Feb 16

🗞️ Nike Sues Over NFT Products, Copyright Offices Consider If A.I. Can Be An Inventor, & Your Social Media Posts Are Not As Private As You Think

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Forward GC interviews General Counsels of leading brands throughout the globe.
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This Week: Nike takes off its gloves, the question of AI selfhood comes into light, and how private are you social media posts? Plus, the Boy Scouts are nearing a settlement, and an epic Bitcoin heist comes crashing down.


👟 Nike Is Done Playing Nice

Nike is suing online reseller StockX for creating NFTs of Nike shoes and infringing upon its trademarks. The suit is yet another in a recent spate that are defining the limits of NFTs and IP laws. Nike claims that StockX's NFTs appear like a collection of Nike goods, and thus is using Nike's trademark to enrich itself.

  • As The Fashion Law adds, Nike further claims that StockX “inflated [the] prices” of the NFTs and its unclear ownership terms have “already led to public criticism of StockX and allegations that [its] Vault NFTs are a scam.”

  • "The case hinges on whether StockX’s NFTs are an extension of its normal reselling process (like a digital receipt of ownership) or whether they’re products in their own right, with potentially significant implications for NFTs in general," notes The Verge.

An Accelerating Legal Strategy

Nike has been on a litigation kick recently—suing Adidas, Lululemon, Amazon, and eBay in addition to this StockX suit. According to Business Insider, this increased legal strategy is being spearheaded by CEO John Donahoe who is trying to protect the company's IP.

The Verdict

This case may prove to be a major defining moment for how NFTs and trademarks are used moving forward—regardless of the outcome. Should Nike be the victor, it would restrict who can make NFTs of IP that's not their own. Should StockX, it would break the door open for a flood of new NFTs based on anything.


🤖 Do Androids Dream Of Intellectual Property Rights?

And now for another IP case: if AI creates new IP, who is the owner? The AI itself? The US Copyright Office (USCO), World Intellectual Property Organization (WIPO), and the U.S. Patent and Trademark Office (USPTO), have all held symposiums on this topic in the last two years, and one thing seems clear: it may soon be time for machine-created works to be credited as inventors.

  • In the UK, machine-created works may be protected for 50 years, notes TechCrunch, "but should they be protected at all? And, if so, how should they be protected?"

  • Dave Davis further notes in TechCrunch, “In my view, a self-aware, autonomous AI would be the prerequisite for its works to be protectable by copyright. At that time, such a revolution in technology might bring along with it a much greater revolution in society, with the law, including copyright law, changing, as well.” 

A Growing Body Of Work

AI has been generating art (from paintings to music to literature) for many years now. In 2018, the first AI-generated painting to be sold at auction fetched $432,500. Of course, that sum went to the artist collective behind the work, rather than to the AI itself.

The Verdict

As AI becomes more powerful and prolific in the coming years, such questions of ownership and even of autonomy will become increasingly important. It's good to know governmental bodies around the world have already begun thinking about such issues.


👻 A Social Reckoning

If a felon banned from possessing guns posts a video with guns to social media, and a law enforcement agent sees it, can it be used as evidence? A Massachusetts state court says yes. Averyk Carrasquillo, the convicted felon in question, did not have a reasonable expectation of privacy when posting his video to Snapchat, said the court. Moreover, there was no constitutional violation when that same video was used against him.

  • Courthouse News Service also notes that the state court's opinion quoted Justice Sonia Sotomayor, who said that "such a categorical rule is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

  • Furthermore, when Carrasquillo accepted the friend request of the undercover cop, he demonstrated that he did not control access to his account, and the court refused to require that the officer identify himself as such when investigating Carrasquillo. To do so would render “virtually all undercover work unconstitutional,” the court said, notes the ABA Journal, citing a federal appeals court decision. “This we decline to do.”

Social Media 2.0?

Forbes digs in on what may be the changing face of Social Media, pointing to services like Twitch and Clubhouse as a new form of social media with more privacy and a different monetization model. These new platforms are more content-driven (meaning you log on to interact with content you specifically selected), and look to change the behavior of Social Media 1.0, which we have come to view negatively.

The Verdict

How private can we say social media is? Especially when you grant access to strangers? Carrasquillo seems to have given up his right to any sort of privacy when he posted illegal actions to his account, and granted wide access to it.


📤 What Else We're Forwarding

A BSA Settlement: The Boy Scouts of America appear to be moving ahead with the $2.7 billion settlement against sexual abuse victims, says Law360. The organization hopes to emerge from Chapter 11 with this plan.

Bitcoin Heist: A New York couple accused of hacking a cryptocurrency exchange in 2016 and looting over $3 billion has been arrested by the DOJ, and their assets seized, reports NPR. The stolen funds were about $71 million at the time, but the value has skyrocketed, forcing the couple to launder the Bitcoin.


🎧 Music We’re Working To

Today, we’re listening to Huerco S., an independent ambient/electronic producer based in Kansas most known for pioneering a more experimental form of house music known as ‘outside house’. He released his second studio album, For Those Of You Who Have Never (And Also Those Who Have) back in 2016. In only 9 tracks, he touches nearly an hours worth of percussion-free, ambient music that’s due for a place in your WFH playlist.

For Those Of You Who Have Never (And Also Those Who Have) - Huerco S. (50m, no vocals)
Apple Music / Spotify / YouTube Music / Amazon Music


💰 Roles We’re Recommending 

Here are some full-time roles we found interesting…and you might too!

Checkr is looking for a Senior Product & Privacy Counsel to oversee their privacy program, including compliance with GDPR, CCPR, and international privacy laws.

Alight is hiring for a Senior Counsel with at least five years of substantive Federal and State insurance regulatory, compliance or transactional experience.

SeedFi is looking for a Director of Legal to assist their Compliance, Business Development, Operations, and Product teams.

Hiring for a full-time role? Post it on Lawtrades and we'll share it across our network. Fill out this form to get started.


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See ya next week!

✌🏽 Raad