Rationally Defeating Cronyism in the Boston TNC Suit

On March 31, a federal judge gave the city of Boston six months to rectify the disparities between the way it treats Transportation Network Companies (“TNC”) (such as Uber and Lyft) and taxicab companies. This comes pursuant to an order by US District Court Judge Nathaniel M. Gorton in a suit filed by members of the Boston taxi industry against the city and various officials. The suit is an interesting one because it reveals unusual fault lines in the ongoing struggle between taxi companies, local regulators, and the way that federal law recognizes and respects property and economic rights. 

The three chief claims by the Boston taxi medallion holders are that the city had wronged them by by devaluing their medallions in violation of the Fifth Amendment’s prohibition on regulatory takings, by discriminating against them in favor of TNCs under the equal protection clause (“EPC”) of the Fourteenth Amendment, and by violating Massachusetts law under a theory of promissory estoppel. 

On the federal claims, the court seems to get it half right, and half wrong.  In sum, Judge Gorton seems to get the takings argument more or less correct. He notes:

The exclusivity of medallion owners’ access to the market prior to the arrival of TNCs existed by virtue of the City’s regulatory structure rather than the medallion owners’ property rights.  Medallion owners have no property interest in the enforcement of Rule 403 against others  … If a person who wishes to operate a taxicab without a medallion is prevented from doing so, it is because he or she would violate municipal regulations, not because he or she would violate medallion owners’ property rights.

Indeed. The plaintiff’s takings argument essentially amounts to a claim that the government, by virtue of creating the medallion system, is thereby disabled from ever regulating in a way that disrupts medallion owners from making a profit. Efficiency concerns, consumer safety concerns, and the like be damned! takings can be a fairly complicated body of law, but it seems highly unlikely that the plaintiff’s view is right—for one thing, a medallion is much more like a business license subject to health and safety considerations than it is like a property right— and Judge Gorton handily disposes of the plaintiff’s claims.

However, on the EPC analysis Judge Morton’s analysis goes off the rails. He first properly notes that, as an economic rights claim, the EPC analysis is controlled by rational basis review. As the legally trained reader will already know,  “[r]ational basis review simply requires that there be “any reasonably conceivable set of facts justifying the disparate treatment.” 

According to the Supreme Court: 

[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.

And as Clark Neily, a constitutional litigator from the Institute for Justice, has noted: “Not only is the government invited to dream up entirely post hoc rationalizations for challenged legislation, it has “no obligation to produce evidence” in support of those rationalizations either.” (citing Heller v. Doe).

In short, rational basis review is an exceedingly easy burden for the government to meet when one of its regulations is challenged.

In this case, Boston offered a number of reasons that it decided to regulate TNCs and taxi companies differently, including a very strong one that doing so “enhances the city’s interest in increasing the availability and accessibility of cost-effective transportation[.]” Nonetheless, Judge Morton disagreed, holding that 

[T]he Court finds persuasive plaintiffs’ argument that many of the obvious differences between taxis from TNCs, such as the kind of vehicle used and the fact that taxicabs must be clearly labeled, are caused by the City’s application of the requirements of Rule 403 to taxi operators but not to TNCs.  The City may not treat the two groups unequally and then argue that the results of that unequal treatment render the two groups dissimilarly situated and, consequently, not subject to equal protection analysis.  Such circular logic is unavailing.

The judge pegged his opinion to the fact that Rule 403 — which regulates “hackney carriages” — defines the subject of its regulations as “used or designed to be used for the conveyance of persons for hire from place to place within the city of Boston.” Both TNCs and taxi cabs arguably fit into this definition, thus for Judge Morton, despite the fact that the city offered at least two policy goals for its differential regulations, “[n]either objective is … rationally related to any distinction between taxi operators and TNCs.” 

This just has to be wrong under current federal law. As I noted above, rational basis review requires “any reasonably conceivable set of facts”  and, even though the city created the distinctions itself through its regulations, the reasons it states for doing so — including increasing availability of transportation for its citizens — are definitely rationally related to its distinction between the two types of consumer carriers. Sure, Rule 403 provides a scope of regulatory power for the city that sweeps in both TNCs and taxicabs, but within that regulatory scope the City then has the power to “rationally” assign rules as it sees fit (unless someone comes up with a fundamental right here that is more important than economic interests, of course).

I get it, rational basis review of economic regulations is frustrating and often just provides a free pass to protectionist regulators. Nevertheless, it is the law, and I think that Judge Morton got the equal protection claim wrong.

The real lesson here? Don’t get into bed with government and expect a virtual monopoly to protect you indefinitely. It’s no secret that federal law provides scant little protection for economic liberty, so when the government decides it wants to do something that harms the industry that it was previously cozy with it’s just too bad. Maybe there is a future world in which courts will recognize the right to earn a living is as deeply important as the right to speak or practice your religion or vote — but that is not the world we live in today. 

Moreover, when an industry depends upon the government to explicitly protect it from competitors it is the worst kind of cronyism, and, at least in this case, represents an economic mindset that is badly aging. As upstart competitors like Uber and Lyft discover new ways to deploy cost-effective (and generally just more effective) technology to manage different industries, the fig leaf of legitimate government intervention is stripped away and revealed for what it often is: protectionism.

So to some extent, I sympathize with  Judge Gorton’s instinct in the equal protection claim: it should be the case that the government is not allowed to pick winners and losers in the economy based on its own taking of the political temperature. But the larger lesson is the opposite of the plaintiff’s intention, in my opinion. The government should roll back the regulations that created the medallion industry in the first place, and find a way to strike a politically feasible deal that eases the taxi companies out of their well-painted corner. We need more competition and more service in pursuit of consumer choice, and we need much less industry control guided in a top-down manner by state fiat.

The FCC, Privacy, and Authority Over the Edge: Forborn, not Forbidden

The FCC doesn’t have authority over the edge and doesn’t want authority over the edge. Well, that is until it finds itself with no choice but to regulate the edge as a result of its own policies. As the FCC begins to explore its new authority to regulate privacy under the Open Internet Order (“OIO”), for instance, it will run up against policy conflicts and inconsistencies that will make it increasingly hard to justify forbearance from regulating edge providers.

Take for example the recently announced NPRM titled “Expanding Consumers’ Video Navigation Choices” — a proposal that seeks to force cable companies to provide video programming to third party set-top box manufacturers. Under the proposed rules, MVPD distributors would be required to expose three data streams to competitors: (1) listing information about what is available to particular customers; (2) the rights associated with accessing such content; and (3) the actual video content. As Geoff Manne has aptly noted, this seems to be much more of an effort to eliminate the “nightmare” of “too many remote controls” than it is to actually expand consumer choice in a market that is essentially drowning in consumer choice. But of course even so innocuous a goal—which is probably more about picking on cable companies because… “eww cable companies”—suggests some very important questions. 

First, the market for video on cable systems is governed by a highly interdependent web of contracts that assures to a wide variety of parties that their bargained-for rights are respected. Among other things, channels negotiate for particular placements and channel numbers in a cable system’s lineup, IP rights holders bargain for content to be made available only at certain times and at certain locations, and advertisers pay for their ads to be inserted into channel streams and broadcasts. 

Moreover, to a large extent, the content industry develops its content based on a stable regime of bargained-for contractual terms with cable distribution networks (among others). Disrupting the ability of cable companies to control access to their video streams will undoubtedly alter the underlying assumptions upon which IP companies rely when planning and investing in content development. And, of course, the physical networks and their related equipment have been engineered around the current cable-access regimes. Some non-trivial amount of re-engineeringwill have to take place to make the cable-networks compatible with a more “open” set-top box market. 

The FCC nods to these concerns in its NPRM, when it notes that its “goal is to preserve the contractual arrangements between programmers and MVPDs, while creating additional opportunities for programmers[.]” But this aspiration is not clearly given effect in the NPRM, and, as noted, some contractual arrangements are simply inconsistent with the NPRM’s approach. 

Second, the FCC proposes to bind third-party manufacturers to the public interest privacy commitments in §§ 629, 551 and 338(i) of the Communications Act (“Act”) through a self-certification process. MVPDs would be required to pass the three data streams to third-party providers only once such a certification is received. To the extent that these sections, enforced via self-certification, do not sufficiently curtail third-parties’ undesirable behavior, the FCC appears to believe that “the strictest state regulatory regime[s]” and the “European Union privacy regulations” will serve as the necessary regulatory gap fillers.

This seems hard to believe, however, particularly given the recently announced privacy and cybersecurity NPRM, through which the FCC will adopt rules detailing the agency’s new authority (under the OIO) to regulate privacy at the ISP level. Largely, these rules will grow out of §§ 222 and 201 of the Act, which the FCC in Terracom interpreted together to be a general grant of privacy and cybersecurity authority.

I’m apprehensive of the asserted scope of the FCC’s power over privacy — let alone cybersecurity — under §§ 222 and 201. In truth, the FCC makes an admirable showing in Terracom of demonstrating its reasoning; it does a far better job than the FTC in similar enforcement actions. But there remains a problem. The FTC’s authority is fundamentally cabined by the limitations contained within the FTC Act (even if it frequently chooses to ignore them, they are there and are theoretically a protection against overreach). 

But the FCC’s enforcement decisions are restrained (if at all) by a vague “public interest” mandate, and a claim that it will enforce these privacy principles on a case-by-case basis. Thus, the FCC’s proposed regime is inherently one based on vast agency discretion. As in many other contexts, enforcers with wide discretion and a tremendous power to penalize exert a chilling effect on innovation and openness, as well as a frightening power over a tremendous swath of the economy. For the FCC to claim anything like an unbounded UDAP authority for itself has got to be outside of the archaic grant of authority from § 201, and is certainly a long stretch for the language of § 706 (a provision of the Act which it used as one of the fundamental justifications for the OIO)— leading very possibly to a bout of Chevron problems under precedent such as King v. Burwell and UARG v. EPA.

And there is a real risk here of, if not hypocrisy, then… deep conflict in the way the FCC will strike out on the set-top box and privacy NPRMs. The Commission has already noted in its NPRM that it will not be able to bind third-party providers of set-top boxes under the same privacy requirements that apply to current MVPD providers. Self-certification will go a certain length, but even there agitation from privacy absolutists will possibly sway the FCC to consider more stringent requirements. For instance, §§ 551 and 338 of the Act — which the FCC focuses on in the set-top box NPRM — are really only about disclosing intended uses of consumer data. And disclosures can come in many forms, including burying them in long terms of service that customers frequently do not read. Such “weak” guarantees of consumer privacy will likely become a frequent source of complaint (and FCC filings) for privacy absolutists.  

Further, many of the new set-top box entrants are going to be current providers of OTT video or devices that redistribute OTT video. And many of these providers make a huge share of their revenue from data mining and selling access to customer data. Which means one of two things: Either the FCC is going to just allow us to live in a world of double standards where these self-certifying entities are permitted significantly more leeway in their uses of consumer data than MVPD providers or, alternatively, the FCC is going to discover that it does in fact need to “do something.” If only there were a creative way to extend the new privacy authority under Title II to these providers of set-top boxes… . Oh! there is: bring edge providers into the regulation fold under the OIO. 

