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The Strippers’ Bill of Rights: a Revolution in Adult Entertainment

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By: Karina Paup Byrnes

On March 24, 2024, Washington’s State Governor, Jay Inslee, signed into law the “Strippers’ Bill of Rights” (SB 6105/ HB 2036), which provides adult dancers with increased safety protections in the workplace. Adult entertainers employed at strip clubs across Washington state are now legally entitled to safeguards such as keypad entrances to dressing rooms, panic buttons in private room where employees are alone with customers, mandatory sexual harassment training for all employees, and security guard staffing on site. However, this bill represents more than just a win for workers’ safety and financial security. The legislation importantly recognizes that adult entertainers should be afforded the same rights and protections as any other employee, allowing dancers to more freely and safely participate in the creative expression of their profession.

Strippers Are Workers

The Strippers’ Bill of Rights movement was spearheaded by the dancer-led organization known as Strippers are Workers (“SAW”). SAW “fights to empower the dancers of Washington state so that they can strip safely, positively, and lucratively.” Established in 2018, the organization has been a leader in calling for greater regulation of the adult entertainer industry in Washington. SAW has successfully advocated for reductions in industry practices that are harmful to dancers. Its work has enabled dancers to gain protective measures that are both essential for maintaining a safe work environment and crucial for reducing stigmas and other barriers that adult entertainers face.

The SAW’s work has enabled more financial freedom for dancers, seen best in one critical aspect of the Strippers’ Bill of Rights. Currently, dancers must pay a set club fee for every shift they work, whether or not they make money during the shift. Thus, unpaid fees carry over from previous shifts. After its passage, the bill caps these fees at $150 or 30% of the total amount the employee earned during their shift, whichever is less. Additionally, the legislation bars clubs from carrying over unpaid fees. Impeding clubs from imposing predatory financial constraints over their employees will lessen dancers’ burdens to work with potentially hazardous clients and give them greater financial independence.

Increased Revenue, Safety, and Freedom

A key component of the legislation involved repealing the prohibition of alcohol sales in strip clubs. Prior to the bill’s passage, Washington was the only state that imposed an absolute ban on alcohol sales in strip clubs. This restriction limited the revenue of dancers and clubs and put pressure on dancers to engage with guests, even when such guests arrived at the club highly intoxicated or were known to be violent. The purpose behind allowing strip clubs to apply for alcohol licenses is to prevent abuse of dancers and to enable greater financial mobility for employers and employees. Additionally, with the increased revenue generated through alcohol sales, clubs should be able to afford the safety protections as required by the Act.

The Strippers’ Bill of Rights signals that mandated safety measures in strip clubs are long overdue. Proponents of the legislation are celebrating the reform of adult entertainer establishments not just for the increased physical safety and potential positive financial effects, but also for the validation of dancers as employees who deserve respect and autonomy in the workplace. These protective measures empower dancers and enable them to retain the self-expression that is an important element of their work.On a larger scale, the bill also demonstrates the growing movement towards the decriminalization of sex work. SAW’s campaign manager stated that “there needs to be more of a national push for a more radical and revolutionary way of establishing labor rights, because, you know, it is 2024 and it’s time to do things differently.” As the Washington State Department of Labor and Industries starts drafting and implementing the new rules and guidelines for adult entertainment clubs over the next year, many will be looking at how the work environment for dancers will begin to change for the better. Protecting the rights and interests of dancers participating in sex work has garnered more attention by lawmakers, and advocates hope that other states will follow in Washington’s steps.

Emulation or Piracy for Profit? Nintendo Says No.

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By: Kevin Vu

Nintendo, the developer of various beloved video games and consoles, was recently in the news for its lawsuit against, and subsequent settlement with, Tropic Haze, the developers of the Nintendo Switch emulator “Yuzu.” In the initial complaint, Nintendo alleged that “[w]ith Yuzu in hand, nothing stops a user from obtaining and playing unlawful copies of virtually any game made for the Nintendo Switch, all without paying a dime to Nintendo or any of the hundreds of other game developers and publishers making and selling games for the Nintendo Switch. In effect, Yuzu turns general computing devices into tools for massive intellectual property infringement of Nintendo and others’ copyrighted works.” In essence, Nintendo alleged that Tropic Haze “facilitate[d] piracy at a colossal scale.”

