Richmond Journal of Law and Technology

By Walker Upchurch

 

The United States is embroiled in an opioid crisis, and throughout the Covid-19 pandemic, it has only gotten worse. According to the Center for Disease Control, during a 12-month long study, the provisional data showed that during COVID, opioid-related deaths rose by over 28%.^[1] The states that have been hit the hardest are Louisiana, Mississippi, Tennessee, Kentucky, West Virginia, and Vermont.^[2] Likewise, only South Dakota, New Hampshire, New Jersey, and Delaware were the states that had a lower opioid-related 12-month death count.^[3] In response to this study, USA Today spoke with Dr. Paul Christo, an associate professor of anesthesiology and critical care at Johns Hopkins University School of Medicine, who stated: “Two forces here are the negative economic impact of the pandemic as well as the emotional impact… That led to a lot of people to use drugs … to cope.”^[4] Thus, the downturn in the economy naturally led individuals to illegal street drugs such as heroin and fentanyl.^[5] Fentanyl had initially been developed as a pain management drug to treat terrible diseases such as cancer and help patients after open surgery.^[6] Its effectiveness in pain management has been well noted, and it has since developed a reputation as an additive to other street drugs for a powerful impact. Currently, the United States has seized so much illegal fentanyl on the street that it would be enough to deliver lethal doses to every Citizen, according to the DEA Administrator Anne Milgram.^[7]

To combat the rising opioid problem, the state of California had attempted to hold the pharmaceutical companies accountable in court as they brought suit against a plethora of drug companies citing a public nuisance in their case California V. Purdue Pharma L.P. e.t al.^[8] The state of California argued that the pharmaceutical industry had advertised opioid drugs, which subsequently led to pain pills overtaking their communities.^[9] The state of California was seeking $50,000,000,000 in this lawsuit against numerous pharmaceutical companies such as Johnson & Johnson, Purdue Pharma, and Actavis.^[10] However, for the first time in more than 3,300 lawsuits, the pharmaceutical industry won.^[11] Judge Peter Wilson stated that “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need.^[12] Additionally, he stated that “even if the drug makers’ marketing contained any misleading statements, the counties put forward no evidence to show that their promotional activities caused any medically inappropriate prescriptions to be written. The Court went on to say that the Plaintiff failed to prove an actionable public nuisance claim against the defendants.^[13] Likewise, they found that none of the marketing materials’ identified statements were false or misleading. ^[14]

This is an interesting case as it could foreseeably embolden the pharmaceutical industry in their lawsuits and advertising of opioid drugs as their actions did not rise to or constitute an actionable public nuisance. Likewise, it may make state governments warrier in investing the time, resources, and energy required to take on such a massive case. While it is by no means a get out of jail free for the pharmaceutical industry as Johnson & Johnson, McKesson, Cardinal Health Inc., and AmerisourceBergen will all be paying out up to $26 Billion to settle other cases, it does create the precedent that the pharmaceutical companies will continue to rely on going forward.^[15]

 

^[1] Ahmad FB, Rossen LM, & Sutton P., Provisional drug overdose death counts, NATIONAL CENTER FOR HEALTH STATISTICS, CDC (2021), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm.

^[2] Id.

^[3] Id.

^[4] Ken Alltucker Drug overdoses surged amid COVID lockdowns; more deaths in one year than ever before, USA TODAY (Nov. 17, 2021), https://www.usatoday.com/story/news/health/2021/11/17/overdose-deaths-soar-record-level-amid-pandemic-rise-fentanyl/8629870002.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] People v. Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730 (Nov. 1. 2021).

^[9] Nate Raymond, California judge delivers drugmakers 1st trial win in opioid litigation, REUTERS (Nov. 2, 2021), https://www.reuters.com/world/us/california-judge-rules-drugmakers-major-opioid-lawsuit-2021-11-02.

^[10] Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730.

^[11] Raymond, supra note 9.

^[12] Id.

^[13] Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730.

^[14] Id.

^[15] Raymond, supra note 9.

Image Source: https://unsplash.com/s/photos/pill

By Drew Apperson

 

On June 14, 2021, the Commonwealth of Virginia’s State Corporation Commission (“SCC”) approved Phase IB of Dominion Energy’s (also known as Virginia Electric and Power Company, or VEPCO) plan for electric distribution grid transformation projects pursuant to § 56-585.1 A 6 of the Code of Virginia.[1] This is but one part of a grid overhaul plan by the Virginia-based utility company.[2] “The electric grid was originally designed for one-way flow of electricity to meet customers’ demand.”[3] In the traditional electric grid system, electricity is produced by a generator, such as a hydroelectric dam or nuclear power plant. Electricity then feeds through the transmission system to the distribution system, and finally, is made available to the end-use customer – the outlets in your home.[4] On the other hand, “smart grid” designs, like that of Dominion’s being considered by the SCC, allow for bidirectional electrical flows and alternative routes for the electricity to reach the consumers. [5]

