Politics

Is it Time to Legalize Marijuana?

TLR BLOG

By Andrea Laterza, J.D. Class of 2018 Touro Law Review Associate Editor

Mass incarceration has become a disturbing issue in this country.[1] The United States is home to only five percent of the world’s population, yet houses twenty-five percent of the world’s prisoners.[2] “The War on Drugs” has been a direct cause of mass incarceration.[3] Someone is arrested for drug possession every twenty-five seconds, which amounts to 1.25 million drug-related arrests each year.[4] In 2015, there were 574,000 arrests made for marijuana possession whereas 505,681 arrests were made for violent crimes, such as rape and murder.[5] Thus, there were more people arrested for mere possession of marijuana than for heinous, violent crimes.[6]

In 1972, there were less than 350,000 people incarcerated; however, due to the War on Drugs, that number skyrocketed by approximately 500%, amounting to over 2,000,000 people incarcerated today.[7] Despite Nixon and subsequent presidents’ intentions, the War on Drugs has been a failure.[8] Its wrath left U.S. prisons overcrowded, filthy, and a huge expense for taxpayers.[9] If marijuana were to be legalized, the number of inmates would reduce significantly, thereby saving the government hundreds of millions of dollars.[10] Not only would the government save money, but it would also profit.[11] Colorado, one of the several states that has legalized marijuana for recreational use, generated approximately $70 million in tax revenue during the first fiscal year that cannabis was legally sold and taxed.[12]

Aside from the monetary incentive, there may be a constitutional reason to end the criminalization of marijuana.[13] Arguably, the right to use marijuana falls within the recognized rights of privacy and autonomy.[14] The Supreme Court has repeatedly held that the Constitution “create[s] zones of privacy,” which extend to the home and personal bodily choices.[15] The Court has found that the rights to choose abortion, to refuse medical treatment, to use contraception, and to engage in consensual sodomy all fall within the “penumbra” of privacy and autonomy rights.[16] Using marijuana is analogous to these recognized rights because it is also a private, bodily choice.[17] In fact, one state has already held that using marijuana falls within the privacy right of the Constitution.[18] The Supreme Court of Alaska emphasized the importance of privacy within one’s home and held that “possession of marijuana by adults at home for personal use is constitutionally protected.”[19] The court based its holding, in part, on scientific research demonstrating that marijuana is not at all harmful or dangerous to the user or anyone else; therefore, Alaska had no legitimate interest in its prohibition.[20]

Even if using marijuana is not a privacy right, it is arguably a fundamental liberty “deeply rooted in this Nation’s history and tradition.”[21] Marijuana can be traced all the way back to 2737 B.C..[22] The Chinese emperor began prescribing marijuana for ailments, such as gout, rheumatism, and malaria.[23] The drug’s popularity spread across the globe and was used to treat all kinds of pain from earaches to childbirth.[24] In the 1600’s, the plant made its way to the United States where it became a major cash crop.[25] Hemp was used for many purposes, such as medicine, construction, and paper products.[26] In fact, the Declaration of Independence, signed by the Founding Fathers themselves, was written on hemp.[27] Even George Washington and Thomas Jefferson grew hemp.[28] The plant only became illegal in the 1900’s after it was negatively associated with Mexican immigrants.[29] The government falsely vilified marijuana as a drug linked to crime and insanity.[30] The American Medical Association even opposed the government’s position on marijuana because doctors wished to prescribe the drug.[31] Marijuana is not dangerous; no one has ever died from it.[32] In fact, experts believe marijuana has significant health benefits, such as treating glaucoma, speeding up metabolism, controlling seizures, and preventing cancer.[33] Nevertheless, the drug has been unscientifically outlawed.[34]

Today, marijuana is federally categorized as a schedule I drug, alongside hard drugs like heroin and cocaine.[35] According to the Supremacy Clause, federal law trumps state law, which means that even if one is in a state where marijuana is legal, he or she could still face federal prosecution.[36] A drug conviction may prevent citizens from taking out student loans, securing a job, renting a home, obtaining welfare benefits, or even voting.[37] It is time to end the stigma surrounding marijuana because the drastic effects of its criminalization are affecting millions of Americans.[38]

[1] See infra note 2 and accompanying text.

[2] Pamela Engel, Watch How Quickly the War on Drugs Changed America’s Prison Population, Bus. Insider (Apr. 23, 2014, 1:19 PM), http://www.businessinsider.com/how-the-war-on-drugs-changed-americas-prison-population-2014-4.

