Dancing Around the Issue: Washington Lawmakers Grapple with State Regulation of Adult Entertainment

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By: Matt Williamson

When people think of Washington many things quickly come to mind: Apples, Planes, Rain, Grunge, Twilight; all understandable. Restrictive alcohol laws though? Not so much. 

Despite this, Washington maintains a near-total prohibition on any alcohol service in adult entertainment clubs–making it one of only a few states to do so. 

This year, a group of exotic entertainment advocates, working with state lawmakers, aimed to change this. The group helped introduce, and has lobbied for, the passage of SB 5614: A bill designed to reverse restrictions on alcohol service and allow strip clubs to apply for liquor licenses. 

While this might seem like a fairly humble goal, the policy change would represent a massive shift in the landscape of adult entertainment in Washington. Alongside the reversal of the alcohol restrictions, SB 5614 also contains a series of potentially hugely impactful provisions aimed at providing a safer, fairer, and more stable working environment for exotic dancers across the state. 

Why Alcohol Matters

To understand why the seemingly small change could mean so much to Washington-based dancers, one first has to understand the secondary effects this restriction creates.

Washington’s restriction on alcohol service in strip clubs stems not from statute, but administrative rules. The restrictions, enshrined in WAC 314-11-050, were established by the Washington State Liquor and Cannabis Board, and prohibit the sale of alcohol in any establishment where certain types of activity take place. Because the restricting activities include stripping, a fairly essential element of strip clubs, the rule establishes a de facto exclusion on alcohol sales in strip clubs. 

What this creates is a major economic problem that club owners and management must combat. Without alcohol sales, these clubs are cut off from a huge source of revenue, and must turn to other means to extract money from patrons and staff alike. 

This is the landscape that has produced one of the most hated aspects of exotic dancing in Washington: Dancer fees. Rather than paying them, many clubs actually charge dancers a fee to perform, arguing that they will earn money through tips, and that the fees are required to be able to maintain the club’s business viability. Naturally, this contributes to the financial instability of the profession, as dancers often encounter shifts where they make little to no money, and are nonetheless forced to pay for the opportunity. 

It’s not just the economics either. Many dancers argue that the lack of alcohol sales in Washington clubs robs these establishments of the ability to create a social or entertaining environment and restricts them to a customer base exclusively seeking a sexual experience. Dancers have noted that Washington clubs have a distinctly sexually-focused vibe, as opposed to Oregon clubs, where alcohol is served and the environment tends to be more akin to a bar. 

Moreover, the added revenue from alcohol sales presents advocates with an opportunity to invest in protections for exotic dancers that have long been missing from the industry. SB 5416 includes provisions requiring better security in clubs, mandatory training for dancers including on financial security planning, and prohibitions on predatory club fees and penalties. 

Legislative Struggles

Despite significant support from groups like Strippers are Workers, which has championed the bill, it sadly seems as though SB 5416 is unlikely to pass the state legislature this year. 

However, advocates can take at least some solace in the nature of its demise: SB 5416 has not failed to receive enough votes at any of the crucial steps in the legislative process, but instead ran afoul of the greatest obstacle any piece of Washington legislation ever faces–the absurdly compacted legislative schedule.

Washington has a part-time legislature, which means that Legislators in the House and Senate only meet for between 3 and 4 months a year. When considered in light of the thousands of bills that are introduced every year, and the numerous procedural steps each must traverse, the massive scale of the scheduling problem quickly comes into focus. 

When SB 5416 passed the Senate in early March, it seemed to have serious momentum, receiving significant bipartisan support in that chamber and quickly being placed on the agenda of the House Committee on Labor & Workplace Standards. 

But sadly, things quickly seemed to fizzle as some notes of opposition arose in the House, and the crush of bills began to overwhelm policy committees. Now, as the cutoff for bills advancing out of House policy committees has passed, and the bill remains with the Regulated Substances & Gaming Committee, it seems all but doomed.

