By: Jee Soo Han

Have you ever gone to a McDonald’s for their signature McFlurry, only to be denied because the ice cream machine was broken, yet again? Having one’s McFlurry cravings thwarted is a comical universal experience that even spurred the creation of a website that gives live updates on the working status of every McDonald’s ice cream machine in the United States. Fortunately, those who seek the delightful snack in the future may not be so disappointed, thanks to the recent exemption granted by the U.S. Copyright Office that will allow ice cream machines to be fixed in a timelier manner.

Why are the ice cream machines always broken?

In 1998, Congress enacted the Digital Millenium Copyright Act (“DMCA”) to foster the growth of digital works by providing copyright owners with legal protections against unauthorized access to their works. Section 1201 of the DMCA prohibits circumventing any access controls, such as digital locks, on any copyrighted works. This prohibition includes accessing proprietary software encoded in retail machinery. That’s right: Section 1201 prohibits bypassing the digital lock to access the software operating the ice cream machines, despite being essential to the repair process.

The ice cream machines in most McDonald’s franchises are made by Taylor Company, a commercial food service equipment manufacturer that has been supplying McDonald’s with ice cream machines since 1956. Under Section 1201, only Taylor Company and associated contractors could repair broken McDonald’s ice cream machines, as they are the copyright owners of the underlying software and, therefore, the only party legally allowed to bypass the lock on the machines. Additionally, bypassing the lock itself is an ordeal that can only be done by “authorized technicians” or those with access to a “Taylor-approved diagnostic tool, or via an extended, undocumented combination of key presses,” according to the long comment submitted by the petitioners. This means that the information needed to bypass the machines’ digital locks is neither widely distributed nor available, and repairs can only be done by those with said information. McDonald’s has 13,449 locations in the United States, and Taylor is just one company. Doing the math, it’s easy to see how there could be significant delays in fixing the ice cream machines. 

There was a brief interlude in 2019 and 2020 when a startup called Kytch created a device that would unlock the Taylor ice cream machines to find and fix software issues. Kytch devices were a hit with franchisers looking to repair ice cream machines in a more efficient manner until November 2020, when McDonald’s sent an email warning franchise owners of a “human injury” hazard when using a Kytch device. After McDonald’s urged franchise owners to stop partnering with Kytch, the startup’s business dried up almost immediately, and consumers were left with ice cream machines that were still often inoperable. 

Enter: Section 1201 exemptions

Within Section 1201, a rulemaking process grants temporary exemptions to the prohibition against circumventing access controls. This process involves: (1) a petition arguing that the proposed exemption satisfies the necessary requirements; (2) a public comments and hearings period; (3) the Copyright Office’s review and recommendation of the exemption; and (4) a final rule issued by the Librarian of Congress in the Federal Register. 

To qualify for a temporary exemption, the petitioner must show that (1) the proposed exemption relates to a work protected by copyright law; (2) use of the work does not infringe copyright; (3) users must currently be or soon to be adversely affected in their ability to make such use; and (4) the protection measure indicated in Section 1201 must be the cause of such adverse effects. The Copyright Office reviews exemption requests and issues recommendations every three years. 

Public Knowledge, a public advocacy group, and iFixit, an e-commerce repair website, petitioned the U.S. Copyright Office for a temporary exemption to Section 1201, allowing circumvention of digital locks on commercial and industrial equipment to repair their software. The petitioners detailed how many commercial and industrial equipment, such as McDonald’s ice cream machines, have complex, frequently changing access codes that only allow specific users to get past them to repair the equipment. Despite the software fix being relatively simple after getting past the digital locks, Section 1201 prevents business and franchise owners from repairing their machinery in a timely and economical manner, which costs them much-needed business. The Federal Trade Commission (FTC) and Department of Justice also filed comments supporting this petition. 

After review, on October 25, 2024, the Copyright Office granted an exemption allowing users to circumvent digital locks to repair “retail-level food preparation equipment,” and the Library of Congress issued a corresponding rule soon thereafter.

What does this mean?

This new exemption means that third parties that are not Taylor Company can bypass digital locks to access the software in McDonald’s ice cream machines to repair them. In the era of sweet treats, this is not only a win for consumers, but also for businesses who can better serve customers with working machines. More retailers seeking independent repair services can stimulate third-party repair activities, and you might be able to finally treat yourself to that Oreo McFlurry the next time you crave one.

#copyright #DMCA #McDonalds

By: Cynthia Huynh

The release of posthumous albums is nothing new; Tupac, The Notorious B.I.G., and many more had music released after their deaths. But some artists believe that their unreleased work should be kept private after their deaths. For example, Anderson .Paak expressed this position when he showed off his tattoo which says “[w]hen I’m gone, please don’t release any posthumous albums or songs with my name attached. Those were just demos and never intended to be heard by the public.” Anderson .Paak is not the only artist who shares this position, showing that an artist’s unfinished music may reflect something that they do not intend to release to the public.

