Monday, October 25, 2010
Dear Anita, are you there? It’s me, Ginny.
When you think of Supreme Court Justice Clarence Thomas, the following topics come to mind: his failure to ask a question during oral argument since 2006, his conservative judicial philosophy, and Anita Hill.
In 1981, Hill was an attorney-adviser to Thomas at the U.S. Department of Education and then followed him to his position at the Equal Employment Opportunity Commission. Ten years later, she was called to testify at his Supreme Court Confirmation Hearing for her allegations that Thomas made sexually provocative statements toward her during their employment together. Thomas denied the allegations and stated that the confirmation process had become a “circus” resulting in “high-tech lynching of uppity blacks”. See Hearing Transcript.
Now almost twenty –years later, the N.Y. Times reports that Ginny, Thomas’ wife, asked Hill to apologize and provide a full explanation for her actions. Hill insists that she finds Ginny’s extension of an olive branch “offensive” and that she will not apologize for something that she believes is true. It is unclear as to what is more shocking – Ginny’s attempt to regain closure on a two-decade old issue or her method of communication, voicemail.
These two women have never met; however, they have now engaged in an indirect relationship using various methods of communication. In her book, Speaking Truth to Power, Hill noted that Ginny’s accusation of Hill’s interest in Justice Thomas stemmed from Ginny’s unreasonable belief that just because she found her husband to be attractive, other women must as well. Ginny chose to utilize a thirty-second clip on a voicemail to address her concerns. Even for the lovers of brevity, this method of technology is a bit disconcerting. Specifically, the timing and the choice of voice-recognition leads to speculation that perhaps Ginny’s attempt was not an olive branch, but was a way to reignite interest in her life - at a time when she just launched her new non-profit group, Liberty Central. On the other hand, it can be argued that Anita is not an innocent bystander since she reached out to the press by playing the voicemail for N.Y. Times.
Regardless of the semantics of their relationship, it’s even more important to note that despite the geographical difference between these two women, technology reminds us that even Supreme Court Justices are dealing with the age-old story of the wife versus the other women.
Friday, October 22, 2010
Gasoline Now with 50% More Corny Goodness
On October 14, the Environmental Protection Agency issued a waiver to allow for the sale of ethanol gasoline containing 15% ethanol (E15) with a limitation on cars 2007 or newer. As obligated under section 211 of the Clean Air Act (CAA), the EPA granted the waiver for gasoline that is not “substantially similar” to fuel certified under the CAA after conducting extensive studies. This alters the previous maximum ethanol allowance in the United States of 10%. The limitation is based on testing which shows that E15 will not have a detrimental effect on the emissions controls used in cars and light trucks made in 2007 or later. Not covered in the waiver are vehicles with a model year before 2007 and other small engines such as motorcycles, lawn mowers, and snow blowers. With the waiver comes the additional requirement that pumps dispensing E15 fuel post a notice on the pump that only cars and light trucks 2007 or later are permitted to use the fuel.
The waiver was praised by farmers and environmental groups as a step in the right direction toward weaning the United States off of foreign produced fossil fuels. As corn is subsidized by the United States government, a majority of the corn that would go towards the 50% increase in allowable ethanol would be homegrown. However the decision comes with guarded optimism as proponents are disappointed by the limited scope of E15’s approval, and wish that the application be extended to pre-2007 models of automobiles. This comes as a result of proponents of ethanol such as farmers and alternative energy proponents wanting to compete with gasoline’s dominance in the American fuel market.
Although being praised by some environmentalist, the issue presents certain dangers for the environment. An ad sponsored by the Environmental Working Group and Natural Resources Defense Council shows that hot burning E15 can erode catalytic converters on certain engines. The catalytic converter is the little contraption on the back of small engines that is responsible for reducing the emission from a vehicle; if this contraption is corroded the emissions can be more harmful for the environment. The ad also expresses concerns over fragile farmland being repeatedly plowed to produce corn, and the potential cutting down of forests to clear more land for corn production.
