This page will be updated throughout the 2019 Texas Legislative Session with bills relevant to cybersecurity.

​Most recent update: 2019/01/22

SB 64, Senator Nelson:

Current Status – Filed

SB 64 mostly amends the Texas Government Code, with some amendments to the Education Code, the Business and Commerce Code, and the Utilities Code. You can find the entire text in the link above.

Some of the meatier portions of the bill involve incentivizing cybersecurity education in colleges, establishing a cybersecurity information sharing program among government and private entities, and routinely assessing the cyber preparedness of various state entities.

HB 350, Representative Blanco:

Current Status – Filed

This bill amends Section 2054.512(b) of the Government Code to include “one member who is an employee of the Elections Division of the Office of the Secretary of State” on the cybersecurity council.

Essentially the bill is seeking to prioritize election security through the state’s current cybersecurity council.

HB 351, Representative Blanco:

Current Status – Filed

This bill wraps cybersecurity under the protection of the Texas Disaster Act of 1975, and it permits the Department of Information Resources to disconnect computer networks in response to cyber attacks.

HB 904, Representative Minjarez

Current Status – Filed

This bill directs the University of Texas at San Antonio to conduct a study into cyber attacks against financial institutions.

       (b)  The University of Texas at San Antonio shall conduct a
 study regarding cyber attacks against financial institutions in
 this state. The study must include:
              (1)   an evaluation of:
                    (A)  the prevalence and impact of and breaches of
 system security resulting from cyber attacks on financial
 institutions; and
                    (B)  the vulnerability of financial institutions
 to cyber attacks and the security risks cyber attacks present to
 those institutions;
              (2)  the identification of:
                    (A)  any projects necessary to modernize the
 security systems of financial institutions;
                    (B)  any recommendations to improve the
 cybersecurity infrastructure of financial institutions; and
                    (C)  best practices to prevent or lessen the
 impact of cyber attacks on financial institutions; and
              (3)  an examination of any other aspect of cyber
 attacks on the operation of financial institutions as considered
 appropriate by the university.

​This paper took a theoretical look at the legal personhood of AI. It was written in collaboration with Ritika Gopal, Associate Counsel at SXSW. You can find her at ritikagopal.com.

Introduction

Technology is being sophisticated at incredible rates. There are people who have lived through the invention of flight, landing on the moon, iPhones, and DeepMind.[i] Technology has moved on from tools of human advancement to full-on integration with the human body.[ii] The potential for body modifications to surpass the abilities of the natural human state are here.[iii] Likewise, artificial intelligence is advancing at an incredible rate[iv] and is getting closer to modeling the human learning process.[v] There has not been much thought given to whether or how a conglomeration of these advancing technologies would accumulate rights, or if rights can already be conferred under existing legal theories (largely because of the unanticipated rate of development). This memo explores legal theories establishing possible rights of robots.
​

I. An Overview of the Robotic Technologies

  A. The “Parts”

  1. Nervous System Integrated Technologies 

The spectrum of available biotechnology is widespread and growing. Cochlear implants work to replace the functionality of hairs on the inner ear, which vibrate the drum and translate into sound. The implant then sends a signal directly to the auditory nerve, and the brain interprets the signals as decipherable sound.[vi]

Like the Cochlear implants, the visual prosthesis works by sending signals from a camera feed directly to the optic nerve. The current technology is limited to sixty electrodes, which limits the resolution of the visual data available for the brain to process.[vii] Currently, people using visual prostheses can see general shapes as well as distinctions in light. The full extent of the capability of the device is still being studied, since the brain takes time to adjust to the information and patients have different outcomes when using the devices.[viii] It seems likely that the technology will only improve with time, and the limits of the technology are unknown. Technology has been implemented that allows people without limbs to be fitted with prostheses that include a sense of touch.[ix] The technology, again, works by fitting directly to the functional nerves in the patient’s affected limb. The brain learns to interpret signals sent by a processor which is managing the prosthesis’s movements. Interestingly, there have even been advances in technology that have allowed paralyzed monkeys to regain motor function.[x] There is also technology currently prototyped and tested that improves human motor functions beyond normal limits.[xi]

    2. External Technology with Functional Replacement 

People with nonverbal autism rely on tools, including technology based ones, to communicate with others.[xii] Unlike tools for the deaf or mute that may facilitate the expression of language already mentally formed, these tools provide a sort of communication mediation between the person with autism and a verbal person. In other words, they provide the functionality of language expression itself where the individual would otherwise have to resort to gesturing.[xiii]

There are several technologies already on the market which can be used to supplement standard biological functionality.[xiv] The technology serves as an aid to fully functional people as well as people with a variety of disorders or injuries. A lot of these technologies aim to mimic tasks that we as people do on a regular basis and have led researchers to attempt to mimic the entirety of human functionality.

    3.  Artificial Intelligence 

Artificial Intelligence is an attempt to synthetically recreate the human mind and thought processes.[xv] The technology is still a long way away from matching human intelligence, but that’s not to say it can’t match up on specific tasks. AI is not necessarily the overwhelming impression of the entirety of a human mind, but can include simple technology such as calculators or GPS enabled maps.[xvi] Researchers are also attempting to mimic the sensation of pain in AI as a beneficial operating function.[xvii]

  B. The “Whole” 

The examples above reflect a growing acceptance of tasking tech to perform traditionally human functions. Now, certain biotechnologies can account for things like human perception, sensory feeling, function, and more. As use of such technologies grows, the logical conclusion of replacing human body parts with tech, then, is a “human” that is entirely comprised of robot parts. These robots–popularly known as androids–have no element of life to them, yet bear striking resemblance to humans. Extending beyond physical similarity to humans, they are increasingly able to “mimic lifelike behavior, react to social gestures and use sounds, movement, and facial expressions to signal emotions in a way that we immediately recognize, [possibly targeting] our involuntary biological responses.”[xviii] As legal scholar Kate Darling puts it:

In general, as more robots enter our lives and our homes, we are experiencing an increase in robots designed to engage us socially. This trend is not likely to slow. Social abilities will continue to improve, and robotic companies will become more common as technology advances. Makers of toys, for example, have been working for decades to increase interactivity and engage children by creating the illusion of intentional behavior in robotic playthings. This type of interactivity design is not restricted to children’s markets, and has multiple potential uses.[xix]

