New York Court of Appeals Finds No Right of Public Performance Under New York Law for Creators of Sound Recordings

–by Elizabeth Snyder

Citation: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 172, 2016 N.Y. LEXIS 3811 (Dec. 20, 2016).

Abstract: Responding to a certified question from the Second Circuit Court of Appeals regarding the existence of a right of public performance in sound recordings, the New York Court of Appeals held that no right of public performance exists under New York common law to protect creators of pre-1972 sound recordings.


On December 20, 2016, the New York Court of Appeals answered a question certified by the Second Circuit Court of Appeals regarding the existence under New York law of a right of public performance for creators of sound recordings before 1972. Finding that New York common law does not recognize any such right, the court answered the question in the negative.

In the federal context (mainly through the Digital Performance Right in Sound Recordings Act of 1995), sound recording owners have a right “to control or authorize the public performance of the copyrighted work, but only for performances ‘by means of a digital audio transmission.”’ Under federal law, the right of public performance is limited to digital radio services, and does not apply to AM/FM radio stations, bars, restaurants, or stores that play music.

The action was commenced by Plaintiff, a corporation owned by two of the original members of The Turtles, as a federal class action on behalf of recording artists, or the owners of the rights, of pre-1972 sound recordings. The action alleged common-law copyright infringement and unfair competition against Defendant, the nation’s biggest satellite digital radio service.

The United States District Court for the Southern District of New York found that New York does recognize a common-law right of public performance in protection of copyright holders for pre-1972 sound recordings. On Defendant’s appeal, however, the Second Circuit Court of Appeals found that the case presented a novel issue of law and certified the aforementioned question to the New York Court of Appeals.

The court began its opinion with a discussion of federal copyright law, noting that state common law applies to copyrights only insofar as federal statutes fail to do so. Sound recordings were protected by federal statute for the first time under the Sound Recording Amendment of 1971. However, the protections afforded by this amendment only extended to those recordings produced after February 15, 1972. Under that statute, sound recordings were not afforded a right of public performance. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act, which authorized the application of any rights under state statutes or common law (that do not conflict with federal law) to sound recordings produced before February 15, 1972 until February 15, 2067.

The court noted that state court cases in New York have not addressed whether the right of public performance for sound recordings inheres in common-law copyright. Noting that most decisions from lower courts in New York and federal courts applying New York law have dealt with the issue of piracy, the court nonetheless conducted a survey of its earlier decisions to determine that common-law copyright protects only against the unauthorized reproduction of a copyrighted work, but does not prevent a purchaser from playing a copy of a sound recording.

The court further bolstered its decision with an appeal to societal expectations. According to the court, the fact that Plaintiff took no action to assert its common-law rights for four decades supported its finding that neither artists nor copyright holders allege the existence of such a right. The court instead endorsed the arrangement identified by the Third Circuit, wherein the record companies and artists exist in a “symbiotic relationship” with radio stations, allowing their music to be played to “encourage name recognition and corresponding album sales.”

Ultimately, the court concluded that New York common law “has never recognized a right of public performance for pre-1972 sound recordings,” and that to find otherwise would be to produce “extensive and far-reaching” consequences that the court is not equipped to handle. Instead, recognition of such a right must come from the legislature, which is better able than the courts to balance competing interests and create a structure of rules to govern a right of public performance.

Who Knew? Sue-and-be-sued Clauses: State or Federal Jurisdiction

–by Michael Corelli

Source: Lightfoot v. Cendant Mortgage Corp., 580 U. S. ____ (2017); Bank of United States v. Deveaux, 9 U.S. 61 (1809); Osborn v. Bank of United States, 9 Wheat. 738 (1824); American Nat. Red Cross v. S. G., 505 U.S. 247 (1992).

Abstract: Petitioners sued a federal charter, Fannie Mae, under a sue-and-be-sued clause. Fannie Mae removed the case to federal court. The issue revolved around determining how to construe this particular sue-and-be-sued clause in light of precedent.


