Law of the Game 2.0

There's still some cleaning up to do, but by and large, Law of the Game Phase 2.0 has begun. And that means you should be visiting www.lawofthegame.com rather than here. Yes, Law of the Game has been relatively quiet as of late, and while I've been busy speaking (rather than blogging), this new era of the blog aims to fix that. But what does that mean? A few things:
1. I, Mark, will be moving into more of an Editor-in-Chief role and less of an author role.
2. Law of the Game will have a small staff of writers putting together new content. This is something the Wordpress platform handles much better than Blogger does, and so that was a driving reason behind the move.
3. Law of the Game will be a lot more active as a result of points 1 and 2 above.

 In the mean time, I will continue cleaning up some of the tag issues that arose from moving from Blogger to Wordpress, while also adding some new areas to the site. You should already be able to see the new branding and new look. With a little more time and effort, everything will be up and at 100% efficiency.

This also means something else to my readers who may be lawyers or law students looking for some exposure. I'm currently seeing a handful of writers to be official Law of the Game contributors. Some of those slots are filled, but others remain open. If you are interested, please e-mail me at mark at lawofthegame dot com. Be sure to include a bio and a writing sample. Again, this is only open to law students or licensed attorneys, and content (for now) will be limited to English language (although covering non-US jurisdictions is acceptable).

 I would be remiss not to thank Zack Bastian, the original Law of the Game contributor, for his work over the past few years. It was actually his contributions that made me decide to move Law of the Game in this direction. As for this Blogger site, I will continue to update it with as much content as I can keep up with, but it will by and large be the same as the content on LawoftheGame.com. Our first contributor posts should be coming in the next few days, so stay tuned!

6th Annual Penn Intellectual Property Group Symposium - Live Stream

I will be speaking at the Penn IP Law Group Symposium on Friday, March 29, 2013.  They'll be live streaming starting at 2 pm eastern at this link, so be sure to check it out.  More information on the symposium is available at the conference site.

Game Business Law 2013

Game Business Law 2013 will be here in just over a month. It will be held January 24-25, 2013, at SMU Law School, as it has been since the conference started.

I will be moderating a panel on crowdfunding and Kickstarter this year, but all of the sessions are looking very strong. The iniital program has been posted, for those interested in attending.

The past four Game Business Law conferences have been truly excellent, and I would recommend that anyone involved in the industry consider attending.

Beware the Berner Convention: Terms of Use and Social Media

Nearly everyone uses social media. It is difficult find people who do not. There are many platforms with different concepts and target audiences. But across them all, there are questions about privacy, copyright, and contracts. This arose when a makeshift legal declaration recently trended on Facebook:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.

There are so many things wrong with that. It is a remarkable word to red ink ratio. But, this is an opportunity to think about social media from different angles. So many sites are “free". What’s the real cost of use? We will look at some of the legal issues.

First, there is no Berner Convention. There might be a Bernie Convention where people do this dance and wear cool sunglasses. No Berner Convention. There is a Berne Convention covering copyrighted works, and the United States and many other countries are parties. It is relevant to Facebook, but differently than the statement suggests.

“Declaring" your copyright to the world is meaningless. The Berne Convention directs that copyright exists when an idea takes form. Whenever a creative work becomes fixed, so do rights in the creator, regardless of any “declaration." However, there are things creators can do to improve the protection that copyrights grants. For example, filing for a registered copyright can be a great investment for something that shows a potential to generate revenue (and might be taken by someone else for that purpose): a video game, a book, a movie, a song. Vacation photos might not be worth the fee, since there’s likely no value to third parties.

Second, things like this come far too late, and don’t change the basic proposition of Facebook. Facebook’s easily accessible Statement of Rights and Responsibilities makes clear that, “you own all the content and information you post on Facebook," and:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

As long as your things are up on Facebook, Mark Zuckerberg is free to do what he pleases based on that license, but you still own the rights to the work in question. This is one of the click-wrap licenses we mentioned before. As long as the agreement is not unreasonable or unconscionable a court is unlikely to strike it down. If you are uncomfortable with this, you are not alone. But deciding whether these agreements are fair should happen before you click “I Agree". Moreover, without the clickwrap license, Facebook would be unable to function. They would have no legal ability to share the photo you uploaded with anyone, be that friends, family, random strangers, or that ex you’re trying to make jealous.

When you join Facebook or any other social media site, you enter a contract. A contract needs an offer, acceptance and consideration. Facebook offers to let you use their platform to connect with friends, share photos, and so on: those services are consideration. In return, you offer the consideration of letting them use your intellectual property. It is important to be realistic about how they might use it. Maybe one of your photos ends up in an ad. But what is much more valuable is information about you.

By tracking your behavior, sites get an idea of who you are and what you like. They turn to advertisers with this information and sell the opportunity to reach consumers who are apt for certain products. Some companies have figured out how to turn this into a sustainable business models, but many observers remain skeptical on its long-term viability. Warren Buffet’s investment partner Charlie Munger said pointedly, “I don’t invest in what I don’t understand. And I don’t want to understand Facebook."

