Articles:

• Joshua Chao, “Tax Incentives for Innovation in a Modern IP Ecosystem,” 15 Vanderbilt Journal of Entertainment & Technology Law 753
• Daniel Gervais, Ph.D., “The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs,” 15 Vanderbilt Journal of Entertainment & Technology Law 785
• Rick Sanders, “Will Professor Nimmer’s Change of Heart on File Sharing Matter?,” 15 Vanderbilt Journal of Entertainment & Technology Law 857

Notes:

• Erin R. Frankrone, “Free Agents: Should Crowdsourcing Lead to Agency Liability for Firms?,” 15 Vanderbilt Journal of Entertainment & Technology Law 883
• Shannon U. Han, “Pay-to-Delay Settlements: The Circuit-Splitting Headache Plaguing Big Pharma,” 15 Vanderbilt Journal of Entertainment & Technology Law 913
• Zachary Loney, “Bowman’s Beanstalk: Patent Exhaustion in Self-Replicating Technologies,” 15 Vanderbilt Journal of Entertainment & Technology Law 949
• Jeffrey W. Sheehan, “Late Fathers’ Later Children: Reconceiving the Limits of Survivor’s Benefits in Response to Death-Defying Reproductive Technology,” 15 Vanderbilt Journal of Entertainment & Technology Law 983

JETLaw is currently accepting Article submissions for consideration, as well as guest blog posts on jetlaw.org.

–The JETLaw Staff

While some may credit the timing of this announcement to the Supreme Court’s consideration of the constitutionality of DOMA, the NHL, NHLPA, and You Can Play assert that they are not engaging in a political venture. All parties recognize and acknowledge that people hold differing views, whether personal, religious, or political, on the matter of same-sex rights, and they stress that they are not trying to lobby or influence people’s beliefs. In fact, Patrick Burke, founder of You Can Play, emphasizes that the group and its mission are apolitical, a-religious, and only about sports. There is a clear difference between promoting a political agenda and simply trying to ensure a safe and open environment for all athletes. The NHL and NHLPA acknowledge this difference and the importance of the latter.

While the NHL and NHLPA likely did not intend to incite legal and political discussion by partnering with You Can Play, these debates are already underway. But what did they expect? The history of sports, coupled with the fact that no hockey player (or current professional football or basketball player) has come out publicly, illustrates the perceived stigma of homosexuality in the sports community. The partnership’s mission to educate and inform all athletes on the sensitive issues surrounding sexual orientation surely means the NHL is taking the lead as the most inclusive male major professional league. Now the question is whether the other major professional leagues follow suit. Will they sit around and wait to see how fans and the media react to the NHL’s public support of gay athletes? Perhaps the impact of the NHL’s alliance extends beyond the sports context and supports the equally pressing anti-bullying movement by showing the importance of creating open channels of communication for athletes (and students) to discuss the sensitive issue of sexual orientation. While there is much that remains uncertain, one thing we do know is that the NHL and the NHLPA are breaking down barriers and making hockey more inclusive.

–Caitlin Buckstaff

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• California contemplates a tough new data protection law that would require businesses holding consumers’ personal information to disclose to the consumer all of the third parties to which it has sent the information

• U.S. government runs into so-called “going dark” problems intercepting Apple iMessage communications

• Technology contractors for the U.S. government are not happy about anti-China provisions in continuing budget resolution

• Google publishes data on all copyright/DMCA takedown notices it receives (for search results); some studios say it inadvertently creates a treasure trove of illegal content

• IRS memo implies the tax collection agency may be reading emails in fraud cases without a warrant

• Luxembourg countenances private citizen’s extremely successful hack-back

• Japan joins TPP trade and intellectual property rights negotiations

Unified Patents hopes to be a "knight in shining armor" for small tech companies fighting off the trolls.

Lawsuits filed by non-practicing entities (NPEs), or patent trolls, have become increasingly problematic for businesses that actually invent things or use patented technology (operating companies). In fact, the number of operating companies named in lawsuits involving NPEs in US courts has more than tripled between 2008 and 2012, even after adjusting for a recent one-time surge in filings caused by a change in US patent law.

