Richmond Journal of Law and Technology

By: Derek Reigle

Law enforcement and prosecutors have been collecting the American people’s genetic information. This isn’t a shock. Violent felons have been required to submit their DNA into a federal DNA database for the past several decades.[1] However, genetic collection by law enforcement is no longer being limited to just violent criminals. One of the more disturbing ways that law enforcement has been expanding their DNA harvesting is by merely asking individuals for their DNA. These requests for DNA have been made by law enforcement as a possible way to lower a criminal sentence in plea bargain misdemeanor cases, or to even dismiss simple traffic tickets.

For example, in Orange County, California a program known as “spit and acquit” has been ongoing for over a decade.[2] The program is simple. One must merely consent to giving the Orange County Attorney General their DNA and charges may be waived or significantly decreased.[3] In short, DNA has become a bargaining tool in prosecutorial negotiations with the accused.[4] In fact, in order to plead guilty to nearly any misdemeanor, you must now voluntary submit to giving your DNA to the Orange County District Attorney’s office.[5]  As a result of this program, Orange County prosecutors now have a colossal 150,000 person genetic database in their possession. [6]

In the past decade in Florida, and other states, another unusual genetic collection practice by law enforcement has emerged. This time it has been dubbed “stop and spit”.[7] An example of this would be the police stopping someone for speeding and during their traffic stop, they ask for a sample of saliva, and agree to let the person go if they provide it.[8]

Proponents of these genetic collection tactics argue that it deters crime because potential criminals are now aware that their genetic information is out there.[9] Critics of this system argue that the value is significantly outweighed by the scary precedent that is starts in regard to DNA collection and genetic surveillance.[10]

Obviously, this collection of DNA and genetic information by law enforcement and prosecutors has led to the storage of massive amounts of data.[11] These databases of genetic information have been coined “dragnets” because of the analogy of a net dragging through a pond, collecting anything that it can scoop up.[12] These unregulated and unusual genetic databases are not going away, and their practice is continuing.[13]

So how useful are these databases to catch criminals? Despite what supporters of genetic surveillance say, these databases are not particularly useful for investigating crime.[14] Furthermore, these databases open up a pandora’s box of troubling questions. Why exactly are police creating these massive genetic databases? Could these databases be used against innocent people? What is this mass genetic collection leading to? Ultimately, it seems clear that most people do not have any idea of the ramifications and information that they are giving away when providing a DNA sample.[15]  For these reasons, it seems wholly inappropriate for law enforcement to use their position of authority to collect and gather DNA.

[1] Bruce Budowle et.al, CODIS and PCR-Based Short Tandem Repeat Loci: Law Enforcement Tools, Promega (last visited Nov. 20, 2019), https://www.promega.com/~/media/files/resources/conference%20proceedings/ishi%2002/oral%20presentations/17.pdf..

[2] Andrea Roth, “Spit and Acquit”: Prosecutors As Surveillance Entrepreneurs, 107 Cal. L. Rev. 405 (2019).

[3] See id.

[4] See id.

[5] See id.

[6] See id.

[7] Lauren Kircher, DNA Dragnet: In Some Cities, Police Go From Stop-and-Frisk to Stop-and-Spit, ProPublica (Sep. 12, 2016), https://www.propublica.org/article/dna-dragnet-in-some-cities-police-go-from-stop-and-frisk-to-stop-and-spit.

[8] See id.

[9] See id.

[10] See Id.

[11] See Sheldon Krimsky & Tania Simoncelli, Genetic Justice, 28-46 (2011).

[12] See Id.

[13] See Id.

[14] See id.

