Legal Geek No. 19: Was Veronica's Comcast Call Illegal?

Welcome back to Legal Geek. This week, we take a look at wiretapping laws to determine whether Frogpants friends Veronica and Ryan did anything illegal in recording and posting the phone call of them trying to disconnect Comcast service last week.

https://archive.org/details/LegalGeekEp19

Anybody who has dealt with canceling cable services knows what a pain companies like Comcast and Time Warner can be on the back end. However, you hopefully haven't experienced the 10+ minutes of agony that Veronica and Ryan did, and it's worth a listen.

Clip of call available here: https://www.youtube.com/watch?v=yYUvpYE99vg

One of the more typical responses to this viral call has been to ask whether the customer violates any wiretapping laws and the rights of the Comcast call center employee by recording and distributing such a call. It even came up on Current Geek briefly last week.

Wiretapping laws have protected telephone, personal, and electronic communications since the late 1960's, and these laws have become more vital over time as privacy rights erode away for the general public in many areas. Federal and state laws prohibit any unauthorized interception, recording, distribution, or use of a private conversation, although there are numerous limits and exceptions to this law.

One limit is consent of one or both of the parties to the recording. 38 states and Federal law allow wiretapping of any conversation when one of the parties consents, which would automatically protect Veronica and Ryan as participants on this call. However, California is one of the few states that requires consent of all parties to make wiretapping legal.

However, there may be implied consent of the Comcast employee here because his company informs customers that each call may be monitored or recorded for quality assurance purposes, which is done precisely to avoid federal wiretapping laws and FCC regulation violations.

However, the California law has another important limit in that it applies only to confidential communications, in other words, those conversations where an expectation of privacy is present. It would likely be impossible for Comcast or its employee to prove that they have any expectation of privacy on a business call from a consumer such as this. Their own recording of these same calls tend to prove otherwise.

Bottom Line: Veronica and Ryan are safe from federal and California wiretapping laws thanks to consent and/or the call not having an expectation of confidentiality or privacy. That's good news for our friends and hopefully also for Comcast, which will hopefully change company practices and policies after the fallout from one employee following questionable company orders.

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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. 18: Supreme Court Clarifies More Limits on Software Patents

Welcome back to Legal Geek. This week, we continue our review of recent Supreme Court decisions affecting the tech world by analyzing the decision in Alice Corp. v. CLS Bank.

https://archive.org/details/LegalGeekEp18

Like many Supreme Court cases, including the copyright case covered last week, a primary issue is whether the resulting ruling will affect more than just the narrow facts at hand in the case. For the Alice case, the simple question was whether a patent claiming a computerized trading platform for eliminating settlement risk in financial transactions was patentable subject matter. The broader question was whether software patents are actually patentable subject matter.

As is typical in the decisions, the Supreme Court answered the facts at hand and did not address the broader issue, likely leaving the big question of software patents to be decided by Congress rather than the courts. Thus, the reports that software patents were greatly curtailed by this decision are simply false.

The use of a third party in financial transactions to eliminate settlement risk was deemed by a unanimous court to be what is called merely an Abstract idea, in other words a well known principle or building block of economic practice. Moreover, the claims that add generic computer system elements to perform the methods were ruled to not be patentable subject matter either.

Put simply, a patent attorney cannot merely wordsmith claims and add simple elements to make a non-patentable Abstract Idea into a valid patent claim. Again, from a common sense perspective, the Supreme Court has acted logically in stopping gamesmanship based solely on wording of claims rather than substance.

However, the Court made it abundantly clear by comparisons to previous Abstract Idea cases that this analysis has not changed, it was merely applied to the facts in this case. Thus, software patents in the broad sense are still as patentable as they have always been, and that legal field will continue to thrive.

Bottom Line: If software is to be deemed non-patentable subject matter, that decision will clearly not come from the Supreme Court. The standards will remain fuzzy as a result of the nature of software, but there is good innovation there and the courts and Congress are not likely to take away the patent rights to this entire field.

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. 17: Supreme Court Deals Death Blow to Cordcutting Option Aereo

Welcome back to Legal Geek. This week, we review the impact of this week's Supreme Court decision that killed one cord cutting option called Aereo.

https://archive.org/details/LegalGeekEp17

The Supreme Court always releases a high number of decisions in June at the end of their annual term, and the complex intellectual property cases always seem to be left to this time period. One of the most notable decisions came down this week, as the Aereo service was confirmed to be copyright infringement by the Supreme Court.

For those unfamiliar with Aereo, this was a subscription service that allowed users to watch over-the-air television broadcasts by intercepting the signals with miniature antennae. Basically, a user decided what program he wanted to watch and Aereo opened access to the channel by sending the intercepted antennae signal to the user's device. Effectively, this was a cord-cutting system because it allowed for live and cable programming to be viewed without a cable or satellite TV subscription.

The 6-3 majority opinion held that the transmission of these intercepted programs to user devices was enough to qualify as a public performance of those programs, which is one of the rights that copyright protection includes. Just because the programs were individually transmitted in a passive manner on an individual by individual basis, this was deemed by the court to be analogous to a performance of the program through an individual conduit to many users (which would more clearly be improper under copyright precedents). On this point, I think that common sense won the day.

