Legal Geek No. 119: Freedom of Tweets

Welcome back to Legal Geek. This week, we discuss this week's news regarding Twitter pulling verified badges from some users and re-evaluating how those badges are granted to users of this social network.

https://archive.org/details/LegalGeekEp119

Twitter has continued to evolve with recent changes, including the notable shift to allow 280 character tweets for all users instead of the long standing 140.  This week, the changes continued as Twitter shut down submissions for verification, which is the open process to request that your account get a verified badge indicating you are the true source material.  In other words, the fake Donald Trump and Miley Cyrus accounts don't get the verified check, but those run by the actual celebrities or their PR agents do.

The reasons for this shut down were explained as follows.  Twitter wants to introduce and apply new guidelines for verification, and also clear the decks of verified accounts that do not follow Twitter's rules and Terms of Service.  For example, Twitter has begun removing the badge from users for allegedly promoting hate or violence, and for engaging in or inciting harassment.  Twitter has claimed that the badge was being interpreted by some users as an endorsement or indicator of importance, but that was never the intent of the badge.

What made this story hit the news waves was the types of users who were in the first group to lose the verification badge.  Many of these users were far right commentators or public figures such as Jason Kessler, who organized a Charlottesville march, and Richard Spencer, a white supremacist.  Essentially, Twitter is deeming some radicals to be promoting hate, while other radicals have not faced the same type of repercussion.

So legally, is there any challenge that can be made by these users who have a status taken away?  The short answer is, probably not.  As a preliminary matter, tweets are not inherently protected free speech under the First Amendment.  If this removal of a status badge is seen as a censorship of the speech, it is not done by a government or a company acting on behalf of a government.  Yes, even though the President tweets all the darn time, this platform is not a government agency.  There's no Freedom of Tweets in the Constitution, last I checked.

Twitter and other private social networks have the right to regulate their channels as they wish, as generally set forth in the Terms of Service for these programs.  In the case of Twitter, the rules applied explicitly prohibit sharing a large number of things like misuse of other's intellectual property, excessive graphic violence, threats, hate or harassment materials, and private information.  Twitter has full latitude to suspend or terminate accounts that do not follow these rules, above and beyond the removal of a verification badge.

If you use Twitter, you agree to abide by those rules, and for these users, that has allegedly not been happening.  As such, the users likely have no reasonable recourse to overcome content control applied in this way by Twitter, and it would be similar with all the major social networks.

The Bottom Line is, as much as social networks like Twitter feel like the public open forum, they are still privately-owned channels of communication with rules and Terms of Service that provide wide latitude for controlling content and actions of users.  The world is likely a better place without fringe or radial dialogue, but one hopes that Twitter's new rules and the application of the verification system can treat all sides fairly in this process.

Finally, if you want to find a further discussion of this story, and lots of other fun geek topics, please check out my appearance on the Ritual Misery podcast from this week.

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Legal Geek No. 118: Dominion and Call of Duty in the Legal Crosshairs

Welcome back to Legal Geek. This week, we update you on a couple of interesting legal cases dealing with popular games, the Dominion tabletop game and the Call of Duty series of video games.

https://archive.org/details/LegalGeekEp118

We start with Rio Grande Games, makers of Dominion, which all but created the deck building genre so popular in tabletop games the past 10 years.  Rio Grande has recently sued a handful of Amazon sellers for allegedly selling counterfeit copies of this game Dominion.

Rio Grande did a bit of their own discovery work, anonymously ordering Dominion from these sources and then investigating whether the copies of the game received were genuine.  They were not.  For example, the knockoffs use significantly lower quality card stock, and a plastic insert much flimsier than the one included with original boxes of Dominion.

With all of the artwork and game name and logos copied, this lawsuit has plenty of claims including trade dress infringement and copyright infringement.  An injunction seems likely in this circumstance, but it raises the question of will other fraudulent Amazon sellers pop up then, to take their place.  It's a constant struggle for some manufacturers and fields, but perhaps not as prevalent in the board game industry.  Thus, Rio Grande may be developing the cutting edge of what to do in these types of knockoff situations.

