Legal Geek No. 57: Happy Thanksgiving and Upcoming SCOTUS Cases to Watch

Welcome back to Legal Geek. This week, I send Happy Thanksgiving wishes to the Current Geek crew and look ahead to the Supreme Court cases we should be watching in the 2016 term.

https://archive.org/details/LegalGeekEp57

Here's what we have to look forward to from the Supreme Court, as well as any others which end up involving intellectual property and/or geek culture:

Fisher v. University of Texas - race factors and affirmative action in university admissions is back in front of the court for the first time in about a decade.

Fredericks vs. California Teachers Association - First Amendment challenge to forcing compulsory union dues on governmental agency and public sector workers.

Evenwel v. Abbott - A case over redrawing legislative district lines and "gerrymandering," as the question presented is whether the One Person, One Vote principle require states to use voter populations instead of total populations when redrawing legislative districts.

Whole Woman's Health v. Cole - a challenge to Texas laws which serve only to shut down abortion clinics.

Little Sisters of the Poor v. Sebelius - Affordable Care Act (Obamacare) follow up on whether religious organizations can be forced by the mandates of the healthcare law to provide contraceptives and sterilization items via their benefits administrator.

Several death penalty cases, including Hurst v. Florida

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As always, send segment suggestions or comments to me on Twitter @BuckeyeFitzy or in the comments below.

Legal Geek No. 56: Do Free Inhabitants have any legitimacy?

Welcome back to Legal Geek. This week, we look into the legitimacy of those who claim to be Free Inhabitants in the US in an effort to avoid government actions, based on a suggestion from listeners James and Robert.

https://archive.org/details/LegalGeekEp56

A couple of videos have recently gone viral regarding so-called Free Inhabitants, which are people living in the U.S. who believe they are not required to follow U.S. laws because they do not identify as American or state citizens. Tracking these videos back to the hub of the small movement at freeinhabitant.info, you will see quite the show of legal theories and advice for the prospective Free Inhabitant. But do these legal theories have any merit?

Let's start with the viral video of the young lady refusing to leave her car following an arrest by a police officer. During her arguments with the cop, she cites the Articles of Confederation. Which would be great to rely on if it hadn't been superseded by the U.S. Constitution back in the 1700's. Immediately on its face, her claims, which would be better presented in a court of law rather than to a police officer, simply have no merit in today's America, or even that America of the 1800's.

Perhaps she's not the best representative of this cause, however. Going back to the Free Inhabitant website, there are all kinds of tips and lists for giving notice to employers and the U.S. government that you decline government benefits of any kind so you do not have to pay taxes, how to avoid having a driver's license or license plates, and how to avoid admitting use of a social security number or any such benefits. But there's little behind this advice beyond cites to old English common law and again, the Articles of Confederation.

It's also a kind of variation of another similar movement against following the laws called the Sovereign Citizen movement, similar to a Freeman of the Land movement in Canada and Britain. These movements have also pointed to the 14th Amendment to the Constitution, which conferred benefits of U.S. citizenship on former slaves in exchange for various freedoms, as implicitly creating two types of citizens: U.S. citizens subject to the federal government and state citizens subject to common law only.

But while it's a great ideal to try and remove consent to federal jurisdiction by not using zip codes, voter registrations, birth certificates, marriage licenses, car registrations, etc., the reality is that the federal government inherently provides other benefits like protection and safety of the borders for everyone within the U.S., which cannot just be disclaimed. If you want to claim sovereignty, you need to really go buy an island and secede from whatever country it was in originally. Then you will really be on your own and not just a protestor of laws that are disliked.

These movements have fought in court and there are over 100 decisions that have denied the legitimacy of these claims. If there were any merit to Free Inhabitants, some smart trial attorney likely would have figured out the right legal theory by now.

The Bottom Line: thinking outside the box is not a bad thing, but if you actually want to be a sovereign citizen or free of government, you need to leave or secede from a country like the USA.

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

Legal Geek No. 55: Google Books Survives with Fair Use at Appeals Court

Welcome back to Legal Geek. This week, we return to the expanding field of copyright fair use with a review of the Second Circuit Court of Appeals decision protecting Google Books from copyright infringement liability.

https://archive.org/details/LegalGeekEp55

Late last week, a three-judge panel in a New York federal court of appeals dismissed a lawsuit brought by an authors' guild against Google, claiming that the copying and digital storage of copyrighted books and other works in the Google Books program was copyright infringement. Just like the lower courts, the Appeals Court determined that Google Books is fair use under copyright law.

The current era of copyright law in the courts is one of reducing rights, as fair use continues to be more and more expansively interpreted. This is possible because fair use is a four factor balancing test which is a very gray area and always fact based. Judges can sometimes bend the facts to fit the factors in the way necessary to end up at a desired result, and some powerful lobbies like the Electronic Frontier Foundation are working to keep the ball rolling towards bigger fair use and less useable copyright enforcement rights.

