Welcome back to Legal Geek. This week, we review another dispute over a Kickstarter takedown, but this time with a twist. This takedown led to a lawsuit against Cards Against Humanity, a favorite in the tabletop gaming and casual gaming community.
https://archive.org/details/LegalGeekEp91
Only two months ago we covered CAH suing counterfeiters, but this week, the tables turn with a lawsuit against CAH. Another game developer called SCS Direct launched a Kickstarter in early 2016 for a party card game called Humanity Hates Trump. The project quickly earned nearly $10,000, thanks to the hot political topic and the compatibility with CAH and its clones. However, the project was taken down when Kickstarter and SCS received a cease and desist letter from CAH.
The Complaint filed against CAH sets forth what happened according to SCS. CAH attorneys first contacted SCS to object to the Humanity Hates Trump box having a "Cards Against Everybody" tagline, and also for using the same Helvetica typeface on the cards. SCS changed those elements in an effort to avoid confusion between the games. But then CAH attorneys demanded that SCS not use black and white cards, and SCS refused to change this aspect. That led to the cease and desist letter which pulled the Kickstarter project down.
CAH claims that it owns trademark and/or trade dress protection in the use of black and white on "fill in the blank" card games, and that there would be consumer confusion that SCS's game comes from the makers of CAH. Obviously there cannot be any patent infringement, as CAH has no patent and they lifted their own game mechanics from Apples to Apples. SCS has sued CAH to get an injunction against further claims of infringement and to sue for business loss damages caused by the Kickstarter takedown. It's a classic case of threaten suit, and get sued yourself in a Declaratory Judgment action.
SCS notes in the Complaint that CAH owns no trademark office registrations on these features of the game, and also that CAH has allowed plenty of other competitors in the marketplace to exist with black and white cards. These include other card games like Crabs Adjust Humidity, Cats Abiding Horribly, Guards Against Insanity, Black Card Revoked, and Superfight, among others, some of which are also CAH knockoffs. In view of this dilution in the market and the failure to police the alleged trade dress before now, SCS appears to make a strong case that this claim of trade dress coverage of black and white cards is baseless.
It's possible that CAH would still try to argue a trademark claim based on use of the word Humanity in the title as well. That is not rebutted by the SCS complaint, and it may be an easier case to win for CAH even with just one word of overlap in the game titles. Indeed, that fact may kill SCS's chances to get an injunction for so-called "baseless claims" made by CAH. CAH may not have a winning claim, but that doesn't mean the claims are baseless.
As a sidenote, the fact that CAH is offered under Creative Commons and Open Source licenses for personal printing is not decisive in a case like this. Those licenses do not grant other companies the right to steal other potential IP for commercial exploitation, so beware this trap with Creative Commons and the like. Even though Humanity Hates Trump has packaging that looks more like The Contender than CAH, name and style choices can still be problematic inside the packaging.
It's unclear if CAH has responded to the lawsuit yet.
Ironically, CAH came out with their own Trump and Hillary themed expansion packs later in 2016 to raise money to support their chosen candidate, and those raised over $530,000. Perhaps just drowning SCS with competition and their own strong fan base would've been a better option than fighting over a $10,000 Kickstarter campaign.
The Bottom Line is, enforcing your IP rights is important especially in trademark law, but companies like CAH have to be careful, as such enforcement can lead to these kinds of counter-lawsuits. Don't just send cease and desist or takedown letters without knowing the risks and planning for them.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, December 14, 2016
Thursday, December 8, 2016
Legal Geek No. 90: How the Dr. Seuss/Star Trek mashup was Killed
Welcome back to Legal Geek. This week, we review a Kickstarter mashup book project involving Star Trek and Dr. Seuss, and whether it properly died on the Kickstarter vine thanks to intellectual property infringement allegations.
https://archive.org/details/LegalGeekEp90
A team of comics and science fiction writers teamed up under the company ComicMix LLC to launch a book project called "Oh The Places You'll Boldly Go," a book about Trekkie characters using Seuss-style rhymes and drawings. The Kickstarter campaign dropped sample rhymes like:
The Bottom Line is, while it's admirable to see Popehat and other foundations try to help what looks like an awesome project from a fair use copyright perspective, there may be too many mistakes made here to save this Kickstarter project. Once again, merely approaching the parties for an inexpensive license could have potentially avoided a lot of legal bills, project delay, and frustration.
https://archive.org/details/LegalGeekEp90
A team of comics and science fiction writers teamed up under the company ComicMix LLC to launch a book project called "Oh The Places You'll Boldly Go," a book about Trekkie characters using Seuss-style rhymes and drawings. The Kickstarter campaign dropped sample rhymes like:
"You can get out of trouble, and that's knotty, because in a pinch you'll be beamed out by Scotty."
The book was in the process of raising nearly $30,000 on Kickstarter in the month of September, and predictably, that raised the hackles of one of the intellectual property owners being parodied. This time, it was the estate of Dr. Seuss, known as Dr. Seuss Enterprises, which objected to this book as a slavish copying of copyrighted works of the author and also as trademark infringement based on a likelihood of confusion with one of Seuss's best selling books, "Oh the Places You'll Go."
Paramount and CBS have not joined the case on behalf of Star Trek's intellectual property. As you'll recall, they are still in their own legal battle we've covered here with a crowdfunded fan film called Axanar.
The lawsuit filed in California did not slip through unnoticed, and powerful lobbying organizations like Popehat called for an attorney in the area to represent the creators of the book pro bono, AKA for free, to defend what many believe to be clear fair use under copyright law.
Fair use as a copyright infringement defense is a four factor balancing test, as we've covered before. Here, there are arguments cutting both ways on some of the factors. Seuss Enterprises believes that this work would undercut a part of the market for their own original works, while ComicMix does not see any harm to Seuss's marketplace. The purpose and character of the use is believed by Seuss Enterprises to be commercial and therefore disfavored, while ComicMix looks at this as a transformative parody work typically protected by fair use. As to the amount or substantiality of the portion of Seuss's work taken, Seuss Enterprises shows some highly similar drawing panels in the complaint, but ComicMix believes it has only used an oft-parodied style rather than lifting any particular story arcs from Seuss or a pre-existing Star Trek episode.
Being a self-proclaimed parody likely balances this test towards fair use instead of infringement, but the facts look close enough to make it an open question whether the fair use defense is available. What may be more damaging is the trademark claim, considering the identical goods of a book, and the highly similar names but for one added word. "Oh The Places You'll Go" has sold well as a graduation present and the like for many decades, and it may indeed be confusing to consumers whether this Trek parody comes from Seuss Enterprises or licensed by such.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, November 23, 2016
Legal Geek No. 89: When Copyright Licenses Break Bad
Welcome back to Legal Geek. This week, we review an interesting lawsuit for copyright infringement filed against another producer of a recent pop culture favorite TV show, this being Sony Pictures Entertainment and the show Breaking Bad.
https://archive.org/details/LegalGeekEp89
Although it has been three years since Breaking Bad aired new content, an artist from Mexico named Humberto Puentes Segura has in the past month just sued for copyright infringement of a logo he created and licensed to Sony for use in the TV show. The logo is the two chickens with sombreros which is the centerpiece of the Los Pollos Hermanos restaurant chain featured prominently in the middle seasons of the show.
You may ask, what grounds does the artist have to stand on if he licensed his work? That's a good question, but essentially the controversy boils down to the specifics of the license agreement signed. Puentes Segura believes he licensed the artwork only as set dressing, props, and wardrobes in connection with production of the television show, but not for reproduction of the art on merchandise.
Of course, the wild success of Breaking Bad and especially the storylines centering on Gustavo Fring and his business front Los Pollos Hermanos have led to marketability of this fake product line and its associated logo. Sony is behind internet sales of things like coffee mugs and T-shirts with the double chicken logo, which makes sense given the show's critical acclaim and popularity. The artist claims this was beyond what he agreed to license, making these sales copyright infringement.
Interestingly, Puenta-Segura argues in his complaint that he was not aware of the infringement or the popularity until October 2015 thanks to living in Mexico. That may be hard to believe, but it potentially avoids a statute of limitations problem. He also registered the mark with the U.S. Copyright Office only in January of this year, so while he can sue Sony now thanks to the registration, he is not entitled to statutory damages that come as an option with early copyright registration before infringement occurs.
That means the undisclosed damages the artist will pursue will need to be proven actual money loss damages. Even if there's merit to the claim based on how the license was drafted, the potential risk to Sony will be small thanks to no risk of the sometimes very high thousands of dollars which come into play with statutory damages.
The Bottom Line is, if you are a creative licensing works of art, music, or the like from third parties, make certain the rights obtained cover all ancillary or secondary uses you may want for the property. Otherwise you risk the revenge of a disgruntled artist when you make the big bucks on your product or concept.
-----------------------------------
https://archive.org/details/LegalGeekEp89
Although it has been three years since Breaking Bad aired new content, an artist from Mexico named Humberto Puentes Segura has in the past month just sued for copyright infringement of a logo he created and licensed to Sony for use in the TV show. The logo is the two chickens with sombreros which is the centerpiece of the Los Pollos Hermanos restaurant chain featured prominently in the middle seasons of the show.
You may ask, what grounds does the artist have to stand on if he licensed his work? That's a good question, but essentially the controversy boils down to the specifics of the license agreement signed. Puentes Segura believes he licensed the artwork only as set dressing, props, and wardrobes in connection with production of the television show, but not for reproduction of the art on merchandise.
Of course, the wild success of Breaking Bad and especially the storylines centering on Gustavo Fring and his business front Los Pollos Hermanos have led to marketability of this fake product line and its associated logo. Sony is behind internet sales of things like coffee mugs and T-shirts with the double chicken logo, which makes sense given the show's critical acclaim and popularity. The artist claims this was beyond what he agreed to license, making these sales copyright infringement.
Interestingly, Puenta-Segura argues in his complaint that he was not aware of the infringement or the popularity until October 2015 thanks to living in Mexico. That may be hard to believe, but it potentially avoids a statute of limitations problem. He also registered the mark with the U.S. Copyright Office only in January of this year, so while he can sue Sony now thanks to the registration, he is not entitled to statutory damages that come as an option with early copyright registration before infringement occurs.
That means the undisclosed damages the artist will pursue will need to be proven actual money loss damages. Even if there's merit to the claim based on how the license was drafted, the potential risk to Sony will be small thanks to no risk of the sometimes very high thousands of dollars which come into play with statutory damages.
The Bottom Line is, if you are a creative licensing works of art, music, or the like from third parties, make certain the rights obtained cover all ancillary or secondary uses you may want for the property. Otherwise you risk the revenge of a disgruntled artist when you make the big bucks on your product or concept.
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 27, 2016
Legal Geek No. 88: Lucasfilm sues independent Jedi Academy
Welcome back to Legal Geek. This week, we review a trademark infringement lawsuit filed by Lucasfilm against an independent California man running a Jedi training academy.
https://archive.org/details/LegalGeekEp88
Obviously Star Wars is back in the spotlight again, with movies once again being brought out thanks to Disney, and the Disney parks and cruise ships fully incorporating the droids and all the rest for their guests. Indeed, most of us are likely thrilled at the prospect of seeing one of the best villains in movie history Darth Vader return in the upcoming Rogue One.
However, fandom does have its limits thanks to things like intellectual property. One California fan enthusiast Michael Brown may have gone a bit too far by opening a business working under the names New York Jedi and Lightsaber Academy. Yes, this business actually offers classes to teach you how to fight with a lightsaber, just like the Jedi of the Star Wars universe. If you complete the class, you even receive a fancy certificate with a class logo similar in appearance to the Jedi Order seal of the Star Wars films.
And that, as it turns out, is not copacetic with the owners of the various Star Wars trademarks. Lucasfilm filed a complaint this month against Brown alleging trademark infringement, cybersquatting, and unfair competition among other things. How will this play out, and why did Brown get singled out over others selling fan art and the like at conventions?
As to the merits of the lawsuit, Lucasfilm and Disney own a number of federal trademark registration on various Star Wars marks, including Jedi Training Academy, Jedi, Lightsaber, and even May the 4th Be With You. Yes, I mean the pun about a date in May, not the force line. Regardless, these registrations on the marks which this business is now using are covering goods and services including clothing and entertainment services. This is likely broad enough to cover the defendant's activities, as he apparently sells shirts and the classes could be broadly considered entertainment services.
Even if Disney does not offer the same type of training, the trademarks appear to still be broad enough in the abstract to cover this activity. As such, Lucasfilm appears to have a favorable chance to win this case. Lucasfilm won a similar case against a software company using a Jedi mark in 2010 for enabling controlling computers with their minds, and I expect a similar result and likely settlement here.
How did Brown's business get singled out for a lawsuit? For one, the business is apparently very popular and successful, which means money is effectively being diverted from Lucasfilm to Brown based on the ideas and names originally conceived for Star Wars. Likewise, he has asked for a license to use these marks numerous times and Lucasfilm has denied these requests. Thus, he knew he was likely going too far and refused to avoid Lucasfilm's rights even after they turned down requests for a license.
The Bottom Line is, Brown should have likely changed the names to something similar that gets the point across without using names and terms covered by the trademarks. That may be the end result here anyway. This is another example of why fans and other businesses need to be extra careful when using names in commerce which may be owned by other parties, as doing so can tank a successful business if a lawsuit happens like this one. And for goodness sake, always always always respect the rights of or design around an IP owner who refuses a license.
https://archive.org/details/LegalGeekEp88
Obviously Star Wars is back in the spotlight again, with movies once again being brought out thanks to Disney, and the Disney parks and cruise ships fully incorporating the droids and all the rest for their guests. Indeed, most of us are likely thrilled at the prospect of seeing one of the best villains in movie history Darth Vader return in the upcoming Rogue One.
However, fandom does have its limits thanks to things like intellectual property. One California fan enthusiast Michael Brown may have gone a bit too far by opening a business working under the names New York Jedi and Lightsaber Academy. Yes, this business actually offers classes to teach you how to fight with a lightsaber, just like the Jedi of the Star Wars universe. If you complete the class, you even receive a fancy certificate with a class logo similar in appearance to the Jedi Order seal of the Star Wars films.
And that, as it turns out, is not copacetic with the owners of the various Star Wars trademarks. Lucasfilm filed a complaint this month against Brown alleging trademark infringement, cybersquatting, and unfair competition among other things. How will this play out, and why did Brown get singled out over others selling fan art and the like at conventions?
As to the merits of the lawsuit, Lucasfilm and Disney own a number of federal trademark registration on various Star Wars marks, including Jedi Training Academy, Jedi, Lightsaber, and even May the 4th Be With You. Yes, I mean the pun about a date in May, not the force line. Regardless, these registrations on the marks which this business is now using are covering goods and services including clothing and entertainment services. This is likely broad enough to cover the defendant's activities, as he apparently sells shirts and the classes could be broadly considered entertainment services.
