A radical new scheme for pet 'ownership' – trying to stop 4 million unnecessary deaths a year

Under the law, pets are considered personal property.

However, there have long been exceptions to this rule that lead to inconsistencies within the law. For example, pet owners who do not properly treat their pets can be charged with criminal animal neglect. There is no other item of personal property for which mistreatment can result in criminal charges for neglect. It is hard to imagine being charged for not properly laundering your cashmere sweater for example.

These longstanding cracks in the concept of pets as property, as opposed to beings, are deepening. In states such as Maine, New York, California and Illinois, pets can now be covered by domestic violence orders. Moreover, pet custody battles in divorce court are becoming more and more common. Judges are beginning to rule on pet custody as if pets were more akin to children than property.

The possible consequences of this shift in our legal perception of pets are myriad. In this blog, I will address two of these consequences, namely the law as it relates to pet sterilization and abandonment.

STERILIZATION:

Under the American Eugenics movement, from 1907 to as late as 1970, at least 60,000 Americans were forcibly sterilized, for being “feeble minded”, which term encapsulated everything from being epileptic, manic-depressive (in today's terms, bi-polar), homeless, or being a prostitute, an alcoholic, or a criminal. Today, we recognize this as a horrific violation of human rights. Equally, if pets are perceived as beings, doesn't spay and neutering constitute a violation of their rights? It would certainly seem that a dog or cat would have as great a biological instinct to reproduce as a human being.

And yet, even PETA, the nation's biggest advocate for animal rights, still argues for the spay and neuter of pets. Certainly, this is necessary if pets are to be owned, as the alternative proliferation of unwanted pets would lead to pet population issues. (According to PETA, one un-spayed dog and her descendents can produce 67,000 puppies in 6 years and one un-spayed cat and her descendents can produce 370,000 kittens in 7 years. Clearly, this degree of proliferation is untenable.)

Thus, if pets are to be owned*, and yet viewed not as property but rather as beings, the issue of pet sterilization becomes extremely complex.

According to PETA, “spaying eliminates the stress and discomfort that female pets endure during heat periods, eliminates the risk of uterine cancer, and greatly reduces the risk of mammary cancer. Neutering makes males far less likely to roam or fight, prevents testicular cancer, and reduces the risk of prostate cancer. Altered animals are less likely to contract deadly, contagious diseases, such as feline AIDS and feline leukemia, that are spread through bodily fluids.” Perhaps, in this case, the benefits to the animal outweigh the harm caused, and therefore spay and neutering can be deemed to be in the best interests of the pet and thus allowed even under a modern legal regime in which pets are treated as beings. This is somewhat aligned with the current status of the law regarding involuntary sterilization of human beings, in that the courts can order sterilization in cases where the procedure is deemed to be “in the best interests of the person”. The only difference would be that the human sterilization is still only ordered in the exception, on a case by case basis. Whereas pet sterilization would be considered “in the best interests of the pet” by default.

ABANDONMENT:

People get tired of their pets and abandon them. Pets are not sterilized and reproduce unwanted offspring. Pet stores cannot always sell all of their excess stock. For all of these reasons, every year, US animal shelters are inundated with unwanted pets. The shelters have insufficient resources to maintain all of these pets, and so, every year, approximately 3 to 4 million abandoned pets are euthanized (about one pet every 8 seconds). Many of these are then rendered into pet and animal feed.

Needless to say, abandoned children are not euthanized. If we are to treat pets as akin to children, it is unacceptable that abandoned pets be subject to this treatment.

One possible solution is a formal register for pet ownership, whereby all new pets must be registered, and whereby any ownership transaction constitutes an adoption such that the new owners are viewed formally as parents. From the point of birth or adoption, the parent(s) are legally responsible for the well-being of the pet. The parent(s) may give up the pet to someone else for adoption at a later date. Alternatively, if new parents cannot be found, the current parent(s) will be financially responsible for the maintenance of the pet for the rest of its lifespan (at a pet orphanage funded by the parents). That is, a form of “pet support”, analogous to child support, will be payable.

