Infringed Ink and Printing Copies of Cases: How Lexmark Collected Intellectual Property Lawsuits like Joker in Persona 5.

It’s fitting that printer ink turned out to be the subject for the series of lawsuits that took on all three of the major areas of intellectual property. Printers are the bridge between the physical and digital worlds, in a way. They are the symbol, and the means, of the transition between digital and paper documents.

Lexmark’s intellectual property litigation legacy is about the different ways that a variety of laws have different connections and offer different perspectives.  Persona 5 is about seeing the world through a variety of perspectives, and understanding different connections and perspectives that people have. Persona 5 is about complex stories that interconnect and overlap, with multiple layers and facets. That complexity and inter-connection has a similar feel to the complex and layered Lexmark litigation saga.

I. The Many Masks of Intellectual Property

In Persona 5, different “personas” (represented by masks) allow characters to perform different types of attacks. Different attack types will be particularly strong or weak against different enemies. This means that a big part of the game’s tactics is about determining which persona to use in different situations.

Copyright

Probably the one most people mean when they think of intellectual property, especially related to art or entertainment. Traditionally, this area of IP law was focused on books, music, film, and other art. However, due to the Digital Millennium Copyright Act (DMCA), the law also touches slightly on questions of tampering with proprietary devices to modify them (or to modify their functionality).

Trademark

I see this used interchangeably with “copyright” a lot, but think of it like this: Copyright protects the painting, trademark is the law about the artist’s signature in the corner of the painting. It’s the law that comes most into play when people are talking about counterfeit goods or brand recognition.

Patent

This is what most people mean when they think of intellectual property in most business and financial dealings, and especially in the context of science or engineering. Patents are about owning the right to make and sell a certain kind of thing, from cell phones to medicine.

Trade Secret

Like the healing abilities in Persona 5, trade secrets aren’t used often or even mentioned often, but they can fit some situations just perfectly. The other three kinds of IP law require you to make something public- filing a patent with the Patent Office, or registering a copyright (though you actually only need create a work to have a copyright in it, as of the 1976 re-write of the law), or using a trademark in commerce.  Trade secrets go the opposite way: if you take certain steps to NOT let the public know about something that makes your business work, you can claim a right to protect it.

II. Lexmark Litigation (Backstory)

Lexmark makes printers, but has a lucrative racket with recycling their ink cartridges. Well, had, maybe. Because Americans don’t like feeling taken advantage of, and because American Millennials don’t like a lack of choices, other companies sought to offer competing solutions to Lexmark’s ink cartridge restrictions.

In Persona 5, players collect new personas as they progress through the game. Lexmark litigation managed to collect different areas of intellectual property law as they fought over the issue of other companies coming up with ways to interfere with their ink cartridge schemes. What I find really amazing about this 13 year sprawl of litigation is that none of the involvement of IP law is predicable or very expected. Each application of law is noticeably distant from the original ideas and central, foundational, purposes of these laws.

How did Copyright law get involved?

Mostly through the parts of the DMCA that restrict tampering with controls placed on a device to inhibit 3rd party interactions (e.g., Section 1201). But in 2004, the Sixth Circuit (that most difficult of all circuits to pronounce) issued a ruling that called into question whether “lock-out codes” were actually subject to copyright protection, as they are not a form of creative expression. We might have gotten a more authoritative ruling on this topic, but Lexmark missed the deadline to request an en banc hearing at the Circuit level.

How did Trademark law get involved?

Through an argument about whether someone could sue Lexmark under the Lanham Act (the actual federal statute that contains most of trademark law). To actually take someone to court, you have to meet a few basic standards: you have to have an actual claim recognized by a law, for example. One standard for having a trial is that the person suing has to have “standing”: they have to have the legal right to bring a claim. Many laws will include a more specific definition of what “standing” will mean for that law.

