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Identity Theft in the New Information Age

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By: HR Fitzmorris

The Supreme Court recently granted the petition for a writ of certiorari in Dubin v. United States, agreeing to review the Fifth Circuit’s decision to uphold the conviction of Dubin for aggravated identity theft under 18 U.S.C. 1028A(a)(1).

Though seemingly mundane when compared with the Court’s recent blockbuster docket, this case raises interesting questions about what it means to commit identity theft in today’s technological landscape, and how prosecutors are adapting antiquated statutes to a new technological reality.

David Durbin was charged with health care fraud after he improperly billed Medicaid for patient care provided at the youth health facility where he worked. He had inflated the price of service and falsified the date to fit within the one-year limit for reimbursement.  Even though the fraud only netted the shelter $92, federal prosecutors tacked on an aggravated identity theft charge which carries a mandatory 24-month prison sentence. The aggravated identity theft statute makes it a federal crime, “during and in relation to a” predicate felony, to knowingly transfer, possess, or “use[], without lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Prosecutors reasoned that because Durbin used the patient’s name on the fraudulent form—even though Durbin was not impersonating the patient nor making misrepresentations about his identity—he had violated § 1028A(a)(1).

The district court convicted Durbin, despite the seemingly draconian punishment.  On announcing the verdict, the district court judge stated that he “hope[d]” that the conviction would “get reversed.” However, the en banc U.S. Court of Appeals for the Fifth Circuit affirmed. 

Prior to 1998, identity theft crimes were charged under “false personation” statutes, which go back to the late 19th century. False personation is “the crime of falsely assuming the identity of another to gain a benefit or avoid an expense.” Concern over the increasing ease of obtaining others’ identifying information for nefarious purposes skyrocketed as thieves went digital. Congress passed the Identity Theft and Assumption Deterrence Act in 1998, during the fledgling years of the world wide web. In his statement on signing the bill, President Clinton noted that “[a]s we enter the Information Age, it is critical that our newest technologies support our oldest values.” In 2004, Congress added the Identity Theft Penalty Enhancement, which established penalties for “aggravated” identity theft. Aggravated identity theft was defined as using the identity of another person to commit felony crimes, including immigration violations, theft of another’s Social Security benefits, and acts of domestic terrorism. 

Cases such as Durbin’s are raising questions about the potential reach of these statutes. Broad statutory language offers flexibility in a sector that is known for its quick innovations and ever-changing nature, which can be advantageous to prosecutors looking to curb cybercrime.  But, as the dissenting Fifth Circuit judges noted, the majority’s reading necessarily implicates “not only [] most every commission of healthcare fraud, but would also sweep in tax preparers, immigration attorneys, and anyone else convicted of submitting any form on someone’s behalf that contains a misrepresentation unrelated to the person’s identity.” This creates the risk of criminal liability for those submitting prepared forms on behalf of clients that contain misrepresentations that may have come from the client directly or from a mistake.

Chief Judge Priscilla Owen supported the majority reading of the statute, stating that the statute does not say anything about identity theft, but rather imposes an enhancement for certain felonies on anyone who “knowingly … uses, without lawful authority, a means of identification of another person.”

How the Supreme Court answers the question of “whether simply reciting another person’s name in the course of committing Medicaid fraud constitutes aggravated identity theft, or whether that person’s name has to play a ‘key role in the fraudulent activity’” may affect how identity theft is prosecuted in the future.

“Mob” Mentality: The Push for Unionization of Anime Voice Actors

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By: Nicholas Neathamer

Whether you’re just hearing about it or are already a raving fan, the popularity of anime continues to skyrocket. Anime is a style of Japanese film and television animation that has garnered worldwide fans for decades, but the emergence of streaming platforms and their willingness to embrace the medium has given rise to booming demand for anime content in recent years. The market size of the anime industry has steadily risen over time and is expected to generate revenue of over $47 billion by 2028. Despite the overwhelming success of the industry, one often overlooked factor of an anime’s popularity is its cast of voice actors, who bring animated characters to life through dialogue. Existing in further obscurity are the voice actors who “dub” shows and movies, providing voiceover work in various languages to attract viewers around the world. These ‘dubbing’ voice actors often provide services for streaming platforms such as Netflix, Hulu, and anime-exclusive platform Crunchyroll. One of Crunchyroll’s most popular shows is currently Mob Psycho 100, and the platform recently began airing the anime’s third and final season. 

