EPA Approves Flint Hills Resources’ Plant For Cellulosic Ethanol Production

On October 12, 2017, Edeniq, Inc., a leading cellulosic and biorefining technology company, announced that Flint Hills Resources, a member of the Biobased and Renewable Products Advocacy Group (BRAG®), received approval from EPA for cellulosic ethanol production at its Iowa Falls ethanol plant.  The 100 million gallons per year plant will use Edeniq’s Pathway technology to produce the cellulosic ethanol and will be eligible to qualify its cellulosic gallons for generating D3 Renewable Identification Numbers (RIN).  Iowa Falls is the second Flint Hills Resources plant, and the fifth overall, to receive approval for cellulosic ethanol production using Edeniq’s technology.  Edeniq announced in December 2016 that EPA approved Flint Hills Resources’ registration of its Shell Rock ethanol plant for cellulosic ethanol production.  According to Edeniq, its Pathway technology “remains the lowest-cost solution for producing and measuring cellulosic ethanol from corn kernel fiber utilizing existing fermenters at existing corn ethanol plants, and has already proven cellulosic ethanol yields of up to 2.5% or higher, as a percentage of its customers’ total volume output.”  Additionally, the technology allows for increases in corn oil production and greater overall ethanol yields.

This post was written by Lauren M. Graham, Ph.D. of Bergeson & Campbell, P.C., ©2017
For more legal analysis go to The National Law Review

EPA Announces Updates to Pesticide Label Review Manual

On September 19, 2017, the U.S. Environmental Protection Agency (EPA) announced an update to Chapters 15 and 16 of the Office of Pesticide Programs’ (OPP) Label Review Manual.  

Updates to Chapter 15: Company Name and Address, include removing non-label related instructions on submitting address change requests and updating the National Pesticide Information Center’s contact information, including new hours of operation. Updates to Chapter 16: Graphics and Symbols, include adding hyperlinks to graphic and logo examples and allowing a QR (Quick Response) code as an acceptable symbol when used only for retail pricing.

EPA states that the Label Review Manual, which began as a guide for EPA label reviewers, serves as a tool to assist registrants in understanding the pesticide labeling process and assists registrants in understanding approaches for how labels should generally be drafted.  Pesticide product labels provide critical information about how to safely and legally handle and apply pesticides.  EPA directs registrants to submit questions or comments on the Label Review Manual by using its Pesticide Labeling Questions & Answers — Form.

This post was written by Barbara A. Christianson of  Bergeson & Campbell, P.C. ©2017
For more legal analysis go to The National Law Review

Donald Trump, Mike Pence Pledged To Limit Gaming, Then Helped Casinos After Campaign Donations

At first glance, gambling appears to be one of the many issues on which Donald Trump and Mike Pence differ. Trump is an East Coast casino magnate who has boasted of using his fortune to influence lawmakers. Pence is a socially conservative Midwesterner who says he has never even bought a lottery ticket. He has cast himself as an opponent of expanding gaming in a state whose campaign finance laws aim to limit casino moguls’ political power.

But a closer look shows the Republican standard-bearers have plenty in common: As casino industry cash went around Indiana’s anti-corruption laws and into groups supporting Pence’s campaigns, the GOP governor used his power to help gambling interests. While Trump has promised throughout the 2016 presidential campaign that his personal wealth would insulate his administration from donor influence, the actions of his running mate on the gaming issue challenge that pledge.

A review of campaign finance records shows that despite Indiana statutes officially banning gaming industry donations to state officials, Indiana gaming interests gave more than $2 million to groups supporting Pence since he first began running for governor. That includes gaming-linked lobbying firms and their employees donating nearly a half-million dollars directly to Pence’s campaign account.

Mike Pence, Gambling, campaign donations
Photo Credit: Darren Hauck, Getty Images News

During much of Pence’s term, he was serving in a leadership and fundraising role at the Republican Governors Association while the group raised money from Indiana gaming operators. Meanwhile, casinos hit a legislative jackpot at Indiana’s state Capitol: Pence signed tax legislation benefiting the gaming industry; and, by not vetoing the bill, he allowed for the passage of separate landmark legislation permitting riverboat operators to move casinos on shore. His administration also helped a major RGA donor from the lottery industry, GTECH. (That company has since merged with a competitor, International Game Technology.)

In an emailed statement, Pence’s 2016 campaign spokesperson, Marc Lotter, said the gaming companies in question “have a long history, dating back a decade, of supporting the Republican Governors Association because they want to see the type of strong, pro-growth leadership that has led to Indiana becoming one of the best states in the nation for business continue and expand to other states. Gov. Pence is proud to support and have received support from the RGA.”

