Better to be Good than Lucky: Using Fantasy Sports Strategy to Defend the Legal Status of America’s Newest Pastime

By Erica Buerger

I. Introduction

When Indianapolis Colts’ future Hall of Fame quarterback Peyton Manning announced that he would not start the 2011 NFL season, his streak of 227 consecutive starts ended and fantasy team owners panicked.  In 2011, there were approximately $650 million of fantasy football prizes on the line.[1]  It is estimated that Manning’s absence shifted $65 million away from people who would have won their fantasy football leagues had he not been injured.

There are currently over 32 million fantasy sports players in the United States and Canada, and the industry generates more than $3 billion in revenue.[2]  Fantasy sports have become as much of an American pastime as the games upon which they are based.  But this popularity may be disguising the fact that fantasy sports are just another form of illegal gambling.  In most states, the legality of a betting game depends upon the amount of skill versus chance required to play the game.  In general, the more skill that is involved, the more likely the game is legal.

The problem is that as fantasy sports evolve to meet the needs of an ever-expanding fan base, many leagues have added features that allow less-knowledgeable players to participate.  By lowering the amount of skill needed to play, the outcome is more chance-based.  If this trend continues and current gambling law prevails, fantasy sports could become so dependent on chance that they will become illegal.

II. Gambling Law

A. Federal Law

The purpose of federal gambling law is to “aid the states in controlling gambling.”[3]  Specifically, to assist the states in the “enforcement of their [gambling] laws.”[4]  Federal gambling laws do not attempt to create uniformity between the states.  Rather, they exist simply to supplement each state’s own laws.

B. State Law

Gambling regulation is mostly a function of state law and can vary considerably.  The dictionary defines gambling as “play[ing] a game for money or property” or “bet[ting] on an uncertain outcome.”[5]  However, most states allow activities that seem to fall into this category, such as state lotteries.  In fact, in most states, an activity is legal unless a plaintiff makes an affirmative showing that a particular activity involves three elements: consideration, reward, and chance.[6]

1. Consideration

Consideration is often loosely defined as something given in exchange for something else.  In the context of gambling, most courts construe this term narrowly holding that consideration exists only when a “participant provided money or a valuable item of property in exchange for the chance of greater winnings.”[7]  However, some courts adopt a broader definition finding that consideration exists when any legal detriment is given in exchange for the chance to win a prize.[8]

2. Reward

In gambling, the reward is the prize that one receives after winning a game of chance.  To meet this requirement, courts have held only that the reward must be tangible.[9]

3. Chance

Chance is the most controversial element.  To constitute a game of chance, courts have held that the outcome of the game must depend upon factors that are out of a player’s control, as opposed to a player’s “judgment, practice, skill, or adroitness.”[10]  To make this determination, courts have applied three tests: (1) the “dominant factor test,” (2) the “any chance test,” and (3) the “gambler’s instinct test.”

Most states use the dominant factor test.[11]  In Johnson v. Collins Entertainment, the South Carolina court explained that a game is chance-based when “the dominant factor in a participant’s success . . . is beyond his control . . . even though the participant exercises some degree of skill.”[12]  The threshold of the dominant fact test is the point at which either skill or chance affects the outcome by more than 50%.

Some states use the any chance test.  In these states, an activity is a game of chance if it incorporates any element of chance, regardless of whether the game also incorporates skill.[13]  Because almost every game involves some chance, most games will not survive scrutiny in these states.

Finally, a few states use the gambler’s instinct test.  This test defines a game of chance as one that appeals to the “gambling spirit,” without regard to whether skill or chance dictates the outcome.[14]  Because of the highly subjective nature of this test, a court’s decision can vary considerably.

III. The Legality of Fantasy Sports Under the Majority View

Most states adopt a narrow definition of consideration and use the dominant factor test.  In these states, the structure and features of a particular fantasy game is of utmost importance.  Legal fantasy games generally fall into three categories: (1) leagues that do not charge an entry fee; (2) leagues that do not award prizes; and (3) leagues that are predominately skill-based.  The first two categories are relatively straightforward.  Leagues that are free are legal because there is no consideration.  Alternatively, leagues that do not award prizes are legal because there is no reward.

The third category is more complex.  In this category, fantasy games are legal if the outcome is more than 50% based on skill.  Fantasy leagues are generally considered skill-based if they allocate players through a traditional auction and span at least one entire season.[15]  This is because fantasy players have the opportunity to offset chance occurrences, such as player injuries or adverse weather conditions, with efficient team management, lineup changes, and trade negotiation.  It is this category of fantasy games that is most at risk as the popularity of fantasy sports increases.

