Category: Blog Posts Page 73 of 78

By: Micala MacRae, Associate Notes & Comments Editor

A virtual adultery epidemic has swept the nation. Online chat rooms, Facebook, twitter and other forms of social media have enabled individuals to make virtual connections that some argue are grounds for divorce.  In 1996, a New Jersey man filed for divorce based on adultery after discovering that his wife had been carrying on a “virtual” affair with a man in North Carolina through online chat rooms.[1]  Although the wife never met her cyber-paramour in person the relationship began to take over their lives and she began to neglect her job, family, and marriage.[2]  In the United States the courts have refused to hold virtual relationships reach the level of intimacy necessary for adultery.  Adultery is defined as intimate sexual activity outside of marriage.  However, virtual infidelity has become an increasingly important issue in Family Law.

Virtual infidelity can eventually lead a party to act.  If a spouse travels to meet an online partner in person, courts may infer adultery without much difficulty.  Courts have taken into consideration parents’ excessive time spent online on interactive gaming websites when determining child custody.[3]  When parents are not providing adequate support and care for their children due to their exorbitant time online courts infer from this they have relinquished their parental responsibilities.[4]  Courts may eventually see virtual infidelity as a renouncement of parental duties in divorce proceedings awarding the spouse who did not participate in the virtual infidelity full custody of the children.

Though courts have held virtual infidelity does not satisfy grounds for divorce it may satisfy other requirements such as neglect or abandonment.[5]  The spouse carrying out a virtual relationship abandons the marital relationship and the family when he or she spends great periods of time pursing the virtual relationship.  Many courts are willing to accept that sexual activity that is not proven to rise to the level of intercourse can still constitute legal adultery.[6]  Some courts even disapprove of emotional affairs, which are almost analogous to virtual adultery.

Although virtual infidelity may never involve physical contact courts may rule these virtual relationships that lead to the degradation of the marital relationship are grounds for divorce.  Online infidelity may qualify as adultery when the conduct is a substantial factor in the breakdown of the marriage.  Courts may expand the definition of adultery to include virtual infidelity as a factor in determining whether a divorce should be granted.  The law is behind the pace of technology and the evolution of views on marriage and infidelity.  It may be time to expand the law of adultery to include virtual infidelity, so that relief can be afforded to the victims.

 

[1] Douglas E. Abrams et al., Contemporary Family Law (3rd ed. 2012)

[2] Id.

[3] Andrew Feldstein, Is Cybersex Grounds for Divorce?, Huffingtonpost.com, http://www.huffingtonpost.com/andrew-feldstein/is-cybersex-grounds-for-d_b_4555583.html (last updated Mar. 10, 2014).

[4] Id.

[5] Edward Nelson, Virtual Infidelity: A Ground for Divorce, Examiner.com, (Sept. 11, 2010, 4:18 PM), http://www.examiner.com/article/virtual-infidelity-a-ground-for-divorce.

[6] Id.

By: Barry Gabay, Notes & Comments Editor

Amazon.com has completely transformed humans’ understanding of book availability. A book that may have eluded our grasp for months or even years can now be readily attained in a matter of seconds. We no longer have travel costs associated with visiting a book retailer, and we no longer experience the disappointment of the retailer being out of stock. There is no more stress or hassle in book shopping in the world of e-Commerce, as the world’s largest library is constantly at our fingertips. Now imagine the same phenomenon with wine.

In November 2012, Amazon, the world’s largest online retailer, launched a wine marketplace with over 1,000 domestic wines available.[1] Today, the portal offers more than 5,000 wines from some 700 merchants, 80 percent of which are from domestic brands.[2] The website facilitates “direct-to-consumer” transactions between wineries and consumers, whereby consumers are delivered bottles and cases of wine packaged and shipped directly from the winery.[3]

The marketplace’s potential is self-evident, as Amazon netted over $61 billion in sales in 2012, up more than 27 percent from the previous year.[4] On top of that, the United States is the world’s largest wine consumer; we drank 856 million gallons of wine in 2012, roughly 2.73 gallons per citizen, and spent nearly $35 billion on wine. [5] Further, of the roughly 7,500 wineries existing in the United States, the vast majority of are boutique wineries who do not market out of state.[6] Thus, with Amazon’s direct-to-consumer shipping, these small wineries will be able to sell to customers across the nation, and consumers across the country will be able to purchase premium wines with the click of a button from any winery who registers…in an ideal world.

Due to highly regulated interstate distribution laws, the Amazon marketplace, at present, only serves customers in 22 states and the District of Columbia.[7] The major impediment is the three-tier system of alcohol distribution, under which wine, distilled spirits, and beer producers (tier one), wholesalers (tier two) and retailers (tier three) are completely separated, and alcohol must pass through all three tiers before it reaches the consumer.[8] The system was adopted by many states after the passing of the Twenty-First Amendment, which effectively gave states absolute authority to control alcohol within their borders. It originally served to halt the future emergence of Prohibition-era criminal syndicates, run by the likes of George Remus and Al Capone who used vertical integration tactics in their control of the liquor industry. The system is now used in nearly every state in hopes of “promoting temperance, ensuring orderly market conditions and raising revenue.”[9]

The three-tier system has, remarkably, survived recent constitutional challenges under the Commerce Clause, notably in the 2005 decision of Granholm v. Heald.[10] But while countless articles and several courts have found the three-tier system to, by its very nature, discriminate against out-of-state producers and consumers and thus in violation of the Dormant Commerce Clause, the current rise in e-Commerce offers a yet another justification for loosening state regulations on alcohol distribution.[11] Wineries, like nearly every other industry, have identified the Internet as a gateway for national distribution and expansion. E-Commerce provides an outlet for small wineries to reach consumers they would otherwise never have access to; the growing popularity of boutique wineries makes this outlet even more valuable.