Referring to the gaming-backed bills that became law under Pence, Lotter added: “Since taking office, Gov. Pence has held the position that gaming should not be expanded in Indiana and every executive action he has taken on legislation has been consistent with that principle.”

This look at Pence’s relationship with the gaming industry is the first in a series on how companies are circumventing longstanding anti-corruption laws designed to restrict their election spending and political influence. The trend has occurred just as court decisions deregulating the nation’s campaign finance laws have let a torrent of cash into state and local races. In many cases, the donations arrived shortly before or after governments cemented everything from road contracts to economic development subsidies to pension deals. The continued flow of cash has defanged pay-to-play laws that were supposed to make sure government decisions are based on the public’s best interest — not political favoritism.

In Indiana, that larger trend has played out in gaming policy. Pence initially pledged to oppose efforts to grow the state’s gambling industry. “I do not support an expansion of gaming in Indiana,” he said in March of 2013, just two months after becoming governor. The statement won praise from a major religious group in the state. Pence also trumpeted his congressional efforts to outlaw Internet gaming, and said, “I’ve never bought a lottery ticket.”

Our review, however, shows that since 2011, Pence received roughly $2.2 million from Indiana gaming operators and their lobbying firms. That includes about $490,000 from nine gaming-linked lobbying firms and their employees directly to Pence’s campaign; at least $360,000 more from gaming industry lobbying firms and their employees to the Indiana Republican Party; and $1.4 million from Indiana gaming interests and their lobbying firms to the RGA, which backed Pence’s gubernatorial bids.

With that money flooding into the state, the governor helped Indiana’s gaming industry just when it was facing increased competition from neighboring states.

Continue reading on the National Law Review…

© Copyright MapLight

Led Zeppelin Prevails in Copyright Infringement Case: Now on Appeal in Ninth Circuit

Led Zeppelin Copyright InfringementIn May 2014, the Trust acting on behalf of the estate of Randy Wolfe (a/k/a Randy California) of the rock group Spirit filed a copyright infringement suit against Led Zeppelin related to the first chords in the band’s most famous song, “Stairway to Heaven.” See Skidmore v. Led Zeppelin, 15-cv-03462, U.S. District Court, Central District of California(Los Angeles). The Trust brought the case against Led Zeppelin after a 2014 Supreme Court decision opened the door for a broader interpretation of the time frame to seek damages for copyright infringement under the U.S. Copyright Act. See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962 (2014). The Petrella decision limited the application of the defense of laches and permitted lawsuits to be brought involving older copyrighted works with more recent acts of infringement that fall within the statute of limitations pursuant to 17 U.S.C. § 507(b). Hence, in the Skidmore case, despite the decades-old circulation of “Stairway to Heaven,” the plaintiffs decided to bring suit against Led Zeppelin within three years after the release of a re-mastered version of the famous song.

In Skidmore, the crux of the plaintiffs’ case was that Led Zeppelin (with Jimmy Page and Robert Plant as co-authors) allegedly stole the opening passage of “Stairway to Heaven” from “Taurus,” an instrumental by Randy Wolfe that can be found on Spirit’s 1968 debut album. The dispute largely concerned a brief musical passage 45 seconds into “Taurus.” It was alleged that the iconic opening guitar sequence of “Stairway to Heaven” (which was released in 1971, three years after “Taurus”) was copied from “Taurus.”

The Trust also sought an injunction against the release of any additional albums containing the song “Stairway to Heaven” in an attempt to obtain a writing credit for Wolfe, who died in 1997. This case was not the first time Led Zeppelin had been accused of copying another artist’s work. The Trust’s lawsuit listed other songs for which Led Zeppelin had paid settlements over songwriting credits, including “The Lemon Song,” “Babe I’m Gonna Leave You,” Whole Lotta Love,” and “Dazed and Confused.

On April 11, 2016, Los Angeles District Judge Gary Klausner ruled that there were enough similarities between “Taurus” and “Stairway to Heaven” for a jury to decide the claim. On June 23, 2016, following a trial, an eight-member panel jury unanimously found that the similarities between the songs did not amount to copyright infringement. The decision came one year after a jury (in a lawsuit filed in the Central District of California before Judge John A. Kronstadt) ruled that Robin Thicke’s “Blurred Lines” (produced by Pharrell Williams) infringed Marvin Gaye’s “Got to Give It Up.” In the Blurred Lines case, Thicke and Williams were ordered to pay $7.4 million (reduced to $5.3 million) and ongoing royalties to Gaye’s family. The Blurred Lines decision is currently on appeal in the Ninth Circuit.