Facts & Procedure

Petitioners Beverly Ann Hollis-Arrington and Crystal Lightfoot sued in state court alleging that Fannie Mae was deficient in the refinancing, foreclosure and sale of their home. Fannie Mae removed the case to federal court based on a sue-and-be-sued clause. Petitioners moved to remand the case back to state court, but the District Court denied the motion. The Ninth Circuit affirmed the decision. The Supreme Court granted certiorari to resolve the issue of whether Fannie Mae’s sue-and-be-sued clause grants federal courts jurisdiction over all cases involving Fannie Mae.

Supreme Court Decision

The Supreme Court reversed the Ninth Circuit’s decision. The court resolved the issue by first evaluating whether or not there was established precedent regarding sue-and-be-sued clauses. Justice Sotomayor analyzed several cases to determine the status of the sue-and-be-sued clause.

First, the court analyzed two cases that originally dealt with this clause. In Bank of United States v. Deveaux, the Supreme Court held that the bank had no right to sue in federal court based on a sue-and-be-sued clause that did not expressly mention the federal courts as having subject-matter jurisdiction. Following this rationale, the Supreme Court then decided Osborn v. Bank of United States, where it held that the sue-and-be-sued clause did confer subject-matter jurisdiction to federal courts because it mentioned the federal courts in the clause. Thus, the difference between the two cases was the explicit mention of the federal courts, which was enough to grant subject-matter jurisdiction.

The court then went on to analyze contemporary case law. The most recent case on the sue-and-be-sued clause was American Nat. Red Cross v. S. G., where the prior rationale established by the Supreme Court was reaffirmed. Congressional intent of granting federal courts jurisdiction based on the sue-and-be-sued clause is determined by looking at the language of the clause itself. The court assumes that federal courts lack subject-matter jurisdiction when there is no explicit mention of the federal courts in the sue-and-be-sued clause itself. Congressional intent is recognized when there is evidence of the intent in the form of explicit language.

With this understanding, the court observed that unlike Deveaux, the clause at issue here does mention the federal courts. However, unlike Osborn and Red Cross, the clause at issue here does not refer to federal courts having subject-matter jurisdiction without qualification. Rather, the clause in its language construction created a condition. The clause stated that Fannie Mae had the right “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” Thus, to determine whether the case was properly removed to federal court the court went on to analyze the meaning of competent jurisdiction.

Referring to Black’s Law Dictionary, Justice Sotomayor stated that “a court of competent jurisdiction is a court with the power to adjudicate the case before it.” This definition signifies that a court with competent jurisdiction is a court that has a grant of subject-matter jurisdiction conferred to it. From there, the court stated that a court of competent jurisdiction should be understood as a reference to a court that already has existing subject-matter jurisdiction, not to directly confer jurisdiction to federal courts. Thus, the sue-and-be-sued clause at issue here did not directly grant federal courts subject-matter jurisdiction, rather it gave federal courts the capacity to adjudicate the issue.

The court then looked back to Red Cross and stated that it was often misread and interpreted as meaning any mention of federal courts in a sue-and-be-sued clause automatically conferred federal courts the subject-matter jurisdiction to adjudicate cases. The court refuted this notion and held that when a sue-and-be-sued clause explicitly mentions the federal courts in its language it does not automatically confer those courts with subject-matter jurisdiction. The question remains as to whether subject-matter jurisdiction exists. Therefore, the court rejected Fannie Mae’s arguments that jurisdiction was proper, since its arguments were premised on the misread Red Cross rationale.

Federal courts do not automatically have subject-matter jurisdiction when explicitly mentioned in the sue-and-be-sued clause. It is possible that states still retain subject-matter jurisdiction over these cases depending on the Congressional intent manifested through the language of the clause itself.

