The Court of Appeals stated that a preliminary injunction could only have been granted to the Plaintiffs if they could demonstrate that Aereo infringed upon their public performance right under the Transmit Clause (17 U.S.C. § 101) of the 1976 Copyright Act. The Defendants relied on the Cablevision analysis of the Transmit Clause, which the Court used in its analysis as precedent for what it found to be a “similar factual context.”  In Cablevision, the question was whether the company’s newly-designed Remote Storage Digital Video Recorder infringed copyright holders’ public performance and reproduction rights. In Cablevision, it was held that “unless a transmission itself is public, the transmitter does not infringe the public performance right.”  Since each subscriber is assigned a unique antenna in the Aereo business model, the transmissions were found to be private performances and did not violate the Plaintiffs’ copyrights.

The Court of Appeals decision fully affirmed the District Court’s denial of all motions for a preliminary injunction against Aereo. In a press release on April 1, 2013, Aereo’s CEO and founder Chet Kanojia declared that the Court of Appeals decision confirmed “that Aereo’s technology falls squarely within the law and that’s a great thing for consumers who want more choice and flexibility in how, when and where they can watch television.”

Mr. Kanojia’s statement may be partially true – the Aereo decision does indeed appear to be a “great thing for consumers” – but other courts already disagree with the Second Circuit on whether or not the technology is “squarely within the law”. In the Ninth Circuit, in Fox Television Stations Inc. v. BarryDriller Content Systems PLC, Plaintiffs were granted a preliminary injunction because the court found a likelihood of success on the merits. The court in BarryDriller rejected the reasoning in Cablevision, stating that in any event its holding was at odds with Ninth Circuit precedent set in On Command Video Corp. v. Columbia Pictures Industries (which held that transmissions from a hotel system to private rooms were public performances).

Unsurprisingly, several of the Plaintiffs in the Aereo case have announced their intention to continue fighting for damages and to “protect [their] copyrights …” (CBS and Fox have even threatened to become pay-for-cable channels, possibly paving the way for the other networks). The networks may be expecting the law to move in the Ninth Circuit’s direction, further motivated by the fact that even Aereo’s likely natural allies – such as Cablevision itself – are speaking out against the startup, criticizing the company’s decision not to pay for licensing and retransmission consent. The fight may not be over, but for now, Aereo and its investors are confident enough in their case to expand the service to a total of at least 23 cities across the United States.

In a niche where consumers and even certain experts feel that cable companies are running a “monopoly”, or at the very least an oligopoly, business models providing more consumer choice do meet a growing market demand. Aereo provides its services at costs much lower than those charged by cable companies – at rates starting at $1/day or $8/month. The goal of its founder is to give consumers the choice to “unbundle” packages, paying only for what they want to see (such as news or movies), when they wish to see it. However, providing a service that makes consumers happy does not resolve questions of legality, and in an online world where the east and west coasts are drawn ever closer together, it seems that the differing opinions presented by the Second and Ninth circuits will have to be reconciled before this new frontier of television can attract more conservative settlers.

On February 19, the Supreme Court heard the oral argument in Bowman v. Monsanto on the application of patent exhaustion to patented self-replicating seeds.  Under the doctrine of patent exhaustion, “the initial authorized sale of a patented item terminates all of the patent owner’s rights in that item.”  Monsanto holds a patent on a gene which makes plants resistant to glyphosate herbicides.  Farmers use the herbicides on weeds and when using Monsanto’s seeds, has no effect on the plant.

Monsanto sells the herbicide resistant seeds to farmers and licenses the technology to seed producers.  As a condition of sale, all purchasers of the first generation seed must agree to limit the use of their seeds and the technology to a single season and cannot replant the second generation seeds.  This is because through the acts of nature, the herbicide resistant-trait is passed down to each successive generation of seeds.  However, Monsanto does allow farmers to sell the second-generation seeds (restriction free) to local grain elevators as animal feed or commodity seeds (which are purchased for various uses including planting).  Bowman purchased seeds from a local grain elevator and planted them as a second crop (the latter act in double cropping), later discovering that some of the commodity seeds he purchased, included herbicide-resistant seeds.  While Monsanto purchased first generation seeds from a licensed retailer for his first crop, he continued to use the seed offspring of his second crop supplemented with additional commodity seeds during subsequent years.

