October 2018

The Music Modernization Act May Limit Big Name Recording Artists’ Leverage in Negotiations With Music Streaming Companies

October 28, 2018
Business Law, Competition, Copyrights, Economics, Economy, Intellectual Property, Property Law

By: Julia Lisi, MJLST Staffer

Encircled by several supportive recording artists, President Trump signed the Music Modernization Act (“MMA”) into law on October 11, 2018. Supporters laud the MMA as a long overdue update for U.S. copyright law. Federal law governs roughly 75% of recording artists’ compensation, according to some estimates. The federal regulatory scheme for music license fees dates back to 1909, before the advent of music streaming. Though the scheme has been tweaked since 1909, the MMA marks a major regulatory shift to accommodate the large market for music streaming services like Spotify and Apple Music.

Prior to the MMA, streaming services virtually had two options for acquiring music catalogs: (1) either acquire licenses for each individual song or, (2) provide music without licenses and prepare for infringement suits. Apple Music adopted the first strategy and as a result initially suffered from a much leaner music catalog. Spotify went with the second strategy, setting aside funds to weather litigation.

The MMA offers a preexisting mechanism, the mechanical license, on a broader scale. Once the MMA takes full effect, streaming services can receive blanket licenses to entire catalogs of music, all in one transaction. The MMA establishes the Mechanical Licensing Collective (the “Collective”), a board of industry participants, which will set license prices. The MMA is, in part, meant to ensure that more participants in the music industry will be paid for their work. For example, music producers and engineers can expect to receive more compensation under the MMA.

While the MMA may broaden the pool of industry participants who get compensation from streaming, the MMA could weaken big name artists’ bargaining positions with streaming services. Recording artists like Taylor Swift and Adele have struggled to keep their albums off streaming services like Spotify. Swift resisted music streaming based on her conviction that streaming services did not fairly compensate artists, writers, and producers. While Swift may have come to an agreement with Spotify and allowed her albums to be streamed, there are still holdouts. More than two years after its release, Beyoncé’s Lemonade still is not on Spotify.

With the Collective controlling royalty rates, big name artists might not have the holdout power that they wield now. If Swift’s music had been lumped into a collective mechanical license, she may not have had the authority to withdraw or withhold her albums from streaming services. The MMA’s mechanical licenses are compulsory, indicating the lower level of control copyright owners may have. Despite this potential loss of leverage, the MMA is widely supported by artists and industry executives alike. Only time will tell whether the Collective’s set prices will make compensation within the music industry fairer, as proponents suggest.

In Space We Trust: Regulate the Race

October 28, 2018
Corporate Ethics, Environment, Environmental Law, International Law, Social Welfare, Space Law

By: Hannah Payne, MJLST Staffer

In 1999, the UN General Assembly launched “World Space Week,” an annual celebration observed from October 4th (the date of Sputnik’s launch in 1957) to October 10th (the day The Outer Space Treaty entered into force in 1967). This year’s theme was “Space Unites the World.” The UN said the theme “celebrates the role of space in bringing the world closer together.” Unfortunately, the words ring hollow in light of the U.S.’s Space Force plans, as well as the recent escalation of inter-planetary militarization by China, Russia and the EU. Additionally, activities of SpaceX and others raise concerns about privatization, space pollution and the plans of the uber-wealthy to leave the world behind. These forces threaten to marginalize the awe-inspiring exploration of space into a scheme concerned only with war, profit, and advancing inequality. The dominance of such interests calls for a coherent system of global space regulation.

Some have observed that many recent activities violate the 1967 Outer Space Treaty, which declared: “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty also states that space and all celestial bodies are unowned and open to exploration by all. The U.S. and over 100 countries signed and ratified it, and America did not reserve the right to alter its obligations, as it often does in agreements. However, with no real international enforcement mechanism and our ceaseless profit-seeking, countries have—and will continue to—disregard the goals of the 1967 agreement. Last year, Ted Cruz expressed excitement that “the first trillionaire will be made in space.” He proposed amending the treaty to foster commercialization – and correct its erroneous assumption that worthy goals exist besides wealth and power. His motive seems to be formalistic, as was Congress’ in 2015 when it declared in the Commercial Space Launch Competitiveness Act that “the United States does not, by enactment of this Act, assert sovereignty . . . exclusive rights . . . or ownership of, any celestial body[,]” but in the same act granted U.S. citizens the right to own and sell any “space resource.” Though the U.S. track record of treaty violations makes their disregard of the agreement perhaps unsurprising, the serious consequences of space militarization and privatization call for critical advancement in space regulation.