Conclusion

This seems an unworthy end for a bill that seeks to strike at the heart of a serious issue for thousands of working Washingtonians. Exotic dancers deserve so much better than the often predatory working environments they encounter in Washington clubs, and it is clear that repealing our state’s misguided alcohol restrictions could go a long way towards addressing the underlying causes of these conditions and providing dancers with the support and protection they need. Hopefully, advocates and their allies will get another shot at passing this legislation soon, and next time legislators will find the time to seriously consider and pass it.

Hidden Hurdles: The True Cost of the Bar Exam

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By: Kayleigh McNiel

For every law student, the bar exam is the pinnacle of academic challenges. As the final hurdle at the end of a grueling 3-year obstacle course, hidden costs throughout the process of preparing for the exam and applying for admission to the bar present additional barriers. The impact of which disproportionately affects first-generation and BIPOC law students who are less likely to have the financial resources to purchase commercial bar prep courses or study full-time without having to work. Racial disparities in first-time bar passage rates have led some to argue that the bar exam is a test of students’ resources, not their actual skill or competence on legal issues. 

Discriminatory Design

The “key ingredient” to passing the bar is having the ability to dedicate an extensive amount of time to prepare for it. This is according to researchers at AccessLex Institute who examined factors such as bar preparation practices, financial resources, household income, and family support for more than 5,000 first-time test-takers of the Uniform Bar Exam (UBE) between July 2016 and February 2018. In fact, candidates who studied the recommended 40 hours per week for at least two months before the exam were significantly more likely to pass. Unsurprisingly, success rates were substantially higher for candidates with higher household incomes, those who received financial support from their family during law school, and those who purchased commercial bar prep courses.

These factors contribute to the stark racial disparities in bar exam passage rates. According to the American Bar Association, last year just 57% of Black candidates, 60% of Native American candidates, 69% of Latinx candidates, and 75% of Asian candidates passed the bar exam on their first try. While 83% of White candidates succeeded in doing so. The racial gap in passing rates has continued to grow over the last three years, likely due to the greater economic losses communities of color experienced due to the COVID-19 pandemic.

Structure of the Exam(s)

To become licensed to practice law in Washington State, candidates must pass three separate exams: (1) the Uniform Bar Exam (UBE) which is a two-day exam consisting of three parts, (2) the Multistage Professional Responsibility Exam (MPRE), a two-hour exam that can be taken within three years of the UBE, and (3) the Washington Law Component (WLC), a four-hour multiple choice test which can be taken within three years of the UBE.

So How Much Does It Really Cost? Hidden fees and surprise price tags 

Understanding the cost of taking the bar exam (in Washington State) is key to setting yourself up for success. Unfortunately, this information is not always readily available as there are additional fees and costs associated with each part of the application and testing process. The individual circumstances of each applicant further dictate how much they are charged.

Registration fees: $585 – $885.

Most first-time test takers will pay $585 to register for the UBE in Washington State. However, a hefty $300 late fee attaches to all applicants who register after the deadline. So plan ahead! Additionally, those who pay with a debit or credit card will pay an additional 2.5% transaction fee bringing the total to $599.625, or $907.13 with a late fee. While there is no fee to pay by electronic funds transfer or check, these methods can take an additional 7 days to process your payment. 

Bar Review Course: $1,695 – $4,199. 

While not required, commercial bar prep programs have become essential to passing the exam and can cost thousands of dollars. Companies offer a variety of resources, study aids, and courses. While the most well-known bar prep review providers offer discounts and some scholarships, most students will pay close to these base prices: $1,695-$2,695 (Themis), $1,999-$4,199 (Babri), or $1,699-$3,999 (Kaplan).

Exam Software: $120. 

To be able to use a laptop during the essay portion of the exam, candidates are required to download ILG Exam360 software. Candidates are responsible for providing their own laptops and are not given any additional time on the exam if they suffer from technical difficulties. 

Laptop Fee: $100. 

While it appears that Washington State no longer charges a separate laptop fee since the pandemic, most states do.

