Colorado Technology Law Journal

by Sophie Galleher

First, think figure skating. Then, watch this. At minute 2:45 Jimmy Ma brings it, unzipping his jacket and giving a tongue wag à la Michael Jordan circa 1998 as his music breaks into a hip hop-electronic dance mix of “Turn Down For What” by DJ Snake and Lil Jon. Surprised? Welcome to figure skating in 2018, where Tchaikovsky’s “Swan Lake” and Beethoven’s “Moonlight Sonata” are things of the past.

Ma’s routine epitomizes the impact of a 2014 rule change where the International Skating Union, attempting to inject life into a sport with waning popularity, repealed a rule that prevented figure skaters from using music with lyrics in their routines. And the move has proven to be a success. In the past week, the PyeongChang Olympics—the first since the rule change—has seen media outlets light up with commentary, as the event has featured artists such as Beyoncé and Ed Sheeran and songs such as Despacito. In 2017 a French pair team’s bone-chilling performance set to Disturbed’s heavy metal rendition of “Sound of Silence” went viral, generating millions of views.

But while figure skating is enjoying its revival, a host of copyright issues are simmering. The pieces of classical music that skaters historically performed to—the Boléros, the Carmens, and the Swan Lakes—generally fell within the public domain. More recent performances, on the other hand, are often set to songs by artists who are alive and keen to enforce their copyrights. The result: figure skaters may unwittingly be violating copyright law.

As a threshold matter, ice arenas likely qualify as public or semi-public places, which are subject to the Copyright Act. To mitigate liability under copyright law, ice arenas and other public venues often enter into a blanket licensing agreement with performance rights organizations (PROs), such as BMI or ASCAP. However, these licensing agreements are designed for venues where the owners, not the skaters, control the music played.

As a result, these agreements are limited.

First, some of these licenses don’t authorize dramatic performances. This is problematic because, as ASCAP states, “Copyright law does not define the terms “dramatic” or “nondramatic” . . . . [T]he line between “dramatic” and “nondramatic” performances . . . is often unclear and depends on the facts pertaining to a particular performance.” Against that backdrop, it is unclear whether skating routines would qualify as a “dramatic performance” under copyright law.

Second, the license does “not convey the right to publicly perform . . . musical works . . . to persons outside of the Licensed Premise.”  As such, the reproduction of skating routines performed in ice arenas, whether on the television or through YouTube likely implicates the Copyright Act. To that end, from selecting music to performing routines, copyright law is potentially implicated at several junctions in the figure skating “chain of production.”

The next issue is whether skaters and coaches implicate copyright law when they first select the songs for their routines. Generally, the coach or the skater will download songs from iTunes or a similar platform and edit them, often merging two or more songs together, onto a single CD. The skaters and coaches then make multiple copies of this CD to use at practice and competitions. In some cases, the coaches charge the skaters for the copies. This process of downloading of music and creating new CDs may implicate copyright law.

The final issue is who should be responsible for obtaining copyright permission: the skater who performs the routine, the arena that plays the music, or the broadcasters who distribute the performance to a mass audience.

Notwithstanding these copyright issues, the dearth of copyright infringement actions against figure skaters has led some to consider whether figure skaters have carved out a new exception in the fair use doctrine. The more likely scenario, however, is that figure skating has yet to encounter serious copyright enforcement issues.  But the buzz about figure skating routines at the PyeongChang Olympic Games could raise copyright questions that have ramifications that extend well beyond the figureskating world.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Gina Sbarbaro

With the successful test drive of a self-driving semi from Los Angeles to Jacksonville, the trucking industry is going to see some major changes. This technology has the potential to make a major impact, since the trucking industry brings in annual revenue of over 7 billion dollars and makes up over 81% of the entire revenue of the commercial transportation industry. Compared to train, plane, and boat transportation, the trucking industry made up sixty-five percent of all freight transportation in North America in 2016.

San Francisco start-up Embark Trucks announced that the 2,400 mile coast-to-coast trip was completed in five days for “hours at a time with no disengagements.” The autonomous technology located inside the truck relies on cameras and sensors to avoid obstacles, collect data, and map its surroundings. On this trip, a driver did sit behind the wheel of the truck in case any issues arose. Embark’s long-term goal is to create an autonomous truck that is self-driving on freeways, but needs manual guidance to travel through small towns or cities and to get on and off exits. While this technology would help the trucks cover more distance in a shorter time, the limits on the technology would also allow truck drivers to keep their jobs.