Unlike Rio Grande, who is suing others to protect their marketplace, Activision Blizzard, the makers of Call of Duty, is the target of a lawsuit filed this week for what they allegedly do with this series of games.  AM General, the makers of military Humvee vehicles, is suing Activision for improper use of trademarks associated with this vehicles.  AM General argues that humvees being prominently displayed in the video games and ancillary products like toys is Activision taking advantage of someone else's intellectual property.

This appears to be a bit of a cash grab by AM General, as the demands here are more for damages than for an injunction.  The legal theory here for significant damages relies on a claim that the wild popularity and sales success of Call of Duty comes only at the expense of AM General and the consumers who are duped into believing these companies are aligned or licensing the trademarks to one another.  That seems like it will be very difficult to prove, but perhaps a small amount of damages is warranted for unlicensed use of vehicle designs in these games.

The Bottom Line is, when gaming companies are successful and lead their marketplaces by making lots of sales and money, knockoffs or those with potential legal claims will always come out of the woodwork to try and claim a piece of the pie.  In those circumstances, courts serve an important purpose in making sure everyone plays fair in the free market.  It will be interesting to see what other game companies get entrenched in conflicts in the coming months, and if they are similar to these two.

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Legal Geek No. 117: Ohio State sued by Famous Former Football Star

Welcome back to Legal Geek. This week, we celebrate my favorite sport college football being in full swing with a look at the latest frontier in lawsuits against universities for using the likeness of players in commercial contexts.

https://archive.org/details/LegalGeekEp117

NCAA football has been under a fairly constant barrage of legal challenges thanks to the money generation shooting to astronomical levels with very little compensation trickling down to the players that help make this product so popular.  As you'll recall, the NCAA itself pulled out of the video game market thanks to a lawsuit from a former player for not sharing the wealth from those licensing deals, and current players have made moves as well like the Northwestern team considering unionizing, also previously covered on this segment.

The tide is rising in favor of compensating players, and another step in that direction took place a few weeks ago when Chris Spielman, a TV personality and former NFL player and linebacker at The Ohio State University, sued his alma mater in federal court as lead plaintiff of a class action lawsuit for antitrust violations associated with marketing activities done by OSU and their marketing firm IMG College.  For any familiar with OSU football, the mere thought of a lawsuit entitled Spielman vs. OSU is shocking.

Spielman has promised to turn any winnings in the case back over to the university, so this is really just to make a point and push against the current way the university uses the likenesses of former players in marketing materials.  For example, OSU and IMG do deals with companies like Nike and Honda, and banners will be hung in the stadium and elsewhere with old Buckeye greats and the company logos on them.  Spielman, being one of the most iconic former OSU players, is typically one depicted.  But he receives no royalty for the use of his likeness as a former player.

One under-the-radar reason Spielman is personally motivated to lead this lawsuit is that he has a 20-year relationship helping a Columbus, Ohio car dealership that sells Mazdas and Subarus.  That makes his association with competitor Honda in such a public forum kind of problematic for his ability to leverage his own fame and likeness for profit in those endeavors.

That helps explain the antitrust claims in the lawsuit, claiming that OSU and its partners have illegally restrained trade on exploitation of likenesses of former players, which adversely affects the rights and opportunities for those former players.  Spielman argues the players deserve some control in this matter, as well as compensation.

Once again, college football and universities are on the firing line for making a bunch of money without the participation of the players.  Another salvo in the ongoing battle over the ever-increasing pots of money this sport generates.

OSU has recently moved to dismiss the federal case based on sovereign immunity of state agencies, while marketing firm IMG has filed a motion to dismiss based on failure to state an actionable claim.  If those motions succeed, the lawsuit would move to state court, but Ohio does not have a right of publicity law that favors Spielman and former players in this type of circumstance.  However, the cat may be out of the bag even if OSU succeeds, as other universities may then face challenges in states with more protective laws for these rights.

The Bottom Line is, as long as the money from marketing and television deals stays so ridiculously high, universities will likely remain under attack from multiple angles until players, current and former, are properly compensated.  This case, while shocking to OSU fans, may be the next big landmark in progress towards what many believe to be fair: paying the players a reasonable wage, even in this so-called amateur context.  We will keep our eyes on the courts in Ohio for further developments as much as we do the current teams fighting on the field for a national championship.

