Massachusetts Leading in Waste Reduction and Renewable Energy Generation

(Photo Credit: Randy Jordan) In June 2011, construction of this AD facility was completed at Jordan Farm in Rutland, Massachusetts. The Mass Clean Energy Center provided $360,000 towards the cost of feasibility studies, construction, and design, while the Mass Department of Agricultural Services contributed $50,000 to other costs. This facility generates an estimated 2.24 million kWh of electricity, enough to power the farm and 300 homes and takes in 9,125 wet tons of manure and 16,425 tons of source-separated organics per year. With the increasing supply of organic waste, and the facility’s success, an expansion is under consideration.

POSTED BY Marion Goodsell

On January 31, 2014, Massachusetts Governor Deval Patrick announced the final regulations for the statewide commercial food waste disposal ban.  The ban goes into effect on October 1, 2014, and it will cover about 1,700 businesses and institutions producing a ton or more of food waste per week.  The ban helps Massachusetts to achieve several environmental and cost saving goals, while encouraging the development of waste to energy generation facilities, as new sources of renewable energy and clean energy jobs.

MassDEP, through a partnership with RecyclingWorks in Massachusetts, is helping covered businesses and institutions to learn about and to implement cost-efficient solutions.  Compliance may be achieved by adjusting purchasing to prevent spoilage, by donating excess food, or by arranging with a waste hauler for separated food scraps to be diverted to a composting or anaerobic digestion waste-to-energy (AD) facility.

The ban helps Massachusetts to promote several policy goals at once.  As a practical matter, landfill capacity in Massachusetts is dwindling with an estimated 12 years of remaining capacity.  This increases disposal costs, as waste management companies must long-haul trash to facilities outside the state.  Food waste is some of the more heavy and dense trash, and so diverting food waste to local composting and AD facilities can be cost beneficial.  Once the food waste is diverted, the most direct consequence is the reduction of methane released into the atmosphere, where as a greenhouse gas it is 34 times stronger at trapping heat than carbon dioxide.  Instead, AD facilities can capture the methane and transform it into biogas for the generation of heat and electricity, while generating fertilizer from residuals.  The reduction in greenhouse gas emissions and the generation of renewable energy help Massachusetts strive to reduce emissions to 25% below 1990s levels by 2020 and to support development in the clean energy technology industry, which has seen a 24.4% job growth rate over the past two years.

The ban aids all these goals by placing a priority on waste reduction, effectively targeting methane emissions, and creating a reliable supply of raw materials for composting and AD energy generation.  In turn, this reliable supply allows companies like Harvest Power to confidently invest and develop AD facilities in Massachusetts.  To further encourage research and development of AD energy generation, the Massachusetts Clean Energy Center’s Commonwealth Organics-to-Energy program has awarded 18 grants worth over $2.3 million to public and private entities.  While new facilities are coming on-line, current wastewater AD facilities have become more productive with the inclusion of food waste, which has three times the methane production potential of biosolids.

Diverted food waste along with other organic waste to anaerobic digestion has been the primary source of renewable energy in Germany, which has invested in the technology for the last 25 years and has 6,800 large-scale facilities.  Massachusetts is leading the US in the expanded application of this technology and setting a trend for other states and cities to folllow.  Recently, New York City announced a commercial organics diversion regulation that will become effective on July 1, 2015.  The executive director of the Washington-based American Biogas Council called the NYC regulation “a shot of adrenaline to the growing biogas and compost industries which are ready, able, and willing to manage organic wastes as a resource.”  Notably this enthusiasm extends to a diverse group of stakeholders, who are extolling the NYC regulation, and the ban here in Massachusetts, as environmentally and business friendly for both food waste producers and those ready to convert the waste into energy.