Nintendo’s battles against piracy are nothing new. The company has a storied history of filing lawsuits against various forms of piracy – including individuals who sold Nintendo Switch-hacking devices and international cases against Nintendo game copy-holding websites. But some commentators argue that emulation is not piracy – which might explain why Nintendo has yet not filed similar lawsuits against other emulators like “Dolphin” (which emulates the Nintendo Wii). 

Emulation or Piracy?

Emulation, as commonly referred to in this context, means a computer program that “imitates a video game console.” At first blush, it is easy to see why such programs would be an issue for first-party developers like Nintendo. Emulation programs might disincentivize consumers from buying the latest video game console to play their video games for example.  The historic answer to criticisms like that is that emulation falls under fair use. 

For example, in Sony Computer Entertainment v. Connectix Corp., 203 F.3d 596, 609 (9th Cir. 2000), the Ninth Circuit determined that an emulator for Sony’s PlayStation did not infringe on Sony’s copyright because that emulator fell under fair use. Courts typically consider four factors for determining whether fair use applies: (1) the purpose and character of the use, (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 value of the copyrighted work. 17 U.S.C. § 107. Under the Ninth Circuit’s precedence at the time, fair use preserved the public’s access to elements in copyrighted computer codes. Sony Comput. Ent., 203 F.3d at 603. The court determined that the second factor weighed in favor of fair use because Sony’s program was not publicly available such that the defendant’s process of reverse engineering Sony’s program was necessary to replicate the program. Id. at 603-04. As to the first and fourth factors, the court concluded that the defendant’s emulation program was transformative because it “afford[ed] opportunities for game play in new environments” such that “the [emulator was] a legitimate competitor in the market for platforms on which Sony and Sony-licensed games [could] be played.” Id. at 606-07. Accordingly, the court concluded that the emulation of Sony’s PlayStation was protected under fair use. Id. at 609.

That reverse engineering approach was codified by the Digital Millennium Copyright Act (DMCA) as 17 U.S.C. § 1201(f), which generally allows for reverse engineering of a computer program “for the sole purpose of . . . achiev[ing] interoperability of an independently created program[.]” 

In contrast, piracy is understood as “[t]he illegal reproduction and distribution of copyrighted material on the Web.” That definition is distinguishable from the situation in the Sony Computer Entertainment case because there, the emulator was essentially a reverse engineered PlayStation that did not wholly copy Sony’s program. But, as some proponents have argued, emulation naturally leads to piracy because emulators do not have anti-piracy safeguards. The idea behind this is that a video game console, like the Nintendo Switch, will have safeguards that disallow someone from using a pirated copy of a game, but emulators do not have that same protection. Because emulators can run on pirated games, the argument is that emulators support piracy by doing so, resulting in lost profits for the developers of both games and consoles. In contrast, however, some argue that emulation is necessary to preserve the history of video games, along with letting people enjoy games or video game systems that are no longer produced or supported.

Why Yuzu was Targeted.

Many individuals have theorized that Yuzu was targeted because the program emulated a current-generation console in the Nintendo Switch, as opposed to other emulators which are focused on older consoles that are no longer supported. Others have pointed out that Nintendo’s original complaint did not explicitly argue that the Yuzu emulator was illegal, but rather because Yuzu’s developers showed how to break into Nintendo’s game files or even a Nintendo Switch. Additionally, the complaint also noted that Yuzu had a Patreon page (a website that allows people to support creators by donating on a monthly subscription basis) that provided subscribers with early access and unreleased features to the public – in short, that Tropic Haze was profiting from Yuzu. 

Whatever the reason, Nintendo’s actions have already had wide effects on other emulators. For example, Tropic Haze was also developing “Citra,” a 3DS emulator, but under their settlement agreement with Nintendo, Citra has also been discontinued. Another Nintendo console emulator, “DraStic” (for the Nintendo DS), used to be a paid app on Google Play but has since been free to download. 