As technology is further advanced and integrated with human life, it is easy to imagine a reality in which these human-like, “social” robots are remarkably sentient and autonomous.In fact, one could argue that robot sentience in a sense already exists today, albeit in a cruder form. For example, deep learning, which is a narrow subset of machine learning driving the current AI boom, solves problems by tapping into neural networks that simulate human-decision making.[xx] There is a demand for robots that we can relate to; the numbers speak for itself: In 2015, the world market for service robots was estimated to have been worth nearly $3.7 billion, and revenues are forecasted to rise to around $15 billion in 2020.[xxi]

Popular examples of “social” robots that are currently on the market or in development today include: the robotic seal Paro, a therapeutic device used in nursing homes that reacts to touches, words, and people’s actions and learns individual voices[xxii]; Rex, the world’s first bionic man complete with artificial organs, synthetic blood and robotic limbs[xxiii]; IBM’s Multi-Purpose Eldercare Robot Assistant, an intentionally cute, anthropomorphic robot that functions to help elderly people in their homes[xxiv]; Honda’s ASIMO robot, a humanoid robot capable of human-like running[xxv]; Toyota’s Kirobo Mini, a miniature talking robot meant to keep drivers company by taking into account and responding to its companion’s likes, dislikes, and facial expressions.[xxvi] The benefits of such technologies must not be understated: These robots interact with humans on a social level, mimicking intentional human-like behavior and decision-making as a means towards bettering human life and society.

People are already eager to project emotion into superficially humanized robots, and it is not far off when we integrate these superficially humanized robots with actually functional biological replacements–i.e., giving Paro a feeling arm, seeing eyes, and a sense of pain.

   C. Is the Sum of “Parts” Greater than the “Whole”?  

Here is where the law meets psychology. In the words of Gestalt psychologist Kurt Kofka, “The whole is other than the sum of the parts.” What this means is that the “whole” is imbued with a reality of its own, independent of the “parts” that compose it. An individual is more than just a collection of body parts and organs. Applied to the wide range of robot technologies described above, several questions arise: At what point along the spectrum does a robot attain its own so-called reality, similar to that of a human? Looked at through the lens of law and policy, at what stage of intelligence design should a robot be considered as possessing legal personhood and agency?

Consider the following thought experiment: If a person loses an arm due to an accident, he is still considered a “person” in the eyes of the law. That certainly does not change if he proceeds to lose an eye, another arm, both legs. Let us assume that he has had a very unfortunate life and has lost functionality in almost every body part and organ. Let us also assume that biotechnology is incredibly advanced. If he were to replace everything except his brain with biotechnologies, he would likely still be considered a “person,” as he can still think and feel like a human–much like RoboCop.

As we all probably know, the human brain is an organ in the body that processes and reacts to external stimuli; it also makes decisions based on past experiences. Many advanced machine processors, however, do just the same. It is harder than most people think to conceptually differentiate between the two. One could argue that the brain is distinguished from a processor through emotion, fear, or self-preservation, which are the things that are generally thought to contribute to personhood. However, Ashlyn Blocker and Olivia Farnsworth, girls who suffer from rare genetic disorders that prevent them from feeling pain, are direct counterexamples to that notion. Olivia Farnsworth was run over and dragged down the street by a car, yet got up without any complaints and started walking back to her mom confused as to why she was screaming.[xxvii] Her brain does not have the same conception of self-preservation and fear of danger as do normal human brains, though it is safe to say that she is still a “person” in the eyes of the law. Therefore, the primary issue is whether there are legally cognizable, substantive differences that distinguish a human brain from a humanoid processor.

II. Legal Ramifications: Personhood and Agency

  A.  Upgraded Persons 
Current technology already allows for the replacement of body parts at near-normal performance levels, and superior performance levels of replacement parts are sailing our way from the horizon. As these technologies are implemented, questions begin to arise about the legal ramifications of such technology.

    1. Product Liability for Defective Design 

One area of law that is affected by such technologies is product liability under tort law. Products liability law has a couple of tests when looking at defective designs.

Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. … Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design.[xxviii]

These tests can get really complicated quickly–especially when applied to technologies whose sole function is to simulate the human sensory experience, including pain. For example, when a person loses a limb, it goes without saying that they have suffered a great loss and restoration of that loss is something one would long for: anyone would struggle to answer the question of whether including the sensation of pain in a prosthesis is a valuable and reasonable aim in the design of a prosthesis. If a person could simply regrow their limb, they would, and that would include the sensation of pain. There are reasonable arguments on both sides as to whether including the sensation in a prosthesis is valuable.

    2. Privacy Considerations 
The Supreme Court has ruled on cases where thermal imaging was used to establish probable cause that a person was growing marijuana inside of their home.

We have said that the Fourth Amendment draws “a firm line at the entrance to the house.” That line, we think, must be not only firm but also bright—which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. … Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.[xxix]

One can imagine a scenario in which the bionic eye has infrared capabilities, such as for being able to see at night. If that sort of technology becomes common for people experiencing blindness, the government may find itself no longer using “a device that is not in general public use.” Additionally, imagine a scenario in which a police officer has lost an eye and has been given the option for a bionic replacement by insurance. It may be wrong to limit the options of the officer to a lesser technology for the sake of 4th amendment concerns against unreasonable searches. Or, if the technology seems too outlandish, instead of an eye, imagine Cochlear implants reaching a point where they would be able to hear things in greater detail than any biologically standard person, and an officer ends up overhearing a defendant confessing to his attorney. These considerations will only broaden as time goes on.

    3. The Americans with Disabilities Act  
What will happen as time goes on and these bionics progress from crutch to advantage, “[a]n individual with disabilities is defined as: 1. A person who has a physical or mental impairment that substantially limits one or more major life activities; 2. A person who has a record of such an impairment; or 3. A person who is regarded as having such an impairment.”[xxx] At a certain point, hiring a police officer with a Cochlear implant will be more enticing than an officer with regular hearing. Airlines may begin hiring pilots who have better than standard vision. It may become the case that people without bionics will be “regarded as having such an impairment,” but the impairment will be a result of economics instead of a consequence of biology. It may well become the case that biologically standard people will be a protected class.

These concerns may even strengthen an argument for limiting the development of robots to strictly human capacities, in which case, we have some other questions to answer.

