Thursday, March 27, 2014

Legal Geek No. 8: Can College Athletes Unionize?

Welcome back to Legal Geek! The topic this week is whether college athletes will succeed in bids to unionize, and the implications of such an action.


https://archive.org/details/LegalGeekEp08

Although the sports world and the nerd world typically share a small window of shared fandom, there are a select few of us who enjoy both worlds. And when a top-flight school like Northwestern rocks the college football world by having the football team petition to unionize as employees of the university, more than just sports fans should pay attention to this fascinating legal case.

When Northwestern college football players asked the National Labor Relations Board to recognize the team as a union, most legal pundits thought the petition would be denied. However, the smart kids and legal counsel won the day this week when the NLRB ruled that the football players are actually employees and can unionize to collectively bargain for benefits, including long-term worker's compensation coverage and perhaps even payment.

While Northwestern University will certainly appeal and fight this, the ruling appears to be sound in reasoning and will be different to overturn. This is yet another chink in the armor for college athletics, where department heads get rich while athletes struggle to make ends meet. A major conference football team brings in millions in revenue but sees only a miniscule percentage of that in scholarships and stipends. A shining example of this hypocrisy hit the news this week when Ohio State athletic director Gene Smith received an $18K bonus for an individual OSU wrestler winning a national championship. Needless to say, the wrestler will see none of that money.

Although public universities are held to state law standards unlike private schools like Northwestern, this NLRB ruling could be the first big step in ensuring that these athletes get better benefits and a bigger piece of the money pie they create. That's a better situation for all involved, as it may encourage players to stay in college athletics longer, thereby improving college sports and also the level of incoming professional athletes as well.

However, it will also dramatically change collegiate athletics, as the bigger sports like football and basketball may be subject to much different rules like a semi-pro league rather than other sports. Thanks to equality laws and regulations like Title IX, this could be a Pandora's box for the NCAA. To put it bluntly, this March Madness may just be the beginning.

Bottom line: College athletics is about to undergo a fascinating sea change, as players bargain for more benefits and perhaps even royalty rights from their likenesses in other ongoing legal battles. For sports geeks, this could fundamentally change the sports we love in ways hard to comprehend now.

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

Monday, March 17, 2014

Legal Geek No. 7: Actor Copyrights and How Appeals Courts Work

Welcome back to Legal Geek! The topic this week updates a recent story on actor's copyrights to help answer a listener question on how appeals work.


https://archive.org/details/LegalGeekEp07

A listener Robert has asked for a brief overview of how appeals work, likely relative to the ongoing court battle over the Innocence of Muslims movie trailer discussed on a previous segment.

As a reminder, Judge Kozinski and a three-judge panel at the Ninth Circuit Court of Appeals ruled that actors have some sort of limited copyright in their performance in a film. This extension of traditional copyright allowed the court to order Youtube and Google to take down the controversial movie trailer.

Since the ruling, the U.S. Copyright Office has denied registration to the very copyright that the Ninth Circuit panel based this opinion upon. As a result, Google immediately petitioned for a rehearing of the takedown order in front of a larger panel of Ninth Circuit judges called an en banc hearing. That request has been denied, but Google still has options.

Federal lawsuits generally begin in District Courts, which are 94 local/regional courts across the country with at least one in each state. Appeals from District Court decisions go to one of the 12 regional Circuit Court of Appeals, and the Ninth Circuit covers many of the westernmost states, for example. Three judge panels are typically used, but these decisions can be overturned by the en banc rehearings mentioned previously or by the Supreme Court. 

Thus, to keep it simple, Google and Youtube will continue to fight this legal battle in the Ninth Circuit until all options are exhausted, and then if still unsuccessful, a petition for a Supreme Court hearing will happen. The Supreme Court typically only gets involved in important questions about Constitutional law, and the proper scope of copyright would be a good issue in view of the different opinions of the executive branch at the Copyright Office and the judicial branch at the Ninth Circuit.


