US sports streaming

'From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events?' by Marc Edelman in (2016) 39(4) Columbia Journal of Law and the Arts comments 

On February 27, 2015, San Francisco entrepreneur Ben Rubin announced the launch of his live streaming video application, Meerkat. Named after “the cute but carnivorous mongoose native to Africa,” Meerkat allows users to upload video footage from smartphones to the Internet for worldwide, instantaneous viewing. In the weeks following Meerkat’s launch, Twitter unveiled a similar online application, Periscope, which allows users to watch live videos for up to twenty-four hours after their initial broadcast. Twitter’s more recent entry into the live streaming market has enhanced the credibility of this new technology. Furthermore, it has placed live streaming on the radar of major private equity firms.

Although the American business community generally characterizes live streaming as a favorable technological development, the use of live streaming technologies to broadcast (or rebroadcast) commercial sporting events is more controversial. According to one sports network analyst, the advent of live streaming could potentially result in a “Napster-type thing” involving mass infringement of sports enterprises’ intellectual property rights. Another sports industry expert cautioned that “[t]his kind of technology is going to have huge [negative] implications for broadcasters like NBC, which has already paid billions for the Olympics.”

This Article discusses the potential impact of live streaming on the commercial sports industry and analyzes whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events. Part I of this Article explores the history of live streaming commercial sporting events. Part II analyzes whether courts are likely to hold live streamers directly liable for their actions under federal copyright law. Part III discusses whether courts are likely to hold manufacturers of live streaming applications secondarily liable for copyright infringement. Part IV assesses the legality of live streaming under right of publicity law. Part V then analyzes the legality of live streaming under unfair competition doctrines. Finally, Part VI concludes that current federal and state laws adequately address all meaningful public policy concerns related to the live steaming of commercial sporting events.

Obscurity

'All the World’s a Stage: The European right to be forgotten revisited from a US perspective' by Hugh J McCarthy in (2016) 11(5) Journal of Intellectual Property Law and Practice 360-371 comments

The Court of Justice (CJEU) ruling in Gonzalez v Google Spain has placed the ‘right to be forgotten’ at the centre of the global privacy debate. However, the decision leaves many questions unresolved, in particular the territorial scope of the ‘right to be forgotten’. 

The Gonzalez decision thereby generates tension with other jurisdictions due to the potential for the extra-territorial application of EU law norms beyond its borders. This tension is especially palpable in jurisdictions that are less than receptive to the principles underlying the ‘right to be forgotten’. In this respect, the Gonzalez decision is a discrete symbol of the disparity between the judicial approaches to privacy, data protection, reputation and freedom of expression under the respective American and EU constitutional systems. Although there are several fields of common ground between the EU and US at the intersection of these fundamental rights, it cannot be said that the ‘right to be forgotten’ is one of them. It is apparent that the body of First Amendment jurisprudence stands as an insurmountable obstacle to the implementation of an EU-style ‘right to be forgotten’ in the US. 

With the imminent codification of the ‘right to be forgotten’ in the EU’s General Data Protection Regulation, it appears that the two jurisdictions will end up ‘shadow-boxing on different plains’ when it comes to the ‘right to be forgotten’. As a consequence of these differences and the resulting regulatory disparity, informational asymmetries will probably emerge between the US and EU – and potentially other jurisdictions – as the ‘right to be forgotten’ is implemented elsewhere.

Marbles

'The Parthenon Marbles in the British Museum' by James Leitzel comments

In the early part of the 19th century sculptures from the Parthenon in Athens were removed from the Acropolis under the direction of the Earl of Elgin, then the British ambassador to the Ottoman Empire, which at the time included Greece. The sculptures were brought to Britain, finding their way to the British Museum in London in 1816, where they are viewed by millions of museum visitors annually. A debate long has simmered as to whether these Parthenon Marbles, which date from the 5th century BCE, should be returned to Athens or remain in the United Kingdom. Elements of the debate include questions about: the legitimacy of the initial relocation of the statuary; the quasi-legal impact of more than 200 years of British stewardship; the risk-mitigating role for dispersal of art; and, the influence on other art and museums of any precedent that might be established by return of the Parthenon Marbles. 

This paper surveys the arguments on both sides of the debate. A Law-and-Economics lens is employed to examine the ‘property dispute’ surrounding the Marbles. Coase-like reasoning is applied to the question of the ‘highest-valued’ location of the Marbles, supplemented with behavioral economics concepts involving cultural identity and endowment effects. The paper concludes by offering some contours for a potentially Pareto-improving agreement that would result in the reunification of the Parthenon Marbles in Greece.