  B. New Persons 
This year, the legal affairs committee of the European parliament voted, 17-2, to put together “a set of regulations to govern the use and creation of robots and artificial intelligence, including a form of ‘electronic personhood’ to ensure rights and responsibilities for the most capable A.I.”[xxxi] Such legislative thinking would have been unthinkable in the 80s or 90s. The 1987 case Comptroller of the Treasury v. Family Entertainment Centers illustrates how far perceptions about robotics have come.

In that case, a Maryland special appeals court had to consider whether the life-sized, animatronic puppets that dance at Chuck E. Cheese children’s restaurants trigger a state tax on food “where there is furnished a performance.”[xxxii] Reasoning that a performance “has connotations of inherent human input that leaves room for spontaneous imperfections during the exhibition of skills or talent,” the court determined that the Chuck E. Cheese robots were outside of the scope of the statute, despite acknowledging that they “are designed to give the impression that they are performing.”[xxxiii] The court stated, in pertinent part:

[A] pre-programmed robot can perform a menial task but, because a pre-programmed robot has no “skill” and therefore leaves no room for spontaneous human flaw in an exhibition, it cannot “perform” a piece of music . . . Just as a wind-up tow does not perform for purposes of [the statute,] neither does a pre-programmed mechanical robot.[xxxiv]

Today’s robots have clearly surpassed Chuck E. Cheese-era animatronics. At this juncture, the overall question threading this analysis is whether and how legal conceptions of personhood change when “parts” are ratcheted up to a new, much more sentient “whole.” In other words, when is personhood gained or lost? And relatedly, do both occur at the same point? Felons, for example, can lose key aspects of legal personality including the right to vote, the right to serve on a jury, and the right to own and purchase firearms. In some cases, they can be forced to join a registry (e.g., sex offenders). People who are placed under guardianship can also lose many rights. These examples illustrate that there is a gradation to legal personhood. It is somewhere along that gradation that robots lie.

Minor children are a prime example of quasi-persons, as they do not enjoy the full rights of personhood that adults do. They cannot become parties to a contract or involved in various legal arrangements. In this sense, they are not legal persons. Yet, the killing of a child is considered murder in the same way that the killing of an adult is, and so a child is considered a legal person in this sense. In Garratt v. Dailey, a Washington district court had to consider when a child’s decision can be considered legally binding.[xxxv] There, a child had pulled a chair from under a woman, causing her to sustain serious injuries.

The court had to determine whether the child knew, with substantial certainty, at the time he removed the chair, that that the woman would attempt to sit down where the chair had been. In the court’s words:

[T]he case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra.[xxxvi]

Crucially, the court inferred intent from knowledge, that too of a minor’s. Applied to robots, it seems reasonable to conclude that some robots will eventually become a sort of quasi-person or quasi-agent in the view of the law before reaching full personhood. To add to that, corporations are considered legal persons in the eyes of the law.[xxxvii] The larger point is that the sophistication of such robots warrants placing them on the spectrum of legal personality.

Even without the full intelligence of a person, the law considers protections for limited intelligence, limited functionality creatures through animal cruelty laws.[xxxviii] The inclination to protect living beings from sensations of pain or cruel mistreatment indicates a conceptual desire to protect things that feel pain from situations under our immediate control. There is no discussion in case law of the moral basis for why the protection is afforded to animals despite a lack of personhood.[xxxix] Possibly because it is such an intuitive idea that inflicting wanton pain and suffering on an animal is wrong. While silence on the moral basis does not help elucidate the legal motivations for protections against cruelty to animals, the fact that there is a seemingly arbitrary line drawn against causing pain to a creature implies a generally agreed upon notion against inflicting pain unnecessarily. If developing pain processors for robots can be a beneficial function for robots, as discussed above, or has some higher moral relevance for arguments of inclusion, then it stands to reason that the protection against pain should probably extend to robots.

III. Conclusion

No one would argue that the loss of a limb, or that a person with nonverbal autism is any less of a person, but the fact that we strive to replace these functions speaks to how each function contributes to personhood. At what point does the accumulation of functions contributory to personhood equate to personhood? And once it does equate to personhood, does the loss of a solitary function revert the new person back to non-personhood? Does granting personhood to a nontraditional person somehow take away from the value of personhood itself? No one needs to answer these questions just yet, but they are questions that should be considered while there is still time to do so without ethical pressures.

IV. Sources

[i] John M. Adams, “GRG World Supercentenarian Rankings List” Gerontology Research Group (Feb 23, 2017), http://supercentenarian-research-foundation.org/TableE.aspx.

[ii] “Girl Born Deaf Given The Gift Of Hearing With Cochlear Implants”, CBS New York (February 20, 2017),  http://newyork.cbslocal.com/2017/02/20/girl-born-deaf-given-the-gift-of-hearing-with-cochlear-implants/.

[iii] Dan Kedmey, “This Bionic Lens Could Give Everyone Perfect Vision”, Time (May 22, 2015), http://time.com/3894170/bionic-eye/.

[iv] Jack Clark, “Why 2015 Was a Breakthrough Year in Artificial Intelligence”, Bloomberg (December 8, 2015), https://www.bloomberg.com/news/articles/2015-12-08/why-2015-was-a-breakthrough-year-in-artificial-intelligence.

[v] Sam Shead, “Google DeepMind: What is it, how does it work and should you be scared?”, Techworld (Mar 15, 2016), http://www.techworld.com/personal-tech/google-deepmind-what-is-it-how-it-works-should-you-be-scared-3615354/.

[vi] “Understanding Cochlear Implants”, WebMD, http://www.webmd.com/healthy-aging/understanding-cochlear-implants.

[vii] Jim Stingl, “Blind the past 25 years, Wauwatosa man fitted with bionic eye to stimulate sight”, Journal Setinel (Feb. 25, 2017), http://www.jsonline.com/story/news/columnists/jim-stingl/2017/02/25/blind-past-25-years-wauwatosa-man-fitted-bionic-eye-simulate-sight/98363052.

[viii] Nicole Kobie, “Blind NHS patients to get bionic eyes”, ITPRO (22 Dec, 2016), http://www.itpro.co.uk/public-sector/healthcare/27828/blind-nhs-patients-to-get-bionic-eyes.

[ix] James Gallagher, “Bionic Am restores sense of feeling”, BBC Health (9 October 2014), http://www.bbc.com/news/health-29538385.