Thus, Aereo will be shut down, which all 9 justices agreed should happen, even though the dissent disagreed on the grounds for shutting this down. The Court explicitly stated that this case does not decide whether copyright infringement occurs with cloud computing or remote storage DVR's, so this really just shuts down the most illegitimate of the cordcutting services. And of course, this decision has no effect on the more popular services like Netflix and Amazon Prime, which pay royalties to stream the programs delivered to subscribers. Indeed, Aereo could make the same negotiations and stay in business, should it choose to continue on the right side of the law.

Bottom Line: Cordcutting and cloud computing live on, while Aereo will not in its current form. Much like the aftermath of the Napster decisions in the music industry, we still appear to be headed toward a great place for consumers of live and recorded television and films.

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. 16: Evaluating the Copyright and Trade Dress Claims in Hex vs. Magic Litigation Battle

Welcome back to Legal Geek. This week, we finish our review of the legal battle brewing between Wizards of the Coast and Cryptozoic by looking at the merits of Wizards' copyright and trade dress claims.

https://archive.org/details/LegalGeekEp16

The trade dress claimed by Wizards is the overall product appearance of Magic and its computer counterparts, alleged to include the packaging and 15-card contents of booster packs, the overall visual aspects of the cards, and the like. However, Wizards likely shot this claim in the foot by admitting all of this alleged trade dress has some functionality.

Functional elements are not protectable trade dress under the Lanham Act, so this trade dress claim is likely dead on arrival. I expect the trade dress claim to be decided in favor of Hex on initial summary judgment.

Turning to copyright, Wizards has set forth a compelling story of all the elements of Magic that Hex has allegedly copied. These copied aspects include the major types of cards, ability names on creatures, the same five colors of cards, a list of functionally identical cards, the background game appearance on a computer display, the same general rules of deck construction and combat during play, and the use of tapping cards to show use.

The vast majority of these appear to be the underlying facts or ideas that are not protectable creative expressions under copyright law. Many knockoff video games were able to escape copyright infringement over the last two decades on similar grounds, but some courts (including one involving a Tetris clone in 2012) have recently taken to applying copyright infringement where the amount of total elements copied is significant and overwhelming. Based on Wizards' complaint, that could very well be the case here.

So the copyright claim may come down to whether the judge or jury is sympathetic to the idea that knocking off most of the major aspects of a computer game is wrong. That's incredibly hard to predict, so the copyright claim will be the most interesting going forward.

Bottom Line: Wizards will likely prevail on the patent claim but will lose on the trade dress claim, which means the unpredictable copyright claim will determine whether Hex will be allowed to continue in this market for the long term. It will be certainly fun to see how this plays out in court between two game company titans.

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. 15: Evaluating the Patent Claims in Hex vs. Magic Litigation Battle

Welcome back to Legal Geek. This week, we continue our review of the legal battle brewing between Wizards of the Coast and Cryptozoic by looking at the merits of the patent claims against the game Hex.

https://archive.org/details/LegalGeekEp15

Let's begin with the basics: patents that are issued by the USPTO are effectively 20 year monopolies rewarded for innovation in the arts and sciences, but the monopoly is limited to just the specific numbered claims at the end of a patent. The difference between what is described in a patent and what is actually claimed can be very dramatic, as the claims are typically narrowed significantly during prosecution.

The urban legend is also true that Richard Garfield, the designer of Magic, did procure a patent in 1994 for various basic things like deckbuilding and tapping cards that are now a commonplace thing in trading card game designs. That patent of legend is what Wizards is claiming is infringed by Hex.

There are 57 claims in the Magic patent, but four of them stand to me as real problems for Hex. The first two recite a card game and a computer card game requiring only obtaining a hand of cards from a supply, playing a card, and designating a card by rotating it to a different orientation, AKA tapping. That's all, and Hex certainly seems to do those few steps.

Another of the broad claims recites obtaining a hand of energy/mana components and effect components, then using the energy components or mana to play the cards. Again, very basic TCG rule sets. The last of the broadest claims describes selecting a library of cards and displaying it on a computer screen to one user, then executing turns of a game and showing the cards played on multiple computer screens.

Claim construction is a process for deciding how to interpret these legalese claims, and that process plus discovery of documents and information from each party can be very complex and somewhat unpredictable. However, it seems likely that the close clone of rules and operations that Hex is compared to Magic will infringe at least those broad claims, if not more.

So Hex will likely need to fall back on the other defense to patent infringement, that being arguing that Wizard's claims are too broad or vague and therefore invalid. Of course, that will require finding prior art from before 1993 on these points, and the TCG market was not really in existence before Magic, so that could be difficult.

Although this patent will expire later this month, Wizards is still entitled to damages if this claim is successful for the large kickstarter profits and recent profits made by Hex. Plus, fighting over patents in court is ridiculously expensive, even by litigation standards. Unless Cryptozoic finds some invalidating prior art nobody else has located over the last 20 years, this infringement claim likely will go in favor of Wizards.