Today, 44 states and the District of Columbia allow the direct shipment of wine to the consumer in some capacity,[12] though more often than not, there are stiff regulatory issues the winery must comply with.[13] Direct-to-consumer shipments were worth more than $1.46 billion from in 2012, an eight percent increase during that time frame the year prior.[14] Yet, although we are the world’s largest wine consumer, we are well behind Europeans (eight to ten percent of their wine purchased online) and the Chinese (27 percent) in terms of direct-to-consumer wine sales.[15] A decade-old Federal Trade Commission report found that the single biggest factor inhibiting the rise of direct-to-consumer wine sales was the three-tier system.[16] When that report was filed, total American e-Commerce sales were around $58 billion. That number reached $259 billion last year.[17] Thus, the extent to which the three-tier system inhibits wine distribution is self-evident and simply staggering.

With the emergence of Amazon’s wine marketplace, the potential benefits of direct-to-consumer shipment are once again being discussed in state legislatures.[18] Greater market competition benefits consumer costs, as lower online wine prices would induce local wineries to take competitive action. Opening up the market to allow wineries to sell directly to retailers and consumers will benefit boutique wineries and consumers. Boutique wineries will be able to independently expand their distribution out of state, and consumers will have a lifetime of different wine from which to choose without increased wholesale markup. In the current shift toward a universal marketplace, our wine cellar could be infinite.  

 

 

[1] Mark Brohan, Amazon Sales Top $61 Billion in 2012, Internet Retailer (Jan. 29, 2013), http://www.internetretailer.com/2013/01/29/amazon-sales-top-61-billion-2012; Andrea Chang, Amazon Launches Online Wine Marketplace, L.A. Times (Nov. 9, 2012), http://articles.latimes.com/2012/nov/09/business/la-fi-amazon-wine-20121109.

[2] Lauren Indvik, Amazon Begins Shipping Wine to New York, Michigan, Mashable (Oct. 17, 2013), http://mashable.com/2013/10/17/amazon-wine-new-york/.

[3] Chang, supra note 1.

[4] Brohan, supra note 1.

[5] Table 6.1: World Wine Consumption, 2008-2011, % Change 2011/2008, and % of World Consumption-2011, The Wine Institute (2011), http://www.wineinstitute.orgWorld_Consumption_by_Country_2011.pdf; 2012 Wine Sales in U.S. Reach New Record: Record California Wine Crop to Meet Surging Demand, The Wine Institute (2013), http://www.wineinstitute.org/resources/pressroom/04082013.

[6] North American Winery Total passes 8,000, Wines & Vines (2013), http://www.winesandvines.com/template.cfm?section=news&content=111242; Devin McIntyre, Is Amazon Closer to Solving the Wine Shipping Puzzle?, The Wash. Post (2013), http://www.washingtonpost.com/lifestyle/food/is-amazon-closer-to-solving-the-wine-shipping-puzzle/2012/10/08/79b5353a-0da2-11e2-bd1a-b868e65d57eb_story.html.

[7] Amazon Wine States, http://www.amazon.com/gp/help/customer/display.html?nodeId=201020560 (last visited Feb. 1, 2014).

[8] Amy Murphy, Discarding the North Dakota Dictum, 110 Mich. L. Rev. 819, 824-25 (2012).

[9] Wine Country Gift Baskets.com v. Steen, 612 F.3d 809, 814 (5th Cir. 2
010) (citing North Dakota v. United States, 495 U.S. 423, 432 (1990) (plurality opinion) (internal citations omitted)).

[10] Granholm v. Heald, 544 U.S. 460, 463 (2005).

[11] See e.g. Murphy, supra note 8; Desireé C. Slaybaugh, A Twisted Vine: The Aftermath of Granholm v. Heald, 17. Tex. Wesleyan L. Rev. 265 (2011); Costco Wholesale Corp. v. Hoen, 407 F. Supp 2d. 1247 (W.D. Wash. 2005); Cherry Hill Vineyards LLC v. Lilly, 553 F.3d 423 (6th Cir. 2008); Family Winemakers of California v. Jenkins, 592 F.3d 1 (1st Cir. 2010).

[12] State Shipping Laws for Wineries (Jan. 24, 2014), http://wineinstitute.shipcompliant.com/Home.aspx; see e.g.

[13] See e.g. Ala. Code § 28-3-5 (1975): (“Any retail dealer of alcoholic beverages … purchasing or receiving such commodities from without the state … shall, within 12 hours of receipt of such alcoholic beverages, mail … a true duplicate invoice of all such purchases or receipts to the board at Montgomery, Alabama, said invoice carrying the name of the person or firm from whom or through whom such purchases or shipments of the alcoholic beverages were received and showing kinds and quantities.”); Ind. Code § 7.1-3-26-9 (2011) (“A direct wine seller’s permit entitles a seller to sell and ship wine to a consumer” provided that the customer purchases the wine “in an initial face-to-face transaction.”).

