Legal Geek No. 43: Privacy Law Roundup on Airline Personalized Pricing and TV Voice Recognition

Welcome back to Legal Geek. This week, we take a look at two interesting stories in privacy law that developed in April which you should be aware of as a consumer, as we continue to move forward in 2015.

https://archive.org/details/LegalGeekEp43

First, we begin with a story about your new TV and how it may be spying on you!

Smart TV manufacturers have typically set default settings for the new voice recognition equipment to be enabled, and whatever is recorded by the voice recognition equipment is by default sent to the manufacturer for quality control and improvement purposes. The manufacturers want this voice control to work out-of-the-box for the convenience of the consumer, but these defaults raise privacy concerns because it means all your conversations in front of the TV could be monitored carefully by employees of the manufacturer.

And that could be considered illegal wiretapping, at least if the consumer is not aware of this functionality. To address the issue, California lawmakers this week proposed a bill that would prevent these defaults from being used without explicit consumer agreement. That would allow consumers to opt-in to help the manufacturer make the product better, while removing any concerns of Big Brother watching in on your private conversations without consent.

This is likely a good move, although it will hamper the QA efficiency of the manufacturers. Still, the more important rights likely win out here.

Second, did you know airlines could be personalizing prices for you to determine if they can bilk you for more money?

It's true. Since 2014, airlines have been allowed by the Department of Transportation to collect data on consumers and then tailor prices based on predicting how much the airline thinks you will be willing to pay. The factors include things like your zip code, marital status, and travel habits.

Once again, a lawmaker is standing up to this type of potential anti-consumer behavior. This time, it is Senator Al Franken, who is demanding for at least more transparency in the process used by airlines, if not the end of personalized pricing altogether. Word to the wise: book your flights while browsing anonymously for the fairest fares.

Bottom line - The battle between consumer rights of privacy and business needs will continue to evolve in this legal hotbed, and the wise geek among us will stay aware of these things to avoid falling into potential privacy traps.

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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. 42: Google Becomes Biggest Patent Troll of All?

Welcome back to Legal Geek. This week, we take a look at the latest stab for ending the patent troll problem, and whether Google is really just becoming the biggest of the patent trolls instead of solving the problem.

https://archive.org/details/LegalGeekEp42

In a week where the Supreme Court argues the issue of gay marriage and more race protests break out in major cities, of course Google goes and makes the most interesting patent story in months to steal this segment. Google announced the Patent Purchase Promotion this week, in which Google will offer to buy any patented intellectual property that an inventor or patent owner wants to sell.

Here's how it will work. From May 8 to May 22, interested sellers can submit what patent rights they seek to sell and an asking price into Google, and Google will decide after reviewing the offers what they will purchase by June 26. There is currently no clear marketplace for selling patent rights, so what Google is offering here is relatively innovative, while also being potentially scary.

Google is marketing this program as a way to slow the patent troll problem. Congress has struggled to find the right way to stop trollish patent enforcement activities, while also protecting the rights of legitimate inventors and investors who may need to defend rights in court even when they are not able to practice their inventions on a large scale. Google thinks that this program will allow patent sellers to sell to them and hopefully keep those same patent rights out of the hands of assertion entities, which are the trolls who buy patent rights just to threaten lawsuits later to extort settlements from many others.

Will that goal actually be achieved? Or is Google really becoming poised to be the biggest of the patent trolls? That's the open question.

Google will, as a publicly traded company, always be concerned about the bottom line. This patent purchase program will need to generate revenue or saved costs in some manner commensurate with the high expense Google will undertake to procure all these patent rights. That money could come from cheap licenses to many licensors, a de facto creative commons program for patents in the best case. Google may also treat some of these acquisitions as a way to avoid lost costs in paying its lawyers to defend lawsuits later if someone else buys rights relevant to their own products.

However, Google could just end up selling the rights later or taking others to court, much like the same patent assertion entities everyone complains about. Google is no stranger to patent lawsuits, having fought numerous battles over patents in the smartphone industry to protect the Android OS.

Bottom line - No single step will solve the patent troll problem for good, but Google is taking an interesting stab with this program. We can only hope Google is investing this money to make a better patent system rather than merely for strategic, or even worse, trolling reasons.

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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. 41: Apple (Patent) Watch

Welcome back to Legal Geek. This week, we take a look at whether Apple's new smart watch, released today, will revitalize yet another device market, and whether Apple will have a thicket of patents blocking competitors from entering the market easily.

https://archive.org/details/LegalGeekEp41

Apple has been at or near the leading edge on two of the most recent major technological innovations, at least from a commercial standpoint. The iPhone took smartphones to a different level in 2007 when that market was filled with flip phones and Blackberries, which of course led to competitors like Samsung and Google getting in on the mix as well over time.

