Ticketing Google Glass

Can the police ticket a driver for driving while wearing their Google Glass?  Glass user Cecillia Abade recently found herself on the receiving end of a ticket in California for this very reason.  In some ways this is the classic case of the law having trouble anticipating and dealing with new technologies.

Merits of the Glass aside, the ticket presents some interesting legal issues.  Many states do not handle use of personal electronics while driving in a consistent manner.  As the article points out, many states ban texting or calling on the phone while driving but do not ban looking at the phone while driving.  California bans driving “if a television receiver, a video monitor, or a television or video screen, or any other similar means of visually displaying a television broadcast or video signal that produces entertainment or business applications, is operating and is located in the motor vehicle at a point forward of the back of the driver’s seat, or is operating and the monitor, screen, or display is visible to the driver while driving the motor vehicle” (V C Section 27602 Television).  However, California permits driving if the device “enhance[s] or supplement[s]” the driver’s view in order to drive the car better.  This leaves an enormous amount of ambiguity for potential Glass owners.

The one obvious takeaway here is that the officer probably should have done nothing.  It is not clear from the statute cited whether Ms. Abade actually broke the law by driving with her Glass on.  In fact, the Glass could potentially violate section 27602 and fit its exception at the same time.  Unless the officer had some special insight into how Ms. Abade used her Glass at the time he pulled Ms. Abade over, it’s impossible to know whether she was using the device’s heads-up display (HUD) to make it easier for her to catch difficult traffic details or watching cat videos. 

Most likely, California would need a statute that deals specifically with the implications of Google Glass and its effect on traffic.  One problem is that there’s no way to know the effect that using Google Glass has on traffic until someone conducts the appropriate research.  Another issue is the statute in question.  The statute it tries to remain open-ended in anticipation of new technology.  The wording does not speak to specific devices, but seems to try to ban using certain devices while driving (such as DVD players) while protecting the driver’s right to use certain other devices that might get caught up in the statute’s wording (like GPS devices).  When a device comes along that defies previous statutes’ categories, the law tends to have trouble with the new device.  Any law dealing with the Glass would need to anticipate that the Glass has potential uses that are both helpful and detrimental to driving, in ways that are difficult for traffic police to access on the fly.      

It should be very interesting to see if Ms. Abade challenges this ticket, and what ruling comes of that case.  That might be one of the more important traffic court cases in recent memory.

When Publicity Rights Meet Gamers

Gamers can be an interesting bunch.  Some very bright and talented people sometimes spend an inordinate amount of time trying to find hidden secrets and Easter eggs within games that they play.  Occasionally, this involves finding glitches or little hidden secrets intentionally left by the developers for players to find (one of my favorites, from Morrowind, is a trick that lets the user change the sword Goldbrand into the better Eltonbrand).  Sometimes, enterprising individuals find things that the developer never wanted anyone to see (Grand Theft Auto‘s Hot Coffee controversy is a great example of that phenomenon).

Recently, the game Beyond: Two Souls found itself in a controversy over content they never intended anyone to see.  The game contains a character voiced by and modeled after actress Ellen Page, including some shower scenes edited to avoid showing particular parts of Page’s character.  Someone used a debug Playstation 3 (a special model designed to let developers test out incomplete versions of their games) to alter the camera angles in the shower scenes in order to see the Page character naked.  These individuals then proceeded to post the pictures on the internet.  Sony proceeded to threaten legal action against websites that did not take the pictures down.

While the subject matter is a tad tawdry, the legal issue posed here is fascinating (with a potentially complex web of liability).  Whose rights have, in fact, been violated in this case?  If so, what sort of remedies would be available to the injured parties?  The two most obvious issues defining the rights of the parties are probably Page’s contract with Sony (the game’s publisher) and the End User Licensing Agreement (EULA) for the game.  In regard to Page’s contract, many celebrities have no nudity clauses in their contracts.   However, this particular instance is tricky.  The 3D model is not Page herself, but a representation of a character based on Page’s appearance.  Assuming Page did not model naked for the shower scenes in the game, the 3D representation of the character is an artist’s independent creation as inspired by Page.  That nuance may not be accounted for in Page’s contract.  However, the lack of a clause specifying that the 3D model specifically be a representation of Page may not matter in certain jurisdictions.  California, for example, has laws protecting an individual’s representation in artistic works (called publicity rights).  As the NCAA v. Hart case illustrates, the image in the game does not necessarily have to be an exact duplicate for the plaintiff to prevail in the case.  It’s hard to know exactly whether Page could prevail in any suit against Sony over these images, but it’s an interesting issue to ponder.

