By: Dustin Lennon-Jones

Driven by the ever-expanding pile of cash available in college football, the departure of USC and UCLA to the Big Ten in June of 2022 began a cascade of moves that has pushed the Pac-12 to the brink of extinction. The remaining members, Washington State and Oregon State, were left in the dust. With no clear path forward, the so-called “Pac-2” were left scrambling to put together a football schedule and begin rebuilding the conference.

The Scheduling Agreement

To fill out their football schedule for at least 2024, WSU and OSU entered into an agreement with the 12-member Mountain West Conference (MWC). Under the agreement, each school would play 6 games against MWC members. In exchange, the Pac-12 schools would pay the MWC $14 million: $9 million in football participation fees, $3 million in “general participation fees,” and $2 million in compensation for “scheduling and administrative services.” In recognition of the mass exodus of schools from the Pac-12, the MWC also sought to protect itself from a similar fate. Included in the agreement were “termination fees.” If the Pac-12 decides to add a MWC member anytime before the end of the agreement, the Pac-12 would be required to pay an escalating fee, ranging from $10 million for one school up to $137.5 million for 11 schools. This is on top of the exit fees paid by the departing school to the conference, set at $17 million per school. Notably, if the Pac-12 decided to add all 12 schools and effectively merge with the MWC, there is no fee requirement.

FBS Eligibility Requires the Addition of New Members

The Football Bowl Subdivision (FBS) is the top level of college football, containing historically the strongest teams and conferences. However, NCAA bylaws require that conferences have 8 members to be eligible to compete, a number which the Pac-12 falls well short of. The good news for the Pac-12 is that there is a 2-year grace period from when a conference drops below 8 members to keep its existence. That would give them until August 2026 to find a permanent solution. On September 12^th, the Pac-12 announced 4 new members, all from the MWC: Boise State University (Boise St.), Colorado State University (CSU), California State University-Fresno (Fresno St.), and San Diego State University (SDSU). Shortly thereafter on September 24^th, it was announced that Utah State University (USU) would also be joining the Pac-12 from the MWC.

The Lawsuit

Following the September 12^th announcement, Gloria Nevarez, the commissioner of the MWC, sent a letter to the Pac-12 informing them that under the scheduling agreement, the MWC was entitled to collect $43 million in termination fees as a result of the departure of Boise St., CSU, Fresno St., and SDSU. Including USU brings the total to $55 million. The Pac-12 unsurprisingly takes a different view on the matter. Teresa Gould, commissioner of the Pac-12, responded in a letter to Nevarez stating that the fees were unlawful, and they would be filing a complaint in court seeking judgment declaring the provisions unenforceable. The Pac-12 labels the fees “poaching fees,” and requests that they be invalidated as a violation of the Sherman Antitrust Act, California’s Cartwright Act and Unfair Competition Law, and as an unenforceable penalty under the principles of contract law. 

The complaint also tells a much different story on the events leading to the signing of the scheduling agreement. In the immediate aftermath of the departure of nearly the entire conference, the Pac-12 was in a vulnerable position. They accuse the MWC of taking advantage of this lack of leverage, charging “exorbitant” fees for the 2024 schedule and forcing them to accept an “unprecedented poaching penalty.” Since the penalty provision remains in effect for 2 years after the termination of the agreement, the Pac-12 argues that this unfairly inhibits their ability to compete with the MWC and reduces their members’ options for mobility. 

The unfairness is further exacerbated due to the fact that this restraint only applies to the Pac-12 and the two conferences geographic proximity makes them the most logical competitors for schools in the region. The penalty thus functions the same as no-poach, no-hire, and non-solicitation agreements that have already been declared unlawful in California (where the suit was filed) and around the country. In addition to an unfair restraint on competition, the Pac-12 highlights the fact that the MWC will already be collecting exit fees from the departing schools. This makes the penalty to be paid by the Pac-12 “duplicative” and “unnecessary,” further demonstrating the fact that it does not serve to compensate the MWC for losing members but to restrain the Pac-12’s ability to compete.   

Why Not Merge: The Importance of Being An “Autonomous Conference”

If the scheduling agreement would allow the Pac-12 to add the entire MWC without penalty, why wouldn’t they? It would appear that this would take care of both the penalty problem and the NCAA eligibility problem. The importance of being a “power conference” and the benefits that come with mean that this solution is not as elegant as it may seem.  When the College Football Playoff (CFP) originally expanded from 4 teams to 12, the format granted automatic qualification to the champions of the “Power 5” conferences: the SEC, Big Ten, Big 12, ACC, and Pac 12. These conferences also receive larger shares of the revenue generated by the CFP. The collapse of the Pac-12 led to them losing their “power” status and consequently their automatic qualification and increased revenue share. Adding new teams from the MWC is certainly the first step towards regaining this status, but there is still a long way to go. As is the trend in college athletics, money talks. The lowest Power 5 TV deal paid around $17 million per school, while the MWC’s TV deal paid just $4 million per school. This is likely the motivation behind the Pac-12 being selective in who it chooses. Merging with the MWC is simply not a step towards regaining its relevance as a power conference.