Bottom line: The news is bad for Google this week, and Innocence of Muslims will get taken down based on a questionably-reasoned decision. But this critical copyright fight is not over until the Supreme Court says it is over.

Thanks again to Robert for the question.

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

Monday, March 10, 2014

Legal Geek No. 6 - Has The Stone Finally Turned on the NSA?

Welcome back to Legal Geek! The topic this week is whether privacy rights are finally winning the day against the NSA's record keeping on all U.S. citizens.


https://archive.org/details/LegalGeekEp06

Depending on your views of privacy laws and your political leanings, the downstream effects of the horrible 9/11 attacks on America are a more protected country, or a more oppressive Big Brother society. When the USA Patriot Act went into effect shortly after those attacks, the floodgates opened for the NSA to tap into bulk phone and e-mail communications of all citizens to look for outliers that could indicate potential terrorism.

However, this began to highlight the sheer amount of tracking and information the government and companies were beginning to accrue on regular U.S. citizens. Although such tracking can lead to nifty innovations such as the anticipatory shipping methods of Amazon from a previous episode, it can also make you feel like your rights to be a private citizen are impinged.

With both the dramatically different Bush and Obama administrations extending the rights of the government to keep wiretapping communications, the NSA keeps on collecting information. But simply collecting information is not enough apparently, as the NSA recently petitioned to hold onto records beyond the five year period that was authorized by Congress in the Patriot Act.

The NSA argued that the destruction of five-year old records and metadata needed to be stopped because there are six lawsuits ongoing against the government where those records may be subject to discovery requests. But these lawsuits are ironically from citizens suing to try and stop or limit the NSA's powers due to privacy rights, so it is unclear that these plaintiffs would ever want to encourage those records to be held for longer periods of time.

Thankfully, the US Foreign Intelligence Surveillance Court deemed this extension would be contrary to the law and policy concerns. First, the five-year destruction policy is by Congressional statute, which trumps the common law court-made rules of avoiding evidence spoilation during civil trials. Second, the value of the information as foreign terrorism intelligence is basically gone after five years, so there is no policy reason to hang onto these records longer. Thus, the NSA has been turned back from a further extension of the much-maligned wiretapping and record-gathering rights. While that will not end the story, it does prove there is a limit at which our privacy rights trump the NSA.

Bottom line: Although last week's decision by the Surveillance Court is a minor victory for privacy, there is a long way to go for advocates of true Internet privacy. It will be interesting to watch how Snowden and other Internet privacy advocates continue to try and turn the tide against the NSA.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Wednesday, February 26, 2014

Legal Geek No. 5 - Do Actors Really Have Copyrights in Movie Performances?

Welcome back to Legal Geek! The topic this week is whether a ruling that an actress has a copyright interest in her performance in a movie will change moviemaking forever.

https://archive.org/details/LegalGeekEp05


When the 14-minute Youtube film "Innocence of Muslims" insulted the religion and caused a firestorm in the extremist parts of Islam society a few months ago, many people and even the White House called for the hateful film to be pulled from public channels. However, one of the most interesting pleas came from Cindy Garcia, who appears in the film.

Garcia has claimed in lawsuits that the filmmaker committed fraud on her because she was not apprised of what type of film her performance would be used in, including having no knowledge it had anything to do with muslims at all. One of her more creative bases for suing the filmmaker was that she has a copyright in her performance that has been infringed by the spreading of the film without her authorization on Youtube.

Outlandish legal claims are nothing new, but the Nine Circuit Court of Appeals bought this claim hook, line, and sinker in a ruling earlier this week. Straight-shooting Judge Kozinski wrote the opinion, and he deemed that Garcia provided just enough of her own creative spark to own a limited copyright in her individual creative acting performance, not the scenes at large she appears in or the film as a whole.

