Legal Geek No. 173: Explaining the Long-term of all these Abortion State Laws

Hi, and welcome back to Legal Geek.  This week, we explain the long-term strategy likely behind all the new abortion restriction laws being passed in certain state legislatures in the U.S., and how it will potentially play out in the future.  A heavy subject, but we will try to keep it easy to understand.

https://archive.org/details/LegalGeekEp173 

The end of the Supreme Court 2019 term is coming up, and as usual, we expect a couple major decisions to be held until the end sometime in June.  But nothing on this year's docket compares to the potential firestorm brewing over abortion rights and the seminal case on point, Roe v. Wade.

As you likely have seen in the news recently, several state legislatures have either passed or are considering laws that limit when a woman can have an abortion.  These range from restrictions on the time period from conception in which an abortion can occur to denials of health insurance coverage for certain types of activities like abortions.  And while some of these laws continue to include exceptions for cases like rape and health of the mother, some do not, which flies in the face of several major court decisions that followed up on Roe v. Wade.

So in short, many of these laws are clearly applying an undue burden on women seeking an abortion, contrary to the current case law from Roe and the 1992 Planned Parenthood v. Casey Supreme Court decision.  That means federal courts reviewing these laws should find most, if not all of these state laws unconstitutional as violating the 14th Amendment right recognized in Roe.  Indeed, all of these laws have been quickly challenged upon passing and are going to be reviewed in federal courts, holding up the implementation of any of these laws until that review is done.

But you may be asking, what is the point if many of these laws are unconstitutional?  What's happening behind the scenes is that the federal courts are having a lot of vacancies filled with conservative judges under the Trump administration, and these judges may be more receptive to interpreting the prior case law to allow some of these abortion restrictions.  Indeed, this happened a few years ago over a Texas abortion restriction law that led to a 2016 Supreme Court decision we covered that found that law unconstitutional.  As such, the conservatives in state legislatures are putting forth a lot of bold laws to force the courts to review these issues, hoping to cause at least one Circuit Court of Appeals to restrict abortion rights in a different way than the others.  

If that occurs, the circuit split of opinion is the most likely path forward to having the Supreme Court grant certiorari to settle the dispute of opinion.  And with 5 conservative justices currently on the Supreme Court and no more Justice Kennedy, there's potential that Roe v. Wade could be modified significantly or, in a worst-case scenario for pro-choice advocates, overturned.  So beyond making a political statement, that's the point of these state laws and the long-term strategy at play here.

The Bottom Line is: this is a perfect storm of circumstances for a credible challenge to the rights granted under Roe v. Wade and the follow up cases, so it should come as no surprise that now if the time such a challenge is being mounted.  The impetus is now on lower federal courts to apply the constitution to these laws, and depending on how that goes, we will see if the Supreme Court has reason to take up an abortion case in the next couple years.  If that happens, it will likely be the biggest case at the Court in many years.

POSTNOTE - Just an FYI, the Legal Geek will be appearing at Origins in Columbus in June and at GenCon in Indianapolis in August with educational seminars on IP law for game designers.  Please come out and say hello if you'll be at those conventions!

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

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. 172: Apple's Battle against Class Action App Store Lawsuit will continue

Hi, and welcome back to Legal Geek.  This week, we review a Supreme Court decision from last week regarding a long term antitrust lawsuit between App Store consumers and Apple.

https://archive.org/details/LegalGeekEp172 

Back in 2011, some consumers sued Apple in federal court for antitrust violations in that the tech giant monopolizes the market for software apps by forcing developers to only sell through the Apple App Store, and then charging a 30% commission on those sales.  The District Court initially dismissed the lawsuit in 2013 based on a 40-year old Supreme Court precedent case titled Illinois Brick, but the Ninth Circuit Court of Appeals reversed this decision and reinstated the lawsuit in 2017.

The Supreme Court took up the case and many thought they would be perhaps overturning the 40-year old Illinois Brick case.  That prior case stood for the theory that only direct purchasers can sue for antitrust damages, not an indirect purchaser down the chain of supply.  This case has been unpopular in many states, and about 25 states have active laws on the books that allow for indirect purchasers to sue for damages under state antitrust laws.  However, this precedent was not directly addressed or overturned in this week's Supreme Court decision.

