Welcome back to Legal Geek. This week, we look at how one of the hottest holiday gifts in the US may soon be subject to much more regulation than currently, that gift being drones and other model aircraft.
https://archive.org/details/LegalGeekEp58
Drones, also called unmanned aerial vehicles, have become more common as evidenced by some popular commercials making fun of the trend. Approximately one million UAVs will be sold this holiday season, including a lot of drones to go with your typical motorized model aircraft and helicopters that have been around for many years.
That hot trend has raised some eyebrows at the Federal Aviation Administration, so much so that more regulation appears to be on the way. After all, there's no Constitutional right to fly such devices, but added regulation always comes with some pushback on government agencies like the FAA. Still, the process has already begun with a detailed proposal delivered from the Rulemaking Committee of the FAA at the end of last month.
The big debate leading up to the proposal was whether the threshold for requiring formal registration of unmanned aircraft would be based on weight or performance of the craft. Weight was the choice, specifically any aircraft weighing more than 250 grams or about 0.5 pounds being subject to registration. This will force all but the smallest toys to have the owner registered with the FAA, should this regulation be enacted in the future.
Interestingly under the proposal, only the owner must be registered, not necessarily the operator. So the information actually collected will be limited, but it's still better than nothing as far as the FAA is concerned. The FAA currently does registration business in paper with carbon copies, so before this regulation goes into effect, expect some significant upgrades with electronic or software-app type registration becoming available.
The Free Inhabitants from our last full segment certainly won't like another government registration requirement, but the FAA set that low weight limit based on what would jeopardize safety in a crash from 500 feet in the air. So while it may feel like government stepping in on people's privacy and not really collecting enough information to stop terrorism risks, this is the first step in protecting safety of everyone. And that's probably the right time for government to function in this manner.
The Bottom Line is, when an industry or hobby gets this big, it is difficult to escape government regulation. Just ask the Daily Fantasy Sports websites.
Until next time, enjoy your drones and model aircraft hanging in your stockings and under your trees. At least your BB-8 toys won't need registered yet!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Sunday, December 20, 2015
Thursday, November 26, 2015
Legal Geek No. 57: Happy Thanksgiving and Upcoming SCOTUS Cases to Watch
Welcome back to Legal Geek. This week, I send Happy Thanksgiving wishes to the Current Geek crew and look ahead to the Supreme Court cases we should be watching in the 2016 term.
Here's what we have to look forward to from the Supreme Court, as well as any others which end up involving intellectual property and/or geek culture:
Fisher v. University of Texas - race factors and affirmative action in university admissions is back in front of the court for the first time in about a decade.
Fredericks vs. California Teachers Association - First Amendment challenge to forcing compulsory union dues on governmental agency and public sector workers.
Evenwel v. Abbott - A case over redrawing legislative district lines and "gerrymandering," as the question presented is whether the One Person, One Vote principle require states to use voter populations instead of total populations when redrawing legislative districts.
Whole Woman's Health v. Cole - a challenge to Texas laws which serve only to shut down abortion clinics.
Little Sisters of the Poor v. Sebelius - Affordable Care Act (Obamacare) follow up on whether religious organizations can be forced by the mandates of the healthcare law to provide contraceptives and sterilization items via their benefits administrator.
Several death penalty cases, including Hurst v. Florida
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As always, send segment suggestions or comments to me on Twitter @BuckeyeFitzy or in the comments below.
Wednesday, October 28, 2015
Legal Geek No. 56: Do Free Inhabitants have any legitimacy?
Welcome back to Legal Geek. This week, we look into the legitimacy of those who claim to be Free Inhabitants in the US in an effort to avoid government actions, based on a suggestion from listeners James and Robert.
https://archive.org/details/LegalGeekEp56
A couple of videos have recently gone viral regarding so-called Free Inhabitants, which are people living in the U.S. who believe they are not required to follow U.S. laws because they do not identify as American or state citizens. Tracking these videos back to the hub of the small movement at freeinhabitant.info, you will see quite the show of legal theories and advice for the prospective Free Inhabitant. But do these legal theories have any merit?
Let's start with the viral video of the young lady refusing to leave her car following an arrest by a police officer. During her arguments with the cop, she cites the Articles of Confederation. Which would be great to rely on if it hadn't been superseded by the U.S. Constitution back in the 1700's. Immediately on its face, her claims, which would be better presented in a court of law rather than to a police officer, simply have no merit in today's America, or even that America of the 1800's.
Perhaps she's not the best representative of this cause, however. Going back to the Free Inhabitant website, there are all kinds of tips and lists for giving notice to employers and the U.S. government that you decline government benefits of any kind so you do not have to pay taxes, how to avoid having a driver's license or license plates, and how to avoid admitting use of a social security number or any such benefits. But there's little behind this advice beyond cites to old English common law and again, the Articles of Confederation.
It's also a kind of variation of another similar movement against following the laws called the Sovereign Citizen movement, similar to a Freeman of the Land movement in Canada and Britain. These movements have also pointed to the 14th Amendment to the Constitution, which conferred benefits of U.S. citizenship on former slaves in exchange for various freedoms, as implicitly creating two types of citizens: U.S. citizens subject to the federal government and state citizens subject to common law only.
But while it's a great ideal to try and remove consent to federal jurisdiction by not using zip codes, voter registrations, birth certificates, marriage licenses, car registrations, etc., the reality is that the federal government inherently provides other benefits like protection and safety of the borders for everyone within the U.S., which cannot just be disclaimed. If you want to claim sovereignty, you need to really go buy an island and secede from whatever country it was in originally. Then you will really be on your own and not just a protestor of laws that are disliked.
These movements have fought in court and there are over 100 decisions that have denied the legitimacy of these claims. If there were any merit to Free Inhabitants, some smart trial attorney likely would have figured out the right legal theory by now.
The Bottom Line: thinking outside the box is not a bad thing, but if you actually want to be a sovereign citizen or free of government, you need to leave or secede from a country like the USA.
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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/LegalGeekEp56
A couple of videos have recently gone viral regarding so-called Free Inhabitants, which are people living in the U.S. who believe they are not required to follow U.S. laws because they do not identify as American or state citizens. Tracking these videos back to the hub of the small movement at freeinhabitant.info, you will see quite the show of legal theories and advice for the prospective Free Inhabitant. But do these legal theories have any merit?
Let's start with the viral video of the young lady refusing to leave her car following an arrest by a police officer. During her arguments with the cop, she cites the Articles of Confederation. Which would be great to rely on if it hadn't been superseded by the U.S. Constitution back in the 1700's. Immediately on its face, her claims, which would be better presented in a court of law rather than to a police officer, simply have no merit in today's America, or even that America of the 1800's.
Perhaps she's not the best representative of this cause, however. Going back to the Free Inhabitant website, there are all kinds of tips and lists for giving notice to employers and the U.S. government that you decline government benefits of any kind so you do not have to pay taxes, how to avoid having a driver's license or license plates, and how to avoid admitting use of a social security number or any such benefits. But there's little behind this advice beyond cites to old English common law and again, the Articles of Confederation.
It's also a kind of variation of another similar movement against following the laws called the Sovereign Citizen movement, similar to a Freeman of the Land movement in Canada and Britain. These movements have also pointed to the 14th Amendment to the Constitution, which conferred benefits of U.S. citizenship on former slaves in exchange for various freedoms, as implicitly creating two types of citizens: U.S. citizens subject to the federal government and state citizens subject to common law only.
But while it's a great ideal to try and remove consent to federal jurisdiction by not using zip codes, voter registrations, birth certificates, marriage licenses, car registrations, etc., the reality is that the federal government inherently provides other benefits like protection and safety of the borders for everyone within the U.S., which cannot just be disclaimed. If you want to claim sovereignty, you need to really go buy an island and secede from whatever country it was in originally. Then you will really be on your own and not just a protestor of laws that are disliked.
These movements have fought in court and there are over 100 decisions that have denied the legitimacy of these claims. If there were any merit to Free Inhabitants, some smart trial attorney likely would have figured out the right legal theory by now.
The Bottom Line: thinking outside the box is not a bad thing, but if you actually want to be a sovereign citizen or free of government, you need to leave or secede from a country like the USA.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 22, 2015
Legal Geek No. 55: Google Books Survives with Fair Use at Appeals Court
Welcome back to Legal Geek. This week, we return to the expanding field of copyright fair use with a review of the Second Circuit Court of Appeals decision protecting Google Books from copyright infringement liability.
https://archive.org/details/LegalGeekEp55
Late last week, a three-judge panel in a New York federal court of appeals dismissed a lawsuit brought by an authors' guild against Google, claiming that the copying and digital storage of copyrighted books and other works in the Google Books program was copyright infringement. Just like the lower courts, the Appeals Court determined that Google Books is fair use under copyright law.
The current era of copyright law in the courts is one of reducing rights, as fair use continues to be more and more expansively interpreted. This is possible because fair use is a four factor balancing test which is a very gray area and always fact based. Judges can sometimes bend the facts to fit the factors in the way necessary to end up at a desired result, and some powerful lobbies like the Electronic Frontier Foundation are working to keep the ball rolling towards bigger fair use and less useable copyright enforcement rights.
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.
That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.
So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.
Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.
But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.
Until next time, keep your fair use factors handy, and your Google tools also!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 15, 2015
Legal Geek No. 54: DC Defends the Superman Trademarks with Vigor!
Welcome back to Legal Geek. This week, we take a look at how DC Comics is continuing to defend the long-standing trademarks in Krypton and Kryptonite against the forces of evil, AKA, trademark dilution.
https://archive.org/details/LegalGeekEp54
Superman started as a comic book in 1938 but further trademarks were developed in 1943 for Krypton and Kryptonite, which of course is the fictional material capable of weakening the Man of Steel. Krypton is a real element on the periodic chart as well as Superman's home planet, but that has not stopped DC Comics from continuing to actively use the mark and establish continued rights of the trademark (via secondary meaning to consumers, if nothing else).
As we've covered before on this segment, part of properly maintaining trademark rights is stopping others from cutting in on the mark and diluting it, such as by confusing consumers about the source of goods and services. The battle likely never ends with marks like Krypton, which have scientific as well as fictional roots. Just this month, DC Comics has actively engaged in legal disputes with two potential competitors using Krypton or Kryptonite marks.
In October 2014, Ravensmoon Productions filed a trademark application to register the Kryptonite Vapor mark and logo that the company uses with electronic cigarette refill cartridges. This product has been sold since 2013 using the mark without much fuss from DC. But many times, the application for a trademark is precisely what causes an original trademark holder to more vigorously defend their own rights, and that's what happened here.
DC Comics recently filed an opposition in the US Trademark Office against the allowance of Ravensmoon's application, and it looks Ravensmoon has no interest in a fight with the Man of Steel. They have announced on their website that the product formerly known as Kryptonite Vapor is now sold as Ravens Moon Vapor. So fear not, citizens of Metropolis, your teenagers won't be confused about whether their favorite vaping cartridges are officially licensed by DC Comics anymore.
While Ravensmoon may be a smaller company not willing to take on the likes of DC Comics, a much bigger company is also now at odds with this Superman IP in a similar fashion. Just this week, DC Comics filed an extension of time to oppose Chevrolet's own trademark applications for Krypton and Camaro Krypton in a class that covers automobiles. This trademark application has led to some rampant speculation about what project Chevrolet has in mind for these trademarks, including some assumptions that it has something to do with DC Comics (which clearly we now know is not the case).
Unlike some other DC superhero like Batman and his bat mobile, there's not an immediate obvious tie between Superman and automobiles. However, the mark is 70 years old and is so strong that consumers very well may assume at this point that Chevy's use of Krypton has something to do with DC Comics. That's the open question that will need to be decided by the Trademark Office or a court if DC Comics goes forth with an opposition or a trademark infringement lawsuit.
It will be fascinating to see what this project is, if it ever sees the light of day, and whether these two mega companies are willing to make a deal over this famous Superman IP. Keep an eye on these giants and the potential rare trademark battle between relative equals as far as legal backing and funding go.
