The MTTLR Blog

Licensing online quotations - link roundup

2008-06-19T20:37:00.005-04:00

by Nancy Sims, MTTLR Blog editor

In early June, news site the Drudge Retort received DMCA takedown notices from the Associated Press, for several pieces containing 39- to 79-word quotations from AP articles . Although the AP quickly backed off on their DMCA threat, they had previously published a pricing structure (screenshot from June 19, above) for blog quotations of their articles, with costs of $12.50 for as little as 5 words. Bloggers are crying "foul", claiming fair use and "hot news" privileges.

Drudge Retort blogger Rogers Cadenhead on:

Wired's Threat Level blog reports on the takedown notice, and AP's change of stance.
The Media Blogger's Association adds background details (June 18)
New York Times article (June 16) on the AP's licensing structure - an "effort to impose some guidelines on the free-wheeling blogosphere"
The AP announces (June 17) that it is meeting with the Media Blogger's Association to develop guidelines for blog quotation of its content.
Los Angeles Times editorial characterizes the AP as "pulling a Metallica" (June 19)
BoingBoing and Napsterization clarify the role of the Media Blogger's Association (June 19)
TechCrunch blog discovers an AP story that quotes 22 words from a TechCrunch post, and requests $12.50 (June 19)

Update: Cadenhead posts that the AP has settled their dispute with him, blogger guidelines to come on Monday (June 20)

MTTLRblog will update this post as the conversation continues. We welcome your comments and link suggestions.

Pwning your life

2008-06-14T12:38:00.006-04:00

by Nancy Sims, MTTLR Blog editor

"Void your warranty, violate a user agreement, fry a circuit, blow a fuse, poke your eye out..."

So exhorts a t-shirt on sale from Make magazine. They also sell shirts with slogans like "If you can't open it, you don't own it", and "Permission to play". Make is not remotely a unique phenomenon - Instructables, Evil Mad Scientist Laboratories, and a host of other sites provide how-tos and what-ifs for the growing population of hardware modders and hackers. Make's sister publication, Craft, and sites like Etsy, and Craft Mafia, demonstrate that the sensibility isn't limited purely to hardware. It's remix culture applied to real-world, physical objects, and it's a growing phenomenon.

Hacking, remixing, modifying - whatever you call it, messing with technology, even physical objects you own, raises a host of legal issues. First of all, just opening the case of most tech objects voids the warranty. It may also void other user agreements, and as more of the technology in our daily lives requires ongoing relationships with service providers, that can be a real problem. Physical or software hacks may also violate anti-hacking laws in various jurisdictions.

The DMCA's Anti-Circumvention provisions may open tech remixers to civil or criminal liability if they bypass "access control devices" or "technological protection measures" to explore or modify their devices. While there is currently an administrative exception that allows individuals to modify cellphones to ensure compatibility with various service providers, the exception doesn't cover telling other people how to make the same modifications. Similar worries about the "no telling people how to circumvent, either" provisions delayed publication of the book "Hacking the XBox".

And yet, the community of hackers and modders continues to expand. The revolutionary, compelling, or just plain entertaining products that the maker/crafter/modder cultures produce, make it difficult to see how anyone could want to rein them in. A (very) few highlights:

Physically "surfing" digital environments like Google Earth and World of Warcraft on the WiiFit Balance Board.

Link from WiiFit Balance Board Blog
Hacking Google to explore the first photos people take with their new cameras
Adding LEDs to LEGO people

(Image by Oskay)
Gamer Cakes on Flickr - homemade cakes based on popular videogames and toys
Chumby, a wi-fi device intended to be hacked and modified

Chumby Bear, by miss_rogue
For a slightly different definition of "hardware", don't miss Ikea Hacker!
And, unquestionably the most exciting recent hacks, Johnny Lee's low-cost WiiMote hacks to produce a $40 multi-touch digital whiteboard, and a personal 3D video display

To get a sense of the philosophies/worldviews of makers, hackers, crafters, and modders, take a look at:

The Make Owner's Manifesto/Maker's Bill of Rights
Free Software Foundation's "Road to Hardware Free From Restrictions" paper
Five Dangerous Things You Should Let Your Kids Do (video)

Explore the history of hacking:

Homebrew Computer Club (Wikipedia entry)
Tech Model Railroad Club (Wikipedia entry)
The Story of Mel, from the Jargon File (note: detailed information about very early programming methods; may require some programming experience to enjoy)
The MIT Gallery of Hacks (note: MIT has a local-culture definition of "hack" that only partially overlaps with more familiar meanings.)

So, what do you think? What are your favorite hacks and mods? What legal issues do you see?

New formats for the MTTLR Blog

2008-06-09T12:34:00.002-04:00

To all our loyal readers:

As you may have realized, this blog is run by students from the University of Michigan Law School, specifically, the staff of the Michigan Telecommunications and Technology Law Review. We have been focusing our attention on lengthy posts with detailed substantive analysis, and are proud of the content and quality we have produced.

However, maintaining regular in-depth posting throughout the calendar year while still accommodating our members' demanding school schedules has proven a bit challenging. Over this summer, we will be experimenting with some different post formats: short analyses of emerging technologies, link roundups on technology law topics, and a number of other styles. We will also continue with the longer, in-depth posts we have produced in the past. It is our hope that by mixing formats, we will be able to produce more content on a more regular schedule.

Please feel free to comment on this or other posts, as we experiment over the next few months!

Thanks,
-Nancy Sims-
MTTLR Blog Editor

The Debate Fueling the Legislative Gridlock over Telecom Immunity

2008-04-03T12:24:00.009-04:00

by: Manoj Ramia, Associate Editor, MTTLR

Image "Hinata rewiring the patch panel" by Gerard van Schip. Used under a Creative Commons BY-NC-SA 2.0 license.

Articles on “telecom immunity” have peppered newspapers and magazines for some time now. Proposed legislation, supported by the President, would shield telecom companies from any legal liability arising from aid they provided to the government in monitoring the information that passes through the telecom companies’ routers, hubs, and switches. This Blog, back in November, covered the ins and outs of why the telecom companies are liable and ended with the possibility that legislation might include an immunity provision for telecom companies. ¹ Since then, things have managed to both change and stay the same – the Senate passed a surveillance bill that included a telecom immunity provision while the House recently passed a bill barring immunity. ² This post examines the ongoing legislative debate, the ideas motivating the various sides, and whether the gridlock will end in the foreseeable future.