Returning to the Google Books case, the judges ruled that Google's unauthorized digitizing and copying of the copyrighted works had a purpose that was highly transformative, specifically because it made a whole new resource for electronic access and analysis of data and information contained in this library of works. Furthermore, under another fair use factor, the public display of text provided to the public from the works when searched in Google Books is only a small amount, and these limited snippets are deemed to be an insignificant amount of the work. Additionally, another factor is effect on the market for the original work, and Google Books is not an actual market substitute for the protected aspects of the originals.

That means three of the four fair use factors favored Google rather than the authors. The final factor is the nature of the works, and while that factor almost certainly favors the authors, the balance of the equities favored Google because even though Google is a commercial entity with some profit motivations, this Google Books tool provides a new useful public service that may actually increase the market for the original copyrighted works in view of greater visibility to the public who may need information from the original books.

So Google avoids what would be a devastating loss, as minimum damages for copyright infringement is $750 per work, multiplied by the millions of works in Google Books becomes billions of dollars. Google Books will remain active, subject to a final appeal to the Supreme Court, which the authors' guild plans to petition for.

Even though this case has origins that date back about a decade, the law on fair use has certainly shifted in that time period to favor Google. What may have been a serious gray area case just a few years ago now seems to firmly fall under the side of fair use rather than copyright infringement. When this increase in the scope of fair use leads to truly useful research tools and new options like Google Books, it's easy to defend those organizations fighting for dramatic fair use expansion in the courts.

But one has to wonder if this trend risks going way too far and undermining the legitimacy and value of copyrights across the board. Something to watch as these major decisions continue.

Until next time, keep your fair use factors handy, and your Google tools also!

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

Legal Geek No. 54: DC Defends the Superman Trademarks with Vigor!

Welcome back to Legal Geek. This week, we take a look at how DC Comics is continuing to defend the long-standing trademarks in Krypton and Kryptonite against the forces of evil, AKA, trademark dilution.

https://archive.org/details/LegalGeekEp54

Superman started as a comic book in 1938 but further trademarks were developed in 1943 for Krypton and Kryptonite, which of course is the fictional material capable of weakening the Man of Steel. Krypton is a real element on the periodic chart as well as Superman's home planet, but that has not stopped DC Comics from continuing to actively use the mark and establish continued rights of the trademark (via secondary meaning to consumers, if nothing else).

As we've covered before on this segment, part of properly maintaining trademark rights is stopping others from cutting in on the mark and diluting it, such as by confusing consumers about the source of goods and services. The battle likely never ends with marks like Krypton, which have scientific as well as fictional roots. Just this month, DC Comics has actively engaged in legal disputes with two potential competitors using Krypton or Kryptonite marks.

In October 2014, Ravensmoon Productions filed a trademark application to register the Kryptonite Vapor mark and logo that the company uses with electronic cigarette refill cartridges. This product has been sold since 2013 using the mark without much fuss from DC. But many times, the application for a trademark is precisely what causes an original trademark holder to more vigorously defend their own rights, and that's what happened here.

DC Comics recently filed an opposition in the US Trademark Office against the allowance of Ravensmoon's application, and it looks Ravensmoon has no interest in a fight with the Man of Steel. They have announced on their website that the product formerly known as Kryptonite Vapor is now sold as Ravens Moon Vapor. So fear not, citizens of Metropolis, your teenagers won't be confused about whether their favorite vaping cartridges are officially licensed by DC Comics anymore.

While Ravensmoon may be a smaller company not willing to take on the likes of DC Comics, a much bigger company is also now at odds with this Superman IP in a similar fashion. Just this week, DC Comics filed an extension of time to oppose Chevrolet's own trademark applications for Krypton and Camaro Krypton in a class that covers automobiles. This trademark application has led to some rampant speculation about what project Chevrolet has in mind for these trademarks, including some assumptions that it has something to do with DC Comics (which clearly we now know is not the case).

Unlike some other DC superhero like Batman and his bat mobile, there's not an immediate obvious tie between Superman and automobiles. However, the mark is 70 years old and is so strong that consumers very well may assume at this point that Chevy's use of Krypton has something to do with DC Comics. That's the open question that will need to be decided by the Trademark Office or a court if DC Comics goes forth with an opposition or a trademark infringement lawsuit.

It will be fascinating to see what this project is, if it ever sees the light of day, and whether these two mega companies are willing to make a deal over this famous Superman IP. Keep an eye on these giants and the potential rare trademark battle between relative equals as far as legal backing and funding go.

Bottom Line: we can learn a lot from watching creative companies like DC Comics defend trademarks like the Superman IP, and one of this life lessons is to avoid filing trademarks that compete like Ravensmoon and Chevrolet has unless you are ready to fight a tough legal battle.

Until next time, don't go leaping buildings in a single bound without requesting a license from DC Comics.

