Legal Geek No. 196: FTC, COPPA Takes Aim at YouTube

Hi, and welcome back to Legal Geek. This week, we explain a recent story of how YouTube got into trouble with the Federal Trade Commission over COPPA and the controversy surrounding how the settlement is being applied to content creators on that platform.

https://archive.org/details/legalgeekep196 

Back in September 2019, the FTC settled a case brought against YouTube for alleged violations of a Children's Online Privacy Protection Act, also known as COPPA.  COPPA has existed since 1998 and the pertinent part thereof is this: the law requires websites directed towards children to obtain permission from parents before collecting various types of personal data from children, ranging from name and address all the way up to browsing history and persistent identifiers like cookies.  The law can be enforced by state attorney generals or federal consumer protection agencies like the FTC, who we've covered before including recently in their settlement with the maker of stalker software apps.

So what happened here?  On a public forum, YouTube marketing agents were telling some major brand representatives that they were the number one spot for attention of kids and could help them target advertisements to children using the information they collect on users.  But there was a glaring problem with this assertion...YouTube did not go through any hoops to allow parents to give permission for child users to allow collection of such personal information.  Thus, the State of New York and the FTC jointly brought an enforcement action for YouTube violating COPPA.  YouTube settled the action by paying a $170 million dollar fine as well as agreeing to business practice changes.  The fine is massive, but that's in part because YouTube is a massive money making platform that more easily draws the attention of agencies who enforce COPPA.

And that's where the internet controversy comes in, as many content creators on YouTube, podcasts, and other platforms began to worry about the new practices YouTube was implementing to shield itself from further COPPA liability.  YouTube is now requiring as of January 1 channels to affirmatively state whether their content is directed to children under 13 or not.  If they indicate the content is directed to children, advertising is basically cut off (AKA the revenue stream) and other features like comments on videos are also unavailable.  If they indicate the content is not directed to children, the status quo applies, but with the risk that if this statement is false and the content is later found to be actually directed to children, COPPA can be enforced against the content creator with a penalty of up to $42 thousand dollars per violation.

In one particular fandom of yours truly, which is the Pokémon Go game, content creators are highly worried that even though they may make videos clearly targeted at adults who enjoy the game and things like competitive PVP, the underlying cartoon IP will perhaps force them to be considered as directed to children.  Many content creators are wondering if this risk is too great, but the economic and community-building downsides to being "directed to children" would force them out of the content creation marketplace if they make that statement.

A public comment period was twice extended on this implementation issue, and the FTC may yet modify the settlement terms with YouTube depending on the public feedback.  However, understanding the FTC a little better may help quell the initial concerns content creators have.

First, the FTC is a limited government agency.  Even though this agency employs over 1,000 investigators and attorneys, they handle all types of consumer protection and privacy breach issues, not just COPPA.  As such, there's only so much attention to go around, and if you look at most of the enforcement actions taken by the FTC, it's usually against bigger companies or blatant offenders of these laws, not gray area cases or small businesses.  Pragmatically, the FTC will make sure YouTube implements a reasonable policy here and then sticks to it, and then will basically move on to other investigations and new cases.  To this end, YouTube really remains more in the crosshairs here than the content creators themselves. 

Relative to concerns that tracking bots will look for cartoon images or bright colors like in pokemon content and automatically flag that as directed to children, the enforcement of this policy necessitates more care than YouTube's automated policing of potential IP infringement.  It has already been confirmed that a human review will occur of content that may become flagged as directed to children on channels that state they are not.  And while no system is perfect, one would think a human review and actual human discourse with the parties involved would lead to proper results most of the time.  

As a result, the risk of content creators getting booted into the non-advertising, non-comment COPPA version of YouTube is small, and the risk of being fined for COPPA violations is even smaller.  The FTC has discretion to apply fines or reduce fines depending on the defendant's circumstances, and innocent content creators on YouTube are not going to be hit hard, if at all by such monetary fines.  It's not like copyright infringement where the other party is trying to maximize set damages, as in the Napster file sharing cases, so we cannot assume worst-case scenario relative to the fines.

The guidelines and rules for what is directed to children are intentionally vague, and that's because bright line rules and tests tend to fail in actual practice.  The COPPA law exists for good reason, but common sense will be applied to make sure the law doesn't harm consumers and the marketplace in a manner out of proportion to the children's privacy rights being protected.  To do anything else would jeopardize YouTube as a platform, which the company obviously does not want to have happen.

