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Workplace Wellness Programs under the ACA: Drawing the Line between Effective Health Incentives and Employer-Imposed Infringements

By: Patrick Tyler, Albany Government Law Review

As part of the new requirements for employer-provided health plans, the Affordable Care Act (hereinafter, “ACA”) allows employers to offer employees incentives worth up to thirty percent of their health plan costs, a ceiling that the government may increase to fifty percent under select circumstances.[1] In order to receive these incentives, employees must participate in workplace wellness programs, which often involve extensive testing and may require employees to meet certain benchmarks in improving their health such as attaining a target bodyweight.[2] These programs appear to be keeping with the general spirit of the new healthcare law, as a major theme in the ACA is an increased reliance on outpatient wellness programs and data-driven care.[3]

However, these programs are also the object of growing scrutiny and criticism. The Equal Opportunity Commission (hereinafter, “EEOC”) argues that these plans have the potential to be used as a vehicle to discriminate against workers with disabilities.[4] Critics also allege that these plans appear to be a way for employers to shift the financial burdens of health care expenses onto the backs of their employees.[5] Therefore, in order for these plans to be successful in the long term, it must be clear that they are both effective in achieving their stated employee health goals and have adequate legal safeguards in place to protect against discriminatory practices on the part of employers.

I. Civil Rights Challenges

In August 2014, the EEOC filed a lawsuit against the Orion Energy Company for violating the Americans with Disabilities Act (hereinafter, “ADA”) through the misuse of its wellness plan.[6] The EEOC alleged that the company fired one of its employees for failure to participate in its plan.[7] Orion’s wellness plan, according to the EEOC, involved an examination that made impermissible disability-related inquiries that were unrelated to business necessity.[8]

However, the extent to which the EEOC has the ability to sanction misuse of wellness programs and define their contours may be limited. Recently a federal district court in Minnesota rejected the EEOC’s request for an injunction against Honeywell International based on the agency’s contention that the company’s healthcare plan violated the ADA as well as the Genetic Information Nondiscrimination Act (hereinafter, “GINA”).[9] Honeywell’s healthcare plan conditions its contributions to its employees’ health savings account (hereinafter, “HSA”) on participation in the company’s wellness program.[10] The central feature of the program requires participants to undergo biometric testing which screens health indicators such as blood pressure and cholesterol in order “to inform participants about their health status, encourage improvement of specific health goals and ultimately reduce claim costs.”[11] Employees can choose to opt out of the program, but this would result in significant financial loss with regard to their HSA accounts.[12] The court’s rejection of the injunction signals that deference to the EEOC in matters of ADA discrimination in employer wellness plans may be limited.[13] This rejection also suggests there may be an inherent conflict over these plans between the EEOC and Health and Human Services (“HHS”) with regard to the extent to which employment and labor law protections can trump the objectives of the ACA.[14] This conflict may become more prominent as new challenges to workplace wellness programs arise, and courts are compelled to draw the line between incentives for a healthier lifestyle and discrimination based on health-related, but protect factors such as age and disability.[15]

The ultimate outcomes of the cases against Orion and Honeywell, and ADA claims brought under similar theories, will depend upon of a few factors. First, whether the surcharges and lost contributions in an employer’s plan are significant enough to render it involuntary.[16] Second, whether the nature and scope of the testing is limited to information necessary to make actuarial decisions for the purpose of underwriting or administering the risks of a “bona fide benefit plan,” thereby placing the wellness program under the ADA’s health insurance safe harbor, which allows for health testing that would otherwise impermissible under the ADA.[17] So far, the stance of the Minnesota District Court appears to favor Honeywell’s argument that their program falls under the ADA’s safe harbor in light of the ACA’s expanded permissiveness with regard to what defines a bona fide benefit plan.[18]

In addition to disputes over whether participation in an employer’s health program is involuntary or impermissibly invasive, conflicts may arise over the question of whether obesity is a protected trait.[19] The Americans with Disabilities Amendments Act (hereinafter, “ADAA”) of 2008 broadened the definition of what constitutes a disability under the ADA, making it easier for overweight employees to bring discrimination claims.[20]

Should workplace wellness programs continue to expand in number and scope, claims could potentially arise from participating employees who experienced a denial or decline of health savings account contributions for failure to meet weight loss benchmarks.[21] This type of litigation would pit the outlook of the EEOC and those civil rights advocates pushing to establish obesity as a non-transitory trait for the purposes of the ADA[22] against the underlying public health philosophy of the ACA, which seeks to create a public perception of weight loss as the attainable result of lifestyle changes.[23]

 II. Are Wellness Plans Effective?

A recent study by the Rand Corporation, commissioned by the Department of Labor, undertook a comprehensive analysis of healthcare plans at various companies.[24] The study found that many of the features of wellness plans, including onsite exercise facilities and access to organic food, were often well-received by employees, although satisfaction varied depending on the employer and differences in occupation.[25] Additionally, some requirements of plans were perceived as being overly intrusive or unfairly burdensome to some employees as opposed to others.[26] Furthermore, with regard to issues such as weight loss or smoking cessation, the incentives programs put in place by employers only seemed to have, at best, a modest impact on the health-related behavior of employees.[27] The study recommended that companies take more comprehensive steps to communicate both the availability and benefits of their wellness programs.[28] Furthermore, it emphasized that companies must make greater strides to promote acceptance of the plans among management and to make sure that there are proper accommodations in place to ensure access to the plans for all employees regardless of scheduling conflicts or other logistical obstacles.[29] Although the measurable benefits have been limited so far, proponents of workplace wellness programs highlight the need to look beyond their short-term effectiveness and look and at the long-term goals of engagement and the benefits of a gradual shift toward a healthier workplace culture.[30]

III. Impending Clashes between Personal Freedom and Public Health

Although debates around the ACA often focus on its expansion of Medicaid and the intricacies of the state and federal insurance exchanges, another, almost equally important aspect of the law is its emphasis on finding ways to improve the health of the American public outside of the hospital and doctor’s office.[31] Public health measures, such as requiring restaurants to provide detailed nutrition labeling in their menus[32], have been controversial.[33] In National Federation of Independent Businesses v. Sebelius, the ACA’s individual mandate was compared, by way of analogy, to the government requiring the average citizen to purchase a certain quantity of broccoli.[34] This analogy was, for the purposes of the case, targeted at the discussion of the ACA’s scope under the commerce clause. However, the ‘broccoli’ themed argument also seems to reflect a larger uneasiness the American public has with the underlying philosophy of the law.[35]

A reoccurring feature of the healthcare reform discourse is the unfavorable comparison between the United States and other industrialized countries across a broad range of health outcomes and measurements.[36] However, what is often overlooked are the fundamental lifestyle differences, namely exercise and diet, between the average American citizen and people living in western European countries such as Scandinavia or France[37] which have a very significant impact on basic health measures and life expectancy, regardless of clinical healthcare access or quality.[38] Nevertheless, despite the massive problems the United States has with regard to issues such as poor diet, sedentary lifestyles, and obesity, there will likely continue to be resistance to any attempts by the government to directly influence the choices the average American makes in their personal lives with regard to their health.[39] Whether subtle, incentive-based approaches, like workplace wellness programs, can weather this resistance and slowly reshape the cultural landscape remains to be seen.

