Torts Law

Target Number One, the Consequences of Being the Best

Ben Lauter, MJLST Staffer

The World of Chess

Since 2013, Norwegian Magnus Carlsen has been the reigning World Champion in chess. This achievement was not shocking to many; Magnus has been an elite chess prodigy and Grandmaster since the age of thirteen (nine years before his eventual champion title). Many regard Magnus as the best chess player ever, surpassing the legend of Fischer and Kasparov[1], two former great world champions. During Kasparov’s reign, he drew, or tied, Magnus in a classical game[2] of chess when Magnus was just thirteen. With this being said, it seems impossible to quantify the talent and genius that Magnus possesses and continues to refine in chess. However, that is exactly what the ELO rating system intends to do.

An ELO rating is a calculation of a chess player’s current skill level. Magnus boasts the highest classical ELO rating ever to be retained: 2882. Along the way to receiving this all-time high was a period of time spanning nearly two and a half years where Magnus did not lose a single classical game, winning 125 straight. All of this is to say, Magnus Carlsen is an unstoppable force in chess. However, on September 4th, 2022, Magnus played a game that would snap his then current 53 game winning streak. On that date he lost to a 19-year-old American at the St. Louis based Sinquefield Cup Tournament, Hans Niemann, a San Francisco born prodigy currently ranked as the 49th best player in the world with an ELO rating of 2688.

The Match

This match had anything but a quiet result, despite the silence in the interviews afterwards. All that was said from the reigning World Champion was a tweet stating that Magnus would be withdrawing from the tournament, a measure that is near unprecedented from a World Champion at such a major world tournament. With that tweet, a clip was attached of the famous soccer (football) manager, Jose Mourinho, saying “If I speak, I will be in big trouble.” The chess world speculated that this was Magnus’s informal way of accusing the teenage Hans of cheating in an “over the board” chess match. A conjecture of which the chess world has not yet made peace, with article after article, interview after interview, and Grandmaster after Grandmaster giving their two cents.

There were many aftershocks to Magnus’s tweet, but it seems that the legal ones, namely a defamation case for slander or libel, may be the worst for Magnus. For the past several weeks Hans Niemann has been put under the magnifying glass. He has faced harassment, attacks on his character, and irreparable reputational damage. Yet, Magnus has still failed to present any evidence as to why he withdrew or sent that tweet out to the world and has not yet clarified or disclaimed any of the rumors that shadow Hans.
For a while, it looked like Hans would simply have actions and innuendos as his evidence in a slander or libel case. Then, after an online chess tournament that both Magnus and Hans were participants in, Magnus put out his official position on the matter. Magnus declared that on top of cheating in his match in St. Louis, Hans was a serial chess cheater and should be punished proportionately to the crime he committed. In Magnus’s declaration, he said that he believed his accusation whole-heartedly and would never participate in an invitational event in which Hans plays again. Throughout the rest of the statement Magnus provided zero evidence of the alleged cheating and stated he could not release his evidence without the approval of the player that he accused.

Consequences

There are two massive consequences likely to result from Magnus’s statement. The first is that Han’s professional career will likely be in ruins. Invitationals are a priority for top ranked chess professionals, allowing them to play in official matches and record status for their rating in addition to receiving prize money. If an invitational is going to have to choose between a candidate for the best player of all time, Magnus, and a rising teenager, Hans, there might not be a long discussion. The second consequence is that because no evidence has been released to validate the statements that Magnus made based on his gut feeling, Hans may have a case for slander or libel.

There are four elements to prove in a slander case. The plaintiff must show that there was a false statement made purporting to be fact, a publication of that statement to a third person, fault amounting to at least negligence, and damages incurred. Two of these elements are quite clear and likely provable; there was publication of a statement and there were damages to Han’s reputation. The other two elements require further analysis. The third element related to fault asks one to look to Magnus’s state of mind when he made his statements and find evidence that he did so to tarnish Han’s name, or was at the very least negligent in making the statements, to fulfill a prima facie case for slander. This standard is notoriously hard to prove and will undoubtedly act as a roadblock to a slander case. However, it will likely be even harder for Hans to prove the first element, that the statement was false purporting to be fact. This element causes an issue because of the difficulty in proving that something that didn’t happen, didn’t happen. Specifically, Hans would have to show that he did not cheat in order to prove that Magnus’s cheating accusation was false.

Further complicating the issue is surfacing evidence from other sources making Magnus’s claim of cheating more believable. Statistical analysis of Han’s performances show that he has been playing games with computer moves 90% of the time or more, compared to the likes of Fischer, Kasparov, or Magnus who are only around 70% during their all-time peaks, and to traditional 2700 ELO rated Grandmasters who average between 50%-60%. Reports indicate that based on Han’s last 18 months of performance the chance that he played games at the rate he had without computer assistance is one in over 60,000. Without being able to prove that Magnus’s statements are at the least unlikely true, Hans will likely fail to prove slander and his career will likely be derailed after the events of September.

