Category: Blog Posts Page 42 of 75

By: Monica Malouf

Since its inception in 2016, Pokémon Go has been involved in numerous lawsuits for claims ranging from nuisance to unjust enrichment to trespass.[1]  This may come as no surprise, as the app entices users to enter private property while attempting to capture virtual creatures.  The app uses augmented reality (AR)[2] to superimpose Pokémon and other elements of the fantasy world onto real locations.[3]

Like straddling a state border, app users can be in two places at once—in their local city and the virtual Pokémon world. And while herds of nostalgic millennials ramble through neighborhoods pursuing Pokémon, hundreds of suburban flowerbeds are trampled upon around the world.  So, naturally, as the tulips were decimated, angry property owners filed lawsuits.

In In Re Pokémon Litigation, a federal judge in the United States District Court for the Northern District of California ordered Niantic, Inc. (Niantic)–Pokémon Go’s creator—and others to dissuade app users from trespassing onto private property.[4] The company had to kindly remind users that violating someone’s privacy and property rights was against the law.  However, in addition to the trespass and nuisance claims which inspired this discouragement, Niantic also faced claims of virtual trespass.

Basically, Niantic placed its intellectual property on top of privately-owned land without the consent of landowners.[5]

But it isn’t that the company threw a bunch of patents on the ground. The argument holds that, by placing their virtual creations above the space of private property, the company has violated the rights of private individuals.  In the minds of many, the existence of virtual creatures and Pokémon Gyms floating above real land constituted trespass, regardless of whether any individual actually pursued them.

According to Jon Festinger, a law professor at the University of British Columbia, “[the] virtual item [created for Pokémon Go] exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can’t fish it from a distance.”[6]  Essentially, Pokémon Go is planting alternate-reality items into real space.[7] But even if people do not chase those virtual items does this “planting” constitute physical trespass? Niantic’s attorneys argued that it does not.  Surprise, surprise.

In a memorandum supporting a motion to dismiss the claim, Niantic’s attorneys argued that Niantic did not commit trespass because Pokémon Go did not involve invasion onto private property by a tangible object.[8]  They go on to say “[t]here is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory [of virtual trespass].”[9]  In other words, existing law does not support the plaintiff’s theory, and there is no reason to expand the existing law to be more inclusive.

And while it would have been interesting to see the court rule on virtual trespass and whether or not to expand the current tort law surrounding trespass, the case settled.

In the agreement Niantic promised—in addition to encouraging users not to trespass on private property—to provide mediums for private property owners to file complaints regarding misuse of the app, private trespass, etc.[10] Most importantly, private property owners can request Niantic remove Pokémon Gyms and other virtual items from their property.[11]

What remains are questions regarding virtual trespass and the legal ramifications surrounding AR technology.  It will be interesting to see if and when the law catches up with this fast-changing technology.

image source: https://www.express.co.uk/entertainment/gaming/820379/Pokemon-Go-Gym-coins-new-changes-Niantic-major-update

[1] See James G. Gatto, Nuisance and Unjust Enrichment Class Actions: Pokémon Go…es to Court!, NAT’L L. REV. (Aug. 3, 2016), http://www.natlawreview.com/article/nuisance-and-unjust-enrichment-class-actions-pok-mon-go-es-to-court; Hannah Albarazi, Pokémon Go Nuisance Deal Netz Pomerantz $4M In Atty Fees, Law360 (Aug. 22, 2019, 5:51 PM) https://www.law360.com/articles/1191631.

[2] Augmented reality is defined as “an enhanced version of reality created by the use of technology to overlay digital information on an image of something being viewed through a device (such as a smartphone camera).” Augmented Reality, Merriam-Webster, https://www.merriam-webster.com/dictionary/augmented%20reality (last visited Oct. 3, 2019).

[3] Jennifer Huddleston, Can You Trespass Without Setting Foot on a Piece of Property?, Plain Text (June 28, 2018), https://readplaintext.com/can-you-trespass-without-setting-foot-on-a-piece-of-property-5070adefd1cd.

[4] See id.

[5] See Ryan Mitchell, Case Comment, Pokémon Go-es Directly to Court: How Pokémon Go Illustrates the Issue of Virtual Trespass and the Need For Evolved Tort Laws, 49 Tex. Tech L. Rev. 959 (2017).

[6] Yamri Taddese, Focus: Virtual trespassing result of Pokemon Go?, Law Times (Aug. 1, 2016) https://www.lawtimesnews.com/news/focus-on/focus-virtual-trespassing-result-of-pokemon-go/262211.

[7] See Id.

[8] See Defendant Niantic, Inc.’s Reply Memorandum In Support of Motion to Dismiss Consolidated Class Action Complaint, at 2, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).

[9] Id.

[10] See Settlement Agreement at 6-8, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).

[11] See Id.

By: Sheridan Maxey

Most people fear death. Humans generally do not like the idea of acknowledging the fact that we all will, someday, meet our makers, return to the earth, kick the bucket, or experience whatever euphemism one would replace for death. Some people find difficulty thinking about the present as it is now, and the future that is yet undetermined.[1] There are some who find their peace of mind by way of drafting and executing their last wills and testaments.[2] It is widely believed that creating a will is difficult, or that obtaining an attorney is necessary to draft a will; these beliefs are not necessarily true. In Virginia, a will can be fully handwritten, without an attorney, and will be considered as valid so long as the testator (the one drafting the will and whom the will is for) signs the document and that this fact is proven by two disinterested witnesses.[3] Additionally, a will not wholly in the testator’s handwriting is valid if the testator places his signature on the will and at least two witnesses present at the time sign their names on the will as well.[4]

 

Wills are not a new legal construction, people have been writing wills in many different fashions for centuries.[5] As time goes on, technological advances creep into the many different aspects of our lives. Of course, wills are not precluded from the scope of technological advances. With the vast integration of computers into our lives a new question is posed: Should electronic wills be considered valid under the current laws of wills?[6] If you were to ask the Uniform Law Commission, the minds behind the promulgation of the rules known as the Uniform Probate Code, they would answer in the affirmative.[7]

 

A number of states, including Virginia, have had bills proposed that would follow the footsteps of the Uniform Law Commission in legitimizing electronic will forms.[8] Virginia ultimately did not adopt the language of the proposed bill that would have validated electronic wills if they were written, created, and stored in an electronic record.[9] Currently, only three states have enacted electronic wills statutes, those being Arizona, Indiana, and Nevada.[10] Proponents against electronic wills believe that the acceptance of this will form would lead to less testators’ intents being followed because they are using boilerplate wills instead of having them specifically drafted by a lawyer.[11] What is peculiar is that printed out, boilerplate wills are typically followed in all states so long as they follow the governing state’s will formality requirements.[12]