IV. The Future of Fantasy Sports: How New Features Affect the Dominant Factor Test

A. Auto-Draft

Auto-draft is a feature used during a fantasy draft that ensures a fantasy team owner automatically drafts the highest-rated player available.  Automatic drafting algorithms are designed to create competitive leagues.  Beginners typically use auto-draft because they lack enough knowledge to fill their teams.  Some argue that auto-draft is unfair because there is no guarantee that the owner using auto-draft would have actually selected the highest ranked player.[16]

B. Point Projections

Point projections are similar to a cheat sheet in that they predict how many points a player will earn during a game.  To set a lineup, an owner starts the players on his team with the highest number of projected points.  Point projections place a passive team owner in the same position as an owner who has done extensive research on his players’ current matchups, injury reports, or other conditions affecting a player’s potential performance.

C. Short Season Leagues

Fantasy games that stretch over longer time spans allow an owner’s managerial skills regarding drafting a team, setting lineups, and making trades to counteract the effects of chance.  Fantasy leagues that span multiple seasons allow owners to employ strategies that may take several years.  These leagues require a considerable level of commitment, knowledge, and skill.  Conversely, some leagueslast only a day or a week.  In these games, the outcome is more chance-based because it is closely tied to a single, real-world event.

D. The Effect

The intent of auto-draft, point projections, and short season games is to increase fantasy sports participation.  These features accomplish this task by reducing the need to spend time analyzing statistics and setting lineups.  But because the legality of a fantasy sports game is based on the level of skill required to play the game, these features, while increasing participation, are simultaneously pushing a multi-billion dollar industry to the brink of extinction.  To avoid this outcome, current gambling laws should not be used to regulate fantasy sports.

V. How Fantasy Sports Differ From Other Gambling Games

Fantasy sports cannot be regulated effectively under current gambling law because they are different from other casino-type games.  Fantasy sports are different because strategy can be used to overcome the chance elements involved in the game.  To understand the impact of strategy in fantasy sports games, it is important to understand the differences between strategy and skill.

Skill is “the ability to use one’s knowledge effectively.”[17]  Skill can be obtained through study, repetition, drill or practice. Often, exercising skill becomes an automatic response that occurs independently of any cognitive process.  Strategy, on the other hand, is a deliberate, planned, and conscious activity.   Strategy involves the application of skill but it also implies an understanding of the interaction between underlying concepts.

Managing a fantasy sports team takes skill and strategy.  Drafting players, for example, is partly skilled-based because players’ statistics can be learned through study.  Drafting players is also strategy-based because an owner must prioritize his selections by anticipating other owners’ choices.  Trade negotiation, however, is primarily strategy-based.  Skill-based trades would involve analyzing statistics to make mutually beneficial trades.  But most trades are not mutually beneficial.  Instead, trades typically involve psychological warfare, feeding off other owner’s impulsive natures, or exploiting other teams’ weaknesses.  In fact, many fantasy experts insist that trade negotiation is an art.

By utilizing strategy, owners can prevent chance from determining the outcome of the game.  All fantasy sports involve chance due to adverse weather conditions and possible player injuries.  However, a skillful owner circumvents these elements by drafting backup players, checking game day weather and injury reports, and adjusting his lineup as necessary.  Conversely, a poker player cannot eliminate the chance that he will be dealt an unfavorable hand, a craps player cannot anticipate the roll of the dice, and a roulette player cannot predict the number on which the ball will fall.  Therefore, the ability to use strategy to “beat chance” distinguishes fantasy sports games from other illegal gambling.

VI. Resolving Fantasy Sports’ Differences Under the Law

A. Ambiguity

Not only are fantasy sports different from other gambling activities, they are also different from each other.  Because of this, attempts to regulate fantasy sports under existing gambling laws have produced ambiguous guidelines.  For example, in Humphrey v. Viacom, a New Jersey court held that the fantasy sports game at issue was legal because it would be “patently absurd” to conclude that the combination of an entry fee and a prize constituted gambling.[18]  The court reasoned that such a holding would mean that spelling bees, beauty contests, and golf tournaments would also be considered gambling.  Although this holding appears to give fantasy sports a “clean bill of health,” it has been severely limited to its facts.[19]  Therefore, fantasy sports games continue to be arbitrarily analyzed depending on the rules of each particular game.  A better approach is for states to pass specific fantasy sports legislation.

