“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Would you consider this a threat if you saw it posted on Facebook? What if it was meant to be a rap lyric? Would that still be a threat?
Anthony Elonis turned to posting on Facebook during some troubling times in October 2010. After his wife had left him and taken their children, Elonis began to post statements like the one above on his Facebook profile page. Although Elonis claimed his posts were therapeutic, a jury convicted Elonis under 18 U.S.C. § 875(c) for transmitting an interstate threat and he was sentenced to almost four years in prison. Elonis appealed his conviction to the Third Circuit, arguing that it violates his First Amendment rights. Specifically, Elonis argued that the Supreme Court’s ruling in Virginia v. Black had overturned the Third Circuit’s precedent in United States v. Kosma. In Kosma, the Third Circuit held that a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat. Elonis argued that under Virginia v. Black, 18 U.S.C. § 875(c) requires a subjective intent to threaten. Elonis explained that his postings on Facebook were therapeutic and a form of artistic expression. Even in his posts, he referenced the First Amendment, and wrote disclaimers to that extent. In fact, Elonis and his wife were not friends on Facebook and therefore, he argued, he did not intend for her to see the posts or feel threatened. His wife, however, did see the statements and promptly got a restraining order. (more…)
Many Americans have detailed instructions addressing the dissolution of their assets after they pass away. However, many people are facing a new challenge: what happens to their digital assets? What happens to their pictures, email accounts, banking and brokerage accounts, and social networking profiles? In our increasingly digital world, financial advisors and estate planning attorneys now recommend four steps to properly manage one’s digital assets: 1) identify and inventory all digital assets, 2) appoint a trustee for those assets, 3) provide access, such as passwords, to that trustee, and 4) provide instructions for distributing those assets.
Further, the Uniform Law Commission (ULC) has recently passed the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which provides comprehensive provisions governing access to digital assets. The underlying goal of UFADAA is to give fiduciaries the tools they need to carry out the wishes of the deceased. In a press release, the ULC stated the UFADAA “solves the problem using the concept of ‘media neutrality.’ If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.” The UFADAA applies to four common types of fiduciaries: “personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees.” The UFADAA “defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.” The ULC approved UFADAA at its 123rd annual meeting this past July in Seattle. (more…)
Austrian law student Max Schrems sued Facebook Ireland on August 1 for violating EU privacy law, and 25,000 people have since been added to the suit. “[M]any people say finally someone is doing something in this direction,” he told Reuters.
Juli Adams, a Seattle artist, has sued The Hartz Mountain Corporation for violating its license to use her “Angry Birds” plush pet toy line. Adams created the toy line before the insanely popular video game of the same name existed and licensed the line’s use to Hartz. Once the Angry Birds game exploded in popularity, Hartz used its license with Adams as leverage to negotiate with Rovio, the creator of the Angry Birds video game. As a result of the negotiations, Rovio gave Hartz exclusive rights to sell pet toys based on the video game characters, but Rovio did not inform Adams of this new contract. Now, Adams has sued Hartz for violating her trademark and breaching their contract.
Adams first created her Angry Birds toy line in 2006 at the request of a Hartz marketing executive, who had seen her art show in Montana while on vacation. Inspired by her own cats and their propensity to tear up their toys, Adams decided to make a line of pet toys that did not look happy to be messed with. Adams licensed the line to Hartz but retained the intellectual property rights so that Hartz couldn’t license it to anyone else. (more…)
Patent trolls, also known as patent assertion entities (PAEs), have been threatening technology companies for years through patent infringement lawsuits, stifling innovation and profits alike. These PAEs acquire patents primarily to sue companies for patent infringement and to demand licensing fees. Legal expenses for technology companies have been rising due to the increased activity of PAEs, and now the companies are beginning to fight back. Google is leading the charge and has teamed up with five other large technology companies to form an alliance called the License on Transfer (“LOT”) Network.
Some estimates suggest that PAE litigation costs technology companies more than $29 billion per year. The cost of a normal defense (through trial) ranges from $500,000 to $5 million, and possibly even higher. Due to these high costs, technology companies frequently settle and pay PAEs for patent licenses, even though less than 1% of defendants in PAE suits are ultimately found to have infringed a valid patent. (more…)
By Rachael Wallace
We previously covered the upcoming art royalty legislation in Congress, and now Congress has finally seen the bill in question, aptly named the American Royalties Too (ART) Act. Congressman Jerrold Nadler, the sponsor of the 2011 Equity for Visual Artists Act, introduced the bill on July 15, 2014 in a House subcommittee meeting.
ART would require a 5% royalty on resale to go to the artist for pieces of art that sell for $5,000 or more at auctions. Royalties would be capped at $35,000. The 2011 bill required a 7% royalty on pieces of art over $10,000. After the 2011 bill died in the House, the United States Copyright Office collected feedback and testimony regarding royalties on art. It issued a report of its analysis in December, concluding that there was “no evidence to conclusively establish that [establishing resale royalties] would harm the U.S. visual market.” The Copyright Office then made 10 recommendations for the legislation. Many of the changes in the current legislation come from those recommendations. (more…)
Ubervita v. John Does: Another Case of a Bullying Business, or a Legitimate Effort to Protect One’s Reputation?
