Legal Geek No. 12: Students Lose as College Textbook Market Gets Desperate

This week, the subject is whether textbook publishers will succeed in destroying unfavorable parts of copyright law, or the consumers supporting the business of college textbooks itself.

https://archive.org/details/LegalGeekEp12

College textbook publishers have long wielded every protection possible under copyright law to try and discourage the resale market as well as counterfeits, citing second hand stores as serious threats to the industry. However, one limit in copyright law is the First Sale Doctrine, which serves to exhaust the publisher's right to control resale of the physical goods after selling them to the first purchaser. This has long been the worst enemy of this very lucrative entire industry.

But will recent actions by publishing companies overcome this First Sale Doctrine problem?

Rather than embracing more digital distribution models such as the music industry and the videogame industry to combat resale, textbook publishers have chosen to double down on high prices and force student consumers into impossible choices.  Aspen has begun e-mailing law school professors to inform them that the next editions of their popular textbooks will come with a so-called lifetime access to a digital copy of the text, but the physical book must be returned to the publisher at the end of the class.  In other words, students pay an exorbitant $200 or so for a book that they will not really own, and is not really sellable or useable by second hand shops and libraries.

If there's anything the tech world has learned over time, it is not to trust so-called lifetime digital access from providers such as this. Plus, the publishers are touting these added digital benefits come without increasing the cost of the book, but the price should actually be dramatically dropping if all the consumer gets is a temporary license to the physical copy and a questionable digital copy.

You can bet if this flies in the high-cost law school setting, all publishers will force this change down students' throats in all academic fields, and maybe even primary, secondary, and homeschool settings as well. Consumers will then really be paying money for nothing, and the publishers will rake in the profits while doing an end-run around the First Sale Doctrine established as early as 1904 and reconfirmed by the Supreme Court as recently as last year's term.

Bottom Line: Sometimes consumers need to step up and fight via petitions or supporting organizations like the Electronic Frontier Foundation, and this appears to be one of those times.  Otherwise, college and other schooling could become out-of-reach for the worst reasons possible: corporate greed and profit margins.

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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.

Legal Geek No. 11: Patent Trolls Lose Another Battle at Supreme Court

This week, the subject is whether the tide is turning against patent trolls in the Federal court system.

https://archive.org/details/LegalGeekEp11

The Supreme Court issued two related opinions this week that related to patent law, and specifically how to apply the fee shifting provisions applied for so-called "exceptional circumstances."  This is one of the ways that frivolous litigating parties like patent trolls can be held in check, as paying the legal fees of the other party can be a deterrent when risking litigation against big pockets who have expensive legal counsel.

But how important will these decisions be in solving the patent troll problem?


The Supreme Court is giving far more discretion to the District Courts to determine what are exceptional circumstances meriting a loser pays all legal fees situation. This is not quite so far as some Congressional proposals have been, up to and including fee shifting to the loser in all patent cases, but it does make it more risky to force alleged infringers into court, especially when the case for infringement is shaky.

Another interesting part of the ruling is that the Supreme Court explicitly said an unreasonable manner in which a case is litigated can lead to fee shifting, which means patent trolls must play a little nicer or else run the risk of incurring the wrath of the court. Furthermore, the Supreme Court increased the standard fro review at the appeals court level is to look for abuse of discretion in shifting fees to a losing party, which is very different than the de novo standard that the Federal Circuit has been using (which allows for a fresh look and determination rather than giving deference to the District Court).

At the District Court, the proof now needed to show that the exceptional nature of the case is a preponderance of the evidence, not clear and convincing evidence. In other words, it is much easier for the District Court to shift fees to a losing patent litigation party and much harder for the court of appeals to overturn such fee shifting.

