2018

Judicial Interpretation of Emojis and Emoticons

March 2, 2018
Business Law, New Technology, Social Media

Kirk Johnson, MJLST Staffer

In 2016, the original 176 emojis created by Shigetaka Kurita were enshrined in New York’s Museum of Modern Art as just that: art. Today, a smartphone contains approximately 2,000 icons that many use as a communication tool. New communicative tools present new problems for users and the courts alike; when the recipient of a message including an icon interprets the icon differently than the sender, how should a court view that icon? How does it affect the actus reus or mens rea of a crime? While a court has a myriad of tools that they use to decipher the meaning of new communicative tools, the lack of a universal understanding of these icons has created interesting social and legal consequences.

The first of many problems with the use of an emoji is that there is general disagreement on what the actual icon means. Take this emoji for example: 🙏. In a recent interview by the Wall Street Journal, people aged 10-87 were asked what this symbol meant. Responses varied from hands clapping to praying. The actual title of the emoji is “Person with Folded Hands.”

Secondly, the icons can change over time. Consider the update of the Apple iOS from 9 to 10; many complained that this emoji, 💁, lost its “sass.” It is unclear whether the emoji was intended to have “sass” to begin with, especially since the title of the icon is “Information Desk Person.”

Finally, actual icons vary from device to device. In some instances, when an Apple iPhone user sends a message to an Android phone user, the icon that appears on the recipient’s screen is completely different than what the sender intended. When Apple moved from iOS 9 to iOS 10, they significantly altered their pistol emoji. While an Android user would see something akin to this 🔫, an iPhone user sees a water pistol. Sometimes, an equivalent icon is not present on the recipient’s device and the only thing that appears on their screen is a black box.

Text messages and emails are extremely common pieces of evidence in a wide variety of cases, from sexual harassment litigation to contract disputes. Recently, the Ohio Court of Appeals was called upon to determine whether the text message “come over” with a “winky-face emoji” was adequate evidence to prove infidelity. State v. Shepherd, 81 N.E.3d 1011, 1020 (Ohio Ct. App. 2017). A Michigan sexual harassment attorney’s client was convinced that an emoji that looked like a horse followed by an icon resembling a muffin meant “stud muffin,” which the client interpreted as an unwelcome advance from a coworker. Luckily, messages consisting entirely of icons rarely determine the outcome of a case on their own; in the sexual harassment arena, a single advance from an emoji message would not be sufficient to make a case.

However, the implications are much more dangerous in the world of contracts. According to the Restatement (Second) of Contracts § 20 (1981),

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or

(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.

Adhering to this standard with emojis would produce varied and unexpected results. For example, if Adam sent Bob a message “I’ll give you $5 to mow my lawn 😉,” would Bob be free to accept the offer? Would the answer be different if Adam used the 😘 emoji instead of the 😉 emoji? What if Bob received a black box instead of any emoji at all? Conversely, if Adam sent Bob the message without an emoji and Bob replied to Adam “Sure 😉,” should Adam be able to rely upon Bob’s message as acceptance? In 2014, the Michigan Court of Appeals ruled that the emoticon “:P” denoted sarcasm and that the text prior to the message should be interpreted with sarcasm. Does this extend to the emoji 😜😝, and 😛, titled “Face with Stuck-Out Tongue And Winking Eye,” “Face With Stuck-Out Tongue And Tightly-Closed Eyes,” and “Face With Stuck-Out Tongue” respectively?

In a recent case in Israel, a judge ruled that the message “✌👯💃🍾🐿☄” constituted acceptance of a rental contract. While the United States does have differing standards for the laws of contracts, it seems that a judge could find that to be acceptance under the Restatement of Contracts (Second) § 20(2). Eric Goldman at the Santa Clara University School of Law hypothesizes that an emoji dictionary might help alleviate this issue. While a new Black’s Emoji Law Dictionary may seem unnecessary to many, without some sort of action it will be the courts deciding what the meaning of an emoji truly is. In a day where courts rule that a jury is entitled to actually see the emoji rather than have a description read to them, we can’t ignore the reality that action is necessary.

