TRIGGER WARNING CONTAINS STORIES REGARDING SEXUAL ASSAULT
The concept of video games offering an alternative life is not a new idea. As technology advances, games like a Second Life, Sims, and even Club Penguin have adapted to new interfaces to allow players to continue to create a supplemental life that differs from the one they live off-screen. The Metaverse is now expanding this alternate universe through virtual reality (VR) by creating an immersive platform where you can do anything you can imagine.
Immersive technology, like VR, allows users to see a panoramic view of the image in front of them on their devices. Headsets and handheld controls enhance the simulation by making it more natural and vivid. It can feel like you are in these experiences without physically being there. Metaverse’s social networking app, Horizon Worlds, is a digital environment built around people and how they hope to interact with each other in the virtual world. A user can create an avatar, teleport around with a click of a button, and feel the presence of other users. Your avatar, a 3D impression of what you represent, can outwardly show facial expressions and body language when interacting with one another. Meanwhile, you are physically waiving your arms in your living room with a blocky Oculus system over your eyes while your avatar travels around the world. The immersive technology of VR makes the line between your physical and virtual worlds blurry. However, the violent interactions in Metaverse feel too much like the physical world.
Harmful behavior thrives in a largely unregulated space. The Metaverse’s failure to moderate content in Horizon Worlds has caused high rates of users being harassed, virtually groped, and gang rape. Online abusers are attacking female appearing avatars immediately after they are logging onto the platform. Researchers from SumOfUs, a nonprofit dedicated to researching Horizon Worlds, have all separately experienced male-appearing avatars making suggestive and lewd remarks. In one case, a researcher’s avatar was led into a private room where she was told to turn around so he could “do it from behind” while other users in the room could watch. Several other people have reported racial and homophobic slurs being used in the metaverse highlighting the rapid growth of harassment in a dangerous world.
Are the abuses to our virtual bodies causing the same amount of harm to our physical bodies to be criminalized? It’s hard to have an affirmative answer, but with recent allegations surfacing from the Metaverse, action needs to be taken.
The studies around Metaverse users point out the difficulty of prosecuting harassment in this virtual world. Its difficult to punish virtual sexual assault of avatar through law, but the harm it causes to the user may be as dangerous to the actions in the real world. Surely, Meta needs to restrict abusive behavior, sexual violence, and hate speech through policies on their platform to reduce the amount of harassment, but other solutions need to catch up to technology. These seriously immoral acts done in the Metaverse may call for the user to get banned from the game, but is that enough? With Meta’s goal to reach a billion people in the next decade, concerns about integrating the law, privacy, and protection for users across state lines and around the world will continue to be a point of concern until regulators hold Meta accountable today.
Sexual harassment, verbal abuse, and racial slurs are not isolated to the Metaverse. Online harassment through social media continues to be a place where violent interactions occur through a screen. However, Metaverse is created to be more than interaction through a screen. This immersive technology is uncharted territory that enables users to create a toxic environment with no rules. Metaverse may be advertised as an alternative world, but it is simply a mirror to the gender, class, and racial hegemonic society we live in today.
As technology advances and evolves, so should our legal system. The legal system can use technology to increase efficiency and accessibility to justice, while also decreasing costs for courts. Allowing modern technology such as virtual reality into the courtroom will likely have a strong influence on participation by increasing the number of people who can take part in the judicial system as well.
Virtual reality is a computer-generated simulated experience that takes over users’ visual and auditory perceptions and allows them to enter a completely new virtual environment. There are various types of virtual reality, including but not limited to first-person immersion, augmented reality, and desktop view. In a first-person immersion setting, the user is completely engaged in the virtual environment, with as many senses as possible co-opted to maximize the experience. In augmented reality, which is frequently used in medical practice and aviation training, there is a virtual overlay of the environment the user is in; computer-generated visuals superimposed on a human body or plane controls can allow for better reinforcement of skills and more consistent results. Desktop view is a first-person virtual experience accessed through a desktop computer using a standard keyboard and mouse to navigate the experience.