Despite the immediate impact of benefitting corn farmers across the country, the EPA’s decision does not make me so optimistic that the allowance will shine so favorably for farmers in the long term. Brazil, currently the world’s leading producer of sugar cane based ethanol, issued a statement indicating its desires to enter into the American market with its sugarcane ethanol following the allowance of E15 by the EPA. In a statement shortly after the EPA’s decision, Joel Velasco, the president of Brazil’s Sugarcane Industry Association (UNITA) issued a statement urging both the Brazilian and American government for a move toward free trade. It desired for Brazil to make its recent postponement on tariffs for biofuel permanent, and at the same time for Congress to eliminate the very government subsidies it offers to corn farmers to produce corn. As the carbon emission from sugarcane based ethanol is less than that of corn based ethanol, and corn based ethanol requires large quantities of developed land for farming, the support that corn farmers received from environmental groups wishing to increase renewable energy may wane in favor of a free trade relationship with Brazil.
The EPA’s decision most likely will not destroy vehicles’ exhaust systems, nor will forests and trees be leveled due to this allowance. However, there may be cause for concern for those corn farmers that expect a booming corn demand to come from this waiver. Brazil’s sugarcane industry is a powerful one, and the 2007 meeting between then President Bush and Brazilian President Luiz Inácio Lula da Silva concerning the expansion of biofuels may prove to have laid the necessary groundwork for Brazillian sugar cane ethanol expansion into the United States, despite the new Obama Administration. Sugarcane presents a cheaper and more efficient source of ethanol than corn. The international economic effects of the spreading allowances for green technology present unknown horizons for the American agriculture industry, and one can only wonder whether the EPA sufficiently weighed this consideration in their decision.
Thursday, October 21, 2010
Life’s a Jungle Out There for ‘Dora the Explorer’
Dora the Explorer is one unhappy camper. Caitlin Sanchez, the former voice of “Dora,” who was fired after her voice changed, has sued Nickelodeon through her parents, as she is a minor and her parents are the guardians and also entered into the contract. The claim against Nickelodeon asserts the company forced Sanchez to enter an unconscionable deal which “swindled” her out of tens of millions of dollars while also exploiting her. It is still in the early stages of development, but Sanchez claims she is owed these “millions” through merchandising revenue, residuals, and marketing that she was never paid for. She is claiming when she originally entered the contract, Nickelodeon forced her and her family to sign within twenty minutes or the part of Dora would be given to someone else. Further, she is arguing that the contract contained many unfair and vague provisions, forced her to participate in activities not prescribed by the contract, and did not pay or only paid minimally for these activities, revenue and hours of recording sessions.
Nickelodeon, of course, is saying that the claim is baseless and that she was compensated fully for her services. Sanchez, according to Nickelodeon and Viacom, made over $300,000 while working as Dora and had a well-negotiated contract and lived a lavish lifestyle while being employed with them. The network claims the contract contained an option to renew could, allowing them terminate her. Sanchez avers that she was fired because she tried to renegotiate a better deal, which she claims Nickelodeon called unfair.
After the complaint was issued, Sanchez’ lawyer recently tried setting a deadline for Nickelodeon to offer a reasonable settlement offer, claiming that if they did not, Sanchez would grant media interviews and damning evidence towards the network. Nickelodeon didn’t bite, stating that there is nothing to hide and Sanchez is being used as a pawn to extort the company and further a groundless claim initiated by her parents.
Current laws protecting child performers are still emerging. They stem from the ‘Coogan Law’ where a young child actor saw his earnings diminish, as under law his wages went solely to his parents. Massachusetts has one of the most thorough child performer statutes, yet there are still holes, which may benefit companies and parents. These laws have been enacted to protect a child’s assets as well as protect companies from disaffirmance.
Under basic contract law, a minor cannot lawfully enter into a contract because of the law of nonage. Most companies enter the contract with the adult or guardian to shield them from disaffirmance. Disaffirmance allows a minor, if timely, to void any contract made because the contract was voidable due to the person’s status as a minor. This however, can lead to one-sided situations, as in Sanchez’, along with the children’s parents and guardians taking advantage, both monetarily and physically, of the child performer.