The Trial

Jurors in the Led Zeppelin case had to decide two issues: First, was it plausible that members of Led Zeppelin had sufficient opportunity (i.e., access) to hear “Taurus” before they wrote “Stairway to Heaven”? Second, if so, were the opening chords of “Stairway to Heaven”  “substantially similar” to “Taurus”?

Issue 1: Access

Led Zeppelin’s guitarist, Jimmy Page, singer, Robert Plant, and bassist, John Paul Jones, all took the stand to testify about their recollections of Spirit and whether they attended Spirit performances, listened to Spirit music or recalled playing the same shows. The Led Zeppelin band members also were questioned by the plaintiffs’ counsel on how “Stairway to Heaven” was created 45 years ago. The jurors sided with the plaintiffs on the issue of access, finding that Page and Plant would have been familiar with “Taurus.” Specifically, the jury relied on the evidence presented in court that (1) Page had the Spirit record in his collection of more than 10,000 records and CDs, (2) Spirit had appeared as an opening act for Led Zeppelin and (3) other members of Spirit testified to encounters with Led Zeppelin members.

Issue 2: Substantial Similarity

The jury next had to determine whether the famous opening to “Stairway to Heaven” was substantially similar to the instrumental opening portion in “Taurus.” Both sides presented expert musicologists, who offered divergent opinions on the musical composition of “Taurus.” Defense experts testified that the two songs shared little in common other than a chord sequence that dates back 300 years. Plaintiffs’ experts said there were significant other likenesses, including the use of arpeggios, similar note combinations, pitch and note durations.

However, the jury never heard the original recording of “Taurus,” notwithstanding its conclusion that Led Zeppelin had access to the recording. The original recording of “Taurus” was made prior to 1972, when sound recordings were not subject to federal copyright protection. The Sound Recording Act of 1971 (effective February 15, 1972) changed federal copyright law to include protection for sound recordings. Instead, jurors had to hear and rely on expert renditions of the sheet music (i.e., the underlying musical notes) for “Taurus” to assess and decide the issue of “substantial similarity” to “Stairway to Heaven.”

Notably, the Trust’s expert played the sheet music on guitar, the instrument used in recorded versions for both “Taurus” and “Stairway to Heaven,” whereas Led Zeppelin’s expert decided to play the sheet music on piano. Irrespective of similarities in the sound recordings, theSkidmore case was decided based on the only protectable aspect – the musical composition of “Taurus” and not the sound recording. During deliberations, the jurors asked to see clips of each expert rendition more than once. Ultimately, the jury returned a unanimous verdict in favor of Led Zeppelin.

Comparisons and Impact: Blurred Lines and Led Zeppelin Cases

The “Stairway to Heaven” infringement decision came one year after a jury ruled Robin Thicke’s “Blurred Lines” infringed Marvin Gaye’s “Got to Give It Up.” In the Blurred Lines case, the eight-member jury also returned a unanimous decision based on the musical composition of “Got to Give It Up” and not the actual recorded version of Gaye’s song. However, the outcome for Led Zeppelinwas decidedly different from the Blurred Lines ruling.

The Blurred Lines decision, and its large award of damages, has been followed by a noticeable uptick in copyright infringement claims surrounding popular songs and recordings. Well-known artists such as Sam Smith, Ed Sheeran, Robin Thicke and Justin Beiber are making news for copyright infringement claims being brought against them. However, the recent verdict in favor of Led Zeppelin suggests that limitations inherent in protected music can limit a determination of infringement. Even though the jury sided with the plaintiffs regarding Led Zeppelin’s access to Spirit’s “Taurus,” the jury concluded that the protected elements of “Taurus” − the musical composition in the sheet music and not the sound recording − were not “substantially similar” to “Stairway to Heaven.” It is too soon to say whether the Blurred Lines outcome or the Led Zeppelinresult will be the norm.

Notwithstanding the appeal, the Led Zeppelin case reinforces the notion that different aspects of an entire song, specifically the musical composition, the instrumentation and the final recording, each are subject to analysis in a potential copyright infringement claim, and the analysis can dictate different outcomes in claims of infringement.

As for the appeal, the Trust’s attorneys are challenging the jury verdict in the Ninth Circuit. The notice of appeal reads:

Please take notice that Plaintiff Michael Skidmore, Trustee for the Randy Craig Wolfe Trust, hereby appeals to the United States Court of Appeals for the Ninth Circuit from the final judgment entered on June 23, 2016, as well as any and all interlocutory rulings, decisions, and orders that gave rise to the judgment and are merged therein.

