Review of “I Know What You’re Thinking: Brain Imaging and Mental Privacy”

Reviewed by: Jenna Furman

Since the 1980s, MRI scanners have been used in medicine to help diagnose various conditions, many of which are found in the brain. The use of such scanners has led to advances in understanding the human mind, both its structure and functions. Such advances have led to greater knowledge of neurological diseases and conditions. This subset of the MRI’s imagining technology is typically referred to as “neuroimaging.” However, recently many academics and doctors have questioned whether MRI technology could be used to one day “read the minds” of those studied. The use of MRI technology in this way raises not only legal issues regarding the right to privacy of the participant but also ethical issues, such as whether it would be appropriate to use this advanced technology to detect cognitive awareness of a person in a vegetative state. This book compiles essays from psychiatrists, neuroscientists, ethicists, anthropologists, philosophizers, and lawyers which address the legal and ethical issues, along with the scientific benefits and social concerns, raised by the possible future use of MRI-imaging technology to “read minds” of patients. This book review will outline certain arguments addressed in these various essays which provide insight into these legal and ethical issues regarding the use of neuroimaging to “read minds.”

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Can You Hear Me Now? Spectrum is Shaping the Telecommunication Industry in an Increasingly Connected America

By: James Zino

The way in which Americans communicate has changed rapidly over the past decade, and the cellular phone has been at the forefront of this revolution, reaching levels of market maturation faster than any mainstream technology since the television. What started as a tool to place calls while on the go has evolved into a device with the processing power of a small computer, where millions of people call, text, tweet, video chat, and stream hours of content every day right from the palm of their hands. While there is no doubt that consumer technology has made incredible strides since the first iPhone ushered in a new product market in 2007 with estimated opening day sales of up to 1 million units, what has changed even more is the invisible infrastructure that allows consumers to be wirelessly connected from even the most remote parts of the country.

Although most Americans are familiar with the country’s “Big Four” national cellular providers, (Verizon Wireless, AT&T, Sprint, and T-Mobile), what actually enables these companies to provide wireless internet and cellular service is less well-known. This capability comes from certain bands of the electromagnetic spectrum, which have become an increasingly indispensable commodity for network providers as demand for cellular service surges. Control and licensing of radio spectrum is controlled by the Federal Communications Commission (FCC) and the National Telecommunications and Information Administration (NTIA). While the NTIA handles the use of spectrum for federal government purposes, the FCC administers spectrum regulation and licensing for all other uses, including state, local, and commercial functions.

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I Need a Lawyer: Establishing Statewide New York Communication Access Fund to Secure Legal Accessibility to Deaf and Hard of Hearing Clients Through Video Remote Interpreting Services in Compliance with the Americans with Disabilities Act

By: YooNa Lim

Discrimination by lawyers against individuals who are deaf and hard of hearing is not a rare occurrence. Many lawyers decline to represent deaf and hard of hearing individuals as clients, despite the protection of federal and state laws to prohibit discrimination on the basis of disability.

Hearing impairments cover a significant range – from those who may not even be aware they have difficulty hearing to those who are deaf and use sign language. Statistics suggest that approximately more than 37 million people, or 16 percent of the population of age above 18, of the United States, report having some degree of difficulty hearing. Despite the large population of the deaf and hard of hearing community, many attorneys fail to recognize their legal obligation to accommodate individuals who are deaf or hard of hearing.

Many private attorneys are unfamiliar with their obligations under the ADA or others are unwilling to incur the costs to provide the necessary communication access services. Consequently, it has become difficult for many deaf and hard of hearing individuals to retain attorneys for common legal counseling that are widely provided, such as criminal law proceedings, family law issues, probate, and employment law matters. Even when a deaf or hard of hearing individual successfully meets an attorney, without effective communication, the attorney cannot provide proper representation, unfulfilling their professional responsibilities. Because of the communication barrier, the client may not understand the nature of their legal issue.

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Seeing Red: Christian Louboutin’s Protection of His Trademark Through His Battle with Yves St. Laurent

By: Sachpreet Bains

Introduction: Let’s start with a simple question. How much are you willing to spend on a pair of shoes? Write three zeros on a piece of paper. Now, place a five in front of the three zeros. Next, place a comma after the five. Lastly, place a dollar sign at the very beginning. You have now written down the “small” amount of “$5,000.” It is very hard to justify spending $5,000 on a pair of stylish shoes. In my twenty-six years, the most I have ever spent on a pair of shoes is about $200.00.

