New Technology

Extending Trademark Protections to the Metaverse

May 10, 2022
Data, Internet, New Technology, Trademark Law

Alex O’Connor, MJLST Staffer

After a 2020 bankruptcy and steadily decreasing revenue that the company attributes to the Coronavirus pandemic, Chuck E. Cheese is making the transition to a pandemic-proof virtual world. Restaurant and arcade center Chuck E. Cheese is hoping to revitalize its business model by entering the metaverse. In February, Chuck E. Cheese filed two intent to use trademark filings with the USPTO. The trademarks were filed under the names “CHUCK E. VERSE” and “CHUCK E. CHEESE METAVERSE”. 

Under Section 1 of the Lanham Act, the two most common types of applications for registration of a mark on the Principal Register are (1) a use based application for which the applicant must have used the mark in commerce and (2) an “intent to use” (ITU) based application for which the applicant must possess a bona fide intent to use the mark in trade in the near future. Chuck E. Cheese has filed an ITU application for its two marks.

The metaverse is a still-developing virtual and immersive world that will be inhabited by digital representations of people, places, and things. Its appeal lies in the possibility of living a parallel, virtual life. The pandemic has provoked a wave of investment into virtual technologies, and brands are hurrying to extend protection to virtual renditions of their marks by registering specifically for the metaverse. A series of lawsuits related to alleged infringing use of registered marks via still developing technology has spooked mark holders into taking preemptive action. In the face of this uncertainty, the USPTO could provide mark holders with a measure of predictability by extending analogue protections of marks used in commerce to substantially similar virtual renditions. 

Most notably, Hermes International S.A. sued the artist Mason Rothschild for both infringement and dilution for the use of the term “METABIRKINS” in his collection of Non-Fungible Tokens (NFTs). Hermes alleges that the NFTs are confusing customers about the source of the digital artwork and diluting the distinctive quality of Hermes’ popular line of handbags. The argument continues that the term “META” is merely a generic term that simply means “BIRKINS in the metaverse,” and Rothschild’s use of the mark constitutes trading on Hermes’ reputation as a brand.  

Many companies and individuals are rushing to the USPTO to register trademarks for their brands to use in virtual reality. Household names such as McDonalds (“MCCAFE” for a virtual restaurant featuring actual and virtual goods), Panera Bread (“PANERAVERSE” for virtual food and beverage items), and others have recently filed applications for registration with the USPTO for virtual marks. The rush of filings signals a recognition among companies that the digital marketplace presents countless opportunities for them to expand their brand awareness, or, if they’re not careful, for trademark copycats to trade on their hard-earned good will among consumers.

Luckily for Chuck E. Cheese and other companies that seek to extend their brands into the metaverse, trademark protection in the metaverse is governed by the same set of rules governing regular analogue trademark protection. That is, the mark the company is seeking to protect must be distinctive, it must be used in commerce, and it must not be covered by a statutory bar to protection. For example, if a mark’s exclusive use by one firm would leave other firms at a significant non-reputation related disadvantage, the mark is said to be functional, and it can’t be protected. The metaverse does not present any additional obstacles to trademark protection, and so as long as Chuck E. Cheese eventually uses its two marks,it will enjoy their exclusive use among consumers in the metaverse. 

However, the relationship between new virtual marks and analogue marks is a subject of some uncertainty. Most notably, should a mark find broad success and achieve fame in the metaverse, would that virtual fame confer fame in the real world? What will trademark expansion into the metaverse mean for licensing agreements? Clarification from the USPTO could help put mark holders at ease as they venture into the virtual market. 

Additionally, trademarks in the metaverse present another venue in which trademark trolls can attempt to register an already well known mark with no actual intent to use it-—although the requirement under U.S. law that mark holders either use or possess a bona fide intent to use the mark can help mitigate this problem. Finally, observers contend that the expansion of commerce into the virtual marketplace will present opportunities for copycats to exploit marks. Already, third parties are seeking to register marks for virtual renditions of existing brands. In response, trademark lawyers are encouraging their clients to register their virtual marks as quickly as possible to head off any potential copycat users. The USPTO could ensure brands’ security by providing more robust protections to virtual trademarks based on a substantially similar, already registered analogue trademark.

“I Don’t Know What To Tell You. It’s the Metaverse—I’ll Do What I Want.” How Rape Culture Pervades Virtual Reality

April 17, 2022
Artificial Intelligence, Criminal Law, Data, Data Privacy, Discrimination, First Amendment, Human Behavior, Internet, New Technology, Social Media, Video Games

Zanna Tennant, MJLST Staffer

When someone is robbed or injured by another, he or she can report to the police and hold the criminal accountable. When someone is wronged, they can seek retribution in court. Although there are certainly roadblocks in the justice system, such as inability to afford an attorney or the lack of understanding how to use the system, most people have a general understanding that they can hold wrongdoers accountable and the basic steps in the process. In real life, there are laws explicitly written that everyone must abide by. However, what happens to laws and the justice system as technology changes how we live? When the internet came into widespread public use, Congress enacted new laws new laws to control how people are allowed to use the internet. Now, a new form of the internet, known as the Metaverse, has both excited big companies about what it could mean for the future, as well as sparked controversy about how to adapt the law to this new technology. It can be hard for lawyers and those involved in the legal profession to imagine how to apply the law to a technology that is not yet fully developed. However, Congress and other law-making bodies will need to consider how they can control how people use the Metaverse and ensure that it will not be abused.

The Metaverse is a term that has recently gained a lot of attention, although by no means is the concept new. Essentially, the Metaverse is a “simulated digital environment that uses augmented reality (AR), virtual reality (VR), and blockchain, along with concepts from social media, to create spaces for rich user interaction mimicking the real world.” Many people are aware that virtual reality is a completely simulated environment which takes a person out of the real world. On the other hand, augmented reality uses the real-world and adds or changes things, often using a camera. Both virtual and augmented reality are used today, often in the form of video games. For virtual reality, think about the headsets that allow you to immerse yourself in a game. I, myself, have tried virtual reality video games, such as job simulator. Unfortunately, I burned down the kitchen in the restaurant I was working at. An example of augmented reality is PokemonGo, which many people have played. Blockchain technology, the third aspect, is a decentralized, distributed ledger that records the provenance of a digital asset. The Metaverse is a combination of these three aspects, along with other possibilities. As Matthew Ball, a venture capitalist has described it, “the metaverse is a 3D version of the internet and computing at large.” Many consider it to be the next big technology that will revolutionize the way we live. Mark Zuckerberg has even changed the name of his company, Facebook, to “Meta” and is focusing his attention on creating a Metaverse.

The Metaverse will allow people to do activities that they do in the real world, such as spending time with friends, attending concerts, and engaging in commerce, but in a virtual world. People will have their own avatars that represent them in the Metaverse and allow them to interact with others. Although the Metaverse does not currently exist, as there is no single virtual reality world that all can access, there are some examples that come close to what experts imagine the Metaverse to look like. The game, Second Life, is a simulation that allows users access to a virtual reality where they can eat, shop, work, and do any other real-world activity. Decentraland is another example which allows people to buy and sell land using digital tokens. Other companies, such as Sony and Lego, have invested billions of dollars in the development of the Metaverse. The idea of the Metaverse is not entirely thought out and is still in the stages of development. However, there are many popular culture references to the concepts involved in the Metaverse, such as Ready Player One and Snow Crash, a novel written by Neal Stephenson. Many people are excited about the possibilities that the Metaverse will bring in the future, such as creating new ways of learning through real-world simulations. However, with such great change on the horizon, there are still many concerns that need to be addressed.