Leitzel concludes

The Law and Economics approach to property disputes such as that concerning the Parthenon Marbles in the British Museum involves seeking an outcome that comports with the maximization of efficiency. This approach ignores – except to the extent that efficiency is implicated – issues such as legality, justice, and ethics: issues that often are highlighted in other approaches to the Marbles dispute. What efficiency does take into account are the preferences of all interested individuals, current and future, while reflecting the intensity of those preferences, generally expressed in terms of the willingness-to-pay for various alternatives. The fact that efficiency concerns the preferences of all interested parties indicates that it has no direct interest in national boundaries or national cultural heritage: in the “two ways of thinking about cultural property” identified in Merryman (1986), efficiency falls on the cosmopolitan, one-common-culture side of the divide (as opposed to taking a nationalistic approach). In terms of precedent, an efficiency rationale for return of the Parthenon Marbles does not support a general rule that people today who happen to inhabit a region of the earth where great art was produced or resided in the past have any stronger claim than do the rest of us to possession or ownership of the art. 

The major elements of the efficiency-centered view are the number of people who can see the Marbles in the two competing locations (or other locations, for that matter); the value of the aesthetic experience that viewing the Marbles would hold in the alternative locations (or rather, the incremental value relative to the experience without the Elgin Marbles); and the intensity of the desire for possession unrelated to viewing, perhaps deriving from an understanding that the Marbles form a key part of one’s cultural heritage. In my estimation, the aesthetic and the “cultural heritage” elements greatly favor the Athens claim, whereas in terms of number of visitors, London currently is superior. Assuming that the efficiency calculus does favor Athens, what sort of a deal can be struck that will result in the reunification of the Parthenon Marbles at the Acropolis Museum? Such a mutually beneficial bargain will be possible, by the usual economics reasoning, if indeed Athens remains the more efficient location, even when transaction and relocation costs are accounted for. The rudiments of a potential agreement are suggested by resolutions to other recent cultural property disputes.  The idea is to fashion the return of the Elgin collection into a celebration of the art and the initiation of a new phase of Greek-British cooperation in matters cultural. Loans of other Greek antiquities to Britain, exhibits in Athens and London devoted to the British Museum’s stewardship over the Marbles, scholarly conferences (perhaps in many fields, including, for instance, literature, history, and economics), and commitments to continued educational exchanges (such as internships for British students at the Acropolis Museum or other Greek cultural institutions, with reciprocity in Britain for Greek students): these are the types of elements that can transform an ongoing irritant in Greek-British relations into a celebration and enhancement of the Parthenon and its place in world culture.

Apps, Privacy and Regulatory Arbitrage

'Regulatory Disruption and Arbitrage in Healthcare Data Protection' by Nicolas Terry in (2016) 17 Yale Journal of Health Policy, Law, and Ethics argues 

Regulatory turbulence, disruption and arbitrage presuppose the juxtaposition of at least two regulatory domains. In the simplest case one domain would be highly regulated; the other unregulated. Turbulence and disruption exist on a continuum. Regulatory turbulence may be only transient or, in the scheme of things, relatively benign. Regulatory disruption has more permanent and serious implications. Regulatory arbitrage occurs when a business purposefully exploits disruption, making business choices on the basis of the differential between the two regulatory domains.

Policymakers’ persistent, systemic failure to safeguard healthcare data outside the HIPAA domain is now exemplified by the minimal, sub-HIPAA data protection afforded healthcare data either held by data brokers or created by mobile apps and wearables outside of the conventional health care space. The former, healthcare data held by data brokers is an example of regulatory arbitrage. The latter, mobile health is presenting with regulatory turbulence and disruption. This article explains how the structure of U.S. healthcare data protection (specifically its sectoral and downstream properties) has led to a chronically uneven policy environment for different types of healthcare data. It examines claims for healthcare data protection exceptionalism and competing demands such as data liquidity. In conclusion the article takes the position that healthcare data exceptionalism remains a valid imperative and that even current concerns about data liquidity can be accommodated in an exceptional protective model. However, re-calibrating our protection of healthcare data residing outside of the traditional healthcare domain is challenging, currently even politically impossible. Notwithstanding, a hybrid model is envisioned with downstream HIPAA model remaining the dominant force within the healthcare domain, but being supplemented by targeted upstream and point-of-use protections applying to healthcare data in disrupted spaces.

WEF and Employment

The World Economic Forum The Global Information Technology Report 2016 looks on the neoliberal bright side, with technology to the rescue. It might be read in conjunction with the CEDA 'robot apocalypse' report noted here.