What’s Next

As we await an answer from the MWC, the future of the Pac-12 is still very much up in the air. While adding additional members is a foregone conclusion, which teams they may target remains uncertain. A loss in their lawsuit may mean that adding more teams from the MWC will be prohibitively expensive. Conference realignment will continue to have domino effects on conferences across the country as the MWC will look to replace its departing members. One thing is certain: the college football landscape has been changed, permanently.

#PAC12, #collegefootball, #antitrust

By: Selena Liu

History of Facial Recognition Technology: The Very Beginning

Facial recognition technology has been in development since the 1960s, and initially, this technology was very manually intensive. In the 1990s, facial recognition underwent a significant revolution and expanded to data sets such as the Face Recognition Technology (FERET) database. FERET was completed in 1998 after the U.S. Department of Defense invested over $6.5 million. The database consisted of 14,126 facial images of 1199 individuals captured between 1993 and 1996 with their consent.

After FERET’s launch, many more datasets and evaluations, such as Face Recognition Vendor Tests, were developed to provide law enforcement agencies and the U.S. government with the information necessary to utilize facial recognition technology effectively. However, datasets such as Labeled Faces in the Wild began collecting facial photos from the internet in 2007, bringing into question issues of privacy and consent. Subsequently, databases and datasets, such as Clearview AI, were created for law enforcement with over 3 billion images to help solve cases involving shoplifting, identity theft, credit card fraud, murder, and child sexual exploitation. 

Potential Downsides to Facial Recognition Technology and Policy Reactions

There are potential downsides associated with the increased utilization of facial recognition technology by law enforcement. These include serious privacy invasions, and differential error rates by race and gender. The latter is particularly harmful, as certain groups are more likely to be falsely accused or criminally charged.

Recognizing the potential for vast privacy abuses, San Francisco’s legislature voted to ban city agencies from using the technology in 2019. Around two dozen cities in the U.S. have followed suit. Federally, bills in Congress were introduced in 2022 and 2023 to limit law enforcement use of facial recognition technologies, impose restrictions on federal, state, and local government entities, and ban the TSA from using these technologies.

New Frontier in Facial Recognition Technology: Public Access 

However, there is a new development regarding who gets access to facial recognition technology. Publicly accessible websites, such as PimEyes and Facecheck.id allow any member of the public to upload an image of someone. For a fee, anyone can access a grid of photos that are deemed to contain faces similar to the image that they upload, with links to where those images appear on the internet. Although the owner of PimEyes claims that users are supposed to only search for their faces, or the faces of those who have consented, there are no controls in place to prevent people from searching for the faces of strangers, or those of people who have not consented. 

Potential Regulations to Public Access to Facial Recognition Technology and Why Does it Matter?

Advances in facial recognition technology have outpaced laws governing its use, as bans, limitations, and proposed legislation found online are targeted toward government entities and law enforcement. Although there is progress in limiting its usage in various states, none of the current state laws address members of the public using websites such as PimEyes or Facecheck.id to identify other members of the public using merely a photo. Recently, a class action lawsuit was filed in Illinois, alleging that several facial recognition companies, including Pimeyes, violated the Illinois Biometric Information Privacy Act (BIPA). They specifically allege violations of BIPA’s requirements for informed written consent before collecting data such as facial photos. This could be a possible legal blueprint to require all publicly available facial recognition websites to obtain informed written consent from individuals before those websites can use their internet photos. 

Though publicly available facial recognition websites do not include photos from social media websites such as Facebook, the lack of restrictions against these facial recognition websites could lead to severe ramifications. Any individual could potentially find out who someone is by merely taking a photo of their face while walking on the street. It is increasingly likely in this day and age that the average person has at least one picture of themselves on the internet through being at a public event or having a professional headshot published on their workplace website. As of December 2022, only 14 percent of adults in the U.S. stated that there are no photos of themselves online. 

As facial recognition technology continues to progress, the amount of photographs in datasets rises. This allows many more members of the public to access data that could help them with stalking, doxing, and finding explicit photos of minors. Despite claims from PimEyes and Facecheck.id that they allow users to request removal of their photos, such removal requests do not extend to the third-party websites hosting those photos. Even if removal requests are complied with, it is unclear how many people are aware of this option as it is not widely advertised. Therefore, it could be almost impossible for anyone to fully control where their images can be used or prevent stalking.  

Conclusion

Facial recognition technology is a powerful tool that could be used by law enforcement and government entities to solve cases. However, it is also ripe for privacy abuse, consent issues, and misidentifications. As facial recognition technology becomes publicly available, a whole host of additional problems, such as increased ease of stalking and doxing, are becoming more prevalent. However, the law has not been keeping up with addressing these issues. 