The filing does not provide legal arguments for why the case should be reconsidered, making it difficult to anticipate the basis for appeal. Furthermore, Led Zeppelin’s publishing company is seeking more than half a million dollars from the Trust in legal fees already incurred for the defense, triggered by a 2016 U.S. Supreme Court decision that allows prevailing parties in copyright cases to seek legal fees. See Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979 (2016). Given the appeal, these fees will only increase. This case and the Blurred Linescase are ones to watch as their outcomes could impact the music industry and copyright law in general.

ARTICLE BY Lamis G. Eli of Wilson Elser Moskowitz Edelman & Dicker LLP
© 2016 Wilson Elser

Pokémon GO – Next Stop: Regulation & Litigation

pokemon go litigationAs everyone is aware, the Pokémon GO craze has taken the world by storm in the past month. Reports estimate there have been over 75 million downloads of the digital game since the program became available on July 6.  Apple has not issued any concrete numbers, but has confirmed that it was the most downloaded app ever in its first week of availability.

When the game was first offered, users were required to grant permission not only to use a player’s smartphone camera and location data but also to gain full access to the user’s Google accounts — including email, calendars, photos, stored documents and any other data associated with the login. The game’s creator, Niantic, responded to a public outcry – including a letter from Minnesota Senator Al Franken – stating that the expansive permission requests were “erroneous” and that Pokémon GO did not use anything from players’ accounts other than basic Google profile information.  The company has since issued a fix to reduce access only to users’ basic Google account profile information.

As is often the case, remarkable success naturally attracts critics who take aim. In a letter dated July 22, 2016, the Electronic Privacy Information Center (EPIC) wrote to the Federal Trade Commission (FTC) requesting government oversight on Niantic’s data collection practices. EPIC is a non-profit public interest research center in Washington, D.C., focusing public attention on privacy and civil liberties issues.

Niantic’s Privacy Policy

EPIC’s letter highlighted a number of alleged issues with Niantic’s privacy policy:

  • Niantic does not explain the scope of information gathered from Google profiles or why this is necessary to the function of the Pokémon GO app.

  • Niantic collects users’ precise location information through “cell/mobile tower triangulation, wifi triangulation, and/or GPS.” The Company’s Privacy Policy states Niantic will “store” location information and “some of that location information, along with your … user name, may be shared through the App.” The Privacy Policy does not indicate any limitations on how long Niantic will retain location data or explain how indefinite retention of location data is necessary to the functionality of the Pokémon GO app.

  • With Pokémon GO, Niantic has access to users’ mobile device camera. The Terms of Service for Pokémon GO grant Niantic a “nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license” to “User Content.” The Terms do not define “User Content” or specify whether this includes photos taken through the in-app camera function.

  • The Pokémon GO Privacy Policy grants Niantic wide latitude to disclose user data to “third-party service providers,” “third parties,” and “to government or law enforcement officials or private parties as [Niantic], in [its] sole discretion, believe necessary or appropriate.” Niantic also deems user data, including personally identifiable information, to be a “business asset” that it can transfer to a third party in the event the company is sold. This issue has been identified as a particular concern to another non-profit organization – Common Sense Media, an independent non-profit organization focusing on children and technology. According to Common Sense Media, location information and history of children should not be considered a “business asset.”

EPIC’s Request to the FTC

Based on the issues highlighted above, EPIC requested that the FTC use its authority to regulate unfair competition under the Federal Trade Commission Act (15 U.S.C. § 45) to prohibit practices by Niantic and other similar apps that fail to conform with FTC’s Fair Information Practices and the principles set forth in The White House 2012 report, “Consumer Data Privacy In A Networked World.”

According to EPIC, Niantic’s unlimited collection and indefinite retention of detailed location data, violates 15 U.S.C. § 45(n) because it is “likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”

EPIC also contends that the unlimited collection and indefinite retention of detailed location data violate the data minimization requirements under the Children’s Online Privacy Protection Act (COPPA), which requires providers to “retain personal information collected online from a child for only as long as is reasonably necessary to fulfill the purpose for which the information was collected.” 16 C.F.R. § 312.10.

Private Lawsuit Filed Against Niantic

Subsequently, a Pokémon GO user has filed suit in Florida State Court alleging that the terms of service and privacy policy are deceptive and unfair, which violates the Florida Deceptive and Unfair Trade Practices Act. Beckman v. Niantic Inc., case number 50-2016-CA-008330, Fifteenth Judicial Circuit for Palm Beach County, Florida.

