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The Limits of Free Speech

Paul Overbee, MJLST Editor

A large portion of society does not put much thought into what they post on the internet. From tweets and status updates to YouTube comments and message board activities, many individuals post on impulse without regard to how their messages may be interpreted by a wider audience. Anthony Elonis is just one of many internet users that are coming to terms with the consequences of their online activity. Oddly enough, by posting on Facebook Mr. Elonis took the first steps that ultimately led him to the Supreme Court. The court is now considering whether the posts are simply a venting of frustration as Mr. Elonis claims, or whether the posts constitute a “true threat” that will direct Mr. Elonis directly to jail.

The incident in question began a week after Tara Elonis obtained a protective order against her husband. Upon receiving the order, Mr. Elonis posted to Facebook, “Fold up your PFA [protection-from-abuse order] and put it in your pocket […] Is it thick enough to stop a bullet?” According the Mr. Elonis, he was trying to emulate the rhyming styles of the popular rapper Eminem. At a later date, an FBI agent visited Mr. Elonis regarding his threatening posts about his wife. Soon after the agent left, Mr. Elonis again returned to Facebook to state “Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat.”
Due to these posts, Mr. Elonis was sentenced to nearly four years in federal prison, and Elonis v. United States is now in front of the Supreme Court. Typical state statutes define these “true threats” without any regard to whether the speaker actually intended to cause such terror. For example, Minnesota’s “terroristic threats” statute includes “reckless disregard of the risk of causing such terror.” Some states allow for a showing of “transitory anger” to overcome a “true threat” charge. This type of defense arises where the defendant’s actions are short-lived, have no intent to terrorize, and clearly are tied to an inciting event that caused the anger.

The Supreme Court’s decision will carry wide First Amendment implications for free speech rights and artistic expression. A decision that comes down harshly on Mr. Elonis may have the effect of chilling speech on the internet. The difference between a serious statement and one that is joking many times depends on the point of view of the reader. Many would rather stop their posting on the internet instead of risk having their words misinterpreted and charges brought. On the other hand, if the Court were to look towards the intent of Mr. Elonis, then “true threat” statutes may lose much of their force due to evidentiary issues. A decision in favor of Mr. Elonis may lead to a more violent internet where criminals such as stalkers have a longer leash in which to persecute their victims. Oral argument on the case was held on December 1, 2014, and a decision will be issued in the near future.


Asteroid Mining–Not As Crazy As It Sounds

Kirsten Johanson, MJLST Staff Member

Over the last few years, companies and private individuals have fully embraced novel space activities. Felix Baumgarner completed a space jump with the Red Bull Stratos making him the first human to break the sound barrier without any engine power. SpaceX developed the first reusable rocket, the Grasshopper, and was the first private company to deliver a shipment to the International Space Station. Recently, for the first time in history, the European Space Agency’s Rosetta mission successfully landed its space probe, Philae, on a comet. All of these ventures pushed the boundaries of space exploration beyond limits previously imagined and all indications are that such ventures will continue. One such undertaking is the concept of asteroid mining.

Asteroid mining is exactly what it sounds like–humans landing equipment on asteroids (and other celestial bodies) and mining for the minerals that exist on such bodies. This concept might seem far-fetched but, in reality, it is a serious topic of debate primarily because of the usefulness of the minerals that exist in the crust of asteroids. NASA has released an estimate “that the mineral wealth resident in the belt of asteroids between the orbits of Mars and Jupiter would be equivalent to about 100 billion dollars for every person on Earth today.” The reason such minerals are so valuable is because of their potential usefulness in “developing the space structures and in generating the rocket fuel that will be required to explore and colonize our solar system in the twenty-first century.”