The Bottom Line is: the FTC settlement and fine against YouTube was a big deal and will lead to significant business practice changes on that platform.  However, for those content creators not really directing their content to children under 13, pragmatically any risk of losing advertising revenue or being fined by the FTC is minimal at best.  So the sky is not falling here, and following a period of initial adjustment to the new practices in early 2020, it should be business as usual for all our favorite content creators.

----------------------------------

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. 195: Future TV Tech evokes Latest Phone Innovations

Hi, and welcome back to Legal Geek. This week, we celebrate the Thanksgiving holiday in the most American way possible...by looking at future television tech that may define Black Friday deals in years to come. 

https://archive.org/details/legalgeekep195 

LG has been one of the top television manufacturers over the past decade, and the Korean company continues to innovate beyond just the resolution level.  LG previously announced in 2019 a rollable TV that can retract by rolling up into a base to make the television blend in with other furniture rather than being a static "black mirror" and centerpiece.  While that is certainly an exciting development for LED television screens, another big announcement may be coming when reviewing the recent patent application publications of this same company.

To this end, a patent application published in the U.S. from LG describes a foldable OLED television.  Much like the rolling design, the goal is to fold up the television screen into a much more compact space when not in use, which can allow for customers to enjoy having a much wider screen like a 21:9 aspect ratio without having to have that equipment always present at full size.  

According to the drawings in the patent, this television design will follow the example of some recent smart phone innovations allowing for foldable phone screens.  In this case, more folds are necessary for the large TV screen, and the patent shows six segments folding in a zig-zag or accordion style on top of one another when moving to the stowed position.  Unlike rollable TV's with a base that holds the core electronics, the foldable TV shown in the patent application proposes end frames on opposite sides that presumably hold the internal electronics for the TV, while also holding speakers and acting as stands for the screen when deployed.

Of course, LG will need to overcome the same hurdles that have plagued smart phone manufacturers like Samsung in making these foldable screens durable and reliable.  However, if LG can successfully solve the problem of a rolling OLED screen, one would think this company can also solve and bring to market some foldable option.  Regardless, until we see a more finalized design on a show floor like CES, the jury will be out on whether this future TV tech will become reality of tomorrow.

A quick legal point before we head back to turkey leftovers.  Patent applications generally publish 18 months after an initial filing, so LG has been working on this design for quite some time.  Patent publications put the world on notice regarding what companies are seeking to patent, but until the national patent offices actually examine and grant the patent, there is no enforceable right.  So LG is far from dominating the market, let alone hitting the sales shelves on Black Friday.  Nevertheless, this gives us a glimpse into the product development process and where the legal battles may be over intellectual property in the tech field for the future.

The Bottom Line is: tech products will never stop innovating, and consumers will generally continue to benefit.  As a closing note about American Thanksgiving, I want to thank Tom and Scott for continuing to make Current Geek in all its iterations and making this segment an integral part of their podcast.  Furthermore, I'm thankful for all you listeners who send feedback and suggestions, and I look forward to providing more legal knowledge and insight in 2020 and beyond.

----------------------------------

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. 194: Privacy Law Issues with Facebook and Stalking Apps

Hi, and welcome back to Legal Geek. This week, we take a look at a couple more news stories in the always evolving field of privacy law, these being related to Facebook and Stalking software apps.

https://archive.org/details/legalgeekep194  

Retina-X Studios is the maker of three stalking apps designed to keep tabs on computers or mobile devices.  These software apps are called Mobile Spy, Phone Sheriff, and Sniper Spy.  Such apps allow for real-time monitoring and reports of activities and movements of such devices, along with some blocking capabilities.  On their website, Retina-X markets these apps as useful for tracking employees use of computers as well as children.  In other words, people and devices that the software user hypothetically has control over.

However, in 2018 some of the data collected by these apps became subject to public knowledge thanks to some hackers who attacked this company and its technology.  For example, some photographs saved on phones for the user's review were revealed.  This data breach led as most do to a consumer protection complaint to the FTC, which investigated the company and eventually settled on an agreement to avoid significant monetary sanctions.