In 2012, Static Control Inc. tried to sue Lexmark under some federal business-type laws (the Sherman Act and the Clayton Act), but those laws didn’t actually grant standing to Static Control, which meant they weren’t allowed to actually bring Lexmark to court. Then they tried to sue under the Lanham Act, because the rules for standing are different under that law. The Sixth Circuit granted Static Controls the right to a trial under the Lanham Act. Lexmark took the issue to the Supreme Court, who agreed with the Sixth Circuit’s choice to have a trial.

How did Patent law get involved?

The obvious way for patent law to be in a case brought by a printer company is for the case to be about two printer manufacturers arguing over whether one copied the others’ technology. That is not at all how patent law got used by Lexmark. Instead, the patent law question was about patent exhaustion.

This tiny area of patent law is like the “first sale” doctrine in copyrights. The idea for both is the same: once the end-customer buys the product, the manufacturer’s patent is “exhausted.” Under this law, a customer can do whatever they want with the thing they bought (except make new ones and sell those- that part of the patent still applies). This year, Lexmark brought a case to the Supreme Court on this point of law, hoping to stop a different company that was interfering with the ink cartridges. The third time was not the proverbial charm for Lexmark; the Supreme Court held that consumers do have some rights with regard to the re-use of their own purchased property.

III. Conclusion

My favourite thing about the Lexmark litigation is that it isn’t just about the substance of intellectual property law; it’s about how intellectual property law is administered. The trademark issue wasn’t really a trademark issue– it was an issue about who can sue under trademark law. The copyright issue wasn’t really about the copyrights of art or books or movies — it was about whether someone can unlock your digital locks. The patent issue was barely about patents– it was really about whether a patent still applies after a customer buys the product.

I’m excited by this because it’s a sign that intellectual property law is becoming more and more relevant to American life. More details of the administration and applicability and extent of laws have to be established as laws are interacted with more often. Decades ago, intellectual property was a small area of law that only affected a few sectors of a few industries in any meaningful way. Now it affects how we use our cell phones, ingest our entertainment, and even harvest our crops. As this area of law grows in response to innovation and technology, it has the potential to encourage further innovation and advancements, as well as to steer the growth of those new ideas. We are living at a time where we are moving toward either technological salvation or technological armageddon.

 

 

 

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Watching Over Media and Brands, Part I

More than any game I’ve ever seen, Overwatch is a multi-media, total brand experience. The trailers for the game could compete with Pixar shorts in every respect. The game is supplemented with comics, toys, and a professional eSports scene. It sets new industry standards in showmanship, advertising, and storyline. This is a lot more than just a video game. This is the new model for integrating a concept across every medium and platform to reach every possible audience in every way. This isn’t just the new benchmark in video games. This is the blueprint for every successful future entertainment product. Blizzard understands “today’s media landscape” as more than a business-boardroom buzzword. Other industries also have successful examples of dominating multiple platforms, though none quite on this scale.

Today’s musicians can’t get away with merely releasing music. They need to tweet and vlog, and most crucially, they need to do live performances. Katy Perry recently set the record as the most followed person on Twitter, even though publishing 140-character quips was never in the job description of a musician or a pop star. Similarly, writers can’t just write books anymore- they need to write about their writing, and then talk about writing about their writing with other writers who want to talk about talking about writing. John Green aspired to be a writer when he took a job doing data entry at a publishing company. At the time, he didn’t hope to become a transmediaplatformleader-we-don’t-have-a-word-for-this-thing. However, his understanding and use of YouTube and Twitter allowed him to promote his young adult fiction beyond what a traditional book publisher would imagine. His new media fed his career in the old media, and vice-versa. (And compared to Twitter and YouTube, video games are old media.*)

Movies won’t succeed just by creating more epic battle scenes in 3D to justify the expense of going to the theater. They need to change the experience in more fundamental ways- they probably need a smooth integration of social media, but they also need some interaction the viewers can’t get outside the theater. They need to learn what Prince knew: you can’t get the live-show experience sitting alone in your home. One way movies could adapt to the 21st century is to turn an evening at the movies into a kind of social event, akin to a concert, sports game, or convention. Another way is to make it an even more technologically-driven experience, with augmented reality or virtual reality – a kind of entertainment-themed, futuristic, individualized experience like a museum or library. That is a lot more expensive, though, and all of the theaters near me just spent a lot of money upgrading their seats.