There is also the question of how these broad wellness policies put forward by the ACA will interact with legal protections within grey area of disabilities that are arguably the result of lifestyle choices. Will, for example, individuals with alcohol dependency receive protection under the ADA[40] within the novel context of wellness programs that collect employee biometric data and seek to eliminate alcohol-related health problems such as high blood pressure and heart disease? The answers are unclear, but the emerging debate will likely involve clashes between those advocating for employment protection and public health law interests and its resolution will likely require a paradigm shift in the legal and cultural landscape of the United States.

[1] Soeren Mattke et al., RAND Health, Workplace Wellness Programs Study: Final Report xx (2013), available at http://www.dol.gov/ebsa/pdf/workplacewellnessstudyfinal.pdf; Fact Sheet: The Affordable Care Act and Wellness Programs, U.S. Dep’t of Labor, available at http://www.dol.gov/ebsa/newsroom/fswellnessprogram.html.

[2] Michael Hiltzik, Does your Employer Really Care About your ‘Wellness’? Maybe not, LA Times, Nov. 4, 2014, http://www.latimes.com/business/hiltzik/la-fi-mh-wellness-not-especially-20141104-column.html.

[3] See, e.g., Gene Marcial, Obamacare Focuses On Prevention and Wellness by Spending More on Medical Tests, Forbes, Aug. 9, 2013, http://www.forbes.com/sites/genemarcial/2013/08/09/obamacare-focuses-on-prevention-and-wellness-by-spending-more-on-medical-tests/ (noting that the ACA seeks to provide widespread tests and health data collection in order to “identify areas where early treatment would avoid diseases that would require costly medical specialists or hospital stays.”); Health Res. and Serv. Admin., The Affordable Care Act and Health Centers, http://www.hrsa.gov/about/news/2012tables/healthcentersacafactsheet.pdf (last visited Apr. 13, 2015) (“The health center model also overcomes geographic, cultural, linguistic and other barriers through a team‐based approach to care that includes physicians, nurse practitioners, physician assistants, nurses, dental providers, midwives, behavioral health care providers, social workers, health educators, and many others.”).

[4] Dan Cook, EEOC Reviewing Wellness Programs for ADA Violation, Benefitspro, Oct. 2, 2014, http://www.benefitspro.com/2014/10/02/eeoc-reviewing-wellness-programs-for-ada-violation.

[5] Hiltzik, supra note 2.

[6] Complaint and Demand for Jury Trial at 1, E.E.O.C. v. Orion Energy Systems, No. 14–1019 (E.D. Wis. Aug. 20, 2014), available at http://www.littler.com/files/Wellness.pdf.

[7] Id. at 1, 5.

[8] Id. at 1, 6.

[9] E.E.O.C. v. Honeywell Int’l, Inc., 2014 WL 5795481, 1–2, 5 (D. Minn. Nov. 6, 2014).

[10] Id., at 1.

[11] Id. at 1.

[12] Not only would they lose out on any potential contribution on the part of Honeywell, they would also be expected to pay a five hundred dollar surcharge as a result of their failure to participate and a one thousand dollar “tobacco surcharge” for both them and their spouse regardless of whether their refusal to participate was based on tobacco use. The EEOC estimated that there could be up to a four thousand dollar penalty in both “surcharges and lost HSA contributions” for refusal to participate. Petition for a Temporary Restraining Order and Preliminary Injunction at ¶¶14–15, EEOC. v. Honeywell Int’l, Inc., 2014 WL 5462363 (D.Minn. Oct. 27, 2014).

[13] See generally Honeywell Int’l, Inc., 2014 WL at 1.

[14] See id. at 5.

[15] Id.at 2–5 (“Recent lawsuits filed by the EEOC highlight the tension between the ACA and the ADA and signal the necessity for clarity in the law so that corporations are able to design lawful wellness programs and also to ensure that employees are aware of their rights under the law.”)

[16] See 42 U.S.C. § 12112(d)(4)(B) (2014).

[17] 42 U.S.C.A. § 12201(c)(2) (2014).

[18]See Honeywell Int’l, Inc., 2014 WL at 5 (Honeywell’s argument in favor of the legitimacy of their program was based on “Congresses’ express approval of surcharges used in conjunction with wellness programs, as expressed in the Affordable Care Act”).

[19] Jane Korn, Too Fat, 17 Va. J. Soc. Pol’y & L. 209, 250 (2010).

[20] The ADA defines a disability as an impairment that substantially limits a major life activity. The ADAA significantly expands the definition of a major life activity. Furthermore, as a result of the ADAA, if an employer discriminates on the basis of a perceived impairment, it is sufficient to establish liability regardless of whether the impairment actually limits or is perceived by the employer to limit a major life activity. 42 U.S.C. § 12102(1)–(2); see also Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008, U.S. Equal Emp’t Opportunity Comm’n, available at http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm (last visited Apr. 13, 2015).

[21] See 26 CFR § 54.9802-1(f) (The current regulations allow for nondiscriminatory progress-contingent incentives, including losing a certain percentage of bodyweight. The rules regarding outcome-based plans require employers to craft reasonable alternatives, such as completing an educational course, for employees who don’t achieve the initial health outcome goal. The sufficiency of an employer’s alternative would likely be a determinative factor in an ADA discrimination claim).

[22] Korn, supra note 19, at 250 (arguing for the recognition of obesity as a protected trait on the basis that “while obesity may be somewhat mutable, it is not in the same category as getting one’s teeth straightened or putting on makeup. Most experts would agree that significant weight loss and maintaining that weight loss are extremely difficult although not impossible.”).

[23] See Christine Fry et al., Healthy Reform, Healthy Cities: Using Law and Policy to Reduce Obesity Rates in Underserved Communities, 40 Fordham Urb. L.J. 1265, 1286 (2013).

[24] Soeren Mattke et al., supra note 1, at iii.

[25]Id. at 96–98.

[26] See generally id. at 97–98.

[27] Id. at 87 (“Regression results suggest that incentives are associated with improvements in smoking, BMI, and exercise but not in cholesterol levels. Although the relationship between incentive levels and the three behaviors/outcomes is statistically significant, the magnitude of the effect is small.”)

[28] Id. at 97–98.

[29] Id.

[30] See Aetna, Creating an Effective Wellness Strategy: Plan Sponsor Wellness Guide, 3 (2008), http://www.aetna.com/employer/commMaterials/documents/Roadmap_to_Wellness/ps_wellness_guide.pd.

[31] See Fry et. al, supra note 23, at 1282–83.

[32] Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments, Fed. Register, available at https://www.federalregister.gov/regulations/0910-AG57/food-labeling-nutrition-labeling-of-standard-menu-items-in-restaurants-and-similar-retail-food-estab (describing a proposed rule in the Federal Register to be codified as 21 CFR Parts 11 and 101).