Because the Metaverse is such a novel concept, it is unclear how exactly the legal community will respond to it. How do lawmakers create laws that regulate the use of something not fully understood and how does it make sure that people do not abuse it? Already, there have been numerous instances of sexual harassments, threats of rape and violence and even sexual assault. Recently, a woman was gang raped in the VR platform Horizon Worlds, which was created by Meta. Unfortunately and perhaps unsurprisingly, little action was taken in response, other than an apology from Meta and statements that they would make improvements. This was a horrifying experience that showcased the issues surrounding the Metaverse. As explained by Nina Patel, the co-founder and VP of Metaverse Research, “virtual reality has essentially been designed so the mind and body can’t differentiate virtual/digital experiences from real.” In other words, the Metaverse is so life-like that a person being assaulted in a virtual world would feel like they actually experienced the assault in real life. This should be raising red flags. However, the problem arises when trying to regulate activities in the Metaverse. Sexually assaulting someone in a virtual reality is different than assaulting someone in the real world, even if it feels the same to the victim. Because people are aware that they are in a virtual world, they think they can do whatever they want with no consequences.

At the present, there are no laws regarding conduct in the Metaverse. Certainly, this is something that will need to be addressed, as there needs to be laws that prevent this kind of behavior from happening. But how does one regulate conduct in a virtual world? Does a person’s avatar have personhood and rights under the law? This has yet to be decided. It is also difficult to track someone in the Metaverse due to the ability to mask their identity and remain anonymous. Therefore, it could be difficult to figure out who committed certain prohibited acts. At the moment, some of the virtual realities have terms of service which attempt to regulate conduct by restricting certain behaviors and providing remedies for violations, such as banning. It is worth noting that Meta does not have any terms of service or any rules regarding conduct in the Horizon Worlds. However, the problem here remains how to enforce these terms of service. Banning someone for a week or so is not enough. Actual laws need to be put in place in order to protect people from sexual assault and other violent acts. The fact that the Metaverse is outside the real world should not mean that people can do whatever they want, whenever they want.

Breaking the Tech Chain To Slow the Growth of Single-Family Rentals

April 17, 2022
Antitrust, Artificial Intelligence, Competition, Data, Discrimination, Economics, Economy, New Technology

Sarah Bauer, MJLST Staffer

For many of us looking to buy our first homes during the pandemic, the process has ranged from downright comical to disheartening. Here in Minnesota, the Twin Cities have the worst housing shortage in the nation, a problem that has both Republican and Democratic lawmakers searching for solutions to help both renters and buyers access affordable housing. People of color are particularly impacted by this shortage because the Twin Cities are also home to the largest racial homeownership gap in the nation. 

Although these issues have complex roots, tech companies and investors aren’t helping. The number of single-family rentals (SFR) units — single-family homes purchased by investors and rented out for profit — have risen since the great Recession and exploded over the course of the pandemic. In the Twin Cities, black neighborhoods have been particularly targeted by investors for this purpose. In 2021, 8% of the homes sold in the Twin Cities metro were purchased by investors, but investors purchased homes in BIPOC-majority zip codes at nearly double the rate of white-majority neighborhoods. Because property ownership is a vehicle for wealth-building, removing housing stock from the available pool essentially transfers the opportunity to build wealth from individual homeowners to investors who can both profit from rents as well as the increased value of the property at sale. 

It’s not illegal for tech companies and investors to purchase and rent out single-family homes. In certain circumstances, it may actually be desirable for them to be involved in the market. If you are a seller that needs to sell your home before buying a new one, house-flipping tech companies can get you out of your home faster by purchasing the home without a showing, an inspection, or contingencies. And investors purchasing single-family homes can provide a floor to the market during slowdowns like the Great Recession, a service which benefits homeowners as well as the investors themselves. But right now we have the opposite problem: not enough homes available for first-time owner-occupants. Assuming investor-ownership is becoming increasingly undesirable, what can we do about it? To address the problem, we need to understand how technology and investors are working in tandem to increase the number of single-family rentals.

 

The Role of House-Flipping Technology and iBuyers

The increase in SFRs is fueled by investors of all kinds: corporations, local companies, and wealthy individuals. For smaller players, recent developments in tech have made it easier for them to flip their properties. For example, a recent CityLab article discussed FlipOS, “a platform that helps investors prioritize repairs, access low-interest loans, and speed the selling process.” Real estate is a decentralized industry, and such platforms make the process of buying single-family homes and renting them out faster. Investors see this as a benefit to the community because rental units come onto the market faster than they otherwise would. But this technology also gives such investors a competitive advantage over would-be owner-occupiers.

The explosion of iBuying during the pandemic also hasn’t helped. iBuyers — short for “instant buyers” — use AI to generate automated valuation models to give the seller an all-cash, no contingency offer. This enables the seller to offload their property quickly, while the iBuyer repairs, markets, and re-sells the home. iBuyers are not the long-term investors that own SFRs, but the house-flippers that facilitate the transfer of property between long-term owners.

iBuyers like Redfin, Offerpad, Opendoor (and formerly Zillow) have increasingly purchased properties in this way over the course of the pandemic. This is true particularly in Sunbelt states, which have a lot of new construction of single-family homes that are easier to accurately price. As was apparent from the demise of Zillow’s iBuying program, these companies have struggled with profitability because home values can be difficult to predict. The aspects of real estate transactions that slow down traditional homebuyers (title check, inspections, etc…) also slow down iBuyers. So they can buy houses fast by offering all-cash offers with no inspection, but they can’t really offload them faster than another seller.

To the degree that iBuyers in the market are a problem, that problem is two-fold. First, they make it harder for first-time homeowners to purchase homes by offering cash and waiving inspections, something few first-time homebuyers can afford to offer. The second problem is a bigger one: iBuyers are buying and selling a lot of starter homes to large, non-local investors rather than back to owner-occupants or local landlords.

 

Transfer from Flippers to Corporate Investors

iBuyers as a group sell a lot of homes to corporate landlords, but it varies by company. After Zillow discontinued its iBuying program, Bloomberg reported that the company planned to offload 7,000 homes to real estate investment trusts (REITs). Offerpad sells 10-20% of its properties to institutional investors. Opendoor claims that it sells “the vast majority” of its properties to owner-occupiers. RedfinNow doesn’t sell to REITs at all. Despite the variation between companies, iBuyers on the whole sold one-fifth of their flips to institutional investors in 2021, with those sales more highly concentrated in neighborhoods of color. 

REITs allow firms to pool funds, buy bundles of properties, and convert them to SFRs. In addition to shrinking the pool of homes available for would-be owner-occupiers, REITs hire or own corporate entities to manage the properties. Management companies for REITs have increasingly come under fire for poor management, aggressively raising rent, and evictions. This is as true in the Twin Cities as elsewhere. Local and state governments do not always appear to be on the same page regarding enforcement of consumer and tenant protection laws. For example, while the Minnesota AG’s office filed a lawsuit against HavenBrook Homes, the city of Columbia Heights renewed rental occupancy licenses for the company. 

 

Discouraging iBuyers and REITs

If we agree as a policy matter that single-family homes should be owner-occupied, what are some ways to slowdown the transfer of properties and give traditional owner-occupants a fighting chance? The most obvious place to start is by considering a ban on iBuyers and investment firms from acquiring homes. The Los Angeles city council voted late last year to explore such a ban. Canada has voted to ban most foreigners from buying homes for two years to temper its hot real estate market, a move which will affect iBuyers and investors.