But Kozinski has to contort copyright law to get there.  Garcia's contribution to the film is basically a performance of the underlying creative work, which is the screenplay or the film itself.  Such a performance of someone else's creative work is not typically deemed copyrightable by itself, yet that is what Judge Kozinski concludes.  He also must stretch the definition of harm done to Garcia by the infringement and the limits of the implied license given to the filmmaker, while also avoiding the application of the Work Made For Hire doctrine to reach this conclusion.  It's clear when Kozinski calls this situation extraordinarily rare that he is making the ruling work to fit the result he thinks should happen. However, a true maxim from law school rings true in this decision: bad facts make for bad law.

Sure, the filmmaker of Innocence of Muslims is not acting in Garcia's best interests or even nicely, but this ruling in Hollywood's backyard could cause future angry actors to be able to force their edits on producers and directors of movies when they don't agree with the final cut. This could hold up or even pull movies from theaters, which hurts the industry as well as the public.

Expect Youtube's owner Google and the MPAA to team up to contest this ruling, and those strange bedfellows will hopefully turn this around at a full Ninth Circuit ruling or in the Supreme Court. If not, controversial movies like Borat and Bruno will potentially not be possible anymore, as angry prior participants may use IP rights to hold other creatives hostage.

Bottom line: Copyright law does not and should not work this way, as filmmakers should and do have the rights in a movie.  Let's hope that holds up in court.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Wednesday, February 19, 2014

Legal Geek No. 4 - Does Comcast/Time Warner Merger Have a Chance?

Welcome back to Legal Geek! The topic this week is whether the Comcast and Time Warner proposed merger stands a chance of surviving legal challenges.

https://archive.org/details/LegalGeekEp04


Time Warner has been seeking a merger for quite some time. This is notable because Time Warner is one of only four television providers with more than 11 million subscribers, ranking only behind Comcast's 22 million, DirectTV's 20 million, and Dish Network's 14 million. Every other major competitor is more regional, covering only 3 million to 5 million subscribers.

After weeks of negotiating with owners of a smaller regional provider Charter, Time Warner shocked the business world by agreeing to merge with the biggest cable company Comcast. The proposed merger includes about $45 billion of stock transfer, if it survives. But can it hold up to antitrust scrutiny and legal challenges?

Even after voluntarily dumping about 3 million customers, Comcast would be left with 30 million subscribers, a 30% market share, and potential coverage of 70% of households in America. Those numbers are important because the Federal Trade Commission and Department of Justice tend to heavily scrutinize any merger that ends up with a single entity owning 30% or more of a market share. For example, the AT&T and T-Mobile merger of 2011 that was blocked by the DOJ would have given AT&T 43% of the mobile phone market.

Under Federal law, The Sherman Act discourages monopolies, and The Clayton Act prohibits mergers that "may substantially lessen competition, or tend to create a monopoly." Comcast dropping some subscribers to try and fall back under the magic 30% number will not save the deal, as that is a just rough guideline. Much like the doomed T-Mobile AT&T merger, this deal makes Comcast nearly as large as the entire satellite TV market, and larger than the next 10 biggest cable companies combined. That's a textbook example of what is considered a monopoly.

If the deal were just about television, it might survive thanks to the nationwide satellite providers, but the cable companies also provide internet to most of their subscribers. Which means Comcast would hold the keys to pressuring "cable-cutting" alternatives like Netflix and Amazon, which are for the most part completely reliant on the internet. Net neutrality will only protect these competitors until 2018, and that does not mean Comcast wouldn't call some shots behind the scenes before that goes away.

Thus, the FTC and the DOJ will likely have no choice but to oppose this merger in court. Even some of Time Warner's shareholders have filed a class action lawsuit to try and block the deal. Given that most consumers are already annoyed with the generally poor customer service and always-raising prices of both companies, this deal looks to be dead on arrival.

