Category: Litigation

Employer No-Recording Policies May Violate NLRA Says the Second Circuit

On June 1, 2017, the U.S. Court of Appeals for the Second Circuit, which covers Connecticut, New York and Vermont, upheld a National Labor Relations Board (“NLRB”) finding that Whole Foods Market Group, Inc.’s no-recording policy was overbroad and violated the National Labor Relations Act (“NLRA”).

In Whole Foods Market Group, Inc. v. NLRB, Whole Foods’ employee handbook contained a provision that prohibited employees from recording conversations, phone calls, and meetings, without first obtaining managerial approval.  The court concluded that this no-recording policy violated the NLRA.  The NLRA deems it an unfair labor practice “to interfere with, restrain or coerce employees in the exercise of their rights [to, among other things, engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection.]  Whole Foods insisted that its policy was not intended to interfere with employees’ rights to engage in concerted activity or to prevent them from discussing their jobs, and that it was merely a general prohibition against recording in the workplace.  Whole Foods argued that its policy was “to promote employee communication in the workplace” by assuring employees that their remarks would not be recorded.

Whole FoodsThe Second Circuit found, however, that the seemingly neutral policy was overbroad and could “chill” an employee’s exercise of rights under the NLRA.  In other words, the policy prohibited recording regardless of whether the recording involved an exercise of those rights.  As a result, “’employees would reasonably construe the language to prohibit’ recording protected by [the NLRA].”  Despite finding that Whole Foods’ policy violated the NLRA, the Second Circuit said that “[i]t should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the [NLRA].”  Such a policy might be acceptable if it was narrow in scope, and furthered a legitimate safety concern.

Previously, in 1989, the Second Circuit held that recording a conversation at work in violation of a no-recording policy might not be sufficient “cause” for the termination of an employment agreement under Connecticut law.  In  Heller v. Champion Int’l Corp, (2d Cir. 1989), the Second Circuit rejected the employer’s assertion that such a recording constituted an act of disloyalty on the employee’s part.  According to the Second Circuit in Heller, the employee’s surreptitious tape-recording to be sure, represents a kind of ‘disloyalty’ to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law. . . . Considering the range of factors that might have justified [the employee’s] conduct, especially his belief that he was gathering evidence in support of a possible claim of age discrimination, we cannot say that [the employer] had sufficient cause, as a matter of law, to dismiss him.

The Second Circuit’s latest decision in Whole Foods makes clear that an overbroad no-recording policy in the workplace will be stricken in violation of the NLRA.  At the very least, courts may disregard an overbroad policy depending upon the circumstances surrounding the recording.  In order for a no-recording policy to withstand scrutiny, care must be taken to limit the scope of the prohibition, and consider whether the employee’s purpose for recording jeopardizes an employer’s legitimate interest.

This post was written by Salvatore G. Gangemi of Murtha Cullina.

Widespread Use of GOOGLE Trademark as a Verb Does Not Render the Mark Generic

On May 16, 2017, the United States Court of Appeals for the Ninth Circuit held that widespread use of the word “google” as a verb for “searching the internet” – as opposed to use as an adjective for a brand of internet search engine – was insufficient to establish that GOOGLE ceased to function as a trademark. Elliott v. Google, Inc., No 15-15809, slip op. (9th Cir. May 16, 2017). As a result, the Ninth Circuit affirmed the district court’s granting of summary judgment in favor of defendant Google, Inc. on the plaintiffs’ Lanham Act claim seeking cancellation of the GOOGLE trademark on the ground that it had become generic.

Generic terms are words that are the commonly accepted identification of a type of goods or services. By way of example, “automobile” and “chair” are generic terms when used in connection with their dictionary meanings. Under federal law, generic terms are not protectable as trademarks. Trademarks can become generic over time if they are used as the name for a category of goods or services instead of as a brand name or source identifier. This is commonly known in trademark law as “genericide.” Examples of terms that have lost federal trademark protection due to genericide include “aspirin,” “escalator,” and “thermos,” each of which was once a protectable trademark. A registered trademark may be cancelled if it loses its source-identifying significance by becoming the generic name of a particular type of good or service. 15 U.S.C. §1064(3); Elliott, slip op. at 6.

