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Posts Tagged ‘Legal Issues’

XLIX Ethics

With all this hoopla and outcry over the last few moments of the Superbowl, a casual observer could be led to believe that something (even of moral or ethical import) went seriously wrong.  Talk radio was abuzz assigning blame and finger pointing to the now-infamous “call” ( the Seattle Seahawks’ final offensive play was overanalyzed myriad ways. As a lifelong Hawks fan, it’s easy to look at the wrong end of a 28-24 Superbowl result, and cry “foul.” We wish to blame officials, coaches, coordinators, and/or other players or appeal to the zebra suits or a higher power for assistance in overturning the results. But the decision wasn’t a moral move, and definitely not an ethical one–even though it seems as if something went drastically awry.   The play could be described at best as unwise, and at worst foolish. Even the coaches and players ultimately assumed personal responsibility (see Russell Wilson’s and Kam Chancellor’s response in particular: http://www.fieldgulls.com/…/seahawks-players-react-to-super…

I’m sad (and probably tasted a small portion of what it felt to be a Green Bay Packers devotee a couple weeks ag0 in the NFC Championship; but the Seattle Seahawks will be back in the big game again. Or at least they ought to be . . .  See y’all in San Francisco next year. But when the emotions die down, we will realize that we failed to capitalize on a good play call against a goal line defense (designed to stuff the run (Marshawn), and Malcolm Butler made a mad play (deserving the MVP keys of that truck).  Congratulations to the New England Patriots for winning one of the greatest championships in recent memory. It was a classic battle  truly deserving of the term Super Bowl.

Your Employer Will Be Watching

The Hunger Games’ Katniss Everdeen ‘chooses’ to fight in a mandatory made-for-reality battle of have nots. In the real-world, government agencies ask for social network passwords from prospective applicants with little to no resistance. Farces of freedom pervade both arenas of financial inequality.

The young movie heroine notes that even ‘the 99%’ have their pecking order and that weaknesses come with the privileges of money and status: “That the Careers [tributes] have been better fed growing up is actually to their disadvantage, because they don’t know how to be hungry.”

Yet well-off citizens in the two Capitols (with readily available consumer goods) maintain a competitive advantage to resist forms of their respective oppression. Panem children put their names a few extra times in the death lottery to feed their families; applicants on the lower end of the reality spectrum understand what it takes to survive but ‘willingly’ give up privacy rights in the process hoping for benefited positions. These modern human resource games (cf. the Roman Colosseum) illustrate the consequences of socioeconomic inequality in societies with too much time on their hands.

The American Civil Liberties Union criticized the authoritarian measures taken on FaceBook to protect national security and the corporate ethos. Freedom of privacy was temporarily restored by the stopgap of a collectively outraged public. Can anyone stop the consequences of economic disparity found in the Hunger Games and our real world? Does society . . . 5 . . . 4 . . . have time . . . 3 . . . 2 . . .for a sequel? . . . 1

 

LINtellectual Property Rights

While Jeremy Lin continues to weave a fast break around the world and generally inspire anyone who champions an underdog (particularly arousing Asian-Americans, Asian nationals, Ivy-Leaguers, and those of Christian faith), the NBA sensation has recently attempted to register a trademark for one of his monikers, “Linsanity.”

A trademark is typically a distinctive symbol or, in this case, phrase used by a legal entity to identify and distinguish itself. As a prospective owner of “Linsanity”, Jeremy may initiate legal proceedings to prevent its unauthorized use. However, it appears two California individuals have already also paid the $1,625 filing fee to use this phrase on apparel: An importer/exporter who “wanted to be a part of the excitement;” and a former volunteer basketball coach of Lin (see www.linsanity.com) who is currently selling “LINsanity” t-shirts featuring number 17 in the Knicks’ blue and orange colors.

Per complicated federal trademark laws, the first person to use a given mark like “Linsanity” has exclusive common-law rights in a given state, while a registered trademark offers legal protection nationwide. When deciding on a trademark application, the Trademark Office considers who first used the mark, whether the mark is unique or merely descriptive, and whether the mark creates confusion. Those three factors don’t appear to favor the apparently opportunistic “fan” who was “very proud of Jeremy.” Lin’s ex-coach also could run into a problem with California’s “right to publicity” law which protects celebrities’ names from commercial use without their permission not to mention Madison Square Garden and New York’s basketball brand.

Don’t try to explain it, dissect it. We’re just in the middle of it and enjoy it. Especially if you are a Knick fan… It’s a great American story. A great American story.

– Spike Lee, when asked about Linsanity on MSNBC

Yes! I have a raging case of Linsanity. I have been declared legally Linsane. My symptoms.. linsomnia, restless linsyndrome and lintestinal blockage!

– Stephen Colbert, The Colbert Report

Lin’s legal representative says that “We’re prepared to protect his intellectual property rights.” The U.S. Trademark and Patent Office reports it has not granted “Linsanity” to anyone yet pending a review of all who have applied. The application process starts with the examining attorney’s review and approval. The lawyer publishes the mark for 30 days and any parties who believe they may be harmed can file opposition. Gary Krugman, a partner at the Washington-based firm Sughrue Mion, said that he would tell Lin to file his own application and contest whichever of the others gets published, “I have a feeling both of these guys are small operators,” he said. “If Jeremy comes in with a big law firm they won’t be able to hang with him.”

