prosthetic-devices; Tobias supra note 25.

[46] See, e.g., 3D Printed Prosthetics | Where We Are Today supra note 15 (discussing the story of how Artist Ivan Owen’s design for a boy named Liam became the first 3D printed hand and the basis for non-profit, online collaborative initiative called e-NABLE).

[47] See, e.g., id.  Though spaces of these kinds inevitably raise their own issues of products liability—particularly as materials for 3D printing are still improving—and intellectual property.

By: Paxton Rizzo

“If you see wolves there, that wilderness is intact”  – Paul Paquet

 

The Mexican Gray Wolf or the Mexican Wolf is simultaneously the most genetically distinct Gray Wolf subspecies in North America and the most endangered.[1] They are smaller than the Gray Wolf, standing only 28-32 inches at the shoulder and only weighing 50-80 pounds.[2] Most notably, Mexican Gray Wolves have coats of many intermingling colors, such as buff, rust, gray, and black; and unlike other North American Gray Wolves, solid coats of black or white do not exist within the sub-species.[3]

 

Historically, the Mexican Gray Wolf habitat ranged from the Mountains of Mexico, up into the states of New Mexico, Arizona and Texas.[4] Today, in the U.S. there are recovery populations in New Mexico and Arizona.[5] In recent years, the United States wild population of Mexican Gray Wolf has faced problems with recovery and expansion.[6] Because only eleven individuals were released in 1998, when they were reintroduced to the wild, the genetic gene pool that exists in the wild today is limited, which could lead to inbreeding and an overall decline in genetics, if not addressed.[7] Additionally, the revision to the recovery program under the Endangered Species Act that was set up in 2015 included provisions that did not support the full and long term recovery of the species.[8]

 

Besides current programs that successfully add captive bred puppies to litters of wild mothers[9], technology has now improved to the point that artificial insemination is now an option in recovery efforts in the Mexican Gray Wolf recovery program.[10] This development is encouraging because it means an additional source of genes can be introduced to the remaining members of the species. Utilizing every source of genes available is essential, since in 2017 there were only 130 Mexican Gray Wolves left in the wild and 220 left in managed care.[11] With the ability to artificially inseminate, conservationists are able to take semen samples collected twenty years ago and utilize those genetic sequences to increase gene diversity in today’s population.[12]

 

Other technological discoveries have helped to solidify the Mexican Gray Wolf’s distinction as very distinct sub-species of the Gray wolf.[13] A year long study conducted out of Florida State University has indicated that the Mexican Gray Wolf is in fact a distinct sub-species.[14] This research was done since there was enough evidence in the genome of the wolves to suggest that the animals that existed today were not purely Mexican Gray Wolves but Mexican Wolves that had hybridized with other canid species.[15]

 

Legally the Mexican Gray Wolves are fairing well as well, after a Federal Judge Decided in March 2018 that the provisions set out in Fish and Wildlife Services new plan in the10(j) rule of the 2015 revision of the Endangered Species Act failed to further the conservation of the species.[16] The court concluded that the 10(j) rule only provided for short-term survival of the species and did not consider the long-term recovery of the wolves in the wild.[17] Some limits of the rule were as follows: arbitrary limits to the Mexican Wolves population numbers, a ban on them from needed recovery habitat limiting them to south of I-40, and loosening of the rules against killing the wolves in the wild.[18]

 

In 2019, Fish and Wildlife Services assisted in introducing twelve captive born puppies to the wild litters to introduce new genes to the wild gene pool.[19] With steadily increasing population numbers and increasing puppy survival, Fish and Wildlife Services are hopeful that the Mexican Gray Wolf subspecies will recover.[20] They emphasize the importance of ongoing support and research in those efforts.[21]

image source: https://defenders.org/sites/default/files/styles/meta_image/public/2019-04/mexican_gray_wolf_rebecca_bose_wolf_conservation_center_header.jpg?itok=yzhKWVY1

[1] See What is a Mexican Wolf, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/aboutwolf.html.

[2] See id.

[3] See id.

[4] See id.

[5] See Andrew Howard, Mexican gray wolf numbers rise, but long-term viability still a concern, Arizona PBS: Cronkite News (Apr. 8, 2018), https://cronkitenews.azpbs.org/2019/04/08/mexican-gray-wolf-numbers-rise-but-long-term-viability-still-a-concern/.

[6] See id.

[7] See id.; See Mexican Wolf Recovery Efforts, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/Recovery.html.

[8] See Ctr. for Biological Diversity v. Jewell, 2018 U.S. Dist. LEXIS 56436, *65-*66.

[9] See Mexican Wolf Recovery, U.S. Fish and Wildlife Service, https://www.fws.gov/southwest/es/mexicanwolf/.

[10] See Patrick Clark, New reproductive technology being used to save Mexican Gray Wolf species, Fox 2 now: Saint Louis (Apr 24, 2017), https://fox2now.com/2017/04/24/new-reproductive-technology-being-used-to-save-the-mexican-gray-wolf-species/.

[11] See id.

[12] See id.

[13] See Heather Athey, Report: Red wolves, Mexican gray wolves are distinct species, subspecies, Florida State University News (Apr. 1, 2019).

[14] See id.

[15] See id.

[16] See Ctr. for Biological Diversity, 2018 U.S. Dist. *65 -*66

[17] See id.

[18] See Court Rejects Flawed Mexican Gray Wolf Rule: Ruling Rejects Measures That Hurt, Instead of Help, Rare Wolves, Center for Biological Diversity (Apr. 2, 2018), https://www.biologicaldiversity.org/news/press_releases/2018/mexican-gray-wolf-04-02-2018.php.

[19] See supra note 10.

[20] See id.

[21] See id.