Welcome back to Legal Geek. This week, we update one of the more compelling copyright law stories of 2014, that being the ongoing saga for cordcutting pioneer Aereo against the broadcast networks in court, to see where Aereo stands heading into 2015.
https://archive.org/details/LegalGeekEp31
Back in June before Nerdtacular, this segment reviewed the Supreme Court decision that deemed that Aereo's subscription service that intercepts broadcast signals with mini antennae was copyright infringement against the networks. I deemed that Aereo would not survive in its current form in that previous segment, but has that come true?
Aereo was defiant in response to the Supreme Court decision, indicating it still had legal theories and arguments to rely upon to try and stop the broadcast networks' motion for an injunction to shut the company down. More specifically, Aereo argued that Section 111 of the copyright act would provide a compulsory license that had to be granted by the networks just like for cable TV providers protected under this Section of the copyright act.
The U.S. Copyright Office refused to recognize such a right to a compulsory license in July, so the battle went to the New York District Court judge handling the motions for injunction against Aereo. In late October, that judge ruled similarly that Aereo and other web providers are not entitled to the cable company protections of Section 111 like the right to force a compulsory license on the broadcast networks.
To put it simply, the judge ruled that even though the Supreme Court deemed that the "public performance" requirement for copyright infringement was met by Aereo's service in a similar manner as it would for cable companies, that did not mean Aereo was actually a cable company. Instead, this decision confirmed the many years of case law holding that web companies like Aereo are not entitled to all specialized cable company protections in copyright law.
And with that, Aereo's last stand failed and a preliminary injunction stands against Aereo, at least as it pertains to rebroadcasting currently-airing television shows.
Aereo is now auctioning its web television technology under bankruptcy to help pay the bills, as $95.6 million of venture capital has dried up to a mere $3.6 million due to all this litigation. Aereo clearly still thinks there is a non-copyright-infringement use of its patented technology, and reports from Engadget say that at least 17 buyers are interested. However, it is clear that Aereo itself as an entity is waving the white flag and monetizing assets in bankruptcy to have money left over to finish litigation and pay damages, if necessary.
Bottom Line: Aereo is effectively dead, as expected. The legal arguments made by Aereo were not laughable in this process, and the Supreme Court was highly divided on the grounds for shutting this entity down, but the injunction and shutdown still occurred. If companies like this want to change the laws going forward, lobbying Congress will be the better avenue for change rather than fighting precedents in court.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Saturday, December 27, 2014
Tuesday, December 16, 2014
Legal Geek No. 30: Beware the Promiscuous Licensor
Welcome back to Legal Geek! This week, we take a look at so-called promiscuous licensors, and what trademark owners can do to protect themselves from losing their IP rights by being labeled as promiscuous.
https://archive.org/details/LegalGeekEp30
A Michigan court hit the legal news cycle in September for deciding a trademark case based on the well-established doctrine that so-called naked licensing by a trademark owner can destroy the right to protect that trademark. "Naked licensing" is understood to mean the situation where a trademark owner licenses the rights to use the trademark to another party without exerting some control over the quality of goods and the use of the mark by the third party.
This practice is disfavored in trademark law because trademarks are protected for the primary purpose of avoiding consumer confusion, by properly identifying the source of well known trademarked goods. It logically follows that if a company allows others to use the trademark without exerting any real quality control over the use of that mark, then the line blurs for consumers about where the source of goods bearing that trademark is located. That makes the trademark not really identify the true source anymore, which undermines the primary reason we protect trademarks in the first place.
Returning to the Michigan case, a company called Movie Mania was suing to stop a rental service competitor from using the trademark, but the court discovered that Movie Mania had licensed the rights to use that trademark in many agreements since 1996 without any quality control provisions in the license agreements. Thus, these naked licenses ruined any trademark rights Movie Mania had to its own company name, and the competitor won the case and the right to continue using the mark.
This naked licensing was deemed by the court to make Movie Mania a "promiscuous licensor," a cute play on words that helped this case become a bigger news item, but this language may help solidify this often overlooked trademark concept in the public eye. Trademarks are based on some sort of exclusive use, otherwise the mark would not indicate the source of goods for the consumer to avoid confusion, so being "promiscuous" or running around "naked" with your licenses to third parties can clearly undermine that intellectual property.
One of my regular duties in my day job as an attorney is to review publishing and distribution agreements for video and board game designers, as well as other creative types who license the rights to make and sell what is covered by their intellectual property, such as the game in the game design context. Almost every single time, the license granting language for the use of copyrighted and trademarked material contains no real provision for quality control.
This is very bad, as signing such an agreement could wreck one of the client's most important business assets, specifically the trademark rights!
So if you want to learn anything from my past and current clients, learn this: (1) there is no such thing as a form contract, especially when written poorly and one-sided, and (2) there is no reason to sign a license agreement with no quality control provisions for trademarks, as doing so jeopardizes the trademark rights that both parties want to use and exploit.
Bottom Line: just like most IP rights, trademark law has some quirks which can lead the uninformed to make bad decisions that could kill assets like trademarks when conducting regular business agreements. Be careful out there, as you don't want to end up being the next "naked and promiscuous" party we hear about in the legal news.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp30
A Michigan court hit the legal news cycle in September for deciding a trademark case based on the well-established doctrine that so-called naked licensing by a trademark owner can destroy the right to protect that trademark. "Naked licensing" is understood to mean the situation where a trademark owner licenses the rights to use the trademark to another party without exerting some control over the quality of goods and the use of the mark by the third party.
This practice is disfavored in trademark law because trademarks are protected for the primary purpose of avoiding consumer confusion, by properly identifying the source of well known trademarked goods. It logically follows that if a company allows others to use the trademark without exerting any real quality control over the use of that mark, then the line blurs for consumers about where the source of goods bearing that trademark is located. That makes the trademark not really identify the true source anymore, which undermines the primary reason we protect trademarks in the first place.
Returning to the Michigan case, a company called Movie Mania was suing to stop a rental service competitor from using the trademark, but the court discovered that Movie Mania had licensed the rights to use that trademark in many agreements since 1996 without any quality control provisions in the license agreements. Thus, these naked licenses ruined any trademark rights Movie Mania had to its own company name, and the competitor won the case and the right to continue using the mark.
This naked licensing was deemed by the court to make Movie Mania a "promiscuous licensor," a cute play on words that helped this case become a bigger news item, but this language may help solidify this often overlooked trademark concept in the public eye. Trademarks are based on some sort of exclusive use, otherwise the mark would not indicate the source of goods for the consumer to avoid confusion, so being "promiscuous" or running around "naked" with your licenses to third parties can clearly undermine that intellectual property.
One of my regular duties in my day job as an attorney is to review publishing and distribution agreements for video and board game designers, as well as other creative types who license the rights to make and sell what is covered by their intellectual property, such as the game in the game design context. Almost every single time, the license granting language for the use of copyrighted and trademarked material contains no real provision for quality control.
This is very bad, as signing such an agreement could wreck one of the client's most important business assets, specifically the trademark rights!
So if you want to learn anything from my past and current clients, learn this: (1) there is no such thing as a form contract, especially when written poorly and one-sided, and (2) there is no reason to sign a license agreement with no quality control provisions for trademarks, as doing so jeopardizes the trademark rights that both parties want to use and exploit.
Bottom Line: just like most IP rights, trademark law has some quirks which can lead the uninformed to make bad decisions that could kill assets like trademarks when conducting regular business agreements. Be careful out there, as you don't want to end up being the next "naked and promiscuous" party we hear about in the legal news.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Legal Geek No. 29: Will Spiderman Toy Dispute Overturn 50 Year Patent Law?
Welcome back to Legal Geek! This week, we mix all of our favorite things for this holiday season: toys for Christmas, superheroes, and 50-year old patent law precedents at the Supreme Court. The Supreme Court granted cert this week to decide the Kimble vs. Marvel Entertainment case, which involves all of these awesome things.
In a 1964 patent case entitled Brulotte, the Supreme Court deemed that a patent licensee, who pays a patent owner royalties to be able to manufacture and sell goods covered by the patent, is absolved of any further duties after the patent expires following its normal 20 year term. In other words, for 50 years the law has been that a patent owner cannot continue to demand payment of royalties from licensees following expiration of a patent, because public policy dictates that the invention go into the public domain at that point.
That doctrine is now directly under fire thanks to complicated cases like the Kimble case the Supreme Court will hear in early 2015. Kimble received a patent in 1991 for gloves capable of shooting foam string from the palm, just like Spiderman. Or as Andrew Allen would put it...(insert theme music)
He approached Marvel with this idea and an oral agreement was reached that Marvel would not exploit this idea. However, in 1997, a Web Blaster toy which was exactly this type of Spiderman glove hit the market from Marvel.
Kimble sued for patent infringement and breach of contract, and when he won on the contract claims but lost on the patent claims, the parties settled before appeal. This settlement led Marvel to buy out the patent and pay royalties on all future sales of this type of toy. Despite the patent expiring in 2010, the settlement agreement had no set termination date.
A new dispute over this settlement agreement led to another breach of contract lawsuit two years ago, and Marvel asked for declaratory judgment in view of the 50-year old Brulotte patent doctrine. Basically, Marvel argued that the now-expired patent rights released Marvel of any further obligations to pay royalties.
The District Court and the Court of Appeals have ruled in favor of Marvel by using this 50-year old doctrine. The Supreme Court taking this issue means the status of the Brulotte doctrine is unclear, at best. This hybrid contract and patent set of facts is the perfect type of case to determine whether expiration of patent rights trump any other contractual agreements to pay royalties for an idea.
Though it is clear that patented ideas should go into the public domain after 20 years to keep the patent system working as intended, it is not clear whether this need to put things in the public domain is so strong as to override private contractual agreements between two parties. To this end, Marvel had the opportunity to negotiate and write this settlement contract better than it did, so it's unclear why this party should now benefit from a rule intended to protect everyone else in the public.
It's unlikely we will see Justices Scalia and Ginsburg shooting webs at one another during oral argument, but the business makers and innovators in our nerd world will help determine just how far 50-year old patent law precedent can be applied. And there may not be enough spiderwebs available to hold together this seemingly overreaching patent doctrine, at least as it is currently applied.
Bottom Line: I personally expect some minor changes to be implemented to this doctrine for special fact situations just like this where a contract likely should not be disturbed by a patent expiring. If nothing else, this is another fun and nerdy set of toys and facts to see the Supreme Court grapple with this term.
Finally, Apologies for the brief hiatus, thank you for those who sent kind words and segment requests over the past two weeks.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, November 7, 2014
Legal Geek No. 28: FTC Stabs at the Patent Troll
Welcome back to Legal Geek. This week, we take a look at a landmark FTC consent order and settlement issued earlier this week, the consent order imposing limits on a patent troll for the first time.
https://archive.org/details/LegalGeekEp28
The Federal Trade Commission is a government entity that has the dual mission of protecting consumers, specifically by stopping unfair and deceptive practices in the marketplace, and of promoting competition, specifically by enforcing antitrust laws. The FTC has come across this segment's radar for antitrust before, but now we see the consumer protection branch in full effect.
Whenever a complaint is received from one or more consumers by the FTC about deceptive business practices, the agency investigates the complaints and brings lawsuits to force changes in conduct for bad actors. That's what happened here against MPHJ Technology Investments and its law firm.
Patent assertion entities, also referred to as patent trolls, are one example of potential bad actors in the marketplace. These patent assertion entities buy up vague and broad patents for the express purpose of threatening lawsuits to many businesses to strong-arm them into patent licenses which become significant revenue streams based on the purchased patents. This trend has been strong for a decade in the patent world, but most efforts to curtail this practice in Congress and elsewhere have been ineffective or slow in coming about.
However, the FTC may have just opened a new viable attack against such patent assertion entities because MPHJ has been forced in this consent order to stop sending threatening letters making misstatements about the number of other companies who have already agreed to license the patents and misstatements about threatening litigation when no real preparation or intent to sue is there. Further violations of this nature will now come with a $16,000 fine per incident, and considering MPHJ has already sent out over 9,000 letters, that price tag could rise into the millions if the deceptive conduct continues.