  Another option is to make flipping single-family homes less attractive for iBuyers. A state lawmaker from San Diego recently proposed Assembly Bill 1771, which would impose an additional 25% tax on the gain from a sale occurring within three years of a previous sale. This is a spin on the housing affordability wing of Bernie Sanders’s 2020 presidential campaign, which would have placed a 25% house-flipping tax on sellers of non-owner-occupied property, and a 2% empty homes tax on property of vacant, owned homes. But If iBuyers arguably provide a valuable service to sellers, then it may not make sense to attack iBuyers across the board. Instead, it may make more sense to limit or heavily tax sales from iBuyers to investment firms, or the opposite, reward iBuyers with a tax break for reselling homes to owner-occupants rather than to investment firms.

It is also possible to make investment in single-family homes less attractive to REITs. In addition to banning sales to foreign investors, the Liberal Party of Canada pitched an “excessive rent surplus” tax on post-renovation rent surges imposed by landlords. In addition to taxes, heavier regulation might be in order. Management companies for REITs can be regulated more heavily by local governments if the government can show a compelling interest reasonably related to accomplishing its housing goals. Whether REIT management companies are worse landlords than mom-and-pop operations is debatable, but the scale at which REITs operate should on its own make local governments think twice about whether it is a good idea to allow so much property to transfer to investors. 

Governments, neighborhood associations, and advocacy groups can also engage in homeowner education regarding the downsides of selling to an iBuyer or investor. Many sellers are hamstrung by needing to sell quickly or to the highest bidder, but others may have more options. Sellers know who they are selling their homes to, but they have no control over to whom that buyer ultimately resells. If they know that an iBuyer is likely to resell to an investor, or that an investor is going to turn their home into a rental property, they may elect not to sell their home to the iBuyer or investor. Education could go a long way for these homeowners. 

Lastly, governments themselves could do more. If they have the resources, they could create a variation on Edina’s Housing Preservation program, where homeowners sell their house to the City to preserve it as an affordable starter home. In a tech-oriented spin of that program, the local government could purchase the house to make sure it ends up in the hands of another owner-occupant, rather than an investor. Governments could decline to sell to iBuyers or investors single-family homes seized through tax forfeitures. Governments can also encourage more home-building by loosening zoning restrictions. More homes means a less competitive housing market, which REIT defenders say will make the single-family market less of an attractive investment vehicle. Given the competitive advantage of such entities, it seems unlikely that first-time homebuyers could be on equal footing with investors absent such disincentives.

A Solution Enabled by the Conflict in Ukraine, Cryptocurrency Regulation, and the Energy Crisis Could Address All Three Issues

April 17, 2022
Climate Change, Cryptocurrency, Energy Law, New Technology, Regulatory, Securities Law

Chase Webber, MJLST Staffer

This post focuses on two political questions reinvigorated by Vladimir Putin’s invasion of Ukraine: the energy crisis and the increasing popularity and potential for blockchain technology such as cryptocurrency (“crypto”).  The two biggest debates regarding blockchain may be its extraordinarily high use of energy and the need for regulation.  The emergency of the Ukraine invasion presents a unique opportunity for political, crypto, and energy issues to synergize – each with solutions and positive influence for the others.

This post will compare shortcomings in pursuits for environmentalism and decentralization.  Next, explain how a recent executive order is an important turning point towards developing sufficient peer-to-peer technology for effective decentralization.  Finally, suggest that a theoretical decentralized society may be more well-equipped to address the critical issues of global politics, economy, and energy use, and potentially others.

 

Relationship # 1: The Invasion and The Energy Crisis

Responding to the invasion, the U.S. and other countries have sanctioned Russia in ways that are devastating Russia’s economy, including by restricting the international sale of Russian oil.  This has dramatic implications for the interconnected global economy.  Russia is the second-largest oil exporter; cutting Russia out of the picture sends painful ripples across our global dependency on fossil fuel.

Without “beating a dead dinosaur” … the energy crisis, in a nutshell, is that (a) excessive fossil fuel consumption causes irreparable harm to the environment, and (b) our thirst for fossil fuel is unsustainable, our demand exceeds the supply and the supply’s ability to replenish, so we will eventually run out.  Both issues suggest finding ways to lower energy consumption and implement alternative, sustainable sources of energy.

Experts suggest innovation for these ends is easier than deployment of solutions.  In other words, we may be capable of fixing these problems, but, as a planet, we just don’t want it badly enough yet, notwithstanding some regulatory attempts to limit consumption or incentivize sustainability.  If the irreparable harm reaches a sufficiently catastrophic level, or if the well finally runs dry, it will require – not merely suggest – a global reorganization via energy use and consumption.

The energy void created by removing Russian supply from the global economy may sufficiently mimic the well running dry.  The well may not really be dry, but it would feel like it.  This could provide sufficient incentive to implement that global energy reset, viz., planet-wide lifestyle changes for existing without fossil fuel reliance, for which conservationists have been begging for decades.

The invasion moves the clock forward on the (hopefully) inevitable deployment of green innovation that would naturally occur as soon as we can’t use fossil fuels even if we still want to.

 

Relationship # 2: The Invasion and Crypto   

Crypto was surprisingly not useful for avoiding economic sanctions, although it was designed to resist government regulation and control (for better or for worse).  Blockchain-based crypto transactions are supposedly “peer-to-peer,” requiring no government or private intermediaries.  Other blockchain features include a permanent record of transactions and the possibility of pseudonymity.  Once assets are in crypto form, they are safer than traditional currency – users can generally transfer them to each other, even internationally, without possibility of seizure, theft, taxation, or regulation.

(The New York Times’ Latecomer’s Guide to Crypto and the “Learn” tab on Coinbase.com are great resources for quickly building a basic understanding of this increasingly pervasive technology.)

However, crypto is weak where the blockchain realm meets the physical realm.  While the blockchain itself is safe and secure from theft, a user’s “key” may be lost or stolen from her possession.  Peer-to-peer transactions themselves lack intermediaries, but hosts are required for users to access and use blockchain technology.  Crypto itself is not taxed or regulated, but exchanging digital assets – e.g., buying bitcoin with US dollars – are taxed as a property acquisition and regulated by the Security Exchange Commission (SEC).  Smart contract agreements flounder where real-world verification, adjudication, or common-sense is needed.

This is bad news for sanctioned Russian oligarchs because they cannot get assets “into” or “out of” crypto without consequence.  It is better news for Ukraine, where the borderless-ness and “trust” of crypto transaction eases international transmittal of relief assets and ensures legitimate receipt.

The prospect of crypto being used to circumvent U.S. sanctions brought crypto into the federal spotlight as a matter of national security.  President Biden’s Executive Order (EO) 14067 of March 9, 2022 offers an important turning point for blockchain: when the US government began to direct innovation and government control.  Previously, discussions of whether recognition and control of crypto would threaten innovation, or a failure to do so would weaken government influence, had become a stalemate in regulatory discussion. The EO seems to have taken advantage of the Ukraine invasion to side-step the stagnant congressional debates.

Many had recognized crypto’s potential, but most seemed to wait out the unregulated and mystical prospect of decentralized finance until it became less risky.  Crypto is the modern equivalent of private-issued currencies, which were common during the Free Banking Era, before national banks were established at the end of the Civil War.  They were notoriously unreliable.  Only the SEC had been giving crypto plenty of attention, until (and especially) more recently, when the general public noticed how profitable bitcoin became despite its volatility.

