By: Robert Baurley

On September 3, 2018, musical artist Machine Gun Kelly released an attack single (commonly called a “diss track” within the music industry) against fellow rapper Eminem (“Marshall Mathers”) on World Star Hip Hop’s YouTube account. The lyrics to Kelly’s song, Rap Devil, included various attacks against Eminem, but most notably included the following lyric: “I think my dad’s gone crazy. Yeah Hallie, you right. Dad’s always mad cooped up in the studio yelling at the mic.” When Kelly released his music video on World Star Hip Hop’s YouTube account, these lyrics included a sample of an audio recording over the lines “I think my dad’s gone crazy”—implying, arguably, that the pre-recorded voice was Eminem’s daughter Hallie Jade Scott Mathers. 

Notably, when Machine Gun Kelly released the attack single for sale on iTunes—through the music label Bad Boy Records (a subsidiary of Interscope Records)—the line “I think my dad’s gone crazy”, that was included in his YouTube release, was partially censored and removed from the master recording of the song. Not only was the line “crazy” completely removed, but the underlying pre-recorded audio was also removed from the recording released to iTunes.^[i]

Basic intellectual property law (“IP”) explains this discrepancy. If Machine Gun Kelly did not own the recording included within his pre-release on YouTube, he cannot include this audio recording within his master track sold to the public; unless he owns a license to use the pre-recording in his own song. Now, we may ask: why can the pre-recorded audio still be published on YouTube, but not iTunes? The answer to this involves both IP law and contract law. 

From a legal standpoint, Machine Gun Kelly faces potentially less liability for a release of the pre-recorded track within the sample of his song on YouTube, because a copyright holder (attempting to assert a claim for copyright infringement) must generally first undergo the internal procedures outlined by YouTube’s user agreement, when trying to pursue a copyright infringement action within the medium of YouTube’s website. However, in the traditional medium of releasing and selling music to the public, there is no internal issue of dealing with a reproduction of copyright-protected material on a self-contained website. Rather, distributing this copyright material to the public for direct sale would be governed solely by IP law (Copyright Act of 1976) and not the contract law implications attached to a service provider like YouTube. 

As such, under the hypothetical situation where Machine Gun Kelly did not have the permission—of the entity who owns and recorded the line “I think my dad’s gone crazy”—to use the recording within Kelly’s YouTube version of Rap Devil, that entity would first need to file an internal claim against World Star Hip Hop for copyright infringement on YouTube’s interface.^[ii] Upon notice of a potential IP violation, the owner of the pre-recorded sound bite (“I think my dad’s gone crazy”) can submit a request to remove the video from YouTube under an internal complaint of copyright infringement.^[iii] Thereafter, the entity may also pursue a claim against World Star Hip Hop within the traditional bounds of IP law—if in fact there was an unauthorized derivative use of the recorded lyrics under the Copyright Act of 1976.^[iv] As mentioned above, if the use was not permitted and the line was still used in the version of the song sold on iTunes, this procedure would not apply and a strict application of 17 U.S.C. § 501-513 would allow an immediate IP action against Kelly’s hypothetical use. 

Nevertheless, Machine Gun Kelly (or executives at Interscope Records) made the preemptive decision to remove the pre-recorded audio from the final version of Rap Devil sold to the public. The label clearly understood that selling a song with a lyric of questionable ownership exposed the artist to more liability—or “heat”—than is typically warranted through the release of a diss track. 

---

^[i] For a full version of Machine Gun Kelly’s YouTube music video, see https://www.youtube.com/watch?v=Fp0BScQSSvg; (0:23 to 0:25) “I think my dad’s gone crazy”. 

^[ii]https://www.youtube.com/howyoutubeworks/policies/copyright/?utm_source=paidsearch&utm_medium=txt&utm_campaign=ytgen&utm_content=usco&gclid=Cj0KCQjw4ImEBhDFARIsAGOTMj8tJK7LoLm-nzcnLwh5Uamu8MamdzDq_Ld5qAZDeOSsRuvWeYEUIH0aAnB2EALw_wcB#enforcing-copyright.

