Blog
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...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...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,...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....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...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...Online Harassment and Doxing on Social Media
Online harassment has been around as long as the internet. However, in recent years, online harassment has been on the rise in part because of the popularity and access to social media websites. A particularly dangerous form of online harassment is doxing. Doxing is the malicious practice of revealing someone’s personal information without their consent. The phrase has its origins in hacker feuds in the early 1990s and is short for “dropping documents.” This is done to retaliate against or harass someone by outing them online – usually by exposing personal information such as home address, place of work, phone numbers, and other information that while available on the internet, one may not want exposed to the world. The issue with doxing – like any form of harassment – is that it can range from trivial annoyance to a form of threatening that can affect someone’s emotional, economic, and even physical safety. While there are many state and federal laws that punish harassment and stalking, doxing may or may not fall within those current provisions. So, this begs the question, how should doxing be handled? Some states have already enacted anti-doxing legislation. California Penal Code § 653.2 makes every person who intends to put another person in reasonable fear for their safety by means of an electronic communication device guilty of a misdemeanor that is punishable by up to one year in a county jail and/or by a fine of not more than $1,000. Under this statute, there is no requirement that “actual incitement or actual production of the enumerated unlawful effects” follow a doxing event, rather...Privacy Risks with using XR in Education
Online learning has become widespread and normalized during the pandemic. In a survey conducted from September to October 2020 of about 3,500 full-time college students, 72% of students were concerned about remaining engagedwhile learning remotely. Extended Reality (XR) technologies, including Augmented Reality (AR) and VR (Virtual Reality), can improve student engagement and success in online education. Augmented Reality, as its name suggests, augments a user’s surroundings by placing digital elements in a live view, commonly through the user’s smartphone camera. On the other hand, Virtual Reality allows the user to replace the real world through wearing a headset and headphones to simulate an immersive experience. Though XR technologies have not been widely adopted in education yet, its use can benefit a variety of disciplinesranging from medicine to foreign languages. Among various legal uncertainties, universities that seek to provide XR in education should be aware of privacy risks associated with these technologies. Privacy Concerns with Computed Data XR technologies comprise displays and sensors that need to collect heavy data streams in order to provide the user with an immersive experience. Data can include a user’s location, biographic, biometric, and demographic information. More intrusive types of data collection include gaze-tracking, a feature likely to be essential to XR technologies’ ability to provide users deeply immersive experiences, such as rendering more sharply the virtual world elements where users are actively looking. The types of data that XR devices collect can be broadly categorized into four categories of data: observable, observed, computed, and associated. Observable data is information that third parties can observe and replicate, such as digital communications between users. In contrast,...Sovereign Digital Currency – A New Economic Foundation for Native American Tribes?
Before European settlers explored America, it is approximated that 18 million indigenous people called North America their home. Decades of war, disease, discrimination, removal, and termination rapidly brought those numbers to only 5.2 million today. Today, there are about 574 federally recognized and 63 state recognized Native American tribes in the United States. After losing an abundance of land and forceful relocation to reservations, modern Native Americans fight for sovereignty and cultural and economic survival. Today, 1 in 3 Native Americans are living in poverty, with a median income of $23,000 a year. In 2009, a new kind of economic technology emerged—crypto currency. A cryptocurrency is a digital or virtual currency that is secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Many cryptocurrencies are decentralized networks based on blockchain technology—a distributed ledger enforced by a disparate network of computers. A defining feature of cryptocurrencies is that they are generally not issued by any central authority, rendering them theoretically immune to government interference or manipulation. In 2009, Bitcoin software and mining was the first digital currency made available to the public. As of March 2022, there are over 18,000 crypto currencies in existence throughout the world. Native American tribal leaders caught wind of the successes of cryptocurrency and joined in on the business of creating, mining, and selling digital currency for two main reasons: (1) to empower Native Americans through a modern declaration of sovereign status and independence and (2) to boost economic activity and general income in Indian Country. In 2014, the Oglala Lakota Pine Ridge Indian Reservation in South Dakota adopted MazaCoin as...Automating Healthcare: Current Challenges that Must be Addressed
Artificial Intelligence has the potential to improve health care systems worldwide. For example, AI can optimize workflow in hospitals, provide more accurate diagnoses, and bring better medical treatments to patients. However, medical AI also creates challenges that we, as a society, need to face. This article does not attempt a comprehensive listing but focuses on three important obstacles: safety, transparency, and privacy. Regulating Safety It is of utmost importance that the use of AI is safe and effective. How do we ensure that AI trained in a particular setting is going to be reliable once deployed? As a real example, IBM Watson for Oncology uses AI algorithms to assess patients’ medical records and help physicians explore cancer treatment options. However, it has come under fire for not delivering on expectations and providing “unsafe and incorrect” recommendations. The problem appears to have been in the training, which is not based on an analysis of historical patient records, but rather only a few “synthetic cases.” This highlights the need for datasets that are reliable and valid. The software is only as good as the data its trained on, so the collection and curating of data can be the most critical part of deploying effective AI. Also, algorithms need further refinement and continuous updating. This separates AI from other medical devices, which do not have the ability to continuously learn. In terms of legal regulation, some medical AI-based products must undergo review by the FDA. A medical device is defined under section 201(h) of the Federal Food, Drug, and Cosmetic Act. While some software functions does not qualify (see Section...Do We Need to Reconceptualize the Threat to Free Speech?