Tesla’s Autopilot Cleared by Government Investigation, but Questions Remain About Liability for Accidents Involving Self-Driving and Safety Technology

–by Aya Hoffman


Abstract: Just a day after the National Highway Traffic Safety Administration (“NHTSA”) closed its investigation into Tesla Motors’ autopilot technology, Chinese media reported another fatal collision involving a Model S sedan. Currently, victims face significant challenges in holding automakers liable for accidents involving assistive technology, but the market may be moving toward a strict liability standard as true self-driving cars become more widely available.


Although the NHTSA ended its investigation into Tesla Motors’ autopilot system without requiring a recall or fine, questions about the safety of such systems remain. Tesla, based in Palo Alto, California, manufactures an all-electric line of vehicles, including the Tesla Roadster, Model S, Model X, and Model 3. When it was introduced in 2015, Tesla’s autopilot system was the first of its kind in consumer vehicles.

The NHTSA investigation was initiated after a fatal crash in May 2016, involving a Tesla Model S sedan. Joshua Brown was killed after the autopilot system installed in his vehicle failed to recognize a turning tractor-trailer. On January 19, 2017, the NHTSA reported that the system was not defective at the time of the crash. The agency noted that Tesla’s autopilot system was designed to prevent rear-end collisions, and still required a driver’s full attention while in operation. Brown’s family hired a law firm with experience in product defect litigation to conduct its own investigation into the crash.

However, Tesla came under renewed scrutiny the following day, when another fatal collision involving a Model S was reported in China. On January 20, 2017, Gao Yaning was killed when his vehicle collided with a road-sweeping truck. In-car video suggests that the brakes were not applied prior to impact with the rear of the truck, but it is unclear whether the autopilot system was activated.

If the families of Brown and Yaning file suit against Tesla, they will face significant challenges. Despite the modern technology at issue, the available legal theories for product liability and accident compensation claims are traditional – strict liability, negligence, design-defects law, failure to warn, and breach of warranty. However, Tesla requires buyers to consent to contract terms which require drivers to keep their hands on the steering wheel at all times, including when the autopilot system is engaged. And technically, Tesla’s current autopilot technology is not “self-driving.” Although it can steer a car in traffic and make passing maneuvers, it is not connected to a navigation system and requires an alert and responsible human driver.

Interestingly, as truly autonomous vehicles enter the mainstream, it may become easier for drivers to hold car manufacturers liable for accidents involving self-driving technology. Currently, carmakers are not liable for most accidents, which are attributed to driver behavior. While fully autonomous vehicles are still in development, some carmakers, including Volvo, Google, and Mercedes-Benz, have already pledged to accept strict liability for resulting accidents. Although it may seem counter-intuitive, these companies are betting that advanced safety programming will significantly decrease the rate of accidents. Of course, the costs of liability will be passed onto consumers by way of increased car prices. However, some legal scholars suggest this increase may be offset by a decrease in the cost of insurance premiums for self-driving vehicles.

As is common with emerging technologies, early adopters face the most risk. It may be difficult to hold carmakers liable for accidents during this transitional period, compared to when fully self-driving cars are established in the market. This problem is compounded by the fact that car dealers may be uninformed about the technologies inside the vehicles they sell. In the spring of 2016, researchers from the Massachusetts Institute of Technology’s Agelab conducted interviews at car dealerships in the Boston area. The researchers went to the dealerships undercover and asked salespeople questions about common automated driver assistance programs, including adaptive cruise control, blind spot monitoring, and collision avoidance. Of the eighteen salespeople interviewed, only six provided “thorough” explanations of the technologies. According to the researchers, four salespeople gave “poor” explanations and two provided incorrect information that was potentially dangerous. Although this was a small study, it reinforces the need for consumers to educate themselves on the operating requirements and limitations of the technologies installed in their vehicles.

Even when cars are equipped with advanced technology, old-school methods still provide drivers the best protection against potentially fatal accidents – education and constant vigilance.