Even if Disney does not offer the same type of training, the trademarks appear to still be broad enough in the abstract to cover this activity. As such, Lucasfilm appears to have a favorable chance to win this case. Lucasfilm won a similar case against a software company using a Jedi mark in 2010 for enabling controlling computers with their minds, and I expect a similar result and likely settlement here.
How did Brown's business get singled out for a lawsuit? For one, the business is apparently very popular and successful, which means money is effectively being diverted from Lucasfilm to Brown based on the ideas and names originally conceived for Star Wars. Likewise, he has asked for a license to use these marks numerous times and Lucasfilm has denied these requests. Thus, he knew he was likely going too far and refused to avoid Lucasfilm's rights even after they turned down requests for a license.
The Bottom Line is, Brown should have likely changed the names to something similar that gets the point across without using names and terms covered by the trademarks. That may be the end result here anyway. This is another example of why fans and other businesses need to be extra careful when using names in commerce which may be owned by other parties, as doing so can tank a successful business if a lawsuit happens like this one. And for goodness sake, always always always respect the rights of or design around an IP owner who refuses a license.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, October 13, 2016
Legal Geek No. 87: Cards Against Humanity turns against counterfeiters
Welcome back to Legal Geek. This week, we look at a recent lawsuit filed by the makers of the Cards Against Humanity game and the incorrect original news stories about the conflict.
https://archive.org/details/LegalGeekEp87
News reports broke a couple weeks ago that the company that makes Cards Against Humanity, the party game for terrible people that has been a great selling sensation since 2009, sued a competitor in Missouri federal court for copyright and trademark infringement. The original news stories identified the non-authorized parody expansions sold under the name Crabs Adjust Humidity as the defendant, but it later turned out to be an entirely different company.
The real defendant is Skkye Enterprises, a business in Missouri which is allegedly selling knockoff counterfeit versions of the regular Cards Against Humanity game. This makes more sense than suing the makers of Crabs Adjust Humidity, although it makes the card game case a little less interesting that it would have been otherwise.
Crabs Adjust Humidity came up with their own cards and use their own type font, art styles, and collection of words, so the artistic, copyrightable protectable features covered by CAH's copyrights likely do not apply to those cards. But a pure copy of the same cards and fonts and styles like in these alleged counterfeits from Skkye Enterprises would more clearly be copyright infringement.
On the trademark side, Crabs Adjust Humidity is a clever change because it uses the same acronym initials as the CAH game while being substantially different. That, plus the different packaging with a lot of red coloring along with the traditional game's black and while coloring clearly distinguishes this product in the minds of consumers from CAH. However, the alleged counterfeits of Skkye Enterprises use the exact same packaging and product name in order to compete directly with genuine copies of Cards Against Humanity.
Thus, while CAH may have a good case against these counterfeiters, a similar lawsuit filed against the parody Crabs Adjust Humidity would not likely fare so well. Perhaps it's a good thing those initial news stories were wrong about the defendant in this case!
The Bottom Line is, when competing with or building on popular products or games, you need to be extra careful to avoid IP infringement. Even defending against such a lawsuit can make your business efforts not worth the fuss, if you do it wrong.
https://archive.org/details/LegalGeekEp87
News reports broke a couple weeks ago that the company that makes Cards Against Humanity, the party game for terrible people that has been a great selling sensation since 2009, sued a competitor in Missouri federal court for copyright and trademark infringement. The original news stories identified the non-authorized parody expansions sold under the name Crabs Adjust Humidity as the defendant, but it later turned out to be an entirely different company.
The real defendant is Skkye Enterprises, a business in Missouri which is allegedly selling knockoff counterfeit versions of the regular Cards Against Humanity game. This makes more sense than suing the makers of Crabs Adjust Humidity, although it makes the card game case a little less interesting that it would have been otherwise.
Crabs Adjust Humidity came up with their own cards and use their own type font, art styles, and collection of words, so the artistic, copyrightable protectable features covered by CAH's copyrights likely do not apply to those cards. But a pure copy of the same cards and fonts and styles like in these alleged counterfeits from Skkye Enterprises would more clearly be copyright infringement.
On the trademark side, Crabs Adjust Humidity is a clever change because it uses the same acronym initials as the CAH game while being substantially different. That, plus the different packaging with a lot of red coloring along with the traditional game's black and while coloring clearly distinguishes this product in the minds of consumers from CAH. However, the alleged counterfeits of Skkye Enterprises use the exact same packaging and product name in order to compete directly with genuine copies of Cards Against Humanity.
Thus, while CAH may have a good case against these counterfeiters, a similar lawsuit filed against the parody Crabs Adjust Humidity would not likely fare so well. Perhaps it's a good thing those initial news stories were wrong about the defendant in this case!
The Bottom Line is, when competing with or building on popular products or games, you need to be extra careful to avoid IP infringement. Even defending against such a lawsuit can make your business efforts not worth the fuss, if you do it wrong.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, October 7, 2016
Legal Geek No. 86: The Walking Dead and Business Self-Dealings
Welcome back to Legal Geek. This week, we review the lawsuit that TV network AMC is facing from an original showrunner of The Walking Dead.
https://archive.org/details/LegalGeekEp86
But before we dive into the fate of Negan and Lucille's wrath, I wanted to let this audience know that if you like this segment, I appeared on a recent episode of The Geek All Stars podcast with Dan the board game man on TMS PM. In the second half of that show, we discuss some interesting cases affecting board game companies and designers in longer form than I can here, so check it out if you are nerds like us.
That Geek All Stars discussion includes the recent Yarrington-Schlashinger dispute over a business deal gone bad in the board game industry, allegedly due to one business partner using his companies to self-deal with one another and take all the profits to himself. Which is interesting because it is very similar to this case about...[TWD theme].
Indeed, the former showrunner of The Walking Dead alleges that at least $280 million dollars has been fleeced from him largely as a result of self-dealing among AMC affiliates. To this end, he argues to a New York court that one affiliate of AMC produced the show and then licensed it at cut rates to another AMC affiliate, which avoids having the profits from the licensing which he shares in go to him, while all the revenue generated from the popular show stays with AMC and its affiliate companies. AMC obviously disagrees with this position.
It will be some time before we see this play out in front of a jury, as the New York judge hearing this case apparently does not have any jury trial openings even available until 2018. However, just like the zombie walkers in the show, AMC will have to dodge this threat in order to keep the high amount of profits it has made off this ongoing show and property.
The Bottom Line is, a lesson that is always learned from business deals gone bad is to get the proper protections in writing when making contracts setting up companies and business deals. If a minimum license fee or some other oversight or protection were built into the deal for producing and distributing The Walking Dead, then this dispute may never have seen the light of day, let alone waste time and money in court. Great foresight is always key in doing business and making deals.
https://archive.org/details/LegalGeekEp86
But before we dive into the fate of Negan and Lucille's wrath, I wanted to let this audience know that if you like this segment, I appeared on a recent episode of The Geek All Stars podcast with Dan the board game man on TMS PM. In the second half of that show, we discuss some interesting cases affecting board game companies and designers in longer form than I can here, so check it out if you are nerds like us.
That Geek All Stars discussion includes the recent Yarrington-Schlashinger dispute over a business deal gone bad in the board game industry, allegedly due to one business partner using his companies to self-deal with one another and take all the profits to himself. Which is interesting because it is very similar to this case about...[TWD theme].
Indeed, the former showrunner of The Walking Dead alleges that at least $280 million dollars has been fleeced from him largely as a result of self-dealing among AMC affiliates. To this end, he argues to a New York court that one affiliate of AMC produced the show and then licensed it at cut rates to another AMC affiliate, which avoids having the profits from the licensing which he shares in go to him, while all the revenue generated from the popular show stays with AMC and its affiliate companies. AMC obviously disagrees with this position.
It will be some time before we see this play out in front of a jury, as the New York judge hearing this case apparently does not have any jury trial openings even available until 2018. However, just like the zombie walkers in the show, AMC will have to dodge this threat in order to keep the high amount of profits it has made off this ongoing show and property.
The Bottom Line is, a lesson that is always learned from business deals gone bad is to get the proper protections in writing when making contracts setting up companies and business deals. If a minimum license fee or some other oversight or protection were built into the deal for producing and distributing The Walking Dead, then this dispute may never have seen the light of day, let alone waste time and money in court. Great foresight is always key in doing business and making deals.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, September 29, 2016
Legal Geek No. 85: Activision Blizzard wins some and loses some in Patent Law
Welcome back to Legal Geek. This week, we review some recent patent cases for one of our favorite game developers Activision Blizzard to see how the Warcraft is going in the patent world for them.
https://archive.org/details/LegalGeekEp85
At the beginning of this month, two decisions came down from judges in patent disputes involving Activision Blizzard.
In the first case, Activision is being sued along with other defendants for allegedly infringing 6 patents from a company called Acceleration Bay. The patents cover technology that interacts with broadcast channels to allow players to connect and communicate in certain ways for multiplayer gaming experiences.
Acceleration Bay initially filed their lawsuit in Delaware, where Activision and others are incorporated. During a break in that lawsuit given by the Delaware court to fix defects in the initial Complaint, Activision filed what is called a Declaratory Judgment action in California trying to move the dispute over the patents and their validity to their home jurisdiction courts. However, the California judge dismissed the case because Activision's incorporation in Delaware makes that a valid place for the company to have to defend against this lawsuit. In the words of the court, Activision cannot have its cake by incorporating there and eat it too by forcing litigation against them out of Delaware to a more convenient home jurisdiction of California.
These battles over where a case is litigated are typical, and it may not make a difference depending on how the merits of this patent infringement claim come out in the future. Still, it's a loss for Activision.
Better news came in the second case, where Blizzard is being sued with some other defendants for infringing a patent owned by Parallel Networks for game downloader software. Battle.net was specifically in the crosshairs as a possible infringement of patent claims covering a downloader program that reassigns which blocks of data the downloader receives based on demand.
However, this case did not even make it to a jury, as the Delaware judge in this case decided on summary judgment that no reasonable juror could find that Battle.net performs the claimed method of operation. Basically, the reallocation of blocks of data in the Parallel Networks patent cannot be equated with reordering how content is downloaded based on customer demand, which is how Battle.net works when multiple patches are available, according to the judge. It's a highly technical distinction, but it was sufficient to overcome this infringement case, at least until appeal.
The Bottom Line is, large companies like Activision Blizzard are inevitably tied up in IP litigation disputes at all times, and you inevitably win some and lose some in those battles. Even through these two decisions went opposite ways, a loss in a jurisdiction battle is much less important than the dismissal of the Parallel Networks infringement case. So, all in all, September was a good month for Activision Blizzard in the legal landscape.
https://archive.org/details/LegalGeekEp85
At the beginning of this month, two decisions came down from judges in patent disputes involving Activision Blizzard.
In the first case, Activision is being sued along with other defendants for allegedly infringing 6 patents from a company called Acceleration Bay. The patents cover technology that interacts with broadcast channels to allow players to connect and communicate in certain ways for multiplayer gaming experiences.
Acceleration Bay initially filed their lawsuit in Delaware, where Activision and others are incorporated. During a break in that lawsuit given by the Delaware court to fix defects in the initial Complaint, Activision filed what is called a Declaratory Judgment action in California trying to move the dispute over the patents and their validity to their home jurisdiction courts. However, the California judge dismissed the case because Activision's incorporation in Delaware makes that a valid place for the company to have to defend against this lawsuit. In the words of the court, Activision cannot have its cake by incorporating there and eat it too by forcing litigation against them out of Delaware to a more convenient home jurisdiction of California.
These battles over where a case is litigated are typical, and it may not make a difference depending on how the merits of this patent infringement claim come out in the future. Still, it's a loss for Activision.
Better news came in the second case, where Blizzard is being sued with some other defendants for infringing a patent owned by Parallel Networks for game downloader software. Battle.net was specifically in the crosshairs as a possible infringement of patent claims covering a downloader program that reassigns which blocks of data the downloader receives based on demand.
However, this case did not even make it to a jury, as the Delaware judge in this case decided on summary judgment that no reasonable juror could find that Battle.net performs the claimed method of operation. Basically, the reallocation of blocks of data in the Parallel Networks patent cannot be equated with reordering how content is downloaded based on customer demand, which is how Battle.net works when multiple patches are available, according to the judge. It's a highly technical distinction, but it was sufficient to overcome this infringement case, at least until appeal.
The Bottom Line is, large companies like Activision Blizzard are inevitably tied up in IP litigation disputes at all times, and you inevitably win some and lose some in those battles. Even through these two decisions went opposite ways, a loss in a jurisdiction battle is much less important than the dismissal of the Parallel Networks infringement case. So, all in all, September was a good month for Activision Blizzard in the legal landscape.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, September 22, 2016
Legal Geek No. 84: Print Cartridges and Controlling the Re-use of Commercial Goods
Welcome back to Legal Geek. This week, we take a look at the printer industry and the many ways it is battling for the right to control re-use of commercial goods, specifically the print cartridges which often must be replaced or refilled with more ink.
https://archive.org/details/LegalGeekEp84
A news story broke last week that HP used a firmware software update on their popular printer lines to enact a time bomb for remanufactured unauthorized cartridges. In short, as of September 13, the HP printers put up an error message which prevented further use of any unauthorized cartridge. In this regard, HP has taken a step beyond the typical of just displaying a warning by actually preventing use of remanufactured cartridges that do not come from HP itself.
Granted, cartridge remanufacturers can reprogram their control chips to avoid this error, but that will take time, and in the meantime, HP will hold their printer customers hostage to buying cartridges from them. It's a strong-handed play to protect HP's most lucrative revenue stream, and one which will probably find some consumer pushback despite being effective.
However, the HP approach is just one small part of a larger battle in this industry between these printer companies and their competitors in the cartridge industry. The most notable battle is in the courts is potentially heading to the Supreme Court between Lexmark and Impression Products, a company that recycles and re-sells print cartridges.
Here are the important facts: Lexmark sells regular cartridges at full prices with no restrictions on re-sale or re-use, and also "return program" cartridges at reduced prices in return for an agreement for the user to return the cartridges to Lexmark when empty. Impression buys used genuine cartridges that Lexmark sold to foreign customers and then refilled them for re-sale in the U.S.. Lexmark does not like this, so their legal team filed for patent infringement against Impression. These facts have led to some interesting patent law arguments.
First, Impression has argued that the original sale of the cartridges by Lexmark in foreign countries invokes the patent exhaustion doctrine and thus prevents Lexmark from preventing re-sale of those cartridges in the U.S. because they already benefitted from the first sale. This type of argument won a Supreme Court copyright case a couple years ago in the context of textbook re-sales, but it is contrary to prior patent case law. The Federal Circuit Court of Appeals declined to overrule that precedent, which means Lexmark can pursue Impression for patent infringement despite having sold these cartridges abroad already.