The primary reason patent trolls are such a drain on the marketplace is that they wield all the power with very little downside, as companies often will pay these entities to avoid expensive and lengthy patent litigation. By taking away the ability to baselessly threaten litigation, patent trolls lose much of the power that makes this a top issue. Therefore, as the FTC opens a 30 day public comment period for us to comment on this consent order, it seems like a good idea to flood the FTC with positive comments reinforcing this decision.
Bottom Line: this FTC decision may have an initial small effect against only one bad actor patent assertion entity, but the potential for this to happen to other patent trolls could finally change the landscape in this long-fought battle over patent rights. The FTC may have finally solved how to protect innovators while clearing out true abuses of the patent system.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitz
https://archive.org/details/LegalGeekEp28
The Federal Trade Commission is a government entity that has the dual mission of protecting consumers, specifically by stopping unfair and deceptive practices in the marketplace, and of promoting competition, specifically by enforcing antitrust laws. The FTC has come across this segment's radar for antitrust before, but now we see the consumer protection branch in full effect.
Whenever a complaint is received from one or more consumers by the FTC about deceptive business practices, the agency investigates the complaints and brings lawsuits to force changes in conduct for bad actors. That's what happened here against MPHJ Technology Investments and its law firm.
Patent assertion entities, also referred to as patent trolls, are one example of potential bad actors in the marketplace. These patent assertion entities buy up vague and broad patents for the express purpose of threatening lawsuits to many businesses to strong-arm them into patent licenses which become significant revenue streams based on the purchased patents. This trend has been strong for a decade in the patent world, but most efforts to curtail this practice in Congress and elsewhere have been ineffective or slow in coming about.
However, the FTC may have just opened a new viable attack against such patent assertion entities because MPHJ has been forced in this consent order to stop sending threatening letters making misstatements about the number of other companies who have already agreed to license the patents and misstatements about threatening litigation when no real preparation or intent to sue is there. Further violations of this nature will now come with a $16,000 fine per incident, and considering MPHJ has already sent out over 9,000 letters, that price tag could rise into the millions if the deceptive conduct continues.
The primary reason patent trolls are such a drain on the marketplace is that they wield all the power with very little downside, as companies often will pay these entities to avoid expensive and lengthy patent litigation. By taking away the ability to baselessly threaten litigation, patent trolls lose much of the power that makes this a top issue. Therefore, as the FTC opens a 30 day public comment period for us to comment on this consent order, it seems like a good idea to flood the FTC with positive comments reinforcing this decision.
Bottom Line: this FTC decision may have an initial small effect against only one bad actor patent assertion entity, but the potential for this to happen to other patent trolls could finally change the landscape in this long-fought battle over patent rights. The FTC may have finally solved how to protect innovators while clearing out true abuses of the patent system.
--------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitz
Thursday, October 23, 2014
Legal Geek No. 27: Does Settling Patent Lawsuits Open Door for Class Action Liability?
Welcome back to Legal Geek. This week, we take a look at the new fad in class action lawsuits called "pay for delay" antitrust suits and whether these lawsuits will chill the overwhelming desire companies have to settle patent infringement and invalidity lawsuits.
https://archive.org/details/LegalGeekEp27
Back in 2008 AstraZenica was embroiled in patent litigation over the wildly popular heartburn medicine called Nexium. Various generic drug makers wanted to invalidate the patents on the drug in order to jump into the lucrative market well before these patents would expire in late 2014. However, as many patent lawsuits do, this case settled before a final disposition on terms not disclosed to the public.
Thus, the exact terms of the agreement between Astrazenica and other companies like Ranbaxy were not known. But there's at least some evidence that this agreement included a large payment of money to Ranbaxy for the promise to drop the lawsuit and not make a generic version of Nexium until the middle of 2014. Now these former competitors in court are forced to defend together against a class action lawsuit in Massachusetts claiming that this payment and delay of the generic release is in violation of the Sherman Act.
We've briefly discussed class action suits before on this segment, and the biggest hurdle was cleared a year ago when the class of consumers who could sue was certified by the court. The court is now hearing oral arguments in the case this week, and the plaintiff drug stores and consumers are painting a picture of unfair gaming of the patent system by AstraZenica paying for a delay in the generic drug release, thereby artificially keeping prices on Nexium inflated for the final five or six years of patent coverage.
These pay for delay suits are a relatively new fad brought on by recent Federal Circuit and Supreme Court case law. As applied to the patent context, it seems to imply that companies like Ranbaxy who challenge the validity of a patent cannot drop that suit because they must serve the interests of fair market competition and consumer protection from negotiated monopolies. But is that a good thing for the patent system or judicial system?
If a duty to the consumers is created by filing and pursuing a lawsuit or claim to invalidate a patent, then any settlement or payment could end up leading to a claim (no matter how true) of pay for delay conspiracies...which means more patent litigations will fill court dockets for longer periods of time rather than being settled. In addition, patents are all about exclusivity and the right to monopolize innovations for a short period of time before it becomes public domain, so it seems strange that merely settling a case about patents could give rise to a claim of antitrust violations.
Perhaps the recent advent of post grant review proceedings for patents, which cannot be withdrawn or stopped once initiated, will help alleviate this problem by enabling challenges to a patent's validity without risking a settlement that could lead to claims of antitrust conspiracy later.
Bottom Line: efficient and quick settlement of patent lawsuits reduces a major drain on the court system, and if this pay for delay theory works for the class action lawsuit against Astrazenica, that's bad news for the marketplace generally as more companies will tie up resources fighting long battles in court. Nobody wins in that situation except the lawyers, and take it from a lawyer, that's not what you want to happen.
--------------------------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp27
Back in 2008 AstraZenica was embroiled in patent litigation over the wildly popular heartburn medicine called Nexium. Various generic drug makers wanted to invalidate the patents on the drug in order to jump into the lucrative market well before these patents would expire in late 2014. However, as many patent lawsuits do, this case settled before a final disposition on terms not disclosed to the public.
Thus, the exact terms of the agreement between Astrazenica and other companies like Ranbaxy were not known. But there's at least some evidence that this agreement included a large payment of money to Ranbaxy for the promise to drop the lawsuit and not make a generic version of Nexium until the middle of 2014. Now these former competitors in court are forced to defend together against a class action lawsuit in Massachusetts claiming that this payment and delay of the generic release is in violation of the Sherman Act.
We've briefly discussed class action suits before on this segment, and the biggest hurdle was cleared a year ago when the class of consumers who could sue was certified by the court. The court is now hearing oral arguments in the case this week, and the plaintiff drug stores and consumers are painting a picture of unfair gaming of the patent system by AstraZenica paying for a delay in the generic drug release, thereby artificially keeping prices on Nexium inflated for the final five or six years of patent coverage.
These pay for delay suits are a relatively new fad brought on by recent Federal Circuit and Supreme Court case law. As applied to the patent context, it seems to imply that companies like Ranbaxy who challenge the validity of a patent cannot drop that suit because they must serve the interests of fair market competition and consumer protection from negotiated monopolies. But is that a good thing for the patent system or judicial system?
If a duty to the consumers is created by filing and pursuing a lawsuit or claim to invalidate a patent, then any settlement or payment could end up leading to a claim (no matter how true) of pay for delay conspiracies...which means more patent litigations will fill court dockets for longer periods of time rather than being settled. In addition, patents are all about exclusivity and the right to monopolize innovations for a short period of time before it becomes public domain, so it seems strange that merely settling a case about patents could give rise to a claim of antitrust violations.
Perhaps the recent advent of post grant review proceedings for patents, which cannot be withdrawn or stopped once initiated, will help alleviate this problem by enabling challenges to a patent's validity without risking a settlement that could lead to claims of antitrust conspiracy later.
Bottom Line: efficient and quick settlement of patent lawsuits reduces a major drain on the court system, and if this pay for delay theory works for the class action lawsuit against Astrazenica, that's bad news for the marketplace generally as more companies will tie up resources fighting long battles in court. Nobody wins in that situation except the lawyers, and take it from a lawyer, that's not what you want to happen.
--------------------------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Monday, October 6, 2014
Legal Geek No. 26: Are Smartwatches A Legal Problem?
Welcome back to Legal Geek. This week, we answer a listener question about whether new Smartwatches like Apple Watch and Google Wear will violate traffic laws regulating video screens in vehicles.
Listener James T. on Twitter [@jthatcher79] asked whether the new smartwatches will violate second monitor laws like California's vehicle code section 27602. Let's take a look at this specific law and then the ramifications across the country.
The California law prohibits operation of a motor vehicle if a television receiver, a video monitor, a video screen, or any other similar means of visually displaying a video signal for entertainment or business applications is operating and is located in the motor vehicle in front of the back side of the driver's seat, or located so as to be visible to the driver while driving. Exceptions to this rule include vehicle information displays, GPS displays, a mapping display, video feeds enhancing or supplementing the view around the vehicle such as back up cameras, and equipment that has an interlock device or is otherwise configured to disable the video screen for all non-exception uses during operation of the vehicle.
When parsing this law, the initial question is whether a smartwatch will be considered a means similar to a TV receiver or video screen for displaying a video signal for entertainment or business applications. Considering smartphones and similar devices have been interpreted as covered by these types of laws, the answer is most likely yes. Indeed, this California code section made national news a year ago for generating the first traffic violation tickets to people wearing Google Glass while driving. Its' hard to imagine the revenue-generating traffic cops will pass on the opportunity to bulk up a ticket fine with extra violations for smartwatch wearers.
The second question is whether smartwatches fall into any of the exceptions to the rule. Clearly the key question will be whether the smartwatch is configured to disable all use except for mapping and GPS. At this point, there is no indication this will be the case, which means wearing smartwatches (by the letter of the broad California law) likely violates this traffic law.
Just like with Google Glass, this isn't exactly what the law was written to cover. So expect any early tickets that do happen to be challenged in court, which will perhaps lead to more clear legislation regarding whether smartwatch manufacturers have to include interlock or similar features disabling the device in a moving vehicle. The law always takes a while to catch up to new technologies, and this is no different.
But for now, the Bottom Line is, at least in my view, smartwatches could lead to traffic ticket violations under California code 27602.
Many states have similar laws outlawing use of non-hands-free cell phones or television and video monitors. So while each state law is different and requires different analysis, the previous discussion of the California law likely applies equally in many states. So for now at this very early stage of the legal process, buyer beware...you may want to slip the smartwatch off should you get pulled over for speeding.
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Do you have a question? Send it in, and just like James, yours might get featured right here!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, October 2, 2014
Legal Geek No. 25: Mandatory Phone Kill Switches?
Welcome back to Legal Geek. This week, we take a look at a new law signed into effect in California last month and how it could make cell phones more secure than ever.
https://archive.org/details/LegalGeekEp25
California lawmakers enacted a new law which forces all smartphone manufacturers to provide automatically enabled Kill Switch technology on all phones sold after July 1, 2015. This Kill Switch technology is like the Activation Lock on Apple products, closely related to the Find my iPhone features. These Kill Switches enable an owner of a phone to remotely lock down and "brick" the phones, erasing all data and making the phone unusable.
The primary goal is deterring theft, as upwards of 70% of all robbery and theft crimes in bigger cities like San Francisco are related to smartphones. The resale market is so lucrative on these products and they have become so ubiquitous that it should come as no surprise this is the latest consumer product to get a lot of attention from thieves. But much like technological advances used to make cars harder to steal, it's only a matter of time before legislation and technology also secures this type of personal asset from thieves.
The early results speak for themselves, as iPhone theft in places like New York City have dropped 17-20% following the addition of the automatic Activation Lock feature.
The most important part of the law is that the phones must have this Kill Switch functionality enabled upon purchase, even if the option to opt-out is provided. If you've purchased an iPhone 6, you've already seen this change. Most consumers will not take the time to opt out, which means an extra layer of security will be present on almost all phones on the market in California within a year or two. That should slow the rate of violent crime for this particular type of consumer product.
California is the biggest market in the country, so what happens there will likely also cause phone manufacturers to adopt those standards nationwide (whether or not the other states also pass similar legislation). About the only party that opposes these types of laws are phone insurance companies that stand to lose significant market share if phones are more secure and less subject to loss/theft claims being required.
Much like the Delaware data destruction law covered a couple weeks ago on this segment, this is the type of pro-consumer law that benefits us all. Kudos to California for helping advance this safety technology in the phone field.