In addition to the failure to secure all data from the hackers, the FTC found that Retina-X did not do enough to ensure that the applications were used solely for legitimate tracking purposes.  Evidence supporting this conclusion included that Retina-X facilitated surreptitious use of tracking by telling customers how to keep the tracking app icon from showing on the device it was installed on.  Furthermore, the app could be installed without the knowledge or consent of the device user by bypassing manufacturer restrictions such as by jailbreaking devices.  Both of these practices opened the door for significant criminal and dangerous use of the software.

So the FTC settlement requires that the company halt sales of any software that bypasses security protections, while also making the customers affirmatively state that they will only use such apps to monitor children or employees or someone who provides written consent.  The establishment of comprehensive security protocols to protect sensitive data is also being required.  Despite the FCC efforts to protect consumers, we must all understand that such types of software exist and are easily obtained.

This week another big privacy issue hit the news about Facebook, which had its iOS app operating without user consent to activate and capture live video images with the rear-facing camera while the user was scrolling through their news feed.  The live video capture was hidden behind other onscreen content.  Whether this was intentional or an accidental bug, as Facebook assets, Facebook took swift action to patch this issue and remove the problem from the iOS app.  Even with the fix, this is another reputational hit to Facebook, with consumers growing ever more sensitive and aware of the lack of data privacy on that social networking platform.

The Bottom Line is: consumers and private citizens have a lot of help on their side in the battle over data and privacy, including the government agency the FTC as well as all the technophiles who keep close tabs on functionalities within apps like Facebook.  Nevertheless, we would all be wise to be aware of how open and at risk our sensitive and private data and information can be, so that we can opt-in or take precautions based on our own personal preferences.

----------------------------------

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. 193: Monopoly and Hasbro define cutting edge in EU Trademark Law

Hi, and welcome back to Legal Geek. This week, we review how Hasbro and its Monopoly brand have surprisingly ended up being the center of a seminal case changing how trademark filing practice works in the European Union.

https://archive.org/details/legalgeekep193 

Like many other jurisdictions, the European Union allows trademark registrations on brands and logos that have not yet gone into actual use, but eventually use in commerce must be proven to confirm the validity of the trademark.  Whereas in the U.S. applicants are give up to 3 years to prove use to finalize a registration, in the EU a five-year grace period is provided before proof of use is necessary.  The EU is more liberal as well in that during the grace period, the trademark rights are still enforceable, unlike the U.S. where use is required before final registration or enforcement.

As a result of this set of laws, many trademark owners in the EU have commonly refiled new applications covering their brands before the expiration of the 5 years, thereby resetting the clock on the grace period and avoiding the need to prove use through evidence.  However, this practice is in jeopardy after a case involving Hasbro and its famous Monopoly brand.

Hasbro followed the common practice of re-filing trademark applications for the Monopoly brand in several classes of goods and services before the end of a 5-year grace period in a pending prior registration.  Hasbro's most recent re-filing came under a cancellation attack from a company called Kreativni Dogadaji, specifically for violating a rule prohibiting bad faith in trademark filings, this rule demanding honest commercial and business practices from EU applicants.  While an administrative review panel originally favored Hasbro and the historical re-filing precedent or practice, an Appeal Board reversed this decision last month and sent the EU trademark world into a new reality.

To this end, the Appeal Board held that when a party seeking cancellation of a trademark uses objective factors to support a claim of bad faith, the burden of proof shifts to the trademark owner to prove its use of good faith in the filing.  That can be incredibly difficult to do when the new application contains identical or substantially similar marks or goods and services covered, as was the case in the Hasbro case.  Hasbro appeared to admit clearly on the record that an important reason for the re-filing was the resetting of the grace period to minimize administrative burden of maintaining the trademarks, and the Appeal Board latched heavily onto this in their decision.

So the Monopoly brand is vulnerable to more competition in Europe, which puts Hasbro in a somewhat similar spot as in the U.S., where the suffix -opoly has been deemed to be descriptive and allowed for all similar game competitors to use.  More importantly, the overall filing and maintenance strategy for trademarks in the EU has changed for all brand owners, as now avoiding the proof of use requirement is very difficult.  And it all stems back to a case about the tabletop game Monopoly, go figure.

It will be interesting to see how filing strategy changes for European brand owners moving forward.  Further court decisions are also due which may vary the outcome from the initial ruleset put out in the Monopoly decision.