EO 14067’s policy reasoning includes crypto user protection, stability of the financial system, national security (e.g., Russia’s potential for skirting sanctions), preventing crime enablement (viz., modern equivalents to The Silk Road dark web), global competition, and, generally, federal recognition and support for blockchain innovation.  The president asked for research of blockchain technology from departments of Treasury, Defense, Commerce, Labor, Energy, Homeland Security, the Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), SEC, Commodity Futures Trading Commission (CFTC), Environmental Protection Agency (EPA), and a handful of other federal agencies.

While promoting security and a general understanding of blockchain’s potential uses and feasibility, the order also proposes Central Bank Digital Currencies (CBDC).  CBDCs are FedCoins – a stablecoin issued by the government instead of by private entities.  Stablecoins (e.g., Tether) are a type of crypto whose value is backed by the US Dollar, whereas privately issued crypto (e.g., Bitcoin, Ether) are more volatile because their value is backed by practically nothing.  So, unlike Tether, a privately issued stablecoin, CBDCs would be crypto issued and controlled by the U.S. Treasury.

Imagine CBDCs as a dollar bill made of blockchain technology instead of paper.  A future “cash transaction” could feel more like using Venmo, but without the intermediary host, Venmo.

 

Relationship # 3: Crypto and Energy

Without getting into too many more details, blockchain technology, on which crypto is based, requires an enormous amount of energy-consuming computing power.

Blockchain is a decentralized “distributed ledger technology.” The permanent recordings of transactions are stored and verifiable at every “node” – the computer in front of you could be a node – instead of in a centralized database.  In contrast, the post you are now reading is not decentralized; it is “located” in a UMN database somewhere, not in your computer’s hard drive.  Even a shared Google Doc is in a Google database, not in each of the contributor’s computers.  In a distributed system, if one node changes its version of the distributed ledger, some of the other nodes verify the change.  If the change represents a valid transaction, the change is applied to all versions at each node, if not, the change is rejected, and the ledger remains intact.

These repeated verifications give blockchain its core features, but also require a significant amount of energy.

For most of the history of computers, computing innovation has focused primarily on function, especially increased speed.  Computer processing power eventually became sufficiently fast that, in the last twenty-ish years, computing innovation began to focus on achieving the same speed using less energy and/or with more affordability.  Automotive innovation experienced a similar shift on a different timeline.

Blockchain will likely undergo the same evolution.  First, innovators will focus on function and standardization.  Despite the popularity, this technology still lacks in these areas.  Crypto assets have sometimes disappeared into thin air due to faulty coding or have been siphoned off by anonymous users who found loopholes in the software.  Others, who became interested in crypto during November 2021, after hearing that Ether had increased in value by 989% that year and the crypto market was then worth over $3 trillion, may have been surprised when the value nearly halved by February.

Second, and it if it is a profitable investment – or incentivized by future regulations resulting from EO14067 – innovators will focus on reducing the processing power required for maintaining a distributed ledger.

 

Decentralization, and Other Fanciful Policies

Decentralization and green tech share the same fundamental problem.  The ideas are compelling and revolutionary.  However, their underlying philosophy does not yet match our underlying policy.  In some ways, they are still too revolutionary because, in this author’s opinion, they will require either a complete change in infrastructure or significantly more creativity to be effective.  Neither of these requirements are possible without sufficient policy incentive.  Without the incentive, the ideas are innovative, but not yet truly disruptive.

Using Coinbase on an iPhone to execute a crypto transaction is to “decentralization” what driving a Tesla running on coal-sourced electricity is to “environmentalism.”  They are merely trendy and well-intentioned.  Tesla solves one problem – automotive transportation without gasoline – while creating another – a corresponding demand for electricity – because it relies on existing infrastructure.  Similarly, crypto cannot survive without centralization.  Nor should it, according to the SEC, who has been fighting to regulate privately issued crypto for years.

At first glance, EO 14067 seems to be the nail in the coffin for decentralization.  Proponents designed crypto after the 2008 housing market crash specifically hoping to avoid federal involvement in transactions.  Purists, especially during The Digital Revolution in the 90s, hoped peer-to-peer technology like blockchain (although it did not exist at that time) would eventually replace government institutions entirely – summarized in the term, “code is law.”  This has marked the tension between crypto innovators and regulators, each finding the other uncooperative with its goals.

However, some, such as Kevin Werbach, a prominent blockchain scholar, suggest that peer-to-peer technology and traditional legal institutions need not be mutually exclusive.  Each offers unique elements of “trust,” and each has its weaknesses.  Naturally, the cooperation of novel technologies and existing legal and financial structures can mean mutual benefit.  The SEC seems to share a similarly cooperative perspective, but distinguished, importantly, by the expectation that crypto will succumb to the existing financial infrastructure.  Werbach praises EO 14067, Biden’s request that the “alphabet soup” of federal agencies investigate, regulate, and implement blockchain, as the awaited opportunity for government and innovation to join forces.

The EPA is one of the agencies engaged by the EO.  Pushing for more energy efficient methods of implementing blockchain technology will be as essential as the other stated policies of national security, global competition, and user friendliness.  If the well runs dry, as discussed above, blockchain use will stall, as long as blockchain requires huge amounts of energy.  Alternatively, if energy efficiency can be attained preemptively, the result of ongoing blockchain innovation could play a unique role in addressing climate change and other political issues, viz., decentralization.

In her book, Smart Citizens, Smarter State: The Technologies of Expertise and the Future of Governing, Beth Simone Noveck suggests an innovative philosophy for future democracies could use peer-to-peer technology to gather wide-spread public expertise for addressing complex issues.  We have outgrown the use of “government bureaucracies that are supposed to solve critical problems on their own”; by analogy, we are only using part of our available brainpower.  More recently, Decentralization: Technology’s Impact on Organizational and Societal Structure, by local scholars Wulf Kaal and Craig Calcaterra, further suggests ways of deploying decentralization concepts.

Decentralized autonomous organizations (“DAOs”) are created with use of smart contracts, a blockchain-based technology, to implement more effectively democratic means of consensus and information sharing.  However, DAOs are still precarious.  Many of these have failed because of exploitation, hacks, fraud, sporadic participation, and, most importantly, lack of central leadership.  Remember, central leadership is exactly what DAOs and other decentralized proposals seek to avoid.  Ironically, in existing DAOs, without regulatory leadership, small, centralized groups of insiders tend to hold all the cards.

Some claim that federal regulation of DAOs could provide transparency and disclosure standards, authentication and background checks, and other means of structural support.  The SEC blocked American CryptoFed, the first “legally sanctioned” DAO, in the state of Wyoming.  Following the recent EO, the SEC’s position may shift.

 

Mutual Opportunity

To summarize:  The invasion of Ukraine may provide the necessary incentive for actuating decentralized or environmentalist ideologies.  EO 14067 initiates federal regulatory structure for crypto and researching blockchain implementation in the U.S.  The result could facilitate eventual decentralized and energy-conscious systems which, in turn, could facilitate resolutions to grave impending climate change troubles.  Furthermore, a new tool for gathering public consensus and expertise could shed new light on other political issues, foreign and domestic.

This sounds suspiciously like, “idea/product X will end climate change, all political disagreements, (solve world hunger?) and create global utopia,” and we all know better than to trust such assertions.

