Richmond Journal of Law and Technology

By: Ryan Martin,

Genetic testing is a fast-growing area of medical technology, but in many respects the legal world has yet to match this pace.[1] These genetic tests can detect the likelihood of developing Celiac disease, Alzheimer’s, and various forms of cancer.[2] One of the most popular areas for genetic testing has been to detect gene mutations that lead to breast cancer. Although breast cancer rates have remained the same between 2005 to 2013, a recent study reported the rate of women receiving mastectomies increased 36 percent during that time.[3] Certainly this increase was partly aided by Angelina Jolie’s release of her own genetic breast cancer test subsequent double mastectomy.[4] However, this trend has shown a larger willingness to use genetic testing as a preventative health method. While this testing could save countless lives, it raises new concerns about medical malpractices cases, the privacy of one’s genetic data and how insurance companies can use this data.

Under traditional malpractice claims physicians are already at the risk for being sued for failure to: evaluate a lump, perform or analyze a mammogram, and perform or analyze a biopsy.[5] In these malpractice cases the proper care is to be determined by the then available facts which were or ought to have been known.[6] An action cannot succeed unless the diagnosis or error was made in a manner that did comply with the recognized standard of medical care by physicians in the same specialty, under the same or similar circumstances.[7] But what happens when different physicians are using different services to acquire these genetic tests, and what if it is publicized that certain tests contain serious flaws? Furthermore, if the results of a test turn out to be incorrect could a doctor be liable for having recommending that specific company?

Myriad Genetics has been the leader in genetic testing that identifies women who have an increased chance of developing breast cancer. This test detects dangerous forms of BRCA1 or BRCA2 genes that lead to a substantially higher risk for cancer.[8] If either of these genes is mutated a woman’s risk of developing breast cancer can soar to as high as 85 percent.[9] For years Myriad was the sole distributor of BRCA testing and made more than $2 billion from its BRCA tests.[10] However, the US Supreme Court overturned their patent which opened the door for other companies to begin offering the same test for significantly cheaper prices.[11]

As recently reported, Myriad is now advising that these other companies test have significant flaws and are missing these deadly mutations. Spokesman for Myriad, Ron Rogers, suggested that, “We don’t know how many people are affected, but we believe it’s hundreds of thousands.”[12] Clearly, Myriad has an interest in having its competitors have inferior test results but this raises unanswered questions as to what the recognized standard is in the field of genetic testing. As always, to reduce risk of malpractice suits, physicians should advise on any risks associated with genetic testing as well as any surgeries performed because of those results.

There is also the issue of what access someone’s family should have to their genetic results. There are currently no laws that say what a patient can or cannot do with their own genetic information.[13] However, what if that information could lead to a critical medical diagnosis in a child or sibling? Alternatively, someone who publicizes their genetic information—like Angelina Jolie—could be divulging genetic information of their family members. This raises privacy concerns and issues over who owns that information.[14]

The law has yet to catch up in the insurance realm as well. Typically, under the Genetic Information Nondiscrimination Act (GINA), health insurance companies are barred for denying coverage to people with a gene mutation.[15] However, the law does not encompass life insurance companies, long-term care, or disability insurance.[16] These insurers can ask about family history of disease and genetic information and are authorized to deny coverage if the person is deemed too risky.[17] While GINA applies at the federal level various states, such as CA, have passed legislation prohibiting discrimination based on genetic testing results.[18]

Ultimately, the world of technology is moving too fast for the legal world to keep pace. Courts must address this issues as they arise to give a sense of how genetic testing will be assessed in malpractice cases and state legislatures should take the lead to address the issues posed by genetic testing and insurance. Further information on genetic testing can be found here.

[1] See Genetic Testing Market Headed for Growth and Global Expansion by 2020 – Persistence Markey Research, medGadget, (Nov. 14, 2016), http://www.medgadget.com/2016/11/genetic-testing-market-headed-for-growth-and-global-expansion-by-2020-persistence-market-research.html.

[2] See id.

[3] See Gillian Mohney, Mastectomies Increased 36 Percent From 2005 to 2013, Report Finds, ABC News, (Feb. 22, 2016), http://abcnews.go.com/Health/mastectomies-increased-36-percent-2005-2013-report-finds/story?id=37116791.

[4] See Alexandra Sifferlin, Angelina Jolie’s Surgery May Have Doubled Genetic Testing Rates at One Clinic, TIME, (Sept. 2, 2014), http://time.com/3256718/angelina-jolie-genetic-testing/.

[5] See Medical Malpractice in Diagnosis and Treatment of Breast Cancer, 92 A.L.R.6th 379.

[6] See id.

[7] See id.

[8] See Sharon Begley, As revenue falls, a pioneer of cancer gene testing slams rivals with overblown claims, STAT, (Nov. 29, 2016), https://www.statnews.com/2016/11/29/brca-cancer-myriad-genetic-tests/.

[9] See Dr. Ian Shyaka, Breast cancer: Early detection is the key to survival, The NewTimes, (Nov. 14, 2016), http://www.newtimes.co.rw/section/article/2016-11-14/205322/

[10] See Begley, supra note 8.