In the era of constitutional ratification, the Founders of the United States faced the task of creating a system of government that would not allow for potential tyranny. At this time, the world had seen widespread persecution and abuses by governments toward its citizens. The US Constitution was designed under the belief that the biggest threat to liberty was the government. As Thomas Jefferson said, “a bill of rights is what the people are entitled to against every government on earth.” Albeit with some limitations, the First Amendment protects the liberty of individuals by guaranteeing their right to speak freely without fear of government censorship. This made sense during an era when the medium of speech consisted primarily of the public square and the press, and the threat of censorship stemmed largely from the government. There is little doubt that those living at the time of ratification – still in the early years of the Industrial Age – would have had no way of conceptualizing the monumental advances made in communications technology leading up to the 21st century. In those early years, the primary methods of communication involved verbal and written correspondence. The notion of instant communication and the ability to share information between groups of people around the world on an invisible medium would have simply been unimaginable at the time. It stands to reason then that the issues stemming from such advancements that we now face would not have been adequately foreseen. The advent of social media in the early 2000s revolutionized the way we communicate and absorb information. Instead of having information fed to the public...Sony and Microsoft: An Arms race for Domination of the Video Game Industry and its Relevant Antitrust Concerns
It’s no secret that both Sony and Microsoft have been rivals in the video game industry for decades. This arms race between the two competitors has resulted in independent gaming studios releasing timed exclusive content on either Playstation or Xbox consoles. However, over the last decade, this competition has evolved. Instead of lobbying for platform-exclusive games, both Sony and Microsoft have made the leap to acquiring independent game studios they believe have promising new and legacy IPs. Microsoft’s latest acquisition of Activision for $68.7 billion brings global titles like “Warcraft,” “Diablo,” “Overwatch,” and “Call of Duty” to their side of the gaming isle. On the heels of this acquisition, Sony announced its own acquisition of Bungie Studios. However, these two deals are just the latest in a long list of acquisitions for both gaming giants. Sony has developed or acquired numerous studios over the past decade including Bluepoint, Insomniac Games, Naughty Dog, Santa Monica, and Sucker Punch studios just to name a few. Likewise, Microsoft now boasts big name studios like 343 Industries, Ninja Theory, Obsidian Entertainment, and Bethesda entertainment. These recent moves by both Sony and Microsoft are an indication that both companies see the future of their respective platforms to be determined by first-party games. Interestingly, the third gaming giant, Nintendo, has long been employing this strategy. As of the end of 2021, Nintendo’s top 10 games on the Nintendo Switch comprise of well-known series such as Mario Kart, Animal Crossing, Super Smash Bros., Zelda, and Pokemon. Without exception, every single game is either directly published by Nintendo or exclusive to the Nintendo Switch system. When comparing...Familial DNA Searches and Criminal Investigations
From 1975-1986 the notorious Golden State Killer committed 12 murders, 45 rapes, and 120 burglaries across 6 California counties. These crimes remained unsolved until 2018 when police arrested Joseph DeAngelo, a 73 year old United States Navy Veteran and police officer, in his home in Citrus Heights, California. DeAngelo’s crimes were finally solved after all of these years through the use of a novel forensic technology: familial DNA search (FDS). In a traditional DNA search, law enforcement gather DNA material left at a crime scene. They then test that sample to see if it matches the DNA of anyone in a vast database of known offenders, like the FBI’s combined DNA Index System (CODIS), who have previously provided a DNA sample. This type of search couldn’t help solve DeAngelo’s murders though. The traditional search requires a perfect match between the sample DNA taken from the crime scene and someone’s DNA from the database. Since DeAngelo had never been convicted of a crime, he had never given a sample to be entered into CODIS so there was no perfect match for the DNA he left at the scene. In contrast, FDS allows law enforcement officers to analyze DNA samples from a crime scene for imperfect matches of family members from within a DNA database. Here is a simplified explanation of the process. Since DNA is inherited, family members will contain more shared genetic markers than non-related individuals do. As such, if law enforcement finds two sufficiently similar matches, they can, with a reasonable degree of probabilistic certainty, conclude that the two individuals are related. So, using FDS, if law enforcement...Shedding Light on the Data Ecosystem