[14] Jeff Carroll, Pawel Smolarkiewicz & Lynne Skinner, Direct to Consumer Wine Shipping Report 2013, Wines & Vines, 1-2, http://www.winesandvines.com/pdf/2013Direct-to-Consumer-Shipping-Report.pdf.

[15] Rebecca Gibb, Internet Wine Sales Top $5 Billion, Wine-Searcher (June 18, 2013), http://www.wine-searcher.com/m/2013/06/internet-wine-sales-top-5-billion.

[16] Federal Trade Commission, supra note 7, at 3 (Note: The country’s two largest wine wholesalers, Southern Wine & Spirits and Republic National Distribution Company, generate revenues upwards of $13 billion, and the Wine & Spirit Wholesalers of America, the industry’s largest lobbying effort, spent $9.3 million in political action committee funds in the 2008 presidential election.).

[17] Allison Enright, U.S. e-Commerce Sales Could Top $434 billion in 2017, Internet Retailer (Apr. 25, 2013, 4:33 PM), http://www.internetretailer.com/2013/04/25/us-e-commerce-sales-could-top-434-billion-2017; U.S. Census Bureau, Quarterly Retail e-Commerce Sales: 3rd Quarter 2013 (2013), http://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf.

[18] See e.g. Steve Annear, Changes to Wine Direct Shipping Laws Are Fermenting on Beacon Hill, Boston Magazine (Nov. 11, 2013), http://www.bostonmagazine.com/news/blog/2013/11/11/massachusetts-wine-delivery-laws-free-the-grapes/.

By: Bradford Schulz, Associate Staff

Juries across the nation recently are being asked to determine reasonable standards for football concussion helmet suits.[1] In a trademark case this past summer, the NFL settled with thousands of former professional league football players in a concussion related claim class action suit.[2]  The total NFL payout is $870 million with $675 million awarded for compensatory claims, $75 million for testing, $10 million for medical research, and $112 million for lawyers’ fees.[3]  The final settlement has approximately three payout formula categories; (1) a young retiree with amyotrophic lateral sclerosis or Lou Gehrig’s disease will be awarded $5 million, (2) 50-year-old retires with Alzheimer’s disease could receive $1.6 million, and (3) 80-year-old retires with early dementia will be awarded $25,000.[4]  Just this month, a splinter group from the settlement launched and lost their bid for appellate intervention on the merits of the settlement.[5]  The goal for the Sean Morey Objectors was to establish a legal custom in defining what football organizations know or should know about concussion safety.[6]  Juries in football concussion suits are quickly recognizing that the absence of a reasonable custom is not the only issue that needs addressing.

Before juries can tackle the appropriate legal custom in concussion related tort actions, scientists need to first figure out what a concussion is. Doctors struggle with establishing parameters for diagnosing concussions because they are unsure what specifically causes concussions. “If you talk to any doctor out there, you’re going to get 14 different opinions on what causes a concussion . . . [w]e don’t know if it’s a big hit or if it’s a whole bunch of little hits.”[7]  It is known that helmets protect the player’s head and are able to absorb a hit’s energy; however, helmets do not protect the brain from the hit’s acceleration.[8]

Any hit will likely have a perpendicular component and an angular component. A perpendicular hit is aligned straight at the head, directed exactly at the brain’s center of gravity. Football helmets do a satisfactory job absorbing the energy from a perpendicular hit because the structure of the shell transfers the energy away from the impact. The helmet significantly reduces the force, i.e. acceleration, of the perpendicular hit felt by the brain. Whereas an angular hit is any hit not straight at the brain’s center of gravity. This angled hit creates a rotational force around the brain’s center of gravity causing the head to spin, twist, or rotate. The helmet provides little protection to stop this additional rotation, because after all, the player needs to turn his head to look around. Imagine wearing a helmet and having someone hit the crown with a hammer; the helmet may not break, but you will likely undergo whiplash. It is believed that this rotational acceleration is a major component in football concussions.[9]

There are efforts in the scientific community to analyze the forces felt from a football hit. Researchers at several universities have installed sensors within their school’s helmets to measure the forces felt during hits. For instance, the InSite software measures violent movement and impact duration, and then it transmits this data to training staff on the sideline.[10]  Another program monitors player’s change in molecular information throughout a season in order to identify possible blood-based molecular correlations with concussions.[11] Dr. Duma, a university researcher, has found that “routine” hits equate to 20-40 times the force of gravity and “violent collisions” equate to 120 times the force of gravity.[12] An imperfect comparison is to acknowledge that astronauts train at 9 times the force of gravity; however, the durations are significantly different.

Several manufactures, some of which were involved in the NFL settlement, are beginning to offer new helmet designs. One manufacture is adding bullet stopping Kevlar inside their helmets; another is changing its external design to incorporate rubber padded foam, while others have sensors that update training staff on possible concussion-causing hits.[13]

So how is this affecting tort law? Other than the typical safety advertising suit, the lack of information on football hit concussions is affecting the custom standards juries use in determining reasonable safety precautions and designs. The first affect is that players, especially high school youth, believe that helmets protect them from concussions. As such, juries are willing to protect these youth by awarding plaintiffs for inadequate helmet safety warnings.[14] The second affect is that juries are struggling in establishing a test for negligent design. It is clear that juries are unsatisfied by the common practice in helmet manufacturing[15], but until the scientific research catches up juries are unable to hold the football helmet design to a satisfactory reasonable standard. And after all, unpredictable juries make for nervous litigators. Until science catches up and litigators have a clear custom for helmet safety negligence, we may see more settlements like the NFL case this past summer.

