Monthly Archives: September 2011

Ultimate Comics X-Men #1, Part 1

The recently released / relaunched Ultimate Comics: X-Men is set in a world in which humans and mutants are basically at open war with each other.  This alternate universe raises some interesting legal questions about government tort liability, civil rights, and the limits of government power.  We’ll be talking about each of these in a series of posts.  Spoilers ahead!

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Daredevil #4

In issue 4 of Daredevil, the firm of Murdock & Nelson continues the new business model we discussed in the last Daredevil post: helping their clients represent themselves in court.  Issue 4 introduces us to a few of these clients and includes some great legal issues to talk about.  Spoilers ahead, as usual.

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The Trial of Captain America, Part 2

Back in June we discussed some of the legal and ethical issues presented in The Trial of Captain America.  We also promised to follow-up with another post, since there were more issues to talk about.  It’s a little belated, but here we go.  Spoilers ahead for those who haven’t read the series.

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Daredevil #3

The third issue of Daredevil took an interesting turn, legally-speaking.  The firm of Murdock & Nelson is trying out a new business model, and there are ethical issues aplenty!

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Mark Waid Interview at Abnormal Use

Jim Dedman over at Abnormal Use just posted a great interview with Mark Waid, the writer of Daredevil.  You may remember Jim and Abnormal Use from the interview with us back in March.  And speaking of Daredevil, we’ll be covering issue 3 tomorrow and issue 4 next week.  Waid continues to do a great job writing the book, and there are some really interesting legal issues to discuss, so check back soon!

Cybernetics, Contracts, and Specific Performance

Brett asks a question inspired by Deus Ex: Human Revolution, the recently-released prequel to the fantastic Deus Ex. The question is whether an employment contract can include a requirement that the employee be enhanced with cybernetic implants should they be necessary to perform the functions of one’s job. This question has implications beyond Deus Ex, such as the classic 1970s show The Six Million Dollar Man, and the RoboCop series, so rather than a mailbag entry, this one’s going to get a proper post of its own.

I. Employment and Employment Contracts

Let’s start with the first question here: what is the nature of the employment relationship? In general, in the US anyway, employment is “at will“. The basic idea here is that there is no contractual relationship between employer and employee beyond the employee’s obligation to do the work required of him or her and the employer to pay the agreed-upon wages for said work. So, for example, while an employer may not retroactively reduce an employee’s salary, there is generally no reason salaries may not be cut or employees fired at the employer’s sole discretion. This most frequently comes up in the wrongful termination context. A lot of people think that there are laws preventing them from getting fired under unfair circumstances. This is usually not the case. Unless the employer is violating a specific statute or constitutional provision, e.g. discriminating on the basis of race, gender, religion, or national origin, employees can, for the most part, be fired for any reason or no reason at all.

But all of that changes where there is an employment contract. Employers tend to avoid entering into employment contracts where at all possible, as this gives them the freedom to rapidly lay off or replace people if they need to. Union workers are the most numerous example of contractual employees, and most of their rights are really found in the provisions of the contracts they secure through collective bargaining rather than any law. But the fact remains that employers and employees can and sometimes do enter into employment contracts, and like in almost all other cases, there is very little limit to what terms can go in there (non-compete agreements are a notable exception). The courts are very, very reluctant to restrict the ability of private parties to structure agreements between themselves.

II. Employment Contracts and Cybernetics

The question then becomes whether employers can include the requirement that an employee receive cybernetic implants as a condition of employment. This will probably depend on the nature of the requirement. The significant feature here is less the kind of implants (though anything which is likely to expose the employee to unreasonable danger is going to be problematic) than the circumstances of the implants.

A. Implants Required Before Employment

On one hand, say there’s an employer that needs someone to do a very specific job, and that job requires the use of cybernetic implants. Right now there aren’t a lot of implants that augment typical human abilities, but the situation gets a lot more plausible if we remove the mind/machine interface part of it. We’ve already got prototypes of electronic tattoos which can monitor vital signs. How long will it be before someone adds GPS functionality or communications hardware? In any case, if the details of the implant are made clear before the employment begins, it seems likely that such a thing would be permissible, given certain restrictions.

First of all, the employer would probably be required to pay for everything related to the implant, even if that wasn’t a provision of the contract. Current workers compensation laws require employers to pay for workplace injuries and diseases regardless of fault, and characterizing the medical care needed to implant, monitor, and remove cybernetics would certainly seem to count, not to mention the expense of treating infections and other complications. Basically, if anything goes remotely wrong with an implant, the employer is going to have to pay for it. This is actually probably a pretty compelling reason implants aren’t likely to be commonly required of employees for quite some time.

