2012

Censorship, Technology, and Bo Xilai

October 25, 2012
Internet, Privacy, Social Media

by Jeremy So, UMN Law Student, MJLST Managing Editor

As China’s Communist party prepares for its once-a-decade leadership transition, the news has instead been dominated by the fall from power of Bo Xilai, the former head of the Chongching Communist Party and formerly one of the party’s potential leaders. While such a fall itself is unusual, the dialogue surrounding Bo’s fall is also remarkable–Chinese commentators have been able to express their views while facing only light censorship.

This freedom is remarkable because of the Chinese government’s potential control over the internet, which was recently outlined by Jyh-An Lee and Ching-Yi Liu in “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China” recently published in the Minnesota Journal of Law, Science & Technology. Lee and Liu explain how early on in the internet’s development, the Chinese government decided to limit a user’s ability to access non-approved resources. By implementing a centralized architecture, the government has been able to implement strict content filtering controls. In conjunction with traditional censorship, the Chinese government has an unprecedented amount of control over what can be viewed online.

Lee and Liu argue that these technological barriers rise to the level of de facto law. Within this framework, the Chinese government’s history of censorship indicates that there are rules against criticizing the party, its leaders, or its actions.

Chinese internet reactions to the Bo Xilai case are notable because thy have included criticism of all three. Posts expressing differing opinions, including those criticizing the government’s reaction and those supporting the disgraced leader, have not been taken down. Such posts have remained online even while commentary on China’s next leader, Xi Jinping, has been quickly taken down. Given the Chinese government’s potential control and past use of those controls, the spread of such dissent must be intentional.

Whether this is part of a broader movement towards more openness, a calculated response by the party, or a failure of Chinese censorship technology remains to be seen. Regardless, the changing nature of the internet and technology will force the Chinese government to adapt.

Incidental Findings: It’s My DNA, and I Want to Know if Something Is Wrong With It.

October 15, 2012
Bioethics, Public Health

by Ryan J. Connell, UMN Law Student, Joint Degree Program Fellow, MJLST Staff

As genetic research continues to develop, researchers are more apt to make incidental discoveries in the course of the research on a subjects DNA. Susan Wolf, Founding Chair of the University of Minnesota’s s Consortium on Law and Values in Health, Environment & the Life Sciences, points out in her article “The Role of Law in the Debate over Return of Research Results and Incidental Findings: The Challenge of Developing Law for Translational Science,” that, with this development, there is a serious question that must be asked, but that the law does not really answer: do researchers have to report these incidental findings to the subject?

Is this something that necessarily must be addressed by the law? I think so. Researchers need guidance on this front. Right now if a researcher finds something that may or may not have adverse health consequences for a subject the researcher must balance competing interests. What if they do disclose the risk? Is a pure researcher qualified to evaluate medical risks? The researcher could be very wrong in their analysis; could a subject who was told that they might be at risk for a serious health problem, but was not, hold a researcher liable for emotional stress? On the other hand, if a researcher comes across some potential risks and does not tell the subject, and the subject suffers as a result, should the researcher be liable?

I think the answer to this problem lies in waivers. Before people make themselves subject to research they should sign a waiver to either not hold a researcher liable for any incidental findings reported, or agree to not receive any information about any incidental findings.

This really should be the patient’s decision. Some geneticists think that it is better not to let people know if they have a risk for Huntington’s disease, or Alzheimer’s disease because there are no interventions. Likewise some geneticists feel that they would only report a risk of cancer if it is specifically requested.

From my point of view, if my genes are used for research and the researchers find that I am at risk for something, I want to know. I don’t care if there is nothing that I can do about it; I should know about it. My personal view is not shared however, some feel like they want to contribute to research, and then they don’t want to be bothered again.

This is a complicated issue with no clear solution. How do you feel? Do you want a researcher to tell you if they think you are at risk? Would you hold a researcher liable if they mistakenly told you that you were at risk for a horrible disease? Or would you be more likely to hold a researcher liable for not telling you that you were at risk for a disease? Do you think a waiver, or some other agreement is necessary between a researcher and a subject before any research is conducted?

Digital Privacy: Who is Tracking you online?

October 15, 2012
Internet, Privacy

by Eric Friske, UMN Law Student, MJLST Managing Editor

From one mouse click to the next, internet users knowingly and unknowingly leave a vast array of online data points that reveal something about those users’ identities and preferences. These digital footprints are collected and exploited by websites, advertisers, researchers, and other parties for a multitude of commercial and non-commercial purposes. Despite growing awareness by users that their online activities do not simply evaporate into the ether, many people are unaware of the extent to which their actions may be visible, collected, or used without their knowledge.