 

The groundwork has been laid down for the states to follow[13], but it is difficult to determine whether the majority of the states will subscribe to example set by the Commission. For one, the meaning of “electronic will” differs depending on the person speaking the term.[14] Some would consider the term to mean wills that are primarily stored on servers or in the cloud[15], others would believe that the term only encompasses wills in which the testator and witnesses signed the document with an electronic signature. As time moves on and technology progresses further, it is likely that we will see more issues arising regarding electronic wills and probate courts nationwide will have to make determinations on the matter. For now, we must wait and see what the future holds.

image source: https://lasercycleusa.com/wp-content/uploads/2017/01/shutterstock_187997189.jpg

[1] See Susan Gubar, Living Intimately With Thoughts of Death, N.Y. Times, (Jul. 25, 2019), https://www.nytimes.com/2019/07/25/well/live/living-intimately-with-thoughts-of-death.html.

[2] See Eugene Tomine, Estate Planning Provides Peace of Mind, Nichi Bei, (Oct. 17, 2013), https://www.nichibei.org/2013/10/estate-planning-provides-peace-of-mind/.

[3] See Va. Code Ann. § 64.2-403 (2019).

[4] See id.

[5] See Pollock v. Glassell, 43 Va. 439 (1846) (holding that a marriage settlement gives a wife power to dispose of an estate if she signs the document and has the requisite number of witnesses).

[6] See Ashlea Ebeling, Electronic Wills Are Coming Whether Lawyers Like It Or Not, Forbes.com, (Jan. 17, 2019, 9:49 AM), https://www.forbes.com/sites/ashleaebeling/2019/01/17/electronic-wills-are-coming-whether-lawyers-like-it-or-not/#6473172671df.

[7] See Uniform Electronic Wills Act (2019), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=43c08ac6-d6e0-bd80-80b2-85c3a6621e1e&forceDialog=0.

[8] See Dan DeNicuolo, The Future of Electronic Wills, Bifocal, (Oct. 15, 2018), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_38/issue-5–june-2017/the-future-of-electronic-wills/.

[9] See H.B. 1643, V.A. Legis. (2017).

[10] See Ebeling, supra note 6.

[11] See id.

[12] See Cal. Prob. Code § 6110 (2019); see also Tenn. Code Ann. § 32-1-104 (2019).

[13] See supra note 7.

[14] See Developments in the Law — More Data, More Problems, 131 Harv. L. Rev. 1715, 1790 (2018).

[15] See id.

By: Anne Groves

The search box is the first place many researchers go to find the answers they need,^[1] but most legal researchers have no knowledge about the underlying structures of the technology they use.^[2] When it comes to relevance ranking, users simply expect an intuitive search process.^[3] Software engineers that work for legal research companies are tasked with the difficulty of building an algorithm that determines user search results to meet their needs.^[4]

 

Search users’ behaviors and expectations vary widely among different types of search engines. For an E-Commerce site, search acts as a salesperson with an ultimate goal of the user purchasing. Legal search engines are considered expert searches, using legalese and specialized jargon entered by lawyers.^[5] Even for the same type of search engine, users’ behaviors and expectations can vary. A law student or professor conducting academic research would have different behaviors and expectations than an attorney.^[6]

 

A search that may seem like a simple task for someone conducting research requires extensive engineering work.^[7] Search engineers make choices about how the algorithm will operate that has implications for legal research results.^[8] These choices become the preferences in a computer system, or a legal research database.^[9]

 

So, without having complete access to the decisions and preferences incorporated into our legal search engines, how do we decide what services to trust with providing relevant results? In a study conducted to compare how different algorithms process the same search with the same set of documents, Westlaw and LexisNexis, the oldest database providers, ranked at the top for relevance. ^[10] Nevertheless, for law students and anyone practicing in the legal profession, using multiple sources and learning to navigate an algorithm’s behavior is part of an ethical duty to perform competent research.^[11]

 

Search engineers strive to provide an experience that is the right balance between flexibility and simple design. Putting the customer in the driver’s seat is paramount to achieving search relevance and happy customers, but this process must be streamlined in such a way that is approachable for the average user.^[12]

 

Almost every major legal research company allows the user to filter by category and jurisdiction.^[13] In addition to filtering many legal database providers try to give their customers more control of this complex process through Boolean logic. Boolean search connectors are the words and symbols that create a relationship between your search terms.^[14] LexisNexis and Westlaw employ Boolean logic in conjunction with their own unique categorization systems to create relevant results for its users.^[15]

 

LexisNexis Shepard’s citation service provides a holistic editorial analysis by experienced attorneys to ensure the authorities being cited are still good law. ^[16] Shepard’s also allows you to identify potential splits of authority. ^[17] Westlaw’s Key Number System categorizes cases into their corresponding legal issues and topics, helping legal researchers more efficiently find relevant case law.^[18]

 

Even if firms pay a flat rate for an account with a top-notch legal database, attorneys may potentially need a result that is outside of their firm’s plan. As a result, they are charged an additional fee to access a document. ^[19] Learning the basic skills and concepts behind search relevance results is important for legal research, because not every firm has access to the same legal databases and results may vary between databases.^[20]

image source: https://www.cogitotech.com/services/search-relevance/

^[1] See Doug Turnball & John Berryman, Relevant SEARCH 2 (2016).

^[2] See Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal [Re]Search, 109 Law Libr. J. 387, 394 (2017).

^[3] See Turnball & Berryman, supra note 1.

^[4] See Mart, supra note 2, at 388.

^[5] See Turnball & Berryman, supra note 1, at 5.

^[6] See id. at 9.

^[7] See id. at 4.

^[8] See Mart, supra note 2, at 388.

^[9] See id.

^[10] See id. at 390.

^[11] See id.

^[12] See Susan Nevelow Mart, A.B.A J., Results May Vary in Legal Research Databases (Mar. 1, 2018, 12:15 AM),

http://www.abajournal.com/magazine/article/results_vary_legal_research_databases.

^[13] See, e.g., Lexis Advance Research, https://advance.lexis.com/firsttime?crid=cb2d94cb-c765-4750-80ea-8cd7e2d9a3b8 (allowing users to filter by category and jurisdiction).

^[14] See, e.g., Boolean Connectors, LexisNexis Help, http://help.lexisnexis.com/tabula-rasa/publisher/booleanconnectors_ref-reference?lbu=us&locale=en_us&audience=user (defining Boolean search connectors and explaining LexisNexis Boolean connectors).