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Legal Geek No. 116: The Gerrymandering Case

Welcome back to Legal Geek. This week, we take a look at one of the more interesting Supreme Court cases of this term about to come up for oral argument, the partisan gerrymandering case entitled Gill v. Whitford.

https://archive.org/details/LegalGeekEp116
https://archive.org/details/LegalGeekEp116
Gerrymandering is a fun word, but most people do not know what it means.  Gerrymandering is the practice of drawing electoral district lines to determine what regions vote for what politicians, in such a manner that attempts to provide an advantage for a political party, or a race, or some other group.  As most states reconsider and redraw their districts every 10 years following the Census, this practice is a concern that comes up periodically in some parts of the country.

This Supreme Court case stems from Wisconsin, where republicans narrowly took control of the state legislature and the governor's mansion in 2010 during the post-Obama rising tide of that party.  This was the first time in over 100 years that party had such control of all branches of state government.  When the Census came out and the electoral districts were to be re-drawn, the Wisconsin GOP leadership secretly planned and then pushed through a new set of electoral districts that was highly tailored to maximize all advantages Republicans could have in the state.

For example, one city in Wisconsin that had previously been a Democratic stronghold was split between two districts and combined with republican suburbs in such a way that Republicans held a strong lead in both new districts.  Between 2008 and 2012, this district swung from being +20% for Obama to +8% for Romney.  Gerrymandering can work because by drawing the lines in such a way that one party's votes are wasted more, such as by being in overwhelmingly one-sided districts in their favor or in close districts not in their favor, does end up having a big effect on outcome.

For example, the state of Wisconsin has swing back to leaning democrat, but despite having only 48% of the popular vote statewide, the republicans won 61% of seats in the state legislature last year.  That's a 13% efficiency gap, and it all stems from this alleged gerrymandering.  Other states beyond Wisconsin have had similar issues crop up, including in favor of Democrats, but none have reached this level of efficiency gap between popular vote and actual results.  So this appears to be the perfect fact pattern to see if the Supreme Court will step in.

The last time this issue came up at the Supreme Court was 2004, and the decision was 5-4 declining to consider a gerrymandering claim.  Four conservative justices deemed this outside the scope of courts, as a purely legislative matter, while Justice Kennedy was a fifth justice who wrote a concurring opinion noting that actual standards or a test would need to be developed for him to be comfortable with weighing in on such an issue.  With Kennedy still being the swing vote on today's court, the plaintiffs are trying to create a fact pattern and a test based on the efficiency gap numbers and the actual intent of the legislature making the gerrymandering to address his concerns from 2004 regarding no clear test for what is constitutional and what is not.

The bottom line is, this will be a fascinating case, as it pits the conservative tendencies of Kennedy and other similar justices to say out of realms courts do not normally belong in, with the realities of legislatures going out of control and effectively stacking the deck against a majority of voters in a state like Wisconsin.  If the Supreme Court does not act on this case, gerrymandering based on political partisanship is something that may never go away in some states.  We will keep you apprised as the case develops further.

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Legal Geek No. 115: A Marriage between Tribal Sovereign Immunity and Pharma Patents

Welcome back to Legal Geek. This week, we briefly discuss the Stranger Things Cease & Desist letter story also covered on the main show, and then dive into an ever stranger thing: a marriage between pharmaceutical patents and tribal sovereign immunity.

https://archive.org/details/LegalGeekEp115

As discussed earlier, lawyers for Netflix earned a lot of positive press in sending a nice version of a Cease and Desist letter to a temporary pop-up bar that used the IP of the show Stranger Things without authorization or license.  While it's not always appropriate to take a softer approach and have fun with in-jokes in this setting, dealing with fans of a brand is a tricky situation as we've covered before on this segment, and this approach shows great legal and PR savvy on the part of Netflix.  Legal Geek approves and welcomes any other nerd IP company who needs a C&D written with in jokes to come contact me.