But it’s hard to imagine with this growing technology that all 7.3 million trucking related jobs in the U.S. are really safe. While Embark currently promises job security by ensuring the trucks need human drivers for specific tasks, as the technology continues to develop in both trucks and cars, it is not a stretch to say the roads may soon be occupied with self-driving vehicles that do not require human assistance. Perhaps the majority of the 7.3 million jobs will be safe, since there remains a need for unloaders, warehouse staff, and administration. However, the 3.5 million jobs currently occupied by the truck drivers themselves are in danger.

The median annual salary for truck drivers is $40,000, while truckers that work for private companies can make over $70,000 a year. Eliminating these jobs could save companies millions of dollars while simultaneously creating safer roads, saving on fuel, and increasing speed of delivery. However, as advancements continue to take place, keeping drivers employed becomes challenging.

Nevertheless, a compelling reason to implement the technology is the driver shortage. With more than 70% of goods consumed in the US moved by truck, it appears that the industry is full of available jobs.  In fact, as recently as January 2018, there was a need for almost 900,000 more drivers. This shortage is not a new problem and has been an issue for the past 15 years. In addition to the many safety and efficiency benefits that self-driving semis offer—and Embark’s plan to keep truckers employed—the combined circumstances suggest it is just a matter of time until the benefits favor advancing the technology to create fully-independent self-driving semis.

As for Embark Trucks, the company will continue developing its autonomous technology and plans to install the technology in 40 more trucks by the end of 2018.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Julian McLendon

The future of American 5G wireless networks was in the news again recently, which set me to thinking about all of the potential use cases for an expansive 5G network. One of those is self-driving cars, which are poised to revolutionize huge parts of our economy and the way we live our lives.

An important way that self-driving cars will change our lives, hopefully, is that they will drastically reduce the number of people who drive under the influence of drugs or alcohol. Indeed, there is at least one case of someone who has already tried to rely on their assisted driving system in order to drive under the influence. Now, clearly, the technology is nowhere near reliable enough without an attentive and sober driver, but that won’t always be the case. Legislatures should start thinking now about how they want to handle the future of self-driving cars and intoxicated “drivers,” who are really no more than passengers along for the ride.

Before anything else, Congress must resolve two issues related to self-driving cars and DUIs.

First, Congress needs to determine at what level of automation they would consider applying a DUI exemption. This question of levels of automation is something that Congress is already addressing while they work on the SELF DRIVE Act. Once they determine how they want to classify the automation of automobiles, then they can move forward with determining if they want to exempt those vehicles from DUI laws. Obviously, only vehicles that are fully automated should be considered for DUI exemptions.

Another issue that must be considered is the possibility of an intoxicated driver taking over for the automated system in the middle of their ride. To combat this problem, Congress may want to require a certification program for car manufacturers confirming that their cars are eligible for the DUI exemption. Such a program could ensure that there is a special mode of operation, which disallows any human control once the car is in motion, when there are no sober passengers. The use of such a mode could also be a prerequisite for any drunk driver pulled over, if they want to avoid being charged with a DUI.

Thankfully, both the United States and Australia are already considering how the rise of automation should affect the legal landscape. If we want to fully reap the benefits that automated driving can bring to society, the law should encourage people to feel comfortable allowing their cars to take care of them when they cannot take care of themselves. Providing DUI exemptions for fully automated cars furthers that goal and will greatly increase the benefits of 5G going into the future.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Susan Miller

The futuristic TV show Black Mirror explores various potential technological advancements and their consequences. For example, in the episode “Be Right Back,” the character of Martha recreates her recently deceased boyfriend, Ash, using artificial intelligence (“AI”) technology that uses social media and text history to imitate him. Other books, movies, and TV shows have also explored the possibilities of AI. In some alternate worlds and futures, AI leads to subservient and helpful robots, such as R2-D2 in Star Wars, Baymax from Big Hero 6, and the robots in WALL-E. Other futures are darker, where humans are enslaved or destroyed by their own creations, such as in The Terminator, The Matrix, and 2001: A Space Odyssey. These fictional futures are enjoyable to watch and think about, but as AI creation becomes the focus of many of large tech companies, concerns about the effects of AI become a greater reality.

