Transforming the Litigation Experience with Virtual Reality

By: Abigael Diaz

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.

The (Purple) Reign of Fair Use: Certiorari Granted for Warhol’s Portrait of Prince

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 Kindersley held 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. 

Narrower Patent Means CRISPR Victory for Broad Institute

By: Smitha Gundavajhala

On February 28, 2022, the US Patent and Trademark Office (USPTO) handed down a ruling in one of the most bitterly fought patent turf wars in biotechnology: the battle over the use of CRISPR-Cas9 in humans. The two major groups that were vying for recognition were the Broad Institute, consisting of researchers from Harvard, and MIT and CVC, consisting of researchers from UC Berkeley, the University of Vienna, and Emmanuelle Charpentier. 

CRISPR-Cas9 is a revolutionary gene editing tool that has implications for healthcare, agriculture, and more. CRISPRs are DNA sequences with proteins that act like scissors. Originally derived from bacterial genomes, CRISPR technology has since been extended to apply to eukaryotes, which are multicellular organisms. Examples of eukaryotes include plants, animals, and humans. As one might imagine, the latest evolution in CRISPR technology is immensely lucrative. The technology could be used to prevent viral infections and chronic conditions in humans, as well as to genetically modify produce to carry more nutrients.  Both Broad Institute and CVC stood to lose a great deal in their hard-fought dispute about the CRISPR-Cas 9 patent.

The dispute between these parties was complicated by timelines, the change in US patent law, and the contradictory decisions of different jurisdictions across the world. Jennifer Doudna of UC Berkeley was the first to file a patent application in 2012, a few months before Feng Zhang and the Broad Institute filed their patent application. However, prior to 2013, the USPTO’s rules were different: the agency awarded patents to the entity that was the “first to invent,” rather than the entity that was “first to file.” 

Thus, when Doudna asked USPTO to declare an “interference” between the two patents in 2015, the office had to consider which group was the first to invent by “reducing the concept to practice.” CVC argued that Broad Institute’s patent for gene editing in eukaryotes was a mere extension of CVC’s seminal work on CRISPR-Cas9. In 2017, the Patent Trial and Appeal Board (PTAB) ruled that Broad Institute’s patents were not derived from CVC’s patents. In 2019, PTAB again declined to declare an interference regarding claims to CRISPR-Cas9 technology used in eukaryotes, and confirmed that the Broad Institute’s patents were properly issued.

Ultimately, Doudna’s patent application did not explicitly address CRISPR-Cas9 applications for eukaryotes, and Zhang’s patent application did. Thus, Zhang and the Broad Institute were determined to be the “first to invent” CRISPR-Cas9 gene editing for humans. This year’s USPTO decision represents potential losses of billions in licensing revenue for UC Berkeley and priority of invention for Broad Institute.

However, this turf war is far from over and recognition of the Broad Institute’s and CVC’s patents varies across jurisdictions. Currently, CVC maintains fundamental CRISPR-Cas9 patents in over 80 jurisdictions, including China, Japan, and the European Union. CVC and the Broad Institute also face challenges in other countries: South Korea’s ToolGen and Germany’s Sigma Aldrich still have open interference motions with the Broad Institute. From the looks of it, the international fight for CRISPR-Cas9 patent recognition won’t be over any time soon, even while the dust has seemingly settled in the United States.

Telemedicine to the Rescue? Mail Order Abortion in Times of Crisis

By: H.R. Fitzmorris

Since the time of the Comstock Act, reproductive healthcare seekers have turned to networks outside of the traditional doctor’s office to circumvent legal and social obstacles. Almost 60 years after the restriction of mail-order contraception was abandoned, Americans have once again—with the aid of the internet— found themselves relying on the post office to meet reproductive healthcare needs through telehealth. And once again, they face the familiar struggle of navigating complex webs of overlapping regulations and political hostility limiting their access to vital resources and information. However, the healthcare crisis spurred by the COVID-19 pandemic, and the resulting regulatory and legal changes, have helped abortion and reproductive healthcare seekers circumvent some of the most burdensome barriers to access. The question now is whether, together, technological advancement in online telehealth and the relaxation of state and federal regulations will be enough to address the “access crisis” that will ensue if the current onslaught of draconian abortion laws survives legal challenges.

The History of Telehealth and How It Works

The concept of telehealth has existed in some form or another for decades. Telehealth, according to the Mayo Clinic, “is the use of digital information and communication technologies, such as computers and mobile devices, to access health care services remotely and manage your health care.” Some clear advantages of telehealth are the ability to access care without the additional cost and burden of traveling to a doctor’s office, increased access to information and records, and increased speed of communication with healthcare providers.