The WEF report

assesses the state of networked readiness of 139 economies using the Networked Readiness Index (NRI) (Chapter 1.1) and, under the theme “Innovating in the Digital Economy,” examines the role of information and communication technologies (ICTs) in driving innovation (Chapters 1.1 and 1.2). Part 2 consists of an extensive data compendium with the detailed performance of each economy in the NRI (Section 2.1) and rankings for each of the 53 individual indicators included in the NRI (Section 2.2).

The report goes on to comment that 

We are at the dawn of the Fourth Industrial Revolution, which represents a transition to a new set of systems, bringing together digital, biological, and physical technologies in new and powerful combinations. These new systems are being built on the infrastructure of the digital revolution. The Global Information Technology Report 2016 features the latest iteration of the NRI, which assesses countries’ preparedness to reap the benefits of emerging technologies and to capitalize on the opportunities presented by the digital revolution and beyond.

The Networked Readiness Index 2016

Chapter 1.1 presents the results of the NRI 2016, which measures the capacity of countries to leverage ICTs for increased competitiveness and well-being. It also considers innovation trends of recent years through the lens of the NRI.

The networked readiness framework

The networked readiness framework rests on six principles:

(1) a high-quality regulatory and business environment is critical in order to fully leverage ICTs and generate impact;

(2) ICT readiness—as measured by ICT affordability, skills, and infrastructure—is a pre-condition to generating impact;

(3) fully leveraging ICTs requires a society-wide effort: the government, the business sector, and the population at large each have a critical role to play;

(4) ICT use should not be an end in itself. The impact that ICTs actually have on the economy and society is what ultimately matters;

(5) the set of drivers—the environment, readiness, and usage—interact, co-evolve, and reinforce each other to form a virtuous cycle; and

(6) the networked readiness framework should provide clear policy guidance.

The framework translates into the NRI, a composite indicator made up of four main categories (subindexes), 10 subcategories (pillars), and 53 individual indicators distributed across the different pillars:

A. Environment subindex Political and regulatory environment (9 indicators) Business and innovation environment (9 indicators)

B. Readiness subindex Infrastructure (4 indicators) Affordability (3 indicators) Skills (4 indicators)

C. Usage subindex Individual usage (7 indicators) Business usage (6 indicators) Government usage (3 indicators)

D. Impact subindex Economic impacts (4 indicators) Social impacts (4 indicators)

The computation of the overall NRI score is based on successive aggregations of scores: individual indicators are aggregated to obtain pillar scores, which are then combined to obtain subindex scores. Subindex scores are in turn combined to produce a country’s overall NRI score. The appendix of Chapter 1.1 presents the detailed methodology and composition of the NRI.

About half of the individual indicators used in the NRI are sourced from international organizations. The main providers are the International Telecommunication Union, UNESCO and other UN agencies, and the World Bank. The other half of the NRI indicators are derived from the World Economic Forum’s Executive Opinion Survey (the Survey). The Survey is used to measure concepts that are qualitative in nature or for which internationally comparable statistics are not available for enough countries. The 2015 edition of the Survey was completed by over 14,000 business executives in more than 140 countries.

Key Findings

Under the theme “Innovating in the Digital Economy,” The Global Information Technology Report 2016 highlights the ways in which the digital revolution is changing both the nature of innovation and the rising pressure for firms to innovate continuously.

The analysis yields four key findings:

Key Finding 1: The digital revolution changes the nature of innovation.

One of the key characteristics of the digital revolution is that it is nurtured by a different type of innovation, increasingly based on digital technologies and on the new business models it allows. In addition to making traditional research tools more powerful, it allows for new and near-costless types of innovation that require little or no R and D effort. Examples include the digitization of existing products and processes, distributed manufacturing, blockchains, and advertising-based “free services” as well as the prospect of more “uberized” activities in multiple sectors, including transport, banking, entertainment, and education.

The NRI data show that the minds of business executives around the world are increasingly focused on innovation, as reflected by the steady upward trend in firms’ perceived capacity to innovate. Traditional measures for innovation, such as the number of patents registered, are picking up only part of the story. Instead, new types of innovation, such as business-model innovation, look set to become an important part of the innovation story: executives in almost 100 countries report increases in the perceived impact of ICTs on business-model innovation compared with last year.

Key Finding 2: Firms will face increasing pressure to innovate continuously.

Seven countries stand out in terms of economic and digital innovation impact: Finland, Switzerland, Sweden, Israel, Singapore, the Netherlands, and the United States. Considering the different elements of networked readiness for these seven countries, it is noticeable that all seven are characterized by very high levels of business ICT adoption. This technology-enabled innovation in turn unleashes new competitive pressures that call for yet more innovation by tech and non-tech firms alike.