Of course, it will be costly for the government to enforce such a scheme. And many might say that it is hard to argue for such an allocation of funds when there are so many human rights issues to address. Indeed, in this vein, the UN Charter does not speak of pets, but just people. However, if we as a society were so concerned about human rights and not about our pets, then why would we not spend the more than $50 billion dollars that Americans spend on their pets each year, on addressing hunger and disease in human populations? Hence, through our economic spending, Americans are attesting to the fact that pets, and thus necessarily the rights of pets, is an issue that is worth the price tag of legal address. Thus, the funds should, and can, be found through fees associated with the registration system. Yes, such fees will impose a barrier to pet ownership. But perhaps more barriers need to be put in place. After all, it is the very people who profess to be pet lovers who are contributing to an industry that currently results in the euthanasia of around 4 million animals per year.

CONCLUSION:

With the popularity of pet clothing and pet food that is suitable for human consumption, the line between humans and pets is becoming increasingly blurred. Along with this attitude shift, comes the need for a shift in the law. If pets are not property, then the law needs to be consistent with regard to this fact, and evolve to recognize that pets are beings. And policies and laws need to be put in place to prevent any violation of the rights inherent to all beings, starting with stopping the system that currently creates a need for the euthanasia (and rendering) of 4 million pets in the Unites States per year.

* The repetition of “if pets are to be owned” alludes to the author's discomfort with the morality of pet ownership in general, in light of issues such as sterilization, and in light of other matters such as removal from their natural environment. However, in acknowledgement of the counter-arguments, such as the numerous scientifically proven health benefits of pet ownership, and in light of the reality that pet ownership is going to continue (and needs to continue in order to accommodate all the pets that already exist today), I proceed as if pet ownership were an acceptable practice and attempt to address merely the means by which we can ameliorate the associated issues.

Chimeras - everyone and no one

“As a net is made up of a series of ties, so everything in this world is connected by a series of ties. If anyone thinks that the mesh of a net is an independent, isolated thing, he is mistaken.”

- Buddha

Microchimerism is the existence of a low concentration of genetically distinct cells within a person. Macrochimerism is the same, but the concentration of genetically distinct cells is greater (upward of 2.5%) and said cells may comprise an entire organ of the body, such as the gonads.

It is caused by pregnancy (wherein there is a transfer of cells between: the mother and child, no matter whether the baby miscarries, is terminated or is born; and between residual cells of an older sibling and the child), twinning (where one twin is absorbed by the other twin in the uterus), unprotected sex, blood transfusions, and organ transplants. As a consequence, virtually everyone is at least microchimeric, possibly with several different types of genetically distinct cells within them. (It is ironic then that, in 2005, the Human Chimera Prohibition Bill was introduced before Congress. It was not passed. If it had been, it would have created an awkward scenario in which seemingly every single person would be in violation.)

This poses a number of practical and legal issues.

From a practical standpoint, how is one supposed to artfully pick a mate? Attraction is at some level a consequence of one's compatibility with another's immunity profile (and, in association, with their genetic profile). This is communicated subconsciously via pheromones and consciously by one's observable phenotype. So, if we carefully read these genetic cues and select a mate that has a genetic profile that complements (and would seemingly combine with) our own to produce the best possible offspring, aren't we then severely duped if the mate we chose turns out to be macrochimeric and the genetic material s/he contributes to the offspring is completely different to the genetic material we observed and selected?

From a legal perspective, some of the problems have already been pondered. The most oft raised problem being: what if we clear rapists because we test their DNA from a blood sample and that DNA does not match the semen DNA found on the victim, but then it turns out that they are incorrectly cleared because, in truth, they are the perpetrator but they are just macrochimeric, so that their blood cell DNA is entirely different to their semen cell DNA? Do we need to start asking those accused of rape to provide semen samples rather than blood samples? This might be the only way to ensure that perpetrators are not accidentally vindicated. However, requiring someone to masturbate in order to produce a semen sample, would seem to amount to an affront to the accused's human rights.