^[15] See, e.g., id; Thomson Reuters, Searching with Boolean Terms and Connectors, WestlawNext, https://info.legalsolutions.thomsonreuters.com/pdf/wln2/L-362608.pdf (explaining Westlaw’s Boolean search connectors).

^[16] See LexisNexis, Shepard’s Citations, LexisNexis Academic, https://www.lexisnexis.com/communities/academic/w/wiki/105.shepard-s-citations.aspx.

^[17] See LexisNexis, Shepard’s Citations Service, Products, https://www.lexisnexis.com/en-us/products/lexis-advance/shepards.page.

^[18] See Maggie Keefe, Using the West Key Number System, Thomson Reuters, https://legal.thomsonreuters.com/en/insights/articles/using-the-west-key-numbers-system.

^[19] See, e.g., Cost-Effective Electronic Legal Research: Lexis & Westlaw Pricing, Franklin County Law Library, https://fclawlib.libguides.com/costeffectivelegalresearch/pricing (explaining how firms play a flat rate for whatever Westlaw or Lexis plans they use and if an attorney goes outside of a plan there are additional fees).

^[20] See Mart, supra note 12.

 

By: Joey Rugari

Image Source: https://www.publicdomainpictures.net/en/view-image.php?image=103151&picture=3d-r-symbol

The New Electronic Filing Trademark Rules Are Starting to Apply

“I want to get a trademark in the US.” Until recently, such a statement didn’t require too much effort – one could file with the United States Patent and Trademark Office (USPTO) easily without much fuss, no matter where you were from.[1] Then, on August 3, a new rule from the USPTO went into effect that requires foreign-domiciled trademark applicants to register their mark through a local attorney.[2] Such a system change shouldn’t necessarily come as a shock to the trademark world in intellectual property, as this particular change more or less puts the United States in line with other countries’ trademark application processes.[3] This is hardly the first time, even in recent memory, that the United States has sought to take its intellectual property systems and bring them into the fold with the rest of the world.[4]

These efforts being taken by the USPTO appear to be part of a broad effort to technologize the trademark filing and application system, regarding the use of the USPTO’s own website as a repository tool.[5] It becomes even clearer that the USPTO has been taking steps to implement its new system with the changes to the way the Trademark Electronic Application System (TEAS) operates.[6] The new system requires the person seeking to file application forms to “log in to a USPTO.gov account with a two-step authentication . . . to better track filing activity and reduce misuse of [the] electronic filing system.”[7]

On top of the changes to filing, the USPTO has taken steps, and is currently taking steps, to build and properly implement a full and sophisticated specimen database to allow for mark-searching in both the context of word marks and image marks.[8] This push is in light of the use of AI-powered image recognition software that appears to be taking the principles of recognition technology and applying it to specimen recognition.[9] This is of particular importance for determining whether an image mark is being followed, since, naturally, it’s harder to make a search engine that can easily and readily find an image without some kind of tag.

What Issues Seem to Be Driving These Changes?

The modern era is full of more and more electronic issues regarding trademarks.[10] One particular example of note is how to handle electronic infringement of trademarks.[11] Anyone anywhere in the world can easily set up advertising online and without much time or effort use someone else’s trademark to sell their goods in a stream of commercial commence. This issue was answered by the European Union’s Court of Justice as a matter of holding the “act of infringement,” when understood as advertising or directing offers for sale, to have been committed in the territory where the goods or services had been made available for consumption.[12]

The general technologization of the world is driving the updating of systems and harmonizing with other existing frameworks. It’s also worth considering the issue facing trademark applications, in the context of the AI image search, in light of the concerns facing the limited number of available word marks (that are worth having).[13] As it gets harder and harder to effectively get a word-mark for a business, it seems likely that image marks become more and more important. Since they’re going to be important, it’s also going to be important to be able to implement solutions that actually address the issue of image searching in an elegant and useful way.

But what about the problem of suspicious foreign marks? Arguably, the issue of suspicious foreign marks, with a rising number of them having been filed in recent years,[14] also ties directly into the need to have a proper updated system for search for existing marks. The logic connecting the issues is fairly simple: (1) There’s an issue with the number of word-marks worth using depleting. (2) Suspicious foreign marks are an abuse of the USPTO’s trademark system; therefore (3) we should implement technological and legal solutions that limit that abuse.[15] It just so happens that the system, as it updates, can double-dip by reducing foreign abuse of the system while improving its functionality for legitimate users and can try to start addressing the issue of search for image marks in the instance that word marks become less popular to trademark.

[1] See Andrei Iancu & Mary Denison, New U.S. Counsel Rule: USPTO’s Initiatives to Ensure Accuracy and Integrity of the Trademark Register, U. S. Patent & Trademark Office (Jul. 30, 2019), https://www.uspto.gov/about-us/news-updates/op-ed-new-us-counsel-rule-usptos-initiatives-ensure-accuracy-and-integrity.

[2] As in an attorney from the United States.

[3] See Iancu, supra note 1.

[4] In 2011, the America Invents Act brought the United States’ patent filing system into line with the rest of the world, shifting from a “first-to-invent” to “first-to-file” system, implemented as of March 2013. See John Villasenor, March 16, 2013: The United States Transitions to a ‘First-Inventor-To-File’ Patent System, Forbes (Mar. 11, 2013, 11:54 PM), https://www.forbes.com/sites/johnvillasenor/2013/03/11/march-16-2013-america-transitions-to-a-first-inventor-to-file-patent-system/.

[5] See Iancu, supra note 1.

[6] See U. S. Patent & Trademark Office, TEAS Login Requirement (Sept. 23, 2019), https://www.uspto.gov/about-us/news-updates/teas-login-requirement.

[7] See id.

[8] See Iancu, supra note 1.

[9] See CompuMark, Technology Has Revolutionized Trademark Research and It Will Never be the Same (Jan. 24, 2019) https://www.compumark.com/blog/technology-has-revolutionized-trademark-research-and-it-will-never-be-the-same/.

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

[11] See Giuliana Beneduci, CJEU Provides Clarifications on Jurisdiction for On-line EU Trademark Infringement, Lexology (Sept. 13, 2019), https://www.lexology.com/library/detail.aspx?g=a20771ea-d958-446f-9f07-cc48572f0e75.

[12] See Case C-172/18, AMS Neve Ltd. et al. v. Heritage Audio SL et al., 2019 Curia (Sept. 5, 2019), https://curia.europa.eu/jcms/jcms/P_106308/en/.

[13] See Barton Beebe & Jeanne C. Fromer, Are We Running Out of Trademarks?: An Empirical Study of Trademark Depletion and Congestion, 131 Harv. L. Rev. 947, 998-999 (2018) (describing depletion of available word marks and concluding that they are being depleted regarding commonly chosen words).

[14] See Iancu supra note 1.

[15] And requiring a United States-based and licensed attorney is a great way to do so – it’s hard to imagine too many U.S. practitioners willing to put their licenses and livelihoods on the line for the sake of shady filing. And even if that’s not the case, it’s still a bottleneck, since there are significantly more foreign-born individuals in the world than there are U.S. licensed attorneys.

By: Matt Romano

Image Source: https://newsroom.cisco.com/feature-content?type=webcontent&articleId=1938827

Huge opportunities in the facial recognition industry has led tech giants like Amazon, Google, and Microsoft to develop their own facial recognition software.  These companies are now selling this software to law enforcement and government agencies without any federal regulations on the technology.[1]  Law enforcement all over the country are using this technology in criminal investigations by either running a photo through a database of faces or conducting a real- or near real-time analysis of video footage.[2]  The concerns with these practices come from the fact that these facial recognition databases contain more than just mugshots.  In 2016, a Georgetown Law study found that law enforcement’s use of facial recognition was affecting nearly half of all American adults.[3]

 

Earlier this year, the House of Representatives showed bipartisan concern for the technology’s potential violations of civil rights and privacy at a series of hearings, but no legislation is close to being passed at this time.[4]  Without any federal regulations, some states have left the use of this technology by law enforcement vastly unregulated.  In 2016, Georgetown Law found Florida was permitting law enforcement to review a database of millions of driver’s licenses without even requiring reasonable suspicion.[5]  Moreover, eight thousand searches a month were being conducted within this database without the process being audited for misuse.[6] Along with concerns about privacy rights, several studies have shown evidence of racial and gender biases within the software algorithms.[7] These biases have drawn concerns that people of color are more likely to be misidentified in investigations, which could lead to wrongful convictions. As a response to these concerns many companies are working to rid their algorithms of these biases.[8]

 

While most states are trying to regulate the use of the technology,[9] Massachusetts, Michigan, and New York are considering temporary bans on the use of facial recognition technology by law enforcement until they can be certain that their citizens’ privacy can be protected.[10] Entire states banning the technology is obviously concerning to companies developing facial recognition software. They argue that, if regulated properly, the benefits far outweigh the risks.[11]  Federal legislation would certainly help to reduce the risks to the public and give these companies consistency and clarity on what products they are permitted to sell. Amazon has grown tired of waiting for Congress draft laws themselves and has reportedly begun writing its own facial recognition laws to pitch to federal lawmakers.[12]  It has not released any information on these laws yet, but they will likely mirror the guidelines for legislation it offered in a blog post from earlier this year.[13] Some of its recommendations in that blog post include requiring that the facial recognition system be ninety nine percent confident in a match for law enforcement investigations, providing written notice in areas where real-time facial recognition is in use, and developing standardized testing methodologies for measuring accuracy.[14]  Although Amazon has been praised by some for taking an initiative to improve the industry, others have concerns about one of the wealthiest corporations in the world drafting laws that will govern its own product.[15]  Whether you like Amazon drafting the laws or not, Congress must do something soon.

 

 

 

[1]See Jason Tashea, As Facial Recognition Software Becomes Ubiquitous, Some Governments Slam on the Brakes, Aba Journal (Sept. 24, 2019), http://www.abajournal.com/web/article/facial-recog-bans.

[2] See id.

[3] See Clare Garvie, Alvaro Bedoya & Jonathan Frankle, The Perpetual Line-Up, Geo. L. Ctr. on Privacy & Tech. (Oct. 18, 2016), https://www.perpetuallineup.org/ (finding that law enforcement facial recognition affects 117 million American adults).

[4] See Tashea, supra note 1.

[5] See Garvie, supra note 3.

[6]See id.

[7] See Drew Harwell, Amazon Facial Identification Software Used by Police Falls Short on Tests for Accuracy and Bias, Wash. Post (Jan. 25, 2019), https://www.washingtonpost.com/technology/2019/01/25/amazon-facial-identification-software-used-by-police-falls-short-tests-accuracy-bias-new-research-finds/#comments-wrapper; Steve Lohr, Facial Recognition is Accurate, if You’re a White Guy, N.Y. Times (Feb. 9, 2018), https://www.nytimes.com/2018/02/09/technology/facial-recognition-race-artificial-intelligence.html. But see Daniel Castro & Michael McLaughlin, Banning Police Use of Facial Recognition Would Undercut Public Safety, Info. Tech. & Innovation Found. (July 30, 2018),

https://itif.org/publications/2018/07/30/banning-police-use-facial-recognition-would-undercut-public-safety (providing evidence of flaws in a commonly referenced ACLU study on the bias of Amazon Rekognition).

[8] See Harwell, supra note 7 (confirming that Microsoft and IBM have improved their algorithms following the results of an independent study).

[9] See, e.g., Tashea, supra note 1 (mentioning that Vermont disallowed the search of it’s driver’s license databases by facial recognition).

[10] See id.

[11] See Daniel Castro, Are Governments Right to Ban Facial Recognition Technology?, Gov. Tech. (Apr./May 2019),  https://www.govtech.com/products/Are-Governments-Right-to-Ban-Facial-Recognition-Technology.html (emphasizing facial recognition technology’s value in finding missing children, catching people with fake documents at airports, and combating human trafficking).

[12] See Jason Del Rey, Jeff Bezos says Amazon is Writing Its Own Facial Recognition Laws to Pitch to Lawmakers, Vox (Sept. 26, 2019), https://www.vox.com/recode/2019/9/25/20884427/jeff-bezos-amazon-facial-recognition-draft-legislation-regulation-rekognition.

[13] See id.

[14] See Michael Punke, Some Thoughts on Facial Recognition Legislation, AWS Machine Learning Blog (Feb. 7, 2019), https://aws.amazon.com/blogs/machine-learning/some-thoughts-on-facial-recognition-legislation/.

[15] See Del Rey, supra note 12 (“[W]e’ve seen this playbook before. Once companies realize that people are demanding strong privacy protections, they sweep in, pushing weak rules that won’t protect consumer privacy and rights.”).