The French luxury brand, Christian Louboutin, is most renowned and notorious for the high-end shoes it produces for both genders. The brand caters to the wealthy population throughout the world, as its luxury line of shoes can be sold in retail stores for up to $6,000 a pair.1 Known for its red lacquered sole, Louboutin successfully applied for a trademark in 2008. This trademark dealt strictly with how red paint was used on the sole of the shoe. When Yves St. Laurent (which has now changed its name to Saint Laurent Paris) made high-heeled shoes incorporating red soles in its 2009 collection, Louboutin sued for trademark infringement and unfair competition under the Lanham Act.2 This note focuses primarily on the District Court and Second Circuit Court of Appeals decision and the difficulties of trademarking a single color in today’s legal world, along with the road to Louboutin successfully being able to retain his trademark for the red lacquered soles of his shoes.

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Notice and Manifestation of Assent to Browse-Wrap Agreements in the Age of Evolving Crawlers, Bots, Spiders and Scrapers: How Courts Are Tethered to Their Application of Register and Cairo and Why Congress Should Mandate Use of the Robots Exclusion Standard to Prevent Circumvention of Responsibility

By: Michael Laven

Introduction:  In 2012, when Internet users browsed the World Wide Web looking for the best price on a new Apple product, Thanksgiving flight or car insurance, they inevitably encountered a brave new world of manifestation of assent to a contract: the world of “click-through” and “browse-wrap” agreements. The click-through agreement probably garners the most awareness from the average Internet user, as satisfactory completion usually involves clicking “agree” or “yes” before the one is allowed to continue – a physical action from the user that is mandatory. However, much more commonplace, as at appears on virtually every website, although much less conspicuous, is the browse-wrap agreement. This type of agreement is found on websites of all varieties, including commercial, educational and personal websites, and allows for acceptance of the website’s “terms of use” simply through the conduct of continued use of the website. The user therefore has notice of the terms, may read them if they desire and may discontinue their use of the website if dissatisfied with the terms offered. Bits and pieces of litigation have arisen involving both click-through and browse-wrap agreements, certain issues have been settled, but, with technology evolving so quickly, the current state of the law leaves many uncertainties for web users and designers alike.

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Mass Copyright Infringement Litigation: Of Trolls, Pornography, Settlement and Joinder

By: Christopher Civil

Introduction: Recently, a staggering number of copyright lawsuits have been filed by producers of  pornographic videos against individuals who have allegedly illegally downloaded the videos via
the BitTorrent Protocol. While the law should respect the legitimate protection of a producer’s  copyright interest, there is significant reason to question the legitimacy of these lawsuits. Mass  copyright infringement lawsuits such as these present significant problems relating to IP address sufficiency, personal jurisdiction, and joinder.

This paper presents a comprehensive analysis of mass copyright infringement lawsuits. It first provides an overview of the BitTorrent protocol and the typical proceedings in mass copyright infringement lawsuits. The paper then addresses the myriad of problems that have been identified with such lawsuits. The second half of the paper examines how courts have dealt with mass copyright infringement, and presents results from a comprehensive analysis of jurisdictions and judges that have decided the question of whether joinder is proper in such cases. Amongst other things, this examination reveals that denial of joinder is the prevailing trend. When considered in conjunction with the identified problems associated with such lawsuits, judges that deny joinder thus appear to have solid foundational support.

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United States Tries to Extend Jurisdiction over the Elusive Bitcoin

By: Justin McHugh 

Mt. Gox, once known as the world’s largest trader of Bitcoins, has unexpectedly shutdown, devastating thousands.[1]  In the aftermath of the Mt. Gox shutdown, thousands of customers who traded on the exchange lost millions.[2]  In the face of losing millions, many Bitcoin traders are now calling for legal action and remedies from the Tokyo-based exchange firm.[3]

Immediately after Mt. Gox shutdown without warning, U.S. traders called for legal action.  One U.S. trader, in what will most likely be the first of many, has filed a lawsuit against Mt. Gox looking to recover some of his losses.[4]  This lawsuit came after Mt. Gox, the world’s largest bitcoin exchange, shutdown amid rumors that hackers had stolen hundreds of millions from the exchange, leading the exchange to declare bankruptcy.[5]  Originally, Mt. Gox had halted all trading activity due to what it claimed were software issues.[6]  It was not until Ryan Selkis, a Bitcoin supporter, discovered a Mt. Gox document that claimed an estimated 744,408 Bitcoins had been stolen.[7]  The document further alleged that the Bitcoins had been stolen by hackers over a two year period.[8]