Introduction The worldwide market for personal data is large and growing, but not widely understood by the average consumer. Consumers are generally unaware of how valuable their data is and there is no comprehensive set of tools to give people an idea of how much of their personal information is being actively traded by various companies. Recent scandals like the Equifax data breach and settlement have brought more scrutiny to the security practices of publicly traded companies that handle consumer data. However, there is an entire industry that is little understood and less regulated that trades exclusively in consumer data. Third-Party Data Aggregators The consumer data broker industry is a multibillion-dollar industry. Every year companies spend billions looking for insight into consumer behavior and marketing techniques by analyzing user data for spending and browsing habits. There are few laws governing the sale and collection of personal data. While most of the value to companies is in the aggregation of all of this data, there is potential for misuse on a personal level through release of information that can lead to doxxing or stalking. One of these third-party data aggregators came to national attention during the Russian election interference scandals after the 2016 US Presidential Election. A consulting company, Cambridge Analytica, was charged misusing consumer data purchased from Facebook to target likely voters for misinformation campaigns. People rightly questioned why a shady UK consulting company so easily had access to Facebook user data, but the story largely died down without much further discussion of the implications of such a marketplace. Cambridge Analytica shut its doors, but, unsurprisingly, reformulated a...§2G1.3(b)(3): Why is Criminal Sentencing Punishing the Use of Technology?
In recent years criminal sentencing has become the subject of criminal justice reform. After decades of politicians from both sides of the political aisle embracing tough on crime agendas, which included high incarceration rates and lengthy prison sentences, Americans are demanding change. In 2015, a bipartisan group of senators introduced The Sentencing Reform and Corrections Act (SRCA), with the goal of reforming criminal sentencing by reducing prison sentences and mandatory minimums for certain drug related offenses. As SRCA makes clear, efforts to reform criminal sentencing have largely centered around reducing mandatory minimums for non-violent drug offenders. The public, and in turn their elected representatives, have not been nearly as eager to give other federal crimes, which also carry lengthy prison sentences, the same attention in the crusade to reform the criminal justice system. This discussion will focus on sentencing in federal sex trafficking cases and §2G1.3(b)(3), the sentencing enhancement that penalizes sex trafficking defendants for their use of technology. Federal sex trafficking punishes sex trafficking of adults by force, fraud or coercion, and sex trafficking of minors by any means (18 U.S.C. § 1591). Sentencing for § 1591 varies depending on the age of the victim. If the offenses involved the use of force, fraud, coercion, or a minor under the age of fourteen years old, the mandatory minimum is fifteen years with up to life in prison available. If the offenses involved a minor between the ages of fourteen and eighteen years old then the mandatory minimum is ten years with up to life in prison available. After homicides, sex trafficking carries some of the highest federal sentencing...Artificial Intelligence in Health Law
Introduction Artificial intelligence (AI) can be used in many different ways to improve the U.S. healthcare system. Many providers have already started implementing such technology into modern medical practice, and many more are expected to follow suit, as AI in medical imaging is expected to reach $2 billion by 2023. The potential benefits that AI can provide in healthcare are exponential and generally fall into four main categories. The Benefits of Artificial Intelligence in Healthcare First, AI can push frontiers in healthcare by doing things that aren’t possible for humans to do. For example, researchers have used 18-F-fluorodeoxyglucose positron emission tomography (FDG-PET) technology to train a deep learning algorithm to predict Alzheimer’s years before a conventional diagnosis could be made. AI has helped with early diagnosis with other illness as well, such as kidney failure, ALS, and cancer. Therefore, by helping physicians recognize health issues and start treatment earlier, AI can increase patients’ life expectancy and chances of survival by catching conditions much earlier on. Second, AI can democratize expertise by making specialized care more available. For example, some specialists, such as dermatologists, are in great demand and short supply due to their expertise and the complexities of their patients’ health conditions. As a result, specialists don’t have time to keep track of current research, let alone implement it into their practice. The demands of such medical specialists also make it hard for them to take on more patients, and thus not all those who seek care are able to get it. AI networks can help by assimilating large amounts of medical research data and use cognitive computing systems to search for...Public Private Partnerships in National Cybersecurity