The Case For Telecom Immunity

Telecom companies cooperated with the government’s request to monitor information flowing through the companies’ networks under the impression that the government’s surveillance program was legal. To punish these companies now for doing something they thought to be legal would be unfair. ³ And denying immunity and subjecting telecom companies to lawsuits would discourage them from cooperating with the government’s requests for surveillance in the future, despite the possibility of an urgent need to do so. ⁴

Subjecting telecom companies to trial would also expose “state secrets” – the telecom companies would want to point to the documents they received
from the government arguing for the legality of the surveillance programs in order to escape liability. ⁵However, these documents contain sensitive information gathered by the nation’s intelligence agencies, and the government would seek to prevent them from being made public in the course of a trial,
hampering the telecom companies from defending themselves. Granting retroactive immunity would keep these classified documents out of the public eye while also keeping the telecom companies out of court.

The Case Against Telecom Immunity

The big concern with granting retroactive immunity to telecom companies is not that the telecom companies will get off the hook, but that the government will. If immunity is granted, the telecom companies will never have to show the documents they relied on to allow the government to monitor communications. ⁶ If these documents are never seen, the nature and extent of the warrantless wiretaps will never be known. ⁷As a result, it would be impossible to fully analyze the legality of the surveillance programs and hold anyone legally responsible for potentially breaking the law.

The Real Debate?

Looking at both sides of the debate, it becomes apparent that bubbling under the surface of the telecom immunity debate is bickering over accountability for the warrantless surveillance conducted by the government after 9/11. Support for telecom immunity implies protecting the Executive Branch from scrutiny regarding its efforts to protect the country while opposition implies a desire to further examine the actions of the President and, if need be, hold people accountable for their actions. ⁸ This perspective informs the activity (and inactivity) in the legislative arena so far.

Some Progress on the Legislative Front, But Perhaps Not Much

At the outset of the debate, the President said he would veto any surveillance bill that did not grant immunity to telecom companies.⁹ After some debate, the Senate passed a bill with a telecom immunity provision last month.¹⁰ The House has had a more difficult time reaching an agreement on a bill acceptable to all. After much debate, the House went into an unprecedented secret session – the first since 1983 and only this fifth in Congressional history – and came out of it with a bill that does not contain a telecom immunity provision but does attempt to find a middle ground between the two sides of the debate.¹¹ Since proponents want a telecom immunity provision to prevent classified information from being introduced in court, the House bill allows the judge to review the classified information in secret to determine if the telecom company in the suit is liable.¹² The next step is for the House and Senate to iron out their differences and, though the House attempted to find a middle ground between simply a yes or no on telecom immunity, there is still much distance to cover between House and Senate versions of the bill. Given the volatility of the debate so far, it is likely to continue for some time.

¹ Joseph Eros, An Overview of Telecommunications’ Companies Involvement in Domestic Espionage: Part II, The MTTLR Blog, Nov. 13, 2007.
² Editorial, Wiretap Showdown , Wall St. J., Feb. 12, 2008.
³ NYT (Rhetoric) Eric Lichtblau, Rhetoric: High; Anxiety: Low, N.Y. Times, Mar. 1, 2008.
⁴ Id.
⁵ Id.
⁶ Glenn Greenwald, Signs of Life from House Democratic Leaders, Salon.com, Mar. 12, 2008.
⁷ Id.
⁸ Id.
⁹ Pamela Hess, House Democrats Reject Telecom Immunity, The Associated Press, Mar. 11, 2008.
¹⁰ Siobahn Gorman, House Democrats Defy White House on Spy Program, Wash. Post., Mar. 11, 2008.
¹¹ Hess, supra note 9.
¹² Id

The ADA and Personality Testing – The 7th and 8th Circuit Split on the Permissibility of the MMPI in Pre-Offer of Employment Screening

2008-03-19T13:11:00.005-04:00

by: Thomas Ritzert, Associate Editor, MTTLR

Image "Soul Searching" by *YourGuide.
Used under a Creative Commons BY-NC-ND 2.0 license.

In 2006, 46 percent of US employers drew from a pool of over 8,000 different psychological and personality tests for use in screening job applicants.¹ In fact, psychological testing in the hiring process has become so prevalent that testing firms now comprise a $400 million industry; a single test, the Myers-Briggs Type Indicator, is administered to over 2.5 million people per year.² Many employers offer jobs in more than one jurisdiction and use these tests as part of an online application process, accessible by any job seeker with an internet connection.³ Internet-based testing is a risky move for employers, because although a broad array of federal and state regulations protect job applicants from certain inquiries, there is uncertainty as to the precise requirements of these regulations, what tests can be used by employers, and who has standing to challenge the testing.⁴

One example of this uncertainty is the current split between the Seventh and Eighth Circuits on the proper application of the Americans with Disabilities Act’s (ADA) prohibition of pre-offer medical examinations⁵ in the context of personality and psychological testing, particularly tests based on the Minnesota Multiphasic Personality Inventory (MMPI). This post focuses on the limitations that the ADA imposes on such testing, and concludes that the Seventh Circuit’s approach to the issue in Karraker v. Rent-a-Center (holding that the MMPI and tests based on questions from the MMPI are medical examinations prohibited in the pre-offer stage of the hiring process) is the correct application of the statute.