The newest justice Brett Kavanaugh joined the 4 more liberal justices and wrote the decision, which was a 5-4 split on the court.  The majority deemed that for the purposes of this case, the consumers are direct purchasers because the software is purchased directly by these consumers from Apple, and there is no intermediary or levels of intermediary in the supply chain between these parties.  Apple had hoped to stop this by arguing that only the software app developers are the direct purchasers of App Store services, but the majority rejected this argument.

Thus, the Illinois Brick precedent was applied rather than overturned thanks to the facts of this case, and Apple will now have to defend against this suit again in a District Court and possibly with a jury trial.  It will be another very high-profile legal battle with millions of dollars at stake for Apple, as the whole controlled ecosystem of the App Store comes under scrutiny for potentially being an unfair monopoly.  And yet another big 5-4 Supreme Court decision in the notable legal history of that little tech company started by Steve Jobs.

The Bottom Line is: while there may be plenty of good non-economic reasons Apple chose to fully control their devices and the software apps that can be downloaded onto them, there's no doubt Apple has also profited millions upon millions of dollars from owning that marketplace.  Unlike other giants in commerce fields like Amazon and eBay, there is no legitimate option for end consumers to choose another seller of apps for their iPhones and Apple devices.  These factors make this antitrust case very dangerous to Apple, despite the strong legal theory that Apple used to initially dismiss the case.  We will monitor this case as it continues, now that the high-level antitrust law issue has been resolved at the highest court.

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

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. 171: Tabletop Giants in court over Great Western Trail

Hi, and welcome back to Legal Geek.  This week, we review a lawsuit filed that could pit two of the top tabletop game companies against one another over the wildly popular Great Western Trail board game.

https://archive.org/details/LegalGeekEp171  

A few weeks ago, Stronghold Games, which is owned by Indie Game Studios, sued Plan B Games in Indiana federal court for a number of claims.  Stronghold is known for games like the Terraforming Mars series.  Plan B Games is a quick riser in the tabletop field, releasing top hits like the Century Spice Road series of games as well as Coimbra and Reef last year.  

The game in controversy is Great Western Trail, which is currently ranked in the top 10 of the industry site BoardGameGeek's top game rankings.  According to the Complaint filed by Stronghold, they contracted with German publisher Eggertspiele to be the exclusive distributor of this game in the U.S. and Canada in 2016 for a period of time that was to extend through the end of 2018.  The first print run sold out quickly, and Stronghold sought more copies from Eggertspiele to sell.  Those copies were never provided, as in the middle of 2017, Eggertspiele was acquired by Plan B Games.

Plan B Games then brought out their own print run of Great Western Trail in early 2018, and the game continued to sell very well.  Stronghold is filing this suit because it allegedly missed out on the opportunity to sell this highly popular game thanks to the actions of Eggertspiele and then Plan B.

What's interesting about this case is the type of claims made by Stronghold.  Instead of breach of contract, as you might expect, Stronghold is claiming trademark infringement and unfair competition by Plan B Games, as well as conspiracy with Eggertspiele to deny Stronghold the benefit of the deal.  The conspiracy claim is a bit far-fetched and thrown in at the end, so for today's segment lets focus more on the trademark-type claims.

The Complaint sets out in great detail how Stronghold marketed the Great Western Trail game in advance of the initial print run being sold.  Stronghold is making the case that these marketing efforts and their sales in the marketplace generated common law trademark rights automatically that then were infringed when Plan B Games brought out the same game without permission from the alleged trademark holder.

There is case law in the U.S. on cases involving exclusive distributors and generation of trademark.  If it's not covered by the contract between the game manufacturer and the distributor, then it's not automatic that selling the game results in a trademark right for the distributor.  Instead, courts apply a rebuttable presumption that the manufacturer retains the trademark rights, with a multi-factor test to determine if the presumption can be rebutted in favor of the exclusive distributor.  These factors can include things like which party created the mark, which party first affixed the mark to the goods, which party paid for promotion of the goods, and which party's name appeared on packaging, among other things.