The challenge of developing a new kind of business is risk. Facebook became ubiquitous rapidly. It remains to be seen whether that growth means they will be profitable in the future. No matter the era or the business, there is no free lunch. Money does not change hands when you sign up for sites like these, but they would not make the service if there was no cash involved. On balance, most people would probably decide that they are OK with sites using their information, provided it stays within certain bounds.

If you are not OK with it, take your profile and your content down. You cannot alter your agreement with Facebook by just saying so. Contracts can be modified, but both parties need to consent. The Facebook Terms of Use were unacceptable to the federal government, so the Government Services Administration negotiated different parameters with Facebook and many other sites. Like a copyright application for your vacation photos, this would probably not be worth your time and money. Even if it were, it seems unlikely you would be able to compel Facebook to negotiate these points.

This hoax did some good: it created a conversation about where these platforms fit in our lives. We share deeply personal things in ways that were not possible fifteen years ago, accessible around the globe. This convenience has its price. Is it right for you? Maybe, maybe not. Whatever you do, do not expect the Berner Convention to bail you out.



Zack Bastian is an official contributor to Law of the Game. A a recent graduate of George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

International Bar Association: Dublin

For any readers who might be attending the International Bar Association Annual Conference in Dublin, I will be speaking in two sessions, Monday afternoon and Tuesday morning. More information on the sessions is below.

The global ‘gamification’ of online gambling
Joint session with the Leisure Industries Section and the Technology
Law Committee.
Session Co-Chairs
Trevor Nagel White & Case, Washington DC, USA
Gabrielle Patrick iSeed, London, England; Vice-Chair, Electronic
Entertainment and Online Gaming Subcommittee
Gamification, and online gambling, are among the booming global
phenomena of the past decade. Given the highly polarised reactions to
gambling across different jurisdictions, yet the boost it can provide to
governmental coffers in these trying economic times, few are surprised
that online gambling has generated both political controversy and a
plethora of cross-border regulatory and legal issues. This session initially
explores these critical issues through the eyes of major online gambling
companies. The second segment will be interactive and include a
debate between an online gaming hacker and a representative of a
gaming /gambling company. Hot topics to be discussed will include
both the commercial and legal implications of:
• recent trends in online gambling - products, channels and
geography;
• laws, enforcement and operators’ duty;
• regulation internationally - the past and the future;
• is harmonisation of online gambling laws feasible in the EU?
• cross-border payments issues;
• compliance issues and cybersecurity;
• management of players’ accounts and fraud;
• privacy expectations and regulation in a digital existence; and
• ‘pathological’ gambling and public policy issues.

Speakers:
Andrew Algeo Paddy Power, Dublin, Ireland
Peter Cercone Playtech, Tel Aviv, Israel
Marcus Clinch Eiger Law, Taipei, Taiwan
Mark Methenitis Metro PCS Wireless, Richardson, Texas, USA
Diane Mullenex Ichay & Mullenex Avocats, Paris, France; Senior
Vice-Chair, Communications Law Committee
Brendan O’Connor Malice Afterthought, Madison, Wisconsin, USA

Cornices, cupolas and copyrights: protection and infringement of architectural copyrights
by remote sensing, media use, virtual worlds and construction changes
Joint session with the Art, Cultural Institutions and Heritage Law
Committee and the Space Law Committee.
Session Chair
Souichirou Kozuka Gakushuin University, Tokyo, Japan; Website
Officer, Space Law Committee

This session will examine the validity of architectural design
copyrights, and the potential infringement by remote sensing
imagery, incidental or deliberate use in media and social media, and
by construction variance, remodelling or demolition. The architect
of a striking new building has copyrighted its design. To the
architect’s distress, the design is now being copied and modified.
Images from space are widely distributed; print and online media
capture and replicate the image in film, virtual worlds, and other
incidental uses. During construction and renovation, the design has
been modified. In this session, our mock architect will prosecute a
copyright infringement case against these industries. Participants
will hear the evidence and arguments and act as jurors to decide
the fate of the architect’s claims.

Speakers:
Helen Conlan Bird & Bird, London, England
Jean-Frédéric Gaultier Olswang, Paris, France; Senior Vice-Chair,
Media Law Committee
Roberto Hernández García COMAD, Mexico City, Mexico; Latin
America Regional Officer, Anti-Corruption Committee
Mark Methenitis MetroPCS Wireless, Richardson, Texas, USA
Peter Polak Fiebinger Polak Leon & Partners, Vienna, Austria
Massimo Sterpi Jacobacci & Associati, Rome, Italy; Chair, Art,
Cultural Institutions and Heritage Law Committee

Don’t Forget to Read the Manual: Apple v. Samsung and the Challenge of Jury Instructions

A jury has enormous responsibilities. The judge decides all questions of law, using their legal expertise to interpret the problem presented by the case and determine which law or laws apply. The jury’s job is to resolve all questions of fact. Sometimes it’s simple. Is there enough evidence to show that the accused committed a crime beyond a reasonable doubt? Sometimes it’s difficult. This is particularly true in patent cases. A group of ordinary people is called to reach a shared conclusion on complex technical issues. That’s not a slight to the intelligence of the jurors. These questions are challenging for the attorneys and engineers that work in the field all their lives. Thus, jury instructions become very important. Today, we will consider the jury instructions in the recent Apple v. Samsung case and some post-verdict statements by the foreman that highlight just how hard it can be to follow the directions. The case is far from over, but its eventual resolution could determine the biggest hardware supplier in the mobile gaming market.