From an environmental law perspective, the language of the 1967 treaty evokes the seldom-used Public Trust Doctrine (PTD). Traced back to the Roman era, the Public Trust Doctrine is described as “requir[ing] government stewardship of the natural resources upon which society . . . depends for continued existence.” The PTD places the government/sovereign as the trustee, obligated to protect the rights of the public/beneficiary in the trust, which is comprised of things like navigable waterways. It has mostly been applied to water rights, and successfully reclaimed property for the “public good” in Illinois and California. However, in 2012 the Supreme Court suggested that the PTD is no stronger than state common law. Even so, the doctrine should be remembered by those who think the privileged cannot, by right, hoard or destroy resources – including those in space. In the 1970s, Joseph Sax argued for the PTD’s use as sweeping environmental common law. Some have since theorized about the extension of the PTD to space. These scholars identify issues such as the lack of a sovereign to act as trustee. That problem would not likely be solved by allowing every country to exert self-interested sovereignty in space. At least no one has been so bold as to outright claim the moon – yet.

The PTD is just one tool that may be useful in designing a peaceful move forward. The Expanse, a near-future science fiction series in which humanity has colonized the solar system, offers a thought-provoking look ahead. Earth and the moon are governed by the UN. Mars is a sovereign as well, and the asteroid belt a colonial structure with fractured governance. Space is highly commercialized and militarized, and personal opportunity is hard to come by – but humanity has avoided self-destruction. Their global governance allows for some cooperation between Earth and Mars in space. Depending on one’s dreams of the future, the situation represents an overpopulated, inefficiently run hellscape – or a less-bad option out of the possibilities that now seem likely. It begs the question – how do we expand while avoiding astronomical inequality and self-destruction?

Perhaps it is nearly impossible, but Earth needs real, global regulation of outer space. A weak U.N. cannot do it; private companies and wealthy countries should not be given free reign to try. Last month, the U.N. held the First United Nations Conference on Space Law and Policy. It’s good to see the international community ramping up these discussions. Hopefully, the PTD’s underlying philosophy of equitable preservation will be central to the conversation. Done right, the exploration of space could be the most inspiring, community-building, and even profitable experience for humanity. If approached thoughtfully, inclusively, carefully – we could have much more than just a Space Force.

AI: Legal Issues Arising From the Development of Autonomous Vehicle Technology

October 22, 2018
Autonomous Vehicles, Data

Sooji Lee, MJLST Staffer

Have you ever heard of the “Google deep mind challenge match?” AlphaGo, the artificial intelligence (hereinafter “AI”) created by Google, had a Go game match with Lee Sedol, 18-time world champion of Go in 2016. Go game is THE most complicated human made game that has more variable moves than you can ever imagine – more than a billion more variables than a chess game. People who knew enough about the complexity of Go game did not believe that it was possible for AI to calculate all these variables to defeat the world champion, who depended more on his guts and experiences. AlphaGo, however, defeated Mr. Lee by five to one leaving the whole world amazed.

Another use of AI is to make autonomous vehicles (hereinafter “AV”), to achieve mankind’s long-time dream: driving a car without driving. Now, almost every automobile manufacturer including GM, Toyota, Tesla and others, who each have enough capital to reinvest their money on the new technology, aggressively invest in AV technologies. As a natural consequence of increasing interest on AV technology, vehicle manufacturers have performed several driving tests on AVs. Many legal issues arose as a result of the trials. During my summer in Korea, I had a chance to research legal issues for an intellectual property infringement lawsuit regarding AV technology between two automobile manufacturers.

For a normal vehicle, a natural person is responsible if there is an accident. But who should be liable when an AV malfunctions? The owner of the vehicle, the manufacturer of the vehicle, or the entity who developed the vehicle’s software? This is one of the hardest questions that arises from the commercialization of AV. I personally think that the liability could be imposed on any of the various entities depending on different scenarios. If the accident happened because of the malfunctioning of the vehicle’s AI system, the software provider should be liable. If the accident occurred because the vehicle itself malfunctioned, the manufacturer should be held liable. But if the accident occurred because the owner of the vehicle poorly managed his/her car, the owner should be held liable. To sum up, there is no one-size fits all solution to who should be held liable. Courts should consider the causal sequence of the accident when determining liability.