It’s interesting that Wheeler’s announcement of the FCC’s privacy NPRM explicitly noted that the rules would not be extended to edge providers. That Wheeler felt the need to be explicit in this suggests that he believes that the FCC has the authority to extend the privacy regulations to edge providers, but that it will merely forbear (for now) from doing so.

If edge providers are swept into the scope of Title II they would be subject to the brand new privacy rules the FCC is proposing. Thus, despite itself (or perhaps not), the FCC may find itself in possession of a much larger authority over some edge providers than any of the pro-Title II folks would have dared admit was possible. And the hook (this time) could be the privacy concerns embedded in the FCC’s ill-advised attempt to “open” the set-top box market. 

This is a complicated set of issues, and it’s contingent on a number of moving parts. This week, Chairman Wheeler will be facing an appropriations hearing where I hope he will be asked to unpack his thinking regarding the true extent to which the OIO may in fact be extended to the edge.

Time To Make The Donuts: Self-Help Agreements and ICANN Accountability

It seems like debates that involve the ability to access the Internet fall into absolutism very quickly. One could almost construct a corollary of Godwin’s law: 

As the length of a policy discussion involving the Internet increases, the probability of someone claiming a nefarious plot to destroy the Internet approaches 1.

Should there be zero-rated services for underserved populations? NO! It’s just Facebook trying to remake the Internet in its own image. Should broadband operators be able to intelligently optimize their networks and have some manner of allowing smaller players to purchase guaranteed bandwidth? HORRORS! That’s just cable companies creating fast-lanes and data caps in order to extort money out of poor defenseless consumers! Should we perhaps prevent companies from using clever tricks to circumvent our patent system and import laws? YOU CANNOT! Preventing infringing digital articles from entering the U.S. will close the Internet!

And of course, any effort to curb illegal content online can be attributable only to a cabal of content owners trying to give themselves an Internet kill switch. 

Only, it’s just not true. There is nothing at all legally necessary — or even reasonable — about a per se protection of one right at the expense of any other right. But that’s just what some would have us believe. Online, the right to expression simply must trump all other values — law enforcement and property owners be damned. 

But it’s hardly novel or controversial to understand that rights are balanced against each other and — with very rare exceptions — no right is absolute. Just as in the offline world, any one person’s rights online are circumscribed by the scope of everyone else’s rights. My ability to speak is not limited just by the principles of defamation and public safety, but also by the location where I speak. I am not entitled to limitless speech rights in all manner of private fora. Similarly, my right to travel does not entail my use of your privately owned vehicle – my rights are firmly delineated by at least the harm principle. 

And I think that, for the most part, everyone gets this. For instance, ICANN – the organization responsible for managing the domain name system (“DNS”) added some basic “public interest commitments” (“PIC”) into its registry and registrar agreements that are intended to discourage “distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law.” 

Of course even though these PICs sounds eminently reasonable, the free expression absolutists are there to claim that these provisions are just attempted “governance-by-infrastructure.” But, as elsewhere, this view gets the whole situation wrong.

At root, it is exceedingly improbable that DNS providers can avoid having some role in preventing the proliferation of illegal content. After all, ICANN, its registries, and its registrars are creatures of contract and statute, and as such are embedded in a social and legal context that expects certain minimal compliance from its institutions. Like, for instance, not facilitating thievery or the sale of unregulated and dangerous medicines.

That’s why it was particularly heartening to read about the Donuts-MPAA agreement last week: A private arrangement that finds a resolute middle ground that protects both expression rights as well as property rights. Donuts — the largest of the new gTLD registries — announced that it would be regarding the MPAA as a “Trusted Notifier” in its efforts to combat illegal content hosted through any of its TLDs. Essentially, this arrangement gives the MPAA an expedited method for submitting vetted complaints about widespread infringement being conducted through a Donuts-issued domain. Also as part of this arrangement, Donuts will implement a set of procedures, including the ability of affected registrants to protest, before any sanctions (e.g. domain name suspension) are imposed. 

“Self-help” mechanisms like Donuts’ “Trusted Notifier” are very important — not just for what they accomplish, but for what they say about the interests of ICANN and its registrars and registries in maintaining credibility by minimizing harmful behaviors. And, the real story here is that this sort of voluntary arrangement is in fact possible between these organizations. 

Frequently, rightsholders are vilified for any attempt to introduce reasonable accountability that might result in domain name suspensions because, naturally, only greedy, short-sighted groups like the MPAA and the RIAA would ever think of suspending domains where clear, pervasive property theft or other patently illegal conduct is occurring. This is of course a fantasy, and it is roundly rebutted by the Donuts-MPAA arrangement.

Interested in maintaining its credibility, both with the public, as well as with ICANN stakeholders, Donuts is motivated to ensure that it is a good corporate citizen. And this is where the Donuts-MPAA agreement really breaks new ground. This is a voluntary, arm’s-length arrangement reached through negotiation and mutual assent. This is not a master Internet switch that rights-holders get to flip at their whim, and it’s not a scattershot approach. It seems to be — at least from this early view — a fairly well-balanced, targeted, responsive and moderate approach to combating illicit use of the DNS.

Going forward, I think Congress and ICANN should take a lesson from Donuts’ approach to dealing with illegal content. Continuing to rely on the PIC provisions of the registry agreement is a no-brainer. But more broadly, the PICs should be woven into a larger enforcement “ecosystem” that ideally has ICANN in more of a supervisory role. 

ICANN sets up the rules of the road that everyone is expected to follow, and can leave it to the registries to operationalize the basic PICs. If done correctly, the accountability regime could be realized through a simple respect for contracts — which ICANN could then guarantee as one of the few positive commitments for enforcement that it makes.

A Win for Free Speech: Federal Circuit Holds (part of) §2(a) of the Lanham Act Unconstitutional

It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.

The Federal Circuit handed down a victory for free expression today — in the commercial context no less. At issue was the Lanham Act’s § 2(a) prohibition of trademark registrations that

[c]onsist[] of or comprise[] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

The court, sitting en banc, held that the “disparaging” provision is an unconstitutional violation of free expression, and that trademarks will indeed be protected by the First Amendment. Although it declined to decide whether the other prohibitions actually violated the First Amendment, the opinion contained a very strong suggestion to future panels that this opinion likely applies in that context as well.

In many respects the opinion was not all that surprising (particularly if you’ve read my thoughts on the subject here and here ). However given that it was a predecessor Court of Customs and Patent Appeals decision, In Re McGinley, that once held that First Amendment concerns were not implicated at all by § 2(a) because “it is clear that the … refusal to register appellant’s mark does not affect his right to use it” — totally ignoring of course the chilling effects on speech — it was by no means certain that this decision would come out correctly decided.

Today’s holding vacated a decision from a three-judge panel that, earlier this year, upheld the ill-fated “disparaging” prohibition. From just a cursory reading of § 2(a), it should be a no-brainer that it clearly implicates the content of speech — if not a particular view point — and should get at least some First Amendment scrutiny. However, the earlier three-judge opinion  gave all of three paragraphs to this consideration — one of which was just a quotation from McGinley. There, the three-judge panel rather tersely concluded that the First Amendment argument was “foreclosed by our precedent.”

Thus it was with pleasure that I read the Federal Circuit as it today acknowledged that “[m]ore than thirty years have passed since the decision in McGinley, and in that time both the McGinley decision and our reliance on it have been widely criticized[.]” The core of the First Amendment analysis is fairly straightforward: barring “disparaging” marks from registration is neither content neutral nor viewpoint neutral, and is therefore subject to strict scrutiny (which it fails). The court notes that McGinley’s First Amendment analysis was “cursory” (to put it mildly), and was decided before a fully developed body of commercial speech doctrine had emerged. Overall, the opinion is a good example of subtle, probing First Amendment analysis, wherein the court really grasps that merely labeling speech as “commercial” does not somehow magically strip away any protected expressive content.

In fact, perhaps the most important and interesting material has to do with this commercial speech analysis. The court acknowledges that the government’s policy against “disparaging” marks is targeting the expressive aspects of trademarks and not the more easily regulable “transactional” aspects (such as product information, pricing, etc.)— to look at § 2(a) otherwise would not make sense as the government is rather explicitly trying to stop certain messages because of their noncommercial aspects. And the court importantly acknowledges the Supreme Court’s admonition that “[a] consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue” ( although I might go so far as to hazard a guess that commercial speech is more important that political speech, most of the time, to most people, but perhaps I am just cynical).

The upshot of the Federal Circuit’s new view of trademarks and “commercial speech” reinforces the notion that regulations and laws that are directed toward “commercial speech” need to be very narrowly focused on the actual “commercial” message — pricing, source, etc. — and cannot veer into controlling the “expressive” aspects without justification under strict scrutiny. Although there is nothing terrible new or shocking here, the opinion ties together a variety of the commercial speech doctrines, gives much needed clarity to trademark registration, and reaffirms a sensible view of commercial speech law.

And, although I may be reading too deeply based on my preferences, I think the opinion is quietly staking out a useful position for commercial speech cases going forward—at least to a speech maximalist like myself. In particular, it explicitly relies upon the “unconstitutional conditions” doctrine for the proposition that the benefits of government programs cannot be granted upon a condition that a party only engage in “good” or “approved” commercial speech.  As the world becomes increasingly interested in hate speech regulation,  and our college campuses more interested in preparing a generation of”safe spacers” than of critically thinking adults, this will undoubtedly become an important arrow in a speech defender’s quiver.

No good deed goes unpunished: EFF slams Google for alleged violation of ambiguous privacy pledge

I have small children and, like any reasonably competent parent, I take an interest in monitoring their Internet usage. In particular, I am sensitive to what ad content they are being served and which sites they visit that might try to misuse their information. My son even uses Chromebooks at his elementary school, which underscores this concern for me, as I can’t always be present to watch what he does online. However, also like any other reasonably competent parent, I trust his school and his teacher to make good choices about what he is allowed to do online when I am not there to watch him. And so it is that I am both interested in and rather perplexed by what has EFF so worked up in its FTC complaint alleging privacy “violations” in the “Google for Education” program.

EFF alleges three “unfair or deceptive” acts that would subject Google to remedies under Section 5 of the FTCA: (1) Students logged into “Google for Education” accounts have their non-educational behavior individually tracked (e.g. performing general web searches, browsing YouTube, etc.); (2) the Chromebooks distributed as part of the “Google for Education” program have the “Chrome Sync” feature turned on by default (ostensibly in a terribly diabolical effort to give students a seamless experience between using the Chromebooks at home and at school); and (3) the school administrators running particular instances of “Google for Education” have the ability to share student geolocation information with third-party websites. Each of these violations, claims EFF, violates the K-12 School Service Provider Pledge to Safeguard Student Privacy (“Pledge”) that was authored by the Future of Privacy Forum and Software & Information Industry Association, and to which Google is a signatory. According to EFF, Google included references to its signature in its “Google for Education” marketing materials, thereby creating the expectation in parents that it would adhere to the principles, failed to do so, and thus should be punished.

