Can the DEA Impersonate You on Facebook?

By: John Boyd

The Drug Enforcement Agency (“DEA”) is facing a federal lawsuit brought by a woman claiming the DEA, specifically Agent Sinnigen, impersonated her on Facebook.[1] Sondra Arquiett, claims that, after she was arrested in connection with a drug ring, the DEA searched her phone, seized pictures, and used those pictures to set up a Facebook profile using her real name.[2] She further alleges that the DEA used the profile to contact wanted fugitives and suspected drug dealers.[3] Moreover, she claims that members of her family, including her son and niece, were included in the pictures posted.[4]

The DEA admits several points including that it impersonated Arquiett, contacted a wanted fugitive, and accepted friend requests from others.[5] However, the DEA claims, generally, that Arquiett does not have a legal cause of action, among other things, because she cannot prove that the action was with the “absence of a legitimate governmental interest.”[6]

For better or worse, we, as a society, are becoming accustomed to the new surveillance climate. Some find the federal Utah Data Center, which is alleged to process and store “all forms of communication, including the complete contents of private emails, cell phone calls, and Internet searches, as well as all types of personal data trails,” as just another symbol of diminishing privacy rights.[7] Yet, there is a difference between the nearly unfettered power the executive branch claims to have, of knowing every time you send a Snapchat, and sending Snaps in your name. Here, the DEA claims that because there was a legitimate government interest, it did not violate any privacy rights.[8]

However, it seems that the New York legislature has been updating their “Facebook status.” In March 2007, the New York legislature unanimously approved a memorandum in support of a bill amending the identity theft statute to incorporate Internet impersonation.[9] Thus, not only is it morally wrong to impersonate someone, there is criminal liability as well.

The statute reads:

A person is guilty of criminal impersonation in the second degree when he…[i]mpersonates another by communication by internet website or electronic means with intent to obtain a benefit, injure, or defraud another.[10]

Before the ink dried, this statute was put to use.[11] Raphael Golb was convicted of criminal impersonation under this statute when he impersonated several of his father’s rivals through email.[12] His father is a professor who is a scholar of the Dead Sea Scrolls.[13] Raphael attempted to support his father’s view of the scrolls by sending a number of emails, in the name of other professors, either claiming to admit plagiarizing his father’s work, or promoting his father’s view on the Scrolls.[14] The Court of Appeals upheld most of his convictions, most notably, several stemming from the criminal impersonation statute, showing that this statute has some weight to it.[15]

It is doubtful that a criminal case will be brought against Agent Sinnigen, but it will be interesting to see how this case, and the law, evolves.


[1] Chris Hamby, Government Set Up A Fake Facebook Page In This Woman’s Name, BuzzFeed News (Oct. 6, 2014), http://www.buzzfeed.com/chrishamby/government-says-federal-agents-can-impersonate-woman-online.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] James Bamford, The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say), Wired (Mar. 15, 2012), http://www.wired.com/2012/03/ff_nsadatacenter/all/1.

[8] Hamby, supra note 1.

[9] S. 4053, 2007-2008 Reg. Sess. (N.Y. 2008).

[10] N.Y. Penal §190.25(4) (McKinney 2008).

[11] John Leland, Online Battle Over Sacred Scrolls, Real-World Consequences, The New York Times (Feb. 16, 2013), http://www.nytimes.com/2013/02/17/nyregion/online-battle-over-ancient-scrolls-spawns-real-world-consequences.

[12] Id.

[13] Id.

[14] Id.

[15] People v. Golb, 15 N.E.3d 805 (N.Y. 2014).