Second, Impression has argued that the sale of a patented cartridge with restrictions on re-sale also invokes the patent exhaustion doctrine. However, Impression is trying to overturn 25-year old patent case law on this point designed to protect the sale of licenses to use instead of complete sales, and the Federal Circuit also declined to overrule those old cases. Thus, Lexmark is not subject to patent exhaustion just because it puts restrictions on some of its "return program" sales of patented cartridges.
The differences between patent exhaustion law and copyright law may be enough for the Supreme Court to jump in and give the final word on this issue, even though Lexmark is winning for now.
The Bottom Line is, when companies need to protect a primary revenue stream like print cartridges for printer manufacturers, they will go to great legal and technical lengths to save that future money. While this may put product manufacturers and patent holders at odds with their consumers in some sense, consumers can help regulate any unfair business practices by doing business with those who follow more fair practices. That's the beauty of market competition, and we will see if it works in the case of HP, Lexmark, and this industry over time.
(Post-notes, not for audio) - Thanks to Brian Tobey and others on Twitter who have recommended the Lexmark case for this segment over the past few months. A shout out to code-wow on the Current Geek subreddit as well for bringing the HP news to our attention.
https://archive.org/details/LegalGeekEp84
A news story broke last week that HP used a firmware software update on their popular printer lines to enact a time bomb for remanufactured unauthorized cartridges. In short, as of September 13, the HP printers put up an error message which prevented further use of any unauthorized cartridge. In this regard, HP has taken a step beyond the typical of just displaying a warning by actually preventing use of remanufactured cartridges that do not come from HP itself.
Granted, cartridge remanufacturers can reprogram their control chips to avoid this error, but that will take time, and in the meantime, HP will hold their printer customers hostage to buying cartridges from them. It's a strong-handed play to protect HP's most lucrative revenue stream, and one which will probably find some consumer pushback despite being effective.
However, the HP approach is just one small part of a larger battle in this industry between these printer companies and their competitors in the cartridge industry. The most notable battle is in the courts is potentially heading to the Supreme Court between Lexmark and Impression Products, a company that recycles and re-sells print cartridges.
Here are the important facts: Lexmark sells regular cartridges at full prices with no restrictions on re-sale or re-use, and also "return program" cartridges at reduced prices in return for an agreement for the user to return the cartridges to Lexmark when empty. Impression buys used genuine cartridges that Lexmark sold to foreign customers and then refilled them for re-sale in the U.S.. Lexmark does not like this, so their legal team filed for patent infringement against Impression. These facts have led to some interesting patent law arguments.
First, Impression has argued that the original sale of the cartridges by Lexmark in foreign countries invokes the patent exhaustion doctrine and thus prevents Lexmark from preventing re-sale of those cartridges in the U.S. because they already benefitted from the first sale. This type of argument won a Supreme Court copyright case a couple years ago in the context of textbook re-sales, but it is contrary to prior patent case law. The Federal Circuit Court of Appeals declined to overrule that precedent, which means Lexmark can pursue Impression for patent infringement despite having sold these cartridges abroad already.
Second, Impression has argued that the sale of a patented cartridge with restrictions on re-sale also invokes the patent exhaustion doctrine. However, Impression is trying to overturn 25-year old patent case law on this point designed to protect the sale of licenses to use instead of complete sales, and the Federal Circuit also declined to overrule those old cases. Thus, Lexmark is not subject to patent exhaustion just because it puts restrictions on some of its "return program" sales of patented cartridges.
The differences between patent exhaustion law and copyright law may be enough for the Supreme Court to jump in and give the final word on this issue, even though Lexmark is winning for now.
The Bottom Line is, when companies need to protect a primary revenue stream like print cartridges for printer manufacturers, they will go to great legal and technical lengths to save that future money. While this may put product manufacturers and patent holders at odds with their consumers in some sense, consumers can help regulate any unfair business practices by doing business with those who follow more fair practices. That's the beauty of market competition, and we will see if it works in the case of HP, Lexmark, and this industry over time.
(Post-notes, not for audio) - Thanks to Brian Tobey and others on Twitter who have recommended the Lexmark case for this segment over the past few months. A shout out to code-wow on the Current Geek subreddit as well for bringing the HP news to our attention.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, August 18, 2016
Legal Geek No. 83: No Man's Sky and the Superformula Patents
Welcome back to Legal Geek. This week, we review the new hot game No Man's Sky and the potential patent infringement controversy facing developer Hello Games.
https://archive.org/details/LegalGeekEp83
After three years of development following an initial announcement in 2013, No Man's Sky finally hit store shelves in early August for players eager to play a unique and new space exploration experience. The novelty in No Man's Sky is that the universe that can be explored is procedurally generated by a system of rules and parameters that can allow over 18 quintillion different types of planets to be accessed. As such, this game approaches the infinite diversity in infinite combinations of the real galaxy more so than any other space exploration game before it.
The game has had mixed user and critic reviews, but there's no doubt it is a commercial success. However, one thing that almost delayed the game further may still be a huge concern for Hello Games, and that is a potential patent infringement lawsuit from a patent owner named Genicap Beheer from the Netherlands.
Genicap recently had a patent issued in April 2016, U.S. Patent No. 9,317,627, on a method and apparatus for creating timeless display of widely variable naturalistic scenery on an amusement device. This is the third in a series of patents dating to 2009, but this patent boils down to using a mathematical formula called the Superformula to make varying patterns and shapes which create simulated plants, landscapes, and the like over different times on an amusement device.
That sounds a lot like the procedural generation of planets and landscapes done in No Man's Sky, and indeed, there have been rumors and claims that Hello Games also used the same Superformula as is recited in Genicap's patent to make No Man's Sky. That would appear to be literal patent infringement.
But there's a catch. This is the type of software abstract idea patent that has been under incredible scrutiny at the Patent Office and courts over the past five years.
Under U.S. patent law, abstract ideas like mathematical formulas cannot be patented without the recitation of something more than just a generic computer implementing the formula. It appears that Genicap successfully argued that this "something more" was the limits of performing this process on an amusement device and separating these images over time to display widely varying natural scenery. That may be enough to avoid invalidation of the patent because it could be argued that this does not lock up the Superformula from use in all fields.
But it's no guarantee, as reasonable minds will differ on whether this is enough to meet the rules for adding enough substance to be able to claim an invention based heavily in an abstract idea like a math formula. That means Hello Games could be at risk of paying significant damages and fighting expensive patent litigation if Genicap wants to press the issue.
The Bottom Line is, there's no telling if Hello Games will actually be successfully sued for patent infringement, thanks to uncertainty in this part of patent law. On the bright side, No Man's Sky did finally get to gamers, so at least this patent issue has not stopped consumers from enjoying this innovative space exploration game.
https://archive.org/details/LegalGeekEp83
After three years of development following an initial announcement in 2013, No Man's Sky finally hit store shelves in early August for players eager to play a unique and new space exploration experience. The novelty in No Man's Sky is that the universe that can be explored is procedurally generated by a system of rules and parameters that can allow over 18 quintillion different types of planets to be accessed. As such, this game approaches the infinite diversity in infinite combinations of the real galaxy more so than any other space exploration game before it.
The game has had mixed user and critic reviews, but there's no doubt it is a commercial success. However, one thing that almost delayed the game further may still be a huge concern for Hello Games, and that is a potential patent infringement lawsuit from a patent owner named Genicap Beheer from the Netherlands.
Genicap recently had a patent issued in April 2016, U.S. Patent No. 9,317,627, on a method and apparatus for creating timeless display of widely variable naturalistic scenery on an amusement device. This is the third in a series of patents dating to 2009, but this patent boils down to using a mathematical formula called the Superformula to make varying patterns and shapes which create simulated plants, landscapes, and the like over different times on an amusement device.
That sounds a lot like the procedural generation of planets and landscapes done in No Man's Sky, and indeed, there have been rumors and claims that Hello Games also used the same Superformula as is recited in Genicap's patent to make No Man's Sky. That would appear to be literal patent infringement.
But there's a catch. This is the type of software abstract idea patent that has been under incredible scrutiny at the Patent Office and courts over the past five years.
Under U.S. patent law, abstract ideas like mathematical formulas cannot be patented without the recitation of something more than just a generic computer implementing the formula. It appears that Genicap successfully argued that this "something more" was the limits of performing this process on an amusement device and separating these images over time to display widely varying natural scenery. That may be enough to avoid invalidation of the patent because it could be argued that this does not lock up the Superformula from use in all fields.
But it's no guarantee, as reasonable minds will differ on whether this is enough to meet the rules for adding enough substance to be able to claim an invention based heavily in an abstract idea like a math formula. That means Hello Games could be at risk of paying significant damages and fighting expensive patent litigation if Genicap wants to press the issue.
The Bottom Line is, there's no telling if Hello Games will actually be successfully sued for patent infringement, thanks to uncertainty in this part of patent law. On the bright side, No Man's Sky did finally get to gamers, so at least this patent issue has not stopped consumers from enjoying this innovative space exploration game.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, August 11, 2016
Legal Geek No. 82: Fitness Trackers as Court Evidence
Welcome back to Legal Geek. This week, we look at an interesting case showing the risks and benefits associated with all the smart devices surrounding us in daily life, including FitBits and smart cars.
https://archive.org/details/LegalGeekEp82
A few weeks ago, a Florida woman had a rape claim undermined in court thanks to a fitness tracker she was wearing on the night she called police to report the incident. Although there was other evidence indicating nobody else was in the house where the woman claimed to be assaulted while sleeping, the smoking gun was the information from her FitBit, after she turned over the password to the device's data to the police.
Turns out, in the time period when the woman claimed the attack happened, the FitBit revealed that she was walking around the house instead of sleeping. Thus, while she may have gained plenty of helpful health information for herself with the FitBit, that same information undermined her story and led to some misdemeanor charges against her for the false claims.
With wearable technology on the rise, expect this type of story of fitness tracker court evidence to become more of the normal. Is this a good thing? It is for preventing false claims like in this rape case, and another similar case where internal data from a Tesla car contradicted claims of the car owner for products liability based on a false claim of the car accelerating on its own.
However, tracking devices can be a positive, like in a 2014 case where a fitness trainer provide a personal injury lawsuit that his FitBit proved lower exercise levels after an accident. That helped prove damages for lack of ability to effectively work.
Aside from questions of constitutional rights like those against self-incrimination, wearable tracking technology is on the rise to increase efficiency and track workers in fields like supermarkets and Amazon order fulfillment. That raises many labor law questions for employers who continue to track more and more information about employees. Unwarranted firings based on such data or unfair increased tracking of some employees over others are just the tip of the iceberg for these issues.
The Bottom Line is, just like all technologies, wearable trackers and other data collection devices may require new rules and standards that will take courts time to figure out. The data collection devices all around us certainly have the capability to make the justice system more accurate, but we again must be aware of the risks to privacy and to constitutional rights when we jump in feet first with new technologies.
https://archive.org/details/LegalGeekEp82
A few weeks ago, a Florida woman had a rape claim undermined in court thanks to a fitness tracker she was wearing on the night she called police to report the incident. Although there was other evidence indicating nobody else was in the house where the woman claimed to be assaulted while sleeping, the smoking gun was the information from her FitBit, after she turned over the password to the device's data to the police.
Turns out, in the time period when the woman claimed the attack happened, the FitBit revealed that she was walking around the house instead of sleeping. Thus, while she may have gained plenty of helpful health information for herself with the FitBit, that same information undermined her story and led to some misdemeanor charges against her for the false claims.
With wearable technology on the rise, expect this type of story of fitness tracker court evidence to become more of the normal. Is this a good thing? It is for preventing false claims like in this rape case, and another similar case where internal data from a Tesla car contradicted claims of the car owner for products liability based on a false claim of the car accelerating on its own.
However, tracking devices can be a positive, like in a 2014 case where a fitness trainer provide a personal injury lawsuit that his FitBit proved lower exercise levels after an accident. That helped prove damages for lack of ability to effectively work.
Aside from questions of constitutional rights like those against self-incrimination, wearable tracking technology is on the rise to increase efficiency and track workers in fields like supermarkets and Amazon order fulfillment. That raises many labor law questions for employers who continue to track more and more information about employees. Unwarranted firings based on such data or unfair increased tracking of some employees over others are just the tip of the iceberg for these issues.
The Bottom Line is, just like all technologies, wearable trackers and other data collection devices may require new rules and standards that will take courts time to figure out. The data collection devices all around us certainly have the capability to make the justice system more accurate, but we again must be aware of the risks to privacy and to constitutional rights when we jump in feet first with new technologies.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, July 28, 2016
Legal Geek No. 81: The CFAA Strikes Again, in Baseball
Welcome back to Legal Geek. This week, we return to the interesting Computer Fraud and Abuse Act law we took a deep dive into a couple weeks ago to look at a highly interesting recent application of the anti-hacking law in the context of professional baseball.
https://archive.org/details/LegalGeekEp81
Last week, the CFAA hit the news again because Chris Correa, a former scouting director of the St. Louis Cardinals, was convicted of hacking a competitor team's player personnel database, leading to a prison sentence of almost 4 years and over $275,000 of damages restitution. This was no case of password sharing, however.
Instead, the FBI found the following facts. Correa in 2013 and 2014 gained unauthorized access to the Houston Astros' databases by using a password similar to one used by a former Cardinals employee who had to turn over a company laptop and his password when he left to go work for the Astros in 2011. Ironically, the current general manager Jeff Luhnow is the only employee that would have had such access and also fits this profile, and he is the very person who informed reporters of the data breach in 2014.
From those facts, we can basically conclude that Luhnow used a similar or variant form of the same password for his Astros database access, and this was predictable enough for Correa to guess it based on the information turned over to him with the laptop in 2011. There's an important lesson to all people who change jobs, particularly to leave for competitors. Although hacking is a federal crime, re-using the same or similar passwords is absolutely, positively a terrible idea. It's just not worth the risk, so don't do it!
For example, despite the nearly $300,000 in restitution that will be paid by Correa, the Astros are estimated to have lost $1.7 million or more. A mistake of that magnitude could easily cost a guy like Luhnow his job, and it's all about not sufficiently changing passwords when you change jobs.
This case also implicates the discussion of broad vs. narrow interpretation of the catch all provision of the CFAA guarding any protected computer acting in interstate commerce from unauthorized access. Certainly protecting major league baseball team databases is within a broad view of this catch all, but this is also clearly hacking to cause serious financial detriment. That activity falls directly in the scope of what the law is supposed to stop.
The Bottom Line is, there will continue to be concerns about how broad the CFAA will be applied based on big cases like this baseball one, especially when there are other mechanisms available like Major League Baseball rules in this case to govern such bad conduct. However, unlike the Nosal case, this outcome is not quite so broad or troubling. Let's hope for well-reasoned applications of this law in the future.