The TL;DR version: EFF appears to be making some simple interpretational errors — it believes that the scope of the Pledge covers any student activity and data generated while a student is logged into a Google account. As the rest of this post will (hopefully) make clear, however, the Pledge, though ambiguous, is more reasonably read as limiting Google’s obligations to instances where a student is using  Google for Education apps, and does not apply to instances where the student is using non-Education apps — whether she is logged on using her Education account or not.

The key problem, as EFF sees it, is that Google “use[d] and share[d] … student personal information beyond what is needed for education.” So nice of them to settle complex business and educational decisions for the world! Who knew it was so easy to determine exactly what is needed for educational purposes!

Case in point: EFF feels that Google’s use of anonymous and aggregated student data in order to improve its education apps is not an educational purpose. Seriously? How can that not be useful for educational purposes — to improve its educational apps!?

And, according to EFF, the fact that Chrome Sync is ‘on’ by default in the Chromebooks only amplifies the harm caused by the non-Education data tracking because, when the students log in outside of school, their behavior can be correlated with their in-school behavior. Of course, this ignores the fact that the same limitations apply to the tracking — it happens only on non-Education apps. Thus, the Chrome Sync objection is somehow vaguely based on geography. The fact that Google can correlate an individual student’s viewing of a Neil DeGrasse Tyson video in a computer lab at school with her later finishing that video at home is somehow really bad (or so EFF claims).

EFF also takes issue with the fact that school administrators are allowed to turn on a setting enabling third parties to access the geolocation data of Google education apps users. 

The complaint is fairly sparse on this issue — and the claim is essentially limited to the assertion that “[s]haring a student’s physical location with third parties is unquestionably sharing personal information beyond what is needed for educational purposes[.]”  While it’s possible that third-parties could misuse student data, a presumption that it is per se outside of any educational use for third-parties to have geolocation access at all strikes me as unreasonable. 

Geolocation data, particularly on mobile devices, could allow for any number of positive and negative uses, and without more it’s hard to really take EFF’s premature concern all that seriously. Did they conduct a study demonstrating that geolocation data can serve no educational purpose or that the feature is frequently abused? Sadly, it seems doubtful. Instead, they appear to be relying upon the rather loose definition of likely harm that we have seen in FTC actions in other contexts ( more on this problem here).  

Who decides what ambiguous terms mean?

The bigger issue, however, is the ambiguity latent in the Pledge and how that ambiguity is being exploited to criticize Google. The complaint barely conceals EFF’s eagerness, and gives one the distinct feeling that the Pledge and this complaint are part of a long game. Everyone knows that Google’s entire existence revolves around the clever and innovative employment of large data sets. When Google announced that it was interested in working with schools to provide technology to students, I can only imagine how the anti-big-data-for-any-commercial-purpose crowd sat up and took notice, just waiting to pounce as soon as an opportunity, no matter how tenuous, presented itself. 

EFF notes that “[u]nlike Microsoft and numerous other developers of digital curriculum and classroom management software, Google did not initially sign onto the Student Privacy Pledge with the first round of signatories when it was announced in the fall of 2014.” Apparently, it is an indictment of Google that it hesitated to adopt an external statement of privacy principles that was authored by a group that had no involvement with Google’s internal operations or business realities. EFF goes on to note that it was only after “sustained criticism” that Google “reluctantly” signed the pledge. So the company is badgered into signing a pledge that it was reluctant to sign in the first place (almost certainly for exactly these sorts of reasons), and is now being skewered by the proponents of the pledge that it was reluctant to sign. Somehow I can’t help but get the sense that this FTC complaint was drafted even before Google signed the Pledge.

According to the Pledge, Google promised to:

1. “Not collect, maintain, use or share student personal information beyond that needed for authorized educational/school purposes, or as authorized by the parent/student.”
2. “Not build a personal profile of a student other than for supporting authorized educational/school purposes or as authorized by the parent/student.”
3. “Not knowingly retain student personal information beyond the time period required to support the authorized educational/school purposes, or as authorized by the parent/student.”

EFF interprets “educational purpose” as anything a student does while logged into her education account, and by extension, any of the even non-educational activity will count as “student personal information.” I think that a fair reading of the Pledge undermines this position, however, and that the correct interpretation of the Pledge is that “educational purpose” and “student personal information” are more tightly coupled such that Google’s ability to collect student data is only circumscribed when the student is actually using the Google for Education Apps.

So what counts as “student personal information” in the pledge? “Student personal information” is “personally identifiable information as well as other information when it is both collected and maintained on an individual level and is linked to personally identifiable information.”  Although this is fairly broad, it is limited by the definition of “Educational/School purposes” which are “services or functions that customarily take place at the direction of the educational institution/agency or their teacher/employee, for which the institutions or agency would otherwise use its own employees, and that aid in the administration or improvement of educational and school activities.” (emphasis added).

This limitation in the Pledge essentially sinks EFF’s complaint. A major part of EFF’s gripe is that when the students interact with non-Education services, Google tracks them. However, the Pledge limits the collection of information only in contexts where “the institutions or agency would otherwise use its own employees” — a definition that clearly does not extend to general Internet usage. This definition would reasonably cover activities like administering classes, tests, and lessons. This definition would not cover activity such as general searches, watching videos on YouTube and the like. Key to EFF’s error is that the pledge is not operative on accounts but around activity — in particular educational activity “for which the institutions or agency would otherwise use its own employees.”

To interpret Google’s activity in the way that EFF does is to treat the Pledge as a promise never to do anything, ever, with the data of a student logged into an education account, whether generated as part of Education apps or otherwise. That just can’t be right. Thinking through the implications of EFF’s complaint, the ultimate end has to be that Google needs to obtain a permission slip from parents before offering access to Google for Education accounts. Administrators and Google are just not allowed to provision any services otherwise. 

And here is where the long game comes in. EFF and its peers induced Google to sign the Pledge all the while understanding that their interpretation would necessarily require a re-write of Google’s business model.  But not only is this sneaky, it’s also ridiculous. By way of analogy, this would be similar to allowing parents an individual say over what textbooks or other curricular materials their children are allowed to access. This would either allow for a total veto by a single parent, or else would require certain students to be frozen out of participating in homework and other activities being performed with a Google for Education app. That may work for Yale students hiding from microaggressions, but it makes no sense to read such a contentious and questionable educational model into Google’s widely-offered apps.

I think a more reasonable interpretation should prevail. The privacy pledge is meant to govern the use of student data while that student is acting as a student — which in the case of Google for Education apps would mean while using said apps. Plenty of other Google apps could be used for educational purposes, but Google is intentionally delineating a sensible dividing line in order to avoid exactly this sort of problem (as well as problems that could arise under other laws directed at student activity, like COPPA, most notably). It is entirely unreasonable to presume that Google, by virtue of its socially desirable behavior of enabling students to have ready access to technology, is thereby prevented from tracking individuals’ behavior on non-Education apps as it chooses to define them. 

What is the Harm?

According to EFF, there are two primary problems with Google’s gathering and use of student data: gathering and using individual data in non-Education apps, and gathering and using anonymized and aggregated data in the Education apps. So what is the evil end to which Google uses this non-Education gathered data?

“Google not only collects and stores the vast array of student data described above, but uses it for its own purposes such as improving Google products and serving targeted advertising (within non-Education Google services)”

The horrors! Google wants to use student behavior to improve its services! And yes, I get it, everyone hates ads — I hate ads too — but at some point you need to learn to accept that the wealth of nominally free apps available to every user is underwritten by the ad-sphere. So if Google is using the non-Education behavior of students to gain valuable insights that it can monetize and thereby subsidize its services, so what? This is life in the twenty-first century, and until everyone collectively decides that we prefer to pay for services up front, we had better get used to being tracked and monetized by advertisers. 

But as noted above, whether you think Google should or shouldn’t be gathering this data, it seems clear that the data generated from use of non-Education apps doesn’t fall under the Pledge’s purview. Thus, perhaps sensing the problems in its non-Education use argument, EFF also half-heartedly attempts to demonize certain data practices that Google employs in the Education context. In short, Google aggregates and anonymizes the usage data of the Google for Education apps, and, according to EFF, this is a violation of the Pledge:

“Aggregating and anonymizing students’ browsing history does not change the intensely private nature of the data … such that Google should be free to use it[.]” 

Again the “harm” is that Google actually wants to improve the Educational apps:  “Google has acknowledged that it collects, maintains, and uses student information via Chrome Sync (in aggregated and anonymized form) for the purpose of improving Google products”

This of course doesn’t violate the Pledge. After all, signatories to the Pledge promise only that they will “[n]ot collect, maintain, use or share student personal information beyond that needed for authorized educational/school purposes.” It’s eminently reasonable to include the improvement of the provisioned services as part of an “authorized educational … purpose[.]” And by ensuring that the data is anonymized and aggregated, Google is clearly acknowledging that some limits are appropriate in the education context — that it doesn’t need to collect individual and identifiable personal information for education purposes — but that improving its education products the same way it improves all its products is an educational purpose.

How are the harms enhanced by Chrome Sync? Honestly, it’s not really clear from EFF’s complaint. I believe that the core of EFF’s gripe (at least here) has to do with how the two data gathering activities may be correlated together. Google has ChromeSync enabled by default, so when the students sign on at different locations, the Education apps usage is recorded and grouped (still anonymously) for service improvement alongside non-Education use. And the presence of these two data sets being generated side-by-side creates the potential to track students in the educational capacity by correlating with information generated in their non-educational capacity. 

Maybe there are potential flaws in the manner in which the data is anonymized. Obviously EFF thinks anonymized data won’t stay anonymized. That is a contentious view, to say the least, but regardless, it is in no way compelled by the Pledge. But more to the point, merely having both data sets does not do anything that clearly violates the Pledge.

The End Game

So what do groups like EFF actually want? It’s important to consider the effects on social welfare that this approach to privacy takes, and its context. First, the Pledge was overwhelmingly designed for and signed by pure education companies, and not large organizations like Google, Apple, or Microsoft — thus the nature of the Pledge itself is more or less ill-fitted to a multi-faceted business model. If we follow the logical conclusions of this complaint, a company like Google would face an undesirable choice: On the one hand, it can provide hardware to schools at zero cost or heavily subsidized prices, and also provide a suite of useful educational applications. However, as part of this socially desirable donation, it must also place a virtual invisibility shield around students once they’ve signed into their accounts. From that point on, regardless of what service they use — even non-educational ones — Google is prevented from using any data students generate. At this point, one has to question Google’s incentive to remove huge swaths of the population from its ability to gather data. If Google did nothing but provide the hardware, it could simply leave its free services online as-is, and let schools adopt or not adopt them as they wish (subject of course to extant legislation such as COPPA) — thereby allowing itself to possibly collect even more data on the same students. 

