Colorado attorney John A. Arsenault featured on Denver KDVR news

Local television station Denver KDVR recently interviewed attorney John A. Arsenault on the subject of revenge porn, justice for victims, and the current state of the laws in Colorado. Despite strengthening the revenge porn laws in 2018, the current laws are not always sufficient for law enforcement to easily investigate and forensically determine ‘beyond a reasonable doubt’ who is responsible for the unlawful postings. Problems with computer and forensic knowledge make it difficult for law enforcement to properly act and enforce the rights of victims. John A. Arsenault discusses the problems around the circumstances involving a specific individual who called into KDVR seeking justice.

Is your organization GDPR compliant ahead of the May 25, 2018 deadline?

The General Data Protection Regulation or (GDPR) is a regulatory framework that strengthens the data privacy rights for European Union (EU) residents . The GDPR is slated to take effect on May 25, 2018. The primary objectives of the GDPR improves the individual’s control over their own personal information, harmonizes privacy and data handling requirements within the EU, and mandates practices from businesses that collect personal information to minimize the likelihood of a data breach of personal information.

If your business collects any personal information from EU residents and you are not already in compliance with the GDPR it is important to make sure that your business is fully compliant with the GDPR. Any and all organizations that conduct business in the EU should have a thorough understanding of how the GDPR can affect their business and its interests. Ensuring compliance is important because organizations found in violation of the GDPR after May 25, 2018 can be fined a minimum of 20 million Euros.

Our internet law attorneys are familiar with the GDPR and how to apply the best practices for your particular business. Consult with an internet attorney who is familiar with the GDPR today via a free consultation.

Federal judge rules in favor of Microsoft in 2004 video game patent lawsuit

In 2004, several Michigan inventors sued Microsoft and Sony asserting U.S. Patent #5,292,125 an “apparatus and method for electrically connecting remotely located video games.”  Specifically targeted were Microsoft’s Xbox Live service and Sony’s Playstation Network.  The allegations were that the companies infringed the plaintiff’s patents seeking an injunction and royalties.

The patent discloses “a video game communication assembly for communicating command signals between a local video game and at least one remote video game.”  Unlike Microsoft who decided to challenge the substance of the argument raised by the patent holders, Sony settled out of court for an undisclosed sum in 2009.

The decision to settle was unfortunate for Sony because last week, U.S. District Court Judge Paul Borman ruled in favor of the remaining defendant Microsoft, dismissing the plaintiff’s challenges and permitting Microsoft to recover legal fees from the plaintiffs.  In the opinion, Borman questioned the interpretation of  “electrical connection” given that the Xbox didn’t use an electrical connection to communicate between players.  Although the Xbox Live network utilized electrical signals, the Judge found that the technology in question didn’t rely on an “electrical connection” as described by the patent.  Had the game systems connected via an electric connection (which most systems don’t), the decision may have easily gone the other way.

The lesson to take from the events of last week is if you are Sony not to settle when you have a good legal argument.  If you are Microsoft, the lesson is if you have a good argument, keep arguing it, it may end up more profitable than settling.  When litigating a complex patent, it is difficult to receive quality advice without a good patent attorney on your side.  The lawyers at the law firm of Wessels & Arsenault can provide such sound advice if you are facing possible or actual patent litigation.

U.S. Supreme Court to hear challenge to California violent video game ban

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The U.S. Supreme Court decided today to hear a case originating out of California regarding whether the state has the authority to ban the sale of violent video games to minors.  The state of California in Schwarzenegger v. Entertainment Merchants Association petitioned the Court to uphold the state statute and extend the Court’s rules specific to minors and obscenity to violent content also.  on one side free speech opponents of the ban are arguing that the restrictions go too far on an industry that is already regulated with parental warnings.  Proponents of the law state that the ban is necessary because of how the depictions of violence affect minors.

Governator Arnold Schwarzenegger and the State of California passed a law in 2005 banning the sale or rental of violent video games to minors imposing a civil fine of up to $1,000.00 for violating the statute.  Before the law could go into effect however, the video game industry challenged the law in California Federal Court, winning an injunction and the case on the merits at both the District and the Court of Appeals levels.  In both cases, the Courts found that the California law violated the constitutional rights of minors under the first and fourteenth amendments, and the law has never actually been in effect.  Thus far, the video game industry has prevailed against these challenges, winning in 12 lower court rulings that struck down various laws restricting the sales of violent games at the state and local level.