Travel, Lodging and food: $340 – $500

A hidden cost that most people fail to consider is the cost of travel, lodging, and food for those who have to travel to the testing center. Washington State alternates between testing centers in Seattle and Yakima. For JD candidates living in Seattle, this year they must make the 2.5 hour drive (or 3.5 hour bus ride) to the Yakima Convention Center and fork out the cost of a hotel for the two-day exam. Gas, travel time, food, and shelter for this trip averages several hundred of dollars. Some hotels near the testing center offer booking discounts for those taking the bar exam.

Multistate Professional Responsibility Exam (MPRE): $150. 

This separate, two-hour multiple-choice exam can be taken anytime within three years of passing the UBE. The MPRE is required in all but two States. 

Character and Fitness Investigation Fee: $120 – $450. 

Another mandatory, hidden charge is the “investigation fee” paid to the National Conference of Bar Examiners (NCBE) to conduct background checks into candidates’ character and moral fitness. ALL applicants in Washington are required to pay this investigation fee but are not charged when they submit their initial application. Only after the WSBA has reviewed their application will they receive payment and authorization forms from the NCBE. These fees vary depending on the level of investigation required. 

As part of this investigation, candidates may have to provide additional third-party documents related to criminal or employment records. Most states charge between $50-$90 for certified criminal records and additional fees of up to $3.50 per page of court filings.

Lost wages during bar prep: $9,833 – $16,666

The American Bar Association recommends studying 40 hours a week for a minimum of 8-10 weeks to adequately prepare for the Bar exam. Most applicants are unable to work during this time, which means they will miss out on at least two months of income. This estimate is based on the average annual income of first-year University of Washington Law School graduates which varies between $59,000 and $100,000 annually depending on their field of practice. 

Additionally, applicants continue to incur cost of living expenses while preparing for the bar exam — rent, food, gas for your car, phone bill, and additional financial obligations.

Law School tuition: $125,064 – $160,362

Undeniably, the largest expense of bar exam preparation is three years of law school tuition. While Washington State is one of the few jurisdictions that does not require a law degree to take the bar exam and practice law, the vast majority of applicants do. While the cost of law school tuition for each student varies substantially based on which law school they attend and their scholarship grants, most students at UW Law school pay $41,688 annually for in-state tuition and $53,454 if they are out-of-state. 

How to Pay for the Bar? The problem with bar exam loans

Most law students survive on federal student loans throughout their education but do not qualify for student loans while studying for the bar because they are no longer enrolled as students. Bar exam loans are another option but have serious drawbacks. So much so, that Forbes even cautions applicants to consider cheaper alternatives. 

Bar exam loans are personal loans specifically to cover expenses during bar exam preparation. While many lenders offer bar exam loans with low-interest rates, JD candidates without any income often need a cosigner to qualify.  Additionally, lenders do not provide an interest rate estimate before completing a full application, thereby limiting JD candidates’ ability to shop around.

In short, the exorbitant cost of becoming a lawyer continues to be the biggest barrier to advancing diversity in the legal profession. Scholarships are available to offset the cost of preparing for the bar, but much more needs to be done by Universities to support JD candidates in achieving success.

Bar exam scholarship opportunities:

Bar review scholarships

  • Women of WSAJ Bar Preparation Scholarship – provides women law school graduates and APR 6 law clerk graduates with scholarships to help defray the costs of bar review courses.
  • Barbri Public Interest Scholarship – substantially lowers the cost of a bar prep course for applicants committed to be employed in the public interest sector with an annual salary less than $75,000.

Hide Your Info: Exploring the Lackluster Protection of HIPAA

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By: Zach Finn

The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996, and has since become a touchstone for the protection of confidentiality and security of personal health information in the United States.

Or, so we thought. The rise in technology has advanced the way information is stored and shared. Biomedical databases store high volumes of information, ranging from personal external identifiers such as medical reports, to even individual genetic sequencing, exemplified by 23andMe’s and Ancestry‘s storage of genetic information. Large data and biobanks (a collection of biological samples, like blood and health information) create access to a plethora of quality human data, which prove to be valuable in medical research, clinical trials, and understanding genomics. But at what cost?

