Under the Sea, Under the ©? Ninth Circuit Considers Art Inspired by Nature

Folkens (left) vs. Wyland (right)

By Yonah Reback

The intersection of copyright law and the animal kingdom reached new heights during the global phenomenon of Naruto v. Slater. When wildlife photographer David Slater traveled to the jungles of Indonesia in 2011, he surely expected to take snapshots of its native inhabitants. To Slater’s surprise, a macaque nicknamed Naruto grabbed his camera and took what soon became the infamous “monkey selfie.” Thus began a six-year legal saga as to whether Naruto or Slater owned the copyright for the photograph. Although the U.S. Copyright Office indicated that there was no basis for extending copyright ownership to animals, the case—filed by PETA in defense of the monkey—ultimately settled, leaving the public wanting for legal analysis of the issue.

Now, a Ninth Circuit copyright case provides further proof that one can’t hold a copyright on elements found in nature. In September 2014, Peter A. Folkens, a “world-renowned wildlife artist, illustrator, photographer, researcher, and author,” filed suit alleging that famed marine life painter Robert Wyland infringed his copyright on a pen and ink illustration entitled “Two Dolphins.” According to court filings, “Two Dolphins” is a black and white depiction of two dolphins crossing each other, one swimming vertically and the other swimming horizontally. Wyland’s painting, “Life in the Living Sea,” depicted an underwater scene consisting of three dolphins, two of which are crossing, various fish, and aquatic plants. Folkens alleged that Wyland’s painting constituted an unauthorized copy of “Two Dolphins” because the scenes they depicted were substantially similar.   Continue reading “Under the Sea, Under the ©? Ninth Circuit Considers Art Inspired by Nature”

Deepfakes – A Disastrous Merger of AI and Porn


By David O’Hair

First appearing on reddit, a new trend called “deepfakes” has captured the public’s attention with one of the internet’s oldest promises – nude celebrity photos. Intimate celebrity images appearing online is nothing new in and of itself. A 2014 hack exposed hundreds of nude-celebrity images, while Gawker notoriously posted Hulk Hogan’s sex tape.

However, deepfakes present a novel issue in that the images, and often videos, of the celebrities are fake – but the underlying porn is real. Deepfakes use artificial intelligence mixed with facial-mapping software to essentially copy and paste someone’s face into preexisting porn content. The AI-software’s sophistication is such that content created by it, i.e., deepfakes, can be virtually indistinguishable from an authentic porn video featuring a specific celebrity. Celebrities are often the victims of deepfakes, because deepfakes require massive amounts of “raw footage” to import into the pornographic video. Chances are a celebrity has more time collected on video than the average person, but non-public figures can be the victims of deepfakes too. Continue reading “Deepfakes – A Disastrous Merger of AI and Porn”

Autonomous Driving, Standard


By Daniel Healow

As in many areas where technology has disrupted the status quo, the availability of automotive safety systems has been generally dictated by the speed of its technological development. However, as these technologies are made available to the public, the law is often called upon to create minimum safety regulations on the back end.

As demonstrated at CES and the Detroit Auto Show in early January, automakers are rapidly increasing their research and development spending and highlighting their autonomous vehicle breakthroughs as they jockey for position in the race to bring a consumer product to market.

In some regions, the general public is already participating in early stage self-driving trips, but autonomous vehicles remain firmly in the product development testing phase across the industry. Some industry observers predict a market for these vehicles to emerge “in a noticeable way” by 2020, but less clear is when they will saturate the driving market. While it’s impossible to predict the exact timing, looking to past adoption of safety technologies may offer some evidence that could indicate an imminent mandate based on patterns of federal regulation. Continue reading “Autonomous Driving, Standard”

Cryptocoins for Copyright: KODAK encourages photographers to forget the middleman

Kodak Roll Photography Film Negative Old Retro

By CaroLea Casas

We are in the midst of a cryptocurrency frenzy. A series of memes has taken over the internet in recent months—all about Bitcoin. Some economists have considered whether the cryptocurrency market is a harbinger of yet another devastating economic debt bubble.  In a comment to Fortune, Meltem Demirors, the director of Digital Currency Group, explained the widespread interest simply: “We are going through the biggest wealth generation opportunity of the century, and people want to participate.”

