Richmond Journal of Law and Technology

By: Davina Seoparsan

Can you think of a time when you were driving and thought, “I wish I could be doing something else?” Maybe you have a meatball sub to eat? Maybe you had makeup to apply? Maybe you had notes to review before a big test? Short from taking public transportation or using a private transportation service, there are not many options for safe multi-tasking while driving. But what if the car could do the driving for you?

Forbes has predicted that over the next decade, a self-driving feature will be as common as cruise control.[1] Google, one of the leading companies in self-driving cars, has already stated their intent to have completely autonomous vehicles on the market in a few short years.[2] Though self-driving cars offer convenience and bring the excitement of futuristic technological developments, are they really a good thing?

 

The Reality

 

Would people actually use self-driving cars? Yes. The autonomous vehicle industry is projected to be worth around 7 trillion dollars in the next 30 years.[3] Though there will likely be a transition period for those who are more skeptical to autonomous technology, the market is huge for these types of vehicles. By bringing in trillions of dollars, the economy will likely be stimulated by the purchasing, maintenance and advertising of these self-driving cars.

Of the nearly 1.3 million people that die in traffic fatalities every year, 94% of the deaths are the result of human error.[4] One of the appeals of self-driving cars is that they would be able to reduce traffic accidents caused by human error.[5] In addition to saving lives, self-driving cars could drastically reduce the 500 billion dollars that are lost in traffic accidents annually around the world.[6]

 

The Technology

 

Many aspects of self-driving cars already present, as modern cars already perform complex tasks without the driver’s doing, including braking, steering, and objection detection.[7] Tesla is one of the most popular electric car manufactures and has been in the spotlight for its development of an Autopilot feature.[8] Though Autopilot can control steering, braking and acceleration, some have criticized the feature because it is inherently difficult to remain attentive when technology has control over driving tasks.[9]

 

 

 

The Accident

 

How safe is Autopilot? A recent survey of Tesla users found that twenty-eight percent of respondents believe that Autopilot had saved them from a dangerous situation, while 13% said the feature had actually put them in one.[10] The first person known to die using Autopilot was Joshua Brown, whose “Model S” Tesla vehicle crashed into a truck that turned across his path in Florida, in May 2016.[11] Both Joshua and the technology were unable to see the truck coming in its path.[12]

Tesla and the Autopilot feature have attracted controversy due to another recent fatality. Dr. Omar Awan was burned alive following a fiery crash in his Model S Tesla, after his car veered off the road and hit a tree.[13] The car’s lithium battery caught on fire, and the door handles malfunctioned.[14] Awan, who survived the impact, was unable to exit and rescuers were unable to free him, due to the retractable door handles on the Model S.[15]

 

The Case

 

A wrongful death suit has been filed following Awan’s death.[16] “After the Tesla hit the tree, [Awan] was alive,” the suit notes, “He had no internal injuries or broken bones. He died from the smoke he inhaled as he sat locked inside.”[17] Stuart Grossman, the attorney for Awan’s family, says what makes the doctor’s death doubly tragic, is that Awan purposely chose the Tesla Model S over luxury cars because he was concerned about the environment and safety, both of which Tesla have advertised heavily.[18]

In Awan’s case and others, Tesla has argued that high-speed crashes can result in fires whether the car is powered by gasoline or batteries.[19] The lawsuit further asserts that the features rendered the car “defective” and “dangerous” — the door handles compounding the problem of an “inherently unstable” battery. “[20] Tesla failed to warn users about the scope and extent of the defective and unreasonably dangerous conditions of the Model S,” the complaint says.[21]

 

The Future

 

At least 41 states and the District of Columbia (DC) have considered legislation related to autonomous vehicles.[22] That being said, there are still many questions surrounding the future of autonomous vehicles. Who will be held liable for crashes involving self-driving vehicles and regular automobiles? Will Tesla accept responsibility or modify their designs pending litigation? Will other companies, like Google, learn from Tesla and add safety- features to their models? Only ti

[1] Daniel Araya, The Big Challenges in Regulating Self-Driving Cars, Forbes (Jan. 29, 2019, 9:00AM), https://www.forbes.com/sites/danielaraya/2019/01/29/the-challenges-with-regulating-self-driving-cars/#7571800bb260.

[2] Waymo, https://waymo.com/tech/.

[3] Supra note 1.

[4] Automated Vehicles for Safety, National Highway Traffic Safety Administration, https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety.

[5] Id.

[6] Accelerating the Future: The Economic Impact of the Emerging Passenger Economy, Strategy Analytics, https://newsroom.intel.com/newsroom/wp-content/uploads/sites/11/2017/05/passenger-economy.pdf?cid=em-elq-26916&utm_source=elq&utm_medium=email&utm_campaign=26916&elq_cid=1494219.

[7] Jack Boeglin, The Costs of Self-Driving Cars: Reconciling Freedom and Privacy with Tort Liability in Autonomous Vehicle Regulation, 17 Yale J.L. & Tech. 171 (2015).

[8] Tesla, https://www.tesla.com/autopilot.

[9] Id.

[10] Mark Matousek, Over 90% of the 5,000 Tesla Model 3 owners surveyed by Bloomberg said they believe Tesla’s most controversial feature makes them safe, Bus. Insider (Nov. 5th, 2019) https://www.businessinsider.com/tesla-model-3-owners-say-autopilot-makes-them-safer-2019-11.

[11] Id.

[12] Id.

[13] In re Awan v. Tesla Inc., 19-021110 (Fla. Broward County Ct. Oct. 10, 2019).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] Reis Thebault, A Man Died in a Burning Tesla because its futuristic doors wouldn’t open, lawsuit alleges, Wash. Post (Oct. 23, 2019), https://www.washingtonpost.com/business/2019/10/23/man-died-burning-tesla-because-its-futuristic-doors-wouldnt-open-lawsuit-alleges/.

[19] Id.

[20] In re Awan v. Tesla Inc., 19-021110 (Fla. Broward County Ct. Oct. 10, 2019).

[21] Id.

[22] Self-Drive Act, H.R. Rep. No. 115-294 (2017)

image source: https://www.roboticsbusinessreview.com/wp-content/uploads/2019/05/AdobeStock_Self-DrivingCars-Activities-1000×500.jpeg

By: Dylan Phillips

You’ve probably heard about White Claw, a popular hard seltzer drink owned by Mark Anthony Brands.[1] According to one source, a student at The University of Toledo recently fell asleep at a Taco Bell drive-thru in the midst of trying to get a late-night snack.[2] When an officer arrived at the scene and asked the student for identification, the student presented the officer with a White Claw, and stated, “There are no laws, when you’re drinking The Claw.”[3] Aside from this particular incident, it seems that the catchy phrase has been interpreted as a joke by the general public, rather than as a statement that a reasonable person would ever take seriously.

 

The catchy phrase seems to have gained some of its popularity, at least in part, through YouTube comedian, Trevor Wallace.[4] Wallace created a video titled “*drinks White Claw once*,” which used the phrase, “There ain’t [sic] no laws, when you’re drinking Claws;” the video now has over 2.8 million views.[5] Wallace is well known for creating satirical videos, often making fun of “bro culture.”[6] Recently, however, White Claw’s legal team issued a cease and desist order[7] to Wallace on the grounds of trademark infringement[8] to get him to stop selling shirts with the phrase, “There Ain’t [sic] No Laws, When You’re Drinking Claws.”[9] After White Claw burst Wallace’s bubble, Wallace refunded everyone who bought the shirts and then tweeted in response, “I’m TRULY[10] sorry.”[11]

 

Although it appears that Wallace has capitulated in this spirited fight, whether there are violated trademark infringement laws, when regarding Wallace’s usage of Claws is not so certain.[12] The main federal trademark law in the United States is the Lanham Act, which was enacted in 1946 and most recently amended in 1996.[13] Since the enactment of the Lanham Act, federal law has tended to set the standards for trademark law, which state law typically follows.[14] For White Claw to have a valid claim under this act, it would likely have to prove that it had a valid trademark that Wallace diluted by “blurring” or “tarnishing” the trademark.[15] Despite Wallace using White Claw’s logo without the permission of the mark owner, whether his acts constitute infringement under these categories is not so simple. Regardless of whether a company has a valid trademark, fair use, which is granted through First Amendment right to freedom of speech, and the rationales, which set the need for the existence of trademark protection, must be considered.[16] Based on this right and the rationales for trademark protection, it is apparent that the scope of trademark protection should be narrowed to exclude protection to certain goods, such as Wallace’s t-shirts, which can be easily produced and sold through e-commerce. This is because e‑commerce and social media have led to an environment in which, under certain circumstances, all parties will be in a superior position when a mark owner ignores potential or actual infringement.