Today, the physical process of actually mining these minerals is still not cost-effective. As a result, the bigger debate on this issue is currently over the legal implications of mining these minerals and returning them to earth. In space, no single country’s laws apply but, in 1967, over one hundred countries signed the United Nations’ Outer Space Treaty of 1967. This treaty is the current law governing space and it prevents the appropriation of outer space or any celestial body in space by any nation in its space explorations. While this law unequivocally applies to sovereign nations, the recent dispute is over the extension of this treaty to private companies participating in asteroid mining. If it does not, companies like Deep Space Industries, Planetary Resources, SpaceX, or other private players in the space exploration field could begin developing mining procedures that would give them rights to any mined asteroid minerals. However, if it does extend to private companies, this opportunity will likely die before it gets started.

Many in the public and private sector in the United States are pushing for a narrow application of the law to nations which would leave open a huge industry for private development. In Congress, the American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act was recently introduced in the House of Representatives to officially clarify the law. The Act states that “[a]ny resources obtained in outer space from an asteroid are the property of the entity that obtained such resources.” This would mean that any asteroid mining company would have unlimited access and appropriation rights over any asteroid materials they mine but not over the asteroid itself.

Proponents of such a reading have introduced various statutory interpretation arguments that get them to this conclusion, but it is still unclear which of these will likely be the winning argument. Or even if there will be a winning argument. While asteroid mining does present significant opportunities well into the future, it is still a long-term venture unlikely to launch anytime soon. As a result, if the ASTEROID Act does find enough support in Congress, that is only the first step. The United States will still have to assert an international position amenable to other countries.

Overall, this Act and the publicity it will need to generate to garner sufficient support of this industry is an important first step but it cannot be the only step. Other countries, particularly the signers of the Outer Space Treaty of 1967, must develop a workable solution to the ownership question of asteroid materials. However, with the potential technological advancements and economic realizations of such an industry, it is unlikely that countries with active space exploration will be opposed. Hopefully, these countries see the development opportunities as outweighing the costs because, if there is wide acceptance, this might be the real start of space development and colonization.


A Review of Replay Technology in Major League Baseball

Comi Sharif, Managing Editor

This week marks the end of the 2014 Major League Baseball regular season, and with it, the completion of the first regular season under the league’s expanded rules regarding the use of instant replay technology. Though MLB initially resisted utilizing instant replay, holding out longer than other American professional sport leagues, an agreement between team owners, the players association, and the umpires association produced a gross expansion of the use of replay technology beginning this season.

The expanded rules permit managers to “challenge” at least one call made by an umpire during a game. The types of calls allowed to be challenged are limited to objective plays such as whether a runner was safe or out at a base, or whether a fielder caught or “trapped” a batted ball. Subjective umpire calls, including calls regarding balls and strikes and “check” swings, are not reviewable. The complete set of MLB’s instant replay rules is available here.

As alluded to above, the process of going from the idea of instant replay in baseball to actual implementation was long and complex. First, rule changes must be collectively bargained by MLB and the players association (MLBPA). Thus, the proposal to expand the use of instant replay had to be proposed during the recent collective bargaining agreement (CBA) discussions in 2011. What both sides agreed to was language in the CBA stating that subject to approval by the umpires association, MLB baseball could expand the use of instant replay. Second, after agreeing to general idea of more instant replay, MLB developed specific rules and policies for instant replay, which had to be approved by the owners of the 30 MLB franchises. Once the owners approved the specific rules, which they did unanimously, the rules could finally be put into action. One issue to watch is how each of the different parties involved in the approval process reacts to the changes instant replay has on the league. The current CBA expires in December of 2016, at which time wholesale changes to the current instant replay system could be realized.

The replay technology used by MLB is somewhat unique compared to that used by other professional sports leagues such as the National Basketball Association and the National Football League. Often in the NBA and NFL, referees or officials view video replays of a contested call themselves with technology located at the playing venue itself. MLB, however, created a “Replay Operation Center” (ROC), located at MLB headquarters in New York City, where a team of umpires reviews video replays and communicates a final ruling through headsets to the umpires on the field. Additionally, MLB permits each team to have a “video specialist” located in the clubhouse to watch for challengeable plays; the specialist can call the manager by phone to communicate whether or not the play should be challenged.