[3] Fareed Zakaria, Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail, Time (Apr. 2, 2012), http://content.time.com/time/magazine/article/0,9171,2109777-1,00.html.

[4] Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, ACLU Update (ACLU/ Human Rights Watch, New York, N.Y.), Oct. 5, 2016, at 2, 4.

[5] Id. at 5.

[6] Id.

[7] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 8 (The New Press 2012).

[8] Ray Williams, Why “The War on Drugs” Has Failed, Psychology Today (June 6, 2011), https://www.psychologytoday.com/blog/wired-success/201106/why-the-war-drugs-has-failed.

[9] Saki Knafo, 10 Ways to Reduce Prison Overcrowding and Save Taxpayers Millions, Huffington Post (Nov. 8, 2013, 7:30 AM), http://www.huffingtonpost.com/2013/11/08/prison-overcrowding_n_4235691.html.

[10] Id.

[11] See infra note 12 and accompanying text.

[12] Tanya Basu, Colorado Raised More Tax Revenue from Marijuana Than from Alcohol, Time (May 18, 2016, 12:49 PM), http://time.com/4037604/colorado-marijuana-tax-revenue/.

[13] See infra notes 14, 21 and accompanying text.

[14] See infra notes 15-20 and accompanying text.

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 304 (1990); Roe v. Wade, 410 U.S. 113, 166 (1973); Griswold, 381 U.S. at 484.

[17] Id.

[18] Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

[19] Id.

[20] Id. at 506-12.

[21] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).

[22] Patrick Stack, A Brief History of Medical Marijuana, Time (Oct. 21, 2009), http://content.time.com/time/health/article/0,8599,1931247,00.html.

[23] Id.

[24] Id.

[25] John Dvorak, America’s Harried Hemp History, Hemphasis (2004), http://www.hemphasis.net/History/harriedhemp.htm.

[26] Matt A.V. Chaban, Cannabis Construction: Entrepreneurs Using Hemp for Home-Building, N.Y. Times (July 6, 2015), https://www.nytimes.com/2015/07/07/nyregion/cannabis-construction-entrepreneurs-use-hemp-in-home-building.html?_r=0; Stack, supra note 21.

[27] Seeley v. State, 940 P.2d 604, 628 n.10 (Wash. 1997).

[28] Id.

[29] Tim Weber, Would Government Prohibition of Marijuana Pass Strict Scrutiny?, 46 Ind. L. Rev. 529, 543 (2013).

[30] Id.

[31]Id.

[32] Ravin, 537 P.2d at 508 (comparing cannabis to alcohol and barbiturates, which are legal, and do kill people).

[33] Jennifer Welsh & Kevin Loria, 23 Health Benefits Of Marijuana, Business Insider (Apr. 20, 2014, 3:03 PM), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#it-can-be-used-to-treat-glaucoma-1.

[34] Dr. Malik Burnett & Dr. Amanda Reiman, How Did Marijuana Become Illegal in the First Place?, Drug Policy Alliance (Oct. 9, 2014), http://www.drugpolicy.org/blog/how-did-marijuana-become-illegal-first-place.

[35] 21 U.S.C. § 812 (2012).

[36] U.S. Const. art. VI, cl. 2.

[37] Every 25 Seconds, supra note 4, at 11.

[38] See supra notes 3-5, 7, 9, 20, 26, 29-31, 37 and accompanying text.

The Doctrine of Conceptual Separability

TLR BLOG

by Michael J. Borger, J.D. Class of 2018 Touro Law Review Junior Staff Member

Whenever law school students and legal scholars have the opportunity to discuss the most intriguing intellectual property issues of the day, the typical conversation will likely focus on the fascinating patent infringement litigation between Samsung Electronics, Co. and Apple, Inc.,[1] two companies that have revolutionized and dominated the technology sector for decades. Considering that these high-stakes, billion dollar lawsuits symbolize the cutting edge field that intellectual property law has developed into— a field that many future attorneys aspire to become a part of—it is not surprising that these discussions take place.[2] That being said, even without a formal scientific study, it might be assumed that most individuals intrigued by the complexities and excitement of intellectual property law would not dedicate time to observe the current copyright litigation originating in the heart of Memphis, Tennessee.[3]

