An Infinity War: Will the Latest Marvel Lawsuits Finally Declare a Winner in the Battle of Copyright Termination Tests?

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By Gracie Loesser

The Marvel Cinematic Universe is the highest-grossing franchise of all time, with a total worldwide gross profit of over $22 billion, and the demand for superhero content shows no signs of stopping.

So, it should not be a surprise that the original creators of characters like Iron Man, Spider-Man, and Dr. Strange are hoping to share in the success. Just this year, five former Marvel artists and their heirs have issued copyright termination notices, asserting their right to share in the Marvel Universe profits. In response, Disney-owned Marvel has sued, effectively asking the court to dismiss the creators’ ownership rights.

Whether the original Marvel artists will prevail depends on whether the creations are considered “works made for hire” under the federal Copyright Act. But how that will be determined is surprisingly unclear.

In 1976, Congress amended the Copyright Act addressing concerns that artists were losing valuable ownership rights through coercive agreements. The new Act incorporated a termination provision, which gave artists the right to reclaim any copyright interest they previously transferred regardless of any preexisting contract. Notably, the termination provision excluded any “work[s] made for hire,” with the rationale that an employer is considered the author and original copyright holder of any work made by an employee within the scope of their job. The issue is the law does not provide a definition of an “employer” and a “work made for hire” within the scope of the Act.

Courts have since stepped in to fill this gap. The Second Circuit developed the “instance and expense” test, which states that a work is made for hire “when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.” Under this inquiry, an independent contractor would be considered the author and original copyright holder of her work. However, the independent contractor could impliedly transfer her rights to the hiring party if certain conditions were met. The Second Circuit’s test proved popular, with the Fourth and Seventh Circuits adopting the approach.

This approach soon faced an existential challenge. In 1989, the Supreme Court attacked the appropriateness of the “instance and expense” test in CCNV v. Reid. The Court held that the Second Circuit’s analysis was not “consistent with the text of the Act,” stating the structure of Copyright Act § 101 necessitated two separate analyses: one for employees and one for independent contractors. This finding directly challenged the Second Circuit’s single test based on project control. To determine whether an artist should be classified as an employee or an independent contractor, the Supreme Court identified thirteen non-exhaustive factors rooted in the common law of agency to guide the analysis.

Although the Supreme Court’s ruling appeared to rebuke the “instance and expense” analysis, the Second Circuit continued to apply the test in the years following the Reid decision. In Marvel Characters, Inc. v. Kirby, the Second Circuit was asked to review the district court’s grant of summary judgment in favor of Marvel. The lower court had applied the “instance and expense” test and determined that former Marvel artist Jack Kirby’s drawings were works made for hire, thus invalidating the termination notices issued by his heirs. Upon review, the Second Circuit affirmed the district court’s use of the “instance and expense” test, acknowledging and simultaneously dismissing the Supreme Court’s criticism in a brief footnote. Kirby appealed the decision hoping that the Supreme Court would grant certiorari to once and for all dismiss the “instance and expense” test. Kirby’s cause was given further support when the former director of the U.S. Patent and Trademark Office, Bruce Lehman, filed a brief urging the Court to use this opportunity to reject the “instance and expense” analysis as improper. Unfortunately, Marvel settled the case, just as it looked like the Kirby campaign might succeed in convincing the Supreme Court to grant certiorari.

Since the ruling in Kirby, the Second Circuit’s rulings have only added to the confusion. In Horror Inc v. Miller, the court was again asked to analyze the validity of an author’s copyright termination. In that case, writer Victor Miller contended he was an independent contractor under the Copyright Act when he created the original Friday the 13th screenplay, making his termination notice enforceable. Surprisingly, the Second Circuit agreed, relying on the Supreme Court’s thirteen Reid factors in determining that Miller’s screenplay was not a work made for hire. Despite this major shift from the Circuit’s previous defense of their “instance and expense” approach, the court did not acknowledge the change or explain their reasoning.

Now, the Second Circuit is faced with five potential Marvel copyright termination cases, all of which closely resemble the facts in Kirby. Assuming the Second Circuit continues to apply the Reid analysis as it did in Miller, the outcome will likely be in the artists’ favor.

However, that assumes the Circuit maintains this approach. Based on the content of at least one complaint, Marvel’s counsel may try to convince the court to reverse course. The filed claims against the company’s former artists notably include separate considerations of “instance” and “expense.” Given the Circuit’s inconsistent rulings in the last decade, the outcome of these latest cases is less than certain, making this an important opportunity for the court to clarify its stance. Nevertheless, even if the Second Circuit decides to abandon the “instance and expense” test, whether the Fourth and Seventh Circuits will make similar changes to their analysis remains to be seen.