Then a couple years later in 2010, Apple did it again with the iPad. All of a sudden, tablet computing was the place to be, forcing e-readers, laptop computers, and even eventually smartphones to become more like these tablet devices. Once again, competitors from Microsoft to Samsung later flooded the market as well.

Apple also happens to be one of the most active patent filing companies in the U.S. and abroad. That means just as much as innovating and developing products, Apple fights with competitors in court to try and secure and maintain superior market position. Apple and Samsung, for example, are locked in a years-long worldwide war over various phones and phone-related patents. The tablet patent market is heating up in court as well.

Today, the first generation of Apple Watch arrives. Just like with the iPhone and iPad, the first generation watch is being released to mixed critical review, but wild customer demand. Assuming watches come back into style over the next couple years, there will be plenty of lookalike competitors trying to cut into this market that Apple could expand, if things go well. It's an interesting gambit for a company which kind of made watches obsolete for many people by making smartphones so omnipresent, but then again, we all said the same thing about a tablet because who wants a bigger device that can't even work as a phone?

What's more interesting is to see whether Apple has started putting up enough of a patent thicket to make entering this marketplace hazardous to other companies. Some of the design patents on the bands for the Apple watch began issuing in March and April despite being filed only back in last August, and there's already 4 patents issued on some of those aesthetic designs. Which means competitors will have to be careful with the watch bands they offer with smart watches, let alone what patents cover the watch itself!

One would imagine that many of the important keystone utility patents, which do not publish as applications for 18 months after filing, will only start becoming public knowledge now and in the next year. The patent office is pretty backlogged, so it could take some time for these more important patents to come into allowance and effect. But if the plethora of design patents on watch bands is any indication, Apple is set to protect this innovation just as much as the others they now litigate frequently.

Bottom line - Apple is a leader in innovation and in patent litigation. That does not appear likely to change, even with a new hot idea and no Steve Jobs around anymore.

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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. 40: The Curious Case of Post-Mortem Right of Publicity

Welcome back to Legal Geek. This week, we take a look at the wide variation in local standards for post-mortem rights of publicity thanks to a fun bit of legal research I performed this week for a friend.

https://archive.org/details/LegalGeekEp40

The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.

The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.

27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.

For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!

If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.

Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.

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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. 39: GenCon goes political to take on Indiana Lawmakers (Updated)

Welcome back to Legal Geek. This week, we take a look at how GenCon taking a political stand last week could significantly change the future of the country's largest gaming convention.

https://archive.org/details/LegalGeekEp39

GenCon has been a summer convention staple in Indianapolis since 2003, when it moved from Milwaukee after outgrowing all available convention spaces in Wisconsin. The relationship has been very good for Indianapolis, which holds a lot of conventions and major sporting events but none so big as GenCon. Indianapolis has been estimated to receive over $50 Million in revenue annually from attendees of this four day convention. Indeed, Indianapolis expanded the convention center a few years ago at a cost of $275 Million primarily to accommodate the crowds of GenCon, but also to lure some other big conventions such as the NRA convention in future years.

But last week, the future of GenCon in Indy became foggy as GenCon's CEO sent an open letter to Indiana governor Mike Pence demanding his veto of religious freedom legislation passed by the Indiana legislature a week ago. The letter was also circulated on social media sites. Quoting from the letter, GenCon writes:

"Gen Con proudly welcomes a diverse attendee base, made up of different ethnicities, cultures, beliefs, sexual orientations, gender identities, abilities, and socio-economic backgrounds. We are happy to provide an environment that welcomes all, and the wide-ranging diversity of our attendees has become a key element to the success and growth of our convention. Legislation that could allow for refusal of service or discrimination against our attendees will have a direct negative impact on the state's economy"

Clearly, GenCon is drawing a line in the sand and threatening to leave Indianapolis over the legislation.

The legislation itself is Indiana Senate Bill 101, which would prevent state and local governments from "substantially burdening" a person's exercise of religion unless the government can prove it has a compelling interest and is doing so in the least restrictive means. Proponents of the law note that this is in compliance with the 22-year old federal religious freedom laws. Opponents of the law deem this a potential loophole license for all private companies to discriminate, particularly against gays and lesbians.

Pence signed the bill into law despite the protests from GenCon, making a statement indicating that he does not believe this law authorizes discrimination in any way. However, the opposing economic and political pressure from GenCon, other companies like engine maker Cummins, and the mayor of Indianapolis have apparently been enough to collectively make Pence consider revising or repealing the law to avoid the potential discrimination effect. GenCon released a further letter this week indicating that the governor has reached out to begin figuring out whether an amendment to the bill or enforcement of a current city rule prohibiting discrimination on the basis of sexual orientation will be enough to avoid having the religious freedom act twisted against its intended purpose.