Bottom Line: Less robberies and thefts mean a more secure society, and everybody wins in that scenario. That's a rarity in lawmaking, so enjoy it for this week.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp25
California lawmakers enacted a new law which forces all smartphone manufacturers to provide automatically enabled Kill Switch technology on all phones sold after July 1, 2015. This Kill Switch technology is like the Activation Lock on Apple products, closely related to the Find my iPhone features. These Kill Switches enable an owner of a phone to remotely lock down and "brick" the phones, erasing all data and making the phone unusable.
The primary goal is deterring theft, as upwards of 70% of all robbery and theft crimes in bigger cities like San Francisco are related to smartphones. The resale market is so lucrative on these products and they have become so ubiquitous that it should come as no surprise this is the latest consumer product to get a lot of attention from thieves. But much like technological advances used to make cars harder to steal, it's only a matter of time before legislation and technology also secures this type of personal asset from thieves.
The early results speak for themselves, as iPhone theft in places like New York City have dropped 17-20% following the addition of the automatic Activation Lock feature.
The most important part of the law is that the phones must have this Kill Switch functionality enabled upon purchase, even if the option to opt-out is provided. If you've purchased an iPhone 6, you've already seen this change. Most consumers will not take the time to opt out, which means an extra layer of security will be present on almost all phones on the market in California within a year or two. That should slow the rate of violent crime for this particular type of consumer product.
California is the biggest market in the country, so what happens there will likely also cause phone manufacturers to adopt those standards nationwide (whether or not the other states also pass similar legislation). About the only party that opposes these types of laws are phone insurance companies that stand to lose significant market share if phones are more secure and less subject to loss/theft claims being required.
Much like the Delaware data destruction law covered a couple weeks ago on this segment, this is the type of pro-consumer law that benefits us all. Kudos to California for helping advance this safety technology in the phone field.
Bottom Line: Less robberies and thefts mean a more secure society, and everybody wins in that scenario. That's a rarity in lawmaking, so enjoy it for this week.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, September 25, 2014
Legal Geek No. 24: Electronic Car Repo Man
Welcome back to Legal Geek. This week, we take a look at the rise of subprime auto loans and the legality of electronic devices that lenders are using to ensure timely payments from these high-risk borrowers.
https://archive.org/details/LegalGeekEp24
According to a report this week in the New York Times, subprime auto loans, which are car loans made to those with low credit scores below 640, are accounting for nearly 30% of all auto loans in 2014. This represents the biggest boost for selling cars to people with bad credit since before the market crash of 2008.
But in about a quarter of those loans, the lenders are installing electronic devices called starter interrupters, which disable a car's ignition when the borrower is late to make a payment. This is effectively a new technological form of electronic repossession of the vehicles, and lenders say these devices are critical to negating the risk usually associated with subprime auto loans.
Of course, reports are out there which say the lenders use the devices to track the borrower's movements Big Brother style and that some lenders disable cars at highly inconvenient times, such as when stalled out at a stoplight. But are the lenders breaking consumer laws by extorting payments in this manner?
Some lenders are employing virtual repo men who actually give borrowers a chance by calling them multiple times and waiting 30 days before using the starter interrupter. But others are acting far more quickly, and many times without notice. These types of lenders would likely be breaking some old laws in many states giving rights to borrowers to have a chance to settle debts before the repo man is allowed to come.
Although state laws vary, the terms of auto loan contracts are typically forced to allow for at least 30 days of being behind on payments before the right to repossess is allowed. And any repossession cannot include a breach of the peace, meaning use of physical force or opening a closed garage, for example. It could be argued these devices do breach the peace when used away from a home or workplace setting.
Of course, the device manufacturers and lenders believe this disabling of the vehicle is not actually a repossession. It will be interesting to see how that theory works out if challenged many times in court.
Bottom Line: This is a gray area of law, but states will eventually be forced to define exactly how these new technologies are governed in the auto loan context. One would expect that the largely defenseless struggling consumers will win the day eventually, but for now, the banks hold all the power and wield it heavily, whether actually legal or not.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp24
According to a report this week in the New York Times, subprime auto loans, which are car loans made to those with low credit scores below 640, are accounting for nearly 30% of all auto loans in 2014. This represents the biggest boost for selling cars to people with bad credit since before the market crash of 2008.
But in about a quarter of those loans, the lenders are installing electronic devices called starter interrupters, which disable a car's ignition when the borrower is late to make a payment. This is effectively a new technological form of electronic repossession of the vehicles, and lenders say these devices are critical to negating the risk usually associated with subprime auto loans.
Of course, reports are out there which say the lenders use the devices to track the borrower's movements Big Brother style and that some lenders disable cars at highly inconvenient times, such as when stalled out at a stoplight. But are the lenders breaking consumer laws by extorting payments in this manner?
Some lenders are employing virtual repo men who actually give borrowers a chance by calling them multiple times and waiting 30 days before using the starter interrupter. But others are acting far more quickly, and many times without notice. These types of lenders would likely be breaking some old laws in many states giving rights to borrowers to have a chance to settle debts before the repo man is allowed to come.
Although state laws vary, the terms of auto loan contracts are typically forced to allow for at least 30 days of being behind on payments before the right to repossess is allowed. And any repossession cannot include a breach of the peace, meaning use of physical force or opening a closed garage, for example. It could be argued these devices do breach the peace when used away from a home or workplace setting.
Of course, the device manufacturers and lenders believe this disabling of the vehicle is not actually a repossession. It will be interesting to see how that theory works out if challenged many times in court.
Bottom Line: This is a gray area of law, but states will eventually be forced to define exactly how these new technologies are governed in the auto loan context. One would expect that the largely defenseless struggling consumers will win the day eventually, but for now, the banks hold all the power and wield it heavily, whether actually legal or not.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Monday, September 8, 2014
Legal Geek No. 23 - Delaware Data Destruction
Welcome back to Legal Geek. This week, we take a look at the new personal data destruction law put into effect in Delaware and how this may be the most important development in the hot field of privacy law to date.
https://archive.org/details/LegalGeekEp23
A few weeks ago, Delaware's legislators and governor signed into law a new data destruction policy that requires complete destruction of personal identifying information held by companies after it is no longer being used. More specifically, the law states that entities must "destroy…a consumer's personal identifying information within its custody and control that is no longer to be retained by the commercial entity...by shredding, erasing, or otherwise destroying or modifying the personal identifying information in those records to make it entirely unreadable or indecipherable through any means."
This sounds good and it follows the lead of many other states which have put in consumer privacy protection laws, but is it the biggest win for consumer privacy in the war against identity theft? I think it is this important for a number of reasons.
First, the law applies to a wide variety of data sets that would be maintained by companies, as any data set including personal identifying information is included in the destruction obligation. With personal identifying information requiring only a non-encrypted consumer's name in combination with any other personal item such as social security number, credit card number, tax information, or bank account number, this should ensure any possible consumer data will be subject to destruction immediately upon the company's intent to stop using the information. The law also has broad applicability to paper and electronic records, including those stored in the cloud.
Second, the law as written appears to broadly apply to all companies subject to Delaware law, which would include the nearly 50% of companies in the U.S. which have chosen to incorporate in Delaware because of favorable business and tax laws there. The law has no exceptions for size, revenue, or charitable status, so all of these companies would now be subject to these tough privacy laws for protecting consumers.
Third, the law has bite on the enforcement side, allowing for the Attorney General to bring regulatory actions as well as allowing for private lawsuits with increased treble damages possible for individual consumers in court. The law applies clear encouragement for companies to destroy documents and information securely, limiting the chance that careless or negligent actions will lead to mass amounts of identity theft.
Bottom Line: companies are storing more and more consumer private data these days, and the attacks of hackers leading to identity theft are becoming more common. This law in Delaware encourages either encryption of all consumer data or destruction of data in a responsible and prompt manner when not being used, which should limit the leaks and openings most often exploited by identity thieves and hackers. Considering the potential coverage of about half of U.S. companies, this is the best state law consumer advocates could ever hope for and is a huge win in the war against identity theft.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Wednesday, August 20, 2014
Legal Geek No. 22: Race Riots and Constitutional Rights
Welcome back to Legal Geek. This week, we take a look at the ongoing protests in Ferguson, Missouri and whether constitutional rights are being infringed by acts of the local police and government in that area.
https://archive.org/details/LegalGeekEp22
Following the fatal shooting of black teenager Michael Brown by a police officer on August 9 in this suburb of St. Louis, a series of memorials and protests began the next day. The largely white police department was believed to have acted too harshly in trying to apprehend Brown, and the conflicts have escalated multiple times over the past two weeks.
The highly militaristic gear and responses to protests used by the local police departments in Ferguson have been largely shunned in the media and across the nation. This period of race riots has become the most notable in the U.S. since the 2001 race riots in Cincinnati and the 1992 race riots in Los Angeles following the Rodney King incident. With social media now a factor, the world is watching closely and some organizations like the Islamic Republic News Agency and the Russian Foreign Ministry have called the U.S. and Nobel Peace Prize winner Barack Obama hypocrites for ordering other nations to provide human rights while not taking care of the same problems within their own borders.
However, have these police departments infringed on constitutional rights of the people in Ferguson by the actions taken to date?
The first amendment to the U.S. Constitution protects the right of the public to peaceably assemble together and also protects the freedom of the press to cover events. Missouri governor Jay Nixon has imposed nightly curfews in Ferguson to try and curtail the violence and riots, which is a strategy that worked to end the week-long 2001 Cincinnati riots. But this curfew has led local police to arrest numerous journalists trying to cover the story as well as organizers of peaceful protests.
The 14th Amendment to the Constitution and Supreme Court decisions in the 1930's (Near vs. Minnesota and DeJonge vs. Oregon) have incorporated these two constitutional rights so as to apply to state and local governmental agencies, such as those acting in Ferguson. By imposing a curfew across the board and enforcing it without acknowledging the exceptions used for workers in the Cincinnati curfew of 2001, the Ferguson police are almost certainly infringing the freedom of the press right under the 1st Amendment.
Even Barack Obama has publicly come out against some of the actions that have occurred against the press. The curfew likely also is infringing the right to peacefully assemble, but that is more of a gray area with the protesters frequently turning to violence which can and must be curtailed by the police for public safety reasons.
Bottom Line: If the actions of governor Nixon and the local authorities is ever challenged in court, it is hard to see how their actions will be deemed anything but unconstitutional. Until police forces are more representative of the communities in which they operate and operate with the utmost caution at all times, these sad incidents and the subsequent protests will continue to happen over time. Hopefully future incidents can be handled better and in compliance with the U.S. Constitution, which is the most important mandate of our government.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Tuesday, August 12, 2014
Legal Geek No. 21: The Legal Effects of Suicide
Welcome back to Legal Geek. This week, we honor the recently-passed Robin Williams and take a look at whether there are any legal effects caused by the commission of suicide.
https://archive.org/details/LegalGeekEp21
On Monday, news broke that famous comedian and actor Robin Williams had died at the age of 63. He certainly made the world a better and happier place with his art, and he will be sorely missed. Sadly, it appears that his death was a suicide likely fueled by the depression he has battled with for many years. Even though the subject is hopelessly morbid, this begs the question: what, if anything, are the legal ramifications of suicide?
Certainly if you've ever looked over a life insurance policy, you are likely aware that most policies deny payout in the event of suicide, but only if that happens within a set time period in the contract such as the first two years the policy is in effect. While insurance payouts are hopefully not an issue for the family of Robin Williams, it is something to be aware of. This is just based on contract though, not the law itself.
Almost all current laws dealing with suicide are criminal laws regarding assisting someone else commit suicide. Many states had laws on record making suicide itself a felony up through about the 1960's, but no state still has any such law on the books (and they were rarely, if ever, enforced back when these laws existed, because the person is already dead). Regardless, some states still hold that suicide is a common law crime, under judge made law, and this can bar damages recovery for the deceased's family in an ongoing lawsuit, in some circumstances. Essentially, this long shot is the only significant effect of suicide that may be legally binding on the survivors.
There is no automatic loss of copyrights or other IP rights as a result of suicide. Indeed, the estate of someone artistic like Williams may very well hold some valuable copyrights for the next 70 years past his death, and this may be a continued revenue stream for his heirs for many years to come. So beware bloggers, you may want to be careful with using the copyrighted clips and pictures of Williams that will inevitably be shared like wildfire over the next few days and weeks.