Halloween Edition: Catch Me if You Can, Jack the Ripper

By: Stacy Marris

Prince Albert Victor. Walter Sickert. Dr. John Williams. Lewis Carroll. These men have all been accused of being the infamous Jack the Ripper since his reign of terror in the fall of 1888.[1]  Over 500 people have been accused of being the Ripper since he began his killing spree in London’s East End.[2]  One of the Ripper victims, Catherine Eddowes, provides the basis for the most recent and most assertive accusations in the Ripper case.[3]

“Armchair detective” and author Russell Edwards has stated he “definitely, categorically and absolutely” determined the identity of Jack the Ripper: a Polish immigrant, Aaron Kosminski, a main Ripper suspect.[4]  In 2007, Edwards purchased a shawl at an auction, which presumably belonged to Catherine Eddowes.[5]  Edwards had Doctor Jari Louhelainen, a senior lecturer in microbiology at Liverpool John Moores University, test the shawl for DNA evidence.[6]

Louhelainen tested DNA from Catherine Eddowes’ descendant to determine whether the DNA of the bloodstain on the shawl belonged to Eddowes.[7]  It was a match.[8]  Louhelainen then tested DNA from a semen stain, also on the shawl, with the DNA of Kosminski’s descendant.[9]  It was also a match.[10]

Russell Edwards is convinced the mystery has been solved: “Only non-believers that want to perpetuate the myth will doubt. This is it now—we have unmasked him.”[11]  Non-believers are not the only skeptical ones.  In fact, if the Ripper case was a modern criminal case investigated in the United States, it is doubtful the DNA evidence from the shawl would be admissible in court.

When DNA evidence was introduced to court proceedings in the 1980s, the debate was whether or not DNA evidence could be admitted generally.[12]  In 1993, Daubert v. Merrell Dow Pharmaceuticals set the standard: Federal Rules of Evidence Rule 702 would apply, meaning scientific evidence would be admissible if it was “supported by appropriate validation… ‘good grounds,’ based on what is known.”[13]

As DNA evidence has become widely accepted, the question is not whether DNA evidence is admissible generally, but rather whether specific DNA evidence can be admitted.[14]  This question of specific admissibility hinges on “compliance with appropriate standards and controls,” a “laboratory’s protocol” or the “methodological validation process.”[15]

This is where Edwards’ DNA evidence unravels.  There are numerous problems with the methodology used to test the shawl.  British geneticist Alec Jeffreys explains that it is the practice of the industry to have DNA evidence tested multiple times by unbiased third-party laboratories.[16]  Edwards has not allowed such testing.[17]

Further, the shawl is 126-years-old; there is no chain of custody and there is no determining whether the shawl has been washed, which would partly destroy the DNA evidence.[18]  The shawl was also not properly treated as evidence.  Peter Gill, a pioneer of DNA profiling, explains the shawl “has been handled by several people who could have shared” the DNA profile.[19]

Because the DNA evidence was not derived from appropriate standards or controls, and because Louhelainen and Edwards have not abided by proper testing protocol and methodological processes, it is not likely the DNA evidence would be admissible in a modern U.S. criminal trial.  As a whole, Edwards’ DNA evidence presents an interesting, but inconclusive finding.[20]  Thus, the mystery of the world’s first celebrity serial killer, Jack the Ripper, remains unsolved, 126 years later.


[1] Jack the Ripper Suspects, CASEBOOK: JACK THE RIPPER, http://www.casebook.org/suspects/ (last visited Oct. 13, 2014).

[2] Ted Scheinman, Did DNA Evidence Really Identify Jack the Ripper?, SLATE (Sept. 11, 2014), http://www.slate.com/articles/health_and_science/science/2014/09/jack_the_ripper_dna_evidence_was_aaron_kosminski_really_the_serial_killer.html.

[3] Anthony Bond, Jack the Ripper Murder Mystery ‘Solved’: Killer Was a Polish Immigrant, Claims Author, MIRROR (Sept. 7, 2014), http://www.mirror.co.uk/news/uk-news/jack-ripper-murder-mystery-solved-4177665.

[4] Id.

[5] Id.

[6] John Siddle, Liverpool Scientist: How I Solved the Mystery of Jack the Ripper, LIVERPOOL ECHO (Sept. 7, 2014), http://www.liverpoolecho.co.uk/news/liverpool-news/liverpool-scientist-how-solved-mystery-7732111.

[7] Scheinman, supra note 2.

[8] Id.

[9] Id.

[10] Siddle, supra note 6.

[11] Scheinman, supra note 2.

