Welcome back to Legal Geek. This week, we review the decision in California this week regarding San Diego Comic Con and the ability of the organizers to protect against competition using the trademarked name Comic-Con.
https://archive.org/details/LegalGeekEp121
San Diego Comic Convention is the organizer of the huge annual gathering of the nerds and stars known as Comic-Con, and they have acquired registered U.S. trademarks covering this name. When a Salt Lake City comic convention refused to stop using Comic-Con as part of its name, or pay a license fee for the privilege, San Diego Comic Con sued for trademark infringement. This week, a jury found that the trademark registration is valid, and that the Utah convention organizers infringed the Comic-Con trademark.
What this means is that an injunction will likely be obtained against the Utah convention, which will then have to change its name moving forward. Other conventions in Baltimore and elsewhere using the name may also be challenged and forced to abandon the name Comic-Con. Many are asking how can this be fair, when the term Comic-Con is so descriptive of the event covered by the trademark?
Trademarks are generally classified into four categories of distinctiveness depending on how related the mark is to the goods or services covered. These categories include generic, descriptive, suggestive, and arbitrary. Terms that are generic such as paper are not protectable by U.S. trademark registrations, and the same is true of marks that are merely descriptive. However, if a descriptive mark acquires secondary meaning indicating the source of the goods as a result of long time use and promotion in the marketplace, those types of marks can be registered.
According to the jury in California, that must be where Comic-Con fits. The jury rejected Salt Lake's defense that the term Comic-Con is generic. Despite this, a shortening of the phrase comic convention is precisely descriptive of what happens at these events, so the jury and the U.S. trademark office have both come to the conclusion that the San Diego organizers have done enough in their 50 years in the marketplace to make this name acquire so-called secondary meaning. While some may come to opposite conclusions, this is a fact-based analysis based on things like survey evidence of what consumers believe, and therefore is unlikely to be overturned on appeal.
This is just the reality of how U.S. law has drawn the lines between what is protectable and what is not, and it makes sense based on the desire to allow competitors to be able to fairly describe their products but not trade on the goodwill earned through long efforts and marketing of other entities.
The San Diego organizers do run the risk of losing the trademark rights if they do not adequately police the use by other conventions, so expect this enforcement effort to expand and continue. Should you boycott San Diego Comic-Con over this? I'd argue no because this doesn't stop other conventions from happening, it just means they have to use a different name like Comic Expo, or the like. I would posit that even the longer form Comic Convention is likely acceptable and not covered by the trademark here. The protection is narrowly tailored and can be easily worked around, and therefore should have no real long-term effect on nerds who attend all these conventions.
The Bottom Line is, you may not personally like that a term like Comic-Con is protected by trademark and monopolized by the San Diego convention, but nerd culture has survived similar circumstances before, like when the term superheroes was trademarked. Conventions with as much success as the Salt Lake one, as I hear anecdotally, can honestly build up their own alternative brand name and then enjoy the consumer goodwill from that name. So it's not the end of the world, but don't expect to be going to anything literally called a Comic-Con outside of San Diego anytime soon.
Thanks to CareyT and MajorSpoilers on Twitter for suggesting this hot topic.
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Thursday, December 14, 2017
Friday, December 1, 2017
Legal Geek No. 120: Conflicts and Bias at the Supreme Court
Welcome back to Legal Geek. This week, we update you on an augmented reality game lawsuit we covered earlier, and then turn to rising issues of conflicts of interest at the Supreme Court and the need for better controls to avoid personal bias at the highest court of the land.
https://archive.org/details/LegalGeekEp120
A few months ago, Legal Geek covered the latest in a lawsuit pitting Milwaukee County in Wisconsin against augmented game makers like those who make Pokémon Go. As you'll recall, Milwaukee County enacted an ordinance in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks. Candy Labs challenged this ordinance in federal court and won an injunction this summer against enforcement of the ordinance as potentially not being constitutional.
This case was slated to go to trial in a couple months, but a settlement agreement was reached this week. Under the settlement, Milwaukee will not enforce the ordinance and will pay attorney's fees to Candy Labs for this lawsuit. So rejoice Pokémon Go and other augmented reality game fans, as this legal victory should deter other localities from unfairly limiting use of public spaces to gamers like this.
Now to our main topic this week, conflicts of interest at the Supreme Court.
To describe conflicts of interest simply, judges are to be conflicted out of a case when they have personal involvement, such as by owning company stock, or prior involvement as an advocate on one side of a case they would be adjudicating. We don't want unfair bias in the court system, so when conflicts come up the judge is supposed to recuse themselves, AKA withdraw from the decision making. All lawyers also do conflict checks regularly to avoid representing two companies or persons that would be opponents to one another in court, so it's not unique to judges, nor is it a new concept to these seasoned attorneys who become Supreme Court justices.