With the growing number of not just personal electric cars, trucks, and SUVs, but also commercial fleets of electric vehicles, traditional grids are inadequate to utilize what are essentially drivable batteries. For example, when an area loses power from a downed electrical line during a storm, anything down-stream of the issue is isolated from the generator and is thus without power – a so called “voltage island.”[6] In a two-way electric grid, however, the batteries powering electric vehicles can serve as the generators. An electric vehicle can plug into the grid and provide temporary power to the isolated area until the electrical lines are repaired. [7]

Another added benefit of smart grids comes when there is no power outage. Transmitting electricity hundreds of miles from the generator incurs noticeable loss and loses efficiency as the distance to the consumer increases.[8] To overcome the issue in a traditional grid could require monumental investments, such as replacing the typical steel-aluminum construction of common transmission lines with precious metals, such as silver, gold, or copper.[9] However, plugging an electric vehicle back into the grid has the potential to reduce this inefficiency because the electrical source is closer to the end-user. Furthermore, this puts less demand on the infrastructure, especially during times of high overall power consumption.[10]

Understandably, consumers may not want to exploit their car’s battery packs given that discharges directly lower the effective life of a battery. Dominion is also in the process of addressing this with a solution that has its own independent benefits. “In 2019, [Dominion] announced an innovative electric school bus initiative to replace diesel school buses with electric school buses, and then leverage the batteries using vehicle-to-grid technology. Fifty electric school buses have been delivered to school districts throughout Virginia. The Company plan[ned] to begin evaluation and vehicle-to-grid testing this year.”[11]

Virginia’s “General Assembly accelerated its transition to a cleaner energy future with the passage of the VCEA in 2020. The VCEA calls for the development of a significant amounts . . . of small-scale [generation] resources that will interconnect to the distribution grid.”[12] The implementation of Dominion’s grid transformation plan is well underway to meet these developments, and Virginia’s SCC continues to keep a watchful eye over it.[13]

 

[1] Petition of Virginia Electric and Power Company, For approval of a plan for electric distribution grid transformation projects pursuant to § 56-585.1 A 6 of the Code of Virginia, and for approval of an addition to the terms and conditions applicable to electric service, Case No. PUR-2019-00154, Doc. Con. Cen. No. 218630055, Order Granting Motion (June 14, 2020), https://scc.virginia.gov/docketsearch/DOCS/532v01!.PDF.

[2] Grid Transformation Plan Phase II, Dominion Energy, Inc. (last visited Nov. 9, 2021), https://cdn-dominionenergy-prd-001.azureedge.net/-/media/pdfs/global/projects-and-facilities/electric-projects/grid/gt-plan-phase-ii.pdf?la=en&rev=0cd40dd1b5674ebf813de4f10d5e440d.

[3] Petition of Virginia Electric and Power Company, For approval of a plan for electric distribution grid transformation projects pursuant to § 56-585.1 A 6 of the Code of Virginia, Part 1 of 7 at 4, Case No. PUR-2021-00127, Doc. Con. Cen. No. 210640058, (June 21, 2021), https://scc.virginia.gov/docketsearch/DOCS/53v901!.PDF [hereinafter 2021 Petition].

[4] See id.

[5] Id at 35.

[6] Id at 22.

[7] See What is the Smart Grid, Department of Energy Office of Electricity (last visited Nov. 9, 2021), https://www.smartgrid.gov/the_smart_grid/index.html (defining “smart grids”).

[8] Jacques Schonek, How Big are Power Line Losses, Schneider Electric (Mar. 25, 2013), https://blog.se.com/energy-management-energy-efficiency/2013/03/25/how-big-are-power-line-losses/.

[9] See Kashyap Vyas, Electrical Energy and the Importance of Conductors, Interesting Engineering (Dec. 7, 2019), https://interestingengineering.com/electrical-energy-and-the-importance-of-conductors; Jennifer Sutton, How Do Electricity Transmission Lines Withstand a Lifetime of Exposure to the Elements?, MIT School of Engineering (Apr. 26, 2010), https://engineering.mit.edu/engage/ask-an-engineer/how-do-electricity-transmission-lines-withstand-a-lifetime-of-exposure-to-the-elements/.

[10] 2021 Petition, supra note 3, at 9–10.

[11] Id at 37.

[12] Id at 6.

[13] See Case Summary for Case Number: PUR-2021-00127, Virginia State Corporation Commission: Docket Search (last visited Nov. 10, 2021), https://www.scc.virginia.gov/docketsearch#caseDetails/142210.