Also, the legislative body must take data privacy into consideration when enacting statutes governing AVs. There are tons of cars on the road. Drivers should interact with other drivers to safely get to their destination. Therefore, AVs should share locations and current situations to interact well with other AVs. This means that a single entity should collect each AVs information and calculate it to prevent accidents or to effectively manage traffic. Nowadays, almost every driver is using navigation. This means that people must provide their location to a service provider, such as Google maps. Some may argue that service providers like Google maps already serve as a collector of vehicle information. But there are many navigation services. Since all AVs must interact with each other, centralizing the data with one service provider is wise. While centralizing the data and limiting consumer choice to one service provider is advisable, the danger of a data breach would be heightened should one service provider be selected. This is an important and pressing concern for legislatures considering enacting legislation regarding centralizing AV data with one service provider.

Therefore, enacting an effective, smart, and predictive statute is important to prevent potential problems. Notwithstanding its complexity, many states in the U.S. take a positive stance toward the commercialization of AV since the industry could become profitable. According to statistics from National Conference of State Legislatures, 33 states have introduced legislation and 10 states have issued executive orders related to AV technology. For example, Florida’s 2016 legislation expands allowed operation of autonomous vehicles on public roads. Also, Arizona’s Governor issued an executive order which encouraged the development of relevant technologies. With this steps, development of a legal shield is possible someday.

The Atlantic Mackerel Plight: Roadblocks to Prevent Overfishing

October 22, 2018
Food and Agriculture, Uncategorized

Yvie Yao, MJLST Staffer

Atlantic mackerel, like sardines and herring, are small forage fish. Not only are they vital prey for seabirds and larger fish like bluefin tuna and cod, but also essential for the survival of ocean wildlife.

Although Atlantic mackerel are resilient to fishing pressure and bycatch risk, scientists announced this year that fishing activities along the coast have added too much pressure to the population of mackerel. That being said, Atlantic mackerel is overfished. On February 28, 2018, the federal government, unsurprisingly, declared that the catching cap for mackerel had been reached and the mackerel fishing season was officially closed for the rest of this year.

To prevent overfishing of a species, the Magnuson-Stevens Fishery Conservation and Management Act requires that local fish councils create a rebuilding plan as soon as possible, not to exceed 10 years. Conservative practices endorse setting a shorter rebuilding timeline with lower catch levels so that the species can recover as quickly as possible. Setting longer timelines with higher catch levels is risky. The species might be commercially inviable sooner than the projection and the council is less likely to reach its goal of rebuilding the under-stocked population. Moreover, low stock of the species is likely to negatively impact healthy and sustainable living of its predators in the ocean system.

The Magnuson-Stevens Act has been effective since it was first passed in 1976. Two amendments in 1996 and 2006 furthered the interest of fishery conservation, requiring local councils to place all overfished stocks on strict rebuilding timelines and mandate hard limits on total catches. These science-based provisions have recovered 44 fish stocks around the country and have generated $208 billion in sales in 2015 for fishermen.

However, this effective ocean fishery conservation law is facing challenges. On July 11, 2018, the House passed H.R. 200: Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act. The bill, if it becomes law, would change rules about requirements to rebuild overfished stocks and allow councils to consider changes in an ecosystem and the economic needs of the fishing communities when establishing annual catch limits.

Recreational fishing and boating industry groups vehemently support this bill. They argue that the proposed changes would give alternatives to local councils to manage fish stocks, save taxpayers money, and modernize the management of recreational fishing.

Environmentalists and commercial fishermen oppose this bill. They argue that the proposed bill would let local councils rehabilitate them as fast as practicable, rather than rebuilding stocks as fast as possible, leading to looser regulation. The bill would also remove annual catch limits for short-lived species and ecosystem-component species, where forage fish including Atlantic Mackerel fall into the category. This backtrack from science-based policy would further delay restocking of forage fish and might even drive some species to commercial extinction.