But while NPEs continue to grow and pursue their claims more aggressively, a new type of company is emerging to challenge them and defend operating companies. For example, take Unified Patents, Inc., a new San Francisco startup aiming to recruit operating companies that wish to engage in a collective effort to deter NPE lawsuits. Unified Patents has already recruited some big names, including Google and data storage hardware maker NetApp, but its business model seems to involve recruiting companies of all sizes to take part in the collective defensive effort, particularly because  smaller companies have found themselves targeted by NPEs more frequently than larger ones. Professor Colleen Chien of Santa Clara University Law School estimates that 55% of the defendants in NPE suits are smaller companies, with $10 million or less in revenue.

Other companies, such as RPX Corp. and Allied Security Trust, have been formed recently to help operating businesses deal with NPEs, but their strategy has focused primarily on buying up patents to prevent NPEs from getting them. Unified Patents, on the other hand, has a strategy that is much more far-reaching. While it does intend to buy up some patents, it also plans to use collective action and the information gathered by its member companies to get a head start in fighting NPEs–e.g., by alerting other companies when one member receives a threat from an NPE, or petitioning the USPTO earlier and more aggressively to review NPEs’ patents for validity. Unified Patents also recognizes the difficult situation that many smaller companies are in, and has said that it will charge them less for membership than larger companies, which may help it bring more members on board and lead to stronger collective action efforts.

It is certainly an interesting business proposition, and it is interesting to see how NPEs have paved the way for a new type of company, but will it work?

–Will Pickens

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Capitol Records Building

In its March 29, 2013 decision, the court effectively held that the “first-sale” doctrine does not apply to the resale of digital music files. Under this classic copyright doctrine, consumers can resell physical goods after their initial purchase without infringing on the author’s copyright. In early 2012, Capitol Records filed suit against ReDigi, Inc., a company that allows its users to sell legally acquired digital music files through its website, for copyright infringement. The company’s technology deletes the music track from the seller’s iTunes and stores a copy on its server to resell to another user later. Even though the original track is deleted, U.S. District Judge Richard Sullivan found that the unauthorized transfer of digital music files over the Internet violates the copyright owner’s reproduction right under the Copyright Act. Judge Sullivan was unconvinced by ReDigi’s argument that the system does not copy but rather “migrates” the file from one of its users to its servers.

The court’s opinion touched on the fact that it did not want to extend the first-sale doctrine to digital files when Congress has declined to do so. This issue, among others, has prompted calls for reevaluation of the Copyright Act of 1976. Advocates for reevaluation argue that the Copyright Act should be updated to reflect technology’s impact on copyrighted materials. Just last month, the U.S. Register of Copyrights, Maria Pallante, testified before Congress, pushing for extensive revisions of the law.

In the meantime, ReDigi is said to likely appeal the decision. Do you agree with the court in this case? Should there be a distinction between digital files and hard copies? Even if you believe that there should be no distinction, is this an area where courts should get involved?

–Veronica Gordon

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Guest contributor Scott Morgan

As has been repeatedly reported in the media over the past few years, online postings are becoming common sources of evidence in divorce and other family law litigation. This article will discuss recent studies and surveys that have examined the increased use of online postings as evidence in divorce cases, as well as how courts have dealt with some of the issues.

Facebook and UK Divorce Filings

Unlike most US jurisdictions, the United Kingdom does not allow divorce based solely on irreconcilable differences without at least a two-year waiting period. That waiting period increases to five years if the divorce is not agreed between the parties. Consequently, parties desiring a quicker divorce must file based on some kind of fault ground. The most common fault ground pled is referred to as “unreasonable behavior.” The resulting “behavior petitions,” as they are known, provide details as to exactly what constitutes the other party’s allegedly unreasonable behavior.

While this may seem a bit draconian to those in the United States, it has created a wealth of data concerning divorce causation. The most commonly cited studies on behavior petitions have been done by divorce-online.co.uk, a British divorce website. In 2009, an analysis of 5,000 behavior petitions found that 20% of cases cited Facebook as a contributing cause for the divorce. It appears that this is a growing trend, as a 2011 follow-up found that the proportion had risen to 33%.

