Legal Geek No. 156: 2018 Wrap-up and Board Game Gifting Guide

Happy Holidays, and welcome back to Legal Geek. This week, we close out 2018 with answers to where you can find the Legal Geek content, including on other podcasts this year, and then discuss another holiday gift guide in a field we cover frequently.

https://archive.org/details/LegalGeekEp156 

Throughout the year, I receive several questions on whether there's a separate podcast for Legal Geek or another source for prior segments, especially now that this segment has reached a fifth anniversary from its start in December 2013.  While there is no separate podcast as of yet, you can always find the more than 150 prior installments of this segment over at Archive.org, under the user BuckeyeFitzy.  I also keep a running list of my scripts at legalgeekfitz.blogspot.com, but fair warning, these are typically unedited versions of the audio you find on Archive.

I also make appearances at trade shows in the tabletop and video game industry, providing educational seminars to game designers and publishers regarding my chosen field of practice, intellectual property law.  I provided seminars at Origins Game Fair in Columbus, OH and at GenCon in Indianapolis in 2018 and plan to attend both again in 2019.  There are over 300 gaming conventions in the U.S. annually, so if you know one that needs such a speaker, let me know and I'm happy to explore new ones as we move forward.

Finally, a 2018 Legal Geek recap would be incomplete without mentioning a couple of find podcasts that brought me on to guest for full shows.  As usual, I appeared on The Geek All Stars with Dan the board game man this year, specifically in Episode 166 entitled SDJ, Charterstone, and The Law Star Rides Again.  I also appeared on Ritual Misery Podcast near the beginning of the year in episode 150.  If you want a little longer form Legal Geek, check those shows out.

Before wrapping 2018, I also wanted to provide a second gift giving guide I enjoyed for this holiday season, following up on the privacy law-themed one from 2 weeks ago.  This one is just a great overall guide to the best tabletop board games, an article entitled Ars Technica's Ultimate Board Game Buyer's Guide.  If you're looking for a last minute gift and can get yourself to a local game store or Amazon prime, these lists will provide good ideas for gamers of all experience levels.

2018 was a notable year on multiple fronts, including a contentious Supreme Court replacement and multiple landmark cases at that court, including one opening the door for sports betting in all 50 states and another striking a blow at partisan gerrymandering of congressional districts.  We also had plenty of fun legal stories to cover, including the romance novelist who trademarked Cocky, and the surprising legal problems raised by the electric scooter invasion into many major cities.  

The Bottom Line is, the legal and nerd worlds keep generating interesting content and lessons to learn, and I will continue to provide insights into these fields in 2019.  Thank you for listening to this segment and supporting it with your suggestions, and also to Scott and Tom for making this a part of Current Geek for the last 5 years.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 155: Web Scraping Case highlights lesser-known IP Enforcement Rights

Hi, and welcome back to Legal Geek. This week, we cover a case in Illinois from November suggested by subreddit user Gavreh that shows how internet technologies can sometimes force the spotlight on lesser known laws and methods of trying to enforce intellectual property.

https://archive.org/details/LegalGeekEp155 

The case is titled Alan Ross Machinery v. Machinio Corp., and the allegedly infringing conduct of Machinio included using web scraping to extract sales listings from Alan Ross's website and then copied those sales listings on their own site.  The copied material into the Machinio website was mostly factual and did not include specific branding of Alan Ross, so traditional enforcement of a copyright or a trademark was not really available in this case.  However, Alan Ross generated a couple of lesser-known claims under the copyright and trademark laws to try and defend their rights against this practice of web scraping.

The first claim was for violation of the Copyright Act's prohibition against distributing false copyright management information, or removing or altering such CMI.  CMI is generally defined as identifying information placed on a notice of copyright or on a work, and is most often seen online as visible watermarks on images or copyright information in metadata.  This provision came into effect as a part of the DMCA in the late 90s.  If a defendant knowingly removes or alters such CMI when distributing the underlying work, so as to disguise the potential copyright infringement, the defendant can be liable for thousands of dollars of damages under this legal claim, which is separate and independent from a traditional copyright infringement claim.  Furthermore, the copyright doesn't even need to be registered with the U.S. Copyright Office to sue on this CMI ground, which is the opposite of traditional copyright infringement lawsuits.