It is unknown whether H.R. 200 will be passed in the Senate. Another companion bill S.1520, Modernizing Recreational Fisheries Management Act of 2017, envisions the same goal as H.R. 200. Will we be able to eat Atlantic Mackerel in the next ten years? The answer is uncertain. Regardless, the vote against such bill is a chance to “affirm that science, sustainability, and conservation guide the management of our ocean fisheries.”

The Great Minnesota Divide: Can a Solution to Address the Urban/Rural Split Over Copper-Nickel Mining Come From Conservation Efforts Abroad?

October 22, 2018
Environment, International Law

Allie Jo Mitchell, MJLST Staffer

Two different companies are attempting to undertake copper-nickel mining projects in the Superior National Forest on watersheds that feed Lake Superior and the Boundary Waters Canoe Area (the nation’s most popular national wilderness area). Copper-nickel mining would be new to the Iron Range, a region in Northeastern Minnesota that has long been mined for taconite, or iron ore. Support or opposition over copper-nickel sulfide mining in Minnesota tends to trend along the urban-rural divide.

For instance, a survey conducted by a pro-mining group found that 57% of voters in the Iron Range, support copper-nickel mining. Compare this with a poll paid for by Save the Boundary Waters that showed statewide 70% of Minnesota voters opposed this new type of mining in the state. This urban-rural divide is not an unheard of phenomenon. The New York Times published an in depth article in 2017 exploring the rift between the “working class” and “progressive activists” as played out in the fight over these new mining proposals in Northern Minnesota.

Both sides of the argument tend to paint in broad brush strokes. Advocates of the mines want the freedom to earn a steady income in a region where their family has– often– been living for generations. They see new mining projects as a way to provide economic development and stability to a region reeling from decades of job losses and a shrinking population. They also believe copper-nickel mining can be done without jeopardizing the environment. However, Minnesota’s regulations have not been updated since the 1990s and are not adequately adapted for this new type of mining. Furthermore, copper-nickel sulfide mines have been the cause of devastating environmental disasters in British Columbia and Chile.

Opponents, on the other hand, believe that the BWCA watershed, Lake Superior, and Superior National Forest contain some of Minnesota’s most pristine waters and wild areas. They fear that the destructive impacts of copper-nickel mining could destroy some of Minnesota’s greatest treasures. Opponents also contend that ecotourism and a growing market for outdoor recreation can revitalize the slumped region and replace an economy centered around mining. Despite these claims, ecotourism jobs tend to be seasonal and are unlikely to replace the high-wage jobs mining offers. As pointed out in the NYT article, there’s also a hypocrisy to “elitists” living in urban centers dictating what rural Northern Minnesotan’s can and cannot do with the land while benefiting from metals produced from mining.

Perhaps this harsh dichotomy doesn’t have to exist. Minnesota’s BWCA and Lake Superior offer some of the world’s most abundant and pristine fresh water resources. In an era rife with water shortages/crises, extreme heat, and rampaging wildfires, the immense value of these resources shouldn’t be taken for granted. The BWCA also provides an escape for many from a loud, noisy, and interconnected world.

One possible solution is to look outside the United State’s borders at successful programs centered around payments for environmental services (“PES”). These programs can “encourage projects that enhance restoration, production, and rural development.” An example is the UN REDD+ program which creates financial value for carbon stored in forests by offering incentives for developing countries to reduce carbon emissions from deforestation/degradation. The Guardian has compared PES programs to a public utility that generates electricity, “[j]ust as we pay for electricity services, and thus ensure their continuing provision, so . . . should [we] pay for the climate service that tropical forests provide.” In fact, carbon offset credit markets now exist where individuals can pay for carbon reduction/eliminating services to offset their carbon footprint.

While the resources the BWCA, Lake Superior, and the Superior National Forest offer are distinct from carbon sequestration services of forests in tropical regions, the fundamental principles behind PES can still be applied. Because the proposed mines would sit on public lands, payments for land preservation would need to be returned to communities with a focus on economic stimulation of the region. While direct payments have worked in other contexts (e.g. giving money directly to residents of neighboring communities that would be harmed by a moratorium on mining), this would not negate the social/cultural need many have to work a steady job. Furthermore, if the state attempted to transfer payments to Iron Range residents through the tax system, it could face equal protection challenges. See Zobel v. Williams, 457 U.S. 55 (1982) (holding that a taxation scheme wherein residents were paid a graduated rebate based on how many years they had lived in-state violated the equal protection clause).