By: Tabetha Soberdash

Image Source: http://www.m2sys.com/blog/biometric-technology/10-massive-biometric-technology-examples-that-revamped-the-world/

What once was used primarily in science fiction movies to portray a far off, technology-advanced world, is now something that many use everyday as more and more companies begin to utilize biometric security technology.[1] Biometric security technology utilizes the individualizing characteristics of a person’s biometrics to identify or to authenticate the person.[2] Put simply, biometrics are an individual’s unique physical characteristics and can include things like fingerprints, irises, retinas, and facial characteristics.[3]

Over time, companies have started to utilize biometric technology for a variety of tasks. For example, it is used for going through some airports’ security, for entering places like Disney, and even for unlocking apps on one’s cellphone.[4] In fact, companies utilizing biometric technology has become so popular that a study by Spiceworks shows that biometric security technology is used in sixty-two percent of companies with an additional twenty-four percent planning to use it within the next two years.[5]

While this type of technology comes with some major benefits, such as narrowing who has access to a system’s login capabilities or eliminating the possibility of forgetting one’s password, there is still a risk that this sensitive data could be compromised or breached by third-parties.[6] If this happens, one cannot simply change one’s biometrics like one can change a password.[7] As biometric data is consistent throughout an individual’s lifespan, this risk can have substantial effects that can follow the individual.[8]

With such risks possible, it becomes crucial to look at what laws regulate biometric use and sharing that provide protection for one’s privacy. Currently, only a few states have comprehensive biometric privacy laws in place and no such federal law exist.[9] However, the year 2019 has shown a major movement towards defining the laws that do exist and describing the standing they require for litigation.

For example, Illinois is a state that has had its biometric privacy law litigated significantly this year. As Illinois was the first state to comprehensively address biometric privacy when it enacted the Biometric Information Privacy Act (BIPA) in 2008, it has been very influential in laying out the foundation of defining comprehensive laws regulating biometric collection.[10] According to BIPA, three main things must occur before a private entity can collect or store biometrics.[11] First, a private entity must inform individuals that their biometrics will be collected.[12] Secondly, the private entity must inform individuals of the purpose and length of the collection.[13] Thirdly, the private entity must receive informed written consent from the individual to proceed forward with the collection.[14] Continuatively, BIPA requires that a private entity must first obtain additional consent beyond that initial required consent before sharing biometric data with third parties.[15] This year, two major cases have affected the way BIPA is able to protect biometric privacy of Illinois citizens.  In the first case, Rosenbach v. Six Flags Entertainment Corp., the Illinois Supreme Court concluded that individuals will not need to “plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under [BIPA]” to have standing to sue.[16] This will allow for the possibility of many more suits to arise in the near future, as it makes it easier for plaintiffs to be able to prove they have standing to sue.[17] Additionally, this conclusion was soon used by the Ninth Circuit in the case of Patel v. Facebook, Inc in a manner that could further expand the potential for future suits.[18]

In Patel v. Facebook, Inc., the Ninth Circuit was faced with the issue of whether or not plaintiffs had sufficiently shown that Facebook’s biometric surveillance caused them a concrete injury that would allow their case to survive Article III standing and be heard in federal court.[19] In the case, plaintiffs alleged that Facebook’s “Tag Suggestions” feature violated BIPA, as it collected and used their biometric information without their informed opt-in consent.[20] Using the interpretation of the BIPA described in Rosenbach v. Six Flags Entertainment Corp., the Ninth Circuit determined that mere violation of the BIPA provisions created an actual harm to the privacy interests that BIPA was created to protect.[21] As such, the plaintiffs alleged a concrete and particularized harm sufficient to meet Article III standing.[22] Furthermore, the Ninth Circuit determined that it was “reasonable to infer that the [Illinois] General Assembly contemplated BIPA’s application to individuals who are located in Illinois, even if some relevant activities occur outside the state.”[23] It would appear that Patel v. Facebook, Inc. has the potential to open the door to many more class-action suits in the foreseeable future.[24] However, what actually occurs will depend on if Facebook chooses to appeal the decision and if that appeal is heard by the Supreme Court.[25] If Facebook does not follow through with an appeal, or its appeal is not heard by the Supreme Court, class-action suits likely will increase as the decision is utilized to find standing in future cases.[26] However, if Facebook does proceed with an appeal that is then heard, the decision of Patel v. Facebook, Inc. will have to be compared to an earlier decision by the Second Circuit that had the opposite conclusion.[27] In the Second Circuit’s decision of Santana v. Take-Two Interactive Software, Inc., BIPA violation claims from players of NBA 2K video games were rejected after concluding that the players were not injured sufficiently by the video game’s scans of their faces to meet Article III standing.[28] How the Supreme Court chooses to address this circuit split will greatly impact the number of cases that can find standing for litigating BIPA violation claims.[29]

Another state that has particularly taken a large step towards defining a comprehensive biometric privacy law is California. At the conclusion of the year, California will have a biometric privacy law that is similar to the European Union’s General Data Protection Regulation (GDPR) when the California Consumer Privacy Act (CCPA) goes into effect on January 1, 2020.[30] Potentially, CCPA may result in broader scope of protection than BIPA,[31] as it allows consumers to not only have more control over their biometric data but also many other types of personal information as well.[32] Specifically, the CCPA will provide California residents with the right to know what personal information large corporations are collecting about them, the ability to tell businesses not to share or sell their personal information, and the protection against businesses that compromise their personal information.[33]

Although the scope of protection of CCPA may be broader than the scope of BIPA, the CCPA will limit private right of action to when one’s personal information “is subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices.”[34] This likely will lead to requiring a greater showing of harm than BIPA requires before a private suit can occur.[35] However, the creation of the law in itself will likely provide an avenue for an increase in litigation.

Further, this year has been impactful on federal biometric privacy law development as well. As mentioned earlier, there is not currently a comprehensive federal biometric privacy law, but earlier this year a federal bill was introduced to regulate the commercial applications of facial recognition technology.[36] The bill, titled the Commercial Facial Recognition Privacy Act of 2019, would prohibit certain entities from using facial recognition technology and data without first obtaining user consent.[37] However, the act is limited in that it expressly states it “shall not be construed as superseding, altering, or affecting any statute, regulation, order, or interpretation in effect in any State, except to the extent that . . . is inconsistent with the provisions of this Act, and then only to the extent of the inconsistency.”[38] As such, biometric protection is likely still going to be broader under state laws and enforcement.

In conclusion, the year 2019 has shown major movement towards defining biometric privacy laws and expanding protection of one’s privacy. However, as the world continues to increase its use of biometric technology, litigation over the issue is likely to continue. As jurisdictions utilize different definitions and laws to regulate biometric use and collection, the upcoming years will likely show an increase in litigation of biometric privacy issues as companies balance out the different rules.[39] Further, as circuits split on defining what harm is required to have standing to sue, even determining how to meet an individual area’s laws will likely result in an increase in litigation and need for policy formation in the upcoming years. As such, companies will need to continuously keep watch of how jurisdictions decide to protect an individual’s privacy, and individuals will need to watch for what policies companies have in place to protect their biometric information and what their stat

[1] See SHRM, More Employers Are Using Biometric Authentication (2018), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/employers-using-biometric-authentication.aspx.