On the other hand, if not Google, then surely many other companies would think twice before wading into this quagmire, or, when they do, they might offer severely limited services. For instance, one way of complying with EFF’s view of how the Pledge works would be to shut off access to all non-Education services. So, students logged into an education account could only access the word processing and email services, but would be prevented from accessing YouTube, web search and other services — and consequently suffer from a limitation of potentially novel educational options. 

EFF goes on to cite numerous FTC enforcement actions and settlements from recent years. But all of the cited examples have one thing in common that the current complaint does not: they all are violations of § 5 for explicit statements or representations made by a company to consumers. EFF’s complaint, on the other hand, is based on a particular interpretation of an ambiguous document generally drafted, and outside of the the complicated business practice at issue. What counts as “student information” when a user employs a general purpose machine for both educational purposes and non-educational purposes?  The Pledge — at least the sections that EFF relies upon in its complaint — is far from clear and doesn’t cover Google’s behavior in an obvious manner. 

Of course, the whole complaint presumes that the nature of Google’s services was somehow unfair or deceptive to parents — thus implying that there was at least some material reliance on the Pledge in parental decision making. However, this misses a crucial detail: it is the school administrators who contract with Google for the Chromebooks and Google for Education services, and not the parents or the students.  Then again, maybe EFF doesn’t care and it is, as I suggest above, just interested in a long game whereby it can shoehorn Google’s services into some new sort of privacy regime. This isn’t all that unusual, as we have seen even the White House in other contexts willing to rewrite business practices wholly apart from the realities of privacy “harms.”

But in the end, this approach to privacy is just a very efficient way to discover the lowest common denominator in charity. If it even decides to brave the possible privacy suits, Google and other similarly situated companies will provide the barest access to the most limited services in order to avoid extensive liability from ambiguous pledges. And, perhaps even worse for overall social welfare, using the law to force compliance with voluntarily enacted, ambiguous codes of conduct is a sure-fire way to make sure that there are fewer and more limited codes of conduct in the future.

Sharing the Wealth: Gig Economy Moves Toward a Portable Safety Net

Today, thirty-nine different companies and policy experts from a wide swath of the political spectrum signed a letter urging lawmakers to create a “portable benefits” platform that will enable sharing economy companies to continue innovating while simultaneously providing desirable social safety net benefits to workers. This is well timed, as there is a growing consensus among lawmakers (such as Senator Warner) that “something must be done” to provide benefits to workers in the so-called “gig economy.” 

In total, the thirty-nine signatories to the letter are pushing for changes to existing law based on a set of principles holding that benefits should be:

1. Independent;
2. Flexible and pro-rated;
3. Portable;
4. Universal; and 
5. Supportive of innovation

In a nutshell, this would effectively mean that there is some form of benefits available to gig economy workers that follows them around and is accessible regardless of who employs them (or, ostensibly, whether they are employed at all). 

Looking past the text of the letter, this would likely entail a package of changes to existing law that would allow individual workers to utilize some form of privately created platform for managing the benefits that are normally obtained in a traditional employee-employer relationship. Such benefits would include, for instance, workers’ compensation, unemployment, disability, professional development, and retirement. A chief advantage of a portable benefits platform is that–much as in an underlying justification of the ACA–workers would no longer be tied to particular companies in order to enjoy these traditionally employer-based benefits. 

Although platform-based work facilitated by smartphone apps is cutting edge, there is historical precedent for this approach to the provision of benefits. Unions have long relied upon multi-employer plans for providing benefits, and the healthcare industry developed portable health savings accounts as a means to free individuals from employer-bound health insurance plans. And the industry has been seeking fully private solutions to these sorts of problems for some time. For instance, Uber recently partnered with Stride Health to provide health insurance benefits to verified drivers. 

There will, of course, be some necessary legislative changes in order to make these portable benefits platforms a reality. First, there probably needs to be a provision in the tax code that allows for workers’ contributions to their own plans to receive the same tax-favored treatment that traditional employer-based benefits receive (or, even better, the political give-away would need to be removed from employer-based benefits). Additionally, companies would need to be able to make optional matching contributions with a similar tax treatment. And lurking in the background of all of this is the specter of a large number of employer obligations. Thus, a necessary quid pro quo to get sharing economy companies to pay into these platforms will be some form of safe harbor shielding them from further obligations. 

This is a win for both companies and workers. The truth is that our labor market is very fractured–labor force participation rates are at a low, and those who are working remain chronically underemployed. Coupled with this reality, the technology that enables work is becoming ever more flexible and, as shown by their expressed preferences, individuals are clearly interested in the gig economy as a means of easily obtaining work as needed. A portable benefits platform could provide the sort of support to make flexible work a viable alternative to employee status.

And for many employers–sharing economy and non-sharing economy alike–removing antiquated legal strictures from the employment relationship promises a number of increased efficiencies. Particularly in the context of sharing economy companies, this will include the ability to exert some form of control over platform workers without being sucked into an onerous employer-employee relationship. 

For instance, Instacart recently moved a number of its platform workers to part-time employee status. Although the decision was very likely multi-faceted, a big part of it had to be Instacart’s desire to give training and guidance to the shoppers who provided services to the platform’s consumers (for instance, instructing them on the best sequence in which to pick groceries in order to ensure maximum freshness). However, to provide any modest degree of oversight would likely mean that Instacart would move from empowering contractors to directing employees, and thereby run into a thicket of labor laws.

Yet why should this particular employee classification be necessary? Platform-based work is a revolutionary way to defeat the traditional transaction costs that justified large, centrally-organized firms. Companies like Uber and Instacart enable what otherwise would have been fallow resources–spare labor, unused cars, and the like–to be fitted to consumer demand. 

Moreover, forcing rigid employee classifications upon sharing economy workers will only reintroduce inefficiency into the worker-company relationship. Instead of allowing workers to sign on just for the amount of work they are willing to do, and allowing consumers just to purchase the amount of work they desire, an employee classification essentially requires companies to purchase labor in blocks of hours. At scale, this necessarily introduces allocation and pricing errors into the system. If a smart safe harbor is included in any legislative push for a portable benefits platform, companies could have much more flexibility in directing platform workers. 

I am excited to see this development emerging from the industry and from policy makers, and I look forward to the response of our lawmakers (although, this being election season, I don’t expect too much from that response — at least not yet). There is understably a lot of concern about the welfare of workers in the new economy. But it’s important not to lose the innovative new ways of working, producing, and consuming that the modern digital economy affords by resorting to ill-fitted legal regimes from the past.

Immoral Trademarks and a Scandalous Disregard for The First Amendment

Last July, the Eastern District of Virginia upheld the cancellation of various trademarks of the Washington Redskins on the grounds that the marks were disparaging to Native Americans. I am neither a fan of football, nor of offensive names for sports teams–what I am is a fan of free speech. Although the Redskins may be well advised to change their team name, interfering with both the team’s right to free speech as well as its property right in the registered mark is the wrong way–both legally and in principle–to achieve socially desirable ends.

Various theories have been advanced, but the really interesting part of the dispute–a topic upon which I published a paper this year–is the likelihood that the Lanham Act’s prohibition of immoral, scandalous, or disparaging marks runs afoul of the First Amendment. I was cheered to see this week that the First Amendment Lawyers Association filed an amicus brief largely along the lines of my paper. However, there were a couple of points that I still feel deserve more attention when thinking about the § 2(a) (the Lanham Act’s so-called “morality clauses”).

Trademarks Are Not License Plates

The district court tried to sidestep the First Amendment issue by declaring that the trademarks themselves are not at issue, but merely the right to register the trademarks. To reach its result, the court relied on the recent Walker case wherein the Supreme Court declared that Texas was at liberty to prevent Confederate flags from appearing on its license plates, since license plates could be considered the speech of the government.

However, there is an important distinction between license plates and trademarks. License plates are a good totally of government manufacture. One cannot drive a car on a public road without applying to the government for permission and affixing a government registration tag on the vehicle. The plate is not a blank slate upon which one may express one’s self, but is a state-issued information placard used for law enforcement purposes.

Trademarks, arising as they do from actual use, preexist federal recognition. The Lanham Act merely provides a mechanism for registering trademarks that happen to be used in interstate commerce. The federal government then chooses to recognize that trademark when contested or offered for registration.

This is a major distinction: the social field of trademarks already exists – the federal government has chosen to regulate and provide an enforcement mechanism for these property rights and speech acts when used in interstate commerce. Thus it is the market for trademarks that constitutes the forum, and not the physically recorded government register. Given that the government has interfered in a preexisting market in a way in which it protects some state-created trademark property rights, but not others, is it proper to regulate speech by virtue of its content? I think not.

Further, license plates are obviously government property to anyone who looks at them. Plates bear the very name of the state directly on their face. The system of trademark registration is a largely invisible process that only becomes relevant during legal proceedings. When the public looks at a given trademark I would argue that the state’s imprimatur is certainly one of the last things of which they would think.

Thus, a restriction on “immoral” or “disparaging” trademarks constitutes viewpoint discrimination. Eugene Volokh echoed this sentiment when he wrote on the refusal to register “Stop the Islamisation of America”:

Trademark registration … is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs … it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.

The Lanham Act endows registrants with government-guaranteed legal rights in connection with the words and symbols by which they are recognized in society. Particularly in a globalized, interconnected society, the brand of an entity is a significant component of how it speaks to society. Discriminating against marks as “immoral” or “disparaging” can be nothing short of viewpoint discrimination.

Commercial Speech Is Protected Speech

As everyone is well aware, the First Amendment provides broad protection for a wide spectrum of speech. The definition of speech itself is likewise broad, including not only words, but also non-verbal gestures and symbols. Any governmental curtailing of such speech will be “presumptively invalid,” with the burden of rebutting that presumption on the government.

When speech is undertaken as part of commerce it does not magically lose any political, social or religious dimension it had when in a noncommercial context. Cartoons issued bearing the image of the Prophet as part of a commercial magazine are surely a political statement deserving of protection. The situation is the same if an organization adopts a logo that is derisive to a particular political or religious ideology – that publication is making a protected, expressive statement through its branding.

At first glance, one might think that defenders of § 2(a) would attempt to qualify scandalous and immoral trademarks as “obscene” and thereby render them subject to censorship. But, in McGinley the Federal Circuit explicitly refused to apply the obscenity standards from the Supreme Court to §2(a) on the grounds that the Lanham Act does not itself use the word "obscenity." Instead, the Federal Circuit, following the TTAB, was of the opinion that "[w]hat is denied are the benefits provided by the Lanham Act which enhance the value of a mark" and that the appellant still had legal recourse under state common law. Therefore, so the court in McGinley reasoned, since the right to use the mark is not actually abridged, no expression is abridged. And this is the primary basis upon which the district court in Pro-Football built its argument that no First Amendment concerns were implicated in canceling the Redskins trademark.