Image Source: https://search.creativecommons.org/photos/9b52b449-2ea2-47d7-839f-96d9f8a61147

By Sebastian Estrada

 

Cryptocurrency has undoubtedly taken our world by storm. Notwithstanding its relatively new existence, “crypto” has surpassed a mere trend or fad. Many of us remember when Bitcoin was simply an urban legend, known as a “get rich quick” investment for a lucky few. Today, however, crypto is equivalent to any conventional currency, if not viewed as a more valuable alternative. Consequently, public interest in cryptocurrencies like Bitcoin or Ethereum continuously increases as major industries endeavor capitalize off the new tech.[1]

For years countries have attempted to regulate and mitigate cryptocurrencies. Nevertheless, one intrinsic feature of this new monetary power—often touted as its main benefit—is its regulatory impermeability.[2] In essence, blockchain technology has provided “the means to cut out the middlemen (banks and governments) in peer-to peer transactions.”[3] As such, cryptocurrencies have attracted intense attention from international coalitions, central banks, and economic regulators at the transnational level.[4] Today, the global legal and regulatory response could be characterized as fragmented with a patchwork of uncoordinated initiatives arising in varying jurisdictions.[5] In the US and Asian markets, legislative action is continuously developed. The EU, Australia, and Canada have shown potential to act as gateways between conventional currencies and cryptocurrencies, such as exchange platforms, to be declared subject to anti-money laundering and counter-terrorist financing requirements.[6] Other countries and regions of the world, however, either prohibit or heavily restrict cryptocurrency altogether.[7] The question becomes: how has cryptocurrency affected international trade and the globalized economy, and how has international law accounted for these changes?

The vague and muddled crypto regulations, policies, and enforcement jurisdictions throughout the world have forced governments to find ways to cooperate.[8] Specifically, world governments have been forced to establish mutually agreeable regulations that govern the use of cryptocurrency and give international jurisdiction for illicit activities.[9] For instance, the U.S., Australia, Canada, the United Kingdom, and the Netherlands, have come together to form the Joint Chiefs of Global Tax Enforcement.[10] Through this coalition, countries can share information to reduce the likelihood of organized criminals and tax evaders using new technology to manipulate the system and exploit vulnerable persons for their illegal gain.[11] Likewise, the European Parliament established the GDPR in 2018. It set forth regulations which addressed individual privacy concerns, and repealed and replaced the European Commission’s Data Protection Directive.[12] Under this framework, data-processors within blockchain related service providers would be affected by regulations due to the transnational nature of blockchains and cryptocurrency engagements.[13] However, it soon became clear that cryptocurrency was not compatible with the GDPR. Specifically, because decentralized blockchains do not rely on a central authority to process data, their third-party nature prevents cryptocurrencies from adhering to GDPR regulations.[14]

Cryptocurrencies non-compliance with the GDPR is only one of many obstacles faced by international regulation. Other obstacles stem from differing ideological principles regarding individual rights to privacy. The EU places emphasis on the individual rights to privacy because it is considered a fundamental right;[15] while the U.S., on the other hand, looks at personal data as property of the entity holding said data—making data transfer between different countries and their entities much more complex.[16] Accordingly, the inherent issues associated with cryptocurrency only intensify the need for international cohesion. Although the benefits associated with cryptocurrency may be significant, the downsides of crypto are likewise vast. These issues include using cryptocurrency to (i) illicit crimes, such as financing terrorism, and money laundering; (2) promote tax evasion; (iii) engage in market manipulation through fraud; etc. [17]

It is clear that the presence cryptocurrency is only continuing to expand. More and more cryptocurrencies are being generated, and more trading platforms are allowing for everyday investing into the crypto market. Consequently, the need for international collaboration on regulatory measures will only intensify. Cryptocurrency transcends boarders, and domestic regulators. Therefore, countries must look beyond their domestic laws and their varying ideological differences on data rights. These steps are crucial in order to catalyze a global coordination and harmonization of uniformed regulations in response to the proliferate expansion of cryptocurrency.

 

[1] Freeman Law, https://freemanlaw.com/legal-issues-surrounding-cryptocurrency (last visited Nov. 12, 2021).

[2] Michael Miglio, The Current And Future Implications Of Cryptocurrency For The Legal Industry, Forbes, (last updated Apr. 8, 2019), https://www.forbes.com/sites/theyec/2019/04/08/the-current-and-future-implications-of-cryptocurrency-for-the-legal-industry/?sh=22a9db4368f9.

[3] Id.

[4] Regulation of cryptocurrencies, Norton Rose Fulbright, https://www.nortonrosefulbright.com/en/knowledge/publications/b0264cac/a-global-legal-and-regulatory-guide-to-cryptocurrencies (last visited Nov. 12, 2021).

[5] Id.

[6] Id.

[7] Id.

[8] D. T. Morton, The Future of Cryptocurrency: An Unregulated Instrument in an Increasingly Regulated Clobal Economy, 16 Loy. U. Chi. Int’l L. Rev. 129, 131 (2020).

[9] Id. at 131.

[10] Id. at 141.

[11] Id. at 142.

[12] Id. at 139.

[13] Id.

[14] Id. at 140.

[15] Id. at 142.

[16] Id.

[17] Id. at 143.