By Max Burke
Nutritional supplement company Ubervita filed a lawsuit this month against John Does, claiming the “unknown defendants have conspired to disrupt Ubervita’s business through a campaign of dirty tricks.” This included, among other things, posting fraudulent negative reviews of the company on Amazon.com. Recently, Chief Judge Marsha Pechman of the Western District of Washington granted Ubervita’s request to subpoena Amazon and Craigslist for the purpose of discovering the defendants’ identities.
A few months ago, we wrote about a similar case from Virginia in which Hadeed Carpet Cleaning subpoenaed Yelp (a business review website) in order to identify seven individuals who had left negative reviews of the business on Yelp. The Virginia Court of Appeals affirmed the trial court’s order that held Yelp in civil contempt for not complying with the subpoena. The Virginia Supreme Court recently accepted review of this case. (more…)
When we think about the word “mobster,” we often recall names such as Al Capone, and think of the time period of the early 20th century. We generally don’t associate the word “mobster” with hackers or the computer age. Recently, however, the Racketeering Influenced Corrupt Organizations Act (or RICO) has made such an association. Originally envisioned as a tool to target gang leaders who avoided direct liability by ordering subordinates to commit crimes, RICO has recently been used to target cybercriminals engaged in racketeering offenses. Rather than being used to target leaders of mafia-type activities, the law is now being used to prosecute and impose stiffer penalties on online criminals who engage in organized crime through various virtual networks.
RICO, passed in 1970, allows for the imposition of criminal penalties of up to 20 years imprisonment (or more if the underlying crime carries a higher maximum penalty), or civil penalties amounting to triple the actual damages incurred. Private individuals may also bring claims against anyone who has participated, directly or indirectly, in racketeering activities. To establish a claim under RICO, according to one Supreme Court case, a defendant must have “conduct[ed] or participat[ed] in the conduct of an enterprise ‘through a pattern of racketeering activity.’” Put simply, a defendant must have acted as part of a group that commits a series of at least two acts that qualify as racketeering activities. A useful breakdown of these elements can be found here. (more…)
Once again, the United States Patent and Trademark Office has cancelled the National Football League’s trademark registrations for the nickname ‘Redskins,’ in association with the Washington Redskins football team, on the grounds that the name disparages Native Americans, and this time the decision could actually stick.
On June 18, 2014, the USPTO’s Trademark Trial and Appeal Board cancelled six trademark registrations for variations of the name ‘Redskins’ registered under the Lanham Act by respondent Pro-Football, Inc. (owner and operator of the Redskins). The Board held that, pursuant to Section 14(3) of the Lanham Act, the trademarks had been registered in violation of Section 2(a), which prohibits trademarks consisting of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” After an exhaustive review of the record, the Board concluded that the petitioners—five Native Americans—had sufficiently demonstrated that a “substantial composite of Native Americans” found the name to be disparaging in connection with Pro-Football’s services. The Board noted that a ‘substantial composite’ of a group did not necessarily mean a majority of that group, and it rejected any argument that a ‘substantial composite’ of a group required homogenous opinions within that group. Interestingly, while the Board’s decision cancelled registrations pertaining to the name ‘Redskins’ and several variations of the name that occur in combination with logos, the plain Washington Redskins team logo itself was not cancelled because it was not at issue in the case. (more…)
Clarified or Confused? SCOTUS Decision in Alice v. CLS Bank and Continued Mystification of Abstract Ideas
By Chris Ferrell
On June 19th, the Supreme Court ruled on its sixth and final patent law case of this term, Alice Corp. v. CLS Bank. The case concerned the patentability of claims covering a computerized trading platform for exchanging financial obligations. The business method patents at issue in Alice were directed to a computer-implemented scheme for mitigating settlement risk in certain financial transactions. The claims included a method, a computer-readable medium, and a system. The key issue for the Court was to identify an appropriate test for determining whether a computer-related invention is an application of an abstract idea. In a unanimous decision authored by Justice Thomas, the Court held that Alice’s claims were not patent eligible under 35 U.S.C. § 101 because they were directed at an abstract idea of intermediated settlement. While the decision was not a surprise to some in the industry, others waited on baited breath to see just how far the Court would go in analyzing these software claims, and to what extent patent analysis would be moving forward. In previous cases, including Mayo Collaborative Services v. Prometheus Labs, Bowman v. Monsanto and Association for Molecular Pathology v. Myriad Genetics, the Court took the opportunity to reign in overbroad positions in patent law and define the outer-boundaries of patentability; Alice was no different. However, in trying to contain patent law, the Court may have muddied the waters even more for those trying to decipher what may be patentable, especially in the realm of computer software. (more…)