This of course willfully ignores once again the notion that in intervening in the field of trademarks, and in favoring certain speakers over others, courts effectively allows the Lanham Act to amplify preferred speech and burden disfavored speech. This is true whether or not we classify the trademark right as a bundle of procedural rights (which in turn make speech competitively possible) or as pure speech directly.

That said, it’s much more in keeping with the tradition of the First Amendment to understand trademarks as a protected category of commercial speech. The Supreme Court has noted that otherwise commercial information may at times be more urgent than even political dialog, and that information relating to a financial incentive was not necessarily commercial for First Amendment purposes. "[S]ignificant societal interests are served by such speech." This is so because even entirely commercial speech "may often carry information of import to significant issues of the day."

Even were commercial speech not fully protected–as I believe it to be–the Supreme Court has also recognized that commercial speech may be so intertwined with noncommercial speech so as to make them inseparable for First Amendment purposes. In particular, commercial messages do more than merely provide information about the characteristics of goods and services:

[S]olicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and for the reality that without solicitation the flow of such information and advocacy would likely cease.

The analogy to trademarks is rather clear in this context. Although trademarks may refer to a particular product or service, that product or service is not of necessity a purely commercial object. Further, even if the product or service is a commercial object, the trademark itself can be, or can become, a symbolic referent and not a mere sales pitch. Consider, for instance, Mickey Mouse. The iconic mouse ears certainly represent a vast commercial empire generally, and specifically operate as a functional trademark for Mickey Mouse cartoons and merchandise. However, is there not much more of cultural significance to the mark than mere commercial value? The mouse ears represent something culturally – about childhood, about America, and about art – that is much more than merely a piece of pricing or quality information.

The Unconstitutional Conditions Doctrine Prevents Trading Rights for Privileges

The district court (and Federal Circuit, for that matter) have missed a very important dimension in summarily dismissing First Amendment concerns of trademark holders. These courts dismiss owners of “immoral” or “disparaging” trademarks on the belief that no actual harm is done – the mark holders still own the mark, and, as far as the court is concerned, no speech has been suppressed. However, trademark registration, in addition to providing a forum in which to speak, also provides real procedural benefits for the mark holder. For instance, businesses and individuals enjoy a nationwide recognition of their presence and can vindicate their interests in federal courts. Without the federal registration that is presumptively supplied to marks that are not “immoral” or “scandalous,” an individual can find himself attempting to protect his interests in a mark in the courts of every state in which he does business.

However, under the unconstitutional conditions doctrine even though the benefits of trademark registration are not constitutionally guaranteed rights, those benefits cannot be offered in exchange for a trademark owner’s loss of actually guaranteed rights. Thus, the tight link between trademark registration and First Amendment protections that the courts just keep ignoring.

Its also worth noting that this doctrine did not emerge in constitutional jurisprudence until after the period in which the Lanham Act was drafted. Instead, the Lanham Act era was characterized by the rights-privileges distinction–made famous by then Chief Justice of the Massachusetts Supreme Judicial Court Oliver Wendell Holmes. In McAuliffe, a police officer sued for reinstatement after he was dismissed for his participation in a political organization. In dismissing the case, Chief Justice Holmes held that "[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." This quote from Holmes captures precisely the sense in which the Federal Circuit dismisses the First Amendment concerns of mark holders. 

In contrast to this rather antiquated view, the Supreme Court has recently reaffirmed the proposition that “the government may not deny a benefit to a person because he exercises a constitutional right.” Although this principle contains exceptions, it has been applied to a wide variety of situations including refusal to renew teaching contracts over First Amendment-protected speech acts, and infringement of the right to travel by refusing to adequately extend healthcare benefits to sick persons who had not been residents of a county for at least a year.

Basically, the best defense one can offer for § 2(a) is rooted in an outmoded view of the First Amendment that is, to put it mildly, unconstitutional. We don’t shut down speakers who offend us (at least for the time being), and we should stop attacking trademarks that we find to be immoral.

A Takedown of Common Sense: The 9th Circuit Overturns the Supreme Court in a Transparent Effort to Gut the DMCA

The Ninth Circuit made waves recently with its decision in Lenz v. Universal Music Corp., in which it decided that a plaintiff in a copyright infringement case must first take potential fair use considerations into account before filing a takedown notice under the DMCA. Lenz, represented by the EFF, claimed that Universal had not formed a good faith belief that an infringement had occurred as required by § 512(c)(3)(A)(v). Consequently, Lenz sought damages under § 512(f), alleging that Universal made material misrepresentations in issuing a takedown notice without first considering a fair use defense.

In reaching its holding, the Ninth Circuit decided that fair use should not be considered an affirmative defense–which is to say that it is not properly considered after an allegation, but must be considered when determining whether a prima facie claim exists. It starts from the text of the Copyright Act itself. According to 17 U.S.C. § 107

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work ... is not an infringement of copyright.

In support of its contention, the Ninth Circuit goes on to cite a case in the Eleventh Circuit as well as legislative material suggesting that Congress intended that fair use no longer be considered as an affirmative defense. Thus, in the Ninth Circuit’s view, such fair use at best qualifies as a sort of quasi-defense, and most likely constitutes an element of an infringement claim. After all, if fair use is literally non-infringing, then establishing infringement requires ruling out fair use, as well.

Or so says the Ninth Circuit. But it takes little more than a Google search — let alone the legal research one should expect of federal judges and their clerks — to realize that the court is woefully, and utterly, incorrect.

Is Fair Use an Affirmative Defense ?

The Supreme Court has been perfectly clear that fair use is in fact an affirmative defense. In Campbell v. Acuff-Rose, the Supreme Court had occasion to consider the nature of fair use under § 107 in the context of determining whether 2 Live Crew’s parody of Roy Orbison’s “Pretty Woman” was a permissible use. In considering the fourth fair use factor, “the effect of the use upon the potential market for or value of the copyrighted work,” the Court held that “[s]ince fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”

Further, in reaching this opinion the Court relied on its earlier precedent in Harper & Row, where, in discussing the “purpose of the use” prong of § 107, the Court said that “[t]he drafters [of § 107] resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”  Not surprisingly, other courts are inclined to follow the the Supreme Court. Thus the Eleventh Circuit, the Southern District of New York, and the Central District of California (here and here), to name but a few, all explicitly refer to fair use as an affirmative defense. Oh, and the Ninth Circuit did too, at least until Lenz.

The Ninth Circuit Dissembles

As part of its appeal, Universal relied on the settled notion that fair use is an affirmative defense in building its case. Perhaps because this understanding of fair use is so well established, Universal failed to cite extensively why this was so. And so (apparently unable to perform its own legal research), the Ninth Circuit dismissed § 107 as an affirmative defense out of hand, claiming that

Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct … Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).”

It bears noting that the Court in Sony Corp. did not discuss whether or not fair use is an affirmative defense, whereas Acuff Rose (decided 10 years after Sony Corp.) and Harper & Row decisions do.

To shore up its argument, the Ninth Circuit then goes on to cite the Eleventh Circuit for the notion that the 1976 Act fundamentally changed the nature of fair use, moving it away from its affirmative defense roots. Quoting Bateman v. Mnemonics, Inc., the court claims that

Although the traditional approach is to view “fair use” as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.

But wait — didn’t I list the Eleventh Circuit as one of the (many) courts that have held fair use to be an affirmative defense? Why yes I did. It turns out that, as Devlin Hartline pointed out last week, the Ninth Circuit actually ripped the Eleventh Circuit text completely out of context. The full Bateman quote (from a footnote, it should be noted) is as follows:

Fair use traditionally has been treated as an affirmative defense to a charge of copyright infringement .... In viewing fair use as an excused infringement, the court must, in addressing this mixed question of law and fact, determine whether the use made of the original components of a copyrighted work is “fair” under 17 U.S.C. § 107 ... Although the traditional approach is to view “fair use” as an affirmative defense, this writer, speaking only for himself, is of the opinion that it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.” (internal citations omitted, but emphasis added)

Better yet, in a subsequent opinion the Eleventh Circuit further clarified the position that the view of fair use as an affirmative defense is binding Supreme Court precedent, notwithstanding any judge’s personal preferences to the contrary.

But that’s not the worst of it. Not only did the court shamelessly misquote the Eleventh Circuit in stretching to find a justification for its prefered position, the court actually ignored its own precedent to the contrary. In Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., the Ninth Circuit held that

Since fair use is an affirmative defense, [the Defendant-Appellants] must bring forward favorable evidence about relevant markets. Given their failure to submit evidence on this point … we conclude that “it is impossible to deal with [fair use] except by recognizing that a silent record on an important factor bearing on fair use disentitle[s] the proponent of the defense[.]

Further, even if the Lenz court is correct that § 107 “unambiguously contemplates fair use as a use authorized by the law” — despite Supreme Court precedent — the authority the Ninth Circuit attempts to rely upon would still require defendants to raise a fair use defense after a prima facie claim was made, as “the burden of proving fair use is always on the putative infringer.”  

It Also Violates a Common Sense Reading of the DMCA

As with all other affirmative defenses, a plaintiff must first make out a prima facie case before the defense can be raised. So how do we make sense of the language in § 107 that determines fair use to not be infringement? In essence, it appears to be a case of inartful drafting.  Particularly in light of the stated aims of the DMCA — a law that was enacted after the Supreme Court established that fair use was an affirmative defense — the nature of fair use as an affirmative defense that can only be properly raised by an accused infringer is as close to black letter law as it gets.

The DMCA was enacted to strike a balance between the interests of rightsholders in protecting their property, and the interests of society in having an efficient mechanism for distributing content. Currently, rightsholders send out tens of millions of takedown notices every year to deal with the flood of piracy and other infringing uses. If rightsholders were required to consider fair use in advance of each of these, the system would be utterly unworkable — for instance, in Google’s search engine alone, over 54 million removal requests were made in just the month of August 2015 owing to potential copyright violations. While the evisceration of the DMCA is, of course, exactly what the plaintiffs (or more accurately, EFF, which represented the plaintiffs) in Lenz wanted, it’s not remotely what the hard-wrought compromise of the statute contemplates.

And the reason it would be unworkable is not just because of the volume of the complaints, but because fair use is such an amorphous concept that ultimately requires adjudication.

Not only are there four factors to consider in a fair use analysis, but there are no bright line rules to guide the application of the factors. The open ended nature of the defense essentially leaves it up to a defendant to explain just why his situation should not constitute infringement. Until a judge or a jury says otherwise, how is one to know whether a particular course of conduct qualifies for a fair use defense?

The Lenz court even acknowledges as much when it says

If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. (emphasis added)

Thus, it is the slightest of fig leaves that is necessary to satisfy the Lenz court’s new requirement that fair use be considered before issuing a takedown notice.