The ADA’s Prohibition of Pre-Offer Medical Examinations

The principal purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and to “provide clear, strong, consistent, enforceable standards” addressing such discrimination.⁶ The ADA defines individuals with disabilities as persons who 1) have a “physical or mental impairment that substantially limits one or more” major life activities; 2) “have a record of such impairment”; or 3) are “regarded as having such impairment.”⁷ Title I of the ADA covers employment discrimination, and one protection that Congress has created for individuals with disabilities is the right to be free from pre-offer medical examinations in the hiring process.⁸

Specifically, the Act provides that “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.”⁹ However, an employer may “make preemployment inquiries into the ability of an applicant to perform job related functions”¹⁰ and may also “require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination”¹¹ so long as: 1) “all entering employees are subjected to such an examination regardless of disability”,¹²; 2) the “information obtained regarding the medical condition or history of the applicant”¹³ is kept confidential; and 3) the “examination or inquiry is shown to be job-related and consistent with business necessity.”¹⁴

In short, the rule is that while an employer may ask an applicant certain basic questions to find out how the applicant will be able to perform job related functions, an employer may not subject job applicants to pre-offer medical testing. They may, however, condition the job offer upon satisfactory results from a post-offer examination so long as certain conditions of fairness and confidentiality are met. Although this rule seems straightforward enough, there is disagreement over the meaning of the term “medical examination.”¹⁵

The Eighth Circuit Approach

In 1990, Robin Miller, who had been a police officer for 10 years in Texas, applied for a position as a police officer with the city of Springfield, Missouri.¹⁶ The city required all police recruits to pass two tests before extending an offer of employment – an agility test and the MMPI-2.¹⁷ Between 1990 and 1993, Miller applied for a job with the police department three times but was rejected on the first two occasions for failing the agility test.¹⁸ Miller successfully completed the agility test in her third application but ran into trouble with the MMPI-2.¹⁹ Miller’s test results indicated “above-normal depression” and Springfield declined to extend an offer as a result.²⁰

Miller responded by suing the city for violating the ADA by subjecting her to the MMPI-2 in the application process.²¹ In a very brief decision, the Eighth Circuit severely limited the effect of the ADA’s ban on pre-offer medical examinations. The court cited EEOC guidelines interpreting the ADA’s rule for post-offer medical examinations, specifically the provision that “if certain criteria are used to screen-out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity….”²² Relying on this guideline, the court wrote “we easily conclude that appropriate psychological screening is job-related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned.”²³ Furthermore, the court held that regardless of whether Miller was actually screened out by a test issued in violation of the ADA, she was not in fact disabled, and therefore had no standing to challenge the pre-employment screening under the ADA.²⁴

There is no question that the ADA allows employers to “require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination.”²⁵ However, it also clearly bans such screening before an offer is made.²⁶ The Miller decision passes over the ADA’s ban on pre-offer medical examinations and, at least in the context of police hiring, treats a pre-offer examination as if it were a post-offer test.

One explanation for the Eighth Circuit’s holding is that the court simply saw no practical reason for the distinction between pre-offer and post-offer testing under the ADA since unsatisfactory results in either case will result in a rejection of employment. Indeed, the fact that the court applied only two sentences of analysis to Miller’s claim that use of the MMPI in her application violated the ADA suggests that it was basing its decision more on the obvious conclusion that cities need to screen out mentally unstable police recruits than on the actual timeline and procedure for such screening mandated by the ADA. While from a practical standpoint this may be true, it is not the law passed by Congress. In another case concerning police officer application procedures, the Federal District Court for the Southern District of Florida held that pre-offer examinations were barred by the ADA even in the law enforcement sector.²⁷ Acknowledging the need to have mentally stable law enforcement officials, the court held that “on this issue, however, the statute is clear… the ADA prohibits pre-offer ‘medical examinations.’”²⁸ The court refuted the type of line-blurring between pre-offer and post-offer regulations found in Miller, noting that:

While the pre/post employment medical examination distinction may seem pointless, it actually serves several important functions. First, it allows an applicant to demonstrate that he has the necessary job qualifications without regard to any disability; second, by permitting the examination to take place only after an offer of employment is made, it forces employers to demonstrate that their reason for not hiring an applicant is job related, or a business necessity; third, this scheme requires an employer to make an effort to reasonably accommodate an applicant’s disability.²⁹

This explanation of the reasons for the pre-offer ban illustrate why the court’s approach in Miller is inconsistent with the rules Congress intended to enact in the ADA. Congress did not create separate rules for pre-offer and post-offer screening for no reason or unknowingly, and the pre-offer rules should be enforced.

The Seventh Circuit Approach

Christopher, Steven and Michael Karraker were brothers working for Rent-A-Center (RAC), a chain of stores offering rent-to-own deals on furniture and household appliances.³⁰ Each of the brothers wanted to move up the chain-of-command at the store,³¹ and progress from their positions as floor salesmen to middle management.³² In order to do so, however, they had to take RAC’s “APT Management Trainee-Executive Profile,” an assessment comprised of nine tests covering math, language, interests, and personality.³³ The APT Test also included 502 questions from the MMPI, and the brothers were asked to respond true or false to such prompts as “I see things or animals or people around me that others do not see”; “I commonly hear voices without knowing where they are coming from”; “At times I have fits of laughing and crying that I cannot control”; “My soul sometimes leaves my body”; “At one or more times in my life I felt that someone was making me do things by hypnotizing me”; and “I have a habit of counting things that are not important such as bulbs on electric signs, and so forth.”³⁴ After all three brothers failed to score satisfactorily on the APT Test, they filed a class action lawsuit against RAC on behalf of other employees at 106 RAC stores, claiming that the store’s APT Test constituted a violation of the ADA’s prohibition of pre-offer medical examinations.³⁵

The Seventh Circuit began its analysis by noting that Congress has explicitly limited “the ability of employers to use ‘medical examinations and inquiries’” in three provisions, namely “a prohibition against using pre-employment medical tests; a prohibition against the use of medical tests that lack job-relatedness and business necessity; and a prohibition against the use of tests which screen out (or tend to screen out) people with disabilities.”³⁶ The court then looked to seven EEOC guidelines³⁷ on what counts as a medical examination, holding that whereas the presence of only one of those factors may be enough to make a test prohibited under the ADA,³⁸ the absence of one or more factors will not determinatively demonstrate that the test is not a medical examination.³⁹ Instead, the key inquiry is whether the test in question is “designed to reveal a mental impairment.”⁴⁰

Applying the new test to the facts in Karraker, the court held that regardless of whether RAC actually used the test to weed out individuals with certain disorders, the “use of the MMPI likely had the effect of excluding employees with disorders from promotions.”⁴¹ Since the APT Test incorporated many questions from the MMPI, and the MMPI was designed to reveal mental illness, the APT Test had the effect of hurting the employment prospects individuals with a mental disability.⁴² In other words, the MMPI and other tests that are based on the MMPI are properly considered a medical examination under the ADA, and employers may not use them in the pre-offer stage of the hiring process.⁴³

Conclusion

With a mobile workforce and increasing reliance on online application processes, modern employers are often faced with the prospect of hiring applicants about whom they know very little. The applicant’s previous employers are increasingly unlikely to provide references of any real use, and in fact are likely to produce no reference at all.⁴⁴ In light of this trend it is easy to see why employers are attracted to the prospect of personality testing. Particularly in an increasingly service sector-based economy, employers are loathe to present the public with sales staff who have some traits or conditions incompatible with good customer service.