The District Court Judge found on the First Amendment issue that the applicable constitutional standard was strict scrutiny, and that the law did not pass constitutional muster because although the state had a compelling interest, the act did not choose the least restrictive means.  The state was unable to demonstrate to the Court that the law would protect the physical and psychological well-being of minors more effectively than the current system nor would it further the articulated interest that the state enacted the law for in the first place.  Video Software Dealers Ass’n v. Schwarzenegger, No. C-05-04188 RMW (Aug. 6, 2007), affirmed, No. 07-16620 (9th Cir. 2009), preliminary injunction decision at 401 F. Supp. 2d 1034 (N.D. Cal. 2005).

In February of 2009, the 9th Circuit Court of Appeals upheld the 2007 District Court decision, agreeing that the California law was a content-based regulation subject to strict scrutiny and not the “variable obscenity” standard established in Ginsburg v. New York 390 U.S. 629 (1968), rendering it presumptively invalid on its face.  Using the strict scrutiny analysis, the Court concluded that the state failed to demonstrate evidence that a causal connection existed between violent video games and serious psychological or neurological damage to minors.  Also, because the Act was neither narrowly tailored nor did it provide the least restrictive means of promoting the state’s interest, the 9th Circuit held that it violated the First Amendment.  Finally, the court held that the State’s labeling requirement was unconstitutionally compelled speech in violation of the First Amendment because the labeling compelled placement of ratings on boxes based on a subjective standard of violence.  Video Software Dealers Ass’n v. Schwarzenegger – No. 07-16620 (9th Cir. 2009).

The debate over this issue has been governed too long by politics and providing easy answers at the expense of constitutional validity.  At the Supreme Court the arguments will be the same, but the impact of the decision will be felt nationally.  Because other states such as Oklahoma, Washington, Illinois, Michigan and others have also attempted to follow California’s footsteps, a Supreme Court decision will help provide guidance for future state or federal legislation that would affect access to “violent” content to minors.

Social Gaming Company Zynga sues Virtual Property Clearinghouse Playerauctions.com in California District Court for trademark and copyright infringement

This week upstart casual gaming company Zynga sued auction website Playerauctions.com in California District Court for the sale of virtual currency and goods under a theory of intentional interference with contractual relations, violations of the state unfair competition code, trademark and copyright infringement.  Zynga is the company that builds and offers popular social games Zynga Poker, Mafia Wars, and Farmville on Myspace and Facebook.  Playerauctions.com is a website that offers to users accounts, virtual currency, and goods for various online games, acting as a middleman between buyer and seller similar to eBay.

The mechanics of Zynga games require you to spend time playing the game or paying money to Zynga to increase the status of your character.  Playerauctions.com allows you to bypass that step by purchasing Zynga virtual goods or currency from their website and enrich playerauctions.com instead.  As a result, users who choose to participate in third party auctions violate the Zynga terms of service, which results in lost sales to a company potentially worth several billion dollars.

Zynga alleges in their complaint that Playerauctions.com are using their copyrighted and trademarked material when advertising virtual currency and goods online.  Zynga has requested an injunction against the sale of their virtual goods and currency by Playerauctions.com, and is seeking an unspecified sum in damages that Zynga intends to establish at trial.

Playerauctions.com does serve as an auction house while individual auctioneers use Zynga marks and copyrighted content to sell Zynga’s virtual currency and goods.   This certainly helps Zynga establish an argument for contributory and vicarious copyright infringement in addition to trademark infringement.  Zynga also establishes in their complaint that they have copyrighted and filed for trademark protection on the properties Mafia Wars, Farmville, Yoville, and Zynga poker.  The implications of this lawsuit could put a dent in the growth of virtual property auction houses and the sales of online goods and currency through a gray market.  Because arguments haven’t been heard yet it’ll be difficult to predict the outcome, but either way it should be interesting to see how the courts intervene or whether they allow the auctions to continue  or not.  Zynga Game Network, Inc. v. Playerauctions.com, CV10-2576 CBM (C.D. Cal. 2010).  Click here to access a PDF of the original complaint.

D.C. Circuit Court of Appeals rules in favor of Comcast in net neutrality dispute with F.C.C.

Last week the D.C. Circuit Court of Appeals ruled against the F.C.C. in their ongoing dispute with Comcast and others about whether the F.C.C. has the legal authority to regulate internet service providers. [1]  At issue was whether the F.C.C. could legally dictate to Comcast that it had to treat all internet traffic coming through Comcast’s broadband network infrastructure equally.  This question has been a hot-button issue in public policy debates and amongst high-tech companies because the regulation affects who is and who isn’t able to potentially serve and/or view content.

