The Doctor Will See You Now… In Your Living Room: Amending the Ryan Haight Act

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By: Anonymous

During the COVID-19 pandemic, the need for mental health services has exploded. The week COVID-19 was declared a pandemic the prescriptions filled for anti-anxiety, anti-insomnia, and antidepressants went up 21%. During the course of the pandemic itself, we are seeing an increase in the use of non-prescribed fentanyl by 32%, methamphetamine by 20%, and alcohol sales going up by over 25%. Additionally, suspected drug overdoses increased by 18%. The need for effective mental health services has never been more acute.

COVID-19 has forced us to conduct as much of our lives as possible remotely, this includes our medical appointments. As of March 17, 2020, the Ryan Haight Act has been suspended by the Drug Enforcement Administration (DEA). The Ryan Haight Act requires a provider to conduct an initial in-person examination of a patient before any controlled substance can be prescribed to the patient. The act itself was passed in 2008 to regulate online prescribing as there has been a rise at the time of adolescents in particular accessing prescription-controlled substances through the internet for non-medical purposes. Technology has become vastly more sophisticated since the act’s passing. With most medical records online, electronic prescribing, and the ability for providers to connect with patients through high quality two-way interactive video, forcing in-person visits for a practitioner to prescribe a mental health drug does not make logistical sense. Importantly, oftentimes the medications for mental health conditions, such as anxiety and depression, are controlled substances. The DEA classifies controlled substances in regard to medications to have a certain or higher potential to be abused or cause addiction.

Allowing a patient to access mental health care from their home offers patients more options and is more amenable to those who have conditions that might make it difficult for them to leave their homes. Beyond this, moving appointments online during the pandemic has shown that many of the appointments we conduct in person can be done just as, if not more, effectively through telemedicine. Telemedicine is more cost effective and more convenient for doctors and patients alike for certain medical issues. In fact, 87% of patients found telemedicine visits more convenient and 84% of patients found it improved their relationship with their physician.

The actual difference between an in-person visit and a telemedicine synchronous two-way visit is minimal and in fact psychiatrists reported improved outcomes for telemedicine patients. With telemedicine care, patient attendance increased and 85% of people who visited psychiatrists for the first time online were satisfied with their visit. In addition, studies have shown that when patients keep their first appointment they are more likely to keep subsequent appointments, continue treatment, and are overall more satisfied with their treatment. Further, research shows that the above results create better medication compliance, few visits to emergency rooms, and fewer readmissions to inpatient units.

Armed with these statistics, the American Psychiatry Association has recommended that once the Ryan Haight Act is no longer suspended, the act should be amended to allow physicians to prescribe these prescription-controlled substances through first time psychiatry telemedicine visits. Legislation needs to keep up with and respond to improvements in patient care and patient needs. Oftentimes there is a disconnect between the law and medicine as in terms of what is best for patient safety and the abilities of technology, and COVID-19 has made these discrepancies even more apparent. It has prompted an examination of previous telemedicine laws. The suspension and alteration of the Ryan Haight Act during COVID-19, especially, makes us ask if this sweeping law truly helps patients. In response the outcry from the APA and others in the medical community, the DEA did update the law in September of 2020, but did not remove the in-person requirement. Instead, it introduced a registration system for physicians to register for telemedicine privileges; however, they have not further elucidated how or when this system will be implemented.The introduction of special telemedicine designation is a start to remedying this issue, but the DEA needs to prioritize and inform physicians how they can register for this designation. This lack of clarity could result in uncertainty for physicians who could then not prescribe needed medication to a patient due to licensing and regulatory concerns. The mental health crisis in this country cannot be addressed properly if patients cannot access the medication they need safely in the pandemic, nor can it be addressed otherwise by making these medications highly inaccessible in settings that do not warrant it. Telemedicine psychiatry for most patients should be the accepted practice and the law needs to recognize this in order to help physicians to put their patients first.

The Legacy of Nazi Germany and the State of Restitution in 2021

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By: Camille Walther

In the first part of 2021, the state of restitution of art works removed from their owners during Nazi Germany’s occupation of Europe remains unresolved, as evidenced by two recent decisions within the United States and throughout the world. In March 2021, France made news by passing a bill to authorize the release of Gustav Klimt’s Rose Bushes Under the Trees to the descendants of its prewar Jewish owner. Meanwhile, in February of this same year, the United States Supreme Court rejected claims of Jewish heirs who sought to sue Germany for taking property from its own citizens.