“In a complaint filed on Thursday [Feb, 27, 2014] in [the] U.S. District Court in Chicago,” trader and plaintiff Gregory Greene said, “Mt. Gox and its chief executive, Mark Karpeles, were negligent and committed fraud for having failed to protect the Tokyo-based exchange from theft.”[9]

The price of bitcoins plunged after Mt. Gox discovered that it had been hacked for hundreds of millions.[10]  Bitcoin prices dropped more than 14% to around $465.[11]   Greene and other investors of the virtual currency were unable to recover their losses after Mt. Gox halted all transactions.[12]  Many investors were completely caught by surprise by the unexpected and immediate halt of trading on the Bitcoin exchange.[13]

Greene, who has now initiated a federal lawsuit against Mt. Gox, was further quoted as stating “Mt. Gox intentionally and knowingly failed to provide its users with the level of security protection for which they paid.”[14]  Greene’s loss, of an estimated $25,000 from the closing of Mt. Gox, pales in comparison to the millions many other investors lost in the blink of an eye.[15]

The lawsuit that Greene has filed in federal court seeks class action status and remedies based on the interests of Mt. Gox investors in the form of monetary damages.[16]  Because of the fact that Mt. Gox is a Tokyo-based Bitcoin exchange, it was not immediately apparent how U.S. courts would gain jurisdiction over the Japanese exchange.[17]

In a statement on February 28, 2014, Mt. Gox Chief Executive Mark Karpeles stated in a Tokyo District Court that “he was very sorry [for] the weakness in [their] system.”[18]  Additionally, Mt. Gox stated that its 750,000 Bitcoin investors were now out of approximately $480 million.[19]  This $480 million accounts for nearly seven percent of the world’s entire Bitcoin market.[20]

Mt. Gox Bitcoin investors may not be entirely without remedy, as Mt. Gox has assets of over $38 million.[21]  However, it is estimated that due to its Bitcoin losses, Mt. Gox now has liabilities of over $64 million.[22]  The $38 million that Mt. Gox has in assets pales in comparison to the estimated $480 million stolen.  Because Mt. Gox has so little in assets compared to the amount it owes investors, a class action lawsuit may not be the most financially sound option to choose.  The legal fees needed to sue Mt. Gox would most likely consume what is left of Mt. Gox’s assets, leaving insufficient funds to reimburse investors.[23]

It remains to be seen what the outcome of Greene’s class action lawsuit will be.  However, Steven Woodrow, a lawyer at the Edelson law firm, who filed Greene’s lawsuit, has been quoted as saying that he “intend[s] to get to the bottom of [Mt. Gox’s loss of millions] in an American court.”[24]  In order to restore confidence to the Bitcoin market, Mt. Gox will need to be held accountable for the misappropriation of its investors’ money.


[1] Jonathan Stempel & Emily Flitter, Mt. Gox sued in United States over bitcoin losses, Reuters (Feb. 28, 2014), http://www.reuters.com/article/2014/02/28/bitcoin-mtgox-lawsuit-idUSL1N0LX1QK20140228.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Rob Wile, Bitcoin Exchange MTGox Disappears, Business Insider, (Feb. 24, 2014, 10:50 PM), http://www.businessinsider.com/reports-mtgox-halts-all-trading-2014-2.

[7] Id.

[8] Id.

[9] Stempel & Flitter, supra note 1.

[10] Id.

[11] Wile, supra note 6.

[12] Stempel & Flitter, supra note 1.

[13] Id.

[14] Id.

[15] See, id.

[16] Stempel & Flitter, supra note 1.

[17] Id.

[18] Stempel & Flitter, supra note 1.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Cameron Keng, Bitcoin’s Mt. Gox Goes Offline, Loses $409M – Recovery Steps and Taking Your Tax Losses, Forbes, (Feb. 25, 2014, 4:46 AM), http://www.forbes.com/sites/cameronkeng/2014/02/25/bitcoins-mt-gox-shuts-down-loses-409200000-dollars-recovery-steps-and-taking-your-tax-losses/.

[24] Stempel & Flitter, supra note 1.

Is Technology Advancing Too Fast for Legislative Comfort?