[11] See Leo O’Connor, Experts Debate MDx Industry Impact of AMP v Myriad Three Years After Court’s Decision, genomeweb, (Nov. 15, 2016), https://www.genomeweb.com/business-news/experts-debate-mdx-industry-impact-amp-v-myriad-three-years-after-courts-decision

[12] See Begley, supra note 8.

[13] See Emily Mullin, Do your Family Members Have a Right to Your Genetic Code?, MIT Tech. Rev., (Nov. 22, 2016), https://www.technologyreview.com/s/602946/do-your-family-members-have-a-right-to-your-genetic-code/.

[14] See Privacy in Genomics, Nat’l Human Genome Research Inst., (Apr. 21, 2015), https://www.genome.gov/27561246/privacy-in-genomics/.

[15] Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (2008).

[16] See Christina Farr, If You Want Life Insurance, Think Twice Before Getting A Genetic Test, Fast Company, (Feb. 17, 2016), https://www.fastcompany.com/3055710/if-you-want-life-insurance-think-twice-before-getting-genetic-testing.

[17] See id.

[18] See id.

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By: Brad Stringfellow,

The FTC is cracking down on social media ads and seeking to enforce proper disclosure amongst celebrity endorsers and advertisers. The means by which people connect with one another seem to be expanding at an ever-increasing rate. As conventional media loses its predominant grasp on consumer attention, advertisers have sought alternative means to promote their products. The FTC is doing its best to step in and regulate advertisements across all platforms, including social media.

Under the Federal Trade Commission Act, the FTC has been granted the broad authority to regulate “unfair or deceptive practices in or affecting commerce.”[1] FTC guidelines can be boiled down to four basic principles that all advertisements must meet: “1) Advertisements must be truthful and not misleading; 2) Advertisements may not be unfair or deceptive; 3) Advertisers must substantiate all claims, whether express or implied; 4) Any disclosures necessary to make an advertisement accurate must be clear and conspicuous.”[2]

The FTC has been putting in a fair amount of effort to adapt to changes in the digital landscape, and has done a fair job of doing so for a federal agency. The most recent change was put into place in December 2015 regarding deceptive formatting.[3] The FTC has been focusing heavily on proper disclosures within all social media. A handy, non-technical guide has been created by the FTC and put on their website to help people understand how to properly disclose promoted material.[4]

Social media stars who promote products or services are dubbed influencers.[5] Because of the personal nature of social media accounts and the much more informal atmosphere, disclosures are all the more important for the public to know when an influencer is sharing on honest opinion or hawking a product. The FTC guide gives a handy example of the weight you would give to the opinion of a travel blogger who paid from their own pocket to stay at a resort versus the opinion of a travel blogger paid by the resort.[6]

One is obligated to follow the guidelines if they have a “material connection” to an advertiser; this can be met by receiving gifts or being related to someone at the company.[7] The guide requires that a disclosure be made when a lack of disclosure misleads “a significant minority” of consumers.[8]

Anticipating questions of constrained formats, such as Twitter, the guide points out that “sponsored” and “promotion” are only nine characters, “paid ad” is only seven characters, and that “#ad” or starting the tweet with “Ad:” is only three characters: the FTC does not require specific words to meet the disclosure threshold, but does provide simple suggestions for fulfilling it.[9] In situations where a disclosure is not possible, such as adding a “Like” to a company or product, the FTC recommends against such acts.[10] It is interesting to note that making a three hour video endorsing a product is acceptable with one spoken sentence disclosing your relationship, but a simple tap of your thumb giving a heart symbol to a product page is impossible to disclose.

In order to demonstrate the seriousness with which they take these guidelines, the FTC has pursued several social media campaigns that made insufficient efforts to disclose. The FTC recently reached a settlement with Warner Brothers over the promotion of a video game advertised by several Youtube influencers.[11] While Warner Brothers, through an ad agency, instructed the influencers to include a disclosure statement buried in the video description box; the FTC found this insufficient and pursued a civil action.[12] Earlier in the year, the FTC went after Lord & Taylor, clothing manufacturers, who used fashion bloggers to promote a sundress from a new line.[13] While the company instructed the influencers to include the company name and dress line in the Instagram posts, the FTC found this as an insufficient disclosure as it provided no indication the influencers were paid for the post.[14]

Several media watch dog groups have also taken action to help enforce policy guidelines. Three such watch dog groups have filed complaints with the FTC regarding sponsored content targeted towards children.[15] Following the line of reasoning of harsh censures on advertisers of Saturday morning cartoons in the 1980s, the groups petition strict guidelines or outright banning of sponsored content coming from Disney and Dreamworks through various agents.[16] No action has been taken by the FTC yet.[17] Likewise, another watch dog group found over 100 instances of paid product placement with improper disclosure by various members of the Kardashian family.[18] The Kardashians were given the option to delete improperly disclosed posts or face being turned in to the FTC.[19]

A few companies are recognizing the FTC’s efforts and are taking a pro-active approach in promoting disclosure. As of last month, Youtube has updated their sponsored content guidelines.[20] They have also added a few new features to help promote disclosure, such as the option to add a “sponsored content” line at the beginning of a video.[21] Electronic Arts (EA), a gaming software company has also put in place new policies.[22] EA now mandates that any influencer receiving any kind of benefit (free software, paid trips, gifts, etc) add watermarks or hashtags “Supported by EA” for content where EA has no editing rights, and “Advertisement EA” for content where EA does have editing rights.[23]

The FTC has established standards for the social media world, and has begun enforcing their policy. Advertisers are taking notice and beginning to take action. Hopefully, consumers will benefit and be better able to distinguish when they are advertised to.