The FTC Takes on Health and Fitness Apps’ Rampant Privacy Problems

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By: Laura Ames

More and more Americans are turning to mobile health and fitness applications, but many worry about the lack of regulations would ensure that developers of these products keep user information secure and private. The Federal Trade Commission (“FTC”) recently addressed this concern with a policy statement (“Statement”) including app developers among the entities who must follow certain notification procedures after security breaches. However, many question the Statement’s practical effects and whether the FTC had the authority to issue it.  

Health App Trends

Mobile health and fitness apps have gained popularity in recent years, and the COVID-19 pandemic only accelerated this growth. In fact, the United States led the world in health and fitness app downloads as of October 2020 with 238,330,727 downloads that year alone. Even with this increased usage, a recent poll showed that over 60% of U.S. adults felt at least somewhat concerned regarding the privacy of their health information on mobile apps. These worries appear to be well-founded. Flo Health Inc., the developer of a menstrual cycle and fertility-tracking app, currently faces a consolidated class action alleging the company disclosed users’ health information to third parties without users’ knowledge. This is not an isolated concern. A recent study of over 20,000 health and fitness apps found that a third of these apps could collect user email addresses and more than a third transmitted user data to third parties such as advertisers.

The Original Health Breach Notification Rule

Congress enacted the Health Information Technology for Economic and Clinical Health (“HITECH”) Act as an investment in American health care technology. Subtitle D of this Act delegated authority to the FTC to promulgate breach notification requirements for breaches of unsecured protected health information. In 2009, the FTC issued its Health Breach Notification Rule (“HBNR”) covering vendors of personal health records (“PHR”) and PHR-related entities who experienced a security breach. The HBNR requires these entities to notify affected individuals and the FTC. Crucially, the HITECH Act defines a PHR as an electronic record that can be drawn from multiple sources.

The FTC has never enforced the HBNR, but the possibility for changes to the rule has been on the horizon for some time. In 2020, the FTC requested public comments on the HBNR, which functions as a part of their rulemaking process, saying that it was merely a periodic review of the rule. However, before that comment period ended, the Commission issued a policy statement that turned heads.

The FTC Makes a Bold Move

On September 15, the FTC issued a statement with two of the five Commissioners dissenting. The FTC’s stated goal was to clarify the HBNR and put entities on notice of their security breach obligations. The FTC explained that the HBNR is triggered when “vendors of personal health records that contain individually identifiable health information created or received by health care providers” experience a security breach. The first major revelation was that the FTC considers developers of health apps or connected devices as health care providers because they provide health care services or supplies.

Additionally, the FTC stated that it interprets the rule as covering apps that are capable of drawing information from multiple sources, like through a combination of consumer inputs and application programming interfaces (“APIs”). The statement gave two examples of apps that are covered under this understanding. First, an app that collects information directly from users and has the capacity to draw information through an API that enables syncing with a user’s fitness tracker. Second, an app is implicated if it draws information from multiple sources even if the health information only comes from one source. For example, if a consumer uses a blood sugar monitoring app that draws health data only from that consumer’s inputs but also draws non-health data from the phone’s calendar, that app is covered by the HBNR.

Additionally, the FTC sought to remind entities that a breach is not limited to cybersecurity intrusions but also includes unauthorized access to information. Under this interpretation, companies that share information without a user’s authorization would also be subject to the Rule. Although the FTC had not previously enforced the Rule, this Statement also served as signaling the FTC’s willingness to do so. It mentions that businesses could face potential civil penalties of $43,792 per violation per day.

Obviously, these clarifications could subject many app developers and other companies to the FTC’s rule. However, in the eyes of some, including the two dissenting Commissioners, this statement is not a mere clarification but a fundamental policy change. It could not only lead to potential confusion but could also be a breach of the FTC’s statutory authority and rulemaking process.

Critiques and Larger Questions

Some legal experts argue that this statement represents an expansion of the HBNR that could lead to further confusion for app companies and others. The two dissenting FTC Commissioners go further than potential confusion in their statements.