Practice Pointer

The issue of consumer privacy continues to garner significant attention. Whether you are an app developer or any other company that collects and retains personal information, it is time to review your applicable policies and take appropriate steps to ensure that your company is not the subject of government agency inquiry, litigation, or a data breach.

For employers whose employees may be bumping into each other in the hallway while playing the game, consideration should be given to ban or otherwise regulate employee involvement. Certainly a drop in productively is a concern. However, even if accessing the game during work time is barred, employers should be concerned about the potential compromise to proprietary and confidential information that could occur as the result of data breaches or through counterfeit games that are designed to allow hackers access to your protected information.

Jackson Lewis P.C. © 2016

Celebrities And Snapchat Feuds: Are Recording Phonecalls Legal?

Snapchat Kim Kardashian Taylor SwiftAs most people know, there has been on-going feud between Taylor Swift and Kayne West. Last night, more fuel was added to the fire when Kayne’s wife, Kim Kardashian, went to Snapchat and posted recordings of a conversation between Ms. Swift and Mr. West which purport to show that Taylor was aware of off-colored lyrics in one of Mr. West’s songs, and gave her blessing to include before the album released. To date, Taylor denies giving such approval. Taylor went to her Instagram account soon after, writing: “That moment when Kanye West secretly records your phone call.”

Besides the tabloid juiciness of the story, there is an interesting and very serious issue regarding the legality of the recordings. In many states it is illegal to record a telephone conversation without the consent of both parties participating in the telephone conversation. California, where it is believed Mr. West and Ms. Kardashian reside, is one of these “two-party consent states.” In fact, California has some of the strictest laws when it comes to secretly recording telephone conversations. California provides criminal penalties for not gaining consent from all parties, and additional penalties for disseminating or publishing a recording. In addition, California allows for civil remedies for recording a communication without prior consent.

One of the biggest issues is which state Mr. West and Ms. Kardashian were located when they made the recording. For example, in New Jersey, we are a “one-party” consent state. The New Jersey Wiretapping and Electronic Surveillance Control Act N.J.S.A. 2A:156A-3 permits a party who is participating in the conversation to record the conversation. In my practice as a matrimonial attorney in New Jersey, the issue of recording telephone communications is very common, as estranged spouses often want to record communications of abuse and/or misconduct on the part of the spouse. In those cases, a spouse who is participating in a conversation with their spouse is legally permitted to record said conversation.

That all being said, even if the Mr. West was lucky enough to have initiated the telephone call from a “one-party consent” state, such as New Jersey, Ms. Kardashian may still not be in the clear. New Jersey law is clear in that the party recording the communication must be a party to a communication; in other words, they must participate in the conversation. In the recordings posted by Ms. Kardashian, it does not appear that she participated in the conversation and therefore was not a party to the conversation, making her recording illegal.

At this time, it is too soon to know what if any civil and/or criminal ramifications Mr. West and Ms. Kardashian might face, but I am sure we will all keep a close eye as the drama unfolds.

ARTICLE BY Kevin A. Falkenstein of Stark & Stark

Short Samplings of Songs May Not Be Considered Copyright Infringement After All

song samplingThe Ninth Circuit Court of Appeals just decided that song sampling without permission does not necessarily infringe the copyright. Many artists have built careers by sampling an old song to create a new work. Until now, courts have told the artist to “get a license or do not sample.”

The Sixth Circuit Court of Appeals decided in 2005 that there is no de minimus exception to sampling. The de minimus exception, which applies to the copyright law generally, states that if an artist borrowed an insignificant portion of an existing work, the artist did not infringe. The Sixth Circuit held that this exception did not apply to sampling. This meant that if an artist sampled a portion of a song that lasted a fraction of a second, the artist nonetheless infringed.

Now, the Ninth Circuit in VMG Salsoul, LLC v Madonna Ciccone (“Salsoul”)took “the unusual step of creating a circuit split” and decided that thede minimus exception does apply to sampling. In Salsoul, Madonna sampled a 0.23-second “horn blast” from a disco song and incorporated the blast into her 1990 song “Vogue.” The Ninth Circuit explained that Madonna did not infringe because “a reasonable juror could not conclude that the average audience would recognize the appropriation of the horn sound.” Therefore, her sampling was de minimus and did not infringe.

This Ninth Circuit decision will impact the music world and likely lead to a U.S. Supreme Court decision that clarifies the legal limits of unauthorized sampling.

ARTICLE BY Todd A. Davidovits of Polsinelli PC
© Polsinelli PC, Polsinelli LLP in California