Oh, and change your darn passwords already.
------------------------------------
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
https://archive.org/details/LegalGeekEp81
Last week, the CFAA hit the news again because Chris Correa, a former scouting director of the St. Louis Cardinals, was convicted of hacking a competitor team's player personnel database, leading to a prison sentence of almost 4 years and over $275,000 of damages restitution. This was no case of password sharing, however.
Instead, the FBI found the following facts. Correa in 2013 and 2014 gained unauthorized access to the Houston Astros' databases by using a password similar to one used by a former Cardinals employee who had to turn over a company laptop and his password when he left to go work for the Astros in 2011. Ironically, the current general manager Jeff Luhnow is the only employee that would have had such access and also fits this profile, and he is the very person who informed reporters of the data breach in 2014.
From those facts, we can basically conclude that Luhnow used a similar or variant form of the same password for his Astros database access, and this was predictable enough for Correa to guess it based on the information turned over to him with the laptop in 2011. There's an important lesson to all people who change jobs, particularly to leave for competitors. Although hacking is a federal crime, re-using the same or similar passwords is absolutely, positively a terrible idea. It's just not worth the risk, so don't do it!
For example, despite the nearly $300,000 in restitution that will be paid by Correa, the Astros are estimated to have lost $1.7 million or more. A mistake of that magnitude could easily cost a guy like Luhnow his job, and it's all about not sufficiently changing passwords when you change jobs.
This case also implicates the discussion of broad vs. narrow interpretation of the catch all provision of the CFAA guarding any protected computer acting in interstate commerce from unauthorized access. Certainly protecting major league baseball team databases is within a broad view of this catch all, but this is also clearly hacking to cause serious financial detriment. That activity falls directly in the scope of what the law is supposed to stop.
The Bottom Line is, there will continue to be concerns about how broad the CFAA will be applied based on big cases like this baseball one, especially when there are other mechanisms available like Major League Baseball rules in this case to govern such bad conduct. However, unlike the Nosal case, this outcome is not quite so broad or troubling. Let's hope for well-reasoned applications of this law in the future.
Oh, and change your darn passwords already.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
Friday, July 22, 2016
Legal Geek No. 80: Pokemon Go and a Myriad of Legal Issues
Welcome back to Legal Geek. This week, we join the Pokemon Go craze of the past few weeks with a brief look at all the interesting legal questions the popular application and its certain knock-off competitors will raise.
https://archive.org/details/LegalGeekEp80
The first legal concern of Pokemon Go has largely been dealt with by the developer, that being privacy settings which were way more than necessary for running the software. Originally access to your entire Google account had to be granted to play on some platforms, and that would raise serious potential liability concerns for the company maintaining and accessing that data. However, this is one issue that played out quickly with a settings fix.
There's already videos and stories of players being transfixed in their phones and walking into roads or other dangerous situations. That raises a question of whether there could be any legal liability for putting digital Pokemon in places that lure people into dangerous areas. The risks get even worse in different contexts like playing while driving. The game's terms of service disclaim all liability for such things, but would it stand up in court? That's an open question.
Another issue is placement of Pokemon or gyms in the locations of private property and businesses. A property owner could hypothetically argue that this creates an attractive nuisance by drawing unwanted people to the property, and it also negatively affects the owner's interests in exclusive possession of the property. Can real property rights be used to claim property rights in augmented reality digital elements placed on the property by a third party like this game developer? I expect someone will try such claims in court if annoyed enough.
There's also the problem of potential competition for public spaces between Pokemon Go users who may be congregating at a digital gym and others who want to use the public property like a park for other purposes it was designed for. It would be interesting to see if the government could constitutionally limit Pokemon Go in certain public properties. Some prison operators certainly think so, but that's a slightly different context.
The Bottom Line is, the law always takes time to catch up with technology fads and movements, as discussed for the CFAA last week. But Pokemon Go raises far more interesting legal questions potentially than you might originally think when you begin playing the game.
Now excuse me while I go catch this Charmander...or maybe it's Justin Robert Young, who knows?
------------------------------------
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
https://archive.org/details/LegalGeekEp80
The first legal concern of Pokemon Go has largely been dealt with by the developer, that being privacy settings which were way more than necessary for running the software. Originally access to your entire Google account had to be granted to play on some platforms, and that would raise serious potential liability concerns for the company maintaining and accessing that data. However, this is one issue that played out quickly with a settings fix.
There's already videos and stories of players being transfixed in their phones and walking into roads or other dangerous situations. That raises a question of whether there could be any legal liability for putting digital Pokemon in places that lure people into dangerous areas. The risks get even worse in different contexts like playing while driving. The game's terms of service disclaim all liability for such things, but would it stand up in court? That's an open question.
Another issue is placement of Pokemon or gyms in the locations of private property and businesses. A property owner could hypothetically argue that this creates an attractive nuisance by drawing unwanted people to the property, and it also negatively affects the owner's interests in exclusive possession of the property. Can real property rights be used to claim property rights in augmented reality digital elements placed on the property by a third party like this game developer? I expect someone will try such claims in court if annoyed enough.
There's also the problem of potential competition for public spaces between Pokemon Go users who may be congregating at a digital gym and others who want to use the public property like a park for other purposes it was designed for. It would be interesting to see if the government could constitutionally limit Pokemon Go in certain public properties. Some prison operators certainly think so, but that's a slightly different context.
The Bottom Line is, the law always takes time to catch up with technology fads and movements, as discussed for the CFAA last week. But Pokemon Go raises far more interesting legal questions potentially than you might originally think when you begin playing the game.
Now excuse me while I go catch this Charmander...or maybe it's Justin Robert Young, who knows?
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
Friday, July 15, 2016
Legal Geek No. 79: Computer Fraud and Abuse Act in the Crosshairs
Welcome back to Legal Geek. This week, we cover the new scrutiny placed on the Computer Fraud and Abuse Act after that federal criminal law was interpreted broadly in a 9th Circuit Court of Appeals decision last week.
https://archive.org/details/LegalGeekEp79
The Computer Fraud and Abuse Act was written in 1986 to criminalize hacking activities with respect to government computers and computers of financial institutions. The law also has a catch-all provision added in 2008 that also prohibits access "without authorization" or "by exceeding authorized access" to any protected computer which is used in interstate commerce, which can be read as anything connected to the Internet.
This amendment, while made by Congress in efforts to solidify the anti-hacking law, have created questions of how broadly this law should be interpreted. If broadly interpreted, seemingly innocuous things like breaking a social network's code of conduct or letting someone use your Netflix password would be a federal felony, while if narrowly interpreted, such conduct would fall well outside the scope of this law. The 9th Circuit's decision this week in U.S. v. Nosal illustrates both sides of the argument well.
The facts in Nosal are pretty simple. Nosal left an executive recruiting firm to open his own competitor firm, and over time, he took a couple of former co-workers and his assistant from the original company as well. To get a leg up on leads and information, Nosal instructed the former co-workers while they still had access to pull confidential lead information from the old company's servers and give it to his new company. Then after those co-workers also left and had their own access revoked, Nosal had his former assistant give her password to them and they accessed similar information again to deliver it to the new firm. The former assistant left for the new firm shortly thereafter.
Clearly these are bad actors in the Nosal case, so why is this case such a fuss? This is actually the second time this case and set of facts has been decided by the 9th Circuit. The first time, back in 2012, the full en banc panel considered specifically the actions of the former co-workers who downloaded and transferred confidential data and gave it to Nosal while they were still employed by the original company and still had full access to the information. That panel determined that these employees did have access, so the conduct was clearly not "without authorization" and it also was not deemed "exceeding authorized access" because they did have full access to the information. Certainly the transfer to Nosal broke employee codes and therefore violated contract or trade secret laws, but not a law designed to stop outside or inside hacking.
Yet just four years later, a smaller 3-judge panel of the 9th Circuit essentially reversed this decision based solely on a small change in the facts considered. Specifically, this year the Court focused on the activities of the co-workers after they had been fired with access revoked, but they used the assistant's authorized password anyway to access the database and pull more information from the original company. Instead of focusing on the fact that this was just another type of password sharing and essentially the same access by the assistant, the new panel decided to call this slightly altered conduct as clearly falling under the "without authorization" prong of the law, generalizing this story as a hacking scheme with an inside man. A small fact difference totally flipped the outcome.
However, as the dissent of the current decision notes, this decision could be extended to apply to all password sharing, which would mean giving your buddy an HBO GO password is a felony. Or other things like companies forcing employees out for minor violations of using work computers for personal tasks like e-mail during work hours, by threatening to turn them over to the FBI.
This case is not necessarily over, as a full en banc panel of the 9th Circuit could go back and reverse this new decision to make it more consistent with the first one which narrowly interpreted the scope of the CFAA. Moreover, as the 2nd and 4th Circuits have sided with the narrow interpretation of the law while three other Circuits have sided with the broad interpretation, this is a classic case of circuit split of opinion, which usually brings swift action by the Supreme Court to settle an issue. So stay tuned for further developments.
The Bottom Line is, the cries that sharing passwords for consumer things like streaming services is now a felony is not exactly true, as that type of fact scenario has not been applied to this law yet. Even though it can be painful to watch the judicial branch labor over how to interpret what laws Congress enacts when trying to keep up with technology, this is how the process is supposed to work. With so many other potential laws like contract, tort, and trade secret laws being available to stop smaller breaches like password sharing, and the original intent to stop hacking with the CFAA, it seems likely that the eventual solution of the judiciary will be a narrow interpretation of this law. It just takes a while and some bumps on the road to get there.
------------------------------------
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
https://archive.org/details/LegalGeekEp79
The Computer Fraud and Abuse Act was written in 1986 to criminalize hacking activities with respect to government computers and computers of financial institutions. The law also has a catch-all provision added in 2008 that also prohibits access "without authorization" or "by exceeding authorized access" to any protected computer which is used in interstate commerce, which can be read as anything connected to the Internet.
This amendment, while made by Congress in efforts to solidify the anti-hacking law, have created questions of how broadly this law should be interpreted. If broadly interpreted, seemingly innocuous things like breaking a social network's code of conduct or letting someone use your Netflix password would be a federal felony, while if narrowly interpreted, such conduct would fall well outside the scope of this law. The 9th Circuit's decision this week in U.S. v. Nosal illustrates both sides of the argument well.
The facts in Nosal are pretty simple. Nosal left an executive recruiting firm to open his own competitor firm, and over time, he took a couple of former co-workers and his assistant from the original company as well. To get a leg up on leads and information, Nosal instructed the former co-workers while they still had access to pull confidential lead information from the old company's servers and give it to his new company. Then after those co-workers also left and had their own access revoked, Nosal had his former assistant give her password to them and they accessed similar information again to deliver it to the new firm. The former assistant left for the new firm shortly thereafter.
Clearly these are bad actors in the Nosal case, so why is this case such a fuss? This is actually the second time this case and set of facts has been decided by the 9th Circuit. The first time, back in 2012, the full en banc panel considered specifically the actions of the former co-workers who downloaded and transferred confidential data and gave it to Nosal while they were still employed by the original company and still had full access to the information. That panel determined that these employees did have access, so the conduct was clearly not "without authorization" and it also was not deemed "exceeding authorized access" because they did have full access to the information. Certainly the transfer to Nosal broke employee codes and therefore violated contract or trade secret laws, but not a law designed to stop outside or inside hacking.
Yet just four years later, a smaller 3-judge panel of the 9th Circuit essentially reversed this decision based solely on a small change in the facts considered. Specifically, this year the Court focused on the activities of the co-workers after they had been fired with access revoked, but they used the assistant's authorized password anyway to access the database and pull more information from the original company. Instead of focusing on the fact that this was just another type of password sharing and essentially the same access by the assistant, the new panel decided to call this slightly altered conduct as clearly falling under the "without authorization" prong of the law, generalizing this story as a hacking scheme with an inside man. A small fact difference totally flipped the outcome.
However, as the dissent of the current decision notes, this decision could be extended to apply to all password sharing, which would mean giving your buddy an HBO GO password is a felony. Or other things like companies forcing employees out for minor violations of using work computers for personal tasks like e-mail during work hours, by threatening to turn them over to the FBI.
This case is not necessarily over, as a full en banc panel of the 9th Circuit could go back and reverse this new decision to make it more consistent with the first one which narrowly interpreted the scope of the CFAA. Moreover, as the 2nd and 4th Circuits have sided with the narrow interpretation of the law while three other Circuits have sided with the broad interpretation, this is a classic case of circuit split of opinion, which usually brings swift action by the Supreme Court to settle an issue. So stay tuned for further developments.
The Bottom Line is, the cries that sharing passwords for consumer things like streaming services is now a felony is not exactly true, as that type of fact scenario has not been applied to this law yet. Even though it can be painful to watch the judicial branch labor over how to interpret what laws Congress enacts when trying to keep up with technology, this is how the process is supposed to work. With so many other potential laws like contract, tort, and trade secret laws being available to stop smaller breaches like password sharing, and the original intent to stop hacking with the CFAA, it seems likely that the eventual solution of the judiciary will be a narrow interpretation of this law. It just takes a while and some bumps on the road to get there.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
Friday, July 8, 2016
Legal Geek No. 78: Supreme Court Closes Term with Abortion Caselaw Update
Welcome back to Legal Geek. Last time, we ran quickly through a summary of many of the significant Supreme Court decisions of this term. This week, we dive deep into arguably the biggest decision of the term from the Supreme Court in June, which was Whole Women's Health v. Cole, also known as the Texas Abortion Case.
https://archive.org/details/LegalGeekEp78
This year's Supreme Court term has been most notably defined by the absence of Justice Scalia and important decisions on immigration policy and affirmative action. Indeed, Scalia's absence made a risk for a 4-4 split in the Texas Abortion Case, which would've upheld the decision of the 5th Circuit that a recent Texas law restricting abortion clinics was constitutional.
However, that did not occur as the court split 5-3 along normal ideological lines, with swing vote Justice Kennedy joining the majority just as he did back in 1992 in the landmark Planned Parenthood v Casey abortion decision. Ironically, he's the only majority vote from the Casey decision still present at the Court today.
Under the rules of Roe v Wade in the 70s and Casey, the standard applied for abortion-restrictive state laws is that if a state law places a substantial obstacle or undue burden in the path of a woman's right to access an abortion and exercise her rights to do so, such a law is unconstitutional. This is true even when the law promotes a legitimate state interest such as women's health and safety, which is also required under the constitutional analysis.
Turning to the 2013 Texas law, two new requirements were applied: first, that a doctor performing an abortion at an abortion clinic had to have admitting privileges at a hospital within 50 miles of the clinic; second, that a clinic must meet the same standards as ambulatory surgery centers. Neither of these requirements survived constitutional scrutiny in the majority's decision, written by Justice Breyer.