The Bottom Line is: while the Appeal Board made a drastic change in trademark law and practice in the EU with this decision by shifting the burden of proof in a bad faith/good faith analysis, the end result may be an EU trademark system more in line with how brand owners must prove use to actually obtain an enforceable registration in many other jurisdictions.  Consistency is a good thing for companies doing worldwide business, so this may be a welcome change despite the increased costs that will be incurred for collecting and submitting the proof of use evidence when the grace periods have run out.  One might say the EU no longer has a monopoly on enforcing non-used trademarks, but we don't want to be too on the nose.

----------------------------------

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. 192: A Spooky Legal Battle over Vampire Drinks

Hi, and welcome back to Legal Geek. This week, we celebrate Halloween with a review of a recently-filed lawsuit over Vampire drinks, and we don't mean blood.

https://archive.org/details/legalgeekep192

Happy Halloween everyone, and I hope you find plenty of treats and not many tricks. In the legal world, we have many tricks up our sleeve, including reverse confusion in trademarks. But before we bite into that concept in detail, let's explain the conflict leading to the case we're covering today.

Vampire Family Brands is a California company that has sold Vampire-branded wine since 1988. In the 3 decades of operation, Vampire has extended itself into other fields including Vampire Taco and Vampire Gourmet Bloody Mary Cocktails. Nothing is more on brand than using Vampire for a bloody mary, after all. Vampire has sued the owners of the Applebee's brand and their major franchisees for alleged trademark infringement.

Applebee's restaurants introduced a $1 cocktail called the Vampire cocktail this month, a drink that is a Tiki beverage consisting of rum and various fruit drinks, served with a plastic set of vampire fangs. This is being done as a loss leader to bring in customers to purchase meals at Applebee's, and Vampire Family Brands did not take kindly to this invasion of their dark-themed liquor space. So this lawsuit was filed claiming that Applebee's is infringing the Vampire trademark in this endeavor.

The legal theory of the case is what is known as reverse confusion. Unlike regular consumer confusion, where a usually-smaller startup infringes the branding of a more established company that has built up consumer goodwill in the brand, reverse confusion is defined by having a powerful entity upstart that threatens to link itself to a smaller pre-existing brand. In other words, Applebee's, the new kid on the block to Vampire drinks, has large resources to market and advertise to consumers, which may lead to the consumer confusion that Vampire Family Brands is an unauthorized user of trademarks that the bigger company Applebee's owns.

Vampire Family Brands does have several federal trademark registrations on various glassware and food and beverage products, including restaurant and bar services. This entitles them to a presumption of nationwide rights and that means a valid case can be made against Applebee's here. That being said, the alcoholic drink itself is not identical to anything Vampire Family Brands has registered as a covered good or service, nor is the Tiki drink identical to anything Vampire Family Brands offers. That gives Applebee's a counterargument to make, but the Vampire drink is really being used to promote restaurant and bar services, which is covered by a live registered trademark. The facts seem to favor the small company Vampire, so perhaps Applebee's will have to submit to a settlement here to avoid being put in a casket of damages.

The Bottom Line is: October never fails to give us a good spooky themed legal case, and this year it is a battle of Vampires that Bram Stoker would be proud of. This proves the importance of big companies doing some clearance research before launching big marketing campaigns and new brands, as the Vampire trademarks would have been readily apparent upon a quick search of the US trademark database. Applebee's could've avoided hot water here, but maybe they will find a wooden cross or silver dagger to save them in this legal fight.

----------------------------------

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. 191: The Continuing Reach of Ms. Pac-Man

Hi, and welcome back to Legal Geek. This week, we review a current lawsuit in California showing that the rights to the arcade classic Ms. Pac-Man are still very valuable, at least to the two parties in dispute.

https://archive.org/details/legalgeekep191 

Bandai Namco Entertainment America is the rights holder for publishing the Pac-Man and Ms. Pac-Man games.  Bandai has sued a maker of retro game systems called AtGames Holdings for alleged trademark and copyright infringement over the use of Ms. Pac-Man concepts and assets.  Despite being initially released to video arcades in 1981 as a sequel to the original Pac-Man, the desire for players to continue playing this game remains high and thus, the IP rights remain valuable.