The question before the Ninth Circuit was “whether the primary significance of the word ‘google’ to the relevant public is as a generic name for internet search engines or as a mark identifying the GOOGLE search engine in particular.” Elliott, slip op. at 12. The plaintiffs argued that the word “google” is primarily understood as “a generic term universally used to describe the act of internet searching.” In support, the plaintiffs presented consumer survey evidence showing that a majority of consumers used the term “google” as a verb for the act of searching the internet.

The Ninth Circuit rejected plaintiffs’ claim as a matter of law for two reasons. First, the court clarified that “a claim of genericide or genericness must be made with regard to a particular type of good or service.” Elliott, slip op. at 8 (emphasis added). Thus, surviving summary judgment would have required plaintiffs to present evidence that the term “google” is generic specifically with regard to internet search engines. Second, the court concluded that “verb use does not automatically constitute generic use,” thus rejecting plaintiffs’ grammatical argument that a word can only be protectable as a trademark when used as an adjective. Elliott, slip op. at 10. The court noted that the part of speech is not dispositive of the genericide issue, as it is well-established that “a speaker might use a trademark as a noun and still use the term in a source-identifying trademark sense.” Elliott, slip op. at 10-11. For example, a restaurant customer might order “a coke,” using the mark as a noun, while still having a particular source of cola beverages – the Coca-Cola Company – in mind. Id. at 11. As a result, plaintiffs’ consumer survey evidence that the public uses the term “google” as a verb was insufficient as a matter of law, because such evidence did not reveal consumers’ thoughts regarding use of the term with respect to internet search engines. Without more evidence, it was not possible to ascertain whether the survey respondents were using the verb “google” in an indiscriminate sense, with no particular internet search engine in mind; or in a discriminate sense, with the Google search engine in mind.

In light of Elliott, a party claiming that a mark has become generic would be wise to present consumer surveys in which respondents indicate whether they believe a term is a brand name or a common name for a particular good or service, regardless of grammatical function. Any consumer survey submitted should be conducted by qualified experts according to accepted principles. As an example, in Elliott, Google offered a survey in support of its position that the GOOGLE mark is not generic, which began by providing a brief overview of the difference between brand names and common names, then asked respondents to classify various words – such as “Coke,” “Jello,” “Amazon,” “Refrigerator,” “Browser,” and “Website” – as either brand names or common names. Id. at 16. Approximately 93% of respondents described “Google” as a brand name. Unlike plaintiffs’ survey, the Ninth Circuit viewed the results of Google’s survey as evidencing consumers’ primary understanding of the word “google” as it related to search engines.

This case contravenes the conventional guidance to always use trademarks as adjectives that modify a descriptive or generic term. Although the Elliott court acknowledged that using a trademark as an adjective makes it easier to prove the source-identifying function of the mark, this holding makes clear that widespread use of trademarks as nouns and verbs does not make them generic, absent significant evidence of indiscriminate consumer use of the mark to refer to any brand of a particular good or service.

This post was written byThomas A. Agnello and Luke W. DeMarte of Michael Best & Friedrich LLP.

Fourth Circuit Ruling Continues Star-Crossed Fate of Trump Administration Travel Ban

On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. This ruling maintains the current status quo under which key provisions of the travel ban have been blocked. As a result, employees from the designated countries remain free to travel to and request admission into the United States.

The EO at issue in the case, “Protecting the Nation from Foreign Terrorist Entry into the United States,” is a revised version of the original executive order that had also encountered legal obstacles. Under the revised version of the executive order, the Trump administration had attempted to address some of the early objections to the original executive order by excluding certain foreign nationals from its scope, such as those who already had visas, or who were green card holders or dual nationals traveling on a passport from a non-designated country. Despite those changes, the revised EO, issued on March 6, 2017, met with challenges and legal objections similar to the original. Section 2(c) of the revised EO, “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period,” was the central focus in this case.

While the court was not directly evaluating the constitutionality of the travel ban, the judges took a close look at the strength of the plaintiff’s Establishment Clause claim against the EO. The Establishment Clause prohibits the government from making any law respecting an establishment of religion. In defense of the EO, the administration has asserted a need to accord deference to the president’s actions taken to protect the nation’s security. The court, however, noted that the president’s authority cannot go unchecked, and included an examination of past statements made by President Donald Trump in its analysis.

Stating that the Trump administration’s travel ban was rooted more in the intent to bar Muslims from the country rather than in the government’s asserted national security interest, the court found that the public interest argued in favor of upholding the district court’s preliminary injunction.