Bottom Line: Suicide and depression simply stink, and we lost a great one this week. Although his family will have plenty to grieve about in the coming months, at least this act carries essentially no adverse legal consequences for them. Let's hope we as a society find better ways to help those who need it in the future, as none of us should have to experience the devastation that is suicide.
And Robin, we will miss you. "You ain't never had a friend like me." Indeed, we haven't.
(copyright Carter Johnson, check out her stuff @carterejohnson)
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
On Monday, news broke that famous comedian and actor Robin Williams had died at the age of 63. He certainly made the world a better and happier place with his art, and he will be sorely missed. Sadly, it appears that his death was a suicide likely fueled by the depression he has battled with for many years. Even though the subject is hopelessly morbid, this begs the question: what, if anything, are the legal ramifications of suicide?
Certainly if you've ever looked over a life insurance policy, you are likely aware that most policies deny payout in the event of suicide, but only if that happens within a set time period in the contract such as the first two years the policy is in effect. While insurance payouts are hopefully not an issue for the family of Robin Williams, it is something to be aware of. This is just based on contract though, not the law itself.
Almost all current laws dealing with suicide are criminal laws regarding assisting someone else commit suicide. Many states had laws on record making suicide itself a felony up through about the 1960's, but no state still has any such law on the books (and they were rarely, if ever, enforced back when these laws existed, because the person is already dead). Regardless, some states still hold that suicide is a common law crime, under judge made law, and this can bar damages recovery for the deceased's family in an ongoing lawsuit, in some circumstances. Essentially, this long shot is the only significant effect of suicide that may be legally binding on the survivors.
There is no automatic loss of copyrights or other IP rights as a result of suicide. Indeed, the estate of someone artistic like Williams may very well hold some valuable copyrights for the next 70 years past his death, and this may be a continued revenue stream for his heirs for many years to come. So beware bloggers, you may want to be careful with using the copyrighted clips and pictures of Williams that will inevitably be shared like wildfire over the next few days and weeks.
Bottom Line: Suicide and depression simply stink, and we lost a great one this week. Although his family will have plenty to grieve about in the coming months, at least this act carries essentially no adverse legal consequences for them. Let's hope we as a society find better ways to help those who need it in the future, as none of us should have to experience the devastation that is suicide.
And Robin, we will miss you. "You ain't never had a friend like me." Indeed, we haven't.
(copyright Carter Johnson, check out her stuff @carterejohnson)
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, August 7, 2014
Legal Geek No. 20: Copyright Monkeys
Welcome back to Legal Geek. This week, we take a look at this week's hot copyright controversy, that being whether a photographer has rights to shots taken by a monkey with his camera.
https://archive.org/details/LegalGeekEp20
Back in 2011, British photographer David Slater spent a great deal of time and money taking a wildlife photography trip to Indonesia. During this trip, a pack of monkeys, specifically crested black macaques, grabbed one of Slater's camera and ended up taking hundreds of pictures. A couple of these pictures ended up being good looking selfies, which made for a great story and a good selling photo for Slater.
However, the Wikimedia Foundation has this week refused to delete the photos from wikipedia, arguing that there is no valid copyright in the images. Essentially, Wikimedia argues that the only authorship of those photographs was by the monkey itself, and copyright law does not protect or grant rights to non-human authors. Thus, the photo is allegedly in the public domain. But is this true?
I agree with most copyright experts that U.S. and European copyright laws provide rights to creators of works of authorship only when the author is human. The problem for Slater here is that he did not add anything to the monkey selfies, he did not frame or arrange the shots and did not alter them or improve them upon bringing the photos back home. The author of a photograph is the one who snaps the shutter, absent some of these other possible additions to the creative expression or work. Slater did not add anything here, and so if there could be a copyright, it would be owned by the monkey, which is impossible under current laws.
Granted, this is a bad situation for creative types like Slater who spend thousands of dollars trying to get one lucrative photo like this monkey selfie. But copyright case law is clear, co-ownership or transferred ownership only comes by written contract in work made for hire, or when actual authorial participation was added to the work. Merely transporting the camera to Indonesia and owning it is not enough to pass the sniff test. Wikimedia is correct, in this case.
Like other IP law doctrines, copyright law does change and reform with the times. Perhaps the era of everyone having a smartphone in the pocket will force another major revision to copyright law to account for complex situations such as this. Just like when the law had to begin adjusting to the Internet age in 1998 with the DMCA.
Bottom Line: Today's copyright law does not allow for a copyright when a monkey steals a camera and takes a selfie. Perhaps when the Planet of the Apes timeline begins, we will adjust our laws and give unto Caesar what is his.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, July 24, 2014
Legal Geek No. 19: Was Veronica's Comcast Call Illegal?
Welcome back to Legal Geek. This week, we take a look at wiretapping laws to determine whether Frogpants friends Veronica and Ryan did anything illegal in recording and posting the phone call of them trying to disconnect Comcast service last week.
Anybody who has dealt with canceling cable services knows what a pain companies like Comcast and Time Warner can be on the back end. However, you hopefully haven't experienced the 10+ minutes of agony that Veronica and Ryan did, and it's worth a listen.
Clip of call available here: https://www.youtube.com/watch?v=yYUvpYE99vg
One of the more typical responses to this viral call has been to ask whether the customer violates any wiretapping laws and the rights of the Comcast call center employee by recording and distributing such a call. It even came up on Current Geek briefly last week.
Wiretapping laws have protected telephone, personal, and electronic communications since the late 1960's, and these laws have become more vital over time as privacy rights erode away for the general public in many areas. Federal and state laws prohibit any unauthorized interception, recording, distribution, or use of a private conversation, although there are numerous limits and exceptions to this law.
One limit is consent of one or both of the parties to the recording. 38 states and Federal law allow wiretapping of any conversation when one of the parties consents, which would automatically protect Veronica and Ryan as participants on this call. However, California is one of the few states that requires consent of all parties to make wiretapping legal.
However, there may be implied consent of the Comcast employee here because his company informs customers that each call may be monitored or recorded for quality assurance purposes, which is done precisely to avoid federal wiretapping laws and FCC regulation violations.
However, the California law has another important limit in that it applies only to confidential communications, in other words, those conversations where an expectation of privacy is present. It would likely be impossible for Comcast or its employee to prove that they have any expectation of privacy on a business call from a consumer such as this. Their own recording of these same calls tend to prove otherwise.
Bottom Line: Veronica and Ryan are safe from federal and California wiretapping laws thanks to consent and/or the call not having an expectation of confidentiality or privacy. That's good news for our friends and hopefully also for Comcast, which will hopefully change company practices and policies after the fallout from one employee following questionable company orders.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, June 26, 2014
Legal Geek No. 18: Supreme Court Clarifies More Limits on Software Patents
Welcome back to Legal Geek. This week, we continue our review of recent Supreme Court decisions affecting the tech world by analyzing the decision in Alice Corp. v. CLS Bank.
Like many Supreme Court cases, including the copyright case covered last week, a primary issue is whether the resulting ruling will affect more than just the narrow facts at hand in the case. For the Alice case, the simple question was whether a patent claiming a computerized trading platform for eliminating settlement risk in financial transactions was patentable subject matter. The broader question was whether software patents are actually patentable subject matter.
As is typical in the decisions, the Supreme Court answered the facts at hand and did not address the broader issue, likely leaving the big question of software patents to be decided by Congress rather than the courts. Thus, the reports that software patents were greatly curtailed by this decision are simply false.
The use of a third party in financial transactions to eliminate settlement risk was deemed by a unanimous court to be what is called merely an Abstract idea, in other words a well known principle or building block of economic practice. Moreover, the claims that add generic computer system elements to perform the methods were ruled to not be patentable subject matter either.
Put simply, a patent attorney cannot merely wordsmith claims and add simple elements to make a non-patentable Abstract Idea into a valid patent claim. Again, from a common sense perspective, the Supreme Court has acted logically in stopping gamesmanship based solely on wording of claims rather than substance.
However, the Court made it abundantly clear by comparisons to previous Abstract Idea cases that this analysis has not changed, it was merely applied to the facts in this case. Thus, software patents in the broad sense are still as patentable as they have always been, and that legal field will continue to thrive.
Bottom Line: If software is to be deemed non-patentable subject matter, that decision will clearly not come from the Supreme Court. The standards will remain fuzzy as a result of the nature of software, but there is good innovation there and the courts and Congress are not likely to take away the patent rights to this entire field.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Legal Geek No. 17: Supreme Court Deals Death Blow to Cordcutting Option Aereo
Welcome back to Legal Geek. This week, we review the impact of this week's Supreme Court decision that killed one cord cutting option called Aereo.
The Supreme Court always releases a high number of decisions in June at the end of their annual term, and the complex intellectual property cases always seem to be left to this time period. One of the most notable decisions came down this week, as the Aereo service was confirmed to be copyright infringement by the Supreme Court.
For those unfamiliar with Aereo, this was a subscription service that allowed users to watch over-the-air television broadcasts by intercepting the signals with miniature antennae. Basically, a user decided what program he wanted to watch and Aereo opened access to the channel by sending the intercepted antennae signal to the user's device. Effectively, this was a cord-cutting system because it allowed for live and cable programming to be viewed without a cable or satellite TV subscription.
The 6-3 majority opinion held that the transmission of these intercepted programs to user devices was enough to qualify as a public performance of those programs, which is one of the rights that copyright protection includes. Just because the programs were individually transmitted in a passive manner on an individual by individual basis, this was deemed by the court to be analogous to a performance of the program through an individual conduit to many users (which would more clearly be improper under copyright precedents). On this point, I think that common sense won the day.
Thus, Aereo will be shut down, which all 9 justices agreed should happen, even though the dissent disagreed on the grounds for shutting this down. The Court explicitly stated that this case does not decide whether copyright infringement occurs with cloud computing or remote storage DVR's, so this really just shuts down the most illegitimate of the cordcutting services. And of course, this decision has no effect on the more popular services like Netflix and Amazon Prime, which pay royalties to stream the programs delivered to subscribers. Indeed, Aereo could make the same negotiations and stay in business, should it choose to continue on the right side of the law.
Bottom Line: Cordcutting and cloud computing live on, while Aereo will not in its current form. Much like the aftermath of the Napster decisions in the music industry, we still appear to be headed toward a great place for consumers of live and recorded television and films.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thus, Aereo will be shut down, which all 9 justices agreed should happen, even though the dissent disagreed on the grounds for shutting this down. The Court explicitly stated that this case does not decide whether copyright infringement occurs with cloud computing or remote storage DVR's, so this really just shuts down the most illegitimate of the cordcutting services. And of course, this decision has no effect on the more popular services like Netflix and Amazon Prime, which pay royalties to stream the programs delivered to subscribers. Indeed, Aereo could make the same negotiations and stay in business, should it choose to continue on the right side of the law.
Bottom Line: Cordcutting and cloud computing live on, while Aereo will not in its current form. Much like the aftermath of the Napster decisions in the music industry, we still appear to be headed toward a great place for consumers of live and recorded television and films.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, June 19, 2014
Legal Geek No. 16: Evaluating the Copyright and Trade Dress Claims in Hex vs. Magic Litigation Battle
Welcome back to Legal Geek. This week, we finish our review of the legal battle brewing between Wizards of the Coast and Cryptozoic by looking at the merits of Wizards' copyright and trade dress claims.
The trade dress claimed by Wizards is the overall product appearance of Magic and its computer counterparts, alleged to include the packaging and 15-card contents of booster packs, the overall visual aspects of the cards, and the like. However, Wizards likely shot this claim in the foot by admitting all of this alleged trade dress has some functionality.
Functional elements are not protectable trade dress under the Lanham Act, so this trade dress claim is likely dead on arrival. I expect the trade dress claim to be decided in favor of Hex on initial summary judgment.
Turning to copyright, Wizards has set forth a compelling story of all the elements of Magic that Hex has allegedly copied. These copied aspects include the major types of cards, ability names on creatures, the same five colors of cards, a list of functionally identical cards, the background game appearance on a computer display, the same general rules of deck construction and combat during play, and the use of tapping cards to show use.
The vast majority of these appear to be the underlying facts or ideas that are not protectable creative expressions under copyright law. Many knockoff video games were able to escape copyright infringement over the last two decades on similar grounds, but some courts (including one involving a Tetris clone in 2012) have recently taken to applying copyright infringement where the amount of total elements copied is significant and overwhelming. Based on Wizards' complaint, that could very well be the case here.