[15] See generally Tania Lombrozo, Scientific Literacy: It’s Not (Just) About The Facts,NPR (Sep. 14, 2015), https://www.npr.org/sections/13.7/2015/09/14/440213603/scientific-literacy-it-s-not-just-about-the-facts

image source: https://www.aclu.org/blog/privacy-technology/medical-and-genetic-privacy/proposal-expand-mandatory-dna-collection

By: Anne Groves

Introduction

Customers of personal technology companies are specifically vulnerable to warranty breach, because these customers rely on the technology they purchase, yet they often don’t understand their rights pertaining to the warranties for their devices.[1] This has taken the form of class action lawsuits against personal technology companies.[2] Following is a brief overview of two noteworthy class action lawsuits against personal technology companies:

Close Call: Best Buy Class Action

Recently, Best Buy and Samsung narrowly dodged a Warranty Class Action Lawsuit. This class action lawsuit was filed by Tawana and Anthony Ware.[3] Plaintiffs claim that Best Buy and Samsung provided their customers with fraudulent warranties, and plaintiffs argued that the Geek Squad Protection Plan they purchased with their Samsung television qualifies as a warranty and consequently should be subject to the standards laid out in the Magnuson-Moss Warranty Act. Plaintiffs alleged that Best Buy failed to live up to their protection plan’s promises pertaining to how they compensated customers for issues with their device. [4] Best Buy and Samsung first endeavored to have the class action lawsuit dismissed by claiming the customers’ allegations were time-barred. However, Samsung and Best Buy withdrew this motion to dismiss in November 2018.[5] Then, in December 2018, Samsung and Best Buy filed a new motion to dismiss, and this motion was accepted by U.S. District Judge Sharon Coleman. Judge Coleman determined that the protection plan in question is listed separately on the Wares’ receipt, meaning it was a separately purchased item and not a warranty for the item.[6] If the protection plan was included in the price of the item, it would fit the statutory definition of a warranty and therefore would be subject to the standards of the Magnuson-Moss Warranty Act. Judge Coleman also explained that the Magnuson-Moss Act intends to cover the materials and workmanship of a product and does not refer to service plans that cover wear and tear or preventative maintenance.[7]

Active Class Action: Lawsuit Against Apple

Alleges apple violated consumer protection charge, namely by charging customers high prices for what they think to be new or “like new” devices and parts under their AppleCare/AppleCare+  programs. In reality, these replacements were actually inferior or used parts.[8] Effectively, plaintiffs are arguing that refurbished parts by definition does not comport with the wording of the AppleCare+ contract. The class action is saying Apple committed fraud by failing to uphold its promise of iPhone, iPad and iPhone replacements that are equivalent to new in both performance and reliability. The class action seeks damages for consumers who paid for AppleCare+ and the additional cost for a device replacement through AppleCare+.[9] On Sept. 17, 2019, U.S. District Judge William H. Orrick issued  an order certifying this class of consumers against Apple in this class action. In this same order, Judge Orrick also denied Apple’s motion for summary judgement.[10] The class is being represented by Hagens Berman. Hagens Berman is an incredibly successful consumer litigation law firms in the country. They have achieved over $260 billion in consumer settlements.[11]

The takeaway here? Read and understand the warranty before your next big technology purchase.

[1] See generally What You need to Know About Warranty Laws You Have More Rights Than You Might Think, Consumer Reports (May 2013), https://www.consumerreports.org/cro/magazine/2013/05/the-word-on-warranty-protection/index.htm.

[2] See generally id.

[3] See Emily Sorter, Best Buy Dodges ‘Geek Squad’ Warranty Class Action Lawsuit, Top Class Actions (Feb. 4, 2019),  https://topclassactions.com/lawsuit-settlements/consumer-products/electronics/877480-best-buy-dodges-geek-squad-warranty-class-action-lawsuit/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See AppleCare, Hagens Berman https://www.hbsslaw.com/cases/applecare.

[9] See Chance Miller, Judge Says Class-Action Suit Against Apple over Refurb AppleCare+ Replacements Can Continue, 9TO5Mac (Sept. 17, 2019), https://9to5mac.com/2019/09/17/applecare-lawsuit-refurbished-devices/.

[10] See id.