By: Megan Conravey 

Technology is always evolving to make our lives easier.  We merge complicated tech knowledge to gain access to the world in quicker, easier, and more convenient ways. While advancements in technology create excitement for our everyday lives, they also create setbacks when we try to integrate these new toys into normal tasks. One of the newest tech toys to be released is Google Glass, a piece of discrete technology that promises to transform our view of life and interactions.

What is Google Glass? There is so much buzz about this new invention, but in reality, what effect will it actually have on our lives? In short, Glass is a computerized device that allows users to display access to the Internet right before their own two eyes. [1] Glass is wearable technology that also allows the user to capture and share the world they see straight from their eyewear.[2]  With smartphone integration and natural-language voice commands, Glass aims to transform the way we use technology.[3]

Glass allows a new way of looking at the world.  It is extremely innovative and offers many advantages—especially for those people who do not have the opportunity to experience the world through first-hand adventure.  For example, the Glass website tells the story of a paralyzed woman who can now interact with the world and see it as if through her own eyes.[4]  Many individuals using this technology, however, will attempt to interact with not only the networking world, but also the world around them simultaneously.  To these individuals, Glass offers a new way of ignoring the world around us. With the Internet projected right before our eyes, we can move seamlessly through many everyday activities while immersing ourselves in experiences that are a world away.

While ignorance may be bliss, some activities still require our full attention. Accordingly, several states are in the process of enacting legislation to restrict certain uses of the technology.[5]  One of these enactments involves the use of this technology while driving a car. [6]  West Virginia has moved to amend legislation to include “wearable computer with a head mounted display” within those actions prohibited while driving.[7]  Forty-one states use similar language that would lump the use of Glass and like devices in with the use of text messaging while driving.[8]  West Virginia’s amendment to the law would be consistent with its practice that also bans Mercedes Dual-Front Video Display—concern for distraction for the driver is paramount.[9]

According to the American Bar Association, a San Diego resident was cited for wearing Google Glass when she was pulled over for speeding.[10]  Cecilia Abadie, the woman cited for the violation, claims she fought the charge to set a precedent for those who wish to use Google Glass and similar technologies in this new technology age.[11]  Abadie beat the charge because there was no evidence that she had Glass activated during her drive.[12]

Cecilia’s case—one in which a driver is wearing technology such as Google Glass but claims she is not using it during her drive—presents one of the difficulties in enforcing legislation to restrict our increasingly stealthy technological efforts.  With the newest marketing push, Google Glass has moved to make its merchandise look more like fashionable eyewear.[13]  The ability to make these devices more invisible to the casual observer makes it easier to use them in contravention of any law that may be established restricting their use.

Some proposed solutions include vehicle integration, much like what is currently done with smartphones.[14]  Google, however, is fighting back against the restrictions, arguing that Glass may be relatively safe for the roads.[15]  The argument advanced by Google involves a distinction between distraction and access.[16]  Google argues that Glass is not meant to distract, only to provide a connection to the world at large.[17]  Further, the technology is not widely available yet, so the impact, according to Google, cannot yet be known.[18]  Google has, however, gained some support for its safety efforts in its use by the NYPD, but the future of the product remains unclear.[19]

Legislation is still in its preliminary phases in most jurisdictions, and the trick will be deciding how much decision to leave up to the consumer of this product.  The early worries about the impacts of this technology are not unwarranted, but what do these preliminary legislative attempts say about the faith in American consumers?  Are legislators too early to restrict this technology that may not impede road safety, or is early restriction a safer bet? The use of personal technology is important to our every day lives, but the overriding decision may come down to the impact this particular technology and the restrictions at issue may have on the public and public safety at large.



[1] See Google Glass: What It Does, http://www.google.com/glass/start/what-it-does/ (last visited Mar. 15, 2014).

[2] Id.

[3] Id.

[4] See Google Glass: How it Feels, http://www.google.com/glass/start/how-it-feels/ (last visited Mar. 15, 2014).

[5] Freeman Klopott & William Selway, Google Glass Faces Dirivng Bans as States Move to Bar Use, Bloomberg L. (Feb. 26, 2014, 12:00 AM), http://about.bloomberglaw.com/legal-news/google-glass-faces-driving-bans-as-states-move-to-bar-use/.

[6] Id.

 [7] 2014 West Virginia House Bill No. 3057, West Virginia Eighty-First Legislature – Regular Session, 2014,  available at http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=hb3057+intr.htm&yr=2013&sesstype=RS&i=3057.