AI in the real world is often defined as machine learning or the ability of computers to learn difficult tasks, especially after changes to their environment. While consumers might cringe at the idea of Martha in “Be Right Back” communicating with technology that acts as her deceased boyfriend after it learned his speech patterns and habits, these same consumers might tell their Amazon Echo or Google Home to pause or play the next episode. Companies such as Apple, Amazon, and Google have already created and marketed intelligent personal assistants that can play music, answer questions, follow directions, and open and use apps. While these technologies don’t allow the imitation of real people, the creators of Siri have programmed in many sarcastic or sassy answers to immature or trick questions, which gives Siri a personality without being self-aware.

These intelligent personal assistants are quite beneficial to society. For example, they provide a greater form of accessibility to technology to many people. Additionally, the ability to make calls or find recipes with intelligent personal assistants helps with multitasking in the kitchen or when doing chores. And self-driving cars, another form of AI currently in production, could potentially reduce the number of accidents and provide easier transportation for those unable to drive. (However, the use of Siri while driving may not prevent accidents caused by distracted drivers since transcribing to Siri may be almost as distracting as actually using a phone.) Perhaps one day a Baymax-like assistant will exist, providing answers, medical care, transportation, and meals.

As these technologies develop and we continue to rely on their abilities to make our lives easier, it is important for creators and for government regulators to think about not only their effectiveness but also their effects on society. For example, how might the reliance on Alexa and Siri by families affect the way people consume information? The internet and availability of information has already impacted the way people research and read. How might the reliance on speech to gather information affect writing, research, and typing skills? Another concern that has been expressed by parents and educators is what children will learn or not learn from interacting with the Alexas and Siris of the world. For example, there are no consequences for shouting or demanding answers from Alexa or Siri. There’s currently no need to ask with a “please” or end a conversation with a “thank you” with Alexa, which could influence how a child learns to interact in a conversation. And unfortunately, these social concerns are unlikely to have any sort of regulatory or legislative solution.

Other concerns raised by AI can be regulated or influenced by legislation. For example, concerns regarding how these devices further broaden the global digital divide as developed countries race ahead in technological innovations might be alleviated by national or international regulation. This regulation might concern AI directly or more broadly encompass access to the internet and technology. Additionally, twenty-one states have enacted legislation regarding testing and pilot programs for self-driving cars. Federal agencies, such as the National Highway and Transportation Safety Administration, have issued guidance on autonomous cars as well. As legislators turn to regulating AI, they should think about the regulation’s effects on innovation and whether they have enough information about the technology before offering solutions.

Science-fiction is an enjoyable genre that provides wonderful opportunities for discourse on a variety of real-life problems. While hopefully much of the dystopian predictions remain fiction, it is important for innovators and regulators to consider not only the efficiencies and benefits of AI but also the unintended consequences.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Lucas Ewing

In the waning months of 2017, it was difficult to ignore the events surrounding bitcoin and a handful of other cryptocurrencies. During what many called a “bubble,” trading volume in cryptocurrencies skyrocketed, with bitcoin leading the pack. At its height, a single bitcoin could be traded for about $20,000—nearly 25 times its value just one year prior. While other cryptocurrencies fetched a much lower dollar value, they followed the same trajectory. The price of crypto has fallen substantially since its apex in December, but the price remains many times greater than this time last year.

During this crypto-craze, many economists and financiers have warned against investing in crypto, claiming that the recent events represent a speculative bubble and that cryptos have no socially beneficial value. While the rapid rise and fall in the price of crypto does bear the typical signs of a bubble, there may be more value to be found in these new technologies than mere speculation; blockchain and decentralized networks have the potential to create new legal frameworks and enforcement.

In this post, I offer an explanation for why cryptocurrencies may not be in ‘a bubble.’ Specifically, two factors may cause the value of cryptocurrencies to remain stable: increased transparency and reduced need for third-party enforcement.