All of this is a signal that Nintendo, and perhaps other companies, may seek to be more litigious with emulators. Although the DMCA and case law may allow certain forms of emulation, clearly Nintendo is looking at other strategies to fight emulators. For example, when the Dolphin emulator was seeking to be added to the Steam storefront, Nintendo told Steam that Dolphin did not comply with the DMCA because Dolphin used Nintendo’s encryption keys. Dolphin disputed that determination, but Steam refused to allow Dolphin on its storefront until Dolphin and Nintendo could reach an agreement. Currently, Dolphin is still available on the Internet for download and use. Whatever the case, individuals and emulators should be wary about Nintendo’s – and other video game company’s – recent efforts in combating emulation and privacy.

Is Trade Secret Law the New Patent Law?

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Exploring Alternate Avenues to Patent Protection of AI-Designed Pharmaceuticals

By: Anushka Parihar

Artificial intelligence (AI) continues to revolutionize industries worldwide. A rapidly evolving application of AI is now emerging in the pharmaceutical industry, resulting in AI-designed pharmaceuticals. 

Many businesses use AI and machine learning algorithms as a tool to sift through large databases of data to identify potential drug targets and design molecules that interact with those targets. AI is also utilized to promote the efficiency of clinical trials by predicting the efficacy of untested drugs. Consequently, AI is an essential tool in creating therapeutics for a wide range of human conditions.

The emergence of AI as a key tool for drug discovery sparks questions about how to afford intellectual property protections to AI-designed drugs. 

Patentability of AI-Designed Pharmaceuticals

Patent law has traditionally been the main source of IP protection in the pharmaceutical industry. Patent protection is important to sustained progress in this field, where competition and profit is key. The research and development process for creating drugs is lengthy, complex, and expensive. Without the 20-year monopoly afforded by patent protection, pharmaceutical companies may not have the ability to fund their research, thereby losing the economic incentive that drives drug innovation.

The United State Patent and Trademark Office (USPTO) released guidelines for AI patentability in February 2024. These guidelines largely follow the Federal Circuit’s holding in Thaler v. Vidal that only natural persons can be inventors, and therefore, AI cannot be named as an inventor in a patent application. Although this does not preclude AI-assisted inventions from patentability, it does pose a significant barrier in cases where a human did not provide a significant contribution to the invention. Courts are directed to evaluate the significance of human contribution on an individual basis but simply owning or overseeing AI is not enough to contribute to the invention. 

Even though some actors may still be able to assert that their AI-designed pharmaceuticals are patentable, the lack of case law makes it difficult to predict how the USPTO and the courts will rule on issues regarding patent protection of AI-designed drugs. Due to the recent implementation of the patent guidelines, it may take three to five years to get concrete insight into what constitutes significant human involvement in AI-assisted inventions. 

This leaves a large problem for companies and inventors who depend on patent protection to recoup their sizable investments into drug discovery. As such, alternate intellectual property protections must be considered.

Trade Secret Law as a Possible Solution 

The Defend Trade Secrets Act defines a trade secret as information that derives independent economic value from not being generally known or readily ascertainable. Trade secrets are protected under both federal and state law and are enforced domestically and globally. There is no formal registration or validation process. Most importantly, there are currently no requirements for human creators and inventors in trade secret law. 

These characteristics make trade secret protection an excellent avenue for protecting AI-designed drugs. Since information generated by AI is not generally known or readily ascertainable, it is novel information gathered by the AI tool using set inputs. In fact, AI’s capacity to find patterns and create formulas that are not easily understandable to people underscores its immense potential in the pharmaceutical sector. 

To be a valid trade secret, the creator must have taken reasonable measures to keep sensitive information confidential. As long as businesses and collaborators are protecting the various inputs, outputs, and algorithms used by AI tools, they should be able to claim trade secret protection. Trade secret law also provides for remedies in the event of misappropriation, which occurs when a trade secret is acquired by improper means or disclosed without consent. 