[11] See supra note 9.

image source: https://www.marketwatch.com/story/supreme-court-allows-lawsuit-over-apples-iphone-apps-to-proceed-2019-05-13

By: Matt Romano

This week a federal district court in Boston ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment.[1]  This ruling came in a lawsuit, Alasaad v. Nielsen, filed by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of eleven travelers whose smartphones and laptops were searched without reasonable suspicion at a US port of entry.[2]  The suit was filed against both U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) whose officers conducted these searches.[3]

A suspicionless search of a cell phone or laptop may seem like a clear violation of these travelers fourth amendment rights, but that’s not necessarily true when the search is conducted at a port of entry into the United States.  Under the Fourth Amendment, people are protected against unreasonable searches and seizures.[4] A warrantless search is per se unreasonable under the Fourth Amendment, unless one of a few specifically established and well-delineated exceptions apply.[5] One of these exceptions applies to border searches.[6] This border search exception applies to all ports of entry within the US including airports.[7] It is not limitless, but in many cases it does not even require reasonable suspicion.[8] When evaluating whether a suspicionless search under the border exception is permissible, courts generally balance of its necessity for the promotion of legitimate governmental interests and the level of intrusion upon an individual’s privacy.[9]

ICE and CBP argued that conducting these searches is invaluable to helping ensure national security; prevent the entry of criminals, inadmissible aliens, and contraband; and to facilitate lawful trade and travel.[10]  To support this argument,  ICE and CBP referenced 34 published cases involving the seizure of at the border of digital contraband or evidence.[11]  The court was not persuaded that these 34 cases were significant enough to overcome the traveler’s privacy interests though.[12] The CBP alone reportedly conducted 108,000 searches of electronic devices between 2012 and 2018, and the 34 cases were from a much larger period of time than just those seven years.[13]

When considering the privacy interest of travelers, the Supreme Court has court applied the border search exception without requiring reasonable suspicion to searches that it considers “routine.”[14] Whether a search is considered routine depends solely on degree of invasiveness and intrusiveness of the search.[15] ICE and CBP classify all border searches of electronic devices as either basic or advanced, requiring a showing of reasonable suspicion for advance searches only.[16]  The court in this case could not discern difference in the amount of information accessed between basic and advanced searches though.[17]  Most of the seizures of the eleven travelers’ devices in this case were all considered basic, and yet their duration ranged from 45 minutes to 15 days.[18]  During these “basic” searches, the officers accessed photographs, contacts, and data of both a personally and professionally sensitive nature.[19]  Based on how intrusive these searches were and the comparably weak governmental interest in conducting them without reasonable suspicion, the court held that neither advanced nor basic searches were routine and both require reasonable suspicion.[20]  This may only be a district court decision, but it still marks a major step toward protecting international travelers’ privacy rights.

[1] Federal Court Rules Suspicionless Searches of Traveler’s Phones and Laptops Unconstitutional, ALCU, Nov. 12, 2019, https://www.aclu.org/press-releases/federal-court-rules-suspicionless-searches-travelers-phones-and-laptops.

[2] Id.

[3] Alasaad v. Nielsen, No. 17-cv-11730-DJC, 2019 U.S. Dist. LEXIS 195556, at 2 (D. Mass. Nov. 12, 2019).

[4] See Id. at 23.

[5] Id.

[6] Id.

[7] See U.S. v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015).

[8] See. Alasaad, 2019 U.S. Dist. LEXIS 195556, at 25.

[9] See Id.

[10] See id. at 26.

[11] Id. at 43.

[12] See Id.

[13] Id.

[14] See Id. at 33.

[15] Id.

[16] See Id. at 5.

[17] Id. at 51–52.

[18] See Id. at 48–51.

[19] See Id.  (accessing photos of a woman without her headscarf and a man’s privileged conversation with his lawyers).