[12] Karen Cormier, Lisa Colandro, Dennis Reeder, Evolution of DNA Evidence for Crime Solving – A Judicial and Legislative History, FORENSIC MAGAZINE (Jun./Jul. 2005), http://www3.appliedbiosystems.com/cms/groups/applied_markets_marketing/documents/generaldocuments/cms_042067.pdf.

[13] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993).

[14] Cormier, supra note 12.

[15] Id.

[16] Scheinman, supra note 2.

[17] Id.

[18] Id.

[19] Kaya Birgess, DNA Row Over ‘Proof’ Aaron Kosminski Was Jack the Ripper, THE AUSTRALIAN (Sept. 8, 2014), http://www.theaustralian.com.au/news/world/dna-row-over-proof-aaron-kosminski-was-jack-the-ripper/story-fnb64oi6-1227051069719.

[20] Scheinman, supra note 2.

Software is Still Patentable. Well, Sort of: Software Patents in a Post-Alice World

By: Anu Kinhal

Introduction

The Supreme Court of the United States made an impactful ruling that put a grey cloud squarely over the realm of software patents in Alice Corp. v. CLS Bank.[1] Although the Court affirmed a solid framework for when software (or more generally, an “abstract idea”) is patent eligible subject matter, the Supreme Court did not provide any practical guidance on how to apply the framework. The procedural posture sheds light on how we arrived to such a point of confusion.

The defendant, Alice Corp., was granted a patent on the method of mitigating “settlement risk,” the risk that “only one party to a financial transaction will pay what it owes.”[2] Plaintiff CLS Bank, in a declaratory judgment proceeding, challenged the validity of Alice’s patent.[3] The trouble starts here when both parties filed cross-motions for summary judgment on “whether the asserted claims are eligible for patent protection….”[4] Broadly speaking, patent claims are the boundaries of protection that an issued patent will receive. The District Court in this case held that the claims were ineligible subject matter for patent protection.[5] On appeal, a divided Federal Circuit panel reversed the District Court’s holding, only to be reversed themselves by a plurality when the case was heard en banc.[6] Finally, the Supreme Court affirmed the holding of the en banc Federal Circuit.[7] If this winding path has your head spinning, I suspect that you are not alone.

So, what did the Supreme Court really hold? The Court held that because Alice’s claims were directed to an abstract idea that did not have an “inventive concept,” those claims were invalid.[8] What this means in simple terms is that because Alice was trying to take a well known economic concept (risk mitigation in a financial transaction) and simply implement that concept on a computer, it did not qualify as eligible subject matter for patent protection consistent with the test set forth in Mayo.[9]

Ramifications for Software Patents

What was the Supreme Court trying to say regarding the eligibility of software generally as patentable subject matter in Alice? The language of the opinion does not categorically make software ineligible subject matter for patent protection. Rather, the opinion creates a more stringent, albeit nebulous, test that must be applied in order to ensure that those seeking a software patent actually produce a novel piece of intellectual property that can allow others to build and improve on.[10]

In fact, the stated rationale for invalidating Alice’s software claims was the notion of preemption. The Supreme Court reasoned that every new invention, at its core, incorporates some abstract idea. The mere fact that a claim addresses an abstract idea is not, by itself, enough to hold a claim invalid. If abstract ideas alone were patentable subject matter, then the door is open for people to claim those ideas as their own and prevent others from using that abstract idea to make something useful for society. In this sense, the general public would be preempted from creating useful things.

Interestingly, the end goal of preventing the preemption of abstract ideas can be a tool to determine whether currently issued software patents can withstand any future validity challenges. We can ask the following question: “Does the software claim(s) in question simply implement a general concept on a computer and thereby preempt someone from using the concept in another manner?” If the answer is yes, then the patent likely will not withstand a validity challenge. Granted, the phrase “in another manner” in my own hypothetical test is ambiguous, but the goal with my test was to illustrate rather than create.

Since the Supreme Court decided Alice, numerous District Courts have invalidated claims relating to software after applying the new standard.[11] This trend is likely to continue, as noted by Professor Mark Lemley, who stated that the “majority of software patents being litigated right now…are invalid under Alice.”[12]

The silver lining here is that there is a greater chance that the Supreme Court will revisit the eligibility of software patents with a clearer test that will put to rest any doubts and will actually aid in the drafting of future software patents.


