Volume 166, Issue 5 
April 2018
Articles

Law, Virtual Reality, and Augmented Reality

Mark A. Lemley & Eugene Volokh

Virtual Reality (VR) and Augmented Reality (AR) are going to be big—not just for gaming but for work, for social life, and for evaluating and buying real‐world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:

(1) How might the law treat “street crimes” in VR and AR—behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self‐help (which will offer an attractive alternative protection to users, but also a further excuse for real‐world police departments not to get involved).

(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?

(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?

(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?

(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech–conduct distinction?


Patenting Around Failure

Sean B. Seymore

Many patents cover inventions that do not work as described. Fingers often point to the U.S. Patent and Trademark Office (Patent Office), which is criticized for doing a poor job of examining patents. But the story is more complicated for at least three reasons. First, the Patent Office is at a clear disadvantage from an information standpoint. Inventors have little incentive to disclose failure because it might compromise patentability. Second, an inventor is not required to actually make everything that is claimed (or verify that everything that is claimed actually works) before filing a patent application. Third, inventors have an incentive to file patent applications early in the inventive process. Often, filing occurs during the initial stages of research and development, before much experimentation has been done and when the level of uncertainty is high. Together, these factors set the stage for an issued patent covering subject matter that does not work as described.

Of course, inventors continue to experiment during the years of patent examination. This additional experimentation inevitably reveals more information about the invention than the inventor knew at the time of filing, including if any of the claimed subject matter fails to work as described in the patent application. This raises an important issue that has been overlooked by both courts and scholars: When post‐filing experimentation reveals that some of the claimed subject matter does not work, is there a duty to act? This Article argues when failure comes to light the inventor has a legal obligation to, at a minimum, amend the claims. It then explains how to encourage inventors to disclose details about the failure in the patent record. This additional disclosure would have several upsides for the inventor: it would improve patent (examination) quality, enrich the public storehouse of technical knowledge, and promote the broader goals of the patent system.


Fourth Amendment Moralism

Anna Lvovsky

The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search.

This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well‐documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary‐search doctrine gleaned from the Court’s drug‐testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy‐based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy.

Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.


Comments

The Nuclear Option: What Can States Do to Encourage Clean Energy After Hughes and EPSA?

Jennifer Ko

In the absence of federal climate change policy, many states have adopted programs that encourage clean energy generation from sources such as wind, solar, and nuclear. Nuclear energy in particular remains an attractive option for a number of states pursuing clean energy policies because of its ability to generate electricity without producing any greenhouse gas emissions. Thus far, attempts by state regulators to encourage intrastate clean generation have also been trailed by fierce legal challenges from industry and consumer groups.

This Comment distills the case law on state clean energy programs, and focuses on the legal issues that have been raised in litigation involving New York and Illinois’s zero emission credit programs. It then proposes best practices that state regulators can adopt when designing clean energy programs so as to reduce litigation risk. By insulating their clean energy programs from legal challenges, states will be better equipped to achieve their individual climate change goals.


Unsettled: Victim Discretion in the Administration and Enforcement of Criminal Restitution Orders

David Peters

In 2008, a prominent Philadelphia businessman, Donald Dougherty, Jr., was charged with nearly one hundred counts of fraud, theft, bribery, and tax evasion. Dougherty was accused of engaging in illegal accounting practices as the owner, president, and sole shareholder of Dougherty Electric, Inc., an electrical contracting business. As a result of the accounting scheme, Dougherty defrauded the United States government of well over $1 million in taxes. In addition, Dougherty defrauded IBEW Local 98, the union with which his business contracted, of more than $670,000 in contributions owed to the IBEW benefit and pension plan. Dougherty pled guilty to all charges.

After Dougherty entered his plea, the court sentenced him to twenty‐four months in prison. In addition, pursuant to the federal Mandatory Victims Restitution Act (MVRA), the court ordered Dougherty to repay the victims of the crime for the losses suffered, $2.3 million owed in total to the United States government and the IBEW. The colorful facts of the case aside, nothing about the proceeding was particularly unusual.

That is until March 2016, when Dougherty petitioned the District Court for the Eastern District of Pennsylvania to have his restitution payment “marked as satisfied.” Dougherty had made a lump‐sum payment of $2.5 million to the federal government in December 2015, which fully satisfied his outstanding restitution and back taxes. Additionally, Dougherty had entered into a settlement agreement with the IBEW in 2011. By the terms of the settlement, Dougherty paid a lump sum of $200,000 to the union in exchange for “satisfaction of all obligations owed to IBEW and the IBEW Benefit Funds arising from the conduct underlying the restitution order.” In his petition, Dougherty contended that he had fulfilled his restitution obligation and the court should recognize as much.

The court has yet to rule on Dougherty’s petition. But the question it raises is a difficult one—whether a victim and defendant may settle a restitution payment under the MVRA is one that courts have not fully resolved.

The MVRA is the federal statute that regulates restitution for the most serious federal crimes. Congress enacted the MVRA to bring the federal restitution scheme more in line with the objectives of the victims’ rights movement by forcing sentencing judges to enter orders of restitution for the full amount of a victim’s loss. In passing the MVRA, Congress severely restricted judicial discretion in ordering restitution at the time of sentencing. In the same legislative act, Congress also bolstered the MVRA’s enforcement clause to ensure victims could control their participation in the restitution process. These two provisions are in tension when courts seek to apply the MVRA: although both provisions are intended to promote victims’ rights, they come into conflict when determining the scope of a victim’s ability to settle outstanding restitution orders.

This Comment argues that the enforcement provisions of the MVRA provide mechanisms by which a willing victim may settle an outstanding restitution order with a criminal defendant. The MVRA’s limitation on judicial discretion is not a limitation on a victim’s ability to dispose of restitution in a way she sees fit. Courts and judges err when they conflate a lack of judicial discretion in ordering restitution with a lack of victim discretion in settling such an order.

Not only is this a permissible reading of the statutory scheme, it is also a preferable one. The benefits of such an approach are twofold. First, it would safeguard the right of victims to participate in the criminal justice process, a central tenet of the victims’ rights movement. Second, for at least a certain segment of the victim community, it would increase victim satisfaction with restitution.


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