Legal Geek No. 182: Activision Invokes Free Speech and GenCon is Here!

Hi, and welcome back to Legal Geek.  This week, we cover a lawsuit where Activision Blizzard is invoking free speech protection and remind you about the awesome events happening at GenCon this week.

https://archive.org/details/legalgeekep182 

As covered on The Instance and other news outlets, Blizzard co-founder Frank Pearce is leaving the company, so change is in the air at Activision Blizzard. But one thing that never changes is the fact that this company is always in interesting litigations, including the Warcraft-Diablo related patent case we covered last week. 

This week, we cover a different type of lawsuit, that being a trademark infringement lawsuit brought by AM General, the maker of Humvee vehicles, against Activision for showing these same vehicles in the Call of Duty game series. AM General filed this lawsuit in late 2017, claiming that the unauthorized use of images of their Humvee vehicles in Call of Duty games has allowed Activision to reap billions of dollars off the goodwill of their company.

While we have seen similar claims in recent segments on personality rights such as those related to iconic dance moves, in the trademark infringement context, these legal claims are much harder to win. This is in part because U.S. courts have used First Amendment concerns to hold that trademark owners cannot sue over use of their brands in creative works unless the marks are completely irrelevant to the work, or if the author expressly misleads consumers. This is an interesting use of First Amendment protections, as they do not normally apply between two private non-government parties.

So for example, it's easy to sue if you put a branded cereal box in a TV sitcom scene without authorization, as any old cereal box could have been used in most cases, but that is not the context here. AM General has supplied the US military with Humvees for nearly 40 years, and that has made the vehicle a fixture in war movies, telecasts, and news shows. So in this context of war video games, Activision is able to make the case that Humvees are artistically relevant to these games. So the first exception of the mark being completely irrelevant to the creative work does not apply. Plus the use of Humvees is minimal in the overall context of the game being reviewed, being on screen for 10 minutes out of about 35 hours of game play.

The other factor of consumer misleading is also likely not pertinent here, as Activision does not draw any association with AM General as the source of the games. So in this context, the Bottom Line is: AM General probably loses this trademark lawsuit based on First Amendment free speech protections, an interesting shield for a company like Activision in this circumstance. Never doubt the ability of Activision Blizzard to remain getting in interesting lawsuits, though. 

A final special note since this is GenCon week in Indianapolis. You can find the Legal Geek seminars on Thursday at 1 PM in the Crowne Plaza hotel and on Friday at 10 AM in the JW Marriott hotel. Friend of the show Justin Robert Young is also putting on a couple seminars, and you can check those out in the convention center on Friday at 8 PM and on Saturday at 10 AM. Please reach out on Twitter if you want to track us down this weekend. 

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Legal Geek No. 181: Blizzard Activision takes down Patent Troll

Hi, and welcome back to Legal Geek.  This week, we turn back to our favorite geeky subjects after our usual summer Supreme Court sabbatical, with a review of a recent Court of Appeals decision confirming that a patent being used to sue World of Warcraft and League of Legends was invalid.

https://archive.org/details/legalgeekep181 

A patent holding company called Game and Tech sued Activision Blizzard and Riot Games for allegedly infringing their U.S. Patent 8,253,743.  This patent covered customization of avatars used in online games, which obviously falls right into the wheelhouse of games like World of Warcraft and League of Legends.  Game and Tech is a non-practicing patent holder, which is why some have labeled them a patent troll in this marketplace.

Nevertheless, whether you think the patent owner is a troll or not, Activision Blizzard has used their strong knowledge of fantasy and their own back catalogue of games to vanquish the alleged troll.  Patents can be challenged as invalid over prior art available at the time the patent was filed, and this validity challenge can take place in the courts or in front of administrative judges at the Patent Office.  In this case, Activision challenged the validity of this patent in the Patent Office and won that case a few months ago.  Game and Tech appealed to the Federal Circuit Court of Appeals. 

The arguments made by the patent owner were fairly flawed.  One argument was that the Patent Office judges misinterpreted the scope of the claims, but as these administrative judges tend to be the best experts available on patent law and interpreting patents, this argument died quickly at the appeals court.  The patent owner also argued that an obviousness rejection could not be made on only one reference, e.g., multiple references needed to be combined.  The Federal Circuit bashed this argument as being wrong as a matter of law, but it was a moot point since the patent could be invalidated based on one reference or based on a combination of two references.

As a result, last month the Federal Circuit affirmed the judgment of the Patent Office Appeal Board, confirming the patent is invalid and not enforceable against the makers of WoW or League.  More specifically, the court held that the Diablo II game manual described creating and customizing avatars for use in game and in online chat channels, or at least suggested the concepts claimed in the patent well enough to render them obvious.  Obvious inventions are not entitled to patent rights, so this has caused the Game and Tech patent to be invalid.