French Restitution: The Art World Seeks to Make Amends

Rose Bushes Under the Trees had, until recently, represented the only painting by the prolific Austrian artist Gustav Klimt owned by France. Its prewar owner was Nora Stiasny, a member of a well-known Austrian Jewish family who inherited the painting from her uncle, Viktor Zuckerkandl. Stiasny was forced to sell the painting in August of 1938 for much less than its value to survive months after the Nazis annexed Austria; in 1942 she was deported to a concentration camp in Nazi occupied Poland and died that same year. The French state bought the painting in 1980 without knowing its provenance, and it has been displayed in the Musee d’Orsay, one of France’s most prolific art museums. In 2019, the descendants of Stiasny’s sister filed for restitution; significantly, this occurred the same year that France’s Ministry of Culture launched an initiative to identify stolen works in its collections. Restructuring the path of this work until its acquisition by the Musee d’Orsay was described as “particularly arduous due to the destruction of most of the evidence and the erosion of family memory;” however, the case was able to proceed when the French government passed a bill to authorize the painting’s release. Klimt’s Rose Bushes Under the Trees will be the first time a work from France’s national collection is being restituted.

This represents the breadth of scars left by Nazi Germany’s occupation of Europe and the Holocaust on the Jewish community and the impact this has had on the art world as a whole. French Culture Minister Bachelot calls Rose Bushes Under the Trees a “testament to the lives that a criminal will had stubbornly sought to eliminate.” That the painting was sold under duress represented by German occupation rather than stolen outright hold significant to the requirements for restitution. Likewise, that France passed a new bill to release a painting from its national collection may demonstrate the willingness of nations and the art world to make amends for the violence done on the Jewish community during the reign of Nazi Germany. Still, legal barriers to restitution remain, as demonstrated in February’s United States Supreme Court ruling.

The International Shortcomings of Restitution: The United States Draws a Line

In February of 2021, the Supreme Court of the United States rejected the claims of Jewish heirs who sought to sue Germany for taking property from its own citizens. The Court cited the 1976 Foreign Sovereign Immunities Act (FSIA) as the basis for its unanimous ruling. The FSIA allows lawsuits to be brought for property taken in violation of international law but does not cover expropriations of property belonging to a country’s own nationals. In this opinion, the court held that the FSIA does not make exception for property taken under duress as part of a human rights violation like the Nazi genocide. Notably, the court did not consider the alternative argument suggesting that the owners were no longer German nationals in 1935, as many Jewish people lost their rights as citizens during the time of the Holocaust and were not considered citizens in Germany. Concern remains that this decision could hinder similar restitution cases in the future. This holding represents the barriers to restitution presented by international law and the hindrances presented by the laws of sovereign nations, wherein restitution’s feasibility will vary depending on the variant and independent laws from nation to nation and state to state. 

The Future of Restitution

Restitution exists as an incomplete remedy to irreparable harm caused by the kind of global harm that the Holocaust represented. That restitution efforts are creating as variable results as shown here demonstrates the longevity of any attempts to repair harm caused nearly a century past. The situations in which restitution is given cause are likely to give rise to the problems of international law faced here as those situations, like the destruction of the Second World War and the Holocaust will likely lead to changes in nations and law. Restitution, like repatriation, presents an international legal issue; in order to be effective, different legal systems must be able and willing to give faith and credence to repatriation efforts. The French restitution of Rose Bushes Under the Trees demonstrates the possibility for such action following future calamity.

NFT or Bust? – Impact on The Video Game World

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By: Joanna Mirsch

The idea of spending real, hard-earned cash in the video game world is not a new concept. Gamers have been making in-game purchases for quite some time now: unlocking new weapons, characters, levels/maps, and more. These purchases have usually been seen as fun perks to gameplay that allow gamers to tailor their gameplay experience through the content they purchase. However, the growing presence of non-fungible tokens (NFTs) within the video game realm is potentially an entirely different occurrence.

What are NFTs?

There are many ways to understand what an NFT is. It is helpful to first look at what the two words mean separately. At its core, a nonfungible item is something that cannot be exchanged for another thing of equal value; it’s one of a kind. The token references a unit of currency on the blockchain, which is how cryptocurrencies are bought and sold. An NFT—much like bitcoin, ethereum, and dogecoin—is a digital currency that is a type of money. One of the best perks of cryptocurrencies is that they are nearly impossible to counterfeit. Digital currencies operate on what is called the “blockchain”. A blockchain is a decentralized ledger of all transactions across a peer-to-peer network. Since every transaction is recorded across this large network, it makes it difficult for attackers to hack it because they would need to control large portions of the ledger to do any damage.