Despite Mob Psycho 100’s popularity, one of the most incendiary issues in the anime world recently has been Crunchyroll’s recasting of the show’s English voice for the protagonist. Kyle McCarley, the original English dubbing voice actor for the titular Shigeo “Mob” Kageyama, was informed by Crunchyroll that he would not be returning as the English voice of Mob. According to McCarley, the fallout was due to the actor’s request that after this final season of Mob Psycho 100, Crunchyroll would meet with union representatives to negotiate a potential contract for future productions. McCarley is part of the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), an American labor union representing actors, voiceover artists, journalists, singers, radio personalities, and other media professionals. Crunchyroll currently chooses to not work with any SAG-AFTRA contracts, and McCarley’s proposal for a future union contract was allegedly enough for the streaming platform to look for a new lead voice for Mob Psycho 100. 

It’s no mystery as to why a company like Crunchyroll wouldn’t want to work with unionized voice actors. Unions like SAG-AFTRA are often able to secure more favorable terms for union members through the use of collective bargaining and standard contracts, such as SAG-AFTRA’s Dubbing Agreement. Entering into union contracts would bind Crunchyroll to pay voice actors at scheduled minimum payment rates, contribute to pension and health plans, and follow additional rules set forth by the union. Unionized labor forces are also able to more effectively go on strike against employers to push for higher compensation or new terms to their contracts. In particular, SAG-AFTRA voice actors went on strike against large video game publishers in 2016, arguing for residuals, transparency in roles, higher safety precautions, and better safety assurances for actors while on set. Rather than submit itself to such terms and the increased possibility of a strike, Crunchyroll has eschewed even the possibility of utilizing SAG-AFTRA talent. Instead, Crunchyroll hired non-union Ernesto Jason Liebrecht to voice the character of Mob.  

Some fans of Mob Psycho 100 have wondered whether McCarley can seek legal recourse after the recasting, including whether McCarley may have copyright protections over his portrayal of Mob. However, this is almost certainly not the case. In Garcia v. Google, Inc., a case from 2015, the United States Court of Appeals for the Ninth Circuit examined whether an individual actor or actress may claim copyright in his or her performance in a motion picture. The court looked to the Copyright Act, which states that “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression…[including] motion pictures.” 17 U.S.C. § 102(a). The Act also states that such a fixation must be done “by or under the authority of the author.” 17 U.S.C. § 101. The court ultimately agreed with the Copyright Office, who explained that its “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture” and that for copyright registration purposes, “a motion picture is a single integrated work” and an acting performance cannot be registered apart from the motion picture. Therefore, McCarley, also solely an actor, would not be able to claim copyright over his role.

Another question posed is whether Liebrecht’s portrayal of Mob violates McCarley’s rights under California’s statutory scheme or common law (as the company operates primarily out of that state), including whether Liebrecht is able to imitate McCarley’s voice for Mob. California Civil Code section 3344 provides that anyone who knowingly and without prior consent uses another’s voice or likeness in any manner, on or in products or goods, shall be liable for any damages sustained by those injured. However, this statute only explicitly covers the actual voice and not vocal sound-alikes. Meanwhile, under California’s common law, imitating another person’s voice can violate that person’s right of publicity, as seen in the decision of the United States Court of Appeals for the Ninth Circuit in Midler v. Ford Motor Co. In that case, the court alluded to protections against imitations of a performer’s voice. The court held that “when a distinctive voice of a professional singer is widely known and deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs” and have therefore committed a tort under California law. That said, such a narrow holding is unlikely to be applied to a performer such as McCarley, whose voice is not nearly as “widely known.” There also remains the issue that many may claim Liebrecht’s performance, while similar, is not an imitation of McCarley’s portrayal of Mob. 