Fortunately for employers, the ADA’s prohibition of pre-offer medical examinations does not take personality and psychological screening completely off the table. It merely requires that, in addition to some showing of job relatedness and business necessity, such screening come after a job offer is made. The ADA even allows the employer to condition the job offer upon successful completion of the examination. In short, the regulations allow for an appropriate balance of the ADA’s goal of preventing applicants from being screened out from the start based on a medical examination that exposes the applicant’s disability and the employer’s need to hire a suitable workforce.

Decisions like Miller distort this balance by blurring the boundaries of the ADA’s pre-offer and post-offer examination regulations. In holding the MMPI a prohibited pre-offer medical examination under the ADA, the Seventh Circuit approach in Karraker recognizes the proper distinction between pre-offer and post-offer testing. The Karraker test offers a practical method for determining whether a test violates the ADA by focusing on whether the test was designed to reveal mental impairments or whether it has the effect of excluding applicants from hire or promotion based on mental disorders. To avoid potential liability for violating the ADA, employers should keep the Karraker test in mind when choosing pre-offer personality screens and, at a minimum, avoid tests that incorporate sections of the MMPI and other examinations designed to detect mental disorders. Given the uncertainty as to whether other circuits will adopt the broad standing requirements and medical examination test announced in Karraker or follow the rigid standing guidelines and substitution of post-offer rules for pre-offer tests found in Miller, employers hiring in multiple jurisdictions or that feature the personality screen as part of an online application should be particularly careful in choosing which tests to use.

¹ Jennifer Gonzales-Frisbie, Comment, Personality Tests in Jeopardy: An Evaluation of the Seventh Circuit’s Decision in Karraker v. Rent-A-Center and its Impact on the Future Use of Personality Tests in Pre-Employment Screening, 9 U. Pa. J. Lab. & Emp. L. 185, 190 (Fall 2006).
² Larry R. Seegull and Emily J. Caputo, When a Test Turns into a Trial: Things to Keep in Mind about Psychological Testing, 15 Bus. L. Today 13 (January/February 2006).
³ See, e.g., eTest.net, FAQs (last visited Mar. 18, 2008)(explaining that “[testing remote applicants is] the beauty of online testing. You can have a candidate located anywhere in the world with Internet access take the test and the results will come directly to you.”)
⁴ See, e.g., L. Camille Hebert, American with Disabilities Act of 1990, 1 Empl. Privacy Law § 7:16 (2007) (noting the split among circuits as to whether a person must be an individual with a qualifying disability to challenge pre-offer employment screening through medical examinations, and finding that whereas the 6^th Circuit in Bone v. Louisville, 215 F.3d 1325 (2000) held that an individual must be disabled under the ADA to bring a claim against employer testing under 42 U.S.C.A. § 12112(d)(2), the 8^th, 9^th, and 10^th Circuits have rejected this conclusion, and would allow an individual to challenge a pre-offer medical examination under the statute regardless of whether such individual had a qualifying disability).
⁵ 42 U.S.C. § 12112(d).
⁶ 42 U.S.C. § 12101(b).
⁷ 42 U.S.C. § 12102(d)(2).
⁸ 42 U.S.C. § 12112(d).
⁹ 42 U.S.C. § 12112(d)(2)(A).
¹⁰ 42 U.S.C. § 12112(d)(2)(B).
¹¹ 42 U.S.C. § 12112(d)(3). Emphasis not in original.
¹² 42 U.S.C. § 12112(d)(3)(A).
¹³ 42 U.S.C. § 12112(d)(3)(B).
¹⁴ 42 U.S.C. § 12112(d)(3)(C)-(4)(A).
¹⁵ 42 U.S.C. § 12112(d).
¹⁶ Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998). Available publicly at http://cases.justia.com/us-court-of-appeals/F3/146/612/.
¹⁷ Id.
¹⁸ Id.
¹⁹ Id.
²⁰ Id.
²¹ Id.
²² Id. at 615 (citing 29 C.F.R. § 1630.14(b)(3) available publicly at http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=1630&SECTION=14&YEAR=2000&TYPE=TEXT.
²³ Miller, at 615.
²⁴ Id.
²⁵ 42 U.S.C. § 12112(d)(3). Emphasis not in the original.
²⁶ 42 U.S.C. § 12112(d)(2)(A).
²⁷ Barnes v. Cochran, 944 F. Supp 897 (S.D. Fla. 1996).
²⁸ Id.
²⁹ Id., at FN 3, (citing Stacy J. Bagley, Enough is Enough! Congress and the Courts React to Employers' Medical Screening and Surveillance Procedures, 99 Dick. L. Rev. 723, 730-31 (1995)).
³⁰ Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005). Available publicly at http://cases.justia.com/us-court-of-appeals/F3/411/831/
³¹ Even though this case concerned promotion, rather than an initial hiring decision, the court analyzed the case under the ADA’s pre-offer regulations because the applicants were seeking new positions within the company. Both parties agreed to this framework. Karraker, at 835.
³² Karraker, at 833.
³³ Id.
³⁴ Id., at 834.
³⁵ Id.
³⁶ Id.
³⁷ “1) whether the test is administered by a health care professional; 2) whether the test is interpreted by a health care professional; 3) whether the test is designed to reveal an impairment of physical or mental health; 4) whether the test is invasive; 5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; 6) whether the test would normally be administered in a medical setting; and 7) whether medical equipment is used.” Id., at 835.
³⁸ Id.
³⁹ Id., at 836.
⁴⁰ Id., at 835.
⁴¹ Id.
⁴² Id.
⁴³ For an article opposing this design and effect test as too broad, see Scott Kramer, Why is the Company Asking About my Fear of Spiders? A New Look at Evaluating Whether an Employer-Provided Personality Test Constitutes A Medical Examination Under the ADA, 2007 U. Ill. L. Rev. 1279 (2007) available publicly at http://home.law.uiuc.edu/lrev/publications/2000s/2007/2007_4/Kramer.pdf. (arguing that the Karraker test is likely to be too restrictive on employer’s interest in screening out applicants based on tastes, habits and personality and suggesting that the test should be replaced by the author’s Medical Field Test, arguing that only tests used in the medical community are medical examinations under the ADA).
⁴⁴ Susan J. Stabile, The Use of Personality Tests as a Hiring Tool: Is the Benefit Worth the Cost?, 4 U. Pa. J. Lab. & Emp. L. 279, 283 (Winter 2002).