So the copyright claim may come down to whether the judge or jury is sympathetic to the idea that knocking off most of the major aspects of a computer game is wrong. That's incredibly hard to predict, so the copyright claim will be the most interesting going forward.
Bottom Line: Wizards will likely prevail on the patent claim but will lose on the trade dress claim, which means the unpredictable copyright claim will determine whether Hex will be allowed to continue in this market for the long term. It will be certainly fun to see how this plays out in court between two game company titans.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, June 5, 2014
Legal Geek No. 15: Evaluating the Patent Claims in Hex vs. Magic Litigation Battle
Welcome back to Legal Geek. This week, we continue our review of the legal battle brewing between Wizards of the Coast and Cryptozoic by looking at the merits of the patent claims against the game Hex.
Let's begin with the basics: patents that are issued by the USPTO are effectively 20 year monopolies rewarded for innovation in the arts and sciences, but the monopoly is limited to just the specific numbered claims at the end of a patent. The difference between what is described in a patent and what is actually claimed can be very dramatic, as the claims are typically narrowed significantly during prosecution.
The urban legend is also true that Richard Garfield, the designer of Magic, did procure a patent in 1994 for various basic things like deckbuilding and tapping cards that are now a commonplace thing in trading card game designs. That patent of legend is what Wizards is claiming is infringed by Hex.
There are 57 claims in the Magic patent, but four of them stand to me as real problems for Hex. The first two recite a card game and a computer card game requiring only obtaining a hand of cards from a supply, playing a card, and designating a card by rotating it to a different orientation, AKA tapping. That's all, and Hex certainly seems to do those few steps.
Another of the broad claims recites obtaining a hand of energy/mana components and effect components, then using the energy components or mana to play the cards. Again, very basic TCG rule sets. The last of the broadest claims describes selecting a library of cards and displaying it on a computer screen to one user, then executing turns of a game and showing the cards played on multiple computer screens.
Claim construction is a process for deciding how to interpret these legalese claims, and that process plus discovery of documents and information from each party can be very complex and somewhat unpredictable. However, it seems likely that the close clone of rules and operations that Hex is compared to Magic will infringe at least those broad claims, if not more.
So Hex will likely need to fall back on the other defense to patent infringement, that being arguing that Wizard's claims are too broad or vague and therefore invalid. Of course, that will require finding prior art from before 1993 on these points, and the TCG market was not really in existence before Magic, so that could be difficult.
Although this patent will expire later this month, Wizards is still entitled to damages if this claim is successful for the large kickstarter profits and recent profits made by Hex. Plus, fighting over patents in court is ridiculously expensive, even by litigation standards. Unless Cryptozoic finds some invalidating prior art nobody else has located over the last 20 years, this infringement claim likely will go in favor of Wizards.
Bottom Line: At least on this claim, the makers of Hex should likely settle as soon as possible. The expected loss on the patent claim could be devastating, if not fatal to this game.
Next week, we will finish this subject for now by looking at the copyright and trade dress claims, which thankfully are a bit more straightforward.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, May 22, 2014
Legal Geek No. 14: Diving Into the Hex vs. Magic Litigation Battle
Welcome back to Legal Geek. This week, the subject is litigation strategy and why Wizards of the Coast is suing Cryptozoic on a number of different intellectual property grounds.
https://archive.org/details/LegalGeekEp14
As discussed by Scott and Tom during last week's Current Geek, it was publicly announced last week that Wizards was suing Cryptozoic for infringement of IP relative to the iconic trading card game Magic the Gathering. In short, Wizards believes that Cryptozoic's new video game TCG called Hex is an illegitimate copy of Magic that should be stopped.
This interesting case between two gaming industry titans could be ground-breaking in a field close to our nerdy hearts. As a result, this segment will look at some important aspects we can learn from this litigation over the next couple weeks.
This week, let's focus on the threshold question many are asking: why is Wizards is suing Cryptozoic on so many different grounds?
http://www.scribd.com/doc/224144304/Wizards-of-the-Coast-v-Cryptozoic-Entertainment-et-al
Comparison Photos from Complaint in W.D. Washington District Court filed by WOTC.
Wizards has three distinctive claims in the Complaint against Crptozoic, specifically patent, copyright, and trade dress infringement. Each of these three types of intellectual property provides a different scope of protection and each has a different test or burden of proof that Wizards must meet to prove that Hex is infringing. To put it most simply, Wizards is taking every bite at the apple it can because winning on any of these grounds will likely be fatal to Cryptozoic's game.
In addition, IP rights do not last forever. For example, the patent that Wizards is suing over is set to expire in June 2014. At long last, TCG designers will have "tapping" a card in the public domain for use in future designs. Thus, while the patent may have the best chance at obtaining profits and damages from Cryptozoic, the rights of Wizards to stop Hex from future sales based on patent rights will be moot in just over a month.
The copyright and trade dress actions are not based on soon-to-expire IP, so these items could lead to a long-term shutdown or redesign of the Hex game. Also, the likelihood of confusion test used to determine trade dress infringement is drastically different than construing and applying patent claims or determining the protectable authorial expressions covered by copyright. By making Cryptozoic prove a lack of infringement under each of these various standards, Wizards is banking on Cryptozoic not being able to rebut all of the different tests and arguments.
Bottom Line: The scorched earth approach of litigators is nothing new, and Wizards is making Cryptozoic jump through the most hoops possible to avoid infringement. Even if some of the claims are more shaky than others, it is worthwhile for Wizards to fire every bullet it has in the litigation gun.
Next week, we will look at the merits of some of these claims and predict how this case might come out.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below
https://archive.org/details/LegalGeekEp14
As discussed by Scott and Tom during last week's Current Geek, it was publicly announced last week that Wizards was suing Cryptozoic for infringement of IP relative to the iconic trading card game Magic the Gathering. In short, Wizards believes that Cryptozoic's new video game TCG called Hex is an illegitimate copy of Magic that should be stopped.
This interesting case between two gaming industry titans could be ground-breaking in a field close to our nerdy hearts. As a result, this segment will look at some important aspects we can learn from this litigation over the next couple weeks.
This week, let's focus on the threshold question many are asking: why is Wizards is suing Cryptozoic on so many different grounds?
http://www.scribd.com/doc/224144304/Wizards-of-the-Coast-v-Cryptozoic-Entertainment-et-al
Comparison Photos from Complaint in W.D. Washington District Court filed by WOTC.
Wizards has three distinctive claims in the Complaint against Crptozoic, specifically patent, copyright, and trade dress infringement. Each of these three types of intellectual property provides a different scope of protection and each has a different test or burden of proof that Wizards must meet to prove that Hex is infringing. To put it most simply, Wizards is taking every bite at the apple it can because winning on any of these grounds will likely be fatal to Cryptozoic's game.
In addition, IP rights do not last forever. For example, the patent that Wizards is suing over is set to expire in June 2014. At long last, TCG designers will have "tapping" a card in the public domain for use in future designs. Thus, while the patent may have the best chance at obtaining profits and damages from Cryptozoic, the rights of Wizards to stop Hex from future sales based on patent rights will be moot in just over a month.
The copyright and trade dress actions are not based on soon-to-expire IP, so these items could lead to a long-term shutdown or redesign of the Hex game. Also, the likelihood of confusion test used to determine trade dress infringement is drastically different than construing and applying patent claims or determining the protectable authorial expressions covered by copyright. By making Cryptozoic prove a lack of infringement under each of these various standards, Wizards is banking on Cryptozoic not being able to rebut all of the different tests and arguments.
Bottom Line: The scorched earth approach of litigators is nothing new, and Wizards is making Cryptozoic jump through the most hoops possible to avoid infringement. Even if some of the claims are more shaky than others, it is worthwhile for Wizards to fire every bullet it has in the litigation gun.
Next week, we will look at the merits of some of these claims and predict how this case might come out.
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below
Wednesday, May 14, 2014
Legal Geek No. 13: Do Blackberry Phones Finally Have a True Successor?
This week, the subject is whether a new phone to be released in June will finally be a true successor to Blackberry phones in the business world.
https://archive.org/details/LegalGeekEp13
The smartphone industry, like many technological fields, generally hits booms and busts based on widespread acceptance by the corporate world and by government. When employees in the business world could remain connected to the job everywhere on a secure connection with a keyboard and e-mail capabilities, the Blackberry became the crown jewel of the smartphone market.
Indeed, at its height, Blackberry held more than 20% worldwide market share. But that crashed quickly to less than 3% in five year thanks to the iPhone and other competitors blazing new trails while Blackberry was left behind. Perhaps the only reason Blackberry remains in business is the corporate world, which is slow to adapt to new technologies thanks to data security and privacy concerns, among other items.
But have we now finally found the true successor to Blackberry phones?
The Blackphone was announced early this year and is designed by Phil Zimmerman, who is known as the inventor of PGP. It is touted as the Spy-Proof phone, which is precisely the type of marketing scheme that works wonders in the corporate world. Although some would argue only idiots leave phone communications unencrypted or unprotected these days, it's hard to stop the onslaught of data collection in nearly every phone application and there will always be plenty of non-saavy tech idiots in the business world.
Thus, reports are flooding in this week that corporate giants such as those in the Fortune 50 are pre-ordering the Blackphone in high amounts. Considering the phone has comparable specs as android phones slightly above entry level, this could be a cost-effective option for finally replacing the Blackberry in many business settings.
Businesses want to keep all proprietary data such as trade secrets and future patent subject matter such as R&D away from prying eyes that will sell out or possible include foreign and domestic competitors, and this phone is promising the world on that front. Especially if the general public buys in for the purpose of privacy from big brother interests like the NSA, this phone could be the next sensation.
It's unclear if any of this technology is patent pending, although that might not matter if the marketing clicks. Make no mistake: Blackphone is intended to be a play on Blackberry, which again might bring up some interesting trademark questions that likely won't matter to the commercial success of the device.
Bottom Line: In this era of increased focus on privacy, the Blackphone is well positioned even without IP protection to be a huge player. Look for this star to continue to rise.
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp13
The smartphone industry, like many technological fields, generally hits booms and busts based on widespread acceptance by the corporate world and by government. When employees in the business world could remain connected to the job everywhere on a secure connection with a keyboard and e-mail capabilities, the Blackberry became the crown jewel of the smartphone market.
Indeed, at its height, Blackberry held more than 20% worldwide market share. But that crashed quickly to less than 3% in five year thanks to the iPhone and other competitors blazing new trails while Blackberry was left behind. Perhaps the only reason Blackberry remains in business is the corporate world, which is slow to adapt to new technologies thanks to data security and privacy concerns, among other items.
But have we now finally found the true successor to Blackberry phones?
The Blackphone was announced early this year and is designed by Phil Zimmerman, who is known as the inventor of PGP. It is touted as the Spy-Proof phone, which is precisely the type of marketing scheme that works wonders in the corporate world. Although some would argue only idiots leave phone communications unencrypted or unprotected these days, it's hard to stop the onslaught of data collection in nearly every phone application and there will always be plenty of non-saavy tech idiots in the business world.
Thus, reports are flooding in this week that corporate giants such as those in the Fortune 50 are pre-ordering the Blackphone in high amounts. Considering the phone has comparable specs as android phones slightly above entry level, this could be a cost-effective option for finally replacing the Blackberry in many business settings.
Businesses want to keep all proprietary data such as trade secrets and future patent subject matter such as R&D away from prying eyes that will sell out or possible include foreign and domestic competitors, and this phone is promising the world on that front. Especially if the general public buys in for the purpose of privacy from big brother interests like the NSA, this phone could be the next sensation.
It's unclear if any of this technology is patent pending, although that might not matter if the marketing clicks. Make no mistake: Blackphone is intended to be a play on Blackberry, which again might bring up some interesting trademark questions that likely won't matter to the commercial success of the device.
Bottom Line: In this era of increased focus on privacy, the Blackphone is well positioned even without IP protection to be a huge player. Look for this star to continue to rise.