Fraud and Transparency

The major development that ushered in the crypto revolution and crypto’s subsequent popularity was the invention of the blockchain. In a now-famous white paper, Satoshi Nakamoto proposed a solution to the problem of double spending by floating the idea of tying a currency to a public ledger containing every transaction and the wallet address of every existing coin. To use this currency, a user must possess a ledger that matches every other ledger in the user base. By ensuring that every user agrees on the location of every bitcoin, it is both impossible for any single user to double dip on a transaction and unnecessary to maintain a centralized intermediary. While large scale thefts are still possible, was revolutionary in that it helped garner the trust of its user base without relying on a centralized authority. By changing the architecture of the network, Nakamoto eliminated the need for coercive enforcement in this area. The benefits of this development are made manifest from the fact that a user’s coins are not beholden to a third party, and that users do not have to support the costs of an enforcer, as no enforcement is needed.

The blockchain, with its inherently transparent nature, spawned further development on top of it. Innovators began to think, “if we can ensure strictly monetary transactions on a decentralized network, maybe we can do the same for more complicated transactions.”

Smart Contracts

Every cryptocurrency is backed up by a public ledger (i.e., the blockchain), which contains an exhaustive history of every coin that exists and every time that coin has changed hands between users. The ledger is populated by a list of wallet addresses (crypto coins are stored in users’ wallets), which are encoded by a randomly generated string of letters and numbers. Accordingly, users can permanently encode any string of letters into the blockchain by presenting it as a (fake) wallet address. For example, a user can enter a transfer of .000001 BTC to the address “15gHNr4TCKmhHDEG31L2XFNvpnEcnPSQvd.” That “transfer” never goes through because the wallet address is not valid (wallet addresses are randomly generated when a user acquires a wallet, so the odds of this string correlating to a real user’s wallet are infinitesimally low), but the ledger encodes this address as a hex code (334E656C736F6E2D4D616E64656C612E6A70673F). In this example, the hex code is translated to Unicode, and reads as “3Nelson-Mandela.jpg”.  Now you have successfully encoded a picture of Nelson Mandela into every bitcoin user’s ledger for the entire future of the bitcoin community.

In the same way, two users can encode the terms of a contract directly into the blockchain where payment is only transferred upon fulfillment of those terms. Alternatively, under what some have dubbed a “smart legal contract,” the legal terms are outlined in a real-world contract, and only the enforcement mechanism is coded into the blockchain. Again, by using the blockchain, there is no need for a third party to enforce the contract.

In addition, the blockchain has numerous other advantages. First, certain parties may derive value from the fact that the blockchain allows contracting parties to remain largely anonymous—they are only identified by their wallet addresses.  Second, blockchain technology could allow users to enter into contracts with a machine. For example, the blockchain could permit a self-driving car to receive payments from passengers or pay for its own fuel. Third, the blockchain may facilitate the creation of unique organizational structures; entities like OpenBazaar already run on the blockchain. OpenBazaar is similar to Ebay, but because it runs on the blockchain, there is no corporation at the center that processes transactions. Instead, sellers transact directly with buyers. Last, the prospect of smart contracts is so alluring that programmers have designed cryptocurrencies with the express goal of facilitating commercial agreements using blockchain technology. Ethereum is the most well-known of these, and although it is only 2 years old, it has quickly garnered popular support with a market cap second only to that of bitcoin. The Canadian government even announced on January 20 that its National Research Council will begin publishing funding and grant information on the Ethereum blockchain. One of the tenets of democracy is transparency for its citizens, and democratic institutions are starting to take note of how blockchain technology can promote that goal.

Along with Cardano and NEO (5^th and 8^th largest market caps, respectively), the newest and most popular cryptocurrencies are those that focus on the prospect of smart contracts and are designed to facilitate their use. It is clear from market behavior that investors find value in crypto, not necessarily as a store of value, but as an advanced medium of exchange that represents an improvement on services like Paypal or Venmo.

Conclusion

It is hard to argue that the recent trends in crypto are not a bubble, but it is equally difficult to argue that crypto does not have value. Blockchain technology allows a cryptocurrency’s user base to assess, approve, and enforce transactions. By relying on the community, crypto eliminates the need for middle-men, and creates the potential for smart contracts, which replace law with code. As such, crypto creates value by reducing fraud and eliminating the costs of intermediaries.