In one sense, the MLB system may be advantageous because it allows the ROC to have the best available technology, whereas the NBA and NFL have to adapt the sophistication of their replay systems to make it possible for use at every stadium and to the referees or officials at the venue immediately. While the NFL and NBA referees and officials typically look at one relatively small monitor when reviewing a play, the ROC houses 37 high-definition televisions, each of which can be subdivided into 12 smaller screens. Though this may not seem like a big deal to the casual observer, a number of calls are so close that the quality of the image available on replay can directly impact the call. One might conclude, then, that because MLB has more advanced technology at its disposable, its replay system is, in fact, more accurate. The MLB system does have its downsides, however. Outsourcing the review process can lead to lengthy delays and put decisions in the hands of an umpire thousands of miles away from the action, which many find unappealing.

The site Retrosheet has a comprehensive collection of data on MLB’s replay system, including an entry for every play reviewed, its result, and the length of time taken for the review to be completed.

Overall, there are mixed reviews concerning the success of the expanded replay rules used in MLB this season. Though it’s unclear exactly how MLB will adjust its system in the future, if the current trend continues, as increasingly effective technology becomes available, the impact of that technology on the sport of baseball is only likely to rise as well.


Circuits Split On Cell Site Data and the Third Party Doctrine

Mickey Stevens, MJLST Staff

The Eleventh Circuit’s recent decision in United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) has created a split among the circuits regarding the interaction between the Third-Party Doctrine and cell site data recorded by cell phone service providers. The Stored Communications Act 18 U.S.C. § 2703, which was enacted as part of the Electronic Communications Privacy Act of 1986, allows the Government to obtain disclosures of information regarding wire and electronic communications held by third-party service providers. Under 18 U.S.C. § 2703(d), the Government may obtain this information by court order and bypass any requirement of a warrant or showing of probable cause. The Third-Party Doctrine, which says that a person who voluntarily turns information over to third parties has no legitimate expectation of privacy in that information, served as grounds for this provision to operate without violating the Fourth Amendment. This practice was a central issue involved in the Davis decision, rendered this past June.

In Davis, a panel for the Eleventh Circuit ruled that law enforcement officers violated the Appellant’s Fourth Amendment rights when they obtained, without a warrant, records of location evidence based on cell site information. Despite this ruling, the panel concluded that the trial court’s denial of Appellant’s motions to suppress did not constitute reversible error due to the good faith exception to the exclusionary rule.

In reaching its decision, the panel rejected the Government’s argument that the Third-Party Doctrine applied to the cell site data evidence. The panel cited to a 2010 decision from the Third Circuit, In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010), which held that a cell phone user voluntarily conveys only the number dialed and not the location data when he makes a call. The Eleventh Circuit’s decision is clearly contradictory to a 2013 decision from the Fifth Circuit, In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013). There, the Fifth Circuit held that a cell phone user voluntarily conveys his cell site data each time he makes a call, and that this data could be properly obtained without a warrant.

On September 4, 2014 the Eleventh Circuit granted a motion for rehearing en banc. If the en banc court’s decision maintains the split between the Eleventh and Fifth Circuits, we might see a decision from the Supreme Court on the matter. The Supreme Court seems to have shown a particular interest in digital data as of late, judging by recent decisions in Riley v. California, 134 S. Ct. 2473 (2014), and United States v. Jones, 132 S. Ct. 945 (2012), among others. If the pro-privacy holdings and rationale in Riley and Jones serve as any indication, the Supreme Court may put an end to the Third-Party Doctrine’s application to warrantless gathering of cell site data.