The EULA also presents an interesting legal quandary.  EULA’s often limit the rights of users to access the game’s code.  For example, Rockstar Games (the makers of the ever-popular Grand Theft Auto games) prohibits reverse engineering, decompiling, or disassembling their games’ code in their EULA. However, the EULA in this case would only determine that these pictures (acquired by manipulating the game’s camera in a special debugging mode) were acquired in circumvention of the EULA.  Unless these news sites were bound by similar agreements, Sony wouldn’t have any grounds to take legal action against these sites for making these pictures available.

My guess is that Sony has very few grounds for legal action in this case.  That doesn’t make the situation any less fascinating to me.   This situation would not have emerged a few years ago, when 3D technology was significantly more primitive.  Making recognizable recreations of famous people would have been very difficult, and likely would not have touched on personality rights in such a roundabout manner.  I would be very interested to see how a judge would rule if this case ever came into court.

More Fourth Amendment/ GPS Fun

One area of law that seems to always raise an array of questions is the Fourth Amendment.  On paper, the Fourth Amendment is relatively straightforward: it prohibits the government from conducting unreasonable searches and seizures, as well as requiring a warrant (supported by probable cause) describing the search and what the police intend to seize.  The march of technology creates a number of interesting wrinkles in what constitutes a search, as far as the Fourth Amendment is concerned.  As law enforcement’s technological tools grow more sophisticated, courts must wrestle with how these new technologies fit into our constitutional scheme.

The Third Circuit (based in New York City) recently ruled on a case (US v. Katzin) dealing with whether police need a warrant to conduct a GPS search of a suspect.  In this case, the FBI installed a GPS tracker on the Katzin brothers’ van without seeking a warrant.  The tracker in question was a “slap-on” tracker, meaning that the FBI attached the device to the exterior of the car (which then sent information regarding the vehicle’s GPS coordinates back to the FBI).  The Katzin brothers then moved to throw the evidence obtained from the van out.

The Supreme Court recently heard a case dealing with whether using a GPS tracker constituted a search at all in US v. Jones. While that case held that using a GPS tracker is a search under the Fourth Amendment, they did not decide whether such a search was reasonable.  Why is this important?  Law enforcement only requires a warrant when the search is “unreasonable.”  If a search is reasonable, law enforcement only needs to have reasonable suspicion and probable cause for the search to be lawful (since the Fourth Amendment only protects citizens from unreasonable searches and seizures).  The reasonableness is often tied to the scope of the search and whether the individual has a “reasonable expectation of privacy” in the area being searched.  The Third Circuit, in this case, uses a physical intrusion theory to determine reasonableness.  This theory requires some kind of physical entry onto the physical property of the defendant.  If such an intrusion exists, then law enforcement needs a warrant (since the search would be unreasonable).  The Court then rejected certain “special needs” scenarios (such as exigent circumstances and the automobile exception that sometimes permits searches of cars based only on probable cause).  The logic for rejecting the automobile exception is particularly interesting.  The Third Circuit states that law enforcement must limit warrantless search of a car under the automobile exception to a discreet moment in time.  GPS searches, by their nature, are not limited to certain moments in time (since they send information back to the police over an extended period), thus eliminating the automobile exception as a legal option.

Finally, I find this case particularly interesting since it represents the first major case commenting on US v. Jones.  The Jones case left a number of unanswered questions about the implications of holding that using a GPS tracker constituted a constitutional search, the most nagging of which was whether the search was reasonable.  While the Third Circuit’s holding only applies to their particular circuit, the Third Circuit made the first major effort to deal with the reasonableness issue (and dealt with it well in my opinion).  The question now is whether other circuits opt to incorporate the Third Circuit’s logic when dealing with other GPS tracker cases.    