Ultimately, a PES program in Minnesota would raise significant legal and cultural implications. But if 70% of Minnesotan’s oppose copper-nickel mining in Northern Minnesota, maybe they’d be willing to pay to keep that wilderness wild.

Delay of Game: How the MLB’s Baseball Exemption Has Stood the Test of Time

October 15, 2018
Antitrust, Sports Law

Alex Karnopp, MJLST Staffer

Rushing home after a long day at law school, I eagerly anticipated tuning in to the Milwaukee Brewers match-up with their division rivals, the St. Louis Cardinals. With the two teams vying for a spot in the upcoming playoffs, the game’s broadcast was, expectedly, upgraded to a national broadcast on ESPN. But as I tuned in, I couldn’t find the broadcast. I checked online, and sure enough, my Minneapolis cable provider had blocked the broadcast. They incorrectly determined I was within viewing territory of the local Fox Sports Wisconsin broadcast of the game. On top of that, my MLB.tv internet streaming subscription was blocked because of their policy of not airing national broadcasts. Despite my numerous subscriptions to ensure I could view all Milwaukee Brewers game throughout the season, I was prevented from watching one of their biggest games of the year.

To MLB fans, my situation comes to no surprise – the “black-box” broadcasting policies of the league leaves many viewers without choices, since MLB-determined blackout territories usually outreach local broadcasting territories. Cities like Cedar Rapids, Iowa, or Las Vegas, Nevada, fall outside any local viewing broadcast territories, yet sit between six overlapping MLB blackout areas. Complaining fans have caught the attention of the legal system. A couple recent class action lawsuits seek to challenge the MLB’s policy of entering these lucrative contracts with local broadcasting networks. However, they face difficult legal hurdles, specifically the established Baseball Exemption.

The Baseball Exemption has been the cornerstone of the MLB’s antitrust defense since its establishment in 1922 by the Supreme Court in Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. Courts have routinely upheld the exemption, most recently in Flood v. Kuhn. They noted in this opinion, however, this exemption should be modified by “congressional, and no judicial, action.”

The two lawsuits, Laumann v. NHL and Garber v. Office of the Comm’r of Baseball, were consolidated, and sought to singlehandedly dismantle these television contracts as violations of the Sherman Act. Legal scholars expressed optimism this would end the Baseball Exemption defense as applied to broadcasting. As these scholars expected, the United States District Court for the Southern District of New York, on denying MLB’s motion for Summary Judgment, rejected their argument that the Baseball Exemption applied to televised broadcasting. Sensing danger, the MLB settled with the class minutes before the trial began. While conceding marginally better access to their MLB.tv proprietary internet streaming service, they preserved their blackout policy.

With their deep pockets, the MLB will continue this pattern of deferring judicial adjudication of the blackout policy by settling these class action lawsuits. If classes want to dismantle the MLB’s suspect blackout policies, they need to take the Supreme Court’s advice in Kuhn and resolve the problem via legislation. In 2015, Congress introduced the FANS Act to ensure antitrust laws applied equally among all American professional sports teams. There has been no movement since. Perhaps the lawsuit signals to Congress of the social and legal momentum to end the MLB’s blackout policies. However, these class action lawsuits will likely have no more effect than that. It will be interesting to see if Congress does anything with the introduced bill, as it appears the best route to fix this current problem.

Sulfur-Ore Mining in Minnesota: Are Near-Term Economic Gains Worth Long-Term Losses?

October 15, 2018
Economics, Environmental Law

Sam Duggan, MJLST Staffer

Mining copper and nickel from sulfur-ore in Northern Minnesota is different than mining iron from taconite, and the environmental consequences are orders of magnitude greater. Unfortunately, the public discourse around developing copper and nickel reserves largely fails to consider this. As a result, the public is not armed with information needed to rationally debate whether sulfur-ore mining is a good choice for Minnesota.

Taconite is a relatively unreactive iron-containing mineral. Although miners exposed to asbestos-like compounds from taconite dust are likely at increased risk of mesothelioma, proper dust mitigation practices and sound environmental planning/reclamation can limit long-term consequences to a scarred landscape. However, as with other types of mining, there are consequences associated with boom-or-bust economics.

