Antitrust Law and the Internet: The Case Study of eSports

Posted By: Andrew Thiery

ESports_LogoCompetitive video gaming, colloquially termed “eSports,” is nothing less than a modern gold rush. eSports represents a massive global industry that is expected to generate one and a half billion dollars by 2020. More and more companies, including traditional sports organizations, are getting involved, each trying to claim a segment of the industry for their own. New companies are forming, existing ones are moving in, and those already involved are organizing and coordinating their efforts. In the last several years, multiple major governing bodies have been formed with the goal of standardizing and professionalizing eSports, including WESA (World eSports Association) and PEA (Professional eSports Association).

If history is any guide, there is a narrow line between standardization and monopolization. The same tools that good-faith actors use to lend standards and structure to an industry can be used by bad-faith actors to control and restrain it to their own ends. To combat such monopolistic tendencies. Congress enacted the Sherman Act, which outlaws “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” Although the eSports industry has not yet attracted the attention of American antitrust law, this is most likely only because of the relative youth of the industry. Given the rate at which eSports audiences and businesses are expanding, such intervention is likely to happen sooner rather than later, and it is not difficult to extrapolate what such a case might look like based on the robust antitrust jurisprudence with respect to traditional professional sports. Continue reading

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Trade Secret Misappropriation and the Internet

Posted By: Andrew Thiery

TradeSecrets_LOGO_REDThe Uniform Trade Secrets Act (USTA) of 1979 is a document drafted by the National Conference of Commissioners on Uniform State Laws in an attempt to provide a uniform regulatory framework for the protection of trade secrets under state law. The USTA defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives actual or potential independent economic value for its owner from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Furthermore, the USTA requires the owner of a trade secret to guard it against misappropriation by taking efforts to maintain its secrecy that are reasonable under the circumstances. The USTA definition of misappropriation includes the disclosure or use of a trade secret of another without express or implied consent by a person who used improper means to acquire knowledge of the trade secret or who knew or had reason to know that the trade secret was acquired by improper means. As a complete catalogue of proper and improper means is neither feasible nor practical, the USTA instead attempted to broadly categorize proper and improper means in their comments on the Act. According to the USTA, proper means includes the observation of the secret in public use or on public display, while improper means includes observation of the secret by means of otherwise lawful conduct which is improper under the circumstances.

Thus, the boundary between the lawful appropriation and misappropriation of a trade secret hinges on the distinction between what conduct is considered proper and improper with respect to observing a trade secret. Over the years, many courts have endeavored to brighten the line between proper and improper conduct, but the availability of information on the internet has once again muddied the waters. Specifically, increased capabilities in hacking have greatly expended the possibilities for state-sponsored and corporate reconnaissance and surveillance, and have posed new challenges for courts attempting to distinguish between proper and improper observation of a trade secret. Continue reading

A FIGHT FOR NET NEUTRALITY OR AGENCY RELEVANCE?

Posted By; Rylan Steward

480px-Network_neutrality_poster_symbolDictionary.com defines net neutrality as, “the principle that Internet service providers should enable access to all content and applications regardless of the source, and without favoring or blocking particular products or websites.” This is essentially the idea that broadband providers should not be able to block a user from accessing certain sites or content or “throttle” the speeds at which that content is delivered. The Federal Communications Commission (FCC) has long battled to gain control over the broadband market by re-classifying broadband providers as public utilities.

After the reclassification of broadband providers as a utility, so called open internet advocates claimed the action as a victory. However, I believe that government regulation and classification as a utility does the opposite of provide an open internet. Conversely, this classification of broadband providers will likely stifle the unprecedented growth and technological advancements the internet has been able to achieve thus far. This article delves into the inner workings of the broadband market and how the principles of net neutrality are better served without the interference of the FCC. Continue reading

Liberty vs. Security: The Backpage.com Saga

Posted By: Rylan Steward

Silk_Road_SeizedLaw makers recently passed the Fight Online Sex Trafficking Act of 2017 (“FOSTA”). This bill is aimed directly at Backpage.com in what many internet freedom activists are calling a kneejerk reaction and a politically motivated act. Nevertheless, President Trump signed FOSTA into law April 11 of this year in an effort to curb online sex trafficking. FOSTA garnered support from both Republicans and Democrats as is sailed through both the House of Representatives and Senate. While many see the passage of FOSTA as a victory, others are concerned about the implications of holding internet companies liable for user generated content found on their platform. Continue reading

Network Effects & APIs: Oracle v. Google in 2018

Posted By: Alek Emery

  1. Introduction

OracleLogoThis March, the Circuit Court of Appeals for the Federal Circuit issued its most recent decision regarding a copyright dispute between Oracle and Google going back to 2012. This ongoing battle over the copyrightability of elements of Oracle’s Java API has drawn out for years and created significant uncertainty in the software industry. Generally speaking, the dispute raises questions about the protections available for software under copyright law for Application Programming Interfaces (APIs) that facilitate communication between software components and programs. In 2014, the Federal Circuit first reversed the decision of a district court in the Northern District of California on the copyrightability of Oracle’s Java API elements, but left open the possibility for Google to raise a fair-use defense. Now, several years later, the appellate court has ruled that the copying by Google of some portions of the Java API packages was not a fair use as a matter of law. This article is intended to provide a brief overview of the dispute and the aspects of copyright protections available for software that are implicated. Subsequently, the decision will be discussed within the larger context of the goals of copyright law and promoting the innovation of new technology and ideas. Continue reading

Email Spammers Have Been Taking Advantage of Consumers and Providers for Decades. Has the CAN-SPAM Act of 2003 Improved the Problem, or Made it Worse?