[1] FORBES, Hard Knocks: Xenith’s Helmet Technology Stands Tall Amidst Football’s Concussion Crisis, Sept. 2014 (available http://www.forbes.com/sites/chrissmith/2014/08/20/hard-knocks-xeniths-helmet-technology-stands-tall-amidst-footballs-concussions-crisis/).

[2] Associated Press. Federal Judge Approves NFL Concussion Settlement, July 7, 2014 (last updated July 9, 2014) (available at http://www.nfl.com/news/story/0ap2000000363672/article/federal-judge-approves-nfl-concussion-settlement).

[3] Id.

[4] In re Nat’l Football League Players’ Concussion Injury Litig., 2:12-MD-02323-AB, 2014 WL 3054250 (E.D. Pa. July 7, 2014).

[5] Paul D. Anderson, Objectors Seek Potentially Damning Discovery, NFL CONCUSION LITIGATION, Sept. 2014 (available at http://nflconcussionlitigation.com/).

[6] Id.

[7] Gary Mihoces, More Padding the Issue of Concussions and Better Helmets; USA TODAY SPORTS, Aug. 2013.

[8] Jim Avila and Serena Marshall, Riddell Unveils Overhauled New Football Helmet SpeedFlex, GOOD MORNING AMERICA, Aug 2014 (available at http://abcnews.go.com/US/riddell-unveils-football-helmet-speedflex/story?id=25141779).
 
[9] Id.

[10] Chris Fuhrmeister, New Riddell SpeedFlex Football Helmet Pits Technology vs. Concussions, SB NATION, Mar. 2014 (available at http://www.sbnation.com/college-football/2014/3/28/5547618/riddell-speedflex-helmets-insite-technology).

[11] Hackney Publications, Riddell and TGen Team up with Arizona State University’s Football Program to Further Genetic Research into Athlete Concussion Detection and Treatment, Concussion Policy & the Law, August 2014 (available at http://concussionpolicyandthelaw.com/tag/helmet/).

[12] Gregg Easterbrook, Virginia Tech Helmet Research Crucial, July 2011 (available at http://sports.espn.go.com/espn/page2/story?page=easterbrook-110719_virginia_tech_helmet_study).

[13] Jim Avila and Serena Marshall, Riddell Unveils Overhauled New Football Helmet SpeedFlex, GOOD MORNING AMERICA, Aug 2014 (available at http://abcnews.go.com/US/riddell-unveils-football-helmet-speedflex/story?id=25141779); Gary Mihoces, More Padding the Issue of Concussions and Better Helmets; USA TODAY SPORTS, Aug. 2013.

[14] FORBES, Hard Knocks: Xenith’s Helmet Technology Stands Tall Amidst Football’s Concussion Crisis, Sept. 2014 (available http://www.forbes.com/sites/chrissmith/2014/08/20/hard-knocks-xeniths-helmet-technology-stands-tall-amidst-footballs-concussions-crisis/).

[15] Id.

by Eileen Waters, Associate Staff

 

The concept of body-mounted cameras worn by police officers is not brand new; in fact, police departments across the United States, England, Brazil, and Australia have been implementing systems with wearable cameras since the early 2000s. [1] Recently in the U.S., public interest has put a brighter spotlight on wearable cameras since an incident in Ferguson, Missouri, where an unarmed teenager named Michael Brown was shot by a police officer.[2] Confusion as to what actually happened when the incident occurred has led to debate and speculation about whether there would be less “civil unrest” if the officer who shot Michael Brown had worn a body camera.[3] In an effort to appease those who believe police cameras are the panacea for this subsequent civil unrest, police officers in Ferguson began wearing cameras earlier this month, having been donated by two private companies. [4] Locally, in “Henrico County [Virginia,] police officers will begin wearing body-mounted cameras this fall.”[5] With the acceleration of this trend, it is important to begin analyzing the pros and cons of police officers wearing body cameras.

The benefits of wearable cameras are numerous: the “potential to change the dynamics of police-citizen encounters, to either exonerate or implicate officers in wrongdoing, or provide evidence of citizen misconduct.”[6] “Body-worn cameras can increase accountability” not only for police officers, but also for the citizens they interact with.[7] The city of Rialto, California rolled out a camera program in 2012, and has since reported a 60% reduction in use-of-force incidents and an 88% reduction in filed citizen complaints, “when compared with the year prior to deployment.”[8] William Farrar, the police chief in Rialto, has spoken of cases where citizen have gone to their local police station to file a complaint “and the supervisor was able to retrieve and play on the spot the video of what transpired.”[9] Rialto is not the only city that has experienced a decrease in police-related issues and complaints since employing body cameras, many cities across the country are finding good results with such programs.[10]

Regardless of the benefits, there are also reasons to be wary of this new technology and approach the use of cameras with caution. Arguably, the most prevalent of which is that once a policy of camera-wearing is established by a law enforcement agency, “it will become increasingly difficult to have second thoughts or to scale back” such a program.[11] Many scholars have also strenuously noted privacy concerns that will arise with more camera usage.[12] “It takes little imagination to see how such cameras could augment already ubiquitous CCTV and facial recognition systems, allowing police to retroactively track and monitor innocent passersby.”[13] Proponents of body cameras should ask themselves if they are willing to give up much of their privacy for the program’s benefits. On top of these issues, cameras have a huge economic cost: “agencies that have deployed the cameras spent between $800 and $1,200 for each device.”[14] After the initial cost, it then becomes expensive to store the considerable amount of data created; the New Orleans Police Department will pay “an expected cost of $1.2 million over five years” for 350 body cameras. [15] Overall, there are appreciable costs to body camera programs that need to be weighed with the benefits when deciding whether a program should be implemented.