Scholars Omer Tene and Jules Polontensky, in their article “To Track or ‘Do Not Tract’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” discusses the various online tracking technologies that have been used by industries to document and analyze these digital footprints, and argue that policymakers should be addressing the underlying value question regarding the benefits of online data usage and its inherent privacy costs.

With each new technological advance that seeks to make us more connected with the world around us, our daily lives and our online presence have become increasingly intertwined. Ordinary users have become more aware that their online activities lacks the anonymity that they once thought existed. However, despite this awareness, many users may not know what personal information is available online, how it got there, or how to prevent it. Moreover, some tracking services are undertaking efforts to prevent users from evading them, even when those users intentionally attempt to keep their online activities private.

Corporations have begun to recognize the importance of providing consumers with the opportunity to choose what information they wish to share while on the internet. For example, last May, Microsoft announced that Internet Explorer 10 will have a “Do Not Track” flag on by default, stating that it believes “consumers should have more control over how information about their online behavior is tracked, shared and used.” Not unexpectedly, the Interactive Advertising Bureau, a global non-profit trade association for the online advertising industry, denounced Microsoft’s move as “a step backwards in consumer choice;” although, some have argued that these pervasive tracking practices are actually robbing individuals of free choice. It should perhaps be noted that the popular internet browser Firefox already possesses a Do Not Track feature, though it is not engage by default, and Google has stated that it will include Do Not Track support for Chrome by the end of the year.

Regardless, while academic and political discussions on how to address these concerns continue to simmer, internet users who desire privacy must learn how to protect themselves in an online environment replete with corporations that are relentlessly trying scavenge every morsel of information they leave behind, something which may not be an easy task when tracking is so prevalent.

The Supreme Court to Decide the Fate of the First-Sale Doctrine in Kirtsaeng

October 11, 2012
Intellectual Property, Litigation

by Benjamin Hamborg, UMN Law Student, MJLST Articles Editor

Later this month, the U.S. Supreme Court is scheduled to hear oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case which should decide once and for all whether the first-sale doctrine applies to works manufactured outside of the United States. As I described last spring in volume 13 of the Minnesota Journal of Law, Science & Technology, the case arises from Supap Kirtsaeng’s attempt to take advantage of the disparity in pricing between textbooks manufactured for sale in the United States and those manufactured and sold internationally. Kirtsaeng’s plan involved purchasing textbooks published by John Wiley & Sons, Inc.’s wholly-owned subsidiary John Wiley & Sons (Asia) Pte Ltd., then reselling the textbooks online to consumers within the United States.

While textbooks published by John Wiley & Sons, (Asia) Pte Ltd. for the international market are nearly identical in terms of content to their U.S. counterparts, the international versions sell for significantly less due to differences in quality and design. When John Wiley & Sons, Inc.–as the registered copyright holder of the United States editions of the works sold by Kirtsaeng–sued for copyright infringement, Kirtsaeng based his defense on the first-sale doctrine, which allows “the owner of a particular copy [of a copyrighted work] . . . lawfully made under this title . . . to sell or otherwise dispose of the possession of that copy” without the permission of the copyright holder.

The question the Supreme Court will face on October 29th is whether the first-sale doctrine applies to works manufactured outside of the United States, a question which the Second–in John Wiley & Sons, Inc. v. Kirtsaeng–and Ninth Circuits have already answered in the negative. The prospect of nationwide denial of the first-sale doctrine to works manufactured outside of the United States has broad implications with regard to the sale of gray-market goods within the United States. Many large United States retailers, particularly online retailers, use gray-market goods to deliver products to customers at a substantial savings. In fact, there exists “an estimated $63 billion annual market ‘for goods that are purchased abroad, then imported and resold without the permission of the manufacturer.'”

Narrowing of the first-sale doctrine may even affect the ability of libraries in the United States to lend foreign manufactured books. As Andrew Albanese recently pointed out, “if a library bought a book in the U.S. from a U.S. publisher, and that book happened to be printed in China . . . . the uncertainty the Second Circuit interpretation [of the first-sale doctrine] would create for libraries could deter many libraries from lending [the] materials in question.” Finally, if the Second Circuit’s holding is affirmed by the Supreme Court, companies that manufacture copyright-protected goods within the United States will have an incentive to move their manufacturing plants abroad so as to gain greater control over the sale of their products.