First-person immersion virtual reality can be used with a headset or head-mounted display that covers a user’s eyes, but some headsets also cover ears or have gloves to increase the sensory experience. Virtual reality often engages sight, hearing, and touch, but some systems have even experimented with virtual smell applications. The headset is frequently tethered to a computer using USB or HDMI chords to increase the system’s capabilities. Using tethered headsets will be imperative in the legal field in the next couple of years because currently, cordless headsets make sacrifices in the quality and accuracy of information delivered through the syste,. Nevertheless, even cordless headsets will eventually have a satisfactory quality with advancing technologies.
Covid-19 has required courts to adapt to the pandemic and use new technologies to facilitate litigation, many courts opting for two-way live video options like Zoom. Simple video chat programs are a satisfactory solution for the pandemic but using virtual reality would enhance the experience. Virtual reality differs from two-way live video because it attempts to mimic life-like experiences within a 3D virtual space while applications like zoom create 2D face grids for users to view. The judicial system can use virtual reality to simulate a 3D social interaction that gives users a virtual experience similar to what the experience would be like in person.
Virtual reality offers an alternative way to interact with the justice system as a party, judge, jury, or bystander. Virtual reality can increase accessibility to the justice system for all, which will result in a more diverse law system. The employment of virtual reality in the legal system will likely result in many benefits, and most importantly, it will radically change how individuals participate in litigation.
Benefits from Virtual Reality in the Legal System
Increasing accessibility to the various stages of litigation will result in a more diverse courtroom experience. The American Bar Association believes a diverse legal profession will result in a more productive, just, and intelligent system on both a cognitive and cultural level. Diversity in the law is a good thing, as supported by legal psychologist Samuel Sommers’ experiment from 2006 that used over 200 mock jury participants and demonstrated that racially diverse juries deliberate longer, discuss facts from the case more, make fewer factual errors, and are more open talking about race’s role in the case. Having a diverse judicial system is necessary to ensure that the system is truly working for all people.
Virtual reality can increase efficiency and, in turn, lower costs throughout the legal system. With virtual reality, travel costs can be saved by allowing people to meet remotely rather than in person. For example, legal teams could save money bringing by mailing witnesses virtual reality headsets and courts could save travel expenses by providing them to jurors when theyare required to travel to crime scenes. Saving the courts time and money will result in the ability to accept more cases at each level of the court’s system and increase the number of people able to render justice for themselves. Lower legal fees can increase the number of people who can afford lawyers and increase access to the judicial system as well. Currently, not everyone in the United States has access to an attorney or legal services, so lowering legal fees would diversify the client pool to include those experiencing poverty who frequently from either Black, Indigenous, or other communities of color.
Increasing efficiency is a potential opportunity for the court systems to catch up on cases too. There is currently a large case backlog, primarily in sexual assault and immigration cases, and the effects of Covid-19 have further exacerbated this problem. Some are describing the pandemic as a “double disaster.” In addition to the disease, there is also an increase in gender-based violence, impaired reproductive and sexual health, a loss of jobs and livelihoods, and increased forced marriages, migration, and human trafficking. Covid-19 is slowing down the efficiency of the courts and increasing the frequency of litigation as a factor of new arising cases. Those harmed most by the case backlog are disproportionally from marginalized communities, including immigrants, people of color, women, and nonbinary and trans individuals.
Virtual reality can do more than increase the racial and class diversity in the courts and diversify the ability of people involved, as more disabled people could participate in a virtual reality system that accommodates their needs. The Center for Disease Control and Prevention reports that one in four adults in the United States is living with a disability. Virtual reality can accommodate people’s individual needs to increase participation.
Virtual reality has even been known to help improve senses for some, and many people with low vision report that virtual reality technology actually improves their ability to see. Alex Lee lost his sight to a rare disease, but he was able to see again using virtual reality technology after five years. Lee went from seeing everything as an indecipherable blur to being able to see and play in a 1940’s virtual world. Lee’s sight improvement is made possible because of the high color contrast that virtual reality implements as well as intense magnification of objects that occurs from placing virtual reality screens so close to the eyes.