With respect to the admitting privileges requirement, which had already gone into effect, the Court found that this did not advance the interest of women's health in any way. Furthermore, it put an undue burden on access to abortion based mostly on the number of clinics in Texas being cut roughly in half from 42 to 19 after this requirement was enacted.
With respect to the ambulatory surgery center standards requirement, the Court again found that this did not advance the interest in health but was instead targeted at this sole procedure, as other more dangerous procedures such as child birth, colonoscopies, and liposuction were not also subject to such requirements. If this part of the law had gone into effect, the number of clinics would have been halved again to about 7 or 8, only in 5 major metropolitan areas. That was sufficient evidence to again let the Court conclude that this requirement created an undue burden on the right to choose.
With both requirements failing the Casey test, the Texas law was stricken as unconstitutional. The dissents from Justices Alito and Thomas focused more on legal procedural issues like res judicata and severability clauses, rather than the Casey test, which makes this decision less contested and split compared to last year's gay marriage decision and dissents.
------------------------------------
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
https://archive.org/details/LegalGeekEp78
This year's Supreme Court term has been most notably defined by the absence of Justice Scalia and important decisions on immigration policy and affirmative action. Indeed, Scalia's absence made a risk for a 4-4 split in the Texas Abortion Case, which would've upheld the decision of the 5th Circuit that a recent Texas law restricting abortion clinics was constitutional.
However, that did not occur as the court split 5-3 along normal ideological lines, with swing vote Justice Kennedy joining the majority just as he did back in 1992 in the landmark Planned Parenthood v Casey abortion decision. Ironically, he's the only majority vote from the Casey decision still present at the Court today.
Under the rules of Roe v Wade in the 70s and Casey, the standard applied for abortion-restrictive state laws is that if a state law places a substantial obstacle or undue burden in the path of a woman's right to access an abortion and exercise her rights to do so, such a law is unconstitutional. This is true even when the law promotes a legitimate state interest such as women's health and safety, which is also required under the constitutional analysis.
Turning to the 2013 Texas law, two new requirements were applied: first, that a doctor performing an abortion at an abortion clinic had to have admitting privileges at a hospital within 50 miles of the clinic; second, that a clinic must meet the same standards as ambulatory surgery centers. Neither of these requirements survived constitutional scrutiny in the majority's decision, written by Justice Breyer.
With respect to the admitting privileges requirement, which had already gone into effect, the Court found that this did not advance the interest of women's health in any way. Furthermore, it put an undue burden on access to abortion based mostly on the number of clinics in Texas being cut roughly in half from 42 to 19 after this requirement was enacted.
With respect to the ambulatory surgery center standards requirement, the Court again found that this did not advance the interest in health but was instead targeted at this sole procedure, as other more dangerous procedures such as child birth, colonoscopies, and liposuction were not also subject to such requirements. If this part of the law had gone into effect, the number of clinics would have been halved again to about 7 or 8, only in 5 major metropolitan areas. That was sufficient evidence to again let the Court conclude that this requirement created an undue burden on the right to choose.
With both requirements failing the Casey test, the Texas law was stricken as unconstitutional. The dissents from Justices Alito and Thomas focused more on legal procedural issues like res judicata and severability clauses, rather than the Casey test, which makes this decision less contested and split compared to last year's gay marriage decision and dissents.
The Bottom Line is, this Court continues to strongly protect constitutional rights in a broad manner, with this possibly being the most significant abortion-related decision since Roe and Casey. By applying those prior tests as strongly as was done in this Texas Abortion Case, the woman's right to choose is on more solid ground than ever, being seemingly safe from any targeted legislative attack from a state. Perhaps this will cause states like Texas to drop the debate over abortion and move on to other social issues of our time.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
TEMPORARY CLOSER
If you will be at GenCon in Indianapolis in August, come check out my seminars on IP law and game design there, or message me on Twitter @BuckeyeFitzy and we can meet up for a drink or a game.
Friday, June 24, 2016
Legal Geek No. 77: Supreme Court Deadlock at End of 2016 Term
Welcome back to Legal Geek. This week, we take a look at some of the significant decisions being handed down this month by the Supreme Court in a quirky term with only 8 justices and plenty of gridlock.
https://archive.org/details/LegalGeekEp77
The final two or three weeks in June, you can always count on the most contentious decisions in the annual Supreme Court term to finally be decided before the Justices take a summer recess in July and August. As we discussed back in February, the death of Antonin Scalia left a hole on the Court which allows for 4-4 split decisions and gridlock, as such cases end up being mere affirmances of whatever the lower court decision was. Perhaps thankfully, there are no cases this term quite at the level of importance of last year's Obergefell gay marriage decision, or recent decisions on Obamacare and the second amendment.
https://archive.org/details/LegalGeekEp77
The final two or three weeks in June, you can always count on the most contentious decisions in the annual Supreme Court term to finally be decided before the Justices take a summer recess in July and August. As we discussed back in February, the death of Antonin Scalia left a hole on the Court which allows for 4-4 split decisions and gridlock, as such cases end up being mere affirmances of whatever the lower court decision was. Perhaps thankfully, there are no cases this term quite at the level of importance of last year's Obergefell gay marriage decision, or recent decisions on Obamacare and the second amendment.
The deadlock has not failed to appear, especially this week when two important cases were handed down with 4-4 decisions on the same day.
One of these was a victory for conservatives as a lower court decision blocking President Obama's executive actions to reform immigration by granting amnesty to several million illegal immigrants was upheld by the completely-split Court. That result means Obama will likely not be able to do anything in this field before his second term is finished in this regard, and immigration will remain a hot topic of the campaign, which could actually favor Donald Trump, surprisingly. Time will tell, however, as elections are not decided on one issue.
One of these was a victory for conservatives as a lower court decision blocking President Obama's executive actions to reform immigration by granting amnesty to several million illegal immigrants was upheld by the completely-split Court. That result means Obama will likely not be able to do anything in this field before his second term is finished in this regard, and immigration will remain a hot topic of the campaign, which could actually favor Donald Trump, surprisingly. Time will tell, however, as elections are not decided on one issue.
The other of these was a legal technicality case about whether an Indian tribal court can properly exercise jurisdiction over tort claims against non-tribe member defendants. The 4-4 split means that the tribal court maintains jurisdiction, as decided by the lower federal courts.
However, thanks to Justice Kagan being recused from the important affirmative action case regarding the University of Texas's admissions policies, the Court did get forced to a 4-3 decision. This decision favored more liberal thinking as race-conscious university admissions policies which are narrowly tailored to meet the strict scrutiny standard remain acceptable, just like in a case a decade ago focusing on Michigan Law School's admissions policies. In reality, this keeps affirmative action at the status quo it currently is, rather than severely curtailing it.
However, thanks to Justice Kagan being recused from the important affirmative action case regarding the University of Texas's admissions policies, the Court did get forced to a 4-3 decision. This decision favored more liberal thinking as race-conscious university admissions policies which are narrowly tailored to meet the strict scrutiny standard remain acceptable, just like in a case a decade ago focusing on Michigan Law School's admissions policies. In reality, this keeps affirmative action at the status quo it currently is, rather than severely curtailing it.
However, some late-term cases can still come to a decision, as proven by the three patent and copyright law cases decided this month along with the Fourth Amendment decision this week confirming that breathalyzer tests without a warrant are acceptable invasions of privacy under constitutional law in a suspected DUI situation, while blood tests continue to not be acceptable. So breathalyzer tests will remain an effective tool and deterrent to drinking and driving.
The Bottom Line is, even without any huge cases outside perhaps the affirmative action case, the issues presented to the Supreme Court are still very interesting and contentious. As a result, for those who enjoy watching the Court, this is basically an extended Christmas season. Enjoy the rest of the few decisions remaining, as we turn our attention back to presidential politics and who will finally fill Scalia's empty seat.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, June 10, 2016
Legal Geek No. 76: A Great Week for Google in the Courts, but What Does It Mean?
Welcome back to Legal Geek. This week, we review a great week in the courts for Google last week and what the bigger scale implications may be thanks to these decisions.
https://archive.org/details/LegalGeekEp76
Almost two weeks ago, Google had two big court decisions be handed down by juries in Delaware and in California on consecutive days.
Temporary Closer: Thanks for listening. If you enjoy this segment and will be coming to Origins Game Fair in Columbus Ohio in June, please message me on Twitter @BuckeyeFitzy and we can meet up. I'm also giving two seminars about game design and the law, feel free to check them out.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp76
Almost two weeks ago, Google had two big court decisions be handed down by juries in Delaware and in California on consecutive days.
The first was a patent infringement lawsuit in Delaware in which the jury found that Google's mapping technology used in the Google Earth application did not infringe a patent from the mid-90s from a German company that had developed a similar program called Terravision back then. Moreover, the jury found that the patent was invalid as well.
The claims in the patent at issue were all about how image resolution is handled when zooming in from a larger satellite image to a more detailed view of a specific area. Google was able to handle image resolution in a different manner that the jury determined was outside what the patent covered.
With the patent due to expire in 2016 anyway, this type of technology is becoming open to public use by other developers regardless of the invalidity decision. So while this is a big multi-million dollar win for Google and users of Google Earth, it pales in comparison to the other case decided in favor of Google.
That case in California was the latest in a long battle between Oracle and Google over whether Google's use of several elements of application programming interfaces or APIs from the Java programming language when making the mobile platform for Android was copyright infringement. Oracle sought damages of up to $8.8 billion dollars for Google's use of the pre-written computing instructions Oracle created to help programmers more easily write in Java!
This round of the long legal fight was limited to the question of whether Google's use of the APIs was protected as fair use. Any recent follower of this segment knows that this is the hotbed area of development in copyright law in the U.S., with more and more things becoming deemed fair use rather than copyright infringement.
Although fair use is a complicated test based on the facts, the jury here appears to have decided in favor of Google and fair use based on only a small amount of material being copied from Oracle's code and Google's transformative use of that code to make something new, a mobile phone platform.
This case could potentially have much bigger impact on the fair use doctrine because Oracle is going to appeal this to the Federal Circuit and to the Supreme Court, if necessary. This is precisely the type of case between two powerhouse companies and legal teams that could set the table for a big shift in the definition of fair use. Which would change copyright law and infringement forever. So stay tuned.
The Bottom Line is, Google's big wins are obviously good for them and users of these techs in the short term, but that copyright case could become one of the biggest in IP law history if it changes fair use rules and standards.
----------------------------------
----------------------------------
Temporary Closer: Thanks for listening. If you enjoy this segment and will be coming to Origins Game Fair in Columbus Ohio in June, please message me on Twitter @BuckeyeFitzy and we can meet up. I'm also giving two seminars about game design and the law, feel free to check them out.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, May 27, 2016
Legal Geek No. 75: The Patent Process and Game Designs
Welcome back to Legal Geek. This week, we take a look at a recent court decision which confirms how difficult it can be to patent some board and card game designs in the current patent climate in the U.S., and what the options are for creative game developers.
https://archive.org/details/LegalGeekEp75
Amanda and Ray Smith developed and tried to patent a new method of playing Blackjack, consisting of new rules mixed in with those well known for this gambling card game. The claims focused on implementing these game rules with physical playing cards were rejected by the U.S. Patent Office for not being eligible patentable subject matter according to rules clarified a couple years ago in the Supreme Court's Alice Corp. v. CLS Bank decision primarily focusing on software.
A few weeks ago, the Federal Circuit Court of Appeals upheld the decision of the Patent Office and its Appeal Board to reject these claims on playing a card game as patent-ineligible. What made this case interesting beyond the card game field was that this is the first time the appeals court confirmed that it will not pass judgment on the Patent Office's suggested subject matter eligibility guidelines published to help explain the standards to lawyers and to patent Examiners following the decision in Alice.
Although Examiners rely on this guidance heavily in applying a lot of rejections to patent claims in certain art units like the games art unit, this guidance is not actual rules promulgated by the Patent Office and thus the court does not consider them binding enough to provide any judgment thereof. For now, the Alice decision and the guidance on what is an unpatentable Abstract Idea will stand, leaving a lot of software patents and method patents in rough shape for gaining any traction towards allowance as an issued U.S. Patent.
Turning this back towards our favorite field of card and board games, does this signal the end of patents for game rules? Not necessarily.
The Federal Circuit explicitly acknowledged that some inventions in games could still meet the requirement of being something substantially more than just an Abstract Idea under the test set forth in the Alice decision. An example provided for card games would be those for conducting a game with a newly developed original deck of cards. That's not much comfort for those wanting to innovate with 52-card standard decks of cards, but it does offer some hope for a way out of patent eligibility rejections.
Another good sign is that the Smiths also had claims for performing the same game rules using a video game system, like a software app, and those were deemed allowable and patent eligible by the Patent Office. As many board and card games move to parallel release as apps and physical products, this means patent protection is still likely available for part of these ideas. Plus design patents can be used to cover very broad aspects of graphical user interfaces which may be used with video games, so there's a lot of protection still out there for game designers.
However, the Smith decision this year simply confirms that some tabletop game designs will simply fall victim to the rules becoming harsher across the board against method claims and software type claims in U.S. Patents.
The Bottom Line is, it's always been tough to patent game rules, and that is not changing anytime soon.
----------------------------------
Temporary Closer: Thanks for listening. If you enjoy this segment and will be coming to Origins Game Fair in Columbus Ohio in June, please message me on Twitter @BuckeyeFitzy and we can meet up. I'm also giving two seminars about game design and the law, feel free to check them out.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp75
Amanda and Ray Smith developed and tried to patent a new method of playing Blackjack, consisting of new rules mixed in with those well known for this gambling card game. The claims focused on implementing these game rules with physical playing cards were rejected by the U.S. Patent Office for not being eligible patentable subject matter according to rules clarified a couple years ago in the Supreme Court's Alice Corp. v. CLS Bank decision primarily focusing on software.
A few weeks ago, the Federal Circuit Court of Appeals upheld the decision of the Patent Office and its Appeal Board to reject these claims on playing a card game as patent-ineligible. What made this case interesting beyond the card game field was that this is the first time the appeals court confirmed that it will not pass judgment on the Patent Office's suggested subject matter eligibility guidelines published to help explain the standards to lawyers and to patent Examiners following the decision in Alice.
Although Examiners rely on this guidance heavily in applying a lot of rejections to patent claims in certain art units like the games art unit, this guidance is not actual rules promulgated by the Patent Office and thus the court does not consider them binding enough to provide any judgment thereof. For now, the Alice decision and the guidance on what is an unpatentable Abstract Idea will stand, leaving a lot of software patents and method patents in rough shape for gaining any traction towards allowance as an issued U.S. Patent.
Turning this back towards our favorite field of card and board games, does this signal the end of patents for game rules? Not necessarily.