The Misunderstood Hacker and the Violation of His Rights

POSTED BY Abner Pinedo

Many frown upon the term “hacker” in our society. Corporations view hackers as the enemies who pry into protected computer source codes by circumventing copyright protecting technologies. However, hackers don’t view themselves as the enemy, but more of a public necessity in society. Their hacks and circumventing acts have brought upon many great outcomes, such as increasing a music owner’s fair use. For example, iTunes Music Store in the near past used to forbid users from playing purchased music on other music players and devices, other than iTunes or iPods. Hackers retaliated by circumventing iTunes DRM and created programs that allowed a user who rightfully purchased a song to have the ability to use it on other players and devices—fair use. These hacks led iTunes to create continuous updates and eventually led to their defeat and compliance with what society was craving for. Without hacktivism, individuals who purchase music would not have the freedoms they desired. Hackers view source code as a form of freedom of speech and their hacker culture as something to be proud of. However, this is not what most people perceive and think of when they come across the idea of a hacker.

Recently, Federal Judge Winmill in an Idaho case decided to treat an employee in a suit malignantly by ignoring his privacy rights because he was deemed a hacker. Corey Thuen, previously employed by the Plaintiff, Battelle, is being charged for copyright infringement of the Plaintiff’s source code of a program named Sofia. After being dismissed by the Plaintiff, Corey opened his own company called Southfork and created a similar program which he planned to sell it as an open source program. The Plaintiff’s claimed that the evidence needed to prove their case was on Thuen’s hard drive and that it was crucial to their case to prove infringement.

This led the Plaintiffs towards an ex parte proceeding in order to gain the courts permission to acquire the hard drive. The Plaintiffs argued that it was necessary to obtain the hard drive in such a manner because the Defendant is a hacker with the ability to make the evidence vanish. The Court viewed the Plaintiff’s claims favorably due to the Defendant’s self proclamation of being a hacker on his own company website. The decision that followed was the copying of the Defendant’s hard drive. The Court rationale was that a hacker was a bad individual who had the ability to destroy and alter the evidence on his own hard drive, thus the action was warranted in this case.

The Courts rationale leads to bias and stereotype that needs to be altered to fairly decide cases dealing with hackers. These stereotypes will only be broken if society becomes educated on hacker culture and principals. Further, Courts should view all the facts and circumstances before allowing stereotypes and hyperbole to take control of a Court’s decisions. A central key in this case was that the Judge did not understand that there was a non-negative meaning for the term hacker. The copying of an individual’s hard drive is seen as a huge invasion of privacy that should not be taken lightly. Many Courts have struggled with this issue regarding hard drive copying, but this Idaho Judge has taken the emotional short-cut without verifying all the facts and simply took the Defendant’s online self hacker proclamation as a valid claim.

The Bitcoin: Regulating the Decentralized Digital Currency

POSTED BY Allison Kearns

As investors swoon over the digital currency Bitcoin, regulators deal with questions of whether or how it should be regulated.   The Bitcoin is a decentralized virtual currency that is designed to mimic the mining of a commodity.  Except mining in the online arena consists of clients competing to solve cryptographic puzzles.  Clients that reach certain metrics are awarded Bitcoins, which are added to the network and substantiated by other Bitcoing users.

Currently, Bitcoin operates in person-to-person exchanges without regulatory oversight, and it can be purchased and exchanged for traditional currency, such as Euros or US Dollars.  Advocates for the Bitcoin argue that the virtual currency could spawn economic growth in developing countries where individuals have limited access to financial services.  Transfers of Bitcoins are practically instantaneous; value does not vary among countries; and the Bitcoin offers competitively low exchange fees.

Consumer protection advocates, on the other hand, are grappling with the Internet’s new digital cash with responses ranging from fear to quasi-endorsements.   In 2011, Senator Chuck Schumer called the Bitcoin a form of money laundering.  Ben Bernanke stated that the Federal Reserve has no plans to regulate or supervise “these innovations or the entities that provide them to the market.”  More recently, officials at the Department of Justice and the Treasury Department have recognized the Bitcoin has legitimate and financially viable.