California Egg Production Laws Survive Lawsuit

–by Caitlin Lomazzo

Citations: Mo. ex rel. Koster v. Harris, 2016 U.S. App. LEXIS 20613 (2016); Mo. v. Harris, 2014 U.S. Dist. LEXIS 89716 (2014); Cal Health & Saf Code § 25990; 3 CCR 1350 § 1350(a–d).

Abstract: On October 19, 2016, the Ninth Circuit Court of Appeals reviewed a lower court’s dismissal of a suit brought by five states and the Governor of Iowa. The suit alleged injuries caused by California state laws and regulations that governed egg production. The court affirmed that the states did not have parens patriae standing, but it remanded the case for dismissal without prejudice.


In 2014, five states (Missouri, Nebraska, Oklahoma, Alabama, Kentucky) and the Governor of Iowa, Terry Branstad, filed a complaint in the Eastern District of Northern California. The Plaintiffs asked the court to overturn California laws and regulations related to egg production, namely California’s Assembly Bill 1437 (“AB1437”) and California Code § 1350(d)(1). AB1437 provided that “a shelled egg shall not be sold or contracted for sale for human consumption in California” if the egg seller “knows or should have known that the egg is a product of an egg-laying hen that was confined on a farm or place” out of compliance with Proposition 2, a voter initiative that says a farmed animal must not live in conditions that prohibit “[l]ying down, standing up, and fully extending his or her limbs; and [t]urning around freely” for at least the majority of the day. The second item, a set of food safety regulations by the California Department of Food and Agriculture, included minimum cage size requirements.

The Plaintiffs argued the court should strike down the laws, known collectively as the “Shell Egg Laws,” based on their violation of the Commerce Clause or preemption by a federal statute. They also asked the court to bar the state’s enforcement of the laws. The district court determined the Plaintiffs lacked parens patriae standing to sue and dismissed the case with prejudice. It also denied leave to amend the complaint. The Plaintiffs appealed the decision.

The Ninth Circuit reviewed the Plaintiffs’ standing arguments on appeal. A plaintiff state that seeks to establish parens patriae standing must fulfill certain requirements in addition to the Article III standing requirements. It must demonstrate it has “an interest apart from the interests of particular private parties” that will impact “a sufficiently substantial segment” of the state’s population. The interest must also constitute a “quasi-sovereign interest.”

In its decision, the Ninth Circuit did not reach the second question of whether the states had quasi-sovereign interests because it determined that the Plaintiffs had failed to prove they had separate interests that would impact “a sufficiently substantial segment” of their respective populations. The court determined that harms to egg farmers alone would not support parens patriae standing and emphasized that egg farmers could obtain complete relief without state intervention if they filed their own suits. It also noted that price changes that might impact consumers could not constitute a harm to justify standing. Lastly, it determined that the Shell Egg Laws would not single out eggs based on their states of origin and thereby disadvantage certain states’ economies. Because the states could not prove discrimination, they could not establish parens patriae standing on that basis.

In addition to upholding the decision to dismiss the case, the Ninth Circuit also upheld the lower court’s decision to deny the Plaintiffs leave to amend their complaint. The states could not add descriptions of recent occurrences to the complaint they filed years ago and thereby establish parens patriae standing. Moreover, the states sought to modify the complaint to include price changes that would impact consumers of eggs or egg-containing products who did not purchase items directly from egg farmers. The court determined that price changes, which had, if anything, a tenuous relationship to the Shell Egg Laws, could not establish standing. Because the amendments would not save the complaint for lack of parens patriae standing, the Ninth Circuit affirmed the lower court’s denial of leave to amend.

The Plaintiffs had not described injuries that would establish parens patriae standing, but the Ninth Circuit determined that the Plaintiffs could theoretically establish standing if they demonstrated other, actual injuries that occurred after California implemented the laws and regulations in 2015. Therefore the Ninth Circuit remanded the case with instructions to dismiss without prejudice.

Fourth Amendment Further Whittled Away by Utah v. Strieff

–by Jordan Charnetsky

Source: Utah v. Strieff, 136 S. Ct. 2056 (2016); Brown v. Illinois, 422 U.S. 590 (1975).