HIPAA requires medical and genetic information to be anonymized before being distributed and shared to third parties outside the relationship of medical providers and patients. Technology has created a loophole in HIPAA, through re-identification processes, which allows individuals to match medical information back to specific individuals using open source data. Re-identification, as of now, disarms HIPAA, rendering de-identified (anonymized) medical information basically unprotected from parties who obtain personal biodata through re-identification.

HIPAA nationalizes standards for protecting the privacy and confidentiality of individuals’ personal health information (PHI). It requires covered entities to provide individuals with notice when sharing a person’s genetic information. HIPAA is violated when a covered entity discloses personal and identifiable health information without the consent of the patient. These covered entities include healthcare providers, health plans, and healthcare clearinghouses. Technology provides entities with the ability to de-identify and anonymize large data sets in order to share health information and be in compliance with HIPAA. Anonymization removes personal identifiers like names, addresses, date of birth, and other critical identifiers. HIPAA sets out requirements of what needs to be de-identified, and once anonymized, personal health information is shareable and HIPAA compliant.

Re-identification is the process to which materials and data stored in biobanks can be linked to the name of the individuals from which they were derived. This is done by taking public information and re-matching it the anonymized data. It sounds difficult, but a study concluded that 99.98% of Americans would be correctly re-identified in any dataset using 15 demographic attributes such as age, gender and marital status. For example, in the 1990s, one could purchase the Cambridge, MA voter registration list for $20, and link it to a public version of the state’s hospital discharge database to reveal persons associated with many clinical diagnoses.

HIPAA has yet to play catch up with the innovation of technology. The requirements for compliance in anonymization lack the sophistication and protective measures needed to combat the expanding use of re-identification practices. HIPAA’s privacy rule does not restrict the use or disclosure of de-identified health information, since it no longer is considered protected health information. This means that any re-identification of this earlier protected information is not subject to HIPAA. This ultimately demonstrates HIPAA’s weak protective measures, and the alarming concern of how easily accessible our genetic and medical information is to third parties.

Re-identification of HIPAA compliant anonymized information is not a violation of the statute. We must consider reforming HIPAA to acknowledge technology’s capabilities to bypass its security measures. One way an individual can ensure privacy of his or her genetic and medical information is by not consenting to sharing or storing this data. Covered entities must give notice and obtain consent before de-identifying and sharing biobanks. However, this comes with the price of stifling research, trials, and genomics. Hopefully we can figure out a balance between confidentiality and sharing private information, but it starts with drafting laws that actually protect our personal and most private information!

Regulating Emerging Technology: How Can Regulators Get a Grasp on AI?

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By: Chisup Kim

Uses of Artificial Intelligence (“AI”), such as ChatGPT, are fascinating experiments that have the potential to morph their user’s parameters, requests, and questions into answers. However, as malleable these AIs are to user requests, governments and regulators have not had the same flexibility in governing this new technology. Countries have taken drastically different approaches to AI regulations. For example, on April 11, 2023, China announced that AI products developed in China must undergo a security assessment to ensure that content upholds “Chinese socialist values and do[es] not generate content that suggests regime subversion, violence or pornography, or disput[ions to] to economic or social order.” Italy took an even more cautionary stance, outright banning ChatGPT. Yet domestically, in stark contrast to the decisive action taken by other countries, the Biden Administration has only begun vaguely examining whether there should be rules for AI tools.

In the United States, prospective AI regulators seem to be more focused on the application of AI tools to a specific industry. For example, the Equal Employment Opportunity Commission (“EEOC”) has begun an initiative to examine whether AI in employment decisions comply with federal civil rights laws. On autonomous vehicles, while the National Highway Traffic Safety Administration (“NHTSA”) has not yet given autonomous vehicles the green light exemption from occupant safety standards, they do maintain a web page open to a future with automated vehicles. Simultaneously, while regulators are still trying to grasp this technology, AI is entering every industry and field in some capacity. TechCrunch chronicled the various AI applications from Y Combinator’s Winter Demo Day. TechCrunch’s partial list included the following: an AI document editor, SEC-compliance robo-advisors, Generative AI photographer for e-commerce, automated sales emails, an AI receptionist to answer missed calls for small companies, and many more. While the EEOC and NHTSA have taken proactive steps for their own respective fields, we may need a more proactive and overarching approach for the widespread applications of AI. 