Last August, when someone allegedly used the currency to run a Ponzi scam, the Securities and Exchange Commission (the “SEC”) successfully argued that Bitcoins are money.  This ruling confirms that the Bitcoin may be deemed a viable currency, and thus subject to the regulations it has largely avoided.  The SEC, however, regulates transactions in securities and not currencies.  Therefore, the future of regulatory oversight is likely in the hands of the Commodity Futures Trading Commission (the “CFTC”) — a separate agency that governs futures contracts.

Stale Copyright Claims: Supreme Court To Resolve Whether Doctrine of Laches or Statute of Limitations Controls in Petrella v. Metro-Goldwyn-Mayer

POSTED BY Christopher Barnett

Legendary boxer Giacobbe “Jake” LaMotta has had an incredible career. Nicknamed “The Bronx Bull” and “The Raging Bull”, LaMotta is a former Middleweight Champion of the World. In 1980 his fame propelled him to the big screen, when he was portrayed by Robert De Niro in the Hollywood hit, The Raging Bull. The movie was based on a screenplay authored by Frank P. Petrella in collaboration with LaMotta. Petrella and LaMotta sold their rights to the screenplay to a company in 1976, and in 1980 United Artists began production of the film The Raging Bull. Petrella died shortly after the film debuted.

In 1991 United Artist’s ownership in the copyright expired, and the rights reverted back to Petrella’s estate, specifically Petrella’s daughter, Paula Petrella. Despite this, United Artists and Metro-Goldwyn-Mayer continued, and continue to this day, to promote and profit off of sales of the movie. Petrella repeatedly contacted the movie firms through various attorneys requesting they stop promoting and reaping all the benefits of the movie, however, she did not officially file a lawsuit until 2009.

Under the 1976 Copyright Act, the 2009 suit is well within the statute of limitations given the ongoing infringement. See 17 U.S.C. § 507(b) (2013). The United States Court of Appeals for the Ninth Circuit, however, said that her claim was barred by the doctrine of laches. The doctrine of laches gives the judge presiding over a case carte blanche in determining whether a claim is too stale, or old, to be brought.

The issue of the doctrine of laches being invoked in the face of statutorily prescribed time limitations is one that reveals a deep circuit split among at least six circuits. Some circuits flat out bar it when a claim is brought within the limitations period, and others allow it in a variety of circumstances. Although SCOTUS has the final word, Congress should be the entity that decides the tolling period for bringing infringement claims. The statutory language of The Copyright Act was chosen carefully, and to eschew it for a common law antiquated doctrine undermines the legal system.

The Supreme Court heard arguments in October; the decision is expected in Spring of 2014.

Educating Middle School Students on Internet Privacy

POSTED BY Hillary Cheng

In conjunction with the Rappaport Center, Suffolk Law Professor Jessica Silbey is organizing a program to teach online privacy to Boston-area middle schoolers with the help of law student volunteers.  The program’s curriculum was developed at Fordham Law School, a project funded by a cy pres award in a settlement.  The case that settled, Valentine et al v. NebuAd, Inc., involved claims that targeted online advertising violated the privacy of Internet users.

The fellow who helped develop the program, Jordan Kovnot, stated that he designed the program for middle schoolers because that is the age “when kids are starting to get online and us[ing] social media.”  The program is designed to inform and encourage the students to think about the consequences of having an online presence.

According to Professor Silbey, the program involves 5 modules: (1) introduction to privacy; (2) passwords and behavioral advertisement; (3) dealing with social media; (4) mobile technology, wifi, and facial recognition; and (5) reputation.  The educational program will involve worksheets, dialogue, surveying students’ responses to questions and discussing those answers, and visual displays and presentations.

The program is much-needed and timely considering the growing use of the Internet among young teens.  As reflected in our forthcoming JHTL issue, many young teens do not fully understand the consequences of using social media or technology, and some abuses may result in criminal charges.  Furthermore, online technology such as Google’s targeted advertisements are becoming industry norm, and this increased access of user data by commercial entities raises legitimate concerns about the use of this data.