Commissioner Christine S. Wilson argued that this Statement both short-circuits the FTC’s rulemaking process and also improperly increases its statutory authority by expanding the definitions of terms without legislative approval. Commissioner Noah Joshua Phillips agreed that this statement’s first problem is its issuance in the middle of a request for public comment. Wilson pointed out that the FTC’s own business guidance for dealing with the HBNR directly contradicted the statement by saying that “if consumers can simply input their own” health data on a business’ site, for example, a weekly weight input, then the business is not covered by this rule. Wilson also expressed concerns that this interpretation of “health care provider” was a potentially slippery slope. For instance, does Amazon qualify as a health care provider given that users can purchase Band-Aids and other medical supplies through its phone app?

In the coming months, we might see the FTC forcing app developers to notify customers of data disclosures, but the debate around this statement also reveals larger questions concerning health care at the moment. Fundamental questions that once might have seemed easy to answer, such as who qualifies as a health care provider, are growing murkier. In the wake of COVID-19’s effects on telehealth and health technology in general, it seems unlikely that health care will phase out of this continued intermingling with technology. If that is the case, then legislation and regulations surrounding health care will continue to have to scramble to catch up with this rapid technological evolution.

Bloomers and Black Widows: Furthering Feminist Law Through Contract

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By: Paige Gagliardi

What does a singing suffragette and comic book assassin have in common? They both will not stand for a breach of contract.

Actress Scarlett Johansson, star of the latest Marvel blockbuster “Black Widow,” recently made headlines when she filed a lawsuit against her employer The Walt Disney Company. While it may seem unwise to battle an entertainment powerhouse like Disney, this is not the first time the female lead of a feminist film has sued an entertainment giant for breach of contract. Spoiler: last time, the actress WON. 

History is set to repeat itself, and in doing so, it may set some powerful legal precedent for the entertainment industry. 

Grab your popcorn! 

The Lawsuit of Yesterday

Shirley MacLaine Parker is a woman with multiple roles and identities- director, artist, author, academy-award winner, dancer, singer, author, traveler, wife, mother, and activist. Credited with the dismantling of the exploitative Old-Hollywood star-system of actor management, Parker has never shied away from risking her position and using the court to fight for her rights as a creative. 

In 1965, Parker signed a contract with 20th Century-Fox Film Corporation to lead the slated production of a motion picture entitled “Bloomer Girl” (based on Arlen and Harburg’s musical-comedyof the same name). The musical’s plot tracks Evelina, the fictional niece of Amelia Bloomer, as she follows the political footsteps of her aunt.Bloomer, famous cohort of Elizabeth Cady Stanton and Susan B. Anthony, was a mid-nineteenth century feminist, suffragist, and abolitionist who founded the first U.S. newspaper for and by women- The Lily. While the musical takes a few liberties with history, this musical adaptation not only presented the perfect opportunity for Parker to display her talents as a lead singer and dancer, but also provided her an opportunity to introduce audiences to an important human rights movement and advance feminist messages. 

Unfortunately, this musical would not see the screen. The company instead offered to employ Parker as the leading actress in another film tentatively entitled “Big Country, Big Man” (hereinafter, “Big Man”). The compensation offered was identical, as were 31 of the 34 numbered provisions of the original contract. However, unlike the musical “Bloomer Girl,” “Big Man” was a dramatic ‘western type’ movie. Furthermore, while “Bloomer Girl” was to be filmed near her home in California, “Big Man” was to be filmed in Australia. The new contract also required that Parker accept an unchangeable script and to work under a different director in whose selection she had no choice. 

Afforded only one week to accept the radically different substitute offer, Parker allowed the offer to lapse, choosing instead to file suit.

It is not unreasonable to assume that “Big Man” and “Bloomer Girl” would have adhered to their respective genres and associated gender tropes, offering two drastically different portrayals of women (the gendered titles ‘Bloomer Girl’ and ‘Big Country, Big Man’ speak for themselves). In one, Parker would have been the leading lady and the top-billed cast member, while in the other, she would have been relegated to a secondary role under the male hero. “Bloomer Girl’s” source material tackled issues of race and gender and because of 20th Century Fox’s decision, Parker was denied the opportunity to star in a film that would showcase not only her talent, but her political acumen as well. The genre gap between the two films, as well as disparities of control, were not merely what the dissent in Parker’s suit referred to as “superficial differences,” but illustrative of a legally recognizable inferior position that Parker would be in by accepting the new role. 

By affirming that the studio failed to mitigate damages to Ms. Parker, this case marked a major turning point for creatives: finally, a woman entered the “man’s world” of contracts to fight for equity and successfully stood up to a major studio and demanded they afford the respect owed to her. This case thus served as a watershed moment for performers in the entertainment industry because it clarified the concept of mitigation of damages for entertainers and severely hindered a method by which studios could take advantage of talent without risking fiscal responsibility. Clearly, it was a game changer. To this day, this case remains a staple in contract law casebooks when introducing mitigation. It is also often one of the first cases with a female as one of the parties.