Currently, public interest seems to be in favor of wearable cameras. This has prompted Congressman Al Green to propose a federal bill last week that would require any “state or local law enforcement agency that receives Federal funds” to use those funds to purchase “body cameras for use by the law enforcement officers employed by that enforcement agency.”[16] On a state level, New Jersey Senator Donald Nocross announced that he is “drafting legislation that would require all police officers to wear body cameras while on patrol.”[17] Lawmakers, perhaps reacting to public opinion, are in the beginning stages of legislating for mandatory use of police body cameras. Now is the time where engaged citizens need to decide if these programs should be implemented nation-wide or not. As this post suggests, the issue is not black and white, and should be discussed and critiqued before concrete legislation is enacted.

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[1] Joshua Kopstein, Police Cameras are No Cure-all After Ferguson, Aljazeera America (Aug. 29, 2014, 6:00AM), http://america.aljazeera.com/opinions/2014/8/ferguson-race-policesurveillancetechnology.html.

[2] Id.

[3] Justin T. Ready & Jacob T.N. Young, Three Myths About Police Body Cams, Slate (Sept. 2, 2014 12:54AM), http://www.slate.com/articles/technology/future_tense/2014/09/ferguson_body_cams_myths_about_police_body_worn_recorders.html.

[4] William Cummings, Ferguson Police Begin Using Body Cameras, USA Today (Sept. 1, 2014 1:43AM), http://www.usatoday.com/story/news/nation/2014/09/01/ferguson-police-cameras/14920587/.

[5] Ted Strong & Brandon Shulleeta, Henrico Police to Roll Out Body Cameras for Officers, Richmond Times Disptach (Sept. 14, 2014), http://www.timesdispatch.com/news/local/henrico/henrico-police-to-roll-out-body-cameras-for-officers/article_1fe0fb5e-8752-573f-85e2-07ff33bf562b.html.

[6] Bryce Clayton Newell, Crossing Lenses: Policing’s New Visibility and the Role of “Smartphone Journalism” as a Form of Freedom-Preserving Reciprocal Surveillance, 14 U. Ill. L. Tech. & Pol’y 59, 82 (2014).

[7] Kevin Johnson, Police Body Cameras Offer Benefits, Require Training, USA Today (Sept. 12, 2014 6:21 PM), http://www.usatoday.com/story/news/nation/2014/09/12/police-body-cameras/15522059/.

[8] Id.

[9] Randall Stross, Wearing a Badge, and a Video Camera, The New York Times (Apr. 6, 2014), http://www.nytimes.com/2013/04/07/business/wearable-video-cameras-for-police-officers.html?_r=2&.

[10] Id.

[11] Johnson, supra note 6.

[12] Kopstein, supra note 1.

[13] Id.

[14] Johnson, supra note 6.

[15] Id.

[16] Transparency in Policing Act of 2014, H.R. 5407, 113th Cong. (2014).

[17] New Jersey Senator Proposes Bill Requiring Mandatory Body Cams for Police, Police State Daily (Sept. 11, 2014), http://policestatedaily.com/new-jersey-senator-proposes-bill-requiring-mandatory-body-cams-police/.

by Megan Carboni, Associate Staff

 

            Earlier this August, patent rights’ holder Alki David, owner of Hologram USA, filed suit against The Simpsons’ broadcaster, 20^th Century Fox, for alleged patent rights infringements.[1] David asserts infringement of his acquired hologram technology used to bring Homer Simpson to life at this year’s Comic-Con convention in San Diego.[2] Oddly enough, Homer Simpson is not the only celebrity in hot water over alleged unauthorized use of David’s patented technology. Michael Jackson’s estate and Pulse Evolution are also being sued for the unauthorized use of David’s hologram technology to bring Michael Jackson back to life at the Billboard Music Awards.[3] Adding more fuel to the fire is Pulse’s cross complaint stating that David is “falsely claim[ing] credit for creating and developing the visual effects spectacle [of Jackson] in a nationally-televised interview on CNN, in press releases, and on his various websites […].”[4]

            So, where did this all begin? Stepping back in time, back to 1862, a stage trick for magic shows was developed by two magicians called “Pepper’s Ghost.”[5] “Pepper’s Ghost” was a lifelike illusion technique that has currently been popularized in movie special effects, concerts, and amusement park rides.[6] Most recently, “Pepper’s Ghost” inspired the hologram technology behind Tupac Shakur’s resurrection at the 2012 Coachella Music Festival, whose patent rights were acquired by David and Hologram USA in February 2013.[7] Unfortunately for the late Michael Jackson and the animated Homer Simpson, neither Pulse nor Fox obtained any licensing rights to use the same hologram technology to create their holograms before they were publicly debuted. [8] Thus, enter the multimillion-dollar patent infringement suits brought by David. David’s attorneys representing him in the Jackson lawsuit state that Pulse, and now Fox, “have created significant confusion in the marketplace [and] diluted the value of the Hologram USA brand.”[9]

