Footy Marks

'American Needle Inc. v. NFL' (Marquette Law School Legal Studies Paper No. 12-14) by Matt Mitten notes that

In American Needle, Inc. v. National Football League, a 2010 case, the United States Supreme Court unanimously held that the National Football League (NFL) clubs’ centralized and exclusive licensing of their individual trademarks through a wholly owned league subsidiary is not immune from judicial scrutiny under §1. This landmark decision has broad implications because its rationale suggests that all collective decisions by a U.S. professional sports league’s member clubs that reduce intrabrand economic competition among themselves (e.g., joint decisions regarding the ownership, number, and geographical location of teams, restrictions on the sale of broadcasting rights, labor relations issues, etc.) are subject to §1. Before describing and analyzing American Needle, this chapter explains how U.S. major professional sports leagues are structured and governed and briefly surveys the rulings of lower courts, which generally rejected the single entity defense. It concludes by reviewing how lower courts have applied American Needle to subsequent sports antitrust litigation and scholarly commentary regarding its future application to professional sports leagues.

Mitten comments that -

One of the most difficult issues affecting legal regulation of the United States professional sports industry is whether (and, if so, how) §1 of the Sherman Act, a provision of the U.S. antitrust laws prohibiting concerted action that unreasonably restrains interstate trade or commerce, applies to professional sports league rules and internal governance decisions. In other words, are league clubs separate economic entities whose collective action is subject to § 1, or is a sports league and its clubs an economically integrated single business enterprise whose conduct is not covered by § 1 (the basis of the “single entity defense”)? If the later, what is the appropriate standard for determining if the challenged concerted action unreasonably restrains trade? 

In American Needle ... the United States Supreme Court unanimously held that the National Football League (NFL) clubs’ centralized and exclusive licensing of their individual trademarks through a wholly owned league subsidiary is not immune from judicial scrutiny under §1. ... Acknowledging that a sport’s league’s member clubs must cooperate to produce on-field athletic competition, the Court reaffirmed: “When ‘restraints on competition are essential if the product is to be available at all,’ per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason.’”

Gendered IP

'Sex Exceptionalism in Intellectual Property' by Jennifer Rothman in 23 Stanford Law & Policy Review (2012) 119 considers censorship and IP.

Rothman argues that

 The state regulates sexual activity through a combination of criminal and civil sanctions and the award of benefits, such as marriage and First Amendment protections, for acts and speech that conform with the state’s vision of acceptable sex. Although the penalties for non-compliance with the state’s vision of appropriate sex are less severe in intellectual property law than those, for example, in criminal or family law, IP law also signals the state’s views of sex. In this Article written for the Stanford symposium on the Adult Entertainment industry, I extend my consideration of the law’s treatment of sex after Lawrence v. Texas to the context of intellectual property. 

Sex has long played a role in determining the scope of IP protection, especially in the context of copyright and trademark law. At common law, works, inventions, and marks deemed sexually explicit or simply suggestive were denied the protection of the law. Even today they remain disfavored in some contexts. In this Article, I consider and critique some of the ways IP law continues to devalue and channel sex. Part I of the article considers trademark law’s explicit and implicit disfavoring of sexual content. This is most evident in trademark dilution law, where courts have read in an explicit prohibition on using marks or colorable imitations in sexual contexts. Part II analyzes the ways that copyright law continues to treat works with sexual content differently and sometimes less favorably than other works. Finally, Part III situates IP law’s treatment of sex in a broader critique of the law’s sex exceptionalism and normativity. Using copyright and trademark to channel sex provides yet another avenue for the law (and in this case art and commerce) to shape a vision of sex that is narrow, discriminatory, pejorative, and exclusionary. A consideration of the treatment of sex in IP highlights some of the dangers of the differential treatment of sex in general and also some of the pitfalls of using the IP system to further goals unrelated to its core missions. Ultimately, works, marks, and uses of them should not be disfavored solely because they have sexual content nor should courts be in the business of assessing what constitutes good or bad sex.

IP law not only contributes to the legal construction of sex, but also has a particularly significant multiplying effect on the social construction of sex be- cause IP law influences cultural artifacts, such as movies, books, plays, and products and services, that themselves shape our culture’s construction of sex. The parameters of IP law encourage creators, companies, and users into safe zones where they are more likely to get copyright protection, register a mark or benefit from fair use or other defenses to infringement and dilution. Thus, the law can stigmatize works and marks with sexual content or certain forms of sexual content, thereby contributing to the channeling of sex into limited acceptable forms. 