Although not explicitly targeted at patent trolls, these two decisions will likely affect some of the more egregious litigating parties that threaten lawsuits just to try and collect settlement paydays. Furthermore, this keeps legitimate inventors who cannot practice an invention but want to stop infringement or protect their own licensing rights from being harmed by overly harsh fee shifting rules. If you are litigating or threatening litigation and acting with poor tactics to disadvantage the opponent, that will eventually bite you when a court applies the fees from a winning party.

Bottom Line: The patent troll problem of companies buying up patents just to monetize them by threatening litigation is not going away with any one change, but making the courts more of a risky proposition for these entities should help in the long run. The patent troll may be slayed sometime soon!

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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.

Legal Geek No. 10 - Do Apple and Google Conspire, After All?

This week, the subject is whether Apple, Google, and other tech giants have conspired to break antitrust laws.

https://archive.org/details/LegalGeekEp10

An initial settlement was announced of a class action lawsuit that had been pending against Apple, Google, Intel, and Adobe since 2011. This lawsuit alleged illegal deals to not hire away each other's employees in an effort to keep salaries down in Silicon Valley.

But does this settlement mean this collusion was actually happening?

As a preliminary matter, a class action lawsuit that extends over a multiple year period can lead to some very extensive discovery of documents and interviews or interrogatories as well. In this pre-trial litigation process, several "smoking gun" e-mails had already been uncovered and made public. Most notably, former CEO's Steve Jobs and Eric Schmidt corresponded about a Google recruiter being fired after soliciting an Apple employee to leave for Google.

In other words, the evidence that came to light does not look good. Rather than go to trial and more publicly have their companies and executives dragged through the litigation mud, these high tech giants are cutting the potential losses by paying some amount to the class of employees, but this payment is certainly far less than the $3 billion of damages sought.

For example, Lucasfilm, Pixar, and Intuit were also defendants in this lawsuit but they settled last year for a total of $20 million between them.

This class action followed a Department of Justice investigation in 2010, where all these companies had to agree to stop using backroom agreements to not compete with one another in the employee market. Thus, at least as recently as a few years ago, these companies were almost certainly acting as a cartel of sorts, at least for this limited purpose, and that restraint of trade is not legal under federal and state antitrust laws.

Bottom Line: Although these companies do love to battle in court when it comes to competing patents, the competition does apparently stop when it inures to the mutual benefit and profit margins of all involved. Hopefully the DOJ investigation and this class action payday will discourage such practices from happening again in the future.

Legal Geek No. 9 - Will Apple Make Texting While Driving Legal Again?

Welcome back to Legal Geek! The topic this week is whether a new Apple patent application is the first step in making texting while driving legal again in most jurisdictions.


https://archive.org/details/LegalGeekEp09

One of the more interesting recent Apple-owned patent applications (U.S. Application No. 13/627,959 - Publication No. 2014/0085334) published this week at the US Patent Office. The invention is entitled Transparent Texting, the idea basically boiling down to using the rear-facing camera to stream through an image of what is in front of the user as a background to texting. Thus, someone walking and texting, or even hypothetically, driving and texting, can continue to see in front of them while focusing on the phone screen.

Leaving aside whether Apple will actually be able to secure a patent on this idea (and that is a highly gray area), this application could have far-reaching legal consequences if Apple executes this invention in new phone designs.

For example, if the problem with distracted driving is lost focus on the road, this application could solve that problem by keeping the focus on the message bubbles and the underlying background of the road. While some of the claims are to a mobile device like a phone, the method claims are broader and could encompass phones or displays that are an integral part of the car.  Imagine if text bubbles could show up on your windshield as the windshield brings you a high definition look of what cameras outside the car see? Would it still be distracted driving?

Unfortunately, the only way to know is if local lawmakers allow people to try out such freedoms. At least until car safety technology moves beyond automatic emergency brakes to more automated vehicle controls, it is unlikely that this, or a Google glass, or anything of the ilk will make texting while driving legal.

Bottom line: if you need to text, just pull over. Someday technology will help us overcome human focus problems, but until then, patents like this are just mere convenience for pedestrians.

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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.

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.

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.

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.