Demirors’ comment rings true. From the businesses rebranding to offer coin, to the investors looking for legitimate opportunities to get in on the ground level, to the federal agencies ensuring compliance with securities law, everyone seems to have an interest. And of those rebranding companies, one sits right at the crossover between technology and art. That company is Eastman Kodak. Continue reading “Cryptocoins for Copyright: KODAK encourages photographers to forget the middleman”

Pay-to-Play for Sovereign Immunity? A New Strategy Employed by Drug Patent Holders


By Seth Parent

In May the Supreme Court decided TC Heartland, requiring patent infringement claims be brought where the defendant either “resides” or has an “established place of business” (rather than in the notoriously patent-holder friendly Eastern District of Texas). This change has led patent-holding companies to search for new strategies to increase the efficiency of their business model, and in turn, their profits.

These patent-holding companies, or “patent trolls,” as they are often referred to, may have just unveiled one such strategy. Following news of Allergan’s announcement that it was transferring title of six different pharmaceutical patents to the St. Regis Mohawk Tribe in September, patent holding company SRC Labs has now elected to pursue a similar strategy. Not only did these deals transfer the patents to the St. Regis tribe, they also provided the tribe with several million dollars upfront in addition to several million per annum. Continue reading “Pay-to-Play for Sovereign Immunity? A New Strategy Employed by Drug Patent Holders”

Kill Quill: Volume 2


By Michael Rebagliati

2017 ended with a legislative bang as Congressional Republicans (rapidly) passed the most sweeping overhaul of the tax code in a generation. For many tax lawyers, 2018 has begun with a whimper as they scramble to understand what this means for their clients.

And yet, another major change to U.S. tax law still looms on the policy horizon. But this time, the change is coming not from Congress, but from the Supreme Court. On January 12th, the Supreme Court granted certiorari in the case of South Dakota v. Wayfair, Inc. Continue reading “Kill Quill: Volume 2”

Hollywood’s Darkest Secret: How Hollywood Employs Non-Disclosure Agreements and Confidentiality Clauses to Silence Sexual Assault Victims


By Alex Palumbo

Few disagree that 2017 became a defining “watershed” moment in the national conversation and spurred awareness of the stories and experiences of sexual assault victims. Few industries were left unaffected by this conversation by the year’s end, including the realms of politics, arts, cable news, morning news, and corporate America. Victims came forward in numbers neither seen nor heard before. As with any situation where previously hidden stories come to light, questions arise. How have we never heard these stories before? How long have the victims lived in silence? How were the perpetrators able to keep living their lives and abusing more victims? This article examines that final question specifically. How did these perpetrators continue their patterns of abuse—silencing their victims while continuing to live freely?

When The New York Times and The Washington Post first unveiled the pattern of abuse perpetrated by Harvey Weinstein, it shocked our collective societal conscious. However, within Hollywood—as more and more actresses and actors came forward—the narrative became clearer. A web of systematic support for Weinstein had allowed him to carry on these heinous acts for decades in Hollywood. But Weinstein’s calculated efforts of cover-up included provisions outside a pervasive and protective group of insiders. The legal system may have also aided Weinstein, as  non-disclosure agreements contained in employment contracts have precluded many victims from sharing their stories.

Federal labor law (National Labor Relations Act, Title VII of the Civil Rights Act) prohibits employers from disciplining workers who talk about sexual harassment, and invalidates settlement agreements which prohibit settling employees from filing charges with the Equal Employment Opportunity Commission. However, this area of labor law remains under-enforced (especially in light of victim silencing)—and an information asymmetry exists often with young actors and actresses (as in Weinstein’s case) who may not be fully aware of their right to raise claims against harassers and employers. Sexual assault is often about asserting authority over powerless victims, and repeated examples from the stories of Weinstein’s abuse in Hollywood expound this trend. Further, a distinguishing principle arises when a consistent pattern of sexual harassment may leave victims confused and without direction as to whether their voice will be heard if they report their claims internally to (often complicit) HR departments, but do not press criminal sexual assault charges.