Automatic and instant language translation for all court members is possible with virtual reality in addition to the benefits already discussed. Automatic interpretation for the variety of languages spoken in American courtrooms can remove language barriers that previously prevented individuals from accessing the legal system and might save courts significant money by reducing the need to pay for in person interpretation experts. It would also allow for more access to the courts. Another benefit to the adoption of such technology includes automatic closed captioning that might allow persons hard of hearing or the deaf to participate to a greater degree. It might also be helpful, or even imperative, for the neurodivergent community such that it could encourage people to remain focused and process their surroundings more effectively.
Virtual reality generally increases the understanding of those using it. Users can have words defined for them instantly, leading to a better-informed population that can participate in a legal system that better caters to the individual’s understanding and information needs. Furthermore, automatic definitions could be useful for defining unfamiliar legal terms to non-lawyers who find themselves in an environment replete with “legalese” terminology. And moreover, virtual reality in certain contexts can allow individuals to more accurately recall important memories, which promotes increased accuracy in factfinding and prevents court reliance on fallible memories. For example, it would likely be possible for a jury member to rewatch a portion of a witness’s testimony before deliberating. As such, virtual reality can promote justice by increasing the quantity and quality of informed participants in the judicial system.
Virtual reality has the ability to increase access to justice, lower costs, and improve participants’ understanding of all aspects of the judicial system. An overall increase in accessibility to the judicial system from many demographics that usually cannot access legal services or lawyers will be the likely result, and as such virtual reality may contribute to the diversification of the pool of people who can use the law, participate in it, and benefit from it.
In the coming years, virtual reality will very likely change the legal system for the better. The law should use virtual reality technology to increase efficiency and accessibility while decreasing costs. Allowing modern technology such as virtual reality into the courtroom will diversify the law and litigation process, making revolutionary changes in the litigation experience at all stages.
OXFORD, ENGLAND – FEBRUARY 02: A member of staff and her child walk next to a series of artworks by Andy Warhol at the Ashmolean Museum on February 2, 2016 in Oxford, England. The work forms part of a new exhibition entitled ‘Andy Warhol: Works from the Hall Collection’. Featuring over 100 unseen Warhol’s, it is due to will run from February 4 to May 15, 2016. (Photo by Carl Court/Getty Images)
By: Erika Hammer
Amongst several IP-focused cases this year having requested review by the Supreme Court, the high court has recently granted certiorari for a case involving copyright, fair use, and some famous individuals: artist Andy Warhol and musician Prince. The case focuses on whether a work is “transformative” under fair use, a major defense to copyright infringement. Notably, fair use is considered to be one of the most important exceptions to copyright law’s general monopoly grant of intelelctual property rights to authors of original works, as well as a major cornerstone for promoting artistic expression, access to knowledge, and dissemination of ideas.
The case, Andy Warhol Foundation v. Goldsmith, arises from a set of portraits created by Andy Warhol, whose pieces often draw from preexisting works (e.g., a Marilyn Monroe photograph or a can of Campbell’s soup). The specific pieces at issue are portraits of Prince based on a Vanity Fair photograph taken by Lynn Goldsmith. The petition for certiorari describes how Warhol, via silkscreen printing, “cropped the image to remove Prince’s torso, resized it, altered the angle of Prince’s face, and changed tones, lighting, and detail” as well as “added layers of bright and unnatural colors, conspicuous hand-drawn outlines and line screens, and stark black shading that exaggerated Prince’s features.”
Post-litigation, the district court granted the Andy Warhol Foundation summary judgment in favor of its fair use defense, deeming the use “transformative” for communicating a different meaning and message from the original Goldsmith work. However, the Second Circuit reversed, despite acknowledging that the two artists’ pieces represented different messages. It stated, “while the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.”