            But were Simpson and Jackson holograms made with the same technology? Of course, patent experts in this field will have to weigh in to determine if any of David’s claims of stolen holograms have any weight to them. The accused parties have publicly disavowed David’s allegations, with Fox saying “[t]his filing is totally without merit […] except to say […] Mr. David has demonstrated his insatiable need to stay relevant.”[10] Pulse adds in their own suit against the Hologram USA owner that David is merely “divert[ing] public and industry attention away from Pulse Entertainment,” asserting claims against David of unfair business competition practices and trade libel.[11] Pulse further asserts that the “mischaracterization of the [Michael Jackson] animation as a hologram highlights David’s complete lack of technical expertise….[This] was not a hologram at all, rather, it was an animation projected onto a screen.”[12]

            Will the courts find for David in his patent infringement claims? Or will they find that there is little substance to his allegations? Does the industry need the distinction between each of the types of technology and animation to continue to bring this type of entertainment to the masses? Is it also coincidence that Fox successfully sued one of David’s media companies for copyright infringement in 2012?[13] Time, or a hefty settlement (D’Oh!), will tell who has the future rights to collect off of celebrity holograms/animations technology.

 

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[1] Homer Simpson Duffed With Patent Lawsuit, WORLD INTELL. PROP. REV. (Aug. 18, 2014), http://www.worldipreview.com/news/homer-duffed-with-patent-lawsuit-7050.html.

[2] Id.

[3] Id.

[4] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[5] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[6] Amended Complaint and Demand for Jury Trial at 2, Hologram USA, Inc. et al. v. Pulse Evolution Corp. et al. (D. Nev. May 29, 2014) (No. 2:14-cv-00772).

[7] Eriq Gardner, Homer Simpson Hologram at Comic-Con Draws Patent Lawsuit (Exclusive), THE HOLLYWOOD REP. (Aug. 15, 2014, 12:54 PM), http://hollywoodreporter.com/thr-esq/homer-simpson-hologram-at-comic-725830.html.

[8] Id.

[9] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire (Exclusive), THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[10] Gardner, supra note 6.

[11] Eriq Gardner, Michael Jackson ‘Hologram’ Show Sparks New Legal Crossfire, THE HOLLYWOOD REP. (June 19, 2014, 12:11 PM), http://www.hollywoodreporter.com/thr-esq/michael-jackson-hologram-show-sparks-713109.html.

[12] Id.

[13] See WORLD INTELL. PROP. REV., supra note 1.

by John A. Myers, Associate Staff

 

In the digital age, social media has become a dominant form of communication. Because of the increased usage of social media in recent years, user contributions to social media have increasingly been used as evidence in litigation. The main legal question that has arisen from social media as evidence is: How much access of their social media account does a party have to give to an opposing party that is requesting the evidence? If one party wants to introduce a single social media post as evidence against the opposing party, should that party have access to the other party’s entire social media account, or just that single post? Courts have recently started to adjudicate on this issue and the results have been mixed, with some courts arguing that access to opposing parties social media account is an unreasonable intrusion on privacy.

 

Because of the public nature of social media, posts made on social media sites have increasingly contributed to litigation. For example, the American Academy of Matrimonial Lawyers published a survey indicating 81% of divorce proceedings involve social media evidence, with 66% coming from Facebook alone.[1] It’s easy to understand how a Facebook post blasting a spouse or an Instragram picture showing a spouse with a mistress could be used as evidence during a subsequent divorce proceeding. The problem becomes when a court has to decide how much access the requesting party should be given to the opposing party’s social media account. While it may be easier to just allow the requesting party to have temporary access to the opposing party’s account for the purposes of securing the evidence requested, that also opens up the possibility that that party could find more evidence against their opposing party that wasn’t specified in a discovery request.[2]

 

Because of the potential encroachment on the privacy of the opposing party, courts have been hesitant to allow complete access to the requesting party and have attempted to establish a two-part test regarding access to social media evidence.[3] Firstly, the social media evidence must have some relevance to the facts that it is seeking to support.[4] This first part is well ingrained in the Federal Rules of Evidence and similar state rules for introduction of evidence from any source.[5] Secondly, the court must determine whether blanket access to the social media account is allowed or if the requesting party need only be given the social media post in question. Recent court cases have split on this issue. Some courts said that blanket access to the other party’s social media account is per se unreasonable.[6] Other courts have granted blanket access, but with restrictions. In Largent v. Reed, the plaintiff was ordered to turn over her Facebook login information to opposing counsel, who would then have 21 days to inspect a limited section of the account.[7] After that period, the plaintiff could change her password to prevent any further access to her account by opposing counsel.

 

What is most interesting about social media as evidence and its development is the affect on an individual’s privacy. Since the advent of Facebook, Twitter, and other social media platforms, the main legal question surrounding these platforms has been: How much privacy should their users expect from comments made on those sites? While the answer has almost always been “None”, the first cases to address the introduction of social media as evidence seem to indicate that there is at least some material on social media that is off limits to opposing parties. A Pennsylvania court recently concluded that a court order that would grant the opposing party access to information on a Facebook account that was only intended for “Friends” (of which the opposing party was not one), would be intrusive and potentially embarrassing for the acquiescing party.[8] Other state and federal cases have concluded that searches of social media accounts are an intrusive way of gathering evidence and less speculative and “annoying” methods should be used when possible.[9]

 

The use of social media as evidence is still in its infancy and its introduction or exclusion will likely develop for decades to come. It will be interesting to see the progress of social media evidence and whether future courts continue to hold certain aspects of social media to be off limits for evidentiary purposes.