Now, on to our main course this week, which is also a bit of legal ingenuity.  Pharmaceutical company Allergan, who makes the Restasis eyedrops that generate $1.5 billion dollars
per year, hit the legal newswaves in a big way this week as they defend from claims that their patents covering these eyedrops are invalid.  Patents can be challenged in federal court lawsuits as well as in post grant review proceedings at the Patent Trial and Appeal Board of the Patent Office.  However, both of these are federal bodies, and that brings us to the interesting legal theory Allergan is now employing.

Just like how states have sovereign immunity from federal lawsuits under the constitution, many Native American tribes have sovereign immunity from similar federal actions.  Thus, Allergan has recently paid a New York tribe to transfer patents covering the eyedrops to the tribe and then implicitly license the rights back to make the eyedrop medication.  The tribe, as the rightful owner of these patents being challenged, is now claiming that these challenges in the Patent Office and federal court should be dismissed because they have tribal sovereign immunity from such federal actions.

The legal theory of applying tribal immunity appears to be sound, as the same theory has worked to protect State University owned patents from similar reviews and challenges.  But is this a sham transaction that opens a massive end around for companies to avoid challenges to their patents, or a legitimate legal and business arrangement?  That question has opened some great public debate this week.

On one hand, the tribes who take advantage of this situation should be commended for finding ways beyond things like casinos to generate revenue and support their members.  However, it could risk the legitimacy of applying tribal sovereign immunity in this and other contexts, should the courts or Congress deem it an improper abuse of the power.  The patent world will be watching closely as this progresses to briefing and argument in the coming weeks, as if Allergan is successful, a whole new world of business opportunities will open up to the recognized tribes of the U.S.

The Bottom Line is, never doubt the ability of lawyers to come up with some interesting loophole or novel legal strategy, especially when billions of dollars are at stake.  While it's certainly not great for the patent system if this is a valid workaround, it makes a great story and some money for Native American tribes who have had it rough, in some parts of the country.  Now excuse me while I dial up my local tribe to set up a mutually beneficial business arrangement...

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Legal Geek No. 114: Rubik's Cube continues IP Enforcement

Welcome back to Legal Geek. This week, we review a recent lawsuit filed by the makers of the iconic Rubik's Cube against competitors, as it reveals how IP protection can extend for many decades in some contexts.

https://archive.org/details/LegalGeekEp114

A couple weeks ago, Rubik's Brand Limited, the company behind current sales and marketing of the Rubik's Cube puzzle, sued big companies Duncan Toys and Toys R Us in federal court in New York for a series of claims related to alleged knockoff cube puzzles made and sold by the latter.  These claims include trademark infringement, false designation of origin, trademark dilution, and unfair business practice under state laws.

There are some differences between the products.  While the traditional Rubik's Cube has black background behind the facets and generally square facet corners, the competitor design has white background and rounded edge facets.  The competitor design sells for a cheaper price as well according to Toys R Us's website.  But in all other ways, the 3 by 3 block puzzles are functionally the same.  And those changes, according to Rubik's Brand, are not sufficient to avoid infringement of the intellectual property still pending on the original Rubik's Cube.

You may be asking yourself, how could a functional puzzle like the Rubik's Cube still be covered with it being widely available since the 1980s?  This illustrates the difference between patent protection and trademark or design mark protection.  The patents in the U.S. and elsewhere on the Rubik's Cube expired in 2000, so from a patent perspective on the general mechanics of a rotating face, cube-like puzzle, this puzzle is in the public domain.

However, companies can also bolster or make fallback protection on products like this by filing trademark applications.  Trademarks can be filed on product names, as you know, but design marks are also possible if the product appearance itself is sufficiently distinctive to identify to a consumer the source of the goods.  Logos are trademarked as a design mark, for example.

Rubik's secured two U.S. design marks that cover a black cube having nine color patches on each of its faces with the patches having the colors red, white, blue, green, yellow and orange.  Note that the design includes color identifying features in this context rather than the general mechanics of the cube puzzle, as that would be what patent covers.  As long as Rubik's continues to use that design by selling in commerce or licensing, these trademark rights can be maintained indefinitely.  So while this is narrower coverage than patent claims, it continues on and creates the basis for lawsuits like this one.