[33] Bejamin Goad, Uproar Over ObamaCare’s Menu Rules, The Hill (Feb. 18, 2014), http://thehill.com/regulation/healthcare/198602-lawmakers-o-cares-menu-labeling-regs-go-too-far.

[34] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012).

[35] See James B. Stewart, How Broccoli Landed on Supreme Court Menu, NY Times (June 13, 2012), http://www.nytimes.com/2012/06/14/business/how-broccoli-became-a-symbol-in-the-health-care-debate.html?_r=0 (“Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.”); see also Daniel D. Duhame, What Does Broccoli Have to Do With Health Care? A Commerce Clause Justification, Brown Political Review (Dec. 20, 2012), http://www.brownpoliticalreview.org/2012/12/what-does-broccoli-have-to-do-with-health-care-a-commerce-clause-justification/.

[36] See, e.g., Lenny Bernstein, Once Again, U.S. Has Most Expensive, Least Effective Health Care System in Survey, Washington Post, (June 16, 2014), http://www.washingtonpost.com/news/to-your-health/wp/2014/06/16/once-again-u-s-has-most-expensive-least-effective-health-care-system-in-survey/ (citing a recent survey which found that compared to other developed western countries the U.S. had “inordinate levels of mortality from conditions that could have been controlled, such as high blood pressure; and lower healthy life expectancy at age 60.”).

[37] See Valerie Frankel, Secrets of the World’s Healthiest Women, CNN, (Jan. 13, 2012)

http://www.cnn.com/2012/01/13/health/secrets-worlds-healthiest-women/.

[38] “Americans, on average, have a higher body mass index (BMI) than people in many other comparatively wealthy countries. In 1998, the World Health Organization reported that 20% of American males and 25% of American females between twenty and seventy-four years of age were obese (identified as those with a BMI of 30 or higher). Contemporaneously, 15% of men and 17% of women in England were considered obese, and 5% of men and 9% of women in Sweden and 2% of men and 3% of women in Japan were categorized as obese.” Janet L. Dolgin & Katherine R. Dieteric, Weighing Status: Obesity, Class, and Health Reform, 89 Or. L. Rev. 1113, 1146–47 (2011).

[39] See Duhame, supra note 35 (describing how American healthcare consumers tend to make health decisions based on short-term, individualistic impulses rather than long term, utilitarian reasoning); see also New York Statewide Coal. of Hispanic Chambers of Commerce v. New York City Dep’t of Health & Mental Hygiene, 23 N.Y.3d 681, 698 (2014) (holding that New York City’s ban on large soft drink containers was an overreach of policy-making authority because it failed to consider non-health factors and attempted to limit the autonomy of citizens by influencing their choices and behavior).

[40] While the ADA’s protections for those with alcoholism do not currently extend to discrimination based on an employee’s consumption of alcohol at work or work misconduct committed while intoxicated, adverse employment action through workplace wellness programs on the basis of alcohol-related health problems accumulated outside of work could potentially form the basis of an ADA claim. See generally E.E.O.C. v. Exxon Corp., 967 F. Supp. 208, 209–12 (N.D. Tex. 1997), rev’d and remanded, 203 F.3d 871, 872–75 (5th Cir. 2000); Beth Hensley Orwick, “Bartender, I’ll Have a Beer and a Disability”; Alcoholism and the Americans With Disabilities Act: Affirming the Importance of the Individualized Inquiry in Determining the Definition of Disability, 20 St. Louis U. Pub. L. Rev. 195, 202–03 (2001).

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End of Life Decisions – A Fundamental Right?

Tara Silk – Albany Government Law Review

I. Introduction

            The cancer diagnoses of two young women recently debated in the media have shown a spotlight on the government’s control involving very personal medical decisions.[1] The two cases are different in that one involved the law actively making a teenage girl get treatment[2] and the other examined what limitations the law can place on choices that individuals can make when treatment is no longer effective.[3] While the medical decisions made by the women are inherently personal in nature, they are still controlled by law, and due to existing rules, both are unable to carry out their wishes exactly as they would want.[4] This may seem like an area in which the law should not be so restrictive—is not the right to die the most essential liberty interest that should be protected by the Fourteenth Amendment?

II. Two Women’s Decisions

A. Brittany Maynard

The young woman Brittany Maynard captured media attention in the fall of 2014 by her public decision to choose to end her life on her own terms.[5] Diagnosed with brain cancer on New Year’s Day 2014, the twenty-nine-year-old at first sought treatment.[6] She had a partial craniotomy and a partial resection of her temporal lobe.[7] Sadly, even after the radical surgery, her tumor came back, and she was diagnosed with stage four glioblastoma.[8] She was given a prognosis of six months to live.[9] Facing a reality that there was no treatment for her and that she potentially faced an excruciating debilitative and painful progression as a result of her tumor,[10] Maynard made a deliberative decision to pursue ‘death with dignity’, an option that allows a patient to get a prescription for life-ending medication that can be taken by the patient when he or she chooses.[11] Maynard took the medication and passed way on November 1, 2014.[12]

 B. Current Law

Maynard made her decision very public in an attempt to advocate for ‘death with dignity’ an option she was able to choose, but one that is not always available to others suffering in similar situations.[13] While it has been established that one of the liberties granted to Americans by the Fourteenth Amendment is the right for a competent adult to refuse life sustaining treatment,[14] affirmative action to ends one’s life is not.[15] Organizations fighting for physician assisted suicide have be around for over thirty years,[16] yet as of November 2014 only Oregon, Washington, Vermont, Montana, and New Mexico allow patients to get this assistance.[17] Maynard herself, originally not a resident of one of these five states, had to go through the ordeal of moving and establishing residency in Oregon, a process that required resources that she argued not everyone who need this option have.[18] In 1994, Oregon was the first state to allow ‘Death with Dignity’, an act voted in by its residents.[19] The Act contains very specific restrictions on who qualifies and how one is able to go about getting the medication prescription.[20] While there may be concerns of misuse, since 1997 1,173 patients in Oregon have received prescriptions with 752 dying after taking the medication,[21] these are not numbers that would suggest abuse.

Maynard’s advocacy is making a difference in galvanizing other states to allow for similar assistance in dying.[22] In early January 2015, Maynard’s original home state of California put forth a potential bill that would allow terminally ill patients with six months to live to get a lethal prescription from a physician.[23] While in previous years similar bills had been put forward in the state and failed, Maynard’s story may be the factor that makes a difference this time.[24] New York, in January 2015, also introduced a new bill that would allow for a similar legal right for a terminal patient to obtain medication to aid in the dying process.[25]

C. Cassandra C.

This January 2015, the story of another young woman with cancer was in the headlines, seventeen-year-old Cassandra C.[26] The Connecticut resident had been diagnosed with Hodgkin’s lymphoma in September and did not want to receive chemotherapy treatment. Cassandra’s mother was in agreement with her daughter’s decision stating that, “‘even years ago- [Cassandra] said that if ever she had cancer . . . she would not put poison into her body’”.[27] Cassandra and her mother missed appointments that resulted in the state Department of Children and Families to get involved.[28] While Cassandra’s mother stated in an interview that “‘[i]t’s her [Cassandra’s] body, and she should not be forced to do anything with her body”, that was not the way the law saw the issue.[29] The Connecticut Supreme Court on January 8th, 2015 ruled that the minor must continue to receive chemotherapy treatment, a treatment that would give the girl an eighty-five percent chance of survival, but without which she would likely die within two years.[30]

