A New Dimension to the Gun Control Debate

During the recent election, the issue of gun control predictably served as a point of contention between the two candidates. Hillary Clinton advocated for “commonsense” regulations on gun ownership such as closing the gun show loophole. As expected, Donald Trump boasted of his NRA endorsement and asserted that he will protect gun ownership rights under the Second Amendment. A new technology now adds a new dimension to the gun control debate. Legislatures must now confront the issue of “ghost guns,” or guns created with three-dimensional printing devices. Individuals who have access to a three-dimensional printer now have the capability of downloading a program that allows users to print firearms that resemble several different models of guns. Users of the printing devices are able to print both plastic firearms and projectiles that serve as bullets. The ability for individuals to manufacture these three-dimensionally printed guns gives rise to considerable safety concerns given the difficulties of tracking home-made weapons. Calls for regulation of the printed guns have given rise to disagreements about how legislatures should respond. The National Rifle Association and other gun-rights groups have largely opposed the increasing regulations on printed guns arguing that such regulations restrict gun the second amendment. Others are concerned about the dangers that three-dimensionally printed guns pose for hobbyists and children who attempt to make the guns. State legislatures have taken notice of this new DIY danger.  Earlier this year, California governor signed Assembly Bill No. 857 into law. Subject to some exceptions, the law requires any “a person who manufactures or assembles a firearm to first apply to the department for a unique serial...

Streaming Video Without an Open Internet

On February 26, 2015, The Federal Communications Commission voted 3-2 to enact a series of “Open Internet” protections. The three central rules prohibited Internet Service Providers (ISPs) from blocking access to legal content, slowing internet speeds to certain websites, and favoring certain types of internet traffic over others. The 3-2 Commissioner vote was split along party lines; 3 Democrats voting to approve and 2 Republicans voting to reject. FCC Commissioners are nominated by the President and confirmed by the Senate for 5-year terms. Leadership rules require that no more than three Commissioners come from the same party. Democrat control of FCC leadership is slated to end in May, when Commissioner Jessica Rosenworcel’s term expires. Rosenworcel, a Democrat who voted to approve the February 2015 rules, will likely be replaced by a Republican. If the new Commissioner’s ideology matches that of current Republican Commissioners Ajit Pai and Michael O’Rielly, repealing the Open Internet protections could become a priority. By the end of 2016, over 22% of all US households are expected to be “cable-free.” Just two years earlier, the percentage of households without pay TV was under 20%. During the second quarter of 2016 alone, approximately 812,000 customers cancelled their pay TV subscriptions – the largest quarterly loss ever. In addition, roughly 2 in 5 US Households subscribe to at least one streaming video service. Before the 2016 Presidential Election, the number of “non-pay TV” households was expected to near 30%. With a reversal in FCC leadership looming, traditional television service may rebound. According to a January 2016 poll, most “cord cutters” ditched their pay TV services due to cost....

Patent Agent Privilege

Should attorney-client privilege extend to communications between clients and patent agents?  In March earlier this year, a split decision by the Federal Circuit answered this question in the affirmative. This is a unique extension of the attorney-client privilege due to the nature of the patent agent profession.  Patent agents are not required to go to law school; to practice as a patent agent, one must have a scientific education and pass the patent bar examination. Passage of the patent bar examination allows a patent agent to prepare, file, and prosecute patents with the United States Patent and Trademark Office (“USPTO”). In January, 2014, Queen’s University filed a patent infringement lawsuit against Samsung.  During discovery, Queen’s University refused to produce documents containing communications between their employees and non-lawyer patent agents.  A federal magistrate judge refused to recognize a “patent agent-client” privilege and granted Samsung’s motion to compel the documents.  Queen’s University’s objection was overruled, and the Federal Circuit took the question through a writ of mandamus. In a 2-1 decision, the Federal Circuit recognized the patent agent-client privilege stating that “patent agents engage in the practice of law when representing clients . . . [and] the patent-agent privilege furthers the same important public interests as that of the attorney-client privilege.”  However, the majority limited the patent agent-client privilege to communications that fall within the scope of the patent agent’s ability to practice law—such as preparing, prosecuting, and filing patent applications.   For instance, a conversation with a patent agent about the validity of someone else’s patent in preparation for litigation would not be protected under the patent agent-client privilege. The Federal...