There are, however, drawbacks. The regulatory system managing telehealth providers is fragmented between state and federal requirements, and insurance coverage of telehealth appointments varies according to location and provider. Licensure requirements currently depend on the location of the patient, so some specialist services or medical providers may not be licensed to provide care to patients in certain locations. Additionally, access to telehealth can be impeded by restrictive interpretations of existing state statutes and regulations. For example, state requirements that clinicians conduct an in-person physical exam of a patient before providing telehealth or issuing a prescription can dramatically impede the utility of telehealth for certain patients.

Currently telehealth makes up a small portion of the health industry as a whole. A study conducted from March 1, 2020 through November 30, 2021 revealed that the vast majority of Americans prefer in-person healthcare, “and the total addressable market for telehealth is less than 1% of the health economy.” However, the lessons learned throughout the COVID-19 pandemic may spur further expansion and increased interest in telehealth.

Covid-19 Changes

The COVID-19 pandemic upended the normal operation of innumerable day-to-day activities for most Americans. Once simple tasks became onerous, if not impossible. Notably, routine healthcare became extremely difficult to schedule when COVID exposure risks closed doctors’ offices, and the industry as a whole buckled under extreme demand. Faced with restricted access to in-person office visits due to lockdown orders and overwhelmed providers, patients turned to telemedicine just as quarantined workers turned to Zoom.

In order to facilitate patient access to healthcare, Congress introduced a myriad of temporary regulatory relaxations and measures such as increased Medicare and Medicaid coverage of telehealth services, HIPAA flexibility, and notably, allowed authorized providers to prescribe controlled substances via telehealth, without the need for an in-person medical evaluation.

This affected not just those with pulled muscles, allergic reactions, or people with other routine but time-sensitive ailments that a quick 15-minute chat with a doctor and a quick prescription would clear up. Those experiencing unwanted pregnancies, who faced the daunting prospect of delayed access to care in understandably time-sensitive situations, also were faced with lockdown and quarantine orders in the most abortion-friendly states. In hostile states, the harm of existing restrictive abortion regulations increased under COVID-19 (such as those requiring multiple in-person clinic visits like mandatory waiting periods and ultra-sound requirements). Additionally, some states that were hostile to abortion seized the opportunity to label abortion care as “non-essential,” thereby entirely restricting abortion access.

These restrictions made early access to safe, reliable, and self-administrable abortion care all the more vital. Medical abortion, which is achieved through the simple administration of a single or multi-dose pill, is available up to 10 weeks from conception. Prior to the COVID-19 pandemic, the reach of medical abortion through telemedicine was limited by “specific restrictions on mifepristone in the United States as well as laws that specifically prohibit telemedicine for abortion.” Specifically, the FDA required that either of the two abortion pills be dispensed in a medical clinic, in-person.

However, with the relaxation of the restrictions placed on telemedicine providers that came with the governmental response to COVID, the FDA relaxed the in-person requirement and allowed abortion pills to be obtained by mail, eliminating the need for a doctor visit and the resulting delay in access. Initially this relaxation was temporary, but in December, 2021, the FDA announced that the change will be permanent. Though a welcome reduction in barriers to safe and effective abortion access, states are still free to place their own restrictions on telemedicine providers that offer their services in their jurisdictions. Currently, 19 states prohibit telemedicine facilitated abortions.

Without these barriers, telemedicine can potentially increase abortion access to abortion seekers in underserved, isolated communities. Telemedicine was, in a limited way, able to address severe need in a crisis that strongly necessitated these services. For abortion seekers in the United States, the crisis is far from over. Current restrictive state statutes and attempts to overturn Roe v. Wade continually threaten access to the constitutional right to choose to terminate a pregnancy. In many states, local access to abortion care could disappear entirely in the coming years. What remains unclear is whether further expansion of access to telemedicine will be able to help fill these gaps and what policy changes will be necessary in order to do so. 