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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. 53: Work Smartphones and Self-Incrimination

Welcome back to Legal Geek. This week, we review an interesting decision from a Federal Court in Pennsylvania about personal smartphone passwords and whether they are protected under the 5th Amendment.

https://archive.org/details/LegalGeekEp53

The 5th Amendment of the U.S. Constitution provides a number of rights, including the right of a defendant to not be compelled in a criminal case to self-incriminate oneself. Some of the interesting exceptions and limits to this rule were invoked this week in a case involving the Security and Exchange Commission and two defendants being prosecuted for possible insider trading.

More specifically, two former employees of Capital One are being investigated by the SEC for allegedly making over $2.8 million dollars trading on advance company earnings information gained as a part of their former jobs as data analysts for the bank. What led to the ruling this week was the fact that Capital One issues company-owned smartphones for employees, and the SEC wants to access the information on the former employees' phones to scour for incriminating evidence to prove the insider trading occurred.

But the fact that turned this ruling is this: Capital One has employees pick their own private passwords for the phones, and it is company policy to not have employees give this password to the company for security reasons. So even though these employees returned the phones to Capital One when they were fired a few months ago, Capital One cannot access the information stored on these smartphones because the former employees are the only ones who know the password.

The SEC argued under a rule called the collective entity doctrine that these were corporate records possessed by former employees, which are generally not protected by the 5th Amendment. But the court ruled that the confidential passwords chosen and maintained by the former employees could not be deemed corporate records since only the former employees know that information. Indeed, the fact that Capital One asks employees to not keep records of these personal passwords is directly contrary to assuming this is something owned by the corporation.

The SEC then tried to argue a different exception to the 5th Amendment applied, the so called foregone conclusion doctrine. That doctrine causes information to not be shielded from 5th Amendment protection when the government already knows of its existence and location. However, the court disagreed with this argument because the SEC is really on a fishing expedition, and the government agency doesn't know absolutely for certain that incriminating information is on those phones.

So the company and the government both do not have any rights to access data protected by personal passwords kept secret by the former employees and current defendants. The 5th Amendment protects the former Capital One employees from potential self-incrimination based on whatever was stored on those company phones.

The Bottom Line is, despite the 5th Amendment winning the day with these facts, one would be wise to limit all types of personal information you put on company property, whether the computer or smartphone has private personal passwords or not. It can only lead to tough situations if a firing ever occurs.

Until next time, stay smart with personal privacy and hope you never have to rely on the criminal protections offered in the Constitution.

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Legal Geek No. 52: Happy Birthday in Public Domain, and Copyright Terms

Welcome back to Legal Geek. This week, we take a look at the biggest piece of music to hit the public domain of copyright perhaps in history, which happened thanks to a court decision earlier this week. That song, of course, is...Happy Birthday!

https://archive.org/details/LegalGeekEp52

On Tuesday, a California federal court ruled that Warner Music Group no longer holds a valid copyright in this iconic Happy Birthday song. This will end a licensing revenue stream from filmmakers and other users of about $2 million a year, thanks to it costing about $1,500 to acquire a single license from Warner for this property. The decision was based on new fact findings that the company which Warner acquired these rights from in 1988 had only ever gotten a copyright in the melody, not the words, and the melody is too old to still be covered by current copyright terms.

Thus, one of the biggest licensed properties in music is now in the public domain, subject to Warner's appeal of course. But other than the appeal, there are still a couple of interesting questions left.

First, this decision will likely cause further scrutiny in chain of title documents that explain how IP rights like copyrights were sold and transferred all the way from the original owner to the current owner. With copyright rights lasting up to and over a century now, these documents can be difficult to maintain or acquire, leading to decisions like the one against Warner. The documents always win in the legal field.

Second, this decision makes the lyrics of Happy Birthday into an orphan work, which is a term commonly applied to works that are not technically in the public domain but nobody can figure out who actually owns the rights. As copyright terms have extended more and more thanks to Congress, we now have copyright terms of life of author plus 70 years for individuals, and 95 or 120 years for corporations. That makes it very hard to find rightful owners of copyrights that do exist on very old works, a problem that grows more and more with copyright term extensions. One wonders how this iconic property joining the ranks of Orphan Works will affect the debate the next time extension of copyright terms come up, which will likely be soon thanks to the corporate interests of Disney and similar organizations.

The Bottom Line is, we can all finally sing Happy Birthday on YouTube without risking a nasty license demand, and that's a good thing in the face of the crazy long copyright term in the U.S.

Until next time, don't feel too bad for Warner, as this week they also got another federal court ruling that the Batmobile is a protectable character under copyright. Of course, it will likely be hard to make $2 million a year licensing the Batmobile...but holy copyright law, Batman!

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Legal Geek No. 51: Dancing Baby Wins Under DMCA (Sort Of)

Welcome back to Legal Geek. This week, we review the important copyright decision rendered this week by the 9th Circuit Court of Appeals in Lenz v. Universal Music, also referred to as the Dancing Baby DMCA Takedown case.

https://archive.org/details/LegalGeekEp51

Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.

The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.

The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.

In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.

So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.

Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.

Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.

The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.

Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.

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