In stark contrast to taconite, sulfur-ore is highly reactive and has a particularly insidious property. A decommissioned mine slowly fills with rain, snowmelt and ground water. Sulfur reacts with water and oxygen to produce sulfuric acid, which dissolves metals contained in the sulfur-ore. Like a liquid miner, this acid liberates geologically sequestered metals into a dissolved, bioavailable and toxic form. As metals dissolve from the mine walls, more sulfur is exposed to oxygen and water. This produces more sulfuric acid which dissolves more metals. Through this chain reaction, the mine “mines” itself for centuries or more after its decommission. Importantly, mining target metals (i.e., copper, nickel) never occur alone. They co-occur with non-targets (i.e., lead, cadmium, manganese, arsenic, sulfate) that also dissolve from mine walls. Over time, concentrations of toxic compounds grow higher. Once the mine fills, acidic and metal-rich water (acid mine drainage) leach down-gradient and poison the watershed. Similar processes also occur in tailings piles stored outside the mine.

Sulfur-ore mines are responsible for numerous Superfund sites, including the infamous Berkley Pit copper mine. In 2016, thousands of snow geese landed in Berkley Pit’s toxic water and died en masse. Consider also the 2015 Gold King mine spill. At Gold King, a mine entrance cap was accidentally ruptured during routine monitoring and 3 million gallons of acidic, metal-rich water poured into the Animas River in Southwest Colorado. Related lawsuits seek many millions in damages. The history of mining in the Western U.S. is replete with other examples of sulfur-ore mines contaminating watersheds.

Methods exist for mitigating sulfur-ore mine pollution including capping, chemical neutralization, and constructing water treatment facilities specifically dedicated to the mine. However, these options cost millions and must be perpetually maintained, as it is nearly impossible to prevent water and oxygen from entering a mine. The chain reaction can linger for millennia, continually dissolving metals from rock and leaching toxins into the watershed.

Notably, the mining corporations who reap the lion’s share of a mine’s economic benefit escape long-term environmental liability because bankruptcy law and parent-subsidiary corporate structure often shield parent corporations from their mining subsidiaries’ environmental liabilities. For precisely this reason, the mine permitting process often requires corporations to offer financial assurances for potential environmental damages. However, financial assurances underestimate damages, and taxpayers are left with the bulk of sulfur-ore mine cleanup costs for generations.

The long-term consequences of sulfur-ore mines were recognized by the Obama Administration, particularly regarding mining in Minnesota’s Boundary Waters watershed. In 2016, the Obama Administration instituted a 2-year moratorium on mining permits near the Boundary Waters to study effects of sulfur-ore mining. That study could have led to a 20-year permitting moratorium. However, in 2018, after only 15 months, the Trump Administration decided that the study did not reveal new information and lifted the moratorium. Now, parent companies such as Chile’s Antofagasta can apply for mining permits within the Boundary Waters watershed via their subsidiary company Twin Metals. The permitting process is already underway for Polymet — an open pit, sulfur-ore copper mine just outside the Boundary Waters watershed. Importantly, Minnesota’s sulfur-ore resources could support dozens of mines.

Given that sulfur-ore mines are economically viable for a few decades and an environmental scourge for centuries or more, decision makers should consider whether near-term economic gains are worth long-term losses.

“Juuling”: Gen Z’s Alleged Addiction May Mean Major Legal Problems for E-Cigarette Companies

October 6, 2018
Corporate Ethics, Ethics, Food and Agriculture, Health, Product Liability, Public Health

By: Jack Kall, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

With every new week comes new headlines regarding Gen Z and their latest craze. After years of Millennials being cast as the generation responsible for everything wrong in the world, (Business Insider’s list of 19 things Millennials are killing, including everything from homeownership, banks, football, and oil to beer, napkins, cereal, and bars of soap; NPR describing how Millennials are killing Applebee’s; Forbes claiming Millennials might kill home-cooked meals and kitchens) it seems the media has found a new culprit, Gen Z! Gen Z’s supposed addiction to e-cigarettes, specifically to the JUUL brand, is common among the headlines.

Depending on how you define the generation, Gen Z includes anyone born in the years starting with 1995–2000 and ending between 2014–25. Pew Research has yet to name or define the end date of Gen Z, but it defines the “Post-Millennial generation” as those born 1997 and later.