Instead of “recognizing the diversity of sexual and intimate relations wor- thy of respect and protection,” courts often have imposed their views of what constitutes “good sex.” IP laws therefore harm individuals living both within and outside the legal construct of acceptable sex. For those who cannot conform, the legal and social disapproval can cause psychological and physical harm and negatively affect their relationship to themselves, their sexuality, and their place in society. The laws also discourage some, who otherwise might wish to or would benefit from doing so, from departing from the dominant construction of sex. IP laws therefore interfere with our ability to develop and embrace a more positive relationship to sex. In the context of this symposium on the adult entertainment industry, this sex exceptionalism and normativity reveal that the industry may fare worse in some IP disputes than other industries. But the scope of this project sweeps more broadly than the adult entertainment business and pornography. A con- sideration of the treatment of sex in IP highlights some of the dangers of the differential treatment of sex in general and also some of the pitfalls of using the IP system to further goals unrelated to its core missions. Few, if any, scholars have made these connections.

Spatiality and Wireless Tracking

'Making the Most of Jones v. United States in a Surveillance Society: A Statutory Implementation of Mosaic Theory' (Vanderbilt Public Law Research Paper No. 12-29) by Christopher Slobogin argues that

In the Supreme Court’s recent decision in Jones v. United States a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion - sometimes called “mosaic theory” - could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements - the issue raised in Jones - but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This solicited article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.

Slobogin concludes -

The statute proposed in this article attempts to implement mosaic theory through application of two frames for thinking about the Fourth Amendment: the proportionality principle and political process theory. It answers the four questions left open after Jones as follows: 

1. Differentiating between short-term and long-term physical surveillance can be justified under proportionality analysis, and clear, if somewhat arbitrary, distinctions based on the duration of the surveillance can be established. 

2. Physical surveillance (including, but not limited to, tracking) should not always require probable cause or a warrant. Proportionality analysis suggests that reasonable suspicion or an even lower standard is an adequate justification for government actions that are only moderately or minimally intrusive. 

3. The nature of the offense should normally not affect the justification required by proportionality reasoning. The one exception occurs when a search is necessary to prevent a serious, specific threat. 

4. Proportionality reasoning should also apply when government engages in institutional data searches. The third party doctrine should be discarded in this situation; instead, justification should be required for data access, but should vary depending upon the length of time over which the sought-after transactions occurred. The statute also addresses a number of questions not raised in Jones. It redefines search for Fourth Amendment purposes to conform to its lay meaning. It defines probable cause and reasonable suspicion more definitively than the caselaw does, by providing that probable cause searches must be likely to obtain significant evidence of crime, while permitting reasonable suspicion searches that are likely to discover leads to such evidence. It also introduces the idea that general searches - searches of groups in the absence of suspicion - should be regulated differently than targeted searches, through reliance on political process theory. 

As important as the content of these proposals is the method of explicating them. Construction of statutes regulating government investigation is crucial, for a number of reasons. First, implementation of Fourth Amendment theory through statutory provisions requires confrontation with the implications of that theory. Until theoreticians are forced to put their prescriptions into action, the logic and feasibility of their proposals cannot be fully evaluated. Second, by providing a template for legislatures, a statutory proposal increases the probability that legislatures will get involved in the process of regulating searches, which itself has several advantages. As Justice Alito suggested in Jones, legislatures are better equipped than courts bound by the case and controversy requirement and judicial restraint to provide detailed and comprehensive regulations. And courts can do a better job evaluating the constitutionality of a given practice if a statute provides them with the framework in which it occurs. For instance, courts might think quite differently about justification requirements if they know that the government is constrained by rules governing notice, disclosure and accountability. 

Another advantage legislation is said to have over judicial analysis, also raised by Justice Alito, is that legislatures can be more responsive than courts to changes in the technology used to carry out searches. If the proposed statute is adopted, however, this advantage would be muted, because regulation would not be driven by the method of investigation. A search would occur whenever government is looking for evidence of wrongdoing, regardless of how it does so, and justification levels would be set according to the duration of the search, not the type of technology used or the type of information sought. This approach is not only consistent with the Fourth Amendment’s language and history, but should be able to accommodate even significant changes in the way government chooses to investigate its citizens.

The US Federal Communications Commission has meanwhile, in its 43 page Location-Based Services: An Overview of Opportunities and Other Considerations [PDF], apparently heeded telco industry calls for self regulation.