One positive result of the recent “bubble” is that it increased financial backing for innovators and programmers who are interested in improving the original bitcoin technology. A slew of altcoins (cryptos that are not bitcoin) have recently arisen, claiming faster and cheaper transactions, better privacy, and more tailored purposes than traditional currency. Certainly, the bullish prices are not likely to last, but claims that crypto has no value may be overblown.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Trevor Bervik

Mix Star Wars with . . . well, anything, and you have instant recognition for your product. Under the licensing prowess of Disney, who purchased the franchise for just over $4 billion in 2012, the beloved Star Wars characters have graced such diverse products as boxes of macaroni and cheese, fishing equipment, and inflatable Christmas decorations. From these innocuous products, it seems unlikely that Disney would find themselves in the middle of a political controversy, but that’s exactly what has happened in the wake of the new video game Star Wars: Battlefront II, developed by EA DICE and published by video game company Electronic Arts (EA).

In Battlefront II, Electronic Arts—the exclusive producers of Star Wars video games— implemented a “loot-box” system where players could purchase in-game loot-boxes with real-world dollars. Opening these loot-boxes would unlock digital features, such as new characters or weapon upgrades, but the purchaser would not exactly know what feature they would unlock until the purchase was completed and the “box” was opened. Even iconic characters, such as Darth Vader and Boba Fett, were initially unavailable to gamers unless either an exorbitant amount of time was spent playing—about 40 hours per locked character—or by opening a large number of loot-boxes.

Gamers instantly complained about the system, calling the system “pay-to-win” and pushing back against spending additional money to unlock new content, especially after spending a minimum of $60 for the core game. The controversy exploded in the all-time most heavily downvoted post on the popular social-media site Reddit after Electronic Arts attempted to defend their practices.

However, the problems for EA didn’t stop at social media. Regulators in Belgium have begun looking into whether the loot-box system should be considered a form of gambling. Even in the United States, politicians are beginning to take notice. Hawaiian State Representative Chris Lee has described loot-boxes as a type of predatory behavior, even comparing the system to an “online casino” for kids.

Conversely, those in the industry disagree with the belief that loot-boxes are a form of gambling. Recently, Karl Slatoff, the president of game publisher Take-Two Interactive, has come out in defense of loot-boxes, saying the loot-box system is all about content and “[y]ou can’t force the customer to do anything.” Others in the industry compare loot-boxes with buying packs of cards, reasoning that since every loot-box contains “something” each purchase delivers actual content to the player, while true gambling doesn’t come with such guarantees.

But these industry reactions may be missing the point. Content from loot-boxes generally can be separated into three categories: 1) common low-level content; 2) rare mid-level content; and 3) extremely rare high-level content.

The type of content that falls into category 1 is typically uninteresting, like a short voice clip or a marginal upgrade for a character. Category 1 content is freely given from loot-boxes and players may receive duplicates in each successive loot-box.

Category 2 content is slightly more interesting and can include thing like costumes and better upgrades. This content is still given in nearly every loot-box, but usually at only one item in each box (out of the five total items given in each loot-box).

Category 3 content includes things like high-powered characters, elaborate costumes, and other highly sought-after content. This is where the gambling may be implicated. As category 3 content generally provides players with the largest competitive advantage, items in this category are highly coveted. While each loot-box does contain some content, players must purchase a large number of loot-boxes to obtain the specific upgrade that they want. Gamers have even reported spending upwards of $90 on loot-boxes and still failing to unlock certain items.

This arrangement “rewards” players for opening a lucky box. Imagine, as an analogy, a casino that charges poker players an entry fee of $500 dollars. Under the loot-box model, industry leaders would argue against a “gambling” classification for a casino which gives a losing poker player a stuffed-animal “reward” for participating while giving a winning player a gold bar. The losing player still gets “something,” but it defies logic to say that this “something” precludes the poker game from being considered gambling.

The industry naturally wants to keep its income stream strong, and profits from loot-boxes are healthy. But the gambling comparisons are strong, and legislatures may want to consider direct action to avoid these possibly predatory practices.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Emily Dreiling

The Evolution of “Competence”

A lawyer’s “Duty of Competence” has been around for a long time. Model Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Generally, lawyers have understood competence to mean their substantive knowledge of a certain area of law, in addition to their ability to adequately represent a client. The scope of this competence, however, has changed.

In 2012, the American Bar Association edited its Model Rules to emphasize that lawyers have a duty to not only to be competent generally, but also to be “Technology Competent.” Specifically, it amended Model Rule 1.1, Comment 8, “Maintaining Competence,” to read as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

Just this year, Nebraska became the 28^th state to adopt Comment 8; a majority of states now require a duty of Technology Competence. According to legal tech expert Robert Ambrogi, in a recent interview with the legal tech podcast “The Digital Edge,” this duty will likely soon be adopted by all states.