B. Fantasy Sports Specific Law

Montana is currently the only state with specific statutory authorization for fantasy sports.[20]  While the Montana Code is a good starting point, new legislation should expand the law by first defining a fantasy sports game and then requiring the game to meet a two-part test.  First, like in Montana’s Code, a fantasy sports game could be defined as an activity in which “a limited number of persons . . . pay an entry fee for membership in the league” and create “a fictitious team composed of athletes from a given professional sport.”  If the game meets the basic definition, its legal status could be determined based on (1) whether the game involves strategy; and (2) whether strategic decisions lessen the effect of chance on the game.

Part one of the test would require a court to consider whether the game involves strategy.  This inquiry looks only at whether participants’ strategic decisions ultimately affect the outcome of the game.  Part two asks whether a participant can use strategy to effectively “beat chance.”  This requires a court to identify chance elements, such as player injuries or adverse weather conditions, and ask whether a strategic player could reduce the effect of those elements.

When the two-part test is met, the game should be deemed legal.  Alternatively, if chance elements, such as those dependent on random number generators, dice throws, or card shuffles, cannot be controlled, the game should be illegal.  The new law recognizes fantasy sports games as a game of strategy.  By distinguishing them in this way, the law protects the legal status of true fantasy sports games.

VI. Conclusion

Fantasy sports emerged as an American pastime as participation skyrocketed over recent years.  New features, designed to further increase participation, arguably lower the amount of skill involved in the game thereby threatening the legality of fantasy sports. To fix this problem, state legislatures must pass fantasy sports specific laws.  By doing so, states can protect the multi-billion dollar industry.


[1] Darren Rovell, Peyton Manning Injury Could Shift $65 Million in Fantasy Winnings, CNBC (Sept. 6, 2011, 6:57 PM), http://www.cnbc.com/id/44414737/Peyton_Manning_Injury_Could_Shift_65_Million_in_Fantasy_Winnings.

[2] Michael Stein, The Verdict: Yahoo Is Endangering Fantasy Sports, THT Fantasy (Feb. 1, 2011, 5:11 AM), http://www.hardballtimes.com/main/fantasy/article/the-verdict-yahoo-is-endangering-fantasy-sports/.

[3] New York v. World Interactive Gaming Corp., 714 N.Y.S.2d 844, 852 (App. Div. 1999).

[4]Id. at 851 (emphasis added).

[5] Gamble Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/gamble (last visited Feb. 6, 2013).

[6] E.g., New York v. Hunt, 616 N.Y.S.2d 168, 169 (Crim. Ct. 1994); Valentin v. el Diario la Prensa, 427 N.Y.S.2d 185, 186 (Civ. Ct. 1980); McKee v. Foster, 347 P.2d 585, 590 (Or. 1959); Geis v. Cont’l Oil Co., 511 P.2d 725, 727 (Utah 1973).

[7] Marc Edelman, A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime, 3 Harv. J. Sports & Ent. L. 1, 27 (2012).

[8] E.g., Affiliated Enter. v. Waller, 5 A.2d 257, 262 (Del. Super. Ct. 1939); State ex rel. Schillberg v. Safeway Stores, Inc., 450 P.2d 949, 955 (Wash. 1969).

[9] Arkansas v. 26 Gaming Machs., 145 S.W.3d 368, 374 (Ark. 2004).

[10] Edelman, supra note 9, at 28

[11] Anthony N. Cabot et al., Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 390 (2009).

[12] Johnson v. Collins Entm’t Co., Inc., 508 S.E.2d 575, 584 (S.C. 1998).

[13] Texas v. Gambling Device, 859 S.W.2d 519, 523 (Tex. App. 1993).

[14] Milwaukee v. Burns, 274 N.W. 273, 276 (Wis. 1937).

[15] See Joker Club L.L.C. v. Hardin, 643 S.E.2d 626, 629 (N.C. Ct. App. 2007); (“[S]kill will prevail over luck over a long period of time”).

[16] Derek Ambrosino, Is Autodraft a Necessary Evil?, THT Fantasy (Jan. 4, 2012, 5:44 AM), http://www.hardballtimes.com/main/fantasy/article/is-autodraft-a-necessary-evil/.

[17] Skill Definition, Merriam-Webster, http://www.merriam-webster.com/dictionary/skill (last visited Feb. 6, 2013).