Of course, no solution comes without its own issues. Replacing patent protection with trade secret protection isn’t a complete answer. Trade secret law does not afford protection when information is acquired through reverse engineering, independent development, or instances where the trade secret becomes general industry knowledge. Due to this restriction, companies may be unable to claim trade secret misappropriation when others decipher and subsequently replicate AI-assisted processes that led to the creation of a novel drug. 

Additionally, pharmaceutical companies often rely on their patent portfolios to build credibility and attract ongoing investments. These portfolios are considered intangible assets and can increase a company’s valuation in the market. While trade secrets absolutely contribute to a company’s intellectual property portfolio, they tend to be considered invisible components, as any disclosure outside of permissible limits is considered misappropriation and leads to the loss of a trade secret. In contrast, patent portfolios, which include patents that are necessarily published and fully disclosed, are easily valued and understood. As a result, trade secret law may not be a good replacement to patent law in terms of building a portfolio to further a company’s financial goals. This consequence is of particular concern due to the significant investment in research and development that is vital to the pharmaceutical industry. 

While replacing patents with trade secrets may not be the most viable long-term solution, it seems to be one of the only ways for businesses to gain intellectual property protections for AI-assisted inventions. In light of the new AI-related patentability requirements which may preclude patent protection, drug companies may want to start turning to trade secret law to protect their novel pharmaceuticals. 

Shelving the dream of an online library? Hachette v. Internet Archive goes to the Second Circuit

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By: Zachary Blinkinsop

The opening chapter: COVID-19 and the National Emergency Library.

With the COVID-19 lockdowns of early 2020 slamming library doors shut, students and researchers found themselves struggling to access critical educational materials. Libraries, like many institutions, scrambled to adapt to the unprecedented challenges posed by the pandemic. Many librarians responded by espousing the use of copyrighted materials in remote education and research. They cited the doctrine of fair use which protects certain unlicensed uses of copyrighted materials without permission from the rightsholder. Fair use can protect the use of copyrighted materials in a range of contexts, including in research, education, news reporting, and criticism.

The main character in today’s story, an online library, may have pushed the limits of fair use too far. Even before the pandemic, the Internet Archive ran a digital library in compliance with the principles of controlled digital lending. Controlled digital lending (CDL) is a novel legal framework that would permit libraries to digitize their physical books and to lend those digital copies in a manner analogous to traditional lending practices. Under the CDL framework, a library needs to maintain an “owned to loaned” ratio, lending only as many digital copies of an item as it legally owns. The legal theory of CDL had been largely untested, and legal scholars held a wide range of opinions about whether courts would broadly hold CDL to comport with fair use.

In March of 2020, the Internet Archive launched its National Emergency Library to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation” while schools and libraries were closed due to the pandemic. It temporarily allowed multiple users to check out the same digital copy simultaneously, disregarding the “owned to loaned” ratio prescribed by the CDL framework. This sparked controversy.

The plot thickens: a lawsuit filed.

Publishers had already been taking aim at controlled digital lending programs. The Authors Guild argued that “copyright law does not support the practice of even true, traditional libraries offering unauthorized scans of books to its users on an e-lending basis…” The National Emergency Library’s flouting of CDL’s permissive framework crossed an implicit redline for publishers. In June of 2020, Hachette, HarperCollins, Wiley, and Penguin Random House sued the Internet Archive in the Southern District of New York for “willful mass copyright infringement.” In their complaint, publishers eviscerated the underpinnings of CDL, “the rules of which”, they wrote, “have been concocted from wholecloth and continue to get worse.”

In its response, the Internet Archive insisted that the National Emergency Library qualified under fair use as it offered a noncommercial, educational service to the public during a national emergency. It further maintained that a digital library should be treated like a traditional library: “Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.”

The future of controlled digital lending and the viability of online libraries was at stake in the case.

How does fair use apply to controlled digital lending?