Notes

[1]  Kasparov is the longest reigning World Champion to date.

[2] A “Classical Game” is a time format of chess that allows for 120 minutes of play per person for the first forty moves; it allows for the deepest level of consideration on every move. As a result, classical games of chess are an incredibly accurate and sound measure of a player’s talent. They are used to determine the World Champion every two years.


Foodborne Illness Law: E. coli, Salmonella, and More

Katherine Nixon, MJLST Staffer

Sometime in the fall of 2018, I walked into Chipotle hoping for a nice savory burrito bowl. The best burrito bowl—at least in my opinion—is made up of the following: brown rice, chicken, cheese, lettuce, hot salsa, sour cream, and guacamole. One ingredient missing can throw off the whole experience. Well, I walked into Chipotle only to find a printed sign on the glass in front of the various ingredients. Let’s be honest, that never means anything good. The sign notified customers that Chipotle would not currently be offering romaine lettuce due to an E. coli outbreak. At first, all I could think was “Noooo, not my beloved burrito bowl. What will it be like without the crunchy lettuce?”

In looking past my immediate concern over the negative effect that a lettuceless burrito bowl would have on my taste buds, I was ultimately thankful I had not eaten the romaine lettuce. Big picture things. It was discovered that the romaine lettuce came from a farm in Santa Barbara County, California. It was distributed through many avenues and not just to food establishments like Chipotle. Unfortunately, people became very sick. According to the Center for Disease Control and Prevention (CDC), 62 people were infected from 16 states and the District of Columbia. Further, 25 people were hospitalized and 2 people developed a form of kidney failure. This ended up being a big deal. That particular outbreak began in October 2018 and wasn’t declared over until January 9, 2019.

Believe it or not, E. coli outbreaks occur with some frequency. A massive outbreak that began in September 2019 was just declared over by the CDC on January 15, 2020. Again, the source of that outbreak was romaine lettuce. Other outbreaks in 2019 came from ground bison, flour, and ground beef. Aside from E. coli, there are other types of outbreaks as well. For instance, in 2019, there were several Salmonella outbreaks related to food items such as papayas and frozen raw tuna. Many people fell sick.

At this point, you might be wondering—what does this all have to do with law? It turns out there is a whole body of law generally referred to as “foodborne illness law.” I know—you definitely don’t learn about that in your normal law school curriculum. Yet, the name is somewhat self-explanatory. As succinctly put by the Public Health Law Center at Mitchell Hamline School of Law, “[A] person who is injured as a result of a foodborne illness may bring a civil cause of action against another by claiming that the other individual is legally liable for the harm caused by the foodborne illness.” Sometimes, there is even strict liability.

Overall, this type of law can be highly technical and usually involves the help of experts. It also can be quite difficult. Including the difficulty that often comes in discovering the source of a certain outbreak as well as the manufacturer of that source. It can be like piecing a giant puzzle together. However, once the pieces start to fit together, it all begins to make sense. If you have a science background, especially biology, this may be an area of law for you to consider. Next time you are at a family gathering and Uncle Eddy asks what you want to do, tell him you want to specialize in foodborne illness law. That will surely grab his attention.

 

 


Broadening the Ethical Concerns of Unauthorized Copyright and Rights of Publicity Usage: Do We Need More Acronyms?

Travis Waller, MJLST Managing Editor

In 2013, Prof. Micheal Murray of Valparaiso University School of Law published an article with MJLST entitled “DIOS MIO—The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law”. (For those of you unfamiliar with the acronyms, as I was previous to reviewing this article, DIOS MIO stands for “Don’t Include Other’s Stuff or Modify It Obviously”, just as KISS stands for “Keep it Simple, Stupid”). This article explored an ethical approach to using copyrighted material or celebrity likeness that has developed over the last decade due to several court cases merging certain qualities of the two regimes together.

The general principle embodied here is that current case law tends to allow for transformative uses of either a celebrity’s likeness or a copyrighted work – that is, a use of the image or work in a way that essentially provides a new or “transformative” take on the original. At the other extreme, the law generally allows individuals to use a celebrity’s likeness if the usage is not similar enough to the actual celebrity to be identifiable, or a copyrighted work if the element used is scenes a faire or a de minimis usage. Ergo, prudent advice to a would-be user of said material may, theoretically, be summed up as “seek first to create and not to copy or exploit, and create new expression by obvious modification of the old expression and content”, or DIOS MIO/KISS for the acronym savvy.