[18] See generally Humphrey v. Viacom, Inc., No. 06-2768 (DMC), 2007 WL 1797648, at *7 (D.N.J. June 20, 2007)

[19] Eric Sinrod, Fantasy Sports Leagues Participation is not Illegal Gambling, Judge Rules, Find L. (July 3, 2007), http://articles.technology.findlaw.com/2007/Jul/03/10896.html.

[20] Mont. Code Ann. § 23-5-802 (2011).

The Changing Landscape of Willful Infringement: The Effect of Willfulness as a Question of Law

By Shawna S. Boothe* and John D. Kendzior**

I. Introduction

Under the United States Patent Act, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”[1]  A finding of willful patent infringement allows the court, at its discretion, to “increase the damages up to three times the amount found or assessed.”[2]  While a finding of willfulness is a sufficient basis for awarding enhanced damages, it does not compel such an award.[3]  Additionally, the court may award reasonable attorney fees to the prevailing party for willful infringement.[4]

Willful infringement significantly affects the technology that patents protect.  In the recent high-profile Apple v. Samsung trial, the patents at issue concerned smartphones and tablets.  The San Jose, California nine-person jury found that Samsung infringed six of seven Apple patents.[4]  The jury awarded Apple $1,049,393,540 in damages—one of the largest awards in an intellectual property case to date.[5]  Moreover, the jury found that Samsung willfully infringed on five of six Apple patents.  Thus, presiding Judge Koh can grant Apple’s request to treble the $1.05 billion jury award and to award attorney fees under 35 U.S.C. §§ 284, 285.

II. Background

The Court of Appeals for the Federal Circuit articulated a standard for evaluating willful infringement in Underwater Devices, Inc. v. Morrison-Knudsen Co.  “Where . . . a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing.”[6]  The affirmative duty of a potential infringer included, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity.  Ensuing case law shaped the willfulness landscape and evaluates willfulness under the totality of the circumstances.

III. Seagate’s Willfulness Standard

Twenty-four years later, the Federal Circuit overruled Underwater Devices and established a two-prong test for proving willful infringement in In re Seagate Technology, LCC.  First, “a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.”[7]  This first prong is a threshold objective standard in which the state of mind of the accused infringer is not relevant.  If the threshold objective prong is satisfied, the patentee must also demonstrate the second prong: “that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.”[8] This second prong is a subjective inquiry.  The Court left the development and application of Seagate’s willfulness standard to future cases.  Subsequent case law established that the objective prong tends not to be met where an accused infringer relies on a reasonable defense to a charge of infringement.[9]  Examples of defenses that negate the objective prong of willfulness include invalidity and noninfringement assertions.[10]

Seagate significantly altered two aspects of the willfulness landscape.  First, it elevated the previously lower threshold for establishing willfulness.  Seagate moved away from Underwater Device’s affirmative duty of care—which was akin to negligence—and adopted a more rigorous objective recklessness standard.  The Federal Circuit reasoned that a higher standard of recklessness permitting enhanced damages comports with Supreme Court precedent requiring a showing of recklessness before civil punitive damages are allowed.[11]  Seagate’s heightened standard has made it more difficult for a prevailing party to recover enhanced damages.[12]>  Second, resulting from Seagate’s abandonment of an affirmative duty of care, potential infringers are no longer required to obtain opinion of counsel in order to avoid liability for willful infringement.

IV. Willfulness As a Question of Law

Under Seagate precedent, the willfulness two-pronged inquiry has long been treated as a question of fact.[13]  On June 14, 2012, the Federal Circuit once again transformed the landscape of willfulness by announcing, in Bard Peripheral Vascular, Inc. v. Gore & Associates, Inc., that the threshold prong is henceforth a question of law.  The Bard Court held, “the objective determination of recklessness, even though predicated on underlying mixed questions of law and fact, is best decided by the judge as a question of law subject to de novo review.”[14]  In Bard, the Federal Circuit delineated a rule for two distinct circumstances.  When a defense or noninfringement theory asserted by an accused infringer is purely legal, the objective recklessness of such a theory is a purely legal question to be determined by the judge.  Such purely legal defenses include claim construction and reexamination.  Alternatively, when the objective prong turns on fact questions or on legal questions dependent on the underlying facts, the judge remains the final arbiter of whether the defense was reasonable, even when the underlying fact question is sent to a jury.  Such underlying factual defenses include anticipation or obviousness.  Under the second circumstance, if the defense is a question of fact or a mixed question of law and fact, the court may allow the jury to determine the underlying facts relevant to the defense first, and then it would determine the reasonableness of the defense as a matter of law.