Bottom line: Although Time Warner's shareholders' class action against the merger is likely doomed to fail, the DOJ will almost certainly invoke the Clayton Act and block this deal to protect healthy market competition. But the bad service from both cable providers will likely continue, despite the irony.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Thursday, February 13, 2014

Legal Geek No. 3 - Will Amazon Dominate with Anticipatory Shipping?

Welcome back to Legal Geek! The topic this week is whether Amazon's latest innovation in patenting a method for anticipatory shipping will dominate the retail market.

https://archive.org/details/LegalGeekEp03

Although Amazon's latest patent (US8615473) on a method and system for anticipatory shipping was issued right before Christmas, news outlets have really picked up on this in the last two weeks as the so-called latest innovation from the wildly successful online retailer. The patent claims a process of shipping products from distribution centers to more local hubs in accordance with business variables that are used to determine where those products are likely to be ordered by consumers.

Looking deeper into the description of the patent, these business variables can include everything from standard demand forecasting such as historical shipments and patterns to more sophisticated forecasting based on web page views and duration on pages, how long a cursor remains over product images, and shopping cart and wish list activity. These latter types of forecasting would be innovative, but it is unlikely that they will be used thanks to significant privacy concerns and the high accuracy of standard demand forecasting methods.

Thus, the patent really only covers a process that is highly similar to what larger retailers do while shipping bulk from overseas manufacturers to a first distribution center in the USA. Indeed, Amazon secured an earlier parent patent on a similar method of enterprise anticipatory shipping in December 2011 (US8086546), and the patent application is 10 years old!

So this is not exactly the freshest innovation from Amazon. But the concept of doing this on a consumer level could be the next logical step in dominating the retail competition. Anticipatory shipping, drone delivery, and employing the USPS on Sundays are the types of moves that keeps Amazon ahead of brick and mortal retailers as well as online competitors.

Bottom line: anticipatory shipping is not all that innovative and Amazon's patents on it will be nearly impossible to enforce against competitors, but the potential is there for incredible added innovation and efficiency. Now you'll have to excuse me because I'm almost out of toliet paper and I hear the drone dropping some off on my front porch. Convenient!

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Thursday, February 6, 2014

Legal Geek No. 2 - Does Twibel Exist?

Welcome back to Legal Geek! The topic this week is whether defamation by libel is a threat to us on social media like Twitter.

https://archive.org/details/LegalGeekEp02

A number of libel lawsuits have been filed for social media defamation, but the first of these lawsuits to actually go to a trial finished last week. The subject of the lawsuit was Courtney Love, who had sent a tweet about her attorney claiming she had been bought off to undermine Love's legal disputes with Kurt Cobain's estate. This has become known as "Twibel" in legal circles.

Libel in the U.S. generally requires publication of a false statement about a particular person or business that seriously shames, ridicules, disgraces, or injures the plaintiff's reputation. Additionally, the defendant must be at fault, which requires only negligence in making the statement for private figures and actual malice for public officials and celebrities. 

Because the attorney allegedly defamed by Courtney Love was a so-called Limited Purpose Public Figure by her association with Love's other trials, she had to prove Love's tweet was false and also actual malice. Love convinced the jury that the tweet was not libel, likely because she thought the allegations were true when she tweeted and thus, the statement was either not false or at least, not malicious.


But Courtney Love's victory does not mean the issue of Twibel is no more. In some countries like Canada, libel does not require a false statement for legal liability, which would make it easier to prove Twibel, especially using the negligence standard for non-public figures. Expect the lawsuits to continue until some court is forced to determine if Twitter and other social media should be subject to the same libel rules as everywhere else.

If so, we all need to be careful about getting into twitter spats in the future. Especially those of you who tend to rake companies and people over the coals by Twitter shaming for perceived injustices. There's a real risk out there, much like the early 2000's when the wild west of Napster and file sharing finally found its day in court.

Don't be the example that becomes legal precedent for the rest of us. The bottom line is, treat people nicely, even on Twitter and other social media.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.