As the Andy Warhol Foundation argued in its petition for certiorari, the Second Circuit’s analysis focuses on the visual resemblances between the works. The Foundation further opines that this decision is creating a circuit split and highlights that the Ninth Circuit has held that a work of art is “transformative” when it portrays a different meaning or message from the original source.
This case is significant not only because of the famous individuals involved, but also because it involves one of the most crucial doctrines in modern copyright law. Fair use, which is set forth in 17 U.S.C § 107, is the most wide-ranging limitation on copyright protection that attempts to promote the expression of artistic works. Fair use is also grounded in the goals of promoting common culture and enabling technological advancement. As such, highly creative works like Andy Warhol’s would appear to be exactly the kind of follow-on creativity that fair use is intended to not only protect, but to promote.
Even if a work is highly creative, it must be examined under four factors used in determining whether there is a qualified fair use defense. These four factors include: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit, educational purposes; (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. The Second Circuit found that each of these factors weighed in favor of Goldsmith.
Under the first factor, the more transformative a use is, the more likely said use is deemed to be fair. A foundational fair use case, Campbell v. Acuff Rose,emphasized transformative use as a critical factor. Transformative use is often seen as adding new, creative expression or changing the purpose or character of the copyrighted work. The more transformative a use is, the less significant the other fair use factors will be in the analysis. Typically, if a court finds transformative use under the first factor, that factor tends to strongly influence the inquiry into the rest of the fair use factors.
With transformative use being such a crucial factor in fair use, which is of itself a crucial doctrine in copyright law, it comes as no surprise that the Supreme Court granted certiorari in this case. Despite the fact that Andy Warhol’s artwork appears to transform Prince’s depiction “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” as described by the district court, this paradigm of the transformative nature of the work did not pass muster in the Second Circuit.
In contrast, other prior Second Circuit cases that have been seminal in the “transformative” aspect of fair use have allowed use of the defense even when the original work is still a “recognizable foundation” to the subsequent piece at issue. Graham v. Dorling Kindersleyheld that a Grateful Dead biography that used copyrighted, original posters was fair use because they served a different purpose, despite the entirety of the original work being used in the follow-on biography. However, in opposition to certiorari, Goldsmith argues that the Warhol silkscreens shared the same purpose as Goldsmith’s copyrighted photograph, as well as the same essential artistic elements.
How the Supreme Court comes out on this decision – whether a different message or meaning is sufficient for transformation under fair use despite facial similarities – will be very important in copyright jurisprudence and the scope of fair use.
In 1984, the credit histories of ninety million people were exposed by theft of a numerical passcode. The code was meant to be dialed through a “teletype credit terminal” located in a Sears department store. The stolen password was posted online to a bulletin board where it existed for “at least a month” before the security breach was even noticed. The New York Times helpfully informed readers that such bulletin boards were “computer file[s] accessible to subscribers by phone.” How did the anonymous hacker crack this code? Well, the password had been handwritten onto a notepad and left in a public space by a Sears employee who found the digits too troublesome to memorize.
Since 2015, Washington state’s data breach notification laws have required businesses, individuals, and public agencies to notify any resident who is “at risk of harm” because of a breach of personal information. This requirement of notice to customers or citizens affected by an organization’s data breach is mostly accepted among states, but as with other privacy-related rights in the US legal system, there is a patchy history of vindicating plaintiff rights under such laws.