[1] Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014).

[2] Id.

[3] Id. at 2352.

[4] Id.

[5] CLS Bank Int’l v. Alice Corp. Pty. Ltd., 768 F. Supp. 2d 221, 255 (D.D.C. 2011).

[6] Alice Corp., 134 S. Ct. at 2347.

[7] Id.

[8] Id. at 2360.

[9] See Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012).

[10] See generally Mayo (explaining the two-part test that can allow an abstract idea to become patent eligible subject matter).

[11] Timothy B. Lee, Software Patents are Crumbling, Thanks to the Supreme Court, Vox (Sept. 12, 2014, 3:50 PM), http://www.vox.com/2014/9/12/6138483/software-patents-are-crumbling-thanks-to-the-supreme-court.

[12] Gene Quinn, The Ramifications of Alice: A Conversation with Mark Lemley, IPWatchdog (Sept. 4, 2014, 1:34 PM), http://www.ipwatchdog.com/2014/09/04/the-ramifications-of-alice-a-conversation-with-mark-lemley/id=51023/.

Old School v. New School, Disney v. Deadmau5

By: Rachel Bangser

At first blush, it doesn’t seem like the worlds of Mickey Mouse and electronic dance music (EDM) have a great deal in common.  However, these two seemingly disparate entities have recently come into conflict regarding trademark dilution – and the resulting case shows that this is a pretty small world, after all.

On Sept. 2, 2014, The Walt Disney Company submitted a 171-page filing in opposition to EDM musician deadmau5’s attempt to register his “mouse-head” insignia.[1]  Deadmau5, the performing persona of EDM producer Joel Zimmerman, had previously applied to the U.S. Patent and Trademark Office to register his front-facing logo as early as June 2013.[2]  Despite the fact that the most recent registration attempt on August 18, 2014 included the artist’s name at the bottom of the mouse-head image, Disney maintained their position that the logo was in violation of trademark law.[3]

Disney contends that the deadmau5 mouse-head logo is too similar to the iconic “Mickey Mouse ears” graphic that has been a registered trademark of the corporation for over 100 years.  The corporation believes that this similarity dilutes the impact of Disney’s trademark by blurring the lines between the two parties’ marks.[4]  Trademark dilution by blurring is described as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.”[5]  In this case, the Walt Disney Company believes that allowing deadmau5 to register his mouse-head will “damage their business and mislead consumers.”[6]  Disney fears that the deadmau5 mark will lessen the recognition of the ubiquitous Mickey Mouse ears that have taken pop culture prevalence for several generations.[7]

If this case does result in a trial, several factors will determine whether or not Disney’s trademark will indeed be diluted by the registration of deadmau5’s image.[8]  These factors include the degree of similarity between the marks, the distinctive differences between the marks, the degree of recognition, and any intended or actual association between the two marks.[9]

The law, however, requires that the mark in question be “a mark or trade name […] that impairs the distinctiveness of the famous mark”.[10]  Although Disney has certainly existed longer than deadmau5, the DJ isn’t a small artist – he has been playing for over 10 years, and his trademark is currently registered in 30 countries.[11]  The law states that a famous mark must be “distinctive,” but the deadmau5 mouse-head has facial features that are markedly different from Disney’s solid mouse silhouette.[12]  Deadmau5’s registration attempt in August also includes his artist name underneath the image, which adds further distinction to the trademark.[13]

The audiences for Disney and deadmau5 works are decidedly different, and the prohibition of trademark registration will draw attention to another issue that has gone unnoticed for the past decade.  The copyright protection on some Disney works may expire within the next few years, and its current copyright protection was renewed under controversial circumstances.[14]  Prior to 1998, works that were originally copyrighted in the 1920s – such as Disney’s early animation – would have entered the public domain.[15]  However, President Clinton signed the Copyright Term Extension Act (CTEA) into law in October 1998, and the copyrights for those older works were extended for another 20 years until January 1, 2019.[16]

Detractors of the CTEA believe that prolonging the copyright on certain works prevents the development and expansion within artistic fields.[17]  Only the coming months will tell whether or not the trademark matter is settled or taken to court, but at the end of the day, the battle between the two media icons is likely to be the first of many issues that may arise for Disney in the wake of the pending CETA expiration.