D. Current Law

At seventeen Cassandra is considered a minor in the eyes of the law. While competent adults are constitutionally allowed to refuse medical treatment,[31] that same choice for minors is not as clear.[32] Cassandra’s case was the first time Connecticut Supreme Court examined the “mature minor doctrine” according to Cassandra’s attorney.[33] The Court ruled that Cassandra at trial failed to show that she was mature to make her own medical decisions.[34]

The question remains, should a court get to dictate that one has to get treatment? In September 2015 Cassandra will be eighteen[35] and then she will be able to make her own decisions regarding any medical intervention. How much of a change in maturity will she undergo in seven months? The decision by the Court in this case may seem like the logical one given that Cassandra’s type of cancer is statistically very treatable,[36] but chemotherapy treatment is not without its risks.[37] While many of the side effects of chemotherapy discontinue when treatment ends, there can be some serious ones that may not occur until after treatment is over.[38]   These can include long lasting consequences like heart problems, kidney problems, infertility, or even the risk of a second cancer.[39] Should the government be able to make someone take treatment when that can result in the same outcome the individual already is suffering from?

III.            Conclusion

In Cassandra’s case, the law dictated that she must receive treatment even when she did not want it.[40] For Brittany Maynard, she had to leave California because the treatment she sought was illegal there.[41] Freedom is synonymous with the American life. Yet, when it comes to what some would say is the most basic of liberties, the right to control one’s own medical decisions, the law as it stands would not let these two women make the decision they wanted. The Supreme Court agrees to at least some extent that medical decisions are “deeply personal” and part of a “patient’s liberty,”[42] but that liberty is qualified. When given the opportunity to say the same for doctor assisted suicide, the argument was made that the government did not consider it a fundamental right.[43] Minors’ freedom to make their own medical decisions is also limited.[44] Given these two restrictions, what may seem, at its heart, a freedom issue, one’s potential end of life choices, can, under current laws, be not much of a personal decision.

[1] See Associated Press [AP], Brittany Maynard, 29, Kills Herself Under Oregon’s ‘Death with Dignity’ Law, The Guardian (Nov. 3, 2014), http://www.theguardian.com/us-news/2014/nov/03/terminally-ill-oregon-death-with-dignity-brittany-maynard; Dave Collins, Connecticut Court to Hear Case of Teen Refusing Chemotherapy, Yahoo.com (Jan. 6, 2015), http://news.yahoo.com/connecticut-court-hear-case-teen-refusing-chemotherapy-164746613.html.

[2] Collins, supra note 1.

[3] See AP, supra note 1.

[4] See id.; Collins, supra note 1.

[5] AP, supra note 1.

[6] Brittany Maynard, My Right to Death with Dignity at 29, CNN.com, http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/ (last updated Nov. 2, 2014).

[7] Id.           

[8] Lindsey Bever, Cancer Patient Brittany Maynard, 29, has Scheduled her Death for Nov. 1, Wash. Post (Oct. 8, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/10/08/terminally-ill-brittany-maynard-29-has-scheduled-her-death-for-nov-1/.

[9] Id.

[10] Maynard, supra note 6 (“[D]octors prescribed full brain radiation. . . . [and] [m]y scalp would be left covered with first-degree burns. My quality of life, as I knew it, would be gone . . . . But even with palliative medication, I could develop potentially morphine-resistant pain and suffer personality changes and verbal, cognitive and motor loss of virtually any kind.”).

[11] Id.

[12] Catherine E. Shoichet, Brittany Maynard, Advocate for ‘Death with Dignity,’ Dies, CNN.com, http://www.cnn.com/2014/11/02/health/oregon-brittany-maynard/index.html (last updated Nov. 3, 2014) (emphasis added).

[13] See AP, supra note 1 (only five states allow assistance in dying).

[14] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 279 (1990).

[15] See Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[16] Sarah Childress, The Evolution of America’s Right-to-Die Movement, PBS.org (Nov. 13, 2012, 9:12 PM). http://www.pbs.org/wgbh/pages/frontline/social-issues/suicide-plan/the-evolution-of-americas-right-to-die-movement/ (the first right to die organization in the U.S. was the Hemlock Society founded in 1980 by Derek Humphry).

[17] AP, supra note 1.

[18] See Maynard, supra note 6 (“[E]stablishing residency in the state to make use of the law required a monumental number of changes. I had to find new physicians, establish residency in Portland, search for a new home, . . . my husband, Dan, had to take a leave of absence from his job. The vast majority of families do not have the flexibility, resources and time to make all these changes.”).

[19] Childress, supra note 16.

[20] See Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800–127.897 (2015).

[21] Oregon’s Death with Dignity Act – 2013, Public.Health.Oregon.Gov (last visited Jan. 23, 2015), http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16.pdf.

[22] See, e.g., The Times Editorial Board, Editorial Californians Deserve the Right to Die with Dignity, LA Times (Jan. 19, 2015), http://www.latimes.com/opinion/editorials/la-ed-right-to-die-legislation-california-20150120-story.html.

[23] Id.

[24] Id.

[25] H.R. 2129, 238th Gen. Assemb., Reg. Sess. (N.Y. 2015), available at http://assembly.state.ny.us/leg/?default­_fld=&bn=A02129&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y.

[26] Collins, supra note 1.

[27] Id. 

[28] Associated Press [AP], Conn. Supreme Court Rules Teen Can’t Refuse Chemo, NECN, http://www.necn.com/news/new-england/State-Supreme-Court-Hears-Arguments-in-Teen-Chemotherapy-Case-Cassandra-Connecticut-287933331.html (last updated Jan. 9, 2015)

[29] Elizabeth A. Harris, Connecticut Teenager with Cancer Loses Court Fight to Refuse Chemotherapy, N.Y. Times, Jan. 9, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0.

[30] Id.

[31] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990).

[32] Doriane Lambelet Coleman & Philip M. Rosoff, The Legal Authority of Mature Minors to Consent to General Medical Treatment, 131 Pediatrics 786, 790–91 (2013) (different states’ laws regulate what type of consent minors can give).

[33] Collins, supra note 1.

[34] Harris, supra note 29.

[35] AP, supra note 28.

[36] Id.

[37] Chemotherapy, Mayo Clinic, http://www.mayoclinic.org/tests-procedures/chemotherapy/basics/risks/prc-20023578 (last visited Jan. 23, 2015).

[38] Id.

[39] Id.

[40] Harris, supra note 29.

[41] See The Times Editorial Board, supra note 22.

[42] See Cruzan v. Dir., Mo. Dep’t of Health, 497 US 261, 289 (1990) (ruling that the Fourteenth Amendment allowed one to refuse medical intervention).

[43] See Washington v. Glucksberg, 521 US 702, 728 (1997).

[44] See Coleman & Rosoff, supra note 32.