The battle may continue between these parties, as Game and Tech has other patents which it seeks to enforce against the game company giants.  But for now, if this truly is a patent troll, the Alliance and Horde have come together to bring a cataclysm onto this particular patent.

The Bottom Line is: worldwide success and high profit margins as seen by these makers of WoW and League are very good at attracting lawsuits from third parties, patent holders or otherwise, who want a piece of those profits. However, for this particular patent owner and non-practicing entity, the courts have declined to allow them to cut in on the profits from Azeroth.  Unfortunately for the big companies, employing legal teams to defend against such challenges is just a cost of doing business, especially in the U.S. in the current era.

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Legal Geek No. 180: The Supreme Court's New Swing Justices

Hi, and welcome back to Legal Geek.  This week, we finish up our series on the recently-concluded Supreme Court term with a look at how there may be more than 1 swing justice now.

https://archive.org/details/legalgeekep180 

When Anthony Kennedy announced his retirement from the Court last year, we reflected on his many years serving as the so-called swing justice.  While Kennedy was a conservative overall, he would break from his ideological colleagues and join the liberal justices on big issues like abortion and LGBT rights.  There was a significant concern that the swing justice role may disappear with Kennedy's departure.  But the data is in on Kavanaugh's first term, and it leads to some interesting initial conclusions.

Kennedy's replacement Brett Kavanaugh did fall solidly in line with the conservatives, voting over 90% of the time in agreement with Chief Justice Roberts and Samuel Alito.  However, there were clear distinctions drawn between his views and that of the other Trump nominee to the court Neil Gorsuch.  These two conservative justices voted together 70% of the time, which is the same amount as Kavanaugh's agreements with liberal justices Elena Kagan and Stephen Breyer this term.  Thus, there are some significant differences of opinion among the court's conservative members.

This has created a scenario in which the four liberal justices, who do vote in line with one another over 85% of the time, have been able to pick off different individuals on the conservative majority depending on the issue at hand.  While Chief Justice Roberts and Brett Kavanaugh are most moderate and join with the liberals more than the other conservatives, Neil Gorsuch is a bit more of a loose cannon who joins his liberal colleagues or more closely divided issues, including things like criminal defense cases.

That means there are three reliable options in Roberts, Kavanaugh, and Gorsuch that the liberal justices can try to convince to join them on any hotly contested issue.  This creates a situation which may be more advantageous for the liberals, as they don't always have to deal with one swing justice.  In this regard, there may now be 3 swing justices on the Roberts court who each help chart the course for how the most partisan issues are handled in the next few years.

If you're curious about the voting statistics and numbers from the first term and want to dive in more, check out the articles and resources available on SCOTUSBlog and Five Thirty Eight.  You can find other fun facts like the relative liberal and conservative stance of the most moderate Supreme Court member over the past 40 to 50 terms, as well as which Supreme Court justices disagree with one another the most, that being Clarence Thomas with each of Sonia Sotomayor and Ruth Bader Ginsburg in the 2018-19 term.

The Bottom Line is: there's little doubt that the replacement of Anthony Kennedy with Brett Kavanaugh has ushered in a new era on the Supreme Court.  While there's still concern about some long precedents being in danger of consideration for being overturned in future terms, the data shows that the liberal minority on the court may have a better chance now of gaining a swing vote when needed.  As always, we will keep our eyes on this highest court in the land as future terms and significant decision develop.

June and July always lead us to heavy serious subjects thanks to the annual end to the Supreme Court term, but I'm happy to report we have some interesting geeky subjects to tackle in the coming weeks.  See you then!

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Legal Geek No. 179: The Census and the Citizenship Question

Hi, and welcome back to Legal Geek.  This week, we continue our series on the major end-of-term Supreme Court decisions with a review of the Citizenship question census case. 

https://archive.org/details/legalgeekep179  

The U.S. conducts a census every 10 years, with the next one coming up in 2020.  This survey of the public is configured to identify, among other data, where people are within the country so that the government can provide adequate services for the populations in each region.  The census also results in legislators being apportioned to states according to the relative population in those areas.

The goal of the government in conducting the census is to try and get the most accurate data and population count possible, yet after the Trump Administration took office, the Department of Commerce moved to add an interesting question to the census that has not been used since 1950.  That question is whether the respondent and their family members are U.S. citizens.

The criticism of this question is that with the strong push of the current administration in the immigration field, that the citizenship question would make many non-citizens decline to respond to the census.  With this skew of the population being heavily Latino and/or democrat, such a dampening of census response would inflate the relative numbers in republican districts and perhaps allow for more gerrymandering and electoral map favoritism of the republican party.  The question was challenged as improper in the courts.

The court review has always been focused on whether the administration has a legitimate, important reason for adding this citizenship question.  The administration and the Department of Justice claimed it needed citizenship information to help enforce the Voting Rights Act.  However, the Trump administration has not shown much interest in enforcing the act over the past couple years, and the requested addition of the citizenship question predates any involvement from the Department of Justice on this issue.

