Legislating Loot Boxes

How much is Darth Vader worth?  This question has, in a roundabout way, caused some legislators and regulators to look at how video games make their money.  The recently-released video game Star Wars Battlefront II originally had a profit model which locked large portion of the game off behind timed barriers.  One estimate, for example, was that it would take roughly 40 hours to unlock the ability to play as Darth Vader.  This wait could be drastically reduced by purchasing loot boxes, which had a chance of containing in-game currency.  One estimate claimed that, under Battlefront II’s original pricing model, it would take, on average, over 4500 hours to unlock everything.  Conversely, the loot box payout structure would have given the same result for roughly $2100.  Although, as of this writing, the game’s publisher has scrapped this pricing model after a huge backlash, it brought the issue of loot boxes to the attention of the public and legislators. Essentially, a loot box is a randomized package of in-game items, purchased with real money.  It adds an element of chance, as a player may get a rare item for a small amount of money, or, more likely, may spend more than the actual cost of the game for common items.  The thing that makes loot boxes more worrisome than, say, a pack of baseball cards is the fact that some games are designed entirely around promoting the purchase of loot boxes.  Given that the items contained in loot boxes make the player’s character more powerful, and that the game is a competitive one, not buying loot crates puts players at...

Access to Open Records and Electronic Media

Imagine that you are a journalist producing online content for ESPN at ESPN’s headquarters in Bristol, Connecticut. Your editor assigns you to cover the return of the Auburn Tigers to the top echelons of college football and how the Alabama Crimson Tide, one of the perennial powers of the sport, returned to the College Football Playoff under controversial circumstances. Since Alabama and Auburn are both public universities, you want to access some of their records via an open records request in order to obtain background information on the two programs. However, the state denies your request but grants the requests of an in-state media outlet, despite the fact that the requests are identical to one another. That’s because the Code of Alabama provides that “[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.” This means that entities based in other jurisdictions like ESPN, CNN, or The New York Times cannot access Alabama public records unless one of their journalists is an Alabama citizen. In contrast, in-state media outlets like Al.com can assess the information and post stories about how much Alabama teachers are paid on average by school district and ratings for inspected restaurants in Mobile over a certain period of time. This difference becomes ironic when one considers that Alabama caselaw is favorable towards media outlets accessing public records for whatever purpose they desire. Stone v. Consolidated Pub. Co. defines a public writing as “such a record as is reasonably necessary to record the business and activities required to be done or...

Smart Drones and FAA Regulations

Drone deliveries have already made an appearance in our online shopping experience. For example, Amazon Prime Air made its first delivery in December 2016 and has made even more ambitious journeys in the United Kingdom.  Before all of our parcels are delivered that way, however, there are several regulatory hurdles. The Federal Aviation Administration UAS operational rules require a pilot to operate the drone within a visual line of sight and limits flight times to daylight and twilight hours.  The FAA offers waivers for operators who could conduct flight safely; this provision is meant to allow commercial enterprises and other organizations to explore ways to make drone flight technology more safe and secure and to shape future regulations as drone use continues to expand. The FAA, NASA, and a number of other committees and corporations have been working together to develop and test 360 degree microwave sensors, geo-fencing software, and drone detection systems in order to make long-distance drone flights safer. According to FAA advisor Greg McNeal, the FAA will propose its first set of rules governing flights beyond the visual line of sight in 2019. However, expanding drone usage beyond the line of sight poses a number of risks, a significant one being cybersecurity. Drones can be used to destroy data centers, deliver illegal contraband, or expand the access of an earthbound hacker to Wi-Fi networks she would not normally be able to reach. Furthermore, drones are susceptible to hacking themselves. Data exchanges during drone flights that prevent collisions use the same augmented long-range radio technology used with in-flight connectivity to aircraft, referred to as the ADS-B system....

Is future-food unknown?