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Reclassifying Internet Service Providers: A cursory review of the FCC’s role in regulating the internet

By: Brian Henchy, Albany Government Law Review

            It is axiomatic that the internet has become ingrained as an everyday part of society. It has become an invaluable and heavily relied upon tool in social interactions, the dissemination of information, and the development of ideas.[1] Over the last decade, with the numerous and frequent advances in technologies[2] that make use of internet connectivity, the proliferation of social networking,[3] exponential growth in demand for online video and gaming,[4] and infusion of technology into education and business[5] have “creat[ed] a lucrative market for delivering such services to consumers.”[6] This market caters to a group of impatient customers that have come to expect fast download speeds, even for bandwidth intensive tasks.[7]

Until January of 2014, the idea that various sources of content would be prioritized by service providers seemed absurd to a great many. Net Neutrality and Internet Openness both refer to the principle that service providers provide equal access to all data on the Internet.[8] For the purposes of this article, I will use the more common term net neutrality,[9] purely out of convenience and for the sake of clarity. Ultimately, net neutrality detractors rely on speculative concerns and offer promises of hypothetical product development to assuage fears.[10] A new scheme that effectively revives the underlying policies of the Open Internet Order should hardly be burdening future for internet service providers (hereinafter “ISP”). The assurances of ISPs, that such regulation is unnecessary should not prevent the establishment of basic prophylactic measures. After all, ISPs have existed in a reality void of regulation for barely over a year, before that consumers and content creators had mandated equal access.

The Open Internet Order

In December 2010, the Federal Communications Commission’s (FCC) Open Internet Order put into practice a form of Internet openness also known as “net neutrality.”[11] Prior to these codified regulations, the FCC had implemented general “Internet Policy Principles,” which established broad guidelines protecting the consumers’ unfettered access to the internet, principles that form the foundation of net neutrality.[12] Among the principles were customers’ entitlements: to “access the lawful [i]nternet content of their choice”; to “run applications and use services of their choice”; to “connect their choice of [lawful] devices that do not harm the network”; and to “competition among network providers, application and service providers, and content providers.”[13] Ultimately the internet policy principles were adapted to form the regulations in the Open Internet Statement.[14]

The FCC released the Open Internet order on December 23, 2010[15] after years of debate centered on whether the FCC should promulgate regulations of its kind.[16] The order was the result of a rushed and partisan political process; issued seven months after the D.C. Circuit Court of Appeals stifled an earlier attempt to codify the Internet Policy Principles.[17] This April 2010 decision, lead to the three democratic members of the FCC committee supporting the Open Internet Order in varying degrees, and the two republican members vigorously dissenting.[18] The collection of rules governed how a broadband ISP may treat “customer data traveling over their networks.”[19]

The order effected rules supporting transparency, and restricting blocking content and unreasonable discrimination of network traffic.[20] The transparency rule mandated that ISPs publicize information regarding “network management practices, performance characteristics, and terms and conditions of their broadband services.”[21] The restriction on blocking prohibited certain broadband providers from blocking “lawful content, applications, services, or non-harmful devices” from using their networks.[22] The restriction on discrimination of traffic prevented any unreasonable limitation on “lawful network traffic.”[23] Essentially the collection of restrictions maintained the internet as a tool equally available to all.

Proponents of net neutrality want to maintain the former status quo of the internet.[24] They advocate for “minimal ISP involvement in making decisions about how to route data traffic.”[25] There is great fear surrounding the power that ISPs would wield if they had an unregulated control over the content travelling over their networks.[26] Especially in a world where web traffic, which correlates with success for business with an online presence, suffers impairment as a result of delays as long as the blink of an eye.[27] A prominent fear revolves around what the Internet may look like without regulation. Exorbitant fees may prevent small competitors from competing with the likes of large companies, such as Facebook and Google.[28] Excess costs may turn the Internet into a system like cable television where consumers must select between tiers of service, each with more options than the previous.[29]

On the other hand argument, broadband ISPs, among other opponents of net neutrality, suggest these concerns have spawned regulations which “are based largely on unfounded theories.”[30] From their perspective these regulations “artificially increase the cost of maintaining the network and ultimately burden the consumer.”[31] Passing that potential allotment onto consumers may well be worth the cost to the public, given the security it offers. More importantly the “unfounded theories” have indeed been cognizable for a decade. A study conducted in 2002 found that service providers do in fact favor their short term interests through data discrimination.[32] This lends credence to the belief that ISPs care more about making a profit rather than taking part in creating a mutually beneficial long term arrangement.

Regulating the Internet

In Verizon v. FCC, the Circuit Court of the District of Columbia determined that the FCC does have the authority to regulate broadband, but vacated the anti-discrimination and anti-blocking rules, leaving the disclosure requirements as the only surviving regulations.[33] The Court ultimately decided in favor of Verizon because of the manner in which the FCC elected to classify different broadband providers.[34] The decision “affirm[ed] the FCC’s authority in principle to regulate broadband Internet service,” which suggests a reclassification of ISPs could survive future challenges.[35] In fact, it appears that the Court provided the FCC with “a roadmap to reconstitute and even improve on its original decision.”[36]

The regulatory system put in place by the Open Internet Order was far from perfect; aside from ultimately being outside the authority of the FCC.[37] The flaws in the regulations are likely a result of the rushed fashion in which the regulations were formed. The FCC balked at the chance to establish a more secure long term solution in favor of an ill-advised and partisan measure.[38] After four years of implementing the Open Internet Order, and now with the clarified scope of the FCC’s authority to regulate ISPs and the internet, the FCC may now craft a truly viable system of regulations. Despite the initial appearance that the FCC would give ISPs the option “to enter into individual negotiations with content providers[,]”[39] it now seems that the FCC is on the verge of creating a thorough policy to forward an open internet.[40]

It is difficult to predict the manner which ISPs may throttle internet traffic, but imprudent to entrust ISPs with the unencumbered ability to reshape internet access as we know and expect it. With broadband internet connections, when a fast lane is created it necessarily degrades other traffic.[41] Many theories of what the internet would look like, without regulations enforcing net neutrality, revolve around a world where large corporation backed entities can throw money at ISPs to dominate access speeds. In this scenario, websites and other content creators unaffiliated with corporations with deep pockets will be relegated to the bottom of the proverbial queue.[42]

ISPs, such as Verizon have suggested that customers’ access and use of the Internet will not be impacted negatively without FCC mandated net neutrality.[43] To the contrary, in the absence of controls, they suggest that “the internet will be a richer experience.”[44] As cable television has experienced a “boom in content” using similar business models, so would the internet.[45] Additionally, those opposed to an open internet suggest this is an opportunity to encourage improvement on the ability to provide internet to customers.[46] In broad terms these arguments suggest the aim of policy should be to create an abundance, not to manage a scarcity.[47] In other words:

Telecommunications is a means, not an end. The aim of telecom[unications] policy should not be figuring out regulatory contortions to artificially create a competitive market for Internet access where one does not exist. Rather, it should be to assure everyone a cheap and ubiquitous Internet access in order to create a robust and competitive Internet economy.