When asked about the harms of the growing lack of online privacy beyond user discomfort, Professor Silbey suggested several possibilities for concern.  Among others, areas of concern include the overly stringent use of advertising profiles in assessing a user for various decisions such as granting a mortgage, insurance, or other discretionary evaluations, the potential inaccuracy of an online advertising profile, and the expressive harm of reduced exposure to products beyond your advertising profile.

The Long Term Effects of NSA Revelations

POSTED BY Grant Bowen

Rolling scandal over National Security agency surveillance, triggered by a mass leak of secrets by Edward Snowden, as well as further revelations of spying on allies, continues to follow President Obama and the U.S. Government. Due to this, various experts are worried of two results: the government is suffering in its relationships with allies and cryptography, which has continuously formed the backbone of U.S. surveillance programs, and simultaneous the public may be damaged by cloud computing surveillance.

Primarily, experts are concerned about the extent to which the US can successfully exert “soft power” through political and cultural values, while simultaneously lowering its military presence throughout the world. It was intended that through networks of friends and allies, the U.S. could extend this “soft power” and influence more countries through peace, rather than war-tactics. Maintaining and establishing more alliances through this method will help to mitigate consequences of lessening military might.

However, the current surveillance problems do harm to this plan. In order to establish “soft power” in the first place, there has to be a baseline level of trust. The global opinion of America is hardly positive at the moment, though. Coming off a long government shutdown, and repeated surveillance scandals, American status has suffered. If the long-term plan is to carefully manage military decline, while preserving maximum influence, surveillance issues can’t continue. They repeatedly break down the requisite trust in order to successfully follow such a plan.

Furthermore, NSA surveillance issues continue to wreak havoc for the American public. Primarily, many organizations have noted access to stored data in the public cloud, even though the U.S. insisted it was only doing so to track suspected terrorist activities overseas. However, both Microsoft’s Office 365 and SharePoint Online experienced NSA surveillance activity (whether they were “accidents” or purposeful is still disputed). Due to the large universe of SharePoint and other online services (think Apple’s iCloud or Google Online Doc Suite), smaller providers, cloud computing services and others are feeling the influence. They are putting their cloud migration plans on hold, or simply terminating those already occurring. In fact, according to one study, nearly 35% of those with plans to migrate to cloud computing are now in a holding pattern.

It may need to go without say that there is a question of whether the NSA security “surveillance” tactics raise issues of legality. According to Congress, and the Supreme Court the processes employed by the NSA do not violate the 4th amendment “as long as the government can show that it is relevant to an authorized investigation into known – and, significantly – unknown terrorists who may be in the United States.” Yet, legality, as determined by the government, does not answer the question of what the long-term effects of such surveillance will be. As we have seen already it could affect as much as international political relationships, or simply public and commercial computing access.

Healthcare Software Companies Subject to Patent Suits but Relatively Safe from Trolls

POSTED BY Rebecca M. Ferrante

In light of the controversy surrounding the less than elegant release of the federal government’s healthcare website in October 2013, there is much current discussion on the topics of both healthcare and technology.  Where these topics intersect resides a host of issues concerning software durability, patient privacy, and big data.  For those software companies engaged in the development and implementation of related electronic health and health record systems (EHRs), “Non-Practicing Entities” (NPEs) or “Patent Assertion Entities” (PAEs), otherwise known as patent trolls, pose an additional challenge.  However, according to the U.S. Government Accountability Office (GAO), the risk of patent infringement suits is much more likely to be levied by another company rather than by an NPE.