So, what does it mean to be “Technology Competent?”

Lawyers didn’t need this amendment to understand the importance of technology in the legal profession. The fact that you’re here, reading my post on a Tech Law blog, shows you understand the importance of, or at least value the use of, technology in the law.

Yet, when Lawyers Casey Flaherty and Darth Vaughn administered basic technology assessments to hundreds of law school students in 2016, asking them to complete several tasks in MS Word, only about 33% of the students could perform these tasks on their first attempt:

• accept/turn-off track changes;
• cut & paste;
• replace text;
• format font and paragraph;
• fix footers;
• insert hyperlink;
• apply/modify style;
• insert/update cross-references;
• insert page break;
• insert non-breaking space;
• clean document properties; and/or
• create comparison document (i.e., a redline).

It seems reasonable that, to be tech competent, lawyers should know the above skills—and arguably even more. Yet, if I am being completely honest, I do not think that I could complete at least several of these tasks on my own, on the first try, without the aid of Google. Most law students, like myself, can get through school without ever having to do most of the above tasks. This limited exposure leads to a more limited tech competence. If we lack basic competence in MS Word, however, what sorts of roadblocks may we encounter when we enter the legal profession?

Given the increasing adoption of mandatory e-filing, service via email, and eDiscovery, lawyers can no longer get by living in technological ignorance. Furthermore, prevalent professional use of modern technologies—such as case-management software, document-management software, billing software, e-mail, PDF systems with redaction, and the MS Office Suite—emphasizes the need for lawyers to be tech competent, at least when it comes to these programs.

So, if students are lacking this competence, how do they get it?

Here’s a call out to the law schools. Despite the prevalence of tech in the legal profession, few law schools offer any substantive training in its use. This may be due to a fear of tech, or a belief that tech is reserved for the STEM curriculum. Moreover, academic faculty may lack an understanding of tech, and therefore feel uncomfortable teaching it, or may be ignorant to the shifting landscape of the legal profession, causing them to dismiss the importance of tech courses altogether.

Regardless, with the new ethical duty of technology competence, it is vital that law schools begin to teach these basic competencies to their students. Whether in one of the 28 “Comment 8” states or in one of the states that has not yet adopted this change, law schools should not only provide substantive courses on the use of prevalent legal technologies, but require them. And students, in turn, should demand these courses.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

by Galen Posposil

How will Americans receive video programming in the 21^st Century?  Over the Air? Via traditional multi-channel video programming distributors (MVPDs), such as cable and satellite? Or via over-the-top internet services?  What mix of video delivery methods will ensure that every American household has access to competitive sources of video programming? Despite considering dozens of video-related measures, both regulatory and deregulatory, over the last five years, the Commission has yet to articulate a regulatory vision for how the marketplace will deliver competitive and diverse video programming options to all Americans.

Each year, the Commission reports to Congress on the status of video-programming competition.  As it prepares its 19^th annual report, the video marketplace is bursting with innovation and competition.  Depending on where they live, consumers often have the choice of multiple traditional multi-channel video programming distributors, over-the-air television, and internet-delivered programming.  Meanwhile, both traditional networks and new entrants like Netflix and Amazon are spending billions on exclusive programming to attract consumers to the latest new network or online service.  However, the benefits of this “Golden Age” of television may never reach all Americans.  Those with disabilities and those in areas without broadband competition may never experience the benefits of television’s Golden Age.

The explosion of new video production has brought dozens of new shows to television, but “television” itself is also changing.  The technology used to deliver video to a screen now includes apps, streaming-video appliances, and advanced set-top boxes.  In the race to build the best video service, accessibility features like video description and closed captioning are often left behind.  For the deaf and blind, these accessibility features are the difference between participating in the national conversation about that new hit series, and being left behind.  While some online video providers like Netflix and Amazon have voluntarily adopted closed captioning and video description for their exclusive shows, devices have not necessarily kept pace.  With TV apps and streaming-video sticks providing more and more video content, consumers cannot be sure that their content will be available in an accessible format on every device.