[20] See Id. at 52.

image source: https://wtop.com/wp-content/uploads/2019/05/TSA-Border_Protection_16473.jpg

By: William Nash

The payment of collegiate athletes for their roles within their universities has been a heavily debated topic throughout the United States, and on Tuesday, October 29th, 2019, a substantial step was made in that direction.[1] The National Collegiate Athletic Association (NCAA) made a statement that collegiate athletes will now be able to profit off of their names, images, and likenesses.[2] The NCAA making this change, allows for student athletes, who are not being paid anything past the cost of attending their university, to now profit off their own personal brand or celebrity.[3] Allowing student athletes to profit from their names, images, and likenesses (NILs) is a substantial change from the previous athletic climate that had been present for so long in the United States.[4]

There are many critics of the NCAA’s current amateurism model, which has focused on student athletes being completely restricted from any financial benefit of their commercial value on the field or off it.[5] The amateurism model denies student athletes of any compensation, but allows for the universities, coaches, and the NCAA itself to generate billions of dollars in revenue.[6] The NCAA claims that their collegiate model “enhances the educational experience of college athletes, who are fully integrated into universities’ academic communities and enjoy greater academic success than regular students,” although many critics have begun to see differently.[7]

An abrupt change of heart from the NCAA policy didn’t seem feasible in the near future, but state legislatures have put political pressure on the NCAA to “pick up the pace” regarding their policy.[8] The first, and largest, threat to the NCAA came when the state of California enacted the Fair Pay to Play Act in September of this year.[9] The Fair Pay to Play act prohibits California colleges from denying student athletes of their NILs.[10] There has been extensive support for the Fair Pay to Play Act because of the benefits it hopes to bring student athletes.[11] A study conducted pursuant to the Act discovered that an astonishing majority of Division-I football players are currently living below the poverty line.[12]

Afterward, numerous states have moved to adopt similar policies, gathering a multitude of support from legislatures all across the political spectrum.[13] Rep. Mark Walker (R., N.C.) even proposed a bill that threatened the NCAA’s amateurism tax status.[14] The new idea has been an easy one for both sides to adopt because many believe that profiting off of NILs isn’t just for the benefit of an athlete, but a basic human right.[15]

Many analysts believe the new change in policy by the NCAA will bring numerous benefits to student athletes as well as collegiate sports in general, while others don’t believe there will be a substantial difference.[16] One anticipated benefit is the enhancement for female collegiate athletes.[17] Because female athletes will be able to profit off of their NILs, they will be able to “grow their personal brand during their college careers, [and] the NCAA will actually open possibilities for more women athletes to maximize their earning potential through sports.[18]

While this announcement by the NCAA is a large step in a politically popular direction, the NCAA has not yet formally stated the exact rules governing NILs and college athletes.[19] Only a continued study of NILs and college athletics will prove the actual opportunities and if benefits truly do follow this change.

image source: https://www.sportingnews.com/us/ncaa-football/list/college-football-rankings-pre-preseason-top-25-2019/1r65demw2tmtf1wd2epbfnfmk9

[1] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[2] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[3] See Greta Anderson, NCAA Votes for Athlete Payment, Inside Higher Ed (Oct. 30, 2019), https://www.insidehighered.com/news/2019/10/30/college-athletes-permitted-be-paid-name-image-likeness.

[4] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[5] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[6] Id.

[7] See Richard M. Southall, The US Collegiate Model of Intercollegiate Athletics: Questioning National Collegiate Athletic Association, LawInSport, https://www.lawinsport.com/sports-law-events/seminars/24-the-us-collegiate-model-of-intercollegiate-athletics-questioning-national-collegiate-athletic-association-ncaa-hegemony.

[8] See Tim Sullivan, Lawmakers Forcing Slow-Moving NCAA to Pick up the Pace of Change, USA Today (Oct. 10, 2019, 9:06 AM), https://www.usatoday.com/story/sports/college/2019/10/10/ncaa-amateurism-model-being-pushed-change-legislation/3928243002/.

[9] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[10] See Isabella Borges, Fair Pay to Play Act: End of Amateurism?, Golden Gate L. Rev. Blog (Oct. 14, 2019), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1065&context=ggu_law_review_blog.