Wasted Places Report Elucidates Key Problem in Current Environmental Legal and Regulatory Infrastructure

October 8, 2012
Environment

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

During a time when environmental issues flood the headlines of newspapers, magazine covers, and television broadcasts, it is hard not to come across sustainable efforts by concerned companies and institutions trying to proactively tackle these environmental issues. While these pointed campaigns and programs deserve some recognition, there is plenty of room for improvement and this improvement needs immediate legal and regulatory acknowledgment.

Recently, in her article “Wasted Places: Slow, Underfunded EPA Program Falls Short in Toxic Site Cleanups,” Kate Golden attributed limited funds, lack of federal oversight, and complex approval processes as the reasons for the hundreds of thousands of abandoned and polluted properties referred to as “brownfields” that continue to exist all over the country. Despite billions of dollars in federal grants and loans provided by the Environmental Protection Agency (EPA), there are still brownfields that are contaminating groundwater. While EPA funds are arguably one part of the sustainability puzzle, legal and regulatory infrastructure is another piece of the puzzle that has apparently fallen under the table. It should come as no surprise that the current legal and regulatory infrastructure is the root of the brownfields problem, as evidenced by current environmental issues stemming forth from insufficient legal and regulatory governance.

For example, the current controversial discussion of the natural gas drilling process known as hydraulic fracturing, or “fracking,” is one area where environmentalists have recognized and commented on the lack of EPA monitoring in regulating potential public health hazards. In “Notes from Underground: Hydraulic Fracturing in the Marcellus Shale,” Joseph Dammel examined the effect of fracking on our energy portfolio, national security, and capacity for technological innovation. Dammel proposes that courts, Congress, and regulatory agencies take reformative legal and regulatory action to address the current environmental issues posed by a technology that seems to have outpaced our lawmakers. Ultimately, this vicious, inescapable cycle is the result of insufficient legal and regulatory governance. Without intervention, the history of brownfields is likely to repeat itself through fracking.

Chemical waste management and minimization in university teaching and research laboratories is another area where legal and regulatory reform is needed. In my upcoming article, “Do Educational Institutions Score High on Their Sustainability Efforts?: A Case Study (and Grade) on Chemical Waste Management and Minimization in Teaching and Research Laboratories at the University of Minnesota,” that will be published in Volume 14, Issue 1 of the Minnesota Journal of Law, Science & Technology, I utilize the University of Minnesota, one of the largest institutions by student enrollment in the United States, as a case study to elucidate how universities and colleges have missed key areas of development and improvement of sustainability in their sustainability campaigns and programs. By evaluating the legal and regulatory framework currently in place, the article suggests ways to move forward in managing and reducing chemical waste at educational institutions like the University of Minnesota.

Whether the issue concerns brownfields, fracking, or chemical management, a big reason these environmental issues exist is a lack of legal and regulatory governance. This lack of governance might be due to key players not carrying out their delegated responsibilities. Or, perhaps, the problem stems from the laws themselves. Regardless, while funding is certainly a piece of the environmental puzzle, a legal and regulatory reformative approach at both the federal and state levels is needed to move forward and achieve a more complete picture.

Don’t Track Me! – Okay Maybe Just a Little

October 4, 2012
Internet, Privacy

by Mike Borchardt, UMN Law Student, MJLST Managing Editor

Recent announcements from Microsoft have helped to underscore the current conflict between internet privacy advocates and businesses which rely on online tracking and advertising to generate revenues. Microsoft recently announced that “Do Not Track” settings will be enabled by default in the next version of their web browser, Internet Explorer 10 (IE 10).

As explained by Omer Tene and Jules Polonetsky in their article in the Minnesota Journal of Law, Science & Technology 13.1, “To Track or ‘Do not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” the amount and type of data web services and advertisers collect on users has developed as quickly as the internet itself. (For an excellent overview of various technologies used to track online behavior, and the variety of information they can obtain, see section II of their article). The success and ability of online services to supply their products free to users is heavily dependent on this data tracking and the advertising revenue it generates. Though many online services are dependent on this data collection in order to generate revenue, users and privacy advocates are suspicious about the amount of data being collected, how it is being used, and who has access.

And it is in response to this growing environment of unease concerning the amount and types of user data being collected that Microsoft has added these new Do Not Track features (All other major browsers are set to include do not track settings, with Google’s Chrome the last to announce them. These settings, however, will likely not be enabled by default. This, however, may not be the boon for user privacy that some have been hoping for. Do Not Track is a voluntary standard developed by the web industry; it relies on browser headings to tell advertisers not to track users (for a more in depth description of how this technology works, see pgs. 325-26 of Tene and Polonetsky’s article). This is where the problem arises-websites can ignore browser headings and track users anyway. Part of the Do Not Track standard developed by the industry is that users must opt in to Do Not Track-it cannot be enabled by default. In response to Microsoft’s default Do Not Track settings, Apache (the most common webserver application), has been updated to ignore do not track setting from IE 10 users. With one side claiming that “Microsoft deliberately violate[d] the standard,” and the other claiming that the industry is ignoring privacy for profit, the conflict over user data collection seems poised to continue.