Attorney General Jeff Sessions issued a statement confirming that the government intends to appeal the Fourth Circuit’s decision to the Supreme Court of the United States. A separate nationwide injunction against the EO is currently under appeal in the Ninth Circuit. Oral arguments were heard in that case on May 15, 2017, and a decision is pending. Because the case is still ongoing, this latest decision should not be considered a final determination of the EO’s fate.

This post was written by Jordan C. Mendez and Lowell Sachs of  Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

San Mateo Gardens Teaches College District a Lesson on Picking Thorny Subsequent Review Procedure

The California Supreme Court recently addressed an important California Environmental Quality Act (CEQA) issue: Who decides whether CEQA’s subsequent review provisions are applicable when there are changes to an adopted project? Subsequent review provisions include a subsequent Environmental Impact Report (EIR) or Negative Declaration (ND), a supplemental EIR, or an addendum to an EIR or ND.  When a project that has been reviewed and finalized under CEQA is altered, what type of review process under CEQA is required, if any?  As we said before on Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al., (2016) 1 Cal.5th 937 (Friends of the College), the Court determined that the lead agency makes this determination.  The question that the lead agency should be analyzing is whether the original document “retains some informational value” – if it does, then CEQA’s subsequent review procedures apply.  Should the lead agency’s decision be challenged, then the Court must decide whether “substantial evidence” supports the lead agency’s conclusion.

The First District Court of Appeal thus took up applying this standard on remand. In Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al., (2017 WL *1829176) (San Mateo Gardens), the Court of Appeal upheld the San Mateo County Community College District’s determination that it could proceed under CEQA’s subsequent review provisions.  The District had previously analyzed its project, including the demolition or renovation of some buildings on a San Mateo college campus, through a mitigated negative declaration (MND).  After a failure to obtain funding for renovations to the “Building 20 complex,” the District altered the project to include demolition of Building 20 and its associated gardens (the centerpiece of the dispute) and to renovate two other buildings that were previously slated for demolition.  The District determined that these changes would “not result in a new or substantially more severe impact than disclosed” in the original MND, and thus proceeded to adopt the alteration through a subsequent review procedure document called an addendum.

The Court of Appeal held that the District’s decisions to proceed by CEQA’s subsequent review procedures was supported by substantial evidence. The relevant changes only altered the treatment of three buildings while leaving alone plans to demolish 14 others with attendant mitigation measures.

That the District could proceed by CEQA’s subsequent review procedures, however, only answers the first question. The subsidiary, and more “critical” issue, is “to determine whether the agency has properly determined how to comply with its obligations under those provisions.” Friends of the College, 1 Cal.5th at 953.  In other words, which subsequent review procedure is correct to use.  The Court of Appeal held that a more rigorous standard of review is applicable at this second step when a project is originally accompanied by a negative declaration than when an approved project is originally analyzed through an EIR.  This more rigorous standard looks to whether the negative declaration will require a “major revision.”  A major revision is required when “there is ‘substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered in connection with the project as originally approved.’ ” San Mateo Gardens, 2017 WL *1829176 (quoting Friends of the College, 1 Cal.5th at 959).  If the project was previously analyzed through an EIR, however, the agency may proceed without a subsequent EIR so long as substantial evidence supports the agency’s conclusion that no major revisions to the original document are necessary.

It is at this critical second step that the District failed. The Court of Appeal determined that there was substantial evidence that the altered project might have a significant “aesthetic impact”, which is a cognizable environmental impact under CEQA.  The “Building 20 complex” demolition would include removal of gardens which were of particular value to the college community for aesthetic purposes.  The Court of Appeal therefore concluded that the District violated CEQA in analyzing the altered project through an addendum when a subsequent EIR or MND was necessary.

The takeaway from this case is that lead agencies will have to be especially keen on determining the impact of project changes when the original project is adopted by a negative declaration. While the original document may retain some residual “informational value,” and thus allow CEQA’s subsequent review procedures, it may be difficult to show that project changes do not require some type of further environmental review. It is the lead agencyiess responsibility to determine the need for and type of further review, but that decision must be based upon substantial evidence.

This article was written by David H. McCray and Jacob P. Duginski of Beveridge & Diamond P.C.

Fox News Lawsuits Highlight Importance of Workplace Culture

Employers should take note of the position Fox News is in due to the proliferation of recent lawsuits against the network by numerous current and former employees. To be clear and fair, the lawsuits only involve allegations at this time – nothing has been proven at trial, or otherwise.  Indeed, Fox News has denied the allegations. However, the common intertwined theme throughout all the lawsuits is that Fox News tolerates harassment, discrimination and retaliation. In short, the lawsuits attack Fox News’ workplace culture.