Monsanto sued Bowman for patent infringement of two of its patents.  Bowman argued that under the doctrine of patent exhaustion, Monsanto’s failure to restrict the authorized sale of second-generation seeds rendered its patents exhausted with respect to the use of that seed.  The district court disagreed, and the federal circuit affirmed, finding that Monsanto’s patents rights in the seeds were not exhausted once sold to a commodity dealer; and that the patent covered the technology of the original seed and all products of the original seeds.  In principle, the federal circuit basically held that patent exhaustion does not apply with respect to self-replicating technologies.  Bowman’s main argument is that the patented seeds were bought to be planted, and the expected and natural use of the product of such seeds is to be planted.  Any patent rights Monsanto had with regard to the sale of its seeds was exhausted with the sale of its second generation seeds without restriction to the grain elevators.  Monsanto claims its patent is on the trait (herbicide-resistance) and therefore seeds containing the trait are covered by the patent.

In a 2008 case involving Intel chips licensed from LG, the court held that once the chips were sold to computer manufacturers, LG’s rights were exhausted.  The case here is different as it involves not only a self-replicating invention, but an invention which self-replicates through mechanisms of nature.  Based on the oral argument, it seems the justices have taken the side of Monsanto.

However is it really the role of patent law to restrict the use of subsequent seed generations that were a known, natural byproduct of an authorized sale?  Or is this really an issue which would be better addressed by contract law.  Monsanto argues that a decision in favor of Bowman would “eviscerate patent protection.”  Couldn’t Monsanto structure its contracts differently or in a more effective matter in order to prevent farmers like Bowman from saving and using subsequent seed generations for planting?

Chief Justice John Roberts asked “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”

Since when does a patent on an innovative invention guarantee a successful marketable product or a return on your investment?  Why should the court create a special exception to a long-standing doctrine to simply accommodate Monsanto?  Monsanto knew what it was doing when it entered the seed business.  Seeds grow into plants, plants produce seeds.  One could reasonable argue that Monsanto should have taken account for the qualities and characteristics of its own “invention” when marketing its product.  Monsanto argues that Bowman’s use of progeny seed is equivalent to making illegal copies of an invention.  Bowman isn’t taking the seed and making an exact copy of the seed.  The seed makes a plant which makes more seeds; this is the nature of the seed, and the natural use and purpose of the seed.  Couldn’t Monsanto modify its gene in a way which would not allow for subsequent generations of seed to maintain the herbicide-resistant trait (effectively making “sterile” seeds)?

Regardless of the justices’ decision here, the holding can potentially raise a broad range of implications and questions.  What happens when Monsanto seeds blow onto another farm…does that farmer then become liable for infringement?  If a grain elevator unknowingly sells Monsanto seeds, is the grain elevator infringing?  Some argue that a decision for Monsanto may increase monopolies and make it harder for the consumer to bring anti-trust suits.  Others argue a decision for Bowman has a negative impact on innovation and research in the seed market, cause an increase in price on the sale of seeds, and have an impact on the protection of patented software (which also has the ability to self-replicate).  We hope to have the answer to some of these questions by June.

First Sale Doctrine: In Like a Lion, Out Like a Lamb

In Mid-March, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, Inc., ruling that a consumer’s rights to resell a purchased copyrighted work under the “First Sale Doctrine” preempts an author’s right to control the importation of his works. This decision was met with cheer from those seeking weaker copyright protection and the freer movement of content, including librarians. It didn’t take long, however, for the judiciary to limit the First Sale Doctrine along a new dimension.

Scaling back the First Sale Doctrine, Judge Richard Sullivan of the Southern District of New York handed down a summary judgment ruling determining that ReDigi, a service that facilitates the sale of previously-purchased digital music, could not escape liability via the First Sale Doctrine. Notwithstanding the results of this case, Apple and Amazon appear to be exploring mechanisms for the licensed resale of digital music.

A Bit More on Digital Copyright

Speaking of the limitations of digital copyright, Slate posted an indictment of the Digital Millenium Copyright Act from a researcher in digital security in consumer products. He notes the breadth of the law’s definition of “circumvention” of security measures and the narrowness of its exception for research.

Aereo

Proponents of broader exceptions under the DMCA did see one victory this week, however, as the Second Circuit affirmed the denial of an injunction against Aereo, a company which uses arrays of antennae to retransmit over-the-air television content over the internet to its subscribers. Much to the chagrin of television broadcasters, the court found that Aereo’s service was legally indistinguishable from the retransmission practice that was found protected in Cartoon Network, LP v. CSC Holdings, Inc.

Motion in Mobile: MetroPCS, Mohave Mergers and More

The FCC has approved T-Mobile’s plan to acquire discount carrier, MetroPCS, and the plan has been met with some favorable reviews from the perspective of the public interest, though investor advisory firms have panned the terms of the offer.

Verizon announced plans for 3G and 4G LTE buildout upon completion of its acquisition of the Arizona mobile carrier, Mohave.

AT&T has sought to stave off the increasing belief that mobile carriers are shifting towards becoming mere “dumb pipes.” AT&T’s development of innovative services was the subject of an executive’s talk at Venture Beat’s Mobile Summit this week.