Because digital technologies are driving winner-take-all dynamics for an increasing number of industries, getting there first matters. However, although firms feel that overall capacity to innovate has increased, a stagnating rate of ICT adoption and usage by existing firms across all regions suggests that a large number of firms are not getting into the game fast enough.

Key Finding 3: Businesses and governments are missing out on a rapidly growing digital population.

In recent years, digital innovation has been primarily driven by consumer demand. Yet this increasing demand for digital products and services by a global consumer base is largely being met by a relatively small number of companies. Businesses need to act now and adopt digital technologies to capture their part of this growing market. A widening and worrying gap is also emerging between growth in individual ICT usage and public-sector engagement in the digital economy, as government usage is increasingly falling short of expectations. Governments can do more to invest in innovative digital solutions to drive social impact.

Key Finding 4: A new economy is shaping, requiring urgent innovations in governance and regulation.

As the new digital economy is taking shape, offering it the right framework conditions will be crucial to ensuring its sustainability. Digital technologies are unleashing new economic and social dynamics that will need to be managed if the digital transformation of industries and societies are to deliver long-term and broad-based gains. A resilient digital economy also calls for new types of leadership, governance, and behaviors. A critical ingredient for the success and sustainability of the emerging system will be agile governance frameworks that allow societies to anticipate and shape the impact of emerging technologies and react quickly to changing circumstances.

Networked Readiness Index 2016: Results overview

Chapter 1.1 then reports the rankings of the overall NRI 2016, its four subindexes, and their respective pillars. The composition of the group of top 10 performers is unchanged from last year. The group consists of a mix of high-income Southeast Asian (Singapore and Japan) and European countries (Finland, Sweden, Norway, the Netherlands, Switzerland, the United Kingdom, and Luxembourg) as well as the United States. Networked readiness therefore remains highly correlated with per capita income.

Europe remains at the technology frontier with seven out of the top 10 NRI countries being European. Yet the performance range is wide, with Greece dropping four places to 70th position and Bosnia and Herzegovina closing the group at 97. Several Eastern European countries—notably the Slovak Republic, Poland, and the Czech Republic—are making big strides, landing spots in the top 50 of the NRI; better affordability and large improvements in economic and social impacts are contributing to this success in these three countries in a major way. Italy is another notable mover this year, improving 10 places to reach 45th position as economic and social impacts of ICTs are starting to be realized (up 18 in the global impact rankings).

The Eurasia region continues its upward trajectory, with the average NRI score for the region increasing significantly since 2012. In particular, it is notable that the improvement is observed across all four elements that make up the Index: Environment, Readiness, Usage, and Impact. The region is led by Kazakhstan, which continues on its positive trajectory of recent years to land in 39th position this year.

Leading the Emerging and Developing Asian economies in 2016 is Malaysia, which continues to perform strongly and moves up one spot to 31st position overall; this performance is supported by a government that is fully committed to the digital agenda. The top five in the region in terms of overall ICT readiness remain China, Malaysia, Mongolia, Sri Lanka, and Thailand, as in 2015. The group of Emerging and Developing Asian countries has been both moving up and converging since 2012. Individual usage in the region is still one of the lowest in the world, but has been growing strongly in recent years.

The performance range of countries in the Latin America and Caribbean region remains widely dispersed with almost 100 places between Chile (38th) and Haiti (137th). There was no clear trend from 2015 to 2016 in terms of relative performance, with Chile and Haiti staying put; of the remaining group, half of the countries improve their ranking and the other half drop. Considering the absolute NRI score, however, the region has been moving up and converging since 2012. In order to foster the innovation forces that are key for thriving in the digitized world and the emerging Fourth Industrial Revolution, many governments in the region will urgently need to reinforce efforts to improve the regulatory and innovation environment in their countries.

The UAE (26th) and Qatar (27th) continue to lead the Arab world when it comes to networked readiness. The MENAP region (Middle East, North Africa, and Pakistan) is home to two of the biggest movers in this year’s rankings: Kuwait (61st, up 11) and Lebanon (88th, also up 11). In both cases, individuals are leading the charge with the business sector catching up and strongly contributing to the successful performance. Although governments are lagging behind in terms of digital adoption (81st in Kuwait, 124th in Lebanon), the business community in both countries is registering an increased weight on ICTs in government vision and efforts to improve the regulatory environment. This year’s NRI also sees several sub-Saharan African countries among the top upward movers, including South Africa (65th, up 10), Ethiopia (120th, up 10), and Côte d’Ivoire (106th, up 9). Leadership in terms of digital adoption is coming from different groups of stakeholders. Although efforts are very much government-driven in Ethiopia and Côte d’Ivoire, the business sector is providing the most momentum in South Africa. Going forward, the largest barriers to tackle for Côte d’Ivoire will be infrastructure and affordability; reversing the trend of a deteriorating business and innovation environment for South Africa; and individual usage and skills for Ethiopia.