An Automated Armageddon

March 2, 2018
Artificial Intelligence, Economics

Jacob Barnard, MJLST Staffer

In the 1970’s, hundreds of millions of people starved to death – 65 million of them Americans. In the 1980’s, world oil production peaked and it was soon followed by the depletion of all available sources of lead, zinc, tin gold, and silver in 1990. To make matters worse, all computers stopped working on January 1, 2000. Fortunately, we were all put out of our misery when the world ended on December 21, 2012.

But now, after all of that, we must face a new threat. This one comes in the form of (killer)robots. That is correct; now, in addition to immigrants and other countries, robots are stealing our jobs.

Of course, this is not an entirely new threat. The industrial revolution threatened farmers through advancements in agricultural productivity, as well as increasing worker productivity in general. Yet, as economist Walter Williams explains, this was never actually a problem. In the United States, farmers were 90% of the labor force in 1790, but this decreased to 41% in 1900 (and is down to under 3% currently). All this means, however, is that increases in productivity allowed individuals who would have otherwise been farmers to seek employment in other fields (no pun intended).

Say’s law, commonly misunderstood as “supply creates its own demand,” can be more correctly understood through the insight of W.H. Hutt: “All power to demand is derived from production and supply. . . . The process of supplying—i.e., the production and appropriate pricing of services or assets for replacement or growth—keeps the flow of demands flowing steadily or expanding.” As each person becomes more productive, therefore, they are able to demand more in return for their increased production, which allows others to maintain their employment as well.

Empirical studies on the current effects of automation support this view of the situation as well. A 2017 study by Greggory, Salomons, and Zierahn with the Mannheim Centre for European Economic Research found that routine-replacing technological change accounted for a net increase in labor demand of about 11.6 million jobs across 27 EU countries from 1999-2010 (in comparison to a total growth of 23 million jobs over the same period). In 2015, Graetz and Michaels, working with the Centre for Economic Performance, found “the increased use of robots raised countries’ average growth rates by about 0.37 percentage points. We also find that robots increased both wages and total factor productivity. While robots had no significant effect on total hours worked, there is some evidence that they reduced the hours of both low-skilled and middle-skilled workers.”

This last point is what may create an actual problem. Automation is unlikely to eliminate employment as we know it, but it will likely require a shift away from low-skilled labor. Like the farmers of the 18th and 19th centuries, many low-skilled workers may find their specific jobs being eliminated in favor of more technical employment. If people are given incentive to avoid this shift, it may result in unnecessary hardship for low-skilled workers.

Predictably, this has led some to advocate exactly that. A universal basic income, as suggested by Elon Musk and others fearing a robot takeover, would only give low-skilled workers greater incentive to avoid investing in their educations, slowing the increase in human capital that would maintain high levels of employment as automation becomes more prevalent.

A more reasonable policy recommendation would be to amend the tax code to reduce the disincentive to enter new fields of employment. Currently, education expenses for entering a new trade or business are not deductible. In addition, expenses incurred seeking employment in fields other than an employee’s current trade or business are not deductible because they are not “carrying on” the trade or business when they incur the expense. Simply allowing these two deductions would make it easier for workers to adapt to the changing demands of an evolving economy.

Even if these changes are not enough and the Luddites are correct about robots stealing all of our jobs, there still would not be a problem because there will be plenty of lucrative work available as robot-smashers.

Privatizing the ISS, Deregulating Space Travel, and Making Money

February 23, 2018
International Law, Space Law

Jon Watkins, MJLST Staffer

To many, space feels more exciting than it has been in years. SpaceX launched the Falcon Heavy recently to great fanfare and YouTube’s second-biggest live stream ever; the stream peaked at over 2.3 million concurrent viewers. In a move which is perhaps intended to ride the coattails of this popularity, the Trump administration recently announced a new policy intended to bolster the domestic space industry through deregulation and commercialization. While information discussing what the administration specifically wants to do is somewhat limited, some clues do exist. One of these clues is a NASA internal document which allegedly contains a proposal to turn the International Space Station over to private ownership by 2024.