The 1998 Digital Millennium Copyright Act (“DMCA”) criminalizes electronically decoupling a mobile phone from its contracted service provider, otherwise known as “unlocking”:“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

“Section 1201 also makes it illegal to circumvent the access controls on DVDs, e-books and video games to make bootlegged copies for sale on the street or swapping online. It also makes it illegal to manufacture or sell devices whose main purpose is to circumvent the digital locks on copyrighted material.”

The DMCA was enacted to protect, and thereby enable the continued development of, copyrighted and copyrightable advances. The regulations surrounding electronic access to digitally-stored and digitally-created media serve to protect intellectual property in a highly interconnected world from improper use and illegal secondary markets.

Instead it is requiring that we choose between our phones and the freedom to switch to our desired new cellular phone service providers.

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In October 2012, the Library of Congress decided against renewing the exception to the DMCA, which allowed for cell phones to be unlocked by persons other than the phone-issuing service provider.

As of January 26 of this year, newly purchased phones may not be legally unlocked by anyone other than the provider.

The texting, tweeting, pinning, and instagramming public did not take the news sitting down. They exercised their e-voice through an online “We The People” Petition to the White House.

The White House responded in a statement by David Edelman, White House Senior Advisor for Internet, Innovation, and Privacy:

Thank you for sharing your views on cell phone unlocking with us through your petition on our We the People platform. …

The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cell phones without risking criminal or other penalties. In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers’ needs. …

The Obama Administration would support a range of approaches to addressing this issue, including narrow legislative fixes in the telecommunications space that make it clear: neither criminal law nor technological locks should prevent consumers from switching carriers when they are no longer bound by a service agreement or other obligation.

We also believe the Federal Communications Commission (FCC), with its responsibility for promoting mobile competition and innovation, has an important role to play here. FCC Chairman Genachowski today voiced his concern about mobile phone unlocking, and to complement his efforts, NTIA will be formally engaging with the FCC as it addresses this urgent issue.

Finally, we would encourage mobile providers to consider what steps they as businesses can take to ensure that their customers can fully reap the benefits and features they expect when purchasing their devices.

We look forward to continuing to work with Congress, the wireless and mobile phone industries, and most importantly you — the everyday consumers who stand to benefit from this greater flexibility — to ensure our laws keep pace with changing technology, protect the economic competitiveness that has led to such innovation in this space, and offer consumers the flexibility and freedoms they deserve.

In a similarly staunch yet meaningless statement, the FCC’s Chairman, Julius Genachowski, stated: “From a communications policy perspective, this raises serious competition and innovation concerns, and for wireless consumers, it doesn’t pass the common-sense test… The FCC is examining this issue, looking into whether the agency, wireless providers or others should take action to preserve consumers’ ability to unlock their mobile phones.” To paraphrase his words, “Cell phones are important to the FCC, but it’s not really for our problem. Let the providers and consumers, i.e. the market, take action.” If only Adam Smith’s invisible hand had a cell phone we could call, text, or FaceTime.

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But seriously. This is a lot of ruckus about nothing. The FCC’s response was lackluster because that is all that was necessary. Market forces take care of pricing and demand concerns.

As hard as it is to believe, there was a time when the service, and not the phone itself, was of supreme importance. Originally, home telephones were owned by Bell Telephone Company and leased to the lucky (and affluent) homeowners who could afford them. Cellular phones were clunky and expensive. Phones became cheaper and somewhat commoditized. Then, to allow service providers and hardware manufacturers to differentiate themselves, glitzier phones were made. Then, phones with data. But, by this point, cellular phones became a staple, but computing handheld devices were quite expensive. To incentivize purchases, service providers discounted the manufacturers’ price and the iPhone generation was born. Now consumers want to own the phones – which they purchased at a discount because of the attached strings – outright.

Presidential intervention in this war for “freedom to get free stuff” is ridiculous and potentially counterproductive. If you would like to own your phone – or anything else for that matter – outright, then buy it outright.

Edelman wrote, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.” But that is precisely the issue. Purchasers of heavily discounted cellular phones are bound by another obligation. Unlocked phones are available directly from both the manufacturers and service providers at the retail price. By purchasing them through a contract plan, consumers agree to be bound to that provider, although both Verizon Wireless and AT&T Wireless have expressed their willingness to unlock phones and discharge the consumers from this “other obligation” at the end of the contract term.

The present situation is materially different from one in which unlocked phones could not be obtained and where all phones were necessarily bound to one provider. Consumers may choose to contract (or not) with any service provider they so choose, including discount providers which incentivize or require the consumer to bring his or her own device. Consumers cannot have their cake and eat it too, getting both the benefit of discounted phones provided by larger service providers to incentivize consumers to choose their service and the benefit of discounted service providers.