What distinguishes NFTs from other currencies is that their “underlying technology certifies and guarantees the authenticity of a tether item, raising its value.” Moreover, they can be thought of as “unique, digital version[s] of a certificate of authenticity, publicly rubber-stamped by the blockchain.” As of February 2021, only mere months after coming into the public eye, NFTs have become a booming market whose sales have reached $500 million. NFTs are essentially unique proof of ownership over items people cannot tangibly hold in their hands, such as digital works of art, coupons, video clips, etc. NFTs are one-of-a-kind pieces of code that are stored and protected on a shared public exchange. Fordham Law School professor Donna Redel, who teaches about crypto-digital assets, has explained NFTs as the purchase of a code that manifests as images. Notable NFT purchases include artwork, clips of LeBron James dunking, free pies for life from a Los Angeles pizza shop, digital homes, and much more.

Legal issues surrounding NFTs

It’s potentially dangerous to allow the sale of these unique items without both the creators and users of NFTs truly understanding the rights granted to token holders. While the purchase of NFTs allows buyers to have unique, one-of-a-kind pieces of digital artwork or other products, buyers do not usually get the copyright or trademark to the item. Furthermore, just because you purchase a specific NFT, does not mean others cannot purchase endless other versions of it elsewhere online. Therefore, NFTs—from a copyright perspective—are digital receipts showing that the owner owns a version of the work but does not own any of the exclusive rights in reproducing or preparing derivative works as awarded to copyright owners in §106 of the U.S. Copyright Act. This lack of transparency or awareness behind these NFT purchases could pose serious infringement issues. Many individuals purchasing NFTs are not familiar with the legal restrictions relating to copyrighted works. NFTs do not authenticate IP rights. At most, purchasing an NFT only allows the purchaser to receive the token itself and the right to use the copyrighted work for personal use.

Due to the immature market and lack of flushed out NFT regulation, it is possible the NFTs will allow infringers to steal intellectual property from their rightful owners. The potential for copyright owners to lose ownership over their works is a legitimate fear. Numerous artists have already reported that they discovered their work is being stolen and sold as NFTs without their permission. However, the pertinent legal question that remains is whether the first sale doctrine applies to purchases made by NFT owners. This doctrine allows for individuals who purchase copyrighted works to have the right to sell, display, or otherwise dispose of that particular copy. If this doctrine applies, the owners of NFTs would be able to sell the digital NFTs after they purchase them without the artist’s permission. But it is likely the doctrine is not applicable since NFTs are not tangible works as required by copyright law. The lack of clear rules surrounding NFTs are likely to allow for problems to arise as they grow in popularity.

What do NFTs mean for the gaming world?

One videogame company, SEGA, recently announced its plans to sell NFTs based on its intellectual property—including their classic and current IPs and upcoming projects—in the summer of 2021. SEGA could sell a digital piece of one of its classic games—such as Sonic the Hedgehog art—to a buyer for an extremely high price point. This is one of the reasons that NFTs could become a problem for gamers. Because the sale of NFTs has such a high potential for profit, collectible pieces of classic or limited-edition games—such as the original production sketches of Sonic or a game’s original soundtrack—which might otherwise be bundled with games or sold as physical objects will likely be held back to be sold as more profitable NFTs instead. However, an even greater problem involves possible, and likely, IP infringement through the sale of unlicensed uses of NFTs. DC Comics recently warned creative teams and freelancers employed by DC against unlicensed uses of NFTs after an artist made $1.85 million by selling NFTs of characters he used to draw for DC. This same issue could occur in the video game world too. While there are steps that could be taken to push back against unlicensed uses and sales of NFTs – the real question is whether the video game industry truly benefits from involving NFTs in their games.