Why Do They Do That Thing They Do?

2008-03-06T22:04:00.014-05:00

From an original image by Rhett Redelings, with permission.

(or How I Learned to Stop Hating the Mouse¹)
by: Dwayne Stresman, Associate Editor, MTTLR

“Don’t hate the player, hate the game”²

At one time, copyright law was to be a little-known discipline that few lawyers practiced, and one the general public knew (or cared) little about. My, how things have changed. These days copyright is “front and center” - hardly a week or two goes by without some aspect of copyright law appearing in the popular news, and most of the time the stories aren’t very heartwarming. You get everything from young women hit with 6-figure damages judgments for infringing file-sharing³ to artists threatening to sue their own fan clubs for allegedly infringing use of images and songs.⁴ All-in-all, it makes for quite a mess, and not surprisingly, commentators have called for change.⁵ But why do many rights-holders engage in what is seen by many as “Draconian” enforcement of copyright law? This post offers a possible explanation, from an economic perspective, which suggests that the actual structure of the copyright system may incentivize rights-holders to use a “take no prisoners” approach to enforcement.

Enforcement in an Eroding Rights Regime

Legal rules (or sets of rules) which grant rights fall into one of two categories. They either erode as a result of past breach or they don’t. Eroding rights are those which are lost if the rights-holder fails to adequately enforce them. For example, some common legal rights which erode in the face of past breaches are contractual rights (course of performance trumping even express terms), or real property rights (adverse possession).⁶ Alternatively, rights which don’t erode might include Civil Rights, or First Amendment rights. You don’t lose the right to speak freely simply because you failed to sue to remedy a past violation of that right. The category your particular right falls into can definitely affect what actions you take to vindicate that right.⁷

When examining an eroding rights regime, it only makes sense to look at scenarios which contain multiple time periods, or “repeat games”.⁸ A right can only erode if there are subsequent time periods in which the right has been devalued. In an eroding regime, a rights-holder acts not only because of the loss which results from the present violation, but because of future losses due to that violation. ⁹ That is, when deciding whether or not to attempt to enforce the current violation, a rational rights-holder takes into account the fact that in the subsequent period (or game) a failure to enforce in this period means that the value of their right in the next period is already diminished.

When deciding whether or not to enforce its right, a rational rights-holder will always weigh its cost of enforcement against its potential loss. In a static (non-eroding) regime this cost of enforcement is typically the cost of litigation for each violation. However, as already mentioned, under an eroding rights regime, a rights-holder must also consider the cost of erosion. As a result, the longer a game lasts (the more periods there are), the more the threat of erosion dominates the decision to enforce.¹⁰ Therefore, eroding regime games which contain multiple periods tend not to be governed by one-period concerns, but by long-term strategies. In such a situation, it is actually rational for a rights-holder to sue (even over a violation which is less costly than enforcement) in the first period, because doing so protects not only their present interest but their future interest as well.

Copyright Law as an Eroding Rights Regime

Is copyright law an eroding rights regime? If so, then this may, at least in part, explain why rights-holders sue to enforce their rights, even over seemingly trivial violations. In particular, I’ll focus here on two possible reasons why copyright law might be considered an eroding rights regime which is particularly likely to incentivize aggressive defense by rights-holders: 1) Much of the determination as to what copying is permissible (fair use) or not permissible (infringement) requires actual litigation, and 2) An actual market for the copyrighted content (the fourth factor in the fair use analysis) is potentially only created upon successful litigation.

At the heart of copyright law lies the notion that protection is granted to rights-holders primarily for the purpose of benefiting the general public.¹¹ Fair use, arising under 17 U.S.C. § 107, is one way the law attempts to secure the public interest. Fair use potentially trumps any violation of a right granted by the copyright laws.¹² However, a fair use analysis is highly factual in nature, and made only at the conclusion of an actual trial, after determination of exactly what the rights-holder possesses, and whether those rights have been unlawfully infringed. Litigation is synonymous with enforcement. The two acts are inseparable; without litigation, the extent of the right-holders actual rights are not defined, and thus not enforced.

In a related vein, sometimes litigation itself creates copyrights for rights-holders. In particular, the fourth fair use factor, the market effect of the allegedly infringing use, can actually be determined by the very lawsuit being brought.¹³ This circularity is perhaps the ultimate erosion regime in that the litigation actually creates a reverse erosion, or “expansion effect”. Not only is litigation required to maintain rights, but litigation can actually bring the legal right into existence. Not only would the right be eroded without enforcement - without enforcement it would never even have been created.

Conclusion

There are many legal rights which may erode over time due to non-enforcement. If real property rights can be forfeited in this way (adverse possession), then it seems possible, perhaps even likely that copyrights, as intellectual property rights, are similar. Further, in repeat game scenarios involving eroding rights, rights-holders actually have an incentive to enforce (litigate) even minor violations because doing so prevents future losses. If, as argued, U.S. copyright law fits this description, then understanding what motivates rights-holders in such a regime is essential, and attempts to change copyright law for the better will only be successful when they effectively deal with the incentives those laws create.

