' MTTLR | Michigan Telecommunications and Technology Law Review

Recent Articles

The 'License as Tax' Fallacy

By  Jonathan M. Barnett
Article, Spring 2022
Read More

Unreasonable: A Strict Liability Solution to the FTC's Data Security Problem

By  James C. Cooper & Bruce H. Kobayashi
Article, Spring 2022
Read More

The Ping-Pong Olympics of Antisuit Injunction in FRAND Litigation

By King Fung Tsang & Jyh-An Lee
Article, Spring 2022
Read More

Content Moderation Remedies

By  Eric Goldman
Article, Fall 2021
Read More

An Empirical Study: Willful Infringement & Enhanced Damages in Patent Law After Halo

By  Karen E. Sandrik
Article, Fall 2021
Read More

Recent Notes

The Best Data Plan Is to Have a Game Plan: Obstacles and Solutions to Reaching International Data Privacy Agreements

By  James Wang
Note, Spring 2022
Read More

Mental Health Mobile Apps and the Need to Update Federal Regulations to Protect Users

By  Kewa Jiang
Note, Spring 2022
Read More

Blog Posts

A Gaping Tax Loophole: Crypto Wash Sales

A gaping hole in the tax code currently allows for a major tax-loss harvesting opportunity for cryptocurrency investors who are holding onto their crypto positions at a loss by allowing for wash sales (for now).  But what does this all mean? What is tax loss harvesting? Tax-loss harvesting consists of strategically selling an investment at a loss, with the intention of using that capital loss to offset the amount of capital gains tax from the sale of other investments that resulted in a profit, in order to improve the after-tax return on taxable investments.  Sophisticated investors often utilize this strategy to offset short-term capital gains, which are taxed as ordinary income, which is typically a higher tax rate than the long-term capital gains tax rate (37% for the top individual income tax bracket vs. 20% for the top capital gains tax bracket).  https://www.nerdwallet.com/article/taxes/federal-income-tax-brackets;https://www.nerdwallet.com/article/taxes/capital-gains-tax-rates.  Tax-loss harvesting can also be used to offset long term capital gains.  https://www.investopedia.com/terms/t/taxgainlossharvesting.asp.  Additionally, if an investor’s capital losses exceed your capital gains, the investor can lower their income by their total net loss for the year, up to $3,000.  https://www.irs.gov/taxtopics/tc409.  If the total net loss exceeds $3,000, the investor can carry forward the remaining net capital loss indefinitely to future years until the amount is exhausted. https://www.investopedia.com/terms/c/capital-loss-carryover.asp#:~:text=Capital%20losses%20that%20exceed%20capital,until%20the%20amount%20is%20exhausted. What is a wash sale, and what is the wash-sale rule? A wash sale occurs when an investor sells or trades a security at a loss, and within 30 days before or after the sale, the investor either buys the same or a substantially identical stock or security, or acquires an option to do so.  https://www.investor.gov/introduction-investing/investing-basics/glossary/wash-sales.  Also, If the... read more

The Futility of Patents on AAA Video Game Mechanics

The Medium by Bloober Team is a 2020 game known for its unique “Dual-Reality” mechanic, making full use of modern processing powers to generate two worlds at the same time. Bloober Team is now trying to extract the most use from this mechanic with its patent, preventing Dual-Reality from being used in a variety of video game genres in the future. Despite the multitude of protections that video games are guaranteed through copyright and trademark law, some video game developers receive patents on mechanics within the game itself. What these developers fail to realize is that this provides them with no benefit and may potentially hurt them instead. This blog post focusses on how patenting major video game mechanics of AAA games (“big-budget” games), is not in a company’s best interest. To understand why these patents hurt video game companies, we can compare the video game industry to the pharmaceutical industry, which is sometimes called the “poster child” of the patent world. Patents are considered one of the most important parts of the pharmaceutical industry because research and clinical testing for drugs is extremely costly, but once the drugs are approved by the FDA, they are relatively easy to produce generic copies of. Additionally, patented drugs have a specific use that fills an active niche on the market, one which no other currently available drug can satisfy. Without the patent system or some other means to ensure exclusivity, pharmaceutical companies would have significantly reduced profits generated by the market. These companies therefore spend significant amounts of money keeping competitors out of the sphere for years or even just months... read more

The Animal Food and Research Industry: Can Technology pave a path towards Animal Welfare?