The Federal Circuit explicitly acknowledged that some inventions in games could still meet the requirement of being something substantially more than just an Abstract Idea under the test set forth in the Alice decision. An example provided for card games would be those for conducting a game with a newly developed original deck of cards. That's not much comfort for those wanting to innovate with 52-card standard decks of cards, but it does offer some hope for a way out of patent eligibility rejections.
Another good sign is that the Smiths also had claims for performing the same game rules using a video game system, like a software app, and those were deemed allowable and patent eligible by the Patent Office. As many board and card games move to parallel release as apps and physical products, this means patent protection is still likely available for part of these ideas. Plus design patents can be used to cover very broad aspects of graphical user interfaces which may be used with video games, so there's a lot of protection still out there for game designers.
However, the Smith decision this year simply confirms that some tabletop game designs will simply fall victim to the rules becoming harsher across the board against method claims and software type claims in U.S. Patents.
The Bottom Line is, it's always been tough to patent game rules, and that is not changing anytime soon.
----------------------------------
Temporary Closer: Thanks for listening. If you enjoy this segment and will be coming to Origins Game Fair in Columbus Ohio in June, please message me on Twitter @BuckeyeFitzy and we can meet up. I'm also giving two seminars about game design and the law, feel free to check them out.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, May 20, 2016
Legal Geek No. 74: Trade Secrets step up to the "Big Kids Table" of IP
Welcome back to Legal Geek. This week, we take a look at the newly-signed Defend Trade Secrets Act federal law and how this is a big step towards harmonizing intellectual property as much as possible.
https://archive.org/details/LegalGeekEp74
Although President Obama and Congress have not pushed through the legislative gridlock much during his final months in office, which is typical for a lame duck president, one area of notable exception was federal regulation of trade secrets. The Defend Trade Secrets Act won widespread bipartisan support in both the House and the Senate, and had no opposition from the President as well. So what does this change, and is it a good thing?
First, a little background. A trade secret is confidential proprietary information which a company chooses to hold in secret rather than publicly disclosing for coverage by patent protection or the like. It covers any valuable commercial information which allows a business to hold an advantage over other competitor businesses without the same information. The most notable example is probably the formula for Coca-Cola. By keeping such information confidential, competitors cannot make the exact same product except by reverse engineering, and protection of the business asset can continue indefinitely, instead of for the limited times provided by other IP protection like patents.
Long known as the "4th major area of intellectual property," trade secrets were historically something that were only protected on the state level based on state laws. Unlike patent and copyright, which are mandated by a clause in the Constitution, trademarks and trade secrets are not a required function of the federal government. Nevertheless, just like the Lanham Act has long made trademarks protected on the federal level, now trade secrets will be also.
Similarly, while the federal government's Constitutional mandate for patents and copyrights preempts the States from legislating those items, trademarks and trade secrets will both have protection at the state level thanks to state laws and at the federal level thanks to Congress passing laws under the Commerce Clause of the Constitution. Thankfully, in the case of trade secrets, the state laws and the federal law do not differ by much in most circumstances.
However, one of the key benefits of the DTSA is harmonizing the various state laws, which mostly implemented a blueprint treatise called the Uniform Trade Secrets Act, but sometimes in slightly different ways. Allowing trade secret lawsuits into federal court allows for more predictable, nationwide case law to be developed on this subject. In addition, federal courts tend to be more well-versed at handling cross-state and international disputes which often arise in IP contexts. It is typically a net positive to have multiple venues available to handle a dispute, and that will now be the case for trade secrets.
The Bottom Line is, regardless of whether you support the idea of trade secret protection or IP law in general, having more uniformity and clarity of laws is a step in the right direction. The hope is that the DTSA can offer a fairer balance of employee rights in mobility to other jobs and employer rights in protecting confidential information and advantages. Time will tell if it serves this purpose, or becomes a contorted mess like some other areas of law.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp74
Although President Obama and Congress have not pushed through the legislative gridlock much during his final months in office, which is typical for a lame duck president, one area of notable exception was federal regulation of trade secrets. The Defend Trade Secrets Act won widespread bipartisan support in both the House and the Senate, and had no opposition from the President as well. So what does this change, and is it a good thing?
First, a little background. A trade secret is confidential proprietary information which a company chooses to hold in secret rather than publicly disclosing for coverage by patent protection or the like. It covers any valuable commercial information which allows a business to hold an advantage over other competitor businesses without the same information. The most notable example is probably the formula for Coca-Cola. By keeping such information confidential, competitors cannot make the exact same product except by reverse engineering, and protection of the business asset can continue indefinitely, instead of for the limited times provided by other IP protection like patents.
Long known as the "4th major area of intellectual property," trade secrets were historically something that were only protected on the state level based on state laws. Unlike patent and copyright, which are mandated by a clause in the Constitution, trademarks and trade secrets are not a required function of the federal government. Nevertheless, just like the Lanham Act has long made trademarks protected on the federal level, now trade secrets will be also.
Similarly, while the federal government's Constitutional mandate for patents and copyrights preempts the States from legislating those items, trademarks and trade secrets will both have protection at the state level thanks to state laws and at the federal level thanks to Congress passing laws under the Commerce Clause of the Constitution. Thankfully, in the case of trade secrets, the state laws and the federal law do not differ by much in most circumstances.
However, one of the key benefits of the DTSA is harmonizing the various state laws, which mostly implemented a blueprint treatise called the Uniform Trade Secrets Act, but sometimes in slightly different ways. Allowing trade secret lawsuits into federal court allows for more predictable, nationwide case law to be developed on this subject. In addition, federal courts tend to be more well-versed at handling cross-state and international disputes which often arise in IP contexts. It is typically a net positive to have multiple venues available to handle a dispute, and that will now be the case for trade secrets.
The Bottom Line is, regardless of whether you support the idea of trade secret protection or IP law in general, having more uniformity and clarity of laws is a step in the right direction. The hope is that the DTSA can offer a fairer balance of employee rights in mobility to other jobs and employer rights in protecting confidential information and advantages. Time will tell if it serves this purpose, or becomes a contorted mess like some other areas of law.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, May 12, 2016
Legal Geek No. 73: Will the Ross AI Replace all Attorneys?
Welcome back to Legal Geek. This week, we take a look at the first artificial intelligence "attorney" to be hired by a major U.S. law firm and what it means for the future of AI and the legal industry.
https://archive.org/details/LegalGeekEp73
The IBM cognitive computer Watson first hit widespread public awareness a few years ago when the computer took on various challenges including the game show Jeopardy. This was notable because the clues in Jeopardy use a lot of grammar and word tricks to hint at the desired answers, which is a level of language context which was difficult for AI's to accurately understand before Watson.
Now this technology is beginning to be applied in some real-world contexts. One of these is a shopper assistance robot being tested certain retail stores like Lowes. But this week, the Watson computer upgraded to the next level of profession as an AI attorney called Ross based on IBM's Watson technology was officially hired to work in the bankruptcy department of Baker & Hosteler, a department with 50+ attorneys in a large national law firm.
Although reports have it that other law firms are also licensing to use Ross, Baker is the first to jump in the pool officially. But will this be the first step to removing all those human attorney-types like yours truly with soulless automations of the law?
Probably not, although cognitive computing like Ross could change the legal services industry just like robotics and machinery changed manufacturing years ago. What Ross claims to offer is a rapid jump in efficiency in legal research and case law updates.
For example, Ross is able to take questions in plain English, and then it reads through the entire body of relevant law and returns an answer with citations from legislation and case law to bring the questioner up to speed quickly. Unlike current legal research tools like Lexis and Westlaw, Ross narrows the results to a few highly relevant answers instead of thousands and provides answers in a casual, understandable language like a human colleague would. Plus, Ross monitors for law updates and informs the user when changes occur, while also learning from experience to gain speed and improve results over time.
This is the type of work that typically gets assigned to junior-level attorneys and legal assistants, which means that some of the overhead with law practice can be shifted to work on other types of projects. That should allow firms to more efficiently use time and money of clients to reach desired results, but there's still going to be a human hand involved thanks to the heavy regulation applied to the legal services industry, among other things.
But who knows, maybe Ross will pass the bar exam in a few states, and then the sky is the limit on how far this cognitive computer technology can go.
The Bottom Line is, even the Baker firm refers to technologies like Ross as an AI legal assistant instead of an attorney, and there's a long way to go before we can replace all those attorneys. Nevertheless, this is the type of AI we only dreamed of previously in shows like Star Trek, and the legal profession as well as others can only stand to benefit and get better as a result.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp73
The IBM cognitive computer Watson first hit widespread public awareness a few years ago when the computer took on various challenges including the game show Jeopardy. This was notable because the clues in Jeopardy use a lot of grammar and word tricks to hint at the desired answers, which is a level of language context which was difficult for AI's to accurately understand before Watson.
Now this technology is beginning to be applied in some real-world contexts. One of these is a shopper assistance robot being tested certain retail stores like Lowes. But this week, the Watson computer upgraded to the next level of profession as an AI attorney called Ross based on IBM's Watson technology was officially hired to work in the bankruptcy department of Baker & Hosteler, a department with 50+ attorneys in a large national law firm.
Although reports have it that other law firms are also licensing to use Ross, Baker is the first to jump in the pool officially. But will this be the first step to removing all those human attorney-types like yours truly with soulless automations of the law?
Probably not, although cognitive computing like Ross could change the legal services industry just like robotics and machinery changed manufacturing years ago. What Ross claims to offer is a rapid jump in efficiency in legal research and case law updates.
For example, Ross is able to take questions in plain English, and then it reads through the entire body of relevant law and returns an answer with citations from legislation and case law to bring the questioner up to speed quickly. Unlike current legal research tools like Lexis and Westlaw, Ross narrows the results to a few highly relevant answers instead of thousands and provides answers in a casual, understandable language like a human colleague would. Plus, Ross monitors for law updates and informs the user when changes occur, while also learning from experience to gain speed and improve results over time.
This is the type of work that typically gets assigned to junior-level attorneys and legal assistants, which means that some of the overhead with law practice can be shifted to work on other types of projects. That should allow firms to more efficiently use time and money of clients to reach desired results, but there's still going to be a human hand involved thanks to the heavy regulation applied to the legal services industry, among other things.
But who knows, maybe Ross will pass the bar exam in a few states, and then the sky is the limit on how far this cognitive computer technology can go.
The Bottom Line is, even the Baker firm refers to technologies like Ross as an AI legal assistant instead of an attorney, and there's a long way to go before we can replace all those attorneys. Nevertheless, this is the type of AI we only dreamed of previously in shows like Star Trek, and the legal profession as well as others can only stand to benefit and get better as a result.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, May 5, 2016
Legal Geek No. 72: Will YouTube Content ID Changes make Content Creators Happy?
Welcome back to Legal Geek. This week, we review some recent changes to YouTube's copyright protection system called Content ID and determine whether more changes will come to help content creators relying on Fair Use and their own licensed works.
https://archive.org/details/LegalGeekEp72
For copyright owners wanting to stop infringing uses on YouTube videos of third parties, there are multiple options for making claims to pull potential infringing videos down or mute them for further investigation under DMCA procedures. For example, copyright owners can make manual claims about specific videos they notice, or for some users with a lot of copyrights, an automated system called Content ID can also make such claims. Although the video poster can challenge such claims to try and get the video posted again, this process causes significant delays and frustration even if the copyright claim turns out to be not valid.
For online content creators like podcasters with video content and streamers, the use of YouTube and viewer access to videos is vital for staying in business, but these copyright claims can pull those videos down at critical junctures. Especially for those who make money monetizing with ads on YouTube, this could be the difference between making rent or not in a given month.
So particularly with the automated Content ID system, any over inclusive identification of potential infringing content stifles the very content creators which draw so many viewers to the platform. Thus, YouTube is always striving to make this system more accurate at properly identifying copyright infringement while leaving fair use and licensed uses alone.
The most recent of those changes were announced on YouTube's creator blog last week. Essentially, a video subject to an automated copyright claim under Content ID will still be able to generate advertising revenue while the claim is resolved, and once the claim is resolved, the winning party will be paid accordingly. Thus, videos from popular content creators will not always just disappear or get muted, and more importantly, the ad revenue that would normally come in will still be possible if the copyright claim is challenged as invalid.
These changes will help balance the leverage between the parties in a YouTube copyright dispute. Content creators will not just be at the total whims of the automated Content ID system. And YouTube indicated in the blog post that further improvements to make the system even more accurate are likely on the way. It's certainly a positive step for content creators, and more may be on the way.
The Bottom Line is, the concept of Fair Use is a gray area in copyright law that is ever shifting thanks to many court challenges and decisions. That makes tailoring an automated copyright infringement detection system even more difficult, and we should give YouTube credit for making efforts to have the system be fair and balanced for both copyright owners and content creators, both of which deserve to be fairly compensated for their creative works.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp72
For copyright owners wanting to stop infringing uses on YouTube videos of third parties, there are multiple options for making claims to pull potential infringing videos down or mute them for further investigation under DMCA procedures. For example, copyright owners can make manual claims about specific videos they notice, or for some users with a lot of copyrights, an automated system called Content ID can also make such claims. Although the video poster can challenge such claims to try and get the video posted again, this process causes significant delays and frustration even if the copyright claim turns out to be not valid.
For online content creators like podcasters with video content and streamers, the use of YouTube and viewer access to videos is vital for staying in business, but these copyright claims can pull those videos down at critical junctures. Especially for those who make money monetizing with ads on YouTube, this could be the difference between making rent or not in a given month.
So particularly with the automated Content ID system, any over inclusive identification of potential infringing content stifles the very content creators which draw so many viewers to the platform. Thus, YouTube is always striving to make this system more accurate at properly identifying copyright infringement while leaving fair use and licensed uses alone.
The most recent of those changes were announced on YouTube's creator blog last week. Essentially, a video subject to an automated copyright claim under Content ID will still be able to generate advertising revenue while the claim is resolved, and once the claim is resolved, the winning party will be paid accordingly. Thus, videos from popular content creators will not always just disappear or get muted, and more importantly, the ad revenue that would normally come in will still be possible if the copyright claim is challenged as invalid.
These changes will help balance the leverage between the parties in a YouTube copyright dispute. Content creators will not just be at the total whims of the automated Content ID system. And YouTube indicated in the blog post that further improvements to make the system even more accurate are likely on the way. It's certainly a positive step for content creators, and more may be on the way.
The Bottom Line is, the concept of Fair Use is a gray area in copyright law that is ever shifting thanks to many court challenges and decisions. That makes tailoring an automated copyright infringement detection system even more difficult, and we should give YouTube credit for making efforts to have the system be fair and balanced for both copyright owners and content creators, both of which deserve to be fairly compensated for their creative works.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, April 29, 2016
Legal Geek No. 71: Google's Battle Against Spoilers
Welcome back to Legal Geek. This week, we again tackle a topic relevant to Game of Thrones and other TV fans: spoilers, and what Google is doing in the patent world to help combat such spoilers from ruining the day of those trying to avoid them.
https://archive.org/details/LegalGeekEp71
Spoilers are a phenomenon which really did not exist before the sharing of information on the Internet. Going back all the way to shows like The X-Files and online message boards, fans of story-based television have often wanted to experience the surprise plot twists and highs and lows of narrative without having someone tell them beforehand what is going to happen. With DVR and streaming services now making time-shifting of television the standard for many viewers, plus the omnipresent existence of social media linking us all together more than ever, spoilers have hit an all-time high in relevance.