^[iii]https://www.youtube.com/howyoutubeworks/policies/copyright/?utm_source=paidsearch&utm_medium=txt&utm_campaign=ytgen&utm_content=usco&gclid=Cj0KCQjw4ImEBhDFARIsAGOTMj8tJK7LoLm-nzcnLwh5Uamu8MamdzDq_Ld5qAZDeOSsRuvWeYEUIH0aAnB2EALw_wcB#enforcing-copyright.

^[iv] See 17 U.S.C.A. §§ 101-805; 1001-1010; 1101; 1201-1205; 1301-1332; 1401.

By: Alexandra Douglass

On April 12, 2012, a federal district court in Montana invalidated the Federal Government’s approval of the first phase of Rock Creek Mine construction, a major copper and silver mine. The mine was to be constructed beneath the Cabinet Mountains Wilderness in northwest Montana.^[1] The miners proposed digging under the boundary of the federal wilderness area to reach large deposits of copper and silver.^[2] Heleca Mining Company, is attempting to develop two large mines – the Montanore and Rock Creek projects – in the Cabinet Mountains.^[3] The land, which contains high elevation streams that are among the purest water sources in the United States, harbors vital populations of bull trout and grizzly bear.^[4] These trout, depended on the cold waters and protected by the Endangered Species Act, are facing increasing threats due to global warming.^[5] The area is also home to one of the last five grizzly bear population in the United States today.^[6]

A coalition of conservation groups and cultural leaders within the Ksanka band of the Ktunaza Nation have filed various lawsuits challenging the permits.^[7] In 2017 a district court in Montana invalided the permits for The Montanore Mine on the grounds that they violated the Endangered Species Act.^[8] In the current litigation, challenging the permits for the Rock Creek Mine, the federal court also found that the U.S. Fish and Wildlife Service and the U.S. Forest Service violated the Endangered Special Act by not considering the impact of the full mine proposal on federally protected grizzly bear and bull trout.^[9] Heleca Mining Company attempted to break the permitting process into small steps.^[10] They first sough permits for the exploration phase of the project which were granted by the government.^[11] The federal court ruled that the government could not grant permits for an exploratory stage of a project without first considering the impact on environment resources once the full project was underway.^[12]

While gathering minerals under the wilderness area does not alone violate the Wilderness Act, the miners must show that their activities will not disturb surface resources – wilderness and water.^[13] The company was unable to show that the roadbuilding, human activity and the mines potential to dewater Cabinet lakes and streams would not impact both grizzly bear and bull trout populations.^[14]  In 2019, U.S. Forest Service issued a biological opinion relating only to Phase I of the project.^[15] In the recent decision, the federal court said, “Unsurprisingly, removing Phase II from consideration drastically reduced both the scope of the activity and the potential environmental impacts. […] For comparison, Phase II, or mine development, would involve the removal of 10,000 tons of ore per day with a production life of 26 to 30 years. Mine activity would disturb over 400 acres of land, cause drawdown of stream levels, and require the construction of roads.”^[16] “On the other hand, Phase I involves only the excavation of an evaluation adit (mine shaft). Construction of the ad it is anticipated to take two years and the estimated disturbance area encompasses approximately 19.6 acres.”^[17]

The Court ultimately decided that the Defendant’s approval of Phase I without considering the effects of Phase II was arbitrary and capricious. It amounted to a “piecemeal chipping away of habitat for endangered species.”^[18] Several of the plaintiff’s blame the Trump Administration, and the Center for Biological Diversity has sued the administration over environmental actions over 250 times since 2016.^[19] The Trump Administration repeatedly and purposefully ignored scientists over the course of This presidency and now they are dealing with the legal consequences.

^[1] Federal Court Halts Proposed Rock Creek Mine In Montana’s Cabinet Mountains, EarthJustice (Apr. 15, 2021), https://earthjustice.org/news/press/2021/federal-court-halts-proposed-rock-creek-mine-in-montanas-cabinet-mountains.

^[2] Rob Chaney, Legal Strategy Damaged Hecla Permit Bid, KVIP (Apr.16, 2021), https://www.kpvi.com/news/regional_news/legal-strategy-damaged-hecla-permit-bid/article_179ef830-13d8-5f50-865a-1741373d3372.html.