Cyberbullying Laws in Minnesota: An Update and Counterpoint

Erin Fleury, MJLST Staff

Bullying in schools is an age-old problem; the effects of which have been exacerbated by society’s increasing use of technology, especially social media. Minnesota has minimal legislation when it comes to bullying and although it does include cyberbullying, many argue that the state should do more to enable schools to crack down on bullying in general.

A University of Minnesota Law School student, Bryan Morben, recently wrote an excellent Note regarding cyberbullying in which he highlighted a bill that was working its way through Minnesota’s legislature. At the time his article was published, the bill had been passed by the House but was “effectively kill[ed]” by the Senate. Supporters were hopeful that it would be revived during the current legislative session, however, and on March 12 the Senate’s education committee recommended the passage of an amended version of the bill that was passed by the House last year.

Mr. Morben’s article suggests that the House bill would not be defective for being vague or overbroad but it seems as though the bill could actually be criticized because it may encompass behavior outside the scope of what the legislature is aiming to prevent. For example, the House bill may include conduct that would not be considered bullying by any common-sense definition but is merely distracting to the learning process. The bill defines bullying as “the use of … words, images, or actions … that a reasonable person knows or should know … will have the effect of materially interfering with the ability of an individual … to participate in a safe and supportive learning environment.” After the definition, an example is listed which states that bullying would include conduct that “interferes with a student’s educational performance or ability to participate in educational opportunities.” A ‘class clown’ who routinely interrupts the teacher and distracts other students would reasonably know that such behavior is interfering with the ability to participate in a supportive learning environment, yet that type of behavior should not necessarily be considered bullying since it does not have the same type of negative consequences on students. Yet the language may create authority for teachers to crack down on other types of disruptive behavior because of the potential broadness.

Furthermore, the bill imputes a reasonable person standard on the requirement that the bully know that they will materially interfere with the other individual, but there is no reasonable or objective standard in regards to what actually is a material interference. For example, if one student would unreasonably react to another student disagreeing with them in class in such a way that it “has a detrimental effect on [their] physical, social, or emotional … health” then that would still be considered bullying even though the unreasonableness was on the part of the bullied rather than the bully. While these arguments may be stretching the meaning of the bill (and there are certainly strong arguments for interpreting the bill more narrowly), the House’s proposed definition certainly seems to create ambiguity that could lead to serious concerns about the scope or even constitutionality of the law.

The Senate’s amended bill, on the other hand, remedies these defects by requiring that all bullying conduct be “objectively offensive.” It also requires more from the offensive activity than any word, images, or actions by only applying to “intimidating, threatening, abusive, or harming conduct.” What constitutes such conduct is further defined with the examples of “causing physical harm [or reasonable fear thereof] to a student or a student’s property … violates a student’s reasonable expectation of privacy, defames a student, … constitutes intentional infliction of emotional distress … [or] is directed at a student based on [a number of personal characteristics].” Unlike the House’s bill, every example requires some form of objective or reasonableness requirement. While the definition itself explains that these examples are not all-inclusive, they do seem to point much more directly at bullying actions rather than other types of disruptive behavior. In this regard, the Senate proposal seems like a stronger piece of legislation because not only is it less likely to be contested on legal grounds, but its scope is also better targeted at the specific problem Minnesota is trying to address.

So far the amended bill has only been put forward by committees and not voted on by the entire Senate but it will be interesting to keep any eye on any future revisions and to see what version, if any, might be enacted into law.


Lethal injection, Moral Compunction

Becky Huting, MJLST Staff

Ohio inmate and convicted murderer Dennis McGuire was recently executed by lethal injection with a new combination of drugs. Ohio had run out of the standard drug pentobarbital because European manufacturers like Danish-based Lundbeck had imposed stringent restrictions on sales, prohibiting distribution to prisons that perform executions. In response to the shortage, the Ohio Department of Rehabilitation and Correction amended its policy to allow for the use of midazolam and hydromorphone, a combination that had never been used before in an execution.

