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Week in Review

By Martha Nimmer

NFL Tackles HGH

Three weeks after the National Football League (NFL, League) and its players agreed to a new drug testing policy, the League announced on its website that player testing for human growth hormone (HGH) would begin on Monday. In a letter to players that explained the new examination practice, the NFL Players Association president Eric Winston wrote, "[e]ach week of the season, five players on eight teams will be tested. No testing will occur on game days." Winston emphasized that players would have the right to challenge "any aspect of the science behind the H.G.H./isoforms test in an appeal of a positive test." This provision of the new testing policy comes after three years of negotiations between the NFL and the Players Association. Player appeals of positive HGH test results will be heard by third-party arbitrators selected by the players' union and the League.



Twitter has filed a lawsuit against the U.S. Department of Justice (DOJ), claiming violations of the First Amendment. Twitter says that DOJ restrictions on what Twitter may reveal regarding federal search requests impinge on free speech rights. According to The Hill, companies subject to a Foreign Intelligence Surveillance Act (FISA) order or national security letter may not "disclose the exact number of government demands about user information they receive as either Foreign Intelligence Surveillance Act (FISA) orders or national security letters." Currently, companies may only disclose the "broad number" of information requests they receive, in ranges of 1,000.

The popular social network emphasized in its complaint that it believes it has a right to tell the public what kind information the company releases to federal officials. "It's our belief that we are entitled under the First Amendment to respond to our users' concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance -- including what types of legal process have not been received," wrote Ben Lee, the head of Twitter's legal department. "We should be free to do this in a meaningful way, rather than in broad, inexact ranges." An agreement reached in January between the DOJ and five major tech companies relaxed somewhat the restrictions on what those companies could say to the public. Twitter, however, is not satisfied: the company is "going even further in its call to detail exactly how many orders it receives -- including zero, if that is the case."

Civil liberties advocates have come out in support of Twitter's pushback against the federal government. "If these laws prohibit Twitter from disclosing basic information about government surveillance, then these laws violate the First Amendment," said American Civil Liberties Union deputy legal director Jameel Jaffer. "We hope that other technology companies will now follow Twitter's lead." As is to be expected, however, government officials caution that these secretive data collection programs are vital to the nation's fight against terrorism.

Given Twitter's deep pockets and Americans' growing uneasiness with the federal government's data dragnet, this battle over free speech and Internet privacy is far from over.


When How is a Four-Letter Word

Dov Seidman, author of How: Why How We Do Anything Means Everything, is "in the business of helping companies create more ethical cultures." Greek yogurt maker Chobani is also in the business of creating cultures, albeit of a different, dairy-based kind. Both Seidman and Chobani also have an interest in a simple, three-letter word: How.

Chobani, founded in 2005 by a Turkish immigrant, recently revised its marketing campaign and launched an ambitious new effort earlier this year that focuses on the quality of Chobani yogurt and the way it is produced. To highlight this process, the company uses the phrase "How Matters" in its marketing materials and packaging. Seidman also uses "How Matters" in some of the promotional materials for his book and management company. Chobani, Seidman claims, has stolen his "How."

Now, Seidman says he is fighting back and working to reclaim "How," suing the yogurt manufacturer and its advertising agency, Droga5. Seidman has even asked a federal court to order Chobani to halt its "How Matters" campaign, because it "represents an infringement on his trademark for the word how," writes The New York Times. In response to Seidman's lawsuit, Chobani and Droga5 have launched their own legal battle, denying that they had ever heard of Seidman or his company, and even petitioned the court for cancellation of Seidman's trademark for "How," calling it too broad. Chobani has also filed its own trademark application for the phrase "How Matters." Seidman, however, does not appear intimidated, commenting "this is not principally a legal fight. It's a moral fight -- it's a 'How' fight."

Let the trademark battle begin.


Tax Triumph for Artists

The U.S. Tax Court ruled last week that individuals who classify themselves on their tax returns as artists, but who make little or no money from the pursuit, can still identify themselves as artists for tax purposes. At first blush, this decision may not sound particularly significant, but in reality, "the heart of the case touches on a situation familiar to many thousands of artists . . . who earn a living as teachers or studio assistants or stagehands while pursuing creative careers that they hope will flourish and someday be able to pay the bills."

The case decided last week involved New York painter and printmaker Susan Crile, whom the IRS accused of underpaying taxes from 2004 to 2009. Some of Crile's works hang in the Met and the Guggenheim, and have focused on topics such as prisoner abuse at Abu Ghraib. According to court papers, Crile earned less than $700,000 from 1971 through 2013 from the sale of her works; "like many artists, she wrote off expenses from her work, like supplies, travel and meals, on her taxes." To supplement the income made from the sale of her art, she worked as a professor at Hunter College, where she began working part time in 1983 and became a tenured professor in 1994.

The IRS based its accusation against Crile on a number of factors. The agency argued that Crile could not rightly be classified as an artist because her work as a painter and printmaker was "an activity not engaged in for profit;" the IRS also argued that she "could not claim tax deductions in excess of the income she made from her art." Additionally, in a claim that The New York Times saw "alarmed many in the art world," the IRS stated that Crile's claim that she was both an artist and a college professor was "artificial," and that she "made art primarily to keep her job as a teacher." Essentially, attorneys for the IRS were arguing that, at least for tax purposes, Crile should be classified as a teacher, and that any "art-related expenses should have been filed not as business expenses but as unreimbursed employee expenses." Judge Albert G. Lauber was not convinced, however, writing that the artist had "met her burden of proving that in carrying on her activity as an artist, she had an actual and honest objective of making a profit" and thus should be considered a professional artist for purposes of the tax code.


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This page contains a single entry from the blog posted on October 9, 2014 1:01 PM.

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