AtGames had previously dealt with Bandai in a license agreement over the original Pac-Man game.  Apparently the quality of the game products brought to market did not comport with what Bandai expected and demanded, and as such, AtGames lost the licensed rights to make this game.  When AtGames approached Bandai for a license for Ms. Pac-Man, Bandai refused.  

Trying to find another route to these rights, AtGames has apparently engaged with the game's original inventor to purchase some rights to Ms. Pac-Man.  AtGames then began producing a couple prototypes and discussed them with retailers.  Bandai sued AtGames a few weeks ago over this, asking in addition for a temporary restraining order to stop any activities of AtGames in this regard.

So if both companies hold some legitimate rights to the property, who will win?  Assuming this case does not settle, the odds still favor Bandai at this early stage of the proceedings.  Although it is unclear what exact rights were sold by the inventor to AtGames, one possibility is the copyright termination right now provided to authors of works that were made on or after 1978, and if this is the case, an interesting split of rights will eventually occur.

Authors have the right in the U.S. to terminate any copyright assignment or license previously made after 35 or 40 years from the grant of rights or publication, so long as notice is provided sometime after the 25 or 30 year mark.  This allows authors or their estates to have another chance to negotiate rights transfers, particularly for creative copyright works that are of significant ongoing value.  Assuming any copyright the inventor held was assigned to Namco around 1980 or 1981, the 35 year term from publication ran out a couple years ago and so this work would be eligible for a termination proceeding.

Thus, AtGames may potentially have some of the copyright rights moving forward under this scenario, while Bandai of course continues to own the trademark rights they have developed from 4 decades in the marketplace.  This could force the parties to the negotiation table to figure out a resolution that allows both to continue practicing and exploiting the Ms. Pac-Man IP.  Otherwise, both parties could be locked in a standstill with no products being available to end consumers.  Who knew a classic arcade game could raise such complex legal issues.

The Bottom Line is: protecting the ongoing long-term revenue stream from Ms. Pac-Man is obviously important to Bandai, so it makes sense that they have brought AtGames into court to try and stop the competition.  However, really old properties can be subject to things like copyright termination, which complicates the ownership issues and provides leverage to third parties like AtGames.  It's an interesting legal conundrum we will keep our eyes on.  If there's any lesson to be learned for the common man here, it is that when license negotiations for rights break down, it is exceedingly hard to find alternative ways to properly use the rights, so it is generally better to move on to another property rather than risk a lawsuit.

----------------------------------

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. 190: The Limits of Design Patent Protection

Hi, and welcome back to Legal Geek. This week, we review a recent Federal Circuit appeals case on design patents that confirmed just how far they can extend in the US.

https://archive.org/details/legalgeekep190

In the US, patents are offered on two types of innovations: utility patents for functional inventions, and design patents for ornamental and aesthetic designs of articles of manufacture. The easiest way to understand the difference is to provide the example of a table lamp, in which how the electricity functions to illuminate the bulb would be covered by utility patents, while the design defining how the lamp looks to consumers would be covered by design patents. Design patents are more like trade dress and in most other countries, designs are registered like trademarks instead of examined for patentability.

Design patents have been used a lot in recent years, especially by software companies to cover ornamental features in things like user interface designs. Perhaps most notable is the Apple v. Samsung conflict which led to damage awards of billions of dollars based on the look of a phone user interface. As these companies begin pushing the boundaries of how broad design patents can be, we come upon the current case to discuss today

This case between Curver Luxembourg and Home Expressions is interesting because it involved design patent interpretation in a scenario not previously opined upon in the courts. Curver filed a design patent entitled Furniture Part to cover an overlapping Y-design to be used on furniture in 2011. The drawings did not show the design in use on furniture, just the design by itself. During prosecution, the Patent Office Examiner objected to the title based on being too vague. Curver amended the title and the claim of the design in response to refer to this as a pattern for a chair.

Years later, Curver went to enforce this design patent against Home Expressions, which was using a substantially similar overlapping Y-pattern in baskets. Home Expressions objected to this lawsuit, claiming the design patent was limited to chairs. But as stated previously, chairs only shows up in the words of the patent, not in the drawings, and the drawings are usually what defines the claim scope of a design patent.