[x] Rae Ellen Bichell, “Monkeys Regain Control Of Paralyzed Legs With Help Of An Impant”, NPR (November 9, 2016), http://www.npr.org/sections/health-shots/2016/11/09/501029887/monkeys-regain-control-of-paralyzed-legs-with-help-of-an-implant.

[xi] Gregory Mone, “Building the Real Iron Man”, Popular Science (April 9, 2008), http://www.popsci.com/scitech/article/2008-04/building-real-iron-man.

[xii] “Proloque2Go”, http://www.assistiveware.com/product/proloquo2go.

[xiii] Lisa Jo Rudy, “About a Third of People with Autism Use Little or No Spoken Language” Verywell (December 30, 2016), https://www.verywell.com/what-is-nonverbal-autism-260032.

[xiv] Jeannie Krull, “Brain Injury and Assistive Technology: 10 Devices for Memory Loss”, Assistive Technology (August 14, 2014), http://ndipat.org/blog/brain-injury-and-assistive-technology-10-devices-for-memory-loss/.

[xv] Cade Metz, “The Best AI Still Flunks 8th Grade Science” Wired (Feb. 16, 2016), https://www.wired.com/2016/02/the-best-ai-still-flunks-8th-grade-science/.

[xvi] Arend Hintze, “Understanding the four types of AI, from reactive robots to self-aware beings”, The Conversation (November 13, 2016), http://theconversation.com/understanding-the-four-types-of-ai-from-reactive-robots-to-self-aware-beings-67616.

[xvii] Evan Ackerman, “Researchers Teaching Robots to Fell and React to Pain” IEEE Spectrum (24 May 2016), http://spectrum.ieee.org/automaton/robotics/robotics-software/researchers-teaching-robots-to-feel-and-react-to-pain.

[xviii] Darling, Kate, Extending Legal Protection to Social Robots: The Effects of Anthropormophism, Empathy, and Violent Behavior Towards Robotic Objects (April 23, 2012), 7. Robot Law, Calo, Froomkin, Kerr eds., Edward Elgar 2016; We Robot Conference 2012, University of Miami [hereinafter referred to as Extending Legal Protection to Social Robots].

[xix] Darling, Extending Legal Protections to Social Robots at 3 (internal citations omitted).

[xx] Hope Reese, “Understanding the differences between AI, machine learning, and deep learning”, TechRepublic (February 23, 2017), http://www.techrepublic.com/article/understanding-the-differences-between-ai-machine-learning-and-deep-learning/

[xxi] Wilmer Zhou, “Robots Are Going Their Two Separate Ways”, Robotics Tomorrow (Feb. 23, 2017), http://www.roboticstomorrow.com/article/2017/02/robots-are-going-their-two-separate-ways-/9541.

[xxii] Anne Tergesen & Miho Inada, “It’s Not a Stuffed Animal, It’s a $6,000 Medical Device”, The Wall Street Journal (June 21, 2010), https://www.wsj.com/articles/SB10001424052748704463504575301051844937276.

[xxiii] Barbara Ortutay, “‘Bionic Man’ walks, breathes with artificial parts”, NBC News (Oct 11, 2013), http://www.nbcnews.com/technology/bionic-man-walks-breathes-artificial-parts-8c11377326.

[xxiv] Chris Weller, “IBM is working on a robot that takes care of elderly people who live alone”, Business Insider (Dec. 28, 2016), http://www.businessinsider.com/ibm-pepper-robot-elder-care-2016-12.

[xxv] “Frequently Asked Question”, Asimo, https://asimo.honda.com/downloads/pdf/asimo-technical-faq.pdf.

[xxvi] Jethro Mullen, “Toyota wants thi sbaby robot to be your friend”, CNN Tech (October 4, 2016), http://money.cnn.com/2016/10/03/technology/toyota-robot-kirobo-mini/.

[xxvii] “Girl With Rare Chromosome Condition Dubbed ‘Bionic’ As She Rarely Sleeps Or Eats And Doesn’t Feel Pain”, The Huffington Post (18 January 2016), http://www.huffingtonpost.co.uk/2016/01/18/bionic-girl-chromosome-6-deletion-_n_9007464.html.

[xxviii] Saller v. Crown Cork & Seal Co., Inc., 187 Cal. App. 4th 1220, 1231–32 (2010).

[xxix] Kyllo v. United States, 533 U.S. 27, 40 (2001) (internal citations omitted).

[xxx] Covered Persons—Disability Defined, Legal Almanac: The Americans With Disabilities Act § 2:5.

[xxxi] Alex Hern, “Give robots ‘personhood status’, EU committee argues”, The Guardian (12 January 2017), https://www.theguardian.com/technology/2017/jan/12/give-robots-personhood-status-eu-committee-argues.

[xxxii] Comptroller of the Treasury v. Family Entm’t Ctrs., 519 A.2d 1337, 1338 (Md. Ct. Spec. App. 1987).

[xxxiii] Family Entm’t Ctrs., 519 A.2d at 1339.

[xxxiv]  Id.

[xxxv] Garratt v. Dailey, 46 Wash. 2d 197 (1955).

[xxxvi] Dailey, 46 Wash. 2d at 200.

[xxxvii] See First Nat. Bank of Boston v. Bellotii, 435 U.S. 765, 777 (1978) (“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”); see also Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) (where the Court implicitly recognized a corporation’s free speech rights as a legal person ).

[xxxviii] Nathan Heller, “If Animals Have Rights, Should Robots?” The New Yorker (November 28, 2016), http://www.newyorker.com/magazine/2016/11/28/if-animals-have-rights-should-robots.

[xxxix]See Gianna M. Ravenscroft, “Overview of Texas Animal Cruelty Laws”, Animal Legal and Historical Center (2002), https://www.animallaw.info/article/overview-texas-animal-cruelty-laws.

Here’s a quick disclaimer. This is not specific legal advice, this article serves as an educational resource only. You should always speak to an attorney about your specific situation to get the best advice for you. If you’re looking for representation you can contact me here.

When you are trying to build a brand, the last thing you want to do is​ run into legal trouble. Social media and influencer campaigns can be a great way to get your product or service noticed. You might try to make a post go viral by having some sort of contest where people share the content. These methods can be fantastic for the growth of your brand. However, it’s important to remember that such action is regulated by the FTC, and you should strive to be in compliance with their rules.