It does sound like it, but Noveck and Kaal & Calcaterra both say no, decentralization will not solve all our problems, nor does it seek to.  Instead, decentralization offers to make us, as a coordinated society, significantly more efficient problem solvers.  A decentralized organizational structure hopes to allow humans to react and adapt to situations more naturally, the way other living organisms adapt to changing environments.  We will always have problems.  Centralization, proponents argue, is no longer the best means of obtaining solutions.

In other words, one hopes that addressing critical issues in the future – like potential military conflict, economic concerns, and global warming – will not be exasperated or limited by the very structures with which we seek to devise and implement a resolution.

I Think, Therefore I Am: The Battle for Intellectual Property Rights with Artificial Intelligence

March 17, 2022
Artificial Intelligence, Intellectual Property, New Technology, Patents

Sara Pistilli, MJLST Staffer

Artificial intelligence (AI) is a computer or robot that is able to perform tasks that are usually done by humans because they require human judgement and intellect. Some AI can be self-learning, allowing them to learn and progress beyond their initial programming. This creates an issue of inventorship when AI creates patentable subject matter without any contribution from the original inventor of the AI system. This technological advancement has posed the larger question of whether AI qualifies as an “individual” under the United States Patent Act and whether people who create AI machines are able to claim the patent rights when the AI has created the patentable subject matter.

Artificial Intelligence “Inventors”

Patent law is continuously changing as technology expands and advances. While the law has advanced to accommodate innovative technology in the past, the introduction of AI has not been fully articulated. The United States Patent and Trademark Office (USPTO) opened up for comment on patenting AI inventions in 2019, however, it does not appear they asked for any further purpose other than to gather information from the public. The USPTO again asked for comment about patent eligibility jurisprudence as it related to specific technological areas, including AI in 2021. They gathered this information as a “study” and did not pursue any official action. The first official push to recognize AI as an inventor was by Dr. Stephen Thaler. Thaler built an AI machine called “DABUS,” and sought patent rights for the machine’s inventions. Thaler did not argue for DABUS to be the patent right holder, but rather the machine to be named the inventor with Thaler as the patent owner. Thaler’s insistence to name DABUS as the inventor complies with USPTO’s rulesregarding an inventor’s oath or declaration that accompanies a patent application.

United States’ Rulings

Thaler applied for patent rights over a food container and devices and methods for attracting enhanced attention. Both of these products were invented by his AI machine, DABUS. After applying for a U.S. patent, the USPTO rejected his application stating that U.S. law does not allow for artificial intelligence to be listed as an inventor on a patent application or patent. USPTO cited the Patent Act, stating an inventor must be a person, not a machine. USPTO stated that to allow “inventor” to include machines was too broad. Thaler requested reconsideration from the USPTO which was later denied. In 2021, Thaler appealed his rejection in the Eastern District of Virginia. Thaler failed to obtain patent rights with Judge Brinkema ruling only a human can be an inventor. Judge Brinkema relied heavily on statutory interpretation of the word “individual” which was performed by the Supreme Court in a 2012 case on the Torture Victim Protection Act. The Supreme Court had concluded that an “individual” referred to a “natural person.” Judge Brinkema further stated, that it will be up to Congress’ discretion on how they would like to alter patent law to accommodate for AI in the future. Thaler now has a pending appeal to the Court of Appeals.

International Rulings

While countries’ patent systems are independent of one another, they can be influenced based on technological and regulatory advancement happening in another country. Thaler has sought patent rights for DABUS’ two inventions discussed above in several countries including, but not limited to, the United Kingdom, Australia, and South Africa. Thaler obtained patent rights in South Africa, constituting a first in intellectual property history. Of note, however, is that South Africa’s patent system does not have a substantive patent examination system like other countries, nor do their patent laws define “inventor.” Thaler received a more persuasive ruling in Australia that may be able to effectuate change in other countries.  In 2021, Thaler’s patent application was denied in Australia. The Australian Patent Office (APO) stated that the language of the Patents Act was inconsistent with AI being treated as an inventor. Thaler appealed this decision to the Federal Court of Australia. Justice Beach ordered that this case must be remitted based on his ruling that AI can be a recognized inventor under the Australian Patents Act. Judge Beach further stated that AI cannot, however, be an applicant for a patent or an owner of a patent. It is with these reasons that Judge Beach requested reconsideration and remitted this case back to the Deputy Commissioner of the APO. The APO is now appealing this decision. Similar to the APO, the United Kingdom Intellectual Property Office (UKIPO) also pushed back against Thaler’s application for patent rights. In 2019, the UKIPO rejected Thaler’s application stating that the listing of DABUS as an inventor did not meet the requirements of the United Kingdom’s Patent Act. They stated a person must be identified as the inventor. Thaler appealed this rejection and was again denied by the UKIPO, who stated that a machine as an inventor does not allow for the innovation desired by patent rights. Thaler appealed again, to the England and Wales Patents Court, and was again denied patent rights. The judge stated that Thaler was using the Patent Act text out of context for his argument, ruling that the Patent Act cannot be construed to allow non-human inventors. In 2021, Thaler appealed this decision in the England and Wales Court of Appeals. He was again denied patent rights with all three judges agreeing that a patent is a right that can only be granted to a person and, that an inventor must be a person.

Future Prospects

Thaler currently has pending applications in several countries including Brazil, Canada, China, and Japan. The outcome of the appeal against the Federal Court of Australia’s decision on whether AI can be an inventor may prove crucial in helping to amend U.S. patent laws. Similarly, if more countries, in addition to South Africa, outright grant Thaler his patent rights, the U.S. may be forced to re-think their policies on AI-invented patentable subject matter.

Xenotransplantation: Ethics and Public Policy Need To Catch up to the Science

March 5, 2022
Bioethics, Biotechnology, Discrimination, Ethics, FDA, Health, Medical Devices, New Technology, Personalized Medicine

Claire Colby, MJLST Staffer

In early January, surgeons at the University of Maryland Medical Center made history by successfully transplanting a genetically altered pig heart to a human recipient, David Bennett.  The achievement represents a major milestone in transplantation. The demand for transplantable organs far outpaces the supply, and xenotransplantation–the implantation of non-human tissue into human recipients–could help bridge this gap. In the U.S. alone, more than 106,000 people are on the waiting list for transplants. Legal and ethical questions remain open about the appropriateness of implementing xenotransplants on a large scale. 

The FDA approved the January transplant through an emergency authorization compassionate use pathway because Bennett likely would have died without this intervention. Larger clinical trials will be needed to generate enough data to show that xenotransplants are safe and effective. The FDA will require these trials to show xenotransplantations are non-inferior to human organ transplants. IRB requirements bar interventions where risk outweighs benefits for patients, but accurately predicting and measuring risk is difficult. 

If xenotransplantation becomes standard clinical practice, animal rights proponents may balk at the idea of raising pigs for organs. Far before that point, pre-clinical trials will make heavy use of animal models. Institutional Animal Care and Use Committees (IACUCs) which oversee animal research in universities and medical entities apply a “much lower ethical standard” for animals than human research subjects. Bioethicists apply a “3R” framework for animal subjects research that stresses replacing animal models, reducing animal testing, and refining their use. Because of the inherent nature of xenotransplantation, applying this framework may be near impossible. Ongoing discussions are needed with relevant stakeholders.  

If both human and animal organs are approved for widespread transplant, but human organs prove superior, new allocation policies are needed to determine who gets what. Organ allocation policy is currently dictated by the Organ Procurement and Transplantation Network (OPTN). As it stands, organ transplantation shows inequality across racial groups and financial status. New allocation policies for organs must not reinforce or worsen these disparities. 