Rural consumers may also be left behind as the video-distribution landscape shifts. Both cable television and broadband infrastructure have been deployed mostly in urban areas.   Rural consumers are left with only satellite and over-the-air broadcast video services.  As video choices proliferate online, rural consumers are without access to the new services that have broken the stranglehold of traditional media. In other areas, consumers may have access to only a single broadband provider with speeds capable of streaming video.

As part of its 19^th video competition report, the Commission should consider what data it needs from cable operators and traditional video programming distributors.  As the Commission considers changes to its data gathering tools, it should examine cable video in the larger context of the video programming market.  As video is increasingly delivered online, that task will require assessing broadband deployment as infrastructure for delivering video programming. Video competition and broadband deployment can no longer be assessed independently.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

By Daniel Insulza

Technology transfer is the process by which an organization transfers scientific findings to another with the purpose of further developing that technology and commercializing it. The Patent and Trademark Law Amendment Act of 1980 (also known as the Bayh-Dole Act), which has previously been described as “the most inspired piece of legislation to be enacted in America over the past half-century”, laid the foundation for the growth of technology transfer in the United States.

The topic of technology transfer has barely been mentioned by the Trump administration. Even during his presidential campaign, Trump did not state an official position with regards to technology transfer or even patent reform. Considering his goal of growing GDP by 3% every year, President Trump could look at technological development as one of the areas to exploit. Technology transfer represents a sector that has increased consistently since its establishment, and it is also one that could use some improvements.

Before the enactment of Bayh-Dole, any new technology generated from government-funded research became government property. Unfortunately, the federal government had neither the capabilities nor the manpower to manage these new technologies, and only licensed less than 5% of government patents to industries. In addition, there were minimal incentives for academic institutions to carry out government-funded research.

Once Bayh-Dole was enacted, both the responsibilities and incentives were passed on to research institutions that had the resources to take advantage of these opportunities. An increasing number universities and research centers have technology transfer offices, which are responsible for patenting and licensing technologies developed by researchers.

Universities have been particularly successful in commercializing their intellectual property. In 2014, universities earned $2.2billion in patent licensing revenue alone. In addition, royalties have produced revenues in excess of a billion for several universities. These numbers have steadily increased since Bayh-Dole was enacted because many universities have managed more and more technological and financial resources through their Technology Transfer Offices (TTOs), which also are responsible for contacting partners that range from startups to large companies, to commercialize new technological developments.

As effective as Bayh-Dole has been, there are still improvements to be made in the technology-transfer area. Universities currently have widely different approaches for the implementation of a technology transfer program. These approaches are mainly influenced by the resources available for the university to spend. Also the process is always more challenging for startups, since they are faced with a much more challenging stage moving from a raw technology to a marketable product.

The Department of Commerce, through its National Institute of Standards and Technology (NIST), is the agency responsible for improving technology transfer in the US. The Technology Partnerships Office (TPO), which is a subdivision of NIST has as its mission to “enables technology transfer to promote US competitiveness, both for NIST and as across the Federal government for the Department of Commerce.”

Even though the commercialization of new technologies generates significant amounts of revenue and value in terms of intellectual property, it is not a high priority for governments to establish goals for technology transfer (President Obama for example did not significantly address technology transfer until he signed a presidential memorandum towards the end of 2011). Innovation and technology development policies tend to be unpopular as presidential candidates’ proposals due to the lack of immediate benefits. Unlike other areas—such as infrastructure, housing, and employment—as valuable as technology transfer initiatives are, they will not produce tangible results until several years later.

Under the Obama administration, NIST created an initiative called Lab to Market. This program seeks to optimize the management of federally funded patents and discoveries. Their goal is to revise and update Bayh-Dole in order to increase the economic impact of federally funded research. In 2016, NIST issued an NPRM regarding various provisions of the some of the provisions of the Bayh Dole Act.

So far, President Trump has directly addressed intellectual property, broadly speaking, just once. This was a couple of months back when he issued an executive memorandum instructing US agencies to protect US intellectual-property theft by foreign countries. Trump did this right after he stopped the takeover of a US tech company specialized in making chips by a private-equity firm with ties to China.

With respect to technology transfer, an encouraging sign is Trump’s choice for director of NIST, Walter Copan, who has a background working in this area. Copan highlighted technology transfer as one of his priorities at the time of his nomination. Congress confirmed him on October 5th of this year.