In a nutshell, make a clear, good faith statement regarding any compensation or relationship between a company and an endorsement.

1. When endorsing a product, any relationship with the owner of the product should be disclosed.

A good rule of thumb is that the relationship should be disclosed if the audience’s reaction to your endorsement would be affected by the relationship. Being “off the clock” doesn’t affect the applicability of the rules, any relationship should be disclosed even if an endorsement is made during off-hours.

2. It doesn’t really matter if the relationship has been ongoing for some time and people might generally associate the person with one’s brand.

If someone’s employer is listed on, for example, their Facebook page, they should still disclose their relationship on each post that’s endorsing the employer. If a “significant minority” of the audience doesn’t realize that an endorsement is paid, then it is subject to FTC sanctions. Furthermore, one shouldn’t assume that the audience is aware of industry practices when determining if the relationship should be explicitly stated.

3. The medium through which the endorsement is delivered does not matter.

Words aren’t required to be considered an endorsement, simply posting a picture or video which includes a product can be considered an endorsement (however, FTC staff views TV product placement as outside of the scope of an endorsement).

4. Paid employees or contractors are not the only ones who can get you in trouble for social media endorsements.

When people perform an action to gain entry to a contest, a discount, or some other non-monetary compensation, the FTC will likely still consider it a compensated endorsement subject to sanctions. For example, if one were to hold a contest that requires a Facebook “Like” or “Share,” one should include a clear disclosure to avoid FTC sanctions.

5. Language disclosing a relationship between an endorsing entity and the entity receiving the endorsement does not have to be in a specific way.

However, it does has to specify the nature of the relationship in an accurate way: the language should clearly define the nature of the compensation for the audience of the endorsement (e.g. “I was paid to review this product,” “I work for this company,” “I received this product for free,” “I’m entered to win a gift card,” etc.). The disclosure should be attached and viewable on any actual media – a link to a disclosure, or a separate material listing disclosures is not enough. The disclosure should be conspicuous and clear (e.g. at intervals throughout a livestream, at the beginning of a video on YouTube, easy to read font at the top of an ad, before a radio pitch is made). Endorsements also can’t be lies – no reviewing a product you’ve never tried, no bold lies (you hated it, but say it’s great).

Final Notes
​
Companies should make reasonable efforts to ensure that the proper disclosures are made when people endorse them: informing endorsers of the requirement to disclose and spot-checking should be enough.

The FTC is free to investigate any organization affecting commerce other than banks. Any investigation which merely looks for an infraction will remain private. If the FTC finds an infraction, they can exercise their judgement in either simply requesting a change in business practices or pursuing legal action.

​​Here’s a quick disclaimer. This is not specific legal advice, this article serves as an educational resource only. You should always speak to an attorney about your specific situation to get the best advice for you. If you’re looking for representation you can contact me here.
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If your website is designed for user engagement, you might know that you can be held liable for copyright infringement. Here are some strategies you might try in addition to registering a DMCA agent for the protection of safe harbor provisions.

1. UGC Intro
User Generated Content can add value to any platform, especially in online gaming, where the strength of the community’s involvement is the primary driver of success. However, giving control of the game’s content to one’s users can be a risky venture. This is the world where when the internet is given the ability to name a landmark for all time, they vote on names like Dickbutt and Boaty McBoatface.  One should never underestimate the willingness of internet users to push boundaries.
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For example, this was submitted to a contest to pick New Zealand’s new flag.

With that in mind, there are steps that one can take to limit one’s liability in the case of a bad actor using one’s game engine. This guide will address copyright issues specifically.
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a. City of Heroes Lawsuit
In 2004, a lawsuit emerged over the game, City of Heroes, in which,
“[Marvel singled] out a game feature for creating “a gigantic, green, ‘science-based tanker’-type hero that moves and behaves nearly identically” to the “Hulk.” Players can also create a “mutant-based” hero powers and a costume nearly identical to Marvel’s “Wolverine,” according to the suit. The New York-based company also took issue with the ability of players to go so far as to name their superhero creations after Marvel comic book characters. ”

Marvel had sued game makers NCSoft and Cryptic Studios over their game, City of Heroes. City of Heroes was a massively multiplayer online role-playing game where players were able to custom design their own superheroes with a variety of powers, origin stories, costumes, and appearances to suit their own personal style, and their characters would then embark on a journey to defend the city from arch-enemies, mutants, and various supervillains. Marvel took issue with the ability to custom create characters nearly identical to their intellectual property and filed a lawsuit against NCSoft and Cryptic Studios.

User-built characters in City of Heroes alongside their Marvel-owned counterparts.

2. What is secondary infringement
Though the presence of direct infringement is a prerequisite to these claims, there are issues in copyright, called secondary infringement, that are particularly salient to games that encourage user generated content:
contributory infringement, where a secondary party “[1] with knowledge of the infringing activity, [2] induces, causes or materially contributes to the infringing conduct of another.”
vicarious liability, where a secondary party “(1) has the right and ability to control the infringer’s acts and (2) receives a direct financial benefit from the infringement.”
Inducement of infringement, where a secondary party “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement”

a. Copyright Infringement
In order for the company to be found liable for secondary forms of infringement, there must first be a direct infringer.

“To the extent that the infringer is the agent of another, the master can be held culpable for the infringement. If the infringer is the employee of a corporation, as often happens, then the corporation may be held liable. For example, it has been held that if a writer-employee unlawfully copies a work, the corporate employer is liable for the resulting infringement. … The writer of infringing literary material upon which an infringing motion picture is based is liable individually for such writing and, in addition, is regarded as a contributory and joint tortfeasor with respect to the infringing motion picture, even though his participation was limited to writing the script and did not encompass any part of the production, distribution, or exhibition of the resulting motion picture.”

To then find direct infringement:
A party is directly liable for copyright infringement if it exercises an exclusive right of a copyright owner without authorization (17 U.S.C. § 501(a)). These exclusive rights include the rights to:
Reproduce a copyrighted work.
Prepare derivative works based on a copyrighted work.
Distribute a copyrighted work to the public.
Perform a copyrighted work publicly (this includes the right to perform a copyrighted sound recorded through a digital audio transmission).
Display a copyrighted work publicly.
(17 U.S.C. § 106.).