But the objective of this blog has always been to canvass issues that, to my knowledge, are yet to have been conceptualized and addressed. Thus, I will rather focus on a legal problem that revolves around a legal consequence of chimerism that is yet to have been pondered, namely the ability to provide informed consent for the use of, and the ability to claim intellectual property rights in, one's DNA when one is in fact comprised of many genetically distinct cells, including: the cells of one's mother's, and the cells of one or more of one's lover(s), older siblings and children.

Do we have the right to give informed consent for the use of any of our cells, and to claim IP rights in any of our cells, or only our primary DNA cells (i.e. not the small percentage of chimeric cells)?

Let me preface the ensuing discussion with the acknowledgement that the case of Moore v Regents of the University of California established that consent to an operation to have tissue removed entails an abandonment of any claims over the removed tissue. Thus, Moore had no IP rights in his hairy cell leukemia cells after they had been removed by Goode (a doctor employed by the University of California). But, it is my contention that this is not the end of the story. Bioethicists still argue that patients should be offered compensation for their donation of waste tissue by a fixed fee or a chance to share in the rewards of financially successful research. This discussion in set to heat in the wake of the worldwide spate of Myriad Genetics cases, regarding the patentability of gene sequences. So, the ensuing discussion is based on the assumption that, at some point, the law could be modified such that people will be entitled to compensation for their DNA.

With this disclaimer, I continue...

Henrietta Lacks died of cervical cancer in the 1950's. Without her knowledge or consent, her cervical cancer cells (dubbed HeLa cells) were taken and reproduced in a laboratory, to amass numbers sufficient enough for sale and worldwide experimentation (resulting in huge financial gains for all concerned, except Henrietta or her descendents). In theory, this should not occur today, as doctors are now required to get informed consent before taking and experimenting on cell samples. But, in reality, the same exact outcome could occur if someone gave informed consent for the use of their chimeric cells for experimentation, but the person who is principally comprised of those cells (either the offspring, or the mother, or the organ donor etc) has not consented. In such a case, just as Henrietta Lacks (or her children, after her death) had no control over the use of her DNA for experimentation, the person who is principally comprised of the chimeric cells, would have no control over the use of their DNA.

This has been an issue with regard to identical twins (that have near identical DNA). As it stands, one twin can consent to the provision of a cell sample, which means the identical twin is subjected to the consequences even though he/she may not have agreed with the provision of consent. These consequences include privacy issues with respect to the revelation of the twin's DNA profile, psychological issues with respect to (as happened with Henrietta Lack's offspring) the emotional trauma of envisioning their mother's cells becoming immortal and being blown up or otherwise subject to experimentation, and the financial issues of remuneration.

Previous complexities in the issues of consent and compensation as they applied to identical twins are now far more wide reaching. If it is not just identical twins that share cells of near identical DNA, but virtually all of us who do, then the problem of obtaining consent and compensating rightful parties escalates.

It cannot be that consent can only be provided, and rights claimed in, the primary DNA cells as this is incongruous with both precedence and reality. When cancerous cells are taken for experimentation, the DNA of those cells has mutated such that the cancerous cells differ from the primary DNA cells of the person. Despite this, it has never been argued that, because the cancerous cells are genetically distinct from the primary DNA cells of the person, that person cannot provide consent for the use and experimentation of the cancerous cells. How could this be argued? Practically, those cancerous cells comprise part of the person and so are his/hers over which to provide consent. Equally, it would be very difficult to limit a person's right to give consent to (and potentially claim intellectual property rights in) their chimeric cells. After all, those cells comprise part of the person.

Thus, it seems the only answer is for us to acknowledge our interconnectedness, and construct the law in such a way as to respect people's rights to privacy, self determination and compensation as best as possible.

Copying and Copyright in a Collaborative Culture

The internet has made it more and more practical for people to collaborate.

Wikipedia is an online encyclopedia, to which anyone can contribute. Open source software, such as the internet browser Mozilla Firefox, is common place. People share and modify each other's photographs via Instagram.

This online collaboration is no doubt beneficial. But it does raise a host of new ethical and legal issues, that must be pondered and addressed. Once more, technology and social evolution are daring the law makers to keep up.