Even though technology transfer is not particularly attractive as an area to support from a political standpoint, the positive impact that it has on the economy by increasing productivity is unquestioned. It will be interesting to see if this administration decides to remain focused on the same technology-transfer goals as the previous one; although, for the time being, it seems the Trump administration will remain relatively quiet on the subject.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.

By Zachary Nichols

Law school has a way of making you look at the world a little differently. You examine and analyze things that you wouldn’t have before. Everyday things that you once may have noticed, and then laughed off, now become nagging questions, and you can’t help but dig a little deeper. I believe the saying goes, “if all you have is a hammer, everything looks like a nail.” Each class in law school gives you a new hammer to use. In this article, I am going to use one of my newly acquired hammers, copyright infringement, to look at something that I would normally use as an escape from law school—a videogame, Destiny 2, to be precise. This type of exercise is something that any law student can do to practice. When I see something from the classroom in the real world, I use it as a practice issue spotter, similar to those found on law school exams.

Destiny 2 came out fairly recently, and in my play through of the campaign, I noticed a few peculiarities. Two of these I discuss in this post. The first has to do with the game’s main villain, Dominus Ghaul. He is referred to in the game simply as “Ghaul” and has a familiar likeness—that of Bane from the movie “The Dark Knight Rises.” Like Bane, Ghaul has a respirator mask that covers his nose and mouth with a strap that goes around the back of his bald head. And the mask makes him speak in a deep and distorted voice.

The second peculiarity that I would like to examine has to do with one of the game’s three main playable classes, the Titan. One of the Titan’s subclasses, the Sentinel subclass, and its special ability is eerily reminiscent of the Marvel character, Captain America. Triggering the Sentinel special ability will cause your character to summon a circular shield. Your character can throw that shield, and it will ricochet around the room and off of enemies for a while. And you can charge toward enemies and bash them with the shield, much like Captain America does.

So, the question that I couldn’t help but ask while playing was, do these similarities constitute copyright infringement? For practice, I decided to argue against copyright infringement, and this post will explore that point of view. There are other doctrines that you would want to address on an exam, but this post will only explore an infringement analysis.

If this were to constitute copyright infringement, it would be the copyright holder’s right to the reproduction of original material that Destiny 2 would be infringing. The test for infringement of a reproduction right consists of two parts. The first prong of the test is “Probative Similarity.” We look at the alleged infringers access to the copyrighted work as well as the two works’ similarity. Remember that only expressions, not ideas, can be copyrighted. The second is “Improper Appropriation.” Here we use the Levels of Extraction test and break down the similarities into two categories, the elements that are copyrightable and the elements that are not. We then see if the copied elements were elements that were originally eligible for copyright protection.

Under Probative Similarity we ask, has the work actually been copied? To make that determination, we first look at access and similarity.

The creators of Destiny 2 likely had plenty of access to the character Bane. The Dark Knight Rises was a very popular movie, and Bane has been a villain in the Batman comics for quite some time. The next piece is assessing the similarity of Ghaul and Bane. This is first a question for an expert, before it is presented to the lay observer, but because I am not an expert, I will only examine it as a lay observer. To me, the two seem similar, given their appearance and voice.

Likewise, when applying the access and similarity analyses to the Sentinel subclass and Captain America, it is likely that the creators of Destiny 2 had plenty of access to Captain America. Captain America has appeared in multiple movies and comics. When looking at the similarities between the two characters, the round shield coupled the various ways it is used to attack enemies, does lend itself to the belief that a lay observer could find that the two characters were similar enough.

After assessing probative similarity, we turn to the Improper Appropriation test. There, we are asking if too much of the original work has been copied and used. So, we really have to see if the creators of Destiny 2 copied the heart and expression of Bane and Captain America. We break down the similarities into elements that are copyrightable and elements that are not. Here, we have a similarity in appearance and voice—the ideas behind Bane, but the expression of Bane is not infringed. The mask and distorted voice are not copyrightable elements. They are aspects of Bane, but not Bane himself. Ghaul is an alien from another world with an entirely different backstory. The Sentinel is just a hero with a shield that ricochets around when thrown. A shield that can be used as a weapon is again just an idea included in Captain America, but is not the expression of him. So, it looks like the elements that are similar are not the copyrightable elements of the original work. The similarities are in the ideas, not the expressions of the characters, and that is why they do not infringe.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.