[2] See Chiara Braghin, Biometric Authentication 1–2 (2000).

[3] U.S. Dep’t of Homeland Sec., Biometrics (2019), https://www.dhs.gov/biometrics.

[4] See Christina Ianzito, Airlines Using Facial Recognition to Speed Airport Check-In (2018); Adam Vrankulj, Walt Disney World introduces new RFID gate system (2013), https://www.biometricupdate.com/201303/walt-disney-world-introduces-biometric-verification-for-passholders; Michelle Wheeler, The future of biometric technology (2014), https://phys.org/news/2014-03-future-biometric-technology.html.

[5]See SHRM, supra note 1.

[6] See Nat’l Acads. of Scis., Eng’g, & Med., Biometric Recognition: Challenges and Opportunities 110 (Joseph N. Pato & Lynette I. Millett 2010).

[7] See id. at 114-115.

[8] See id.

[9] See SHRM, How to Stay Within the Law When Using Biometric Information (2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/stay-within-the-law-biometric-information.aspx.

[10] See id.

[11] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[12] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(1) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[13] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(2) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[14] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(b)(3) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[15] See Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15(d)(1) (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly).

[16] Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[17] See SHRM, Illinois Biometric Class Actions Are on the Rise Risks (2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/biometric-class-actions.aspx.

[18] See Patel v. Facebook, Inc., 932 F.3d 1264, 1273–1274, 1276–1277 (9th Cir. 2019); Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[19] See Patel v. Facebook, Inc., 932 F.3d 1264, 1268–1270 (9th Cir. 2019).

[20] See id.

[21] See Patel v. Facebook, Inc., 932 F.3d 1264, 1273–1274, 1276–1277 (9th Cir. 2019); Rosenbach v. Six Flags Entertainment Corp., 129 N.E.3d 1197, 1207 (Ill. 2019).

[22] See id.

[23] Patel v. Facebook, Inc., 932 F.3d 1264, 1276 (9th Cir. 2019).

[24] See Crowell & Moring, Ninth Circuit Rejects Facebook’s Article III Argument; Biometric Lawsuit Will Proceed 1–2 (2019).

[25] See id.

[26] See id.

[27] See id.

[28] See id.

[29] See id.

[30] See Int’l Ass’n of Privacy Prof’ls, GDPR Matchup: The California Consumer Privacy Act 2018 (2018), https://iapp.org/news/a/gdpr-matchup-california-consumer-privacy-act; California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[31] Compare Biometric Information Privacy Act, 740 Ill. Comp. Stat. Ann. 14/15 (LexisNexis through P.A. 101-309, except for portions of P.A. 101-48, 101-221, 101-238, and 101-275 of the 2019 Regular Session of the 101st General Assembly) with Cal. Civ. Code § 1798.140 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[32] See Cal. Civ. Code § 1798.140(o) (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier) (defining personal information as “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household”).

[33] See California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[34] Cal. Civ. Code § 1798.150(a)(1) (Deering through Chapters 1-70, 72-136, 138-173, 175-185, 187-193, 195, 196, 198-200, 202-213, 215, 217-223, 225-243, 245-254, 257-260, and 264 of the 2019 Regular Session, including all legislation effective September 11, 2019 or earlier).

[35] See id.

[36] See Commercial Facial Recognition Privacy Act of 2019, S. 847, 116th Cong. (2019).

[37] See id.

[38] See Commercial Facial Recognition Privacy Act of 2019, S. 847, 116th Cong. § 6(a) (2019).

[39] See generally SHRM, Use of Biometric Data Grows, Though Not Without Legal Risks (2018), https://www.shrm.org/resourcesandtools/hr-topics/technology/pages/biometric-technologies-grow-.aspx (discussing how “a rise in class-action lawsuits against companies in some states suggests organizations need written policies and procedures regarding how they use, store and secure biometric data”).

By: Joey Rugari

Image Source: https://pixabay.com/illustrations/business-word-cloud-bitcoin-3325386/

In 2009, Bitcoin was first introduced to the world.[1] It began a never before seen form of currency, called cryptocurrency.[2] This new system of currency did not require a centralized institution, or intermediaries to handle transactions.[3] Encrypted transactions kept buyers and sellers secret, but a decentralized public ledger meant that anyone who used the currency could see that the currency had been used – the Bitcoin network kept track of every transaction, so everyone in the network could see that whether the transaction was legitimate.[4] On top of all of this, Bitcoin introduced the concept of the blockchain, and peer-to-peer systems of transactions in general, to the world as an alternative to the traditional systems.[5] So why, then, are the traditional systems so much more enticing, even today?

Establishing a peer-to-peer system of laws or currency will inevitably have to face its greatest challenge in the simplest principle – innovation for innovation’s sake is pointless. Why would one seek to develop a governing framework that is confusing and complex when the traditional alternative is just as, if not more, capable of achieving those same goals?[6] It would seem that the place that such systems would be most valuable are those areas where the traditional systems are at their weakest.[7] Of particular interest are those areas of law and governance with endemic corruption or where agency costs are particularly high.[8] Like high-level corporate decision-making[9], or general currency transactions.[10]

Naturally, that’s where the principles behind blockchain currencies are being strained.[11] If the notion is that transparency of a distributed ledger will protect from predatory practices, then examples of the technology being used to contravene those principles would need to be definitively addressed. Which is why it is of particular note that North Korea has recently started flirting with the notion of cryptocurrency as a method of circumventing international trade sanctions, in the vein of the “petro coin” stunt of Venezuela.[12] While these sorts of claims seem ludicrous, the reasoning in which they are based[13] should be of concern to anyone watching the evolution of blockchain tech, in particular with regard to the current regulatory regimes surrounding currency and security transactions.