So it's not a slam dunk that Stronghold created any trademark rights here to enforce against Plan B.  The fact that this is not a breach of contract claim is interesting because it likely means the contract does not read how Stronghold wants it to, meaning going after Eggertspiele, or Plan B if they can be assumed to take on this contract, is not a viable option.  So Stronghold is making a claim that thinks "outside the box" and looks like it has merit on its face, even though the legal standards in the U.S. will make this an uphill battle in all likelihood for Stronghold.

The Bottom Line is: when making deals to sell products from a manufacturer, you have to be absolutely sure the contract is done right.  Otherwise, in a worst-case scenario like this one where the product is wildly popular and the manufacturer gets bought out by another company, you may have to stretch your legal theories to try and exact revenge for losing the benefit of the deal.  I expect this case will likely settle out of court, but we will keep an eye on it because the claims made are so unique to this situation, and it could have long-lasting effects on these two big players in our beloved board game field.

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

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. 170: Copyright Registration verified as the only route to Federal Court

Hi, and welcome back to Legal Geek.  This week, we review an important Supreme Court copyright law decision from a few weeks ago, dealing with requirements for enforcing your copyright in federal courts.

https://archive.org/details/LegalGeekEp170  

The case we cover today is Fourth Estate Public Benefit Corporation vs. Wall-Street.com, but the facts of the case are not as important as the overlying rule in dispute.  The Supreme Court took on this case to settle a split of decisions going opposite ways in the Circuit Courts in various regions of the country.  The split was over whether a finalized copyright registration is required to sue someone for copyright infringement in the federal courts, or whether a filing of an application is sufficient to allow you into federal court.

The Supreme Court ruled unanimously that a finalized registration after review by the U.S. Copyright Office is a prerequisite to suing a third party in court to enforce a copyright.  It has long been understood that federal registration is the Wonka's Golden Ticket into federal court, along with providing several other important legal benefits, but this decision confirms a mere application filing is not enough.  Copyrights are covered only by federal law, so federal court is the only place to enforce such rights.

The copyright registration process can take a few weeks or a few months.  While this is not a ton of time in the overall intellectual property landscape, these delays can be significant when a profitable work has been knocked off and you seek to enforce copyright to stop the knockoff.  As such, the impetus is on authors and creators to register their works with the U.S. Copyright Office as early as possible, not just wait until the competitor infringes the work.

Copyright is a natural legal right that immediately attaches to a creative work as soon as it is fixed in a tangible medium, which can be as simple as saving a Word document draft on a computer, for example.  However, ownership of a copyright does not entitle a copyright holder to enforcement rights in court, and that's where federal registration in the U.S. kicks in.  The point of requiring registration is to help prove authorship and the right to claim copyright before that issue would need to be litigated by a court.

Justice Ginsburg, writing for the court, also noted that reading the law the other way would not make sense because it would allow for wasted efforts where the Copyright Office refuses registration but a lawsuit has been ongoing in the meantime.  Pragmatic examples like this helped win the day at the Court during oral arguments and then in the final written opinion.

The Bottom Line is: if you're worried about potential competitors or knockoffs taking your copyrighted work, the Supreme Court has sent the message loud and clear - register those works early, or face the risk of delay before you can even file a lawsuit in federal court against an infringement.  The Supreme Court often steps in when the appeals Circuit Courts cannot agree on a law like this, and now we have clarity for the requirements to enter federal court.

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

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. 169: In Kroger, the Store Shelves Shop You!

Hi, and welcome back to Legal Geek.  This week, we discuss a new technology for retailers that invokes serious privacy concerns that you should know about. 

https://archive.org/details/LegalGeekEp169 

Going back to as early as 2013, the National Retail Federation's annual trade show has featured companies developing consumer monitoring technologies to try and make brick-and-mortar retailers remain competitive with online commerce.  These technologies are based around cameras that image a consumer in a store and then offer targeted advertisements and offers based on the demographics observed of the consumer.

This branch of store technology hit another level a few weeks ago in the 2019 show, as at least one company debuted smart shelves that use camera to detect not just the age and gender of a nearby consumer, but also a mood of that consumer.  This information can be used to gauge consumer reaction to a product on the shelf or an advertisement panel on the shelf, with the end goal being delivery of tailored advertisements at the point of sale that are most effective at leading to purchases.  If this sounds like your experience online, it is because that's precisely what these companies are modeling the technology from, just in an in-person context.