Public Domain Mario

For many people, the original Super Mario Brothers is the game.  Many people in their mid to late 20s grew up playing Super Mario when they were kids, and pretty much every gamer plays a few of the Mario games at some point in their lives.  The game is iconic, recognizable to gamers and non-gamers alike.  

Recently, a college student by the name of Josh Goldberg attempted to write a browser version of Super Mario (called Fullscreen Mario). The website copies over the entire game so that it can be played in a browser.  This has, unsurprisingly, gotten Goldberg in trouble with Nintendo.  Nintendo sent a cease and desist order, asking Goldberg to take the site down.

As Timothy Lee over at the Washington Post points out, Super Mario Brothers would be in the public domain in a few months under the original 28 year copyright period (one 14 year period with the option to renew for another 14 years).  The public domain consists of works that are no longer protected by copyright, and can be used by anyone.  That second part is the most important part of the public domain.  Since anyone can use the material (such as the levels in Super Mario), they can reimagine or create their own versions for public consumption.  Many companies actually put public domain works to great use.  For example, Disney built many, many movies around Brothers Grimm fairy tales owned by no one (Snow White, Sleeping Beauty) as well as recognizable works whose copyright terms expired (Alice in Wonderland and The Hunchback of Notre Dame for example).  Disney’s works are often vastly different from the original material, and that difference gives the works an inherent value apart from the value of the original. 

With copyright terms significantly longer than 28 years (the current term is the life of the author plus 70 years), fewer and fewer works (like Mario) fall into the public domain.  The problem with the length of that term is that a number of works (some going back to the 1920s, like Steamboat Willy) remain locked up by the descendents (sometimes the grandchildren) of the original creators.  This curtailed public domain limits the ability to infuse that material with a fresh perspective or different approach.  The gaming community knows this particular benefit well, given the strength of the modding culture that permeates computer gaming.  Modding (derived from “modifying”) involves making tweaks or changes dedicated individuals make to the code of a game.  These range from silly (if you ever wanted to fight a dragon version of Macho Man Randy Savage in Skyrim, you can) to significant (dedicated fans actually found cut content for Knights of the Old Republic 2 and added it back into the game).  While there are some profound differences in the legal status of a mod versus a project like Golberg’s, both bring added value to the source material independent of the original creators.  Works instead get locked up for well over a century, severely limiting the ability of young artists (or programmers in this case) to create.

That should be it for this week.  Enjoy your weekend everyone. 

Legal Ramifications of Facebook Privacy Settings

Facebook and its privacy settings are always a hot topic, occasionally for very good reasons.  People always worry about their personal privacy, but (for whatever reason) that concern often doesn’t translate to many people’s online life.  People will post all kinds of things they shouldn’t on a variety of social media

A case from Georgia recently illustrated this phenomenon.  Chaney v. Fayette County Public School District involves a school using a photo of a female student dressed in a bikini next to a cardboard cut-out of Snoop Dogg in a lecture on internet safety.  The school mostly used the picture as an example of the sort of photos that one should not share with the wider public, because these pictures would be embarrassing later in life.  The IT director had access to the picture in the first place because Chaney’s Facebook settings allowed for friends of friends to view her pictures.  Chaney sued the district on a wide variety of personal privacy claims, including Fourth and Fourteenth Amendment grounds (as well as some Georgia specific claims, which I won’t go into). 

Not surprisingly, both Chaney’s Fourth and Fourteenth Amendment claims failed.  In regard to the Fourth Amendment claim, Chaney tried to argue that her pictures were only available to people whom she had chosen (which created a reasonable expectation of privacy).  This claim fails for a couple of reasons.  First, it fails to acknowledge that she cannot select the friends of her Facebook friends and thus cannot control access of her photos to those additional people.  This would bring up the third party doctrine (no reasonable expectation of privacy when one turns over information to third parties) and negate any argument on Chaney’s part.  The court also cited US v. Meregildo, which held that information posted on Facebook has no expectation of privacy.  The court further noted, on page 4, that the settings Chaney chose were the most inclusive settings available to a minor.  That last bit was probably not overly important to the court’s analysis, but it does serve to show that Chaney took no additional pains to make her information more private.