Abstract: On June 20, 2016, the United States Supreme Court ruled that evidence obtained after an unlawful stop was admissible where, even though there was a short temporal proximity between the unlawful stop and the discovery of the evidence, the presence of an outstanding arrest warrant for the respondent and lack of flagrant police misconduct favored admission of the evidence.



Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The amount of people Officer Fackrell observed making brief visits to the residence made him suspicious of possible drug dealing activity. Officer Fackrell observed respondent Edward Strieff leave the residence and proceeded to detain and question Strieff. Officer Fackrell was then informed by a police dispatcher that Strieff had an outstanding arrest warrant. Officer Fackrell proceeded to arrest Strieff, searched him, and found drug paraphernalia and methamphetamine on his person. At trial, Strieff moved to suppress the evidence, arguing that it was obtained through an unlawful search and seizure.

Procedural History

The trial court ruled that the methamphetamine and drug paraphernalia obtained during the lawful search of Strieff incident to arrest justified the admission of that evidence for trial, even though Detective Fackrell did not have enough evidence to conduct an investigatory stop. The Utah Court of Appeals affirmed.

The Utah Supreme Court subsequently reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop. The Utah Supreme Court further reasoned that only a voluntary act of a defendant’s free will would sufficiently break the connection between the illegal search and the discovery of the evidence.


Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed when the warrant was discovered during an unlawful investigatory stop.


The Supreme Court reversed and held that the evidence Officer Fackrell seized incident to Strieff’s arrest was admissible based on the application of the attenuation factors from Brown v. Illinois.

The Supreme Court has at times required courts to exclude evidence obtained by unconstitutional police conduct to enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures. The exclusionary rule does not apply when the costs of the exclusion outweigh its deterrent benefits, even when there is a Fourth Amendment violation.

The Court has previously recognized three exceptions to the exclusionary rule, the third of which, the attenuation doctrine, is at issue here. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.

The Court first addressed a threshold question of whether the attenuation doctrine applies in situations not involving an independent act of a defendant’s free will. The Court said that since the doctrine evaluates a causal link between the government’s unlawful act and the discovery of evidence, these situations often have nothing to do with a defendant’s action. The attenuation doctrine therefore also applies in situations when there is no independent act of a defendant’s free will.

Next, the Court had to determine whether the discovery of a valid arrest warrant was a sufficient intervening circumstance to break the causal chain between the unlawful stop and the discovery of the drug-related evidence. The Court applied the three-factor test articulated in Brown v. Illinois, which examines: (1) the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how close in time they occurred; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

The first factor here favors suppression of the evidence, as the Court has not deemed this factor to favor attenuation unless substantial time passes between an unlawful act and when the evidence was obtained. Officer Fackrell discovered the evidence mere minutes after an illegal stop, therefore this factor favors suppression of the drug evidence.

The second factor here strongly favors admission of the evidence. The Court reasoned that because the warrant was valid, it predated Officer Fackrell’s investigation, and was entirely unconnected to the stop. Officer Fackrell’s arrest of Strieff was purely a ministerial act that was compelled by the pre-existing warrant. After the discovery of Strieff’s warrant, Officer Fackrell was authorized to arrest Strieff and thus the search incident to the arrest was lawful. The discovery of the warrant was a valid intervening circumstance between the unlawful stop and the then lawful arrest and search.

The third factor also strongly favored admission of the evidence. The purpose of the exclusionary rule is to deter police misconduct and the third factor reflects that purpose by favoring exclusion only when the police misconduct is purposeful or flagrant. The Court determined that Officer Fackrell’s actions were at most negligent. He made two mistakes. First, he failed to observe when Strieff entered the residence. This would have allowed Officer Fackrell to determine whether Strieff was a short-term visitor. Second, since Officer Fackrell did not know whether Strieff was a short-term visitor, Officer Fackrell should have asked, rather than demanded, to speak with Strieff. The Court determined that while Officer Fackrell’s decision to make the stop was misled, his conduct thereafter was lawful and did not rise to the level of purposeful or flagrant misconduct.

