The Record

Twitters Beware: The Display and Performance Rights

In a controversial decision in Goldman v. Breitbart, the U.S. District Court for the Southern District of New York ruled that, by embedding a tweet containing a copyrighted photograph in a webpage, defendants violated the copyright owner’s exclusive display right. In reaching this decision, the Goldman court explicitly rejected the “server test,” which was first established over a decade ago by the Ninth Circuit in Perfect 10 v. Google, and has since then become a de facto bright-line rule upon which many Internet actors rely.

Digital Health and Regulatory Experimentation at the FDA

For well over a decade the U.S. Food and Drug Administration (FDA) has been told that its framework for regulating traditional medical devices is not modern or flexible enough to address increasingly novel digital health technologies. Very recently, however, the FDA introduced a series of digital health initiatives that represent important experiments in medical product regulation, departing from longstanding precedents applied to therapeutic products like drugs and devices.

Big Data: Destroyer of Informed Consent

The ‘Revised Common Rule’ took effect on January 21, 2019, marking the first change since 2005 to the federal regulation that governs human subjects research conducted with federal support or in federally supported institutions. The Common Rule had required informed consent before researchers could collect and use identifiable personal health information.

Artificial Professional Advice

What does it mean to give professional advice, and how do things change when various forms of technology, such as decision-support software or predictive advice-generating algorithms, are inserted into the process of professional advicegiving? Professional advice is valuable to clients because of the asymmetry between lay and expert knowledge where professionals have knowledge that their clients lack. But technology is increasingly changing the traditional process of professional advice-giving.

AIs as Substitute Decision-Makers

We are witnessing an interesting juxtaposition in medical decision-making. Increasingly, health providers are moving away from traditional substitute decision-making for patients who have lost decisional capacity, towards supported decision-making. Supported decision-making increases patient autonomy as the patient—with the support and assistance of others—remains the final decisionmaker. By contrast, doctors’ decision-making capacity is diminishing due to the increasing use of AI to diagnose and treat patients.