The Overview comments that -

Technological innovations, notably over the past decade, facilitate the collection of substantial amounts of personally identifiable data about virtually anyone who accesses information online. The rapid pace of change in both technology and business models is fueling an active and growing debate in the United States and around the world about the appropriate use of that data. The following report focuses on one part of the discussion: Location-based services (“LBS”), mobile services that combine information about a user’s physical location with online connectivity and are transforming the way Americans work and play. 

Among other things, LBS let users access relevant and up-to-date information about their surroundings, inform others of their whereabouts, and get instant access to maps and traffic information for their current location. Whether used for fleet tracking or inventory management, for machine-to-machine communications, or for social networking or entertainment, LBS can create a more dynamic user experience that adds value and convenience and changes the way people transact business and organize their activities and free time. 

Not surprisingly, Americans are quickly adopting LBS. As of May 2011, 28% of adult Americans used mobile LBS of some type. LBS are expected to deliver $700 billion in value to consumers and business users over the next decade. 

The promise of LBS, however, comes with challenges and concerns. Because mobile devices have the ability — and often the technical requirement — to regularly transmit their location to a network, they also enable the creation of a precise record of a user’s locations over time. This can result in the creation of a very accurate and highly personal user profile, which raises questions of how, when and by whom this information can and should be used. 

In light of these developments, the staff of the Federal Communications Commission has prepared this report on LBS. As discussed in greater detail below, drawing upon its experience in protecting consumer privacy, Commission staff believes:

• LBS have tremendous potential to provide value and foster innovation to benefit the economy and consumers; 

• LBS industry players face challenges as they attempt to provide consumers with appropriate notice and choice with respect to the use of the data generated by LBS and the devices and networks that host them; 

• Industry is taking steps to respond to these challenges but the degree of responsiveness varies among companies and industry segments; and 

• New issues continue to emerge that need to be addressed, timely and responsively. 

Consequently, in collaboration with federal partners and industry representatives, Commission staff will continue to monitor industry compliance with applicable statutory requirements and evolving industry best practices to ensure LBS evolves to meet its fullest potential while protecting the legitimate interests of consumers in safeguarding their personally identifiable information.

The Federal Trade Commission, just down the road, may have a somewhat less permissive view.

Organ Donation

'Family Override of Valid Donor Consent to Postmortem Donation: Issues in Law and Practice' (2008) by Jocelyn Downie, Chantelle Rajotte & Alison Shea comments that

In 2005, 3974 Canadians were on waiting lists for organ transplants and 275 patients died while waiting. Canada's organ shortage has led to calls for changes to Canada's organ donation system and its legal framework. Herein we examine an issue in which law reform could both increase the number of available organs and better align practice with respect for autonomy, a core value underpinning the Canadian legal system: the issue of family overrides of a valid donor consent to postmortem donation. That is, we examine what should happen when an individual consented to postmortem donation but the family would like to override that consent. First, we examine the requirements for valid donor consent. Second, we consider the legal status of family overrides of valid donor consent in relation to postmortem donation. Third, we describe the available data with regard to the practice of permitting families to override valid donor consent and discuss the possible reasons for this practice. Finally, we describe and defend the desired results with respect to law reform and describe the actions needed to realize these results.

As discussed in a submission I made to the NSW inquiry into organ donation, a similar regime exists in Australia, with medical practitioners and support staff heeding prohibitions by the relatives that in some instances are quite clearly at odds with a deceased person's wish to donate organs at death.

The 2010 Australia New Zealand Organ Donor Registry (ANZOD) report - noted here - indicated that over 40% of the families of registered organ donors do not allow the organs of their loved ones to be donated once they die.

The Canadian authors conclude that -

With the exception of Manitoba and possibly Quebec, organ and tissue donation legislation does not permit valid donor consent to be overridden by families. This statutory position enjoys strong public support, as evidenced by further results from the 2006 survey mentioned above. This statutory position is also ethically sound, as it is supported by the principle of autonomy, the recognition that the donor has interests which survive past death and should be respected, and the substantial benefit of prolonged or improved quality of life experienced by transplant recipients. It has been argued that respecting the grieving family's desire not to donate is justifiable because it is family interests that are impacted the most by organ donation, whereas the donor is dead. Critics of this argument contend that failing to respect the donor's valid consent violates his or her autonomy and there are individual interests that survive death, such as the expressed wishes of the deceased in a will, that are respected despite family opposition and, as has been noted in the literature, the altruistic giving of one's organs and tissues can be argued to be a more personal and intimate decision than the disposal of one's property in a will and deserves equal, if not more, respect. Lastly, just as coroners' legislation permits forensic autopsies without family consent because of larger societal interests in justice, provincial and territorial organ and tissue donation legislation that makes valid donor consent full and binding authority for donation and transplantation regardless of the family's wishes can be said to reflect the larger public interest in respecting individual autonomy and prolonging life. By ensuring that current practice is aligned with the law, the intent of both the donor and the legislation will be realized: more lives will be saved or improved. The grief of the family need not be ignored as supports can be put in place to help families that oppose donation understand the implications of their loved one's consent. A combination of law and policy reform, practice reform, and education is recommended below to achieve a consistent and coherent approach that respects valid donor consent and maximizes postmortem organ procurement from donors who have given valid donor consent. 