While many people may look to capitalize financially on the phenomenon, there are additional legal, aesthetic and ethical implications in protecting Lin’s name. Copyright law looks disapprovingly on what amounts to identity theft. Surely, controlling the merchandise would reign in images fostering racial stereotypes and also restrict (cf. Linsanity Weed) Jeremy’s associations to products and services that he endorses.

Postscripts:

On Sunday, Lin led the Knicks to another improbable win over last year’s NBA Champion Dallas Mavericks (Vince “Vinsanity” Carter—who plays for the Mavericks—should check whether his own trademark rights have expired).

Speaking of common-law rights, the term “cognitive renaissance” shall be coined here in describing member(s) of marginalized groups establishing renewed concepts of self from unexpected sources (as opposed to reducing any tension arising from cognitive dissonance).

Say it isn’t, Joe.

Ten years after the Enron Corporation was exposed for its massively systemic and cleverly-planned ongoing accounting fraud, the moral structure of college football is being shaken to its core at Penn State University.

Prospective institutional cover-up for act(s) of sexual abuse allegedly committed by head football coach Joe Paterno’s former defensive coordinator and charges of multiple subsequent infractions have already brought down Penn’s State organizational leadership and storied football program. Will the Nittany Lion’s devotion to a winning culture and Paterno’s subscription to resilience and ‘enduring adversity’ eventually parallel Enron’s obsession with profit at any cost and adherence to their former CEO’s ‘survival of the fittest’ principles?

The developing scandal emits conflicting emotions: I am torn by the outpouring of support for an 84-year-old legend who has earnestly dedicated himself to building a long tradition of winning with integrity without the infamous scandals often associated with a major college program. I am sad for these young, innocent boys who would not have experienced further horrors if someone in power had pushed the issue. Properly evaluating a rapidly developing news story is difficult; determining the relevant ethical considerations may represent the best next step i.e., the distinction between law and ethics, and the connection of responsibility to leadership.

Corporations like Enron were familiar with the law; they knew how to exploit and profit from it. University President Graham Spanier and Head Football Coach Joe Paterno met all legal requirements and will not be tried in a criminal court. The ethical question is whether they failed to meet their moral duties and obligations as human persons. Even more so—in their de facto roles as leaders, figureheads, and guardians in their community—greater responsibility is often associated with greater privilege. What personal responsibilities do individuals have beyond their specific job descriptions? Is an act of omission as heinous as the sin of commission?

The university has decided in the best interest of ‘business’ to relieve Spanier and Paterno of their responsibilities. Further clarity is needed before passing judgment on whether Penn State shares a similar aura of hubris with Enron. Even without the pride, their indecision produces greater consequences than even the dissolution of a major corporation.

In the business of uncovering the truth in the digital age, this game will have no winners. Prayers, comfort, and support to the victims and their families.

A Social ‘Theft’work?

The Winklevoss twins represent two enemies that Facebook founder Mark Zuckerberg made in the process of designing The Social Network (2010). Did Zuckerberg steal the inspiration for Facebook from the brothers’ idea for their website? The answer may hinge on the divisive issue of intellectual property.

The debate centers around the intrinsic right to own non-tangible, creative ideas. According to traditional patent, trademark, and copyright laws, intellectual property represents real ownership of intangible assets. Dissidents like Richard Stallman−a software freedom activist−argue that intellectual property creates a ‘bias’ toward property rights by confusing non-physical monopolies with ownership of physical things.

Regarding the creation of Facebook, courtroom and journalistic evidence shows no formal contract between Zuckerberg and the Winklevosses . . . only interesting and entertaining “dorm-room chit-chat.” A mere week after beginning what Zuckerberg referred to as ‘the dating site,’ he started working on a separate ‘Facebook’ project. Zuckerberg appears to have considered the two as competing for the same users’ attention, but also seems to have regarded them as different in key ways. While Zuckerberg does appear to have intentionally strung along the twins with the goal of making his own project the more successful launch, the Winklevosses $65 million lawsuit settlement seems more than fair−especially considering that the entire dispute took place over two months in 2004 and that in the years since, Zuckerberg has built Facebook into a massive global enterprise.

The Winklevoss twins are demanding that the case be reopened not for money but for honor. If there is no such thing as intellectual property rights, then there was nothing to steal and additional demands represent mere ego and greed. If intellectual property represents real ownership of intangible assets, then the battle between information highway robbery and issues of gentlemanly agreement should return to the top of Facebook’s News Feed.

Update: the Winklevoss suit against Facebook was thrown out by a federal judge in Boston as reported on July 22, 2011.

“Show Me the Marijuana!”

Californians recently decided against legalizing marijuana for recreational use. Indeed, proposition 19 was on its financial deathbed until billionaire investor/philanthropist George Solos revived the proponents’ efforts with his $1,000,000 gift shortly before the election. In the meantime, opportunists snatched up domain names and bought up cannabis-related stocks. Since last spring, local unions had been organizing marijuana “bud tenders,” greenhouse workers, packagers and laboratory technicians just in case.