A variety of alternatives to the industry implemented Do Not Track settings have been proposed. As the conflict continues, one of the most commonly proposed solutions is legislation. Privacy advocates and web companies, however, have very different views about what Do Not Track legislation should cover. (For differing viewpoints see “‘Do Not Track’ Internet spat risks legislative crackdown). Tene and Polonetsky argue that a value judgment must be made, that policymakers must evaluate whether the “information-for-value business model currently prevailing online” is socially acceptable or “a perverse monetization of users’ fundamental rights,” and create Do Not Track standards accordingly. Unfortunately, this choice between the generally free-to-use websites and web services users have come to expect on one hand, and personal privacy on the other, does not seem like much of a choice at all.

There are, however, alternatives to the standard Do Not Track proposals. One of the best is allowing the collection of user data to continue, but to legally limit the ways in which that data could be used. Tene and Polonetsky recommend a variety of policies that could be enacted which could help to assuage users’ privacy concerns, while allowing web services to continue generating targeted advertising revenue. Some of their proposals include limiting user data use to advertising and fraud prevention, preventing the use of data collected from children, anonymizing data as much as possible, limiting the retention of user data, limiting transmission of data to third parties, and clearly explaining to users what data is being collected about them and how it is being used. Many of these options have been proposed before, but used in conjunction they could provide an acceptable alternative to the strict Do Not Track approach proposed by privacy advocates, while still allowing the free-to-use, advertising-based web to thrive.

Mashing up Copyright Infringment with the Beastie Boys and Ghostface Killah

October 3, 2012
Intellectual Property, Internet

by Eric Maloney, UMN Law Student, MJLST Staff

Apparently, Bridgeport Music has never seen the episode of Chappelle’s Show declaring that “Wu-Tang Clan ain’t nothing to [mess] with.” The record label has decided to sue the group, specifically artists Raekwon, Ghostface Killah, Method Man, and producer RZA, for reportedly using a sample of a 1970’s recording originally by the Magictones on a 2009 Raekwon album track. The portion of the recording allegedly utilized in production of the song was sped up to change the sample’s key from E minor to F# minor, and constituted four measures of the original tune. The sample was only ten seconds long.

Wu-Tang Clan isn’t the only group currently under scrutiny for their use of sampling. The Beastie Boys are also facing an infringement suit, due to allegedly sampling two songs by a group called Trouble Funk in four of their tracks from the late 1980’s. This suit is different in at least one respect from the Bridgeport matter: the record company, Tuf America, will have to show not only infringement, but also explain why the suit shouldn’t be barred by the statute of limitations after over 20 years have passed since the Beasties released these songs.

These lawsuits are hardly novel; hip-hop and electronica artists have been subject to infringement liability for years now due to the rise in their use of digital sampling methods. The Beastie Boys especially have been repeatedly sued for using unauthorized samples. (See, e.g. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). For a great summary of the history of sampling in music production and court cases regarding infringement, see Professor Tracy Reilly’s article Good Fences Make Good Neighboring Rights in the Winter 2012 issue of the Minnesota Journal of Law, Science & Technology.

As Professor Reilly indicates in her article, the latest federal appeals court to directly address this issue has taken a hard-line stance: appropriation of any part of a sound recording is a physical taking, no matter how minute the sample may be. That case, Bridgeport Music v. Dimnesion Films, featured the same plaintiff record company that is now suing Wu-Tang Clan. The Sixth Circuit Court of Appeals in this instance held that there is no type of de minimis protection for use of small samples; instead, any unauthorized, direct sample of a protected recording subsequently used by an artist constitutes infringement.

The risk that courts run in following such a bright-line doctrine is that they may be a bit behind trends in culture and technology in dealing so harshly with those who choose to sample copyrighted works. So-called “mash-up” artists, such as Greg Gillis of Girl Talk, make a living through exclusively sampling copyrighted works and then distributing them for free under the penumbra of “fair use.” His sampling is both notorious and fairly obvious; there are websites dedicated to tracking which samples he chooses to use in his productions. Gillis is still able to make a living by touring and selling merchandise, while also speaking out against current copyright infringement standards.

