Article 13, We’re Missing Something.


Over these past few weeks we’ve heard from many people either lauding or complaining about the passage and impact of the EU’S Article 13. Is Article 13 the champion of artists and musicians or is it the bane of content creators, political commentators, satirists and music fans? If you follow the subject online, you will soon find that are so many contradictory responses to this one question. The problem, I think, is in the very question. There is something I think we are all missing in our arguments over Article 13. I am personally opposed to Article 13, but right or wrong, advisable or not, this new law will not destroy anything. Rather, it will force us to adapt to the new environment. And adapting is what the human race is so skilled in doing.

Under Article 13, passed by the European Parliament, platforms such as YouTube, Facebook and Twitter are legally required to proactively block any copyright infringing material. No longer are platforms permitted to wait until somebody complains, somebody flags or somebody submits a notice of infringement. Up until now platforms have enjoyed a “safe harbor” that assured that they, the platform, would not be legally liable for the actions of their users. Platforms were expected to do all they can to prevent infringement but when their efforts fell short, they were not liable. That allowed platforms to actively solicit materials from content creators without much fear or concern.

The content creators were always liable for the content they upload, but YouTube or Facebook were not. With the passage of Article 13, the EU imposed liability on the platforms. Going forward, online will face liability whenever infringing material is found to have made their way through whatever automated screening they deploy.

Now no doubt this will present a major shift in our online world. Many would agree that the impetus for the rapid growth of online content has been the legal immunity born by these platforms. Platforms that don’t face liability for users’ content, are more likely to allow unfettered expression by their users. How will this now change? Will YouTube shutdown any user who uploads cover music? Will platforms no longer allow the streaming of music with complicated copyright structure? Will Twitter ban MEMEs because of the questionable status of their copyright? Will Facebook takedown satirical pieces because of an inability to clearly determine status under fair use?

No one can give you straight answers to these questions. We all like to believe that we know what the future will bring but the truth is that every time something new is attempted, every time the status quo is challenged, every time opposition wins in their efforts to overturn what many may feel is successful, we all face the unknown.

So I’m not going to pretend to know what’s coming down the pipeline. I’m not going to tell you how the Internet will be destroyed. I’m not going to pretend to know what actually will happen. But I will tell you one thing that I know for sure. One thing that is uncontroverted.

We will manage to change. We will learn how to work within these new rules. We will learn to express ourselves in new ways under the umbrella of new restrictions. And none of the changes, and I repeat none of these changes, will stop any single individual from expressing an opinion. Yes, the rules will change and in the process some comments will be taken down, some videos will be removed, some pictures will be blocked and some MEMEs will be censored. But don’t think for one second that that will be the end of our story.

The truth is we don’t have to like the changes. We don’t have to appreciate any single regulation. We don’t have to support rules that are contrary to our values; but we are obligated to continuously demand the right of self-expression and speech. A bad law might make it a challenge to express yourself. It might force you to explore new ways sharing your message; but only you can censor your own speech. So … don’t do it!

Can you trademark a color?


Can you trademark a color? Of course you can. You see it every single day. UPS trademarks brown. T-Mobile trademarks magenta. Tiffany trademarks blue. So what's the trick? It’s not that easy. There must be substantial evidence that the color has acquired distinctiveness or secondary meaning. What does that mean?

It means that when a consumer sees that color, he is associating that product with you as the manufacturer. That's why nobody can own a color. They can only get exclusive rights to it when using it in a very small and narrow market segment.

UPS cannot prevent everyone from using the color Brown, but it does have exclusive rights to it when associated with delivery trucks. T-Mobile can not prevent everyone around the world from using the color magenta. It actually tried when it went after Engadget for using the color Magenta on its website. Ridiculous! There is no competition between the companies. T-Mobile only has exclusive rights to the color magenta when associated with cell phone service.

That’s why the USPTO is going to apply the law very narrowly when reviewing your application. They want to make sure that (1) the color is not functional. You won't be able you get the color orange trademarked in association with clay roof-tiles. (2) They want to make sure that it isn’t for purely for esthetic reasons. You won't be able to register the color orange in association with T-shirts. Why? It’s just esthetics. It’s not connecting you the manufacturer with the product. Thank God for that.

Registering a trademark for a color can be very important. It's a tool used to prevent consumer confusion. It’s not that easy to get. It's narrowly applied … but when done right it could be a powerful tool

NBA 2K Lawsuit: Video Game Sued for Being Too Realistic

NBA 2K Lawsuit: Video Game Developer, Take Two Interactive, Sued for Copyright Infringement Because their Game, NBA 2K16 is Just Too Realistic in the Way it Depicts the Tattoos on Each NBA Player. 