Bottom Line: we can learn a lot from watching creative companies like DC Comics defend trademarks like the Superman IP, and one of this life lessons is to avoid filing trademarks that compete like Ravensmoon and Chevrolet has unless you are ready to fight a tough legal battle.
Until next time, don't go leaping buildings in a single bound without requesting a license from DC Comics.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp54
Superman started as a comic book in 1938 but further trademarks were developed in 1943 for Krypton and Kryptonite, which of course is the fictional material capable of weakening the Man of Steel. Krypton is a real element on the periodic chart as well as Superman's home planet, but that has not stopped DC Comics from continuing to actively use the mark and establish continued rights of the trademark (via secondary meaning to consumers, if nothing else).
As we've covered before on this segment, part of properly maintaining trademark rights is stopping others from cutting in on the mark and diluting it, such as by confusing consumers about the source of goods and services. The battle likely never ends with marks like Krypton, which have scientific as well as fictional roots. Just this month, DC Comics has actively engaged in legal disputes with two potential competitors using Krypton or Kryptonite marks.
In October 2014, Ravensmoon Productions filed a trademark application to register the Kryptonite Vapor mark and logo that the company uses with electronic cigarette refill cartridges. This product has been sold since 2013 using the mark without much fuss from DC. But many times, the application for a trademark is precisely what causes an original trademark holder to more vigorously defend their own rights, and that's what happened here.
DC Comics recently filed an opposition in the US Trademark Office against the allowance of Ravensmoon's application, and it looks Ravensmoon has no interest in a fight with the Man of Steel. They have announced on their website that the product formerly known as Kryptonite Vapor is now sold as Ravens Moon Vapor. So fear not, citizens of Metropolis, your teenagers won't be confused about whether their favorite vaping cartridges are officially licensed by DC Comics anymore.
While Ravensmoon may be a smaller company not willing to take on the likes of DC Comics, a much bigger company is also now at odds with this Superman IP in a similar fashion. Just this week, DC Comics filed an extension of time to oppose Chevrolet's own trademark applications for Krypton and Camaro Krypton in a class that covers automobiles. This trademark application has led to some rampant speculation about what project Chevrolet has in mind for these trademarks, including some assumptions that it has something to do with DC Comics (which clearly we now know is not the case).
Unlike some other DC superhero like Batman and his bat mobile, there's not an immediate obvious tie between Superman and automobiles. However, the mark is 70 years old and is so strong that consumers very well may assume at this point that Chevy's use of Krypton has something to do with DC Comics. That's the open question that will need to be decided by the Trademark Office or a court if DC Comics goes forth with an opposition or a trademark infringement lawsuit.
It will be fascinating to see what this project is, if it ever sees the light of day, and whether these two mega companies are willing to make a deal over this famous Superman IP. Keep an eye on these giants and the potential rare trademark battle between relative equals as far as legal backing and funding go.
Bottom Line: we can learn a lot from watching creative companies like DC Comics defend trademarks like the Superman IP, and one of this life lessons is to avoid filing trademarks that compete like Ravensmoon and Chevrolet has unless you are ready to fight a tough legal battle.
Until next time, don't go leaping buildings in a single bound without requesting a license from DC Comics.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 1, 2015
Legal Geek No. 53: Work Smartphones and Self-Incrimination
Welcome back to Legal Geek. This week, we review an interesting decision from a Federal Court in Pennsylvania about personal smartphone passwords and whether they are protected under the 5th Amendment.
https://archive.org/details/LegalGeekEp53
The 5th Amendment of the U.S. Constitution provides a number of rights, including the right of a defendant to not be compelled in a criminal case to self-incriminate oneself. Some of the interesting exceptions and limits to this rule were invoked this week in a case involving the Security and Exchange Commission and two defendants being prosecuted for possible insider trading.
More specifically, two former employees of Capital One are being investigated by the SEC for allegedly making over $2.8 million dollars trading on advance company earnings information gained as a part of their former jobs as data analysts for the bank. What led to the ruling this week was the fact that Capital One issues company-owned smartphones for employees, and the SEC wants to access the information on the former employees' phones to scour for incriminating evidence to prove the insider trading occurred.
But the fact that turned this ruling is this: Capital One has employees pick their own private passwords for the phones, and it is company policy to not have employees give this password to the company for security reasons. So even though these employees returned the phones to Capital One when they were fired a few months ago, Capital One cannot access the information stored on these smartphones because the former employees are the only ones who know the password.
The SEC argued under a rule called the collective entity doctrine that these were corporate records possessed by former employees, which are generally not protected by the 5th Amendment. But the court ruled that the confidential passwords chosen and maintained by the former employees could not be deemed corporate records since only the former employees know that information. Indeed, the fact that Capital One asks employees to not keep records of these personal passwords is directly contrary to assuming this is something owned by the corporation.
The SEC then tried to argue a different exception to the 5th Amendment applied, the so called foregone conclusion doctrine. That doctrine causes information to not be shielded from 5th Amendment protection when the government already knows of its existence and location. However, the court disagreed with this argument because the SEC is really on a fishing expedition, and the government agency doesn't know absolutely for certain that incriminating information is on those phones.
So the company and the government both do not have any rights to access data protected by personal passwords kept secret by the former employees and current defendants. The 5th Amendment protects the former Capital One employees from potential self-incrimination based on whatever was stored on those company phones.
The Bottom Line is, despite the 5th Amendment winning the day with these facts, one would be wise to limit all types of personal information you put on company property, whether the computer or smartphone has private personal passwords or not. It can only lead to tough situations if a firing ever occurs.
Until next time, stay smart with personal privacy and hope you never have to rely on the criminal protections offered in the Constitution.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp53
The 5th Amendment of the U.S. Constitution provides a number of rights, including the right of a defendant to not be compelled in a criminal case to self-incriminate oneself. Some of the interesting exceptions and limits to this rule were invoked this week in a case involving the Security and Exchange Commission and two defendants being prosecuted for possible insider trading.
More specifically, two former employees of Capital One are being investigated by the SEC for allegedly making over $2.8 million dollars trading on advance company earnings information gained as a part of their former jobs as data analysts for the bank. What led to the ruling this week was the fact that Capital One issues company-owned smartphones for employees, and the SEC wants to access the information on the former employees' phones to scour for incriminating evidence to prove the insider trading occurred.
But the fact that turned this ruling is this: Capital One has employees pick their own private passwords for the phones, and it is company policy to not have employees give this password to the company for security reasons. So even though these employees returned the phones to Capital One when they were fired a few months ago, Capital One cannot access the information stored on these smartphones because the former employees are the only ones who know the password.
The SEC argued under a rule called the collective entity doctrine that these were corporate records possessed by former employees, which are generally not protected by the 5th Amendment. But the court ruled that the confidential passwords chosen and maintained by the former employees could not be deemed corporate records since only the former employees know that information. Indeed, the fact that Capital One asks employees to not keep records of these personal passwords is directly contrary to assuming this is something owned by the corporation.
The SEC then tried to argue a different exception to the 5th Amendment applied, the so called foregone conclusion doctrine. That doctrine causes information to not be shielded from 5th Amendment protection when the government already knows of its existence and location. However, the court disagreed with this argument because the SEC is really on a fishing expedition, and the government agency doesn't know absolutely for certain that incriminating information is on those phones.
So the company and the government both do not have any rights to access data protected by personal passwords kept secret by the former employees and current defendants. The 5th Amendment protects the former Capital One employees from potential self-incrimination based on whatever was stored on those company phones.
The Bottom Line is, despite the 5th Amendment winning the day with these facts, one would be wise to limit all types of personal information you put on company property, whether the computer or smartphone has private personal passwords or not. It can only lead to tough situations if a firing ever occurs.
Until next time, stay smart with personal privacy and hope you never have to rely on the criminal protections offered in the Constitution.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 25, 2015
Legal Geek No. 52: Happy Birthday in Public Domain, and Copyright Terms
Welcome back to Legal Geek. This week, we take a look at the biggest piece of music to hit the public domain of copyright perhaps in history, which happened thanks to a court decision earlier this week. That song, of course, is...Happy Birthday!
https://archive.org/details/LegalGeekEp52
On Tuesday, a California federal court ruled that Warner Music Group no longer holds a valid copyright in this iconic Happy Birthday song. This will end a licensing revenue stream from filmmakers and other users of about $2 million a year, thanks to it costing about $1,500 to acquire a single license from Warner for this property. The decision was based on new fact findings that the company which Warner acquired these rights from in 1988 had only ever gotten a copyright in the melody, not the words, and the melody is too old to still be covered by current copyright terms.
Thus, one of the biggest licensed properties in music is now in the public domain, subject to Warner's appeal of course. But other than the appeal, there are still a couple of interesting questions left.
First, this decision will likely cause further scrutiny in chain of title documents that explain how IP rights like copyrights were sold and transferred all the way from the original owner to the current owner. With copyright rights lasting up to and over a century now, these documents can be difficult to maintain or acquire, leading to decisions like the one against Warner. The documents always win in the legal field.
Second, this decision makes the lyrics of Happy Birthday into an orphan work, which is a term commonly applied to works that are not technically in the public domain but nobody can figure out who actually owns the rights. As copyright terms have extended more and more thanks to Congress, we now have copyright terms of life of author plus 70 years for individuals, and 95 or 120 years for corporations. That makes it very hard to find rightful owners of copyrights that do exist on very old works, a problem that grows more and more with copyright term extensions. One wonders how this iconic property joining the ranks of Orphan Works will affect the debate the next time extension of copyright terms come up, which will likely be soon thanks to the corporate interests of Disney and similar organizations.
The Bottom Line is, we can all finally sing Happy Birthday on YouTube without risking a nasty license demand, and that's a good thing in the face of the crazy long copyright term in the U.S.
Until next time, don't feel too bad for Warner, as this week they also got another federal court ruling that the Batmobile is a protectable character under copyright. Of course, it will likely be hard to make $2 million a year licensing the Batmobile...but holy copyright law, Batman!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp52
On Tuesday, a California federal court ruled that Warner Music Group no longer holds a valid copyright in this iconic Happy Birthday song. This will end a licensing revenue stream from filmmakers and other users of about $2 million a year, thanks to it costing about $1,500 to acquire a single license from Warner for this property. The decision was based on new fact findings that the company which Warner acquired these rights from in 1988 had only ever gotten a copyright in the melody, not the words, and the melody is too old to still be covered by current copyright terms.
Thus, one of the biggest licensed properties in music is now in the public domain, subject to Warner's appeal of course. But other than the appeal, there are still a couple of interesting questions left.
First, this decision will likely cause further scrutiny in chain of title documents that explain how IP rights like copyrights were sold and transferred all the way from the original owner to the current owner. With copyright rights lasting up to and over a century now, these documents can be difficult to maintain or acquire, leading to decisions like the one against Warner. The documents always win in the legal field.
Second, this decision makes the lyrics of Happy Birthday into an orphan work, which is a term commonly applied to works that are not technically in the public domain but nobody can figure out who actually owns the rights. As copyright terms have extended more and more thanks to Congress, we now have copyright terms of life of author plus 70 years for individuals, and 95 or 120 years for corporations. That makes it very hard to find rightful owners of copyrights that do exist on very old works, a problem that grows more and more with copyright term extensions. One wonders how this iconic property joining the ranks of Orphan Works will affect the debate the next time extension of copyright terms come up, which will likely be soon thanks to the corporate interests of Disney and similar organizations.
The Bottom Line is, we can all finally sing Happy Birthday on YouTube without risking a nasty license demand, and that's a good thing in the face of the crazy long copyright term in the U.S.
Until next time, don't feel too bad for Warner, as this week they also got another federal court ruling that the Batmobile is a protectable character under copyright. Of course, it will likely be hard to make $2 million a year licensing the Batmobile...but holy copyright law, Batman!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, September 17, 2015
Legal Geek No. 51: Dancing Baby Wins Under DMCA (Sort Of)
Welcome back to Legal Geek. This week, we review the important copyright decision rendered this week by the 9th Circuit Court of Appeals in Lenz v. Universal Music, also referred to as the Dancing Baby DMCA Takedown case.
https://archive.org/details/LegalGeekEp51
Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.