And they are. The IRS has taken notice of cryptocurrency as a problem area in modern transactions.[14] Cryptocurrency is an asset like any other and plays a role in the total value of a person’s finances.[15] The problem lies in the dual nature of cryptocurrency, containing aspects of both currency and of securities.[16] While it doesn’t make asset valuation impossible, it does create complications with determining that one actually has cryptocurrency on hand.[17] The peer-to-peer system makes it entirely possible to keep the value of the assets from being included in a complete financial valuation without specific audit due to the fact that, since cryptocurrency is not truly legal tender, it will generally not be readily regulable without there being some form of cryptocurrency sale in which legal tender is received.[18]

An answer to the question posed at the beginning is not likely to be available in a mere six hundred or so words. However, it’s not like this is all just some small issue that will eventually disappear into the void. The great experiment of blockchain technology is still in flux. Theoretical expansion of peer-to-peer systems extends into more and more areas where centralized institutions traditionally stand. Bitcoin lit the spark, and the flame has been burning low and slow ever since. But it’s clear that cryptocurrency is going nowhere, and that blockchain is likely to remain in some form or another as the experiments continue.[19] It’s simply a question of whether regulatory systems can properly integrate the technology into their frameworks as its reach grows. The matters above are but a smattering of the possibilities. It may even never truly take hold. Honestly, the whole thing’s pretty exciting.

[1] See Joshua Davis, The Crypto-Currency: Bitcoin and its Mysterious Inventor, New Yorker, Oct. 10, 2011, at 62.

[2] See Id.

[3] See Id. at 65.

[4] See Id.

[5] See Id.

[6] See Michael Abramowicz, Cryptocurrency-Based Law, 58 Ariz. L. Rev. 359, 371 (2016).

[7] See Id. at 365-66.

[8] See Id. at 365.

[9] See Id. at 361.

[10]See Neil Tiwari, The Commodification of Cryptocurrency, 117 Mich. L. Rev. 611, 618-619 (2018).

[11] See David Gilbert, North Korea is Building Its Own Bitcoin, Vice News (Sept. 18, 2019), https://www.vice.com/en_us/article/9ke3ae/north-korea-is-building-its-own-bitcoin.

[12] See Id.

[13] See Id.

[14] Michael Cohn, IRS Small Business Unit Pivots to Cryptocurrency Enforcement, Accounting Today (Sept. 19, 2019, 4:54 PM EDT), https://www.accountingtoday.com/news/irs-small-business-unit-pivots-to-cryptocurrency-enforcement.

[15] See Id.

[16] See Tiwari, supra note 10, at 614.

[17] See Id.

[18] See Id. at 623-24.

[19] See, e.g., Gilbert, supra note 11.

By: Jacob Newton

Image Source:https://www.apple.com/newsroom/2019/08/apple-card-launches-today-for-all-us-customers/

Apple, in partnership with Goldman Sachs, recently released its new Apple Card to the United States on August 20, 2019.[1] The card is aesthetically pleasing, heavy duty, and works in sync with Apple products.[2] The motto for Apple’s card is “a new kind of credit card . . . [c]reated by Apple, not a bank.”[3] The company claims the card stands for “simplicity, transparency, and privacy.”[4] However, Apple’s new credit card comes with an old credit card trick. Credit card companies have long been aware of the average consumers failure to read terms and conditions of anything before agreeing to them. These credit card companies, now including Apple, take full advantage of the lacking consumer diligence in the form of pre-dispute arbitration clauses.[5] The terms and conditions of the Apple Card customer agreement specifically state the cardholder agrees to arbitration in all matter brought by and against Apple or its affiliate and precludes class action suits.[6] Pre-dispute arbitration clauses, like the one in Apple Card’s terms and conditions, have a colorful and controversial history.

Arbitration clauses are governed by the Federal Arbitration Act (FAA).[7] Under the FAA, an arbitration agreement is no different from any other contract,[8] which means courts have to apply basic contract law to decide whether a valid agreement to arbitrate exists.[9] At the time, these clauses seemed to limit class action suits through mandatory enforcement of arbitration agreements. This was confirmed in a 2013 Supreme Court decision, which gave pre-dispute clauses more teeth in holding the FAA does not allow courts to invalidate class-action waivers just because the cost of individual arbitrations exceeds the plaintiff’s potential recovery.[10] The New York Times and the Consumer Finance Protection Bureau (CFPB) brought the general public’s attention to pre-dispute arbitration clauses in 2015 when the Times ran a series detailing the effects of these clauses found in a study conducted by the CFPB.[11] The article highlighted how pre-dispute arbitration clauses allow corporations to circumvent the courts and bar people from joining together in class-action lawsuits.[12]

In response to public outrage, the CFPB issued a rule to regulate arbitration agreements in contracts for specified consumer financial product and services in July 2017.[13] The rule would not have allowed companies to force consumers into arbitration and bar class action suits.[14] Following a corporate uproar, four months after the rule came into effect, the President signed a joint resolution passed by Congress disapproving the Arbitration Agreements Rule under the Congressional Review Act (CRA).[15] The future looked bleak for consumers when the CFPB removed the arbitration agreement rule from the Code of Federal regulation,[16] but all was not lost for consumers. In many jurisdictions, a consumer could still go after the unconscionability of the arbitration clause in Court, even though the arbitration clause contractually binds the consumer to handle all claims through arbitration, because the validity of the contract is severable from the rest of the agreement.[17] Many Corporations, such as Uber for example, have successfully circumvented the unconscionability argument by including an “opt out” provision.[18] These provisions allow consumers to opt out of the pre-dispute arbitration clause within a certain time frame.  A new problem then arises, due to the lack of consumer knowledge of their ability to opt out.

What does all of this confusing pre-dispute arbitration clause law mean for new Apple Card owners? Simple, it means read the terms and conditions of the customer agreement before agreeing to them. The Apple Card arbitration clause, located in the terms and conditions, have an opt out provision.[19] It requires the consumer to notify Apple by message, phone, or letter; within 90 days of opening the account, to express they are exercising their right to reject the arbitration provision.[20]

In accordance with today’s reality, most people do not read the terms and conditions   of anything anymore. For the majority of people who check the “I Agree” box and move on with their lives, a potential for hope still looms in the form of “The Forced Arbitration Injustice Repeal Act” (“FAIR Act”).[21] On February 28, 2019, U.S. Representative Hank Johnson and U.S. Senator Richard Blumenthal introduced the FAIR Act “which seeks to (1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and (2) prohibit agreements and practices that interfere with the rights of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.”[22] The Bill has an uphill battle, but has the potential to make a major impact on pre-dispute arbitration agreements.

[1] See Apple, Apple Card launches today for all US customers, Apple Newsroom. (Aug. 20, 2019), https://www.apple.com/newsroom/2019/08/apple-card-launches-today-for-all-us-customers/.

[2] See Apple, https://www.apple.com/apple-card/?rid=287-cid%3Dapy-311-100000070000-100000000000025-301100000000066 (last visited Sept. 18, 2019).

[3] See id.

[4] See id. (stating “[i]t represents all the things Apple stands for. Like simplicity, transparency, and privacy.”)