Section 107 of the Copyright Act directs courts to consider four factors when evaluating a fair use defense to a claim of copyright infringement. A court must balance (1) the purpose of and character of the use, including whether it innovates in any way and whether it is for a commercial or non-profit purpose; (2) the nature of the copyrighted work; (3) the amount of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the market value of the copyrighted work. Courts adjudicate fair use claims on a case-by-case basis; an activity that qualifies as fair use in one set of circumstances may not qualify under a different set of facts.

Capitol Records v. ReDigi, a case decided in 2013, foreshadowed the outcome of Hachette v. Internet Archive. ReDigi was a service that facilitated the resale of digital files originally purchased from the iTunes store. In that case, the court held that ReDigi’s resale of digital music files fell “well outside the fair use defense.” Running through the four-step test, the court found that (1) uploading and distributing digital files for sale does not add anything new to a copyrighted work; (2) copyright protections are intended to protect musical recordings; (3) transmitting a work in its entirety usually negates a fair use defense; and (4) ReDigi’s sales obviously undercut Capitol Records’ profits.

Although ReDigi’s marketplace was commercial in nature, an obvious difference from the nonprofit intent of the National Emergency Library, the other facts broadly aligned. The National Emergency Library arguably did not innovate the use of copyrighted books. Copyright protections clearly protect rightsholders’ interests in published books. The books offered through the National Emergency Library were transmitted in whole, and this arguably undercut the publishers’ profits from ebook sales.

An open-and-shut case? The Second Circuit enters the plot.

Judge John G. Koeltl held that the Internet Archive’s National Emergency Library failed all four factors of the fair use test. He wrote in his opinion that “IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.” The opinion was a resounding victory for publishers.

The Internet Archive promised to continue fighting. The founder of the Internet Archive, Brewster Kahle, framed the case as a battle for free access to information within a wider war for global democracy: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.”

On December 15, 2023, the Internet Archive filed its opening brief to the U.S. Court of Appeals for the Second Circuit. In the brief, the Internet Archive asks the Court to reverse the lower court’s decision and to hold that its controlled digital lending is fair use. The Internet Archive is arguing that the lower court erred in applying the four-factor test because the court “failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time, just like lending a print book.” The Internet Archive says that the court’s misunderstanding particularly tainted its analysis of the first and fourth factors. For example, it argues that the court’s analysis of the fourth factor did not take into account expert testimony indicating that “lending is not a substitute for Publishers’ ebooks and has no effect on Publishers’ markets.”

The Second Circuit’s decision in this case will shape the future of controlled digital lending and the ongoing debate surrounding fair use and access to information in the digital era. Librarians, publishers, and legal scholars will be watching closely, waiting for the next major development in the application of free use to a rapidly evolving digital world.

Stay tuned for the next chapter in this story.

Gene Editing and IP Battles: The Fight for CRISPR/Cas-9 Patent Rights

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By: Bethany Butler

Gene editing technologies have the potential to greatly influence medicine and impact future therapies to treat debilitating conditions. Gene editing research seeks to “modify genes of living organisms to improve our understanding of gene function and develop ways to use it to treat genetic or acquired diseases.” One gene editing tool is the CRISPR/Cas-9 system, which allows for precision genome editing by cutting DNA in targeted locations for replacement. The first gene editing therapy utilizing CRISPR/Cas-9, called Casgevy, was approved by the Food and Drug Administration (FDA) in December of 2023. Casgevy is a treatment for patients with sickle cell disease, an inherited blood disorder that may cause painful symptoms and require lifelong interventions.

The emergence of CRISPR/Cas-9 Technology

The history of the CRISPR/Cas-9 system’s discovery and application largely involves two prominent research teams battling for its intellectual property rights. One team (“the Broad Institute”) hails from molecular biologist Feng Zhang of the Broad Institute, Harvard University, and the Massachusetts Institute of Technology; the other (“Charpentier and Doudna”) represents researcher Emmanuelle Charpentier of the Max Planck Institute for Infection Biology, Jennifer Doudna of the University of California, Berkeley, and the University of Vienna. Both teams have found success with their CRISPR/Cas-9 systems. In 2020, Emmanuelle Charpentier and Jennifer Doudna won the Nobel Prize in chemistry for the team’s 2012 discovery of the Cas-9 enzyme’s role in the CRISPR process. 