[1] 15 USC § 45(a)(2).

[2] See Michael W. Schroeder. The FTC’s Crackdown on Social Media #Ads, Lex (Nov. 3, 2016), http://www.lexology.com/library/detail.aspx?g=a62ff1c5-c8fc-45f7-9eea-903be4ecac58.

[3] See id.

[4] See Fed. Trade Comm’n, The FTC’s Endorsement Guides: What People are Asking (last visited Nov. 23, 2016), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.

[5] See id.

[6] See id.

[7] See id.

[8] See id.

[9] See supra note 4, Fed. Trade Comm’n.

[10] See id.

[11] See Wendy Davis, Warner Bros. Finalize FTC Settlement Over Influencer Campaign, The Daily Online Examiner (Nov. 22, 2016, 5:14 PM), http://www.mediapost.com/publications/article/289543/warner-bros-finalizes-ftc-settlement-over-influen.html.

[12] See id.

[13] See id.

[14] See id.

[15] See Jon Fingas, FTC Complaint Blasts Disney, Google over Child Influencer Videos, Engadget (Oct. 24, 2016), https://www.engadget.com/2016/10/24/ftc-complaint-over-influencer-videos-targeting-kids/.

[16] See id.

[17] See id.

[18] See Janko Roettgers, Kardashians in Trouble Over Paid Product Endorsements on Instagram, Variety (Aug. 22, 2016, 10:52 AM), http://variety.com/2016/digital/news/kardashians-instagram-paid-ads-product-placements-1201842072/.

[19] See id.

[20] See Youtube, Paid Product Placements and Endorsements (last visited Nov. 23, 2016), https://support.google.com/youtube/answer/154235#paid_promotion_disclosure.

[21] See id.

[22] See Julia Alexander, EA puts Influencers in Check with Disclosure Rules for Sponsored Content, Polygon (Nov. 16, 2016, 4:00 PM), http://www.polygon.com/2016/11/16/13655180/ea-sponsored-content-youtube-twitch-disclosure.

[23] See id.

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By: Sophia Brasseux

This past October, a fourteen-year-old girl from the UK, known as JS, died of a rare form of cancer.[1]  However, she just might have a second chance at life. Justice Peter Jackson’s ruling on October 17 granted her mother control over decisions regarding the disposal of her daughter’s body in a groundbreaking family law dispute.[2]

In a letter JS wrote to the court, she expressed her desire to be cryogenically preserved, which would allow her body to be unfrozen upon the discovery of a cure for her rare form of cancer.[3]  When JS’s father disagreed with her decision—one that her mother supported—the family asked a High Court Judge to intervene.[4] Judge Jackson emphasized that the focus of his ruling would not be on the science, but rather on the parental dispute concerning whether the mother or father would be responsible for JS’s body after her death.[5] In his court opinion, the Judge expressed his concerns about the controversial technology.[6]

Cryopreservation is the process of freezing a human body to prevent decay after death.[7] Though the process is complicated, and still very much developing, there are three basic steps: first, the body is placed in an ice bath immediately following its being legally declared dead; second, the organs and cells are prepared for freezing temperatures by replacing the body’s fluids with agents that work as antifreeze; third, the body is placed in an insulating bag and then inside a cooling box with liquid nitrogen until it reaches minue-200 degrees Celsius.[8] Once this process is complete, the body can be transported to various storage facilities.[9] JS was transported to the Cryonics Institute, located in Michigan, on October 25.[10]

Cryopreservation has been met with mixed reviews; while some scientists are optimistic about its benefits, others are more skeptical. One such skeptic, Clive Coen, a professor of neuroscience at Kings College in London, questions whether revival is going to be a reality.[11] In Coen’s view, not only has there yet to be a revival of a human being,  a lack of weight has been given to the damage bodies incur from the antifreeze agents used during the freezing process.[12]

Many issues have led to controversy surrounding this recently developed technology, one being the uncertainty regarding its outcomes. Judge Jackson said that, not only was this the first case of its kind to come before the court in the UK, but also probably in the world.[13] In Jackson’s view, this new science will likely have the biggest impact on the future of family law.[14] Another issue is that, although cryopreservation is legal, it is still largely unregulated.[15] While regulation does exist for freezing sperm and embryos, those regulations do not encompass freezing the whole body; this sort of procedure had not yet been contemplated when regulations were initially passed.[16] Even so, preservation agreements are still considered an unsettled area of law when dealing with sperm and embryos.[17] These agreements are most successful when they are unambiguous, in line with public policy, and have extensive detail about the individuals involved.[18] Since human cryopreservation is so new, there is even less case law to base such conclusions in regards to how those sorts of agreements will be treated in court.