In other words, the Trump administration appeared to be falsifying the reasoning for the citizenship question.  Justice Roberts joined the liberal justices in a 5-4 majority decision of the Supreme Court last week upholding the challenge to stop this question being added to the census, sending the case back to the Commerce Department census agency for further handling.  Although a new proposal could be made with new reasoning to consider the citizenship question, that seems unlikely since census forms need to start being printed no later than September or October, which is right around the corner. 

Roberts was openly critical of the administration in his opinion, noting that the reasoned explanation requirement applied to administrative law is meant to ensure that agencies offer genuine justifications for important decisions, so that they can be scrutinized by courts and the public.  Accepting contrived reasons would defeat the entire purpose of this enterprise.  Judicial review demands something better than the explanation offered for the action taken in this case.

The Bottom Line is: it was posited that John Roberts may become a new swing justice on the court with the departure of Anthony Kennedy last term, and this citizenship question census case shows that he can and will join with his more liberal colleagues when justified.  That's an interesting development for the future of this Court.  But this census action, much like some other actions of the Trump administration that have been previously stricken down by the Supreme Court, was not carefully reasoned or applied and that left fatal flaws for the court to identify easily.  If the Trump administration had legitimate reason to add this census question, they did a poor job of explaining it in court.

Next week, we'll finish our current series on the Supreme Court term with a look at swing justices and whether there are actually 3 swing justices now instead of 1.

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Legal Geek No. 178: Supreme Court Declines to Stop Partisan Gerrymandering

Hi, and welcome back to Legal Geek.  This week, we review one of the final big decisions of this Supreme Court term, that being the partisan gerrymandering case. 

https://archive.org/details/legalgeekep178

We covered the gerrymandering cases last year in detail when they first went up to the Supreme Court, but here's a quick refresher.  Gerrymandering is the practice of drawing electoral district lines in such a way to give an unfair advantage to a certain political party, or a race, or some other group.  Electoral districts are typically drawn every 10 years after a census, leading to this conflict coming up over time.  The Supreme Court and other courts have stepped in historically to throw out gerrymanders that are race-based, but the bigger question remained of whether politically-motivated gerrymanders could be addressed by the Court.

In 2004 the Supreme Court most recently spoke on the issue, declining to consider the issue as a purely legislative/political matter.  At that time, the fifth justice in the majority was Justice Kennedy, who indicated in a concurring opinion that he was open to judges evaluating such gerrymanders but only if an adequate test could be formed.  That led to development of various tests in the last 15 years, including the efficiency gap test, where the popular vote in a state is compared to the percentage of legislative seats a party wins.  These tests were developed to try and give the courts something to use to evaluate and throw out the most egregious of partisan gerrymanders. 

Last term a case about a Wisconsin partisan gerrymander was kicked back to the lower courts on procedural issues.  This year, a new case came back up to review a democrat-favoring gerrymander in Maryland and a republican-leaning gerrymander in North Carolina.  In the case of one of the gerrymanders, the party in charge of drawing the district lines did not hide at all that the district lines were being drawn to favor their political party, which is the boldest type of partisan gerrymander one can imagine.

Nevertheless, Justice Kennedy is no longer on the Supreme Court.  So it should come as no surprise that the conservative justices led a 5-4 decision consistent with the 2004 decision, declining to adjudicate partisan gerrymandering issues because they are purely legislative issues outside the scope of what the courts can review, by their view.  The dissent, written by Justice Kagan, harshly described this decision as the first time ever the court refused to remedy a constitutional violation because it thinks the task beyond judicial capabilities.  But regardless of the passion in the dissent, partisan gerrymandering stands and will not be stopped by the courts.

So what happens from here?  We are coming up on another Census in 2020 and the state legislators elected next year will then have a chance to redraw political districts again, perhaps with some states becoming more bold in their unfair partisan gerrymandered maps.  However, while the federal courts have now declined to apply the U.S. Constitution to partisan gerrymanders, state courts could still apply their own state constitutions to block certain egregious gerrymanders in the future.  Furthermore, many states like Michigan and Ohio have recently put into place laws or constitutional amendments requiring bipartisan line drawing commissions or reviews of electoral districts, in an effort to make sure the line drawing is done fairly.  Expect more such state laws and constitutional amendments moving forward as the battle over partisan gerrymandering goes into the states. 

The Bottom Line is: when it comes to gerrymandering, it is clear that the federal courts will be no recourse unless the gerrymander is on the basis of race or a protected class, not just politics.  That makes the 2020 vote a hugely important one since the Census will cause district redrawing with whoever gets elected next cycle.  While this decision may be a blow for election fairness in certain states, the impetus is now on the states to elect legislatures that will draw reasonable and fair districts, or put in independent commissions or the like to ensure fairness.  Gerrymandering is here to stay, but the battles will continue in the states over this contentious issue.

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