What’s more, this statement from the court also demonstrates the near worthlessness of reading a prima facie fair use requirement into the takedown requirements. Short of a litigant explicitly disclaiming any efforts to consider fair use, the standard could be met with a bare assertion. It does, of course, remain an open question whether the computer algorithms the rightsholders employ in scanning for infringing content are actually capable of making fair use determinations — but perhaps throwing a monkey wrench — any monkey wrench — into the rightsholders’ automated notice-and-takedown systems was all the court was really after. I think we can at least be sure that that was EFF’s aim, anyway, as they apparently think that § 512 tends to be a tool of censorship in the hands of rightsholders.

The structure of the takedown and put-back provisions of the DMCA also cut against the Lenz court’s view. The put-back requirements of Section 512(g) suggest that affirmative defenses and other justifications for accused infringement would be brought up after a takedown notice was submitted. What would be the purpose of put-back response, if not to offer the accused infringers justifications and defenses to an allegation of infringement? Along with excuses such as having a license, or a work’s copyright being expired, an alleged infringer can bring up the fair use grounds under which he believed he was entitled to use the work in question.

In short, to require a rightsholder to analyze fair use in advance of a takedown request effectively requires her to read the mind of an infringer and figure out what excuse that party plans to raise as part of her defense. This surely can’t have been what Congress intended with the takedown provisions of the DMCA — enacted as they were years after the Supreme Court had created the widely recognized rule that fair use is an affirmative defense.

Well, widely recognized, that is, except in the Ninth Circuit. This month, anyway.

Update: I received from feedback on this piece which pointed out an assumption I was making with respect to the Ninth Circuit's opinion, and which deserves a clarifying note. Essentially, the Lenz court splits the concept of affirmative defenses into two categories: (1) an affirmative defense that is merely a label owing to the procedural posture of a case and (2) an affirmative defense, as it is traditionally understood and that always puts the burden of production on a defendant.  By characterizing affirmative defenses in this way, the Lenz court gets to have its cake and eat it too:  when an actual proceeding is filed, a defendant will procedurally have the burden of production on the issue, but since fair use is at most a quasi-affirmative defense, the court felt it was fair to shift that same burden onto rightsholders when issuing a takedown letter.  So technically the court says that fair use is an affirmative defense (as a labeling matter), but it does not practically treat is as such for the purposes of takedown notices. 

Reports on the Death of Capitalism Have Been Greatly Exaggerated

Jeremy Rifkin has been writing lately about what he terms the “Zero Marginal Cost Revolution” presented by technology platforms like Uber and AirBnB.   Describing the sharing economy as the “Collaborative Commons,” Rifkin asserts that it poses a developing alternative to the “capitalist economy.”  “The conventional capitalist market is not going to disappear,” Rifkin admits, but as more consumers move toward a sharing of goods and services, they will severely undermine the firmament upon which capitalist industry is based.

He has also claimed that this new kind of economy that is emerging thanks to platforms like Uber and AirBnB is one “far more dependent on social capital than market capital. And it's an economy that lives more on social trust rather than on anonymous market forces.”

I am a big fan of the sharing economy, and, like Mr. Rifkin, I happen to believe that companies like Uber, AirBnB, TaskRabbit, Instacart and scores of others are transforming our world for the better. However, capitalism is hardly about to sell the sharing economy the rope with which it will be hanged. In fact, the sharing economy takes what is best about the free market–that is, freedom–and amplifies it with the power of technology.

Free markets are the best (if imperfect) effort of our species to organize our society along voluntary lines.  When working, markets provide a way for free persons to meet and exchange whatever they have for whatever they want, without force or fraud, and on mutually agreeable terms.

The sharing economy is about taking this natural human desire to peacefully trade with one another and unleashing it.  These powerful new platforms are finding ways to strip off the accidental legal and political detritus that has accrued to voluntary human interactions over the centuries thanks to imperfectly allocated information.

As should be obvious to anyone who has studied economics, capitalism and free markets are not really about making stuff - they are about coordination and information.  As Hayek observed, the price system associated with free markets must be understood as

a mechanism for communicating information if we want to understand its real function … In abbreviated form, by a kind of symbol, only the most essential information is passed on and passed on only to those concerned. It is more than a metaphor to describe the price system as a kind of machinery for registering change, or a system of telecommunications which enables individual producers to watch merely the movement of a few pointers, as an engineer might watch the hands of a few dials, in order to adjust their activities to changes of which they may never know more than is reflected in the price movement.

In short, markets are a way for me to efficiently find out if my neighbor has a need, and how I can efficiently answer that need. And this is precisely what sharing platforms enable us to do.

What Mr. Rifkin says is true to some extent; there really is a “zero marginal cost” revolution going on. But the really interesting zero marginal cost is not so much the cost of producing goods and services (although it is interesting), but the cost to individuals of deciding how and when to allocate their working time.

Firms developed as a means of reducing transaction costs - both for consumers as well as workers.  For workers, the transaction costs associated with finding work involved conducting enough research and bargaining to arrive at the true value of an hour spent working.  Sharing platforms will tell you, on demand, what your labor or your asset is worth, and thus enable you to decide whether or not to work or employ the asset.  Everyone can be an entrepreneur, given sufficient information - and that’s what these platforms enable.

However, Mr. Rifkin does get something very important wrong when he writes:

It's not unreasonable to expect a significant die-off of the vertically integrated global companies of the Second Industrial Revolution when the Collaborative Commons accounts for between 10 and 30 percent of the economic activity in any given sector. At the very least, we can say that conventional capitalist markets will increasingly lose their dominant hold over global commerce and trade as near zero marginal costs push an ever greater share of economic activity onto the Collaborative Commons in the years ahead.

If up to a third of the producer economy disappears, real problems will emerge for everyone, as there are likely feedback cycles that will further undermine the productive capacity of the economy if a third of its demand quickly disappears.  And what will we share if nothing is produced any longer? Though it is fashionable to decry consumerism, without the production of new goods, at some point the supply of second hand goods to pass around will dry up too. 

However, this view also ignores something fundamental about human nature. We like new stuff. We like different stuff.  And people will pay for the privilege of differentiating themselves in some fashion.  I believe this means that there will always be a demand for new goods to be produced, and, if anything, a virtuous cycle will obtain whereby the demand in the sharing market will increase demand in the production market - thus resulting in an overall increase in both produced goods as well as shared goods.  

Further, Mr. Rifkin’s position assumes that the same automated systems that enable sharing for near-zero cost won’t enable an explosion of new consumer goods for near-zero marginal cost as well.  Sure, there is a stated preference for “access” vs “ownership” in the literature that Mr. Rifkin cites; however I have trouble seeing how an easily disposable, easily produced new good, available nearly on demand, will somehow naturally lose to a network of shared goods providers (that come with their own set of transaction costs) such that the production of new goods will disappear. Maybe i’m just an optimist, but I don’t think that the revolutionary benefits that free markets have brought to humanity are going anywhere anytime soon thanks to the growth of the sharing economy.

Suprema v. ITC: The Case for Chevron Deference

(cross posed from Truth on the Market)

Recently, the en banc Federal Circuit decided in Suprema, Inc. v. ITC that the International Trade Commission could properly prevent the importation of articles that infringe under an indirect liability theory. The core of the dispute in Suprema was whether § 337 of the Tariff Act’s prohibition against “importing articles that . . . infringe a valid and enforceable United States patent” could be used to prevent the importation of articles that at the moment of importation were not (yet) directly infringing. In essence, is the ITC limited to acting only when there is a direct infringement, or can it also prohibit articles involved in an indirect infringement scheme — in this case under an inducement theory?

TOTM’s own Alden Abbott posted his view of the decision, and there are a couple of points we’d like to respond to, both embodied in this quote:

[The ITC’s Suprema decision] would likely be viewed unfavorably by the Supreme Court, which recently has shown reluctance about routinely invoking Chevron deference … Furthermore, the en banc majority’s willingness to find inducement liability at a time when direct patent infringement has not yet occurred (the point of importation) is very hard to square with the teachings of [Limelight v.] Akamai.

In truth, we are of two minds (four minds?) regarding this view. We’re deeply sympathetic with arguments that the Supreme Court has become — and should become — increasingly skeptical of blind Chevron deference. Recently, we filed a brief on the 2015 Open Internet Order that, in large part, argued that the FCC does not deserve Chevron deference underKing v. Burwell, UARG v. EPA and Michigan v. EPA (among other important cases) along a very similar line of reasoning. However, much as we’d like to generally scale back Chevrondeference, in this case we happen to think that the Federal Circuit got it right.

Put simply, “infringe” as used in § 337 plainly includes indirect infringement. Section 271 of the Patent Act makes it clear that indirect infringers are guilty of “infringement.” The legislative history of the section, as well as Supreme Court case law, makes it very clear that § 271 was a codification of both direct and indirect liability.

In taxonomic terms, § 271 codifies “infringement” as a top-level category, with “direct infringement” and “indirect infringement” as two distinct subcategories of infringement. The law further subdivides “indirect infringement” into sub-subcategories, “inducement” and “contributory infringement.” But all of these are “infringement.”

For instance, § 271(b) says that “[w]hoever actively induces infringement of a patent shall be liable as an infringer” (emphasis added). Thus, in terms of § 271, to induce infringement is to commit infringement within the meaning of the patent laws. And in § 337, assuming it follows § 271 (which seems appropriate given Congress’ stated purpose to “make it a more effective remedy for the protection of United States intellectual property rights” (emphasis added)), it must follow that when one imports “articles… that infringe” she can be liable for either (or both) § 271(a) direct infringement or § 271(b) inducement.

Frankly, we think this should end the analysis: There is no Chevron question here because the Tariff Act isn’t ambiguous.

But although it seems clear on the face of § 337 that “infringe” must include indirect infringement, at the very least § 337 is ambiguous and cannot clearly mean only “direct infringement.” Moreover, the history of patent law as well as the structure of the ITC’s powers both cut in favor of the ITC enforcing the Tariff Act against indirect infringers. The ITC’s interpretation of any ambiguity in the term “articles… that infringe” is surely reasonable.

Continue reading on Truth on the Market

ICLE Files Amici Brief Urging Court to Overturn FCC's Open Internet Order

Today we filed our brief with a number of leading academics urging the court to overturn the FCC's illegal net neutrality order. 

According to Geoff Manne, the Executive Director of ICLE:

If the 2010 Order was a limited incursion into neighboring territory, the 2015 Order represents the outright colonization of a foreign land, extending FCC control over the Internet far beyond what the Telecommunications Act authorizes." said Geoffrey Manne, Executive Director of the International Center for Law & Economics. “The Commission asserts vast powers — powers that Congress never gave it — not just over broadband but also over the very ‘edge’ providers it claims to be protecting. The court should be very skeptical of the FCC’s claims to pervasive powers over the Internet.

The challenge to the Open Internet Orders presents an important step toward assuring that the Internet continues to remain open for entrepreneurship and investment, as well as for innovators to be able to make important decisions regarding socially beneficial allocations and services. 

You can read a summary of the brief here.