The Lawsuit Today

Scarlet Johansson, the world’s highest paid actress and star of the most successful film franchise in history, alleges her contract was breached when Marvel’s “Black Widow” premiered on the Disney+ home streaming service at the same time it premiered in theaters (contrary to an exclusive theatrical debut stipulated in her contract). 

“Black Widow,” a highly anticipated in medias res addition to the Marvel Cinematic Universe, finally liberated a female character originally designed for the male gaze. In getting her own independent film, the Black Widow is finally afforded the center stage to tell her unique narrative. Tackling feminist issues such as gender, objectification, human trafficking, reproductive rights, and family ideals, the superhero’s story intentionally parallels the real life stories of many women who experience abuse by men of power. In taking revenge and in taking power back, Black Widow helps reshape the cultural gaze and pushes the boundaries of how women are represented in the media.  

Despite a successful opening weekend, this film has recently seen a sharp nose-dive in box office gross revenue week-to-week. Worse, as the Wall Street Journal reports, Johansson stands to lose an estimated $50 million on the film due to Disney’s hybrid-release strategy. That’s a super-sized pay cut anyone would want to avenge. 

Cue lawsuit.

Johansson claims that she tried to renegotiate the terms of her contract with Disney after she discovered the film would not be released exclusively in theaters, but the studio did not respond, and thus willfully induced the breach. However, this is bigger than just “Black Widow.” Many production companies and creatives negotiate box office incentives in their contracts, but as content consumption trends towards streaming, creatives are floundering for ways to legally assert their worth and navigate a growing power imbalance as media companies refuse to release their proprietary viewer numbers. And while other companies are undertaking similar hybrid-release strategies, fair compensation for creatives remains a gray area without legal precedent- precedent Johansson’s lawsuit could set. 

The Law of Tomorrow:

The parallels between Parker’s and Johansson’s lawsuits are clear: actress wants to star in feminist film; studio breaches contract; actress stands to lose what she could have gained, financial or otherwise; actress stands up for her rights; actress sues. Should today’s case follow the same path as its sister-suit, Johansson’s lawsuit will likely have profound implications. Using her position of privilege to push this potential precedent, the ramifications could trickle down to all creatives, protecting not only the top actress working for the biggest media company in the world, but all other creatives seeking to assert their worth contractually. And regardless of whether Johansson wins, her suit will surely shape how every party approaches a contract in the ever-changing industry of entertainment. 

Mark your calendars, everyone. New law is coming to a theater near you.

COVID-19 Vaccine Passports: A One-Way Ticket to a Normal Life or a Threat to Individual Privacy and Equality?

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By: Kelsey Cloud

As the percentage of fully vaccinated individuals continues to increase globally, countries have begun to consider whether or not to require vaccine passports—digital passes confirming that the owner has been fully vaccinated against COVID-19—in order to attend sporting events, concerts, and other pre-pandemic activities. A simple scan of a QR code on a smartphone or printed paper would allow the flow of international travel to resume, as well as allow consumers access to certain businesses, events, or locations within their home countries. China, New Zealand, Israel, and the United Kingdom have already launched various versions of vaccine passports, with widely varying policies and methods of implementation. For example, the European Union’s Digital Green Certificate collects an individual’s name, birthdate, date of issuance, and vaccine information. Moreover, a multitude of international organizations, including the World Health Organization and International Air Travel Association, have begun launching efforts to coordinate vaccine passport implementation as well.

In the United States, President Biden issued an Executive Order instructing the State Department to collaborate with global health organizations to establish international travel guidelines. However, the administration explicitly stated that the federal government will not issue vaccine passports, nor collect or store personal vaccine data. As such, without a federal mandate, vaccine passport initiatives in the U.S. remain in the private sector, driven by companies such as Microsoft, Salesforce, IBM, and MasterCard. All applications are still in the development stage, and several governors have already issued executive orders banning the use of vaccine passports in their states. The absence of a federally issued vaccine passport, coupled with the lack of uniform digital standards at an international level, create significant implementation issues that stir complicated political and ethical debates surrounding privacy, inequality, discrimination, and fraud.