Getty Images v. the Public Domain: Who Really Wins?

The public domain offers teachers, graphic designers, and anyone trying to design a website on a budget the opportunity to use millions upon millions of images without fear of infringing on the original author’s copyright. The images can be reused in their entirety or be remodeled into something new. They can be used for any sort of use whatsoever, whether that use is commercial or not. That is both the point and the beauty of the public domain. But what happens when pay-per-image stock photo sites take advantage of the public domain and start using the images in their own businesses? They get sued, of course. By people like photographer Carol Highsmith. Highsmith has spent the last 30 years taking and donating photos to the public domain. Her goal was to have her photographs, the majority of which are of places around the United States, available to use for free. Her intent to do so is clear on the Library of Congress website, where her photographs are officially listed as part of the public domain. So you can imagine Highsmith’s surprise when Getty Images sent her a take-down notice demanding a payment of $120 for the display of her own photograph on her own, personal website. Highsmith soon realized Getty had taken 18,755 of her public domain images and had licensed them through its website. Getty was essentially charging its consumers for something they could have easily gotten for free, if they had only reverse image searched their desired images. That search would have lead them to places like Wikimedia Commons, which hosts Highsmith’s photos for free and displays...

Make the Internet Great Again

Donald Trump will become President Trump in less than one week. For some, that’s a terrifying reality. For others, that’s a cause for celebration. For all, however, that means radical change is on the horizon. Now, what will change? Who knows—like all politicians, Trump (likely) made more promises than he can keep. His 100-day agenda, for example, is devoid of several policies that he championed during his campaign such as the wall and the Muslim ban. But, based on Trump’s FCC landing team (and 2014 tweet), at least one thing seems certain: Net neutrality will be on the chopping block. And that’s fantastic news. “Net neutrality” is a term coined by Tim Wu, a Columbia Law School professor. Basically, it means that “no bit of information should be prioritized over another.” Here’s an illustration. Imagine two companies, Netstream and DeuceTV. Both provide entertainment to their customers over the Internet. Netstream is affiliated with an internet service provider. DeuceTV isn’t. Net neutrality prevents the internet service provider from (1) speeding up the delivery of Netstream’s content, (2) slowing down the delivery of DeuceTV’s content, and (3) blocking DeuceTV’s content altogether. Few regulations are as divisive as net neutrality. (That’s why it took the FCC until 2015, nine years after its first attempt, to get it passed.) Those is favor, although they purport to be interested in preserving competition, argue on fairness grounds; they claim that network neutrality is “the mother of innovation.” Those in opposition argue that the government should mind its beeswax; that network neutrality is “a solution that won’t work to a problem that doesn’t exist .” Here...

Federal Labor Law Protections in the Age of Social Media

Websites like Facebook and Twitter have given millions of people a chance to publicly express thoughts and opinions they otherwise would have kept private. Social media also leaves a record of the views its users express. Some of these views are benign, but others are controversial. Unsurprisingly, many people use their social media profiles to discuss work. Many people are unhappy in their work life, and it should come as no surprise that these are often the topics of social media activities. This has required courts and federal agencies like the National Labor Relations Board (NLRB) to determine how well-established standards in labor and employment law apply to the era of social media. While this is still an evolving process, a general principle has emerged: employees are generally protected against any negative employment consequences for engaging in activities and discussions which are already protected by federal labor laws, but they are not protected for “mere gripes” about their employer or their working conditions. The most important set of pre-existing legal rights protected on social media are called “protected concerted” activity. This is an umbrella term for a broad category of rights including the right to address work-related issues with co-workers, including discussions about pay, benefits, and working conditions. Just as employers cannot sanction or fire employees for engaging in these activities in private conversation, they cannot sanction them for engaging in them through social media either. Protected concerted activity is distinguished from mere gripes. “Protected concerted activity must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to...