So, how does this one come out?  While I'm no expert with respect to New York business practice laws, the design mark infringement case has some merit.  Even though the knockoff is a white cube instead of a black cube, the colors chosen for the facets are the same six colors, and one could argue that this is the core essence of the design mark.  It probably comes down to survey evidence on whether consumers are likely to be confused about the Duncan version being authorized or from Rubik's, and that's at least plausible.  I personally would feel more confident in Duncan's chances had it changed one or two of the facet colors on the competitor puzzle as well, but that's not what happened.

The Bottom Line is, just because a patent expires and puts a product in the public domain, that does not mean the creator has lost all potential rights.  It is wise to check for and design around later patent filings on further developments as well as any trademark and copyright registrations, before bringing a product to market.  Otherwise, you could be stuck in a Rubik's Cube of legalese and court orders!

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Legal Geek No. 113: Breaking Down Nintendo's 10M Patent Infringement Loss

Welcome back to Legal Geek. This week, we take a deep dive into the patent that Nintendo is accused of infringing in a Texas case, in only the way a patent attorney can do.

https://archive.org/details/LegalGeekEp113
https://archive.org/details/LegalGeekEp113

A Texas jury found last week that the Wii Remote used with Nintendo's Wii and Wii U consoles infringed a patent owned by iLife Technologies.  While the $10 Million dollar verdict will certainly be fought further in summary judgement and appeals courts, and thus is not a final decision, it is a significant potential blow for one of our favorite game companies.

In patent world, inventions can be claimed broadly sometimes so as to cover future uses and expansions of those technologies.  That is precisely what happened here.

iLife Technologies developed motion-sensing accelerometer technologies to advance their commercial products, which both monitor infants to help prevent sudden infant death syndrome, and monitor elderly adults for falls that require medical attention.  iLife obtained 6 U.S. patents on innovations in this field which were then used as the basis of this lawsuit.  Nintendo challenged the validity of all these patents in post grant review proceedings, and that knocked out all but one of the patents, which is what Nintendo has now been deemed to infringe.

U.S. Patent No. 6,864,796 is that patent, and it covers a system within a communications device and method of evaluating movement of a body relative to the surrounding environment.  The broadest system claim requires only a sensor associable with the body, a processor that processes dynamic and static accelerative phenomena detected by the sensor to determine whether a body movement is within an environmental tolerance, and communicating tolerance indicia to an outside device in response to the determination.

Claim language is a special kind of legalese, so what does that claim mean, in English?  In short, it covers any system that senses movements using accelerometers and then determines and communicates whether those movements are large enough to indicate a specific type of movement beyond just environmental noise.  In other words, what a Wii Remote does when it detects intentional movements and communicates them to a console to interact with video game software.

When the claims were interpreted and construed during the lawsuit, the broad ordinary meanings of these terms were adopted by the court, rather than Nintendo's attempts to read the claims more narrowly onto fall detection devices only.  Certainly the narrower patent claims on the detected movements being body falls and the like are not what Nintendo Wii systems do, but those broader claims are written to cover things like Wii Remotes, even though that's outside iLife's normal commercial products and markets.  And if you can prove novelty and non-obviousness over prior art inventions for the broad invention, the patent will cover future devices like how the Wii Remote is likely covered here.

With Nintendo losing on claim interpretation, the most likely path to reversing the verdict would be to show clear error in that interpretation, or show that the patent is invalid and should not have been granted.  As the '796 Patent has already survived post grant review, the chances look grim for Nintendo to avoid this verdict.

The Bottom Line is, in technology fields it is difficult to beat everyone to the patent office to file on innovative ideas, especially in view of the ability to broadly claim.  By filing early and often with good patent counsel, iLife Technologies can protect their own life saving devices from knockoffs, but also create revenue streams from other companies who use the same technology in their own fields.  Needless to say, a $10 Million dollar verdict would pay off that investment and then some.  It's also why clearance searching for new products is so vital to avoid mistakes like this, which Nintendo can probably afford but others may not be able to afford.

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