Introduction Our national infrastructure is undergoing a major digital migration. Physical infrastructure assets are merging with the digital world via the Fourth Industrial Revolution (4IR) technologies. 4IR technologies have the potential to make our infrastructure more sustainable, efficient, and connected while enabling once-futuristic ideas such as “Smart Cities” and autonomous transportations. However, such technological developments pose a grave threat to our national security. When the physical world and the digital world are integrated, repercussions from a cyberattack can materialize in the real world. This means a hacker can take control of a nation’s critical infrastructure digitally and extend his or her control to the physical world. A cyberattack debilitating an entire nation by digitally attacking its critical infrastructure is not entirely hypothetical anymore. Despite the national interest in bolstering our cybersecurity, deficiencies in our national cybersecurity continue to grow. An expansion of public-private partnerships (P3s) can be an efficient way to narrow the gaps in our national cybersecurity despite concerns raised by cyber legal scholars. The Fourth Industrial Revolution The rapid convergence of the physical world and the digital world is driving the world economy into another major industrial revolution. The World Economic Forum has coined this significant shift the “Fourth Industrial Revolution.” 4IR technologies have the potential to create more connected, efficient, and sustainable infrastructure by allowing physical infrastructure assets to integrate with the digital world. With the emergence of technologies such as autonomous vehicles and the Internet of Things (IoT), the speed of the digitalization of such assets is likely to only increase. The European Union Agency for Cyber Security identified recent trends of deploying IoT in...Privacy Considerations in the Implementation of Dodd Frank’s Section 1033
The Dodd Frank Act was enacted in 2010 in response to the 2008 financial crisis. Among the protections that it sought to create was Section 1033, which provides consumers increased access to – and control of – the personal data held by financial institutions.[1] Specifically, 1033 requires that financial institutions provide consumers with copies of their data upon request. The Consumer Financial Protection Bureau (CFPB) started gathering stakeholder opinions on Section 1033 several years after its passage and, in November of 2020, issued an Advanced Notice of Proposed Rulemaking (ANPR). FinTech companies and industry groups wrote comments in response to the ANPR in support of promulgating rules for Section 1033. They are eager for consumers to have the opportunity to pipe personal financial data from banks to their platforms. There are benefits to this system: with enhanced data portability, smaller companies have a greater chance of accessing the data they need to build innovative products that improve competition and are useful to the public. New toolscould aid in overdraft fee protection, credit score improvement, financial inclusivity, small business loans, fraud mitigation, and much more. However, there are potentially negative privacy implications if the CFPB implements Section 1033 without thoughtful consumer protection. CapitalOne’s comment on the Section 1033 ANPR voices concerns about “lightly regulated non-bank companies, particularly Data Aggregators and Data Users” gaining access to data that would otherwise be subject to the banking industry’s heightened data-handling rules. CapitalOne recommends that, for example, third parties who gain access to consumer data under Section 1033 become subject to the Gramm-Leach Bliley Act, which governs the management of individuals’ data by financial...Legal Uncertainties Surrounding the Realm of NFTs
Introduction to NFTs Throughout 2021, non-fungible token (NFT) artwork has sold for record breaking prices and is rapidly increasing in popularity. In the second quarter of 2021, NFT sales surged to $2.5 billion, which is a tremendous increase from the $13.7 million in sales during the first half of 2020. In March 2021, the artist Beeple sold his NFT through Christie’s for $69.3 million. In June 2021, one of 10,000 CryptoPunks NFTs created by the artist duo Larva Labs resold for $11.8 million through Sotheby’s. An NFT is a digital asset or unit of data that stores information on blockchains. Blockchains are digital ledgers that record information chronologically in “blocks”, which are then chained together to form an irreversible timeline of data. Whereas databases store data in tables, blockchains store data in chains of