Like all medical interventions, patients must be able to provide informed consent for xenotransplantation. The recipient of the altered pig heart had previously been deemed ineligible for a human heart transplant because his heart failure was poorly managed. Reserving experimental interventions, like xenotransplantations, for the sickest patients raises serious ethical concerns. Are these desperate patients truly able to give meaningful consent? If xenotransplantation becomes a common practice, the traditional model of institutional review boards may need updating. Currently, individual institutions maintain their own IRBs. Xenotransplantation of altered animal organs may involve several sites: procurement of the organ, genetic editing, and transplantation may all take place in different locations. A central IRB for xenotransplantation could standardize and streamline this process. 

In all, xenotransplantation represents an exciting new frontier in transplant medicine. Responsibly implementing this innovation will require foresight and parallel innovation in ethics and public policy. 

Law School Simulator 2020

December 6, 2020
Legal Education, New Technology

Ian Colby, MJLST Staffer

You walk into the classroom. You read the cases and statutes last night. You wrote out a few notes. You think you’re ready. In this classroom, though, you don’t wait for the professor to get the PowerPoint ready. Instead, you slip on your virtual reality headset and start the simulation.

Now you’re sitting in the boardroom of a major corporation with the board of directors. Your headset lets you hear the simulated directors’ nervous talk. You get a few minutes to take in the glass paneling, the city skyline, and the furrowed brows of the worried directors. You can pick up and read reports on the table. You can select dialogue choices to chat with the directors. While the people and place aren’t photorealistic, it’s good enough to immerse you. When class starts, so does the meeting.

“Welcome, everyone,” the simulated President begins, “err…I’ve called this meeting to apprise you of a developing situation and to get some input from our counsel [you].” The president then lays out a series of facts that go from bad to worse:  the EPA has identified a toxic leak in a river adjacent to one of the company’s facilities. While the corporation has urged inspections for months, your dialogue with the directors indicates employees skip them. Rumors float that the on-site manager knew about a leak and covered it up. Now the toxic discharge has polluted the nearby river, residents are getting sick, and the EPA may file suit. The president turns to you. She asks, “Okay, Counsel, what is our first move?” 

Law School is a finite period of time in which the expectations start at “don’t even think about saying something possibly constituting legal advice” and ends at “you are qualified to evaluate, counsel, negotiate, and advocate for real clients without supervision.”  Other than those students who go onto BigLaw jobs (where the firm grudgingly expects to train the new lawyers instead), these three years are it. For the majority of that time, though, becoming a lawyer involves passive learning: reading and sitting in lectures. At the University of Minnesota, students must attend in-person, passive learning courses for 2/3rds of the credits to graduate. The Law School caps other learning methods. Students hope to absorb enough legal knowledge from these passive methods to do well on the course’s lone exam.

Law schools generally wish to develop lawyers that not only know the law, but who have the necessary skills to serve future clients. For example, of the 23 bulleted learning outcomes sought in a University of Minnesota Law School graduate, only 2 directly state that “knowing the law” is the expectation (Under “Client Service”, there is “Demonstrate broad knowledge of the law and the legal system of the United States” and under Ethics & Professionalism, there is “Know and comply with rules of professional conduct.”) The other 21 constitute crucial skills that budding lawyers cannot absorb from reading cases, passively listening to lectures, or trying to keep their heart still as a 1L, hoping they dodge the cold call. For both learning the law and developing crucial lawyering skills, passive learning means inefficient learning. Jennifer M. Cooper & Regan A.R. Gurung, Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA, 62 St. Louis U. L.J. 361 (2017). While you may be expected to master those crucial lawyering skills, most of your credits do not work to help you develop them.

Now you actively respond to the President. Your choices drive the next interaction with the board. The simulation tests your ability to work with the myriad director personalities, gather the necessary information, demonstrate the application of the law, and maintain a poised tone. The simulation does not limit you to the boardroom. You can instantly immerse yourself in the sights and sounds of the waterfront, watch the on-site manager’s facial expressions as you interview him, or review a 3D model of the toxic substance.

Active, simulated learning, on the other hand, is a dramatically more efficient way to learn knowledge and skills. Active learning means learning by doing. Simulations, a type of active learning, allow students to learn by working through a problem in complex, real-time interactions in which they will need to apply that learning. Simulations provide instant feedback on students’ application of knowledge within these real-time scenarios. Finally, simulations provide experiences that a student may have never witnessed before. Many other professions—particularly those that “require mastery of complex knowledge and skills where the stakes for getting it right are high”—utilize simulations to teach the necessary skills and knowledge. Medical professionals, military personnel, firefighters, astronauts, and pilots all perform simulations as a necessary part of their training.

Law schools, recognizing the benefit of active learning and simulation training, have taken steps toward incorporating simulations into the curriculum. At Minnesota, for example, first year students must take Law in Practice. Law in Practice is a simulation course which provides real-time scenarios in which students must elicit and evaluate information, advocate for a client, and negotiate deals. The simulation puts the student on the hot seat: Minnesota’s program is mandatory, provides real-life actors in real-time scenarios, and students demonstrate their skills with local attorneys, judges, and mediators.

However, these real-life simulations are costly, logistically complex, and usually limited to what’s available. Law schools tend to provide simulations separately from doctrinal classes. For those law schools that cannot or do not arrange for real actors and legal professionals, the simulation may lose immersion.

To offer similar benefits as these simulations with fewer costs, and to integrate those benefits into the greater curriculum, law schools should invest in digital simulations. A digital simulation means any interactive, immersive experience that uses technology to provide that experience. While digital simulations can include the latest tech has to offer, such as virtual reality headsets, it does not have to. Interactive CALI lessons can be digital simulations. Video games can be digital simulations. The level of technology does not matter as long as the simulation is immersive, interactive, and provides feedback.

A digital simulation, if done well, would be relatively cheap, repeatable, and provide active, simulated learning opportunities for students. The technology for digital simulations has progressed enough to be readily available—indeed, a student’s smartphone may be used for virtual reality simulations. Law schools could implement digital simulations with less friction than other active learning techniques. The other professions mentioned above have increasingly looked to utilizing digital simulations as a way to provide the benefits of active learning, without the added costs.

There are no defined limits to the variety of clients in a digital simulation. Real-life simulations and other experiential courses depend on availability. Whatever is available becomes the focus of the experience. By contrast, only the imagination of a creator limits the variety of digital simulations. Even if the local market cannot provide a niche area of law, a simulation could. Providing the ideal voice actor becomes easier.

You made a mistake and blurt out that the board should shred all company documents. But you’re not worried. If you make a drastic mistake, the simulation can give you a prompt to try again. Instant feedback. You asked the professor after class about it. You can attempt a different choice that night. Instead of shredding all documents, you advise the board to preserve emails, reports, and other documents. 

Digital simulations have the added benefit of providing equity of experience. Unlike the real world, a digital simulation costs little to provide students with exposure to life, the world, or the legal industry. Further, students may repeat simulations with no additional cost until they become comfortable with the topic. By way of example, imagine that you are a law student who has never attended a boardroom meeting (shock!), never seen an easement on a plat, or never attended a courtroom hearing. A digital simulation would allow you to gain the experience of that context while also coming to understand the law. All other items being equal, would a student who has filed hundreds of complaints for a previous employer and a student who has no previous legal industry experience start out on the same footing in a Civil Procedure class? A digital simulation provides a chance for the latter student to catch up.