“Adpocalypse”

By: Carl Rustad

Youtube Hate Preachers Share Screen With Household Names.” “Google’s Youtube has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos.” These are the headlines Google faced in March 2017, as ads for Google’s advertising partners allegedly appeared alongside hateful or inappropriate Youtube videos. Within days, high-profile advertisers including Wal-mart, Pepsico, General Motors, AT&T, Dish, and Starbucks all pulled their ads from the platform

Google responded to these allegations by “implementing broader demonetization policies around videos that are perceived to be hateful or inflammatory” and “strengthen[ing] advertiser controls for video and display ads.” Using algorithms, Youtube “automatically weed[s] out inappropriate content,” sorting each uploaded video into categories purportedly reflecting their desirability to advertisers. Advertisers can exclude videos from categories like “tragedy and conflict,” “sensitive social issues,” “sexually suggestive content,” “sensational and shocking,” and “profanity and rough language.” Clearly these options reach far more content than the originally-complained-of hate speech. Videos determined inappropriate for advertisers are “demonetized,” meaning ads will not appear on them, they are deprioritized in search, and content creators will not receive any ad revenue from the video. The resulting drop in ad revenue is referred to as “Adpocalypse.”

As a result of these efforts, Youtube claimed “many advertisers have resumed their media campaigns on Youtube,” but also acknowledged that content creators faced “revenue fluctuations” due to demonetization and promised to provide “more detail around advertiser-friendly guidelines.”  Meanwhile, some content creators on the platform claimed to see an initial 80 percent drop in ad revenue due to demonetization, leveling off to a “40, 50, 60 percent drop” as videos were deemed not suitable for all advertisers. Prominent vlogger Vlogbrothers opined “[demonetization] has really squeezed creators who are making content that’s maybe good, but not, like, super-happy-family-fun-time stuff.”

Private Platforms Provide Strong Extralegal IP Protections

Adpocalypse demonstrates both the interest and the power that companies have in protecting their brands on private platforms. Brands are already entitled to certain legal protections. A trademark holder is protected against damaging associations in several scenarios, including when unauthorized use of their trademark causes confusion as to the source or sponsorship of a product, or tarnishes the brand by association with “unsavory” ideas. See AMF, Inc. v. Sleekcraft Boats; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. On the other hand, there is no trademark infringement when the trademark is being used to describe a product or talk about a competitor’s product. See KP Permanent Make-Up Inc. v. Lasting Impression I, Inc. These are considered “fair uses” of a trademark.

But the companies on Youtube, of course, do not have to point to their carefully balanced intellectual property rights in order to control their representation on the platform. They can simply refuse to advertise on a platform if it tends to associate their brand with any less-than-ideal content. This is not a new phenomenon. Media has long catered to advertisers, with media scholar C. Edwin Baker claiming “the greatest threat of censorship in this country comes not from the government, but from advertisers . . . .” As online platforms mediate a steadily increasing amount of our time, advertiser censorship may become correspondingly more pervasive and omnipresent. With algorithmic and computing advances, such censorship can be systematically extended to hosted individual speech as seen in Adpocalypse.  

Real Time Content Moderation: The Future of Advertising? 

Adpocalypse concerned advertisers’ association with undesirable uploaded videos, which are scanned for content and demonetized and search deprioritized if they are deemed unsuitable for advertisers. This hawkish breed of moderation is enabled by advances in automated decision making. Over 500 hours of content are uploaded to Youtube every minute; each video must be scanned and categorized as safe or unsafe for advertisers. 

Platforms are now facing pressure to provide real time moderation to prevent violations of their terms of service by censoring disinformation, incitations of violence, and other abuses. Facebook Horizons already includes real time moderation features  allowing it to instantly deplatform or censor abusive–as determined by Facebook alone–virtual reality users. The advantages of such a system are obvious. Hate speech, harassment, and other universally-condemned behavior can be taken offline before it happens. Unfortunately, the concerns real time moderation raises are just as obvious. 

Platforms will continue to compete for ad revenue. As Adpocalypse demonstrates, online platforms are not simply censoring hate speech; they are beginning to censor anything not “advertiser-friendly”. Allowing fine control over the spaces in which advertisers’ products appear, not just how their ads appear, is a profitable course of action. One easily foreseeable use of real time moderation is to limit the visibility of advertiser-unfriendly speech in VR chat. But there is no reason to believe the technology will be confined to such transparent and simplistic uses. Facebook already sells sophisticated and hyper-targeted ads. Plus, US advertisers are willing to pay about $250 billion a year to control what consumers associate with their products. The market is there.

Given the impending capability and incentives for online platforms to moderate speech and the environment of speech in real time, it is time to take a hard look at the role of advertisers in platform censorship. While the First Amendment does not apply to private platforms, consumers should demand transparency from platforms about how speech is moderated and hold them accountable when moderation technology is abused to accommodate advertisers.