I cannot imagine what the People will want next.

Disclaimer: The opinions espoused are for the purposes of argument only. The author does not endorse any statements texted, tweeted, posted, or blogged in this article.

Harvard faculty reacted angrily to Harvard’s search of Resident Deans’ emails. (Resident Deans are administrators who oversee the affairs of Harvard’s residential dorms.) Harvard conducted the search, without notice to the deans whose accounts were searched, in order to determine how confidential information regarding last year’s cheating scandal leaked to the press. Through the search, Harvard determined that the memo was forwarded by one Resident Dean to two students.

Harvard faculty criticized the search on the ground that it violated Harvard policy, which guaranteed faculty members that their Harvard email accounts would not be searched except in “extraordinary circumstances” and only then with prior notice. (See, for example, computer science professor Michael Mitzenmacher’s post, which describes Harvard’s email policy.) Harvard countered that the policy was not violated because Resident Deans were assigned two email accounts – a personal account and an account to use in connection with their responsibilities as Resident Deans, and only the Resident Dean accounts were searched. Additionally, the email searches accessed only the subject lines and not the other content of the emails.

Much of the debate over the search has focused on whether Harvard violated its own email policies and guarantees to its faculty. But the story brings up a number of interesting what-ifs that are interesting to contemplate. If Harvard had been a public institution instead of a private university, the search might have violated the Fourth Amendment. (See City of Ontario v. Quon.) If Harvard had stored its emails on a third-party service rather than its own server, accessing the communications might have violated the Stored Communications Act. Even if Harvard’s IT department offered email accounts to the public rather than only to Harvard employees, the IT department may have been required to keep the content of the emails confidential. Another interesting aspect of the case is that Harvard defended its actions in part by saying it only accessed the subject lines of emails and not the “contents” of the emails – but the DOJ considers subject lines “content.” (See page 123 of the DOJ manual on obtaining electronic evidence in criminal investigations.)

Report on China Cyberattacks Renews Discussion on Cyberespionage Law

In other news, the security group Mandiant released a report that traced the majority of the cyberattacks originating inside China and targeted at Americans to a neighborhood in Shanghai where a unit of the People’s Liberation Army is located. The attacks originating in the neighborhood, tied circumstantially to P.L.A. Unit 61398, included intrusions on American government, infrastructure, and companies. One of the most surprising items in the report was that the P.L.A. allegedly deployed its hackers to give Chinese beverage company Huiyuan Juice Group an advantage in negotiations with Coca-Cola, by accessing Coca-Cola’s servers to steal confidential company files. According to the report, five legal services organizations were also targeted. The information renewed the discussion on creating new international law on cyberespionage.

Higher Standard for Search of Computers at Border in Ninth Circuit

The border-search exception, a doctrine allowing Border Patrol agents to conduct routine searches of closed containers at an international border or airport, was qualified by a Ninth Circuit decision last Friday requiring that agents have “reasonable suspicion” of wrongdoing before searching electronic devices. The “reasonable suspicion” standard is lower than the “probable cause” standard for a warrant, but is a higher standard than not requiring any suspicion at all. The decision was limited to “comprehensive searches,” leaving undecided the question of what constitutes a comprehensive search. But for now, travelers leaving or entering the country from a point within the Ninth Circuit can be slightly more assured of the privacy of their computer files.

Digital Rights Management Feature Makes SimCity Fans Angry

The newest version of SimCity, SimCity 2013, was released on March 5, only to be pulled on Amazon a week later. The cause? Complaints of SimCity fans, many of whom probably started their connection with the franchise before they had a home Internet connection. To prevent pirating and protect digital rights, SimCity used a common technique – requiring a persistent Internet connection during gameplay to verify that the copy was legally obtained. But the plan turned out poorly for many SimCity players, who had trouble connecting to SimCity’s servers and in some cases lost games when their connections failed. Although SimCity’s manufacturer, Electronic Arts, says it has by now addressed most of the problems, the case illustrates one of the pitfalls of a technological safeguards for digital rights management. This could provide fodder for either those who argue that EA should try less hard to prevent piracy or those who believe that government should step in with harsher or more-enforced penalties to dissuade would-be pirates in the absence of hardwired safeguards.

Under the Digital Millennium Copyright Act (DMCA), Congress set up a mechanism to allow copyright holders to enforce penalties against individuals who bypass “copyright protection systems” (i.e. the digital locks that copyright holders use to restrict access or manipulation to copyrighted content). DMCA § 1201 grants the Library of Congress the ability to grant exemptions for certain actions bypassing copyright protection systems if the Librarian of Congress believed that the system adversely affected the ability of users of the copyrighted work to make “non-infringing uses” of the work, for example, creating digital copies of computer games on obsolete hardware. Last October, the Library of Congress issued a final ruling that would decline to extend the exemption for unlocked smartphones after a 90-day transitional period. While there is some doubt as to whether unlocking smartphones is covered under the DMCA, under the current ruling, smartphones can now only be unlocked by the owner of the phone, who, in most cases, is the carrier, not the consumer. Consumers, the White House, and the Federal Communications Commission all came out against the ruling with worries about competition and consumer flexibility.