The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.
The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.
In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.
So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.
Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.
Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.
The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.
Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp51
Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.
The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.
The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.
In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.
So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.
Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.
Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.
The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.
Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, August 6, 2015
Legal Geek No. 50: SCOTUS Gay Marriage in Obergefell: One for the History Books
Welcome back to Legal Geek. This week, we review the second of the two highlight decisions of the most recent Supreme Court term, which is Obergefell v. Hodges, all about gay marriage. I will also explain why I think this decision, while deemed as groundbreaking as Roe v. Wade and Brown v. Board of Education, is actually less important today than the healthcare decision we covered last month.
https://archive.org/details/LegalGeekEp50
Coming back from Nerdtacular, it strikes me that decisions like Obergefell is built on similar principles as our Frogpants, tadpool, diamond club etc. community. Regardless of your politics and beliefs, there's no denying that the decision to legalize marriage for all persons regardess of sexual orientation is a move for equal treatment of more people, and when we follow the Golden Rule and treat people equally, good communities tend to result.
The decision was based on the Equal Protection clause and due process under the 14th Amendment. The due process clause stops the government from depriving citizens of life, liberty, or property without due process of law. Many previous Supreme Court decisions have deemed "liberty" under the due process clause to include the fundamental rights to marry and have private sexual relations.
This includes decisions protecting interracial marriage in Lawrence v. Texas, protecting the right of prisoners to marry in Turner v. Safely, and protecting the rights of women as equals in marriage in multiple 1980's decisions. Furthermore, Obergefell was a logical extension of the decision 12 years ago making sodomy laws unconstitutional for infringing the liberty of gay people, and the decision 2 years ago to overturn the Defense of Marriage Act, which was just enacted to limit marriage to one man and one woman in 1995!
Furthermore, even Justice Kennedy, who wrote the majority opinion, noted that public opinion was already moving in the same direction as this decision. Thus, this was just the next logical step based on court precedent as well as public opinion.
The right to marry has long been established as a fundamental right, which means there must be a compelling government interest to restrict this liberty. The states argued that the compelling government interest was keeping bonds between biological parents and their children, but this was gutted during oral argument by noting that not all marriages are intended to result in children, and adoptions are just as likely for homosexual couples as for heterosexual couples. There just was not enough argument for leaving this decision to the states instead of applying the Equal Protection clause.
So gay marriage is now legal in all states. The reason I believe this is not as big a deal as the healthcare decision is because healthcare would have gone away completely had that decision gone the other way and perhaps have never come back, while public opinion was eventually going to result in most if not all states reaching this conclusion about gay marriage. Furthermore, this is one small step in the large scale of obtaining equal rights for all parts of the LGBT community, as evidenced by the just-beginning public awareness and discussion of transgender people, so there's still a long way to go here.
The Bottom Line: for at least this court watcher, the decision to uphold Obamacare is a bigger deal than legalizing gay marriage, but both cannot be denied as highly memorable decisions that definitely craft the future of this country, and that is fun to watch, regardless of if you agree with the decisions or the logic.
Until next time, let's continue to strive for and make communities that treat everyone equally and with compassion, as that will make the world a more positive place to be in.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp50
Coming back from Nerdtacular, it strikes me that decisions like Obergefell is built on similar principles as our Frogpants, tadpool, diamond club etc. community. Regardless of your politics and beliefs, there's no denying that the decision to legalize marriage for all persons regardess of sexual orientation is a move for equal treatment of more people, and when we follow the Golden Rule and treat people equally, good communities tend to result.
The decision was based on the Equal Protection clause and due process under the 14th Amendment. The due process clause stops the government from depriving citizens of life, liberty, or property without due process of law. Many previous Supreme Court decisions have deemed "liberty" under the due process clause to include the fundamental rights to marry and have private sexual relations.
This includes decisions protecting interracial marriage in Lawrence v. Texas, protecting the right of prisoners to marry in Turner v. Safely, and protecting the rights of women as equals in marriage in multiple 1980's decisions. Furthermore, Obergefell was a logical extension of the decision 12 years ago making sodomy laws unconstitutional for infringing the liberty of gay people, and the decision 2 years ago to overturn the Defense of Marriage Act, which was just enacted to limit marriage to one man and one woman in 1995!
Furthermore, even Justice Kennedy, who wrote the majority opinion, noted that public opinion was already moving in the same direction as this decision. Thus, this was just the next logical step based on court precedent as well as public opinion.
The right to marry has long been established as a fundamental right, which means there must be a compelling government interest to restrict this liberty. The states argued that the compelling government interest was keeping bonds between biological parents and their children, but this was gutted during oral argument by noting that not all marriages are intended to result in children, and adoptions are just as likely for homosexual couples as for heterosexual couples. There just was not enough argument for leaving this decision to the states instead of applying the Equal Protection clause.
So gay marriage is now legal in all states. The reason I believe this is not as big a deal as the healthcare decision is because healthcare would have gone away completely had that decision gone the other way and perhaps have never come back, while public opinion was eventually going to result in most if not all states reaching this conclusion about gay marriage. Furthermore, this is one small step in the large scale of obtaining equal rights for all parts of the LGBT community, as evidenced by the just-beginning public awareness and discussion of transgender people, so there's still a long way to go here.
The Bottom Line: for at least this court watcher, the decision to uphold Obamacare is a bigger deal than legalizing gay marriage, but both cannot be denied as highly memorable decisions that definitely craft the future of this country, and that is fun to watch, regardless of if you agree with the decisions or the logic.
Until next time, let's continue to strive for and make communities that treat everyone equally and with compassion, as that will make the world a more positive place to be in.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, July 16, 2015
Legal Geek No. 49: Amazon Search Functionality vs. Trademark Law
Welcome back to Legal Geek. This week, we take a look at a recent Ninth Circuit Court of Appeals Decision that may change the way online retailers do business, all in the name of a stronger trademark law.
https://archive.org/details/LegalGeekEp49
The case was Multi Time Machine vs Amazon, and the decision was handed down earlier this month. Multi Time Machine makes high end military style watches under certain brand names and trademarks like MTM Special Ops. Because MTM closely controls its own distribution, these watches are not available at places like Amazon.
However, when consumers type in MTM Special Ops Watch or similar searches into Amazon's search system, the internal search engine returns a list of other multi-function watches from MTM's competitors, but no statement is made that Amazon does not carry MTM watches. In other words, Amazon tries to be helpful for consumers looking for a type of goods. The only difference from other online retailers is that Amazon does not explicitly respond first with a statement that MTM watches are not available at Amazon.
When MTM sued Amazon for trademark infringement, citing consumer confusion in this process, the Federal District Court ruled in favor of Amazon. But the appeals court reversed this decision, with a 2-1 majority revitalizing a doctrine called initial interest confusion. This is a trademark doctrine that was thought dead in most jurisdictions, but the Ninth Circuit defined it as follows: "initial interest confusion occurs not at the time of purchase, but earlier in the shopping process if the customer confusion creates initial interest in a competitor's product."
If that definition sounds ridiculous, it's because it is. That would cover many other clearly legitimate and long-accepted retailing practices like selling house branded products with similar labeling adjacent to name brand products. The dissenting judge put it best when he responded that "the search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page, as the search results page is unambiguous."
So apparently the fluffy doctrine of initial interest consumer confusion still lives, which means this zombie doctrine could come back to bite unsuspecting litigants. What's most disappointing is that this case is better formulated as a "bait and switch" false advertising claim if anything, but the Ninth Circuit validated the trademark claim by making the law bend to the facts.
On the bright side, the opinion is limited to the Ninth Circuit along the western coast of the U.S. and is also likely limited on its face to internal search functionality of online retailers like Amazon, which makes it easy to design around. Plus, this was just a panel decision sending the case back to a jury, which could still determine that there is no actual consumer confusion here. Worst case scenario, this doctrine could still be gutted by a full en banc panel of the entire Ninth Circuit or even taken to the Supreme Court, if necessary.
Bottom Line: Trademark law serves the interests of business owners and consumers, but it has reasonable limits. When it doesn't, as in this case, it harms businesses trying to help consumers as well as consumers in the long run.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp49
The case was Multi Time Machine vs Amazon, and the decision was handed down earlier this month. Multi Time Machine makes high end military style watches under certain brand names and trademarks like MTM Special Ops. Because MTM closely controls its own distribution, these watches are not available at places like Amazon.
However, when consumers type in MTM Special Ops Watch or similar searches into Amazon's search system, the internal search engine returns a list of other multi-function watches from MTM's competitors, but no statement is made that Amazon does not carry MTM watches. In other words, Amazon tries to be helpful for consumers looking for a type of goods. The only difference from other online retailers is that Amazon does not explicitly respond first with a statement that MTM watches are not available at Amazon.
When MTM sued Amazon for trademark infringement, citing consumer confusion in this process, the Federal District Court ruled in favor of Amazon. But the appeals court reversed this decision, with a 2-1 majority revitalizing a doctrine called initial interest confusion. This is a trademark doctrine that was thought dead in most jurisdictions, but the Ninth Circuit defined it as follows: "initial interest confusion occurs not at the time of purchase, but earlier in the shopping process if the customer confusion creates initial interest in a competitor's product."
If that definition sounds ridiculous, it's because it is. That would cover many other clearly legitimate and long-accepted retailing practices like selling house branded products with similar labeling adjacent to name brand products. The dissenting judge put it best when he responded that "the search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page, as the search results page is unambiguous."
So apparently the fluffy doctrine of initial interest consumer confusion still lives, which means this zombie doctrine could come back to bite unsuspecting litigants. What's most disappointing is that this case is better formulated as a "bait and switch" false advertising claim if anything, but the Ninth Circuit validated the trademark claim by making the law bend to the facts.
On the bright side, the opinion is limited to the Ninth Circuit along the western coast of the U.S. and is also likely limited on its face to internal search functionality of online retailers like Amazon, which makes it easy to design around. Plus, this was just a panel decision sending the case back to a jury, which could still determine that there is no actual consumer confusion here. Worst case scenario, this doctrine could still be gutted by a full en banc panel of the entire Ninth Circuit or even taken to the Supreme Court, if necessary.
Bottom Line: Trademark law serves the interests of business owners and consumers, but it has reasonable limits. When it doesn't, as in this case, it harms businesses trying to help consumers as well as consumers in the long run.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, June 25, 2015
Legal Geek No. 48: SCOTUS Spiderman Decision Update and Texas's Tweeter Laureate
Welcome back to Legal Geek. This week, we update the result of when Spiderman and patent royalties went to the Supreme Court, and also look at an interesting title conferred on one Texas judge this month.
https://archive.org/details/LegalGeekEp48
Back in December, this segment described the Supreme Court case from this term focusing on the patent law doctrine of banning any royalty payments past the 20 year expiration of a patent as compared to private contractual rights. Specifically, a Spiderman web shooter toy creator was trying to enforce royalties against a third party Marvel when those royalties were not explicitly tied to the patent Marvel bought from him and the contract had no set termination date.
A couple weeks ago, the Supreme Court upheld the so called Brulotte Doctrine, maintaining the rigid prohibition of royalty payments beyond 20 years in the patent context. Considering this doctrine is 50 years old and the contract at issue was related to a patent transfer, perhaps we should not be surprised. However, I had guessed incorrectly in December that this case was taken up by the Court to trim away a bit of the overreaching of patent law into private contractual agreements, so the result is a bit of a surprise at least to me.
Of course, for the many comic nerds among us, the important thing is Marvel wins. Web shooter toys for everyone!
Also, the majority opinion written by Justice Kagan sneaks in a few Spiderman and superhero quotes, which just shows at least some justices have a sense of humor. This includes a statement that "Patents endow their holders with certain superpowers, but only for a limited time." She also notes that with 50 year old precedents, the authority to overrule such well-established precedents is an authority that should be exercised sparingly because...yes indeed, "with great power there must also come great responsibility." Well done, Justice Kagan.