FREEDOM OF SPEECH IS A QUESTIONABLE DEFENSE

The First Amendment right to freedom of speech has continuously been found to carry greater weight than the Lanham Act.[17] The right of fair usage of the marks of others has generally been found to be protected by the First Amendment, when a non-owner’s usage of a mark is not deceptive to customers, such as in circumstances with parodies of trademarks.[18] This right of fair use was reinforced in the most recent federal act directly related to addressing trademark infringement, when President Bush signed off on the Trademark Dilution Revision Act in 2006, which explicitly carved out an exception for parody usage of a mark.[19] Furthermore, the Court recently expanded this notion that free speech outweighs the Lanham Act by holding that “[t]he Lanham Act’s prohibition on registration of ‘immoral or scandalous’ trademarks violates the First Amendment.”[20] However, whether courts will actually enforce a parody exception, regarding a commercial good as a part of the fair use doctrine granted by the First Amendment, rather than finding dilution by blurring or tarnishment of the trademark that is outside the scope of fair use, has seemingly been in a state of constant flux as society changes.[21]

 

Here, it seems that no reasonable person would believe that there ain’t [sic] no laws, when drinking Claws. Nevertheless, whether Wallace’s t-shirts would fall within the fair use parody exception[22] is questionable because the courts have been reluctant to specify when the exception is applicable for commercial products.[23] The courts may find it to be an expression of permissible free speech within fair use, but might find that one should not have the court’s authority to promote anarchy with another’s mark, even if the expression could not be interpreted as a serious statement by a reasonable person. Ergo, parody law has not been established to the extent to which it should be relied upon as the sole defense for commercial goods pertaining to such a unique statement, such as in the subject case. The confusion produced by this exception should be heavily considered in the question of whether an expansive trademark protection should apply to certain commercial goods when courts are unable to establish a consistent standard for when fair use applies.

 

RATIONALES UNDERLYING THE NEED FOR TRADEMARKS SUPPORTS A NARROWED PROTECTION

New Kids on the Block v. News Am. Publ’g, Inc. is commonly referenced when describing the roots of modern trademark law, which states, “[t]hroughout the development of trademark law, the purpose of trademarks remained constant and limited: Identification of the manufacturer or sponsor of a good or the provider of a service. And the wrong protected against was traditionally equally limited: Preventing producers from free-riding on their rivals’ marks.”[24] The Supreme Court of the United States addressed the reasoning behind trademark law in the 1995 case of Qualitex Co. v. Jacobson Products Co., where the Court described the roots of trademark law as “preventing others from copying a source-identifying mark” and assisting the customer in making purchasing decisions.[25] The purpose of trademark law is to grant one a limited usage of his or her mark, rather than an unlimited usage of a mark, and to protect the public from confusion from what goods are in the market.[26]

 

Expansive trademark protection, such as with dilution liability, far surpasses the traditional limits of this protection in certain markets. When expansive trademark protection is applied towards goods that can be easily produced and entered into e-commerce markets, such as Wallace’s t-shirts, the law is neither able to protect the interests of the public nor of the mark owner. Thus, the rationales underlying trademark protection should not be found to expand into the broadened trademark protection doctrines, such dilution by blurring or tarnishment, when the rationales for trademark protection are irrelevant to those doctrines.

 

THE STREISAND EFFECT NARROWS THE PRACTICALITY OF ADDRESSING TRADEMARK RATIONALES

With the rise of social media, there are many things going viral because of what is known as the “Streisand effect.”[27] The Streisand effect, named after the singer and actor Barbra Streisand, “describes how efforts to suppress a juicy piece of online information can backfire and end up making things worse for the would-be censor.”[28] This effect has a surprisingly strong influence on intellectual property litigation resulting from social media because suppression of information can inadvertently lead to increased publicity.[29] The increased publicity can then ironically lead to an increased connection between the information fought to be suppressed and the entity trying to suppress the information.[30] Because it has become increasingly easier to spread information, and because it has become quite simple to engage in e-commerce, as soon as a popular idea goes viral, such as with a product that is simple to reproduce, an uncontrollable amount of sellers will inevitably enter the marketplace.[31]

 

Once the marketplace is flooded with sellers—many of whom are likely individuals with small operations and who are selling products through third-party marketplaces, such as Amazon[32] and Etsy[33]—the owner of the mark has only limited courses of action that it may take: (1) ignoring all potential infringers and allowing them to continue to use the mark; (2) getting a court order to enjoin each and every actual infringer from using the mark; or (3) going after a larger seller of the infringed mark and hope that smaller sellers cease usage of the mark out of fear. In matters pertaining to goods that are easy to produce and enter into e-commerce, the first option, which is ignoring potential infringement, would be the most practical action by a mark owner.

 

The first option of ignoring all possible infringement has much less appeal at first glance than the other options. Ignoring all infringement claims may lead to a substantial number of sellers wrongfully using an owner’s mark for unjust financial gain. However, it could also have an antithetical consequence than that of the Streisand effect, allowing social media to have less reason to mention Wallace’s phrase, thereby permitting the next viral video to usurp the internet’s attention.[34] Although allowing the trademark to possibly be infringed upon is not an ideal option for a mark owner, permitting the internet to have fun with the phrase would likely allow for the least amount of attention being drawn towards the possible infringement. Because less attention would be drawn towards the infringement, it would foreseeably live its life quickly, just as any other internet sensation.[35] In the subject matter, it seems likely that a shirt related to a viral video would not last longer than the time it takes before the next YouTube sensation goes viral.[36] Thus, ignoring the infringement in its entirety may be a preferable option, if the goal is to cease infringement.

 

The second option seems to have great appeal at first glance because it would be fairer for a court to decide each situation; however, it would not be practical in reality. First, if the claim for a potential parody were to lose in court, the potential infringer would be found free to expand his or her operations. Nevertheless, if a claim were to be found valid, many sellers may not have much incentive to exit the marketplace. A significant number of sellers in e-commerce are running small operations, such as using an at‑home printer to make t-shirts with an infringed mark and then selling them online.[37] If there are hundreds of these sellers online, it seems unlikely that a single company could bring each and every one of them to court to enjoin them from future sales. If they were enjoined by court order, other sellers could easily enter the void in the market and continue to sell the same items. The infringers may also not have any money, because of the small scale of their operations, thus, the infringers may not change their actions because there is nothing to which the mark’s owner could collect upon if it were to try to get money damages. Lastly, and most significantly, many online sellers would be quite difficult to identify and provide notice.[38] If someone does not reveal his or her identity, beyond a virtual account hidden behind a proxy or is located in a foreign state, it would be quite difficult to give notice to a seller.[39] Thus, in the modern age of e-commerce, an owner of a mark cannot feasibly take each infringer to court.

 

In the subject matter, it is likely that the Streisand effect[40] would occur if White Claw were to go after each potential infringer of its mark.[41] Instead of White Claw being known as a fun drink, possibly associated with Wallace’s humorous phrase,[42] social media could foreseeably spread the news of the owner’s litigiousness, regardless of whether it is justified, and would most likely increase the public’s awareness that there is a connection between White Claw and Wallace’s phrase.[43] This would foreseeably hurt White Claw’s reputation, rather than benefit White Claw; thus, it would not be a reasonable or practical course of action for White Claw to take.