¹ The mouse in question is, of course, Mickey. The Walt Disney Company is especially notorious for its “vigorous” enforcement of its copyrights. Perhaps the most famous case is Video Pipeline Inc. v. Buena Vista Home Entertainment, Inc., 192 F. Supp. 2d 321 (D.N.J. 2002), aff’d, 342 F. 3d 191 (3d Cir. 2003). You can find the opposing party’s creative public relations response by watching his video here: http://www.archive.org/details/willful_infringement_mickey_and_me.
² Ice-T, Don’t Hate the Playa, (Coroner/Atomic Pop 1999). Song lyrics available at http://www.azlyrics.com/lyrics/icet/donthatetheplaya.html (last visited Mar. 6, 2008.).
³ Wikipedia, Jammie Thomas, (last visited Feb. 20, 2008). Thomas was found liable for violating the distribution right with regard to 24 songs and ordered to pay a total of $220,000.
⁴ Joel Horowitz, Prince Sues Fans, psfk, Nov. 9, 2007.
⁵ For what many consider the definitive statement on copyright change and other reforms, See generally Lawrence Lessig, Free Culture, (The Penguin Press, 2004). Full-text available free online at http://www.free-culture.cc/freeculture.pdf.
⁶ Omri Ben-Shahar, The Erosion of Rights By Past Breach, 1 Amer. L. Econ. Rev. 190 (1999).
⁷ Id. at 203-07, 215-19. Prof. Ben-Shahar lays out how, in the most general instance, the legal rule is irrelevant. However, he then goes on to show that making realistic adjustments to the general model will result in non-trivial differences in outcomes depending on the legal regime protecting the right.
⁸ For a quick discussion of game theory generally, including various types of game scenarios, See Wikipedia, Game Theory, (last visited Feb. 20, 2008).
⁹ Ben-Shahar, supra note 6, at 204-09.
¹⁰ Id. at 203-10. In each example, the number of periods corresponds inversely to the amount of harm needed to trigger enforcement. In a two period case, under an eroding rights regime, the trigger value for suit in period one is ½ the enforcement cost. In the three period case it is 1/3 of the enforcement cost. Extending this trend, for example, to 100 periods, or even to an infinite number of periods means that any violation, even a trivial one, triggers enforcement. But, again, Prof. Ben-Shahar reminds that, in the most general case, the number of periods does not favor a either a static or eroding regime. The relevance of static vs. eroding rights only comes into play when the general model is “tweaked”.
¹¹ U.S. Const. Art. I, § 8, Cl. 8.
¹² See 17 U.S.C. § 106 (subjecting § 106 rights to the fair use provisions of § 107, amongst other restrictions). Note, however, the controversy over whether the Digital Millennium Copyright Act (DMCA) provisions are meant to be subject to § 107. That is, whether a “fair use” defense is valid against a DMCA violation.
¹³ See, American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 929 (2d Cir. 1995)(“whether the publishers can demand a fee for permission to make photocopies is the very question that the fair use trial is supposed to answer”); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381, 1407 (6th Cir. 1996)(Ryan, J., dissenting)(“The right to permission fees is precisely what is at issue here. It is circular to argue that a use is unfair, and a fee therefore required, on the basis that the publisher is otherwise deprived of a fee”).

Big Ten Network Reaches a Big Impasse

2008-02-29T16:21:00.002-05:00

by: Colin J. McIntyre, Associate Editor, MTTLR

Introduction

In June of 2006, the Big Ten Conference announced its agreement with the Big Ten Network (“BTN”), in which the network paid for the rights to air a variety of Big Ten events and made a commitment to promote Big Ten sports of all kinds.¹ Since that announcement, Big Ten sports fans have been watching anxiously as BTN has struggled through negotiations for carriage by the largest cable operators - Comcast most specifically. These negotiations will determine whether millions of cable subscribers will be able to watch many Big Ten games and how much they’ll pay. A critical point of contention has been whether the network will be carried as part of the extended basic cable package or whether it will be incorporated into a premium sports tier package.² Prior to the network’s debut on August 31, 2007, it claimed to have reached agreements with over 75 small cable providers, as well as satellite providers DirecTV and AT&T U-verse.³ The number of agreements reached by BTN with cable providers rose to 140 by mid-October, but BTN and Comcast were still unable to reach an agreement.⁴ The parties appear to have made little headway in subsequent negotiations, although both sides continue to proclaim progress.⁵ As Big Ten sports fans have grown frustrated at being unable to watch games previously available on their basic extended cable services, the Big Ten Network and Comcast have done their best to address viewers’ concerns – by pointing fingers.⁶

The Dispute

The core issues have been whether there is enough interest among cable subscribers to justify adding the Big Ten Network to the basic extended package and whether the subscribers would be willing to pay any additional costs. Comcast has characterized the Big Ten Network’s coverage as the games no other networks wanted – the leftovers.⁷ BTN counters that although the Big Ten’s agreements do grant first choice of games to ESPN and ABC,⁸ it is still getting a valuable slice of the pie containing some important games that can hardly be deemed unwanted.⁹ The parties have presented conflicting claims of BTN popularity and viewership.¹⁰

Agreements between program networks and cable operators typically involve a per-subscriber fee paid by the cable operator.¹¹ Comcast claims that the fee proposed by BTN is unreasonably high and would have to be transmitted to the subscriber. This increased cost imposed on subscribers not interested in receiving BTN amounts to a “Big Ten Tax” in the amount of $13.20 annually, according to Comcast.¹² In BTN’s corner, commentators fire back that Comcast would not only force subscribers interested in BTN to pay for digital cable, but also to pay more than $70 annually for the premium sports package.¹³ While some might consider the $13 “Big Ten Tax” less-than-Comcastic, others would consider this $70 “Premium Sports Package Tax” to be downright Comrageous.

Comcast has done well to present itself as a sensitive protector of downtrodden consumers, upholding fairness by refusing to force subscribers to pay for the allegedly unwanted BTN. However, Comcast appears to contend that placing BTN in the Sports Entertainment Packages is the most fair way to make it available, though it would force BTN desirers to pay for five additional, potentially unwanted channels.¹⁴ One commenter suggests that Comcast’s current position makes one wonder about its previous opposition to a la carte programming.¹⁵ Comcast previously submitted comments to the FCC,¹⁶ which generally indicate a basis for opposing a la carte programming requirements similar to that found in the Booz-Alan-Hamilton study.¹⁷ However, with the FCC’s 2006 report questioning the validity of the Booz-Alan-Hamilton study and finding a la carte programming to favor consumers,¹⁸ perhaps we will see Comcast revisiting its position as well.