If the company’s products are used by an infringer, as described in the above list, then the company may have to deal with a lawsuit for secondary infringement. Particularly relevant here, are the rights to reproduce a copyrighted work and the rights to prepare derivative works based on a copyrighted work. As was apparent from the earlier image, user generated content can lead to reproductions of copyrighted material. Derivative works would be something like creating a “Son of Superman” type character- in other words, a character or story that would not exist but for the copyrighted work.

b. Contributory Infringement
Contributory Infringement is when the company takes actions that make someone else’s infringement easier to accomplish either through encouragement or actual assistance; the company must also know that infringement is occurring, but willfully turning a blind eye is not a defense to the knowledge requirement. For example, if someone uses your platform to infringe on other people’s copyright, and if you use images of that infringement in advertising, then you are encouraging infringement and you have knowledge of the infringement- satisfying the Contributory Infringement requirements.

c. Vicarious Liability
Vicarious Liability occurs when the company is in a position to stop people from infringing on a copyright but doesn’t do anything about infringement, and the company also receives a direct benefit from the infringement. For example, if you run a video hosting site where you make money on the advertisements shown to users, and you allow people to upload brand new movies to your website without any consequence, then you would have Vicarious Liability because you were making money as a consequence of the infringing material and you did nothing to stop it.

“Napster’s failure to police the system’s “premises,” combined with a showing that Napster financially benefits from the continuing availability of infringing files on its system, leads to the imposition of vicarious liability. We address the scope of the injunction in part VIII of this opinion. … Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Napster has both the ability to use its search function to identify infringing musical recordings and the right to bar participation of users who engage in the transmission of infringing files. ”

In the foregoing case, Napster was found to have Vicarious Liability for its lack of impetus to develop the structures necessary to deter and remove instances of copyright infringement from its systems. Napster, in fact, was a known platform for copyright infringement, and their reputation as such must have been known to them (not said in so many words in the case). Napster’s reputation for infringement was what bolstered their user base and led to its extreme popularity, and the court found that there was at least a significant potential for revenue based on their infringement model. The nail in the coffin was Napster’s lack of positive response to takedown requests from groups like Metallica and Dr. Dre.

Napster’s original platform with Metallica-infringing content listed.

If the company fails to develop deterrence practices, discouraging users from creating infringing material, the company is inviting potential lawsuits. Similarly, failing to implement takedown procedures, where copyright holds are assisted through a systematic takedown process of infringing material, can also leave one open to lawsuits. Finally, if the company allows themselves to be financially benefitted by the use of copyrighted material (for example, creating a fighting game where it’s possible to recreate the Ninja Turtles, and based on that fact gaining support from the Ninja Turtles’ fanbase) then the company is giving the courts the final required piece to grant a judgment against the company.

d. Inducement of Infringement
Inducement of Infringement is when the company provides a tool specifically for the purpose of furthering infringement. The tool can either be explicitly designed for infringement, or it can be shown that infringement is an obvious and substantial use of the tool. Not every court believes Inducement of Infringement is its own offense, some courts see it as a part of Contributory Infringement, but it’s something that the company should be aware of. For example, if you design software that specifically allows people to download videos off of Netflix, then you know that any users are conducting infringing activity and you are contributing to the ability of the users to infringe copyrights, so you would have Contributory Infringement.

“Here, evidence of the distributors’ words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. If liability for inducing infringement is ultimately found, it will not be on the basis of presuming or imputing fault, but from inferring a patently illegal objective from statements and actions showing what that objective was. ”

The court here found that Grokster was liable for Inducement of Infringement because the goal of the software was specifically to enable the infringing use. Grokster had sought to bypass the legal obstacles that Napster faced by having all file transfer searches and downloads be handled peer-to-peer, whereas Napster had a centralized server and the ability to take down infringing traffic. The fact that there were legitimate uses for the software was not enough to defeat the claim. If the software’s primary use had even been legitimate, the fact that the goal was to increase infringement would have led Grokster to be liable for Inducement of Infringement.

Grokster screenshot with infringing content.

3. Avoiding Secondary Infringement by Design
Before secondary infringement can be found, actual copyright infringement must be demonstrated. Therefore, one of the first lines of defense for your company is to try to prevent the possibilities for users to infringe copyrighted material. A necessary element of copyright infringement is “similarity,” so we will first look at ways to avoid instances of users being able to achieve similarity.

a. Substantial Similarity
The Substantial Similarity “test asks whether ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.’”  In the 9th Circuit, there are two prongs to Substantial Similarity tests, the extrinsic and the intrinsic tests.

“The extrinsic test is an objective test based on specific expressive elements: the test focuses on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in two works. E.g., Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985) (citation omitted).”

“The intrinsic test is a subjective test that focuses on “whether the ordinary, reasonable audience would recognize the defendant’s work as a ‘dramatization’ or ‘picturization’ of the plaintiff’s work.” Id. at 1292 (focusing on the total concept and feel of the two works) (citing Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985)).”

The court used both the extrinsic and intrinsic tests to determine substantial similarity during a dispute between Dr. Seuss Enterprises and Penguin Books.

“Penguin and Dove’s argument is based on an analytic dissection of the following elements:
infringement cannot be based on the title of the parody… ;
the design of the lettering of the words used in the accused work cannot be found to infringe… ;
the poetic meter used in Cat in the Hat known as anapestic tetrameter is no more capable of exclusive ownership than its well-known counterpart, iambic pentameter;
no claim of ownership may be based on the whimsical poetic style that employs neologisms and onomatopoeia…. ; and
the visual style of illustration using line drawing, coloring, and shading techniques similar to those used in The Cat in the Hat are not copyrightable.”

However, this kind of analytic dissection is not appropriate when conducting the subjective or “intrinsic test” (asking if an “ordinary reasonable person” would perceive a substantial taking of protected expression) under Krofft. Penguin and Dove’s contentions on this issue are thus unavailing. As for the objective analysis of expression, the district court’s preliminary injunction was granted based on the back cover illustration and the Cat’s Hat, not the typeface, poetic meter, whimsical style or visual style. For these reasons, we conclude that the court’s findings that Penguin and Dove infringed on Seuss’ copyrights are not clearly erroneous.

The infringing work was a parody of the OJ Simpson trial.