[1] Eriq Gardner, Why Deadmau5’ Trademark Battle With Disney Has Cost Him Dearly, Billboard News (Sept. 12, 2014, 1:00 PM), http://www.billboard.com/articles/news/6251375/why-deadmau5-trademark-battle-with-disney-has-cost-him-dearly.

[2] Ryan Reed, Mouse Trap: Deadmau5 Preparing for Legal Battle With Disney, Rolling Stone (Sept. 3, 2014), http://www.rollingstone.com/music/news/mouse-trap-deadmau5-preparing-for-legal-battle-with-disney-20140903.

[3] Gardner, supra note 1.

[4] Sam Byford, Disney Up for Trademark Fight with Deadmau5, Real Clear Technology (Sept. 3, 2014), http://www.realcleartechnology.com/2014/09/03/disney_up_for_trademark_fight_with_deadmau5_22993.html.

[5] 15 U.S.C. §1125 (2012).

[6] Reed, supra note 2.

[7] Id.

[8] 15 U.S.C. §1125 (2012).

[9] Id.

[10] Id.

[11] Reed, supra note 2.

[12] 15 U.S.C. §1125 (2012).

[13] Gardner, supra note 1.

[14] Timothy B. Lee, 15 Years Ago, Congress Kept Mickey Mouse Out Of the Public Domain. Will They Do It Again?, The Switch (Oct. 25, 2013), http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again/.

[15] Id.

[16] Id.

[17] Id.

Lawsuit Filed Against Apple Amid Invasion Of Privacy Allegations

By: Justin McHugh

Earlier this month on July 11th, China’s Central Television (CCTV) reported on software in Apple iPhones that allows for users’ locations to be tracked.[1]  The state-run CCTV report warned iPhone users that Apple’s location-tracking software could be a potential security threat.[2]

After the report aired raising security issues concerning the location-tracking functions of the iPhone 4 and newer models, Chen Ma filed a lawsuit for invasion of privacy against Apple.[3]  Ma’s complaint alleged that “She was not asked for and thus has not given her consent, approval and permission nor was she even made aware that her detailed daily whereabouts would be tracked, recorded and transmitted to Apple database[s].”[4]  Ma also referenced the CCTV’s July 11th report in her complaint, stating that it was the report that brought the issue of Apple user location tracking to her attention.[5]  Ma’s complaint further states that “[a]ccording to information and belief, iPhone users are not given any meaningful choice enabling them to turn off the location service without substantially compromising [a] significant number of functionalities of iPhones.”[6]

After the CCTV’s report aired, Apple responded by stating that it does not actually track iPhone users’ locations.[7]  Apple further stated that its iPhone’s tracking capabilities are merely there to provide directions or to assist users in finding their current whereabouts.[8]  However, these comments seem to contradict other statements made by Apple where the company stressed that it will not disclose any information that they have collected on iPhone users’ daily whereabouts to any third party members.[9] 

This is not the first time that a lawsuit has been filed against Apple concerning data privacy issues.  In 2011, four iPhone users claimed that Apple had violated its own privacy policy by allowing for third party app developers to have access to users’ personal information and locations.[10]  The iPhone users stated that they were unaware that third party app developers could collect their personal information and alleged that Apple had specifically designed its software to allow for this to happen despite a privacy policy that claimed it would protect users.[11]  Additionally, the iPhone users alleged that their phones were transmitting their locations despite the fact that they had specifically turned that feature off on their phones.[12]  According to Apple, the reason that location information was still being sent was due to a “software bug” that was fixed when a new software update, iOS version 4.3.3, was released.[13]

Although Judge Lucy Koh recognized that there may have been harm done to the iPhone users, she stated that they had failed to show any evidence that they had relied on anything in the company’s policies before they bought their iPhones.[14]  In Judge Koh’s decision, she stated “[t]o survive a standing challenge at summary judgment, plaintiffs must be able to provide some evidence that they saw one or more of Apple’s alleged misrepresentations, that they actually relied on those misrepresentations, and that they were harmed thereby…In a case founded on the premise that Apple’s misrepresentations caused plaintiffs substantial harm, this evidentiary burden is far from unreasonable, yet plaintiffs have failed to meet it.”[15]  The case was more or less dismissed because the iPhone users had failed to read Apple’s privacy policy before buying their phones.