As digital sampling techniques continue to improve and the demand for “mash-up” artists grows, the Bridgeport ruling will start to look dated in the face of the reality of modern-day music production. This is especially true in the case against the Wu-Tang Clan, where it appears somewhat absurd to condition liability on such a small amount of sampled music. For now, though, artists will need to stay on their toes and be sure to license any samples, no matter how minimal, or face the consequences. This doctrine may stifle creativity for the time being, but perhaps all this legal wrangling will give artists emotional fodder for future compositions. Either way, it’s becoming clearer as more of these suits are brought that greater clarity on the issue is needed, either from Congress or the courts. A better balance between encouraging creativity and protecting copyrights than what is given to us by Bridgeport can hopefully be found as this area of law continues to evolve.

Food Label Regulations Fall Short

October 2, 2012
Food and Agriculture

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

A recent study, published in Agricultural Economics, found that the average body mass index for consumers that read nutrition labels is lower than those that do not read the labels. This finding implies that understanding and utilizing food and nutrition labels provides consumers with the information needed to make informed decisions about what they eat. However, a recent article by J.C. Horvath published in the Minnesota Journal of Law, Science & Technology, “How Can Better Food Labels Contribute to True Choice?” makes evident that food labeling has a long way to go before it truly gives consumers the information necessary to make informed decisions.

Food label regulations, outlined by the Food and Drug Administration, have a number of flaws. The FDA has declined to define strict standards for use of the food label “all-natural,” claiming that the term is too nebulous to be strictly defined and standardized across the entire food industry. Undoubtedly, consumers assume that a food labeled as “all-natural” has not been chemically processed or structurally altered from its natural state. Unfortunately, this is not the case. The FDA has a vague policy which defines the term “natural,” to mean “nothing artificial or synthetic…is included in, or has been added to, the product that would not normally be expected to be there.” According to the Wall Street Journal, some ingredients that have been labeled as “all-natural” include high fructose corn syrup, genetically modified plants, and sodium benzoate.

Similarly, the approved use of certain terms, such as “artificial flavor,” “natural flavor,” and “artificial coloring” often hide significant details about the nature of the food. These three phrases can stand in for over 3900 food additives that come from a wide range of sources, giving the consumer no real notice of the substance or origin of the “flavor” or “coloring.” For example, beef tallow, gelatin, and lard can all be covered by these three phrases. Even the requirements for listing allergens is incomplete, as the FDA only requires that eight of the known allergic-reaction-inducing ingredients be explicitly listed: milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans.

This recent study concerning the use of nutrition labels makes clear that when consumers read and understand food labels, they can make better choices for their health. In order for this to occur, however, it is imperative that the food labels which consumers rely upon are transparent and accurate. Food label regulations have not yet accomplished this objective.

Unlocking the Abortion & Evolution Debates:Defining the Essence of Being Human

September 27, 2012
Bioethics, Privacy, Public Health, Reproductive Health

by Emily Puchalski, UMN Law Student, MJLST Notes & Comments Editor

As scientific research and technological advancement abound in our modern world, often times the law struggles to keep up. The law’s struggle to keep up is evident in debates centering on defining personhood. The question of what it means to be a person/human involves the controversial issues of abortion and evolution, which have divided our nation for decades. Although scientists are helping our understanding of what being human means by studying life at its most basic, controversy abounds regarding not only the results of the studies but also the theoretical underpinnings of even allowing the studies. As our nation becomes more polarized between conservative and liberal thinkers the struggle of defining personhood has come to the forefront in politics.

In his recent article in the Minnesota Journal of Law, Science & Technology, Defining the Essence of Being Human, Efthimio Parasidis contemplates how science could aid the law in attempting to define a person and looks at modern examples of the personhood debate. One of the examples Parasidis describes are personhood amendments that are often backed by anti-abortion groups seeking to have life defined as beginning at conception. These so called personhood amendments have begun to spring up in various states and in many instances the groups attempt to get them on ballots for the public’s vote. Interestingly, after Parasidis’s publication an attempt in Ohio to define life as starting with fertilization failed to get the requisite number of signatures to get on the ballot.

The failure of Personhood Ohio to get the requisite number of votes could foreshadow a big issue in the upcoming presidential election, because Ohio is a battleground state for the by all accounts close presidential race between Obama and Romney. Whether the failure of the amendment signals trouble for the Romney-Ryan ticket is unknown. Interestingly, Romney’s position on abortion has been he opposes abortion except in cases where it may be required for the mother’s health or the pregnancy was the result of rape or incest. While Ryan seems to have tempered his pro-life views during the election.The Romney-Ryan ticket is in a difficult place trying to win the conservative vote while still trying to win Ohio where enough signatures were not garnered.