In this case, the court analyzed Penguin’s arguments on the extrinsic test, cited here for illustrative purposes, which are based on objective criteria that are data based and are not as easily disputed (e.g. it’s difficult to dispute that your poetic meter is not identical to another source’s since it’s an objective criteria), and found that the extrinsic test succeeded when applied to factors not argued by Penguin and their codefendant. They also found that when all of those extrinsic factors were taken together, the intrinsic test was shown to succeed because the infringing work gave off the sense of a Dr. Seuss work. The court found in Dr. Seuss Enterprise’s favor because both the extrinsic and intrinsic factors of the Substantial Similarity test were satisfied.

In the 5th Circuit, Substantial Similarity is determined under the ordinary observer test.
Under the ordinary observer test, the fact-finder examines whether the defendant
Copied from the plaintiff. To make this assessment, courts may allow:
expert testimony concerning indicia of copying; and
evidence of similarities concerning elements that may not be copyrightable.
Copied enough of the copyrightable elements of the plaintiff’s work to create substantial similarity between the works. Courts make this assessment using the ordinary observer test, which examines whether an ordinary observer would find the two works to have the same aesthetic appeal (see, for example, Peter Pan Fabrics, Inc., 274 F.2d at 489).

The named Peter Pan case explored the ordinary observer test as such:

“Both designs have the same general color, and the arches, scrolls, rows of symbols, etc. on one resemble those on the other though they are not identical. Moreover, the patterns in which these figures are distributed to make up the design as a whole are not identical. However, the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same. That is enough; and indeed, it is all that can be said, unless protection against infringement is to be denied because of variants irrelevant to the purpose for which the design is intended.”

The court declared that an ordinary observer would be unlikely to detect the differences enough to distinguish the sense of the pieces. Ultimately, the idea behind the decision was that if the copied design was actually copied and then slightly varied, the infringing intent was not going to be rewarded simply because of the minor variations introduced to get around the statutory rights of the copyright holder.

Peter Pan Fabrics: Original design on the left. Infringing design on the right.

The more discerning ordinary observer test is designed for cases involving both copyrightable and non-copyrightable elements. The object of this test is to extract the non-copyrightable elements from the analysis. The analysis is whether an ordinary person would consider the aesthetic appeal of the works the same if that person:
Ignored the copied portions that are unprotected by copyright.
Considered only the copyrightable elements of the plaintiff’s work copied by the defendant.
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i. Beating the Extrinsic Test
The Extrinsic Test “focuses not on basic plot ideas, which are not protected by copyright, but on ‘the actual concrete elements that make up the total sequence of events and the relationships between the major characters.’ ”

When developing a user generated content engine, one is likely to imagine the desired outcomes and then work backwards to provide the necessary tools to the end user. When you are developing the vision for the video game’s outcome, it would be wise to document the creative process and the steps taken along the way. Anything you can do to document that your intended outcome was substantially different from a potential litigant’s copyrighted material may serve to deter potential lawsuits. Publishing data on that process may even be a wise move, since the consumer often enjoys those behind the scenes looks at stories that they have connected with, and it serves as a marker for potential litigants and their counsel that their expensive lawsuit may be in vain.

“Independent creation is an affirmative defense, evidence of which may be introduced to rebut a prima facie case of infringement.”  Independent creation is a showing that your project’s development was not dependent on another person’s work. By continuously documenting your work processes, and showing that your ideas developed out of an independent kernel, you will be able to better prove independent creation. “We have previously determined that independent creation is an affirmative defense and may be used to rebut a prima facie case of infringement.”

Another potential defensive measure, though it may be prohibitively time consuming, is to find public domain examples of similar outcomes to “base” your characters on. If you can demonstrate that your work is based on something free to copy, then your work is not going to be found liable for copyright on someone else’s work. “Once a work enters the public domain, no individual—not even the creator—may copyright it.”

Something to be wary of is the attempt to imitate or mimic the feel, vibe, tone, style, or other qualitative aspect of another person’s work. The court has found in recent cases (Marvin Gaye) that the attempt to recreate a style was enough to demonstrate substantial similarity between two separate works. The court based their ultimate outcome on the fact that the defendants were cognizant of the fact that they were channeling someone else’s style. Documentation of the process will serve as evidence that you did not intend to imitate another artist. “The Producers rely on the ‘inverse ratio’ rule, which ostensibly lessens the quantum of proof required to show copying when the plaintiff can show that the defendant had a ‘high degree of access’ to the protected work.”  Though the court acknowledged in the case that the trend is away from the inverse ratio rule, the fact that the plaintiffs raise the issue demonstrates the danger in not clearly establishing an independent creation process.

“(T)he law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted.” Stated another way, “If A produces identically the same work as B, by independent thought, in good faith, without hearing, or seeing, B’s work, both A and B would be entitled to individual copyrights in their individual works.”

Your game will be your own creative work, but you need to keep an eye out for works that are reminiscent of your own, particularly easily recognizable ones. Once you’ve identified works with some similar features, you will want to ensure that the user generated content outcomes cannot achieve substantial similarity to those works. For example, if you are making a game based on ancient Greek myths and legends and the artwork is in the style of an animated cartoon, then you should prevent combinations of character features that would resemble the Hercules character from the Disney movie. This is obviously a complicated task- how similar is too similar? But in every instance where this is possible, you should programmatically prevent people from making infringing characters. You might want to prevent only the most obvious of combinations because the cost can otherwise be prohibitive. For example, if you design a character with super strength, then they cannot ride a flying Pegasus. While that may limit the customization options, and possibly a popular one, you know that users will be unable to infringe on Disney’s animation. Alternatively, you can program in more nuanced conditions to prevent copying, perhaps creating the very model you want to prevent, breaking the model down into its customizations, then creating a rule that at least three of those customizations must be different for it to be a valid character. Again, that would be expensive, as well as cumbersome, but it is an option to consider depending on your appetite for risk of litigation.

ii. Beating the Ordinary Observer Test
The court will look to see whether two works have the same aesthetic appeal. When considering aesthetic appeal, the courts will look beyond technical similarities for the sense of the work as a whole. The court will examine the minute details for dissimilarity, but largely as evidence of the differing overall nature of the two pieces. For example, the second circuit found that two similar works were not similar enough to find infringement:

“Belair’s photograph depicts young women of opposite characters, one a “Devil” and the other an “Angel.” Bratz dolls portray young women who not only share, but are defined by, a common characteristic: their “passion for fashion.” J.A. 382. Thus, even though one Bratz doll wears a shirt with the word “Angel” on it, the image is not substantially similar in its aesthetic appeal to Belair’s halo-wearing angel.”