The studies found that the most common specific reasons given were (in order of frequency):

1. Inappropriate messages on Facebook to members of the opposite sex
2. Posting of malicious comments about the other party on Facebook
3. Reporting of inappropriate behavior by mutual Facebook friends

The trend seems to be clear that, as arguably the world’s most popular website, Facebook is becoming a more and more fruitful destination for divorce lawyers and their clients, who are looking for evidence of marital wrongdoing.

AAML Survey on Dating Sites and Social Media

The trend of finding online evidence of marital misconduct is not limited to the United Kingdom. The American Academy of Matrimonial Lawyers recently surveyed its members about divorce case evidence obtained from dating websites. The AAML survey found that, from 2009-12, 59% of its divorce lawyer members saw an increase in the number of cases involving evidence obtained from dating websites such as Match.com and eHarmony.

An earlier AAML survey on social media covering 2005-10 found that 81% of its member attorneys had seen an increase in the number of cases involving evidence obtained through social media sites. Facebook was the most common source of such evidence at 66%, followed by MySpace at 15% and Twitter at 5%.

So the trend is quite clear: people are posting on social media more frequently, and this is creating more opportunities for divorce attorneys to use those postings as evidence against them. Additionally, parties (either before or during separation) are creating dating site profiles more frequently, thus creating additional opportunities for online evidence to arise.

Typical Problems Created by Online Postings

So what are the most common types of online postings that are later used as evidence in family law cases? Some of the most common posts that come back to haunt a party are:

• Having a profile on a dating website such as Match.com or eHarmony
• Having a profile on a website that is commonly used for affairs, such as AshleyMadison or AdultFriendFinder
• Lying about their marital status
• Lying about whether they have children
• Lying about their income
• Incriminating photos

Actual Cases Involving Online Postings as Evidence

In 2010, articles in USA Today and on NBCNews.com summarized interviews with several divorce attorneys on how their own cases had been impacted by social media evidence. The examples given included:

• A husband and father who had a Facebook profile indicating that he was both single and childless
• A husband accused of having anger management issues posting the following on Facebook: “If you have the balls to get in my face, I’ll kick your ass into submission”
• A wife who sought custody was proven through online records to have been playing the online game World of Warcraft (with her boyfriend) at the time she had claimed to have been out with her children
• A mother who denied that she smoked marijuana but was impeached at trial with Facebook-posted photos of her smoking from a bong

Divorce Cases on Point

While the usage of online evidence in divorce cases is on the rise, it is not a brand new phenomenon. As far back as 2007, an Ohio appeals court held in a divorce and custody trial that the father was entitled to use the mother’s MySpace postings as evidence of her sado-masochism and use of illicit drugs. Dexter v. Dexter, No. 2006-p-0051, 2007 WL 1532084, at *6-7 (Ohio Ct. App. 2007).

In another divorce case, the wife was seeking alimony based on her claim that she was disabled and physically incapable of working. During the pendency of the divorce, however, the wife had taken belly-dancing classes. The court ruled that it was permissible for the husband to use the wife’s own Facebook postings to dispute her claims. While she had been careful not to post any photos of her belly-dancing, she did post a comment referring to the belly-dancing class, stating that she had to “be careful what goes online . . . . The ex would love to fry me with that.” B.M. v. D.M., 927 N.Y.S. 2d 814 (Richmond Cnty. Sup. Ct., N.Y. 2011).

As reported in Forbes, in a 2011 Connecticut trial court addressed the issue of discovery of social media data and account access in a divorce case. The parties initially agreed to exchange social media account passwords for their respective Facebook accounts, as well as the wife’s eHarmony and Match.com dating profile accounts. The wife initially refused, but after her lawyer gave what seems to be questionable legal advice, she reluctantly but voluntarily turned over the passwords.

After doing so she apparently had second thoughts and began deleting messages and past postings. The husband’s attorney then requested and received an injunction prohibiting the deletion of any data from the parties’ accounts. It is unclear whether the trial court would have issued a password-exchange order if the parties had not agreed to one, but once the parties did agree to it, the court felt compelled to enforce the spirit of the agreement.