Earlier this month, Justice Kagan recused herself from an immigration case that's been in hearings and re-hearings at the court for over 18 months. Despite participating in a first decision when the court had 8 justices and was deadlocked, and then participating in the oral arguments of the re-hearing this October, at no point in this process did Kagan or her staff identify the disqualifying conflict of interest she had from her prior job as a solicitor general. If Kagan had recused herself in a timely fashion, this case would be long wrapped up, and there would be no risk of bias based on her significant involvement in the oral argument and part of the decision-making process. But that did not happen here.
More troubling, this is the third straight year where this has happened on a Supreme Court case, with a late recusal by a Justice after significant participation in the case. The other two cases involved stock ownership in a company with stakes on the line in a Supreme Court case. How does this problem keep occurring, and why?
There are some formal standards and a Code of Conduct federal courts are supposed to follow, including automated software screening checks, but these were made by a conference of judges at all levels of the judiciary. The Supreme Court believes that by constitutional mandate, they are one court and not subject to policies or rules being forced upon them by lower courts. As a result, each justice handles these potential conflicts in their own independent way. As we can see, that's not working perfectly.
It is vital for the fairness and transparency of the judiciary that the highest court in the land be free from unfair biases. To accomplish that, the Supreme Court should institute at least some standard procedures to more quickly and accurately identify these issues for consideration before an oral argument is conducted.
The Bottom Line is, the public has faith in the courts because they are designed to be fair and impartial, but the Supreme Court has a long way to go to catch up to the rest of federal courts in avoiding conflicts and late recusals from cases. In a country so divided in partisanship in the other branches of government, we have to hope the courts lead by example and fix problems like this.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
https://archive.org/details/LegalGeekEp120
A few months ago, Legal Geek covered the latest in a lawsuit pitting Milwaukee County in Wisconsin against augmented game makers like those who make Pokémon Go. As you'll recall, Milwaukee County enacted an ordinance in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks. Candy Labs challenged this ordinance in federal court and won an injunction this summer against enforcement of the ordinance as potentially not being constitutional.
This case was slated to go to trial in a couple months, but a settlement agreement was reached this week. Under the settlement, Milwaukee will not enforce the ordinance and will pay attorney's fees to Candy Labs for this lawsuit. So rejoice Pokémon Go and other augmented reality game fans, as this legal victory should deter other localities from unfairly limiting use of public spaces to gamers like this.
Now to our main topic this week, conflicts of interest at the Supreme Court.
To describe conflicts of interest simply, judges are to be conflicted out of a case when they have personal involvement, such as by owning company stock, or prior involvement as an advocate on one side of a case they would be adjudicating. We don't want unfair bias in the court system, so when conflicts come up the judge is supposed to recuse themselves, AKA withdraw from the decision making. All lawyers also do conflict checks regularly to avoid representing two companies or persons that would be opponents to one another in court, so it's not unique to judges, nor is it a new concept to these seasoned attorneys who become Supreme Court justices.
Earlier this month, Justice Kagan recused herself from an immigration case that's been in hearings and re-hearings at the court for over 18 months. Despite participating in a first decision when the court had 8 justices and was deadlocked, and then participating in the oral arguments of the re-hearing this October, at no point in this process did Kagan or her staff identify the disqualifying conflict of interest she had from her prior job as a solicitor general. If Kagan had recused herself in a timely fashion, this case would be long wrapped up, and there would be no risk of bias based on her significant involvement in the oral argument and part of the decision-making process. But that did not happen here.
More troubling, this is the third straight year where this has happened on a Supreme Court case, with a late recusal by a Justice after significant participation in the case. The other two cases involved stock ownership in a company with stakes on the line in a Supreme Court case. How does this problem keep occurring, and why?
There are some formal standards and a Code of Conduct federal courts are supposed to follow, including automated software screening checks, but these were made by a conference of judges at all levels of the judiciary. The Supreme Court believes that by constitutional mandate, they are one court and not subject to policies or rules being forced upon them by lower courts. As a result, each justice handles these potential conflicts in their own independent way. As we can see, that's not working perfectly.
It is vital for the fairness and transparency of the judiciary that the highest court in the land be free from unfair biases. To accomplish that, the Supreme Court should institute at least some standard procedures to more quickly and accurately identify these issues for consideration before an oral argument is conducted.
The Bottom Line is, the public has faith in the courts because they are designed to be fair and impartial, but the Supreme Court has a long way to go to catch up to the rest of federal courts in avoiding conflicts and late recusals from cases. In a country so divided in partisanship in the other branches of government, we have to hope the courts lead by example and fix problems like this.
----------------------------------
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, November 16, 2017
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.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Thursday, November 9, 2017
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.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Wednesday, October 11, 2017
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.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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.
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 29, 2017
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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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Friday, September 22, 2017
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...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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...
----------------------------------
Do you have a question? Send it in!
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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