To combat the problems around public access to facial recognition, states and the federal government must develop laws similar to Illinois’ BIPA and robust enforcement mechanisms. Websites must be deterred from becoming so accessible to the general public or using photos without informed written consent. Facial recognition technology will inevitably continue to revolutionize. Minimizing public access by addressing the legal gaps in laws regulating this technology is one of many keys to its continued potential as a public safety tool. 

#WJLTA #privacy #facialrecognition #technology

By: Nayomi Mendez Andrade 

Fashion designers are creators of apparel, footwear, and accessories. Historically, designers have used style cues, designs, and patterns from cultures that are not their own to create their work. This use has often been masked and justified by being labeled as inspiration. However, designers are “more than simply drawing inspiration; designers . . . have long mined from minority groups, adopting their underrepresented craftwork or techniques before passing them off as their own.” Minority and Indigenous communities remain vulnerable to the exploitation of their cultural designs without the proper acknowledgment or compensation because there are limited legal protections for them. 

What is Cultural Appropriation?

Patti T. Lenard and Peter Balint define cultural appropriation as a dominant group taking a valuable element from another culture for personal use, without consent and with a reasonable expectation that such taking will be objectionable. Sally E. Mary specifies that a valuable element of another culture includes “artistic, musical, and knowledge productions.”

The Legal Implications of Cultural Appropriation

Intellectual Property (IP) law is a common legal framework utilized to challenge cultural appropriation within the fashion industry. IP encompasses creations of the mind, which include symbols, names and images in commerce, literary and artistic works, and designs. These creations and inventions are legally protected by Trademarks, Copyrights, and Patents. IP protections offer individuals the opportunity to be recognized for their work or financially benefit from their inventions or creations. 

IP laws fail to protect against cultural appropriation because they typically “exclude traditional cultural expressions from protection.” A prevalent reason why IP law fails to protect against cultural appropriation is because IP laws only accord “exclusive rights to the creators or inventors” of a work. The issue is that the argument against cultural appropriation focuses on the ownership rights of an entire group who may not have directly contributed to the creation of the work. Since no specific creator can be identified, these cultural expressions do not fall within IP protections. 

For most, obtaining copyright protections is not difficult. However, it is nearly impossible for cultural groups to obtain copyright protections for their expressions. To obtain a copyright, there must be (1) a work of authorship, (2) originality, (3) and the work “must be fixed in a tangible medium of expression.” Originality requires that the work be original. Thus, if the work is a copy of an earlier work, then it is not eligible for copyright protection because it is not original. Since cultural works are generally passed down through generations and replicated, they rarely meet the originality requirement. 

Patent law specifically fails to protect groups from cultural appropriation because an invention must be novel to qualify for a patent. To qualify as novel, an invention must not have been known or used by others in the US, nor should it have been patented or described in a publication either in the US or internationally. Cultural designs, however, are often passed down from generation to generation. This makes it difficult for cultural works to meet the novelty requirement for patentability.

While trademark law provides protections for certain symbols or designs, it also falls short of protecting against cultural appropriation. For a symbol or design to qualify as a trademark, it must be used in commerce at the time of application, or the applicant must make a good-faith showing that it will be used in the stream of commerce at a future point in time. The issue here is that cultural designs and symbols are not created with the intent to be used for commerce, but to express spiritual or cultural significance.

A Global Attempt to Mitigate the Issue 

Some Countries have created heritage laws to protect cultural symbols and to mitigate cultural appropriation in the fashion industry. Mexico has been proactive in addressing cultural appropriation in the fashion industry, specifically with regard to the misuse of Indigenous designs. 

In 2021, Mexico’s Minister of Culture, Alejandra Frausto rightfully accused international fashion brands such as Zara, Patowl, and Anthropologie of cultural appropriation. Ms. Frausto claimed that these three brands had benefited from using indigenous patterns in their designs without compensating the communities. Ms. Frausto went on to demand an explanation from the three companies for using the Indigenous designs, claiming that the cultural elements were considered “collective property” of the communities. Ms. Frausto added that any commercial use should involve compensation and collaboration with the communities. 

In 2022, Mexico passed a law prohibiting and criminalizing the unauthorized use of Indigenous and Afro-Mexican cultural expressions. Mexico’s law is designed to protect the Intellectual Property rights of its people. The issue here is that Mexico’s law has no reach outside of its borders because when a country enacts a law, it is usually only applicable to the actions that take place within the geographic region of that country. 

Mexico has set a strong example of how governments can empower communities by ensuring they maintain control over their heritage. Similar protections could be introduced in the U.S. by establishing legislation that recognizes cultural symbols and traditional designs as collective IP. U.S. IP law falls short of safeguarding cultural groups from appropriation. This gap in U.S. IP law leaves minority and Indigenous communities vulnerable to the uncredited and uncompensated use of their cultural heritage by the fashion industry.

#culturalappropriation #intellectualproperty #Mexico #fashionlaw