One already well-canvassed example of this is last year's Harvard Cheating Scandal. The scandal revealed that collaboration is the norm in learning environments, and outmoded definitions of cheating need to be overhauled and reconsidered in light of today's norms. It makes little sense that someone can write a question on Quora and have it answered by a stranger (who is potentially an expert in the field) and it will not be considered cheating. Whereas if that same person uses an online forum such as Twitter or Facebook to ask a friend in the class (who is potentially no more likely to know the answer than the person asking the question), it will be considered cheating.

There are a myriad of other examples that are yet to blow-up in the media and so are less well canvassed. In this blog, I will address two such examples, both related to intellectual property protection over works generated through online collaborative sites.

Firstly: Twitter. Twitter is so commonly known and used that I assume it requires no explanation. Users are restricted to the use of 140 characters per tweet. While US copyright laws do not favor protection of short phrases, there is no minimum number of words required before a work is capable of being copyrighted material. In some cases, as little as 10 words will be deemed to be sufficient. In other cases, even 200 words might not warrant copyright protection. It is determined on a case by case basis, dependent upon the uniqueness and value of the words combined. Thus, technically, it is possible to claim copyright in a tweet and infringe copyright by a tweet. Indeed, Twitter has a copyright policy which reflects this. Still, it is hard for one to generate something so unique and original in 140 characters as to be able to claim copyright over it. But what would happen if one wanted to claim copyright over a series of tweets. Say, if the user posts a poem or even a short story via a series of tweets, over time. Would the series of tweets in combination be protected? Or would they each be considered to be separate works? Is there some time frame that dictates whether the separate tweets are considered one or more works? I would argue that irregardless of the timeframe, if there is any indication that the tweets are related, then they should be considered as a singular work, over which the tweeter may make a valid claim to copyright. But this is merely my contention. As it stands, the issue has not been addressed.

Secondly: Movellas. Movellas is an online community for teens and adults to share their stories with others, and to read and give feedback on stories that have been shared. Sites like this abound. Other examples include Wattpad. But I speak of Movellas specifically because (a) I have used it to publish my writing and (b) the operators of the Movellas site are currently beta testing a function called “chain”. In the chain function, a user has 140 characters to write a component of a story. Then, another user is free to add the next 140 character component, resulting in a “masterpiece” that has been contributed to by several readers. [It is curious that Movellas uses this same character limit as Twitter. It would seem that there is something magical about this number, from a copyright perspective. But, as discussed above, there is not. It is more likely that Movellas simply selected this number as the primary demographic for the site – the teen demographic – is familiar and comfortable with the 140 character limit due to years of Twitter use. It was also smart for Movellas to choose this limit as any copyright precedents that are established through suits against Twitter will clarify the law as it applies to Movellas, and in the event that any copyright suits are brought against Movellas. Movellas may be able to turn to Twitter as an ally, as Twitter has a vested interest in the outcome of any case regarding the copyrightability of a 140 character statement.]

One might think that, as with tweets, although it is technically possible to claim copyright in one's 140 character contribution to the chain, it would in reality be hard for one to establish that the brief 140 character contribution is so unique and original as to be copyrightable. But, assuming for an instant that a contribution is sufficiently unique and original. In such event, once it is added to the chain, is it still the reader's to claim ownership in anyway? A cursory reading of the Movellas copyright policy did not reveal anything in relation to copyright ownership over what is contributed to a chain. The policy merely states that “You or a third-party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through the Website and you are responsible for protecting those rights, as appropriate.” This would seem to indicate that a great 140 characters is still the intellectual property of the writer and is free to be used by the writer again, in different contexts. This is well and good, until you consider the possibility that a resultant chain might really be, as Movellas calls it, a “masterpiece”. In such a case, like the Harry Potter series, it would be capable of being marketed for billions of dollars. Who then is entitled to the proceeds of this? Was each user's contribution intended to become “an inseparable part of the unitary whole” such that the masterpiece is a joint work protected under the US Copyright Act (in which case all of the contributors share equally in the profits)? Are the contributors then entitled to the copyright in their individual contributions but the contributors as a group entitled to copyright in the masterpiece as a whole? Is this even logically possible? Alternatively, does Movellas somehow have the right to claim ownership over the copyright in the masterpiece? It would seem logical to me that all of the contributors, together, have a greater right than the website itself, but the law does not always evolve as we would predict according to logic.