However, it seems difficult to trust ISPs when, on average, they charge sixty dollars for a product that costs them five dollars to provide.[48]

Advocates of net neutrality proposed various solutions to fill the void created by the D.C. Circuit court decision in Verizon v. FCC.[49] Those in favor of maintaining net neutrality generally support a reclassification of the internet under Title II of the Telecommunications Act.[50] Putting aside the policy reasons[51] that add weight to the classification, ultimately a reclassification, which is within the authority of the FCC, is a sure and simple method to maintain net neutrality. Few, other than those who stand to benefit financially from legal data discrimination based on source, oppose a reclassification of broadband as a “communications service” as opposed to a purely “information service.”[52] Such a switch should enable the FCC to implement a considered system of regulations, which that would maintain the status quo the public and content creators have come to expect, and to improve upon the rules previously in place.

 

[1] See Fed. Commc’ns Comm’n, Connecting America: The Nat’l Broadband Plan 16 (2010), available at http://www.broadband.gov/download-plan.

[2] See Top 10 Internet Advancements of the Decade from 2000–2009, The Juice from Blue Tangerine Solutions (Dec. 19, 2009), http://thejuice.bluetangerinesolutions.com/2009/12/top-10-internet-advancements-of-the-decade-from-2000-2009/ (hereinafter Internet Advancements); Rahul Chowdhury, Evolution of Mobile Phones: 1995–2012, HongKiat.com, http://www.hongkiat.com/blog/evolution-of-mobile-phones/ (last visited Nov. 15, 2014).

[3] Internet Advancements, supra note 2; Arnaud de Borchgrave, The Global Proliferation of Social Media, News Max (May 16, 2011, 2:32 PM), http://www.newsmax.com/deBorchgrave/socialnetworks-Twitter-Facebook-MySpace/2011/05/16/id/396543.

[4] Internet Advancements, supra note 2; Samuel L. Feder & Luke C. Platzer, FCC Open Internet Order: Is Net Neutrality Itself Problematic for Free Speech?, 28 A.B.A. Comm. Law. 20, 20 (2011).

[5] See Emmarie Huetteman, Obama Announces Pledges of $750 Million for Student Technology, N.Y. Times, Feb. 4, 2014, http://www.nytimes.com/2014/02/05/us/politics/obama-announces-pledges-of-750-million-for-student-technology.html?_r=0; Chris Riedel, 10 Major Technology Trends in Education, The Journal (Feb. 3, 2014), http://thejournal.com/articles/2014/02/03/10-major-technology-trends-in-education.aspx.

[6] Feder & Platzer, supra note 4; Tim Wu, Network Neutrality Broadband Discrimination, 2 J. on Telecomm. & High Tech. L. 141 (2003) (predicting that “the private interests of broadband providers and the public’s interest in a competitive innovation environment” will come into conflict in the decade following the 2003 publication of the article).

[7] Steve Lohr, For Impatient Web Users, an Eye Blink is Just Too Long to Wait, N.Y. Times (Feb. 29, 2012), http://www.nytimes.com/2012/03/01/technology/impatient-web-users-flee-slow-loading-sites.html?pagewanted=all; see also Feder & Platzer, supra note 4 (discussing the reasons why internet speed is important based on services).

[8] James O’Toole, Court Strikes Down Net Neutrality Rules, CNN (Jan. 14, 2014), http://money.cnn.com/2014/01/14/technology/fcc-net-neutrality/index.html; Jennifer A. Manner & Alejandro Hernandez, An Overlooked Basis of Jurisdiction for Net Neutrality: The World Trade Organization Agreement on Basic Telecommunications Services, 22 CommLaw Conspectus 57, 57 (2014).

[9] The term was coined by Tim Wu, a professor at Columbia Law School who has been very vocal in defending net neutrality. Nancy Scola, Q&A: What Exactly is Obama Signaling He Wants to Do with His Net Neutrality Support?, Wash. Post, Nov. 15, 2014, http://news.nationalpost.com/2014/11/15/qa-what-exactly-is-obama-signally-he-wants-to-do-with-his-net-neutrality-support. See generally Wu, supra note 6, at 144 (the article where Wu first used the phrase “network neutrality”).

[10] FCC Commissioner Ajit Pai, Press Statement: On President Obama’s Plan to Regulate the Internet, Feb. 10, 2015, (an unofficial statement from one of the commissioners who would be determining future policy, which highlights the positions of those who oppose net neutrality. Among the assertions is that net neutrality will discourage development of technology which would increase internet speeds, that ISPs will start to charge more as a response to additional burdens created by a net neutral system.) available at http://www.fcc.gov/document/fact-sheet-president-obamas-plan-regulate-internet.

[11] Reynolds, Comment, Enforcing Transparency: A Data-Driven Alternative For Open Internet Regulation, 19 CommLaw Conspectus 517, 517 (2011).

[12] Feder & Platzer, supra note 4, at 21. See generally In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14,986 (2005) [hereinafter Internet Policy Principles].

[13] Internet Policy Principles, supra note 12, at 14,988.

[14] In re Preserving the Open Internet, Report and Order, 25 FCC Rcd. 17,905, 17,908 (2010) [hereinafter Open Internet Order]; Feder & Platzer, supra note 4.

[15] Reynolds, supra note 11.

[16] Larry Downes, Unscrambling the FCC’s Net Neutrality Order: Preserving the Open Internet–But Which One?, 20 CommLaw Conspectus 83, 84–86 (2011); Declan McCullah, Ten Things That Finally Killed Net Neutrality, CNET News(Sept. 6, 2007), http://www.cnet.com/news/ten-things-that-finally-killed-net-neutrality/.

[17] Comcast Corp. v. FCC, 600 F.3d 642, 644 (D.C. Cir. 2010); Larry Downes, supra note 16.

[18] Open Internet Order, supra note 14, at 17,907–08; Larry Downes, supra note 16, at 84–87. See generally Darrell Etherington, Circuit Court of Appeals Strikes Down FCC’s Open Internet Order, Net Neutrality Threatened, Tech Crunch (Jan. 14, 2014), http://techcrunch.com/2014/01/14/fcc-open-internet-order-struck-down/ (net neutrality advocate, Free Press, acknowledged that, despite being a step in the right direction, the regulations enacted under the Open Internet Order left much to be desired and were based on faulty grounds from the start); Brian Fung, A FEMA-Level Fail: The Law Professor Who Coined Net Neutrality Lashes Out at the FCC’s Legal Strategy, article in The Switch, The Wash. Post (Jan. 14, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/14/a-fema-level-fail-the-law-professor-who-coined-net-neutrality-lashes-out-at-the-fccs-legal-strategy/ (characterizing both the arguments employed by the FCC in Verizon v FCC and aspects of the regulations in the Open Internet Order as ill-advised, in the format of an interview with Tim Wu).

[19] Alexander Reynolds, supra note 11.

[20] Open Internet Order, supra note 14, at 17,908; Feder & Platzer, supra note 4.

[21] Feder & Platzer, supra note 4 (quoting Open Internet Order, supra note 14, at 17,906).