No matter how you define Gen Z, it includes high school students, many of whom are under the legal tobacco consumption age of 18. High schoolers have been a major reason for both the rise of e-cig popularity and for giving JUUL Labs major market share in the e-cig industry. Browse through social media pages popular within the Gen Z community and you’ll inevitably see numerous posts about “Juuling.” However, Gen Z isn’t alone in its supposed obsession with e-cigs, as Leonardo DiCaprio (a member of Gen X) has long been known to appreciate vaping (e.g., 1, 2, 3).

JUUL Labs, which launched in 2015, has been repeatedly investigated for targeting minors through its advertising and sued for targeting teens with false claims of product safety. In 2017, Consumer Reports found that teens who vape are seven times more likely to turn to regular cigarettes. Additionally, the CDC has declared e-cig use among young people a public health concern.

As further research is published, JUUL should expect be the main target of continued legal action. One current case, a nationwide class action with ten named plaintiffs aged above 13, alleges in part that JUUL’s decision to market through social media was aimed at soliciting those under the legal smoking age. Another case, filed on behalf of a high school sophomore, alleges that JUUL is commonplace among his school, including use “on the school bus, in the bathrooms, outside of school and even in class.”

JUUL Labs will hope to continue to have success while under major legal scrutiny for its marketing practices. JUUL, importantly, hopes it can continue to show growth following its impressive financial valuation (most recently raising $1.2 billion in a financing round that valued the company at over $15 billion).

The CASE Act: Enabling Copyright Trolls

October 6, 2018
Copyrights

By: Zander Walker, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

Since 2010, there has been a measurable shift in copyright litigation away from infringement deterrence and towards monetization. As recently as 2001, fictitious defendants (often referred to as “John Doe” defendants) were named in only 4% of cases, according to a recent review of copyright litigation. By 2016, John Doe defendants were named in approximately 40% of all copyright litigation. One single plaintiff, Malibu Media, accounted for approximately 60% of John Doe cases in the 2015–16 period, totaling more than 2,600 lawsuits. These cases disproportionately resolve by voluntary dismissal and virtually never make it to trial. Because of their tendency to pursue legal action for improper or harassing reasons, these plaintiffs have been called “copyright trolls”

Generally, copyright trolls follow a fairly consistent format. The troll obtains a large number of IP addresses associated with a BitTorrent swarm and names those IP addresses as John Doe defendants in one or more complaints for copyright infringement. The troll then files a subpoena for identifying information (e.g., account holder’s name, billing address, etc.) corresponding to each IP address (a process referred to a “unmasking” an IP address). This identifying information allows the troll to send a settlement letter meant to scare the recipient—they typically state the maximum statutory damages of $150,000 and then offer to settle for a fraction of that value. Normally, the troll offers to settle for only a few thousand dollars, though these settlements can occasionally reach sums in the tens of thousands of dollars. Malibu Media, for example, normally obtains settlements valued between $2,000 and $30,000, according to a New Yorker interview with their attorney.

This format was pioneered by two alumni of the University of Minnesota Law School, John Steele and Paul Hansmeier (class of 2006 and 2007, respectively). Prenda Law acquired rights to a number of pornographic films and produced several of their own as well, engaging in thousands of lawsuits for alleged copyright infringement. They attracted notoriety for their unethical, and sometimes illegal, settlement tactics. Steele and Hansmeier were known for seeding torrents of their content in order to induce copyright infringement, and would name IP addresses from their own BitTorrent swarm as defendants. In addition to threats of legal action, Steele and Hansmeier would use the nature of the allegedly infringed content as a source of social blackmail, threatening to share the allegations with friends, family, or employers unless the settlement offer was accepted. Steele and Hansmeier made roughly $6 million through these coerced settlements before they were indicted on criminal charges of fraud and money laundering. Both have pleaded guilty.