A Vision of a Class-Free Society – California Suit Against Uber Makes Little Sense

(cross post from Truth on the Market)

Uber is currently facing a set of plaintiffs who are seeking class certification in the Northern District of California (O’Connor, et. al v. Uber, #CV 13-3826-EMC) on two distinct grounds. First, the plaintiffs allege that Uber systematically deprived them of tips from riders by virtue of how the service is presented to end-users and how compensation is given to the riders in violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. Second, the plaintiffs claim that Uber misclassified its drivers – all 160,000 of them in California over the last five years – by failing to give them the legal definition of “employee” and, following from this, deprived said “employees” of reimbursement for things like mileage, gas, and other wear-and-tear on their vehicles (not to mention the shadow of entitlements like benefits and worker’s comp).

Essentially, claim one is based on the notion that Uber informs passengers that gratuity is included in the total cost of the car service and that there is no need to tip the driver. However, according to the plaintiffs, Uber either failed to collect this gratuity, or by failing to differentiate between the gratuity and the fee for the ride, and then collecting its own 20% cut of the total fee, the company improperly retained some of the gratuity for itself. In truth, it’s not completely clear from the complaint exactly how the plaintiffs are calculating allegedly withheld tips. Uber does a good job in its motion to defeat certification of pointing out, on the one hand, that there is no such thing as a “standard tip,” and, on the other hand, that the assessment of the tip issue would require so much individualized examination — from figuring out whether drivers were told that they could be tipped or not, to figuring out if drivers actually were consistently tipped — that the common issues proper to class examination would be overwhelmed.

The real meat of this case, however, and the issue with the most effect on both Uber’s bottom line as well as on the future of sharing platforms generally, is whether the drivers should be classified as employees or not.

continue reading on Truth on the Market

The Green Shoots of the NYC Taxi Rules on Ridesharing Companies

(cross post from Truth on the Market)

I am of two minds when it comes to theannouncement today that the NYC taxi commission will permit companies like Uber and Lyft to update, when the companies wish, the mobile apps that serve as the front end for the ridesharing platforms.

My first instinct is to breathe a sigh of relief that even the NYC taxi commission eventually rejected the patently ridiculous notion that an international technology platform should have its update schedule in anyway dictated by the parochial interests of a local transportation fiefdom.

My second instinct is to grit my teeth in frustration that, in the face of the overwhelming transformation going on in the world today because of technology platforms offered by the likes of Uber and Lyft, anyone would even think to ask the question “should I ask the NYC taxi commission whether or not I can update the app on my users’ smartphones?”

That said, it’s important to take the world as you find it, not as you wish it to be, and so I want to highlight some items from the decision that deserve approbation.

Meera Josh, the NYC Taxi Commission chairperson and CEO, had this to say of the proposed rule:

We re-stylized the rules so they’re tech agnostic because our point is not to go after one particular technology – things change quicker than we do – it’s to provide baseline consumer protection and driver safety requirements[.]

I love that the commission gets this. The real power in the technology that drives the sharing economy is that it can change quickly in response to consumer demand. Further, regulators can offer value to these markets only when they understand that the nature of work and services are changing, and that their core justification as consumer protection agencies necessarily requires them to adjust when and how they intervene.

Although there is always more work to be done to make room for these entrepreneurial platforms (for instance, the NYC rules appear to require that all on-demand drivers – including the soccer mom down the street driving for Lyft – be licensed through the commission), this is generally forward-thinking. I hope that more municipalities across the country take notice, and that the relevant regulators follow suit in repositioning themselves as partners with these innovative companies.

Passive Resistance and Contributory Liability

(cross post from Truth on the Market)

If you haven’t been following the ongoing developments emerging from the demise ofGrooveshark, the story has only gotten more interesting. As the RIAA and major record labels have struggled to shut down infringing content on Grooveshark’s site (and now its copycats), groups like EFF would have us believe that the entire Internet was at stake — even in the face of a fairly marginal victory by the recording industry. In the most recent episode, the issuance of a TRO against CloudFlare — a CDN service provider for the copycat versions of Grooveshark — has sparked much controversy. Ironically for CloudFlare, however, its efforts to evade compliance with the TRO may well have opened it up to far more significant infringement liability.

In response to Grooveshark’s shutdown in April, copycat sites began springing up. Initially, the record labels played a game of whac-a-mole as the copycats hopped from server to server within the United States. Ultimately the copycats settled on grooveshark.li, using a host and registrar outside of the country, as well as anonymized services that made direct action against the actual parties next to impossible. Instead of continuing the futile chase, the plaintiffs decided to address the problem more strategically.

High volume web sites like Grooveshark frequently depend upon third party providers to optimize their media streaming and related needs. In this case, the copycats relied upon the services of CloudFlare to provide DNS hosting and a content delivery network (“CDN”). Failing to thwart Grooveshark through direct action alone, the plaintiffs sought and were granted a TRO against certain third-parties, eventually served on CloudFlare, hoping to staunch the flow of infringing content by temporarily enjoining the ancillary activities that enabled the pirates to continue operations.

CloudFlare refused to comply with the TRO, claiming the TRO didn’t apply to it (for reasons discussed below). The court disagreed, however, and found that CloudFlare was, in fact, bound by the TRO.

Unsurprisingly the copyright scolds came out strongly against the TRO and its application to CloudFlare, claiming that

Copyright holders should not be allowed to blanket infrastructure companies with blocking requests, co-opting them into becoming private trademark and copyright police.

Devlin Hartline wrote an excellent analysis of the court’s decision that the TRO was properly applied to CloudFlare, concluding that it was neither improper nor problematic. In sum, as Hartline discusses, the court found that CloudFlare was indeed engaged in “active concert and participation” and was, therefore, properly subject to a TRO under FRCP 65 that would prevent it from further enabling the copycats to run their service.

Hartline’s analysis is spot-on, but we think it important to clarify and amplify his analysis in a way that, we believe, actually provides insight into a much larger problem for CloudFlare.

Continue reading on Truth on the Market

The TCPA is a Costly Technological Anachronism

(cross post from Truth on the Market)

The Telephone Consumer Protection Act (“TCPA”) is back in the news following a letter sent to PayPal from the Enforcement Bureau of the FCC.  At issue are amendments that PayPal intends to introduce into its end user agreement. Specifically, PayPal is planning on including an automated call and text message system with which it would reach out to its users to inform them of account updates, perform quality assurance checks, and provide promotional offers.

Enter the TCPA, which, as the Enforcement Bureau noted in its letter, has been used for over twenty years by the FCC to “protect consumers from harassing, intrusive, and unwanted calls and text messages.” The FCC has two primary concerns in its warning to PayPal. First, there was no formal agreement between PayPal and its users that would satisfy the FCC’s rules and allow PayPal to use an automated call system. And, perhaps most importantly, PayPal is not entitled to simply attach an “automated calls” clause to its user agreement as a condition of providing the PayPal service (as it clearly intends to do with its amendments).

There are a number of things wrong with the TCPA and the FCC’s decision to enforce its provisions against PayPal in the current instance. The FCC has the power to provide for some limited exemptions to the TCPA’s prohibition on automated dialing systems. Most applicable here, the FCC has the discretion to provide exemptions where calls to cell phone users won’t result in those users being billed for the calls. Although most consumers still buy plans that allot minutes for their monthly use, the practical reality for most cell phone users is that they no longer need to count minutes for every call. Users typically have a large number of minutes on their plans, and certainly many of those minutes can go unused. It seems that the progression of technology and the economics of cellphones over the last twenty-five years should warrant a Congressional revisit to the underlying justifications of at least this prohibition in the TCPA.

However, exceptions aside, there remains a much larger issue with the TCPA, one that is also rooted in the outdated technological assumptions underlying the law.

Continue reading on Truth on the market

Staying Ahead of the Tech Curve

(This article was originally published in the May 2015 edition of the New Jersey Tech Council's TechNews)

New Jersey has made important investments in its innovation ecosystem over the last decade.  However, further establishing the state at the forefront of the nation’s innovative economies requires thinking out along the development curve in order to identify and provide infrastructure for future disruptive technologies.  In addition to providing resources for existing entrepreneurs, public and private groups should look to proactively fund the future tech that will push New Jersey forward.  A good way to gauge the future of software innovation is to look at where the big investors are putting their money.

If you read what venture capitalists like Fred Wilson, Marc Andreesen, and Sam Altman have to say, there are a handful of important technologies that will be maturing in the next five years and that promise to have a major impact.  Among these are "cryptocurrencies," most notably Bitcoin. 

What is Bitcoin

Bitcoin has increasingly been in the news since first released in 2009.   The core technology of Bitcoin, the "blockchain," is essentially a communications and coordination medium, a ledger system on which the anonymous transactions of the entire network are stored and verified.    When someone engages in a Bitcoin transaction, that transaction is checked for authenticity, and is then published to the network.  Subsequently, knowledge of the anonymous transaction is available worldwide and becomes part of the public ledger.   The key takeaway from this technology is “anonymous distributed trust.”

Bitcoin - and any system relying on blockchain technology - provides an almost totally anonymous method of conducting business.  Cash provides a good analogy for Bitcoin.  In just the same way that a cash transaction is anonymous because there is no personally identifying information attached to the money you exchange, a Bitcoin transaction allows you to exchange funds between anonymous alphanumeric addresses.  If one takes care not to generally reveal their address, there is no easy way for personal information to be associated with a transaction.

Bitcoin is distributed because there is no central authority.  Software running on nodes connected to the network verifies the authenticity of each transaction.   Further, each transaction is peer-to-peer in exactly the same way that cash is peer-to-peer.  A buyer transfers a certain quantity of the currency to a seller without an intermediary involved.

In contrast to the distributed and anonymous nature of Bitcoin, consider the fragile nature of our traditional payment systems.  When you slide your card at a retailer, your information passes through a number of intermediaries.  This includes personal information like your name and zip code.  Thus, a large amount of personally identifying information is stored in an ever widening circle of systems - each of which you need to trust.   Bitcoin has no intermediaries, and requires no personally identifying information in order to work. 

Finally, because of the technical implementation of the system, the ledger is essentially not forgeable.  This means that every transaction that occurs using Bitcoin is verifiable and trustable because, given the foreseeable state of computing technology, the blockchain’s advanced cryptographic techniques are nearly impossible to crack. 