Coverage of the ISS proposal tends to fall along predictably partisan lines- National Review is head-over-heels for the proposal, while Vox is strongly against it. However, both accounts fail to discuss whether the proposal would actually be legal. National Review suggests that private companies that pay the U.S.’s share of operations on the space station would automatically be permitted to conduct research on board. However, this is anything but clear. The ISS is governed by an inter-governmental agreement (IGA) that each of the fifteen governments involved in the ISS are signatories; Memoranda of Understanding (MOUs) between NASA and each other Space Agency in addition to several contractual and non-contractual agreements between space agencies. The UN Outer Space Treaty and other documents are incorporated into the IGA.

Articles 5 and 9 of the IGA vindicate National Review to some extent- utilization rights and jurisdiction are indeed derived from the provision of goods to the ISS. Article 9(3)(a) of the IGA in particular also seems to imply that private entities selected by partners (like NASA) may use “user elements” of the ISS, even though other private entities would not be able to do so. This probably makes it possible for NASA to transfer their use rights to a private entity, at least insofar as NASA has use rights over a portion of the ISS. However, NASA hasn’t actually provided that much of the ISS– while Russia owns the Zvezda, Pirs, Polsk, and Rassvet modules, NASA only owns the Zarya module outright, and shares ownership of the Destiny, Kibo, and Columbus modules with other agencies. This means that NASA has exclusive rights over a tiny portion of the ISS, and any private entity which purchased NASA’s rights would be forced to share all systems on the station in the same way NASA does currently.

Limiting the user rights to the portions owned by NASA isn’t the only limitation which would be faced by a private entity which were to purchase NASA’s rights in the ISS- the IGA and MOUs are filled with fairly detailed restrictions on behavior and research on the ISS, of which one of the most important is Article 9(5): “Each Partner shall assure access to and use of its Space Station elements to the other Partners in accordance with their respective allocations.” This is essentially an anti-monopolization provision, which is reasonable in the context of an international cooperative project, but may be a highly unappealing provision for a private entity. As another example, Article 11.6 of the MOU between NASA and the Russian Space Agency states that “the entire crew will operate under a single timeline for performance of all operations and utilization activities.” This is a similarly unappealing provision for a private entity which is interested in operating on its own schedule and performing its own research. It is unclear what private entity would want to operate under these restrictions, and no private entity has yet stated that they intend to do so.

Additionally, in what is likely a minor technicality, Article 16.3 of the MOU between NASA and the Russian Space Agency states that “the Parties undertake to grant high priority to their Space Station programs in developing their budgetary plans.” The Trump Administration’s allegedly expressed intent to eliminate government funding for the ISS may violate this provision of the MOU, since it means ISS funding is clearly not a “high priority.”

To be completely fair to the Trump Administration, the path they’ve chosen here is at least predictable. Much of the discussion of permits for switching launchpads in the announcement was referenced earlier in Gwynne Shotwell’s speech in October at the National Space Council, and the general trajectory of the space industry since the second Bush administration has been towards deregulation and commercialization. The Bush administration stated in the NASA Authorization Act of 2005 that NASA should “develop a sustained human presence on the Moon . . . as a stepping stone,” which has more than a facial similarity to the Trump administration’s refocus on developing a lunar base. The Obama administration was likely forced to defund some of these more expensive projects with the NASA Authorization Act of 2010 right after a major recession, but the Obama administration’s 2010 space policy purported to “[lean] farther forward in support of U.S. business interests than any previous space policy,” and recommended that the Federal Government “Minimize, as much as possible, the regulatory burden for commercial space activities.”

Deregulation and commercialization of the American space industry are therefore clearly nothing new. However, what is new are fairly aggressive proposals to use private rockets to get human payloads into space. Private rockets, an external safety report states, are insufficiently safe and an optimistic proposal to privatize NASA’s share of the ISS, a proposal which is likely legal under the international agreements governing the ISS.