The U.S. Government Accountability Office (GAO) released a report this summer reviewing factors that affect patent infringement which presented an analysis of 500 lawsuits between 2007 and 2011.  The GAO found that while patent infringement lawsuits increased by 129% during the period, suits were 95% more often brought by other producing companies as opposed to NPEs.  That being said, the GAO’s report did announce that lawsuits involving infringement of software related patents represented 89% of the increase.  As electronic health record systems are one of the fastest growing yet highly fragmented industries, representing $8.2 billion of the $40 billion in healthcare IT spending forecasted this year, these companies are simply more exposed.

The GAO’s report becomes less applicable in instances where the question is whether a business is actually a producing company or not.  Patent trolls by definition hold patents and enforce related intellectual property rights, but do not practice invention.  In late 2012, MMR Global, Inc. announced that it had obtained its fifth patent pertaining to EHRs, contacted and offered licenses on their patents to more than 1,000 hospitals and group practices, and signed license agreements valued at more than $30 million.  MMR claims that the patents are part of its core products.

Advertising Rules may be Applied to a Lawyer’s Blog

POSTED BY Caroline Carollo

Earlier this year, the Virginia Supreme Court decided a case that sheds some light on the issue of how advertising rules for lawyers should apply to social media and other forms of electronic communications.  In Hunter v. Virginia State Bar, attorney Horace Hunter authored a non-interactive blog which was accessible from his law firm’s website. The blog contained posts discussing various legal issues and cases, but the majority of the posts discussed cases in which Hunter had obtained favorable results for his clients.  There were no disclaimers on any of his posts or on his firm’s website.

In March 2011, the Virginia State Bar (VSB) investigated Hunter’s blog and found that it constituted advertising under the Virginia Rules of Professional Conduct.  The VSB charged Hunter with violating Rules 7.1 and 7.2 because his blog posts discussing his criminal cases lacked disclaimers and were inherently misleading.  The VSB also charged Hunter with violating Rule 1.6, finding that he revealed potentially embarrassing or detrimental information regarding his former clients without their consent.  Hunter argued that his blog was primarily political speech rather than commercial speech, and should therefore not be subject to advertising regulations.

The Virginia Supreme Court found that Hunter’s blog posts did not violate client confidentiality under Rule 1.6, but found that the blog posts were a form of commercial speech rather than political speech. This distinction is significant because while restrictions on political speech are subject to a higher standard of strict scrutiny, restrictions on commercial speech are subject to a lower standard of intermediate scrutiny.  The Court further found that Hunter’s blog posts were advertisements, because they primarily described cases where he had received a favorable outcome for his client, and that they were potentially misleading.  As a result, the Court held that the VSB could require Hunter to post a disclaimer on all case-related blog posts.

On the other hand, the dissenting justices found that Hunter’s blog posts were political speech rather than commercial speech.  They convincingly argued that speech concerning the criminal justice system has always been considered political speech, and further stressed that Hunter mentioned the outcome of his cases to illustrate his views of the criminal justice system.  Hunter’s blog posts discussed, in detail, the proceedings of public criminal prosecutions, and Hunter referenced the outcomes of his cases in order to show his values as a criminal defense attorney regarding those proceedings.  Consequently, I am not completely convinced that Hunter’s blog posts constitute commercial speech, as his focus on the criminal justice system more closely resembles political speech.

In regards to the client confidentiality charge, I believe the Court was correct in finding that there was no violation.  All the information that Hunter wrote in his blog posts had been openly revealed in public judicial proceedings and concerned cases that had been concluded.  However, one could argue that lawyers should still have a duty of loyalty to keep client information confidential, even if that information is public knowledge.  Creating a public knowledge or public records exception to client confidentiality allows lawyers to discuss embarrassing or damaging information about former clients as long as the confidential information is in the public records.  While blogging can be an important part of an attorney’s marketing plan, it is important for attorneys to abide by their ethical obligations.

Sports Analytics: Should They be Protected?