As revolutionary thinkers push the boundaries in the internet, they push the boundaries in our court rooms and houses of parliament. The law will always struggle to keep pace with the advancements of technology and societal norms. Maybe we need to throw a hackathon to get some new template legislation drawn up.

Is it time to annoint a 'Papa Smurf' of NYC entrepreneurs?

Manhattan has long been a place where lurid busineses have operated under the cover of legitimate fronts.

During the prohibition era of the 1920's, it is estimated that between 20,000 and 100,000 speakeasies existed in New York City. When alcohol was banned, bars did not disappear, but simply went underground (to basements and attics), and were disguised behind front businesses, such as cafes, soda shops, and entertainment venues.

Today, organized crime leaders use legitimate businesses, such as laundromats or limousine companies, as fronts for illegal activity, such as trafficking and racketeering. In October of last year, eight members of Brooklyn-based motorcycle gangs (the Forbidden Ones, the Dirty Ones, and the Trouble Makers) were charged with trafficking for selling firearms, ammunition and a cannon. The trafficking businesses were run under the front of legitimate tattoo parlors operated by the gangs. In January of this year, 32 members of New York's Genovese, Gambino and Luchese Mafia families were arrested for engaging in racketeering, extortion, loansharking and fraud under the front of a legitimate private garbage hauling business.

Due to such high profile arrests, the use of legitimate businesses by organized crime syndicates as fronts for illegal activity is well known. It is my contention that there is an analogous practice, namely the use of legitimate businesses as fronts for activity that is certainly unethical (and arguably illegal), that is even more prevalent in New York City, but less well known. And it is not the organized crime syndicates that are running this racket, it is the entrepreneurs in the New York start-up scene. I am refering to the advent of start-up companies as fronts for the collection of big data.

This is particularly true in the real estate sector. Many start-up companies are setting up shop under the mandate of revolutionizing New York's notoriously tough rental property market. However, these businesses are in reality a front for the main objective of collecting big data about the prospective tenants. More so than Facebook or Twitter, or the various other forums companies use for collecting information, in the real estate setting, companies are uniquely placed to collect highly sensitive information about people. Where else would you voluntarily reveal information so intimate as residential history, pay slips, tax returns, and social security numbers? This information is highly valuable to the companies collecting it, and its collection is, in fact, the companies' primary business objective.

As I said above, indeed, unlike traficking or racketeering, the collection of big data is not per se illegal. Thus, these start-up companies cannot be deemed the same as the organized crime syndicates, but are nevetheless analogous to them. There is something that feels “icky” about these companies knowingly and purposefully operating cover services as fronts for the real business of personal data collection. Certainly issues of ethics and privacy arise.

I am Australian, and as a citizen of a country that does not even have a national Bill of Rights, sometimes the number and nature of the Bill of Rights that exist in the US seems laughable. (For example, there is a New York City Taxi Cab Bill of Rights, guaranteeing such supposed fundamental and crucial rights as “airconditioning on demand” and “a clean trunk”.) But, in regards to the use of businesses as fronts for the collection of big data, a Bill of Rights seems in order. Obama's Consumer Privacy Bill of Rights, unveiled in February of last year, is an imperitave tool in the effort to regulate this practice.

The Consumer Privacy Bill of Rights establishes regulations including that companies should securely dispose of (or de-identify) personal data once they no longer need it, unless they are under a legal obligation to do otherwise. That is, companies could well be required to dispose of income statements as soon as they have been perused to ascertain that a prospective tenant meets the threshold requirement for leasing a property, thus preventing the companies from using the income information for any other, unauthorized purposes and eliminating the incentive for the companies to deceptively operate businesses as fronts for collection of data on which they can then capitalize.

When it comes to using start-up companies as fronts for the collection of big data, the lines of illegal activity and legitimate business strategies are blurred and somewhere in the ill-defined murk, lies activity that seems dubious to say the least. The ethics is debatable. The privacy issues are rife. Public awareness, scrutiny, and regulation is required. The implementation of the Consumer Privacy Bill of Rights cannot happen soon enough. 