Child performer statutes allow courts to affirm contracts made with minors to protect their income until they reach a certain age, provide for unreasonable and time consuming contracts and also shields companies from disaffirmance. Problems arise, though, because in most states that have enacted these laws, affirmance is only voluntary and usually initiated by the company. As is the case here, the contract was entered into under New York law, therefore it was not required to be affirmed as it also included the parents as co-signers and consenting parties to the deal. This gives the parents the ability to continue to profit off their children, companies to offer one-sided, take-it-or-leave it deals, and children ultimately left with minimal say and little remedy.
The sad reality is that it is a buyer’s market when it comes to these child actors due to the lack of openings and changing landscape. It is often the parent who pushes these children and they are unwary of repercussions of entering into these deals without lawyer review, as they are usually just thinking about the dollar signs. While this may or may not be the case here, absent uniform regulations or state laws, companies can still take advantage of child actors and parents, and parents can still take advantage of their children’s talent. Or, as Nickelodeon claims, former employees or parents of these employees can possibly exploit them for personal financial gain. However, sometimes these suits may be for the better when the child’s best interests, professionally and pecuniary, are in mind.
Wednesday, October 20, 2010
Out With the Oil, In With the Green
Sometimes change in technology is facilitated by wise innovation, diligent research, or accidental discoveries. And other times it is forced by an oil leak off the Gulf of Mexico spilling 60,000 barrels of oil a day into the ocean. More than ever, our country is facing the harsh reality of the worlds’ severe dependence on a limited energy source. On June 15, 2010, in his first televised address from the Oval Office, President Barack Obama demanded advancements in clean energy sources and technology, which would require refocusing innovation and creativity towards a solar-based way of life. “The tragedy unfolding on our coast is the most painful and powerful reminder yet that the time to embrace a clean energy future is now,” said President Obama. “Now is the moment for this generation to embark on a national mission to unleash America’s innovation and seize control of our own destiny.”
Before the oil spill, the United States Patent and Trademark Office (USPTO) decided to execute a green technology pilot program on December 7, 2009, intended to expedite the patent application and examination process involving green technology inventions. If this program is effective, this effort could prove beneficial in facilitating the President’s determination to wean America off its dependency on oil and introduce the country to a clean energy source.
Why All the Animosity Towards Cell Phones?
On July 2, 2010 Massachusetts Governor Deval Patrick signed into law a bill banning texting while driving. The bill in its original House of Representatives version also banned hand-held cell phones in the car while driving, in addition to the ban on texting. However, this was narrowly defeated by the Massachusetts Senate in an 18-16 vote. Regardless, the new law which went into effect on September 30th, marks Massachusetts’ attempt to keep up with the growing trend of states banning cell phones in cars.
As it currently stands, eight states; California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon, and Washington along with Washington D.C. and the Virgin Islands ; prohibit all drivers from using hand held cell phones while driving. While this is certainly not a majority, it appears to be a trend. Currently, twenty-eight states and Washington D.C. ban novice drivers from using cell phones while driving; eighteen states and Washington D.C. ban bus drivers from using cell phones while driving and passengers are present; and thirty states, Washington D.C., and Guam have banned texting while driving. Of these thirty states, eleven of the laws were enacted in 2010, including Massachusetts’ new law. Furthermore, some local governments have taken it upon themselves and passed their own distracted driver laws. For a complete chart of laws limiting cell phone use while driving, click here.
The inconsistency between states in cell phone laws can make driving cross country a nightmare. In some states, a police officer can pull a driver over for using your cell phone; in others the officer must pull the driver over for a separate traffic violation in order to cite them for using their cell phone; while still in other states a driver has no limitations on cell phone use. The easy remedy is to play it safe and not use one’s cell phone while driving cross country. However, it seems that these inconsistencies could be taken care of through comprehensive federal legislation. With all the new state legislation on cell phone use further complicating a driver’s ability to know when, where, and how it is permissible to use their cell phone, the time seems primed for the Federal Government to step in and create a national standard.