Non-disclosure agreements exist at one side of the spectrum, where as part of an employment contract, an employee accedes to not disclose certain types of information as a condition of their employment. Confidentiality agreements also occur as a condition of settlement, outside of the courtroom and outside many of those federal labor law protections. Though victims who receive settlements arising from sexual assault claims may achieve financial vindication, they are then silenced from speaking about their experiences or face extreme “liquidated damage” provisions forcing them to pay back inordinate sums of money if any facts surrounding the dispute leak.

Hollywood is a unique industry where artists, actors, actresses—come from across the country and world to achieve their dreams in their corresponding field. Although there is no industry where it is easy for a sexual assault victim to simply relocate or change jobs/careers, Hollywood in particular breeds a “silencing culture.” Weinstein offers just one example of the notoriety surrounding Hollywood’s power-players, and that “sit down, shut up, then move along” deal-with-the-devil culture. Few, if any, professions are as public and outwardly facing as a career in Hollywood. When you are not making movies or landing roles—your absence is abundantly clear. This vulnerability is exactly what is preyed upon by Weinstein and other perpetrators like him.

In an industry of the arts like Hollywood, the reality persists that women are consistently and systematically treated unfairly and worse, inappropriately. The effort to silence women making sexual assault claims is just one of many sordid deeds in this industry—women are paid less and consistently face disparities, with those disparities widening amongst women of color. The reality stands that Hollywood, as an immediately recognizable force that informs our society and culture, now possesses an immediate responsibility to look inward and move forward to dismantle practices that have been in play for generations.

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Cryptocurrencies, Tulips, and Regulation?


By Evan Fowler

Almost 400 years ago the Dutch were really excited about tulips. In a period of three years, a tulip bulb went from a reasonable value to as much as six times the average person’s annual salary. Today we look at Dutch people selling their homes to buy tulips as crazy (we literally call that bubble “Tulip Mania”). Yet, right now we are watching South Koreans sell their homes to buy a digital “currency” – Bitcoin. Continue reading “Cryptocurrencies, Tulips, and Regulation?”

Washington Officials Seek to Keep Net Neutral Despite FCC Repeal


By Wiley Cason

In response to the repeal of Federal Net Neutrality rules, Washington State’s governor and attorney general have both argued that state-level regulations may still prevent Internet service providers (ISPs) from discriminating amongst data offered on their networks.

In 2015, the Federal Communications Commission (FCC) passed The Open Internet Order; a ‘Net Neutrality’ rule which reclassified broadband Internet from an “information service” (subject to Title I of the Communications Act) to a “telecommunications service,” subject to Title II of the Communications Act. By placing broadband Internet under the more restrictive Title II framework, the FCC was attempting to prevent “blocking, throttling, and paid prioritization” of Internet content, so that there would be no interference from ISPs in consumers and content providers “reach[ing] one another on the Internet.”

This past December the FCC voted 3-2 in favor of The Restoring Internet Freedom Order which repeals these rules and seeks to encourage investment and development in Internet infrastructure by returning to the so-called “light-touch” regulatory framework that existed prior to the 2015 rule.

Despite this repeal, Governor Inslee and Attorney General Ferguson hope that state laws and regulations will be able to preserve Net Neutrality for Washingtonians.

In response to the Net Neutrality repeal, multiple Washington-based ISPs have made loud promises to the public that they are committed to the principles of an “open Internet”, and will not be throttling or slowing down certain types of content for their users.

It’s promises like these that Inslee and Ferguson believe offer one possible path to state-level net neutrality protection; holding Internet providers to warranties made to subscribers. The Governor and Attorney general have other ideas too, including favoring ISPs that uphold Net Neutrality when awarding state contracts, and encouraging local governments to enter the market as Internet providers themselves.