University of Minnesota Partners with Michigan State University to Launch SCOTUS Notes

February 22, 2018
Constitutional Law, Internet

Brandy Hough, MJLST Staffer

If you thought your elementary school’s grueling cursive curriculum was all for naught, you’re sadly mistaken. The University of Minnesota, in partnership with Michigan State University, launched a crowdsourcing project this month to transcribe Supreme Court justices’ handwritten conference notes. The project, dubbed SCOTUS Notes, engages “citizen archivists” to decipher and transcribe the justices’ notes, with the goal of making them broadly accessible in an electronic and legible format. If you can spot a cursive Z from a mile away, you might just help transcribe history.

Researchers at the two universities received a three-year federal grant from the National Science Foundation to fund the project, which is hosted on Zooniverse, a large-scale platform for “people-powered research.” The researchers hope that crowdsourcing the work will lead to more efficient and accurate results than could be achieved by staff researchers alone. Project co-director Tim Johnson explains that ten people independently transcribe each page, which allows researchers “to obtain high level agreement scores for every word transcribed—even when the words are really difficult to determine.” At the time of writing, 876 volunteers have registered since the project’s February 13 launch date. You can monitor the project’s progress in real time on the SCOTUS Notes Zooniverse page.

In its current phase, SCOTUS Notes aims to harness its volunteer power to transcribe 12,600 pages of conference notes taken by Justices Harry A. Blackmun and William J. Brennan related to cases decided between 1959 and 1994. These notes provide valuable insights into judicial decision-making at our nation’s highest level. As explained on the SCOTUS Notes blog:

“U.S. Supreme Court justices cast votes in complete secrecy during weekly meetings, which only justices are allowed to attend. During these meetings, the justices discuss, deliberate, and make initial decisions on cases they have heard–many of which address the most important legal and policy issues in the U.S.. The written notes the justices themselves take during these meetings provide the only record of what was said and by whom.”

Project co-director Tim Johnson adds “I think law students will find that ‘understanding how the sausage is made’ is integral to understanding how and why SCOTUS makes the decisions it does. Without knowing what happens behind the scenes it is hard to really hard to have a fully accurate picture.”

In the future, the researchers plan to engage volunteers to transcribe notes of Justices Powell, Douglas, Marshall, Rehnquist and Warren. Upon completion of the project, scotusnotes.org will provide public access to images of the original pages as well as the transcriptions.

For more information or to get involved with the project, visit the SCOTUS Notes page at https://www.zooniverse.org/projects/zooniverse/scotus-notes-behind-the-scenes-at-supreme-court-conference.

PyeongChang: The Opening Ceremony

February 16, 2018
Drones, New Technology, Regulatory

MJLST Staffer, Amber Peterson

The opening ceremony of the Olympics is always a big show and the 2018 Winter Olympics’ opening ceremony in PyeongChang, South Korea was no exception. Intel created a display that featured a world-record setting 1,218 drones. The display featured drone murmurations that depicted images of a snowboarder that morphed into the Olympic rings using four billion color combinations enabled by onboard LEDs. This display surpassed Intel’s previous Shooting Star drone world record which flew 500 drones simultaneously in Germany in 2016.

Intel’s Shooting Star drones are each about a foot-long, weigh eight ounces, and can fly in formation for up to 20 minutes given the limitations of current lithium-ion battery technology.

While the show is certainly impressive, from a software perspective, it is very much similar to flying a smaller, 300-drone show. The additional drones simply increase the resolution and quality of the images to create more depth. Every drone is operated from a central computer system, which tweaks things such as individual battery life and GPS signal. The drones communicate with this central computer instead of with each other. After animators draw up the show using 3D design software, each individual drone acts as an aerial pixel to fill the night sky.

The only minor tweak that Intel had to make to the design of the drone was to the rotor cages to account for the cold and windy conditions in Pyeongchang. Intel ran test flights in Finland, which has a similar climate to Pyeongchang, to make sure the drones could handle the climate.