Private Sector Digital Vaccine Passports Full of Privacy Concerns

The lack of a federal privacy law regulating the collection and use of personal information fosters concern surrounding oversight and control of that information. While companies developing passport applications seek to preserve as much individual privacy as possible, a federal application would likely need to include enough personal and medical information to confirm that someone has been vaccinated, such as name, contact information, and medical records from health care providers. The protections of the Health Insurance Portability and Accountability Act (HIPAA) would not be implicated in most situations, since passport applications could be developed without transmitting information to HIPAA-covered entities such as hospitals.

While some companies claim that their applications have robust privacy protections by encrypting confidential user data, the lack of legal remedies for privacy violations still leaves digital vaccine passports ripe for abuse and vulnerable to privacy breaches. Allowing private companies direct access to medical records raises questions concerning if and how third-party companies will store and use that data. Without oversight from the federal government, those private companies could capture personal health information in ways that create a significant target for hackers.

Current Vaccine Distribution Policies Reinforce Systems of Inequality    

Additionally, restrictive vaccine distribution policies favor  high-   income countries and worsen inequalities domestically and internationally. Globally, most low and middle-income countries still lack access to COVID-19 vaccines, and within high income countries, African Americans and Hispanic individuals continue to be vaccinated at lower rates than White individuals. As of April 15th, only 0.1% of the 841 million administered vaccine doses went to individuals in low-income countries. Joia Mukherjee, Chief Medical Officer of Partners in Health, warns that the world is “creating another superstructure or colonial hierarchy of people from wealthier countries having access and poorer countries not having access.” In the U.S., high poverty and uninsured populations, as well as non-citizen immigrants, share a direct correlation with lower vaccination rates. Moreover, vaccine passports have the potential to discriminate against those who cannot receive vaccinations due to medical or religious reasons. While many vaccine passports, such as the State of New York’s Excelsior Pass, allow for the use of a negative COVID-19 test in place of proof of vaccination, other countries like China exclusively admit vaccinated individuals, increasing the possibility for discrimination.

In addition, those without smartphones, mobile devices, or a reliable mobile data plan would suffer technological discrimination. Vaccine passport applications would disregard those in marginalized communities, such as formerly incarcerated people or undocumented people, who typically hold higher fears of government surveillance of their private health information. Requiring digital passports for travel, both domestically and internationally, could only exacerbate these inequalities.

Towards a Unified Global Approach Vaccine certifications for international travel are not new—many countries currently require proof of yellow fever vaccinations, for example. Mass vaccination initiatives have sprouted throughout history, both in the U.S. and around the world. Prior vaccine initiatives in place before COVID-19 already carry vaccination requirements for attending work, educational institutions, and traveling internationally, which the vast majority of the world complies with. In order to ensure the effectiveness and reliability of COVID-19 vaccination passports, private companies, international organizations, and other entities developing vaccine passports must safeguard the privacy of medical information, prevent fraudulent vaccination data, and implement anti-discriminatory policies that lessen global inequalities.

A New York City Councilmember has proposed the first bill that would prohibit weaponizing police robots

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By: Zoe Wood

In February of this year, I wrote about how lethal autonomous weapons systems—or Killer Robots, depending upon who you ask—are under-regulated both nationally and internationally. In March, New York City councilmember Ben Kallos proposed what is likely the nation’s first law regulating law enforcement use of robots armed with weapons.

Proposed Int. No. 2240-A is just fifteen lines long and it bans two types of conduct. First, the New York Police Department (NYPD) “shall not authorize the use, attempted use or threatened use of a robot armed with any weapon.” Second, the NYPD “shall not authorize the use, attempted use or threatened use of a robot in any manner that is substantially likely to cause death or serious physical injury, regardless of whether or not the robot is armed with a weapon.” A weapon is “a device designed to inflict death or serious physical injury,” and a robot is “an artificial object or system that senses, processes and acts, to at least some degree, and is operated either autonomously by computers or by an individual remotely.” 

Councilmember Kallos proposed Int. 2240 in response to a late-February 2021 incident during which the NYPD brought an (unarmed) robot to an active crime scene in the Bronx. Kallos reportedly watched footage of this event “in horror.” “Robots can save police lives, and that’s a good thing,” says Kallos, “[b]ut we also need to be careful it doesn’t make a police force more violent.”