[8] Klopott & Selway, supra note 5; 2014 Wyoming Senate File No. 35, Wyoming 2014 Budget Session, available at http://legisweb.state.wy.us/2014/Introduced/SF0035.pdf; 2012 New Jersey Assembly Bill No. 4146, New Jersey Two Hundred Fifteenth Legislature – Second Annual Session, available at http://legiscan.com/NJ/text/A4146/id/861887; 2013 New York Assembly Bill No. 8496, New York Two Hundred Thirty-Seventh Legislative Session, available at http://legiscan.com/NY/text/A08496/id/929877.

[9] Dan Carney, 10 Car Options the Law Won’t Let You Have, Yahoo! Autos, (June 19, 2013, 8:23 PM),  http://autos.yahoo.com/news/10-car-options-the-law-won-t-let-you-have-002345087.html?page=all.

[10] Brian Sullivan, Nowhere to Hide: This Modern Marvel Brings Out the Technophobes–and the Lawyers, 100-JAN A.B.A. J. 75, at 75 (2014).

 [11] Id.

 [12] John Roberts, Google Glass Woman Beats Ticket, but Device may Still be Illegal for Drivers, Gigagom, (Jan. 17 2014, 7:02 AM), http://gigaom.com/2014/01/17/google-glass-woman-beats-ticket-but-device-may-still-be-illegal-for-drivers/.

[13] See Google Glass: How it Looks, http://www.google.com/glass/start/how-it-looks/ (last visited Mar. 15, 2014).

[14] Klopott & Selway, supra note 5.

[15] Id.

[16] Id.

[17] Kevin C. Tofel, Driving with Google Glass: Road Hazard or a Smooth Ride?, Gigagom, (Feb. 25, 2014 7:25 AM), http://gigaom.com/2014/02/25/driving-with-google-glass-road-hazard-or-a-smooth-ride/.

[18] Tiffany Kalser, Google Lobbies to Kille Legislation Banning Google Glass While Driving, Dailytech, (Feb. 25, 2014, 12:37 PM), http://www.dailytech.com/Google+Lobbies+to+Kill+Legislation+Banning+Google+Glass+While+Driving/article34405.htm.

[19] Id.

The Rise and Fall of Flappy Bird: Flapping it’s Way into Copyright Infringement?

By: Tanjeev Thandi

Flappy Bird is no longer flapping its wings.  Invented by Dong Nquyen, a Vietnamese developer from DotGears, Flappy Bird rose to the top of charts and became the most downloaded app of the year…and then disappeared.

The actual concept behind Flappy Bird is quite simple.  Players control a tiny bird through a maze of metal pipes by tapping on the screen, and that is pretty much all there is to it. In fact, the game only took Nguyen three days to develop.[1]  With such a simple concept, it’s baffling that this app became such a success.  The game was downloaded more than 50 million times since it launched in May of 2013.[2]  Flappy Bird reportedly brought Nquyen around $50,000 a day in advertising revenues.[3]

Despite its success, Nquyen abruptly took this app down as it was appearing to be on the rise and attributed his reasoning to the game’s addictiveness.[4]  Nguyen took the game down as it was gaining attention and popularity, much to the nation’s surprise.[5]  It appears that the popularity of the game was the very reason that he even took the game down since it “ruins his simple life”.[6]  It had became “the world’s most popular free app, from both the Google Play store and Apple’s App store”.[7]

Nguyen claimed on Twitter that he did not take down the game because of legal reasons, however, one of the real questions is whether or not this game was taken down due to copyright issues.[8]  Two individuals close to Nquyen reported that Nguyen received a warning letter from Nintendo that the pipes and other art depicted were lifted from Nintendo’s Super Mario games without any modification.[9]  Nintendo recently denied allegations that they were pursuing legal action against the app.  Nintendo’s spokesman Yasuhiro Minagawa told the Wall Street Journal “While we usually do not comment on the rumors and speculations, we have already denied the speculation”.[10]

Although Nintendo claims to not be taking action, the resemblance between Flappy Bird and Nintendo’s Super Mario Bros. art is uncanny.  It is possible that taking down the game was strategic for Nguyen, because it was taken down before big companies had much incentive to come after him as they would if  “his profits become significant enough for big developers (like Nintendo) with big legal departments to be motivated to come looking for a cut”.[11]  There is also speculation that taking down the game so abruptly was a marketing ploy to foster significant attention, downloads and anticipation for a follow-up game.[12]  This possibility seems unlikely judging by Nquyen’s Twitter however, since he claimed that the game was “ruining his simple life”.[13]  Nguyen told Wall Street Journalists that he is waiting to regain normalcy in his life and even refused to be photographed for their article.[14]

Nguyen and subsequent app developers are not the only ones profiting from Flappy Bird’s success. The game has become such a craze that people are now selling their phones with this game downloaded on eBay for thousands of dollars.[15]  Flappy Bird has opened the door for the “small man” to create simple concept apps and have the success of famously branded game consoles by using little to no creativity.