Alan Ross failed to prove violation of this law according to the court.  As to distribution of false CMI, which was alleged to be done by Machinio at a blanket copyright notice found in the terms of use of Machinio's website, the court ruled that this separate terms website is not conveyed with the works on other websites and thus cannot be false CMI connected to the works.  As to the claim that Machinio removed the CMI in the form of copyright notice found at the bottom of Alan Ross's webpages, the court ruled this notice covered Alan Ross's website itself and not the particular sales listings, so just copying the facts in the form of sales listings did not allow for a claim of removal of CMI from a copyrighted work.

The second claim was for false designation of origin under the Lanham Act, which is the trademark law of the U.S..  False designation of origin exists when a manufacturer or seller lies about the country or origin or maker of its products.  This is kind of analogous to CMI removal claims, just in the branding or source identifier context.

Unfortunately for Alan Ross, there was a prior Supreme Court case called Dastar which ruled that these claims attach only to the producer of tangible goods offered for sale, not to authors of any idea or concept embodied in those goods.  In this case, the copied elements of sales listings were deemed to be ideas or communications embodied in the sales listings, as the actual website listings of Machinio were made by the source of those products.  In other words, Machinio produced website listings using someone else's content, and these website listings did not falsely designate Alan Ross as the source of the website listings, so no breaking of the laws just like the prior Dastar decision.  This is a nuanced application of that prior case, but it makes sense.

The Bottom Line is, Alan Ross Machinery tried to come up with some creative ways under the U.S. laws to enforce their rights and stop the practice of web scraping done by Machinio on the sales listings from the Alan Ross website, but these lesser-known enforcement methods did not work in this case.  However, the lesson to be learned is that there's usually some way to try and stop copying of content even if the traditional methods of IP enforcement do not work, and good legal counsel can open doors not often known to exist in these fields.  Especially in cutting edge fields like internet commerce with relatively newer practices like web scraping.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 154: Fingerprint Fakes and 2018 Privacy Holiday Gift Guide

Hi, and welcome back to Legal Geek. This week, we cover a couple of interesting stories from the field of privacy law.  First, a story about the development of master fake fingerprints, and second, a guide to the holiday gift season, from a tech nerd and privacy/information security context.

https://archive.org/details/LegalGeekEp154 

Researchers at New York University and Michigan State University have been working on fingerprints for unlocking biometric sensors such as the TouchID sensor on newer iPhones.  These so-called master fingerprints are not based on the conventional method of copying a genuine user's actual fingerprint, but instead, these are based on analysis with artificial intelligence of common fingerprint patterns.  The AI uses a discriminator to identify common features and combine them into a realistic fingerprint.

To this end, the fake master fingerprints have been tested on a number of devices like iPhones, and these fingerprints developed by the AI unlocked about a quarter of the devices.  That's a far cry from the odds of a fingerprint match publicized by Apple, which is 1 in 50,000.  

Why is this so different in reality?  The sensors used on current phones and laptops typically are small, which means only a portion of a full fingerprint is ever recorded.  That creates fewer data points to make a successful match, and a much higher likelihood of fake matches of the fewer data points.  It's eye-opening research for those who rely on biometric identifiers as the security of the future, as once again, smart computers and college researchers prove how easy such security measures can still be to overcome.  Kudos to NYU and Sparty for some very interesting research.

Turning to our holiday-themed story, Mozilla has investigated 70 top holiday gift items for 2018 to see how they stack up on minimum security standards.  Products are rated on a scale of not very creepy to super creepy, with feedback on everything from readability of the privacy policy associated with the product to the use of cameras, microphones, and location tracking.  For those who don't think about the ever-increasing amount of smart devices and the data they collect, this is a fun educational experience into all of these aspects consumers should care about.

In an era where even grandparents are learning about data privacy from Facebook and similar social networks, it would not be surprising to see more consumers trend towards products that treat data security better.  So if you're curious how all the roombas, security cameras, and BB-8 toys around you are planning to take over the world in the future robot revolution, check out this project by searching Mozilla Privacy Not Included on any search browser.

The Bottom Line is, nothing says holiday season like consumer privacy and data security.  While manufacturers like Apple will try and sell products based on things like biometric identifier scanners, nonprofits like Mozilla and researchers will continue to do the heavy lifting to let consumers know which companies are developing more secure products.  Nobody wants a data breach to ruin this season, after all.  Here's to being smart consumers in holiday season 2018 and beyond.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy