Author Archives: rjripley

Recent Digital Media Cases of Note

A couple of cases I thought you mind fight interesting:

1) First, a case dealing with copyright exhaustion in the digital media context, distinguishing a recent USSC case that dealt with copyright exhaustion as it applies to conventional media:

2) Second, a 2nd Circuit case allowing users to make private retransmissions of TV content:


UPDATE: April 1, 2013 @ 1:41pm: Also, NFL and ex-NFL players seek approval of $42 million settlement re: use of players’ personality rights:

Comments on March 20th

A couple of comments re our class today.

1. We talked about Netflix using personal information to create House of Cards and whether this was okay. For both practical and legal reasons, I think an important consideration is whether Netflix is using your information in a reasonable way. For me, I think it is reasonable for Netflix to use my information internally to develop and refine it’s products, particularly if it’s first anonymized, but that a practical (if not legal) line is crossed when Netflix starts to use my information in a way that disrupts the integrity of its service.

For example, if Netflix has used my information to determine with a certain algorithm what shows to recommend to me and has built up significant goodwill with me by doing so correctly, I do not think it is reasonable to then recommend House of Cards to me even if the algorithm says I will not like it.  If House of Cards is flagged as an advertisement, fine; but if it’s not and it’s presented like all the other recommendations I think there’s a problem.

2. Here is a related snippet from Netflix’s terms of use (emphasis mine; see

Use of Information Submitted

Netflix is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to the Netflix service, including the Netflix website and user interfaces, without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Netflix service. Furthermore, by posting any Feedback on our site, submitting Feedback to us, or in responding to questionnaires, you grant us a perpetual, worldwide, non-exclusive, royalty-free irrevocable license, including the right to sublicense such right, and right to display, use, reproduce or modify the Feedback submitted in any media, software or technology of any kind now existing or developed in the future.

A Post IP World

Two thoughts re: whether we really are in a post IP world when it comes to video games.

1) Many minors play video games. I don’t think a plaintiff would have much luck enforcing a EULA against one. Particularly relevant in the technology context since I’m sure there are many teenage programmers out there who have the skills necessary to modify or use games in ways that publishers and developers may not like.

2) Privity. If I sit down and play a game that’s already been installed on Jon’s computer, I’ve agreed to nothing vis-a-vis the publisher/developer. The EULA is unenforceable against me.

In both cases 1) and 2), IP, however, would apply.


Thoughts on Today’s Class

A few thoughts on today’s class.

1. All our discussions on EULAs reminded me of this story I had read some time ago, and was able to miraculously find without much difficulty using Google:

2. It also reminded me of this:

3. When I draft a contract, my primary goal is to clearly state the rights and obligations of the parties so that they can refer to the agreement when necessary to figure out what they have to do and what they’re supposed to get so the parties can avoid litigation. Basically, the contract is there to eliminate (ideally) uncertainty. Aside from issues re: enforceability, I don’t think it matters whether the contract requires a conventional signature or is a click/shrink/browse wrap agreement. 

4. If there is a good or service for which you are supposed to sign a EULA before using, then I think in most cases a perfectly viable option is not to use that good or service. I do not have a right to become a Night Elf Mohawk on my own terms.

EDIT: 9:30pm, 6 February 2013

5. I completely agree that innovation is done standing on the shoulders of giants, but also think that incremental improvements can be valuable and worthy of protection. To elaborate on the example we discussed in class today, here are Maxwell’s Equations:

and here is a very simple radio:

You start with the equations, which in and of themselves are in the public domain, and through a series of incremental improvements over the years arrive at a practical invention that bears little resemblance to what you started with.

EDIT: 9:46pm, 6 February 2013

5.1 Even better, here is one of Marconi’s very early patents:

Swedish Tech Start-ups Outdoing European Rivals

I just tweeted this with the #ubcvgl tag but thought it worthwhile enough that I would post about it as well.

The Globe and Mail has an article discussing how well Swedish tech start-ups (including specifically those related to gaming) are doing:

The article discusses various reasons why the Swedes may be doing so well: a highly connected society, a strong heritage in design and engineering, and even long and dark winters that may boost productivity ( I don’t think Vancouver’s dark and wet winters do anything good for my productivity, but I digress). Intellectual property is not mentioned one way or the other.