In JS’s case, the court’s decision to protect her post-mortem wishes gave her comfort in her final days. But what does this mean in a more general sense for family law?[19] This procedure is extremely expensive, especially considering the lack of certainty about the results, averaging around 37,000 euros for the most basic package.[20] Is the potential outcome worth the cost of the procedure plus litigation fees if a family cannot decide for themselves how to handle such a decision? Those in support of cryopreservation claim that the procedure is truly a leap of faith in the choice between “’definitely’ dying and ‘maybe’ living on.”[21] Even if the process does work, JS will likely have no living family and be stuck in the United States as a fourteen-year-old non-citizen with no conception of the present state of the world once she is brought back to life.[22] The revival of those who have been preserved may create even more legal issues well into the future.

[1] See Gordon Rayner, Girl, 14, Who Died of Cancer Cryogenically Frozen After Telling Judge She Wanted to be Brought Back to Life ‘In Hundreds of Years’, The Telegraph (Nov. 18, 2016), http://www.telegraph.co.uk/news/2016/11/18/cancer-girl-14-is-cryogenically-frozen-after-telling-judge-she-w/.

[2] See id.

[3] See id.

[4] See id.

[5] See Laura Smith-Spark, UK Teenager Wins Battle to have Body Cryogenically Frozen, CNN (Nov. 18, 2016), http://www.cnn.com/2016/11/18/health/uk-teenager-cryonics-body-preservation/.

[6] See id.

[7] See Meera Senthilingam, What is Cryogenic Preservation?, CNN (Nov. 18, 2016), http://www.cnn.com/2016/11/18/health/how-cryopreservation-and-cryonics-works/.

[8] See id.

[9] See id.

[10] See supra 5.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See supra 1.

[16] See id.

[17] See T.G. Schuster et al., Legal Considerations for Cryopreservation of Sperm and Embryos, Fertility and Sterility (July 2003). https://www.ncbi.nlm.nih.gov/pubmed/12849802.

[18] See id.

[19] See supra 1.

[20] See id.

[21] Id.

[22] See id.

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SHOTSPOTTER: DETECTING GUNFIRE FROM A MILE AWAY

By Lindsey McLeod

In recent years, Silicon Valley has taken on a range of issues that span the spectrum from consumer entertainment to government security and data protection.[1] Recently, Silicon Valley executives have made the jump into the gun violence arena, attempting to use technology to assist police officers in responding to shots fired. The technology, one of a many apps that are currently emerging in the tech-security world, is called ShotSpotter.[2]

ShotSpotter was initially developed to combat the growing gun violence program in urban areas within the United States.[3] The developers intended the app to meet the growing need to combat gun violence in the communities most affected.[4] The developers recognized a problem in that those who are most significantly impacted by gun violence on a regular basis are the least likely to report it, resulting in incident reports that grossly misrepresent the problem at hand.[5] For example, fewer than one in five shooting incidents are reported to police, and when reports are made to the police, the account is rarely accurate.[6] This miscommunication and misrepresentation causes police to respond inappropriately, further perpetuating the gun violence problem.[7]

ShotSpotter is cloud-based technology that creates a system similar to a large cyber network implanted over a geographic area, equipping that area with microphones and software monitoring.[8] The microphones are designed to suppress ambient noise and pay particular attention to loud “trigger” noises, which respond to “booms” and “bangs,” referred to as “impulsive noises.”[9] When a sound is triggered, the system sends an alert to the ShotSpotter headquarters location, where the monitoring review service—comprised of trained acoustic experts—makes the final determination regarding the origin of the audio.[10] When these impulsive noises are deemed the result of gunfire, the local police are alerted to the disturbance and dispatched to the area.[11] The police can then interrupt the event and terminate the gun violence event.

Despite the obvious need for police intervention like that which this app creates, critics of the app point to the lack of arrests it produces as evidence of the app’s ineffectiveness. For example, in Brockton, MA, between January 1, 2013 and September 28, 2015, the ShotSpotter technology alerted police of gun activity 296 times, yet those alerts led to only two arrests.[12] These unimpressive statistics represent the nationwide trend of the impact that ShotSpotter has had on combatting gun violence, increasing the frequency of alerts but doing little in terms of arrests.[13]

The developers, however, argue that this data is not representative of a technological failure; instead, the developers argue that this technology was not developed to lead to arrests, but rather to combat the problem at its origin.[14] Ralph Clark, the CEO of ShotSpotter, argues that “only a small number of individuals are responsible for most of a city’s gunfire and any tools available to get those folks off the street are important”.[15] Thus, though ShotSpotter has not led to an increase in arrests, the understanding by the residents of these high-risk communities is that police will respond quickly to the alert of gunfire, which will likely to lead to a decrease in the gunfire, and consequently a decrease in violence.[16] Effectively, the presence of such technology within high-risk communities should abolish the need for this technology altogether.[17]