Mainstream media and the public understand this phenomenon more than ever, as proven by the mostly successful public drive to avoid spreading of spoilers for Star Wars: The Force Awakens when it came out last year. However, even well-meaning media outlets can make mistakes and accidental spoilers just by selecting the wrong photo to put in a twitter post about an episode review, as was the case with a photo of Melisandre which Slate.com initially put on Twitter this week.
Can this spoiler problem be solved? Google certainly thinks so, and it's patent department is riding in like a white knight with multiple patents to try and save the day from spoilers. Even this week, Google was granted another in a series of patents which are innovating in ways to help avoid spoilers.
Going back to 2011 and 2012, Google was first granted two U.S. Patents including 8,676,911 on timeshifting messages located in forums and message boards online based on content which has not yet been reached by a user watching a TV show or the like. In 2015, Google was granted U.S. Patent No. 8,943,529 which claims a system for evaluating when a user changes the channel whether what is on the channel contains spoilers for content yet to be viewed, such as by avoiding tuning to a channel in the middle of an episode being saved for later viewing on the DVR.
Later in 2015, additional patents like U.S. Patent No. 9,002,942 were granted to Google on more broad claims covering the processing and determination of content spoilers, so that a spoiler warning can be given to pertinent users of social media or other technology before a spoiling occurs. Even this past week, one of the image processing and sharing technologies Google is developing as the backbone for implementing this spoiler stopping technology received another granted U.S. Patent No. 9,325,783. Additional applications are published or in the works as well, which means Google is tackling this spoiler monster with a plethora of patents.
If Google can make these patented technologies the new standard for content processing online, the problem of spoilers may indeed be mostly solved, once and for all. Well, at least except for that jerk at the water cooler at work who speaks too loudly about what he watched live last night.
The Bottom Line is, despite software and business method patents being on shakier ground following some recent Supreme Court decisions, the efforts of Google prove that these types of patents are not dead, especially when addressing problems like spoilers that only became very prevalent thanks to current television and social media technologies and trends. In other words, spoilers are dead, long live spoilers.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp71
Spoilers are a phenomenon which really did not exist before the sharing of information on the Internet. Going back all the way to shows like The X-Files and online message boards, fans of story-based television have often wanted to experience the surprise plot twists and highs and lows of narrative without having someone tell them beforehand what is going to happen. With DVR and streaming services now making time-shifting of television the standard for many viewers, plus the omnipresent existence of social media linking us all together more than ever, spoilers have hit an all-time high in relevance.
Mainstream media and the public understand this phenomenon more than ever, as proven by the mostly successful public drive to avoid spreading of spoilers for Star Wars: The Force Awakens when it came out last year. However, even well-meaning media outlets can make mistakes and accidental spoilers just by selecting the wrong photo to put in a twitter post about an episode review, as was the case with a photo of Melisandre which Slate.com initially put on Twitter this week.
Can this spoiler problem be solved? Google certainly thinks so, and it's patent department is riding in like a white knight with multiple patents to try and save the day from spoilers. Even this week, Google was granted another in a series of patents which are innovating in ways to help avoid spoilers.
Going back to 2011 and 2012, Google was first granted two U.S. Patents including 8,676,911 on timeshifting messages located in forums and message boards online based on content which has not yet been reached by a user watching a TV show or the like. In 2015, Google was granted U.S. Patent No. 8,943,529 which claims a system for evaluating when a user changes the channel whether what is on the channel contains spoilers for content yet to be viewed, such as by avoiding tuning to a channel in the middle of an episode being saved for later viewing on the DVR.
Later in 2015, additional patents like U.S. Patent No. 9,002,942 were granted to Google on more broad claims covering the processing and determination of content spoilers, so that a spoiler warning can be given to pertinent users of social media or other technology before a spoiling occurs. Even this past week, one of the image processing and sharing technologies Google is developing as the backbone for implementing this spoiler stopping technology received another granted U.S. Patent No. 9,325,783. Additional applications are published or in the works as well, which means Google is tackling this spoiler monster with a plethora of patents.
If Google can make these patented technologies the new standard for content processing online, the problem of spoilers may indeed be mostly solved, once and for all. Well, at least except for that jerk at the water cooler at work who speaks too loudly about what he watched live last night.
The Bottom Line is, despite software and business method patents being on shakier ground following some recent Supreme Court decisions, the efforts of Google prove that these types of patents are not dead, especially when addressing problems like spoilers that only became very prevalent thanks to current television and social media technologies and trends. In other words, spoilers are dead, long live spoilers.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, April 22, 2016
Legal Geek No. 70: Game of Thrones TM Battles
Welcome back to Legal Geek. This week, we celebrate the return of Game of Thrones for its sixth season by taking a look at some of the recent legal battles HBO is involved with regarding trademarks related to the popular show, and how that part of the trademark process works.
https://archive.org/details/LegalGeekEp70
When a trademark application is filed at the U.S. Patent and Trademark Office, an Examining Attorney working for the Office reviews the application after a few weeks or months to determine whether the application complies with all of the rules for having a trademark. While a search is done by the Examining Attorney for competing similar marks which would create a likelihood of confusion conflict, this search is not always perfect.
Thus, the system also allows for third parties in the public to review all trademark applications that are allowed and file Oppositions to them, if necessary. This process is known as publication in the Official Gazette, and if no Opposition is filed within 30 days, the trademark then registers as finalized intellectual property. While the trademark can still be challenged later, this is the best opportunity to cut off registrations and potential trademark infringements before they occur, in my experience.
As a result, this is precisely the mechanism which HBO, the maker of our favorite series about dragons and kings, uses often and has used against them to try and box out what protection is possible for Game of Thrones and related story items. After all, while HBO's copyrights protect the show itself, it is the trademarks where all the potential merchandising revenue is protected.
Just this month, for example, HBO opposed an application for a video game called "Game of Trolls" from Jumpstart Games, Inc., which is intended to be a tie-in for the upcoming DreamWorks movie Trolls. Opposition tends to be a somewhat costly mini-litigation type process, which means small game companies may be inclined to back down rather than fight, even in a gray area like using the word "Game of" in a video game context. Of course, with DreamWorks possibly backing Jumpstart Games in this fight, that might not be what happens here. When two giants get involved, it can be as bloody as the red wedding.
HBO has aggressively defended and tried to expand its rights, with prior recent oppositions to other marks like "Gamethrone," "League of Thrones," and "Game of Drones." Of course, HBO files their own applications and is not immune from being opposed themselves, as was the case recently when the application for "Three-Eyed Raven" was opposed by Ravenswood Winery. With all the Opposition proceedings at the Trademark Office, HBO's legal team likely gears up like the Battle of Blackwater for all this work.
The Bottom Line: HBO will win some of these Opposition battles and lose others, but this is a great example for companies who want to learn how to aggressively pursue and defend what rights can be had on a popular pop culture item like Game of Thrones. Plus, small designers and developers would be wise to know what battles might await in trademark realm should they enter business, especially when trying to profit in some tangential manner off someone else's IP.
And while they do all these legal battles in the background, we can simply keep on enjoying the Khaleesi, the dragons, and all that death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp70
When a trademark application is filed at the U.S. Patent and Trademark Office, an Examining Attorney working for the Office reviews the application after a few weeks or months to determine whether the application complies with all of the rules for having a trademark. While a search is done by the Examining Attorney for competing similar marks which would create a likelihood of confusion conflict, this search is not always perfect.
Thus, the system also allows for third parties in the public to review all trademark applications that are allowed and file Oppositions to them, if necessary. This process is known as publication in the Official Gazette, and if no Opposition is filed within 30 days, the trademark then registers as finalized intellectual property. While the trademark can still be challenged later, this is the best opportunity to cut off registrations and potential trademark infringements before they occur, in my experience.
As a result, this is precisely the mechanism which HBO, the maker of our favorite series about dragons and kings, uses often and has used against them to try and box out what protection is possible for Game of Thrones and related story items. After all, while HBO's copyrights protect the show itself, it is the trademarks where all the potential merchandising revenue is protected.
Just this month, for example, HBO opposed an application for a video game called "Game of Trolls" from Jumpstart Games, Inc., which is intended to be a tie-in for the upcoming DreamWorks movie Trolls. Opposition tends to be a somewhat costly mini-litigation type process, which means small game companies may be inclined to back down rather than fight, even in a gray area like using the word "Game of" in a video game context. Of course, with DreamWorks possibly backing Jumpstart Games in this fight, that might not be what happens here. When two giants get involved, it can be as bloody as the red wedding.
HBO has aggressively defended and tried to expand its rights, with prior recent oppositions to other marks like "Gamethrone," "League of Thrones," and "Game of Drones." Of course, HBO files their own applications and is not immune from being opposed themselves, as was the case recently when the application for "Three-Eyed Raven" was opposed by Ravenswood Winery. With all the Opposition proceedings at the Trademark Office, HBO's legal team likely gears up like the Battle of Blackwater for all this work.
The Bottom Line: HBO will win some of these Opposition battles and lose others, but this is a great example for companies who want to learn how to aggressively pursue and defend what rights can be had on a popular pop culture item like Game of Thrones. Plus, small designers and developers would be wise to know what battles might await in trademark realm should they enter business, especially when trying to profit in some tangential manner off someone else's IP.
And while they do all these legal battles in the background, we can simply keep on enjoying the Khaleesi, the dragons, and all that death.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, April 14, 2016
Legal Geek No. 69: Podcast "Patent Troll" Finding Mixed Results in Court/USPTO
Welcome back to Legal Geek. This week, we take a look at recent updates in the legal proceedings surrounding everyone's favorite alleged "patent troll" in the podcasting industry.
https://archive.org/details/LegalGeekEp69
A long-time hot topic of conversation in this podcasting world has been the attempted enforcement of a patent owned by Personal Audio LLC against various famous podcasters like Adam Carolla and news networks. This also coincides with one of the hottest topics in U.S. patent law, patent enforcement entities and whether overbroad patents in electronic fields can be cut back.
The specific claims in U.S. Patent 8,112,504 focus on the distribution of old and new episodes together in a compilation file, and while this certainly covers podcasting, it is also very broad. The question is whether it was too broad a patent grant compared to prior art compilations known in similar fields.
This week, Personal Audio and the Electronic Frontier Foundation began presenting arguments to the Federal Circuit Court of Appeals in this controversy, and the recent history has left this case in a cutting edge place. The EFF has raised money to challenge Personal Audio's patent in new post-grant review proceedings under the America Invents Act at the U.S. Patent Office's Appeal Board, and this process led to a decision by the Board last April that the patent was invalid over some prior art. This Federal Circuit case is the appeal of that decision to invalidate Personal Audio's patent.
However, in the interim few months, some of the first litigations filed by Personal Audio came to settlement or final decisions. Adam Corolla settled the claim with Personal Audio in August, and then in September, a jury in Texas federal court found the patent to be valid and infringed by CBS, imposing a $1.3 million verdict on the network.
So Personal Audio is winning big in litigations while losing the validity battle at the U.S. Patent Office. Normally there would be potential estoppel effects applied to the loser of one of these proceedings, or a stay in the litigation when a post-grant review is filed, but in this case the parties are different because the EFF is unrelated to defendants like Corolla and CBS and is fighting this fight for different reasons than the litigation defendants.
Those inconsistent results have caused Personal Audio to present some interesting arguments this week, such as arguments that the Texas jury's factual findings must be binding on the Federal Circuit because the Seventh Amendment prevents re-examination of the facts at the appeal level in such circumstances. Yet that case is not what is appealed here, but instead, the administrative Patent Office Appeal Board ruling of invalidity (which would be binding moving forward on Personal Audio, for what it's worth). That circumstance makes this an interesting hole in legal estoppel practice in this relatively new patent challenge context.
The Bottom Line is, beyond just the podcasting industry, Personal Audio may be the so-called patent troll that ends up deciding the important rules moving forward for how competing decisions work at the Patent Office Appeal Board as compared to federal courts. The Patent Office decision last year dealt the alleged troll a seemingly mortal blow, but Personal Audio is not going down without an important legal fight for the landscape of patent law in the future. It will be fascinating to see how these novel arguments play out at the Federal Circuit, if not also the Supreme Court.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp69
A long-time hot topic of conversation in this podcasting world has been the attempted enforcement of a patent owned by Personal Audio LLC against various famous podcasters like Adam Carolla and news networks. This also coincides with one of the hottest topics in U.S. patent law, patent enforcement entities and whether overbroad patents in electronic fields can be cut back.
The specific claims in U.S. Patent 8,112,504 focus on the distribution of old and new episodes together in a compilation file, and while this certainly covers podcasting, it is also very broad. The question is whether it was too broad a patent grant compared to prior art compilations known in similar fields.
This week, Personal Audio and the Electronic Frontier Foundation began presenting arguments to the Federal Circuit Court of Appeals in this controversy, and the recent history has left this case in a cutting edge place. The EFF has raised money to challenge Personal Audio's patent in new post-grant review proceedings under the America Invents Act at the U.S. Patent Office's Appeal Board, and this process led to a decision by the Board last April that the patent was invalid over some prior art. This Federal Circuit case is the appeal of that decision to invalidate Personal Audio's patent.
However, in the interim few months, some of the first litigations filed by Personal Audio came to settlement or final decisions. Adam Corolla settled the claim with Personal Audio in August, and then in September, a jury in Texas federal court found the patent to be valid and infringed by CBS, imposing a $1.3 million verdict on the network.
So Personal Audio is winning big in litigations while losing the validity battle at the U.S. Patent Office. Normally there would be potential estoppel effects applied to the loser of one of these proceedings, or a stay in the litigation when a post-grant review is filed, but in this case the parties are different because the EFF is unrelated to defendants like Corolla and CBS and is fighting this fight for different reasons than the litigation defendants.
Those inconsistent results have caused Personal Audio to present some interesting arguments this week, such as arguments that the Texas jury's factual findings must be binding on the Federal Circuit because the Seventh Amendment prevents re-examination of the facts at the appeal level in such circumstances. Yet that case is not what is appealed here, but instead, the administrative Patent Office Appeal Board ruling of invalidity (which would be binding moving forward on Personal Audio, for what it's worth). That circumstance makes this an interesting hole in legal estoppel practice in this relatively new patent challenge context.