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, May 8, 2014
Legal Geek No. 12: Students Lose as College Textbook Market Gets Desperate
This week, the subject is whether textbook publishers will succeed in destroying unfavorable parts of copyright law, or the consumers supporting the business of college textbooks itself.
https://archive.org/details/LegalGeekEp12
College textbook publishers have long wielded every protection possible under copyright law to try and discourage the resale market as well as counterfeits, citing second hand stores as serious threats to the industry. However, one limit in copyright law is the First Sale Doctrine, which serves to exhaust the publisher's right to control resale of the physical goods after selling them to the first purchaser. This has long been the worst enemy of this very lucrative entire industry.
But will recent actions by publishing companies overcome this First Sale Doctrine problem?
Rather than embracing more digital distribution models such as the music industry and the videogame industry to combat resale, textbook publishers have chosen to double down on high prices and force student consumers into impossible choices. Aspen has begun e-mailing law school professors to inform them that the next editions of their popular textbooks will come with a so-called lifetime access to a digital copy of the text, but the physical book must be returned to the publisher at the end of the class. In other words, students pay an exorbitant $200 or so for a book that they will not really own, and is not really sellable or useable by second hand shops and libraries.
If there's anything the tech world has learned over time, it is not to trust so-called lifetime digital access from providers such as this. Plus, the publishers are touting these added digital benefits come without increasing the cost of the book, but the price should actually be dramatically dropping if all the consumer gets is a temporary license to the physical copy and a questionable digital copy.
You can bet if this flies in the high-cost law school setting, all publishers will force this change down students' throats in all academic fields, and maybe even primary, secondary, and homeschool settings as well. Consumers will then really be paying money for nothing, and the publishers will rake in the profits while doing an end-run around the First Sale Doctrine established as early as 1904 and reconfirmed by the Supreme Court as recently as last year's term.
Bottom Line: Sometimes consumers need to step up and fight via petitions or supporting organizations like the Electronic Frontier Foundation, and this appears to be one of those times. Otherwise, college and other schooling could become out-of-reach for the worst reasons possible: corporate greed and profit margins.
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp12
College textbook publishers have long wielded every protection possible under copyright law to try and discourage the resale market as well as counterfeits, citing second hand stores as serious threats to the industry. However, one limit in copyright law is the First Sale Doctrine, which serves to exhaust the publisher's right to control resale of the physical goods after selling them to the first purchaser. This has long been the worst enemy of this very lucrative entire industry.
But will recent actions by publishing companies overcome this First Sale Doctrine problem?
Rather than embracing more digital distribution models such as the music industry and the videogame industry to combat resale, textbook publishers have chosen to double down on high prices and force student consumers into impossible choices. Aspen has begun e-mailing law school professors to inform them that the next editions of their popular textbooks will come with a so-called lifetime access to a digital copy of the text, but the physical book must be returned to the publisher at the end of the class. In other words, students pay an exorbitant $200 or so for a book that they will not really own, and is not really sellable or useable by second hand shops and libraries.
If there's anything the tech world has learned over time, it is not to trust so-called lifetime digital access from providers such as this. Plus, the publishers are touting these added digital benefits come without increasing the cost of the book, but the price should actually be dramatically dropping if all the consumer gets is a temporary license to the physical copy and a questionable digital copy.
You can bet if this flies in the high-cost law school setting, all publishers will force this change down students' throats in all academic fields, and maybe even primary, secondary, and homeschool settings as well. Consumers will then really be paying money for nothing, and the publishers will rake in the profits while doing an end-run around the First Sale Doctrine established as early as 1904 and reconfirmed by the Supreme Court as recently as last year's term.
Bottom Line: Sometimes consumers need to step up and fight via petitions or supporting organizations like the Electronic Frontier Foundation, and this appears to be one of those times. Otherwise, college and other schooling could become out-of-reach for the worst reasons possible: corporate greed and profit margins.
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, May 1, 2014
Legal Geek No. 11: Patent Trolls Lose Another Battle at Supreme Court
This week, the subject is whether the tide is turning against patent trolls in the Federal court system.
https://archive.org/details/LegalGeekEp11
The Supreme Court issued two related opinions this week that related to patent law, and specifically how to apply the fee shifting provisions applied for so-called "exceptional circumstances." This is one of the ways that frivolous litigating parties like patent trolls can be held in check, as paying the legal fees of the other party can be a deterrent when risking litigation against big pockets who have expensive legal counsel.
But how important will these decisions be in solving the patent troll problem?
The Supreme Court is giving far more discretion to the District Courts to determine what are exceptional circumstances meriting a loser pays all legal fees situation. This is not quite so far as some Congressional proposals have been, up to and including fee shifting to the loser in all patent cases, but it does make it more risky to force alleged infringers into court, especially when the case for infringement is shaky.
Another interesting part of the ruling is that the Supreme Court explicitly said an unreasonable manner in which a case is litigated can lead to fee shifting, which means patent trolls must play a little nicer or else run the risk of incurring the wrath of the court. Furthermore, the Supreme Court increased the standard fro review at the appeals court level is to look for abuse of discretion in shifting fees to a losing party, which is very different than the de novo standard that the Federal Circuit has been using (which allows for a fresh look and determination rather than giving deference to the District Court).
At the District Court, the proof now needed to show that the exceptional nature of the case is a preponderance of the evidence, not clear and convincing evidence. In other words, it is much easier for the District Court to shift fees to a losing patent litigation party and much harder for the court of appeals to overturn such fee shifting.
Although not explicitly targeted at patent trolls, these two decisions will likely affect some of the more egregious litigating parties that threaten lawsuits just to try and collect settlement paydays. Furthermore, this keeps legitimate inventors who cannot practice an invention but want to stop infringement or protect their own licensing rights from being harmed by overly harsh fee shifting rules. If you are litigating or threatening litigation and acting with poor tactics to disadvantage the opponent, that will eventually bite you when a court applies the fees from a winning party.
Bottom Line: The patent troll problem of companies buying up patents just to monetize them by threatening litigation is not going away with any one change, but making the courts more of a risky proposition for these entities should help in the long run. The patent troll may be slayed sometime soon!
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp11
The Supreme Court issued two related opinions this week that related to patent law, and specifically how to apply the fee shifting provisions applied for so-called "exceptional circumstances." This is one of the ways that frivolous litigating parties like patent trolls can be held in check, as paying the legal fees of the other party can be a deterrent when risking litigation against big pockets who have expensive legal counsel.
But how important will these decisions be in solving the patent troll problem?
The Supreme Court is giving far more discretion to the District Courts to determine what are exceptional circumstances meriting a loser pays all legal fees situation. This is not quite so far as some Congressional proposals have been, up to and including fee shifting to the loser in all patent cases, but it does make it more risky to force alleged infringers into court, especially when the case for infringement is shaky.
Another interesting part of the ruling is that the Supreme Court explicitly said an unreasonable manner in which a case is litigated can lead to fee shifting, which means patent trolls must play a little nicer or else run the risk of incurring the wrath of the court. Furthermore, the Supreme Court increased the standard fro review at the appeals court level is to look for abuse of discretion in shifting fees to a losing party, which is very different than the de novo standard that the Federal Circuit has been using (which allows for a fresh look and determination rather than giving deference to the District Court).
At the District Court, the proof now needed to show that the exceptional nature of the case is a preponderance of the evidence, not clear and convincing evidence. In other words, it is much easier for the District Court to shift fees to a losing patent litigation party and much harder for the court of appeals to overturn such fee shifting.
Although not explicitly targeted at patent trolls, these two decisions will likely affect some of the more egregious litigating parties that threaten lawsuits just to try and collect settlement paydays. Furthermore, this keeps legitimate inventors who cannot practice an invention but want to stop infringement or protect their own licensing rights from being harmed by overly harsh fee shifting rules. If you are litigating or threatening litigation and acting with poor tactics to disadvantage the opponent, that will eventually bite you when a court applies the fees from a winning party.
Bottom Line: The patent troll problem of companies buying up patents just to monetize them by threatening litigation is not going away with any one change, but making the courts more of a risky proposition for these entities should help in the long run. The patent troll may be slayed sometime soon!
-----------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, April 24, 2014
Legal Geek No. 10 - Do Apple and Google Conspire, After All?
This week, the subject is whether Apple, Google, and other tech giants have conspired to break antitrust laws.
https://archive.org/details/LegalGeekEp10
An initial settlement was announced of a class action lawsuit that had been pending against Apple, Google, Intel, and Adobe since 2011. This lawsuit alleged illegal deals to not hire away each other's employees in an effort to keep salaries down in Silicon Valley.
But does this settlement mean this collusion was actually happening?
As a preliminary matter, a class action lawsuit that extends over a multiple year period can lead to some very extensive discovery of documents and interviews or interrogatories as well. In this pre-trial litigation process, several "smoking gun" e-mails had already been uncovered and made public. Most notably, former CEO's Steve Jobs and Eric Schmidt corresponded about a Google recruiter being fired after soliciting an Apple employee to leave for Google.
In other words, the evidence that came to light does not look good. Rather than go to trial and more publicly have their companies and executives dragged through the litigation mud, these high tech giants are cutting the potential losses by paying some amount to the class of employees, but this payment is certainly far less than the $3 billion of damages sought.
For example, Lucasfilm, Pixar, and Intuit were also defendants in this lawsuit but they settled last year for a total of $20 million between them.
This class action followed a Department of Justice investigation in 2010, where all these companies had to agree to stop using backroom agreements to not compete with one another in the employee market. Thus, at least as recently as a few years ago, these companies were almost certainly acting as a cartel of sorts, at least for this limited purpose, and that restraint of trade is not legal under federal and state antitrust laws.
Bottom Line: Although these companies do love to battle in court when it comes to competing patents, the competition does apparently stop when it inures to the mutual benefit and profit margins of all involved. Hopefully the DOJ investigation and this class action payday will discourage such practices from happening again in the future.
https://archive.org/details/LegalGeekEp10
An initial settlement was announced of a class action lawsuit that had been pending against Apple, Google, Intel, and Adobe since 2011. This lawsuit alleged illegal deals to not hire away each other's employees in an effort to keep salaries down in Silicon Valley.
But does this settlement mean this collusion was actually happening?
As a preliminary matter, a class action lawsuit that extends over a multiple year period can lead to some very extensive discovery of documents and interviews or interrogatories as well. In this pre-trial litigation process, several "smoking gun" e-mails had already been uncovered and made public. Most notably, former CEO's Steve Jobs and Eric Schmidt corresponded about a Google recruiter being fired after soliciting an Apple employee to leave for Google.
In other words, the evidence that came to light does not look good. Rather than go to trial and more publicly have their companies and executives dragged through the litigation mud, these high tech giants are cutting the potential losses by paying some amount to the class of employees, but this payment is certainly far less than the $3 billion of damages sought.
For example, Lucasfilm, Pixar, and Intuit were also defendants in this lawsuit but they settled last year for a total of $20 million between them.
This class action followed a Department of Justice investigation in 2010, where all these companies had to agree to stop using backroom agreements to not compete with one another in the employee market. Thus, at least as recently as a few years ago, these companies were almost certainly acting as a cartel of sorts, at least for this limited purpose, and that restraint of trade is not legal under federal and state antitrust laws.
Bottom Line: Although these companies do love to battle in court when it comes to competing patents, the competition does apparently stop when it inures to the mutual benefit and profit margins of all involved. Hopefully the DOJ investigation and this class action payday will discourage such practices from happening again in the future.
Thursday, April 10, 2014
Legal Geek No. 9 - Will Apple Make Texting While Driving Legal Again?
Welcome back to Legal Geek! The topic this week is whether a new Apple patent application is the first step in making texting while driving legal again in most jurisdictions.
https://archive.org/details/LegalGeekEp09
One of the more interesting recent Apple-owned patent applications (U.S. Application No. 13/627,959 - Publication No. 2014/0085334) published this week at the US Patent Office. The invention is entitled Transparent Texting, the idea basically boiling down to using the rear-facing camera to stream through an image of what is in front of the user as a background to texting. Thus, someone walking and texting, or even hypothetically, driving and texting, can continue to see in front of them while focusing on the phone screen.
Leaving aside whether Apple will actually be able to secure a patent on this idea (and that is a highly gray area), this application could have far-reaching legal consequences if Apple executes this invention in new phone designs.
For example, if the problem with distracted driving is lost focus on the road, this application could solve that problem by keeping the focus on the message bubbles and the underlying background of the road. While some of the claims are to a mobile device like a phone, the method claims are broader and could encompass phones or displays that are an integral part of the car. Imagine if text bubbles could show up on your windshield as the windshield brings you a high definition look of what cameras outside the car see? Would it still be distracted driving?