Over the last decade, copyright litigation has frequently focused on the development of the fair use doctrine in areas such as the music recording and film industries.[4] However, an affirmative expansion of the seemingly limited applications of copyright law to artistic aspects of useful articles could bestow significant advantages on designers and businesses that seek protection for their innovative products and goods sold in a variety of markets throughout the United States.[5] As explained below, depending on how the Supreme Court rules in Varsity Brands, Inc. v. Star Athletic, LLC,[6] the “Birthplace of Rock ‘n’ Roll” might soon become the city that revived copyright law, making this area of intellectual property relevant to virtually every single manufacturing and enterprising industry.[7]

In Star Athletica, the main controversy presented to the District Court for the Western District of Tennessee involved a copyright infringement claim brought on by Varsity Brands, a manufacturer and seller of cheerleading uniforms.[8] To prove that Star Athletica, a competing manufacturer of athletic apparel, infringed on Varsity Brand’s copyrighted uniform designs, Varsity Brands needed to show that it owned valid copyrights to the designs and that Star Athletica copied protected elements of these designs.[9] Varsity Brands not only submitted evidence to the court that five of its best-selling uniform designs had received registered protection from the Copyright Office, but it also showed that Star Athletica reproduced exact copies of these designs and sold and distributed them on its own website for profit.[10] Even with this strong evidence supporting its copyright infringement claim, Varsity Brands still faced significant challenges as it struggled to convince the District Court that its design copyrights were actually valid.[11]

Unlike patent law which seeks to grant individuals the exclusive rights to their novel inventions and discoveries, copyright law affords legal protection to authors and designers who create works of artistic expression.[12] Since copyright law does not extend protection to the utilitarian aspects of a designer’s creation—the actual cheerleading uniform in this instance—one of the most unique and challenging problems in intellectual property law is the judicial task of separating the artistic features of a design that are mixed together and intertwined with other non-copyrightable utilitarian features.[13] This process is critical in determining which features of a design can in fact be given protection.[14] When these artistic elements are not capable of being physically separated from the article,[15] courts use what is known as the doctrine of conceptual separability to guide them in the process.[16] If it is determined that the artistic features are not separable from the useful article, these features are classified as “useful articles” and copyright protection will not be granted.[17]

Congress grants copyright certificate holders with a legal presumption that their copyright is valid.[18] To prevail in Varsity Brands, Inc. v. Star Athletica, LLC,[19] Star Athletica needed to prove that the Copyright Office erred in granting Varsity Brands copyright protection for the designs of their cheerleading uniforms, specifically the “lines, patterns, and chevrons” which were featured on them.[20] To establish that the five copyrights were issued in error, Star Athletica asserted that the copyrights issued to Varsity Brands were not valid because the creative features that Varsity Brands sought protection for were neither physically nor conceptually separable from the utilitarian cheerleading uniform.[21] The District Court agreed with Star Athletica and granted its motion for summary judgment on the copyright infringement claims.[22] The Court of Appeals for the Sixth Circuit reversed on the ground that the creative features affixed to the cheerleading uniform were conceptually separable and therefore capable of receiving protection.[23]

This case exemplifies how challenging the application of the doctrine of conceptual separability has become since the Federal Circuit Courts have articulated more than nine tests to determine whether artistic features are capable of being conceptually separated from the utilitarian article they are attached to.[24] To make matters even more complicated, courts within the same circuit regularly apply different variations of the same test which often leads to even more confusion and inconsistency in these high-stakes copyright litigations.[25] The procedural history discussed below will shed some light on the complexities of this type of analysis.

Varsity Brands originally crafted its entire legal argument based on the Seventh Circuit’s “aesthetic influence test” which looks at whether the artistic elements of the object were designed independently of the utilitarian function of the article to which it is affixed.[26] It argued that because its uniform design team essentially has free reign to create and is not required to adapt its designs to meet the needs of production, it satisfied this test and protection should have been granted.[27] The District Court rejected this argument and adopted the Fifth Circuit’s version of the “marketability test” for conceptual separability which looks at whether the utilitarian object is still likely to be marketable once the artistic elements are physically or conceptually removed from it.[28] According to the court, once the creative design elements were conceptually removed from the uniform—the braided stripes and colored chevrons—the article lost its “cheerleading-uniform-ness” and would not be marketable to any significant segment of the community.[29]