The Fourteenth Amendment claim was almost laughable.  Chaney tried to claim a violation of the Fourteenth Amendment’s right to privacy, but the court stated that such a right does not extend to situations where the person shares a picture of themselves with a broad audience.  The Fourteenth Amendment potentially protects certain types of disclosures (such as personal matters) but it also doesn’t give a person the right to prevent personal embarrassment caused by pictures they made public.  

The lesson from all of this?  Users should take great pains to know about Facebook’s (or any other social media site’s) privacy settings.  Any information posted to a site like Facebook has the potential to get widely disseminated in ways that the initial poster cannot control.  Eric Goldman (the famed internet law professor at Santa Clara Law) points out in his take on this case that if a person has 200 friends, and those people have 200 unique friends (as in, no overlap between friend lists), then a picture or status could potentially get shared with up to 40,000 people.  That number of people almost ensures that a few of them will not be trustworthy with the original poster’s information.  That almost precludes any notion of “privacy” as understood by the legal system.  People should understand that, first and foremost, nothing posted on any of these sites is private.  When combined with the often permanent nature of the internet content, this lack of privacy indicates that a user should be very careful with what they post (not posting an imagine of oneself in a bikini next to a cut out of Snoop Dogg would definitely be a start).

Such privacy issues have implications that go far beyond silly pictures posted to Facebook.  Even privacy focused apps like Snapchat are less secure than their users might think.  Since these images last a long time, they could potentially have major ramifications for the work prospects or even legal health of people not thinking through the long term consequences of posting.  The bottom line?  Educate yourself on the privacy settings for your site of choice, and don’t post anything you wouldn’t want to share with the world.

More Aereo News

It looks like my prediction of an Aereo Supreme Court case may come true.  Variety reports that Fox filed a petition to have the Supreme Court hear the case, appealing from the Second Circuit.  Whether the Court hears the case depends entirely on the justices.  This follows on the heels of a case in Boston where the judge rejected an injunction against Aereo while specifically citing Cablevision.  The Court has some compelling reasons to hear the case, mostly due to a split in circuits (since the Ninth and Second Circuits came to different conclusions).  The scope of the case considered by the justices should be particularly interesting.

The major question is the how Aereo will impact interpretations of Cablevision, and what that means for streaming television providers down the line.  The best case scenario (at least in terms of protecting innovative new services) would be a case that explicitly extends Cablevision’s protections to services like Aereo, on the grounds that such streams represent a “private performance.”  It would be nice if the Supreme Court states that the method with which Aereo claims a private performance is overkill (so that other services don’t need thousands upon thousands of little antennas to avoid running afoul of copyright law).  The other possibility is that the justices hold that Aereo infringed (likely rejecting their logic on the individual antennas constituting a private performance).  The Court could either limit the holding’s impact on the Court’s interpretation of Cablevision (by stating that the case’s holding only involves this particular situation, thus leaving the door open to other start-ups to try offering streaming network TV services) or require some sort of licensing regiment.  The worst case scenario (which is also the least likely) is that the Court guts Cablevision, causing a great deal of uncertainty for cloud-based services.  Once we know the scope of the Court’s inquiry (if they accept the case), then we’ll know exactly how this case can go.

There was also some news in the realm of Facebook privacy.  Facebook will apparently make its public feed available to media companies so that those companies can see what Facebook users are talking about.  Media companies will be allowed to access the public feed’s API and “Keyword Insights” API, allowing those companies to see what users say and when.  This is as good a time as any to remind people that Facebook is generally not private unless the user makes it private.  In fact, there was recently a court case down in Georgia (Chaney v. Fayette County Public School District) that held that there is no privacy violation for material publicly available on Facebook.  Keep that in mind when playing with the site’s privacy settings (or posting bikini pictures).