blocks. Blockchains function similarly to a bank ledger in that they reveal the entire transaction history of digital assets, allowing for easy verification of asset ownership and authenticity. Most NFTs are part of the Ethereum blockchain, which is a decentralized, open-source blockchain where no single group or person has control over the blockchain. Rather, all users retain control over this blockchain. As a result, the data entered into the blockchain is irreversible and permanent—it cannot be modified, deleted, or pirated as all transactions are permanently recorded and viewable by the public. Digital assets created on blockchains can be transferred between parties. These transferable assets are called tokens. An NFT is a non-fungible token, which means it is a one-of-a-kind asset. This is unlike Bitcoin, which is fungible and replicable. One Bitcoin can be traded for...What President Biden’s EO on Section 230 signals on policy reform
On May 14, President Biden issued an executive order (EO 14029) on Section 230, the once obscure provision of the Communications Decency Act that is now at the heart of political fights over regulating speech on online platforms, and more broadly, the power of big technology companies. If you missed the roll-out of EO 14029, you can certainly be forgiven. There was no public signing ceremony, no accompanying presidential remarks — not even a press briefing. With a yawn inducing title — “Executive Order on the Revocation of Certain Presidential Actions and Amendments” — it almost seems that the order was supposed to fly under the radar. EO 14029 was not even the biggest executive order on technology policy signed that week: just two days prior, the President rolled out a much-anticipated “Executive Order on Improving the Nation’s Cybersecurity.” So, what does the order do? As a policy matter, the most straightforward answer is: not a whole lot. It simply revokes a slew of Trump-era orders, including EO 13925 or “Preventing Online Censorship,” which was probably of minimal legal effect anyway. In another sense, however, President Biden’s action moves Section 230 policy debate away from the executive branch, signaling that the responsibility for reform lies squarely with Congress. To fully appreciate the implications of President Biden’s action, it’s useful to take a few steps back. What is Section 230, anyway? Section 230 of the Communications Decency Act, codified at 47 U.S.C §230, was passed in 1996 in order to protect innovation on the internet, then a fledgling industry. The gist of the statute is...Make Way for Robocalls: Understanding the Implications of Facebook v. Duguid
In 1991, Congress took action against the onslaught of undesired robocalls faced by households and individuals. The Telephone Consumer Protection Act (TCPA) established a variety of safeguards aimed at reducing the amount of uninvited calls consumers receive. One of the most important provisions of the TCPA prohibits the use of “any automatic telephone dialing system” (autodialer) to place unsolicited calls. The statute defines an autodialer as “equipment which has the capacity– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Precisely what falls within the scope of an autodialer has already been subject to much debate. In 2003, the Federal Communications Commission, the agency with authority to administer the TCPA, determined that the use of an autodialer encompassed sending text messages. Much more recently in 2018, the U.S. Court of Appeals for the District of Columbia rejected the FCC’s interpretation of “capacity” which included potential functionalities or future possibilities, as opposed to merely present capacity, as impermissibly broad. The Facebook v. Duguid Decision On April 1, 2021, the Supreme Court issued a decision that renders another important interpretive judgment as to what falls under the scope of an autodialer. The recent case, Facebook v. Duguid, determined whether automated text messages sent by Facebook violate the TCPA. The Ninth Circuit had held that the autodialer prohibition applies to notification systems like Facebook’s that automatically dial stored numbers. Upon Facebook’s appeal, however, the Supreme Court unanimously disagreed. The Supreme Court’s ruling hinged on the statute’s specification that an autodialer must use a “random or sequential number generator.”...Privacy Concerns for Digital COVID-19 Contact Tracing and Implications for Incorporation of Artificial Intelligence