USA Today reports that 19 other states have similar laws in effect already. Thus, even if GenCon's threat to move is serious, it's unclear what, if any good alternative options are available for GenCon to move to. Should the convention move to a city and state with smaller convention center space, that would likely lead to caps on attendees and ridiculous overcrowding problems. Furthermore, the best alternatives may already have generally competing conventions like San Diego with Comic Con and Atlanta with Dragoncon. If Indiana is bad news for GenCon, the alternatives could be much less preferable. Who knows, if GenCon stays on the same week as Nerdtacular, maybe they could move it to Salt Lake City to appease those few of us who go to both!

Bottom line - GenCon going political to protect all of its diverse gamer attendees is a bold move that should be appreciated by nerd world, but the move could lead to an undesirable relocation that would negatively impact the very gamers who love to attend this convention annually. Even with that relocation risk seeming to be less this week, it would still pose some interesting questions for one of the biggest conventions in America.

For more on this from a sports-related slant instead of geek-related, check out my longer article on Talking10.com about the subject.

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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. 38: Good and Bad Developments for Privacy Law

Welcome back to Legal Geek. This week, we take a look at two recent innovations about to affect everyday life and how differences between them are critical according to privacy law experts.

https://archive.org/details/LegalGeekEp38

Starting next month, Visa will commercially release location-tracking software to many banks, meaning your local bank and credit card companies will offer a location tracking identity safety feature on smartphone apps. This innovation will automatically notify Visa when you travel more than 50 miles from home, helping to avoid flagging non-local transactions as fraudulent when it really is you. As someone who has had a card declined in this manner when trying to buy Bacardi rum in Puerto Rico directly from the distillery, trust me when I say this innovation could avoid some embarrassing situations.

Normally having any private corporation such as a bank track your movements sounds like a real infringement of a consumer's privacy rights, but for frequent travelers, this may properly balance lowering risk of identity theft with a minor increase in information given to a corporation about you. Privacy experts applaud this innovation because the bank apps will need customers to opt-in to use this location tracking, and the opt-in can be deactivated at any time. That means the consumer fully controls when it is needed for the bank to know travel is occurring.

Also becoming more widespread next month will be the use of Google's newly developed ReCAPTCHA login authentication functionality on many third party websites. Instead of standard CAPCTHA which tries to screen out bots by forcing typing of distorted text, the ReCAPTCHA analyzes behavioral cues such as typing cadence, where clicks occur, etc., to determine if you are a human. But this authentication process collects a significant amount of information that could actually identify who the human user is, not just that the user is human. That adds to the substantial profile Google maintains on computer users already, and expands it to many third party site activities as well.

Much like the original CAPTCHA, there is no real opt-in for users of these websites, the new regime just must be accepted. That, plus the lack of much control over what Google can do with this collected information, renders this innovation as one which privacy law experts condemn as possibly a step too far.

Bottom line - when it comes to new innovations which make life more convenient and efficient, sometimes it is better to accept a bit less personal privacy to obtain these benefits. But the ability of consumers to actually control what is shared and when is vital to long-term trust of these companies collecting the information, and companies need to remember that. Privacy law experts certainly will.
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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. 37: Fan Art or IP Infringement?

Welcome back to Legal Geek. This week, based on a listener request from Joseph, we take a look at a question regarding selling fan art and fan made items including famous logos or characters.

https://archive.org/details/LegalGeekEp37

Joseph asked a question we see a lot during our summer gaming and comic convention series, that being whether booths that sell fan-made items like stained glass windows, leather flasks, and other items with superhero or video game logos are subject to IP infringement, and if so, how do they consistently get away with this?

Here's the deal for such sellers: it's definitely copyright and/or trademark infringement, and they run the risk of receiving a nasty Cease and Desist letter, if not a lawsuit, when they sell items using trademarked or copyrighted logos without permission. However, most of these small time hobby businesses stay below the radar because (a) it's too expensive for companies to go after every potential infringer, and (b) in many cases, the sales actually help the market for the genuine goods, not hamper it. That leads to a laissez faire attitude for many companies relative to these infringements.

Obviously some companies like Blizzard Entertainment are more "scorched earth" approach than others, going after more potential infringers. But every company has a limit as to how much they can pursue infringement issues. And that is precisely why these sellers at your local comic and gaming conventions get away with what is really blatant IP infringement.

The risk these companies run is large. Should they lose an infringement lawsuit, any of the following remedies could apply: injunction to stop the activity, handing over of any profits made, and potentially further money damages. Especially in copyright, some damages can be set by statue to some ridiculously significant value between $750 and $30,000 per infringement! If you remember the record companies going after Napster users and the ridiculous fines/settlements paid, that's statutory damages coming into play. That can make this market a small reward high risk endeavor.

Bottom line - if these companies remain what is truly a small business concern, they likely stay under the radar and probably have a low actual risk of these bad legal things happening. But they are undoubtedly committing infringement, which opens up the possibility of lawsuits. At the end of the day, it's a business decision, with associated risks and rewards like all business decisions.

Thanks again to Joseph 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