Peter Singer in his famous book “The Animal liberation” in the 1970s, wrote that the ability to feel pain and happiness is the prerequisite for the consideration of rights and not the ability to reason. If the ability to reason was the main criteria, then children who have no linguistic skills or mentally incompetent person would have no rights as well as they cannot reason. Thus, to deny a non-human animal rights because it cannot reason would mean that children also cannot have any rights. Therefore, the pre-requisite to deciding whether one should have rights is their ability to feel, a phenomena science has credibly proved to be true for animals. However, despite this criteria, non-human animals have been tortured in laboratories and slaughtered for food, for purely humanistic reasons. In the 20th century, where there were technological alternatives, usage of animals for research and food purposes would have had made sense as there were no possible alternatives to the usage of animals. Some may say that research was essential for human survival. However this theory doesn’t hold any merit today because of technological alternatives available where plant based and veganism, technology capable of mimicking the human physiology is a reality. Sadly, as animals themselves cannot advocate for this change, economic advantage for a few is preventing this change to happen and that is a very problematic summation of humanity in the 21st century. For Animal welfare activists in the US, the Edward Taub case of 1981 rings stressful memories. Dr. Taub was working on a federal research program at the Institute for Behavioral Research (IBR) in Takoma Park,... read more

Defending Genomes

The Genome Defense by Jorge Contreras provides a road map for how to leverage creativity, ingenuity and hard work to advance civil rights. This nonfiction story covers the origins of the American Civil Liberties Union’s (ACLU) unprecedented patent law case. Historically, patent attorneys and civil rights attorneys operated in non-intersecting legal fields, but when the human genome was mapped and individual genes were discovered, companies and universities began to patent specific sequences of human genes. However, patents only protect the owners of discoveries and inventions. No one can be issued a patent for something that occurs in nature. Genes themselves occur in nature: each of us has them in our bodies. And as the human genome was mapped, it was not just healthy genes that were mapped, but also variants that could indicate disease or potential disease. Among the most widely publicized were the BRCA genes, which could predict an increased likelihood of future ovarian and breast cancer. The BRCA genes, made famous by Angelina Jolie, were originally discovered by a collection of University researchers and scientists. However, patents for these genes were now owned by Myriad genetics. Myriad was not alone in owning patents on genes: this had become an accepted practice at the U.S. Patent Office. They used this patent to regulate the industry for BRCA testing, and to shut downother labs that used the gene sequence whether for research or to provide testing. If a woman wanted to know if she had a variation in her genes that could predispose her for breast or ovarian cancer, she would effectively need to get a test through Myriad.... read more

Discrimination By Proxy: How Ai Uses Big Data To Discriminate

Countless State and Federal regulations and statutes—not to mention the U.S. Constitution—prohibit discrimination against protected groups. However, AI systems might slip discrimination past current laws through “proxy discrimination” without new regulatory and statutory approaches. Today’s AI systems and algorithms are capable of dredging oceans of big data to find statistical proxies for protected characteristics and create algorithms that disparately impact protected groups. AI systems with such capabilities already exist in the fields of health and automobile insurance, lending, and criminal justice, among others. In Proxy Discrimination in the Age of Artificial Intelligence and Big Data, Anya E.R. Prince and Daniel Schwarcz address this particularly “pernicious” phenomenon of proxy discrimination. Current anti-discriminatory regimes which simply deny AI systems the ability to use the protected characteristics or the most inuitive proxies will fail in the face of increasingly sophisticated AI systems. They provide a coherent definition for proxy discrimination by AI: usage of a variable whose statistical significance for prediction “derives from its correlation with membership in a suspect class.” For instance, consider a hiring algorithm for a job where a person’s height is relevant to job performance, but where the algorithm does not have access to height data. In attempting to factor height, the algorithm might discover the correlation between height and sex, and correlations between sex and other data. This would be an example of proxy discrimination because the statistical significance of the other data derives from its correlation with sex, a protected class. Prince and Schwarcz first foray into the pre-AI system history of proxy discrimination, i.e. human actors intentionally using proxies to discriminate. This discussion is interesting... read more

Copyright Beyond Borders: Moral Rights & the Implications of Fahmy v. Jay-Z

Short of recognizing the validity of an “international copyright,” American intellectual property law generally purports to offer protections to foreign literary and artistic works under a number of international conventions to which the United States has been a signatory since the late 1880s. However, as emerging trends in the quickly globalizing music industry challenge the notion that “exclusive” tonal genres and scènes à faire can be fixed within geographic and cultural borders, courts are likely to face more complex questions about necessary international copyright protections for non-American artists when derivative works created in the U.S. appropriate elements of an underlying work beyond the scope of fair use or public domain. A 2019 decision by the U.S. Court of Appeals for the Ninth Circuit highlights a particularly novel issue at the intersection of legal protection for foreign works and the departure of American copyright law from much of the rest of the world with respect to recognition of a “moral right” to musical and non-visual works. In Fahmy v. Jay-Z, Osama Ahmed Fahmy, nephew and heir to the famous Egyptian composer Baligh Hamdy, appealed from a lower court’s dismissal of his lawsuit against Jay-Z, which alleged that the rapper’s 1999 single “Big Pimpin’” infringed the copyright in Hamdy’s arrangement for the popular 1957 film track “Khosara.” The five-minute record by Jay-Z and Timbaland sampled a significant and distinctive portion of the introductory flute melody from Hamdy’s composition, which continued on a loop in the background of Big Pimpin’ for the entirety of the song’s duration. The Ninth Circuit ultimately held that Fahmy failed to establish standing to bring the action... read more

View More Recent Articles

Archive