Silicon Valley's Latest Integrated Circuit: Collaborative Living

The concept of collaborative living, just like the persons sought to live in collaborative living environments, is genius. Why restrict working to a traditional work environment? Why restrict learning to a traditional school or University system? Through collaborative living, people can live, learn and work, all in one place – and that place just so happens to be a veritable think tank.

A pioneer in the concept of collaborative living, is the collaborative living organization Rainbow Mansion. Residents include programmers from Apple and Google, and engineers from NASA. To be accepted into the house, residents must pass an interview process resemblant of the interview process utilized by notoriously tough recruiters such as Facebook and Twitter. The first round screening questionaire, for example, asks questions such as “what are two things you'd like to impact or contribute during your life?” The house hosts talks and presentations by people such as: Roger Penrose (whom you may not have heard of, but who's prestige you'll understand when you hear that he shares an award with Steven Hawking for his contribution to our understanding of the Universe); Lawrence Lessig (professor at Harvard Law School); and Steve Wozniak (who co-founded Apple with Steve Jobs). The house has a laboratory set up in the garage. And several start-ups have been founded there, including a robotics company and a satellite company.

As with Rainbow Mansion, the working concept of any collaborative living environment is that, in order to become a resident, an applicant has to be extraordinary in some way; either a great artist, or musician or programmer or scientist or philosopher. Moreover, it is expected that, once accepted as a resident, that resident must contribute to the household by sharing these talents. The household might throw a hackathon to create an app for purchasing music concert tickets, or embark on a project to convert the old vacuum cleaner into a powerful milkshake maker, and each resident is obliged to participate in this event or project by lending his/her skill set.

A foreseeable issue thus arises. What happens when an event or project results in a copyrightable work or novel invention, worthy of patenting and/or commercialization? A hackathon might result in computer software or programs (such as video games or virtual worlds), which are considered literary and audiovisual works respectively, and are therefore copyrightable works. A project might result in a new machine that is a patentable invention. In such cases, who is entitled to claim ownership of the work or invention?

Under the “work made for hire” doctrine, copyright in a work vests in the person employing the author to produce that work, rather than the author him/herself. Moreover, for inventions not covered by copyright law, courts have found implied-in-fact assignments to exist where employees were hired specifically for the purpose of inventing, or assigned the task of inventing a specific item, process or method. Thus, similar to rights in copyrightable works, under certain circumstances, patent rights may also automatically vest in employers.

Thus, there is precedence for automatic transfer of intellectual property rights from an author or inventor to his/her employer. One might think, how does this apply to collaborative living scenarios, as residents of collaborative living houses are not traditionally employed by the collaborative living organization?

However, already, due to the advent of start-up companies, the traditional concept of employment has been blurred. In the recent case of Just Med v Byce, Byce was treated as an employee for the purposes of the work made for hire doctrine, despite that:

a) he was not paid a salary or benefits;

b) he was not treated as an employee for tax purposes by Just Med;

c) he did not fill out any employment forms; and

d) he was not directly supervised by Just Med.

If the courts are willing to blur the traditional concepts of employment in such a way, to take account of the modern realities of ambiguous work environments, it would seem that it's only a matter of time before a collaborative living organization tests the applicability of the work made for hire and implied-in-fact assignment doctrines to a work authored or item, process or method invented by the residents of a collaborative living home.

As stated previously, it is a condition of entry and stay that a collaborative living resident contribute towards the events and projects run at the collaborative living home. Residents are asked to leave if it is deemed that they are not contributing. So, if contribution towards these events and projects is a condition incumbent to their being a collaborative living resident, then there is grounds for the collaborative living organization to argue that any work or invention produced during their residency arose 'in the course of' their residency, and is thus covered by the work made for hire or implied-in-fact assignment doctrine. If the colloborative living organization succeeds in this argument, ownership in the works or inventions of residents could well vest in the collaborative living organization.

Time will tell how the law plays out. Until then, in the absence of clear laws, collaborative living organizations and residents should take steps to protect their own intellectual property interests.