^[3] EarthJustice, supra note 1.

^[4] Id.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] EarthJustice, supra note 1.

^[9] Associated Press, Federal Court Halts Proposed Rock Creek Mine, Clark Ford Valley Press & Mineral Independent (Apr. 21, 2021), https://vp-mi.com/news/2021/apr/21/federal-court-halts-proposed-rock-creek-mine/.

^[10] Chaney, supra note 2.

^[11] Id. 

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Chaney, supra note 2.

^[16] Ksanka Kupaqa Xa’Lcin, et al. v. United States Fish and Wildlife Service et al., CV 19-20-M-DWM (D. Mont. Apr. 14, 2021).

^[17] Id.

^[18] Id.

^[19] Id.

By: Jared Calderon

Whether or not you are a vehicle owner, it is likely that in the last year, you have received an automated scam call that went something like this; “Hello this is ___ we’re calling to alert you that your car warranty is expiring/has been extended”. After this initial pre-recorded message, the call will almost always include a promotion to renew or cancel the renewal of that warranty. After the pitch, you will be asked to provide personal information such as your social security number, credit card and banking information and driver’s license number.^[1] Generally speaking, this type of information should never be conveyed over the phone unless you are able to verify that you are in fact dealing with a legitimate company with whom you have previously established a business relationship.^[2] The simple truth is that these calls have nothing to do with your car warranty, and everything to do with trying to get you to willingly release your sensitive personal information.

It follows, not only are these calls annoying, they are also dangerous. According to the Federal Communications Commission (hereinafter FCC), this scam isn’t new, however it has quickly become the preferred method of cheating unknowing victims out of their hard-earned money.^[3] The FCC has further indicated that warranty “robocalls” represented the highest call complaint filed by consumers in 2020.^[4] Specifically, between June and December of last year alone, Americans filed just short of 200,000 “Do Not Call” complaints, a number which the Federal Trade Commission (hereinafter FTC) says, represents only a small fraction of calls actually received.^[5]

You might be asking, are these calls illegal? The short answer is yes. The FTC banned almost all pre-recorded automated telemarketing calls in 2009, with the exception of political calls, charitable solicitations and debt collections.^[6] It goes without saying that these robocalls do not fall into any of these categories. More troubling, is the fact that these scams are nearly impossible to trace and are being operated both domestically, as well as overseas.^[7] Essentially, the calling operation (scammer) will purchase information or “leads”, in this case phone numbers, from third-party data providers (some more legitimate than others) which then allows those calling operations to facilitate their massive scamming campaigns.^[8] Unfortunately, if you have ever: phoned a business that utilizes caller I.D., checked the “sign me up for emails” box while online shopping, registered to vote, applied for credit, or donated to a charitable organization it is likely that you have unknowingly auctioned off your contact information to one of these third-party data providers.^[9]

Being that it is nearly impossible to stop the sale of your information from a third-party data provider to a calling operation, the best alternative is to limit the number of calls you receive. Initially, you should feel some assurance in knowing that major U.S. carriers offer at least some level of protection.^[10] Additionally, the Traced Act, a bi-partisan piece of legislation signed in 2019, reduces the statute of limitations previously imposed on government agencies and law enforcement officials, in their efforts to punish companies and individuals that break telephone consumer-protections laws.^[11] Beyond the measures already implemented by the government and major carriers, there are several steps you can take to  limit the amount of scam calls you receive. AT&T, Verizon, Sprint and T-Mobile each offer both free and premium services that block spam calls and provide users with a “nuisance” warning, sign up for these.^[12] Further, consumers can purchase third-party apps for both Android and iOS operating systems that offer a wide range of call blocking features.^[13] Hiya, Nomorobo, and RoboKiller are a few examples of subscription based services that protect users by constantly updating a database of numbers used by calling operations, numbers which are then blocked when they inevitably dial your phone.^[14] Although third-party apps are available for purchase, the FCC has provided several steps the cost-conscious consumer can take instead of purchasing additional apps.^[15] Don’t answer calls from numbers you don’t recognize, never hit a button or answer “yes”, avoid providing personal information, ask your phone company about additional tools you can implement to stop these calls, and register your number on the “Do Not Call List”.^[16]

Although it is unlikely that car warranty scam calls will cease to exist in the near future, there are several steps that you and your loved ones can take in an effort to keep your information private. Scam calls are not only annoying, they are also dangerous. While blocking scam calls from your phone is certainly worthwhile, spreading awareness of these dangers is of equal importance in the fight to protect our information as we continue to progress through the digital era. 