Take Two Complaint

Take Two Order on Motion to Dismiss

Take-Two Interactive is sued for producing an all too realistic version of their NBA 2K16 video game. Why? Because not only are players looking realistic but they also included each player's tattoo in the game. Why is that a problem? Can't NBA players license their images to video games like NBA 2K? It's because some contend that the tattoo are subject to copyright infringement owned not by the NBA players but by the tattoo artist who put it on the NBA player's skin. Does that make sense. Let's review the legal issue here. 


Lior Leser, Esq.
Technology, Internet and Software Law

SHOW NOTES: Robotech RPG, a Kickstarter Failure and Palladium's Liability its Backers

In 2013 Palladium Books ran a successful kickstarter campaign for a tabletop miniatures game, Robotech RPG Tactics. Five years later, Palladium just announced that having failed to deliver the rewards promised to its kickstart backers, they will shut down the project, send any remaining game inventory to backers subject to them being willing to pay a high shipping fees for products they didn’t order and liquidate any remaining game-assets

After years of delays, excuses, promises and apologies, many backers of the project are left wondering what they can do. Are kickstarter backers mere donors with no expectations of a reward or are they financing the manufacture and pre-sale of products. ... and, what does the law say? Can Palladium just say sorry and move on? Is there any consequences for having failed to use the kickstarter funds raised to deliver the products promised? This is what we’ll talk about today.


Lior Leser, Esq.
Technology, Internet and Software Law

SHOW NOTES: How Wolf of Wall Street Gave Facebook Twitter and YouTube Immunity from Discriminatory Decisions

Show Notes: 

The Wolf of Wall Street - 'The Key To Making Money' Scene

The Wolf of Wall Street- Trust

Social Media Execs Testify on Terror Recruitment

Facebook, Twitter and Google’s Senate testimony, in three minutes

CompuServe - First Internet Commercial - October of 1989

Family Guy on Compuserve

Prodigy commercial (version 1) - 1990

In January when the Senate questioned representatives of Twitter, facebook and YouTube, Senator Ted Cruz asked if the social media platforms consider themselves to be neutral public forums. Again in April, when Mark Zuckerberg was called in front of the senate, Ted Cruz asked him if Facebook consider itself to be a neutral public forum. Why? What is the basis for these questions. According to Senator Ted Cruz, the immunity enjoyed by these social media platform for their policing, moderating and controlling user content under section 230 of the CDA is predicated on them being a neutral public forum? Is that true? Can Facebook, Twitter and YouTube lose immunity under Section 230 in the event their decisions are not politically neutral? 


Lior Leser, Esq.
Technology, Internet and Software Law

Show Notes: Robotech vs BattleTech Lawsuit. Harmony Gold vs Piranha Games, Harebrained Schemes & Jordan Weisman

Amended Complaint

Response to Amended Complaint

Motion for Summary Judgement

Harmony Gold Arbitration


Today it’s the legal battle between robotech and battletech. A lawsuit by Harmony Gold (distributor of robotech and macross) against Pirahna Games, Harebrained Schemes and Jordan Weisman, creators and licensors of the Battletech franchise. Who has rights to the characters in the Macross franchise? Can a licensee of the movie Macross stop the sale and distribution of merchandise based on the underlying characters in the movie? Will this Robotech vs Battletech lawsuit end up delaying the release of the upcoming Battletech game? 


Lior Leser, Esq.
Technology, Internet and Software Law

SHOW NOTES: PUBG VS. Rules of Survival & Knives Out. The Clone War. PUBG sues NetEase


PUBG vs. NetEase (Complaint)

It’s hard to argue that PUBG has had an enormous impact on gaming since early last year. PUBG been enormously successful in the marketplace. Was PUBG wholly original. Of course not. PUBG took elements developed, improved and perfected by other games over many years and in combination with great game mechanics and rules developed something that to us is unique. Until competitors jumped in. Rules of Survival and Knives Out are two such games, developed by NetEase for mobile platforms, that some see as either inspired by PUBG or clones of PUBG. 
PUBG just filed a lawsuit against NetEase, the developer of Rule of Survival and Knives Out for having cloned PUBG for the mobile platforms. Today we’ll take a look at the PUBG lawsuit. Does it have any merits?