This record for the “most unmanned aerial vehicles airborne simultaneously” may have an asterisk however, since the display was pre-recorded after a last minute logistical issue which prevented the record setting drones from flying live at the ceremony. The show that was pre-recorded last December was instead broadcast during the event.

The South Korean laws and regulations that Intel had to comply with are as follows: 1) the maximum height that a drone can fly is 492 feet and if the flights are higher than this distance, government approval is required; 2) drones can only be flown during the day unless government approval has been given; 3) drones must be operated in a range that is viewable from the naked eye; 4) certain zones are banned for drone flights; and 5) drones must always yield to manned aircraft.

Drone law has developed from the explosion of online shopping in Korea. Korean privacy laws however, are some of the strictest in the world so a vexing issue remains as to how to deal with the invasion of privacy from drones. Maintaining a balance between supporting technological advances and being cognizant of protecting safety and individual rights remains an issue that requires further debate.

Changing Families: Time for a Change in Family Law?

February 12, 2018
Family Law, Healthcare, Regulatory, Reproductive Health

MJLST Staffer, Hannah Mosby

Reproductive technology allows individuals to start families where it may not otherwise have been possible. These technologies range from relatively advanced procedures—those using assisted reproductive technology (or “ART,” for short)—to less invasive fertility treatments. ART encompasses procedures like in vitro fertilization—in fact, the CDC defines ART as including “all fertility treatments in which both eggs and embryos are handled” (Link to: https://www.cdc.gov/art/whatis.html)—while other kinds of reproductive assistance range from artificial insemination to self-administered fertility drugs. In a study published by the CDC, the number of ART procedures completed in 2014 in the U.S. alone was almost 170,000. As scientific knowledge grows and new procedures develop, that number will undoubtedly increase.

Individuals choosing to utilize these reproductive technologies, however, can find themselves in legal limbo when it comes to determining parentage. In instances where an individual uses a donor gamete (a sperm or an egg) to conceive, that donor could be a legal parent of the offspring produced—even if that result wasn’t intended by the any of the parties involved. For example, the 2002 version of the Uniform Parentage Act—variations of which have been adopted by many states—provides for the severance of the parental rights of a sperm donor in the event of consent by the “woman,” as well as consent or post-birth action by the “man” assuming paternal rights. If statutory conditions aren’t met, the donor could retain his parental rights over any offspring produced by the procedure. To further complicate things, the use of gendered terms makes it unclear how these statutes apply to same-sex couples. A new version of the Act was proposed in 2017 to comply with the Supreme Court’s recognition of marriage equality in Obergefell v. Hodges, but it has yet to be adopted by any state . Even murkier than the laws governing donor gametes are those governing surrogacy contracts, which some states still refuse to legally recognize. Overall, these laws create an environment where even the most intentional pregnancies can have unintended consequences when it comes to establishing legal parentage.

For further illustration, let’s revisit artificial insemination. Jane and John, a Minnesotan couple, decide to undergo an artificial insemination procedure so that Jane can become pregnant. However, they aren’t married. Pursuant to Minn. Stat. 257.56, the couple’s marriage is a necessary condition for the automatic severance of the sperm donor’s parental status—therefore, since Jane and John aren’t married, the sperm donor retains his parental rights. The statute also requires that the procedure be performed “under the supervision of a licensed physician” in order for severance to occur. If there was no doctor present, then the sperm donor—and not John—would have legal parental status over the offspring produced. The example becomes more complicated if the couple is same-sex rather than heterosexual, because the statute requires the consent of the “husband” to the procedure. Further still, if Jane lived in a different state, the sperm donor might be able to establish parental rights after the fact—even if they were initially severed—by maintaining a relationship with the child. As one can imagine, this makes the use of known donors (rather than anonymous donors) particularly complicated.