 

 

[1] Press Release, American Academy of Matrimonial Lawyers, Big Surge in Social Networking Evidence Says Survey of Nation’s Top Divorce Lawyers (Feb. 10, 2010) (on file with author).

 

[2] Fed. R. Civ. P. 26(A)(ii)

 

[3] Margaret DiBianca, Discovery and Preservation of Social Media Evidence, Business Law Today (Jan. 2014), http://www.americanbar.org/publications/blt/2014/01/02_dibianca.html.

 

[4] Fed. R. Evid. Rule 401(a).

 

[5] Id.; Va. R. Evid. 2:401.

 

[6] Trail v. Lesko, No. GD-10-017249, LEXIS 194, at *30-31 (Pa. D. & C. Jul. 3, 2012).

 

[7] Largent v. Reed, 2011 WL 5632688, No. 2009-1823 (Pa. D. & C. Nov. 8, 2011).

 

[8] See Lesko, LEXIS 194, at *28-30.

[9] Id.; Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-11735, 2011 U.S. Dist. LEXIS 121600, at *1-3 (S.D. Mich. Oct. 20, 2011). 

By: Adam Lamparello & Charles MacLean[1]

August 6, 2014

 

In an era of metadata collection and warrantless searches of laptops at the border, the Supreme Court recognized that privacy—and the Fourth Amendment—still matter.

A. The Court’s Opinion

In Riley v. California,[2] the defendant was stopped for having expired registration tags and arrested when law enforcement officers discovered that the defendant’s license had expired.[3] After the arrest, a detective conducted a warrantless search of the defendant’s Smartphone and discovered incriminating evidence that led to charges of assault and attempted murder.[4]

Relying on the search incident to arrest doctrine, the lower courts rejected the defendant’s Fourth Amendment challenge, holding that officer safety and evidence preservation justified the search of defendant’s Smartphone.[5]

The Supreme Court granted certiorari—and unanimously reversed.

Writing for the Court, Chief Justice John Roberts held that the two objectives underlying the search incident to arrest doctrine were not implicated in the cell phone context.[6] Chief Justice Roberts also rejected the Government’s argument that Smartphones were analogous to physical objects such as containers and cigarette packs, stating to it was akin to “saying a ride on horseback is materially indistinguishable from a flight to the moon.”[7]

Justice Roberts also recognized that, unlike finite physical objects, Smartphones can store “millions of pages of text, thousands of pictures, or hundreds of videos,”[8] which makes them different “in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”[9] In fact, “even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, [and] a thousand-entry phone book.”[10]

As such, “the sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.”[11] Moreover, because of their immense storage capacity, “cell phone searches would typically expose to the government far more than the most exhaustive search of a house, and contains a broad array of private information never found in a home in any form—unless the phone is.”[12]

Based on these considerations, the Court held that the search violated the Fourth Amendment’s prohibition against unreasonable searches and seizures, which “was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era . . . [and] allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”[13]

Riley is a victory for privacy rights and shows that law enforcement’s investigatory powers are not without limits. Time will tell whether the Court’s reasoning will have implications for future cases involving, for example, the Government’s warrantless search of laptops at the border and indiscriminate collection of metadata. What we know now is that times have changed.

B. What Does Riley Mean for Privacy?

In their upcoming article, Professors MacLean and Lamparello will analyze the implications of Rileyin various contexts where expanding surveillance by the Government threatens to infringe individual privacy rights. They will analyze, among other things, the current circuit split regarding the warrantless—and suspicionless—collection of metadata, and discuss the extent to which the National Security Agency can continue to monitor and track metadata, email, internet browser histories, and other communications data both domestically and abroad.

Professors MacLean and Lamparello will argue that, although Rileyis a victory for privacy rights, there is reason to be cautious. Chief Justice John Roberts has taken a minimalist approach to constitutional adjudication and often strives to decide cases on the narrowest grounds possible.[14] In addition, the basis upon which Riley was decided—reasonableness—may be difficult to apply in contexts where the Government’s interest is heightened, the search is less intrusive than, for example, the search of a cell phone, and occurs in places where an individual’s expectations are privacy are diminished.

Ultimately, the authors will argue that the Court’s jurisprudence will proceed incrementally. Although the Court will increasingly safeguard privacy rights, it will not be able to keep pace with the speed of technology and the efforts by Government officials to increase the scope and breadth of their surveillance power. The authors will propose a detailed legislative solution that includes, among other things: (1) the privacy expectation that citizens should have in various contexts; (2) the levels of suspicion that the Government must satisfy before performing various searches; (3) and the circumstances, if any, when the interest in national security will outweigh a legitimate or diminished expectation of privacy. In so doing, the authors will provide a solution that they believe can guide lawmakers, citizens, and courts as the technology era increasingly implicates complex question about the balance between civil liberties and national security.