The messaging of the two works was different enough that the other similarities were not enough to find a similar aesthetic appeal. Having clear branding, independently developed, thus can serve to differentiate your work from any other work against which yours is compared. Additionally, the use of messaging around the central theme of the game can give your users an identity to attach to the game.

b. Striking Similarity
“Striking Similarity is similarity between the works that is either so comprehensive or so exact that it cannot be explained other than as a result of copying (see, for example Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984)). Striking similarity creates an inference of actual copying (see, for example, Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988)).”  “However, the inference of copying created by striking similarity is rebuttable and must be reasonable in light of all other facts and circumstances (see, for example, Gaste, 863 F.2d at 1068). For example, the inference of copying would be rebutted despite a striking similarity between the two works if a defendant can prove that its work pre-dated the plaintiff’s work.”

i. Beating Striking Similarity
If you’re going to combat a claim of Striking Similarity, you will have to show that you demonstrated an effort to prevent the Striking Similarity. You will have to show that any instance of Striking Similarity was against your efforts to prevent them. When a user identifies an instance of Striking Similarity they should be able to report that instance. When they report that instance, an employee of the company should be able to review the reports, and have the authority to remove the accounts that violate the Striking Similarity events.

Another method to discourage Striking Similarity would be to include language in the terms of use that forbid the direct copying of other people’s work. Creating a culture that discourages copyright infringement can keep claims from being developed. For example, there is a robust modding community for the game Rocksmith. The game is a guitar teaching tool that uses mechanics similar to those of Guitar Hero, but with real instruments. The user is able to play real songs with increasing difficulty levels with the idea that the user will eventually be able to play entire songs without visual tools or other assistance. The number of available songs is limited, so the modding community has developed tools to create their own tracks. The community has strict rules to reduce the problems for the gamemakers themselves. The community is so happy with the product that they try to protect the game from their own conduct. For example, anytime the game releases downloadable content in the form of a new song, that song is forbidden from being modded- to allow the game maker and copyright owners to make money off of their product. For the game makers, ideally, the community would discourage all forms of infringement, but if they’re going to infringe anyways, then at least they are trying to do so responsibly and reasonably ethically.

c. Similarity in Computer Software
Technology has disrupted all areas of the law, if only because it requires reinterpreting existing law onto a new canvas. The same is true of copyright law, and the courts came up with ways to navigate copyright claims in regards to software:
Computer programs and games often involve:
An audiovisual component consisting of the sights and sounds displayed to the user.
A literary component consisting of the code.
Regarding computer games, story elements, such as plots and characters.

Copying any of these elements alone or in combination can give rise to infringement.
Courts analyze the visual and story components in the same manner as other audiovisual works by comparing:

• The visual display.
• Any sights and sounds.
• Any story elements.

When users are developing their content for your game, whether it is entirely with a character creation mechanism, a scenario editor, a map builder, or just a machinima, any recreation of copyrighted material which falls under these listed categories (in addition to verbatim copying ) can open you up to liability:

“[A] computer’s “non-literal” elements consist of elements other than the code, and may generally be described as the “structure, sequence, and organization” of the underlying program. These elements include ‘general flow charts, as well as the more specific organization of inter-modular relationships, parameter lists, and macros.””

4. Final Notes
The accumulation of these suggestions should help deter the majority of frivolous lawsuits, and at a minimum provide for a speedy procedure if things end up in court. The steps listed above are applicable regardless of the form of liability you are looking to avoid. By zealously trying to discourage infringement, the courts are more likely to not find any form of secondary liability and dismiss the lawsuit more speedily.

Ultimately, the company should perform hygienic practices to demonstrate goodwill among its users, of course, but also among its fellow game makers. Creating a culture of respect around copyright may encourage anyone who thinks they have a claim of copyright to reach out and speak with you directly instead of initiating costly litigation.

When possible, code in ways to defeat infringement. Disallow copyrighted names through database checks, disallow character creation that matches likely targets of infringement, prominently include terms of service that forbid copyright, make it easy for users and copyright holders to report instances of copyright, and follow through on reasonable takedown requests.

Document your creation processes, including brainstorming sessions. When developing the process for allowing character creation, or other user generated content forms, keep track of your ideas, what prompted them, what sort of discussion went into them, and what steps you took to avoid infringement.

Remember, there is no such thing as litigation proof practices. You are seeking to minimize litigious behavior, and you are aiming for the speedy resolution of any court proceedings that are initiated against you.

I serve as the Vice President of EFF-Austin,  a Texas nonprofit. EFFA has a storied history closely tied to the genesis of the Electronic Frontier Foundation. Both organizations launched at roughly the same time, and out of the same event – a government entity misunderstood technology and the people behind the technology, and the following legal battle almost bankrupted the company that was targeted. A group of technology nerds came together in Austin to defend Steve Jackson games, and the movement was born. You can read more about the beginning and go down the Wikipedia rabbit hole here.

On Monday of this week (12/10/2018), I presented our legislative agenda at one of our monthly meetups. You can watch the video here to learn how you can get involved. Slides below the player.

Brief disclaimer here. This is a set of terms for a hypothetical blockchain website. This post is intended for educational purposes only. You should always have an attorney guide you through legal decisions, even for something as seemingly simple as website terms of use. The use of terms of service language has legal consequences. Please please please have an attorney review terms for your specific needs. If you’re looking for representation, you can contact me here.

Readability and User Trust

One thing I’ve come to understand, is that blockchain tech is intimidating on multiple fronts – the people who understand the industry that a company is addressing don’t always understand the blockchain technology, and people who understand the underlying tech don’t always get the industry that a company is attempting to help.

This general murkiness is exacerbated when people come across legal terms that feel like opaque legalese. While I’m not your attorney, and an attorney-client relationship can’t be formed unless we come to an explicit arrangement (and you shouldn’t send me confidential info unless we make an explicit arrangement), I did a write-up of a blockchain company website’s terms of service that you should feel free to use. I find that this tone invites trust with users.

When writing your blockchain company’s terms and conditions, make sure to avoid the murkiness that plagues other companies.

These terms may not fit perfectly with the mission of your company, and you should have your attorney review them to make sure they work for you. Additionally, they don’t include a privacy policy, ICO terms or anything else specific.

Example Terms