Within jury instructions, the court sets specific parameters on what questions the panel must answer and the legal rules they must follow. For common cases, model instructions are available. There has been a lot of debate on how to tailor these rules so that the jury receives the best guidance possible. Even if they are written perfectly, there are numerous variables that are impossible to eliminate. Jurors, just like everyone else, have biases and opinions that frame the way they look at the world. They also come in with different levels of education and expertise. No one is a professional juror. Most people have things they would rather be doing, so there’s a risk that they might gloss over more complex problems to save time.

In Apple v Samsung, there were no model instructions available. This case involved a mountain of issues. Apple commands serious market share and enormous customer loyalty, but Samsung’s recent smartphone offerings have shown they’re unafraid to challenge the house Jobs built. Steve was apparently so infuriated by the November 2007 announcement of Google’s Android (the operating system for the disputed Samsung phones) that he promised "thermonuclear war" over what he considered a “stolen product." There will be many books written about this battle, but we will focus on the jury instructions.

First, they were incredibly long: 109 pages. These had to be read aloud by the judge, which took hours. They listed roughly 700 separate questions the jurors had to answer to reach a verdict. One important detail was underlined. This jury could not include punitive damages. These damages typically come up in tort cases where the defendant did something especially terrible. To deter that type of behavior in the future, punitive damages are awarded. States have discretion on what types of cases can offer them and how high they can go. This is a contentious topic. Perhaps most infamously, it arose in Liebeck v. McDonald’s, where a woman sued the burger chain after suffering third degree burns from their coffee. That touched off a vigorous debate over tort reform: laws designed to limit civil judgments and discourage lawsuits.

But whatever your opinion is about punitive damages, they were not available in Apple v. Samsung. If the jury concluded that a patent was violated, their judgment was to put the holder in the place they would be had the infringer paid an appropriate licensing fee. Sending a message or discouraging future violators wasn’t to come into the equation. The jury instructions made this crystal clear, stating, “You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer." But recent comments by the foreman, Velvin Hogan, cast serious doubt on whether the jury internalized that rule. In a Reuters interview, Mr. Hogan said, “We wanted to make sure the message we sent was not just a slap on the wrist. We wanted to make sure it was sufficiently high to be painful, but not unreasonable." That could easily be interpreted as intent to punish Samsung.

Mr. Hogan also made some comments on prior art that throw into question whether the jury followed their instructions. Prior art is a bedrock concept in patent law. It is all knowledge available to the public that can impact a patent’s claim of originality. To take an extreme example, let’s say you decided to sue Huffy for violating your patent on a “two wheeled rider propelled vehicle with shifting gears and handlebars." Huffy would easily defeat your claim, because they would point to the fact that bicycles and how they work has been freely available public knowledge for over a century. This principle reins in many patent claims by asking whether the invention in question is truly an original work, or an idea that is already making the rounds.

Prior art was an important piece of the smartphone lawsuit. Which of the features available on the iPhone were wholly original, and which were concepts that others had already explored and published? But on a Bloomberg TV interview with Mr. Hogan, he made a statement that could indicate confusion on the topic. The specific item was the “bounceback" patent, dealing with the way your phone screen “bounces" when you scroll down to the end of the page. According to the foreman, what convinced him that prior art didn’t apply was that, “The software on the Apple side could not be placed into the processor on the prior art and vice versa." But this is a misinterpretation. Prior art does not hinge on whether it can run on the same system, but instead on whether the invention has been used or even explained elsewhere.

This is not meant to suggest that the jurors in Apple v. Samsung did a bad job. Patents are an incredibly difficult subject, and equally qualified scientists can reach opposite opinions on the validity of a case. Even if the jury had followed every instruction perfectly, this case was going to be appealed. Smartphones are big business, and companies with skin in the game would logically spend large sums to settle who would decide the future of the market. Some influential legal scholars have pointed to cases like these as a sign that patent law is overdue for reform. Whatever the result, Apple v. Samsung shows just how hard these cases and their instructions can be. You can read the manual, sure, but 109 pages mean things might slip through the cracks.



Zack Bastian is an official contributor to Law of the Game. A a recent graduate of George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.

New Law Review Article

I just had a new article published in Cybaris, the Intellectual Property Law Review at the William Mitchell College of Law.  The piece is titled "Intellectual Property 2.0: Revisiting the Copyright and Trademark System for a Digital Reality."

It's available for download here.  The full listing of articles can be found here.

Many thanks to the staff over there for everything, particularly Brian Bender, the co-Editor-in-Chief.