The Court held that the drug evidence Strieff possessed was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. The Court reasoned that the proximity of the illegal stop to the discovery of the evidence was outweighed by the intervening circumstance of the outstanding arrest warrant, and by the lack of evidence that Officer Fackrell’s illegal stop was purposeful or flagrant misconduct.

Ohio Governor Vetoes Heartbeat Bill, But Passes Ban on Abortions After Twenty Weeks

–by Bri Szopinski


Sheryl Gay Stolberg, John Kasich Signs One Abortion Bill in Ohio but Vetoes a More Restrictive Measure, N.Y. Times (Dec. 13, 2016),

Emanuella Grinberg, Ohio Governor Bans Abortions After 20 Weeks While Vetoing “Heartbeat” Bill, CNN (Dec. 14, 2016),

Laura A. Bischoff, Gov. Kasich Vetoes Heartbeat Bill, Signs 20-Week Abortion Ban, Dayton Daily News (Dec. 13, 2016),–regional-govt–politics/gov-kasich-vetoes-heartbeat-bill-signs-week-abortion-ban/UbrhWj5zpvwbbCkfNeMInJ/.

Abstract: Ohio simultaneously passed a ban on abortions after twenty weeks while rejecting legislation prohibiting abortions after doctors detect a fetal heartbeat.


On Tuesday, December 13, 2016, Ohio Governor John Kasich vetoed Ohio’s controversial “heartbeat bill” while simultaneously passing a bill that prohibits abortions after twenty weeks.

The “heartbeat bill” (House Bill 493) originated in the Ohio House of Representatives. With respect to abortions, the bill prohibited physicians from performing abortions once doctors detect the fetal heartbeat.  Generally, doctors detect heartbeats at about six weeks into the pregnancy.  The “heartbeat bill” did not contain any exceptions allowing women to undergo an abortion in the case of rape or incest.  This bill passed the Ohio Legislature as one of the strictest anti-abortion bills in the country and went to Governor Kasich for a signature or veto.

On December 8, 2016, the Ohio Legislature voted on Senate Bill 127, which also intended to regulate abortion by establishing a blanket prohibition of abortions after twenty weeks.  Like the “heartbeat” bill, Senate Bill 127 also passed both the Ohio House of Representatives and the Senate, and went to Governor Kasich for a signature or veto.

Despite both bills’ passage in the House and Senate, Governor Kasich vetoed the “heartbeat bill” but upheld Senate Bill 127.  He stated that the “heartbeat bill” contradicted the Supreme Court’s rulings in Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman’s Health v. Hellerstedt.  Federal courts had recently struck down similar legislation in other states, suggesting that any legal challenges to the “heartbeat bill” would end similarly to the challenges in those states: in the challenger’s favor.

Senate Bill 127, however, prohibits abortions after twenty weeks into a pregnancy.  Present law requires doctors to find a fetus non-viable, or unable to survive outside the womb, before performing an abortion.  Doctors can make exceptions to this requirement when the pregnancy seriously impacts the woman’s health.  Senate Bill 127 modifies current Ohio abortion law by eliminating the viability test altogether and making a blanket prohibition against abortions after twenty weeks.  However, experts suggest that the point of viability of a fetus averages at about 24 weeks.  While the exception for the mother’s health still remains, doctors that perform abortions after twenty weeks without this exception could face criminal charges, likely a fourth-degree felony.  Doctors cannot make exceptions for cases of rape or incest.

Governor Kasich’s signing of Senate Bill 127 makes Ohio the third state this year to ban abortions after twenty weeks; Georgia and South Carolina also passed similar legislation in 2016.  This makes Ohio one of eighteen states that prohibit abortions after twenty weeks.  The law is expected to take effect in March, although some organizations have discussed challenging the law in the coming months.