Lawrence Lessig summarized net neutrality principles in an 2006 op-ed, “Net neutrality means simply that all like Internet content must be treated alike and move at the same speed over the network. The owners of the Internet’s wires cannot discriminate. This is the simple but brilliant “end-to-end” design of the Internet that has made it such a powerful force for economic and social good.” [2]  Net neutrality opponent Robert Pepper of Cisco Systems states, “The supporters of net neutrality regulation believe that more rules are necessary. In their view, without greater regulation, service providers might parcel out bandwidth or services, creating a bifurcated world in which the wealthy enjoy first-class Internet access, while everyone else is left with slow connections and degraded content. That scenario, however, is a false paradigm. Such an all-or-nothing world doesn’t exist today, nor will it exist in the future. Without additional regulation, service providers are likely to continue doing what they are doing. They will continue to offer a variety of broadband service plans at a variety of price points to suit every type of consumer.” [3]

In 2002, the Bush Administration deregulated internet cable broadband providers on the grounds that they were distinct from the high-speed internet services offered by telecommunications companies such as AT&T and Verizon. [4]  Thus, companies like Comcast and Time Warner Cable were viewed as “information services” because cable providers offered a bundle of services such as email, web hosting, and other services, which are allegedly distinct from the services offered by telecommunications companies. As a result, cable internet service providers were seen as exempt from the Common Carrier section of the Federal Communications Act.

In 2008, the F.C.C. ordered Comcast to stop blocking peer-to-peer filesharing technology known as Bit Torrent. [5] The basis for the restriction was a theory of net neutrality, which was adopted in 2005 and prevented internet service providers from favoring or disfavoring one type of traffic over another. [6]  The F.C.C. used those guidelines and principles when enforcing communication laws throughout the remainder of the Bush Administration, but now intend on making the guidelines into full-fledged regulations given the interest of F.C.C. Chariman Julius Genachowski and the recent October decision to proceed in writing the rules.

Comcast challenged the decision in the D.C. Circuit Court of Appeals, arguing that the F.C.C. lacked authority to block or slowdown traffic from specific sources under current law. [7] By winning the appeal, Comcast effectively forced the F.C.C. to reconsider its regulatory authority over internet service providers and may prompt Congress to step in and pass legislation related to net neutrality.  Because internet service providers currently don’t favor or disfavor certain types of internet traffic, the effects of this decision on the end-user will be minimal for the time being.  If the F.C.C. intends to further regulate internet service providers they currently have to carefully draft their regulations in lieu of last week’s decision.  Congress may attempt to enter the fray and pass legislation granting the F.C.C. additional regulatory authority over internet service providers, but that would actually require crafting a bill that can pass both chambers of Congress.  In the current political environment, net neutrality is a political hot button issue that most politicians would likely save for another day.

[1] Comcast v. F.C.C., 08-1291, U.S. Court of Appeals for the District of Columbia Circuit, Apr. 6, 2010, available at http://pacer.cadc.uscourts.gov/common/opinions/201004/08-1291-1238302.pdf (last visited Apr. 12, 2010).

[2] Lawrence Lessig & Robert W. McChesney, No Tolls on the Internet, Washington Post, Jun. 8, 2006,  available at http://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060702108.html (last visited Apr. 12, 2010).

[3] Robert Pepper, Network Neutrality: Avoiding a Net Loss, TechNewsWorld, Mar. 14, 2007,  available at http://www.technewsworld.com/story/56272.html (last visited Apr. 12, 2010).

[4] Telecommunications: F.C.C. Rules on Cable Access, New York Times, Mar. 15, 2002,  available at http://www.nytimes.com/2002/03/15/business/technology-briefing-telecommunications-fcc-rules-on-cable-access.html?pagewanted=1 (last visited Apr. 12, 2010).

[5] Comcast Statement on F.C.C. Internet Regulation Decision, Comcast, Aug. 1, 2008, available at http://www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=786 (last visited Apr. 12, 2010).

[6] F.C.C. Net Neutrality principles, FCC 05-151, Sept. 23, 2005,  available at http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf (last visited Apr. 12, 2010).

[7] Comcast to Appeal F.C.C. Network Management Order, Gigaom.com, Sept. 4, 2008, available at http://gigaom.com/2008/09/04/comcast-to-appeal-fcc-network-management-order/ (last visited Apr. 12, 2010).