The reality is that the game may be dead, but the idea is not.  What seemed to be a hybrid of famous app Angry Birds and Nintendo’s Super Mario Bros. is sure to spark up lots of imitations in the near future.[16]  The emergence of similar games is sure to continue this cycle of mobile cloning, but since the concepts are so simple, who is to say that a clone is a clone? This begs the question, when will all these creativity-lacking apps be replaced by truly original and creative games? As long as there are little to no repercussions and a lot to gain, the mobile scene appears to continue as a sea of simplistic games with little innovation.

 

 

 


[1] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.), http://online.wsj.com/news/articles/SB10001424052702303874504579376323271110900.

[2] Jennifer Bootan, “Smartphones with ‘Flappy Bird’ Sell For Thousands on eBay, Fox Business (Feb. 13, 2014), http://www.foxbusiness.com/technology/2014/02/13/smartphones-with-flappy-bird-sell-for-thousands-on-ebay/.

[3] Eric Mack, Flappy Bird Creator May Have Been Scared By Legal Threats After All, Forbes (Feb. 10, 2014, 11:08 a.m.), http://www.forbes.com/sites/ericmack/2014/02/10/flappy-bird-creator-may-have-been-scared-by-legal-threats-after-all/.

[4] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.), http://online.wsj.com/news/articles/SB10001424052702303874504579376323271110900.

[5] David Murphy, Flappy Bird-inspired ‘Flappy-Jam’ at 206 Free Games and Counting, PC Magazine (Feb. 15, 2014, 11:47 a.m.), http://www.pcmag.com/article2/0,2817,2453486,00.asp.

[6] Gaetano Prestia, Flappy Bird Creator Says Popularity Ruined His ‘Simple Life’, Removes Game From Sale, MSN ( Oct. 2, 2014,).

[7] Doug Gross, Apple, Google Cracking Down on ‘Flappy Bird’ Clones, CNN (Feb. 17, 2014, 5:17 pm), http://www.cnn.com/2014/02/17/tech/mobile/flappy-apps-banned/.

[8] Dong Nguyen, Twitter, (Feb. 8, 2014), https://twitter.com/dongatory.

[9] Nguyen Phuong Linh, Flappy Bird Creator Says Popular Game Will Fly No More, Reuters (Feb. 9, 2014, 4:05 am), http://www.reuters.com/article/2014/02/09/vietnam-flappybird-idUSL3N0LE05720140209.

[10] Newley Purnell, Nintendo: No Complaints About ‘Flappy Bird’, The Wall Street Journal (Feb. 10, 2014, 8:06 a.m.), http://blogs.wsj.com/digits/2014/02/10/no-complaints-about-flappy-bird-nintendo-says/.

[11] Eric Mack, Flappy Bird Creator May Have Been Scared By Legal Threats After All, Forbes (Feb. 10, 2014, 11:08 a.m.), http://www.forbes.com/sites/ericmack/2014/02/10/flappy-bird-creator-may-have-been-scared-by-legal-threats-after-all/.

[12] Eric Mack, R.I.P. Flappy Bird, Forbes (Feb. 9, 2014, 12:51), http://www.forbes.com/sites/ericmack/2014/02/09/r-i-p-flappy-bird/.

[13] Dong Nguyen, Twitter, (Feb. 8, 2014), https://twitter.com/dongatory.

[14] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.), http://online.wsj.com/news/articles/SB10001424052702303874504579376323271110900.

[15] Jennifer Booton, Smartphones with ‘Flappy Bird’ Sell For Thousands On eBay, Fox Business (Feb. 13, 2014), http://www.foxbusiness.com/technology/2014/02/13/smartphones-with-flappy-bird-sell-for-thousands-on-ebay/.

[16] David Murphy, Flappy Bird-inspired ‘Flappy-Jam’ at 206 Free Games and Counting, PC Magazine (Feb. 15, 2014, 11:47 a.m.),  http://www.pcmag.com/article2/0,2817,2453486,00.asp.