Finally, a quick news item from early June was worth mentioning as well if you missed it. A Texas Supreme Court judge who is very active on twitter has been deemed the Official Texas Tweeter Laureate by the Texas House of Representatives. His mastery of social media is likely key to winning re-election in a state like Texas that elects judges, and it is refreshing to see a judge not getting into trouble for tweets as is usually the case when these two topics mix. Although the title is meaningless, let's hope for more Tweeter Laureates among the judiciary so we can all have a better understanding of the men and women behind the robes.
Bottom Line: Although other cases will always receive more public attention than small patent law decisions, it is fun to see that even the Supreme Court can take itself a bit lightly when dealing with fun topics like Spiderman toys.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp48
Back in December, this segment described the Supreme Court case from this term focusing on the patent law doctrine of banning any royalty payments past the 20 year expiration of a patent as compared to private contractual rights. Specifically, a Spiderman web shooter toy creator was trying to enforce royalties against a third party Marvel when those royalties were not explicitly tied to the patent Marvel bought from him and the contract had no set termination date.
A couple weeks ago, the Supreme Court upheld the so called Brulotte Doctrine, maintaining the rigid prohibition of royalty payments beyond 20 years in the patent context. Considering this doctrine is 50 years old and the contract at issue was related to a patent transfer, perhaps we should not be surprised. However, I had guessed incorrectly in December that this case was taken up by the Court to trim away a bit of the overreaching of patent law into private contractual agreements, so the result is a bit of a surprise at least to me.
Of course, for the many comic nerds among us, the important thing is Marvel wins. Web shooter toys for everyone!
Also, the majority opinion written by Justice Kagan sneaks in a few Spiderman and superhero quotes, which just shows at least some justices have a sense of humor. This includes a statement that "Patents endow their holders with certain superpowers, but only for a limited time." She also notes that with 50 year old precedents, the authority to overrule such well-established precedents is an authority that should be exercised sparingly because...yes indeed, "with great power there must also come great responsibility." Well done, Justice Kagan.
Finally, a quick news item from early June was worth mentioning as well if you missed it. A Texas Supreme Court judge who is very active on twitter has been deemed the Official Texas Tweeter Laureate by the Texas House of Representatives. His mastery of social media is likely key to winning re-election in a state like Texas that elects judges, and it is refreshing to see a judge not getting into trouble for tweets as is usually the case when these two topics mix. Although the title is meaningless, let's hope for more Tweeter Laureates among the judiciary so we can all have a better understanding of the men and women behind the robes.
Bottom Line: Although other cases will always receive more public attention than small patent law decisions, it is fun to see that even the Supreme Court can take itself a bit lightly when dealing with fun topics like Spiderman toys.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Legal Geek No. 47: Obamacare Lives (Again)
Welcome back to Legal Geek. This week, we review one of the two highlight decisions of this Supreme Court term, the healthcare decision in King vs. Burwell issued earlier this week, including a dissent that is one for the ages.
https://archive.org/details/LegalGeekEp47
For the second time, a challenge to the Affordable Care Act, also known as Obamacare, has reached the Supreme Court. Also for the second time, the administration earned a big victory against challengers to the healthcare law.
No matter what side of the healthcare debate you fall on, two things are notable about this decision:
First, a 6-3 majority of the Court did not stop as expected at providing deference to an IRS rulemaking decision to allow for federal tax subsidies for insurance purchasers buying on federal and state insurance exchanges; instead, the majority deemed that this is an issue of deep economic and political significance that should not be left to mere IRS rulemaking, which could be overturned by another administration later.
In other words, the Court decided that the correct reading of the legislative intent of the law must absolutely mandate that subsidies be made available to consumers in all 50 states, regardless of whether a state sets up an insurance exchange or relies solely on federal exchanges. Even though this holding is inconsistent with the way the law actually reads, the decision has bolstered this potential weak point in the healthcare law and has ensured that the critical financial subsidy backing portion of the law works for everyone.
This is yet another case where the more liberal mindset of legislative intent duked it out with the more conservative mindset of strict interpretation of laws as written. This time, the legislative intent won, but Congress and the Obama administration should be happy because the law was not as carefully drafted as it could have been to avoid such weak points, thereby leaving it open to the type of ideological debate common to many Supreme Court decisions.
The second notable part of this decision is the scathing dissent from Justice Scalia, who is a staunch supporter of strict constructionist law interpretation. One can immediately understand why he's not amused that a law that reads one way is being interpreted to mean something wholly different by the majority.
His dissent is worth a read for entertainment value, but here are some highlights. He says words no longer have meaning if an exchange that is not established by a State is interpreted to be covered by "established by the state." He characterizes the majority opinion as interpretive jiggery-pokery and PURE APPLESAUCE at different points. Yes, applesauce. He then caps the dissent by observing that the Court rewriting the law to fix it so that tax credits apply everywhere should make people start calling the law SCOTUScare instead of Obamacare.
Bottom Line: With two challenges now defeated, Obamacare appears to remain the signature achievement of the Obama presidency, and one that will not go away anytime soon.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp47
For the second time, a challenge to the Affordable Care Act, also known as Obamacare, has reached the Supreme Court. Also for the second time, the administration earned a big victory against challengers to the healthcare law.
No matter what side of the healthcare debate you fall on, two things are notable about this decision:
First, a 6-3 majority of the Court did not stop as expected at providing deference to an IRS rulemaking decision to allow for federal tax subsidies for insurance purchasers buying on federal and state insurance exchanges; instead, the majority deemed that this is an issue of deep economic and political significance that should not be left to mere IRS rulemaking, which could be overturned by another administration later.
In other words, the Court decided that the correct reading of the legislative intent of the law must absolutely mandate that subsidies be made available to consumers in all 50 states, regardless of whether a state sets up an insurance exchange or relies solely on federal exchanges. Even though this holding is inconsistent with the way the law actually reads, the decision has bolstered this potential weak point in the healthcare law and has ensured that the critical financial subsidy backing portion of the law works for everyone.
This is yet another case where the more liberal mindset of legislative intent duked it out with the more conservative mindset of strict interpretation of laws as written. This time, the legislative intent won, but Congress and the Obama administration should be happy because the law was not as carefully drafted as it could have been to avoid such weak points, thereby leaving it open to the type of ideological debate common to many Supreme Court decisions.
The second notable part of this decision is the scathing dissent from Justice Scalia, who is a staunch supporter of strict constructionist law interpretation. One can immediately understand why he's not amused that a law that reads one way is being interpreted to mean something wholly different by the majority.
His dissent is worth a read for entertainment value, but here are some highlights. He says words no longer have meaning if an exchange that is not established by a State is interpreted to be covered by "established by the state." He characterizes the majority opinion as interpretive jiggery-pokery and PURE APPLESAUCE at different points. Yes, applesauce. He then caps the dissent by observing that the Court rewriting the law to fix it so that tax credits apply everywhere should make people start calling the law SCOTUScare instead of Obamacare.
Bottom Line: With two challenges now defeated, Obamacare appears to remain the signature achievement of the Obama presidency, and one that will not go away anytime soon.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Tuesday, June 9, 2015
Legal Geek No. 46: Will Internet/Use Tax fall afoul of the Dormant Commerce Clause?
Welcome back to Legal Geek. This week, we answer a listener question from James regarding a recent Supreme Court case on interstate commerce and fairness in taxation.
James asked about why the Supreme Court deemed that double taxation on personal income is not OK under the dormant commerce clause in a recent decision, while internet use tax is acceptable. The case James refers to is Comptroller of Maryland vs. Wynne.
To briefly summarize, the Wynnes work in a different state and live in Maryland. Maryland, like most states, collect income tax from residents of Maryland who work there or in other states, and also from non-residents who work in Maryland. But unlike most states, Maryland did not provide a tax credit or reduction for income taxes paid by residents who work in other states and have the typical income tax collected by those other states. This means residents of Maryland working outside the state ended up paying income tax twice, to Maryland as well to as the state of employment. This was challenged as unconstitutional.
The Supreme Court ruled in a split 5-4 decision that Maryland's lack of a tax credit to avoid such double taxation was unconstitutional under the dormant commerce clause. The dormant commerce clause is an interpretation of the interstate commerce clause and allows courts to bar states from passing legislation that improperly burdens or discriminates against interstate commerce. Essentially, the majority in the Court deems that this state tax policy is an improper burden on interstate commerce because it hampers the ability of Maryland citizens to work in other states.
Despite the close decision, we will assume that the controlling legal theory is now that unbalanced income tax laws are improper. Which brings us to James's question: why is the similar unbalance in state use tax laws permissible?
Use taxes are assessed upon tangible personal property purchased by a resident of the assessing state for use, storage or consumption in that state, regardless of where the purchase took place, including online. This is a way for states to make up for lost sales and sales taxes within their state, especially in the modern era of heavy internet commerce.
On its surface, this type of tax policy looks unfavorable to residents in a similar way as the Maryland income tax law was for the Wynnes. Indeed, the recent Supreme Court decision could potentially apply to use taxes as well. But one key difference from double income taxes is that use taxes applied to out-of-state purchases is arguably not discriminatory against interstate commerce, but instead, evenhanded by making all sales to residents within a state subject to the same level of tax.
In addition, in rare circumstances where a sales tax is collected by an out of state business shipping to a customer in another state, the customer's state generally allows a tax credit to reduce use taxes by this sales tax paid to the other state. Thus, there does not appear to be a true double taxation problem in the sales and use tax context. Quite frankly, that could be the type of factual situation needed to prompt Congressional or judiciary action under the commerce clause.
Bottom Line: although the dormant commerce clause may someday be used to help better regulate sales and use taxes, for now, the generally evenhanded nature of these taxes when taken in combination probably protects them from constitutional scrutiny, so long as states don't make the mistake of disallowing tax credits for the rare sales tax collected on out-of-state transactions. In all other respects, any inequality is simply the same as states which charge different income tax rates, which has not been deemed a violation of the dormant commerce clause either, for what it's worth.
Thanks James for your thought-provoking question!
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Friday, June 5, 2015
Legal Geek No. 45: Scalia's Patent Trolls and Listener Q About Contracts
Welcome back to Legal Geek. This week, we answer a listener question form Nic and also take a quick look at an interesting development in the war against patent trolls.
https://archive.org/details/LegalGeekEp45
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, May 28, 2015
Legal Geek No. 44: The booming era of Domain Name Registrations
Welcome back to Legal Geek. This week, we review the ever-expanding world of generic top level domains and how the new system may be a true drain on the economy and trademark rights.
https://archive.org/details/LegalGeekEp44
As recently as a few years ago, protecting a company name or a brand on the internet was not that difficult, as there were only a handful of possible gTLD's that could be used, like .com, .org, and country-specific codes like .co.uk. But ICANN, the organization who controls these things, started opening the opportunity to have many other words or suffixes behind the dot in website addresses, and that has had a profound effect on the way companies protect brands online.
As a threshold question, one wonders if this whole opening of new gTLD's is nothing more than a money scam. For companies who want to buy up the rights to their name in a new gTLD, like the .sucks domain that is about to go live, they have to pay $2500 in an initial sunrise period or else the domain name could be bought later on the open market for around $10. That price disparity, and the ever growing number of different gTLD's, makes it economically infeasible for companies to lock down every potential domain name, especially when also trying to cover common misspellings and alternative brands or names.
When .xxx was opened as one of the first new gTLD's, a high number of companies paid this extra money to prevent potential porn knockoffs using their brands. But with the seemingly similar .sucks domain this year, many companies have just given up trying to control everything. But that raises an interesting question under some national trademark laws like the U.S.
One of the obligations for trademark owners in the U.S. is not only to keep using the mark in commerce, but also to police others using the mark. If sufficient care is not taken to object to potential infringers over time, the trademark owner is assumed to have approved this type of competing use. If that happens enough, the trademark may become diluted or tarnished enough to not really reliably identify the source of goods or services anymore. And that's where a trademark gets invalidated.