The Court of Appeals for the Sixth Circuit reversed and subsequently rejected both of the previously mentioned tests.[30] In ruling in favor of Varsity Brands, the court gave substantial deference to the Copyright Office’s decision to issue registered copyrights to Varsity Brands and adopted a “hybrid” separability test which featured different elements from a variety of separability tests used throughout all of the Circuit Courts.[31] Specifically, it adopted elements of the Second Circuit’s “objectively necessary” test which was first articulated in Carol Barnhart, Inc. v. Economy Cover Corp.,[32] and considers whether the artistic features of the design are merely ornamental and not necessary to the performance of the utilitarian article itself.[33] Interestingly enough, the Sixth Circuit looked favorably upon Judge Newman’s dissenting opinion in Carol Barnhart as well, adopting elements of his proposed “ordinary observer” test which looks at whether a reasonable observer of the article is capable of conceptualizing two separate products “side by side” of each other—the utilitarian object and the artistic elements.[34]

The Supreme Court is expected to articulate the appropriate test lower courts should use to determine whether an artistic feature is conceptually separable from the useful article that it is attached to and thus protectable under copyright law.[35] This decision is exceptionally critical because depending on which test the Supreme Court adopts as the baseline standard, the effect on virtually every single manufacturing industry could be significant.

There is no question that if a business owns the exclusive rights to a design or product, that business will have a tremendous advantage over its competitors operating in the same market space. Another important consideration is that unlike patent protection which is generally very expensive to obtain and only grants exclusive rights to its holder for a relatively short period of time, copyright protection grants exclusive rights to the holder for the life of the creator plus seventy years.[36] In many instances, if the court had applied a different conceptual separability test from another circuit, it is possible that drastically different results would have occurred.[37]

For instance, in Jovani Fashion, Ltd. v. Fiesta Fashions,[38] the special arrangement of sequins and decorative beads incorporated in the design of one of Jovani’s best-selling prom dresses was denied copyright protection from the Second Circuit because it failed the “design process test” which requires the design elements to “reflect the designer’s artistic judgment exercised independently of functional influence.”[39] This decision demonstrates the substantial impact the Supreme Court’s holding in Varsity Brands could have on the entire fashion industry. Perhaps if the “ordinary observer” test was applied in this case, a test which looks at the effect of the design on a reasonable observer and asks whether the observer can conceptualize two different products, it is possible that Jovani would have received copyright protection for the dress and could have prevented other dress designers from selling their highly popular and profitable design.[40]

Although Silicon Valley tech giants frequently find themselves involved in the most highly publicized and exciting patent litigation, it is important for law school students to observe other areas of developing intellectual property law as well. A simple dispute arising between two competing cheerleader uniform manufacturers over colored stripes and chevrons has the capability of not only impacting virtually every manufacturing industry, but also shaping the future of copyright litigation in the United States. On October 31, 2016, the Supreme Court will hear oral arguments from both Varsity Brands and Star Athletica. It has yet to be determined when a decision will be handed down.

[1]Apple, Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314 (Fed. Cir. 2012).

[2] Laura L. Pollander, “First-Inventor-To-File” May Prove Fatal to Patent Rights Upon the Death of an Inventor, 27 Quinnipiac Prob. L.J. 186, 186-92 (2014).

[3] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F3d 468, 481 (6th Cir. 2015) (contemplating the highly debated question as to which of the nine tests for conceptual separability tests existing among the Circuit Courts is the appropriate test for determining whether artistic elements and features of a design can be conceptually separated from the useful article that the features are attached to).

[4] Patricia Aufderheide & Peter Jaszi, Reclaiming Fair Use (2011).

[5] Universal Furniture Int’l, Inc., v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir. 2010) (deciding whether a furniture manufacturer could receive copyright protection for designs carved into its products); Pivot Point Int’l, Inc., v. Charlene Prods., Inc., 372 F.3d 913, 915 (7th Cir. 2004) (deciding whether a manufacturer of mannequin heads for cosmetic and hair stylists could receive copyright protection for the unique design elements of its products); Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 990 (2d Cir. 1980) (deciding whether a manufacturer of western belt buckles could receive copyright protection for its designs).

[6] Varsity Brands, 799 F.3d at 481, cert. granted, 136 S. Ct. 182 (U.S. May 2, 2016) (No. 15-866).

[7] Memphis, http://www.memphistravel.com (last visited Oct. 8, 2016); see also, supra, note 5 (listing the variety of industries and markets seeking design protection via copyright law).