Lior Leser, Esq.
Technology, Internet and Software Law

Preserving Dead MMOs. The Fight to Save Online Games. The case of MADE vs ESA.

Show Notes:

Comments by MADE (Museum of Art and Digital Entertainment)

Comments by ESA (Electronic Software Association) Opposition

Section 12 Circumvention of copyright protection systems

Looking for an Audio Track (mp3) for your favorite podcast software/app ... go to our Patreon or MakerSupport pages.

A battle is raging in Washington. Will the Registrar of Copyright expand the list of DMCA exemptions to include Online Games. The Library of Congress solicited opinions on whether online games should be exempted from copyright restrictions on bypassing technological access control mechanism in order to enable the preservation of historically significant online games. 

On the one side is M.A.D.E., the Museum of Art and Digital Entertainment. On the other side is ESA, the Entertainment and Software Association. At issue is whether online games will be preserved for the benefit of future generations. Will researchers be able to play these games in their online format generations after no one care and these games are not supported. 

Lior Leser, Esq.
Technology, Internet and Software Law

LIVE: Contacted to Provide an "UnBiased" and "Honest" Review of an Upcoming ICO

1. The End of ICOs 00:03:27
2. Can you explain S.L.A.P.P. lawsuits 00:27:50
3. Can Materials Discovered as part of a Hack Be Used Against You in Trial 00:33:33
4. Does Microsoft have the legal right to look at ur personal computer files thru their EULA? 00:34:34
5.  Do you think there is a risk that big companies that are heading toward bankruptcy will start using ICOs as "pump and dump" schemes to capitalize on the value on their brand? 00:39:13
6. RE: Microsoft ToS changes, they say the actions taken against you for the "offensive language" can result in forfeiture of your "Microsoft point” considering you paid for those points, is that legal? 00:42:45
7. I was wondering if you talked about the Sinclair Broadcasting Group fake news script. It was covered by phillip defranco and he mentioned contracts forcing them to go along with it.  00:47:26
8. Do you think Maddox has a case for ineffective counsel against his lawyer?  00:51:03
9. Law Why do different states have different laws? Why doesn't NY have valid Anti SLAPP laws?  00:57:48
10. We used to see the term ICO a lot - now we see more of SAFTs as a supposed workaround for the SEC. What is SAFT? Simply put?  1:01:17
11. Are you disappointed that in the end Maddox was Heather?  1:10:10
12. the keyphrase so far was that the SEC hasn't found a single Initial Coin Offering that doesn't implicate securities laws 1:10:56  

I was contacted by the marketing department of an upcoming ICO about reviewing their ICO. Is that even possible? Can anyone provide a honest legal review of an ICO? After all, ICOs are defined by their lack of regulatory compliance. In the post DAO report by the SEC saying that they have never seen an ICO they didn't consider a security that MUST be registered, how can any ICO be considered legal? Not unless they are registered with the SEC. Let's talk.

Lior Leser, Esq.
Technology, Internet and Software Law

SHOW NOTES: Case UPDATES: Crytek vs CIG; Maddox vs Dick; Faze Banks &Alissa Violet; PragerU vs Google; Pepe the Frog

In the Maddox vs Dick Masterson Lawsuit, Maddox's attorney has filed a motion for sanctions against the attorneys for kokkinos and weber shandwick for daring to call him out on his lies. 

In the Crytek vs CIG lawsuit, CIG asks the court for protective order against Crytek's demands for discovery

In the Faze Banks and Alissa Violet lawsuit, the court reveal the private settlement agreement under which it investigated Faze Banks for contempt

In the Pepe the Frog lawsuit, Matt Furie agrees to dismiss his claim against Jessica Logsdon, a political artist. 

In the PragerU vs Google lawsuit, the parties re considering some form of alternative dispute media resolution. 

SHOW NOTES: The Court Flubbed It: Fox News vs. TVEyes. Why it's So Important and Why they Got It So Wrong

This is an important case. Fox News sued TVEyes, the provider of a unique and transformative technology for copyright infringement. TVEyes defended itself based on fair use. Yet the Court of Appeals found in favor of Fox and against TVEyes and fair use. Let's review this important case and see why the court got it so wrong.

Show Notes: TWiT vs Twitter: Leo Laporte and Evan Williams Spar Over Gentlemen's Agreement

Leo Laporte and TWIT are suing Twitter for breach of a contract. It seems that TWIT, the audio and video podcast success story, was the first to go to market with the brand TWiT. And when Evan Williams and his cofounder started Twitter, there was some concern over trademark infringement and consumer confusion. While a guest on Leo Laporte's net@night podcast, the two reached a gentlemen's agreement to stay out of each others' business. Now it seems that this agreement was breached, as Twitter moves full steam into the video streaming world. Let's check out this lawsuit of TWiT vs Twitter. 

