Legal Geek - A Final Summary/Judgment, for now

"Hi, and welcome back to Legal Geek!"

Those words have led off the Legal Geek segment for over 6 years. Hard to believe it's been that long.

When Current Geek relaunched as a show in 2013, I had been looking for a way to extend my growing passion/hobby for audio content production into the field where I spend my "day job," that being an attorney. A weekly show in the Frogpants community that covered geeky news on a regular basis seemed to be a perfect place for me to share my thoughts and explanations on legal cases and current events, especially where they blended into my fields of interest, including intellectual property and geek-dom.

So I took a bit of a flier and asked Scott Johnson and Tom Merritt if they would play my segments at the end of their Current Geek episodes beginning in January 2014. They graciously agreed, and that led to 202 Legal Geek segments over the next 6+ years. Considering I started a few episodes into this iteration of Current Geek and the fact that they had 257 total episodes between 2013-2020, there were not too many weeks where Legal Geek was missing at the end of the show. Back when the Current Geek show was more oriented around guests, I was even brought on once as a primary show guest in 2017 in episode 137 entitled "Legal Things."

The segment challenged me in ways I couldn't expect, but in a good way as I tried to explain legal decisions and concepts quickly so they could be understood by the common man. It's also led to some fun unexpected personal anecdotes like the time when I was recognized by voice as being "the Legal Geek guy" at a Pokemon Go raid in Cincinnati...the reach of the show and my segment never ceased to surprise like that. Similar experiences at conventions like GenCon and Nerdtacular happened over the years as well. It was amazing to find a voice in this community and contribute what I could.

Which brings us to this post and July 2020. 

Current Geek stopped in its current form at episode 257 in April 2020 and is preparing to relaunch in a completely different show style and production entitled Current Geek Chronicles. Unfortunately, the fully produced Chronicles show with its limited-run seasons no longer jives well with tacking Legal Geek segments on at the end. I've been informed that if I am invited to participate in Chronicles, it will be as a guest/expert on one of their deep dives rather than as a weekly feature. 

Thus, the Legal Geek segment also ends with the end of the prior version of Current Geek. 

I do not have the time currently to build Legal Geek into a longer show that stands on its own, although I appreciate the suggestions from quite a few listeners over the years that indicated I should consider doing so. I certainly wouldn't rule that out in the future if/when the time demands of serving on the lead management committee at my law firm and raising my 3 daughters lessens in future years. Moreover, if another home for a geeky legal segment becomes a good fit in the future, I would consider firing up Legal Geek segments again. Of course, I will always remain available to come on shows and provide my voice and expertise as needed. 

Despite being a bit sad over the current end of such a good and fun endeavor, I sincerely appreciate Scott and Tom for allowing me to be a part of this past version of Current Geek. On good advice from Tom a few years ago, I started archiving all the segments and so you can always revisit them if certain topics are of interest: https://archive.org/details/%40buckeyefitzy?and%5B%5D=subject%3A%22Legal+Geek%22&sort=-publicdate&page=3. 

But for now, it's time to officially sign off on this iteration of Legal Geek (insert Law&Order sound byte here). 

Thank you for listening over the past 6+ years and I look forward to seeing you in whatever the next endeavors look like. 

Legal Geek No. 202: Major Video Game Decisions Come Down

Hi, and welcome back to Legal Geek.  This week, in the final iteration of Current Geek before the relaunch, we do a mega segment that provides updates on three video game cases we have touched on before, as some major decisions were handed down in the past couple weeks. 

https://archive.org/details/legalgeekep202 

The first case was a copyright lawsuit over whether tattoo artists could sue Take-Two Interactive, the video game producer of the NBA 2K series, for including realistic tattoos in depictions of selected players including LeBron James in those video games.  Similar cases in the past did not provide much precedent as EA had settled a lawsuit over player tattoos on a video game cover and the case about re-use of Mike Tyson's face tattoo in The Hangover sequel had clearly different facts than this case.

The copyright lawsuit was dismissed this month on several grounds.  The judge ruled that Take-Two was protected by the fair use doctrine and also that the fleeting shots of the tattoos in the game were too insignificant to make a valid claim of copyright infringement.  Most importantly, the judge stated that the tattoo artists gave the players implied licenses to use those tattoos moving forward as part of their likenesses, and so the players could grant Take-Two the rights to show those tattoos as part of the player's licensing their likenesses for the game.