[8] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *2 (W.D. Tenn. Mar. 1, 2014).

[9] Id. at *3.

[10] Id. at *2.

[11] Id. at *3-4.

[12] Marshall A. Leaffer, Understanding Copyright Law § 3.11 (Matthew Bender, 6th ed. 2014).

[13] Paul Goldstein, 1 Goldstein on Copyright § 2.5.3, at 2:67 (3d ed. 2013) (“Of the many fine lines that run through the Copyright Act, none is more troublesome than the line between protectable [PGS] works and unprotectible utilitarian elements of useful articles”).

[14] Goldstein, supra, note 12.

[15] Compendium of U.S. Copyright Office Practices § 924.2 (A) (3d ed. 2014) (“Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article intact… [such as] a sufficiently creative decorative hood ornament on an automobile.”).

[16] Compendium of U.S. Copyright Office Practices § 924.2 (B) (3d ed. 2014) (“Conceptual separability means that a feature of the useful article is clearly recognizable as a pictorial, graphic, or sculptural work, notwithstanding the fact that it cannot be physically separated from the article by ordinary means”).

[17] Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970, 972 (6th Cir. 1983) (“‘[U]seful articles’ are not generally copyrightable, although certain features of ‘useful articles’ may be copyrighted separately”).

[18] 17 U.S.C. § 410 (C) (2012) (stating that a certificate of registration “constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate”).

[19] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *2 (W.D. Tenn. Mar. 1, 2014).

[20] Id. at *9.

[21] Defendant’s Memorandum of Law in Opposition of Plaintiff’s Motion to Dismiss at 8, No. 10-cv-02508-BBD-cgc, Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *1 (W.D. Tenn. Mar. 1, 2014).

[22] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *10 (W.D. Tenn. Mar. 1, 2014).

[23] Varsity, 799 F.3d at 492.

[24] Id. at 484-85.

[25] Id. at 485 (“In recent years, our colleagues on the Second and Fourth Circuits have used multiple of the above-listed [conceptual separability] approaches in the same case.”).

[26] Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422 at *7 (W.D. Tenn. Mar. 1, 2014).

[27] Id.

[28] Id. at *1.

[29] Id. at *1, *8.

[30] Varsity, 799 F.3d at 487, 494.

[31] Id. at 487.

[32] 773 F.2d 411, 419 (2d Cir. 1985).

[33] Varsity, 799 F.3d at 487, 494

[34] Carol Barnhart, 799 F.3d at 421-22 (Newman, J., dissenting).

[35] Varsity Brands, 799 F.3d at 481, cert. granted, 136 S. Ct. 182 (U.S. May 2, 2016) (No. 15-866).

[36] 17 U.S.C. § 302(a).

[37] Appellants’ Reply Brief at 5, Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (No. 14-5237).

[38] 500 Fed. Appx. 42 (2d Cir. 2012).

[39] Id. at 45; see also, Brandir Intern., Inc. v. Cascade Pacific Lumber Co., 834 F.2d 1142, 1148 (2d Cir. 1987).

[40] Carol Barnhart, 799 F.3d at 421-22 (Newman, J., dissenting).

To post, or Not to Post;Cuomo Threatens Airbnb with New Bill to Pass in New York

TLR BLOG

by Jack Dayon, J.D. Class of 2017 Touro Law Review Senior Staff Member

Over the last several years, Airbnb has posted its mark on the short and even long-term residential rental game for people all across the globe.[1] By making it highly accessible and more affordable than almost any other alternative, Airbnb has left its competitors in the dust by dominating the residential renting market and has recently posted a $30 billion valuation.[2]

Governor Cuomo has until January to decide on a bill that if passed, will make a significant chunk of Airbnb’s business illegal.[3] The bill is set to prohibit any building with three or more units in New York City from being rented out for less than thirty days.[4] If violated, owners of the apartments listed on Airbnb’s cite will be heavily fined. For a first offense the owner who posts the listing will be fined anywhere up to $1,000.00.[5] For a second violation the fine would be $5,000.00, and for a third and subsequent violations the fine would be $7,500.00.[6]

The main advocacy for the bills passing comes from affordable housing activist who believe that the growth of services like Airbnb, will divert units out of the regular housing stock.[7] Other advocates include hotels and motels, whose primary business is to provide a luxury short-term stay for guests traveling in the area. Airbnb and other providers are doing what hotels and motels do by accommodating guests for their short-term stay experience, but without the burdensome formalities that come with staying at a hotel or motel.