Much like their proactive GDPR regulations in privacy, the EU proposed a regulatory framework on AI. The framework proposes a list of high-risk applications for AI, and creates more strenuous obligations for those high-risk applications and tempered regulations for the limited and no risk applications of AI. Applications identified as high-risk include the use of AI in critical infrastructure, education or vocational training, law enforcement, and administration of justice. High-risk applications would require adequate risk assessment and mitigation, logging of data with traceability, and clear notice and information provided to the user. ChatBots are considered limited risk but require that the user has adequate notice that they’re interacting with a machine. Lastly, the vast majority of AI applications are likely to fall under the “no risk” bucket for harmless applications, including applications such as video games or spam filters. 

If U.S. regulators fail to create a comprehensive regulatory framework for AI, they will likely fall behind on this issue, much like they have fallen behind on privacy issues. For example, with privacy, the vacuum of guidance and self-regulating bodies forced many states and foreign countries to begin adopting GDPR-like regulations. The current initiatives by the EEOC and NHTSA are applaudable, but these organizations seem to be waiting for actual harm to occur before taking proactive steps to regulate the industry. For example, last year, NHTSA found that the Tesla autopilot system, among other driver-assisted systems, was linked to nearly 400 crashes in the United States with six fatal accidents. Waiting for the technology to come to us did not work for privacy regulations; we should not wait for AI technology to arrive either.

Legend of Zelda Mod Drives Nintendo IP Lawyers Wild

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NES video game, Super Mario Bros, Duck Hunt and World Class Track Meet, 1988 (video games) by Nintendo Company Limited is licensed under CC-BY-NC-SA 4.0

By: Nick Neathamer

Has video game fandom gone too far? Despite developing some of the biggest games on the market, Nintendo seems to think it has (at least in a legal sense). The company has recently claimed copyright infringement on multiple YouTube videos that show the use of fan-made modifications (“mods”) for the game Legend of Zelda: Breath of the Wild. 

Breath of the Wild is one of the most popular open-world video games in recent memory. Created by Nintendo, the game was deemed Game of the Year in 2017 at The Game Awards. However, one notable element the game is lacking is any multiplayer capability. YouTuber Eric Morino, better known by his channel name PointCrow, aspired to change that. In November 2021, he tweeted out a request for anyone to create a multiplayer mod for the game, offering up $10,000 to whoever could send a functional version. Two members of the modding community were able to create a mod that runs on a Wii U emulator (software which enables Wii U console games to be played on a PC), allowing multiple players to travel throughout the game’s fantastical setting of Hyrule together. On April 4, 2023, PointCrow released the mod to the public through his Discord (however, it has since been removed). 

After the release, Nintendo claimed copyright infringement on PointCrow’s videos that feature any use of the mod, prompting YouTube to take down those videos. Due to Nintendo’s reputation for being a highly litigious company, the copyright claims against PointCrow’s videos are not a huge surprise. However, PointCrow has argued and appealed the copyright strikes, saying that he has “significantly transform[ed]” Nintendo’s work and that his videos constitute fair use. 

Copyright ownership grants the holder several exclusive rights in regard to their copyrighted work, as laid out in §106 of the Copyright Act of 1976. One of these rights is the right to create subsequent works derived from the original copyrighted work. If someone other than the copyright owner creates such a derivative work, they would infringe the copyright in the original work. Unfortunately for the Breath of the Wild modders, present-day mods have been considered derivative works since the 9th Circuit Court of Appeals’ ruling in Micro Star v. Formgen. While many game developers seldom pursue legal recourse against the majority of modders, and some have even started to embrace the modding community, this derivative work status bars modders from having any copyright of their own in the mods they create. Additionally, if Nintendo does choose to sue for copyright infringement in relation to the multiplayer mod itself, PointCrow and the other creators are likely to be held liable. 