While McCarley likely has no options to pursue legal recourse against Crunchyroll in this situation, there remains a silver lining for those who wish to see their favorite English dub actors be able to unionize more effectively. In 2019, Netflix reached out to SAG-AFTRA to negotiate a direct union agreement, leading to a 2019 agreement that included a Netflix-specific Dubbing Agreement. And on August 31, 2022, SAG-AFTRA members voted to ratify the successor contract, the 2022 SAG-AFTRA Netflix Agreement. This has further solidified the relationship between the streaming platform and union for dubbing contracts going forward, and has bolstered voice actors who work on dubs to continue a push for unionization. Looking down the road, the goodwill acquired by Netflix and push towards increased unionization may lead to a lack of dubbing talent—and a need to change policies—at Crunchyroll. 


Why we should pay attention to standard essential patents

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By: Han Xue

Standard essential patents, or “SEPs,” are patents that protect technology essential to an industry’s standard use. The name is self-descriptive, in that such patents set the standard that an industry must use in order to innovate effectively. One example of this is WiFi. So long as a router is available, it doesn’t matter what phone or computer one has, because, generally speaking, any phone or computer, regardless of brand, will be able to connect to it. So, the ability to connect to WiFi is an industry-standard, and WiFi itself falls under the umbrella of standard essential patents. Other examples include USBs and JPEG, as well as LTE and 5G technology for phones. These industry-specific standard-setting organizations (SSOs), or standard development organizations (SDOs), composed of industry leaders determine which patents are essential for the entire industry’s success, and thus, qualify to be SEPs. Once recognized, an SEP can then be licensed to entities in the relevant industry.

The ubiquity of SEPs and the roles they play in many of the technologies in common use today make them immensely valuable. The ability to monetize them through licensing can serve as a strong incentive for research and development in many industries, especially those involved in complex technologies that require significant investment to develop, and the mirroring loss of financial compensation that occurs when an SEP is infringed upon gives companies good reason to maintain a tight grip over the ownership of their SEPs. Furthermore, the development and spread of the standards that such patents protect can enable smaller businesses to more easily access the market, creating competitive conditions that drive down prices for consumers and incentivize innovation.

Given the above, it’s unsurprising that a 2021 announcement by the Antitrust Division of the Department of Justice (DOJ), the U.S. Patent and Trademark Office (USPTO), and the National Institute of Standards and Technology (NIST) regarding a draft policy statement on the 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments drew some attention. The original 2019 policy statement, among other things, examined remedies for infringement of SEPs subject to certain licensing agreements, and the draft, which contained language limiting the use of injunctions in the enforcement of SEPs drew strong scrutiny from those in the intellectual property (IP) field.

One negative reaction to the anti-injunction portion of the draft policy was provided by the Center for Strategic & International Studies (CSIS), which published an article decrying the policy as one that would effectively reduce the value of SEPs, discourage innovation, and undermine the reliability of the intellectual property system in the United States. Specifically, the CSIS focused on the concern that, without the threat of injunctions, infringers would face fewer risks by refusing certain fair licensing agreements and gain terms skewed in their favor. This would, among other things, harm SEP owners acting in good faith, ultimately leading to a decrease in SEP value and a subsequent decrease in competition at the standard-setting level. Another article was published by IPWatchdog, which criticized its language and unsupported statements. In the end, after receiving substantial criticism, the draft policy statement revealed in 2021 was not implemented.

More recently, policy related to SEPs has continued to evolve. This last summer, the DOJ, USPTO, and NIST announced a complete withdrawal from the 2019 policy statement, with the stated goal of creating “incentives to generate more innovation.” The three agencies also noted concerns about anti-competitive actions surrounding the implementation of SEPs, and explicitly claimed that this move would “strengthen the ability of U.S. companies to engage and influence international standards that are essential to our nation’s technological leadership.” More specifically, this withdrawal signals the DOJ’s attempt to use a case-by-case approach when analyzing opportunistic behavior that may lead to anticompetitive behavior in the context of certain licenses for SEPs. This move has been met with less disdain than the 2021 draft policy statement. Save Our Standards, a group centered around certain patent licensing commitments, applauded it as a step towards a fair and transparent licensing system for SEPs. Others have adopted more of a wait-and-see approach, watching for further guidance from the DOJ and pending litigation.