The Travel Technology Association (Travel Tech), an advocacy group whose members include Airbnb, HomeAway, Expedia, and other online travel intermediaries, said in a statement that the new law “possibly infringes upon free speech and threatens to undermine the legal foundation upon which Internet providers and platforms rely for protection.”[8] Matthew Kiessling, head of Travel Tech’s short-term rental policy department, told Skift, “[f]or us, this law is concerning because it’s issuing massive punitive penalties for anybody who’s caught listing, not even renting. That’s one of the things that’s sort of key. If you’re caught advertising, it’s a really steep fine.”[9]

Representatives at Skift spoke with Eric Goldman, a professor at Santa Clara University School of Law and an expert on legal issues relating to websites. Goldman said that as long as the law makes a clear distinction between the advertisers (hosts) and the publishers (Airbnb, HomeAway, etc.) it should be enforceable. However, he said, “[i]f the law is interpreted to apply to publishers, in addition to the advertiser, it runs into several legal doctrines which limit is scope. I couldn’t see any language that holds the publishers liable.”[10]

The bill as it stands, contains a legal hole in its language because it can be interpreted as infringing on an owner’s first amendment right to advertise their home or apartment on such various cites. While this is true, the sole purpose an owner has in listing their apartment/home on Airbnb’s cite would be to match with a potential renter, subsequently completing the “landlord tenant” transaction. Thus, the fine that would be administered would be a result of the completion of the transaction and not the advertisement itself. Like professor Goldman said, as long as the bill makes it clear that the act warranting the penalty is the act of renting the apartment and not listing an apartment on the providers website, the bill should face no legal insecurities.

Airbnb’s general counsel, Rob Chesnut, in a recent letter sent to Governor Cuomo and legislative leaders, called the bill “not only unwise, but also unconstitutional.”[11] Chesnut then continued to say that if Governor Cuomo goes ahead and signs this bill in question “Airbnb would have no choice but to immediately file suit against the State of New York and ask a court to declare the statute invalid and unenforceable as well as to award any damages and fees as appropriate.”[12] Airbnb relies on the argument that the bill, as written, violates federal law by not differentiating between hosts who list their properties for short-term rentals and the platform that carries the listing.[13]

Putting the legal arguments aside, Chesnut pleads that the bill is bad for New Yorkers. He stated, “the overwhelming majority of those engaged in home sharing in New York City are middle class New Yorkers looking to use the income to help make ends meet.”[14] By imposing fines of up to $7,500 per violation, Chesnut says the bill fails to distinguish between individuals who occasionally share their home and commercial operators who Cuomo is truly targeting. The fines, he wrote, would be higher than those for drunken driving or misdemeanor assault and “would be incredibly harmful to everyday New Yorkers struggling to make ends meet while doing little to deter commercial operators who have access to capital investments.”[15]

Chesnut has voiced that Airbnb has and will continue to support efforts to protect permanent housing by discouraging commercial operators from using their platform. In fact, Airbnb has already removed 2,579 city listings from the site that they believed posed the risk of taking permanent housing off the market.[16] Governor Cuomo has showed his hand in regards to the new bill, it now looks like Airbnb is doing just the same.

[1] Airbnb, https://www.airbnb.com/ (last visited Sept. 8, 2016).

[2]  New York Short-Term Rental Bill Anti-Technology, Disregards Needs of Residents and Travelers, Travel Tech (June 17. 2016), http://www.traveltech.org/2668-2/.

[3] Senate Bill S6340A, The New York State Senate https://www.nysenate.gov/legislation/bills/2015/s6340/ amendment/a (last visited Sept. 8, 2016).

[4] Id.

[5] Id.

[6] Id.

[7] New York bill Would Ban Airbnb Listings for Some Short-Term Rentals, Reuters (June 20, 2016), http://www.reuters.com/article/us-new-york-airbnb-idUSKCN0Z62M2.

[8] Travel Tech, supra note 2.

[9] Travel Tech, supra note 2.

[10] Travel Tech, supra note 2.

[11] Airbnb threatens to sue if Gov. Cuomo signs bill barring ads for ‘illegal’ housing units, Daily News, (Sept. 7, 2016),  http://www.nydailynews.com/news/politics/airbnb-threatens-suit-cuomo-signs-bill-restricting-ads-article-1.2780547.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Daily News, supra note 11.