[11] See id.

[12] See id.

[13] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[14] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[15] See Dan Wolken, How the Game Changed in College Sports: ‘It’s like Lighting a Fuse,’ USA TODAY (Nov. 12, 2019, 6:00 AM), https://www.usatoday.com/story/sports/columnist/dan-wolken/2019/11/12/ncaa-how-name-image-likeness-debate-quickly-shifted/2522382001/.

[16] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[17] See Isabella Borges, Fair Pay to Play Act: End of Amateurism?, Golden Gate L. Rev. Blog (Oct. 14, 2019), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1065&context=ggu_law_review_blog.

[18] See Thomas Baker, 5 Issues to Keep an Eye on With the NCAA’s New NIL Policy, Forbes (Nov. 1, 2019, 11:40 AM), https://www.forbes.com/sites/thomasbaker/2019/11/01/examining-the-ncaas-evolving-nil-policy-keep-an-eye-on-the-following-issues/#317461467591.

[19] See id.

By: Brandon Baker

Baseball: America’s pastime. The sport conjures up images of summer days, sunflower seeds, and wait, gambling? The Supreme Court ruled that the Professional and Amateur Sports Protection Act (PASPA) violates the anticommandeering rule, and thus is unconstitutional.[1] This ruling allows states to decide whether they want to enact sports betting.[2] This new found freedom also puts the pressure on umpires to get calls right. The need for umpires to be flawless is more dire than ever, as many Americans will be using their hard-earned money to bet on these games. Even more so, Major League Baseball could receive harsh criticism than before if blatant calls are missed or called incorrectly. This harsh criticism could cause sports fans to take their money elsewhere.

This is a real issue that Major League Baseball needs to fix. Everyone has heard someone yelling at an umpire for making what the fan deems to be a “bad call”, but how often is the fan right and umpire wrong?  With regards to home plate umpires, at least 20% of the time. [3] One out of every five calls, called incorrectly and possibly changing the outcome of the game.[4] That is way too high of a percentage for errors when emotions and pride are at stake. When gambling gets involved, that number is completely unacceptable.

Clearly this issue has made its way onto Major League Baseball’s desk and they have begun to try to fix it. This past summer, Major League Baseball experimented with an electronic strike zone in an independent league. [5] The technology used is called TrackMan, which is a Doplar radar that analyzes each pitch and is able to accurately adjust the strike zone for each hitter. [6] Once the pitch has been thrown, TrackMan analyzes the data and relays the pitches location to the umpire. [7] This information is transmitted to the home plate umpire in real time by way of an ear piece. [8]

So far, the technology seems to be doing its job well and has been received positively where it has been implemented. [9] That is not to be said that the reaction to this robotic umpire technology has been all positive.  Some view baseball as great the way that it is and that there is no need to change such an integral part of the game. [10] While baseball may be good the way that it is, it is not perfect.

The goal of perfection and 0% errors on calls will be almost impossible, but lowering the amount of errors down from 20% would only be good for the game and it seems that robotic umpires can help.  With states now being allowed to look into sports betting, there is going to be a greater push for umpires to be more accurate. If Major League Baseball fails to tackle this issue head on and sides with the tradition aspect of the game, they may lose out on their slice of the sports betting pie.

[1] See Murphy v. Nat’l  Collegiate Athletic Ass’n, 138 S.Ct. 1461, 1478-79 (2018).

[2] See Tyler Lauletta, The Supreme Court has Overturned the Federal ban on Sports Betting — here’s what that means for the Immediate Future of Gambling in America, Bus. Insider (May 14, 2018), https://www.businessinsider.com/supreme-court-sports-betting-decision-what-it-means-2018-5.

[3] See Mark T. Williams, Are Baseball Umpires Wrong as Often as fans Think they are? Yes, one study says, Time (Apr. 8, 2019), https://news.yahoo.com/baseball-umpires-wrong-often-fans-112353048.html.

[4] Id.