Why do carriers love it and consumers hate it?

Carriers see the exclusive power to unlock smartphones as a way to protect their initial investment of selling consumers smartphones at a deep discount. Prior to the final ruling, if a consumer was dissatisfied with her service, she could pay her early termination fee, unlock her phone and move to another carrier. Now, if the same consumer wants to walk she is welcome to, but she’ll have to leave her phone behind. For manufacturers, the strategy of partnering with a single carrier for high profile smartphone release is more feasible under the new ruling. While the legality of such practices has been challenged on antitrust grounds, a ban on unauthorized unlocking would make exclusive releases even more profitable for carriers, meaning more profit for manufacturers as well.

On the other hand, consumers fear that a ban on unlocking cellphones will reduce consumer choice, hurt international travelers and lower the resale value of devices paid for in full. For international travelers, the option to unlock the smartphone and purchase a short-term contract with a local carrier is no longer readily available. Now travelers must choose to either pay the high roaming charges levied by their current carrier or purchase an unlocked phone from the manufacturer at a much higher price than what is offered by carriers. The resale and gift markets would be negatively affected as well, since consumers in those markets will not have to choose between getting a locked smartphone with a potentially unsatisfactory carrier, or paying significantly more to get an unlocked smartphone.

What should you do?

For the majority of us, the answer is nothing. If you’re satisfied with your service and you’re still on contract, unlocking your smartphone won’t yield any benefits but it could yield complications. If you’re done with your contract but want to keep your device, many carriers will unlock your phone for free and let you decide whether you want to move to another carrier. If you’re looking to jump ship early, or unlock your phone for another reason, you may be in for a stern warning from your service provider with the force of law behind it (a fine up to $500,000 and up to 5 years in prison), but none of the major carriers have announced what their actual enforcement policy will be. James Baldinger, a lawyer for some of the wireless carriers, has said that “[t]he carriers’ position has always been, it’s never been about individual consumers. Individual consumers have never been the target of any of the lawsuits or enforcement proceedings or investigations.” So while it might be harder to find someone to unlock your device, its unlikely that Verizon will come knocking at your door if you do.

Background of Cerebral Palsy

Cerebral palsy is a neurological condition characterized by abnormal movements, muscle tone, or posture.  It is caused by a brain injury or abnormal brain development, most typically during pregnancy, but some cases arise in infancy or very early childhood.  The underlying injury is permanent but doesn’t worsen over time (non-progressive), so the person’s symptoms are relatively the same throughout their life.  Common symptoms include: poor muscle coordination during voluntary movements, such as reaching for things; abnormally stiff or floppy muscle tone; spasticity, which means exaggerated reflexes or too tight muscles; and an abnormal gait, such as dragging one foot, walking on toes, or a “scissored” gait.  Many people with cerebral palsy also suffer from other conditions related to developmental brain abnormalities, such as excessive drooling, difficulty eating and swallowing, seizures, and intellectual disabilities.

There are a variety of treatments for cerebral palsy, but there is no cure. Most treatments are “disability management.” The available treatments typically aim to minimize the symptoms of cerebral palsy and improve the person’s functional abilities. This includes medication, physical and occupational therapy, surgery, and speech therapy.  Assistive devices such as wheelchairs, walkers, and computers with attached voice synthesizers play a critical role in treatment of cerebral palsy.

Robotic Limbs and the Americans with Disabilities Act

Hugh Herr—the same roboticist mentioned above—suggested at a recent conference organized by the Economist that we may soon see people opting to amputate limbs in order to replace them with higher functioning robotic ones. People with cerebral palsy are one population that may be interested in taking such a drastic step.  Some people with cerebral palsy experience symptoms throughout their entire body, while others’ muscular coordination disabilities affect only one side of their body or are isolated in one limb. Those individuals with isolated symptoms could replace the affected limb.  If Mr. Herr’s prediction is taken to the extreme, individuals who experience spastic movements throughout their entire body may be able to replace all of the affected nerves and enjoy smooth coordinated movements.