By having its workplace culture attacked, Fox News faces certain defense challenges. For instance, there is likely an increased risk of copycat or “me too” claims.  In fact, Fox News has stated as much to the media. Additionally, the effectiveness of Fox News’ anti-harassment/discrimination policies and its remedial process addressing harassment or discrimination complaints is at issue. Therefore, the company may face challenges in asserting the defense that those employees or former employees alleging discrimination or harassment never complained about the alleged improper conduct, and therefore never gave the company an opportunity to take appropriate remedial action.  Lastly, Fox News has suffered damage to its public reputation.

So what is the takeaway? Simply put, workplace culture matters. Employers should embrace the creation of a harassment/discrimination free workplace culture.  Such a culture should reduce potential lawsuits because the company would be given the opportunity to redress issues early on. Additionally, such a culture will strengthen the company’s defenses against harassment and discrimination claims, lead to increased employee morale and protect against unfavorable publicity that can damage the employer’s reputation.

The following are tips for employers to help create a harassment/discrimination free workplace:

  • Institute a written harassment/discrimination workplace policy with an effective complaint procedure. The complaint procedure should allow employees to bypass their immediate supervisors and report violations directly to other members of management or directly to the HR department. Convey the message that the policy applies to anyone in the workplace, including supervisors, co-workers, vendors and customers, and that anyone can be a harasser or victim.

  • Provide training or information for current and new employees on policy. Conduct refresher training routinely.

  • Implement training for supervisors and managers on relevant policies, including their supervisory responsibilities and role in ensuring compliance with anti-discrimination and harassment policies.

  • Develop the expectation that any employee who is a victim or witness to harassment or discrimination is required to report it.

  • Communicate that retaliation for raising complaints will not be tolerated.

  • Treat complaints confidentially, to the extent practical.

  • Investigate alleged incidents of harassment/discrimination promptly and objectively. Remember that your selection of the individual(s) conducting the investigation matters. The investigator(s) should have sufficient authority to take appropriate remedial action and should be credible. At the end of the investigation, discuss the results with individual who made complaint.

  • Institute appropriate disciplinary action, up to termination, when investigation determines that a policy violation has occurred.

  • Prior to terminating or taking adverse action against an employee, examine potential basis for a retaliation allegation.

Sanctions Imposed for Failure to Preserve Call Recordings

Call RecordingsSec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)

In this case, Plaintiff was sanctioned pursuant to Rule 37(e), as amended on December 1, 2015, for its failure to preserve relevant customer call recordings.

Plaintiff alleged that Defendant had “illegally ‘poached’” its customers and defamed the plaintiff. Defendant, in turn, alleged tortious interference with its contractual relationships and defamation by the plaintiff.  In the course of discovery, Plaintiff produced approximately 150 customer call recordings (out of “thousands”) that were “generally favorable” to it but, when asked, was unable to produce any others and claimed that the recordings were lost, apparently as the result of the “normal operation of a data retention policy.”  Defendant sought sanctions pursuant to amended Rule 37(e).

Taking up the motion, the Court first addressed whether the “newly revised or the former version of Federal Rule of Civil Procedure 37” applied.  Concluding that the revised version was appropriate, the Court reasoned that it was “clearly not impracticable to apply the new rule” and that while it would be “unjust to apply a new rule retroactively when that rule governs a party’s conduct,” Rule 37(e) “does not govern conduct” but rather limits the Court’s discretion to impose particular sanctions, without changing the parties’ duty to preserve as it existed prior to the amendments.

Turning to whether Plaintiff had a duty to preserve, the Court noted that the recordings were destroyed after litigation was ongoing and reasoned that Plaintiff should have known and in fact knew of the calls’ potential relevance, citing its memorandum to employees asking them not to use certain words on calls with Alaskan customers (circulated around the time of the complaint and close in time to being accused by Defendant of defamation during contact with Alaskan customers) and—more importantly—the fact that Plaintiff “flagged the existence of the recordings” in its initial disclosures.

Regarding the threshold question of whether Plaintiff took reasonable steps to preserve, the Court rejected Plaintiff’s argument that its “general litigation hold” was sufficient, despite not encompassing the recordings.  Moreover, the Court noted that “reasonable steps [to preserve] were available,” citing Plaintiff’s admission that the calls could have been extracted to avoid being overwritten and the fact that some recordings were saved.  Recognizing that sanctions are precluded when the information can be restored or replaced through additional discovery, the Court indicated that there was no suggestion that the calls were available elsewhere and thus turned to the question of appropriate sanctions.