 

The third option of only going after the most popular sellers seems to be a more reasonable middle ground to the other two options. However, this option would likely not be feasible for the reasons discussed above; if the largest sellers were to be discharged from the e-commerce market, it would be reasonably expected that smaller operations would fill the void in the market.[44] In the subject matter, selling t-shirts through e-commerce carries little barriers to enter into the market, smaller operations will have little reason to worry about potential litigation, and the more attention White Claw would draw to the infringement, the greater the association will be between the mark and the possible infringement. This concern has already begun to become a reality as third-party have started to fill the void in the market from Wallace’s exit of the business selling t-shirts.[45] It is, therefore, apparent that going after the larger sellers is not a feasible option to carry out the trademark protection rationales of limiting infringement and limiting the burden of knowing the source of products for consumers. Thus, White Claw enjoining only the major sellers is still a less desirable option than simply ignoring possible infringement in this matter.

 

THE MOST PRACTICAL WAY FOR WHITE CLAW TO ADDRESS THE SUBJECT INFRINGEMENT CONCERN IS WITHOUT JUDICIAL INTERFERENCE

The trademark protection rationales of “preventing others from copying a source-identifying mark and assisting the customer in making purchasing decisions,” are irrelevant, when a t-shirt parodying White Claw could not be reasonably excepted to be produced by White Claw.[46] Moreover, the prevention of the expanded trademark protection of dilution by blurring or tarnishment ironically seems to be best addressed by ignoring the possible infringement for matters in which the possibly infringing product can be easily produced at a low cost and easily introduced into the e-commerce market. To prevent the customers from copying a mark, in the age of e‑commerce and viral internet sharing, the most practical solution in some matters is to ignore the possible infringement and to allow the internet sensation to end by the public moving on to the next sensation in due time. To assist the customers in making purchasing decisions, the matter is also not practically addressed by permitting the bigger sellers of the possibly infringing product to continue to sell their products. If the bigger sellers were to be enjoined, it is then reasonably foreseeable that more small operations would replace the market’s void for the particular item, but with less uniformity because of the individualized operations.[47] Because of less uniformity, there would not only be further possible infringement, but also, there would be similar products being sold with varying degrees of quality.[48] Because of the varying degrees of quality, customers would have greater likelihoods of buying a cheaper possibly infringing product, rather than a nicer quality shirt that is possibly infringing on a mark.[49] Thus, the most practical option to protect a mark would be to ignore the infringement in certain matters, such as with the selling parody t-shirts associated with a YouTube video.

 

An example of how ignoring possible infringement, when a good can be easily produced and entered into e-commerce, may be the best solution for a mark owner is demonstrated in Coca-Cola Co. v. Gemini Rising, Inc..[50] In 1972, Coca-Cola brought a trademark infringement suit to enjoin Defendant from printing and selling a poster with an almost identical mark that instead of reading “Enjoy Coca-Cola,” read “Enjoy Cocaine.”[51] The court held that the posters use of the Coca-Cola format in its poster was an unauthorized use of the trademark and that because of the potential injury to the reputation of the mark owner, injunctive relief was necessary.[52] However, despite the court enjoining the sale of such products, there are many e-commerce sellers still selling Enjoy Cocaine products with the precise logo the court ordered enjoined from further sales.[53] Thus, it is apparent that Coca-Cola decided to exercise the first option, and now ignores the infringement of its mark on products that can be easily produced and entered into markets from both large and small vendors.

 

The most practical option for addressing the trademark concerns for all parties in certain matters, such as when an easily producible product borders between fair use through parody law and possible infringement, can be ignoring the infringing acts until the possibly infringing product lives its life. The ease of entering into e-commerce markets demonstrates why trademark protection should be narrowed for goods that can be easily produced and entered into the market. Due to the narrowed ability of trademark law to now address the concerns of infringement, the courts should reconsider whether the current policy behind trademark law is still best addressed by not carving out an exception for goods that can be easily produced and sold through e‑commerce. If the best solution to address potential infringement of a mark is to have a mark owner ignore the issue, rather than judicial interference, the issue should not be addressed by the court. Ignoring potential infringement in this circumstance leaves all parties in a superior position: the mark owner will not enable further entrants to join the market selling subpar goods in a difficult to manage circumstance through enjoining sellers, the potential infringer will benefit by being able to partake in commerce and create art through humor, and the governmental policy interest in protecting consumers in the market will be best addressed by not having to manage an influx of poorly identified sellers with unwanted goods in the marketplace that adds to consumer confusion. Thus, the issue should not be addressed through trademark law because the matter is best addressed without interference by the court. Moreover, the question of whether there is possible blurring or tarnishment of the trademark is irrelevant, if measures to prevent such types of dilution contribute towards dilution. This means that in certain circumstances mark owners should simply acquiesce to a possible infringement since e-commerce and social media have narrowed the ability of trademark laws to address infringement concerns.

 

Although this does not draw a clear line as to when there is an infringement on any particular type of product, solely regarding the possibly infringing t-shirts in the subject matter, the court should narrow the scope of trademark protection because the issue is best addressed without judicial interference. Wallace’s t-shirts can be easily created by new market entrants to be sold through e‑commerce markets, new market entrants would likely usurp Wallace’s now exited spot in the market if Wallace exited the market, and the rationale of trademark protection for addressing the concern of confusing consumers in the marketplace would be threatened from the influx of new market entrants. Since Wallace has ceased selling his shirts, the market has already been increasing with a number of products, which arguably hurt the White Claw brand to a much greater extent.[54] Similarly to Coca-Cola,[55] acquiescing to infringement of its mark, White Claw should choose to follow the same path and ignore, rather than fight, potential infringement. Because the most practical course of action for White Claw would be to ignore potential infringement for instances, such as Wallace’s t-shirts, the need for trademark protection in the realm of e-commerce is narrowed. Therefore, should the subject matter or a similar case be brought before the court, the court should narrow the scope of trademark protection for easily producible goods, such as Wallace’s t‑shirts, which can be sold with relative ease through e-commerce, because e-commerce and social media have caused a major decrease in the benefits of trademark protection.

image source: https://www.gearbubble.com/aint-n

[1] Stacy Ritzen, What Is White Claw—and Why Is the Beverage Inspiring Memes?, The Daily Dot (Sept. 6, 2019 12:43 PM), https://www.dailydot.com/unclick/white-claw-memes/ (last visited Oct. 13, 2019).

[2] Univeristy of Toledo Student Tries to Use Can of White Claw as Identification, Snickersee.com (Sept. 4, 2019), https://snickersee.com/2019/09/04/university-of-toledo-student-tries-to-use-can-of-white-claw-as-identification/. (last visited Sept. 6, 2019).

[3] See id.

[4] Kate Bernot, Last Call: Turns Out, There Are Laws When You’re Drinkin Claws, The Takeout (July 11, 2019 4:33 PM), https://thetakeout.com/aint-no-laws-drinkin-white-claws-shirt-cease-desist-1836290580.

[5] Trevor Wallace, *drinks White Claw once*, YouTube (June 25, 2019), https://www.youtube.com/watch?v=FApbkER3uIY (having 2,885,518 views). (last visited Oct. 13, 2019 2:10 PM).

[6] Ritzen, supra note 1.

[7] A cease and desist order alone has no actual legal effect. See Staff Author, Cease and Desist, Investopedia (May 24, 2019), https://www.investopedia.com/terms/c/cease-and-desist.asp.

[8] See 15 U.S.C. §§ 1051, et seq. (2012) (providing laws regarding what constitutes trademark infringement).

[9] Bernot, supra note 4.

[10] “TRULY” is a pun referencing Truly Hard Seltzer, a hard seltzer drink sold by a competing brand;  see also The Truly Story, Trulyhardseltzer.com (2019), https://trulyhardseltzer.com/story. (last visited Oct. 13, 2019).

[11] Bernot, supra note 4.

[12] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law, Harvard.edu, https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm (discussing when trademark infringement has occurred). (last visited Oct. 13, 2019).

[13] See 15 U.S.C. §§ 1051, et seq. (2012);  see also Overview of Trademark Law, supra note 12.

[14] See id.

[15] 15 U.S.C. § 1125(c) (2012). Another possible cause of action could be infringement based on consumer confusion as to whether White Claw sponsored or endorsed the t-shirts, however, it seems quite unlikely that a consumer would reasonably believe that White Claw sponsored or endorsed a phrase making fun of its own product.  See id.