If people with cerebral palsy opt to replace limbs or more, will their disability be eliminated in the eyes of the law? The answer turns on how disability is defined.  As the law stands now, to qualify for protection under the Americans with Disabilities Act (ADA), a person must meet the statute’s definition of an individual with a disability: “a person who has a physical or mental impairment that substantially limits one or more major life activities, … a history … of such an impairment, or a person who is perceived … as having such an impairment.” The ADA is a civil rights law that aims to protect people with disabilities from discrimination and to ensure that they have access to public services and benefits. Individuals’ status as “disabled” under the ADA is determined on a case-by-case basis.  Being labeled “disabled” comes with complex social and legal consequences and benefits. Accordingly, it is not clear whether those people whose disabilities have been ‘eliminated’ would want to continue to be considered disabled. Further, whether people should be permitted to retain their “disabled” status under the ADA after a functional “elimination” of their disability is a legal, political, and ethical conundrum. Two elements of the ADA’s definition appear to preserve those individuals’ option to retain their “disabled” label under the ADA—the “history” and “percieved … as having” criteria.  Accordingly, the ADA’s current definition decreases the likelihood that Mr. Herr’s prediction is correct. .

The “history” portion of this broad definition seemingly permits a person who has adopted a robotic limb to continue to be considered disabled. Thus, as long as the definition includes “history,” Mr. Herr’s prediction that disabilities will be largely eliminated cannot come true under the ADA.  This suggests that it may be time to rework the ADA’s definition, a difficult task. At what point would it be proper to consider a person no longer disabled, despite their history? One lawyer-bioethicist argues that existing mobility assistive devices, such as wheelchairs, should already be treated as part of the owner’s body under the law in the event that a third party harms it.  But should that argument work in reverse? Once a device that permits its user to function at the same level as people who don’t have histories of disability can be fairly considered part of the body, should that user no longer be considered disabled? How integrated into the body would that device need to be? As assistive technologies become more lifelike and commonplace, it seems that the definition should be changed to make way for a future in which disabilities can be considered largely eliminated.

The “perceived… as having” portion of the definition poses an additional barrier to actualizing Mr. Herr’s prediction. For example, if a person suffers from multiple symptoms or disabilities (like most people with cerebral palsy) how many of their symptoms would need to be ‘cured’ by robotics for that person to no longer be considered disabled? What would happen if a person with cerebral palsy no longer had spastic muscle movements in their arms thanks to robotics, but continued to suffer from the characteristic tongue thrusting or facial symptoms such that others could identify them as someone who suffers from cerebral palsy.  However, given the powerful effect of stigma, whether it would be appropriate to remove that portion of the definition is loaded issue that regulators must approach extremely cautiously.

The definition of “Disability” and Legal Autonomy

A person who is considered disabled from a legal autonomy perspective is someone who lacks legal capacity to perform certain acts.  For example, a person with a communication disability or an intellectual disability as a result of cerebral palsy may not be able to perform the legal acts of communicating consent or making decisions about finances.  Such persons are often appointed guardians or other advocates who assume responsibility for their legal decision-making.  However, as assistive communication devices are improved and become more popular, fewer people with cerebral palsy will require legal proxies or those proxies will play a smaller role.  Helpfully, the Model Rules for Professional Conduct have already established a good precedent for accommodating those changes. The rule for assisting clients with diminished mental capacity requires that a lawyer try to involve the client as much as possible, and to frequently reassess the client’s capacity to make independent decisions.

So, Mr. Herr may be right with respect to disability in the legal autonomy context. For people with cerebral palsy who are disabled because of physical communication impairments, advancements in and increased popularity of devices like the ECO2, a form of “augmentative and alternative communication” (AAC) that creates verbal speech from the user’s head movements, may very well eliminate their disability. Brain-computer interfaces are an even more advanced form of the same idea. Further, people with cerebral palsy who have less legal autonomy because of an intellectual disability (approximately 40% of people with cerebral palsy suffer intellectual disabilities) may enjoy greater independence thanks to technology that promotes early child language development.

Conclusions

New developments in assistive technology will transform the lives of hundreds thousands of people with cerebral palsy. These inventions are changing the way people with disabilities live, as well as how our society thinks about disabilities.  The European Commission (EC) has recognized the need for European law to adapt.  To that end, the EC is funding RoboLaw, a large-scale research project to investigate the interplay between European law and emerging robotic technologies. This was a brief and narrow assessment, but it revealed that whether technology can successfully eliminate disabilities depends in part on the definition of disability in U.S. legal system.  The U.S. should follow Europe’s lead and begin investigating the best way to restructure its laws as well.

The F.C.C. announced that it supports unlocking of cellphones for consumers not bound by a service agreement. Under a ruling from last fall by the Copyright Office of the Library of Congress, unlocking cellphones would be in violation of the Digital Millennium Copyright Act’s Circumvention of Technological Protection Measures. R. David Edleman, an Obama administration adviser on Internet and privacy issues, said that the F.C.C.’s position was “common sense [and] crucial for protecting consumer choices…. All consumers deserve that flexibility [of changing service providers].” The Library of Congress currently stands by its position but agrees that the policy may be worth another look.