Indeed, some major retailers are already testing smart camera or lenses on store shelves.  Walgreens has a handful of locations where the beverage coolers have display screens rather than glass across the front, with cameras mounted on board to detect where a consumer is directing his or her attention.  A little closer to yours truly, the grocery store chain Kroger has installed test camera units on store shelves in Seattle and Cincinnati suburbs to detect age and gender of shoppers.  So in the future, you may not only be pictured by security cameras in stores protecting against thieves, but also by targeted advertising devices trying to entice you to buy certain products based on your demographics or mood.  If that sounds a bit creepy to you, just know that most privacy law experts agree.

But the retail industry is struggling to keep up with online sellers who have the advantages of tailored ads and the Internet, and so don't be surprised if such technologies become commonplace in major retailers in the next few years.  It will be critical for retailers and shops to be open and honest about these systems as they are adopted so that consumers with privacy concerns can make an informed choice about whether they subject themselves to the new monitoring technology.  One might say it's a brave new world in retail, but we don't want to get too 1984 on you.

The Bottom Line is: just like when mega chains like Wal-Mart challenged the existence of many local mom-and-pop stores in the last couple decades, the in-person retail space is once again challenged to adapt or be left behind by online commerce.  We will see how far retailers and tech companies can go before privacy advocates and the government step in to limit invasions of consumers' privacy, and it shapes up to make a potential interesting legal battlefield for the future.  Now, excuse me while I go figure out how to invent an in-person ad blocker to contest these targeted advertising schemes. 

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

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. 168: Comicsgate Leader Lawsuit Update

Hi, and welcome back to Legal Geek. This week, at the request of user Samdu on the reddit, we update you on the latest developments in a lawsuit we initially analyzed a few months ago, that being Richard Meyer, the leader of the Comicsgate movement, suing Mark Waid, a DC/Marvel writer for defamation and tortious interference with contract.

https://archive.org/details/LegalGeekEp168 

As you'll recall, Mark Waid and others put in calls and public pressure to a publisher named Antarctic Press to encourage the publisher to not put to print Richard Meyer's Jawbreakers comic, which was a response to what Meyer saw as progressive bias in the comics industry.  Meyer ended up having to rely on Indiegogo to publish his comic after Antarctic Press dropped him, and the public feud between these men went into court.

Six months ago the case was still early, so I analyzed the likelihood of success of the defamation and tortious interference with contract claims based on the initial pleadings of the parties. Now a few months of discovery have occurred, and most notably, the deposition of Mark Waid was published in court records a couple weeks ago. To put it mildly, the deposition was not great for Waid.

Before getting into the details of the deposition, a little explanation. In U.S. courts, fact finding is usually done by a process called discovery, in which both parties get to request information and documents from the other party while disclosing their own relevant information and documents. Both parties also usually conduct witness interviews as well, and these are known as depositions. 

It turns out that Mark Waid crumbled a bit under that pressure of questions from opposing counsel. He admitted to contacting the potential publisher to explain the controversial views of Meyer before quote "we burned the place to the ground" meaning the industry and public taking it out on Antarctic Press. He essentially admitted to using his position as a man in the industry to influence Antarctic Press to forego publishing Meyer's Jawbreakers comic. Waid simply could not explain away a lot of public audio of him admitting at comic conventions that he participated in stopping Jawbreakers from being published. 

Waid also couldn't corroborate that death threats were made against him by the Comicsgate community, a defensive contention made by Waid in this case. Plus, Waid could not explain away text messages in the record where he basically begs Antarctic Press to not hang him out to dry by saying that Waid bullied or coerced the publisher into not publishing Jawbreakers, and offers to use his industry ties and prowess to print an interview with Antarctic Press to promote their brand after they make the decision to drop Jawbreakers. These text messages all but confirm on the written record that Waid tortuously interfered with the Meyer-Antarctic contract, and Waid couldn't provide any other valid explanation in the deposition.