Ultimately, ART and related procedures provide opportunities for individuals to create the families they want, but could not otherwise have—an enormously impactful medical development. However, utilization of these procedures can produce legal consequences that are unforeseen—and, often, unwanted—by the parents of children born using these procedures. The state law that exists to govern these procedures is varied and lagging. In the age of marriage equality and donor gametes, such laws are highly inadequate. . . In order for society to reap the biggest benefit from these life-creating technologies, the legal world will have to play a serious game of catch-up.

Apple Inc. Under Continued Scrutiny After iPhone Throttling Admission

February 12, 2018
New Technology, Securities Law

MJLST Staffer, Alex Eschenroeder

While innovative tech companies typically receive widespread attention for increasing the speed and performance of a given device, Apple Inc. has received attention in the past few weeks for exactly the opposite reason. Apple’s actions have caught the attention of consumers and consumer advocates around the world, and recently, they have caught the attention of the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) as well.

The action at issue is Apple’s intentional throttling, or slowing down, of iPhone performance. Apple apologized for its intentional throttling on December 28, 2017, in reaction to building pressure from “users and tech analysts” who noticed iPhone slowdowns. In its apology message, Apple focused on the risk of unexpected phone shutdowns resulting from the fact that “[a] chemically aged battery also becomes less capable of delivering peak energy loads, especially in a low state of charge.” Apple asserted that it addressed this risk by delivering an iOS (iPhone operating system) update that “dynamically manages the maximum performance of some system components when needed to prevent a shutdown.” In addition to providing its explanation behind the throttling in its message, Apple announced a fifty dollar discount for iPhone battery replacements. However, replacement availability has been limited, and the discount has not stopped investigations and inquiries from multiple parties.

Shortly after Apple’s admission, consumer and watchdog groups in France, Italy, and China, submitted questions to Apple. The French consumer group, “Stop Programmed Obsolescence,” filed a complaint in December alleging “that Apple pressures customers to buy new phones by timing the release of new models with operating system upgrades that cause older ones to perform less well.” This complaint sparked an investigation by the Paris prosecutor’s office. Another source of questioning has been from within the US Senate, as South Dakota Senator John Thune wrote a letter to Apple CEO Tim Cook that “pressed Apple for answers to a series of questions about how the company decided to throttle back iPhone processing performance in phones with older batteries.”

In addition to these sources of pressure, the latest major development is that the SEC and DOJ have initiated their own probes. Both the SEC and the DOJ declined to comment about their investigations. Further, “Apple acknowledged in a statement that it is responding to questions from some government agencies, though it declined to disclose which agencies or any details regarding the questions.” Thus, very little is known at this point about the substance of the investigations. Current speculation includes that, in this type of case, “the SEC could try to fault a public company for failing to make timely disclosures about material information that would affect the stock price.”

While a more superficial investigation is possible, it would likely leave critical questions unaddressed. Some questions I would like to vent to Apple are as follows: If Apple’s battery issues cause peak energy load delivery problems primarily in a low state of charge, why does the dynamic management system coded into iOS slow down app launch times even at or near full charge? If the iOS update manages max performance of system components when needed to prevent a shutdown, does that mean a phone that takes longer to launch any given app on any given launch is constantly at risk for shutting down? What would it mean when Apple releases code to deactivate throttling and an iPhone with previously slow app launch times doesn’t turn off immediately? How many other devices does Apple throttling apply to, and when might Apple admit to them? Looking at you, Apple Watch.

These questions are not expertly devised, but they represent a reality that Apple will have to grapple with in the coming months: when so many people use your product frequently, there are mountains of user experiences that could be referenced to throw any “explanation” into question. These experiences may help to debunk any likely stories that vary significantly from the truth.