MacGuire’s lawyers argued that he would “suffocate to death in agony and terror.” The State’s expert Dr. Mark Dershwitz indicated that he had no way of knowing the duration of time before the drugs would take effect. “There is no science to guide me on exactly how long this is going to take.” MacGuire’s execution took 24 minutes, with the man gasping for air between 10 and 13 minutes. Reporter Alan Johnson stated, “He gasped deeply. It was kind of a rattling, guttural sound. There was kind of a snorting through his nose. A couple of times, he definitely appeared to be choking,”

MacGuire was convicted of the 1994 rape and murder of 22-year-old Joy Stewart, who was seven months pregnant. Her body was discovered by hikers in a creek; her throat was cut and she had been sodomized. There are many people in our country who would say, “Serves him right, MacGuire got what was coming to him. Let him suffer an awful, painful, frightened death just as his victim did. Why should I care about what happens to an evil, unrepentant killer? The world is a better place now that he’s gone, and I’m glad it hurt.” Can you hear the rumble? Are these not the same individuals who care about the tenants of our good country? Do they not tout the glory of our constitution?

The eighth amendment is short, but it is probably most recalled for its last six words: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” What does cruel and unusual punishment mean? Some say this is a subjective concept. Others, like Justice Brennan, have floated some principles one might consider (Furman v. Georgia, 408 U.S. 238 (1972)): it could be punishment that is degrading to human dignity or that which inflicts it in wholly arbitrary fashion. Is there a way, though, to administer the death penalty in a fashion that respects human dignity? Former British Cabinet Minister Michael Portillo established a set of principles he believes is effective: death should be quick and painless to prevent suffering, medical education should be provided to the executioner to prevent suffering caused by error, the death shouldn’t be gory (also to protect those carrying out the execution and arguably the witnesses), and you shouldn’t force the inmate to cooperate in his own execution.

Whether to be concerned with agony and suffering in a death row inmate is a subjective decision based in an individual and community sense of justice. Yet it would be hard to deny that there is a change in how this process is being administered. This resolute rumbling I refer to, it must too engage in a set of values checking. If your code is the Constitution, does this still fit under your interpretation of the 8th amendment? If your code is not the 8th amendment, do you justify your reception of this new method in lex talionis (an eye for an eye)? What is stopping you from carrying out justice yourself, and if you want to, do you actually want to participate in a civilized society? Why shouldn’t creating that be the goal; aren’t we slipping back toward a time where men were hanged in the public square? Are you okay with going back?

Virginia too is running out of pentobarbital, and is now adding the new drug Midazolam to its execution process, despite objections of the drug’s manufacturer, Hospira, which has publically objected to the use of their product for capital punishment. Undoubtedly, more capital punishment states will continue to follow Ohio’s lead, leading to more inmates reaching their lengthy, choking ends this way. One inmate, Michael Lee Wilson, had some expressive last words: “I love everybody…I love the world…love my daughters for me…I feel my whole body burning.” Are we going to stand by our convictions or are we going to recognize that something is amiss here? Are we civil or savage?


Shapewear Patent War: Case of the Bad Patent?

by Jennifer Nomura, UMN Law Student, MJLST Staff

Thumbnail-Jennifer-Nomura.jpgWhen most people think of patents they think of the latest computer technology or advances in medical science; but what about women’s shapewear? For those unaware of what shapewear is, it’s basically the modern version of a corset; it keeps everything pulled in, but (hopefully) more comfortable than a corset. Heather Thomson, founder of Yummie Tummie, has a patent on some of her styles of tank-top shapewear. Corset_Patent_Image.jpgWhen she found out that Spanx, a competing company, was making a very similar looking piece of shapewear, Thomson wasn’t happy. Thomson sent a cease-and-desist letter to Sara Blakely, founder of Spanx and then took to social media to complain. Websites like Forbes and the Huffington Post picked up the story. So far, the situation sounds fairly typical of other patent infringement cases, so why all the press coverage? Did I mention that Heather Thomson is a TV star of Bravo’s Real Housewives of New York? Needless to say, Thomson is not afraid of a little drama. Thomson has declared war against Blakely and Spanx. But Sara Blakely is not the underdog in this situation. Blakely founded Spanx in 2000 and is now a self-made billionaire. Blakely has now filed a declaratory judgment action in court alleging that Spanx is not infringing any of Yummie Tummie’s patents.