So is the continued expansion of possible gTLD's actually providing any value anymore, or is it just creating a cybersquatting haven that becomes a monetary drain and nuisance for companies who need to protect and enforce their most valuable trademarks and brands? It seems the scales are tilting towards the latter, unfortunately.
The Bottom Line: just like with all new areas or expansions related to IP law, new gTLD's likely need some form of regulation to avoid this becoming a Napster-level cesspool filled with nothing but brand trolls, shameless profiteers, and increased unnecessary litigation. Figuring out how to do this logically is a whole different story, but let's hope it gets figured out soon!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp44
As recently as a few years ago, protecting a company name or a brand on the internet was not that difficult, as there were only a handful of possible gTLD's that could be used, like .com, .org, and country-specific codes like .co.uk. But ICANN, the organization who controls these things, started opening the opportunity to have many other words or suffixes behind the dot in website addresses, and that has had a profound effect on the way companies protect brands online.
As a threshold question, one wonders if this whole opening of new gTLD's is nothing more than a money scam. For companies who want to buy up the rights to their name in a new gTLD, like the .sucks domain that is about to go live, they have to pay $2500 in an initial sunrise period or else the domain name could be bought later on the open market for around $10. That price disparity, and the ever growing number of different gTLD's, makes it economically infeasible for companies to lock down every potential domain name, especially when also trying to cover common misspellings and alternative brands or names.
When .xxx was opened as one of the first new gTLD's, a high number of companies paid this extra money to prevent potential porn knockoffs using their brands. But with the seemingly similar .sucks domain this year, many companies have just given up trying to control everything. But that raises an interesting question under some national trademark laws like the U.S.
One of the obligations for trademark owners in the U.S. is not only to keep using the mark in commerce, but also to police others using the mark. If sufficient care is not taken to object to potential infringers over time, the trademark owner is assumed to have approved this type of competing use. If that happens enough, the trademark may become diluted or tarnished enough to not really reliably identify the source of goods or services anymore. And that's where a trademark gets invalidated.
So is the continued expansion of possible gTLD's actually providing any value anymore, or is it just creating a cybersquatting haven that becomes a monetary drain and nuisance for companies who need to protect and enforce their most valuable trademarks and brands? It seems the scales are tilting towards the latter, unfortunately.
The Bottom Line: just like with all new areas or expansions related to IP law, new gTLD's likely need some form of regulation to avoid this becoming a Napster-level cesspool filled with nothing but brand trolls, shameless profiteers, and increased unnecessary litigation. Figuring out how to do this logically is a whole different story, but let's hope it gets figured out soon!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, May 7, 2015
Legal Geek No. 43: Privacy Law Roundup on Airline Personalized Pricing and TV Voice Recognition
Welcome back to Legal Geek. This week, we take a look at two interesting stories in privacy law that developed in April which you should be aware of as a consumer, as we continue to move forward in 2015.
First, we begin with a story about your new TV and how it may be spying on you!
Smart TV manufacturers have typically set default settings for the new voice recognition equipment to be enabled, and whatever is recorded by the voice recognition equipment is by default sent to the manufacturer for quality control and improvement purposes. The manufacturers want this voice control to work out-of-the-box for the convenience of the consumer, but these defaults raise privacy concerns because it means all your conversations in front of the TV could be monitored carefully by employees of the manufacturer.
And that could be considered illegal wiretapping, at least if the consumer is not aware of this functionality. To address the issue, California lawmakers this week proposed a bill that would prevent these defaults from being used without explicit consumer agreement. That would allow consumers to opt-in to help the manufacturer make the product better, while removing any concerns of Big Brother watching in on your private conversations without consent.
This is likely a good move, although it will hamper the QA efficiency of the manufacturers. Still, the more important rights likely win out here.
Second, did you know airlines could be personalizing prices for you to determine if they can bilk you for more money?
It's true. Since 2014, airlines have been allowed by the Department of Transportation to collect data on consumers and then tailor prices based on predicting how much the airline thinks you will be willing to pay. The factors include things like your zip code, marital status, and travel habits.
Once again, a lawmaker is standing up to this type of potential anti-consumer behavior. This time, it is Senator Al Franken, who is demanding for at least more transparency in the process used by airlines, if not the end of personalized pricing altogether. Word to the wise: book your flights while browsing anonymously for the fairest fares.
Bottom line - The battle between consumer rights of privacy and business needs will continue to evolve in this legal hotbed, and the wise geek among us will stay aware of these things to avoid falling into potential privacy traps.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 30, 2015
Legal Geek No. 42: Google Becomes Biggest Patent Troll of All?
Welcome back to Legal Geek. This week, we take a look at the latest stab for ending the patent troll problem, and whether Google is really just becoming the biggest of the patent trolls instead of solving the problem.
https://archive.org/details/LegalGeekEp42
In a week where the Supreme Court argues the issue of gay marriage and more race protests break out in major cities, of course Google goes and makes the most interesting patent story in months to steal this segment. Google announced the Patent Purchase Promotion this week, in which Google will offer to buy any patented intellectual property that an inventor or patent owner wants to sell.
Here's how it will work. From May 8 to May 22, interested sellers can submit what patent rights they seek to sell and an asking price into Google, and Google will decide after reviewing the offers what they will purchase by June 26. There is currently no clear marketplace for selling patent rights, so what Google is offering here is relatively innovative, while also being potentially scary.
Google is marketing this program as a way to slow the patent troll problem. Congress has struggled to find the right way to stop trollish patent enforcement activities, while also protecting the rights of legitimate inventors and investors who may need to defend rights in court even when they are not able to practice their inventions on a large scale. Google thinks that this program will allow patent sellers to sell to them and hopefully keep those same patent rights out of the hands of assertion entities, which are the trolls who buy patent rights just to threaten lawsuits later to extort settlements from many others.
Will that goal actually be achieved? Or is Google really becoming poised to be the biggest of the patent trolls? That's the open question.
Google will, as a publicly traded company, always be concerned about the bottom line. This patent purchase program will need to generate revenue or saved costs in some manner commensurate with the high expense Google will undertake to procure all these patent rights. That money could come from cheap licenses to many licensors, a de facto creative commons program for patents in the best case. Google may also treat some of these acquisitions as a way to avoid lost costs in paying its lawyers to defend lawsuits later if someone else buys rights relevant to their own products.
However, Google could just end up selling the rights later or taking others to court, much like the same patent assertion entities everyone complains about. Google is no stranger to patent lawsuits, having fought numerous battles over patents in the smartphone industry to protect the Android OS.
Bottom line - No single step will solve the patent troll problem for good, but Google is taking an interesting stab with this program. We can only hope Google is investing this money to make a better patent system rather than merely for strategic, or even worse, trolling reasons.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp42
In a week where the Supreme Court argues the issue of gay marriage and more race protests break out in major cities, of course Google goes and makes the most interesting patent story in months to steal this segment. Google announced the Patent Purchase Promotion this week, in which Google will offer to buy any patented intellectual property that an inventor or patent owner wants to sell.
Here's how it will work. From May 8 to May 22, interested sellers can submit what patent rights they seek to sell and an asking price into Google, and Google will decide after reviewing the offers what they will purchase by June 26. There is currently no clear marketplace for selling patent rights, so what Google is offering here is relatively innovative, while also being potentially scary.
Google is marketing this program as a way to slow the patent troll problem. Congress has struggled to find the right way to stop trollish patent enforcement activities, while also protecting the rights of legitimate inventors and investors who may need to defend rights in court even when they are not able to practice their inventions on a large scale. Google thinks that this program will allow patent sellers to sell to them and hopefully keep those same patent rights out of the hands of assertion entities, which are the trolls who buy patent rights just to threaten lawsuits later to extort settlements from many others.
Will that goal actually be achieved? Or is Google really becoming poised to be the biggest of the patent trolls? That's the open question.
Google will, as a publicly traded company, always be concerned about the bottom line. This patent purchase program will need to generate revenue or saved costs in some manner commensurate with the high expense Google will undertake to procure all these patent rights. That money could come from cheap licenses to many licensors, a de facto creative commons program for patents in the best case. Google may also treat some of these acquisitions as a way to avoid lost costs in paying its lawyers to defend lawsuits later if someone else buys rights relevant to their own products.
However, Google could just end up selling the rights later or taking others to court, much like the same patent assertion entities everyone complains about. Google is no stranger to patent lawsuits, having fought numerous battles over patents in the smartphone industry to protect the Android OS.
Bottom line - No single step will solve the patent troll problem for good, but Google is taking an interesting stab with this program. We can only hope Google is investing this money to make a better patent system rather than merely for strategic, or even worse, trolling reasons.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 23, 2015
Legal Geek No. 41: Apple (Patent) Watch
Welcome back to Legal Geek. This week, we take a look at whether Apple's new smart watch, released today, will revitalize yet another device market, and whether Apple will have a thicket of patents blocking competitors from entering the market easily.
https://archive.org/details/LegalGeekEp41
Apple has been at or near the leading edge on two of the most recent major technological innovations, at least from a commercial standpoint. The iPhone took smartphones to a different level in 2007 when that market was filled with flip phones and Blackberries, which of course led to competitors like Samsung and Google getting in on the mix as well over time.
Then a couple years later in 2010, Apple did it again with the iPad. All of a sudden, tablet computing was the place to be, forcing e-readers, laptop computers, and even eventually smartphones to become more like these tablet devices. Once again, competitors from Microsoft to Samsung later flooded the market as well.
Apple also happens to be one of the most active patent filing companies in the U.S. and abroad. That means just as much as innovating and developing products, Apple fights with competitors in court to try and secure and maintain superior market position. Apple and Samsung, for example, are locked in a years-long worldwide war over various phones and phone-related patents. The tablet patent market is heating up in court as well.
Today, the first generation of Apple Watch arrives. Just like with the iPhone and iPad, the first generation watch is being released to mixed critical review, but wild customer demand. Assuming watches come back into style over the next couple years, there will be plenty of lookalike competitors trying to cut into this market that Apple could expand, if things go well. It's an interesting gambit for a company which kind of made watches obsolete for many people by making smartphones so omnipresent, but then again, we all said the same thing about a tablet because who wants a bigger device that can't even work as a phone?
What's more interesting is to see whether Apple has started putting up enough of a patent thicket to make entering this marketplace hazardous to other companies. Some of the design patents on the bands for the Apple watch began issuing in March and April despite being filed only back in last August, and there's already 4 patents issued on some of those aesthetic designs. Which means competitors will have to be careful with the watch bands they offer with smart watches, let alone what patents cover the watch itself!
One would imagine that many of the important keystone utility patents, which do not publish as applications for 18 months after filing, will only start becoming public knowledge now and in the next year. The patent office is pretty backlogged, so it could take some time for these more important patents to come into allowance and effect. But if the plethora of design patents on watch bands is any indication, Apple is set to protect this innovation just as much as the others they now litigate frequently.
Bottom line - Apple is a leader in innovation and in patent litigation. That does not appear likely to change, even with a new hot idea and no Steve Jobs around anymore.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp41
Apple has been at or near the leading edge on two of the most recent major technological innovations, at least from a commercial standpoint. The iPhone took smartphones to a different level in 2007 when that market was filled with flip phones and Blackberries, which of course led to competitors like Samsung and Google getting in on the mix as well over time.
Then a couple years later in 2010, Apple did it again with the iPad. All of a sudden, tablet computing was the place to be, forcing e-readers, laptop computers, and even eventually smartphones to become more like these tablet devices. Once again, competitors from Microsoft to Samsung later flooded the market as well.
Apple also happens to be one of the most active patent filing companies in the U.S. and abroad. That means just as much as innovating and developing products, Apple fights with competitors in court to try and secure and maintain superior market position. Apple and Samsung, for example, are locked in a years-long worldwide war over various phones and phone-related patents. The tablet patent market is heating up in court as well.