The Actual Reasons

The big question in the standoff between BTN and Comcast is how they can afford not to reach an agreement. BTN has already stated that it was expecting tens of millions of dollars in revenue from broad viewership,¹⁹ yet it has already had to bite the bullet for football season and is now well into basketball season. BTN President Mark Silverman claims that BTN cannot survive on a premium sports tier,²⁰ but presumably it is also pretty hard up not being carried by the big cable companies at all. Though accusations of misinformation and mischaracterization have flown back and forth throughout the past several months,²¹ BTN makes a couple claims that seem convincing. First, it claims that it is willing to negotiate and looking to make a deal and cites the numerous agreements it has reached with other providers.²² Comcast, on the other hand, seems to have remained firm in its insistence on placing BTN in the sports tier.²³ Silverman then provides reasonable explanation for declining to allow BTN to appear in a sports package. So what are the incentives for each party to participate in this stalemate?

According to Silverman, placement on the sports tier would mean dramatically reduced viewership,²⁴ to the tune of 96% less revenue than anticipated.²⁵ Although BTN has indicated a willingness to be flexible based on the volume of business brought in by Comcast,²⁶ 96% might be larger than the bulk discount BTN had in mind. BTN has also announced its goal of broad distribution, presumably broader than the 4% of Comcast subscribers who currently receive the sports tier.²⁷ Finally, BTN indicates that all regional sports networks with local appeal similar to BTN are carried on basic extended packages, including the 11 RSNs owned by Comcast.²⁸

Comcast’s incentives for sticking by its guns are interesting. Is the six-time runner-up for the title of “Lowest Customer Satisfaction Score” in the cable and satellite industry counting on the goodwill and loyalty of customers to help it weather this storm?²⁹ Or is it true that BTN’s offerings are the day-old casserole of cable programming? Is David Cohen’s reasoning correct when he suggests that the BTN campaign is having little impact on Comcast subscription rates because nobody cares about BTN?³⁰ Commenters have suggested in the past that significant barriers exist to switching from cable to satellite television.³¹ Besides the normal logistical hassle,³² technological limitations may make satellite unavailable, landlord approval of dish installation may be an impediment,³³ and the bundled offering of cable television and broadband services may deter would-be satellite subscribers,³⁴ especially where equivalent broadband service is unavailable³⁵. Cohen’s suggestion seems conclusory, at best. It seems possible that Comcast hopes to enhance its sports tier to collect the larger subscription fees, confident that it can outwait BTN.³⁶ As concerned voices continue to decry the growth of big cable,³⁷ the BTN-Comcast negotiations may be another indication that Comcast’s power may be a little out of hand.³⁸

Conclusion

While the specific details about negotiations remain unclear, a review of the available details allows at least general impressions. As a dedicated Big Ten sports non-fan, I am admittedly not riled that some games are now only available on BTN. However, I find it striking how each side has conducted itself. Comcast’s’ behavior seems equivalent to spreading rumors,³⁹ pouting,⁴⁰ and taking one’s ball and going home.⁴¹ In contrast, the BTN campaign has taken a largely positive or responsive approach.⁴² On the merits of their positions, each party certainly has a financial interest, and it is difficult to totally resolve the issue without more information about the specific negotiations. BTN has appeared more straight-forward in the statements it has made, though, while Comcast officials and the anti-BTN campaign have seemed evasive and sneaky.⁴³ The continued stalemate in negotiations and the circumstances surrounding the negotiations suggest that Comcast may be using its market power to act as a bully.

¹ See General Releases, BigTen.org, The Big Ten Conference Announces Media Agreements Increasing National Coverage of Big Ten Sports, Jun. 21, 2006.

² See Eric Lacy, Big Ten, cable outlets at impasse, Detroit News, Aug. 24, 2007, at 1D (“What’s not negotiable . . . is the [Big Ten N]etworks stance on having the channel on basic cable.”); Richard Sandomir, Not Everyone Wants Channel That’s All Big Ten, All the Time, N.Y. Times, June 18, 2007, at D5 (“the offer to place the network on the sports tier was not an opening gambit or a negotiating ply.”).

³ BigTenNetwork.com, Frequently Asked Questions, http://www.bigtennetwork.com/corporate/FAQ.asp (indicating that reaching an agreement with Comcast “in the near future” was unlikely) (last updated Dec. 7, 2007) (last visited February 6, 2008).

⁴ Bob Fernandez, Comcast Holds the Line on Big Ten, Phila. Inquirer, Oct. 10, 2007, at A01. See also Ed Sherman, Comcast vs. BTN spins out of control, Chi Trib., October 10, 2007, at C4 (“Silverman said there has been ‘no movement’ in BTN's negotiations with Comcast”); Interview by Sam Webb with Mark Silverman, President, BTN, (Oct. 3, 2007) (“…there is only so much we can do when the other party is not really interested [in negotiating]”).

⁵ See, e.g., Michael Zuidema, Big Ten Network Standoff Drags On, Grand Rapids Press, Feb. 22, 2008; Ed Sherman, Big Ten Network, Comcast Continue Battle, Chicago Tribune, Feb. 8, 2008. See also BigTen Network, Cable Having 'Meaningful Talks, WCCO.com, Feb. 26, 2008

⁶ See, e.g., Myth vs. Fact, BigTenNetwork.com (last visited Feb. 6, 2008); PuttingFansFirst.com, (last visited Feb. 6, 2008) (anti-BTN website funded by Comcast, according to Mark Snyder, Good Luck Finding Today’s U-M Game on TV; Fans Are Biggest Victims of BTN-Comcast Feud, Detroit Free Press, Sept. 1, 2007, at Sports page 1). See also Sherman supra note 5.

⁷ See Fernandez, supra note 4; Sherman supra note 5.

⁸ BigTen.CSTV.com, Big Ten Network Frequently Asked Questions, (last visited Feb. 6, 2008)

⁹ See Webb, supra note 5; Myth vs. Fact, supra note 6.

¹⁰ See BigTenNetwork.com supra note 6; Interview by Sam Webb with Patrick Paterno, Director of Communications, Comcast Midwest, (Oct. 3, 2007); Chip Scoggins & Judd Zulgad, U Caught up in Comcast-Big Ten Feud, Star Trib., August 28, 2008 at 8C.