The Bottom Line is, beyond just the podcasting industry, Personal Audio may be the so-called patent troll that ends up deciding the important rules moving forward for how competing decisions work at the Patent Office Appeal Board as compared to federal courts. The Patent Office decision last year dealt the alleged troll a seemingly mortal blow, but Personal Audio is not going down without an important legal fight for the landscape of patent law in the future. It will be fascinating to see how these novel arguments play out at the Federal Circuit, if not also the Supreme Court.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, March 30, 2016
Legal Geek No. 68: April Fools' Day and Fraud
Welcome back to Legal Geek. This week, we take a brief look at the history of April Fools' Day and the risks some take when humor crosses the line into fraud.
https://archive.org/details/LegalGeekEp68
This week brings the beginning of April, and the Internet's favorite holiday April Fools' Day. In other words, the one day when nothing online, even reputable news outlets, can always be trusted.
The history and origins of this holiday are old enough to be unclear, but some leading theories have emerged. One theory is that the change from winterlike weather to summerlike weather and the rapid shifts in weather typical in spring make people act joyful and a little like fools. Another theory is that when the West adopted the Gregorian calendar in the 1500s, the New Year started on January 1 instead of March 25, which caused some people to look like fools for not adjusting. Regardless of how the holiday ended up being recognized worldwide, it remains a global phenomenon only made more popular thanks to the Internet.
This holiday of pranks and jokes leads to some funny advertisements for fake products, like last year's Siracha injected Jolly Ranchers. However, there's a dark side to this holiday when the pranks and jokes go a bit too far.
Publications of false material can lead to libel or slander claims, as discussed on this segment last week. Fraud is also a serious issue when it comes to securities and investment marketplaces, as one poor Australian teenager found out two years ago. Kudra Falla-Ricketts was 16 years old when she e-mailed out a fake press release purporting to be from the local gas drilling company, with false statements about how the company planned to pull out of the region.
Even though the press release had multiple typos and was sent from her personal school e-mail account, some people did not take this as a joke. That led to an investigation by the Australian analogue to the SEC, as her prank could have potentially been devastating to the stock value of the drilling company. All of a sudden, this teenager was risking prosecution and penalties for making fraudulent statements! Kudra's case turned out OK, but she is not the first person to make this mistake and cause prosecution by the authorities.
The Bottom Line is, the lesson is clear: when making an April Fools' Joke, it's better to have it be obvious or labeled as such to avoid the chance for any legal consequences. If the joke is funny enough, the disclaimer won't matter. Moreover, this holiday does provide a net benefit if it makes the more gullible among us appreciate the need for a healthy dose of skepticism at all times, especially when reading things online.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp68
This week brings the beginning of April, and the Internet's favorite holiday April Fools' Day. In other words, the one day when nothing online, even reputable news outlets, can always be trusted.
The history and origins of this holiday are old enough to be unclear, but some leading theories have emerged. One theory is that the change from winterlike weather to summerlike weather and the rapid shifts in weather typical in spring make people act joyful and a little like fools. Another theory is that when the West adopted the Gregorian calendar in the 1500s, the New Year started on January 1 instead of March 25, which caused some people to look like fools for not adjusting. Regardless of how the holiday ended up being recognized worldwide, it remains a global phenomenon only made more popular thanks to the Internet.
This holiday of pranks and jokes leads to some funny advertisements for fake products, like last year's Siracha injected Jolly Ranchers. However, there's a dark side to this holiday when the pranks and jokes go a bit too far.
Publications of false material can lead to libel or slander claims, as discussed on this segment last week. Fraud is also a serious issue when it comes to securities and investment marketplaces, as one poor Australian teenager found out two years ago. Kudra Falla-Ricketts was 16 years old when she e-mailed out a fake press release purporting to be from the local gas drilling company, with false statements about how the company planned to pull out of the region.
Even though the press release had multiple typos and was sent from her personal school e-mail account, some people did not take this as a joke. That led to an investigation by the Australian analogue to the SEC, as her prank could have potentially been devastating to the stock value of the drilling company. All of a sudden, this teenager was risking prosecution and penalties for making fraudulent statements! Kudra's case turned out OK, but she is not the first person to make this mistake and cause prosecution by the authorities.
The Bottom Line is, the lesson is clear: when making an April Fools' Joke, it's better to have it be obvious or labeled as such to avoid the chance for any legal consequences. If the joke is funny enough, the disclaimer won't matter. Moreover, this holiday does provide a net benefit if it makes the more gullible among us appreciate the need for a healthy dose of skepticism at all times, especially when reading things online.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, March 24, 2016
Legal Geek No. 67: Can a Game Developer successfully sue a Reviewer for Libel/Slander?
Welcome back to Legal Geek. This week, we take a look at a lawsuit filed by game developer Digital Homicide against YouTube personality and game reviewer Jim Sterling, and whether such a claim for libel and slander have any chance of success in this context.
https://archive.org/details/LegalGeekEp67
Last week the small digital game developer Digital Homicide sued Jim Sterling in Arizona federal court for libel and slander. Digital claims that Sterling has defamed their company and products with disparaging statements and seeks over $10 Million of damages. Why would a small developer go to litigation to fight with an online personality? The history between these two tells the story.
Sterling makes YouTube videos and often reviews (and pokes fun at) some of the worst games available on Steam and other stores. His first interaction with a Digital product was a 10-minute review of Digital's first-person shooter Slaughtering Grounds in 2014. He dubbed the game a contender for the worst of 2014 because the awfulness just doesn't stop. Digital responded with two videos of their own accusing Sterling of not playing the game and calling him an F-word idiot. Both sides traded some further back and forth, and Sterling has since written a few more articles and reviews critical of the game developer.
The key to a successful libel or slander claim is the making of a false statement that is damaging to a person's or company's reputation. There have to be actual lies to make such a claim work.
That may be the difficult part here, even though Digital has identified what it believes to be nine different damaging false statements or lies allegedly made by Sterling. One example is in a review of another Digital game Galactic Hitman, Sterling stated that the game included artwork that may have been stolen from an artist on the DeviantArt site. Another example is when Sterling questioned whether Digital was misleading consumers by using a different name ECC Games for newer game products, a name which is also used by an unrelated Polish game developer. In this latter count, Digital also takes offense to Sterling's description of this name-changing situation as "being as sly as the Wet Bandits," i.e., the villains of the movie Home Alone.
Although these statements are critical of Digital Homicide and they potentially toe the line of fair criticism, it looks like it may be hard to prove that these statements are false. Even if a couple of the statements are false, proving the actual damages will likely be difficult for a small indie developer, especially one with dirty hands by failing to take any of Sterling's criticism well from Day 1. It looks like an uphill battle for Digital Homicide, but this may be a ploy to just stop what the company feels is harassment by Sterling, if nothing else.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp67
Last week the small digital game developer Digital Homicide sued Jim Sterling in Arizona federal court for libel and slander. Digital claims that Sterling has defamed their company and products with disparaging statements and seeks over $10 Million of damages. Why would a small developer go to litigation to fight with an online personality? The history between these two tells the story.
Sterling makes YouTube videos and often reviews (and pokes fun at) some of the worst games available on Steam and other stores. His first interaction with a Digital product was a 10-minute review of Digital's first-person shooter Slaughtering Grounds in 2014. He dubbed the game a contender for the worst of 2014 because the awfulness just doesn't stop. Digital responded with two videos of their own accusing Sterling of not playing the game and calling him an F-word idiot. Both sides traded some further back and forth, and Sterling has since written a few more articles and reviews critical of the game developer.
The key to a successful libel or slander claim is the making of a false statement that is damaging to a person's or company's reputation. There have to be actual lies to make such a claim work.
That may be the difficult part here, even though Digital has identified what it believes to be nine different damaging false statements or lies allegedly made by Sterling. One example is in a review of another Digital game Galactic Hitman, Sterling stated that the game included artwork that may have been stolen from an artist on the DeviantArt site. Another example is when Sterling questioned whether Digital was misleading consumers by using a different name ECC Games for newer game products, a name which is also used by an unrelated Polish game developer. In this latter count, Digital also takes offense to Sterling's description of this name-changing situation as "being as sly as the Wet Bandits," i.e., the villains of the movie Home Alone.
Although these statements are critical of Digital Homicide and they potentially toe the line of fair criticism, it looks like it may be hard to prove that these statements are false. Even if a couple of the statements are false, proving the actual damages will likely be difficult for a small indie developer, especially one with dirty hands by failing to take any of Sterling's criticism well from Day 1. It looks like an uphill battle for Digital Homicide, but this may be a ploy to just stop what the company feels is harassment by Sterling, if nothing else.
The Bottom Line is, game developers should likely avoid taking criticism so seriously to the point of hostile responses, let alone litigation. However, there are fair rules of reviews and reporting like avoiding lies, so perhaps Sterling and other reviewers will be reminded of these important aspects as this plays out in public and in court. There's some lessons both sides could learn about civility, but they won't likely find truly satisfactory answers in court.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, March 3, 2016
Legal Geek No. 66: Hollywood Superhero Movie Tech in Patent Dispute
Welcome back to Legal Geek. This week, we take a look at a new lawsuit seeking to stop distribution of recent Superhero movies using facial animation technology, including the wildly successful Deadpool and last year's Avengers: Age of Ultron.
https://archive.org/details/LegalGeekEp66
Mova is a technology which extends the now well-known concepts of motion capture for actors to more accurately capture the facial expressions and performances of human actors playing CGI characters. The particular way an actor smiles and moves their facial muscles is picked up using phosphorescent makeup dusted on the actor and customized imaging hardware and software. Examples of this are how the CGI characters Ultron and Colossus have more realistic faces that look more like the actors bringing voices to these characters. It has also been used in other movies like Gravity and The Curious Case of Benjamin Button.
This technology was deemed so revolutionary that Mova won a technical Academy Award last year. It certainly is another improvement for making Superhero and Comic Book movies even more realistic and palatable to audiences who are loving these types of movies right now. But the wide praise and commercial success has unfortunately led to a court dispute over who is the rightful owner of this technology.
The history of Mova's development and ownership has become quite a tortured mess. Steve Perlman is a serial entrepreneur in Silicon Valley and he controlled an online game start-up called OnLive which merged with Mova in 2011. The start-up was struggling in 2012, however, so Perlman left the company to produce another opportunity at a new company called Rearden. When OnLive decided to sell Mova's assets later that year, Perlman tasked one of his Rearden employees with acquiring Mova for his new company.
That's where the plot twist occurs. According to Perlman's story, this employee negotiated instead to improperly sell Mova's assets to a different company called Digital Domain and a Chinese sister company Shenzhenshi in 2013. The Chinese company, which is now on the other side of this court dispute, instead claims that the employee properly sold the rights to Mova to them because Perlman had given up on it after failing himself to make a successful business out of Mova, so he encouraged the employee to salvage what he could from the property on his own. So Perlman claims he was defrauded by an employee, while the Chinese company claims this is nothing more than a severe case of seller's remorse.
It honestly sounds like a script from a Hollywood blockbuster instead of real life.
The decision in this case will come down to a very specific set of facts yet to be proven about what Perlman's previous employee was authorized to do. Ironically, or maybe not so much, that employee now works for Digital Domain, the sister to the Chinese company on the other side of this case. But the larger question for movie nerds is whether Perlman has any chance of succeeding in stopping distribution of movies like Deadpool, Terminator Genisys, and Guardians of the Galaxy based on what he calls an improper use of unlicensed patented technology he claims to own.
That type of order implicates First Amendment issues as well as the usual patent issues, so experts who have publicly opined on this case have largely concluded that there's no way Perlman will be able to obtain such an order for movies already in the marketplace. His lawsuit could affect future projects that Digital Domain and the Chinese company are involved in, but even that may not be true if a damages-based remedy appears to serve the needs of all parties and the public better.
The Bottom Line is, cases like this come up when business people play fast and loose with agency of employees and contracts, so make sure you are always abundantly clear when doing deals or making important decisions in business. Getting caught up in a real-life courtroom drama like these parties is usually much worse than making an ill-advised business deal and living with the consequences of such a deal.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp66
Mova is a technology which extends the now well-known concepts of motion capture for actors to more accurately capture the facial expressions and performances of human actors playing CGI characters. The particular way an actor smiles and moves their facial muscles is picked up using phosphorescent makeup dusted on the actor and customized imaging hardware and software. Examples of this are how the CGI characters Ultron and Colossus have more realistic faces that look more like the actors bringing voices to these characters. It has also been used in other movies like Gravity and The Curious Case of Benjamin Button.
This technology was deemed so revolutionary that Mova won a technical Academy Award last year. It certainly is another improvement for making Superhero and Comic Book movies even more realistic and palatable to audiences who are loving these types of movies right now. But the wide praise and commercial success has unfortunately led to a court dispute over who is the rightful owner of this technology.
The history of Mova's development and ownership has become quite a tortured mess. Steve Perlman is a serial entrepreneur in Silicon Valley and he controlled an online game start-up called OnLive which merged with Mova in 2011. The start-up was struggling in 2012, however, so Perlman left the company to produce another opportunity at a new company called Rearden. When OnLive decided to sell Mova's assets later that year, Perlman tasked one of his Rearden employees with acquiring Mova for his new company.
That's where the plot twist occurs. According to Perlman's story, this employee negotiated instead to improperly sell Mova's assets to a different company called Digital Domain and a Chinese sister company Shenzhenshi in 2013. The Chinese company, which is now on the other side of this court dispute, instead claims that the employee properly sold the rights to Mova to them because Perlman had given up on it after failing himself to make a successful business out of Mova, so he encouraged the employee to salvage what he could from the property on his own. So Perlman claims he was defrauded by an employee, while the Chinese company claims this is nothing more than a severe case of seller's remorse.
It honestly sounds like a script from a Hollywood blockbuster instead of real life.
The decision in this case will come down to a very specific set of facts yet to be proven about what Perlman's previous employee was authorized to do. Ironically, or maybe not so much, that employee now works for Digital Domain, the sister to the Chinese company on the other side of this case. But the larger question for movie nerds is whether Perlman has any chance of succeeding in stopping distribution of movies like Deadpool, Terminator Genisys, and Guardians of the Galaxy based on what he calls an improper use of unlicensed patented technology he claims to own.
That type of order implicates First Amendment issues as well as the usual patent issues, so experts who have publicly opined on this case have largely concluded that there's no way Perlman will be able to obtain such an order for movies already in the marketplace. His lawsuit could affect future projects that Digital Domain and the Chinese company are involved in, but even that may not be true if a damages-based remedy appears to serve the needs of all parties and the public better.
The Bottom Line is, cases like this come up when business people play fast and loose with agency of employees and contracts, so make sure you are always abundantly clear when doing deals or making important decisions in business. Getting caught up in a real-life courtroom drama like these parties is usually much worse than making an ill-advised business deal and living with the consequences of such a deal.
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Subscribe to:
Posts (Atom)