Although Prenda Law is now defunct, other copyright trolls have taken their place. Malibu Media alone has filed more than 1,700 lawsuits in the first half of 2018. European nations have begun to crack down on copyright trolls by limiting the ability of trolls to unmask IP addresses, partly the result of lawsuits filed by several large European internet service providers to keep their customers’ information private. Though some US judges have also begun denying these subpoenas, a proposed law is poised to give copyright trolls an administrative bypass to the traditional judicial process for obtaining a subpoena. In October 2017, Rep. Jeffries (N.Y.) introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (“CASE Act”), a bill designed to expediate the copyright dispute system for small-entity copyright holders by creating a “Copyright Claims Board” (“CCB”) within the Copyright Office. The CCB would possess broad adjudicatory powers so that it could take on low-value copyright infringement cases. However, section 1405(z) of the Act would allow the CCB to issue subpoenas capable of unmasking John Doe defendants and would grant it authority to promulgate its own rules governing the issuance of those subpoenas. Thus, a copyright troll could potentially utilize the CCB to identify victims in lieu of a subpoena from a federal court. Proponents of the CASE Act claim that copyright trolls would be deterred from filing claims with the CCB because the Act caps damages on CCB claims at $30,000. However, this statutory cap still far exceeds many settlements reached by copyright trolls, meaning it would likely have a minimal effect, if any, on deterring improper litigation. In effect, the CASE Act lacks sufficient safeguards to prevent the CCB from functioning like a “fast-track” for copyright trolls. The House Judiciary Committee has held several hearings on the CASE Act but has not yet put the Act to a vote. If the Act is enacted in the future, hopefully it is without section 1405(z).

California’s Sport Venue Boom: A Weakening of CEQA?

October 6, 2018
Environment, Environmental Law, Uncategorized

By: Gabe Branco, Minnesota Journal of Law, Science & Technology Vol. 20 Staffer

The Los Angeles Rams, Sacramento Kings, Golden State Warriors, Los Angeles Clippers, and Oakland A’s are all seeking to build new stadiums in compliance with the California Environmental Quality Act (“CEQA”). CEQA subjects public and private agencies to a process focused on determining any significant environmental impact the proposed project may have and whether any suitable alternatives exist that may mitigate those significant impacts. The process takes some time, as the agency must complete several environmental impact reports (“EIR”), allow for adequate public notice and comment, and provide a period of time for environmental based claims to be litigated.

The Golden State Warriors have been successful in their CEQA process, but have been subjected to high costs in preparing the EIRs and combating lawsuits from environmental groups. The Los Angeles Rams have taken a different approach. CEQA allows for agencies to file for project “statutory exemptions” in order to cut down on the lengthy procedural process. One exemption of CEQA is the voter-sponsored ballot initiatives. In California, it is the right of the people to make changes to the law through these initiatives, which have the same effect as legislation. Land use decisions are subject to these initiatives, and thus projects that are approved through the initiative are not subject to CEQA. The Los Angeles Rams collected signatures from 15% of the population in Inglewood to qualify the development project for special election. The development project was then supposed to be placed on the ballot initiative, but the Inglewood City Council unanimously approved the project. The Los Angeles Rams do not need to complete an EIR, provide time for notice and comment, and are shielded from litigation. The Los Angeles Clippers, Sacramento Kings, and Oakland A’s have received or are in the process of receiving legislative exemptions with varying CEQA procedures somewhere in between the Golden State Warriors’ and the Los Angeles Rams’ processes. While the afore-mentioned franchises must still complete an EIR, they have considerably reduced (or eliminated) litigation and notice and comment periods.

The question becomes whether these exemptions given so willingly to sports teams weaken CEQA’s ability to force agencies to be more considerate of a project’s environmental impacts and alternatives. Sport stadiums do have a significant impact on the environment. Shortening or doing away with judicial review and notice and comment limits the number of alternatives an agency could be made aware of and limits public recourse for legitimate claims, leading to a less than efficient plan for limiting significant environmental impacts.

So far, the courts have held that past projects with CEQA exemptions do not conflict with CEQA’s purpose. Saltonstall v. City of Sacramento, 234 Cal.App.4th 449 (2015). The rationale may well be rooted in the desire for the Courts to limit the amount of environmental litigation on the Court’s docket, and push through stadium projects that may vitalize a California city’s economy. While state legislators have introduced a bill that would prevent future sports teams from gaining the exemption the Los Angeles Rams received, teams may still limit the procedures enforced by CEQA through legislative exemptions. Clearly, that as long as sports have a strong economic foothold in American culture, sports stadiums will continue to be built at the expense of the environment.

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October 2018

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