It remains to be seen whether or not Chen Ma’s lawsuit will be dismissed for similar reasons cited in the aforementioned 2011 lawsuit against Apple.  However, Ma is undeterred by this prior ruling and is currently seeking class certification for her lawsuit.[16]  Ma is seeking class certification for the roughly 100 million iPhone users who Ma says Apple has violated their privacy.[17]  Additionally, Ma is seeking an injunction that would prevent Apple from collecting and storing iPhone users’ private information without first giving them notice, and from sending their data to a third party without their prior permission.[18]  Along with the court ordered injunction, Ma is pursuing compensatory and punitive damages for Apple’s alleged invasion of iPhone users’ privacy.[19]



[1] Michael Kan, Apple face privacy suit following Chinese TV report, PCWorld (July 25, 2014, 12:00 AM), http://www.pcworld.com/article/2458320/apple-faces-privacy-suit-following-chinese-tv-report.html.

[2] Id.

[3] Id.

[4] Juan Rodriquez, Apple Illegally Tracks Customer Location, Class Action Says, Law 360 (July 24, 2014, 1:59 PM), http://www.law360.com/articles/560697/apple-illegally-tracks-customer-location-class-action-says.

[5] Id.

[6] Id.

[7] Rodriquez, supra note 4.

[8] Id.

[9] Id.

[10] Brid-Aine Parnell, Apple dodges data privacy sueball: Fanbois didn’t RTFM, says judge, The Register (Nov. 28, 2013), http://www.theregister.co.uk/2013/11/28/apple_data_privacy_lawsuit_thrown_out/.

[11] Id.

[12] Id.

[13] Id.

[14] Parnell, supra note 10.

[15] Id.

[16] Rebekah Kearn, Class Claims Apple iPhones Invade Privacy and Pass Along the Info, Courthouse News Service (July 28, 2014), http://www.courthousenews.com/2014/07/28/69879.htm.

[17] Id.

[18] Id.

[19] Id.

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.

It’s My Body and I’ll Die If I Want To!

            We can say all we want about the newest, fastest, lightest: IPhone, IPad, Tablet, Google Glass etc… but the simplest technology is all too often overlooked and outshined by plastic electronics. Technology and science that are on the cutting edge of medical breakthroughs, space exploration, and entertainment take center stage in our capitalistic sales driven world. It’s ironic that we stand in awe waiting for such new advances and overlook technology that impacts (for better or worse) something that we will all one day face. Death is something that we do not want to think about or deal with until that time comes. Yes, estate planning is an area of the law that many engage in while they are perfectly healthy and viable, but that is centered on money and assets. Technology/medical practices now exist in which a person can elect to die when they so choose. The slippery slope comes into play here, because the technology exists, but so do laws. As of right now the laws governing physician-assisted suicide makes the prospect of choosing when to die a complex endeavor.

Back in the day, people were much more likely to die at home as opposed to a hospital.[1] As medicine and technology have advanced, so too has the life expectancy of people in highly developed countries. For example, in the United States the average life expectancy in 1960, according to the Census Bureau, was 69.77 years.[2] In 2011, the average was 78.64 years.[3] In a 2012 CBS New York article, titled Could The Next Generation Live To Be 150? Experts: Huge Breakthroughs In Science And Technology Could Make It A Reality, Geriatrician Dr. Joyce Fogel said that, “There was a time when people didn’t live to older age because they died from the flu.[4] We’re doing much better. In 1900, when somebody was born, they were expected to live to the age of 50.”[5] Fogel goes on to say that “scientists are making huge advances in the lab,growing new organs from adult human stem cells, creating body parts with 3D printers, and using gene therapy to successfully treat diseases like blindness and leukemia.”[6] With all new technology seemingly centered on extending life, the technology surrounding death seems to be a topic that is avoided. The explanation for this avoidance may originate from two separate stimuli, the first being that people just don’t want to think about death until they are at that point, and the second being that the current state of the law (state, and Supreme Court decisions) seem to deter or prevent individuals from seeking the use of life ending technologies.