As we are reminded of on a near-daily basis, the American lifestyle is not environmentally friendly. Not only do we need to stop using SUVs to cart our kids to soccer, we need to find more sustainable food sources. And in true American fashion, Silicon Valley has risen to the occasion and provided some entrepreneurial solutions. One of the more well-known tech foods is Soylent.  Soylent is a genetically-modified product, derived from soy and oats.  Billed as the ultimate meal replacement drink, Soylent contains enough calories and micro-nutrients to replace any meal. (The original goal of Soylent was to remove the need to eat ANY food.  Foodies were not happy but many people took on the challenge and lived off of only Soylent for months at a time.) The original target audience for Soylent was Silicon Valley techies who did not have enough time in their day to stop and chew.  Now, Soylent is sold at your neighborhood Walmart.   Not only will Soylent require humans to expend less energy to consume it, due to the long shelf-life, Soylent reduces food waste. Soylent is advertised as made entirely out of plant products, which reduces the amount of resources that are required to produce this liquid meal.  And if you think the individual-bottle packaging is wasteful, Soylent offers a line of powders for mixing. And you can buy directly from the company, reducing the carbon-imprint of shipping. Lastly, Soylent brags about the benefits of GMOs, commenting on how the process is better for the planet and society and should not be viewed as scary. But why aren’t we all just...

The Google Decision: A [Brand Name Redacted] Bandage for Genericide

Aspirin. Escalator. Trampoline. Three generic words with seemingly nothing in common. Those words, along with many others, were once legally protected trademarks. When a company’s mark becomes the generic name for its product or service, it can lose its trademark registration which can be extremely damaging to the company. A recent 9th Circuit decision upholding Google’s trademark may help other trademark owner’s avoid suffering a generic fate. Genericide Under Section 14 of the Lanham Act registration of a mark can be canceled if it “becomes the generic name for the goods or services for which it is registered.”  A key purpose of trademark law is to enable consumers to identify the source of a good or service. If a mark has become the generic term for the good or service, it no longer serves as a source identifier and may no longer be protectable as a trademark. As Jacqueline Stern stated, “The traditional standard for determining genericness is based on how the public perceives the contested mark—whether consumers understand the mark to mean only a type of product, or whether they recognize the name as being source indicative.” At first glance, it may seem that genericide is largely in the hands of consumers as companies only have so much control over how the public uses their brand. However, the Google decision indicates that there is more that companies can do. Elliott v. Google In 2012, the Plaintiffs registered over 700 domain names containing the word google prompting Google to file a complaint in compliance with the Uniform Domain Name Dispute Resolution Policy. The Plaintiffs in turn argued that “Google”...

Who is behind your screen(s)?

One of the most important privacy cases this decade is currently in front of the Supreme Court: Carpenter v. United States. This decision will define how law enforcement interprets the Fourth Amendment regarding an individual’s cellphone. The decision hinges on whether law enforcement can use “third-party” doctrine dating from the 70s, which states that disclosing information to a third party does away with any expectation of privacy. We’ve already seen this doctrine in action. It allows law enforcement to compel cell-service providers to give historical cell-site records, without a warrant, to track down a serial cell phone thief. If SCOTUS upholds the current doctrine, then police would have free reign to monitor individuals’ cell phone location with little to no oversight. Individuals have more than just law enforcement to worry them when thinking about phone privacy. Another large group of actors are advertising firms. One challenge marketers face is how to match individuals across multiple devices to tailor user-specific marketing strategies. And this problem has potentially lucrative rewards for whoever can solve it. One study found that companies saw a $.04 revenue increase for each additional ad that a consumer was exposed to, which reinforces the importance of making multiple impressions on a consumer across multiple media platforms. Privacy concerns, among others, have caused Apple and Google to change their practices to make it much more difficult for advertising agencies to pinpoint each individual’s (their customers’) online usage over the past five or so years.  Both the IDFA (Apple) and AAID (Android) systems allow the user to opt out of its advertisement tracking system, which use these data points...