[5] See CFPB Study Finds that Arbitration Agreements Limit Relief for Consumers, Consumer Fin. Protection Bureau (Mar. 10, 2015), www.consumerfinance.gov/about-us/newsroom/cfpb-study-finds-that-arbitration-agreements-limit-relief-for-consumers (“The CFPB’s research indicates that tens of millions of consumers are covered by arbitration clauses in the consumer finance markets studied. For example, in the credit card market, card issuers representing more than half of all credit card debt have arbitration clauses – impacting as many as 80 million consumers. “).

[6] See Apple Card Customer Agreement 14, Goldman Sachs, https://www.goldmansachs.com/terms-and-conditions/Apple-Card-Customer-Agreement.pdf (last visited Sept. 18, 2019).

[7] See Federal Arbitration Act, 9 U.S.C. §§ 1-16 (2012).

[8] See id. at § 2.

[9] See Brann & Isaacson, Optional Arbitration Programs: Opting In vs. Opting Out, 24 No. 7 Me. Emp. L. Letter 1 (2019).

[10] See Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013).

[11] See Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times (Oct. 31, 2015), http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=1. (involving the negative effects of American Express and other companies’ mandatory arbitration clauses to consumers); Liz Kramer, Beyond the Headlines Part II: What the New CFPB Report Teaches Us About Arbitration v. Litigation, Arb. Nation (Mar. 12, 2015), http://arbitrationnation.com/beyond-the-headlines-part-ii-what-the-new-cfpb-report-teaches-us-about-arbitration-v-litigation (stating that the CFPB’s study in 2015 found that Of the 158 cases in which the consumer had an affirmative claim, arbitrators provided consumers with relief in 20% of them and of the 244 affirmative claims by companies that resulted in an award, arbitrators provided the companies relief in 93% of those disputes).

[12] See id.

[13] See 82 FR 55500 (Nov. 22, 2017) (to be codified at 12 C.F.R. pt. 1040).

[14] See id.

[15] See Act of Nov. 1, 2017, Pub. L. No. 115-74, 131 Stat. 1243.

[16] See 82 Fed. Reg. 33210 (Sept. 18, 2017) (to be codified at 12 C.F.R. pt. 1040) (giving notice of invalidation of 82 FR 55500 (Nov. 22, 2017) (to be codified at 12 C.F.R. pt. 1040)).

[17] See Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70-71 (2010) (holding held that the agreement’s delegation of authority to the arbitrator to decide whether the agreement was valid was severable from the rest of the agreement, such that a challenge to the validity of the delegation provision itself was required before a court could intervene).

[18] See Suarez v. Uber Techs., Inc., 2016 U.S. Dist. LEXIS 59241, at *14 (M.D. Fla. May 4, 2016) (giving considerable weight against unconscionability to the “op-out” provision and the fact the driver did not opt out).

[19] See Goldman Sachs, supra note 6, at 15.

[20] See id.

[21]See H.R. 1423, 116th Cong. (2019).

[22] Garen Dodge & David Alvarez, New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements, Labor & Employment L. Blog (March 21, 2019), https://www.laboremploymentlawblog.com/2019/03/articles/arbit ration-agreements/mandatory-arbitration-agreements/.

By: Rachel Whalen

Image source: https://memory-alpha.fandom.com/wiki/Star_Trek:_The_Animated_Series

 

Space, the final frontier. Star Trek explores the universe and the potential consequences of a post-scarcity society. This fictional world has “eliminated hunger, want, [and] the need for possessions”[1] and developed a society that does not rely on money.[2] People in this sci-fi world have access to any resources that they need through the use of replicators.[3] This unlimited supply of resources removes much of the incentive for people to work and create, and the lack of scarcity would require a whole new approach to economics.[4]

 

Intellectual property (IP) rights already create artificial scarcity where scarcity would not normally exist.[5] The ideas and creations protected under IP rights would otherwise be freely available.[6] IP law restricts the proliferation and copying of information in order to provide an incentive for creativity.[7] Historically, developing an idea or creation has required resources such as raw materials and human labor. Creators and innovators relied on IP law to recoup their costs and protect their creations. “It is cheaper to be an imitator than an inventor,” so an incentive is needed to encourage innovation.[8]

 

However, in the case of a post-scarcity world, the costs to innovate would be very small if any. Without the scarcity of raw materials and time, people in Star Trek’s utopia can focus on creation and individual fulfillment.[9] The costs to create and distribute content would be almost nonexistent, so IP law would not be as necessary to recoup costs of creation when creation is free.

 

Furthermore, the foundation that monetary enticement is required to promote innovation has been placed into question. People may not be as motivated to create by external rewards as internal or problem driven gratification.[10] For example, the development of the internet has revealed an astonishing amount of people creating content, at their own cost, for free distribution. These people simply want to share their creations with the world,[11] and with a low cost of creation, they would have even greater access to innovate. In this case, the protections provided under IP law would be less important as the incentive to innovate is no longer as necessary.

 

On the other hand, content creators may still desire IP protections for them to control the use and distribution of their content. As economists Michele Boldrin and David K. Levine pointed out, “[I]ntellectual property law is really about . . . your right to control my copy of your idea.”[12] Creators may want to protect the reputation of their work and be acknowledged as the creator.

 

Star Trek represents a world without scarcity and without the related costs for creation and distribution of ideas. IP law has traditionally helped creators recoup the costs of creation in order to promote innovation over replication. In a post-scarcity world, the costs for creation are almost nonexistent as materials are freely available. IP law has also stood on the presumption that creators want monetary rewards for their work, but the plethora of people creating and freely distributing content on the internet suggests a different motivation. Content creators want to share their creations and be acknowledged. Still, without the initial costs of creation and distribution, the incentive provided by IP protections drops in importance as more people have access to innovate. While IP law has a place in a post-scarcity world, it is not likely to rely as heavily on IP protections.

 

 

 

 

[1] See Jonathan Newman, Star Trek Is Wrong: There Will Always Be Scarcity, Mises Wire, Oct. 20, 2015, https://mises.org/library/star-trek-wrong-there-will-always-be-scarcity.

[2] See Rick Webb, The Economics of Star Trek, Medium, Nov. 6, 2013, https://medium.com/@RickWebb/the-economics-of-star-trek-29bab88d50.

[3] See Peter Frase, Anti-Star Trek: A Theory of Posterity, Dec. 14, 2010, http://www.peterfrase.com/2010/12/anti-star-trek-a-theory-of-posterity/.

[4] See Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U.L.R. 460 (2015).

[5] See id.

[6] See id.

[7] See id.

[8] Id.

[9] See Webb, supra at 2.

[10] See Lemley, supra 4.

[11] Id.

[12] Frase, supra at 3.