---

^[1] Watch out for Auto Warranty Scams, FED. COMN. COMM’N, https://www.fcc.gov/consumers/guides/beware-auto-warranty-scams. (last visited Apr. 13, 2021).

^[2] See id.

^[3] Kim Komando, Car warranty scam robocalls: Here’s why you get so many (and how to stop them), USA Today (Apr. 13, 2021), https://www.usatoday.com/story/tech/columnist/komando/2021/04/08/tips-help-stop-flood-deceptive-auto-warranty-robocalls/7098844002/.

^[4] id. 

^[5] Martha White, Who’s Making Those Annoying ‘Your Car Warranty Has Expired’ Calls, and Why Won’t They Stop?, Money (Mar. 11, 2021), https://money.com/car-warranty-calls/.

^[6] See id. 

^[7] id.

^[8] Bethany McLean, How Do Robo Calls Work?, AARP (Apr. 1, 2021), https://www.aarp.org/money/scams-fraud/info-2020/how-do-robocalls-work.html.

^[9] id. 

^[10] Jason Cipriani, How to stop robocalls: Every way we know to block the annoying scam phone calls, Cnet (Mar. 14, 2021), https://www.cnet.com/how-to/block-robocalls-and-annoying-scam-phone-calls-every-we-we-know/. 

^[11] Eli Blumenthal, Trump signs Traced Act into law in bid to help put an end to robocalls, Cnet (Dec. 31 2019), https://www.cnet.com/news/trump-signs-traced-act-into-law-in-bid-to-help-put-an-end-to-robocalls/. 

^[12] Supra, note 10.

^[13] id. 

^[14] Chris Welch, How to stop annoying robocalls on your iPhone or Android Phone, The Verge (Sep. 10, 2020), https://www.theverge.com/21327304/spam-calls-how-to-stop-block-robocalls-robots-scam-iphone-android. 

^[15] Stop Unwanted Robocalls and Texts, FED. COMN. COMM’N, https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts. (last visited Apr. 13, 2021).

^[16] id. 

By: Dominick DeRosa

On March 31^st, 2021, New York became the 16^th state to make the recreational use of Cannabis (“marijuana”) legal after Governor Andrew Cuomo signed into law Senate Bill S854A (“the Bill”).^[1] Under this new legislation, it is now legal for individuals in New York who are twenty-one years and older to possess up to three ounces of marijuana on their person, and up to five pounds in their private residence.^[2] Further, the Bill expunges the records of all people who were convicted of marijuana-related offenses that are no longer criminalized.^[3]

Because marijuana’s legality is such a controversial topic, in order to form an accurate opinion, it is important to understand its background in the United States, including its classification by the federal government, New York’s rationale for legalization, and some potential positives and negatives of the substance.

Right now, marijuana is listed as a Schedule I substance under the Drug Enforcement Administration’s (DEA) drug scheduling chart.^[4] By definition, this means that marijuana is federally described as a substance “with no currently accepted medical use and a high potential for abuse.”^[5] Other substances under this classification include heroin, lysergic acid diethylamide (LSD), and peyote.^[6]

Notwithstanding the illegality of marijuana on a federal level, Colorado and Washington became the first two states to legalize its recreational use in 2012.^[7] Now, nine years later, New York has decided to join the bandwagon of states who chose to make marijuana recreationally legal. There are several reasons for the Bill’s enactment, and it is difficult to take a dualistic approach in forming an opinion about its passing.