This urge to pass cell phone legislation is no doubt coming from the correlation between cell phone use, the distractions it causes, and the accidents that result. However, the legislatures are missing the point a bit. While the texting bans are certainly necessary seeing that a person must take their eyes off the road completely in order to read/send texts, why is there so much animosity towards handheld cell phones? Most experienced drivers can steer a car as well with one hand as with two, unless of course they are driving a standard. The only real difference between handheld cell phones and hands free technology, such as Bluetooth, is the use of one hand. The distraction part of using a cell phone, which is the issue most lawmakers point to when passing these bills, is the conversation itself, not the intermediary device. If lawmakers are truly worried about distracted drivers, then all distracting activities should be banned along with cell phone use. Activities such as eating, drinking, reading, putting on makeup, and using a hair straightener while driving are as distracting, if not more so, than using a cell phone. Furthermore, some of these distracting activities are marketed specifically for being used in the car, yet they remain unregulated. The current trend of forcing drivers to use hands free technology for cell phone calls while driving is simply giving drivers an extra hand to grab that drink from McDonald’s they just picked up, not truly making our roads and highways any safer.
Apple is Granted Patent on “Anti-Sexting” Technology
Apple has been granted a patent in the United States for technology that would prevent “sexting” from their iPhone. This technology could be used by adults to prevent children from sending or receiving sexually explicit messages. It would allow a phone’s administrator to block incoming or outgoing text messages containing specified words. Messages containing this explicit material would either be blocked or have the offensive language redacted.
Apple contends in the patent application that this new technology is necessary because old methods of monitoring text communications have, in large part, failed. Apple argues that restricting a child’s communication to a pre-set list of phone numbers, as is the common modern method of monitoring communications, does not address the content of those communications. The company further asserts that this technology can be used as a teaching tool by not allowing communications unless the message is written with correct grammar. Although it is not clear how this technology will be built into future iPhones, it is known that it will work with the existing text-messaging technology.
Although a major step for technology, this application will not prevent sexually explicit message from being sent or received by children. First, the technology does not address the capability of sending sexually explicit images. Phones with this technology will still receive graphic images or depictions of sexual situations. Second, the technology will not be able to recognize familiar euphemisms that are used in place of explicit language. A person wanting to send sexually explicit information on a phone with this technology will simply send a picture or use slang to make an end-run around the system.
Reasonableness of Conditions of Release for Sex Offenders
Judges have broad discretion in imposing the conditions of supervised release. The only requirements are that (1) it must be reasonably related to factors in 18 U.S.C. § 3553(a), and (2) the deprivation of liberty has to be reasonably necessary, and consistent with Sentencing Guidelines. Recently, courts have often used a ban on using computers and accessing the Internet for a period of time as condition for release. A recent Circuit Court decision for the D.C. Circuit, however, may affect the discretion judges have in imposing internet bans as a condition of supervised release for sex offenders. In United States v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010), the court held that mandatory computer-use monitoring of the Internet activity of a sex offender during a supervised release was plain error, and not reasonably related to the crime. The defendant in the case was convicted for sexual abuse of a minor and sexual exploitation of a minor. The court held that because the Internet was not used in the crime, it was not reasonably related to any need to protect the public from further crimes. This ruling seriously limits the discretion a judge has when trying to impose conditions that can protect the public from sex offenders who could use the Internet for further crimes.
The Internet has received First Amendment protection from the United States Supreme Court, which stated that online content “is as diverse as human thought.” Reno v. ACLU, 521 U.S. 844, 870 (1997). Nonetheless, judges have used Internet and computer-use restrictions for years with many types of offenses. In United States v. Mitnick, 145 F.3d 1342 (9th Cir. 1998), the court held that a computer ban did not restrict the offender’s exercise of his First Amendment rights, as the restriction was reasonably related to protect the public. In United States v. Suggs, 50 Fed. Appx. 208, 210 (6th Cir. 2002), the court upheld a condition banning the defendant from using personal computers for a period of time. The court reasoned that since he was convicted for mail and wire fraud the condition was reasonably related to the crime. In addition, in United States v. Keller, 366 Fed. Appx. 362, 363 (3rd Cir. 2010), the court upheld a ban which prevented the defendant from conducting business online. In the case, the defendant committed mail fraud by setting up multiple UPS accounts for a candy Internet business. The court reasoned that the ban was reasonable because there only needs to be some connection between the offense and the supervised condition. Although the Internet was not used directly in the commission of the crime, the court determined that just the use of an online business was enough.