The reason I revisit this issue is not to advocate for this framework, but rather to illustrate just how unusual of bedfellows the regimes of copyright and “rights of publicity” are. As a matter of policy, in the United States, copyright is a federal regime dedicated to the utilitarian goals of “[p]romot[ing] the progress of science,” while rights of publicity laws are state level protections with roots going back to the Victorian era Warren & Brandies publication “The Right to Privacy” (and perhaps even further back). That is to say, the “right to publicity” is not typically thought of as a strictly utilitarian regime at all, and rather more as one dedicated to either the protection of an individual’s economic interests in their likeness (a labor argument), or a protection of that individual’s privacy (a privacy tort argument).

My point is, if, in theory, copyright is meant to “promote science”, while the right to publicity is intended to either protect an individual’s right to privacy, or their right to profit from their own image, is it appropriate to consider each regime under the age-old lens of “thou shalt not appropriate?” I tend to disagree.

Perhaps a more nuanced resolution to the ethical quandary would be for a would-be user of the image or work to consider the purpose of each regime, and to ask oneself if the usage of that work or image would offend the policy goals enshrined therein. That is, to endeavor on the enlightened path of determining whether, for copyright, if their usage of a work will add to the collective library of human understanding and progress, or whether the usage of that celebrity’s likeness will infringe upon that individual’s right to privacy, or unjustly deprive the individual of their ability to profit from their own well cultivated image.

Or maybe just ask permission.


Has GoPro’s Voluntary “Karma” Refund Program Revealed a Gap in Regulatory Jurisdiction over Commercial and Private Drones?

Joey Novak, MJLST Staffer

Drones in the year 2016 are involved in everything from assisting law enforcement to recordings at weddings and sporting events to even the potential for package delivery, and as such, have been rapidly expanding further into recreational and commercial settings. Drones also have one of the most imaginably widespread liability palates you could think of, as 4th Amendment, privacy, property, and products liability issues all combine to form the Frankenstein’s monster of liability, that is if that monster was also subject to 152 pages of operational FAA regulation because he could fly.

With such a wide breadth of hot topic liability issues, it’s not surprising that what should be the most common issue for commercial use has been somewhat overlooked: product liability.  On November 8th, GoPro announced the “recall” of 2,500 Karma drones after the $800 drone had only been on the market for two weeks. Apparently, the design of an off-center camera placement led to increased vibration, leading to connectivity issues and in turn, drones unexpectedly falling out of the sky. Although no actual injuries have been reported, one does not have to make a large leap to imagine a falling drone leading to injury and subsequent liability issues.

The interesting thing about this “recall” is that it revealed a regulatory gap between the FAA (Federal Aviation Administration) and the CPSC (Consumer Product Safety Commission) for drone product liability. With the FAA taking over regulation of drones with their Part 107 regulations released in June of this year, a CPSC spokesperson has stated simply that “[w]e do not have jurisdiction over drones.” But while the FAA does regulate manufacturing of larger aircraft through a certificate process, its oversight of drones to this point has been restricted to operational issues, not the classic manufacturing or design defects that lie at the heart of products liability. Both agencies ended up “recommending” that GoPro proceed with their refund program, and GoPro has stated that they are working “in close coordination” with both agencies. However, GoPro was not actually required to report to either agency or participate in any government-mandated recall program.

Now with drones falling out of the sky, GoPro was greatly self-incentivized to get their products off of the market to avoid what would be pretty cut-and-dry liability in the event that any injuries actually did occur. But what if a potential issue with drones was not so obviously open to liability? Commercial drone companies could unilaterally decide to keep their products on the market if they determine that whatever injury that is occurring may, for example, be more of a result of user error rather than a classic manufacturing or design defect. Companies would then take their chances with potential suits, and the absence of an agency-mandated reporting and recall program could actually assist companies in their defense, as companies would only need to fulfill their post-sale duty to warn about the product’s dangers rather than recall the product entirely.

Restatement (Third) of Torts: Products Liability § 11 imposes liability for failure to recall pursuant to a governmental directive, but in the absence of such a government-mandated requirement a company can only be liable in recall if they decide to voluntarily recall the product and are negligent in doing so. This governmental requirement stems from the thought that, as the Michigan Supreme Court puts it, “the duty to repair or recall is more properly a consideration for administrative agencies and the Legislature.” In fact, as comment c. to the Restatement states, “voluntary recalls are typically undertaken in the anticipation that a government agency will require one anyway.”

If no government agency is requiring recall or repair for drones, companies are presumably left to make the counter-policy determination of whether the cost of potential liability from public injury outweighs the costs associated with repair or recall. While such a determination may require more than this cost-benefit vacuum (such as shareholder relations, consumer goodwill, future sales & outlook, etc.), government-mandated recall programs are put in place to prevent companies from having to weigh costs against public safety. GoPro certainly did the “right thing” here by swiftly engaging in a voluntary refund program (maybe they just wanted some good “Karm- ah forget it), but look for Congress to clarify agency jurisdiction over drone recalls in the near future to protect recreational and commercial drone producers against themselves.