Governor Cuomo’s rationale for legalization mentions several positive effects that it will have on our State. For example, Cuomo said that with a nine-percent statewide sales tax, a four-percent county and local tax, and another tax per milligram of THC,^[8]annual tax revenues could amount to over $300 million.^[9] After covering the costs of its regulation, tax revenues would go towards different beneficial aspects of society (e.g., schools, drug treatment and prevention programs, as well as health and housing programs designed to help communities that were most affected by marijuana’s illegality).^[10] It is also suggested that legalization will create jobs, increase consumer safety, phase out black markets by taking money away from illegal drug organizations, decrease crime rates, and free up police resources.^[11]

However, these pros are met with a noteworthy number of cons. For example, it is possible that with its legalization, marijuana will bear costs on New York and its taxpayers that outweigh its tax revenues.^[12] Some of these costs would include paying for increased emergency room visits and medical care for the uninsured, and an increase in victims of marijuana-related driving accidents.^[13] Legalization may also increase use by teenagers, which is especially harmful because marijuana’s effects are more adverse on the human brain during stages in which it is still developing.^[14]

Public concern about automobile safety is another legitimate criticism of legalization.^[15] Between 2013 and 2016, the number of fatal accidents in which at least one driver tested positive for THC increased by ninety-two percent in Colorado, and twenty-eight percent in Washington.^[16] Since 2016, marijuana-related traffic deaths have remained higher than the national average in both Colorado and Washington.^[17] Interestingly, the New York Bill provides that “the odor of burnt cannabis shall not provide probable cause to search any area of a vehicle that is not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver’s condition.”^[18] This text may seem like a legal adaptation to ensure citizens maintain their protection against unreasonable searches guaranteed by the Fourth Amendment; however, it isn’t difficult to see why this sort of protection may entice DUI virgins to dabble, or cause routine high-drivers to push their limits even further.  

While states seem to be following a progressive pattern of making marijuana recreationally legal, it is important not only to acknowledge the societal benefits, but the potential detriments as well. As legalization is still a relatively new concept, each recreational state will continue to serve as a subject in the United States’ case study on whether legalization really is a good thing. As for New York, it seems that only time will tell. 

---

^[1] Governor Cuomo Signs Legislation Legalizing Adult-Use Cannabis, New York State (Mar. 31, 2021), https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-legalizing-adult-use-cannabis.

^[2] S.B. S854A, 2021-2022 Leg. Sess. (N.Y. 2021).

^[3] Kait Sanchez, With Legalization of Marijuana, New York Will Expunge Prior Convictions, The Verge (Mar. 31, 2021), https://www.theverge.com/2021/3/31/22360455/new-york-marijuana-legalization-conviction-expungement.

^[4] Drug Scheduling, Drug Enforcement Administration, https://www.dea.gov/drug-scheduling (last visited Apr. 9, 2021).

^[5] Id. 

^[6] Id. 

^[7] Christina Ng, Abby Phillips, & Clayton Sandell, Colorado, Washington Become First States to Legalize Recreational Marijuana, ABC News(Nov. 6, 2012), https://abcnews.go.com/Politics/OTUS/colorado-washington-states-legalize-recreational-marijuana/story?id=17652774.

^[8] THC stands for Tetrahydrocannabinol, the principal psychoactive component of marijuana.

^[9] Marina Villeneuve & Jennifer Peltz, New York Is Latest State to Legalize Recreational Marijuana, US News & World Report (Mar. 31, 2021), https://www.usnews.com/news/us/articles/2021-03-31/new-york-is-latest-state-to-legalize-recreational-marijuana.

^[10] Id. 

^[11] Should Recreational Marijuana Be Legal?, Britannica (Nov. 13, 2018), https://marijuana.procon.org/.

^[12] Id. 

^[13] Id. 

^[14] What Are Marijuana’s Long-Term Effects on the Brain?, National Institute on Drug Abuse (Apr. 8, 2020), https://www.drugabuse.gov/publications/research-reports/marijuana/what-are-marijuanas-long-term-effects-brain.

^[15] Britannica, supra note 11. 

^[16] Ren Brabenec, What is the Scope of Marijuana—Related Traffic Accidents?, Narconon (Apr. 26, 2020), https://www.narconon-warnersprings.org/blog/what-is-the-scope-of-marijuana-related-traffic-accidents.html#:~:text=The%20fraction%20of%20fatal%20accidents,an%20average%20of%2010%20percent.

^[17] Id. 

^[18] S.B. S854A.