 

 

 

 

[1] Professors Charles E. MacLean and Adam Lamparello of Indiana Tech Law School filed an amicus brief in the case supporting Riley’s argument. The Professors argued that the search incident to arrest doctrine did not apply because: (1) cell phones, unlike other physical objects, could not be used as weapons; and (2) the risk that evidence would be destroyed, through either remote wiping or data encryption, was minimal and easily manageable. The authors have also written rather broadly in this area, including: Charles E. MacLean & Adam Lamparello, Abidor v. Napolitano: Suspicionless Cell Phone and Laptop “Strip” Searches at the Border Compromise the Fourth and First Amendments, 108 Nw. U. L. Rev. Colloquy 280 (Spring 2014); Adam Lamparello & Charles E. MacLean, Back to the Future: Returning to Reasonableness and Particularity under the Fourth Amendment, 99 Iowa L. Rev. Bull. 101 (Spring 2014); Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, unless Congress Continually Resets the Privacy Bar, 24 Albany L.J. Sci. & Tech. 47 (Spring 2014). The authors’ full article addressing the implications of the Riley decision will be published this fall in Volume 20 of the Richmond Journal of Law and Technology.

[2] Riley v. California, 134 S. Ct. 2473 (2014).

[3] See id. at 2480.

[4] See id. at 2480-81.

[5] See id. at 2481.

[6] See id. at 2485-87.

[7] Id. at 2488.

[8] Riley v. California, 134 S. Ct. 2473, 2489 (2014).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 2491.

[13] Id. at 2494.

[14] See University of Chicago Law School Faculty Blog, Chief Justice Roberts and Minimalism, (May 25, 2006), available at: http://uchicagolaw.typepad.com/faculty/2006/05/chief_justice_r.html.

by Walton Milam, Associate Staff

 

For years, Virginia anglers have lamented the arbitrary three mile line separating the legal area to chase Virginia’s striped bass from the “exclusive economic zone”[1] where commercial boats can legally reek havoc[2] on schools of striper for which the Virginia coast is famous.  The three-mile line is non-sensical for a number of reasons.  The idea that the environment is less affected by a fish caught 2.9 miles offshore than one caught 3.1 miles offshore seems unpersuasive at best.  If population decimation is the federal government’s concern, the two fish per angler rule seems to address these concerns adequately.   If the two fish per angler rule is inadequate, laws ought to further restrict the amount of fish legally caught rather than how far offshore the fish can be caught.  The rule instead seems more likely to be the result of successful lobbying on the part of commercial fisherman who have long foiled the attempts of environmentalists to invoke meaningful improvement, particularly in the Chesapeake Bay.[3]  While I admittedly am skeptical of any attempt by the government to manipulate behavior to affect environmental change, the case of the three-mile line seems particularly heinous.  Commercial fisherman claim that their livelihood depends on their ability to harvest fish outside the three mile zone.  However, many anglers make their living guiding “non-commercial” patrons.  Further, even more anglers work five days a week with the hopes that they can spend money and time and enjoy their free time on the weekend.  In doing so they spend thousands of dollars on licenses, boats, tackle, bait, gas, ice, food, lodging, and beer.  These endeavors seem just as economic as any commercial fisherman catching fish in the “exclusive economic zone.” 

Finally, the technological aspect of enforcement is tricky, given the nature of fishing near the line.  While most GPS and Fishfinder systems include the Three Mile Line in maps, when fishing near the line, it is not always easy to ascertain whether one is in an illicit or legal zone.  This issue is further complicated when fighting a fish that may start in the legal zone but move to the illegal zone.  While most citations of which I am aware occur far outside the line, the difficulty of determining when one is fishing legally adds to the confusion.  One could foreseeably hook up with a striper within the three-mile zone but have the friend run into the exclusive economic zone, making the fish illegal to catch. 

by Danielle Bringard, Associate Survey & Symposium Editor

 

I don’t know about you, but my heart skipped several beats after reading the first wave of news detailing the Heartbleed Security Hack.  I changed all of my passwords on various sites only to find if I had changed them before that particular web operation had updated its software I would have to change my passwords again.  Now, I find, by checking the security of a website I may be violating the law?

Heartbleed is not a virus, but a software defect.[1]  It affects OpenSSL software which is used for encryption.[2]  OpenSSL is an open source software, meaning anyone can access the code, review it, and make changes to it.[3]  So what happens when Heartbleed is exploited?  Essentially it allows a hacker to retrieve memory which may contain usernames, passwords, keys, credit card numbers, social security numbers or other useful information.[4]  Each time the hacker access the system it he or she can gain access to more information.[5]  This is a serious problem as many people now do much of their banking and shopping on the internet.

 So before you change your passwords it might be a good idea to check to see if the website is still vulnerable.  If the website hasn’t patched its software then changing your password will do you no good.  McAfee released a free tool to help consumers determine if the website they visit is safe or not.[6]  That tool can be accessed at http://tif.mcafee.com/heartbleedtest. 

 STOP!  Before you click that link and test a website you have in mind, you should know that some technology experts are worried that doing so could break the law.[7]  These naysayers cite the United States Computer Fraud and Abuse Act.[8]  Software that checks a website to see if it has patched the Heartbleed actually accesses that sites security certificate, which may or may not fall under the purview of 18 U.S.C. §1030.  Since everyone across the globe is experiencing the effects of Heartbleed, and it may take some time before all websites have patched their software[9], I doubt the U.S. government would prosecute a citizen simply seeking to ensure their person information remained protected or taking any proactive steps to do so.

As always, safety first.