Spanx has been in the shapewear business 8 years longer than Yummie Tummie and has its own patents, so this might be the case of the “bad patent”. In an article entitled Patent Reform and Differential Impact, published in Issue 8.1 of the Minnesota Journal of Law, Science & Technology, authors Matthew Sag and Kurt Rohde define a “bad patent” as one “that should not have been issued.” But Sag and Rohde want to go further. HeatherThomasPatent-cmp.jpg They argue that the term “bad patent” should also include “a patent that was validly issued but is now the subject of hyper-assertion.” The main concern with bad patents is that they “are capable of generating significant revenues and thus have a distorting effect on the allocation of resources in the economy.” This can happen where once a patentee sends a cease-and-desist letter, even if the patent qualifies as a “bad patent,” the alleged infringer will immediately license with the patentee. Or it could be that the parties could take their dispute to court, like Spanx and Yummie Tummie. Now there will be an expenditure of money on both sides trying to settle this issue in court. There is also a drain on public resources as the conflict has to make its way through the court system. Sag and Rohde make several proposed reforms in order to remedy the problem of bad patents. One of their proposed reforms to the litigation process is by fee-shifting. Fee-shifting would require the patentee to pay the costs of litigation if the patent was invalidated based on easily-discoverable prior art. This proposed reform could push potential patent applicants to perform a more comprehensive search through current patents before submitting their application to the PTO. Fee-shifting could prevent bad patents from being issued in the first place, or at least making patentees think twice before they try to enforce their patent against an alleged infringer.

While the public’s interest in the dispute between Yummie Tummie and Spanx has more to do with the reputations of both founders, this situation could revive a push for reform to the patent litigation system. Perhaps there will be a revival of the interest to limit or eliminate “bad patents.”


FDA Warning Letters: Knocking on the Doors of Courthouses

by Katelyn DeRuyter, UMN Law Student, MJLST Staff

Thumbnail-Katelyn-DeRuyter.jpgThe FDA is responsible for safeguarding public health by “assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.” The FDA inspects products and manufacturing facilities in order to ensure these important goals. If the inspection finds that a company has fallen short of the applicable standards, the FDA often will issue a Warning Letter.FDA_Letter.jpg An FDA warning letter is written correspondencee “that notifies regulated industry about violations that FDA has documented during its inspections or investigations.” The FDA views warning letters as giving the recipient an opportunity to take voluntary and prompt corrective action before the FDA initiates official enforcement action. Despite the fact that the FDA Warning Letter is considered a mechanism for inducing “voluntary” compliance, in recent student note published in Issue 12.2 of the Minnesota Journal of Law, Science & Technology, entitled “FDA Goes Loko,” Rebecca Boxhorn argues that warning letters do not induce truly voluntary compliance because recipients that do not wish to voluntarily comply have limited options. Under the current state of the law, FDA Warning Letters are not subject to judicial review. This lack of judicial review is problematic because warning letters subject recipients to real consequences. Boxhorn proposes that FDA Warning Letters should be subject to judicial review.

This positions runs contrary to current case-law but is supported by many industry participants. The crux of the Boxhorn’s argument is that given the consequence of receiving a warning letter, “judicial review of warning letters must be allowed to protect regulated parties from agency coercion and potential misapplications of the law.”