Beyond the prosecution numbers of gun violence perpetrators, there is a legal issue presented in terms of the admissibility of material created by this technology. Although the infrequency of arrests suggests that there is little need for the use of this evidence at trial, the mere potential for its use nevertheless poses an interesting legal question. The use of this technology creates a feeling of a “big brother” presence, a phenomenon that tends to invoke Fourth Amendment concerns.[18] Additionally, this technology appears to invoke privacy concerns that, although not explicitly protected by the Constitution, are inferred by the Supreme Court rulings in cases such as Roe v. Wade and Bowers v. Hardwick.[19] Despite these concerns, United States v. Katz states that privacy concerns invoking the Fourth Amendment’s protection from unreasonable searched and seizures apply only to the search of a person, not the place. In these instances, then, the party supporting the ShotSpotter evidence could argue that this material is collected from the place, not the parties, that are present at the scene of the crime and is thus admissible.[20]

The courts consider the evidentiary issues loosely, which here would result in support of combatting crime as opposed to protecting the accused. A Massachusetts Superior Court recently deemed the material admissible in the first-degree murder trial of Dwayne Moore and Edward Washington.[21] In this trial, an expert witness from SST Inc. a, the company that manufactures ShotSpotter, testified about the timeframe during which the shots were fired and the time lapse between shots.[22] The use of this evidence in the Massachusetts Superior Court suggests that this evidence will be seen more frequently in the coming years in criminal proceedings as a means to prove, or disprove, the location and details of a shooting.[23] Because of the growing presence of these technologies in the criminal justice community, criminal defense attorneys should anticipate the impact that these technologies could have on evidence admitted at trial going forward.

[1] See Megan Smith, Expanding the Pentagon’s Silicon Valley Office, WhiteHouse.gov (May 20, 2016) https://www.whitehouse.gov/blog/2016/05/19/expanding-pentagons-silicon-valley-office (Secretary of Defense Ash Carter is taking bold steps to help the U.S. military take advantage of commercially driven technology and innovation).

[2] See ShotSpotter, ShotSpotter.com (Nov. 21, 2016) http://www.shotspotter.com/.

[3] See id.

[4] See id.

[5] See Law Enforcement Resources, ShotSpotter.com (Nov 17, 2016) http://www.shotspotter.com/law-enforcement.

[6] See id.

[7] Id.

[8] Here’s How the NYPD is Expanding ShotSpotter, ShotSpotter.com, (Nov. 17, 2016) http://www.shotspotter.com/news/article/heres-how-the-nypds-expanding-shotspotter-system-works.

[9] See id.

[10] See id.

[11] See id.

[12] See Matt Drange, ShotSpotter Alerts Police to Lots of Gunfire, But Produces Few Tangible Results, FORBES (Nov. http://www.forbes.com/sites/mattdrange/2016/11/17/shotspotter-alerts-police-to-lots-of-gunfire-but-produces-few-tangible-results/#71c59a892539.

[13] See id.

[14] See John Biggs, ShotSpotter CEO Ralph Clark Talks About the Future of City Surveillance, Tech Crunch (Nov. 20, 2016) https://techcrunch.com/2016/11/19/shotspotter-ceo-ralph-clark-talks-about-the-future-of-city-surveillance/.

[15] See id.

[16] See id.

[17] See id.

[18] U.S. Const. amend IV.

[19] See The Right of Privacy, Exploring Constitutional Conflicts, UMKC Law (Nov. 21, 2016) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html.

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

[21] See Stephen Neyman, Massachusetts Criminal Trial Using Gunshot Detection System to Support Witness Testimony in High Profile Murder Trial, Massachusetts Criminal Defense Attorney Blog (Feb. 2012) http://www.shotspotter.com/news/article/massachusetts-criminal-trial-using-gunshot-detection-system-to-support-witn.

[22] See id.

[23] See id.

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By: Etahjayne Harris,

“Virtual Reality (VR) is the use of computer technology to create a simulated environment. Unlike traditional user interfaces, VR places the user inside an experience.”[1] With virtual technology, a user can be transported to a destination of their choice in an instant. Today, virtual reality is increasingly becoming part of our actual reality.[2] For example, “[t]he virtual world Second Life is populated by 1 million people on a daily basis, and there are expected to be as many as 171 million active VR users by 2018.”[3] Companies like Microsoft Corp., Sony Corp., Facebook, Inc. and Samsung Electronics Co. Ltd., are major investors in this emerging technological field.[4] The number of virtual reality devices sold is projected to rise from 2.5 million units in 2016 to 24 million units in 2018. [5] Today, consumers may experience virtual worlds through products like Google Cardboard glasses, Samsung VR, and the Facebook owned Oculus Rift.[6]

Accurate environmental sounds and visual characteristics are essential to creating a truly lifelike virtual reality experience.[7] “As virtual worlds continue to grow in scope and popularity, they also become inextricably linked with the real world.”[8]  The need to create realistic, immersive virtual worlds necessarily means using multisensory effect designs (touch, appearance, sound, smell, taste). Do intellectual property rights like trademark rights extend to multisensory effect designs in virtual worlds?