The primary takeaway is that the denial of such claims stops a Pandora's box of new liabilities from being opened against media companies like video game producers and TV and movie producers.

The second case was the trademark infringement lawsuit brought by the maker of Humvee trucks against Activision Blizzard for unauthorized inclusion of that vehicle in Call of Duty series games.  The relevant legal test to be applied in this context of expressive works like video games and movies is a tough one for the automaker, specifically requiring that an accuser show that the trademark used is completely irrelevant to the work or that the author is using it to explicitly mislead consumers.  Only if an accuser can prove both prongs does the First Amendment right to free expression get overcome by trademark rights.

As we predicted on a prior segment, the auto manufacturer could not prove either of these high burdens.  The judge in the case rejected the trademark infringement claim, noting that Activision's use of Humvees in Call of Duty have artistic relevance by adding realism and life-likeness to the game, with no misleading of consumers.

The primary takeaway here is that real-life trademarks can be used in artistic works like video games, so long as the general rules of this legal test are followed, and they are relatively easy to follow in most circumstances.

The final case for today was one of the lawsuits filed against Epic Games, makers of Fortnite, for signature dance moves included as an emote in that game.  A saxophone player known for his viral videos sued for false designation of origin, false endorsement, and for violating his right of publicity.  This was different from the copyright approach taken by others who had sued over Fortnite, including the makers of the Carlton Dance and the Floss dance.

The judge in this case did not throw out all claims against the video game maker.  As to the right of publicity accusations about improper use of name and likeness, these claims were deemed barred by First Amendment protections because Epic transformed his image into its own creation by making the avatars their own independent creations.  And while the false designation of origin claim was also doomed because Supreme Court precedent states that claims over dance move creative expressions are better handled by copyright law, the false endorsement claim has been allowed to go on because it does not deal with trademark likelihood of confusion, but instead, whether a false sense of the saxophone player's endorsement is created by Epic using these dance moves.  So the case will go on in at least one regard.

The primary takeaway for this case is that while Epic Games has successfully defended against copyright claims, the most natural ones to be brought according to legal precedent, this case could open a new legal avenue for potential liability of such video game makers to well-known or viral online personalities.

The Bottom Line is: the legal world is still spinning despite a lot of court delays caused by the COVID-19 pandemic.  It just happens to be that some of these most interesting video game cases are all coming to important decisions while we have extra time to read about them and cover them.  For the most part, video game creators are winning these battles, assuring the viability of their business plans and game development to continue.

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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. 201: Defeating Instagram Tracking and Pirate Ship Case Update

Hi, and welcome back to Legal Geek.  This week, we update you on the Supreme Court decision in the copyright case we covered in June involving pirate ships, and then review a story regarding how some teens have taken privacy law into their own hands when it comes to Instagram's tracking software.

https://archive.org/details/legalgeekep201 

Although oral arguments and some court proceedings at the Supreme Court and other federal courts are on pause due to coronavirus, the justices are continuing to process opinions in previous cases like the pirate ship case we discussed back in June.  A current geek reddit contributor Velktrin noted this decision, which deals with that redditor's home state of North Carolina and whether the state could be sued under the 1990 Copyright Remedy Clarification Act for alleged copyright infringement related to video footage of a sunken pirate ship off the coast of that state, specifically the flagship of famed pirate Blackbeard.  States are generally immune from suits in federal court due to sovereign immunity under the 11th Amendment to the Constitution.

As expected when we covered this in June, the Supreme Court unanimously found that allowing states to be sued for copyright infringement is unconstitutional and directly contrary to the 11th Amendment.  To this end, the Constitution trumps the 1990 federal law trying to make an exception to the constitution.  Thus, the copyright holder will not be able to pursue North Carolina anymore for this alleged copyright infringement, and this part of the 1990 CRCA law is officially dead in the water.

Our main story for this week is an interesting news story from last month, dealing with how a group of Maryland high schoolers developed a way to defeat or confuse Instagram's tracking mechanisms.  The group created a way to share credentials so that multiple people were using multiple accounts, which they all accessed from multiple devices.  This cluttered the tracking data Instagram collects so much that the social media platform could no longer properly target the teens with ads and posts the platform thinks they are interested in.  Essentially, the teens figured out how to hide in a group, digitally.