The Aereo Case Continues

Aereo is an interesting startup.  The company basically re-transmits over the air signals from stations that broadcast in that manner (such as the network stations) to their subscribers.  Each subscriber has their own little antenna that sends and receives the TV signals exclusively.  The advantage of this method of transmission is that the subscriber can watch live network television wherever their phone or tablet gets signal (or can record these transmissions on their devices to watch later).  As you might imagine, the major broadcasters are not thrilled with Aereo or its service.  After winning a case in New York and losing one in California, Fox opted to sue in Utah (here is a helpful map from the Disco Project that shows where Aereo is legal, along with the various holdings).

So why does Aereo get so much legal attention?  A lot of it has to do with a particular right within copyright law called public performance (as well as a general reluctance to pay traditional cable re-transmission fees).  Basically, a rights holder must grant permission for a public performance of their work (private performances do not need such permission).  While that appears to be a straightforward issue, the advent of new entertainment technology greatly complicates what qualifies as a public performance.  The major case dealing with this issue is Cartoon Network v. CSC Holdings (more commonly referred to as the Cablevision case).  In Cablevision, a company ran a DVR service that stored shows customers recorded on the company servers.  A person would set the show to record (creating the master copy), then Cablevision would stream the master copy to the customer’s TV.  The Second Circuit ended up ruling that, since each customer had their own copy, that the streaming of these copies did not constitute a public performance and was thus legal.

This impacts potential legal results for Aereo, because Aereo took the notion of individual copies very literally: every customer has their own antenna to receive transmissions.  Aereo argues that these antennas mean that each performance is essentially private, since the antenna only sends information to one person.  Courts so far have been mixed on whether this qualifies.  The Ninth Circuit, which ruled in a court case with a copycat service (called AereoKiller), ruled that the antennas did not meet Cablevision’s requirements for the uniqueness of the copy because the antenna only re-transmits the signal coming out of Aereo.  The Second Circuit, on the other hand, agreed with Aereo that the single antenna provided a unique transmission for copyright law purposes (since the stream goes to one and only one person).

I’m curious to see how the court system resolves this emerging split.  It likely depends on how the courts draw on Cablevision and its case line.  Sony v. Universal, for example, might lead a court to find that Aereo is still guilty of infringement.  That case involved Sony getting sued for selling home recording devices (such as the VCR and Betamax machines) for contributory copyright infringement.  That Supreme Court case has a two major takeaways.  First, it is not infringement if a company sells a machine that has legitimate non-infringing uses.  Second, “time-shifting” (recording shows for later viewing) constitutes fair use.  This holding impacts Aereo because neither takeaway really applies to them in the way that they applied to Cablevision.  Aereo’s technology only has a non-infringing use if the court deems to re-transmission to be private in nature (which is a tad circular, but Aereo only provides one service).  More important is how judges view the impact of Aereo’s re-transmission to other devices beyond televisions.  One of Cablevision’s rulings was that time shifting does not qualify as a public performance (in addition to being fair use under Sony).  Since Aereo offers the streaming of live television feeds in its service, they can’t really argue for time shifting (even if they allow customers to record the streams locally on the customers’ devices).  This is a big issue since cases relying on Cablevision for precedent tend to delve heavily into how these services or devices work in order to determine whether the defendant ran afoul of copyright law.

Aereo still has a decent shot of winning their remaining court cases.  For me, the more interesting matter is the split and how (or if) the Supreme Court chooses to resolve this split.  I will follow this one very closely to see what happens.

 

 

 

Gaming War Crimes?

I’m at something of an impasse at the moment.  The government shutdown means that a lot of the relevant generators of new legal news (courts, government agencies, and so on) are currently shuttered.  The lack of actual IP news means that I’ve decided to focus on an infinitely sillier issue than the statute of limitations: video game war crimes.