[16] U.S. Const. amend. I.

[17] See, e.g., Iancu, 139 S. Ct. at 2302 (holding that First Amendment rights are given greater weight than trademark prohibitions under the Lanham Act and stating “the ‘immoral or scandalous’ bar is substantially overbroad . . . the Lanham Act covers them all.  It therefore violates the First Amendment”) (ellipsis added); see also Rivera v. Carter, No. 2:09-cv-2435-FMC-VBKx, 2009 U.S. Dist. LEXIS 131958, at *28-30 n.8 (C.D. Cal. July 31, 2009) (“Neither the strictures of the first amendment nor the history and theory of anti-dilution law permit a finding of tarnishment based solely on the presence of an unwholesome or negative context in which a trademark is used without authorization. . . . A trademark is tarnished when consumer capacity to associate it with the appropriate products or services has been diminished”) (citing L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 (1st Cir. 1987)).

[18] See, e.g., Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 269 (4th Cir. 2007) (holding that a parody exception to trademark infringement existed when a company used the Louis Vuitton mark on “Chewy Vuiton” [sic] dog toys because consumers would not have a likelihood of confusion in purchasing the products).

[19] The Trademark Dilution Revision Act of 2006 (TDRA), codified as 15 U.S.C. § 1125 (2012), was passed because of Moseley. See Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (holding that claims under the Lanham Act for trademark dilution required proof of actual dilution).  TDRA overruled this case and established that no actual proof of dilution was required.

[20] Iancu, 139 S. Ct. at 2296.

[21] Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996) (denying relief for trademark owner of “Spam,” when a Muppet movie used a pig-like character named “Spa’am” because the fair use parody exception permitted use of the mark when there was not a likelihood of confusion in the usage of the marks);  L.L. Bean, 811 F.2d at 26 (holding that an article displaying L.L. Bean’s trademark and featured pictures of nude models in sexually explicit positions using Bean’s products was crudely humorous, thus, the parody exception exempted Defendant from infringement through the fair use parody exception).  But see, e.g., Gucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977) (holding the fair use parody exception did not apply, because there was a likelihood of confusion for customers, when “Gucchie Goo” diaper bags were sold that had a similar design to Gucci brand bags.

[22] See 15 U.S.C. § 1025(c)(3) (2012) (codifying the trademark law exception for parody exclusions).

[23] See supra note 21.

[24] New Kids on the Block v. News Am. Publ’g, Inc., 971 F.2d 302, 305 (9th Cir. 1992).

[25] Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163 (1995).

[26] See id.

[27] T.C., What Is the Streisand Effect?, The Economist (Apr. 16, 2013), https://www.economist.com/the-economist-explains/2013/04/15/what-is-the-streisand-effect.

[28] See id.

[29] See id.

[30] See id.

[31] Many e-commerce sites allow sellers to begin advertising and selling products in a new store within minutes through certain platforms, making it quite simple for one to begin an e-commerce store.  See, e.g., Amazon, https://www.amazon.com. (last visited Oct. 13, 2019);  Etsy, https://www.etsy.com. (last visited Oct. 13, 2019).  Currently, although the number of e-commerce retailers is difficult to ascertain with precision, it is estimated that there are between twelve and twenty-four million e-commerce sites in the world.  See 50 Ecommerce Statistics to Guide Your Strategy in 2019, 99Firms.com (Apr. 10, 2019), https://99firms.com/blog/ecommerce-statistics/.

[32] See Amazon, supra note 31.

[33] See Etsy, supra note 31.

[34] See generally T.C., supra note 27.

[35] See generally Simon Parkin, The Youtube Stars Heading for Burnout: ‘The Most Fun Job Imaginable Became Deeply Bleak’, The Guardian (Sept. 8, 2018 4:00 PM), https://www.theguardian.com/technology/2018/sep/08/youtube-stars-burnout-fun-bleak-stressed (discussing the rise and fall of social media sensations).

[36] See id.

[37] See Susan Ward, Easy Ways to Get Your Small Business into E-Commerce, The Balance Small Business (Apr. 14, 2019), https://www.thebalancesmb.com/small-business-ecommerce-2948415 (discussing the ease of entering ecommerce as a retailor). (last visited Oct. 13, 2019).

[38] Even tech giants, like Amazon, struggle to verify the identity and control the products sold by third-party retailers on its own platform.  See Dave Bryant, How Chinese Sellers are Manipulating Amazon in 2019, EcomCrew (June 1019), https://www.ecomcrew.com/chinese-sellers-manipulating-amazon/. (last visited Oct. 13, 2019).

[39] See generally id.

[40] See generally T.C., supra note 27.

[41] See infra note 55.

[42] Wallace, supra note 5 (“There ain’t no laws, when drinking Claws”).

[43] See id.

[44] See generally Lesson 3: Open Markets, Foundation for Teaching Economics (2019), https://www.fte.org/teachers/teacher-resources/lesson-plans/efllessons/lesson-3-open-markets/ (last visited Oct. 13, 2019) (discussing how the supply in the market will be replaced when a seller exits the marketplace because of the marketing being pulled toward supply-and-demand equilibrium).

[45] See infra note 55.

[46] Qualitex, 514 U.S. at 163.

[47] See Lesson 3: Open Markets, supra note 44.

[48] Jason Aten, Amazon Just Got Some Really Bad News About Banned Products on Its Site. Its Response Says a Lot About the Company, Inc. (Aug. 23, 2019), https://www.inc.com/jason-aten/amazon-just-got-some-really-bad-news-about-banned-products-on-its-site-its-response-says-a-lot-about-company.html (discussing the extent of products on Amazon that are banned or mislabeled).

[49] See infra note 53.

[50] Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972).

[51] See id. at 1186.

[52] See id. at 1191, 1193 (enjoining the appropriation and use of products, “where the resemblance is so close as to be likely to produce confusion as to such identity to the injury of the corporation to which the name belongs”).

[53] The Enjoy Cocaine logo is still being sold at many retailers and has not since been brought back to court.  See, e.g., Amazon, https://www.amazon.com/Epicdelusion-Funny-Shirts-Enjoy-Cocaine/dp/B07CPKRPN9. (last visited Oct. 13, 2019); Etsy, https://www.etsy.com/market/enjoy_cocaine. (last visited Oct. 13, 2019); teeshirtpalace, https://www.teeshirtpalace.com/products/enjoy-cocaine-t-shirt. (last visited Oct. 13, 2019).

[54] See, e.g., TeeShirtPalace, https://www.teeshirtpalace.com/products/ain-t-no-laws-when-you-re-drinking-claws-baby-bodysuit? (expanding the market of “There ain’t no laws, when drinking Claws” shirts into the market of clothing for babies and children). (last visited Oct. 13, 2019);  BelleLily, https://www.bellelily.com/aint‑no‑laws‑when‑youre‑drinking‑claws‑t‑shirt‑tee‑black‑g‑55905?vsid=33873&gclid=EAIaIQobChMIwp75tb‑a5QIVyp6zCh3zxQ3vEAkYBCABEgKAHvD_BwE (expanding the market of “There ain’t no laws, when drinking Claws” shirts into shirts with additional features of political figures drinking) . (last visited Oct. 13, 2019);  Etsy, https://www.etsy.com/listing/729251151/aint-no-laws-when-youre-drinking-claws? (expanding the market of “There ain’t no laws, when drinking Claws” into the market of hats, key chains, and many other accessories). (last visited Oct. 13, 2019).

[55] See supra notes 50, 53.