Right now, the stakes for the implementation of such policies are higher than ever. In 2021, the United States ranked 3rd on the Global Innovation Index (GII). However, over the last decade or so, and in the last few years, in particular, there has been a growing media focus on the perception of a blanket decrease in American innovation, and a corresponding decrease in American competitiveness in the global context. This has contributed to a flood of publications centered around current policy and America’s decline in innovation, especially in areas related to technological innovation. Given the state of intra- and international competition in technological fields, as well as increasing international tensions over technological supremacy, it is more important than ever to keep a close eye on legal developments that influence innovation, such as policy decisions affecting the protection of SEPs.

Fair Use at the U.S. Supreme Court? The Andy Warhol Case

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The Supreme Court Building on 1 First Street, NE. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

By: Lauren Liu

In our modern society where information is exchanged at lightspeed and entertainment choices are abundant, copyright infringement has become a more widespread issue than ever. The 1976 Copyright Act harmonized copyright law with free-expression principles, and for the first time, incorporated the concept of “fair use.” If the use of a copyrighted work is “fair use,” then it does not infringe on the original author’s copyright. However, the Fair Use Doctrine, and even copyright as a whole, can seem very conflicting in terms of its purposes. On one hand, copyright offers exclusive rights to copyright owners to protect their work and profitability. On the other hand, the exception of fair use allows others to use and alter the original work without permission from the copyright owner. In 2022, the case alleging the Andy Warhol Foundation of copyright infringement was the center of copyright law. The case raises questions surrounding copyright law and the Fair Use Doctrine. How are we supposed to define the line between fair use and copyright infringement? How can we protect copyright without jeopardizing freedom of expression?

The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” 17 U.S.C.A. § 107. To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The case of Andy Warhol Foundation for the Visual Arts, INC., v. Lynn Goldsmith involves the commercial licensing of a silkscreen image that Andy Warhol had created based on respondent Lynn Goldsmith’s copyrighted photograph. The Supreme Court of the United States recently granted this case certiorari. The question mainly focuses on the first element of fair use, and examines whether or not the petitioner, Andy Warhol Foundation (the Foundation), has established that its licensing of the silkscreen image was a “transformative” use, and that this factor should weigh in its favor. The Court will likely look closely at whether or not the transformative use can be established simply by showing that the image conveys a meaning or message different from that of respondent’s original photograph.

The Appellate Court’s decision focused on the first and most important statutory factor: the purpose and character of the use. The purpose of this factor is to distinguish the original creator’s use and the second author’s use of the original work. Although some copying of the original will often be necessary or at least useful in making the second author’s expression clearer and more effective, the second author has to demonstrate that the second work is unlikely to supersede the original. In this case, the Supreme Court will possibly find that the Foundation’s allegedly infringing use served the same purpose—depicting Prince in an article published by a popular magazine—for which Goldsmith’s photographs have frequently been used. Furthermore, although the Foundation argued that the Prince Series was intended for communicating a message about celebrity, the Foundation has not attempted to establish that it needed to reproduce the creative elements of the Goldsmith Photograph in order to communicate that message. The Supreme Court might find that when examining this factor and all other factors, the Foundation’s use of the original work does not meet the requirements for “fair use”, and will likely rule in favor of Goldsmith.