You remember the reading about environmental clean-up regulations, but this is your first time applying it. You “pause” the interactions with the board as you work your way through the problem. You don’t worry about wasting a professor’s time. You decide to keep the board paused, so you can check out the site itself. By the time you reach the final test in this class, you’ve lived the law as much as you’ve read about it. 

Law school provides a crucial time period to develop students’ skills in communication, client services, collaboration, professionalism, legal analysis, and legal knowledge without real world consequences. So why not introduce the cheap, efficient method of digital simulation to adequately develop these skills in the time we have?

 

When is an invention disclosure or patent application a trade secret?

May 26, 2020
Intellectual Property, New Technology, Patents

Philip Alford, MJLST Staffer

Patents and trade secrets are often presented as a dichotomy of legal protections, distinguished by disclosure versus secrecy. Under the patent bargain, the government offers patent protections in exchange for the public disclosure of new and useful inventions. 35 U.S.C. §101. Various trade secret protections, on the other hand, are available when a party has suffered harm from the misappropriation of secret information. See, e.g., 18 U.S.C. §1863 and Minn. Stat. § 325C et seq. While the two areas of law are complementary, they do not perfectly align. Although trade secrets generally refer to information, this information can be embodied by a patented article, a method, or in one case, a pineapple. See Del Monte Fresh Produce Co. v. Dole Food Co., 136 F. Supp. 2d 1271 (S.D. Fla. 2001).

Trade secret protections are lost as soon as the material is disclosed to the public, including the publication of patent applications by patent offices occurring 18 months after first filing. This is the case even if the patent application never matures into a patent. Inventors should be aware that giving up secrecy in exchange for pursuing a patent is not a guaranteed exchange. To obtain a patent, inventors need to convince the Patent Office that their invention is (1) new, (2) a useful and non-obvious contribution to the art, and (3) described in sufficient detail so that others would be able to make and use the invention. 35 U.S.C. §§101, 102, 103, 112. For this reason, inventors should undertake at least a preliminary analysis to determine whether the requirements for a patent are reasonable satisfied before making any decision to give up potential trade secrets. This analysis would typically involve finding a patent attorney, who can together with the inventors to conduct a search, review for potentially relevant art, and best understand the advantages of the invention before drafting the patent application.

Trade secret protection cannot be assumed as a default. Not all secret inventions are eligible for trade secret protections—even inventions that would otherwise satisfy the requirements for a patent. A secret invention is only eligible for trade secret protection if (1) it is secret, i.e., not generally known or readily ascertainable;  (2) it confers an economic or competitive advantage; and (3) it is subject to reasonable efforts to maintain secrecy. See 18 U.S.C. §1863 and Minn. Stat. § 325C et seq. If inventors are considering whether to forgo filing a patent application, or abandon an unpublished application in favor of maintaining secrecy, the inventors must consider whether the resulting secrecy will, in fact, afford any trade secret protections at all. On one hand, a patentable but unpublished disclosure will typically satisfy the secrecy requirement if it also satisfies the novelty and non-obviousness elements of patentability. Similarly, the type of subject matter for which a patent is pursued is typically of the type that would confer an economic or competitive advantage if withheld from competitors. On the other hand, trade secret protections require reasonable efforts to maintain trade secrecy. No part of patentability imposes a similar requirement.

The reasonable effort requirement for trade secret protection is not as likely to be satisfied in the normal course of invention. What exactly is meant by “reasonable efforts” in a trade secret context? Reasonable efforts differ based on the nature of the information, the field of endeavor, and the risks to secrecy. Generally, to show reasonable efforts, parties should plan in advance to protect their secrets, for example, by using confidentiality agreements, internal employee policies, vendor policies, and electronic information policies. Such policies should be monitor compliance, remind employees that information is secret, and limit access to the secret information, e.g., via locks, passwords, and security. The extent of effort deemed reasonable will be based on the value of the information, the cost of precautions, and the likelihood that secrecy will be lost. Maintenance of absolute secrecy is not required, nor is it necessary to take steps that will be ineffective to protect the secret. See E. I. du Pont de Nemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970).

Inventors may intend to forgo patent or trade secret protection in favor of the other, only to subsequently learn that they lack the protection of either. Inventors and patent practitioners should be mindful that coverage gaps can arise due to the differing requirements for patent and trade secret protections.

Coronavirus Accelerates the Switch to Remote Online Notarization

May 13, 2020
COVID-19, New Technology

Stephen Wood, MJLST Staffer

The legal profession has been relatively quick to adapt to challenges posed by the COVID-19 pandemic. Despite widespread stay-at-home orders, technology enables lawyers and the courts to continue to conduct much of their business that has historically been required to be done in person. While telephonic U.S. Supreme Court oral arguments are unlikely to persist once things normalize, other changes may be here to stay. One example is the move to Remote Online Notarization. Official transactions such as the conveyance of real estate, granting of powers of attorney, and establishment of a prenuptial agreements must be certified by a notary for the purpose of preventing fraud and forgery. Before the pandemic, a majority of states still required this process to be conducted in person.

The first state to authorize RON was Virginia in 2011, and since then, twenty-one states had followed their lead. Nearly all the of the remaining states had laws introduced to authorize RON, but for one reason or another, they had not yet been passed. In the last few months, this has quickly changed. At least 44 states now authorize the process to be conducted remotely. Wisconsin is one state that has done so through state law rather than executive order. The Act, 2019 Wisconsin Act 125, was passed on March 3, 2020 and takes effect May 1, 2020. Until then, an emergency rule authorizes the same. However, there are limitations as to which documents apply. Meanwhile, the vast majority of states have authorized RON through executive orders or proclamations by their governors. Even before the pandemic, it was predicted that RON would become the norm, but COVID-19 is certainly speeding up the process.

COVID-19, Remote Technology, and Due Process in Administrative HearingsBrent

May 13, 2020
Administrative Law, COVID-19, New Technology

Brent Murcia, MJLST Staffer

Wherever you look, it seems like COVID-19 is dominating all the headlines these days (even this blog!)—and with good reason. The pandemic is a public health crisis on a massive scale, forcing all of us to change our lives to “socially distance” and help “flatten the curve.”

As of April 7, 95% of Americans were under some sort of “stay at home” order. With life-as-usual on hold, many people are turning to technology to keep things running. For example, in Boston, some celebrated St. Patrick’s Day with virtual concerts. Some people  celebrated Earth Day by tuning into National Park webcams. And of course, everyone from Minnesota Law students to the UK Cabinet is holding meetings (and happy hours!) on Zoom.

The legal system, of course, is not immune from the effects of this pandemic. Staff at government agencies, private law firms, and nonprofits are working from home. Some state legislatures are allowing remote voting for the first time. Many prisons have suspended in-person visits, including legal visits. Courts across the country are closed, delayed, or operating remotely. In section 150002 of the recent COVID-19 relief bill (the “CARES Act”), Congress authorized emergency video and telephone hearings for a variety of court proceedings, including detention hearings and felony pleas and sentencing. Even the United States Supreme Court will be moving to argument over the phone in May.  

As with many things in society these days, a number of these changes would have been unthinkable two months ago. Who could have imagined that certain courts, many of which require paper filings and ban the use of electronic devices in courtrooms, would soon holdarguments via video conference? The Supreme Court itself has famously never allowed live broadcasts of arguments (a subject of considerable debate). But with arguments moving to the phone, the Court will now allow the public to listen in real time.