First, the Court took up the question of whether the recordings were destroyed with the intent to deprive the other party of the information’s use in the litigation and indicated that based on the “relatively murky record before the Court” regarding the nature of the parties’ discussions surrounding the recordings and their treatment in discovery, it could not conclude that Plaintiff overwrote the recordings with the requisite intent to deprive.  Turning next to the question of prejudice, the Court considered whether the information was available through other means, but reasoned that the call notes and depositions of Plaintiff’s employees were “likely to be far inferior” compared to the calls themselves.  Thus, the Court concluded that Defendant was entitled to a remedy “no greater than necessary to cure the prejudice” as allowed by Rule 37(e)(1).

To address the prejudice suffered by Defendant, the Court ordered that Plaintiff pay Defendant’s reasonable attorneys fees incurred in bringing the motion, that neither party would be allowed to introduce recordings made to or from Plaintiff’s call center absent stipulation or a subsequent order, and that the parties may present evidence related to the lost recordings at trial (although Defendant was barred from arguing that the jury may or should presume that evidence would have been favorable to it). The Court also indicted that it would instruct the jury that Plaintiff was under a duty to preserve the calls, but failed to do so.

ARTICLE BY e-Discovery Analysis and Technology Group of K&L Gates

Copyright 2017 K & L Gates

Litigation for Non-Litigious Company [VIDEO]

Press Millen and Sonya Pfeiffer examine how in-house counsel, CEOs, and other executives can prepare for litigation and avoid litigation mistakes that may prove costly. The eight pitfalls of litigation that companies want to avoid are laid out in this episode.

Press Millen is a veteran of complex commercial litigation, with particular experience in antitrust, unfair trade practices, trade secrets, confidentiality and IP cases. Press also is a frequent author, blogger and speaker on trade secrets issues.

ARTICLE BY Pressly M. Millen of Womble Carlyle Sandridge & Rice, PLLC

Copyright © 2016 Womble Carlyle Sandridge & Rice, PLLC. All Rights Reserved.

Iron Man Composer Battles Tech Giant Sony and Ghostface Killah

copyright infringementThe US Court of Appeals for the Second Circuit ruled in favor of the composer of the 1960s Iron Man theme song, finding material facts in dispute as to whether the song was commissioned as a work for hire. Jack Urbont v. Sony Music Entertainment, Case No. 15-1778-cv (2d Cir., July 29, 2016) (Hall, J).

In 1966, Jack Urbont wrote the theme songs for various characters in the “Marvel Super Heroes” television show, including Iron Man. In 2000, hip hop artist Dennis Coles (known as Ghostface Killah), Sony and Razor Sharp Records produced and released the album “Supreme Clientele” featuring the Iron Man theme song on two tracks, prompting Urbont’s June 2011 copyright infringement lawsuit against Sony, Razor Sharp Records and Ghostface Killah. At trial, the district court found that the defendants had standing to challenge Urbont’s ownership of the copyright under the “work for hire” doctrine, and granted the defendants’ motion for summary judgment on standing, finding that the Iron Man song was a “work for hire” composed at Marvel’s instance and expense, and that Urbont had not presented evidence of an ownership agreement with Marvel sufficient to overcome the presumption that the work was for hire. Urbont appealed.

Third-Party Standing to Assert Right to Hire Defense

On appeal, Urbont cited the US Court of Appeals for the Ninth Circuit’s 2010 holding in Jules Jordan Video v. 144942 Canada,which rejected third-party standing under the work for hire doctrine. The Second Circuit rejected Urbont’s argument, explaining that in that case both potential owners of the copyright were parties to the lawsuit, neither of which disputed ownership. Here, Marvel was not a party to the suit, and a plaintiff in a copyright infringement suit bears the burden of proving ownership of the copyright when ownership is challenged either by an employer or a third party. Citing Island Software & Computer Serv. v. Microsoft, the Court explained that Sony, a third party to an alleged employer-employee relationship, did have standing to raise the “work for hire” defense to try to refute Urbont’s alleged ownership of the copyright.