Conclusions

While the media frequently quotes divorce lawyers claiming that Facebook and similar sites are a new “cause” of divorce, most of those interviewed (myself included) are quick to point out that Facebook does not cause problems on its own; it is the way people use Facebook that becomes problematic. Social media sites are neither inherently good nor evil; they are just tools, and like any other tool they can be used for either good or bad purposes. But as long as people are willing to post their private matters for the world to see, the use of online postings as evidence in divorce cases will continue to rise.

–Scott Morgan

About the Author

Scott Morgan is board certified as a family law attorney by the Texas Board of Legal Specialization. He is the founder of the Morgan Law Firm, which has offices in three locations in Texas: Houston, Austin, and Sugar Land. The firm focuses exclusively on family law and divorce litigation in Texas.

I have to admit that my inner nerd was absolutely giddy when I heard EA was rebooting its classic software title, having spent countless hours of my childhood playing its predecesors.  The new title promised to be more in-depth than any game ever created, and millions of would-be customers (myself included) were lining up to buy the game and start playing.  Thousands of those customers were even too excited to purchase the game in stores, instead relying on pre-ordered download codes allowing immediate download of the game at midnight on March 5th. But upon the game’s actual launch, everything came tumbling down.

“Digital rights management” is any method software companies use to try to prevent pirates from writing software “cracks”  that allow them to play the game for free, illegally.  These cracks frequently leak onto the internet where other would-be pirates download and use them to play for free.  The DRM software at issue here first surfaced in the 2012 blockbuster release of Diablo III, which required anyone playing the game, even those playing single player by themselves, to maintain a connection to the internet.  When Diablo III launched, the company’s servers were overloaded and users were prevented from playing the game for hours at a time.  EA apparently thought this time would be different and forced its Maxis subsidiary to install a an “always-on” element in SimCity. EA’s president has claimed that the always-on requirement has nothing to do with DRM, saying that “DRM is a failed dead-end strategy; it’s not a viable strategy for the gaming business.” Instead, EA claimed that always-on was meant to enhance the game-playing experience both socially and technologically, saying that the graphics and calculations could not be carried out on consumers’ computers, and that EA’s servers were therefore required to run the game. This, of course, has since been proven wrong by clever modders who have tweaked the game to run offline, forcing EA to admit that it was technologically possible.

Nevertheless, when the game finally launched, as those millions of consumers tried to play the game for which they had just shelled out $59.99, EA’s servers could not even begin to handle the volume, and most would-be players could not even log in.  Those who were able to log in were hardly able to do anything before being kicked offline. Chris Kluwe, Minnesota Vikings punter and avid gamer, estimated in a scathing review (which has since gone viral) that during the first three days he had he game, he was able to play for only about 4 hours. He went on to urge his 150,000 Twitter followers to not waste their time or money on it. Those who bought the game in stores were able to return it, but those who purchased online were left without recourse, leading to the suspension of sales on Amazon. Indeed, of the 2,400+ reviews of the game on Amazon, over 2,000 are rated “1 Star,” and the most popular one says that it would be better to “remove $60 from your bank and promptly pay someone to kick you repeatedly in the friggin’ mouth” than to buy the game. The backlash EA has faced has been widespread and severe. There have been petitions to EA and to the White House, and even an anonymous letter from an EA employee blasting the company for its focus on preventing piracy at the expense of customer service.  The black eye EA received has undoubtedly outweighed any profits it would have recouped from would-be pirates, especially considering that the game was “cracked” shortly after release, even with the always-on DRM system.

All of this begs several questions. At what point does a company’s DRM infringe on the rights of those who have purchased the software to use it? And in instances like this SimCity debacle, what recourse do consumers have? EA’s huge DRM failure has single-handedly convinced me (and thousands of others) to avoid buying its products. While piracy is still a huge problem for the software industry, there has to be a better answer than this. If these designers can create such visually stunning and technically complex software, surely they can figure out a way to keep it from being pirated while still allowing customers to use it legally.

–Thomas McFarland

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