By Jeffrey Phaup

 

In a scramble to survive the COVID-19 pandemic companies around the world embraced remote working, but this new arrangement blurred lines between working and personal hours.[1] However, newly remote employees suffered ‘availability creep’, a condition where workers feel obligated to be available at all times to respond to work requests from their employers.[2]

To promote a healthy work-life balance for workers and to prevent companies from overworking employees Portugal has passed a set of laws under which employers could face penalties for contacting workers outside of office hours.[3]

Under these laws, which apply to any company with 10 or more employees, an employer will face fines for contacting workers beyond their normal working hours.[4] Companies will also have to bear certain expenses incurred due to remote working, such as an employee’s increased internet and electricity bills. Employers cannot monitor their employees while they work remotely but that superiors and employees should meet in person every two months to avoid isolation.[5] Additionally, in jobs where remote work is possible, parents may choose to work remotely until their child is eight years old without making prior arrangements.[6]

Ana Mendes Godinho, Portugal’s minister of labor, said that this is a “crucial moment” to establish new rules and that the pandemic “accelerated the need to regulate what needs to be regulated.”[7] “The pandemic has accelerated the need to regulate what needs to be regulated,” she said. “Telework can be a ‘game changer’ if we profit from the advantages and reduce the disadvantages”.[8] Additionally, Minister Godinho asserted that building a healthy remote working culture could also bring other benefits to Portugal in the form of foreign remote workers who are seeking a change of scenery, “We consider Portugal one of the best places in the world for these digital nomads and remote workers to choose to live in, we want to attract them to Portugal.”[9]

 

[1] See generally Suzanne Elliott, Could it soon become illegal in the UK for your boss to contact you outside work hours?, ITV News (Nov. 12, 2021), https://www.itv.com/news/2021-11-12/could-your-boss-be-banned-from-contacting-you-outside-work-hours [https://perma.cc/82PY-ZKT2].

[2] Id.

[3] See generally Maite Fernández Simon, Portugal adopts strict pandemic-era labor protections for remote work, Washington Post (Nov. 11, 2021), https://www.washingtonpost.com/world/2021/11/11/portugal-working-from-home-law/ [https://perma.cc/3VB8-9N4V].

[4] Id.

[5] Id.

[6] Id.

[7] See generally Tom Bateman, Portugal makes it illegal for your boss to text you after work in ‘game changer’ remote work law, euronews (Nov. 11, 2021), https://www.euronews.com/next/2021/11/08/portugal-makes-it-illegal-for-your-boss-to-text-you-after-work [https://perma.cc/N9MH-R8HD].

[8] Id.

[9] Id.

By Grayson Walloga

 

Virtual actors are fully reconstructed digital copies of actors.[1] This technology is not at all new, as many films in the past used computer-generated imagery (CGI) as makeup or to create extras for background shots.[2] Virtual actors are becoming more prominently used in Hollywood blockbusters. All of the major films in the last decade have made extensive use of CGI, be it for huge action set pieces or on actors’ physical appearances.[3] Movies today rely more on CGI for the appearances of characters instead of only using practical effects. Of course, prosthetics still have a role in current films, but are generally combined with CGI.[4] More recently, CGI has been effectively utilized to de-age actors for specific roles or scenes including Robert Downey Jr., Johnny Depp, and Michael Douglas.[5]

While those special effects may cost a pretty penny, it should be noted that some of the biggest movies of the 2010s have been ones that employed both fully CGI characters and de-aging technology.[6] Avengers: Infinity War and Avengers: Endgame (two of the top three grossing films of the 2010s) both featured a litany of digitally created characters including Thanos, Rocket Raccoon, the many aliens of the Black Order, and many more.[7] Chris Evans’s Steve Rogers would also be digitally aged up to look how one would have expected an aged Chris Evans to look like.[8] Aging up an actor is a far more complicated process than de-aging due to the lack of reference material.[9] Full prosthetics were considered but ultimately rejected because of how favorable the digital compositing turned out.[10] Prosthetics were only used specifically for the neck region because they outshined the digital effects.[11]

A modern Hollywood blockbuster puts hundreds of millions of dollars into special effects alone.[12] Movies like Avengers: Endgame or Avatar owed their success in large part to their enormous special effects budgets.[13] Sticking with the Marvel movies, the CGI effects used in Avengers: Endgame cost around the $350 million mark.[14] The investment paid off as the film would gross $2.18 billion worldwide. This might trick movie studios into believing that copious amounts of CGI are needed to make a movie successful, however, the CGI-less Gone with the Wind still remains the highest gross film when adjusted for inflation at an astounding $3.7 billion.[15]

It was not the CGI alone that made the Marvel movies successful. Disney understood that the actors who stayed with the franchise from its humble beginnings were critical to this cinematic universe’s success which is evidenced by how much they paid the most popular characters.[16] Chris Hemsworth got $15 million for his role as Thor in the most recent Avengers movie, a colossal increase from the 150K he received for his first appearance as the character in 2011.[17] Robert Downey Jr., by far the most paid actor in any of the Marvel movies, received $75 million for his Iron man performance in Avengers: Endgame.[18] And for his first appearance as the character? Only $2.5 million.[19] Did Disney really expect to have to see such a drastic pay change for its main actors? It is certainly expected that as a character gets more popular, the actor who portrays him would become more valuable. The studio needs the character to be popular otherwise the films will not be as financially profitable. This creates a sort of adverse relationship between the studio and the actor over the character. They can both succeed and make decent money by working together, but that does not mean alternatives should be cast aside.