Second, employment-related implants are bound to generate a rather frenetic round of litigation about whether having an implant means you are effectively on company time round the clock. The plaintiff bar would certainly like this, as it would expose employers to liability in far more cases than they are now, and this means bigger pockets in more cases. But courts aren’t that dumb, and the likely outcome is that unless the employee is actively engaged in the work of the employer, simply passively carrying an implant does not make one’s activities employment-related any more than carrying a key to the office on one’s key chain.

But that probably means that employers won’t be able to use implants to control the activities of their employees when they’re off the clock. Employers would probably like to be able to do this more than they can now, but they rightly don’t try to most of the time, because the ability to control implies the duty to exercise reasonable care, and employers don’t really want to be liable for the actions of their employees any more than they already are. All that by way of saying that employers that require implants will probably not be able to use the presence of those implants to exert all that much more control over their employees, by contract or otherwise, than they do already with things like cell phones and pagers.

B. Implants Required After Employment

Then there’s a slightly different situation. What if an employer decides that a current employee has to get implanted? This is a bit different, because rather than defining the terms of a relationship before it starts, now we’re changing horses in midstream, as it were.

Whether or not an employer can do this is going to depend very heavily on whether or not the employee has a contract. If they do, the employer isn’t likely to be able to add this as an additional term until it’s time to renew that contract. Terms cannot be added to contracts without the consent of both parties, and additional terms require additional consideration, e.g. additional wages or other benefits. But if there isn’t a contract, the employer might well be able to say that anyone who wants a job tomorrow had better sign up for the procedure. This is, of course, assuming that legislatures don’t enact laws restricting employers’ ability to do just that, and this actually seems like a sensational enough issue to provoke something like that.

C. Implants Implied Before But Installed After Employment

Now we get to the actual situation in the stories mentioned in the intro: an employment contract that does not require implants before employment begins, but permits the employer to add them in at a later date. This gets a little tricky, especially when, as in all of the stories in this list, the employee does not give consent at the time of the surgery. Now we run into a little issue called “specific performance.”  There are generally two possible remedies for a breach of contract: money, and specific performance. Money is just that: money. The injured side calculates the damages they have suffered, and the other side pays, under the terms of the contract. But the court can also order specific performance, i.e. requiring the breaching side to do what the contract said they were supposed to do. For example, if the contract was for the sale of a unique item such as a painting, then the painting would need to be delivered.

The thing is, specific performance is disfavored as a remedy in US jurisdictions. The judiciary has pretty much taken as gospel the idea that it’s more efficient to just pay the money and be done with it than to force two parties who probably don’t like each other all that much to finish whatever transaction they had in mind. So it’s only in rare situations, particularly in real estate contracts or contracts for the sale of one-of-a-kind items, that specific performance will be awarded.

But more to the point, specific performance is unconstitutional in employment contracts. The Thirteenth Amendment abolished “involuntary servitude,” and the Supreme Court interpreted that to include forcing people to perform under the terms of an employment contract in Clyatt v. United States, 197 U.S. 207 (1905). So if an employment contract had, as one of its terms, that the employer might require that the employee receive implants at some point down the road, they cannot actually make the employee do it. They can fire an employee that refuses, and they’d be entitled to whatever other remedies are included in the contract, but the courts would not require that the employee submit to implantation.

So the situations where the employee is injured (or killed) and then implanted while unconscious are tricky. First of all, there’s the unrelated issue of whether or not an employer can act to give consent to medical treatment when an employee is unconscious. Forms for this kind of thing already exist, and while it would certainly be highly unusual for an employer to be given this authority, there’s no law that says it couldn’t happen. But consent to life saving surgery is one thing, and consent to life altering surgery is something else entirely. Medical providers might well balk at going ahead with something like bionic enhancement without the express permission of the patient. So the employee would probably need to sign a contract to the effect that he gives the employer permission to authorize the implantation of specific bionic augments before surgery could proceed.

D. Termination of the Employment Relationship

What if an employee who has been implanted decides to quit? Does the employer get the implants back? If this can be done without endangering the life of the employee or seriously injuring them, it’s entirely possible, especially if there was an agreement stipulating that the implants were company property. A court will not force an employee to continue working for an employer if they do not want to, but a court will probably also permit the employer to recover its property in the employee, provided said property can be retrieved without seriously harming the employee, as that would also look a lot like “indentured servitude” as well. “You can quit, but you can’t walk afterwards” isn’t really something a court is going to go for. Of course, given that surgery is pretty expensive, the implants would probably need to be both reusable and fairly expensive for the employer to want to bother. That or highly classified, highly dangerous, or some other factor which would motivate an employer to recover them regardless of cost. But the fact remains that if a particular implant is so integrated into an employee’s body that removing it would kill them or permanently disable them, the employee can probably just quit, and the employer would need to rely on whatever penalties are in the contract, remembering that if the penalties are too severe, a court might decide that they amount to indentured servitude and invalidate them.