[5] See Katherine Acquavella, Robot Umpires: How it works and its Effect on Players and Managers in the Atlantic League, plus what’s to come, CBS (Aug. 27, 2019), https://www.cbssports.com/mlb/news/robot-umpires-how-it-works-and-its-effect-on-players-and-managers-in-the-atlantic-league-plus-whats-to-come/.

[6] Id.

[7] Id.

[8] See Brian Heater, ‘Robot Umpires’ make Independent League Baseball debut, TechCrunch (July 11, 2019), https://techcrunch.com/2019/07/11/robot-umpires-make-independent-league-baseball-debut/.

[9] Supra note 5.

[10] See Frank Bodani, Baseball History made: Inside the debut of Robot Umpires, USA Today (July 11, 2019), https://www.usatoday.com/story/sports/mlb/2019/07/11/mlb-trackman-system-makes-history-calls-balls-and-strikes-pro-game/1702431001/.

image source: https://kwhs.wharton.upenn.edu/2011/05/baseball%E2%80%99s-bottom-line-the-money-behind-the-game/

By: Nadeem Bohsali

Music sampling is on the rise. In 2018, twenty percent of songs on the Billboard Top 100 contained music samples.^[1] That same year, sixty-six percent of all albums found on the Billboard Top 50 contained samples, averaging a staggering four samples per album.^[2] Over the past 3 years, this figure remained in the neighborhood of twenty and twenty-five percent.^[3] However, roughly ten years ago, only fourteen percent of songs on the Billboard Top 100  contained samples. With Hip-Hop, Pop, and Electronica representing substantial portions of the Billboard top 100, music sampling is likely to become more ubiquitous over time.^[4]

While music has been circulated, adapted, and transformed by oral tradition for many years, the practice of mechanical sampling only grew popular during the 1980’s, as hip-hop rose to fame.^[5] However, this practice has been used in commercial music since before 1967, when the Beatles introduced All you Need is Love with the beginning instrumental from La Marseillaise (the French National Anthem).^[6] The practice has evolved technologically from the early days when two turntables and a cross fader were the only tools of the trade, allowing for easier, quicker, and more complex samples.

The legal status of music sampling is hotly contested, to say the least. Since Biz Markie sampled Gilbert Sullivan’s instrumental track in “Alone Again (Naturally)”, scholars and judges have evaluated the propriety of the Fair Use defense to copyright infringement and its application to sampling works.^[7] In Bridgeport, the Court specifically declined to apply a de minimis exception to a musical work, instead applying a bright-line zero-tolerance approach to sampling, which has been widely criticized as having a “chilling effect” on hip hop music.^[8]

Critics of Bridgeport characterize the ruling as stifling creativity through an overly strict characterization of the utilitarian framework upon which American intellectual property theory rests.^[9] While a strict prohibition on sampling may have conformed to days past prior to the electronic age, advocates argue that a music sample is the modern day equivalent of a guitar chord–a single unit of expression used to construct a song.

The result of these varying interpretations is a circuit split. In May 2016, the Ninth Circuit explicitly declined to follow Bridgeport, holding that music sampling copyright infringement cases necessitate a substantial similarity infringement analysis, including the application of the de minimis analysis.^[10]

Music sampling, however, may not be as nefarious a form of appropriation as some might suggest. In fact, a recent study exploring the commercial effect of samples on sales of the original work, identified with 99% significance that sales of sampled songs increased after being repurposed within new songs.^[11] They concluded that their findings lend support for a restructuring of the fair use analysis as applied to music sampling.^[12] If music sampling increases the notoriety and revenue of the original artist, then sampling disseminates both works. These findings controvert the zero-sum justification which stipulates that unauthorized use by sampling a copyrighted musical work disincentivizes the creation of subsequent works.  Instead, if music sampling increases popularity of a given work, then repurposing songs in new, transformative works could incentivize the creation and dissemination of music.