A recent Supreme Court decision in Sacketts v. EPA has sparked speculation over whether courts will begin to re-evaluate their previous view of FDA Warning Letters as not fit for judicial review. The Court in Sackett analyzed whether an EPA Compliance Order constituted final agency action that was subject to APA judicial review. The Sacketts brought suit in U.S. District of Idaho claiming the EPA’s compliance order was arbitrary and capricious and deprived them of life, liberty, or property, without due process of law, in violation of the Fifth Amendment. The district court dismissed the claims based on the lack of subject matter jurisdiction and the Ninth Circuit affirmed. The Court granted certiorari, reversed the Ninth Circuit’s decision, and held that the contested compliance order constituted “final agency action for which there [was] no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review.”

The Court analyzed whether the compliance order in question constitutes final agency action and concluded that it “has all of the hallmarks of APA finality that our opinions establish.” The opinion walked through three factors that support the finding that the compliance order is final agency action: (1) the fact that “[t]hrough the order, the EPA ‘determined’ ‘rights or obligations;'” (2) the fact that “‘legal consequences . . . flow[ed]’ from issuance of the order;” and (3) that the agency action “mark[ed] the ‘consummation’ ‘of the agency’s decision making process.'” Whether applying Sackett would lead a court to conclude that an FDA warning letter is final agency action depends on the extent to which the warning letter in question is similar, or dissimilar, in language and ramifications, to the compliance order addressed in Sackett–at least in regards to the “hallmarks of finality.” A key component of the Sackett Court’s analytical approach is the fact that the Court looked beyond the EPA’s stated intent of compliance orders, and evaluated the actual effect of the compliance order on the Sacketts. If courts adopt this approach and look at the consequences of receiving a warning letter, recipients might finally gain access to judicial review.


Kirtsaeng’s Parade of [Less]-Horribles

by Caroline Marsili, UMN Law Student, MJLST Staff

Thumbnail-Caroline-Marsili.jpgIn a 6-3 decision that came down March 25, the Supreme Court held that copyright’s first sale doctrine, which allows the lawful purchaser of a copyrighted product to resell the product without interference from the copyright holder, applies to copyrighted works lawfully made abroad. Kirtsaeng v. John Wiley & Sons marks the resolution of a decades-long uncertainty over the potential international reach of the first sale doctrine. This moment of clarity, however, is sure to be followed by challenges, given the newly-sanctioned threat to some domestic industries.

book_pile.jpgFrom a legal standpoint, the case was rightly decided. Briefly, plaintiff publishing company John Wiley & Sons sought relief from Cornell student-turned-professor Supap Kirtsaeng, who paid his way through university by reselling Wiley’s English-language textbooks manufactured abroad. Kirtsaeng’s family bought the books in Thailand and mailed them to Kirtsaeng, who resold them on eBay for a profit. In finding for Kirtsaeng, the majority attempted to reconcile a tension between the language of § 602(a)(1) of the Copyright Act, which gives copyright owners redress for unauthorized importation of their copyrighted work into the U.S., and the first sale doctrine (§ 109(a)), which gives owners of particular copies “lawfully made under this title” the right to sell the copy without the owner’s permission.

As author Benjamin Hamborg astutely foreshadowed in John Wiley & Sons, Inc. v. Kirtsaeng: The Uncertain Future of the First Sale Doctrine (Minnesota Journal of Law, Science & Technology, Vol. 13.2), the Court reasoned that the text of 109(a) contains no geographical limitations, and that Congressional intent and historical context further require an interpretation of first sale unbound by territory. Justice Breyer’s majority opinion further acknowledges the far-reaching policy implications a geographical limitation would have on “[a]ssociations of libraries, used-book dealers, technology companies, consumer-goods retailers, and museums.” In her dissent, Justice Ginsburg criticized the Court’s “parade of horribles” as unfounded, and observed the opinion would frustrate Congress’s intent to permit international market segmentation by copyright owners. Ultimately, in reversing the Second Circuit and criticizing a “purely geographical interpretation” of 109(a), the decision represents a victory for institutions such as libraries and for consumers.