III. Conclusion

In short, it’s possible that an employer could make implants a condition of employment, but they’d have to be careful about how that was structured and would really need to ensure that they get the right permissions before hand. But the employee would always have the option to quit, because as a result of the Supreme Court’s Thirteenth Amendment jurisprudence, the courts will not force anyone to work for anyone else.

That’s only focusing on the employment and contract implications of cybernetics. The devices themselves are also a fertile ground of inquiry, but we’ll take a look at that another time.

Law and the Multiverse Retcon #1

This post is the first in an occasional series we’re calling Law and the Multiverse Retcons.  We’ll be using these posts to discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re going to discuss the America Invents Act, which was recently passed by Congress and is expected to be signed into law tomorrow.  The AIA is a patent reform act, and among its many changes to US patent law are two that affect topics we’ve written about here on the blog.

I. Batman, Patents, and Absolute Novelty

Way back when the blog was first started we wrote about Batman and patents.  In that post we talked about two related issues.  First, how Batman could use gadgets based on Wayne Enterprises technologies without preventing Wayne Enterprises from filing, and second, how Wayne Enterprises could patent those technologies without revealing it to Batman’s enemies, who might replicate it or exploit its flaws.  In short, the answer was for Batman to use the technology no more than one year before Wayne Enterprises filed a patent application (thus avoiding the “on sale bar“) and for Bruce Wayne to use his Department of Defense connections to have the technology classified so that the Patent Office would not publish the application.

The America Invents Act changes the answer slightly.  With the AIA there is no longer a one year grace period during which an invention can be sold, offered for sale, used, or published before the inventor has to file for a patent. This means that the US joins Europe in requiring what is called “absolute novelty.”  The practical upshot for Batman is that he needs to make sure that Wayne Enterprises has filed for a patent before he uses a new gadget in public. Without the one year grace period even a single public use would be enough to destroy Wayne Enterprises’ patent rights.

(Edit: Technically the AIA preserves a grace period for disclosures made by the inventor or by someone who obtained the technology from the inventor.  The problem is that Batman is usually not the inventor of technologies ‘borrowed’ from Wayne Enterprises, and it would be difficult for Wayne Enterprises to prove that Batman got the technology from them.  With very few exceptions, nobody at Wayne Enterprises knows where Batman gets his gadgets, and those that do know (e.g. Lucius Fox in the movies) aren’t going to tell.)

II. Spider-Man and Gene Patents Redux

Another post that the AIA affects is this mailbag post on Spider-Man and gene patents.  In the 2002 movie Spider-Man, Peter Parker becomes Spider-Man after being bitten by a genetically engineered spider (as opposed to the traditional radioactive one).  In a post on the subject we discussed various reasons why Parker likely wouldn’t be liable for patent infringement if the genetically modified spider were covered by one or more gene patents.

The AIA makes this even simpler.  The Act flatly prohibits any patent that is “directed to or encompass[es] a human organism.”  In order for Parker to be liable the patent’s claims would have to encompass a human organism (namely Parker), and thus the patent would be invalid under the AIA.  We can pretty firmly shut the book on that one, then!

If there are any posts that you’d like us to revisit, let us know by emailing us at and

A Tale of Two Superhero Journalists

Today we have a quick post about copyright, works for hire, and the difference between independent contractors and employees.

Peter Parker (aka Spider-Man) and Clark Kent (aka Superman) are both journalists: Parker is a freelance photographer who primarily sells his work to The Daily Bugle and Kent is a reporter for The Daily Planet.  In order to publish their photographs and stories, the newspapers must have either own the copyright to the photo or story or have a license.  As it turns out, the law treats Parker and Kent differently because of the different relationship each journalist has with their respective newspapers.

In general, copyright belongs to the author of a new work by default.[1]  This means that when Peter Parker snaps a picture of Spider-Man, Parker owns the copyright in the work.  When Parker sells a photo to the Bugle he either also sells the copyright or at least grants the Bugle a license to use the photo.  This gives Parker leverage to potentially sell the same photo to multiple newspapers or to charge the Bugle a premium for an exclusive, at least if he can talk J. Jonah Jameson into it.

The situation is different for Clark Kent.  As an employee of The Daily Planet, works that Kent prepares within the scope of his employment (i.e. stories he writes as part of his job as a reporter) are “works made for hire.”[2]  The employer owns the copyright in a work for hire unless explicitly agreed otherwise.[3]  This means that Kent has no rights in the stories he writes: he can’t sell them to another paper or reprint them on a blog, for example.

So how do the courts decide if someone is an employee for copyright purposes?  The Supreme Court has held that the courts should use a long list of factors derived from the common law of agency, including who provides the tools for the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; and the extent of the hired party’s discretion over when and how long to work.[4]  Unsurprisingly, these factors show that Parker is an independent contractor while Kent is clearly an employee.

[1] “Copyright in a work protected under this title vests initially in the author or authors of the work.”  17 U.S.C. § 201(a).