Student-Athletes Denied Wages for Athletic Training

–by Ryan White

Source: Berger v. National Collegiate Athletic Association, No. 16-1558, 2016 WL 7051905 (7th Cir. Dec. 5, 2016).

Abstract:  Two former members of the University of Pennsylvania Women’s Track and Field team sued the school and the NCAA claiming they were entitled to minimum wage for their athletic training. The Seventh Circuit disagreed, but the court left open the possibility for a class of future plaintiffs who may succeed with that argument.


Facts and Procedure

Gillian Berger and Taylor Hennig both were part of the University of Pennsylvania’s Track and Field team, a Division I school governed by the National Collegiate Athletic Association. Berger and Hennig’s suit against Penn, the NCAA, and 120 other NCAA institutions was predicated on the argument that they, as student athletes, were “employees” and entitled to minimum wage under the Fair Labor Standards Act (29 U.S.C. § 201). The District Court held that the plaintiffs did not have standing to sue any defendants other than Penn, and that the former student athletes failed to state a claim because student-athletes are not employees under the FLSA.

7th Circuit Decision

The 7th Circuit affirmed both of the lower court’s holdings. The opinion quickly dispensed with the first issue of standing, explaining that under the FLSA, an alleged employee’s injuries are only redressable by the employer.  Any connections between the former student-athletes and the NCAA or its other member institutions were “far too tenuous” for the plaintiff-appellants to have standing.

The Court spent a little more time analyzing the alleged employer-employee relationship between Berger and Hennig and Penn under the FLSA. Circular definitions in the statute itself led the Court to look other places to determine whether student-athletes were entitled to minimum wage.

The burden for establishing an employer-employee relationship fell on the plaintiffs, and the Court emphasized that in ultimately making a decision, it must look to the totality of the circumstances. This examination includes reviewing the “economic reality” between the student-athletes and the university. The Court had developed a seven-factor test for analyzing whether migrant laborers were protected by the FLSA, and the Second Circuit had a similar seven-factor analysis for evaluating interns under the FLSA.  The District Court declined to utilize those tests because they did not accurately capture the facts at hand.

The Court was particularly concerned with the revered nature of amateurism in collegiate sports. The amateur status of student-athletes is at the core of the economic reality of the situation. The Court stressed the importance of the eligibility rules developed by the NCAA. In discussing the amateur status of student-athletes, the court cited to O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015), one of several recent cases where student-athletes have challenged the NCAA seeking better compensation.

The Seventh Circuit considered several other courts’ decisions that found there to be no employer-employee relationship.   One particular scenario in which this has consistently been the case is in regards to workers’ compensation.  Multiple courts have consistently refused to say that student-athletes are employees in the workers compensation context and thus athletes are not entitled to compensation if injured while playing sports for their university.

The Court also looked to the Department of Labor, whose Field Operations Handbook also states that student-athletes are not employees under the FLSA.  One section of that handbook stressed that interscholastic and extracurricular activities, like athletics, are primarily for the benefit of the student. When the benefit is primarily for the student, then the activity cannot be labeled “work.” While not specifically controlling, the Court said the Handbook is persuasive and has been used as guidance repeatedly.

The plaintiff-appellants’ argued that an employer-employee relationship is a particularly fact intensive investigation. The Seventh Circuit disagreed as a matter of law.  The voluntary nature of intercollegiate sports is crucial. The Court emphasized that there is a fundamental difference between “play[ing]” sports and “work.” The Seventh Circuit affirmed the District Court’s grant of defendant-appellants’ motion to dismiss.

Justice Hamilton’s Concurrence

While the majority opinion does not offer any hope for the growing movement seeking compensation for student-athletes, Justice Hamilton’s concurrence does.   Justice Hamilton finds specific facts in the case at hand that may distinguish it from future legislation.  First, Penn does not offer scholarships.  Second, Track and Field is not a revenue sport for the University.  Given those two factors, the amateur status of the student-athletes as the NCAA projects is in its purest form.