Of course, this method to maintain privacy online and circumvent trackers is a lot of work, and not something average users of social media platforms will bother to do.  However, the fact that a small group of dedicated users can develop a methodology for defeating the effectiveness of such trackers means that options are likely available to be developed for the general public to also defeat such privacy invasions in the future, or at least have the right to opt-in and opt-out of such targeted advertising.  If nothing else, it's another story illustrating the many ways individuals are tracked online and how sophisticated those privacy law invasions have become in the past decade.  

The Bottom Line is: with regard to pirate ships and state's rights, not even Blackbeard himself can overcome the U.S. Constitution.  But the Constitution does not explicitly protect privacy law rights, which is why that rapidly-developing legal field has struggled to come up with reasonable ways to protect consumers and individuals as our technology improves.  Especially as the world relies even more heavily on the Internet during the current coronavirus pandemic, it's a legal field that becomes more important each day, and we will continue to cover those interesting developments as they come in.

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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. 200: Copyright's Moral Rights and the 5Pointz Case

Hi, and welcome back to Legal Geek.  This week, we review a recent federal appeals court decision that applied the U.S. law on copyright moral rights to the tune of nearly $7 million dollars, and the potential Supreme Court future for this law.

https://archive.org/details/legalgeekep200 

Copyright laws vary from country to country, but some underlying concepts are to be respected by all countries when they sign on to certain international treaties like the Berne Convention that give authors and other creative types reciprocal copyright rights in other countries on those treaties.  One of these underlying concepts is the moral rights protection offered in a copyright.  Moral rights are generally an author's inherent rights beyond economic exploitable rights in their creative works, including the right to claim authorship of a work and the right to object to any distortion or mutilation of the artist's work.

When the U.S. signed onto the Berne Convention in 1991, the U.S. copyright law was amended to recognize some moral rights for the first time.  The law is known as VARA, the Visual Artists Rights Act, and VARA prohibits art of a so-called recognized stature from destruction or mutilation.  This law was pretty obscure and not referenced often in court much until this recent decision we cover today.

5Pointz was a famous graffiti space in New York City, and the building owner had allowed these warehouses to become a place where artists congregated and made street art for many years before deciding to convert the space to residential condos and apartments in the early 2010's.  A legal battle ensued between 5Pointz artists and supporters and the building ownership over whether the buildings could be demolished.  And on the night when a court order was granted to the building owner against a temporary restraining order stopping his activity, he had painters whitewash all the art and cover it with white paint overnight.  This caused much dismay from the artist community and led to further lawsuits.

More specifically, several of the artists grouped together and made a claim under VARA that the sudden whitewashing of the graffiti art infringed their copyright moral rights.  A Brooklyn trial court agreed with the artists and applied a $6.75 million dollar statutory damages award against the building owner for destroying 45 specific pieces of graffiti art.  The Second Circuit court of appeals confirmed this decision this year, finding the damages award and the finding that the owner's wrongful conduct was willful were correct.  To this end, the sudden overnight whitewashing instead of allowing artists to photograph or recover their works in the months remaining before the building was actually demolished was a willful act that violated the artist's rights under VARA.

The building owner plans to appeal for Supreme Court review, and if they take up the case, it would be the first time VARA is in the Justices' purview, while also being the first time VARA was enforced to protect graffiti street art.  There's no real split of opinion in the regional appeals courts on this emerging issue, so unless the Supreme Court thinks moral rights have been stretched too far by VARA so as to be unconstitutional, it seems unlikely that the petition for review will be granted.

The Bottom Line is: sometimes laws have obscure provisions that can protect people when all normal legal remedies seem inadequate.  Thanks to international copyright treaties, U.S. authors and artists have some moral rights protecting their works from destruction.  Even graffiti can become an art form of so-called recognized stature, thereby being protected from whitewashing and other destruction, which may be a real nasty surprise for others developing real estate in urban settings in the future.

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Legal Geek No. 199: The Varying Forms of the U.S. Presidential Nominating Contest

Hi, and welcome back to Legal Geek.  This week, we explain the current status of how the different U.S. states run their presidential primary nomination process, and how that process is shifting once again.

https://archive.org/details/legalgeekep199 

The U.S. has a fairly unique method of nominating candidates for elected offices including the presidency.  Unlike most countries where political parties have significant control over who is nominated, the U.S. conducts a patchwork series of 50+ contests over a few months to award delegates who then pledge votes at a party convention to finalize the party's nominee.  These contests are run by state party entities and governments, leading to a lot of different types of primaries.