A. Law Reform

In 1987, when the Uniform Law Conference of Canada was considering amendments to its uniform tissue donation statute, it was recommended that “the next-of-kin should not be able to countermand the wishes of the deceased.” It was further recommended that this issue be addressed through education rather than through law reform, as the legislation was sufficient. However, given the obviously limited success of education alone in the past 20 years to rectify the situation, as evidenced by the multitude of government and organ donation program websites that still state that the family can override valid donor consent, law reform should be undertaken in addition to education. We recommend that:

1  The legal requirements (substantive and procedural) for a valid consent should be clearly set out in organ and tissue donation legislation. In particular, to reduce the potential for uncertainty, valid forms of “writing” should be clearly identified in regulations (made under organ and tissue donation legislation), eg, that “writing” includes organ donor cards. Further legal research is needed to examine what the substantive requirements should be for valid consent to postmortem donation. This research should consider the possible consequences of including informed consent as a requirement (eg, how such a requirement would affect the format and process for giving consent to postmortem donation). 

2  The word “binding” should be explicitly defined in organ and tissue donation legislation (ie, “binding” means the consent must be followed unless clearly articulated statutory exceptions are met). Manitoba should add the word “binding” to its postmortem donor consent provisions. All jurisdictions that have “binding” consent should have an exception similar to s 9 of Nova Scotia's Human Tissue Gift Act, which provides for circumstances in which the organs and tissues are unusable.

3  Quebec should clarify that family opposition is not a compelling reason not to follow the donor's wishes expressed in a valid consent. 

B. Policy Reform

Policy reform is needed so that policies and protocols regarding organ donation and procurement clearly and accurately reflect the law; specifically, that valid donor consent must be followed and cannot be overridden by the family (except in Manitoba and Quebec).

The policy statements of British Columbia's Transplant Society, an agency of the provincial health services authority that directs, delivers, or contracts for all organ transplant services in British Columbia, should be considered a possible Canadian model for policy reform. This Society's website accurately reflects the law in this area and clearly states that their registration form is valid legal consent under British Columbia's Human Tissue Gift Act. According to their website, the medical staff will always follow valid donor consent and the family will be approached with a copy of the donor's valid consent to inform them of the donor's decision. The Society's experiences with their policy could be used to inform the creation of policies throughout Canada. 

C. Education and Public Awareness 

Legal education and public awareness programs will be crucial to the success of efforts to inform all relevant stakeholders that the current practice of respecting family opposition over valid donor consent is not legally acceptable. The current law should be taught in relevant health professional degree programs, such as nursing and medicine, and should form part of continuing education programs for health professionals working in this field. Once policy reform is in place, public awareness of the legally binding nature of valid donor consent - and the benefits of giving such consent, such as saving lives and reducing the burden of decision making on one's family - should be increased and included as part of organ donation awareness programs. Public information should be correct and any necessary changes should be made to websites and other media.

Lucre

From Ferdinand Mount's TLS review of What Money Can't Buy: The moral limits of markets (London: Allen Lane 2012) by Michael Sandel -

This wry and graceful polemic comes attended by a flock of shocking, delicious and absurd examples. In Santa Ana, California, you can buy a prison cell upgrade for $82 a night. For $150,000 in South Africa you can buy the right to shoot an endangered black rhino. Air New Zealand hires people to shave their heads and emblazon temporary tattoos on their foreheads with the slogan “Need a change? Head down to New Zealand”. Nor are such transactions confined to the West. In overcrowded Chinese hospitals, there is a hot market in appointment tickets to see the doctor, and the touts charge Wimbledon prices. In the US, you can buy the life insurance policy of an ailing old person, pay the premiums and then collect when he or she dies. The sooner the oldie croaks, the more you collect. This betting on a stranger’s death is now a $30 billion business and bears the charming name of “the viatical industry” – after the Latin word for the money and provisions supplied to Roman officials setting out on a journey, and by extension to the journey across the Styx. ...