By: Trevor Vonu

With election season looming on the horizon, tensions surrounding Facebook’s allowance of un-censored political advertisements continue to grow in Washington.[1] During a speech at Georgetown University earlier this month, Facebook Chief Executive Mark Zuckerberg vocalized his opinion on the matter by claiming to prioritize his commitment to freedom of speech and expression over instituting an aggressive policy to police information advertised on the social media platform.[2] Zuckerberg stated, “Some people believe that giving more people a voice is driving division rather than bringing people together. I am here today because I believe we must continue to stand for free expression.”[3]

Zuckerberg recently traveled to Capitol Hill where he fielded questions from legislators regarding the company’s policy to refrain from fact-checking political advertisements.[4] During a Q & A with Congresswoman Alexandria Ocasio-Cortez, D-NY, Zuckerberg recognized this policy creates the potential for political candidates to spread false information, however, Zuckerberg remained steadfast in his position that it would be improper to censor the information presented in these advertisements.[5] That said, many critics believe Zuckerberg’s decision is primary fueled by the goal to maintain advertisement revenue.[6]

Most recently on October 29^th, Senator Mark Warner, D-VA sent a letter to Zuckerberg asking him to reconsider his decision to leave political advertisements unchecked for truthfulness. Warner is one of Congress’ most active legislators working to regulate ‘Big Tech’ companies.[7] In his letter, Warner criticizes Zuckerberg’s position and justifications, stating,

 

In defending its refusal to remove false political advertisements by candidates, Facebook has pointed to provisions of the Communications Act that prohibit broadcast licensees from rejecting or modifying candidate ads, regardless of their accuracy . . . This comparison is inapt. A more appropriate comparison for a platform like Facebook would be cable networks, which (like Facebook) face no such prohibition on rejecting demonstrably false advertisements from political candidates – nor are they bound by related obligations such as rules on advertising rates and reasonable access requirements.

 

Letter from Sen. Mark Warner to Mark Zuckerberg, Facebook Chief Exec. Officer (Oct. 28, 2019).

 

Despite receiving substantial pushback from legislators on Capitol Hill, Zuckerberg recently reinforced his position on the company’s policy regarding political advertisements.[8] During Facebook’s third-quarter earnings call on October 30^th, Zuckerberg responded to those criticizing his decision not to fact check political advertisements, saying, “I believe strongly and I believe that history supports that free expression has been important for driving progress and building more inclusive societies around the world.”[9] During Facebook’s earnings call, Twitter Chief Executive Jack Dorsey released his own announcement, stating the company will “stop all political advertising on Twitter globally.”[10]

This response is uncharacteristic of Zuckerberg and is quite different from his past responses to criticism, most notably the debacle involving Cambridge Analytica.[11] In the past, Zuckerberg apologized and pledged to make the necessary improvements to Facebook.[12] Now, amid widespread criticism, Zuckerberg is sticking to his guns and doubling down on his position on the matter.[13] It will be interesting to see if Zuckerberg retreats on this position in the coming months. The Federal government is pleading with Zuckerberg to reconsider, however, with no enacted law regulating this specific subject matter, the decision is completely up to the company and its position will likely change only under two circumstances.[14] First, the decision may change if Congress, or a regulatory agency, passes a law requiring Facebook to fact check all political advertisements.[15] Alternatively, Facebooks policy on the matter may change if the current policy leads to substantial user dissatisfaction and lower share prices.[16]

 

 

 

 

[1] Therese Poletti, Zuckerberg stands defiant on political ads, swinging ‘free expression’ at critics like a hammer. Market Watch (Oct. 30, 2019, 8:44 PM), https://www.marketwatch.com/story/zuckerberg-stands-defiant-on-political-ads-swinging-free-expression-at-critics-like-a-hammer-2019-10-30.

[2] Ryan Tracy, Facebook’s Mark Zuckerberg defends free expression, will allow political adds without fact checking. Market Watch (Oct. 17, 2019 2:54 PM), https://www.marketwatch.com/story/facebooks-mark-zuckerberg-defends-free-expression-will-allow-political-adds-without-fact-checking-2019-10-17.

[3] Id.

[4] Salvador Rodriguez, Watch video of AOC grilling Zuckerberg on Facebook allowing lies in political ads, CNBC (Oct. 24, 2019, 4:57 PM), https://www.cnbc.com/2019/10/23/aoc-grills-zuckerberg-over-facebook-allowing-lies-in-political-ads.html.

[5] See id.

[6] See Poletti, supra note 1.

[7] William Feuer, Sen. Warner asks Mark Zuckerberg to reconsider Facebook’s policy that allows false political ads, CNBC (Oct. 29, 2019, 10:59 AM), https://www.cnbc.com/2019/10/29/sen-warner-asks-zuckerberg-to-reconsider-false-political-facebook-ads.html.

[8] See Poletti, supra note 1.

[9] Id.

[10] Kate Conger, Twitter Will Ban All Political Ads, C.E.O. Jack Dorsey Says, New York Times (Oct. 30, 2019), https://www.nytimes.com/2019/10/30/technology/twitter-political-ads-ban.html.

[11] Ashley Smith-Roberts, Facebook, Fake News, and the First Amendment, 95 Denv. L. Rev. 118, 118-19 (2018).

[12] Therese Poletti, Zuckerberg appears to be done apologizing for Facebook and taking Tim Cooks, Market Watch (Oct 31, 2018, 6:59 AM), https://www.marketwatch.com/story/zuckerberg-appears-to-be-done-apologizing-for-facebook-and-taking-tim-cooks-punches-2018-10-30.

[13] See Poletti, supra note 1.

[14] See Feuer, supra note 6.

[15] See id.

[16] Josh Constine, Zuckerberg defends politician ads that will be 0.5% of 2020 revenue, Tech Crunch (Oct. 30, 2019, 5:32 PM), https://techcrunch.com/2019/10/30/zuckerberg-political-ads/.

image source: https://i.ytimg.com/vi/mZaec_mlq9M/maxresdefault.jpg

By: Ryan Leonard

Doorbells with a security camera feature are now a billion-dollar industry in the United States.[1]  Ring, a subsidiary of Amazon, has been marketing its product as a device that can help secure homes against crime.[2]  However, as Ring as partnered with local police departments, civil liberties organizations like the American Civil Liberties Union have become concerned about violations of privacy.[3]

 

Ring’s doorbell works by equipping an inconspicuous camera to a doorbell, installing it, and linking it to the owner’s Wi-Fi.[4]  The owner is then able, at any time, to view who, if anyone, approaches the house via smartphone, tablet, or computer.[5]  Its natural doorbell appearance is no doubt part of the appeal, as well as what makes it effective at catching would-be burglars.

 

The concerns over privacy are two-fold.  First, neighbors of Ring customers may become objects of regular surveillance without their knowledge or consent.[6]  Secondly, when a homeowner’s doorbell camera works in conjunction with local police departments, it is no longer just a security-conscious neighbor doing the surveilling.[7]  In other words, if one lives directly across the street from someone who has installed such a doorbell, and the doorbell’s camera is being utilized by police, one is the unknowingly under 24 hour police surveillance.[8]

 

The legal standard to consider when analyzing the privacy interests of third parties is the reasonable expectation of privacy protected by the Fourth Amendment, as articulated in Katz v. United States.[9]  In Katz, the United States Supreme Court held that it is a violation of the Fourth Amendment’s unreasonable search clause to wire-tap a public phone booth without a search warrant.[10]  The reasoning of the Court was that, even when no physical intrusion has occurred, an individual may still be protected from information-gathering when she has a reasonable expectation of privacy.[11]

 

The question then becomes whether individuals have a reasonable expectation of privacy in regards to the things they do daily and weekly, as visible from the outside of their home.  In United States v. Jones the Court stated that a GPS tracker on a car is a search that requires a warrant even though the information collected is publicly available (the location of the car), and could be collected by anyone following said car.[12]  In sum, a person’s public behavior may still be protected by the Fourth Amendment and individuals may maintain a reasonable expectation of privacy, even in regards to things they do and say beyond the walls of their home.[13]

 

The counterargument, however, would be that, as surveillance becomes more easily available, more discreet, and more ubiquitous, the expectations of privacy at an individual as well as societal level will adjust accordingly.  Oddly enough, the Fourth Amendment standard of privacy established in Katz may make non-consensual, warrantless surveillance unconstitutional when done to a small number of people, but may nevertheless be perfectly constitutional when done to nearly everyone; as society’s expectations change so too might constitutional protections.[14]  The growth and popularity of doorbell companies like Ring may make video monitoring sufficiently commonplace so as to alter privacy expectations, and Fourth Amendment protections along with them.

image source: https://www.aclu.org/sites/default/files/styles/blog_main_wide_580x384/public/field_image/web19-ring-doorbell-neighbor-app-ap-blogimage-1160×768.jpg?itok=DpcifaRA

[1] See Brandt Ranj, 5 Smart Home Devices that Prove Why Amazon’s $1 Billion Acquisition of Doorbell Startup Ring, a ‘Shark Tank’ Reject, Makes Total Sense, Business Insider (Jul. 26, 2018, 2:34 PM), https://www.businessinsider.com/ring-video-doorbell-amazon-sale-2018-7.