The Copyright Act Claim

Under the Copyright Act, an employer is considered an “author” of a copyrightable work in the case of works made for hire. Citing to its 2013 case Marvel Characters v. Kirby, the Second Circuit explained that absent an agreement to the contrary, a work is made for hire when it is “made at the hiring party’s ‘instance and expense,’” i.e., when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.

In reversing, the Second Circuit credited the district court’s reliance on evidence supporting the assertion that the song was a work for hire developed at Marvel’s instance, including that Urbont had not previously been familiar with the Marvel superheroes and had created the work from material given to him by Stan Lee, who had the right to accept or reject his song. However, the Court concluded that Urbont’s evidence that he retained all creative control over the project and that Lee was not permitted to modify the work, coupled with his testimony that he approached Lee, not the other way around, weighed against finding that the work was created at Marvel’s instance.

As for the expense factor, Urbont claimed that he created the song with his own tools and resources, including renting a recording studio, supported his assertion that it was he, not Marvel, who bore the risk of the work’s success. Although the $3,000 payment Urbont received weighed in favor of a finding that the work was created at Marvel’s expense, Urbont’s testimony that he also received royalties undermined such a conclusion. The Second Circuit explained that while a hiring party’s payment of a specific sum in exchange for an independent contractor’s work satisfies the “expense” requirement, the payment of royalties weighs against finding a “work for hire” relationship. The Court thus found that a genuine issue of material fact remained as to whether the Iron Man composition was a work for hire created at Marvel’s instance and expense.

Finally, the Second Circuit found that the district court erred in concluding that Urbont failed to produce evidence to rebut the presumption that Marvel owned the work, noting that on summary judgment, the district court was required to accept Urbont’s testimony in support of his position.  The Court reversed and remanded the case back to the district court.

ARTICLE BY Andrea Coronado of McDermott Will & Emery

© 2016 McDermott Will & Emery

Introducing the New SmartExpert: Self-driving Car "Drivers"

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state.  Why?  Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right.  If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.

Introducing the New SmartExpert: Self-driving Car “Drivers”

The National Highway Traffic Safety Administration has deemed the artificial intelligence that controls Google’s self-driving car a qualified “driver” under federal regulations. So, if a computer can drive, must we have a computer testify as to whether this new “driver” was negligent? It sounds laughable: “Do you, computer, swear to tell the truth?” But, with so many new potential avenues of litigation opening up as a result of “machines at the wheel,” it made us wonder how smart the new expert will have to be?

With its heart beating in Silicon Valley and its position well-established as a proponent of computer invention and progress, it was surprising when California was the first state to suggest we need a human looking over the computer’s shoulder. That is essentially what the draft regulations from the California Department of Motor Vehicles for the regulation of self-driving vehicles proposes – that self-driving cars have a specially-licensed driver prepared to take the wheel at all times. After years spent developing and testing self-driving cars in its home town of Mountain View, California, Google may now be looking elsewhere for testing and production. The rule proposed by the California DMV would make Google’s car impossible in the state.  Why?  Because humans cannot drive the Google self-driving car. It has no steering wheel and no pedals. The Google car could not let a human take over the wheel. Does that thought make you pause?

It apparently didn’t give the National Highway Traffic Safety Administration any cause for concern, as they approved Google’s self-driving software, finding the artificial intelligence program could be considered a bonafide “driver” under federal regulations. In essence, Google’s driving and you are simply a passenger. If you would hesitate to get in, Google’s Chris Urmson, lead engineer on the self-driving car program explains: “We need to be careful about the assumption that having a person behind the wheel will make the technology safer.” Urmson is basically saying computers are safer than humans. When you think about the number of automobile accident-related deaths in the United States alone, he may be right.  If he is right, wouldn’t artificial intelligences sophisticated enough to drive a car more safely than humans be able to learn to do other things better as well? Couldn’t they drive a forklift, perform surgery on humans, manage a billion dollar hedge fund? If that is where things are heading, who will testify as to the applicable standards of behavior for these machines? In the hedge fund example, will it be a former hedge fund manager who has years of experience handling large, bundled securities or a software developer who has years of experience programming artificial intelligence?

Who do you think will be able to testify in cases where an artificially-intelligent machine plays a role? Liability at the hands of a machine is bound to emerge. Someone will have to speak to the standard of judgment, discretion, and care applicable to machines. Maybe Google will be allowed to text while driving. Who’s to say?

Article By Annie Dike of IMS ExpertServices

© Copyright 2002-2016 IMS ExpertServices, All Rights Reserved.