As the legal and artistic worlds wait for a final judgment from the Supreme Court, it is worth noting that the Appellate Court’s ruling and many other “fair use” cases have already created a balance between protecting copyrighted works and allowing other creative expressions. As one of the most popular and well-regarded modern artists, Andy Warhol’s works not only bring aesthetic values to the art world, but also inspire so much creativity. However, it is obvious that many of his works contain elements drawn from public figures and other existing works. Thus, his works can become quite controversial in terms of copyright law. More broadly speaking, in the artistic world, permitting secondary users to copy protected works to a certain degree will facilitate new and creative artistic expressions. However, when such copying becomes unnecessary for the secondary user’s work, the use risks jeopardizing the original author’s rights over the original art. Such unnecessary copying also risks diminishing artists’ incentive to create future original works. Although the fair use of copyrighted works has to be determined on a case-by-case basis, the doctrine helps avoid extreme exclusions or permissions in copyright infringement cases. Creative endeavors should not be deterred by a system that categorically precludes all unauthorized uses of copyrighted works, nor should they be protected by allowing indiscriminate copying.

Why Biden’s Crypto Directive is Misguided

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By: Chi Kim

During his second term, President Biden has taken a more proactive stance on crypto by asking the Federal Reserve to explore digital currency options and even announced a general gameplan around around digital assets. However, not all initiatives were as open minded. In July 2022, the United States Office of Government Ethics issued a directive that all U.S. officials holding cryptocurrencies and stablecoins directly as personal investments will be disqualified from working on any regulation that could influence the value of their digital assets. Although well-intentioned, this directive is an oversimplified policy to mask the appearance of conflicts of interest that will stifle meaningful regulation of the crypto-industry. The policymakers for crypto should actually understand the space and its nuances to ensure that it can develop without obstacles. This directive is short-sighted because if rulemakers do not hold and engage with a modest amount of crypto, then they will not have the sufficient knowledge and experience to effectively rulemake.

The crypto industry is not composed of regular securities and should not be treated as such by regulators. The crypto-industry is a fluid environment with new products emerging from decentralized finance (defi) that will require regulators to be just as flexible. When crypto developers create new projects, they often do not start from scratch and use a base layer cryptocurrency from commonly used platforms like Ethereum, Polkadot, or Solana to start building. For the layperson, I would analogize this to real estate, where developers continue to build their projects based off of the technology of the underlying platform and smart contracts to bring more complex financial products from these base layers. Beyond complex layering structures, there are utility coins that have functionality built around the coin’s use like for file storage or for renting computer power. Most notably, Non-Fungible Tokens (NFTs) have exploded in popularity and have come to resemble a market much like art more than any type of financial product. These products cannot be blanketly dismissed as securities. 

Federal officials unfamiliar with cryptocurrency will be greatly disadvantaged without the ability to learn as a retail user. As a relatively new industry, crypto does not have traditional paths or longstanding resources to become knowledgeable. The crypto industry does not have a universal organization that has certification courses like the FINRA’s Securities Industry Essentials Exam or Series 7. Most crypto experts became knowledgeable from working in industry or simply by being a customer. Government officials should be afforded the same opportunity to learn by becoming end users. From this perspective, government officials can also create better policies that actually serve retail users and the ecosystem. 

Lastly, there is a great incongruence of standards between the average federal employee and Congressional members. Last year, Senator Kelly Loeffler and Senator David Perdue may have profited in the ballpark of tens of millions of dollars from selling securities with non-public information. During the 2021 term, Congress even beat the market trading nearly $290 million in securities through the year. If a stricter standard needs to be set, it does not have to be here, but rather to individuals that regularly benefit from non-public information. The Biden Administration has an opportunity here to create a more comprehensive policy that can be replicated rather than implementing a crude blunt ban.

The Biden Administration should temper its strict restrictions to conform to the different nuances within the cryptocurrency ecosystem by allowing certain kinds of utility coins to be held. Government employees can also be supported with a robust policy that consists of holding limits, disclosure requirements, and restricted trading periods. Holding limits will cap the amount of crypto held by policymaking employees to give flexibility around holding small amounts, especially for educational purposes. Disclosure requirements can help create transparency around financial gains by the employee to their respective agencies. Restricted trading periods create safeguard periods for employees following significant events to maintain trust around non-public information. These efforts create a more robust policy with flexibility for small holdings rather than create a superficial blanket against conflict of interests.