[2] See Jay Stanley, Should You Buy a Ring Doorbell Camera?, ACLU (Sept. 10, 2019, 11:30 AM),  https://www.aclu.org/blog/privacy-technology/surveillance-technologies/should-you-buy-ring-doorbell-camera.

[3] See id.

[4] See Ali Montag & Sarah Berger, Amazon Bought ‘Shark Tank’ Reject Last Year – Here’s What the Founder Says About Jeff Bezos, CNBC (Feb. 22, 2019, 10:33 AM), https://www.cnbc.com/2018/02/27/amazon-buys-ring-a-former-shark-tank-reject.html.

[5] See id.

[6] See Drew Harwell, Doorbell-Camera Firm Ring has Partnered with 400 Police Forces, Extending Surveillance Concerns, The Washington Post (Aug. 28, 2019, 6:53 PM), https://www.washingtonpost.com/technology/2019/08/28/doorbell-camera-firm-ring-has-partnered-with-police-forces-extending-surveillance-reach/.

[7] See id.

[8] See id.

[9] See Katz v. United States, 389 U.S. 347, 505, 516 (1967).

[10] See id. at 515.

[11] See id. at 516.

[12] United States v. Jones, 132 S.Ct. 945, 948 (2012).

[13] See Katz, supra note 9, at 516.

[14] See id.

By: Patrick Macher

On Friday, October 4, 2019, Daryl Morey, the General Manager of the Houston Rockets, tweeted his support for the Hong Kong protests with the words “Fight for Freedom, stand with Hong Kong.” Within days, Morey was met with an unexpected backlash including the Consulate-General of the People’s Republic of China in Houston denouncing the comments of Morey, the Chinese Basketball Association suspending all cooperation with the Rockets and the NBA releasing a statement characterizing Morey’s tweet as regrettable.[1]

 

Since Adam Silver became NBA Commissioner in 2014, he has been renowned for his strong support of players and social justice. Silver’s commitment to morality was demonstrated early in his career, when he banned Los Angeles Clipper’s owner Donald Sterling. Sterling was banned from all NBA activities for his racially charged comments in a privately recorded conversation with his mistress.[2]  Silver continued to demonstrate his support for freedom of speech when Fox News Journalist Laura Ingraham advised Lebron James, one of the NBA’s best and most outspoken players, to “shut up and dribble,” in response to his comments regarding politics and President Trump.[3]

 

There are many explanations that could be reasoned as to Adam Silver’s fundamentally opposed handling of Lebron’s freedom of public speech and the harsh punishment of Donald Sterling, compared to his denouncement of Morey’s tweet. However, one reason stands out, conservatively estimated, the NBA generates about $500 million annually from the Chinese market.[4]

 

In July, a popular media outlet, China’s Tencent, signed a five-year, $1.5 billion deal to be the leagues exclusive online digital partner in China. Sports Business Journal valued the NBA’s business arm in China, NBA China, at $5 billion. Beyond that, players and American brands are invested in the large Chinese market such as Stephen Curry with Under Armour and Lebron James with Nike. Both of which have formerly done annual tours on the Chinese markets in the NBA offseason.[5]

 

China has around 1.4 billion people, compared to the nearly 327 million in the United States. The NBA looks to the Chinese market as a major source of growth in the near future. However, the NBA has since felt significant economic effects of Morey’s 33-character tweet.[6]

CCTV, the NBA’s primary broadcasting partner and Tencent, the primary online partner, have suspended all streaming of NBA games. Sponsor Li-Ning suspended its sponsorship of the Houston Rockets. Houston Rocket’s merchandise, a previously popular commodity due to the Hall-of-Fame career of China’s Yao Ming, has since disappeared off of many shelves in Hong Kong sporting goods stores.[7]

 

Daryl Morey did what millions of Americans do every day. Morey voiced his opinion over a social media platform with no expectation of the repercussions to come. Morey was exercising the right to freedom of speech but had failed to exercise caution.  Hours later, Morey faced denouncement of his tweet from an international embassy and a public reprimand from his bosses’ boss.

 

Lawmakers from both parties criticized the NBA and the Rocket’s lack of support for Daryl Morey’s pro-democracy message.[8] After an outpouring of American support for Morey and a backlash of anger towards the NBA, Commissioner Adam Silver clarified that Morey’s tweet was “regrettable” not because of the content, but because it upset the NBA’s Chinese supporters.[9]

 

Whether or not you agree with Morey’s tweet is a personal and political question. The law protects Morey’s right to express his opinion on the platform of his choosing. However, the economy represents the ultimate equalizer. The NBA, the Houston Rockets and Daryl Morey have suffered significant financial losses from Morey’s 33-character tweet. All three parties will “rebound,” but the fiasco demonstrates the significant impact

[1] See Matthew Yglesias, The Raging Controversy Over the NBA, China, and the Hong Kong protests, explained, Vox (Oct. 7, 2019) https://www.vox.com/2019/10/7/20902700/daryl-morey-tweet-china-nba-hong-kong

 

 

 

 

 

[2] See Mike Wise, Chief of America’s Blackest League Talks About Race and Social Justice, The Undefeated (Dec. 25, 2019) https://theundefeated.com/features/chief-of-americas-blackest-league-talks-about-race-and-social-justice-nba-adam-silver/

 

[3] See Emily Sullivan, Laura Ingraham Told Lebron James to Shut Up and Dribble; He Went to the Hoop, The Two-Way (Feb. 19, 2018) https://www.npr.org/sections/thetwo-way/2018/02/19/587097707/laura-ingraham-told-lebron-james-to-shutup-and-dribble-he-went-to-the-hoop

 

[4] See Jeff Zillgitt & Mark Medina, An Impasse Over Pro-Hong Kong Tweet Simmer, What’s at Stake for the NBA in China?, Usa Today (Oct. 9, 2019) https://www.usatoday.com/story/sports/nba/2019/10/09/nba-china-hong-kong-whats-at-stake/3912447002/

 

[5] See id.

 

[6] See Michael McCann, Analyzing the Fallout Between the NBA and China After Daryl Morey’s Tweet, Sports Illustrated (Oct. 7, 2019)

 

[7] See Isabel Togoh, The Fallout from Daryl Morey’s Pro-Hong Kong Tweet is Now a Very Expensive Problem for the NBA, Forbes (Oct. 8, 2019) https://www.forbes.com/sites/isabeltogoh/2019/10/08/the-fallout-from-daryl-moreys-pro-hong-kong-tweet-is-now-a-very-expensive-problem-for-the-nba/#1c3a35141c8b

 

[8] See Tyler Olson, Lawmakers Dunk on NBA for ’Shamefully Retreating’ After Rockets GM’s China Criticism, Fox News (Oct. 7, 2019) https://www.foxnews.com/politics/lawmakers-dunk-on-nba-china-over-rockets-gm-tweet

 

[9] Chelsea Howard, Adam Silver Clarifies Comments on Daryl Morey’s Controversial Tweet, Sporting News (Oct. 10, 2019) https://www.sportingnews.com/us/nba/news/adam-silver-daryl-morey-had-right-to-tweet-china-tv-wont-carry-nba-games/18n3dxjud9ngf1eypvvoe1t0z4

 

image source: https://www.wbur.org/bostonomix/2019/10/10/daryl-morey-china-hong-kong-rockets-mit-boston