But while the Court dodged the parade of horribles that Justice Breyer adamantly sought to avoid in oral arguments, the international reach of first sale sounds alarms for U.S. companies that will be threatened by unrestricted gray market competition. A recent NYTimes article aptly identifies some of the other horribles waiting in the wings of an international exhaustion doctrine, including the undercutting of domestic software prices, de-segmentation of international publishing markets, threats to a burgeoning secondhand digital marketplace (though first sale may not apply here), and another nail in the coffin of print publications. Further, Kirtsaeng has the potential to set an example for amateur sellers to profit from gray market goods.

So what’s to be done? In “Next Moves For IP Law After SCOTUS First-Sale Ruling,” Lisa Shuchman suggests a number of options for copyright owners to numb the sting of Kirstaeng. Options include pursuing other legal remedies like contract and more expansive trademark protection, digitizing their protected content, raising domestic prices (to off-set losses from sale of imported copies), and pursuing statutory reform. Others suggest first sale is on its way to mootness in an increasingly digital economy. Raustiala and Sprigman’s solution? “Stop selling copies. Start licensing digital files.” Still others argue statutory reform is unavoidable. Andrew Albanese suggests the Court did what was best with a convoluted statute, but that Congress will need to address the outdated Copyright Act.

Though Kirstaeng undoubtedly provides much-needed clarification on the status of first sale, the story isn’t over for domestic copyright owners seeking to prevent unwanted, but now legal, importation of their works. Grab a seat on the curb . . .


Go Easy on the Doctors

by Greg Singer, UMN Law Student, MJLST Managing Editor

Thumbnail-Greg-Singer.jpgThe healthcare system in the United States is no stranger to debate. The current president won election, and recently re-election, due in no small part to his promises of reform in the area. It is no surprise that this is the case. People literally place their lives in the hands of the healthcare system, and utilize it so often that the combined spending on it consumes nearly 18% of the entire GDP (a figure that is only expected to rise as time wears on).

Yet anchoring the system that serves almost 315 million Americans is a surprisingly small contingent of no more than 960 thousand medical doctors (of whom only about 350 thousand are considered to be primary care physicians, and many of the remainder employed in non-patient-facing positions). This is an incredible burden placed on the shoulders of so few people, a burden that is only expected to become weightier in future years, as medical schools arguably fail to produce enough new physicians to properly care for the current set of patients, let alone all of the soon-to-be-patients as universal healthcare requirements set in pursuant to Affordable Health Care for America Act.

In Mistake-Proofing Medicine: Legal Considerations and Healthcare Quality Implications, published in volume 14.1 of the Minnesota Journal of Law, Science & Technology, authors John Grout, et al. argue that a significant portion of medical mistakes and errors may be attributable to a character flaw in the psyche of some physicians, specifically that they are beset with “a narcissism that blocks full acceptance of the notion that compliance rules apply to [them].” Moreover, the authors point to other character flaws, such as the performance of duties while under the influence and general substance abuse as significant causal factors for mistakes.

While these issues no doubt exist in one form or another, it is important to remember that the vast majority of doctors do try their best to help their patients. Given the unconscionable hours involved in the job, the relatively modest compensation for many, and the massive debt burdens required to enter the field, it is hard to imagine anyone, narcissistic or not, attempting it without possessing a truly real desire to help those in need. If anything, the simple exhaustion facing many doctors is a more understandable, and sympathetic, cause of error. Medical doctors are among the most overworked professionals in the United States, despite the extremely high stakes involved in their work. The high hours required is partly due to the culture surrounding the field, but the limited number of available physicians, despite the rising amount of time demanded by the growing lists of patients cannot be ignored.

Increasing enrollment in existing medical schools, or even creating new medical schools, may be a pathway to reducing medical mistakes errors, wait times, and perhaps even costs. But in the meantime, be understanding of your doctor. Do not immediately assume that his mistakes are due to arrogance or a flaw in his character. He may simply be tired.