Google Reveals FBI’s Demands for Users’ Data

Google has published a “range” of times it received National Security Letters (NSL) for account information on users without warrants. The report says that Google received between 0 and 999 NSLs last year for information on between 1,000 and 1,999 accounts. Although Google was attempting to provide transparency on the use of user data, concerns raised by the FBI, Justice Department and other agencies restricted the tech titan from releasing exact numbers. Additionally, Google has stated that it does not believe that the FBI can use the NSLs to obtain “Gmail content, search queries, YouTube videos or user IP addresses.” Instead, it only believes that “the name, address, length of service, and local and long distance toll billing records” are available to Federal investigators.

China Growing Weary of Android Platform’s Dominance

China’s Ministry of Industry and Information Technology warned that the Chinese smartphone market was dependent on Google’s Android platform. Android controls about 86% of the Chinese smartphone market, and 70% worldwide. The risk, the Chinese government reasoned, is that even though Android is “open source” it still runs the risks of paying royalties for patent licensing or litigation. To counteract this market dominance, the white paper calls for emerging Chinese tech companies, like Huawei, ZTE and Baidu, to develop their own proprietary platform. Whether Chinese manufacturers will be able to fight in the battle of smartphone platforms remains to be seen, with the market already saturated by Apple and Google.

Europe to Fine Microsoft For Failure To Comply With Settlement Agreement

The European Union is expected to impose a large fine on Microsoft for failure to comply with a 2009 antitrust settlement that required Microsoft to give a choice of Web browsers with their Windows software. Under the 2009 settlement, Microsoft was to provide a “browser ballot” with download links to other browsers, including Safari, Chrome, Firefox and Opera. Microsoft ultimately did not comply with the settlement, but apologized, stating that the failure was a “technical error.” While the amount of the fine will be revealed on Wednesday, under E.U. regulations, it can assess fines of up to $7.4 billion for this violation. This isn’t the first time the E.U. has gone after U.S. tech companies; Intel is still appealing a $1.3 billion dollar fine that was assessed last year.

Congressmen Peter DeFazio (D-OR) and Jason Chaffetz (R-UT) have introduced the Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act, an act that attempts to fight back against patent trolls. The bill would force plaintiffs to pay for the defendant’s attorney fees and other legal costs if their patent lawsuit fails in court.  Plaintiffs would be exempt if they invented the patent themselves or could show that they had made a substantial investment in trying to bring the patent to market.  The SHIELD Act has the support of various organizations, who view patent trolls as a threat to innovation, a threat that adds no economic value to the country.  On the other hand, some warn that any legislation on patent trolls would be a “gift to infringers”

Nintendo Sued for Patent Infringement Over 3DS

The gaming giant Nintendo is being sued for patent infringement for its 3DS handheld gaming system.  Sejiro Tomita, a former SONY employee, claims that Nintendo used technology that he developed and patented relating to the ability to provide 3-D images without the use of glasses.  Opening arguments were heard on Monday in U.S. District Court in Manhattan, with Tomita’s legal team arguing that Nintendo used Tomita’s technology to develop the 3DS.  Tomita claims that he showed his technology in a 2003 meeting with seven Nintento officials, four of which went on to be key developers for the 3DS.  Nintendo claims that the 3DS doesn’t use key aspects of Tomita’s patent.  It claims that the meeting with Tomita was one of hundreds, including one with Sharp Corp., the manufacturer of the 3DS’s screen.  Tomita is seeking $9.80 for every 3DS sold, which, given the nearly 29 million units already sold, amounts to approximately $280 million in damages.  This is not the first time that Nintendo has faced this kind of lawsuit.  Back in 2006, similar claims were brought regarding Nintendo’s “wii-mote.”

LegalTech New York

This week at LegalTech New York the FBI warned that law firms are increasingly becoming the target of hackers.  Mary Galligan, special agent in charge of cyber and special operations, went on to say that cyberintrusions are more dangerous and sophisticated than just a few years ago.  With the amount of documents sent by law firms on a daily basis, they are an easy target for skilled hackers.  Galligan gave several examples of what’s being done.  She said having up-to-date network diagrams, physical access logs, and legal notices upon logging in are all helpful methods to prevent them, adding that Firewalls, intrusion detection systems, remote access servers, virtual private networks, and web servers all also should be logged.  Derrick Donnelly, CTO of mobile forensics company BlackBag Technologies Inc., mentioned that they are seeing increased security on smartphones, citing the new iOS operating system on iPhones as an example. Leaders of firms’ security operations maintain that the best form of law firm security is still risk awareness training. Not only is this a safety issue, but are required under ABA Rules of Professional Responsibility 1.1 and 1.6.