Contact tracing has been a key measure in an attempt to slow the spread of COVID-19. Many countries, including the United States, have used contact tracing to track and control the spread of the disease. The measure has been touted as a success in the states and countries that managed to implement a well-functioning system with adequate preparation, testing and tracking, welfare support, and effective leadership. However not all contact tracing efforts were successful. The United Kingdom’s contact tracing efforts have been noted to be a failure, with the country’s government scientific advisory group reporting that the program had a “marginal impact on transmission.” The United States has similarly experienced failures in several states. Some of the reasons that programs fail include lack of local support, sheer number of cases, and delays in testing and identification. Even strong advocates for robust contact tracing programs have conceded that “it is impossible to do meaningful or substantial contact tracing with huge numbers of cases.” Shortage in personnel performing contact tracing also likely contributes to the difficulty. One key tool that could have mitigated some of the problems with contact tracing is the use of digital contact tracing. In fact, several countries, notably South Korea and Singapore, have successfully implemented digital contact tracing programs. Apple and Google partnered to create a COVID-19 contact tracing technology which utilizes Bluetooth technology. Claims have been made that implementing AI mechanisms in such technology would further increase the effectiveness of Bluetooth contact tracing by boosting the ability of the phones to detect nearby phones, which remains shaky with just the use of Bluetooth technology. Pairing Bluetooth...Intellectual Property Law in the Era of COVID-19
Basic research conducted by scientists at federally funded academic laboratories has been essential to the rapid development of COVID-19 vaccines, and the federal government has poured billions of dollars into vaccine companies since the pandemic began to accelerate the delivery of their products. However, coronavirus vaccines are likely to be worth billions to the drug industry, and even though vaccine supplies are steadily improving, groups like Doctors Without Borders are urging governments to seize the patents on any coronavirus therapies from taxpayer-funded research to prevent price gouging. Patentholders object to government intervention because their implementation would set a dangerous precedent and interfere with people’s incentives to invest in research and development for future treatments and vaccines. However, given the state of the current public health crisis, the U.S. may opt to take such drastic measures to ensure a COVID-19 vaccine is widely accessible, and their legal implications should be studied carefully. March-In Rights Under the Bayh-Dole Act If key patents for an approved vaccine are publicly funded, the federal government may be able to exercise its march-in rights under the Bayh-Dole Act of 1980. The Moderna vaccine, for example, emerged directly out of a partnership between Moderna and a federally funded academic laboratory. March-in rights were included to prevent big businesses from licensing federally funded technologies from universities, only to shelve the technologies and not commercialize them. In specific circumstances, the U.S. government has the right to “march-in” and either grant licenses or require the patent holder/licensee to grant licenses to third parties if several conditions are satisfied. If the U.S. government decides to exercise its march-in rights, the...Arthrex, PTAB, and the Unitary Executive
Patent law is often thought of as a statutory area of law, governed primarily by Title 35 of the U.S. Code and the long history of judicial opinions interpreting it. But with the passage of the AIA came the Patent Trial and Appeal Board (PTAB) and the rapid expansion of the role of the USPTO in not only granting patents, but in adjudicating disputes over them. Suddenly, administrative law was a fundamental piece of the puzzle of patent litigation. And while the PTAB has faced challenges to its validity and authority since, the Supreme Court seems to have ruled that, for now, it’s here to stay. This doesn’t mean that PTAB’s path forward is free of any administrative hurdles, however. As is evident in United States v. Arthrex, Inc. (which heard oral arguments at the Supreme Court this March), the new frontier of administrative patent trials comes with the typical issues of constitutionality other administrative courts have encountered. In Arthrex, the familiar issue of the principal/inferior status of administrative officers is center-stage, with Smith & Nephew and the United States arguing for Administrative Patent Judges (APJs) as inferior officers (and thus preserving the current system where APJs are appointed solely by the Secretary of Commerce) while Arthrex touts them as principal officers (whose appointments require the advice and consent of the Senate). The ultimate decision of the Supreme Court likely won’t cause a major shift in what technologies are granted patents, or even in the administrative process around patent disputes. After all, even if the Court determines the APJs to be unconstitutionally appointed, the system can stay so long...Posts on the MTLR Blog are editorial opinion pieces written by student-editors of the Michigan Technology Law Review. The opinions expressed in these editorial posts are not espoused or endorsed by the University of Michigan or its Law School. To view scholarly Articles and Notes published by the Michigan Technology Law Review, please visit the MTLR home page.