By: Charles Wells

Video games are a massive and rapidly developing industry with novel legal challenges are developing alongside those advancements. A key challenge in this developing area is the practice of “modding,” a process by which people other than the original video game developers access the software or hardware comprising a game and modify its contents. The unique technological character of modding stretches the conventional application of important intellectual property doctrines such as fair use and the treatment of derivative works. The current state of the law heavily favors developers and wealthy third parties, stifling the creative efforts of individual modders.

By: Hannah Hall

In a recent Ninth Circuit case, the court cited the need to protect the plaintiff’s right to free speech. The defendant promptly petitioned for certiorari, calling the court’s protective move “egregiously misguided.” What kind of newsworthy controversy would spark such weighty concerns and yet also garner such strong criticism? Dog toys, of course. In this post, the JIPL Blog takes a sniff at VIP Products, LLC v. Jack Daniel’s Properties, Inc., why trademark law allows parodic products to proliferate, and whether the Ninth Circuit’s decision really changes the law on parody.

By: Sloane Kyrazis

In TCL Comm’n Tech. Holdings v. Telefonaktiebolaget LM Ericsson, 943 F.3d 1360 (Fed. Cir. 2019) (“Ericsson”), the Federal Circuit held that Ericsson’s Seventh Amendment rights guaranteed a jury trial in its suit against TCL involving the royalty dispute between the two parties related to the fair, reasonable, and non-discriminatory (“FRAND”) licensing of Ericsson’s patent portfolio. The case was closely watched because many thought it was finally the time when the Federal Circuit, and possibly the Supreme Court, would provide some guidance over what constitutes a FRAND licensing scheme for standard essential patents. Instead of providing much needed guidance, the Federal Circuit reversed the district court decision below, holding that the district judge’s announcement of a FRAND royalty in a bench trial violated Ericsson’s Seventh Amendment right to a jury trial. The Supreme Court denied certiorari on appeal. This blog post discusses why such a denial was well-founded.

By: Jake Knanishu

Advances in advertising delivery and targeting technology pose a new, unique, and rapidly developing threat to individual privacy. Now, you can safely assume any advertisement you see on television or on a webpage has in some way been targeted at you—and so can anyone else who happens to see the ad. The finer points of this interaction among an advertiser, you, and a secondary audience prevent this invasion of privacy from being actionable under traditional common-law theories. The novelty, scope, and probabilistic nature of the harm suggest that regulation should be handled by an administrative agency, but which one? And how? Although not quite an “unfair or deceptive act or practice” in the familiar sense, this seems to be a modern twist on exactly the kind of thing the FTC was commissioned to police. Regardless of whose responsibility it becomes, something must be done before this practice gets too far out of hand.

By: Kristen Van Dyke

Halloween stores sell costumes that clearly mimic the appearance of well-known fictional characters. Profiting from consumers’ association of these costumes with the fictional characters they resemble potentially infringes trademark rights. So why haven’t these Halloween stores been sued yet? This blog explores how the uncertainty of fictional character trademark law and additional non-legal considerations may be tipping the scales away from litigation.