Is the Line Between “Blurred Lines” and “Got to Give It Up” Really That Blurry?

By Laura Fleming

Editor’s Note: This blog was written prior to the settlement of the case being addressed.

When Robin Thicke sang, “I hate these blurred lines” in his latest song, “Blurred Lines,” he probably wasn’t talking about the blurry line between his hit single and Marvin Gaye’s “Got to Give It Up.” Thicke released his song this past summer, while Gaye, now deceased, released his song in 1977.[1] Gaye’s heirs are currently accusing Thicke, along with “Blurred Lines” co-writers Pharrell Williams and “T.I.” Clifford Harris Jr., of copyright infringement in a California court.[2]

The heirs of Gaye included a report by a musicologist in the filing of their lawsuit.[3] The musicologist identified a “constellation of at least eight substantially similar compositional features between the two works.”[4] The report claimed substantial similarity between “[t]he signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines” and the songs “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto.”[5]

Under the Federal Copyright Act, in order to establish a claim for copyright infringement, the plaintiff must show that “he or she owns the copyrighted creation, and that the defendant copied it.”[6] However, if the plaintiff does not have direct evidence of copying, the plaintiff may still prevail by showing that the defendant had access to the song and that the songs are “substantially similar.”[7] In order to prove “access,” the plaintiff must show that the defendant had an opportunity to listen to and copy the plaintiff’s song.[8] After that, “substantial similarity” exists where “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[9]

However, if the plaintiff cannot prove “access,” illustrating that the two works are “strikingly similar” will result in victory.[10] Accordingly, “striking similarity” exists where “the proof of similarity in appearance is ‘so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.’”[11] However, unless the plaintiff can prove actual copying, proof of “independent creation” wholly negates a claim of copyright infringement.[12]

Still, proving copyright infringement in the area of musical composition is very difficult, because “substantial similarity is often an extremely close question of fact.”[13] In a similar case of copyright infringement, the composer of “Come-Up” accused the composer of “Betcha” of copying a repeating 3–note motif, or ostinato, which served as the fundamental rhythmic track to his song.[14] An expert concluded “the pattern [of Betcha] is identical (100%) to that in ‘Come Up.’”[15] However, the court held that there were “significant dissimilarities” between “Come Up” and “Betcha,” and the ostinato only accounted for 33% of the song.[16] Thus, combined, these factors weighed heavily enough against the plaintiff for the court to grant the defendant’s motion for summary judgment.[17]

As for “Blurred Lines,” during an interview with a magazine, Thicke claimed that he told Pharrell that he “wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up.’”[18] While this statement is likely insufficient proof of direct copying, it may satisfy the first prong of the copyright test, requiring access to Gaye’s song. However, as the Watt case showed, “substantial similarity” is going to be the difficult for Gaye’s estate to prove. While many journalists wrote about the similarity between the songs after Thicke released “Blurred Lines,” if Thicke can prove “independent creation” he will not be liable for copyright infringement.[19] This is because, even if the musical arrangement accompanying the “hey, hey, hey” verse is exactly the same as Gaye’s, as in the Watt case, this verse only accounts for less than half of the song, which might be enough for the court to rule for Thicke. Also, like Watt, there is much dissimilarity between Gaye’s song and the remainder of “Blurred Lines,” which will greatly help Thicke’s claim of “independent creation.”

Therefore, as past practice indicates, it is unlikely that Gaye’s estate will succeed on its copyright infringement claim against Thicke.



[1] Marvin Gaye Heirs Sue ‘Blurred Lines’ Artists, Alan Duke, http://www.cnn.com/2013/10/31/showbiz/blurred-lines-lawsuit (last visited Jan. 13, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009).

[7] Benson v. Coca–Cola Co., 795 F.2d 973, 974 (11th Cir.1986).

[8] Jones, 558 F.3d at 491.

[9] Watt v. Butler, 744 F. Supp. 2d 1315, 1322 (N.D. Ga. 2010).

[10]Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir.1999).

[11]Watt, 744 F. Supp. 2d at 1323.

[12] Id. at 1321.

[13] Jones, 558 F.3d at 490.

[14] Watt, 744 F. Supp. 2d at 1318.

[15] Id.

[16] Id. at 1324.

[17] Id. at 1325.

[18] Marvin Gaye, supra note 1.

[19] Id.