Unfortunately, the only way to know is if local lawmakers allow people to try out such freedoms. At least until car safety technology moves beyond automatic emergency brakes to more automated vehicle controls, it is unlikely that this, or a Google glass, or anything of the ilk will make texting while driving legal.
Bottom line: if you need to text, just pull over. Someday technology will help us overcome human focus problems, but until then, patents like this are just mere convenience for pedestrians.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp09
One of the more interesting recent Apple-owned patent applications (U.S. Application No. 13/627,959 - Publication No. 2014/0085334) published this week at the US Patent Office. The invention is entitled Transparent Texting, the idea basically boiling down to using the rear-facing camera to stream through an image of what is in front of the user as a background to texting. Thus, someone walking and texting, or even hypothetically, driving and texting, can continue to see in front of them while focusing on the phone screen.
Leaving aside whether Apple will actually be able to secure a patent on this idea (and that is a highly gray area), this application could have far-reaching legal consequences if Apple executes this invention in new phone designs.
For example, if the problem with distracted driving is lost focus on the road, this application could solve that problem by keeping the focus on the message bubbles and the underlying background of the road. While some of the claims are to a mobile device like a phone, the method claims are broader and could encompass phones or displays that are an integral part of the car. Imagine if text bubbles could show up on your windshield as the windshield brings you a high definition look of what cameras outside the car see? Would it still be distracted driving?
Unfortunately, the only way to know is if local lawmakers allow people to try out such freedoms. At least until car safety technology moves beyond automatic emergency brakes to more automated vehicle controls, it is unlikely that this, or a Google glass, or anything of the ilk will make texting while driving legal.
Bottom line: if you need to text, just pull over. Someday technology will help us overcome human focus problems, but until then, patents like this are just mere convenience for pedestrians.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, March 27, 2014
Legal Geek No. 8: Can College Athletes Unionize?
Welcome back to Legal Geek! The topic this week is whether college athletes will succeed in bids to unionize, and the implications of such an action.
https://archive.org/details/LegalGeekEp08
Although the sports world and the nerd world typically share a small window of shared fandom, there are a select few of us who enjoy both worlds. And when a top-flight school like Northwestern rocks the college football world by having the football team petition to unionize as employees of the university, more than just sports fans should pay attention to this fascinating legal case.
When Northwestern college football players asked the National Labor Relations Board to recognize the team as a union, most legal pundits thought the petition would be denied. However, the smart kids and legal counsel won the day this week when the NLRB ruled that the football players are actually employees and can unionize to collectively bargain for benefits, including long-term worker's compensation coverage and perhaps even payment.
While Northwestern University will certainly appeal and fight this, the ruling appears to be sound in reasoning and will be different to overturn. This is yet another chink in the armor for college athletics, where department heads get rich while athletes struggle to make ends meet. A major conference football team brings in millions in revenue but sees only a miniscule percentage of that in scholarships and stipends. A shining example of this hypocrisy hit the news this week when Ohio State athletic director Gene Smith received an $18K bonus for an individual OSU wrestler winning a national championship. Needless to say, the wrestler will see none of that money.
Although public universities are held to state law standards unlike private schools like Northwestern, this NLRB ruling could be the first big step in ensuring that these athletes get better benefits and a bigger piece of the money pie they create. That's a better situation for all involved, as it may encourage players to stay in college athletics longer, thereby improving college sports and also the level of incoming professional athletes as well.
However, it will also dramatically change collegiate athletics, as the bigger sports like football and basketball may be subject to much different rules like a semi-pro league rather than other sports. Thanks to equality laws and regulations like Title IX, this could be a Pandora's box for the NCAA. To put it bluntly, this March Madness may just be the beginning.
Bottom line: College athletics is about to undergo a fascinating sea change, as players bargain for more benefits and perhaps even royalty rights from their likenesses in other ongoing legal battles. For sports geeks, this could fundamentally change the sports we love in ways hard to comprehend now.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp08
Although the sports world and the nerd world typically share a small window of shared fandom, there are a select few of us who enjoy both worlds. And when a top-flight school like Northwestern rocks the college football world by having the football team petition to unionize as employees of the university, more than just sports fans should pay attention to this fascinating legal case.
When Northwestern college football players asked the National Labor Relations Board to recognize the team as a union, most legal pundits thought the petition would be denied. However, the smart kids and legal counsel won the day this week when the NLRB ruled that the football players are actually employees and can unionize to collectively bargain for benefits, including long-term worker's compensation coverage and perhaps even payment.
While Northwestern University will certainly appeal and fight this, the ruling appears to be sound in reasoning and will be different to overturn. This is yet another chink in the armor for college athletics, where department heads get rich while athletes struggle to make ends meet. A major conference football team brings in millions in revenue but sees only a miniscule percentage of that in scholarships and stipends. A shining example of this hypocrisy hit the news this week when Ohio State athletic director Gene Smith received an $18K bonus for an individual OSU wrestler winning a national championship. Needless to say, the wrestler will see none of that money.
Although public universities are held to state law standards unlike private schools like Northwestern, this NLRB ruling could be the first big step in ensuring that these athletes get better benefits and a bigger piece of the money pie they create. That's a better situation for all involved, as it may encourage players to stay in college athletics longer, thereby improving college sports and also the level of incoming professional athletes as well.
However, it will also dramatically change collegiate athletics, as the bigger sports like football and basketball may be subject to much different rules like a semi-pro league rather than other sports. Thanks to equality laws and regulations like Title IX, this could be a Pandora's box for the NCAA. To put it bluntly, this March Madness may just be the beginning.
Bottom line: College athletics is about to undergo a fascinating sea change, as players bargain for more benefits and perhaps even royalty rights from their likenesses in other ongoing legal battles. For sports geeks, this could fundamentally change the sports we love in ways hard to comprehend now.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Monday, March 17, 2014
Legal Geek No. 7: Actor Copyrights and How Appeals Courts Work
Welcome back to Legal Geek! The topic this week updates a recent story on actor's copyrights to help answer a listener question on how appeals work.
https://archive.org/details/LegalGeekEp07
A listener Robert has asked for a brief overview of how appeals work, likely relative to the ongoing court battle over the Innocence of Muslims movie trailer discussed on a previous segment.
As a reminder, Judge Kozinski and a three-judge panel at the Ninth Circuit Court of Appeals ruled that actors have some sort of limited copyright in their performance in a film. This extension of traditional copyright allowed the court to order Youtube and Google to take down the controversial movie trailer.
Since the ruling, the U.S. Copyright Office has denied registration to the very copyright that the Ninth Circuit panel based this opinion upon. As a result, Google immediately petitioned for a rehearing of the takedown order in front of a larger panel of Ninth Circuit judges called an en banc hearing. That request has been denied, but Google still has options.
Federal lawsuits generally begin in District Courts, which are 94 local/regional courts across the country with at least one in each state. Appeals from District Court decisions go to one of the 12 regional Circuit Court of Appeals, and the Ninth Circuit covers many of the westernmost states, for example. Three judge panels are typically used, but these decisions can be overturned by the en banc rehearings mentioned previously or by the Supreme Court.
Thus, to keep it simple, Google and Youtube will continue to fight this legal battle in the Ninth Circuit until all options are exhausted, and then if still unsuccessful, a petition for a Supreme Court hearing will happen. The Supreme Court typically only gets involved in important questions about Constitutional law, and the proper scope of copyright would be a good issue in view of the different opinions of the executive branch at the Copyright Office and the judicial branch at the Ninth Circuit.
Bottom line: The news is bad for Google this week, and Innocence of Muslims will get taken down based on a questionably-reasoned decision. But this critical copyright fight is not over until the Supreme Court says it is over.
Thanks again to Robert for the question.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp07
A listener Robert has asked for a brief overview of how appeals work, likely relative to the ongoing court battle over the Innocence of Muslims movie trailer discussed on a previous segment.
As a reminder, Judge Kozinski and a three-judge panel at the Ninth Circuit Court of Appeals ruled that actors have some sort of limited copyright in their performance in a film. This extension of traditional copyright allowed the court to order Youtube and Google to take down the controversial movie trailer.
Since the ruling, the U.S. Copyright Office has denied registration to the very copyright that the Ninth Circuit panel based this opinion upon. As a result, Google immediately petitioned for a rehearing of the takedown order in front of a larger panel of Ninth Circuit judges called an en banc hearing. That request has been denied, but Google still has options.
Federal lawsuits generally begin in District Courts, which are 94 local/regional courts across the country with at least one in each state. Appeals from District Court decisions go to one of the 12 regional Circuit Court of Appeals, and the Ninth Circuit covers many of the westernmost states, for example. Three judge panels are typically used, but these decisions can be overturned by the en banc rehearings mentioned previously or by the Supreme Court.
Thus, to keep it simple, Google and Youtube will continue to fight this legal battle in the Ninth Circuit until all options are exhausted, and then if still unsuccessful, a petition for a Supreme Court hearing will happen. The Supreme Court typically only gets involved in important questions about Constitutional law, and the proper scope of copyright would be a good issue in view of the different opinions of the executive branch at the Copyright Office and the judicial branch at the Ninth Circuit.
Bottom line: The news is bad for Google this week, and Innocence of Muslims will get taken down based on a questionably-reasoned decision. But this critical copyright fight is not over until the Supreme Court says it is over.
Thanks again to Robert for the question.
------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Monday, March 10, 2014
Legal Geek No. 6 - Has The Stone Finally Turned on the NSA?
Welcome back to Legal Geek! The topic this week is whether privacy rights are finally winning the day against the NSA's record keeping on all U.S. citizens.
https://archive.org/details/LegalGeekEp06
Depending on your views of privacy laws and your political leanings, the downstream effects of the horrible 9/11 attacks on America are a more protected country, or a more oppressive Big Brother society. When the USA Patriot Act went into effect shortly after those attacks, the floodgates opened for the NSA to tap into bulk phone and e-mail communications of all citizens to look for outliers that could indicate potential terrorism.
However, this began to highlight the sheer amount of tracking and information the government and companies were beginning to accrue on regular U.S. citizens. Although such tracking can lead to nifty innovations such as the anticipatory shipping methods of Amazon from a previous episode, it can also make you feel like your rights to be a private citizen are impinged.
With both the dramatically different Bush and Obama administrations extending the rights of the government to keep wiretapping communications, the NSA keeps on collecting information. But simply collecting information is not enough apparently, as the NSA recently petitioned to hold onto records beyond the five year period that was authorized by Congress in the Patriot Act.
The NSA argued that the destruction of five-year old records and metadata needed to be stopped because there are six lawsuits ongoing against the government where those records may be subject to discovery requests. But these lawsuits are ironically from citizens suing to try and stop or limit the NSA's powers due to privacy rights, so it is unclear that these plaintiffs would ever want to encourage those records to be held for longer periods of time.
Thankfully, the US Foreign Intelligence Surveillance Court deemed this extension would be contrary to the law and policy concerns. First, the five-year destruction policy is by Congressional statute, which trumps the common law court-made rules of avoiding evidence spoilation during civil trials. Second, the value of the information as foreign terrorism intelligence is basically gone after five years, so there is no policy reason to hang onto these records longer. Thus, the NSA has been turned back from a further extension of the much-maligned wiretapping and record-gathering rights. While that will not end the story, it does prove there is a limit at which our privacy rights trump the NSA.
Bottom line: Although last week's decision by the Surveillance Court is a minor victory for privacy, there is a long way to go for advocates of true Internet privacy. It will be interesting to watch how Snowden and other Internet privacy advocates continue to try and turn the tide against the NSA.
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp06
Depending on your views of privacy laws and your political leanings, the downstream effects of the horrible 9/11 attacks on America are a more protected country, or a more oppressive Big Brother society. When the USA Patriot Act went into effect shortly after those attacks, the floodgates opened for the NSA to tap into bulk phone and e-mail communications of all citizens to look for outliers that could indicate potential terrorism.
However, this began to highlight the sheer amount of tracking and information the government and companies were beginning to accrue on regular U.S. citizens. Although such tracking can lead to nifty innovations such as the anticipatory shipping methods of Amazon from a previous episode, it can also make you feel like your rights to be a private citizen are impinged.