The robot in question strongly resembles a dog despite a complete lack of fur, ears, or anything resembling a face, and is generically called “Spot” by its manufacturer, Boston Dynamics. Spot is approximately two-and-three-quarters feet tall and three-and-a-half feet long. It weighs 11.5 pounds and can last up to 90 minutes on one battery charge. Spot can also travel at about three miles per hour. Why exactly would the Spot robot be useful at an active crime scene? The robot’s primary utility is for surveillance. According to Boston Dynamics, “Spot is an agile mobile robot that navigates terrain with unprecedented mobility, allowing you to automate routine inspection tasks and data capture safely, accurately, and frequently.” At an active home inspection like the one in late February in the Bronx, Spot was likely brought in by the NYPD to surveil the residence with cameras before police officers entered the premises. Although Spot has the ability to operate autonomously, the NYPD has reportedly only used its Spot robot with a remote control.

A prominent robotics company owned by Hyundai Motor Group, Boston Dynamics  is perhaps most popularly famous for its dancing robots. However, the advertising on its website focuses on solutions for construction, industrial inspection, and work in warehouses. Notably, policing is not actively advertised as an implementation for Spot. In fact, policing is mentioned just twice, embedded within two FAQs. The same goes for military use of Spot, which is not advertised and appears just once in an FAQ.

In fact, Boston Dynamics is opposed to weaponizing its robots. CEO Robert Playter has explained that “[a]ll of our buyers, without exception, must agree that Spot will not be used as a weapon or configured to hold a weapon.” This language is included in the Software License section of the Spot robot’s Terms and Conditions of Sale, which reads in relevant part: “The License will automatically and immediately terminate, and we may disable some or all Equipment functionality, upon (a) intentional use of the Equipment to harm or intimidate any person or animal, as a weapon or to enable any weapon,” or “(b) use or attempted use of the Equipment for any illegal or ultra-hazardous purpose.” Playter explains “[a]s an industry, we think that robots will achieve long-term commercial viability only if people see robots as helpful, beneficial tools without worrying if they’re going to cause harm.”

There are several glaring reasons why this paragraph in Spot’s Terms and Conditions of Sale is insufficient to ensure that Spot not be weaponized. First, and foremost, while Terms and Conditions of Sale are binding, they lack the staying power of a law or regulation and can be changed from contract to contract. Second, there are many different kinds of robots currently in use by law enforcement, and they should all be regulated uniformly. Regulation lacking in uniformity could lead to a complex legal landscape that is difficult to enforce, riddled with loopholes, and which favors certain technologies over others. Third, and most specifically, the Boston Dynamics Terms and Conditions of Sale do not define key terms such as “intimidate” and “ultrahazardous.” Finally, the commercial viability of robots, as cited by Boston Dynamics, should not be the primary motivation behind regulations that ban killer robots. What makes a product commercially viable is wont to change, and besides, human-centric policy which values people over property should form the basis for regulation that bans killer robots.

This is where Councilmember Kallos’s bill excels: it would have staying power, would apply to all police robots uniformly, and appears to be motivated by human-centric policy considerations. And although the bill may seem premature, there have been several instances of law enforcement robots using force against people, at least once resulting in death. Most famously, in 2016, the Dallas Police Department used a military robot—a Remotec Andros—to curtail a standoff with a sniper who had killed two police officers and gravely injured three more. Faced with an hours-long standoff, Dallas police officers placed a pound of C-4 explosive on the robot’s extension arm and maneuvered it by remote-control into the building where the sniper hid. When the C-4 exploded, it killed the sniper and ended the standoff. Less famously, police in Dixmont, Maine used the same type of robot with the same type of explosive when they were called to the home of a man having a mental health crisis. When officers could not get the man to come out of the house, and after the man began shooting out of his window at the armored police vehicle, police maneuvered a robot armed with an explosive device towards the man’s home. When the device detonated, it caused the man’s house to collapse, but miraculously killed neither the man, nor the dog or kitten living with him.

Still, Councilmember Kallos’s bill is vulnerable to some criticism. First, Int. No. 2240 does not appear to take into account the years of organizing work done by the Campaign to Stop Killer Robots. The Campaign advocates for maintaining meaningful human control over the use of force, and Int. No. 2240 stops just short of this. While it prohibits “use of a robot in any manner that is substantially likely to cause death or serious physical injury,” it does not ban outright the use of force by remote controlled or autonomous robots. The Campaign has written policy that explains why such a ban is necessary, and Int. No. 2240 would benefit from being informed by such policy.

Finally, Int. No. 2240 does not contemplate that weaponization, lethal or otherwise, is not the only aspect of police robots that is concerning. Although this need not necessarily be reflected in a bill that bans weaponization, discussion about regulating police robots should keep in mind their myriad uses, including their capacity for surveillance.