Currently, intellectual property rights do not extend to multisensory effect designs in virtual reality worlds; but they should. Multisensory effect designs are what make virtual worlds seem more like the real world. Environmental elements like touch, taste, sound, smell, and appearance are very important in real life so it follows that these multisensory effects would be essential to creating quality immersive virtual reality experiences. Can these virtual reality multi-sensory effect designs be protected under trade dress? “Trade dress is a specific type of trademark.”[9] Under the Lanham Act, trademark protection extends to, “any word, term, name, symbol, or device” that “is likely to cause confusion, or to cause mistake, or to deceive” as to the source of a product.”[10] This is a very broad standard. In order to get trademark protection, a word, term, name, symbol, or device must be distinctive and used in commerce.[11] A trademark is considered distinctive if consumers recognize the mark as an indicator of the product source, such that they can use it to distinguish one producer’s product from another. [12] Thus, trade dress protection is limited to, “the meaningful use of a mark in a trade or business.”[13] Furthermore, [i]f the trade dress is not inherently distinctive, it can be protected only if, as a result of use, it has acquired secondary meaning in the marketplace.”[14]

“[W]hether a VR sensory scheme will be categorized as product design or packaging will have profound implications in its trade dress eligibility.”[15] If the Lanham Act requirements are satisfied, a virtual reality business owner may be afforded protection over multisensory effect designs that are either inherently distinctive or have acquired distinctiveness attributable to their business over time. The test for trade dress infringement is, “whether there is a likelihood of confusion resulting from the impression created by the defendant’s accused trade dress.”[16] So if the virtual reality business owner has a valid trademark in their multisensory effect design, he or she would be able to bring a claim against another virtual reality business owner that, “inappropriately used the mark in a way that generates consumer confusion.”[17]

The courts have not yet decided whether multisensory effect designs are protected under current trademark law. As of today, these designs are not protected under intellectual property law. As virtual reality gains in popularity and becomes more widespread, it will be important for the courts to resolve this issue.

[1] Brian Jackson, What is Virtual Reality? [Definition and Examples] Marxentlabs (2015), http://www.marxentlabs.com/what-is-virtual-reality-definition-and-examples/ (last visited Nov 30, 2016).

[2] See Jonathan M. Purow, Virtual Reality May Create Novel IP Issues In The Real World Law360 (2016), http://www.law360.com/articles/769479/virtual-reality-may-create-novel-ip-issues-in-the-real-world (last visited Nov 30, 2016).

[3] Id. 

[4] See id.

[5] See id.

[6] See id.

[7] See Brian Jackson, What is Virtual Reality? [Definition and Examples] Marxentlabs (2015), http://www.marxentlabs.com/what-is-virtual-reality-definition-and-examples/ (last visited Nov 30, 2016). 

[8] Erez Reuveni, ARTICLE: On Virtual Worlds: Copyright and Contract Law at the Dawn of the Virtual Age, 82 Ind. L.J. (2007).

[9] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 823 (2016).

[10] 15 U.S.C. § 1125(a) (2012).

[11] See Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 630 (6th Cir. 2002) (“Because we can conceive of no ‘thing’ inherently incapable of carrying meaning, any ‘thing’ can come to distinguish goods in commerce and thus constitute a mark within the meaning of the Lanham Act.”).

[12] See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n.11 (1982).

[13] See Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc., 280 F.3d 619, 630 (6th Cir. 2002) (“Because we can conceive of no ‘thing’ inherently incapable of carrying meaning, any ‘thing’ can come to distinguish goods in commerce and thus constitute a mark within the meaning of the Lanham Act.”).

[14] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 824 (2016).

[15] See id.

[16] J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 8:1 (4th ed. 2014).

[17] Ellii Cho, Copyright or Trade Tress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, Cardozo Arts and Entertainment Journal, 824 (2016).

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By: Hsiao-Han Wang,

The term “smart contract” refers to “the use of computer code to articulate, verify and execute an agreement between parties.”[1] Unlike traditional contracts, smart contracts are written in codes, stored on distributed ledgers (like a database that can store all sorts of information) and secured by cryptographic keys, which make them immutable and help to avoid malfunction.[2]

The idea of a smart contract is not new, but the development of “blockchain” technology provides a way for this concept to be put into practice.[3] Blockchain is a technology that creates “a decentralized, digital ledger that encrypts, registers, and verifies transactions” through a peer-to-peer system, “essentially making public (or private, if you want) record of transactions, stored on thousands of different computers.”[4] With these characteristics, smart contracts allow the transactions over computer system “be verified, monitored, and enforced without the presence of a trusted third party or central institution.”[5] Smart contract requires no direct human involvement after it has been made a part of the blockchain, and will automatically execute once the pre-set conditions are met.[6] As a result, smart contracts have the potential to avoid risks on implement of contracts, to improve efficiency and to reduce transaction costs in financial or commercial agreements.

As blockchain technology continues to advance, some people have begun to believe that smart contracts will soon become alternatives to traditional contracts.[7] People who embrace technologies are excited about the possibility that smart contract might encode and perform complex agreement automatically.[8] However, there are still some potential practical risks and problems that can arise from the use of smart contracts.