While the video game industry has persuaded gamers to buy intangible, digital goods for a long time, what is the benefit of merging NFTs with games? Do gamers need this kind of authenticity to play games? Currently, there are a handful of popular NFT games that allow gamers to tokenize their game assets and use in them in-game or trade them as crypto-collectibles. Some of these games—such as CryptoKitties—record up to $30,000 dollars’ worth of daily transactions and more than 8000 new users weekly. These types of games are supposed to be a mix of thrill and potential profitability. It’s possible that NFT-enabled games can provide a potential boon for the multibillion-dollar video game industry. Currently, games allowing players to buy digital deeds for real estate—in the form of an NFT—have already generated millions of dollars. However, with the growing trend of microtransactions in games, the question of whether NFTs could simply create another pay-to-win structure that incentivizes users to pay large amounts of money to acquire these “authentic” and “unique” digital items is a valid concern. Moreover, what happens if gamers begin selling, distributing, etc. the NFTs they purchase in games? Where do the boundaries exist when it comes to the purchase of NFT content? Perhaps the video game industry is better off not engaging in this new, but potentially problematic, realm of digital currency.

Is Code Killing Copyright?

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By: Katherine Czubakowski

Early last month, the Supreme Court released its long-awaited decision in Google LLC v. Oracle America Inc.  The Court found that Google’s unauthorized copying of 11,500 lines of code from Oracle’s Java SE API was fair use because Google took only as much code as it needed to create a new and transformative program. While some argue that this outcome protects fundamental aspects of how code is created and the technology industry, others see this decision as a significant blow to copyright protections. This disagreement comes down to a fundamental question the Supreme Court seems to have side-stepped in this case: whether code should be protected under copyright at all.

An API, or Application Programming Interface, is a list of actions one can take regarding specific software and how one would take those actions. For example, if gardening were a software, you could choose the action you want to perform (dig, e.g.) and how you want to perform that action (with a shovel, a hoe, a pickaxe, your hands, etc.). The Java API in question contains a basic list of common actions (sorting a list, for example) and how those actions are accomplished (alphabetically, numerically, etc.). When Google began developing the Android software used in their smartphones, they wrote their own code to tell the program what to do and how to do it, but copied the declaring code—the part of the program which matches the name assigned to each task with the program necessary to perform the task—from 37 of Java’s listed tasks. By doing so, the programmers working on the Android software were able to continue using the commands with which they were familiar, such as PrintLn() (which tells the program to print the specified text on the user’s screen) and LocalDate.now() (which tells the computer to display the user’s current date and time), in their own code, but these commands relied on Google’s newly written code to perform the task.

In determining that Google was legally allowed to copy this code, the Court relied on the doctrine of fair use.  Although copyright owners generally hold exclusive rights to create derivative works, which are new works based on their own pre-existing work, fair use is a legal exemption which allows someone to use copyright protected work without the author’s permission in certain circumstances. Courts consider fair use on a case-by-case basis and analyze four different aspects of the otherwise-infringing use: its purpose and character, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for the copyrighted work.  In its recent cases regarding fair use, the Court has created a sub-factor that it considers under the purpose and character of the use: transformativeness. A work is considered transformative when it uses the original copyrighted work in an unexpected way or in a way which alters the original meaning or message.  Transformativeness weighs strongly in favor of fair use because it encourages creativity and furthering of the arts.  This sub-factor frequently affects all four factors in the fair use analysis and can sometimes even outweigh the importance of the other three factors. It can often be difficult to tell if a work used in a transformative way is a derivative work or if it falls under the fair use exception.

In Google LLC v. Oracle America Inc. the Court’s decision hinged on its finding that Google’s use was transformative. The Court first analyzed the nature of the work and found that APIs were fundamentally different than other types of code. Because the declaring code fuses together the uncopyrightable idea of how the code is organized with the copyrightable code which tells the computer how to perform a function, the Court saw the copied code as valuable only as a result of the programmer’s investment in learning it. Since the copied code did not hold independent value, the Court felt that applying fair use in this circumstance would not undermine general copyright protection for other programs. The Court then turned to the purpose and character of the use, which is where they discussed the work’s transformative nature. It found that Google’s purpose in using the copied code was “to create a different task-related system for a different computing environment” than the creators of Java had originally intended.  Google’s use of the code was part of the “creative progress” which the Court saw as copyright law’s objective, so they found that the use was transformative. The Court further found that, although Google copied “virtually all of the declaring code needed to call up hundreds of different tasks,” they copied a relatively small amount of the total API in question. Because this relatively small portion of the API was tied to a valid and transformative purpose, the Court felt that the third factor weighed in favor of fair use as well. Finally, the Court found that Android was not a market substitute for Java SE because the two products were substantially different. Weighing all these factors together, the Court found that because they only took as much as was necessary to allow their programmers to use “accrued talents to work in a new and transformative program,” Google’s “reimplementation of a user interface” was protected by the fair use doctrine.