The International Red Cross feels that games that simulate war should also simulate the legal consequences of doing terrible (and illegal) actions as a soldier.  There is a noble aspect to this push, even if it completely disregards why a lot of people play games to begin with (to indulge in fantasies without real-world consequences).  Originally, the International Red Cross was going to push for a legal requirement to address these issues in games.  However, such a law would likely not survive First Amendment scrutiny in the United States (since the government is more or less barred from telling the entertainment industry what they can and cannot put in their content).  The International Red Cross has since opted to serve as an adviser, and ask developers to incorporate consequences for war crimes through less coercive means (such as simply asking).   

There is also a practical concern to applying International Humanitarian Law in games.  Sitting through a war crimes trial for killing entire battalions in Call of Duty or dropping nukes in Civilization would likely make the games less fun (though Civilization does have consequences for committing war crimes, in that you’ve earned the wrath of the other players).  Ultimately, that’s what gamers care about and why (for non-legal reasons) this move is a non-starter.

Raging Bull Goes To Court

I always get a kick out of copyright cases involving famous movies.  If the dispute is over the content of the script, you get an always amusing legalese summary of the plot of the movie.  Other disputes require a bit analysis and explanation.

Perella v. MGM involves a dispute over who owns the copyright to the famous Martin Scorsese movie Raging Bull.  The movie follows the life and career of boxer Jake LaMotta, as portrayed by Robert DeNiro.  DeNiro ended up getting the Oscar for Best Actor for his portrayal of LaMotta, and the movie is (rightfully in my opinion) regarded as a classic.  A man named Frank Perella wrote the screenplay for the movie, but died in 1981.  His daughter, Paula, asserts that the copyright fell to Frank Perella’s heirs after he died.  She claims that MGM and Fox owe her damages for infringement as a result.

Originally, the Ninth Circuit Court of Appeals ruled in August 2012 that Paula Perella (who I will just refer to as Perella from now on) simply brought the case too late.  Normally, the Copyright Act has a 3 year statute of limitation (the period of time where someone can bring a case) for each act of infringement.  This has some interesting effects on copyright, since just making a work available can sometimes be infringement.  All the party has to do is sell a work without the permission of the proper owner.  As a result, MGM would remain liable for infringement as long as they sold copies of Raging Bull to the public if they never acquired permission from the actual rights holder.  That means that, in this case, a movie like Raging Bull would have to be commercially unavailable before we start counting down the 3 year statute of limitations.

MGM made an interesting argument to try to get around that issue.  MGM and Fox argued for the defense of laches, which allows a judge to bar a case if they find that the plaintiff took an unreasonably long time to bring up the issue.  Laches is normally submitted as a basic fairness argument (kind of, “they took so long we didn’t even know it was an issue” line of reasoning).  In this case, the delay was rather substantial; Perella waited 18 years before filing a law suit against MGM.  To complicate matters, there’s a split in the federal circuits over whether this kind of defense can be used in copyright cases at all.  Due to the split, the Supreme Court decided to hear the case.

Perella rightfully names a number of concerns in her writ.  In addition to forum shopping concerns generated by a split (where plaintiffs look for the most favorable district), laches brings up a concern that judges can more or less overrule federal law through non-statutory means.  That brings up a host of separation of powers concerns that certain justices will likely view unkindly.  Many judges on the circuits rejecting the laches defense in a copyright case also enumerate those concerns.

I also find the issue interesting for another reason: the potentially indefinite statute of limitations for copyrighted works.  The 3 year statute of limitations runs from when the plaintiff discovers or reasonable could have discovered the infringement.  What makes the statute of limitations a moot point in most of these cases is that each act of infringement gives rise to a distinct new harm (Stone v. Williams, 970 F.2d 1043, 1049 (2d Cir. 1992)).  In other words, showing a work or making a copy of that work potentially starts the 3 year countdown all over again.  In this particular case, there is an 18 year gap between the initial infringement (the making and screening of Raging Bull) and the start of the case in 2009.  Part of the purpose of statute of limitations is to force plaintiffs to make timely complaints.  Having the statute of limitations period continue indefinitely seems to defeat that purpose entirely.

It is interesting that the Supreme Court opted to take this case in the first place.  The Court rarely hears copyright cases, though resolving a split in the circuits might be significant enough to warrant bringing this case before the justices.  I’m curious to see how they rule on this one.