POSTED BY Jared Bishop

The process of constructing a Major League Baseball (MLB) team took a drastic turn after Oakland Athletics’ General Manager, Billy Beane, decided to concentrate on advanced statistics known as “sabermetrics” to construct his team. Beane was so successful that his grossly underpaid team made the playoffs and ultimately inspired a motion picture, Moneyball.

Sabermetrics has been around for decades thanks to Bill James, a baseball statistician, but was not made famous until Beane bought into the system. Sabermetrics deals with a wide range of advanced statistics that are calculated based on virtually every detail of a play in baseball.

While theses statistics are available to the public at websites such as ESPN, the question becomes whether these statistics, or strategies should be protected to some extent. If Beane’s theories and strategies were further protected, perhaps Beane Athletics’ would have won multiple World Series. If organizations can use these statistics to develop a strategy on how they develop their respective team, shouldn’t their strategies be protected as a trade secret? After all, the goal of any sports organization is to win, and to do that, they need to find the best form of a competitive advantage they can get both on and off the field.

In depth sports analysis on statistics should be protected in the manner of trade secrets. Trade secrets are designed to give companies a competitive advantage over their competition. When companies come up with a strategy or pattern of information, they do not want to share that information with their competition or make it public for obvious reasons. Trade secrets, like other intellectual property, gives businesses incentives to develop their own strategies and better promote innovation.

What Beane did as far as using sabermetrics to develop his own strategy of creating a winning team was not based on the fact that his information would be collected, but it was because the Athletics’ were on a stricter budget than almost all of the other teams in the MLB. The lack of a deep pocket was the reason Beane changed the game, not because he knew this information would be protected. Beane forever changed how MLB teams look at players, but because other teams are able to use Beane’s strategies, the Athletics are not able to fully use the competitive advantage Beane developed. The question remains open on the possibilities of innovation in sports if these sorts of analysis could be protected. Teams such as the New York Yankees, Los Angeles Dodgers, and Boston Red Sox would have an incentive to not only use their money to form the best team, but they would have an incentive of creating a well-thought out, and economical strategy to put a better product on the field.

Netflix’s Use of Pirating Websites

POSTED by Stephanie Surette

Does it make sense for media giants to monitor pirating websites for their own profit? In a New York Times article, the author discusses how Netflix has admitted to reviewing piracy websites to gauge consumer interest in shows before committing to purchase them. The company reviews pirating websites to see what programs are being downloaded by consumers and whether or not there is enough interest in the show to warrant them purchasing the license. By monitoring pirating websites, is Netflix undermining laws that were put in place to protect them? These laws are designed to deter consumers from illegally downloading content and instead by using the data provided from these sites, are they legitimating consumers’ use of these sites?

For some consumers, the small monthly charge that Netflix charges is worth the convenience of having an array of TV shows and movies at their fingertips. However, even though Netflix has options to suit any taste, they don’t have everything and they don’t always have the most recently released movies available for streaming. The copyright laws in the United States are strict, and can result in a fine of $250,000 and up to five years in prison for a first offense. While there are steep penalties for offenders, it’s not enough of a deterrent for some. As described in another New York Times article, “[stopping] online piracy is like playing the world’s largest game of Whac-A-Mole.” Almost half of the adults in the United States are estimated to have engaged in some form of piracy (see page 3 of this study).

Where there’s a will, there’s a way – and there’s obviously a will for many people to avoid paying for content when it’s readily available on pirating websites. Even though Netflix is monitoring the pirating websites, they’re not just sitting idly on the sidelines. In 2012, Netflix established FLIXPAC, which is a political action committee (“PAC”) aimed to promote anti-piracy laws and their other interests. While Netflix has an interest in stopping or creating more obstacles for consumers to download content illegally, they might as well monitor it for their own uses while it’s still happening. The piracy battle isn’t close to being over and Netflix may as well get something out it while it’s still going on. If the harsh penalties for piracy haven’t stopped consumers from illegally downloading content, it’s unlikely that Netflix’s use of data from pirating websites will influence their decision regarding whether or not to download content.