The ruling on a motion to dismiss in a breach of the Target corporate customer database shows a shift in attitudes towards recognizing concrete harms. A broad class of plaintiffs from across the US drew from a patchwork of state notice laws—some of them lacking direct consumer protection provisions or private rights of action under their state law—to argue that Target’s failure to provide prompt notice of the theft of financial data caused harms. What might have once been considered shaky legal ground for a consumer class action claim proved stable enough for a Minnesota federal court to reject the motion to dismiss. The resulting settlement with 47 state attorneys general was a record-setting milestone in cybersecurity business liability.Prompt notice to those affected by a data breach alone is not enough. Many modern statutes now implement standards of care for data security, and may soon begin standardizing other features such as retention and collection limitations (perhaps taking cues from the EU’s General Data Privacy Regulation). Legal scrutiny is certain to intensify as the financial harms—and less tangible harms to the increasingly-online lives—of citizens mount. The proliferation of cyber liability insurance indicates that many businesses see an inevitability to this field of litigation, which is sure to cause development of the law. In this environment, public and private sector lawyers in a broad array of fields must be cognizant of the legal harms that can arise, their organization’s recourses, and the state and federal law they operate under.
Consumers are increasingly using mental health apps to get their needs met. It can be challenging to find a clinician, navigate the triage process, and wait weeks just to be seen for a mental health condition. Apps such as Calm, Better Help, and Cerebral are helping patients get everything from meditations to diagnoses. These apps also help mitigate the stigma around mental health conditions, making it easier for individuals to engage with their mental health that would not otherwise do so.
However, these apps run into problems because they are commercial products, not traditional clinical services. Many apps brand themselves as “wellness apps” instead of health apps to avoid having to seek FDA approval. They also undergo little rigorous clinical testing — a meta-review of 145 studies of mental health apps showed that there was little evidence of efficacy among most mental health apps. These services provide little clinical value, but one app actively caused clinical harm.
Cerebral is a newer app targeted toward younger users. The service claims to provide help for “anxiety, depression, insomnia, and ADHD.” It is marketed as a simple, accessible, one-stop shop for individuals to get diagnoses, care counseling, and prescriptions. However, one of Cerebral’s former executives, Matthew Truebe, is suing the company for over prescribing medications for Attention Deficit Hyperactivity Disorder (ADHD).
Studies have shown that most people abandon a mental health app within a few weeks — Cerebral is no exception. Truebe, Cerebral’s former Vice President of Product and Engineering, alleged that Cerebral planned to increase customer retention by prescribing stimulants to 100% of its ADHD patients. According to the complaint filed on April 27, CEO Kyle Robertson asked Cerebral employees to track the retention rates of ADHD patients who were being prescribed stimulants by Cerebral versus those who were not. Robertson then asked employees to find ways to prescribe stimulants to more ADHD patients to increase retention.
Under the Controlled Substances Act, clinicians can generally prescribe controlled substances online only after an in-person medical evaluation. However, this requirement has been relaxed since the former U.S. Secretary of Health and Human Services, Alex Azar, declared a public health emergency for COVID-19 on January 31, 2020. This emergency allowed Cerebral clinicians to prescribe stimulants to users with no face-to-face evaluation. While it can normally take weeks (or months) for clinicians to accurately understand a patient’s mental health condition, surrounding factors, and interacting health conditions before making a diagnosis or prescribing medication, clinicians working at Cerebral were expected to provide a prescription at the end of a 30-minute video call. Because of Robertson’s instructions, employees at Cerebral said they felt that Cerebral pressured clinicians to prescribe stimulants.
What’s more, ADHD medications such as Adderall are stimulants and are highly addictive. Cerebral’s plan to improve customer retention fed into the addiction. Truebe conducted his own analysis on August 5, 2021, and found around 2,000 duplicate shipping addresses in the patient database. The existence of these duplicate shipping addresses raised a red flag that some patients may have been attempting to get access to more medication than they were prescribed.
The Cerebral case raises issues related to clinician liability — whether clinicians will be held liable for over-prescribing ADHD medication or whether Cerebral will be held accountable for instructing employees and pressuring clinicians to increase prescriptions. For now, Cerebral denies all allegations. However, this lawsuit could have repercussions for other mental health apps, especially those that allow consumers to obtain prescriptions remotely. While the federal public health emergency will not last forever, remote prescriptions may still continue because of the ease of access for consumers. However, Cerebral illustrates the need for serious guardrails before remote prescription becomes a permanent practice.
Washington Journal of Law, Technology & Arts 