Digital actors allow movie studios to cut out some of the cost that would go into paying a popular and demanding actor. There would be a substantial cost upfront, and as discussed above those effects are not cheap, but in the long run studios would see a lucrative payoff if they were interested in creating a cinematic universe like the Marvel Cinematic Universe. New talent is hard to discover, so why not just create the new talent yourself? Or in the case of tragedy, such as the untimely death of Paul Walker, a digital actor can be used to substitute for the real deal.[20] Concerned your outspoken actor is going to say the wrong thing and need to be replaced? Should have digitally created the character instead. Obviously, there would be major legal problems for the studio if it simply made a copy of someone and did as it pleased. However, even if the studio claimed to have created a character from scratch, that digital actor may still look similar enough to an actual person to raise questions about its origins.[21]

20 years ago, Square Pictures made a little movie from 2001 called Final Fantasy: The Spirits Within. It was an entirely CGI film, stylized to be photo-realistic, and pushed the boundaries of digital effects for the time.[22] The film stared a digitally created Aki Ross who was planned to appear in other CGI films by Square Pictures.[23] Director Hironobu Sakaguchi had this to say about the film: “The vision I have is to take the characters that we have in this movie and basically help them be viewed as real actors and actresses. And so, we sort of become a talent agency.” The film would ultimately be remembered as a commercial disappointment and the plans to have these digital actors appear in other movies was never pursued.[24] Technology has improved greatly in the past 20 years. Maybe it is still too early for Sakauchi’s vision to be realized. Maybe it is just around the corner.

 

[1] Ricky Miller, THE VIRTUAL ACTOR: HOLLYWOOD’S NEW LEADING MAN, Control Forever (Dec. 14, 2017), https://controlforever.com/read/rise-of-virtual-actors/.

[2] Id.

[3] See Computer-Generated Imagery, ScienceDaily, https://www.sciencedaily.com/terms/computer-generated_imagery.htm (last visited Nov. 11, 2021).

[4] A GUIDE TO PROSTHETICS IN FILM, Iver Make-Up Academy (May 12, 2018), https://www.iveracademy.co.uk/blog/2018/a-guide-to-prosthetics-in-film/.

[5] Brian Welk, 22 Actors Digitally De-Aged on Film, From Brad Pitt to Robert De Niro (Photos), The Wrap (Oct. 8, 2019), https://www.thewrap.com/actors-who-have-been-de-aged-on-film-from-brad-pitt-to-robert-de-niro-photos/.

[6] See generally pattap-21567, The 50 Highest Grossing Movies of the 2010s (Worldwide), IMDb (Apr. 11, 2018), https://www.imdb.com/list/ls026040906/ (last updated June 2021).

[7] Avengers: Infinity War (2018) Full Cast & Crew, IMDb, https://www.imdb.com/title/tt4154756/fullcredits/?ref_=tt_ql_cl (last visited Nov. 11, 2021); see also Avengers: Endgame (2019) Full Cast and Crew, IMDb, https://www.imdb.com/title/tt4154796/fullcredits/?ref_=tt_ql_cl (last visited Nov. 11, 2021).

[8] Daniel, HOW LOLA VFX TURNED CHRIS EVANS INTO A 119-YEAR-OLD CAPTAIN AMERICA, Bold Entrance (Sept. 9, 2019), https://boldentrance.com/lola-vfx-chris-evans-old-captain-america/.

[9] Id.

[10] Id.

[11] Id.

[12] How much are visual effects for Hollywood movies (and why)?, Nuts Computer Graphics (Jan. 24, 2019), https://www.nutscomputergraphics.com/en/how-much-are-visual-effects-for-hollywood-movies-and-why/.

[13] Id.

[14] Tina Lee, Breakthrough (and Expensive!) CGI Scenes in MCU Movies, Academy of Animated Art, https://academyofanimatedart.com/breakthrough-and-expensive-cgi-scenes-in-mcu-movies/ (last updated May, 8 2021).

[15] Jake Lucas, The Top 20 Box Office Earners Ever: Adjusted for Inflation, SELFi (May 7, 2021), https://selfi.com/the-top-20-box-office-earners-ever-adjusted-for-inflation/.

[16] Jason Guerrasio, How Much Disney Paid Scarlett Johansson Black Widow Other Marvel Stars, Insider (Aug 1, 2021), https://www.insider.com/how-much-disney-paid-scarlett-johansson-black-widow-other-marvel-stars#-1.

[17] Id.

[18] Id.

[19] Id.

[20] Double the Fun: How Digital Actors Are Changing Entertainment Industry, IPQuorum (Jan. 20, 2020), https://ipquorum.ru/en/ip-blog-en/double-the-fun-how-digital-actors-are-changing-entertainment-industry/.

[21] See generally Steinberg v. Columbia Pictures Industries, Inc. 663 F. Supp. 706 (S.D.N.Y. 1987).