Chapter 1.1 provides an overview of the performance of the 10 best-performing countries in the NRI 2016, a selection of economies that were among the top movers as well as other selected economies, including members of the G20 outside the top 10.

The Index maps a quickly evolving space and has been adapted since its inception in 2001. Since the digital economy is developing exponentially, its measurement must be adapted to reflect the new realities on the ground. A multi-stakeholder process will be put in place to identify key questions concerning the drivers and implications of the emerging Fourth Industrial Revolution and to develop relevant concepts and measures with a view to incorporating these findings into the next edition of the NRI.

Cross-border data flows, digital innovation, and economic growth

In Chapter 1.2, Robert Pepper, John Garrity, and Connie LaSalle explore the impact of the free flow of data across national borders on innovation and growth. The authors highlight the development of cross-border data traffic over Internet protocol, starting with the first email messages in the early days of the Internet to today, where over 3.2 billion people across the world have access to and use the Internet.

The flow of digital communication between countries, companies, and citizens has been recognized for years as a critical driver of economic growth and productivity. Countries adept at fostering digital activity have witnessed the emergence of new industries as well as the accelerated development of traditional sectors. However, despite the intensive and extensive growth of the global Internet, concerns over growing barriers to digital flows are mounting.

The authors first review the literature on the impact of cross-border data flows on countries, companies, and individuals. The chapter then presents an original analysis of the growth of new services built on the free flow of trade through global digitization, and concludes by discussing policy guidelines that mitigate concerns over national data transmission while simultaneously maximizing the benefits of cross-border data flows.

Part 2: Data presentation

Part 2 of the Report contains individual scorecards detailing the performance in the Networked Readiness Index of each of the 139 economies (Section 2.1) and tables reporting the global rankings for each of the 53 individual indicators composing the NRI (Section 2.2).

Patents

'Pierson, Peer Review, and Patent Law' by Lisa Larrimore Ouellette in (2016) 69 Vanderbilt Law Review comments

When has a researcher done enough to merit a patent? Should the patent belong to the researcher who first suggests an invention, or the one who brings it to fruition? The canonical dispute over a fox in Pierson v. Post is used to illustrate the competing policy considerations in deciding when to award a new property right, including providing efficient incentives, setting forth clear rules to guide future behavior, and respecting natural rights. In patent law, all of these considerations suggest that in practice, many patents are awarded too early, before an applicant has demonstrated that the invention is likely to work. The main problem seems to be not with the substantive standards, but with the Patent Office’s institutional competence to enforce these standards. A patent is supposed to teach a researcher of “ordinary skill” in the field how to make the invention without “undue experimentation.” Yet it often takes extraordinary skill to recognize when this standard is not met based merely on reading a patent application — expertise that the typical patent examiner lacks. To address this information asymmetry, it is worth experimenting with bringing those of extraordinary skill into the patent examination process through a robust peer review system. So far, opportunities for outside input such as the Peer To Patent pilot project have focused on providing examiners with additional prior art, but peer review would be far more valuable for evaluating patent disclosures to assess whether applicants have in fact done enough work to merit a patent, or whether it remains too early in the chase.

Orientalism

'Towards the Rehabilitation of a Symbolic Account of Justice' by John R. Morss comments

Orientalism in Edward Said’s account has functioned to blinker Western consciousness about its own place in the world as well as the place of others. The breadth and the depth of Orientalism for Said needs to be recognised and in some senses respected in order that it may be gradually unpicked from the contemporary imagination. The more florid of the products of Orientalism, such as the breathtaking statements about ‘the Eastern mind’ or ‘the Arab world’ so confidently asserted by generations of expert Orientalists, are not too difficult to identify and to repudiate. Similarly, many aspects of law are patently egocentric and discriminatory and to the extent of that visibility, are fairly easily identified as such even if remediation is not always so easy. But it is the less patent effects of Orientalism that most concern Said and likewise, any value for an Orientalist perspective on law must go beyond the obvious. The revelations about ‘ourselves’ must be challenging if they are to be relevant. It may be that one may replace ‘East’ with ‘Law’ without absurdity and perhaps without incoherence. This would be one of many possible ways of treating our understanding of the legal, like our understanding of the ‘East,’ as a mediated and motivated construction.