Why you should care about it

Bitcoin has been steadily gaining credibility with large organizations.  Recently Tmobile announced a major initiative in Poland that will accept Bitcoin for mobile minutes.[1]  Similarly, Microsoft now accepts Bitcoin as payment for its software and videos.[2]  Last summer, Dell joined other majors retailers, like Newegg.com and Overstock.com, in accepting online Bitcoin payments.[3]

Cryptocurrencies are also making strides in the institutional setting. You can now invest in Bitcoin through a publicly offered fund.[4]   The Winkelvoss twins have also waded into the Bitcoin world, claiming that their new project will one day be the "Nasdaq of Bitcoin."[5]  In Spain, three companies have teamed up to begin offering Bitcoin withdrawals from 10,000 ATMs.[6]   Perhaps most interesting, IBM recently announced that it is working with the Federal Reserve to develop a digital currency based on the technology.[7]

Not only has Bitcoin made strides with existing institutions, but also companies that develop with cutting edge implementations of blockchain technology have been raising a lot of money.   Andreessen Horowitz recently became a major investor in 21, Inc., a bit coin start up.  21 Inc. has reportedly raised $116M to date, the most ever for a cryptocurrency startup.   Coinbase, a major “virtual wallet” provider received the attention of Union Square Ventures.  Starting from an initial A series of $5M,  Coinbase went on to raise $100M in series B and C funding.[8]  All told, cryptocurrency startups received over $347M in funding in 2014 – more than triple from a year previous.  And the pace continues to accelerate.

The Applications of Bitcoin

Bitcoin’s first and most obvious implementation is as a digital currency.   Last year, Bitcoin transactions surpassed 100,000 per day.[9]  One merchant solution alone, reportedly processes over $1M in transactions each day.[10]   The financial applications of Bitcoin are manifold as it enables individuals to make anonymous transactions online.  Of course there has been buzz around the potential facilitation of illicit purchases, however the legal opportunities are more compelling.  Using Bitcoin, individuals could contribute to politicians and causes without fear of political repression or backlash for undesirable speech.  More basically, individuals could also retain a sphere of privacy in their purchasing habits and spending preference – much as cash currently provides.

Bitcoin also opens up the opportunity to finally make the world of true micropayments a reality.  Typically the overhead in fees associated with using third-party processors have made micropayments impracticable.  However, as a peer-to-peer system, the overhead for an individual Bitcoin transaction is nearly nonexistent.

As a software system that is not dependent on central banks, Bitcoin also affords the opportunity for frictionless cross-boundary transactions.  Individuals in countries that previously had trouble accessing capital for lack of financial infrastructure, now only need a smart phone with an Internet connection.  

However, as compelling as the financial applications of Bitcoin are, blockchain technology promises a host of interesting nonfinancial uses. Simply for the sake of efficiency, the so-called “Internet of Things” will depend upon a decentralized, trustable transaction ledger of the vast quantities of information that connected devices will continuously generate.  Blockchain poses one potential solution to this IOT dilemma, and also offers compelling applications in many more areas. 

For instance some startups[12] have begun using blockchain technology to enable alternatives to traditional contracting.  Relying on publicly verifiable information, a blockchain-based contract can provide for absolutely known conditions, who agreed to them, and when they should be enforced.  Taking it a step further, such contracts can also be made to self-execute, thereby reducing the transaction costs of the legal system that frequently disincentivize parties from fully vindicating their rights.

The fully secure audit-trail provided by blockchain technology would empower a whole host of applications for trust-based instruments.  Blockchain technology could be used to create financial instruments, property registers, and any other ownership-dependent asset that can be absolutely verified for authenticity.  Using such a system, the costs of enforcing owners’ rights would plummet.

There have been suggestions that small Bitcoin payments may have a place in SPAM prevention and also in unlocking the untapped bandwidth on home WiFi routers.[11]  There have also been experiments in using the blockchain to create tamper-proof voting systems.  This activity isn’t constrained to simple online-polls either – in 2014 a political party in Denmark began using the blockchain as part of its own internal voting.[13] As an absolutely trustable, publicly reviewable system, the blockchain can provide a whole new range of methods for transmitting information that is fraud-proof.

New Jersey: The Next Silicon Valley

 Merely knowing that Bitcoin is a “next big thing” is insufficient – New Jersey need to be, if not the place, at least a major place where hot software startups want to be. With proper foresight, the New Jersey ecosystem can become a home to cutting edge tech like Bitcoin.  New Jersey already leads in a number of areas, most-notably biotech, but the value proposition of software-based tech should be seriously considered.  First, the overhead to get started, and the cycles of product development require much lower capital resources.  A dollar given to a software startup stretches much farther - a $50K investment to a software tech startup can represent a serious infusion of capital that makes the difference between having a prototype and never getting off the ground.  If you can seed enough software startups with relatively low amounts of capital, it becomes a numbers game - the investments nurture the entrepreneurial community and it becomes only a matter of time before you have a game changer emerge.

There are two important things that New Jersey can do to cultivate the kind of tech development that will differentiate the state.  First, we need to ensure that angel and seed funders see New Jersey as a viable investment environment.  The state has already made some strides in this area. For instance the 2013 Angel Investor tax program was used to support 181 investments in 2014.[14] And public-private partnerships, such as that between the EDA and Edison Partners VIII, have allowed more than $40M to flow to innovative companies in the garden state.

The state should continue these efforts, and build on them by specifically identifying and attracting angels to form as a leadership network in the state.  Coupled with this, the EDA should actively collect and disseminate metrics that help us understand the strengths of our investment community, and also to work on our weaknesses.   Further work should continue to research the possibility of providing financial partnership with angels, including matching grants and conditional loans.

The second major thing to do to encourage software tech startups to take root in New Jersey is to actively focus on developing a close-knit culture of entrepreneurship in the state.  Groups like LaunchNJ have begun this work, and the state should look for opportunities to consolidate this culture.  To date, much of the EDA’s focus has been distributed throughout the state.  This makes political sense as a general policy, but has some subtle problems.

Often the preferred destination for startups is Silicon Valley and a handful of other locales.  One advantage that Silicon Valley, NYC, and Philadelphia have over New Jersey is geographic constraint.  New Jersey is every bit as convenient as Silicon Valley in terms of access to workforce, transportation, and physical infrastructure.  What New Jersey needs is a directed focus on a smaller geographic area in which to cultivate our software tech sector.  We need a "scene" where the innovators go to collaborate and socialize.  Although not a large state, having our innovation hubs spread out across a number of cities and suburbs is less than ideal.   Newark and Jersey City have been making great strides toward revitalization in recent years.  Trenton is also an obvious candidate for both a renaissance and a corresponding software tech boom. Since his election, Mayor Jackson has made a number of moves that suggest that economic development is on the forefront of his mind.

The state government also needs to scale up the scope of its economic policies to incentivize a much larger range of startups. Although undeniably positive, programs like the Grow NJ tax credits and the Technology Business Tax Certificate Transfer Program are designed to assist relatively large companies when compared to the kind of startups that operate in the software tech space.  In short, our law makers need to design economic policies that make it much more attractive for founders to start work on their ideas in New Jersey.

Software is eating the world – what can be digital will be digital.   In the next five years we will witness a host of new technologies that transform important parts of our economy and daily lives.  Bitcoin and the blockchain will certainly be a part of that transformation, and now is the time for the right investment to happen.  New Jersey, already a leader in many ways, has an opportunity right now to expand its influence.

[1] http://venturebeat.com/2015/03/11/t-mobile-now-accepts-bitcoin-in-poland/

[2] http://www.telegraph.co.uk/technology/news/11286998/Tech-giant-Microsoft-accepts-Bitcoin-payments.html

[3] http://www.telegraph.co.uk/technology/dell/10980089/Dell-jumps-on-the-Bitcoin-bandwagon.html

[4] The Bitcoin Investment Trust - http://www.bitcointrust.co/#About

[5] http://www.businessinsider.com/winklevoss-twins-bitcoin-will-dominate-global-finance-2015-3

[6] http://www.coindesk.com/btcpoint-spanish-bank-network-bitcoin-atms/

[7] http://pando.com/2015/03/16/nations-might-not-adopt-pure-bitcoin-but-ibms-blockchain-based-alternative-has-a-chance/

[8] https://blog.coinbase.com/2013/12/12/coinbase-raises-25-million-from-andreessen/   ; https://blog.coinbase.com/2015/01/20/coinbase-raises-75m-from-dfj-growth-usaa-nyse/

[9] https://coinreport.net/bitcoin-surpasses-100000-transactions-day-excluding-popular-wallets/

[10] http://www.newsbtc.com/2014/05/27/bitpay-processing-one-million-per-day-bitcoin-payments/

[11] http://www.wired.com/2015/03/opinion-bitcoin-may-gets-us-real-net-neutrality/

[12] http://www.SmartContract.com

[13] https://www.cryptocoinsnews.com/blockchain-voting-used-by-danish-political-party/

[14] http://www.njeda.com/web/Aspx_pg/Templates/LatestNews.aspx?topid=721&Doc_Id=2466&ParentDocID=68

NJ Data Security: Business Associates of Insurers Take Note

As of August 1, 2015, health insurance companies in New Jersey will be required to enact greater security measures as part of personally identifiable information protection.  The new standard will require encryption of "personal information," which includes: 

1. The social security number;
2. the driver's license, or other state-issued identification;
3. the member's address; and
4. any other identifiable health information. 

It is important to note that the requirements of this law are more stringent than the requirements of the federal Health Insurance Portability and Accountability Act ("HIPAA").  HIPAA merely requires that health insurance carriers merely protect the information - there is nothing specified as to what a minimum level of protection technologically looks like. The New Jersey law, on the other hand, requires basic encryption. 

An important point missing from the law is how business associates of insurers who share information will fare.  This would include device manufacturers, IT firms, lawyers, and other such service providers.  In order to avoid any possible future liability arising from this law, it is advisable that service agreements now contain clauses that explicitly deal with encryption standards for any service provider who handles patient data. 

Read more here. Read the original bill here.

CA now has an anonymity right for minors; Internet providers anywhere can face fines for violations

Any business that conducts business in California needs to be aware of a new law that just passed.  California has adopted an approach to privacy for minors which mirrors, in some respects, the "right to be forgotten" popular in the EU.  If you run a web site that conducts business in CA you should consult with a lawyer on this issue. 

You can read more here.

Senate Re-introduces Bill to Permanently Ban Internet Access Taxes

This one appears to be a no-brainer to me.  The Senate reintroduced a bill that would permanently ban taxes on Internet access.  From Net Neutrality to SEC regulations on the Internet of Things, we see an ever-increasing push from elected and appointed officials to get their hands around the Internet.   Many of these efforts, even if good intentioned, will inevitably slow the innovation engine that has powered so much of the last fifteen years of industry.  This bill is a sensible effort to draw at least one line in the sand.  Senators Heller and Ayotte should be applauded for taking this position.  

Read more here.

Lawyers are crucial to Bitcoin startups (and other cryptocurrencies too)

Coindesk brings us a very thoughtful overview of the challenges facing cryptocurrency startups.  In the opinion of the authors (and this author too, for that matter), the role of the lawyer for such startups will be ever necessary.   The best takeaway from the article: 

“Whether it’s the cybersecurity element, financial crimes piece, regulatory side, typical startup model – in the community there’s a need, there’s a desire for legal counsel,” Stoeckert said.  Miller added: “Because of the legal uncertainties surrounding bitcoin, companies in this space will need to use attorneys more intensively than if they were in a more conventional line of business – for a while.”