[22] Id.

[23] Id.

[24] James O’Toole, supra note 8 (Advocates of net neutrality want regulations in place so “providers . . . can’t auction off priority traffic rights to one site over another, or impose tolls for high-bandwidth sites such as video streamers Netflix and Hulu.”)

[25] Alexander Reynolds, supra note 11, at 518.

[26] Feder & Platzer, supra note 4; James O’Toole, supra note 8; Darrell Etherington, supra note 18.

[27] Steve Lohr, supra note 7. See generally James O’Toole, supra note 8; Darrell Etherington, supra note 18 (additional fears include ISPs setting targeted fees for those who make content which doesn’t conform with their own goals or beliefs, stifling creative innovation with fees that only large companies can afford); see also Brad Reed, This is What the Internet Will be Like Without Net Neutrality, BGR, Jan. 20, 2014, http://bgr.com/2014/01/20/net-neutrality-verdict-analysis/ (hereinafter “Reed, Jan 2014”).

[28] Reed, Jan 2014, supra note 27; Brad Reed, Is Google About to Stab Net Neutrality Right in the Back?, BGR, Feb 13, 2015, http://bgr.com/2015/02/13/google-android-one-net-neutrality/. /; Neil Irwin, A Super-Simple Way to Understand the Net Neutrality Debate, The New York Times (November 10, 2014) available at http://www.nytimes.com/2014/11/11/upshot/a-super-simple-way-to-understand-the-net-neutrality-debate.html?abt=0002&abg=0.

[29] James O’Toole, supra note 8.

[30] Alexander Reynolds, supra note 11 at 519.

[31] Id.

[32] Tim Wu, supra note 6, at 152-53.

[33] Verizon v. FCC, 740 F. 3d 623, 628 (D.C. Cir. 2014); Kevin Webach, The Court’s net-Neutrality Ruling Isn’t Actually That Bad, The Atlantic, Jan 15, 2014, http://www.theatlantic.com/technology/archive/2014/01/the-courts-net-neutrality-ruling-isnt-actually-that-bad/283094/.

[34] Verizon v. FCC, 740 F. 3d 623, 628, (D.C. Cir. 2014).

[35] James O’Toole, supra note 8.

[36] Kevin Webach, supra note 33.

[37] Verizon, 740 F. 3d at 628.

[38] Larry Downes, supra note 16; see Brian Fung, supra note 17; Darrell Etherington, supra note 18.

[39] Tim Wu, Goodbye Net Neutraliy Hello Net Discrimination, The New Yorker (Apr. 24, 2014), http://www.newyorker.com/tech/elements/goodbye-net-neutrality-hello-net-discrimination.

[40] FCC, Fact Sheet: Chairman Wheeler Proposes New Rules for Protecting the Open Internet, Feb. 4, 2015 available at http://www.fcc.gov/document/chairman-wheeler-proposes-new-rules-protecting-open-internet.

[41] Id.; Tim Wu, Goodbye Net Neutrality, supra note 39.

[42] See generally Alexander Owens, Protecting Free Speech in the Digital Age: Does the FCC’s Net Neutrality Order violate the First Amendment?, 23 Temp. Pol. & Civ. Rts. L. Rev. 209, 248 (2013).

[43] James O’Toole, supra note 8, Zach Epstein, ISPs Try To Convince Us Net Neutrality’s Death Won’t Sting, BRG (Jan. 15, 2014), http://bgr.com/2014/01/15/net-neutrality-isp-responses/.

[44] Neil Irwin, supra note 28.

[45] Id.

[46] Steven Pearlstein, Shades of Complexity Dominate the Debate Over ‘Net Neutrality’, Washington Post (November 28, 2014), available at http://www.washingtonpost.com/business/shades-of-complexity-dominate-the-debate-over-net-neutrality/2014/11/27/bde4f2de-74ef-11e4-9d9b-86d397daad27_story.html.

[47] Id.

[48] Tim Wu, Goodbye Net Neutrality, supra note 39.

[49] See Steven Pearlstein, supra note 46. See generally, Verizon v. FCC, 740 F. 3d 623 (D.C. Cir. 2014).

[50] Alexander Owens, supra note 42.

[51] See Neil Irwin, supra note 28. The policy considerations surrounding how to view the internet’s place in the context of both society and the FCC’s regulatory powers have seemingly been secondary to a results based discussion.

[52] See generally Alexander Owens, supra note 42.

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MOOCs Shake Up Intellectual Property Rights for Professors

By: Gregory T. Myers, Albany Government Law Review

A MOOC—a massive open online course—is a free or near-free, credit-less, online course[1] that is creating substantial buzz in the academic and technical communities.  The New York Times dubbed 2012 the “Year of the MOOC,” as MOOC companies and providers like Coursera, edX, and Udacity teamed up with top-tier schools like Stanford, Harvard, and M.I.T. to offer high-quality classes online.[2]  The democratization of formerly exclusive “brick and mortar” coursework has ushered in the enrollment of over four million students to some of these new and revolutionary courses.[3]  Never mind the most salient problems MOOCs face regarding their actual functionality and success,[4] an equally significant problem is faced by university and college professors collaborating to create the online courses: intellectual property rights.[5]

MOOCs flip the traditional college lecture on its ear because the course is being accessed by tens of thousands of students at a time, making it impossible for the instructor to tend to the needs of all the students.[6]  But it also flips the professor’s relationship with his or her employer.  Professors are part of an educational legion in universities that partner with MOOC providers (like Coursera).  As such, they are being asked to create new and interactive ways to engage their students using a brand-new internet medium. So it becomes important to ask who owns the intellectual property at the core of the course.[7]

Answering this question is difficult.  After all, faculty professors are now designers and creators of online courses.[8]  It has long been argued that principles of academic freedom prevail in favor of the professors—giving intellectual property rights to the professors when it comes to scholarly works.[9]  At the same time, the university contracting with the MOOC provider is the brand name that attracts and ultimately retains students.[10]  The scant case law on the subject only speaks to creations such as scholarly articles, not the new MOOC concept.[11]

Coursera, edX, and Udacity all state in their terms of service that they are the respective owners of the content that they provide on the MOOC platform and such content is subject to change at the will of the provider.[12]  This bumps elbows with the fair use standard.[13]  Under the fair use standard, copyrighted material can be freely used for educational purposes with the caveat that it is not of a commercial nature or has too substantial of an effect on the market value of the copyrighted work.[14] The disconnect is that teachers have traditionally held the exception to copyrighted work under the fair use standard because they are using the material in a limited capacity to a small number of people for educational purposes.  MOOCs change the rules on traditional education and the potential application of the fair use standard.