By: Derek Reigle

The Golden State Killer, also known as the East Area Rapist or the Original Night Stalker infamously murdered over a dozen people and raped more than fifty victims from 1976 to 1986.[1] Despite these horrible crimes, the identity of the Golden State Killer had eluded justice for decades.[2] However, on April 24th, 2018, investigators solved this cold-case and arrested Joseph DeAngelo, a 72-year-old man and former police officer, as the Golden State Killer.[3] The police broke open the case using the tactic controversial of familial DNA Testing.[4]

The actual science of familial DNA testing is complicated, but the concept is simple. Are you familiar with websites such as Ancestry.com or 23andme.com? These websites allow one to submit your DNA through a kit that can be sent to one’s house.[5] These kits only require a saliva sample.[6]After your DNA is collected and analyzed, these websites can reveal a staggering amount of information about oneself.[7] One can learn where your ancestors are from, whether one has certain genetic predispositions that can be passed onto one’s children, or even how one’s genes affect your caffeine consumption.[8] Furthermore, these DNA results can be uploaded to other websites such as GEDmatch.com that can reveal even more comprehensive information about one’s genealogy.[9]

An additional key aspect of these DNA tests is that they allow you to view family members that were known, or previously unknown.[10] This can be done by identifying certain genetic similarities in one’s genealogy.[11] Naturally, this ability to track down long lost family has amazing benefits that can allow one to learn more about their family.[12] However, the ability to track down forgotten relatives has opened the door for law enforcement to identify criminals.[13]

The Golden State Killer was caught because a member of his family had uploaded their genetic DNA results to GEDmatch.com.[14] Police had DNA from the crime scenes from the 1970 and 1980’s but had no way to identify whose it was.[15] Thus, they uploaded this DNA to GEDmatch.com and were able to find out who the great-great-great-grandparents were of the unidentified DNA.[16] After crafting 25 family trees, using incredibly detailed historical research, investigators were able to zero in on Joseph DeAngelo.[17] After identifying DeAngelo as a suspect, police recovered a discarded object by DeAngelo that has his DNA on it.[18] Law enforcement was then able to match the DNA between DeAngelo and the Golden State Killer.[19] DeAngelo now faces thirteen counts of murder.[20] Prosecutors have announced that they will be seeking the death penalty.[21]

This is an amazing story that testifies to the awesome power that familial DNA testing has to find and locate unknown criminals.[22] However, this case raises several additional questions that will have vast legal ramifications as genetic identification techniques only become more advanced because of technology’s unique ability to consistently improve over time.[23]

Across America, civil liberty groups like the ACLU have challenged familial DNA testing as invasive of an individual’s privacy rights.[24]  Should a family member consenting to have their genetics analyzed reveal information of a third party that has not consented? Further questions regarding the values of our criminal justice system such as fairness, equality and deterrence of such a futuristic law enforcement technique are now being raised. GEDmatch.com, Ancestry.com and 23andme.com have all responded to concerns about privacy and the use of genetic material to aid law enforcement by updating their standards of privacy and releasing a variety of statements.[25] Generally, search warrants are required to access this information on these websites.[26]

Familial DNA testing is not going away and will continue to be used by law enforcement.[27] In order to better assess the benefits and consequences of this unique crime-fighting technique, one should know the story of the Golden State Killer.

[1]  See Hilary Brueck, The Suspected Golden State Killer was Finally Caught Because his Relative’s DNA was Available on a Genealogy Website, Business Insider (Apr. 27, 2018), https://www.businessinsider.com/golden-state-killer-caught-because-relatives-dna-online-2018-4.

[2] See Id.

[3]See Id.

[4] See Associated Press, The Latest: Investigator: Free DNA Website Helped Crack Case, Business Insider (Apr. 27, 2018), https://www.businessinsider.com/ap-the-latest-investigator-free-dna-website-helped-crack-case-2018-4.

[5] See How does AncestryDNA Work? An Inside Look at The Process, Ancestry (last visited Oct. 20, 2019), https://www.ancestry.com/dna/lp/how-does-ancestrydna-work; 23andMe, 23andMe, How It Works!, Youtube (July 2, 2018), https://www.youtube.com/watch?time_continue=7&v=C6O9xKdCl9U.

[6] See Id.

[7] See Id.

[8] See Id.

[9] See GEDmatch.,Your DNA Guide, (last visited Oct. 20, 2019), https://www.yourdnaguide.com/upload-to-gedmatch.

[10] See Brueck, supra note 1.

[11] See Id.

[12] See Id.

[13] See James Rainey, Familial DNA puts Elusive Killers Behind Bars. But Only 12 states Use It., NBC News (Apr. 28th, 2018), https://www.nbcnews.com/news/us-news/familial-dna-puts-elusive-killers-behind-bars-only-12-states-n869711.

[14] See Brueck, supra note 1.

[15] See Justin Jouvenal, To Find Alleged Golden State Killer, Investigators First Found his Great-Great-Great-Grandparents, The Washington Post (Apr. 30, 2018), https://www.washingtonpost.com/local/public-safety/to-find-alleged-golden-state-killer-investigators-first-found-his-great-great-great-grandparents/2018/04/30/3c865fe7-dfcc-4a0e-b6b2-0bec548d501f_story.html.

[16] See Id.

[17] See Id.

[18] See Id.

[19] Breeanna Hare and Christo Taoushiani, What We Know About The Golden State Killer Case, One Year After A Suspect Was Arrested, CNN (Apr. 24, 2019), https://www.cnn.com/2019/04/24/us/golden-state-killer-one-year-later/index.html

[20] See DA Will Seek Death Penalty Against Golden State Killer Suspect Joseph DeAngelo, CBS Sacramento (Apr 10, 2019), https://sacramento.cbslocal.com/2019/04/10/joseph-deangelo-da-seeking-death-penalty/.

[21] See Rainey, supra note 13.

[22] See Id.

[23]See Alison E. Berman and Jason Dorrier, Technology Feels Like It’s Accelerating — Because It Actually Is, Singularity Hub (Mar. 22, 2016), https://singularityhub.com/2016/03/22/technology-feels-like-its-accelerating-because-it-actually-is/.

[24] See Shankar Narayan, Familial DNA Searching: Troubling Civil Liberties Challenges, NWSidebar (June 20, 2018), https://nwsidebar.wsba.org/2018/06/20/familial-dna-searching-troubling-civil-liberties-challenges/.

[25]See Eric Rosenbaum, 5 Biggest Risks of Sharing Your DNA with Consumer Genetic-Testing Companies, CNBC (June 16, 2018), https://www.cnbc.com/2018/06/16/5-biggest-risks-of-sharing-dna-with-consumer-genetic-testing-companies.html.

[26] See Colin McFerrin, DNA, Genetic Material, and A Look at Property Rights: Why You May Be Your Brother’s Keeper, 19 Tex. Wesleyan L. Rev. 967, 998 (2013).

[27] See Justin Poulsen, Your Relative’s DNA Could Turn You Into a Suspect, Wired (Oct. 13, 2015), https://www.wired.com/2015/10/familial-dna-evidence-turns-innocent-people-into-crime-suspects/.

image source: https://pixabay.com/illustrations/dna-biology-medicine-gene-163466/

By: Tabetha Soberdash

The technology of 3D printing is bringing to reality things that once were only viewed as possible in science fiction movies.[1] Simply put, 3D printing is “a manufacturing process for the rapid production of three-dimensional parts directly from computer models.”[2] It works by depositing layer upon layer of materials until the desirable three-dimensional object is created.[3] As such, by a simple input of a design and materials, the technology can print customizable, three-dimensional products at the push of a button.[4] The technology has shown to be beneficial in many aspects, from allowing for rapid prototyping to reducing transport costs.[5] Therefore, many industries have began to utilize the technology, such as aerospace, medicine, and education.[6] As the technology provides the convenience of creating fully customizable products in the privacy of one’s own homes, many private individuals have also started utilizing the technology as well. [7]