Putting all these cases together, the precedent before Burroughs only required a slight connection between the crime and Internet use in order for a judge to impose Internet restrictions. While in Burroughs, the crime itself did not use the Internet, it did involve sexual exploitation of a minor. With more and more children using going online, there is also a corresponding rise in the number of online predators. Thus, the condition imposed in Burroughs does have a connection to the Internet. Furthermore, the judge only required monitoring, not a total ban. Therefore, there is less of a deprivation of liberty. Given the serious public threat of online predators, as in Mitnick, the court should have let the condition stand.
Bring Out Bigger Cannons to Fight Online Pirates
In their continued frenzy to stop online piracy, the entertainment industry has supported a new bill in the Senate titled the “Combating Online Infringement and Counterfeits Act" (COICA). Patrick Leahy (D-Vt.) introduced the bill on the last day of the Senate session in the hope that it could be pushed through before Congress adjourned. Despite support from both sides of the aisle, lawmakers ran out of time, and shelved the act until after the Fall recess.
The proposed legislation would give the Department of Justice the power to file a civil suit against a website providing pirated material, and then file for a court order to require domain registries, ISPs, DNS providers, and others to block access to the site. The DOJ would also maintain a list of sites that it believes provide infringing content, but has yet to file suit against. Service providers are encouraged to also block these sites, and are given legal protection if they choose to do so. Critics have taken issue with the bill, claiming that it could lead to technical issues and the infringement of free speech rights.
A major problem with this legislation is its definition of which sites violate the law. It allows the DOJ to seek a court order for any Internet site that is “dedicated to infringing activities.” This includes a a site that is “primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator” to distribute copyrighted or counterfeit materials. Combating Online Infringement and Counterfeits Act, §2324 (a)(2), 111th Cong. (2nd Sess. 2010).
A judge considering a court order blocking the site could either read the law broadly or narrowly, and either would have severe consequences. A broad reading would block sites that have both legal and illegal content. This could include sites like Rapidshare, or Megaupload, which allow users to share any type of file, copyrighted or otherwise. More alarmingly, the users of online forums regularly share copyrighted materials with other members. If a court order blocked this kind of site, it would raise a myriad of First Amendment issues, especially because the order would be issued without a chance for the accused site to defend itself.
On the other hand, a judge reading the statute narrowly would render the law ineffective. If a site only needs to have another purpose besides distributing copyrighted or counterfeit material, then this could easily be designed around. The owner of a website could change the format so that links to infringing works are presented in conjunction with a blog, a forum, or any other legitimate online activity. Furthermore, a high judicial standard for showing a violation would require the DOJ to present more evidence, thus slowing down the process. In addition to consuming valuable governmental resources, the sheer number of piracy sites would make the entire exercise futile.
Although piracy and counterfeit goods may be a problem in the United States, an ineffective bill that potentially violates the free speech rights is not the answer. An issue of this complexity requires careful thought and consideration, and cannot be fixed in a day, especially if that day is the last day before Congress adjourns.
Welcome to the Journal of High Technology Law Blog!
Today marks the day of the official launch of the Journal of High Technology Law’s (JHTL) new blog! On behalf of the JHTL Editorial Board and JHTL Staff Members, I would like to welcome you to our new site. We are delighted to blog about contemporary technological issues in conjunction with our academic publication. Our Journal’s publications can be found at www.jhtl.org.
JHTL was founded in 1998 and became one of Suffolk University Law School’s Honor Boards in 2001. The Journal complements the Intellectual Property Law Concentration, the LLM in Global Technology, and the various student-run organizations at Suffolk Law. JHTL recognizes that every area of law is affected by high technology and covers a broad range of subject matter, including intellectual property, internet law, communications, media, entertainment law, international law, business, and more.
We will provide you with a plethora of posts about current legal issues that affect high technology. Updates are written by Journal Members, practitioners and experts in the legal field, honored law professors, and you. If you are interested in submitting a blog post for publication, please send us an email at firstname.lastname@example.org. Subscriptions to our RSS Feed are available at http://www.jhtl.org/rss.xml.
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