As in many other areas of life, it is hard to discern much of a firm guiding principle. One can only agree with Edmund Burke that “It is one of the finest problems in legislation what the State ought to take upon itself to direct by the public wisdom, and what it ought to leave, with as little interference as possible, to individual direction. Nothing, certainly, can be laid down on the subject that will not admit of exceptions, many permanent, some occasional”. Sandel does concede that whether, in any given case, markets do the job better is a “highly contingent”, empirical question. But most of the time it is a question which he answers with an evident contempt for Trade and its contaminating effects. 

Nor is the cash nexus a novelty in politics. The idea that elections have been bought or sold only in the late twentieth century would have seemed laughable to Dickens or Mark Twain (is there a modern novel which equals The Gilded Age’s picture of a Washington riddled with lobbyists?). As for naming rights, it was forty years ago that Isaac Wolfson, the mogul of Great Universal Stores, became the first man since Jesus Christ to have a college named after him at both Oxford and Cambridge.

Tests

An article by Andrew Pollack in this weekend's New York Times asks "it ethical for genetic counselors, who advise patients on whether to undergo testing, to be paid by the companies that perform the tests?".

Unsurprisingly Pollack notes criticism that where counselors in hospitals and doctors’ offices work for the commercial genetic testing companies (rather than for the hospitals or practitioners) there -

 is a potential conflict of interest, in that the company-employed counselors might have an incentive to recommend more testing than necessary or not to recommend a test offered by a rival laboratory. The practice, they contend, could undermine trust in the profession just as genetic counselors are poised to play a growing role in medicine, helping patients sift through an ever-increasing array of available genetic tests. 

Pollack goes on to comment that -

There are genetic tests for more than 2,500 diseases, up from fewer than 800 diseases in 2001, according to GeneTests, a database supported by the federal government. UnitedHealth, the big insurer, recently projected that spending on genetic testing in the United States would grow to as much as $25 billion in 2012, up from $5 billion in 2010. 

Some leaders in the genetic counseling profession say that testing companies have supplied counselors to medical practices for more than 10 years with no evidence that patients have been harmed. .... 

Doctors who defend the arrangement say that they cannot afford to hire counselors on their own because reimbursement for counseling is low. 

While Medicaid, Medicare and private insurers often pay for genetic tests, they are less likely to pay for the counseling sessions, sometimes lasting an hour or longer, that can precede and follow such testing. Most states do not license genetic counselors, and it can be hard for a nonlicensed practitioner to obtain reimbursement. 

But testing companies can subsidize the typical $65,000 annual salary of the genetic counselors from testing revenues. 

Supposedly around 9% of the approximately 3,000 genetic counselors in the US work for testing laboratories, up from 2% in 1990.

A representative for what used to be Genzyme Genetics is reported by Pollack as stating that its counselors were not rewarded on the basis of how many tests were ordered. “Genetic counselors are not sales people. Our counselors are trained professionals that are looking to provide appropriate care, period.”

Credentialism

The UK Royal College of Surgeons is campaigning to persauade the British government to restrict use of the title 'surgeon' to people with a medical degree and surgical training.

A poll under RCS auspices found that 95% of 2,000 people expect a "surgeon" to be medically qualified.

The RCS has been critical of podiatric surgeons, represented by the Institute of Chiropodists and Podiatrists, who do not have medical degrees but do have training in "the surgical and non-surgical treatment of the foot". The Institute has sniffed that "Podiatric surgeons" use "highly skilled and meticulous surgical techniques" and are "specialist foot surgeons" who have trained exclusively for up to 12 years in the surgical and non-surgical treatment of the foot and associated structures.

The RCS commented that -

Currently patients are being left in the dark and cannot make informed decisions about their treatment.

The law must be changed so only those who have undertaken the extensive medical training it takes to become a surgeon can use this title.

This will avoid patients misunderstanding the qualification of the person treating them in the future

and that

It is extremely worrying that in the health sector clarity regarding job titles is lacking. Patients undergoing treatment have a right to know the credentials of the person to whom they are entrusting their safety.

The law can be very strict in protecting working titles and we believe the same legal cover should be extended to the title surgeon.

Concerns about credentials, registration regimes and claims are highlighted here, here and here.