Numerous Washington legislators are prepared to support these ideas, including Rep. Norma Smith (R-Clinton). This December, Rep. Smith announced that she was introducing legislation to prohibit blocking, throttling, or paid prioritization under the Washington Consumer Protection Act. Smith told the Spokesman-Review that if, “if the phone and cable companies truly support an open internet they should not object to the legislation.”

Regardless of whether any of the phone or cable companies object to these ideas, serious efforts to enforce state-level net neutrality laws are likely to run into push-back from the FCC. Senior FCC officials reportedly have said that state and local governments do not have authority to undermine the FCCs Internet rules, due to the Internet’s status as an interstate information service. Whether state-level laws on net neutrality would in fact be pre-empted by the FCC’s recent order is the subject of much speculation; some legal experts believe that courts would decline to bar states from regulating on their own. Even still, Washington’s Attorney General is challenging the Internet Freedom Order more directly in a separate lawsuit, filed at the end of last year.

Why Don’t We Have a Free Bluebook App?

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by Christine Minhee

Imagine a monastery for luddites. Outside: brain implants reverse paralysis, gene therapies cure inherited diseases, and self-driving trucks deliver personal quantum computers purchased using payments authorized by face-scanning technologies. Inside: bunioned academics with chips on their shoulders pore over their worn copies of a legal citation manual, lovingly, reverently thumbing through its 560 pages in order to confirm truths like the italicization afforded to “construed in” but not to “construing” (Rule 1.6(c)).

Their holy text is called The Bluebook, and it promises not salvation, but merely, “A Uniform System of Citation.”

The Bluebook has been skewered so many times that it should have its own shish kabob. Above the Law features posts like: Want To Work In-House? Burn Your Bluebook, It’s Sad When The Bluebook Is An Important Part Of Your Day, and Yaw Law Students Support The End Of The Bluebook. UW Law’s own write pieces entitled The Dreaded Bluebook and The Worst System of Citation Except for All the Others. And UW’s Gallagher Library has this to say:

“Think Bluebooking is challenging? So do a lot of other people! There are many different tools out there to help you create Bluebook-formatting citations. But beware–none of these tools are a perfect solution for all of your Bluebook troubles. You will need to double-check your citations to make sure they’re correct even after using one of these tools.”

(Bolded, underlined emphasis is theirs, not mine.) While some students would even call Bluebooking a form of “academic hazing,” the uniform hatred of citation is less intriguing to this author than the Harvard Law Review Association’s stubborn, litigious unwillingness to grant access to the resource in a way that is neither analog nor expensive.

A one-year, digital subscription of The Bluebook is available online for $36. A search for “Bluebook” in the App Store will yield an infuriating swarm of car-buying apps, but a quick Google search reveals The Bluebook’s availability as an iOS-only, $39.99 in-app purchase in an app called Rulebook.

And the only “free,” unaffiliated “Bluebook”—The Indigo Book—was virtually the product of happenstance. When an earlier version of The [real] Bluebook happened to fall into the public domain, an NYU law professor fought to democratize the resource in open-source format, despite The Harvard Law Review Association engaging white-shoe firm Ropes & Gray LLP to fend off the attempt. (Interestingly, the founder of the site that publishes The Indigo Book was also sued for posting the Official Code of Georgia Annotated on his website—an act the State of Georgia described as “terrorism” in its complaint.)

So, why doesn’t the Harvard Law Review publish a free web app and bring The Bluebook outside of the walled, hegemonic garden of academic publishing and into the digital age? Much has been written about copyright claims over The Bluebook, the gist being that Section 102(b) of the Copyright Act states that systems—like a uniform system of citation—cannot be protected by copyright. And according to the Harvard Law Record, a “brief glance at the history of the Internet suggests that in a world where prestige matters, where students and practitioners alike begun their practice with the Bluebook, it is certainly possible to compete with free.”