With both the dramatically different Bush and Obama administrations extending the rights of the government to keep wiretapping communications, the NSA keeps on collecting information. But simply collecting information is not enough apparently, as the NSA recently petitioned to hold onto records beyond the five year period that was authorized by Congress in the Patriot Act.
The NSA argued that the destruction of five-year old records and metadata needed to be stopped because there are six lawsuits ongoing against the government where those records may be subject to discovery requests. But these lawsuits are ironically from citizens suing to try and stop or limit the NSA's powers due to privacy rights, so it is unclear that these plaintiffs would ever want to encourage those records to be held for longer periods of time.
Thankfully, the US Foreign Intelligence Surveillance Court deemed this extension would be contrary to the law and policy concerns. First, the five-year destruction policy is by Congressional statute, which trumps the common law court-made rules of avoiding evidence spoilation during civil trials. Second, the value of the information as foreign terrorism intelligence is basically gone after five years, so there is no policy reason to hang onto these records longer. Thus, the NSA has been turned back from a further extension of the much-maligned wiretapping and record-gathering rights. While that will not end the story, it does prove there is a limit at which our privacy rights trump the NSA.
Bottom line: Although last week's decision by the Surveillance Court is a minor victory for privacy, there is a long way to go for advocates of true Internet privacy. It will be interesting to watch how Snowden and other Internet privacy advocates continue to try and turn the tide against the NSA.
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Wednesday, February 26, 2014
Legal Geek No. 5 - Do Actors Really Have Copyrights in Movie Performances?
https://archive.org/details/LegalGeekEp05
When the 14-minute Youtube film "Innocence of Muslims" insulted the religion and caused a firestorm in the extremist parts of Islam society a few months ago, many people and even the White House called for the hateful film to be pulled from public channels. However, one of the most interesting pleas came from Cindy Garcia, who appears in the film.
Garcia has claimed in lawsuits that the filmmaker committed fraud on her because she was not apprised of what type of film her performance would be used in, including having no knowledge it had anything to do with muslims at all. One of her more creative bases for suing the filmmaker was that she has a copyright in her performance that has been infringed by the spreading of the film without her authorization on Youtube.
Outlandish legal claims are nothing new, but the Nine Circuit Court of Appeals bought this claim hook, line, and sinker in a ruling earlier this week. Straight-shooting Judge Kozinski wrote the opinion, and he deemed that Garcia provided just enough of her own creative spark to own a limited copyright in her individual creative acting performance, not the scenes at large she appears in or the film as a whole.
But Kozinski has to contort copyright law to get there. Garcia's contribution to the film is basically a performance of the underlying creative work, which is the screenplay or the film itself. Such a performance of someone else's creative work is not typically deemed copyrightable by itself, yet that is what Judge Kozinski concludes. He also must stretch the definition of harm done to Garcia by the infringement and the limits of the implied license given to the filmmaker, while also avoiding the application of the Work Made For Hire doctrine to reach this conclusion. It's clear when Kozinski calls this situation extraordinarily rare that he is making the ruling work to fit the result he thinks should happen. However, a true maxim from law school rings true in this decision: bad facts make for bad law.
Sure, the filmmaker of Innocence of Muslims is not acting in Garcia's best interests or even nicely, but this ruling in Hollywood's backyard could cause future angry actors to be able to force their edits on producers and directors of movies when they don't agree with the final cut. This could hold up or even pull movies from theaters, which hurts the industry as well as the public.
Expect Youtube's owner Google and the MPAA to team up to contest this ruling, and those strange bedfellows will hopefully turn this around at a full Ninth Circuit ruling or in the Supreme Court. If not, controversial movies like Borat and Bruno will potentially not be possible anymore, as angry prior participants may use IP rights to hold other creatives hostage.
Bottom line: Copyright law does not and should not work this way, as filmmakers should and do have the rights in a movie. Let's hope that holds up in court.
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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Wednesday, February 19, 2014
Legal Geek No. 4 - Does Comcast/Time Warner Merger Have a Chance?
Welcome back to Legal Geek! The topic this week is whether the Comcast and Time Warner proposed merger stands a chance of surviving legal challenges.
https://archive.org/details/LegalGeekEp04
Time Warner has been seeking a merger for quite some time. This is notable because Time Warner is one of only four television providers with more than 11 million subscribers, ranking only behind Comcast's 22 million, DirectTV's 20 million, and Dish Network's 14 million. Every other major competitor is more regional, covering only 3 million to 5 million subscribers.
After weeks of negotiating with owners of a smaller regional provider Charter, Time Warner shocked the business world by agreeing to merge with the biggest cable company Comcast. The proposed merger includes about $45 billion of stock transfer, if it survives. But can it hold up to antitrust scrutiny and legal challenges?
Even after voluntarily dumping about 3 million customers, Comcast would be left with 30 million subscribers, a 30% market share, and potential coverage of 70% of households in America. Those numbers are important because the Federal Trade Commission and Department of Justice tend to heavily scrutinize any merger that ends up with a single entity owning 30% or more of a market share. For example, the AT&T and T-Mobile merger of 2011 that was blocked by the DOJ would have given AT&T 43% of the mobile phone market.
Under Federal law, The Sherman Act discourages monopolies, and The Clayton Act prohibits mergers that "may substantially lessen competition, or tend to create a monopoly." Comcast dropping some subscribers to try and fall back under the magic 30% number will not save the deal, as that is a just rough guideline. Much like the doomed T-Mobile AT&T merger, this deal makes Comcast nearly as large as the entire satellite TV market, and larger than the next 10 biggest cable companies combined. That's a textbook example of what is considered a monopoly.
If the deal were just about television, it might survive thanks to the nationwide satellite providers, but the cable companies also provide internet to most of their subscribers. Which means Comcast would hold the keys to pressuring "cable-cutting" alternatives like Netflix and Amazon, which are for the most part completely reliant on the internet. Net neutrality will only protect these competitors until 2018, and that does not mean Comcast wouldn't call some shots behind the scenes before that goes away.
Thus, the FTC and the DOJ will likely have no choice but to oppose this merger in court. Even some of Time Warner's shareholders have filed a class action lawsuit to try and block the deal. Given that most consumers are already annoyed with the generally poor customer service and always-raising prices of both companies, this deal looks to be dead on arrival.
Bottom line: Although Time Warner's shareholders' class action against the merger is likely doomed to fail, the DOJ will almost certainly invoke the Clayton Act and block this deal to protect healthy market competition. But the bad service from both cable providers will likely continue, despite the irony.
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp04
Time Warner has been seeking a merger for quite some time. This is notable because Time Warner is one of only four television providers with more than 11 million subscribers, ranking only behind Comcast's 22 million, DirectTV's 20 million, and Dish Network's 14 million. Every other major competitor is more regional, covering only 3 million to 5 million subscribers.
After weeks of negotiating with owners of a smaller regional provider Charter, Time Warner shocked the business world by agreeing to merge with the biggest cable company Comcast. The proposed merger includes about $45 billion of stock transfer, if it survives. But can it hold up to antitrust scrutiny and legal challenges?
Even after voluntarily dumping about 3 million customers, Comcast would be left with 30 million subscribers, a 30% market share, and potential coverage of 70% of households in America. Those numbers are important because the Federal Trade Commission and Department of Justice tend to heavily scrutinize any merger that ends up with a single entity owning 30% or more of a market share. For example, the AT&T and T-Mobile merger of 2011 that was blocked by the DOJ would have given AT&T 43% of the mobile phone market.
Under Federal law, The Sherman Act discourages monopolies, and The Clayton Act prohibits mergers that "may substantially lessen competition, or tend to create a monopoly." Comcast dropping some subscribers to try and fall back under the magic 30% number will not save the deal, as that is a just rough guideline. Much like the doomed T-Mobile AT&T merger, this deal makes Comcast nearly as large as the entire satellite TV market, and larger than the next 10 biggest cable companies combined. That's a textbook example of what is considered a monopoly.
If the deal were just about television, it might survive thanks to the nationwide satellite providers, but the cable companies also provide internet to most of their subscribers. Which means Comcast would hold the keys to pressuring "cable-cutting" alternatives like Netflix and Amazon, which are for the most part completely reliant on the internet. Net neutrality will only protect these competitors until 2018, and that does not mean Comcast wouldn't call some shots behind the scenes before that goes away.
Thus, the FTC and the DOJ will likely have no choice but to oppose this merger in court. Even some of Time Warner's shareholders have filed a class action lawsuit to try and block the deal. Given that most consumers are already annoyed with the generally poor customer service and always-raising prices of both companies, this deal looks to be dead on arrival.
Bottom line: Although Time Warner's shareholders' class action against the merger is likely doomed to fail, the DOJ will almost certainly invoke the Clayton Act and block this deal to protect healthy market competition. But the bad service from both cable providers will likely continue, despite the irony.
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
Thursday, February 13, 2014
Legal Geek No. 3 - Will Amazon Dominate with Anticipatory Shipping?
Welcome back to Legal Geek! The topic this week is whether Amazon's latest innovation in patenting a method for anticipatory shipping will dominate the retail market.
https://archive.org/details/LegalGeekEp03
Although Amazon's latest patent (US8615473) on a method and system for anticipatory shipping was issued right before Christmas, news outlets have really picked up on this in the last two weeks as the so-called latest innovation from the wildly successful online retailer. The patent claims a process of shipping products from distribution centers to more local hubs in accordance with business variables that are used to determine where those products are likely to be ordered by consumers.
Looking deeper into the description of the patent, these business variables can include everything from standard demand forecasting such as historical shipments and patterns to more sophisticated forecasting based on web page views and duration on pages, how long a cursor remains over product images, and shopping cart and wish list activity. These latter types of forecasting would be innovative, but it is unlikely that they will be used thanks to significant privacy concerns and the high accuracy of standard demand forecasting methods.
Thus, the patent really only covers a process that is highly similar to what larger retailers do while shipping bulk from overseas manufacturers to a first distribution center in the USA. Indeed, Amazon secured an earlier parent patent on a similar method of enterprise anticipatory shipping in December 2011 (US8086546), and the patent application is 10 years old!
So this is not exactly the freshest innovation from Amazon. But the concept of doing this on a consumer level could be the next logical step in dominating the retail competition. Anticipatory shipping, drone delivery, and employing the USPS on Sundays are the types of moves that keeps Amazon ahead of brick and mortal retailers as well as online competitors.
Bottom line: anticipatory shipping is not all that innovative and Amazon's patents on it will be nearly impossible to enforce against competitors, but the potential is there for incredible added innovation and efficiency. Now you'll have to excuse me because I'm almost out of toliet paper and I hear the drone dropping some off on my front porch. Convenient!
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
https://archive.org/details/LegalGeekEp03
Although Amazon's latest patent (US8615473) on a method and system for anticipatory shipping was issued right before Christmas, news outlets have really picked up on this in the last two weeks as the so-called latest innovation from the wildly successful online retailer. The patent claims a process of shipping products from distribution centers to more local hubs in accordance with business variables that are used to determine where those products are likely to be ordered by consumers.
Looking deeper into the description of the patent, these business variables can include everything from standard demand forecasting such as historical shipments and patterns to more sophisticated forecasting based on web page views and duration on pages, how long a cursor remains over product images, and shopping cart and wish list activity. These latter types of forecasting would be innovative, but it is unlikely that they will be used thanks to significant privacy concerns and the high accuracy of standard demand forecasting methods.
Thus, the patent really only covers a process that is highly similar to what larger retailers do while shipping bulk from overseas manufacturers to a first distribution center in the USA. Indeed, Amazon secured an earlier parent patent on a similar method of enterprise anticipatory shipping in December 2011 (US8086546), and the patent application is 10 years old!
So this is not exactly the freshest innovation from Amazon. But the concept of doing this on a consumer level could be the next logical step in dominating the retail competition. Anticipatory shipping, drone delivery, and employing the USPS on Sundays are the types of moves that keeps Amazon ahead of brick and mortal retailers as well as online competitors.
Bottom line: anticipatory shipping is not all that innovative and Amazon's patents on it will be nearly impossible to enforce against competitors, but the potential is there for incredible added innovation and efficiency. Now you'll have to excuse me because I'm almost out of toliet paper and I hear the drone dropping some off on my front porch. Convenient!
------
Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.
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