The media channels of the 21st century aren’t just more avenues for information – they are layers of information interacting with the other layers. Television programs and movies also have to adapt to the way consumers use the newest technology. Adaptation looks like spreading out- growing to cover a larger area – but it’s also about moving to new places entirely. Entertainment has to infiltrate and flow through multiple channels. It also still relies heavily on sponsorship in many cases, which means advertising also has to be integrated across these media.**

There are other ways of adapting, such as just adding alcohol to a bookstore.  Don’t rule anything out, I guess. Especially if you don’t think anyone under 21 even knows about your store or your product, anyway.

 

 

*Not that video games are mainstream yet. My Facebook newsfeed recently informed me that Torbjorn was set to be “‘nerfed’ for consoles in future update.” The word “nerfed” was in quotations, which tells me that mainstream journalists don’t know what it means and don’t think it’s a word. (Or they’re very conscious about not genericizing Hasbro’s trademark, even though that trademark is, strictly speaking, in all-caps.)

**The alternative to advertising is some form of upfront pay-to-play, which is what Overwatch did.

 

 

Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.

The Hypothetical Case of Little Buddy Burgers.

Suppose I create a popular TV show in which a character (an endearing anthropomorphic Persian cat with a “lion” furcut) owns and operates a small restaurant called “Little Buddy Burgers.” I actually did a trademark search (my first ever!) and found that Little Buddy Burgers is not currently registered with the USPTO. Some combinations of “Buddy” and “Burger” have been registered, but abandoned, which makes me wonder if it’s a cursed business model.

Question 1) If Little Buddy Burgers only exists as a fictional restaurant, but the TV show is broadcast nationwide, can the producer of the show register “Little Buddy Burgers” as a trademark on the theory that it is “in commerce” as part of a television show (which is a for-profit enterprise)? If not, could I secure the trademark by making and selling “Little Buddy Burger” t-shirts/hats/mugs etc?

This question is easy if “Little Buddy Burger” shirts and hats are being sold nationwide. It is a little trickier if the restaurant is part of the show, but not featured in the title or in the advertising for the show. If you don’t have either t-shirts or advertising material, you might be able to get a trademark on a theory of secondary meaning through an expensive consumer survey.

Question 2) Suppose that some other person loves my show and decides to open an actual Little Buddy Burger restaurant with a menu and decor patterned after the restaurant in the show. Would my registration of “Little Buddy Burgers” preclude his efforts to register that trademark?

Yeah, if I can get it registered, I can enforce it all day and night against him. If I don’t already have it registered, we return to the analysis for above, but a consumer survey showing confusion over whether the restaurant is affiliated with the show will be a strong piece of evidence. (Remember though: the standard in trademark law is “likely” confusion; actual confusion is just a bonus for the plaintiff.) I’m a tremendous advocate of looking for non-litigious solutions to these kind of problems; it would be way better for everyone to work out a licensing agreement to use “Little Buddy Burgers.” It advertises the show, the show advertises the restaurant, everybody wins. And that’s being Little Buddies.

The core issue in this hypothetical is: Can you trademark fictional elements within a work in commerce? This has potentially massive applications in videogame licensing. For example, RiotGames owns a trademark on “Pentakill.” Should they? Is it really distinctive? Or is it just a generic announcement of 5 kills? They can overcome the claim that it is a generic announcement with a consumer survey showing that “Pentakill” has acquired secondary meaning unique to League of Legends. What about “Kill-a-man-jaro,” in a distinctive deep, masculine voice- can Bungie Studios trademark that? The closest case law I know of that relates to these questions is the case of Conan Properties v. Conan Pizza, in which a pizza parlor themed itself after the comics “Conan the Barbarian.” The case was settled by the fact that a majority owner of Conan Properties went to Conan Pizza and said he loved it, which was considered “acquiescence” to the pizzeria’s use of the trademark (so Conan Properties couldn’t win their claim of trademark infringement).