Justice Hamilton points out, though, that a different conclusion could be reached for a student-athlete on scholarship playing a sport like football or basketball that is a major revenue stream for the university. Justice Hamilton concurred because the broad theory pursued by the plaintiff-appellants was just that—too broad.  The amateur status of a D1 basketball or football player in a billion dollar industry presents a much different scenario. The economic reality of someone in that scenario, Justice Hamilton suggests, may be of a fundamentally different nature. There may be a light at the end of the tunnel for those college athletes seeking compensation.

Arkansas Prosecutor and Amazon at War Over Release of Device’s Data Recordings; Consumer Privacy Rights in Question

–by Samantha Pallini


Abstract: An Arkansas prosecutor believes that a murder suspect’s Amazon Echo data recordings could be used as evidence in the case. However, Amazon continues to refuse to comply with requests for the data.


“Alexa, how did Victor Collins die?”

On November 21, 2015, James Bates, Victor Collins, and two other friends watched a football game together in Bates’s home in Bentonville, Arkansas. According to an affidavit, Bates went to bed around 1 a.m., leaving Collins in the hot tub. When he awoke the next morning, Bates found Collins floating face down, deceased.

Bates called 911 to report Collins’s death, but police suspected foul play. The Arkansas chief medical examiner ruled Collins’s death a homicide by strangulation with a contributing cause of drowning. Police obtained a search warrant for Bates’s home thereafter.

Inside, detectives found several smart devices, including an Amazon Echo. An Echo is a speaker device that is activated by the wake word “Alexa.” According to Amazon, when a user states the wake word “Alexa,” the Echo device starts recording the audio and streams it into the Amazon cloud. In the cloud, a processor analyzes the user’s request and determines how to respond. The audio recordings are thereafter stored remotely by Amazon, while still allowing for review or permanent deletion by the user at any time.

In the search warrant, investigators stated that they believe the recordings and data of Bates’s Echo could be evidence because “the device is constantly listening for the ‘wake’ command of ‘Alexa’ [which] records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”

On two occasions, Prosecutor Nathan Smith attempted to obtain the data from Amazon, but Amazon refused, stating that it “will not release customer information without a valid and binding legal demand properly served on [it]” and that it “objects to overbroad or otherwise inappropriate demands as a matter of course.” A discovery hearing is scheduled for March 2017.

With February’s FBI-Apple battle over unlocking the iPhone of the San Bernardino shooter, Prosecutor Smith’s request for Bates’s Echo data ushers out 2016 with yet another privacy concern that leaves consumers wondering where the line between privacy rights and disclosure is drawn. However, the Echo’s data retention also invites questions of whether “always on” devices cross a line of their own.

The Echo is one of several new “always on” devices. Google, Samsung, Nest, Canary, Microsoft, and Mattel have also created “always on” devices, which can be activated by phrases such as “Ok Google,” “Hello Barbie,” or “Xbox on.” While these companies assert that their devices only begin audio recordings after the wake command is said, many consumers and advocacy groups complain that wake commands as simple as “ok” and “hello” easily confuse devices into recording at times when they should not be.

The Electronic Privacy Information Center (EPIC) wrote a letter to the Department of Justice in July 2015 requesting that the Federal Trade Commission “determine whether these devices violate federal wiretap laws that prohibit the unlawful interception of private communications. 18 U.S.C. 2510 et seq.”

EPIC argues that Amazon, specifically, has not disclosed their data collection practices, which involve interconnection with a range of third-party companies. Consequently, EPIC asserts that “[b]y introducing ‘always on’ voice recording into ordinary consumer products . . . companies are listening to consumers in their most private spaces.”

While the outcome of Amazon’s refusal to provide Prosecutor Smith with Bates’s Echo data is undetermined, surely 2017 and the growing “always on” market will invite more legal analysis and policy-making in the year to come.