The Bard Court reasoned that the judge is in the best position to determine whether an accused infringer’s defenses are reasonable.[15]  Furthermore, judges have the discretion to award enhanced damages and attorneys fees for willful infringement; therefore, it is logical for judges also to decide the objective prong of willfulness.  To support its holding, the Bard Court also relied upon the Supreme Court’s conclusion that objective baselessness should be a question of law through analogizing objective baselessness for sham litigation to a finding of lack of probable cause to institute an unsuccessful civil law suit—which subjects mixed questions of fact and law to a de novo review.  Bard extended the Supreme Court’s analogy to encompass objective recklessness because Seagate’s objective recklessness and objective baselessness are identical under Federal Circuit precedent.

V. Bards Effect on the Willfulness Landscape

This most recent change to willfulness as a question of law substantially affects the overall willfulness landscape in two respects.  First, a question of law is determined by the court, either on a pretrial motion for partial summary judgment or on a motion for judgment as a matter of law at the close of the evidence.[16]  Prior to Bard, few of these motions were granted because willfulness was ultimately a question of fact to be decided by the jury after trial.  Now that willfulness is a question of law, an avenue is created for disposing of willfulness allegations by judicial decision prior to trial.   Therefore, courts will likely experience increased filings of such motions due to this new avenue, and movants likely will experience greater success—not necessarily on the merits of the motion but on the sheer ability of courts to grant the motions without needing to submit the issue to the jury.

Secondly, the decision in Bard creates a disjointed pairing of a question of law with a standard for proving facts.  Seagate requires that the threshold prong of objective recklessness be proven by clear and convincing evidence.  Typically, clear and convincing evidence is the standard for proving questions of fact, which was consistent when willfulness was a question of fact.  In holding that the threshold prong of objective recklessness is a question of law, the Bard court failed to address or change the standard of proof required for this prong.  Thus, Seagate and Bard, understood together, create an issue of law that still must be proven by the standard for an issue of fact.

In an earlier concurring opinion, Justice Breyer addressed the exact problem we now face with Seagate and Bard.[17] Justice Breyer, in his concurring opinion in Microsoft Corp. v. i4i Limited Partnership, firmly stated that the clear and convincing evidentiary standard should only apply to questions of fact and not to questions of law.  Additionally, Justice Breyer instructed courts to prevent “the ‘clear and convincing’ standard from roaming outside its fact-related reservations . . . .”[18]  One does not have to make a significant inferential leap to conclude that Justice Breyer would admonish the Federal Circuit for establishing willfulness as a question of law that applies the clear and convincing evidence standard of proof.  Although both remain “good” law, there is undeniable tension between Seagate and Bard that will likely be addressed in subsequent case law.

VI.       Conclusion

The willfulness landscape has undergone two significant changes within the last five years.  First, the willfulness standard in Underwater Devices was replaced by the standard set forth in Seagate, which heightens the burden of proving willfulness by requiring objective recklessness as opposed to negligence.  Additionally, Seagate abandoned Underwater Devices’ duty of care and duty to seek opinion of counsel.  However, no change could be more significant than the change that occurred in Bard, which held that willfulness is as a question of law rather than a question of fact.  As a question of law, judges may determine the threshold prong of willfulness without submitting the issue to the jury.  The judge could dispose of a willfulness allegation by granting a motion for summary judgment or judgment as a matter of law.  Thus, the authors posit that the courts will see an increase in such motions, and movants will experience greater success solely because of the new avenue to dispose of willfulness allegations.  Another effect of the change in Bard is the tension created by joining a question of law with the burden of proving a question of fact—clear and convincing evidence.  The authors posit that Justice Breyer would strongly disapprove of such joining based on his special concurrence in i4i, and the tension will be resolved in subsequent case law.


* J.D. Candidate, University of Illinois College of Law, expected 2013. B.A., Mathematics and Philosophy, University of Saint Thomas, 2010.  Firstly, I would like to thank James Hanft at Schiff Hardin LLP for his insights and guidance during the 2012 summer associate program, which sparked my interest in this topic.  Secondly, I am grateful to the editors of the Journal of Law, Technology, and Policy for their support while writing this piece.  Lastly and most importantly, I would like to thank my family for their continued support throughout the years.