According to Katherine A. Chamberlain, Looking for A “Good Death”: The Elderly Terminally Ill’s Right to Die by Physician-Assisted Suicide, 17 Elder LJ 61, 65 [2009], there are three types of assisted death.[7] The first being where a doctor “actively injects the patient with medicine causing death.” The second is where a doctor does not act, thus withholding life-saving/extending care (hydration and/or nutrients).[8] The third method assists with suicide by offering “medical knowledge,” but the doctor refrains from “actively” assisting.[9] Accordingly, Chamberlain points out that the varying methods of assistance matter in terms of the law. For example, in the Supreme Court case Cruzan v. Director, Missouri Department of Health, the Supreme Court held that that the Fourteenth Amendment Due Process Clause also affords competent patients a “constitutionally protected liberty interest in refusing unwanted medical treatment.” In two cases decided on the same day, Washington v. Glucksberg and Vacco v. Quill, the Supreme Court further addresses the issues surrounding assisted suicide. In Glucksberg, the Court held that because the “Due Process Clause does not provide a fundamental liberty interest” in physician-assisted suicide, a Washington statute was not unconstitutional. The Court further held that the statute was “reasonably related”to furthering Washington’s compelling state interests, including protecting life, preventing suicide, preserving the integrity of the medical profession, protecting vulnerable groups (such as children and the elderly), and avoiding the slippery slope to voluntary and involuntary euthanasia.”In Quill, the Court upheld the distinction between refusing life-sustaining treatment and physician-assisted suicide, asserting that “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; (but) no one is permitted to assist a suicide.”

Currently this issue is left primarily to the states to regulate. Just last month an article in the Huffington Post, titled Judge Rules to Allow Physician Assisted Suicide in New Mexico, made reference to the recent development in which “A New Mexico judge has ruled that terminally ill, mentally competent patients have the right to get a doctor to end their lives.[10] The ruling by Judge Nan Nash of the New Mexico Second Judicial District would make New Mexico the fifth state to allow doctors to prescribe fatal prescriptions to terminal patients.”[11]

This is an area of the law that ties in arguments for and against the legalization of physician-assisted suicide based on different theories that stem from the technology behind it, morals, religion, history, tradition, rationality etc… It will be interesting how it all continues to play out.


[1] Sharon R. Kaufman, And a Time to Die How American Hospitals Shape the End of Life, press.uchicago.edu/Misc/Chicago/426858.html (last visited Mar. 18, 2014).

[2] Births, Deaths, Marriages, & Divorces: Life Expectancy,  US Census, http://www.census.gov/compendia/statab/cats/births_deaths_marriages_divorces/life_expectancy.html (last visited Mar. 18. 2014).

[3] Id.

[4] Seen At 11: Could The Next Generation Live To Be 150?, CBS New York, http://newyork.cbslocal.com/2012/02/14/could-the-next-generation-live-to-be-150/ (last visited Mar. 18, 2014).

[5] Id.

[6] Id.

[7] Katherine A. Chamberlain, Looking for A “Good Death”: The Elderly Terminally Ill’s Right to Die by    Physician-Assisted Suicide, 17 Elder LJ 61 [2009]

[8] ElderKatherine A. Chamberlain, Looking for A “Good Death”: The Elderly Terminally Ill’s Right to Die by Physician-Assisted Suicide, 17 Elder LJ 61 [2009]

[9] Katherine A. Chamberlain, Looking for A “Good Death”: The Elderly Terminally Ill’s Right to Die by Physician-Assisted Suicide, 17 Elder LJ 61 [2009]

[10] Steven Siebold, Judge Rules to Allow Physician Assisted Suicide in New Mexico, The Huffington Post, http://www.huffingtonpost.com/steve-siebold/new-mexico-assisted-suicide_b_4594951.html (last visited Mar. 18, 2014).

[11] 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.