E-threat: Imminent Danger in the Information Age

February 3, 2018
First Amendment, Internet, Social Media

MJLST Staffer, Jacob Weindling

One of the basic guarantees of the First Amendment is the right to free speech. This right protects the individual from restrictions on speech by the government, but is often invoked as a rhetorical weapon against private individuals or organizations declining to publish another’s words. On the internet, these organizations include some of the most popular discussion platforms in the U.S. including Facebook, Reddit, Yahoo, and Twitter. A key feature of these organizations is their lack of government control. As recenty as 2017, the Supreme Court has identified First Amendment grounds for overturning prohibitions on social media access. Indeed, one of the only major government prohibitions on speech currently in force is the ban on child pornography. Violent rhetoric, meanwhile, continues to fall under the Constitutional protections identified by the Court.

Historically, the Supreme Court has taken a nuanced view of violent speech as it relates to the First Amendment. The Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Contrast this with discussion of a moral responsibility to resort to violence, which the Supreme Court has held to be distinct from preparing a group for imminent violent acts.

With the rise and maturation of the internet, public discourse has entered a new and relatively unchartered territory that the Supreme Court would have been hard-pressed to anticipate at the time of the Brandenburg and Noto decisions. Where once geography served to isolate Neo-Nazi groups and the Ku Klux Klan into small local chapters, the internet now provides a centralized meeting place for the dissemination and discussion of violent rhetoric. Historically, the Supreme Court concerned itself mightily with the distinction between an imminent call to action and a general discussion of moral imperatives, making clear delineations between the two.

The context of the Brandenburg decision was a pre-information age telecommunications regime. While large amounts of information could be transmitted around the world in relatively short order thanks to development of international commercial air travel, real-time communication was generally limited to telephone conversations between two individuals. An imminent call to action would require substantial real-world logistics, meetings, and preparation, all of which provide significant opportunities for detection and disruption by law enforcement. By comparison, internet forums today provide for near-instant communication between large groups of individuals across the entire world, likely narrowing the window that law enforcement would have to identify and act upon a credible, imminent threat.

At what point does Islamic State recruitment or militant Neo-Nazi organizing on the internet rise to the level of imminent threat? The Supreme Court has not yet decided the issue, many internet businesses have recently begun to take matters into their own hands. Facebook and Youtube have reportedly been more active in policing Islamic State propaganda, while Reddit has taken some steps to remove communities that advocate for rape and violence. Consequently, while the Supreme Court has not yet elected to draw (or redraw) a bright red line in the internet age, many businesses appear to be taking the first steps to draw the line themselves, on their terms.

USPTO Denies Beyoncé’s Attempt to Trademark Her Daughter’s Name … Again

January 29, 2018
Intellectual Property, Trademark Law

MJLST Staffer, Tiffany Saez

In January 2016, Beyoncé’s trademark holding company, BGK Trademark Holdings, filed an application to register the name of the singer’s first child, “BLUE IVY CARTER,” in 14 different trademark classes, covering everything from fragrances to postcards to online video games. In May 2017, however, a Boston-based event planning firm, also named Blue Ivy, filed a notice of opposition with the US Patent and Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB) to challenge BGK’s trademark application.

Blue Ivy alleges, among other things that, BGK Trademark Holdings has no bonafide intent to use the BLUE IVY CARTER mark in commerce and that BGK is attempting to commit fraud on the USPTO by registering a trademark which it doesn’t intend on ever using.

Although Blue Ivy’s founder, Veronica Morales, already owns U.S. Trademark Registration No. 4224833, covering the standard character mark BLUE IVY for event planning and management services, Morales’ rights to Blue Ivy does not necessarily prevent Beyoncé from securing trademark rights in or a federal registration for BLUE IVY CARTER for goods or services that are not related to those covered by Morales’ mark. Trademark rights are jurisdictional. That is, the owner of a trademark owns it in the geographic region in which it is in use. Trademarks also do not apply to all goods and services worldwide, and instead apply only to the specific goods or services on which it is being used in commerce. Therefore, Morales does not have rights to the BLUE IVY mark for all goods and services, just event planning services.

The Blue Ivy trademark saga, however, does not mark the first time that a celebrity has tried to trademark a name or phrase.