Of course, many states are what we call regular primaries, in which voters individually go into a voting booth and make their selections, and the winner is determined by simple popular vote.  In the Democratic Party, any candidate receiving over 15% of the vote in a state earns some of that state's delegates, while in the Republican Party, most states apply delegates proportionally to multiple candidates while a few apply winner-take-all-delegates rules.  It's more complicated than that in some respects, but those general rules are good enough to understand most of these contests.

But those aren't the interesting outliers, as we know from recent heavy news coverage of the first nomination contest of the cycle, the Iowa caucuses.  Iowa is one of 6 states that still run a caucus, and the only state that still does a caucus for both political parties.  In a caucus, voters all gather at a local school gymnasium or other meeting place and group themselves publicly based on which candidate they support, typically followed by a chance to re-align for any voters supporting a candidate who doesn't meet a viability threshold.  This process engages fewer voters because in often requires a longer period of time at a specific time of day, as compared to primaries.  Many more states previously conducted caucuses, but they are gradually being replaced in most states by primaries.  On the Democratic side, the only remaining caucuses in 2020 for states are Nevada, North Dakota, and Wyoming.

The other main outlier is a newer modification to the primary system, this being ranked choice primaries.  In ranked choice voting, voters rank the candidates in order based on their preferences when in the voting booth.  If a candidate wins over 50% of the first preference votes, the process is over.  If not, then the candidate with the lowest number of first-preference votes is eliminated, and those voters with that first preference have their second preference elevated to be a new first preference, and then the check for 50% is done again.  This process continues until there is a true majority winner.  Only Maine has adopted such a process for 2020, but some other localities in other states are trying the process and local legislation is pending or being implemented in other states to follow Maine's lead.  We will see how this plays out differently than the known regular primary and caucus contests.

It seems that the current reforms for primary elections are to move away from caucuses and towards obtaining more information from voters in a different way, e.g., ranked choice voting.  Furthermore, the long sequential nature of primary contests over a few months is also being challenged and perhaps will be replaced by a national primary day or several regional primary days where all states in a region vote at the same time.

However, the rules tend to change a little or a lot after each presidential nominating cycle based on feedback within and to the political parties running these contests.  If you want a deep dive into the history of U.S. primary nominating processes and how we got to where we are today, check out the recent Primaries Project podcast series from the FiveThirtyEight team.  But hopefully this brief overview helps those of you trying to understand the complexities of the U.S. nominating process as it continues from now through June in 2020.

The Bottom Line is: the general election for U.S. president and the electoral college rules are not the only unique and strange part of the process, as evidenced by this ever-changing landscape or patchwork of primary contests.  The only constant is to expect further change and reform in this system, as it never stays exactly the same from presidential election to presidential election.  Let's all do like Justin Robert Young does and enjoy the horse race for what it is.

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Legal Geek No. 198: Theater Owners vie to maintain the Paramount Consent Decrees

Hi, and welcome back to Legal Geek.  This week, we review how theater owner trade groups are trying to stop the Department of Justice from removing rules that have governed conduct of the major film studios they deal with for over 70 years.

LINK

Back in the 1930's and 40's, various antitrust enforcement actions by the U.S. government against major film studios led to what is known as the Paramount Consent Decrees.  These decrees bar several major studios from owning both the distribution and exhibition operations for films, while also banning a number of specific distribution practices such as setting of minimum prices for movie tickets and forcing theaters to license multiple films bundled together instead of individual films.  The decrees were intended to separate theater providers from film studios while also making the film studios "play fair" in distributing films to theaters for viewer consumption.

These decrees have been active since 1949 and are one of over 1300 antitrust judgments with no expiration date.  Periodically the Department of Justice reviews these active judgments on the books to determine if all are still necessary, the most recent such review happening in late 2018.  That review resulted in the Paramount Consent Decrees being identified as one judgment that the DOJ no longer considered necessary.  As such, the DOJ made a court action to terminate these decrees with a two-year sunset period on some of the current bans.

Which brings us to the present, and the counter motions and briefs filed by the theater owner trade groups.  The trade groups argue that these provisions have maintained a thriving film exhibition and distribution market where independent smaller studios can properly compete for screen time, even in towns and regions with fewer screens per theater.  The trade groups specifically call out the block booking rule as crucial, noting that bigger studios could force out competitors and smaller studios by demanding a group of their films be licensed by a theater in order to have access to the big moneymaking blockbuster.