Today, the first generation of Apple Watch arrives. Just like with the iPhone and iPad, the first generation watch is being released to mixed critical review, but wild customer demand. Assuming watches come back into style over the next couple years, there will be plenty of lookalike competitors trying to cut into this market that Apple could expand, if things go well. It's an interesting gambit for a company which kind of made watches obsolete for many people by making smartphones so omnipresent, but then again, we all said the same thing about a tablet because who wants a bigger device that can't even work as a phone?
What's more interesting is to see whether Apple has started putting up enough of a patent thicket to make entering this marketplace hazardous to other companies. Some of the design patents on the bands for the Apple watch began issuing in March and April despite being filed only back in last August, and there's already 4 patents issued on some of those aesthetic designs. Which means competitors will have to be careful with the watch bands they offer with smart watches, let alone what patents cover the watch itself!
One would imagine that many of the important keystone utility patents, which do not publish as applications for 18 months after filing, will only start becoming public knowledge now and in the next year. The patent office is pretty backlogged, so it could take some time for these more important patents to come into allowance and effect. But if the plethora of design patents on watch bands is any indication, Apple is set to protect this innovation just as much as the others they now litigate frequently.
Bottom line - Apple is a leader in innovation and in patent litigation. That does not appear likely to change, even with a new hot idea and no Steve Jobs around anymore.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 9, 2015
Legal Geek No. 40: The Curious Case of Post-Mortem Right of Publicity
Welcome back to Legal Geek. This week, we take a look at the wide variation in local standards for post-mortem rights of publicity thanks to a fun bit of legal research I performed this week for a friend.
https://archive.org/details/LegalGeekEp40
The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.
The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.
27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.
For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!
If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.
Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp40
The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.
The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.
27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.
For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!
If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.
Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, March 25, 2015
Legal Geek No. 39: GenCon goes political to take on Indiana Lawmakers (Updated)
Welcome back to Legal Geek. This week, we take a look at how GenCon taking a political stand last week could significantly change the future of the country's largest gaming convention.
https://archive.org/details/LegalGeekEp39
GenCon has been a summer convention staple in Indianapolis since 2003, when it moved from Milwaukee after outgrowing all available convention spaces in Wisconsin. The relationship has been very good for Indianapolis, which holds a lot of conventions and major sporting events but none so big as GenCon. Indianapolis has been estimated to receive over $50 Million in revenue annually from attendees of this four day convention. Indeed, Indianapolis expanded the convention center a few years ago at a cost of $275 Million primarily to accommodate the crowds of GenCon, but also to lure some other big conventions such as the NRA convention in future years.
But last week, the future of GenCon in Indy became foggy as GenCon's CEO sent an open letter to Indiana governor Mike Pence demanding his veto of religious freedom legislation passed by the Indiana legislature a week ago. The letter was also circulated on social media sites. Quoting from the letter, GenCon writes:
"Gen Con proudly welcomes a diverse attendee base, made up of different ethnicities, cultures, beliefs, sexual orientations, gender identities, abilities, and socio-economic backgrounds. We are happy to provide an environment that welcomes all, and the wide-ranging diversity of our attendees has become a key element to the success and growth of our convention. Legislation that could allow for refusal of service or discrimination against our attendees will have a direct negative impact on the state's economy"
Clearly, GenCon is drawing a line in the sand and threatening to leave Indianapolis over the legislation.
The legislation itself is Indiana Senate Bill 101, which would prevent state and local governments from "substantially burdening" a person's exercise of religion unless the government can prove it has a compelling interest and is doing so in the least restrictive means. Proponents of the law note that this is in compliance with the 22-year old federal religious freedom laws. Opponents of the law deem this a potential loophole license for all private companies to discriminate, particularly against gays and lesbians.
Pence signed the bill into law despite the protests from GenCon, making a statement indicating that he does not believe this law authorizes discrimination in any way. However, the opposing economic and political pressure from GenCon, other companies like engine maker Cummins, and the mayor of Indianapolis have apparently been enough to collectively make Pence consider revising or repealing the law to avoid the potential discrimination effect. GenCon released a further letter this week indicating that the governor has reached out to begin figuring out whether an amendment to the bill or enforcement of a current city rule prohibiting discrimination on the basis of sexual orientation will be enough to avoid having the religious freedom act twisted against its intended purpose.
USA Today reports that 19 other states have similar laws in effect already. Thus, even if GenCon's threat to move is serious, it's unclear what, if any good alternative options are available for GenCon to move to. Should the convention move to a city and state with smaller convention center space, that would likely lead to caps on attendees and ridiculous overcrowding problems. Furthermore, the best alternatives may already have generally competing conventions like San Diego with Comic Con and Atlanta with Dragoncon. If Indiana is bad news for GenCon, the alternatives could be much less preferable. Who knows, if GenCon stays on the same week as Nerdtacular, maybe they could move it to Salt Lake City to appease those few of us who go to both!
Bottom line - GenCon going political to protect all of its diverse gamer attendees is a bold move that should be appreciated by nerd world, but the move could lead to an undesirable relocation that would negatively impact the very gamers who love to attend this convention annually. Even with that relocation risk seeming to be less this week, it would still pose some interesting questions for one of the biggest conventions in America.
For more on this from a sports-related slant instead of geek-related, check out my longer article on Talking10.com about the subject.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp39
GenCon has been a summer convention staple in Indianapolis since 2003, when it moved from Milwaukee after outgrowing all available convention spaces in Wisconsin. The relationship has been very good for Indianapolis, which holds a lot of conventions and major sporting events but none so big as GenCon. Indianapolis has been estimated to receive over $50 Million in revenue annually from attendees of this four day convention. Indeed, Indianapolis expanded the convention center a few years ago at a cost of $275 Million primarily to accommodate the crowds of GenCon, but also to lure some other big conventions such as the NRA convention in future years.
But last week, the future of GenCon in Indy became foggy as GenCon's CEO sent an open letter to Indiana governor Mike Pence demanding his veto of religious freedom legislation passed by the Indiana legislature a week ago. The letter was also circulated on social media sites. Quoting from the letter, GenCon writes:
"Gen Con proudly welcomes a diverse attendee base, made up of different ethnicities, cultures, beliefs, sexual orientations, gender identities, abilities, and socio-economic backgrounds. We are happy to provide an environment that welcomes all, and the wide-ranging diversity of our attendees has become a key element to the success and growth of our convention. Legislation that could allow for refusal of service or discrimination against our attendees will have a direct negative impact on the state's economy"
Clearly, GenCon is drawing a line in the sand and threatening to leave Indianapolis over the legislation.
The legislation itself is Indiana Senate Bill 101, which would prevent state and local governments from "substantially burdening" a person's exercise of religion unless the government can prove it has a compelling interest and is doing so in the least restrictive means. Proponents of the law note that this is in compliance with the 22-year old federal religious freedom laws. Opponents of the law deem this a potential loophole license for all private companies to discriminate, particularly against gays and lesbians.
Pence signed the bill into law despite the protests from GenCon, making a statement indicating that he does not believe this law authorizes discrimination in any way. However, the opposing economic and political pressure from GenCon, other companies like engine maker Cummins, and the mayor of Indianapolis have apparently been enough to collectively make Pence consider revising or repealing the law to avoid the potential discrimination effect. GenCon released a further letter this week indicating that the governor has reached out to begin figuring out whether an amendment to the bill or enforcement of a current city rule prohibiting discrimination on the basis of sexual orientation will be enough to avoid having the religious freedom act twisted against its intended purpose.
USA Today reports that 19 other states have similar laws in effect already. Thus, even if GenCon's threat to move is serious, it's unclear what, if any good alternative options are available for GenCon to move to. Should the convention move to a city and state with smaller convention center space, that would likely lead to caps on attendees and ridiculous overcrowding problems. Furthermore, the best alternatives may already have generally competing conventions like San Diego with Comic Con and Atlanta with Dragoncon. If Indiana is bad news for GenCon, the alternatives could be much less preferable. Who knows, if GenCon stays on the same week as Nerdtacular, maybe they could move it to Salt Lake City to appease those few of us who go to both!
Bottom line - GenCon going political to protect all of its diverse gamer attendees is a bold move that should be appreciated by nerd world, but the move could lead to an undesirable relocation that would negatively impact the very gamers who love to attend this convention annually. Even with that relocation risk seeming to be less this week, it would still pose some interesting questions for one of the biggest conventions in America.
For more on this from a sports-related slant instead of geek-related, check out my longer article on Talking10.com about the subject.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, March 19, 2015
Legal Geek No. 38: Good and Bad Developments for Privacy Law
Welcome back to Legal Geek. This week, we take a look at two recent innovations about to affect everyday life and how differences between them are critical according to privacy law experts.
https://archive.org/details/LegalGeekEp38
Starting next month, Visa will commercially release location-tracking software to many banks, meaning your local bank and credit card companies will offer a location tracking identity safety feature on smartphone apps. This innovation will automatically notify Visa when you travel more than 50 miles from home, helping to avoid flagging non-local transactions as fraudulent when it really is you. As someone who has had a card declined in this manner when trying to buy Bacardi rum in Puerto Rico directly from the distillery, trust me when I say this innovation could avoid some embarrassing situations.
Normally having any private corporation such as a bank track your movements sounds like a real infringement of a consumer's privacy rights, but for frequent travelers, this may properly balance lowering risk of identity theft with a minor increase in information given to a corporation about you. Privacy experts applaud this innovation because the bank apps will need customers to opt-in to use this location tracking, and the opt-in can be deactivated at any time. That means the consumer fully controls when it is needed for the bank to know travel is occurring.
Also becoming more widespread next month will be the use of Google's newly developed ReCAPTCHA login authentication functionality on many third party websites. Instead of standard CAPCTHA which tries to screen out bots by forcing typing of distorted text, the ReCAPTCHA analyzes behavioral cues such as typing cadence, where clicks occur, etc., to determine if you are a human. But this authentication process collects a significant amount of information that could actually identify who the human user is, not just that the user is human. That adds to the substantial profile Google maintains on computer users already, and expands it to many third party site activities as well.
Much like the original CAPTCHA, there is no real opt-in for users of these websites, the new regime just must be accepted. That, plus the lack of much control over what Google can do with this collected information, renders this innovation as one which privacy law experts condemn as possibly a step too far.
Bottom line - when it comes to new innovations which make life more convenient and efficient, sometimes it is better to accept a bit less personal privacy to obtain these benefits. But the ability of consumers to actually control what is shared and when is vital to long-term trust of these companies collecting the information, and companies need to remember that. Privacy law experts certainly will.
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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/LegalGeekEp38
Starting next month, Visa will commercially release location-tracking software to many banks, meaning your local bank and credit card companies will offer a location tracking identity safety feature on smartphone apps. This innovation will automatically notify Visa when you travel more than 50 miles from home, helping to avoid flagging non-local transactions as fraudulent when it really is you. As someone who has had a card declined in this manner when trying to buy Bacardi rum in Puerto Rico directly from the distillery, trust me when I say this innovation could avoid some embarrassing situations.
Normally having any private corporation such as a bank track your movements sounds like a real infringement of a consumer's privacy rights, but for frequent travelers, this may properly balance lowering risk of identity theft with a minor increase in information given to a corporation about you. Privacy experts applaud this innovation because the bank apps will need customers to opt-in to use this location tracking, and the opt-in can be deactivated at any time. That means the consumer fully controls when it is needed for the bank to know travel is occurring.
Also becoming more widespread next month will be the use of Google's newly developed ReCAPTCHA login authentication functionality on many third party websites. Instead of standard CAPCTHA which tries to screen out bots by forcing typing of distorted text, the ReCAPTCHA analyzes behavioral cues such as typing cadence, where clicks occur, etc., to determine if you are a human. But this authentication process collects a significant amount of information that could actually identify who the human user is, not just that the user is human. That adds to the substantial profile Google maintains on computer users already, and expands it to many third party site activities as well.