The Federal Circuit confirmed the lower court decision in this case that the design patent was limited by the words to implementation on a chair, thereby not being able to cover the Home Expressions baskets. The court relied on 100 years of case precedent and Patent Office practice in forcing design applications to be limited to designs as used on an article of manufacture, not just abstract 2D designs. Because no guidance on the article of manufacture was given in the drawings, the court could turn to the words of the application and make them limiting in this case. Thus, design patents are confirmed to not extend to designs absent specific goods, imposing an important limit on how broad these patents can be.

The Bottom Line is: design patents are an important tool for manufacturers to use in covering all aspects of their products, but just like utility patents, they cannot broadly extend to underlying abstract ideas and concepts. While the unusual fact pattern presented by this case may not be repeated again soon, this does provide guidance to how design patents have limits which may define when other types of IP protection may be more appropriate for use to cover a product or invention.

----------------------------------

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. 189: Name and Likeness turn tide for NCAA Athlete Pay

Hi, and welcome back to Legal Geek. This week, we review a California law passed this week that is causing a significant shift in the discussion over athlete compensation in college sports, and the next steps following the California law.

https://archive.org/details/legalgeekep189

California's legislature passed a bill entitled the "Fair Pay to Play Act" recently and governor Gavin Newsome signed this to make it a law become effective in 2023. The law prohibits the NCAA, the organization that regulates college athletics in the US, from punishing students who earn money through use of their names, images, or likeness. This law is in direct contravention to a long-standing NCAA rule that made athletes ineligible if they made money from their status as college athletes.

In short, an athlete will be able to do an autograph signing or an endorsement deal using their fame to make some money without suffering any eligibility concerns, just like other non-athlete students can do currently. If you've got fame from whatever source and can monetize it, now you will be able to.

The debate over college athlete compensation is a long one and we've covered other developments including some private university players considering unionizing. At every step of the process, college administrators and the NCAA have argued that competitive balance would be undermined and that college sports would be in jeopardy as a whole if such reforms are made. Yet when previous reforms like providing food to players and providing stipends to players occurred, the world of college athletics did not really end.

Instead of pushing out ahead of these lawmakers and being forward-thinking, the NCAA and its member institutions have continued the company line about the importance of amateurism in college athletics. But as the revenue generated off these sports and athletes has grown and grown, the calls for some additional compensation have become impossible to ignore. So instead of having a chance to craft player compensation in a way that works best for the NCAA and its stated goals, now the organization will need to be reactive to what state and federal lawmakers are imposing on them, perhaps ending up in a worse place than if they had been proactive on player compensation.

To this end, many other state legislatures immediately introduced similar legislation as the Fair Pay to Play Act this week after California signed it into law. Anthony Gonzalez, a U.S. congressman and former football player, is also introducing a federal bill for consideration along the same lines. The federal government could avoid any state-by-state inconsistencies and this is likely where the NCAA will try to make their last stand against this part of amateurism. If recent case and legislature actions are any guide, the outcome won't go well for the NCAA.

The Bottom Line is: as with many legal issues, this all boils down to money. There's simply too much money in college athletics, especially football and basketball, without any significant compensation going to the athletes who make these sports exist in the first place. There will continue to be debates on how to fairly compensate the efforts of these players beyond Name and Likeness rules, but this is a huge step in redefining what NCAA amateur athletics will be in the future.

----------------------------------

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. 188: Is "Scraping" Data illegal under U.S. Law?

Hi, and welcome back to Legal Geek.  This week, we cover a California federal case decided this week on whether "scraping" of publicly-available data on websites is illegal when against the terms of service of the website provider.

https://archive.org/details/legalgeekep188 

Last December we covered an interesting web scraping case where Alan Ross Manufacturing tried to craft intellectual property causes of action to stop web scraping and content copying of another company.  If you don't recall that segment, "scraping" is the process of extracting data from the HTML of a webpage in a similar manner as a person viewing the website on a browser, generally for the purposes of data collection and manipulation.

This case stems from a small company called hiQ, which scrapes data from publicly-available portions of LinkedIn and sells reports to employers about which of their employees may be looking for new jobs.  LinkedIn sent a cease and desist letter to hiQ, indicating that such practice was against their terms and also illegal under the Computer Fraud and Abuse Act, the 1986 anti-hacking law still in effect today in the U.S..