[22] John Edgar Park, Behind the Scenes on ‘Final Fantasy: The Spirits Within’, Animation World Network (Sept. 10, 2001), https://www.awn.com/animationworld/behind-scenes-final-fantasy-spirits-within.

[23] Rick Lyman, Movie Stars Fear Inroads By Upstart Digital Actors, N.Y. Times (July 8, 2001), https://www.nytimes.com/2001/07/08/us/movie-stars-fear-inroads-by-upstart-digital-actors.html.

[24] Volodymyr Bilyk, Tragedy of “Final Fantasy: The Spirits Within”, Medium (Oct. 4, 2017), https://volodymyrbilyk.medium.com/tragedy-of-final-fantasy-the-spirits-within-cfe92b6a7903.

Image Source: https://www.wired.com/2013/03/luxion-keyshot

By Sebastian Estrada

 

For years, many aspects of our society, economy, and legal industries have been in limbo. A limbo driven by an exodus from our antiquated ways of buying, learning, working, and interacting. Prior to the “lockdown,” many aspects of outdated industry were dying but not yet dead. One need only think about in-person retail shopping as an example: prior to COVID, the in-store and in-person retail experience was undoubtedly waning. Major retail stores such as Macy’s were experiencing the wrath of competitive online consumerism. The effects from COVID lockdowns may have been the final crippling blow to such traditional norms. But this shift has been felt across the board in other fundamentally important industries. The realm of finance and investment is no exception. COVID induced changes were felt from the “average Joe” retail investor, all the way to the regulatory entities of the economy.

At the retail investor level, an unprecedent number of investors joined the market during the pandemic.[1] Charles Schwab, a major investment platform, reported that 15% of its current investors entered the market in 2020 alone.[2] Pandemic related ripples similarly echoed through the industry and reached the Financial Industry Regulatory Authority (“FINRA”). FINRA is the largest self-regulatory organization for securities firms doing business in the US.[3] Its rules govern over 3,700 brokerage firms and almost 630,000 registered securities representatives.[4] Significantly, Section 15A of the Securities Exchange Act of 1934 gave FINRA the authority to discipline its firm members and certain individuals for violations of securities laws and rules administered by FINRA.[5] In other words, FINRA’s creation and enforcement of rules and regulations are backed by federal law.[6]

While COVID triggered tectonic-like shifts throughout the financial world, the regulatory mechanisms that oversaw it were likewise forced to change. According to FINRA’s webpage, “[i]n response to the coronavirus pandemic, member firms have made unprecedented changes to their business operations in order to prioritize the health and safety of firm personnel and investors, while maintaining the public’s access to capital markets.”[7] As a result, FINRA modified various traditional regulations, to account for the new virtual / at-home lifestyle.[8] Regulatory Notice 20-16, for instance, implemented monitoring practices for firms to incorporate into the remote work environment.[9] The notice focused on confidentiality and cybersecurity in order to increase fraud-prevention measures.[10] Relatedly, FINRA filed a proposed rule change with the SEC to adopt remote inspections.[11] It effectuated remote supervisions and internal inspections of firms, and eliminated on-site visits to offices or locations.[12]

Do these rule changes signify a needed update to the execution of financial regulation and enforcement? The answer is still to be determined. However, it undisputed that much of the regulatory and supervisory mechanisms used in our economy have necessarily increased their cybersecurity protection measures. In today’s world, where news of a massive hack is a normalcy, maybe such changes were past due. If our country has finally taken on the challenge of updating laws and regulations to align with our technologically focused society, the real question should be how to continue this modernization.

 

[1] Maggie Fitzgerald, A large chunk of the retail investing crowd started during the pandemic, Schwab survey shows, CNBC, https://www.cnbc.com/2021/04/08/a-large-chunk-of-the-retail-investing-crowd-got-their-start-during-the-pandemic-schwab-survey-shows.html (last updated Aug. 17, 2021).

[2] Id.

[3] Troy Segal, FINRA vs. the SEC: What’s the Difference?, Investopedia, https://www.investopedia.com/ask/answers/how-does-finra-differ-sec/ (last updated May 6, 2020).

[4] Id.

[5] Id.

[6] Id.

[7] FINRA Seeks Comment on Lessons From the COVID-19 Pandemic, FINRA, https://www.finra.org/rules-guidance/notices/20-42.

[8] Id.

[9] FNRA Shares Practices Implemented by Firms to Transition to, and Supervise in, a Remote Work Environment During the COVID-19 Pandemic, FINRA, https://www.finra.org/rules-guidance/notices/20-16.

[10] Id.

[11] Proposed Rule Change to Adopt Temporary Supplementary Material .17 (Temporary Relief to Allow Remote Inspections for Calendar Year 2020 and Calendar Year 2021) under FINRA Rule 3110 (Supervision), FINRA, https://www.finra.org/rules-guidance/rule-filings/sr-finra-2020-040.

[12] Id.

By Michaela Fuller

 

The company formerly known as Facebook announced last month that it has rebranded as “Meta”—a shorthand representative of the company’s venture into the still-developing virtual reality world called the Metaverse.[1] The company isn’t the first big brand to dip their toes into the VR game, but Facebook’s switch to Meta signifies to many that a big change in our digital society is approaching quicker than once thought, leaving other companies rushing to get an early in.[2]

Put simply, Metaverse is a term that describes “the concept of a future iteration of the internet, made up of shared, 3D virtual spaces linked into a perceived virtual universe.”[3] Described as the “ultimate culmination of virtual reality and augmented reality,”[4] the Metaverse is our society’s actual advancement toward science fiction worlds like those from Ready Player One, Tron, or even The Matrix.[5]

Meta pronounced its vision for the Metaverse as “a hybrid of today’s online social experiences, sometimes expanded into three dimensions or projected into the physical world.”[6] The company claims its mission is “to bring the metaverse to life and help people connect, find communities and grow businesses.”[7] Yet however simple the goal may be, the legal implications embedded in the journey to the Metaverse are as enumerable as they are complex.

To many, one of the most glaring issues presented by the creation of Meta as a company is a question of antitrust policy. First Facebook acquires Instagram, WhatsApp, and several other smaller companies, and now Facebook establishes itself as a subsidiary of the new company Meta. Such “company-shopping” has been warned against by the Federal Trade Commission, [8] yet the creation of the entirely new digital world that is the Metaverse will likely open the doors for other companies to follow in Meta’s footsteps in order to get a piece of the (what predicts to be a very profitable[9]) pie.

Of course, topics like data protection and user privacy are key issues to be discussed and regulated with the creation of any new technology, and the Metaverse is certainly no exception.[10] Such an unprecedented development is “practically begging to become a staging ground for data privacy attacks” that companies like Meta will have to be able to protect its users against before expecting a successful launch.[11]

The individualized structure of the Metaverse itself will eventually bring its own set of legal challenges, now likely excited by the creation of Meta. These issues include the “collaboration and interoperability among different metaverse creators,” and technology usage rights and agreements between companies in the Metaverse.[12] Of course, these issues will depend on how companies like Meta will choose to develop the virtual world and its accompanying real-world devices.

The shift to the Metaverse will also bring a slew of intellectual property challenges like “monitoring use of a brand’s trademarks, misappropriation of goods or services, price erosion, and counterfeit goods,” to name a few.[13] The question of authorship with respect to copyright ownership may be also challenged in the Metaverse with the possibility of AI and entirely virtual creators.[14] Issues of brand protection and ownership interests in an entirely virtual world are novel ideas under our current IP regime and are likely going to have to be subject to equally new regulation.

Though the journey to the Metaverse is coming to head quicker than one might have imagined, we still have a way to go (five to ten years, accordingly to Meta CEO Mark Zuckerberg[15]) before reaching a Ready Player One-style society. In the meantime, lawyers in the areas of antitrust, data protection, technology, and intellectual property—just to name a few—likely have a busy few years ahead.

 

[1]Introducing Meta: A Social Technology Company, Meta (Oct. 28, 2021), https://about.fb.com/news/2021/10/facebook-company-is-now-meta/.

[2] Michael J. Harris et al., The Move to the Metaverse and Beyond Series: Basic Trademark and Branding Considerations, JD Supra (Nov. 2, 2021), https://www.jdsupra.com/legalnews/the-move-to-the-metaverse-and-beyond-7306577/.

[3] Rahul Kapoor & Shokoh Yaghoubi, A Brief Overview Of The Metaverse And The Legal Challenges It Will Represent, Mondaq (Nov. 3, 2021), https://www.mondaq.com/unitedstates/fin-tech/1127424/a-brief-overview-of-the-metaverse-and-the-legal-challenges-it-will-present-.

[4] Id.

[5] Doug Antin, 10 Sci-Fi Stories That Inspire Pioneers of the Metaverse, Medium (June 19, 2020), https://medium.com/predict/10-sci-fi-stories-that-inspire-pioneers-of-the-metaverse-66fd811be218.

[6] Introducing Meta, supra note 1.

[7] Id.

[8] Hugo Guzman, Silicon Legal: Facebook’s Plunge Into ‘Metaverse’ Fuels Legal Questions, Legal Tech News (Nov. 2, 2021, 10:00 AM), https://www.law.com/legaltechnews/2021/11/02/silicon-legal-facebooks-plunge-into-metaverse-fuels-legal-questions/.

[9] See, e.g., Aaron Levitt, 10 Metaverse Stocks for the Future of Technology, Kiplinger (Nov. 8, 2021), https://www.kiplinger.com/investing/stocks/603552/7-metaverse-stocks-for-the-future-of-technology.

[10] Id.

[11] Id.

[12] Kapoor & Yaghoubi, supra note 3.

[13] Harris et al., supra note 2.

[14] Kapoor & Yaghoubi, supra note 3.

[15] See Veronica Combs, Meta CEO Zuckerberg Predicts the Metaverse Will Be Mainstream in 5-10 Years, TechRepublic (Oct. 28, 2021, 2:00 PM), https://www.techrepublic.com/article/meta-ceo-zuckerberg-predicts-the-metaverse-will-be-mainstream-in-5-10-years/.

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By Ben L. Culpepper

 

As our society becomes more intimate with our cell phones, the law is beginning to extend certain privacies to the cell phone that are analogous to the home.[1] Riley v. California explores this idea in detail where the Supreme Court held that our phones are almost an extension of our modern human anatomy.[2] Big tech companies, such as YouTube, Facebook, and Google who accumulate personal and private information from their users’ cell phones are feeling a tension with new privacy norms and emerging laws surrounding information stored on our phones.[3]

California has enacted a sweeping privacy law, California’s Consumer Privacy Act, which allows for users to opt out of and completely delete the personal data big tech companies store and sell to third parties.[4] Furthermore, along the same vein of supporting user privacy, California has included a private cause of action for users against tech companies who breach users’ rights.[5] Big tech, which lobbied aggressively against the legislation, is trying to make it more difficult for users to so easily delete the accumulated personal data.[6] For example: although people may have access to a portal where they can delete the accumulated data, tech companies are making it difficult to find the portal by burying it underneath mountains of information.[7]

In an effort to prevent the spread of California’s user-friendly privacy laws, big tech has responded by lobbying in other states for far more relaxed privacy laws.[8] Many states’ efforts to enact their own user-friendly privacy laws have been defeated by big tech lobbying.[9] States consider two types of privacy laws generally: an opt-in approach and an opt-out approach.[10] The opt-in approach is user friendly as it would create a default setting where big tech cannot sell users’ information, unless users opt in and allow big tech to sell such private information.[11] The opt-out approach is the converse of this. The default setting is that big tech has the right to collect and sell users’ information, unless the user opts out.[12] A private right of action in the courts may follow a breach by big tech in either model, but it does not necessarily follow.

At least two states, Connecticut and Oklahoma, have attempted to enact legislation following the opt-in approach which also provides a private cause of action.[13] These user-friendly bills are examples of legislation that faced immense pushback from big tech lobbying and ultimately failed.[14] Instead of adopting a user-friendly bill, Connecticut’s second attempt at a privacy bill followed the Virginia model, which is the friendliest to big tech.[15] Big tech is sending lobbyists to the states and pushing for the Virginia model in place of these user-friendly attempts at protecting user privacy.[16]

The Virginia model, a business-first idea, follows a complicated opt-out approach and does not provide a private cause of action if big tech breaches privacy agreements.[17] Furthermore, Virginians can only access their collected information via a portal, and then they can decide to alter or delete any accumulated information.[18] The bill was hailed a success by big tech spokespersons from Microsoft and Amazon.[19] Virginia’s bill stands in direct contrast to California’s bill.

Faced with this dichotomy, states across the U.S. are continuously facing their own challenges in enacting privacy bills. A user-friendly approach, an opt-in model, is sure to face criticism and backlash from big tech lobbyists. Perhaps the federal government will pass its own sweeping legislature; whatever the outcome may be, in the meantime, big tech is sure to have its footprint on any final product coming from the legislatures.

 

[1] See Riley v. California, 573 U.S. 373, 386-387 (2014) (discussing how a warrantless search of an arrestee’s home is unlawful in the same way a warrantless search of an arrestee’s phone is unlawful).

[2] Id. at 385 (“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”).

[3] Sara Fischer, Big Tech at War Over Privacy, Axios (Jan. 28, 2021), https://www.axios.com/big-tech-at-war-over-privacy-cb9bc9a4-ca65-420c-b0ad-d307f341e7ad.html.

[4] Todd Feathers, Big Tech is Pushing States to Pass Privacy Laws, and Yes, You Should be Suspicious, The Markup (Apr. 15, 2021), https://themarkup.org/privacy/2021/04/15/big-tech-is-pushing-states-to-pass-privacy-laws-and-yes-you-should-be-suspicious.

[5] Id.

[6] Zack Whittaker, Here’s Where California Residents Can Stop Companies Selling Their Data, TechCrunch (Jan. 2, 2020), https://techcrunch.com/2020/01/02/california-privacy-opt-out-data/.

[7] Id.

[8] Feathers, supra note 4.

[9] See, e.g., Feathers, supra note 4 (“During the [Connecticut] bill’s public hearing last February, Duff said he looked out on a room ‘literally filled with every single lobbyist I’ve ever known in Hartford, hired by companies to defeat the bill.’ The legislation failed.”).

[10] Feathers, supra note 4.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Graham Moomaw, Virginia’s New Big Tech-Backed Data Privacy Law is the Nation’s Second. Critics Say it Doesn’t Go Far Enough, Va. Mercury (Mar. 30, 2021), https://www.virginiamercury.com/2021/03/30/virginias-new-big-tech-backed-data-privacy-law-is-the-nations-second-critics-say-it-doesnt-go-far-enough/.

[18] Id.

[19] Id. (reporting the approval comments from Microsoft and Amazon, both who lobbied intensely for this bill).

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