It was interesting to note how various constituencies lined up on California’s largest cash crop. The teacher’s union supported the recreational use of marijuana anticipating the ensuing taxes pouring into public schools. Beer distillers and small pot growers were worrisome over the ‘Wal-Marting of weed,’ and sought to wipe out the prospective competition. Law enforcement was mixed: some officers backed the initiative as they desired to diminish the cartel influence and decrease the prison population to focus on more violent offenders. Some were primarily opposed to the recreational use of marijuana on moral grounds. Still other departments were against the proposition because of the prospective loss of a profitable source of income (sales from the seized pot derived from their raids represent a substantial source of the budget particularly in difficult economic times).

The limits of government constraint on individual autonomy (cf. John Stuart Mill) may actually comprise the core issue in Proposition 19. However, there was relatively little evidence of this concern in current political discourse while following the greenbacks. Yet the business ethics question does not rest in simply dividing self-interest from ethics (pace Adam Smith) but in considering the economic benefits as part of a nuanced, principled plan to control a trade in need of regulation. One thing is for certain in that like war and politics−especially in this economic climate−weed makes for strange bedfellows.

Punishments that Fit the Crime?

Two principals of a defunct investment management firm pleaded guilty to a fraudulent tax scheme that generated $9.6 billion in fake losses. In order to offset capital gains taxes to wealthy clients, the partners essentially defrauded the government of $240 million.

What is interesting from a business ethics standpoint is not their relatively small $7 million fine, reduced prison time, or egregious crime, but the type of consequence handed to them “in the meantime.”

Both men must address students at their former universities—the University of Washington School of Business for Greenstein and the New York University School of Law for Wilk—about business and legal ethics.

It appears the court believes that society or business ethics education has something to gain from their story. Certainly, our culture can benefit from the reflections and actions of reformed convicts: former MCI WorldCom Executive Walter Pavlo and Special Counsel to President Nixon Charles Colson come to mind. I’m sure that many—from a sensationalist standpoint—want to hear from these experts in tax evasion. However, would these ad hoc lectures truly serve as appropriate and fitting “punishments?” What kind of message do they send to future lawyers and prospective entrepreneurs?

Certainly an argument could be made that the business partners made off well financially in the meantime before their indictments . . . and with possible offshore accounts, who knows? What kind of attitudes would seep out underneath their expected warnings and statements of contrition: true remorse, subtle arrogance, or ultimate displeasure at getting caught?

The notion of a forced confession from tarnished alumni just does not seem enlightening. Think of arguments and fights between spouses or kids. Sincere and reflective apologies often require a time out or in this case imprisonment. Another possible purpose, albeit faint, is the malicious intent to humiliate the defendants publicly in front of their alma maters−certainly a strange form of cruel and unusual punishment.

Delivering a mandatory public confession seems premature, but the press could be missing some important facts from this story. A year has passed between indictment and conviction; the defendants and the judge need the benefit of the doubt. If the principals are truly remorseful, desire to tell their story, and their business and law schools are agreeable then by all means . . . but if the lecture is an artifice of the court, and the defendants’ intentions are anything but true, then we should heed Pavlo’s recent blog: “Not Every Felon is Worth Hearing From”−at least not yet.

Thanks to Alexander Sum for pointing me toward this interesting piece.

Exploitation in District 9

In District 9 (2009), the stated public objective for the Multi-National United (MNU) Corporation is transferring 1.8 million aliens to District 10−a relocation camp 240 km outside Johannesburg. The unstated private goal for this weapons manufacturer is discovering how to use the aliens’ inaccessible, technologically-advanced firepower.

Although paralleling Avatar (2010) in form by featuring a corporate-backed paramilitary brigade and a human who becomes “one of them,” the protagonist is pitiful and flawed. Unlike James Cameron’s pièce de résistance, Neill Blomkamp’s District 9 is neither black, white, nor blue. Allusions to apartheid from the South African locale and references toward racism through speciesist language permeate the film.

When MNU discovers that Wikus Van De Merwe’s metamorphosis allows him to wield alien weapons, upper management immediately decides to use this valuable, personal, business artifact against his will. Business exploitation (see Jeremy Snyder’s work on sweatshop labor) is either expressed through a sense of unfairness per economic transactions (as exhibited by the systematic oppression found in the 24 hour eviction notices or market-driven cat food scams) or a lack of respect/dignity as in Van De Merwe’s metamorphosis case. MNU’s anti-Kantian treatment of the project manager as a means only to harvest his organs and replicate his powers repulses the audience. However, If the fate of civilization were dependent on using employee body parts for the greater good instead of an end-profit motive, would a utilitarian argument justifying exploitation be ethical?

In light of corporate exploitation, are employees only inherently valuable by what they can extend or offer an organization? Do they have any personal rights on the clock, or are they completely at the mercy of their employer’s will while paid for their services? It is interesting to note that at the point of Van De Merwe’s highest value to his company, he also found himself most exploitable.