** J.D. Candidate, University of Illinois College of Law, expected 2013. B.S., Finance and Information Technology, Marquette University, 2010.  Firstly, I would like to thank my co-author for introducing me to this topic and being a pleasure to work with.  I would also like to thank my fellow Journal of Law, Technology, and Policy editors and members for their insights and advice throughout the writing and publication process.  Lastly, I would like to thank my family for their encouragement of my legal education.

[1] 35 U.S.C. § 271 (2010).

[2] 35 U.S.C. § 284 (2011); e.g., In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007) (“Absent a statutory guide, we have held that an award of enhanced damages requires a showing of willful infringement.”).

[3] State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1576 (1991) (citing Modine Mfg. Co. v. Allen Grp., Inc., 917 F.2d 538, 542–43 (Fed. Cir. 1990)).

[4] 35 U.S.C. § 285 (1952).

[5] Apple, Inc. v. Samsung Elecs. Co., No. 11-cv-01846-LHK at 2–7 (N.D. Cal. Aug. 24, 2012) (amended verdict form), available at http://cdn.slashgear.com/wp-content/uploads/2012/08/ApplevSamsung-1931.pdf; Jessica E. Vascellaro, Apple Wins Big in Patent Case, Wall St. J. (Aug. 25, 2012, 1:41 PM), http://online.wsj.com/article/SB10000872396390444358404577609810658082898.html.

 [6] Apple, No. 11-cv-01846-LHK at 15.

[7] Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389–90 (Fed. Cir. 1983).

[8] > In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007).

[9] Id.

[10] Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F.3d 1305, 1319 (Fed. Cir. 2010).

[11] Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1377 (Fed. Cir. 2012).

[12]See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 71 (2007) (noting that a reckless disregard of a requirement of the Fair Credit Reporting Act would qualify as a willful violation that makes a person civilly liable to the consumer).

[13] Siraj Husain, Note, The Willfulness Pendulum Swings Back: How Seagate Helps Level the Playing Field, 28 Loy. L.A. Ent. L. Rev. 239, 239–240 (2008).

[14] Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1374 (Fed. Cir. 2008); Stryker Corp. v. Intermedics Orthopedics, Inc., 96 F.3d 1409, 1413 (Fed. Cir. 1996).

[15] Bard Peripheral Vascular, Inc. v. Gore & Assocs., Inc., 682 F.3d 1003, 1007 (Fed. Cir. 2012).

[16] > Id. at 1006.

[17] DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1324 (Fed. Cir. 2009) (quoting Warner Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 39 n.8 (1997)).

[18] Microsoft Corp. v. i4i Ltd. P’ship, 131 S.Ct. 2238, 2253 (2011) (Breyer, J., concurring).

[19] Id.

Cyborgs: Natural Bodies, Unnatural Parts, and the Legal Person

By Alexis Dyschkant*

INTRODUCTION

The phrase “one’s person” has an important legal role because of the unique rights an individual has over her person and because of the prohibition on wrongfully contacting another’s person.  Isolating the boundary of a person is crucial for determining when (or if) someone has wrongfully contacted an individual.  Historically, “one’s person” has been limited to “one’s natural body” and some, but not all, artificial attachments to one’s natural body.  The cyborg, a creature composed of artificial and natural parts, challenges this conception of a “person” because it tests the distinction between the natural body and an artificial part.  Artificial objects, such as prosthetics, are so closely attached to bodies as to be considered a part of one’s person.  However, claiming that personhood extends to things attached to our natural bodies oversimplifies the complicated interrelation between natural objects and artificial objects in the cyborg.  If our person is no longer limited to our natural body, then we must understand personhood in a way that includes the cyborg.  I argue that the composition of a body does not determine the composition of a person.  One’s person consists to the extent of one’s agency.

ARTIFICIAL PARTS AND ONE’S PERSON: LEGAL BACKGROUND

One commits battery when she causes a “harmful or offensive contact with the person of the other.”[1]  Contact with a person has not been limited to contact with that person’s natural body.  For example, grabbing an object out of one’s hand is battery if the object is so closely connected to someone as to be considered a part of his body.[2]  In particular, objects which serve to substitute for a part of one’s natural body may be considered a part of one’s body, such as interference with a cane.[3]  Disability aids, such as prosthetics, wheelchairs, or hearing aids, are paradigm examples of artificial objects that are viewed as intimately attached to one’s body.  Interference with these objects is likely to be considered contact with a person.