Coding errors and software bugs may be among the key concerns that users have. For example, just like traditional contracts where words and specific terms are used in the agreement, the code base may not perfectly reflect what the parties understand to be their agreement, or the effect of the code base may be misrepresented by a party to be different to what it actually is.[9] Since the execution of smart contracts relies on computer network, cybersecurity is also a potential risk area that should be taken into consideration. A $50 million hack happened to DAO, a decentralized investment fund which was funded by thousands of people raising about $160 million with code based on smart contract protocol, is an example showing the problem of lacking proper programming to secure the system against external attack.[10] Some smart contracts that rely “real-time data feeds” to execute entire or certain parts of the agreement may also face the risk that potential manipulation of underlying data feeds and indices will trigger real-time contract execution.[11]

In addition to the technology, other issues also need to be considered when disputes between parties arise. When parties take legal action, questions such as where to bring suit or what law to apply come into play. There is currently no international internet law. Therefore, negotiation on jurisdiction may need to be set up beforehand when parties involved are from different states or even nations.[12]

The underlying characteristics of blockchain and smart contracts bring up potential legal issues as well. For example, one of the characteristics of blockchain is its transparency, which allows users to gain access to any permanent records on blockchain.[13] While the records are anonymously stored, which does not show the identity of transactions, information regarding the detail of transactions allow others to guess on it.[14] This, therefore, may raise the privacy concerns for contracts and property ownership, after all, some financial and commercial data is highly sensitive.[15] Another example may be deriving from the character of decentralization. Blockchain allows people to create a new type of entity, which is called “decentralized organization.” Such organizations are composed with “autonomous individuals given discrete tasks and rewards,” and operate in the way more like corporations but without formal legal structure.[16] Lack of formation initially does not sound like a big deal in terms of day-to-day operation. It would become a serious problem for participants, however, when this kind of organization gets sued in the court. Since it is a new type of entity, what law or classification should apply to them is still a question up in the air. But without formalized legal structure, courts are likely to hold individuals in the organization personally liable.[17]

The term “smart contract” does not have a settled definition yet, and the concept is apparently still at an early stage of development. However, as the technology progresses, state and federal government may need to develop a set of statutes or regulations to deal with various possible situations in the future to address risks and issues that may result from this new type of contract. It may be fair to say that smart contracts might be able to replace some of the functions of traditional contracts in the future. Nonetheless, it also creates new legal issues which are still waiting for a more definitive and suitable solution to come by.

[1] Josh Stark, How Close Are Smart Contracts to Impacting Real-World Law?, CoinDesk (Apr. 11, 2016, 2:00 PM), http://www.coindesk.com/blockchain-smarts-contracts-real-world-law.

[2] See Kate H. Withers, Smart Contracts: Opportunities and Legal Risks in FinTech, National Law Review (Nov. 8, 2016), http://www.natlawreview.com/article/smart-contracts-opportunities-and-legal-risks-fintech.

[3] See Lee Bacon, Nigel Brook & George Bazinas, “Smart Contracts”: Where Law meets Technology, Clyde & Co (June 22, 2016), http://www.clydeco.com/insight/article/smart-contracts-where-law-meets-technology.

[4]Casey C. Sullivan, What Is Blockchain? A Lawyer’s Guide, FindLaw (Nov. 14, 2016, 10:58 AM), http://blogs.findlaw.com/strategist/2016/11/what-is-blockchain-a-lawyers-guide.html; see also Joe Dewey & Shawn Amuial, What Is A Blockchain, Big Law Business (Sept. 22, 2015), https://bol.bna.com/what-is-a-blockchain.

[5] Benjamin Beck & Dr. Ulrich Worm, Blockchain-Based Applications – Evolving Legal Issues, Mayer Brown (Sept. 8, 2016), https://www.allaboutipblog.com/2016/09/blockchain-based-applications-evolving-legal-issues.

[6] See Joe Dewey & Shawn Amuial, What Is a Smart Contract?, Big Law Business (Sept. 24, 2015), https://bol.bna.com/what-is-a-smart-contract.

[7] See Stark supra note 1.

[8] See Cheng Lim, TJ Saw & Calum Sargeant, Smart Contracts: Bridging the Gap Between Expectation and Reality, Oxford Business Law Blog (July 11, 2016), https://www.law.ox.ac.uk/business-law-blog/blog/2016/07/smart-contracts-bridging-gap-between-expectation-and-reality.

[9] See id.

[10] See Klint Finley, A $50 Million Hack Just Showed That the DAO Was All Too Human, Wired (June 18, 2016, 4:30 PM), https://www.wired.com/2016/06/50-million-hack-just-showed-dao-human; See also Jamie Redman, How Should We Prepare Smart Contracts to Replace Law Firms?, Bitcoin.com (June 26, 2016), https://news.bitcoin.com/smart-contracts-replace-law-firms.

[11] See Withers supra note 2.

[12] See Richard Howlett, A Lawyer’s Perspective: Can Smart Contracts Exist Outside the Legal Structure?, Bitcoin Magazine (July 11, 2016, 6:52 PM), https://bitcoinmagazine.com/articles/a-lawyer-s-perspective-can-smart-contracts-exist-outside-the-legal-structure-1468263134.