Because their findings were very recently published, the Schuster study may prove to be interesting fuel for the next music sampling case that makes its way through the courts. Empirical data could very well foster faith and certainty in the success of the fair use doctrine as applied to music sampling.

^[1] 1. See Oskar, State of Sampling, tracklib (Feb. 7, 2019), https://www.tracklib.com/blog/tracklib-presents-state-of-sampling/

^[2] See id.

^[3] See id.

^[4] See The Hot 100, Billboard, https://www.billboard.com/charts/hot-100.

^[5] Add authority.

^[6] All You Need Is Love by The Beatles, WhoSampled, https://www.whosampled.com/The-Beatles/All-You-Need-Is-Love/.

^[7] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005); Erik J. Badia, Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases, 7 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 131 (2017), available at https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1061&context=pipself.

^[8] See Nelson, Hip Hop America (Penguin 2005).

^[9] Supra Note 7.

^[10] See id.

https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1061&context=pipself

^[11] See Schuster et al., Sampling Increases Music Sales: An Empirical Copyright Study, 56 AMER. BUS. L. J. 177 (2019), available at https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12137.

^[12] See id. (“Findings of this nature favor a judicial determination

that sampling constitutes a fair use, even when considering the influence that a new work

has on extant licensing markets for sample clearance.”)

image source: https://producelikeapro.com/blog/5-most-sampled-drum-beats-in-hip-hop/

By: Jacob Newton

The Right to Allocution

A defendant’s right to allocution has a long and controversial history. Allocution is a trial judge’s formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed.[1] The right of allocution goes all the way back to 1689, where England courts risked reversal of its sentencing decisions if the judge failed to directly ask defendants if they had anything to say prior to sentencing when the death penalty was a possibility.[2] The original purpose of allocution was to “. . . afford the prisoner an opportunity to move in arrest of judgment pleading specific legal defenses available to him.”[3] Some of these specific were pardon, pregnancy, insanity, misidentification, or benefit of the clergy.[4] If successful, an allocution would result the case being “set aside,” but could later be brought again.[5] At the height of the death penalties popularity in England, allocution played a vital role in the English legal system. The American legal system incorporated the right to allocution, but it did not adopt every aspect of it established in the English legal system.[6] In the United States, the opportunity for allocution was not restricted to just to the context of the death penalty, and provided the right to an abundance of other felonies.[7] The concept of allocution developed differently in federal and state courts over time in the United States.

On the federal level, Rule 32(i)(4)(A)(ii), of the Federal Rules of Criminal Procedure, requires that all defendants be allotted allocution in a federal criminal prosecution.[8] Rule 32 provides, “[b]efore imposing sentencing, the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”[9]

In most state courts, defendants do not have a statutory right to allocution, but they do have a general right allocution.[10] The difference between the general right in most states and the federal statutory right is the requirement for a trial judge to inform the defendant of the right. The difference is best illustrated by the Court of Special Appeals in Maryland, when it directly stated a Maryland state trial judge is not required to inform a defendant of their right to allocution.[11] In general defendants on both levels have a right to allocution, even though there are a few other differences between allocution in state and federal courts.

The effectiveness of allocution is a hot topic of debate, but the discussion of effectiveness is not necessary for this post.

Sentencing Algorithms

The fact that these algorithms have been successfully used in other parts of the criminal justice system may help explain why lawmakers and judges have been relatively quick to embrace them in the sentencing context.[12] However, predictive algorithms tools may be better suited and easier to assess in other contexts, such as during pre-trial release, when a judge is evaluating whether a criminal defendant should be held in jail prior to her scheduled appearances in court.[13]

Sentencing algorithms are just electronic risk assessment tools used to predict recidivism.[14] Judges have factored recidivism predictions into sentencing for decades, but it is still a controversial method.[15] However, using recidivism predictions is still supported by the American Bar Association, so a number of states are still adopting legislation requiring the use of these algorithms.[16] Judges only use this risk assessment as one tool in the consideration of an appropriate sentence. A judge may not even give the risk assessment a lot of weight when making their determination. Even though the risk assessment may not necessarily change the outcome on most occasions, it could potentially affect the legitimacy of the process. If the general public is uncomfortable with judges relying on predictive algorithms to make decisions, predictive algorithms will never become widespread regardless of how efficient or fair they may be.[17] The general public’s mistrust of machines will transfer to mistrust of the legal system. Nobody wants to be defined by a risk assessment number, they want their entire story to be heard. People put their faith in a Judge; who has experience, listens to the whole story, and assesses all factors involved in a case when pronouncing a sentence. Legitimacy stems from the people’s faith in judges.