The Restatement of Torts gives a guideline as to what is considered an “intimate connection”:There are some things such as clothing or a cane . . . which are so intimately connected with one’s body as to be universally regarded as part of the person.  On the other hand, there may be things which are attached to one’s body with a connection so slight that they are not so regarded. [4] At the heart of the discussion is the physical relationship between the artificial object and the natural body.  The artificial object needs to be attached to the natural body, and this attachment comes in degrees of intimacy.  At some point, the object is so closely attached we commonly refer to the object as part of one’s person.  Physical attachment to the body is the most significant factor in considering the role of an artificial object to one’s person.  For example, it is unlikely that touching a prosthetic limb that is completely detached from a body would constitute contact with a person.  Being attached to a physical body is paramount to determining whether an artificial object is considered a part of one’s person.

NEUROPROSTETHICS AND THE HIDDEN CYBORG

The problem with focusing on whether an artificial object is attached to a body is that the concept of “attachment” creates a conceptual barrier between “thing attached” and “thing attached to.”  Attachment can come in degrees, but it necessarily includes a relationship between two separate entities.  The image of the body, wholly organic and natural, and its artificial parts creates a dichotomy between the original, real body and its subsequent alterations.[5]  This image may accurately describe common representations of prosthetics and disability products, such as wheelchairs and canes, which can clearly be separated from one’s body.  But, while these kinds of artificial objects are common, it is a mistake to think that this is the norm.  The cyborg is more common than many believe.

A cyborg, simply put, is a creature that consists of both natural and artificial parts.[6]  Recent developments in science, called “Neuroprosthetics,” suggest that a science fiction conception of the cyborg is not entirely fiction.[7]  As the name suggests, Neuroprosthetics are artificial objects that are directly controlled by one’s nervous system—similar to how a natural arm is controlled.  Just in the last few months, we have seen the creation and private use of “Neuroprosthetic exoskeletons,” mechanical additions to a human body, such as a mechanical limb, which are integrated into one’s body.[8]  These exoskeletons respond directly to neuro-information in what has been called a “brain-computer interface.”[9]  Not only are these Neuroprosthetics not easily detached from one’s body like traditional prosthetics, but they challenge the inherent dichotomy between “thing attached” and “thing attached to.”  Neuroprosthetics become conceptually and biologically woven into the natural fabric of one’s body.  At one end, there is a clearly mechanical exoskeleton composed entirely of artificial parts and at the other end there is a natural, organic brain.  Somewhere between these two points, there is the woven interconnection between organic and artificial, but locating the “attachment” is difficult, and potentially, impossible.

But one need not look to modern technology to find cyborgs.  We are all cyborgs.  If the cyborg is as pervasive in society, then there is an even stronger motivation to distance personhood from biology.  The hidden cyborg is someone who has become so accustomed to her artificial parts that she fails to see herself as a cyborg at all.  The image of the natural human body as distinct from artificiality has become a thing of the past.  The most obvious examples of this are everyday objects like eyeglasses or cosmetics.  Tattoos are permanent additions to one’s body that can only be removed by removing organic material.  At the most extreme end of artificiality is the role of devices into which one can “off-load” his cognition, such as smartphones.  Some argue that our ability to save information contributed to the growth of our neuro-processing ability.[10]  Importantly, some of these artificial parts are not attached to a natural body.  Glasses merely rest on a body.  Tattoos are not “affixed” to one’s body, but literally woven into one’s skin.  Computing devices are entirely detached from our natural body.  This suggests that the role of artificial objects in one’s person extends beyond attachment.

CONCEPTIONS OF THE CYBORG’S PERSON

There are three possible responses to the existence of the cyborg.  One is to insist that one’s person is composed of a natural body and attached objects.  A second response, advanced by Gowri Ramachandran, is to reconceive of the body as a “social body.”[11]  I advance a third response which distances the “person” from the “body” and associates one’s person with one’s agency.