It can be argued that the MOOC platforms, especially the for-profit platforms, are of a commercial nature and flood the market to an extent that depreciates the value of copyrighted materials.  They are taking what was formerly used in a limited capacity fully within the scope of the fair use standard and injecting it into a market with ubiquitous connections via the Internet, and thus endless access.  Therefore, educational fair-use claims may be less likely to hold up when courses are as vast and open as those provided by the MOOC platforms.[15]  Essentially, the universities are bargaining with the MOOCs regarding intellectual property rights that neither may be entitled to—they are the professor’s intellectual property.[16]  The former president of the American Association of University Professors (AAUP), Cary Nelson, argues that “[i]f we lose the battle over intellectual property, it’s over” because a professor will be a service industry position rather than a professional teaching position.[17]  Nelson further prophesied a parade of horribles: that the future interests professors have in other scholarly works may be compromised if ownership rights reside solely with the employer university.[18]

The TEACH Act could become a factor in the future but it “is meticulous and detailed” which explains why few universities use it.[19]  The Act seeks “to balance the needs of distance learners and educators with the rights of copyright holders” by facilitating the display of copyrighted material for distance learners by accredited and non-profit institutions.[20] While some MOOC providers are non-profit, others are not, and they too still levy over the intellectual property rights of the universities and their professors.

Another concern is an internal one. Faculty union officials in California are concerned that professors will erode faculty intellectual property rights when they voluntarily teach free online classes.[21]  The voluntary nature of this issue also precludes certain collective bargaining powers that unions would otherwise have over their universities.[22]  If the professors hold out and do not voluntarily “teach” these MOOC courses, then that is a power they retain at the collective bargaining table.[23]  With that power, professors can work to secure their future interests by preventing employer universities from negotiating away potential intellectual property rights before there is even a discussion on the issue.

The benefits of taking a proactive approach to securing intellectual property rights at the collective bargaining table are clear. They forgo a marginalization of rights by all three parties—the professors, the universities, and the MOOC providers. Strong solidarity can help prevent otherwise vulnerable professors, like those being offered their first tenure-track positions, from being pressured into signing away their invention and intellectual property rights that could span their entire careers.[24]

Some universities take a “work for hire” approach wherein works created in the scope of employment belong to the employer and are, in this case, intellectual property rights belonging to the university.[25]  However, other universities have taken the opposite approach and granted intellectual property rights to their professors while courts seem to be split almost as similarly as the universities.[26]  In particular, Stanford asserts intellectual property ownership rights over its employees and that includes MOOC material but that is also because Stanford is not transferring ownership to the MOOC providers.[27]

With all the uncertainty circling the MOOC phenomenon and its inherent tri-level of content ownership, the most prudent way to handle it will be via proactive engagement of the parties.  This can be accomplished at the collective bargaining table between the professors and the universities and at the course development table between the universities and the MOOC providers.  The Economist stated that the MOOC could be the fall of the ivory tower.[28]  If so, are our professors tied to the same fate?

[1] Laura Pappano, The Year of the MOOC, N.Y. Times, Nov. 2, 2012, http://www.nytimes.com/2012/11/04/education/edlife/massive-open-online-courses-are-multiplying-at-a-rapid-pace.html?pagewanted=all&_r=0.

[2] Id.; Jon Marcus, MOOCs Keep Getting Bigger. But Do They Work?, Hechinger Rep. (Sept. 12, 2013, 7:31 AM), http://hechingerreport.org/content/moocs-keep-getting-bigger-but-do-they-work_12960/.

[3] Marcus, supra note 2.

[4] Id. Roughly ninety percent of people who sign up for a MOOC fail to complete them for one reason or another. Id.

[5] Ada Meloy, Legal Watch: Who Owns Your MOOCs? Updating Intellectual Property for the Modern Era, Am. Council on Educ. (May 1, 2013), http://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspx.

[6] Pappano, supra note 1.

[7] Meloy, supra note 5.

[8] Id.

[9] Id. However, this may be subject to some level of alteration when it comes to university, state, or federal grants for the purposes of research and discovery. See id. (discussing the educational institution’s interest in a MOOC based on the level of resources provided by the institution to the professor for its development).

[10] Id.

[11] See, e.g., Weinstein v. Univ. of Ill., 811 F.2d 1091 (1987) (holding that faculty members own a copyright interest in their scholarly articles). Id.

[12] See Terms of Use, Coursera (Jan. 2, 2014), https://www.coursera.org/about/terms (last visited Sept. 26, 2014); Terms of Service, Udacity (Nov. 14, 2013), https://www.udacity.com/legal/tos (last updated June 18, 2014); Terms of Service, edX (Sept. 17, 2013), https://www.edx.org/edx-terms-service (last updated Apr. 30, 2014).

[13] 17 U.S.C. § 107 (2014) (providing an exception for use of copyrighted material for “educational” purposes, amongst others).

[14] See id.

[15] What Campus Leaders Need to Know About MOOCs, Educause (2012), available at http://net.educause.edu/ir/library/pdf/PUB4005.pdf.

[16] Depending on the level of funding given to the professor, of course.

[17] Peter Schmidt, AAUP Sees MOOCs as Spawning New Threats to Professors’ Intellectual Property, Chronicle of Higher Educ. (June 12, 2013), http://chronicle.com/article/AAUP-Sees-MOOCs-as-Spawning/139743/.

[18] Id.

[19] Kenneth Crews, MOOCs, Distance Education, and Copyright: Two Wrong Questions to Ask, Columbia U. (Nov. 9, 2012), http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/.

[20] The TEACH Act: New Roles, Rules and Responsibilities for Academic Institutions, Copyright Clearance Ctr., http://www.copyright.com/media/pdfs/CR-Teach-Act.pdf (last visited Sept. 29, 2014).

[21] Ry Rivard, Who Owns a MOOC?, Inside Higher Ed (March 19, 2013), http://www.insidehighered.com/news/2013/03/19/u-california-faculty-union-says-moocs-undermine-professors-intellectual-property.

[22] See id.

[23] Id.

[24] See generally Schmidt, supra note 17.

[25] Megan W. Pierson, Robert R. Terrell & Madelyn F. Wessel, Massive Open Online Courses (MOOCs): Intellectual Property and Related Issues, Nat’l Ass’n of Coll. and Univ. Attorneys 1–2 (June 19, 2013), available at http://www.higheredcompliance.org/wp-content/uploads/2013/09/AC2013_5G_MOOCsPartI1.pdf (citing Copyright Act of 1976, 17 U.S.C. Sections 201(b); “University of Virginia Policy: Ownership Rights in Copyrightable Material” (2004) (asserts university ownership interest under work for hire doctrine and cedes ownership of scholarly works “such as journal articles, books and papers” but does not include course materials) “Stanford University Research Policy Handbook” Section 9.2 (includes work for hire doctrine and provides that courses taught and courseware developed for teaching at Stanford belong to the university); University of Chicago, Copyright Policy for Faculty and Other Academic Appointees (2012) (concerning copyrightable works involving new information technologies, the university owns the intellectual property the faculty create at the University).

[26] Id. at 2-3.

[27] Clarisse Peralta, Online Courses Raise Intellectual Property Concerns, The Stanford Daily (Nov. 1, 2012), http://www.stanforddaily.com/2012/11/01/intellectual-property-concerns-for-moocs-persist/.

[28] MOOCs: The Fall of the Ivory Tower?, Economist (Aug. 1, 2013), http://www.economist.com/blogs/schumpeter/2013/08/moocs-fall-ivory-tower.

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