Can they Exist Together?

Upon initial thought, allocution and sentencing algorithms appear to be polar opposites. Among other things, allocution is the defendants one chance to put their humanity on display to a judge before sentencing. The mere act of talking, no matter what the content, emphasizes the defendant’s humanity.[18]  Sentencing algorithms on the other hand produce hard data, which is completely indifferent to a person’s humanity. In a system where judges rely heavily on risk assessment data, a defendant’s right to allocution could be potentially eliminated. However, the purpose of allocution may be even more importance in this technological age. A judge will take both considerations and give them as much weight as they see fit. As long as a judge allows a defendant to speak before sentencing, then the defendant will not feel as though they are being defined by a risk assessment number. Ensuring a defendant’s right to allocution will aid in maintaining the legitimacy of the legal system as technology is being introduced integrated into sentencing.

[1] Allocution, Black’s Law Dictionary (10th ed. 2014).

[2] See Rex & Regina v. Geary, (1689) 91 Eng. Rep. 532 (K.B.), 2 Salk. 630; Anonymous, (1689) 87 Eng. Rep. 175 (K.B.), 3 Mod. 265; see also Green v. United States, 365 U.S. 301, 304 (1961); Bennett & Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 741.

[3] See Bennett & Robbins, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 741.

[4] See Paul W. Barrett, Allocution, 9 Mo. L. Rev. 115, 121 (1944) (citing J. Chitty, A Practical Treatise on the

Criminal Law 700 (2d ed. 1816).

[5] See id. at 117.

[6] See John H. Dawson, Jr., Note, Federal Rules of Criminal Procedure-Court Should Afford Defendant a Personal Opportunity to Speak Before Sentence Is Pronounced, 6 Am. U. L. Rev. 117, 118 (1957); see also Thomas, Kimberly A. “Beyond Mitigation: Towards a Theory of Allocution.” Fordham L. Rev. 75, no. 5 2641, 2646 (2007).

[7] See Ball v. United States, 140 U.S. 118, 131 (1891) (“[A] defendant should be personally present before the court at the time of pronouncing the sentence . . . [so] that he might have an opportunity to say why judgment should not be given against him . . . .”); see also Bennett & Robbins, supra note 2 at 741-42.

[8] Fed. R. Crim. P. 32(i)(4)(A)(ii).

[9] Id.

[10] See e.g. Perry v. State, 150 Md. App. 403 (2002); State v. Nelson, 173 N.J. 417 (2002); State v. DeCiantis, 813 A.2d 986 (R.I. 2003); State v. Maestas, 2002 UT 123, 63 P.3d 621 (Utah 2002); see also 24 C.J.S. Criminal Procedure and Rights of Accused § 2255.

[11] See Perry, 150 Md. App. at 456.

[12]

[13] See id.

[14] See Leah Wisser, 56 Am. Crim. L. Rev. 1811, 1811 (2019).

[15] See John Monahan, Risk Assessment in Sentencing, 4 Reforming Criminal Justice 77, 79 (2017).

[16] American Bar Association, State Policy Implementation Project (2011), https://www.americanbar. org/content/dam/aba/administrative/criminal_justice/spip_handouts.authcheckdam.pdf.

[17] Ric Simmons, Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System, 52 U.C. Davis L. Rev. 1067, 1090 (2018).

[18] See Shelton v. State, 744 A.2d 465, 492 (Del. 2000).

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