[13] See Peter Kirby, Blockchain Transparent Lending: How Accountable Lending Systems Can Prevent A ‘Big Short’ For The Digital Age, Blockchain News (Feb. 24, 2016), http://www.the-blockchain.com/2016/02/24/blockchain-transparent-lending-how-accountable-lending-systems-can-prevent-a-big-short-for-the-digital-age.

[14] See David Cornwell & James Lawrence, Blockchain – emerging legal issues, Lexology (Oct. 12, 2015), http://www.lexology.com/library/detail.aspx?g=6e5a942e-94ea-4891-a07c-a9d96343dc95.

[15] See Id.

[16] Stephen D Palley, How to Sue A Decentralized Autonomous Organization, CoinDesk (Mar. 10, 2016), http://www.coindesk.com/how-to-sue-a-decentralized-autonomous-organization/#; see also Cornwell supra note 14.

[17] See Palley supra note 16.

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By: Kathleen Pulver,

Social media has changed the face of the legal landscape as we know it. As of 2015, nearly two-thirds of American adults were using social media. [1] The percentage is even higher among young adults, reaching an outstanding 90%. [2] It is now commonplace to see warrants appear in cases for access to social media pages and photographs. [3]

In order for evidence to be admitted in court, a four step analysis must be conducted.[4] First, under Rule 401, for any evidence to be admissible in court, it must be relevant.[5] A finding of relevance requires that the evidence have a tendency to make a fact more or less probable than it would be without the evidence, and the fact must be one of consequence in determining the action.[6] Second, after a finding of relevance, the evidence must meet the standard laid out by Rule 901.[7] Federal rule of evidence 901 states: “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce the evidence sufficient to support a finding that the item is what the proponent says it is.”[8] The rule provides several specific examples of the appropriate way to authenticate different kinds of evidence, however the most common way to authenticate is through the testimony of a witness, with knowledge of the evidence, that it is what it claims to be.[9] Third, the evidence may not be hearsay, defined by rule 801 as, an out of court statement made by a declarant offered to prove the truth of the matter asserted.[10] Finally, the admission of the evidence must not be blocked by another rule, such as privilege, or rule 403 which blocks the admission of evidence which has its probative value “substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” [11] Social media and other electronic evidence present unique challenges when conducting this analysis.

Social media evidence can certainly meet the first prong as we can think of numerous reasons why a certain posting or picture could be relevant to a criminal or civil case. Social media postings have been used as evidence of prior intent to harm and to rebut a claim of injury with photos of the person claiming injury doing things they shouldn’t be able to do while injured.[12] It is also clear that certain social media postings could get around the third and fourth prongs by meeting a hearsay exclusion, such as statement made against interest, and being more probative than prejudicial. [13] The difficulty with social media evidence is the second prong, ensuring that there is enough evidence presented to authenticate the posting to be what it claims to be.

When the evidence rules were first created, creating fraudulent documents was nowhere near as simple as it is now. With the evolution of technology, people are now placing more of their trust in the information provided by online sources, however this faith may be misplaced. Evidenced by the recent Facebook fake news scandal, we cannot trust everything we read online.[14] Like fake news stories, it is not difficult to create a fake social networking page.[15] In fact, a simple google search of “creating a fake Facebook” brings up more than 5 sources willing to assist in the creation of a fake Facebook.[16] This constant availability of means to create fraudulent sources brings up difficult authentication questions under the second prong that have yet to be significantly addressed by most courts. Only time will tell how courts adjust to these newly presented problems.

[1] See PEW RESEARCH CENTER, Social Media Usage: 2005-2015 (Oct. 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/.

[2] See id.

[3] See e.g., Bradley v. State, 359 S.W.3d 912 (2012); Elonis v. United States, 135 S. Ct. 2001 (2015).

[4] This post discusses only the federal rules of evidence. Each state has their own rules of evidence, although many closely follow the same analytical structure as the rules for the federal courts.

[5] See Fed. R. Evid. 401.

[6] See id.

[7] See Fed. R. Evid. 901.

[8] Id.

[9] See id.; See also David I. Schoen, The Authentication of Social Media Postings, ABA Association (May 17, 2011), https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html.

[10] See Fed. R. Evid. 801.

[11] Fed. R. Evid. 403. See Fed. R. Evid. 502.

[12] See Jessica Velasco, Social Media Can and Will Be Used Against You in Court, Socialnomics (Dec. 30, 2014), http://socialnomics.net/2014/12/30/social-media-can-and-will-be-used-against-you-in-court/.

[13] See Fed. R. Evid. 403; Fed. R. Evid. 801(d)(2).

[14] See Mirren Gidda, Facebook Staff Form ‘Secret Taskforce’ to Deal with Fake News Controversy, Newsweek (Nov. 15, 2016, 6:58 AM), http://www.newsweek.com/2016-election-facebook-google-fake-news-donald-trump-521255.

[15] See, e.g., How Do I Create a Page, Facebook, https://www.facebook.com/help/104002523024878?helpref=faq_content (Last visited Nov. 20, 2016).

[16] Search on Instructions for Creating a Fake Facebook Page, Google, https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=creating%20a%20fake%20facebook.

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