Much like the original CAPTCHA, there is no real opt-in for users of these websites, the new regime just must be accepted. That, plus the lack of much control over what Google can do with this collected information, renders this innovation as one which privacy law experts condemn as possibly a step too far.
Bottom line - when it comes to new innovations which make life more convenient and efficient, sometimes it is better to accept a bit less personal privacy to obtain these benefits. But the ability of consumers to actually control what is shared and when is vital to long-term trust of these companies collecting the information, and companies need to remember that. Privacy law experts certainly will.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, March 5, 2015
Legal Geek No. 37: Fan Art or IP Infringement?
Welcome back to Legal Geek. This week, based on a listener request from Joseph, we take a look at a question regarding selling fan art and fan made items including famous logos or characters.
https://archive.org/details/LegalGeekEp37
Joseph asked a question we see a lot during our summer gaming and comic convention series, that being whether booths that sell fan-made items like stained glass windows, leather flasks, and other items with superhero or video game logos are subject to IP infringement, and if so, how do they consistently get away with this?
https://archive.org/details/LegalGeekEp37
Joseph asked a question we see a lot during our summer gaming and comic convention series, that being whether booths that sell fan-made items like stained glass windows, leather flasks, and other items with superhero or video game logos are subject to IP infringement, and if so, how do they consistently get away with this?
Here's the deal for such sellers: it's definitely copyright and/or trademark infringement, and they run the risk of receiving a nasty Cease and Desist letter, if not a lawsuit, when they sell items using trademarked or copyrighted logos without permission. However, most of these small time hobby businesses stay below the radar because (a) it's too expensive for companies to go after every potential infringer, and (b) in many cases, the sales actually help the market for the genuine goods, not hamper it. That leads to a laissez faire attitude for many companies relative to these infringements.
Obviously some companies like Blizzard Entertainment are more "scorched earth" approach than others, going after more potential infringers. But every company has a limit as to how much they can pursue infringement issues. And that is precisely why these sellers at your local comic and gaming conventions get away with what is really blatant IP infringement.
The risk these companies run is large. Should they lose an infringement lawsuit, any of the following remedies could apply: injunction to stop the activity, handing over of any profits made, and potentially further money damages. Especially in copyright, some damages can be set by statue to some ridiculously significant value between $750 and $30,000 per infringement! If you remember the record companies going after Napster users and the ridiculous fines/settlements paid, that's statutory damages coming into play. That can make this market a small reward high risk endeavor.
Bottom line - if these companies remain what is truly a small business concern, they likely stay under the radar and probably have a low actual risk of these bad legal things happening. But they are undoubtedly committing infringement, which opens up the possibility of lawsuits. At the end of the day, it's a business decision, with associated risks and rewards like all business decisions.
Thanks again to Joseph for the question!
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, February 25, 2015
Legal Geek No. 36: Katy Perry Claims IP Rights in "Left Shark" (of SB Halftime)
Welcome back to Legal Geek. This week, based on a listener request, we take a look at another interesting story related to the Super Bowl, this being Katy Perry trying to enforce intellectual property rights in the Left Shark of the halftime show.
https://archive.org/details/LegalGeekEp36
Katy Perry provided a number of nifty visuals and performances during her multi-song halftime show, but the one that transcended the night and turned into the latest internet meme was her performance of the song Teenage Dreams, where dancing beach balls, sharks, and trees surrounded her on stage. The shark dancing on the left side of Perry was hilariously out of choreography and sync compared to the right shark and the rest of the dancers. That led to an explosion of Left Shark parodies and commentary online (and even a snarky ESPN SportsCenter advertisement about the performance).
Of course, this also led to people trying to profit off this sure-to-be-short-lived sensation. One of these people was Fernando Sosa, who started selling sculpted figurines of the left shark on his website Political Sculptor.
Katy Perry put her best attorneys on the case, and they first sent a Cease and Desist letter to Sosa based on an alleged copyright claim. This claim looked good enough to cause the website host to comply with the Cease and Desist. However, when this story hit the news, legal experts weighed in and confirmed that the Left Shark costume likely was not copyrightable subject matter.
Costumes and other garments are useful items not typically subject to copyright except for design elements that are separable physically or conceptually from the garment and having originality beyond just contributing to the costume's intended appearance. This rule about costumes and separability was confirmed in the 2014 Compendium of Copyright Office Practices, the same document that explained why monkeys and god-like deities could not obtain copyright at the U.S. Copyright Office.
The Left Shark costume is a full body costume shaped like a shark with fins, eyes, gills, and teeth, all of which appear to be integrated elements not physically separable or conceptually original beyond the use in appearing like a shark. Thus, a copyright claim would likely fail, whether at the copyright office or in court. Katy Perry's attorneys then tried to claim the costume was based on several sketches which Sosa infringes, but this is easily avoided because Sosa never saw the sketches and is not copying anything other than the costume in the halftime show.
That led Katy Perry's attorneys to try something else, specifically filing trademark applications on Left Shark and Right Shark among other shark-related marks. This may just be a tactic to bully small shops and sellers like Sosa out of the market based on the slim potential these applications become enforceable IP rights. But the likelihood that these trademarks will be registered seems slim, as the Left Shark and Right Shark terms came out of the internet meme rather than Perry herself. Thus, she will have trouble proving actual ownership in these marks, let alone that they actually serve the purpose of trademarks, which is to identify an origin of goods and services.
The Bottom Line: Katy Perry and her legal team can't be faulted for trying to protect some profitable moments of fame stemming from her memorable halftime performance, but the claims to IP rights are pretty clearly flawed. If she wants to sell memorabilia and figurines about Left Shark, she will have to just enter the free market and compete with others. Perry will be fine, because after all...
"I kissed a girl, and I liked it..."
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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/LegalGeekEp36
Katy Perry provided a number of nifty visuals and performances during her multi-song halftime show, but the one that transcended the night and turned into the latest internet meme was her performance of the song Teenage Dreams, where dancing beach balls, sharks, and trees surrounded her on stage. The shark dancing on the left side of Perry was hilariously out of choreography and sync compared to the right shark and the rest of the dancers. That led to an explosion of Left Shark parodies and commentary online (and even a snarky ESPN SportsCenter advertisement about the performance).
Of course, this also led to people trying to profit off this sure-to-be-short-lived sensation. One of these people was Fernando Sosa, who started selling sculpted figurines of the left shark on his website Political Sculptor.
Katy Perry put her best attorneys on the case, and they first sent a Cease and Desist letter to Sosa based on an alleged copyright claim. This claim looked good enough to cause the website host to comply with the Cease and Desist. However, when this story hit the news, legal experts weighed in and confirmed that the Left Shark costume likely was not copyrightable subject matter.
Costumes and other garments are useful items not typically subject to copyright except for design elements that are separable physically or conceptually from the garment and having originality beyond just contributing to the costume's intended appearance. This rule about costumes and separability was confirmed in the 2014 Compendium of Copyright Office Practices, the same document that explained why monkeys and god-like deities could not obtain copyright at the U.S. Copyright Office.
The Left Shark costume is a full body costume shaped like a shark with fins, eyes, gills, and teeth, all of which appear to be integrated elements not physically separable or conceptually original beyond the use in appearing like a shark. Thus, a copyright claim would likely fail, whether at the copyright office or in court. Katy Perry's attorneys then tried to claim the costume was based on several sketches which Sosa infringes, but this is easily avoided because Sosa never saw the sketches and is not copying anything other than the costume in the halftime show.
That led Katy Perry's attorneys to try something else, specifically filing trademark applications on Left Shark and Right Shark among other shark-related marks. This may just be a tactic to bully small shops and sellers like Sosa out of the market based on the slim potential these applications become enforceable IP rights. But the likelihood that these trademarks will be registered seems slim, as the Left Shark and Right Shark terms came out of the internet meme rather than Perry herself. Thus, she will have trouble proving actual ownership in these marks, let alone that they actually serve the purpose of trademarks, which is to identify an origin of goods and services.
The Bottom Line: Katy Perry and her legal team can't be faulted for trying to protect some profitable moments of fame stemming from her memorable halftime performance, but the claims to IP rights are pretty clearly flawed. If she wants to sell memorabilia and figurines about Left Shark, she will have to just enter the free market and compete with others. Perry will be fine, because after all...
"I kissed a girl, and I liked it..."
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, February 18, 2015
Legal Geek No. 35: Trademarking Sports Slogans like "The 12th Man"
Welcome back to Legal Geek. This week, we take a look at one of the most prominent sports slogans in use today and the interesting legal wrangling going on behind the scenes about use of the slogan.
https://archive.org/details/LegalGeekEp35
The 12th Man is a slogan used primarily with football teams to refer to the fans backing the team in the bleachers. It is particularly associated with the Seattle Seahawks, who embrace the title so much that fans wave flags with the number 12 on it. With Seattle playing in the most recent two Super Bowls, some may just assume this prominent slogan is a Seattle based thing.
However, The 12th Man is actually registered as a trademark by a completely different football program, and Seattle has had to negotiate just to maintain the rights to allow its use! Even sports fandom cannot escape the craziness of IP law.
The actual owner of the trademark on The 12th Man is Texas A&M University, and the story behind this slogan is fantastic. In short, a 1922 game between the Aggies and Centre College was so riddled with injuries that A&M had zero reserve players left to put in the game if another player got hurt. So the coach recruited a young man from the stands and had him suit up just in case another body was needed. Even though that 12th man never had to go in the game, the story became legend in Texas and the Aggie fans adopted the moniker The 12th Man.
After using the mark for many decades, Texas A&M began applying for and procuring the trademarks in the 1980's and 1990's. A&M has then sent a number of cease and desist letters to other professional and collegiate football teams using the trademark. When Seattle ramped up marketing efforts behind this slogan in 2005, A&M sued the Seahawks and the litigation ended up in settlement and a license agreement.
Under the license, the Seahawks can use any rendition of the number 12 on flags, shirts, and other merchandise (and they do, as evidenced by the iconic flag above), but this merchandise must remain distinguished from the full 12th Man mark. That's why the iconic flag has only the number 12 on it.
This license is expected to end in 2016, which means either Seattle will find alternative 12 brands of their own to market to fans or renegotiate the license and pay Texas A&M. It will be interesting to see what the Seahawks ownership group chooses to do, although it is notable that the company owning the Seahawks various IP has pending trademark applications on 12's, We are 12, and The 12's, all of which are apparently used pretty commonly already by Seattle fans. Not that there's anything Borg like about "We are 12," but I digress.
The Bottom Line: the passion of sports fans will not be abated by little things like trademark lawsuits, but it is interesting to see programs do battle in court over something seemingly so silly as what moniker the fans choose to use. Seattle fans will continue to enjoy the spirit of the 12th Man moniker, and if their team would just learn to run the ball on the 1 yard line, everything would be great.
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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/LegalGeekEp35
The 12th Man is a slogan used primarily with football teams to refer to the fans backing the team in the bleachers. It is particularly associated with the Seattle Seahawks, who embrace the title so much that fans wave flags with the number 12 on it. With Seattle playing in the most recent two Super Bowls, some may just assume this prominent slogan is a Seattle based thing.
However, The 12th Man is actually registered as a trademark by a completely different football program, and Seattle has had to negotiate just to maintain the rights to allow its use! Even sports fandom cannot escape the craziness of IP law.
The actual owner of the trademark on The 12th Man is Texas A&M University, and the story behind this slogan is fantastic. In short, a 1922 game between the Aggies and Centre College was so riddled with injuries that A&M had zero reserve players left to put in the game if another player got hurt. So the coach recruited a young man from the stands and had him suit up just in case another body was needed. Even though that 12th man never had to go in the game, the story became legend in Texas and the Aggie fans adopted the moniker The 12th Man.
After using the mark for many decades, Texas A&M began applying for and procuring the trademarks in the 1980's and 1990's. A&M has then sent a number of cease and desist letters to other professional and collegiate football teams using the trademark. When Seattle ramped up marketing efforts behind this slogan in 2005, A&M sued the Seahawks and the litigation ended up in settlement and a license agreement.