Thus, my initial opinion of this case has taken a strong turn, as I now think the tortious interference with contract case goes from what I thought was a toss up to clearly in Meyer's favor.  I'm still not sold that the defamation claim will work, but as long as Waid produces so much damning evidence against himself in all these texts, convention brag speeches, and depositions...even that claim may be possible for Meyer's counsel to prove. This is precisely why we have discovery to bring out all the facts available, as it can really change a case. 

We will continue to keep our eyes on this big case in the comics industry, but as of now, I expect Meyer will win on at least one of his claims.  The new Bottom Line is, while these legal claims can be difficult to prove all the elements of, the modern era where every conversation is recorded or put in discoverable writing like text messages makes it a lot easier for good attorneys to dig out the facts and evidence to prove wrongdoing did occur. And when you have a witness in a deposition like Waid who crumbles in response to pressure and questions, a hard case to make can flip very quickly into a win. 

If you want a long form explanation of the deposition transcript and recently published evidence, check out Nick Rekieta on YouTube. He's not one of my favorites, but he does a good job explaining the current status of this case for those who want more. Thanks again to the subreddit for the suggestion to revisit the ever-changing comics case. 

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

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. 167: Scandalous Trademarks hit Supreme Court and a Trek/Seuss Update

Welcome back to Legal Geek. This week, we update you on a case we covered over two years ago regarding a Kickstarter pulled down for a book entitled "Oh The Places You'll Boldly Go," and then turn to this week's Supreme Court oral arguments covering whether the U.S. ban on registering scandalous trademarks is constitutional.

https://archive.org/details/LegalGeekEp167 

Back at the end of 2016, authors of a parody Star Trek/Dr. Seuss mashup book "Oh The Places You'll Boldly Go" had a Kickstarter pulled down for claims of copyright and trademark infringement by Dr. Seuss Enterprises.  At the time we covered it on this segment, I opined that this book likely was fair use under copyright law, but it was a close call.  

Well, the battle over this book did end up going to court, and last month a California district court ruled that this parody mashup was protected by fair use.  The court focused in the fair use analysis on the fact that while "Boldly Go" borrows heavily from the original Seuss work, everything taken is highly adapted or transformed to fit the Trek theme, and also that this book does not appear to substantively negatively affect the market for the original Seuss book, which remains strong.  So count this as a win for creative mashup makers, although it is possible Seuss Enterprises will continue the battle with an appeal to the Ninth Circuit.  

Now we move to today's main topic, that being the oral arguments heard this week at the Supreme Court over the U.S. trademark law's ban on registering trademarks containing scandalous subject matter.  The mark at hand in this particular case is F-U-C-T, which phonetically sounds like a past participle of the well-known profane word.  According to court reporters, the justices went out of their way to avoid saying this trademark and similar examples, making for some fun leaps of language during the arguments with both sides' counsel.

You'll recall that a similar trademark law ban on disparaging marks that disparage groups of people or individuals was struck down as unconstitutional two years ago when the band The Slants took their refusal of trademark all the way to the Supreme Court.  Many trademark law experts opined that it was simply a matter of time before this similar ban on scandalous trademarks would be before the Court, and they were correct.  But the Court during arguments did not seem as eager to strike this ban down as they were to do in the disparaging ban.

One reason for this is that while the ban on disparaging trademarks was seen as viewpoint restriction, which comes with a heightened standard to be constitutional, banning vulgar language might be viewpoint neutral and thus, easier to support as constitutional.  Indeed, some of the justices questioned whether this invoked First Amendment speech protection at all.  On the other hand, the Court was very critical in its questioning of the government's attorney regarding the wildly inconsistent application of this ban on prior trademark applicants.  In one highlight example, Justice Ginsburg noted that some prior trademark applications had been refused not because of this scandalous ban but because they were too similar to other lewd terms that had previously been allowed and registered.  The Court just doesn't think this rule can be applied fairly.

The Bottom Line is, while the U.S. Trademark Office and government probably has an easier case to defend this scandalous ban than they did two years ago in the disparagement ban case, it's hard to see the Supreme Court ruling that there is enough distinction between these bans to keep one but not the other.  I expect this ruling to come in June and we will update you on it when it comes, as one of the biggest trademark decisions of this year's Court term.

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

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