The Court’s analysis and reliance on transformation in this case presents a danger to those seeking to copyright their code. This is because code is fundamentally different than many other works protected by copyright; it combines functionality with creative expression. Unlike traditionally copyrightable works, programs are usually created in a way which relies on previously created code to function. When writing new code, very few programmers actually write code which can interact directly with the computer. Instead, they use one of a number of programs which translate a more readable code, such as Java, into code which the computer can understand. Without being able to copy some fundamental aspects of the language, programmers would have to create a new language anytime they wanted to write new code. In practice, this means that many different programs with different purposes all rely on the same underlying program(s) to translate their code into a form the computer can understand. 

Although the Court likely reached the correct outcome in this case, the repercussions of its decision in other fields damages traditional copyright holder’s rights. The Court’s transformative analysis fails when applied in the context of programming because a program’s reliance on other code is a necessary aspect of its creation. Thousands of substantially different programs rely on the same underlying code in order to function. However, purely creative expression does not have this same reliance on preexisting works—as evidenced by Congress’s grant of derivative works rights to copyright holders. By trying to fit both pure creative expression and functional creative expression under the same body of law, the Court has blurred the lines between what is transformative and what is derivative and has put at risk the exclusive rights guaranteed to copyright owners of traditionally copyrightable works.

Peeved with Your Pre-Order? Part Two: Cyberpunk 2077, Federal Securities Laws, and the Lanham Act

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By: Moses Merakov

In addition to  Section Five of the FTC Act and parallel state-level false advertising statutes (as discussed in part one), gamers can potentially pursue false advertising litigation under the Lanham Act and through federal securities laws.

The Lanham Act

The Lanham Act ,also known as the Trademark Act of 1946, is the federal statute that governs trademark infringement/dilution, false advertising, and related unfair competition. To win a false-advertising claim under Section 43(a) of the Lanham Act, a plaintiff must prove that the defendant made (1) a false or misleading statement of fact; that was (2) used in a commercial advertisement or promotion; that (3) deceives or is likely to deceive in a material way; (4) in interstate commerce; and (5) has caused or is likely to cause competitive or commercial injury to the plaintiff. However, this method of attack is generally unavailable for the general consumer. Only commercial competitors of the defendant, not typical consumers of the defendant’s product, can “allege an injury to a commercial interest in reputation or sales,” necessary to secure standing to sue. See Lexmark v. Static Control.  Nevertheless, consumers can typically still pursue a false advertising lawsuit under comparable state laws. As mentioned in part one, Washington State’s Consumer Protection Act embodies false advertisement claims and functions similarly, in effect, to the Lanham Act.

Federal Securities Laws

In 2020, Cyberpunk 2077 instantaneously turned from one of the anticipated games of the year to one of the year’s biggest flops. The game arrived to store shelves with such an intense pandemonium of game breaking bugs that both Sony and Microsoft offered refunds to distraught purchases of the game and Sony removed the game from its online digital store. Almost immediately, two different law firms, the LA-based Schall Law Firm and the NYC-based Rosen Law Firm, filed class-action lawsuits against CD Projekt Red, the game’s developer, alleging that the company misled its investors. According to both firms, there were violations of  §§10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission.

The Securities Exchange Act is complex, but essentially it is a composite of regulations that prevent “manipulative and deceptive” practices in securities trading.  Section 10(b) of the Securities Exchange Act of 1934 [15 USC § 78j(b)] provides that:

“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange… [to] use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement… any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”

To recover damages in a private securities-fraud action under § 10(b), a plaintiff must prove “(1) a material misrepresentation or omission by the defendant; (2) scienter (a mental state embracing intent to deceive, manipulate, or defraud); (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” See Matrixx Initiatives, Inc. v. Siracusano.

In short, Rosen Law Firm and Schall Law Firm have an incredible burden in establishing that CD Projekt Red defrauded investors. The firms allege that CD Projekt Red lied to investors about the state of the game and failed to disclose that the game launch would be a financial catastrophe. To win, the firms would have to prove that CD Projekt Red made false or misleading statements, that it knew the statements were false or misleading and intentionally meant to mislead investors at the time the statements were made, and that those misleading statements would cause the company to be overvalued. Only litigation and proper discovery will truly tell whether there are enough facts for the firms to be successful, but some legal analysts say there is likely no case.

Conclusion

            Unless you are a “competitor” of the videogame developer or an investor, the Lanham Act and federal securities laws are likely not your best avenue for recovering for that falsely advertised video game you bought.