Salvaging the Natural Body-Artificial Part Distinction

One may insist that there remains an important difference between the natural body and the artificial object attached to the body.  Tattoos do not occur naturally; one must add a tattoo.  Similarly, one must attach a Neuroprosthetic to a natural body.  The fact that the location at which the exoskeleton is attached is difficult to locate does not mean that there is no point of attachment.  Moreover, consider the exoskeleton or the tattoo a paradigm example of the most intimate attachment.  However, this response blurs the role that “attachment” to one’s person is meant to play.  If the location of the attachment is lost and, thus the boundary between the artificial and the natural, then what distinguishes it from natural attachments such as donated organs other than the fact that it is artificial?  Moreover, even naturally occurring parts of one’s body can also become detached, such as temporary organ removal during surgery or a lost tooth that is going to be reattached.  The fact that functionally-equivalent artificial objects and natural objects can be attached and detached in similar ways suggests that a concept of “one’s person” should not depend on the natural-artificial distinction or the attached-detached distinction.[12]

The Social Body

Ramachandran offers a solution to the cyborg problem by introducing the “social body” which consists of those objects, possibly natural or artificial, which are important to our daily lives.[13]  One’s social body may include objects which blur the line between natural and artificial.  “Pacemakers, imaginary artificial organs of the future, and ink in a tattoo are often thought of as part of the social body, and they are neither organic nor human.”[14]  Ramachandran’s portrayal of the social body de-emphasizes the importance of attachment by focusing on the function of an object.  While this view is indeed a step in the right direction, it does not go far enough to distance the conception of one’s “person” from one’s “body.”  As she points out, the role of artificial objects in the social body is rhetoric that can potentially be identified as a replacement for natural body parts.[15]  The term “social body” invokes a pretense, as if it is an invented term used to give artificial objects a more privileged role in our lives.  Arguably, changing the natural body to a social body continues to place some body at the center of personhood.

Moving Beyond the Body

The view advanced here responds to the introduction of the exoskeleton-bearing cyborg and the hidden cyborg by distancing the body from the person entirely.  What the cyborg shows us is that the body can be composed of any kind of part but the person is necessarily the agent which controls, benefits from, and depends upon these parts.  Human tissue, animal tissue, or mechanical “tissue” all allow a person to exercise their agency and interact with the world.  The type of body which a person controls need not be relevant.  Hence, determining when one has made contact with “the person of another” does not necessarily depend on the naturalness or composition of one’s body, but on the relationship between the object contacted and the person’s agency.  We can imagine a technologically advanced future in which people retain control over parts detached entirely from their body or in which one’s person is dispersed across great spaces.  Neuroprosthetics are the first phase of this development; they are prosthetics that are not only integrated with our bodies, but also with our cognition.  They directly respond to electro-chemical signals put off by our brains.  What constitutes a person, in these cases, is that all of these parts compose a single agent capable of controlling or sensing them in the same way that we currently control or sense our natural parts.  The distinction between person and body is not new, but throughout much of history the person has been limited, or contained in, the body.  The development of the cyborg represents an exciting change.  It is now possible to conceive of the person extending physically beyond the body via attachments, integrations, extensions, and even completely detached objects.[16]


* J.D., College of Law, Ph.D., philosophy, University of Illinois at Urbana-Champaign, expected 2015.

[1] Restatement (Second) of Torts § 13 (1965).

[2] Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967).

[3] Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 114 (1784).

[4] Restatement (Second) of Torts § 18 cmt. c (1965) (emphasis added).

[5] See Donna J. Haraway, A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s, in The Haraway Reader 7, 11 (1985) (discussing three theoretical boundary breakdowns in modern society between human and animal, organism and machine, and physical and non-physical).

[6] Id.

[7]E.g., Miguel A. L. Nicolelis, Mind in Motion, Sci. Am, Sept. 2012, at 58; Emilia Mikołajewska & Dariusz Mikołajewski, Neuroprostheses for Increasing Disabled Patients’ Mobility and Control, 21 Advances Clinical & Experimental Med. 263 (2012), available at http://www.advances.am.wroc.pl/pdf/2012/21/2/263.pdf.

[8] Chris Wickham, UK Paraplegic Woman First to Take Robotic Suit Home, Reuters (Sept. 4, 2012), http://www.reuters.com/article/2012/09/04/us-science-exoskeleton-idUSBRE8830RZ20120904.

[9] Mikołajewska & Mikołajewski, supra note 7, at 264.

[10] Cary Wolfe, What is Posthumanism? 35 (2010).

[11] Gowri Ramachandran, Assault and Battery on Property, 44 Loy. L.A. L. Rev. 253, 259 (2010).

[12] Haraway, supra note 5, at 11–13.

[13] Ramachandran, supra note 11, at 263–66.

[14] Id. at 267.

[15] Id. at 275.

[16] Ramachandran, for example, willingly includes smartphones as part of the social body in the form of an “exo-brain.”  Id. at 275–76.  The introduction of external information processing has led some philosophers, such as extended mind theorists and transhumanists, to include the smartphone as a part of one’s person.  Id.