[2] 17 U.S.C. § 101.

[3] 17 U.S.C. § 201(b).

[4] Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989) (the Court listed several additional factors).


Contagion is about an outbreak of a new kind of flu virus, highly contagious, with a mortality rate between 20-30%. It’s being received quite well and is definitely worth a viewing. One has to believe that the producers deliberately chose the tenth anniversary of Sept. 11, 2001 for its release, and it’s not a bad thing to see in that context. We’ll try to avoid spoilers here–you can probably already guess that lots of people die–but there are really some quite interesting legal questions to be discussed.

I. Police Power and Public Health

Perhaps the biggest question is the extent to which state and federal governments can impose drastic restrictions on civilian life to prevent the spread of the virus. It isn’t exactly clear from the film which government is imposing things like curfews, but suffice it to say that while the federal government would have some difficulty doing this, there is absolutely no question that state governments can.

The question has to do with so-called “police power“. The term has to do with the ability of a government to “regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants.” The federal government, under current constitutional jurisprudence, does not have general police power, as the Constitution does not provide for it and the Tenth Amendment reserves all powers not granted to the federal government to the states and the people. Granted, the federal government has been eating away at the Tenth Amendment for the better part of two hundred years, particularly since the 1930s, but the fact remains that compared to other national governments, the United States federal government is still one of remarkably limited powers. It cannot really regulate traffic, cannot prosecute or punish most crimes, and has remarkably little ability to impose and enforce public health regulations, the FDA notwithstanding.

But the states have no such limitations. If a governor decides he wants to impose a curfew, as long as he can point to some reason having to do with public health and/or safety which would justify such a regulation, he can probably do it. Regulations to protect public “morals” are somewhat out of favor–though they certainly still exist–but regulations to protect public health and safety are subject to very little scrutiny, provided the state can cogently describe the danger in view. So the scenes showing the Centers for Disease Control and Prevention, a federal agency, interfacing with state public health departments is quite accurate. There might be some questions about whether the CDC–or FEMA, or any other agency–could simply commandeer something like a stadium to contain an epidemic, there is absolutely no question that they could cooperate with local authorities in getting that done. Indeed, many local authorities look to federal agencies for assistance in coordinating and implementing their responses to disasters. The aftermath of hurricane Katrina caused a significant black eye for FEMA, but no small part of the blame there lies with the reaction, or lack thereof, of the Blanco administration. Really, the lack of coordination between state and federal agencies was a significant part of the problem there.

In short, the way Contagion portrays the cooperation between federal and state agencies is accurate both in its display of federalism at work but also in the turf wars and other political wrangling that goes along with any attempt by such agencies to work together.

II. Liability of Bloggers/Journalists for Misinformation

Then there’s the issue of Jude Law’s character, a conspiracy-minded blogger who believes that the disease is treatable with forsythia. He attacks the CDC for saying a vaccine is needed and then discourages people from taking the vaccine when it is developed, alleging that it is a fraud perpetuated by the medical establishment for the benefit of big pharma.

Turns out he’s 1) completely full of it, and 2) making a mint by colluding with a hedge fund manager who invests in the companies producing forsythia. Law’s character is probably based on real-life vaccine denialists, including Andrew Wakefield and Gary Null, both of whom have been exposed as outright frauds but whose misinformation is probably responsible for the recent measles outbreaks. At the end of the movie, the authorities appear to arrest him for his role in the disaster, though it’s not entirely clear for what.

This may actually represent some wishful thinking on the part of the producers. Wakefield and Null are notorious for their flaunting of the authorities’ position on vaccination, but rather than being prosecuted or sued, Wakefield has actually brought a libel case against publications criticizing him. The litigation was dropped and he was forced to pay the defendants’ legal costs, but he remains otherwise unpunished for his actions. But if Wakefield, Null, or someone else were involved in resisting attempts to control a truly serious epidemic, it’s plausible that the government would look a little more closely at their activities.

The question is whether the First Amendment would protect them, and that’s an open question, which is largely why no action has been taken thus far. But it turns out that sedition, i.e. speech deemed to promote insurrection against the established order, is still a viable charge and arguably quite fitting. Telling people not to get their kids immunized for fear of autism is one thing, but though the damage to human lives is real, it doesn’t pose an existential threat to society. Telling people not to get immunized against a potentially civilization-ending disease is something else entirely, particularly when vaccinations are seemingly mandated and tracked by the government. It seems entirely plausible that Law’s character could be subject to civil liability too, both for libel against the manufacturers and for injuries to those people who believed him.

III. Conclusion

Those are just two of the main issues we spotted in Contagion, but the film on the whole gets very good marks for its depiction of how the government would likely respond to such an event. Someone did their homework.

Torchwood: Miracle Day Episode 10

Well thank heaven that’s over. Continue reading