As one would expect, the rollout of these sudden changes has not been entirely smooth. In many courts, things have gone well, with only “momentary audio hiccups and minor glitches.” But in March, a D.C. Circuit judge was dropped from an argument and missed several minutes. Last week, a Florida judge complained of lawyers making court appearances shirtless or in pajamas. One Australian barrister described remote court hearings as follows: “The judge couldn’t see anyone; lines dropped out regularly; witnesses didn’t know where to go; … subpoenaed material could not be accessed by anyone; feedback made it impossible to proceed.”

Some of these problems are silly—in the grand scheme of things, we have bigger worries than appropriate Zoom dress codes. But others have the potential to fundamentally impact proceedings—possibly affecting parties’ due process rights. This blog post briefly explores some of the issues that COVID-19 has brought to the forefront, with a particular focus on administrative processes. (For a comprehensive listing of the ways in which different federal administrative agencies are holding their hearings, see this great blog post from the Yale Journal on Regulation).

 Remote Hearings—An Overview

Remote proceedings are not exactly new. Even before the pandemic took hold, CourtCall—a company that facilitates remote appearances—had hosted six million such appearances since 1996. Many courts have long allowed certain remote appearances (sometimes requiring the consent of the parties, sometimes not). According to the Administrative Conference of the United States (ACUS), some agencies already conducted thousands of video hearings a year even before the pandemic. Still, until recently, such appearances were the exception, not the norm. And the use of remote technologies has generated controversy, even before its sudden widespread adoption.

Problems with Remote Hearings

Some people have expressed skepticism about the use of remote hearings, emerging in part from evidentiary concerns. As the BBC recently reported, video calls can make it “harder to process non-verbal cues like facial expressions, the tone and pitch of the voice, and body language.” That BBC story also referred to a 2014 study which found that even a 1.2 second transmission delay on a videoconferencing system “made people perceive the responder as less friendly or focused.” These effects can matter, considering the importance of perception and non-verbal cues in courtrooms. Additionally, one 1996 study in the University of Michigan Journal of Law Reform (before the advent of video technology) found that “parties to telephone hearings are less likely to exercise their rights to submit evidence through witnesses and documents than are parties to in-person hearings.”

Remote hearings can be particularly problematic in immigration hearings, which often involve language interpretation and the recounting of traumatic events. In early March—even before COVID-19 closures began—immigration courts in Texas began a pilot program to hold more hearings for unaccompanied children over videoconference, attempting to reduce a backlog of cases. One immigration attorney, forced by the virus to work with clients remotely, described the difficulty of doing so: “[w]e’re asking kids to open up and talk about the most personal and traumatic experiences of their lives and not even be making direct eye contact with them.” Remote hearings can affect the outcome of cases; a 2017 Government Accountability Office (GAO) study found that video hearings caused difficulties with language interpretation and affected immigration judges’ assessments of respondents’ credibility. A study in the Northwestern University Law Review found that respondents in video hearings were more likely to be deported. The American Immigration Lawyers Association opposes the use of video hearings for immigration for these reasons.

Problems with remote hearings also arise in settings that require public participation—like rulemakings and permit applications. In Minnesota, for instance, the state Pollution Control Agency (MPCA) recently delayed publication of a proposed Clean Cars rule, recognizing the importance of in-person comment and“ensuring that the public has opportunity to participate in the rule-making process.” At the same time, the MPCA moved forward with public meetings about Clean Water Act permits for the controversial Line 3 pipeline project, holding the meetings over the phone. More than 1,600 people called into the meetings, but only 400 were able to speak due to high volume. Some local organizers collected video comments, attempting to put a face to the public input, and called for the agency to hold in-person meetings once the pandemic has passed.

Finally, depending on the circumstances, remote hearings can also run afoul of specific public process requirements and open meeting laws. Lawyers in New Jersey, for instance, have highlighted a number of legal concerns arising from virtual land use board hearings. Laws about when and how meetings may be held electronically vary state to state; and amidst the pandemic, governors and legislatures have taken varying steps to clarify that authority. In Minnesota, the state legislature amended the open meeting law to account for the pandemic, expanding the circumstances under which meetings may be held remotely.

Benefits of Remote Hearings

Despite all of these problems, some lawyers have actually long advocated for an increase in virtual hearings. One common argument is that online hearings can help improve access to justice, addressing backlogs of millions of cases in some courts and agencies. Some argue that our current legal process is built more around “serving a place than serving justice.” One paper surveyed a number of other reasons why remote hearings may help in some contexts. Remote hearings can help in international cases or cases where the parties and witnesses live far apart; they can help with safety and security for parties, witnesses, and judges; they can help alleviate scheduling issues; and they can help in cases where traveling to court presents a significant burden for an individual, perhaps for economic reasons or due to a disability. (For a thorough summary of some of the ways in which technology—not just remote hearings—can help improve access to justice, see this 2012 article in the Harvard Journal of Law & Technology). 

Further, while some arguments against remote hearings focus on the importance of non-verbal cues in proceedings, others have disputed that importance. Some research has pointed out that there can be as much pseudoscience as science in attempts to interpret witness behavior. Some have questioned whether witness demeanor is even useful at all for assessing credibility. And while non-verbal cues can and do shape judge and jury reactions, this may not always be a good thing—reactions to certain behaviors can be shaped by implicit bias, furthering racial and other disparities. More research is likely needed on whether these disparities are exacerbated or lessened by different types of virtual hearings.

Finally, remote court hearings can create significant cost savings. For example, according to ACUS, the Social Security Administration’s Office of Disability Adjudication and Review saved $59 million in 2010 from using video hearings. These savings matter to people who have to navigate the legal system. A 2014 NPR investigation found, for example, that “the costs of the criminal justice system in the United States are paid increasingly by the defendants and offenders.” Many defendants are required to pay hundreds or thousands of dollars in court costs, even for constitutionally required services. Reducing court costs could help lower fees, reducing the burden on low-income parties. Additionally, law firms are saving money from virtual hearings too, potentially reducing the cost of legal services and improving access to representation down the road.

The potential for improved access and reduced costs from virtual hearings is promising, but comes with an important caution. As British lawyer Richard Atkinson wrote for The Guardian in 2012: “A more efficient justice system is possible, but the government needs to recognise that speed does not always equate to efficiency and efficiency should never be promoted over justice.”

Looking Forward

 As the effects of social distancing wear on, many of us look forward to the day when we can finally go “back to normal.” Without question, it will be a happy day when we can be with our loved ones, our friends, and our coworkers again. Lawyers will also be happy to return to the office, meet with clients in person, and advocate in real courtrooms.

At the same time, questions about remote hearings will not go away. Looking backward, some litigators will likely contest whether certain remote hearings conducted during COVID-19 were permissible. Looking forward, others will use our social distancing experience to argue that we should expand or reduce the use of remote hearings in the future.

There are no universal answers to these questions—the appropriateness of remote hearings depends on the applicable laws and the context of the case. In some cases, remote hearings can adversely affect parties’ rights; in others, they can actually improve access to justice. As one English judge wrote recently, “[i]t remains the obligation of all involved and at all stages of the hearing, to continue to evaluate whether fairness to all the parties is being achieved. Fairness cannot be sacrificed to convenience.” Our task, in these unprecedented times, is to move forward as best and as fairly we can—and to learn from these new experiences to better inform our approach to technology in the courtroom in the future.

Home | Contact Publishing Services | My Account