Bottom Line: At least on this claim, the makers of Hex should likely settle as soon as possible. The expected loss on the patent claim could be devastating, if not fatal to this game.

Next week, we will finish this subject for now by looking at the copyright and trade dress claims, which thankfully are a bit more straightforward.

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. 14: Diving Into the Hex vs. Magic Litigation Battle

Welcome back to Legal Geek. This week, the subject is litigation strategy and why Wizards of the Coast is suing Cryptozoic on a number of different intellectual property grounds.

https://archive.org/details/LegalGeekEp14

As discussed by Scott and Tom during last week's Current Geek, it was publicly announced last week that Wizards was suing Cryptozoic for infringement of IP relative to the iconic trading card game Magic the Gathering. In short, Wizards believes that Cryptozoic's new video game TCG called Hex is an illegitimate copy of Magic that should be stopped.

This interesting case between two gaming industry titans could be ground-breaking in a field close to our nerdy hearts.  As a result, this segment will look at some important aspects we can learn from this litigation over the next couple weeks.

This week, let's focus on the threshold question many are asking: why is Wizards is suing Cryptozoic on so many different grounds?

http://www.scribd.com/doc/224144304/Wizards-of-the-Coast-v-Cryptozoic-Entertainment-et-al
Comparison Photos from Complaint in W.D. Washington District Court filed by WOTC.

Wizards has three distinctive claims in the Complaint against Crptozoic, specifically patent, copyright, and trade dress infringement. Each of these three types of intellectual property provides a different scope of protection and each has a different test or burden of proof that Wizards must meet to prove that Hex is infringing. To put it most simply, Wizards is taking every bite at the apple it can because winning on any of these grounds will likely be fatal to Cryptozoic's game.

In addition, IP rights do not last forever. For example, the patent that Wizards is suing over is set to expire in June 2014. At long last, TCG designers will have "tapping" a card in the public domain for use in future designs. Thus, while the patent may have the best chance at obtaining profits and damages from Cryptozoic, the rights of Wizards to stop Hex from future sales based on patent rights will be moot in just over a month.

The copyright and trade dress actions are not based on soon-to-expire IP, so these items could lead to a long-term shutdown or redesign of the Hex game. Also, the likelihood of confusion test used to determine trade dress infringement is drastically different than construing and applying patent claims or determining the protectable authorial expressions covered by copyright. By making Cryptozoic prove a lack of infringement under each of these various standards, Wizards is banking on Cryptozoic not being able to rebut all of the different tests and arguments.

Bottom Line: The scorched earth approach of litigators is nothing new, and Wizards is making Cryptozoic jump through the most hoops possible to avoid infringement.  Even if some of the claims are more shaky than others, it is worthwhile for Wizards to fire every bullet it has in the litigation gun.

Next week, we will look at the merits of some of these claims and predict how this case might come out.
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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. 13: Do Blackberry Phones Finally Have a True Successor?

This week, the subject is whether a new phone to be released in June will finally be a true successor to Blackberry phones in the business world.

https://archive.org/details/LegalGeekEp13

The smartphone industry, like many technological fields, generally hits booms and busts based on widespread acceptance by the corporate world and by government. When employees in the business world could remain connected to the job everywhere on a secure connection with a keyboard and e-mail capabilities, the Blackberry became the crown jewel of the smartphone market.

Indeed, at its height, Blackberry held more than 20% worldwide market share. But that crashed quickly to less than 3% in five year thanks to the iPhone and other competitors blazing new trails while Blackberry was left behind.  Perhaps the only reason Blackberry remains in business is the corporate world, which is slow to adapt to new technologies thanks to data security and privacy concerns, among other items.

But have we now finally found the true successor to Blackberry phones?


The Blackphone was announced early this year and is designed by Phil Zimmerman, who is known as the inventor of PGP.  It is touted as the Spy-Proof phone, which is precisely the type of marketing scheme that works wonders in the corporate world. Although some would argue only idiots leave phone communications unencrypted or unprotected these days, it's hard to stop the onslaught of data collection in nearly every phone application and there will always be plenty of non-saavy tech idiots in the business world.

Thus, reports are flooding in this week that corporate giants such as those in the Fortune 50 are pre-ordering the Blackphone in high amounts. Considering the phone has comparable specs as android phones slightly above entry level, this could be a cost-effective option for finally replacing the Blackberry in many business settings.

Businesses want to keep all proprietary data such as trade secrets and future patent subject matter such as R&D away from prying eyes that will sell out or possible include foreign and domestic competitors, and this phone is promising the world on that front. Especially if the general public buys in for the purpose of privacy from big brother interests like the NSA, this phone could be the next sensation.

It's unclear if any of this technology is patent pending, although that might not matter if the marketing clicks. Make no mistake: Blackphone is intended to be a play on Blackberry, which again might bring up some interesting trademark questions that likely won't matter to the commercial success of the device.

Bottom Line: In this era of increased focus on privacy, the Blackphone is well positioned even without IP protection to be a huge player. Look for this star to continue to rise.

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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.