The trade groups also argue that the government hasn't followed the technical standard for removing such consent decrees from the books, which requires a showing that it's in the public interest to remove such decrees.  I expect the DOJ will craft a response arguing that removing this decree is in the public interest to try and overcome this technical legal challenge.

Of course, the trade groups do not directly address the government's position regarding the change in the movie industry with streaming services and the like as alternatives.  This sets up to be the potential core of the court decision, as the theater owners have a legitimate concern about potentially being bullied by major film studios, but they may not really be how small independent studios distribute anymore in the age of streaming services.  It's a close call, in my legal opinion, and the shifting movie consumption landscape makes this a ripe question for handling in 2020.

The Bottom Line is: antitrust law and consent decrees have an important place in our regulatory scheme to protect against monopolies and unfair business practices.  However, times change in industry and when change occurs, the same protections from the past may not be applicable.  It will be fascinating to see if the courts think the movie distribution industry has changed enough to take the reins of control off the major film studios.

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Legal Geek No. 197: Are Administrative Patent Judges even Legal?

Hi, and welcome back to a new year of Legal Geek.  I survived a nasty holiday bug that took my voice away with coughing fits, but I'm back and ready to roll with 2020 vision.

This week, we review a massive appeals court case decided a few weeks ago on whether all Administrative Patent Judges at the Patent Office, or APJ's, are appointed in an unconstitutional manner.

https://archive.org/details/legalgeekep197 

When the U.S. reformed its patent laws a few years ago, one of the biggest changes was the creation of a more robust challenge system for invalidating patents.  These Inter Parties Review proceedings are heard before 3 judge panels from the Patent Trial and Appeal Board, which is made up of APJ's who are currently appointed to those positions by the Secretary of Commerce and the Patent Office Director rather than the President.  The inventive legal challenge made by the loser of one of these patent challenges was that APJ's are not properly appointed under the rules of the Constitution, therefore making their decisions invalid.  

The potential was there for possibly undermining 6 years of these proceedings that have invalidated many patents.  Hence why this case was a big deal.  The Federal Circuit tackled this question and carved out a way for APJ's to still be constitutional without undermining the validity of the patent owner's challenge in this particular instance.

Under the appointments clause of the constitution, the President appoints all officers of the United States that are not inferior officers.  So if APJ's are principal officers, then they cannot be appointed by the Secretary of Commerce.  The appeals court first confirmed that APJ's are Officers of the United States because they clearly exercise significant authority pursuant to the laws of the U.S. in conducting trials and issuing final written decisions on validity of U.S. Patents.  Then the question turned to whether APJ's are principal or inferior officers. 

The court used a Supreme Court precedent that defined an inferior officer as one whose work is directed and supervised at some level by others appointed by Presidential nomination and consent of the Senate.  The Court applied a 3 factor test for this, looking for review power, supervisory power, and removal power of the closest appointed officer, that being the USPTO Director.  First, the court reviewed whether the Director had power to review or overturn final written decisions of APJ's, and the Court concluded the Director did not have such review power.  The Court also determined that the Director had sufficient supervisory powers over the APJ's, but no power to remove such judges from judicial service other than for cause.  Thus, 2 of the 3 factors favored APJ's being principal officers, which makes their current appointment not done by the President and Senate unconstitutional.

To avoid a quagmire where the entire Patent Trial and Appeal Board is thrown into chaos with all re-appointments to be done by a single President, the Court then modified the patent law to remove the restrictions on removing patent judges to push a second factor in favor of them being inferior officers.  In other words, they made the patent law constitutional again by making the Director have full removal power at will over Administrative Patent Judges.  The patent owner who challenged this patent review would thus be granted a new IPR trial in front a new panel of APJ's that are now properly inferior officers, but this did not cause upheaval of all prior decisions or remove the process for patent reviews.

What will be interesting to see is whether the USPTO Director actually wields this removal power more to take out APJ's who are overly biased for or against patents.  Or if the issue is handled in the future by using Presidential appointments for such judges.

The Bottom Line is: this argument against constitutionality of appointments of all administrative patent judges was a "Hail Mary" of sorts, but sometimes those long shots work.  It remains to be seen if this will create any substantive change for how the Patent Trial and Appeal Board works.  But this is the front line of many battles over IP in America, and so it's vital that the process works properly under the Constitution and all other laws.

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