Modern Posthumous Music

In recent years, many famous rappers have unexpectedly passed away at a young age due to drug use and violence, including Juice WRLD (age 21), XXXTentacion (age 20), Pop Smoke (age 20), Lil Peep (age 21), and Mac Miller (age 26). Each left behind incomplete or unreleased songs, some of which were released as enormously popular posthumous albums. Historically, posthumous music has raked in the big bucks for artists’ estates and record labels. When an artist dies, there is often a significant increase in demand for the artists’ released and yet to be released music. For example, after Pop Smoke’s death, his label released two albums and a mixtape. Both albums were number one on the Billboard 200 and the mixtape peaked at number seven. Notably, “Pop Smoke’s only non-posthumous release to reach the charts was a mixtape that peaked at 105 on Billboard, which only occurred after the artist passed away, seven months after its release.”

Gustav Ahr, known as Lil Peep, died of a fentanyl overdose in 2017, just two years after the SoundCloud rapper released his debut hit “Star Shopping.” Before his death, Lil Peep and rapper iLoveMakonnen were in the midst of recording an album together. The album was never completed but included an unfinished version of a song called “Sunlight on Your Skin.” Clips of the song were posted on YouTube, where it gained attraction from fans and other artists. After Lil Peep’s death, another rapper, XXXTentacion (X), expressed his love for the song and his desire to be included as a feature. X recorded his feature on the song, but also passed away before production was finalized. The song was then released after the death of both Lil Peep and X under the name “Falling Down.”

For some, “Falling Down” pays tribute to Lil Peep and X. But the two artists never collaborated during their lives and many Lil Peep fans condemn the song for being a product that Lil Peep never would have approved. While Lil Peep was alive, he “explicitly rejected X for his abuse of women. He spent time and money getting X’s songs removed from his Spotify playlist and wouldn’t have co-signed that song,” explained one of Lil Peep’s collaborators, Fish Narc. Even Lil Peep’s mother attempted to prevent the release of “Falling Down,” saying that Lil Peep had “sworn off any association with XXXTentacion” and had expressed how proud he was of the original song. With this, one might wonder if there are any laws that protect an artist’s work from being altered after their death. One treaty, The Berne Convention, attempts to provide such protections.

The Berne Convention

The issue of moral rights in art was addressed in 1886 through an international agreement called the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). The Berne Convention includes the protection of works by musicians and gives them the right to control how their works are used, by whom, and on what terms. Article 6bis(1) of the Berne Convention grants artists moral rights such as the right of integrity and allows artists “to object to any distortion or modification of a work, or other derogatory action in relation to a work, which would be prejudicial to his honor or reputation.” For example, imagine a photographer carries a religious faith that prohibits the use of tobacco. The photographer sells one of their images and its related copyright to an advertising agency which uses the image in a campaign for a cigarette company. In a country where copyright protects moral rights, the photographer may be able to protect their work from such distortion if the change offends their honor or reputation.

The United States became a party to the Berne Convention in 1989, but has not ratified the treaty, so it is non-binding until Congress statutorily enacts legislation that makes the non-self-executing Berne Convention enforceable. This could be accomplished by amending current federal statutes to expand the kinds of art that are protected like the Visual Artists Rights Act (VARA) that provides protections for visual, but not auditory, art.

The Visual Artists Rights Act

In the United States, the Visual Artists Rights Act (17 U.S.C. § 106A), protects moral rights, but only for works of visual art. Because music is audible art rather than visual art, musicians who have passed away are not afforded moral rights such as the right of integrity for their unreleased music. Should Congress wish to strengthen the moral rights framework, possible legislative changes include amendments to VARA and the Lanham Act to better protect artists’ interests and expand recourse for removal or alteration of copyright management information in section 1202 of title 17 which prevents false information about the name of an author, the name of the work, and more. But the U.S. Copyright Office stated in a report that it believes expanding VARA to encompass musical works and sound recordings contradicts the purpose of VARA as explained in the legislative history. First, musical works and sound recordings are made available to the public in mass-produced editions, not the single or limited editions that make certain works of visual art so suitable for moral rights protection. Second, . . . musical works created to accompany audio-visual works tend to be made-for-hire. Works-made-for-hire are explicitly excluded from VARA even if they are original visual art works. Third, musical works and sound recordings can benefit from contractual protections for attribution and integrity interests not available to visual artists, who typically work without such contracts.

Conclusion

It is crucial that lawmakers carefully consider and balance the tradeoffs between protecting the rights of musical artists to not have their work distorted versus overregulating an issue that is not as vulnerable to distortion as singular creations of visual art. The struggle for control over an artist’s unreleased music after their death has led to many lawsuits, which puts pressure on Congress to consider expanding copyright law to include moral rights in the United States.

#WJLTA #copyrightlaw. #moralrightsinmusic. #legalethics.

By: Dustin Lennon-Jones

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

The Scheduling Agreement

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

FBS Eligibility Requires the Addition of New Members

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

The Lawsuit

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

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

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

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

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

What’s Next

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

#PAC12, #collegefootball, #antitrust

By: Selena Liu

History of Facial Recognition Technology: The Very Beginning

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

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

Potential Downsides to Facial Recognition Technology and Policy Reactions

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

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

New Frontier in Facial Recognition Technology: Public Access 

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

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

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

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

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

Conclusion

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

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

#WJLTA #privacy #facialrecognition #technology