¹¹ See Comments of Comcast Corporation, MB Docket No. 04-207 at 18 (filed July 15, 2004) (“Comcast Comments”).

¹² See Teddy Greenstein, Big Ten, Comcast in “Taxing” Fight, Chi Trib., June 22, 2007, at C2; Scoggins supra note 10.

¹³ See Ed Sherman, Comcast Adding Costs, Not Choices, Chi Trib., Oct. 31, 2007, at C2 (indicating $5.99 per month fee to digital subscribers for sports tier); Fernandez supra note 4. See also BigTenNetworks.com supra note 6 (claiming basic non-digital Comcast subscribers could have to pay up to $280 annually to receive BTN on the sports tier).

¹⁴ Comcast.com, Sports Entertainment Package Features, (last visited Feb 6, 2008) (listing CSTV, Fox Soccer, Fox College, NBA TV and NFL Network as the channels in the package).

¹⁵ Fernandez supra note 4; Webb supra note 10.

¹⁶ See Comcast Comments supra note 11.

¹⁷ Booz Allen Hamilton, The a la Carte Paradox: Higher Consumer Costs and Reduced Programming Diversity: An Economic Analysis of the Implications of a la Carte Pricing on Cable Customers (July 2004) (“Booz-Allen-Hamilton Study”).

¹⁸ Federal Communications Commission, Media Bureau, Further Report On the Packaging and Sale of Video Programming Services To the Public, Feb. 9, 2006.

¹⁹ Fernandez supra note 4.

²⁰ Id.

²¹ See, e.g., Sherman supra note 5 (Silverman claiming Comcast ad was “mischaracterizing the facts”); Richard Sandomir, Tempers Flare Over Network For Big Ten, N.Y. Times, June 23, 2007, at D5 (referring to a letter from Comcast executive vice president, David Cohen calling statements by Big Ten commissioner, Jim Delany “mischaracterizations and overstatements”); Webb supra note 5 (presenting Silverman questioning Comcast’s decision “go in a full scale advertising attack on the network with lies that they know are inaccurate.”)

²² See BigTenNetwork.com supra note 6 (referencing 150 agreements reached as indication of flexibility); Webb supra note 5 (Silverman indicating that BTN is “getting deals done” and is flexible).

²³ See, e.g., Fernandez supra note 4.

²⁴ See id. For several compelling arguments against forcing channels onto themed tiers, see Comcast Comments supra note 11 at 15-33 (arguing that a la cart and themed tier programming significantly reduces viewership and network revenues, which dramatically increases costs to consumers).

²⁵ ($60 M - $2.5 M) / $ 60 M = 96%. Fernandez supra note 4 (indicating expectation of $60M and potential for $2.5M on a sports tier).

²⁶ BTN suggested that due to its size, Comcast would likely pay less than a dollar per subscriber, rather than the $1.10 figure that has been spread around. Id.

²⁷ Id.

²⁸ BigTenNetwork.com supra note 3.

²⁹ American Consumer Satisfaction Index, Scores By Industry: Cable and Satellite TV, (last visited Feb. 6, 2008) (listing consumer satisfaction ratings from 2001-2007 for seven major companies). Looking beyond the cable and satellite industry, of the 156 companies receiving scores in 2007, Comcast received the second lowest, tying with United Airlines and losing out only to Charter Communications. American Consumer Satisfaction Index, Scores by Company , (last visited Feb. 6, 2008)

³⁰ See Fernandez supra note 4 (quoting Cohen saying “"We are seeing, essentially, no impact from that campaign. The market is proving that they are overreaching.").

³¹ See Comments of Citizen Commenters, MM Docket No. 92-264 at 40-43 (filed 08/05/2005)(explaining costs of switching from cable to DBS) (“Comments of Citizen Commenters”).

³² Id. at 41.

³³ Clear exposure to the southern sky is necessary. Id. at 41.

³⁴ See id. at 42-43; Christopher Stern, Comcast Bundles TV, Internet to Keep Customers, Wash. Post, Mar. 26, 2003, at E01.

³⁵ For an example of Comcast reveling in the inferiority of its broadband competition, see http://www.theslowskys.com/home/ (last visited Feb. 6, 2008)

³⁶ This idea has been advanced more than once. See Sherman supra note 13; BigTenNetwork.com supra note 3 (indicating that Comcast could earn up to $280 annually for each non-digital subscriber that signs up for the sports tier).

³⁷ See, e.g., Jay Halfon & Edmund Mierzwinski, U.S. Public Interest Research Group, The Failure of Cable Deregulation, (2003) (“US PIRG Report”); Comments of Citizen Commenters; Letter from Harold Feld and Andrew Jay Schwartzman, Vice President and President, Media Access Project, on behalf of Common Cause et al., to Kevin Martin, Chairman, FCC (Mar. 21, 2007) (supporting implementation of ownership limitations on cable operators) (“Common Cause Letter”); Harold Feld’s Tales of the Sausage Factory, (Jul. 31, 2005, 13:51 EST) (“Fighting Big Cable (and why it matters)”).

³⁸ See, e.g., US PIRG Report; study; Common Cause Letter supra note 37.

³⁹ See Putting Fans First Commercial, (last visited Feb. 6, 2008); PuttingFansFirst.com supra note 6.

⁴⁰ See PuttingFansFirst.com supra note 6.

⁴¹ See Scoggins supra note 10 (reporting Comcast’s withdrawal of sponsorship of a luncheon hosted by the St. Paul Chamber of Commerce and the University of Minnesota, as a result of the university’s Big Ten membership).

⁴² See, e.g., Big Ten Network Commercials, (last visited Feb 6, 2008) (showing BTN commercials lauding the positive impact of BTN and the importance of the Big Ten to the community); BigTenNetwork.com supra note 6 (responding to Comcast’s statements in a myth vs. fact page).

⁴³ Compare Webb supra note 5 (interviewing BTN President, Mark Silverman) and BigTenNetwork.com supra note 6 with Webb supra note 10 (interviewing Comcast Midwest Vice President, Patrick Paterno) and PuttingFansFirst.com supra note 6.