' MTTLR | Michigan Telecommunications and Technology Law Review

Recent Articles

How Can I Tell if My Algorithm Was Reasonable?

By  Karni A. Chagal-Feferkorn Article, Spring 2021
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Taking It With You: Platform Barriers to Entry and the Limits of Data Portability

By  Gabriel Nicholas Article, Spring 2021
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Pushing Back on Stricter Copyright ISP Liability Rules

By  Pamela Samuelson Article, Spring 2021
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Association for Molecular Pathology v. Myriad Genetics: A Critical Reassessment

By  Jorge L. Contreras Article, Fall 2020
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From Automation to Autonomy: Legal and Ethical Responsibility Gaps in Artificial Intelligence Innovation

By  David Nersessian & Ruben Mancha Article, Fall 2020
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Recent Notes

Mitochondrial Replacement Therapy: Let the Science Decide

By  Sabrina K. Glavota Note, Spring 2021
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The Contribution of EU Law to the Regulation of Online Speech

By  Luc von Danwitz Note, Fall 2020
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Blog Posts

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... read more

Will NFTs Solve Existing Legal Problems or Will They Create New Ones?

The recently released Netflix documentary Made You Look, highlights one of the biggest fraud scandals in the high-end art world. The Knoedler Gallery in New York City was found to have sold over 80 million dollars’ worth of forged artwork over a roughly 10-year period. This spectacle underscored the issue of provenance in the high-end art world. Provenance is paperwork or documentation that verifies the authenticity of the artwork. Unfortunately, it is common for expensive artwork to lack provenance. The documentation might not have ever been created because the artist was obscure at the time the work was created, or it might have simply gone missing as a result of time or theft. American case law is littered with disputes arising from art purchasers being defrauded and purchasing fake works, as well as disputes over ownership of artwork that was stolen at some point. As society and art moves toward an increasingly digital world, a potential solution to this issue can be found in non-fungible tokens (NFTs). Recently, NFTs have begun to make headlines as the technology rises in popularity, not only in the art market, but also in other areas such as sports trading cards. This recent rise in popularity has seen NFTs sell at exorbitant prices. The latest examples include, the artist Beeple selling his digital artwork at Christie’s for over $69 million dollars and the New York Times selling a digital column for over $700 thousand dollars. NFTs function in a similar manner to cryptocurrency tokens in that they are built on a blockchain, the most popular one being Ethereum. Unlike cryptocurrencies such as Bitcoin, the... read more

From Third-Party Data to First-Party Data: Is FLoC right for the future?

Third-party cookies are often used by advertisers to track users’ activities across websites to show them relevant ads. While these cookies are beneficial for websites due to the advertising revenue they generate, these cookies are often criticized for the lack of privacy they provide users and the amount of data they collect. The data these cookies provide can be used to build a significant profile of an individual without their consent or knowledge. In addition, this data is often sold without the user’s explicit knowledge and consent to various companies for marketing or other purposes. Issues with third-party cookies afflict even reputable news organizations, who create privacy risks through their advertising on controversial articles while simultaneously reporting on privacy violations by government agencies such as the NSA. Fortunately, the European Union has required since 2019 that users must give their informed consent to non-essential cookies and users are assumed to have opted out unless they opt in. Websites must provide this consent option through banners displayed at the top or the bottom of a page which over time have grown to include additional disclosure information. A European court has determined that an already checked box is insufficient consent and the user must check the box themselves. Privacy laws similar to those passed in the EU have also been passed in Canada and Brazil. Unfortunately, these banner alerts are often not effective because users simply click past the alerts without reading the website’s cookie policy, which can be many pages long. In some cases, users view these alerts more as pop-ups and a nuisance rather than as informative or important,... read more

Big Data: Transitioning Away From the White Male Norm

As the capacity to generate and use digital information increases, the use of big data has permeated many industries. Its usage in medicine is poised to make major impacts on clinical practice. There are many benefits to the quality and efficiency of healthcare that can be achieved through the utilization of big health data. But there is a need for an understanding of how big data will affect populations that face disparities and inequalities in medicine – women and people of color. In medicine, the white male is generally the default. This default often affects how women and people of color are diagnosed and treated. Women may go undiagnosed and untreated due to having “exclusively female disease” or diseases that occur more frequently in women than men. Or they are misdiagnosed because their symptoms don’t manifest in the same way they do in men. For people of color, differences in race may affect the efficacy of drugs and medical devices. For both populations, they may ultimately have to be sicker or wait longer to qualify for the same treatment as a white man. Big data may help overcome these disparities through recognition of patterns in the treatment of women and people of color. Data generated during the course of care can be used to measure quality, develop hypotheses, and compare effectiveness of different treatments. Artificial intelligence (AI) technology provides the ability to take massive data sets and find patterns. These identified patterns may reveal gender and racial differences that affect diagnosis and treatment. Through the use of big data in precision medicine, for example, the identification of “biological variation... read more

California’s Prop 22: A Cautionary Tale

Even before COVID-19 hit last year, food delivery apps such as Caviar and Postmates had gained popularity as a convenient and relatively quick way to order food without the hassle of long lines or even needing to leave home. After the pandemic led to shelter-in-place orders and temporarily closed indoor dining in several states, there was an even greater demand for these food delivery services that provided a safe alternative to going out to eat or walking inside a restaurant to pick up a carry-out order. Additionally, even though these delivery apps are run by large corporations, this technology made it easier for diners to support local restaurants at a time when their patronage was even more impactful. According to MarketWatch, in the six months between April 2019 and September 2019, four of the major delivery app services – DoorDash, Uber, Grubhub, and Postmates – collectively brought in $2.5 billion in revenue. In the same time period the following year, which covered the early days of the pandemic, revenue for these four companies more than doubled to a combined $5.5 billion. However, as the popularity of these apps grew, so did the criticism and controversies surrounding their business practices. All eyes have been on California for the past few years with regard to the laws surrounding this relatively new type of employment and how to classify “gig” workers employed by rideshare and food delivery companies. Originally, companies like Uber and DoorDash were able to cut operating costs by hiring independent contractors as opposed to full-time employees. By doing so, these companies were able to deny their workers minimum wage,... read more

Political neutrality in content moderation compels private speech

Lots of online life today takes place on social media platforms. These platforms have become a place for communication of all types of ideas. Platforms establish community guidelines and moderate content for a variety of reasons. Congress saw a problem with platforms becoming liable for user content when they moderated “bad” content that was established in case law, so they passed section 230. This protects platforms from liability for content provided by users, while also allowing good faith moderation without revoking that protection. This protection has allowed platforms to create their own terms of service and define what type of content a user can post. If content violates the terms of use or is otherwise objectionable, platforms can remove it without fear of becoming liable as publishers of content on their site, instead of leaving all content untouched out of fear of incurring liability. Recently this section has come under fire. Specifically, because section 230 protects moderation that is not politically neutral on some of the biggest internet platforms. Several bills have been introduced to address this and mandate neutrality in moderation of content. The problem with this approach is that it will compel social media platforms to host content that they do not want to. Forcing a private company to do so violates their first amendment rights. The first amendment protects freedom of speech in the U.S. but section 230 provides enhanced protections. Congress conferred a benefit to internet platforms in the form of liability protections. These protections allow platforms to operate without fear of overwhelming lawsuits because of user posted content. It also allows platforms the freedom... read more

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