Samsung and Apple: The Battle Continues

Samsung’s attempt to block sales of the iPhone and iPad in Japan failed last week.  The judge ruled that the Korean firm didn’t negotiate in good faith with Apple before bringing the case to court.  The judge also ruled that Samsung did not have a right to seek damages from Apple.  The case in Japan is just one of many between the world’s two largest makers of smartphones.  Samsung had won a previous case in Japanese court in which Apple alleged Samsung had infringed its patents.  Samsung also prevailed in a British case, with the judge finding that Apple had to reissue its apology to Samsung because in addition to stating that Samsung had not infringed any patents, the apology included quotes from British consumers that Samsung tablets were “not as cool” as apples.

There has been significant media attention[1] in recent years to food safety concerns stemming from the conditions at the large farms known as concentrated animal feeding operations (CAFOs), which have supplied the majority of the country’s livestock for consumption since the 1970s. News of outbreaks detrimental to human health such as salmonella and mad cow disease have caused American consumers to start asking more questions about where their food comes from and what regulations are imposed to protect us. The agriculture industry has responded, not with policy changes or greater transparency, but with marketing schemes fronting a concerted effort to shield the operations from public scrutiny. Awareness of health concerns and demand for organic products has made health labels a profitable choice for producers regardless of their actual practices. Eggs provide a good example of the marketing efforts that perpetuate misconceptions about such practices, about whether USDA standards have been imposed, and about the extent of those standards.

Claims stamped on egg cartons are regulated to varying degrees by USDA. The basic egg grades are strictly regulated by USDA, but have little to do with the nutritional or health qualities of the eggs. Almost all eggs sold in grocery stores are labeled “Grade A,” which is actually a signifier for the thickness of the shell and viscosity of the egg whites- Grade B eggs are more commonly used in processed foods.[2] The USDA National Organic Program (NOP) sets standards that farms and handling operations must meet to gain certification and use the USDA Organic seal. These standards are centered on the absence of certain disallowed production methods such as genetic engineering, and use of synthetic chemicals, antibiotics and hormones.  Eggs bearing the USDA seal are audited for compliance once per year by a third-party certifying agent (7 C.F.R. § 205.403). Though NOP regulations prescribe seemingly high standards for livestock living conditions intended to prevent the spread of disease (7 C.F.R. § 205), in practice, the Code leaves large loopholes through which facilities are able to meet the standard for certification without significantly improving conditions under which animals are raised. For example, livestock are required to have “year-round access . . . to the outdoors” (7 C.F.R. § 205.239), but the density of animals indoors, the meaning of “access,” the amount of “access” provided per day, and the quality of the “outdoors” into which the animals are released are all left undefined. As such, there are operations that meet the USDA organic standard that house large numbers of birds in warehouses such that there is little room for movement or ability to actually utilize points of outdoor access, and the outdoor space itself is just a concrete slab.

The labels “free-range” and “cage-free” similarly do not signify actual outdoor access. As opposed to living in battery cages with space the size of a sheet of paper, hens that are raised cage-free have more room for movement and nesting, but still live in large flocks that do not ever see the outdoors. Caging standards, as well as other industry guidelines, are set by the leading trade organization, United Egg Producers, which promotes only self-imposed regulation “based on science,” a reference to the group’s opposition to the use of animal welfare as a justification for standard-setting, and rejection of the branch of science that links inhumane conditions to human health concerns. While “free-range” is a USDA-defined term, neither “free-range” nor “cage-free” claims are subject to third-party audits.

The minimal standards for organic operations and lack of oversight for non-organic operations serve as the backdrop for the intensifying public scrutiny of CAFOs. The farm lobby has responded to animal welfare groups’ attempts to publicize CAFO practices with so-called “ag-gag” legislation, which suppress whistleblower attempts by making it a misdemeanor to enter the premises of or apply for a job at an animal facility with the intention of using a recording device.[3] These laws have been proposed in ten states, and have already passed in Iowa, Missouri, Montana, North Dakota, and most recently Utah.

Though animal welfare groups are leading the battle for public awareness and now making the constitutional challenges to recently passed legislation, they are bolstered by support within the science, public health, and environmental communities. Studies of the increasing prevalence of antibiotic resistance in food borne pathogens like salmonella link the health of livestock to human health. Likewise, environmental studies have shown contamination of drinking water by pathogens carried via animal waste that has leaked into surface water from CAFOs, which generate 575 billion pounds of animal manure annually. As the scientific evidence and environmental impacts of current agricultural practices continue to mount, the jury is still out on where the good eggs are in our agriculture industry, and whether USDA will tighten the yoke on farming practices.