With all of the benefits and advantages that come with the simple purchase of a 3D printer, one type of creatable product has found its way to becoming a high source of controversy and debate: firearms.[8] With a 3D printer, a design, and a filament, an individual can create a fully operational weapon without the need to pass a background check.[9] In addition, these firearms can be made out of plastic materials, making it harder to detect them.[10] Further, as they are home-made firearms, they do not contain genuine serial numbers, allowing for a cumulation of untraceable firearms in the country.[11] Many fear that criminals could take advantage of this to commit or attempt to commit additional crimes, and time is showing that fear to be more than just a mere possibility.[12] For example, a man was arrested in 2017 after officers heard three shots in woods in Texas.[13] Upon arrest, it was found that the man had 3D printed his firearm after he had failed the background check necessary to purchase one.[14] After making the firearm, he proceeded into the woods with “what federal attorneys called a ‘hit list’ of Democratic and Republican lawmakers, including their office and home addresses.”[15]

In response to this public safety risk, many legislative actions, both federal and state, have been presented in attempt to provide for more regulation to support gun safety.[16] One such action occurred on June 13, 2019 when the 3D Printed Gun Safety Act of 2019 was introduced in Congress.[17] If passed, the 3D Printed Gun Safety Act of 2019 would prohibit the distribution of 3D printer plans for the printing of firearms.[18] However, it is facing opposition by those who are concerned with how limiting distribution of 3D printer plans would affect individual liberties, particularly those given by the First Amendment.[19] Opponents against the bill argue that code and 3D planner blueprints should be a protected form of free speech under the First Amendment, as such limiting their distribution infringes upon the freedom of speech.[20] Stuck between upholding individual liberties and pursuing public safety, it has yet to be seen whether the substantial risk of crimes occurring with 3D printed firearms will be enough to promote Congressional votes in favor of the 3D Printed Gun Safety Act of

image source: https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years

[1]See Jeffrey T. Leslie, COMMENT: The Internet and Its Discontents: 3-D Printing, The Commerce Clause, And A Possible Solution to an Inevitable Problem, 17 S.M.U. Sci. & Tech. L. Rev. 195, 195 (2014).

[2]Emanuel Sachs et al., Three Dimensional Printing: Rapid Tooling and Prototypes Directly from CAD Representation, 39 CIRP Annals – Manufacturing Tech. 27, 28 (1990).

[3]See Jessica Berkowitz, ARTICLE: Computer-Aided Destruction: Regulating 3D-Printed Firearms Without Infringing on Individual Liberties, 33 Berkeley Tech. L.J. 53, 56 (2018).

[4]See id. at 58.

[5]See Emanuel Sachs et al., Three Dimensional Printing: Rapid Tooling and Prototypes Directly from CAD Representation, 39 CIRP Annals – Manufacturing Tech. 27, 28 (1990).

[6]See John F. Sargent, Jr., & R.X. Schwartz, Cong. Research Serv., R45852, 3D Printing: Overview, Impacts, and the

Federal Role 1 (2019).

[7] See Berkowitz, supra note 3 at 66.

[8]See Berkowitz, supra note 3 at 53–54.

[9]See id. at 56–57.

[10]See 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[11]See id.

[12]See id.

[13]See Matthew S. Schwartz, Texas Man With 3D-Printed Gun And ‘Hit List’ Of Lawmakers Sentenced To 8 Years, NPR (Feb. 14, 2019), https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years.

[14]See id.

[15]Id.

[16]See Matthew S. Schwartz, Texas Man With 3D-Printed Gun And ‘Hit List’ Of Lawmakers Sentenced To 8 Years, NPR (Feb. 14, 2019), https://www.npr.org/2019/02/14/694641578/texas-man-with-3d-printed-gun-and-hit-list-of-lawmakers-sentenced-to-8-years; 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[17]See 3D Printed Gun Safety Act of 2019, S. 1831, 116th Cong. § 2 (as introduced in Senate, June 13, 2019); 3D Printed Gun Safety Act of 2019, H.R. 3265, 116th Cong. § 2 (as introduced in the House, June 13, 2019).

[18]See id.

[19]See id.

[20]See Berkowitz, supra note 3 at 72–75.

By: Brandon Baker

People have been enjoying the outdoors since the beginning of time. Throughout history, people have interacted with nature through hunting, fishing, hiking, among other ways. Relatively recently though, many individuals in the United States have lost their connection to the outdoors.[1] The increase of technology in our everyday lives and our dependence on it has been a major factor in this disconnect.[2] This is a cause for alarm as being outside is not just a great way to spend your free time, but has major health benefits too. [3]  Being outside has been linked to improving mental, as well as, physical health. [4]In an ever-changing society, nature is more important than ever as it allows people to reconnect with the natural world and feel refreshed.[5]

A major factor that is playing a role in society’s disconnect with nature is access. [6] Even if someone does desire to get outside and explore nature, they may not have anywhere to go. [7] In addition, someone may have an idea of where to go, but is unsure of whether the land is public or private. Instead of trespassing on someone’s land, for many it would be easier to just never go out. Lack of access has a major impact on one’s ability to experience nature, whether it be through hunting or hiking. [8] Though, the problems associated with lack of access go further than just someone deciding to stay inside. Many states use funds from hunting and fishing licenses to help conserve precious habitat for wildlife. [9] Additionally, federal legislation places a tax on the sale of firearms and other hunting related goods in which the money is distributed to states for wildlife conservation. [10]  If hunters cannot hunt due to lack of access, then the federal government has less money to distribute to the states to aide in conservation projects. [11] This would be a major blow to conservation efforts across the United States as around 59% percent of funding to State wildlife agencies comes from hunting and fishing related activities. [12]

To summarize, as a society, we are more disconnected with the outdoors than ever before and are failing to reap the mental and physical health benefits that nature gives us. [13] In addition, even if someone wanted to get outside, lack of access could be a roadblock that leads them to stay inside. [14] So how do we, as a society, fix this?

A handful of companies have attempted to tackle the access issue, and thus, play a role in getting more people outside. One such company is Montana-based onX, which provides outdoorsmen with access to hundreds of maps showing what land is public and what land is private. [15] While this may seem like a minor breakthrough, it is not. These maps can be accessed on your smartphone and not only tell the user what land is public or private, but also includes private landowner names. [16] These maps help users by showing them where they can legally go and as a result, can play a role in not only getting people outside, but also by lowering the chances that they are trespassing on someone’s land. If someone is able to see where they can and cannot go, then the chances of them heading outside are increased.

The effects of these maps are that people are aware of what land they are able to access. By having people know what land they can legally be on, they will be more likely to head outside and experience nature.  If more people are outside and experiencing nature, they can reconnect with the outdoors and reap the endless benefits that our natural environment provides.

[1] See U.S. study shows widening disconnect with nature, and potential solution, Yale Env’t 360 (Apr. 27, 2017), https://e360.yale.edu/digest/u-s-study-shows-widening-disconnect-with-nature-and-potential-solutions.

[2] Id.

[3]See Kevin Loria, Being outside can improve memory, fight depression, and lower blood pressure—

here are 12 science-backed reasons to spend more time outdoors, Bus. Insider (Apr. 22, 2018), https://www.businessinsider.com/why-spending-more-time-outside-is-healthy-2017-7.

[4] Id.

[5] Id.

[6] See Public access to private lands, Cong. Sportsmen’s Found. http://congressionalsportsmen.org/policies/state/public-access-to-private-lands.

[7] Id.

[8] Id.

[9] See Nathan Rott, Decline in hunters threatens how U.S. pays for conservation, NPR (Mar. 20, 2018), https://www.npr.org/2018/03/20/593001800/decline-in-hunters-threatens-how-u-s-pays-for-conservation.

[10] See Sam Schipani, Did you know that gun sales fund state wildlife programs?, Sierra Club (Apr. 12, 2018), https://www.sierraclub.org/sierra/pittman-robertson-wildlife-conservation-fund.

[11] Id.

[12] Rott, supra note 9.

[13]Loria, supra note 3.

[14] Supra note 6.

[15] See The #1 GPS Hunting App, onX, https://www.onxmaps.com/.

[16] Id.

image source: http://montanawildlife.org/public-land-debate/

By: Cassidy Crockett-Verba

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

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

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

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

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

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

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

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

[2] See

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

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

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

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

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

[8] See Id.

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

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

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

[12] See id.

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

[14] See id.

[15]  See id. at 255-56.

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

[17] See id.

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

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

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

[21] See id.

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

[23] See id.

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