In the United States, one’s name and likeness is generally protected through doctrines that rise out of common law or statute, such as the right of publicity or privacy. However, there are cases in which celebrities or other public figures might seek to protect their names under trademark in order to protect the financial integrity and use of their personal name in commercial activities. The USPTO’s website also notes that, one who attempts to register a trademark that includes one’s name, portrait, or signature (that could reasonably be perceived as that of a particular living individual) would need written consent from the identified individual in order to register the mark.

There are several types of trademarks (e.g., slogans, words, logos, phrases), but the essential function of a trademark is to exclusively identify the commercial origin of goods and services. The use of personal names can be registered as a trademark if the individual can establish that their name contains “secondary meaning,” also known as “acquired distinctiveness.” Secondary meaning is required when your mark is “descriptive,” but not “inherently distinctive” or “generic.” Secondary meaning is very fact-specific. Whether the mark in question has secondary meaning would therefore hinge on whether it has become closely associated with a particular good or service. Thus, in the Blue Ivy case, one’s personal name can acquire trademark protection if the public at large has identified the name with certain products or services.

Even though proof of secondary meaning is not always required, one’s own celebrity status or public persona is generally not enough to confer trademark protection upon a name. The name itself actually has to be associated with certain goods or services. This requirement may be problematic for those who endorse a particular product or intend on developing their own brand of goods, such as clothing.

It is highly unlikely that the general public has identified and closely associated the name of Beyoncé’s six-year-old daughter with certain goods, such as radio pagers. Yet Beyoncé is seeking trademark to prevent others from exploiting and cashing in on little Blue Ivy’s name.

Airbnb Regulations Spark Controversy, but Have Limited Effect on Super Bowl Market

January 29, 2018
Economy, Internet, Regulatory

MJLST Staffer, Sam Louwagie

As Super Bowl LII descends upon Minneapolis, many Twin Cities residents are hoping to receive a windfall by renting out their homes to visiting Eagles and Patriots fans. City regulations placed last fall on online short-term rental platforms such as AirBnB, which prompted an outcry from those platforms, do not appear to be having much of an effect on the dramatic surge in supply.

The short-term rental market in Minneapolis has been a renter’s market in the opening days since the Super Bowl matchup was set. There are 5,000 placements in the Twin Cities on AirBnB this week, as compared to 1,000 at this time last year, according to the Star Tribune. The flood of posted housing options has limited prices, as the average listing has cost $240 per night—more than usual, but much less than the thousands of dollars some would-be renters had hoped for. One homeowner told the Star Tribune that she had gotten no interest in her 4,000-square-foot, six-bedroom house just five blocks from U.S. Bank Stadium, and had “cut the price drastically.”

The surge in AirBnB listings comes despite ordinances that went into effect in December in both Minneapolis and St. Paul. The cities joined a growing list of major U.S. cities that are passing regulations aimed at ensuring guest safety and making a small cut of tax revenue from the rentals. Minneapolis’ ordinance requires a short-term renter to apply for a license with the city, which costs $46 annually. St. Paul’s license costs $40 per year. As of mid-December, according to MinnPost, only 18 applications had been submitted in Minneapolis and only 32 in St. Paul. That would suggest that many of the thousands of listings during Super Bowl week are likely unlicensed. The cities both say they will notify renters they are not in compliance before taking any enforcement action, but a violation will cost $500 in Minneapolis and $300 in St. Paul.

The online rental platforms themselves had strongly objected to the passage of the ordinances, which would require Airbnb to apply for a short-term rental platform license. This would bring a $10,000 annual fee in St. Paul and a $5,000 large platform fee in Minneapolis. According to MinnPost, as of mid-December, no platforms had submitted an application and it was “unclear whether they [would] comply.” Airbnb said in a statement that it believes the regulations violate the 1996 federal Communications Decency Act, and that “the ordinance violates the legal rights of Airbnb and its community.”

While the city ordinances created controversy in the legal world, they do not seem to be having a similar effect on the ground in Minneapolis, as Super Bowl guests still have a dramatic surplus of renting options.

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2018

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