We've also covered the CFAA before, and it makes it a crime to access a computer without authorization or exceed authorized access.  This law is broadly written because it predates modern web technologies, but the law is still in force and is continually being interpreted for how it works in the modern context.  LinkedIn argued for an interpretation of the CFAA that would make any affirmative action of an owner, including a cease and desist letter, prohibitions in terms of service, and technical measures like IP-based blocking be sufficient to show that the offending access was unauthorized and effectively illegal hacking under the law.

The California district judge declined such an interpretation of the CFAA.  He noted that when you publish a publicly-available website, it is like having open store hours in that you implicitly give members of the public permission to access that data.  The judge argued that such a broad reading could enable website owners to block access for any reason, including improper reasons like gender discrimination, with the backing of a threat of federal law supporting such blocking.  In short, the potential outcomes from interpreting the CFAA to cover hiQ's conduct in this case would be very problematic for future cases.

The judge further drew a line between public and private portions of websites generally being distinguished by password authentication or the like.  If a page is available to the public without a password, it's presumptively public and any download of data from that should not be considered a violation of the CFAA.  That may also be a key element of whether this decision gets overturned if it is appealed to the 9th Circuit Court of Appeals.

A prior 9th Circuit decision was issued in 2016 regarding scraping of Facebook data from another company, and in that case, the scraping was deemed illegal under CFAA based on a cease and desist letter sent by Facebook to the scraping company.  However, one distinction there is that the data scraped was behind password protection, albeit with the permission of the password owner.  That will certainly be what hiQ argues is a critical distinguishing factor should this get appealed and LinkedIn tries to make that 2016 precedent case apply again here.  We will monitor for such an appeal, as it will help define an important new frontier of how the federal anti-hacking law will be applied moving forward.

The Bottom Line is: no matter how this case linking web scraping and anti-hacking laws comes out, it seems likely that there will be a push in the coming years for Congress to supplement the CFAA with updated new laws better defining the limits of modern web practices with regard to criminality.  If that does not occur, there will continue to be many cases where old, broad language gets interpreted based largely on societal norms like this California case or litigants coming up with unique claims to avoid being locked into the CFAA, as done on other cases we've covered.  Once again, the law struggles sometimes to keep up with the tech.

----------------------------------

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. 187: Everybody Copies Warcraft

Hi, and welcome back to Legal Geek.  This week, we cover a new lawsuit filed last month by Blizzard Entertainment against a competing game developer for allegedly knocking off many elements of their series of Warcraft games.

https://archive.org/details/legalgeekep187  

As most listeners of Frogpants network shows know, Blizzard has recently released WoW Classic, a revisit to the original days of World of Warcraft.  That endeavor has been very successful, at least initially, so Blizzard knows the market power of copying elements of Warcraft and reusing them in new game titles.  Warcraft has been a primary profit driver for Blizzard since the initial game's release in 1994.

As such, it should not be surprising to see Blizzard also cast a wider net in trying to stop unfair competition and copying of this same valuable intellectual property.  In this case, a Hong Kong company called JoyFun Inc. released a game entitled Glorious Saga on mobile and web platforms last October.  The marketing materials for Glorious Saga appear to use many visual and audio elements that appear to be copied from the Warcraft series.

Indeed, the alleged copying goes well beyond the marketing materials intended to get players interested in Glorious Saga.  Players of that game have reported that all kinds of original Warcraft elements such as names and artwork for characters, locations, and weapon designs are pulled directly from the Warcraft universe.  Of course, JoyFun did not approach or obtain a license to use this subject material, assuming it is protected by copyright or other IP.

So Blizzard filed the lawsuit in California to try and shut down Glorious Saga and its game servers.  Blizzard makes the case in its Complaint that JoyFun has also previously ripped off IP elements from Pokémon and Yu-Gi-Oh in other games without taking appropriate licenses of the underlying IP.  To this end, JoyFun operates in that legal gray area where they often force companies like Blizzard to pursue them formally to stop this type of game development practice.

The Bottom Line is: While some consumers may have mixed feelings about Blizzard enforcing IP rights in court, in this case Blizzard is still actively developing and exploiting their own Warcraft universe.  That makes it harder to justify what JoyFun is doing at the same time, assuming they did copy these original assets from Warcraft in the Glorious Saga game.  We will continue to monitor to see if JoyFun puts up any significant defense to this lawsuit, at least when we aren't busy leveling in The Barrens or Stranglethorn Vale.

----------------------------------

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