The two groups have not existed in harmony though, as patent battles between them stem from each groups’ 2012 US Patent and Trademark Office (“USPTO”) filings. Both teams filed applications to protect their respective gene editing tools, and unless the teams claimed distinct inventions regarding the use of the CRISPR/Cas-9 technology in human genomes, the USPTO would not allow patent protection to extend to both. 

Patent Protections of Gene Editing Technology

There are three types of patents that an inventor may file with the USPTO: utility, design, and plant. Gene editing technologies, like the CRISPR/Cas-9 system, often fall under the utility patent category. Utility patents are useful, new, and non-obvious. The non-obvious requirement refers to if a person of ordinary skill in the art would likely predict the invention by combining prior art references. CRISPR/Cas-9 patent rights come with limited monopolies, the potential for patent royalties, access to license the technology for future therapies in human cells, like the newly approved sickle cell therapy. 

Charpentier and Doudna’s May 2012 patent application demonstrated the use of this technology but did not go so far as to claim its use in eukaryotic cells (i.e. CRISPR/Cas-9 gene editing in human cells). Conversely, the Broad Institute demonstrated the use of this technology specifically in eukaryotic cells in their December 2012 patent application. The Broad Institute’s patent application was approved on April 15, 2014, and the team received the first patent for a method of altering eukaryotic cells using the technology. 

The CRISPR/Cas-9 Patent Fight

The Broad Institute, led by molecular biologist Feng Zhang, prevailed over Doudna and Charpentier regarding patent rights related to the CRISPR/Cas-9 technology. The main issue over these rights is which team developed the use of the CRISPR/Cas-9 gene editing in the modification of eukaryotic genomes.

Over the last 10 years, the two research teams have appealed various patent decisions, with the Patent Trials and Appeals Board (PTAB) and the Federal Circuit continually ruling in favor of the Broad Institute. For example, in a 2017 appeal, the Federal Circuit confirmed the PTAB’s finding that the Broad Institute’s claims were non-obvious regarding “the extent to which the art provided instructions for applying the CRISPRCas9 technology in a new environment”. The latest decision was on February 28, 2022, confirming the Broad Institute’s team was the first to invent the technology for modifying genomes in human cells. The decision stemmed from earlier interference claims holding that the Broad Institute’s patents claimed distinct subject matter compared to Doudna and Charpentier’s claims. Currently, the Broad Institute and Zhang’s team has prevailed in the patent space for the rights to CRISPR/Cas-9 gene editing technology in eukaryotic cells and now are able to license this technology for therapeutic applications. 

The CRISPR/Cas-9 Technology In Action Today

The Broad Institute licensed its technology to Editas Medicine in 2014. Vertex Pharmaceuticals, the pharmaceutical company that developed the sickle cell therapy, Casgevy, reached a licensing deal with Editas Medicine in December 2023. This deal pertains to the use of the CRISPR/Cas-9 technology in the Casgevy treatment and other sickle cell therapies. Individuals with sickle cell disease inherit genes that encode for abnormal hemoglobin production resulting in abnormal red blood cells. The Casgevy treatment uses the CRISPR/Cas-9 technology to edit patients’ blood stem cells to increase the production of fetal hemoglobin, which is not affected by the sickle cell mutation, thereby diluting the affected sickled blood cells. The edited cells are then infused back into the patient and have the potential to treat the disease. For the use of this technology, Vertex Pharmaceuticals agreed to pay Editas Medicine $50 million dollars upfront and licensing fees through 2034 ranging from $10 million to $40 million dollars annually. 

The far reaches of gene editing technologies have the potential to transform medicine and better the lives of many. CRISPR/Cas-9 editing technology is a vital therapeutic tool in this space and the fight for its patent rights continues. With the rollout of novel therapies, U.S. patent law is the key to lucrative licensing deals for the victors in these CRISPR/Cas-9 patent wars.