Next comes the question of whether PointCrow’s videos about the mod qualify as fair use. Fair use analysis involves considering four factors in a balancing test. Set out in §107 of the Copyright Act, these factors are (1) the purpose and character of the use, including whether the use is commercial; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. While courts must consider all four factors, the first and fourth factors are typically considered the most important in deciding whether an allegedly infringing work is a fair use. The first factor is more likely to weigh against fair use when the allegedly infringing work is commercial. However, commerciality may be overcome and the first factor may weigh towards fair use when the work in question has transformed the original, providing it with a new expression, purpose, or meaning. Here, PointCrow intends to monetize his videos on YouTube, making his use commercial. PointCrow’s claim that his videos have “significantly transform[ed]” Breath of the Wild indicate his belief that the videos are sufficiently transformative to warrant the first factor weighing in favor of fair use, despite their commerciality. One could certainly argue that by providing commentary and reactions to the gameplay, PointCrow has transformed Breath of the Wild by granting it a new expression. However, the entertaining purposes of both PointCrow’s videos and the game itself are very similar, despite the difference in watching a game versus playing it. For these reasons, it is difficult to predict whether a court would find this factor to weigh for or against fair use. 

The second factor most likely weighs against fair use. A use is less likely to be fair use when the original work is unpublished, because authors of unpublished works are expected to be able to decide how their work is originally used, or whether it may be released to the public at all. On the other hand, copying of a published work is more likely to be considered fair use. Even more relevant to the nature of the work is if the original work is creative, which tends to weigh against fair use in contrast to when the original work is primarily factual. Here, the second factor most likely weighs against fair use because the original game is a creative work, despite the game’s published status. Meanwhile, the third factor likely weighs in favor of fair use. PointCrow’s videos include actual gameplay, and therefore show large portions of the original game. However, displaying this large amount of the game is necessary to accomplish PointCrow’s intended purposes. Disregarding the legality of the mod itself, PointCrow needs to show gameplay in order to demonstrate differences between the original game and the modded version, as well as to show his unique experiences with Breath of the Wild that viewers want to see. Because of the need to use this large amount of gameplay for his intended purpose, a court is likely to find that the third factor weighs in favor of fair use. 

The fourth factor, effect of the use upon a potential market of the copyrighted work, weighs against fair use when an allegedly infringing work provides a substitute for the original. With this in mind, it is not entirely clear what role PointCrow’s videos play in the video game entertainment market. PointCrow would likely argue that his videos are essentially free advertising for Breath of the Wild and Nintendo, while Nintendo may argue that watching someone play the game essentially provides a substitute for playing the game itself and therefore has a negative effect on the market for the game. A court may also be persuaded by the argument that by promoting the multiplayer mod, which runs on an emulator instead of an actual Nintendo console, PointCrow’s videos are indirectly causing a substitution loss to Nintendo in console sales. This makes it more likely, although not certain, that the fourth factor would weigh against fair use. 

Despite their best intentions and love for the game, it appears that PointCrow and other fans of Legend of Zelda: Breath of the Wild are infringing Nintendo’s copyright by creating a multiplayer mod. Less clear is whether videos that promote the mod are infringing. A lack of existing litigation surrounding gaming videos only exacerbates this uncertainty. With the upcoming release of Legend of Zelda: Tears of the Kingdom, a direct sequel to Breath of the Wild, content creators are likely unsure how to make gameplay videos while complying with copyright laws. That said, Nintendo’s history of litigation has not stopped fans from making their passion projects thus far, and it certainly seems like fans will continue to create mods and videos going forward. But perhaps the takedown of PointCrow’s videos will finally send the message that despite Nintendo’s success at making games, the company is not playing around when it comes to their intellectual property.