Under the license, the Seahawks can use any rendition of the number 12 on flags, shirts, and other merchandise (and they do, as evidenced by the iconic flag above), but this merchandise must remain distinguished from the full 12th Man mark. That's why the iconic flag has only the number 12 on it.
This license is expected to end in 2016, which means either Seattle will find alternative 12 brands of their own to market to fans or renegotiate the license and pay Texas A&M. It will be interesting to see what the Seahawks ownership group chooses to do, although it is notable that the company owning the Seahawks various IP has pending trademark applications on 12's, We are 12, and The 12's, all of which are apparently used pretty commonly already by Seattle fans. Not that there's anything Borg like about "We are 12," but I digress.
The Bottom Line: the passion of sports fans will not be abated by little things like trademark lawsuits, but it is interesting to see programs do battle in court over something seemingly so silly as what moniker the fans choose to use. Seattle fans will continue to enjoy the spirit of the 12th Man moniker, and if their team would just learn to run the ball on the 1 yard line, everything would be great.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Tuesday, February 10, 2015
Legal Geek No. 34: IP for Food Recipes?
Welcome back to Legal Geek. This week, we take a look at an interesting question that walked into my real life office this week, just like the interesting characters that walk into Saul Goodman's office.
https://archive.org/details/LegalGeekEp34
One of the recurring "great ideas" that many people seem to come up with are new recipes for food items. Indeed, just this week a potential client asked about patenting a new food recipe, and the inquiry is more common than you might think. The most memorable of these interactions since I started practicing law was with a man who believed he invented the cheeseburger taco 5 years ago, and a quick Google image search quickly ended that notion.
But are food recipes protectable with patents or any other IP?
The general answer on the patent side usually ends up being no, but not because food recipes are disqualified from patent protection. On the contrary, recipes can be patented if novelty and non-obviousness over the known prior art in the food preparation field can be shown. The problem is proving some sort of unique peculiarity or counter-intuitive feature that would make a food recipe a non-obvious improvement over what is already known. It's usually an incredibly difficult hurdle to overcome for this type of invention.
Trademarks cover business names and product names, so recipes do not really come under the scope of that type of IP. While trade secrets can be used to protect recipes like the famous Coca Cola secret recipe, this is not the type of protection most food connoisseurs are interested in, especially if public recognition or exclusivity is desired
That leaves copyrights, which have long been the recommended path for creators who just want to have some protection and/or a certificate on the wall. However, copyright protection requires originality in the creative expression, which means underlying facts are not protectable even if the creative organization or way the facts are expressed are protectable.
Last week a Cleveland federal court made some headlines by confirming that food recipes in a recipe book cannot be copyrighted so as to block other competitors from using the same set of ingredients to make a food product. This decision is in line with many other court decisions over the years which have confirmed basic lists of ingredients and functional directions for combining them are not an original creative expression entitled to copyright. So copyright won't work either.
The bottom line: if you come up with a great food recipe, the only likely way to protect it with public IP would be by patent, and that would be a significant uphill battle in most circumstances. So share the wealth food junkies, and we will all benefit from your delicious creativity.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, February 4, 2015
Legal Geek No. 33: Google Patents Improved Web Browser Privacy
Welcome back to Legal Geek. This week, we take a look at one of the more interesting issued U.S. patents of the new year, as Google innovates in the field of internet user browsing privacy.
https://archive.org/details/LegalGeekEp33
Internet users have for some time been able to browse in incognito or private modes in various browser applications. These modes mean that your search history, cookies from a session, and browsing history will not be retained on your computer. In addition to preventing others from snooping on your internet history, these modes can be used to avoid autofill information, accidental saving of important log-in credentials to accounts, logging into multiple accounts on a website in different windows, and performing searches not affected by your history or other users on the same device.
These modes have been only manually activated to date, requiring diligence of the user in remembering to activate private browsing whenever it is desired. In January, Google has secured a patent that innovates and moves private browsing to the next level. The patent, U.S. Patent No. 8,935,798, is directed to a system and a computer method of automatically enabling private browsing so that the user does not have to manually activate privacy mode.
The method words by having the browser analyze the content of the web page to determine whether privacy mode is appropriate. For example, the patent claims specifically recite having the browser determine whether a web page being opened was previously filtered or selected to not appear in search results, and if so, the privacy mode is automatically started and the web page is opened in that privacy mode. Thus, the user can establish parameters for automatically triggering privacy mode – such as when they enter a credit card number on a site, or when they visit certain high-security websites – and the protection will just happen. It's a potentially very smart implementation of privacy mode browsing when it matters most.
This could be a potential boon for helping keep personal information private, but as with all privacy mode browsing, this does not keep websites and service providers from tracking your activity. Furthermore, high quality forensic techniques have proven to still be able to reconstruct the browsing history in the current iterations of privacy modes. And granting the patent to Google may mean this technology remains locked up in a single browser like Chrome unless Google licenses or shares this technology to competitors, which not all users will adopt.
The bottom line: Although this patent is a win for most under privacy law, it will not change the fact that privacy mode browsing is no more protected from official searches and seizures than regular browsing. So no becoming a criminal or terrorist and expecting this new innovation to somehow shield you in court from having your online misdeeds be discovered and used against you. Still, anything that can help keep credit card and bank numbers and login credentials more secure is a step in the right direction. Enjoy the smart, private browsing.
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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/LegalGeekEp33
Internet users have for some time been able to browse in incognito or private modes in various browser applications. These modes mean that your search history, cookies from a session, and browsing history will not be retained on your computer. In addition to preventing others from snooping on your internet history, these modes can be used to avoid autofill information, accidental saving of important log-in credentials to accounts, logging into multiple accounts on a website in different windows, and performing searches not affected by your history or other users on the same device.
These modes have been only manually activated to date, requiring diligence of the user in remembering to activate private browsing whenever it is desired. In January, Google has secured a patent that innovates and moves private browsing to the next level. The patent, U.S. Patent No. 8,935,798, is directed to a system and a computer method of automatically enabling private browsing so that the user does not have to manually activate privacy mode.
The method words by having the browser analyze the content of the web page to determine whether privacy mode is appropriate. For example, the patent claims specifically recite having the browser determine whether a web page being opened was previously filtered or selected to not appear in search results, and if so, the privacy mode is automatically started and the web page is opened in that privacy mode. Thus, the user can establish parameters for automatically triggering privacy mode – such as when they enter a credit card number on a site, or when they visit certain high-security websites – and the protection will just happen. It's a potentially very smart implementation of privacy mode browsing when it matters most.
This could be a potential boon for helping keep personal information private, but as with all privacy mode browsing, this does not keep websites and service providers from tracking your activity. Furthermore, high quality forensic techniques have proven to still be able to reconstruct the browsing history in the current iterations of privacy modes. And granting the patent to Google may mean this technology remains locked up in a single browser like Chrome unless Google licenses or shares this technology to competitors, which not all users will adopt.
The bottom line: Although this patent is a win for most under privacy law, it will not change the fact that privacy mode browsing is no more protected from official searches and seizures than regular browsing. So no becoming a criminal or terrorist and expecting this new innovation to somehow shield you in court from having your online misdeeds be discovered and used against you. Still, anything that can help keep credit card and bank numbers and login credentials more secure is a step in the right direction. Enjoy the smart, private browsing.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, January 22, 2015
Legal Geek No. 32: Does Copyright Enforcement Affect MLK Legacy?
Welcome back to Legal Geek. This week, we celebrate Martin Luther King Jr. by taking a look at how his estate may be lessening his legacy by exploiting copyrights that have extended into near perpetuity.
https://archive.org/details/LegalGeekEp32
This month the film Selma earned some critical praise and Oscar nominations, but it also earned hefty criticism for various inaccuracies and stretching of the truth. One of the more notable omissions from Selma are the actual speeches Martin Luther King gave during the civil rights movement. But that paraphrasing was intentional, and it's all thanks to copyright law.
Thanks to regular revisions to copyright law extending the term of copyright protection, the speeches written and delivered by Dr. King remain covered by copyright protection. In fact, the current copyright term is life of the author plus 70 years, which will enable Dr. King's heirs and estate to profit off his works until 2039. And this estate has been particularly litigious over the years, successfully suing companies like CBS and USA Today for using or printing full copies of famous MLK speeches. Which is ironic, since television and movie studios were the leaders of the recent charges to extend copyright protection terms.
That leads to an interesting conundrum when films like Selma come along, as the estate has already decided to exclusively license the rights to another studio Dreamworks for a future biopic made by Steven Spielberg. Thus, the filmmakers of Selma could not even approach the estate to include the actual speeches, and if they did, a significant copyright lawsuit and damages would have surely followed.
That seems to cheapen the legacy of this civil rights icon, as it makes things like the recent 50th anniversary of his speeches difficult to celebrate. Indeed, these speeches are such an important part of history that it seems inherently wrong that this genius cannot be shared with the world in textbooks and the like, for future innovators and great minds to build upon. All in the name of profit, such as when the estate received over $700,000 to authorize MLK's image to be used in the new MLK memorial in Washington DC. And that profit-grab just seems like a poor reason to effectively lock down and reduce the legacy of one of the true heroes of the 20th Century.
So remember cases like this when the copyright owner lobbyists begin to push for a further extension of the copyright term as expected in the next three years (like SOPA and PIPA, we should crowdsource strong opposition to stop such madness).
Bottom Line: "Life plus 70 years" has already arguably exceeded any reasonable economic incentive needed to encourage authors to make creative works and it provides too much constraint to help contemporary authors eventually build on the creative works of others, as is the case in patent law where terms last only 20 years. Scenarios like the profiteering estate of Martin Luther King Jr. help confirm the fact that copyright terms should be limited in the future, not extended, to reconfirm the balance and purposes of copyright law. But that's just one IP attorney's opinion.
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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/LegalGeekEp32
This month the film Selma earned some critical praise and Oscar nominations, but it also earned hefty criticism for various inaccuracies and stretching of the truth. One of the more notable omissions from Selma are the actual speeches Martin Luther King gave during the civil rights movement. But that paraphrasing was intentional, and it's all thanks to copyright law.
Thanks to regular revisions to copyright law extending the term of copyright protection, the speeches written and delivered by Dr. King remain covered by copyright protection. In fact, the current copyright term is life of the author plus 70 years, which will enable Dr. King's heirs and estate to profit off his works until 2039. And this estate has been particularly litigious over the years, successfully suing companies like CBS and USA Today for using or printing full copies of famous MLK speeches. Which is ironic, since television and movie studios were the leaders of the recent charges to extend copyright protection terms.
That leads to an interesting conundrum when films like Selma come along, as the estate has already decided to exclusively license the rights to another studio Dreamworks for a future biopic made by Steven Spielberg. Thus, the filmmakers of Selma could not even approach the estate to include the actual speeches, and if they did, a significant copyright lawsuit and damages would have surely followed.
That seems to cheapen the legacy of this civil rights icon, as it makes things like the recent 50th anniversary of his speeches difficult to celebrate. Indeed, these speeches are such an important part of history that it seems inherently wrong that this genius cannot be shared with the world in textbooks and the like, for future innovators and great minds to build upon. All in the name of profit, such as when the estate received over $700,000 to authorize MLK's image to be used in the new MLK memorial in Washington DC. And that profit-grab just seems like a poor reason to effectively lock down and reduce the legacy of one of the true heroes of the 20th Century.
So remember cases like this when the copyright owner lobbyists begin to push for a further extension of the copyright term as expected in the next three years (like SOPA and PIPA, we should crowdsource strong opposition to stop such madness).
Bottom Line: "Life plus 70 years" has already arguably exceeded any reasonable economic incentive needed to encourage authors to make creative works and it provides too much constraint to help contemporary authors eventually build on the creative works of others, as is the case in patent law where terms last only 20 years. Scenarios like the profiteering estate of Martin Luther King Jr. help confirm the fact that copyright terms should be limited in the future, not extended, to reconfirm the balance and purposes of copyright law. But that's just one IP attorney's opinion.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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