Posted By: Jaren Martineau

Emails

By PCL-BO [CC-BY-SA-2.5], via Wikimedia Commons

Large volumes of spam email messages have been congesting internet servers and email boxes now spanning multiple decades. There have been multiple solutions proposed in order to address this challenge. In 2003, the federal government adopted the CAN-SPAM Act in an effort to address the problem. What has been the result? Has the Act had a positive effect on the problem? Continue reading

Many People in Modern Society Use Cryptography Regularly. Are They Aware of its Potential Implications Upon the Freedom of Speech and National Security?

Posted By: Jaren Martineau

pad-lockMost of us who use smart phones and the internet have heard a thing or two about cryptography. Fewer, however, have any kind of understanding about how it works and how it impacts national security or the freedom of speech that is protected by the First Amendment. In order to understand these impacts, it is necessary to have some background understanding about cryptography, its history, and the First Amendment of the United States Constitution. Continue reading

VPNs and Terrorists: Why You Should Care

Posted By: Jordan Brunner

VPNOn Friday, December 11, 2015, FBI agents arrested Mohamed Yousef Elshinawy at his home in Edgewood Maryland. Elshinawy was charged the following Monday with attempting to provide material support to ISIL and lying to the FBI. Specifically, Elshinawy communicated with representatives of ISIL, who wired him approximately $9,000 over the course of a few months in 2015 for “operational purposes” in the United States.

Elshinawy plead guilty to the charges in August of last year. The search warrants in the case were recently unsealed, prompting a summary of the case by Seamus Hughes for Lawfare here. The case has been described as novel because it is the “only [publicly] known case in which the Islamic State sent thousands of dollars to an individual in the United States to fund an attack.” But one aspect of Elshinawy’s behavior is concerning not for its novelty, but for its ordinariness. As part of a planned operation within the United States, Elshinawy purchased a virtual private network (VPN) to facilitate the transfer of money over PayPal and use other services.

It is not clear from the search warrants whether the FBI requested that corporation providing the VPN service unmask Elshinawy’s identity. The warrants merely state that the investigation uncovered “the use of a VPN . . . service” by Elshinawy and that it was used for money transfers. But the factual scenario presented by Elshinawy’s lends itself to an interesting hypothetical. What if a VPN provider wouldn’t (or couldn’t) unmask a user’s identity on the request of law enforcement, either through a subpoena or a court-issued warrant? What if, in an effort to mimic Apple’s behavior when it was ordered to unlock the San Bernadino attacker’s encrypted iPhone, the VPN insisted that it would be contrary to its business model to try to unmask the identity of one of its users? Continue reading

Cryptojacking: The Nexus Between the Law, Cryptocurrency, and Computer Hardware

Posted By: Alek Emery

  1. Introduction

bitcoin2In May of 1999, researchers at the University of California Berkeley began the SETI@home project. The basic concept behind the project is asking people to “donate” some of their spare computing power to help process blocks of the immense amount of observational data the Search for Extraterrestrial Intelligence Project acquires. Now, almost two decades later, the development of certain types of cryptocurrencies—in particular Monero—has transformed that concept into a way to commercialize internet traffic. This browser-based cryptocurrency mining can occur without a website visitor’s knowledge or consent if he or she visits a webpage running a browser-based mining script—a phenomenon known as cryptojacking. The implementation of this type of web-browser based mining raises significant legal concerns—especially when there is no notice or “opt-out” provided to visitors regarding the script. The viability of such an implementation is also dependent on how the market—and mining the various different cryptocurrencies—continues to develop in light of rapidly evolving technological challenges and regulatory concerns. This post is intended to provide an overview of how cryptojacking utilizes the technologies behind cryptocurrencies to generate revenue, and subsequently examine the legal and regulatory issues surrounding cryptojacking. Continue reading

The Copyright Act and Video Games

Posted By: Jensen Nevitt

controllerVideo games are inexorably linked to computers, and as technology advances in the field of computers, so to does the technology of gaming. Originally, gaming was done on arcade machines. Gaming today is done mostly through the use of a gaming console or personal computer. Until Atari, Inc. v. North American Philips Consumer Electronic Corp. was decided by the 7th Circuit Court of Appeals in 1982, it was unclear whether the Copyright Act would apply in the realm of video games. Unlike computer software, which is protected as a literary work under the Copyright Act, video games are protected as audiovisual works. Including video games in the protection under the act has had a profound influence on the gaming industry. Continue reading