Show Notes: Not a Perfect 10? Why Sharing Links to Twitter Posts May Be Copyright Infringement

For the past 11 years the internet has exploded as we all learned to rely on the famous Perfect 10 case that found that links to other websites (even copyright infringing sites), is not illegal. Relying on the Sever Test, we've all learned that we can link to material but not download and share them. Now things may be changing. Challenging the Perfect 10 case out of the 9th circuit, Goldman vs Breitbart (in the second circuit) says that embedded links might be copyright infringement. This can have a monumental impact ion the internet. 

Show Notes: UPDATES: Crytek vs CIG, Akilah vs. Sargon, PragerU vs Google, Maddox vs. Dick & ZombieGoBoom

Show Notes: Phantoml0rd vs Twitch: Banned Streamer, James Varga, Sues over Account Suspension

Back in 2016, a hugely popular twitch streamer, James Varga aka Phantoml0rd, was suspended by twitch for streaming gambling related content on his channel. Today, Phantomlord strikes back. James Varga sued Twitch for the suspension that has yet to be lifted claiming that the termination of his Phantoml0rd account was a breach of contract based on the agreement he signed with the streaming platform. Its a case of revenue sharing contract vs community guidelines. 

Show Notes: YouTuber Union. Can We Impact Change at Google by Uniting?

A few days ago one of the viewers of the channel pointed me to the video by JoergSprave about the formation of a YouTube Content Creator Union. 

More of a platform to unite YouTubers toward a stronger negotiating position then a true union, this move intrigues me. Since that day, I've received several messages and comments from you asking about my position. So let's talk about it. Is there a room for a YouTuber Union? Can we negotiate with Google by presenting a united front?

SHOW NOTES: Sargon, Akhila & Cosby? How Can NY Court Drag UK Resident to a US Court for Copyright Infringement

For weeks, many of you have asked me the question of how can a NY court can have jurisdiction over Carl Benjamin, aka Sargon of Akaad, a resident of the UK. In the copyright infringement lawsuit by Akilah Hughes, if Sargon copied the video in the UK, edited the video in the UK, uploaded it in the UK to a UK server ... where does personal jurisdiction exist of him? A recent case in California may shed some light on it. In this copyright infringement lawsuit, a company managing the copyright of the Cosby Show sued a UK company that produced a docu on the fall of an American icon, Bill Cosby. Here the court found that the US court did not have personal jurisdiction over the UK company. Hoe doers this apply to the Akilah Highes vs Carl Benjamin lawsuit? 

SHOW NOTES: Satoshi Nakamoto Sued: The Dark Side Behind the Creation of Bitcoin, Craig Wright and Dave Kleiman

Got a question? Need legal advice? Schedule an hour for a one-on-one. Let's try and solve the problem.

Craig Wright, the man claiming to be Satoshi Nakamoto, is sued by the estate of a former partner and collaborator Dave Kleiman. In the lawsuit we get a glimpse into the dark side of of the formation of bitcoin. The lawsuit claims that Craig Wright, aka Satoshi Nakamoto, defrauded the estate of Dave Kleiman by transferring all bitcoins owned by Dave into Craig's own wallet. Somewhere around 1,000,000 bitcoins. Today we review the case of Ira Kleiman, as personal representative of the estate of Dave Kleiman vs. Craig Wright. 

SHOW NOTES: Star Citizen Update 5.0: CIG to Crytek "What Are You Talking About, Willis?

Show notes from video upload March 2, 2018.

Rule 26(f) Report

Crytek Complaint

CIG Responds: Motion to Dismiss 

Got a question? Need legal advice? Schedule an hour for a one-on-one. Let's try and solve the problem.

After Crytek filed its complaint and CIG and RSI moves to Dismiss, the parties in the Star Citizen/Squadron 42 lawsuit went into a Rule 26(f) Conference. A relatively mundane and boring process where attorneys for both Crytek and Cloud Imperium agree to basic procedures like: How information should be exchanged and what schedule we should agree to. Of course when it comes to Star Citizen nothing is simple and drama free. Coming out of the rule 26f conference Crytek, RSI and CGI issued a joint report that showed how far apart they were on Star Citizen and Squadron 42. Today we'll review the report.