{"id":11527,"date":"2010-09-18T11:48:13","date_gmt":"2010-09-18T16:48:13","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=11527"},"modified":"2010-09-20T14:40:15","modified_gmt":"2010-09-20T19:40:15","slug":"best-of-the-blogs-trivial-pursuits-edition","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/09\/best-of-the-blogs-trivial-pursuits-edition\/","title":{"rendered":"Best of the Blogs: Trivial Pursuits Edition"},"content":{"rendered":"

\"\"<\/a><\/p>\n

This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless.<\/p>\n

1. Comic Books<\/em><\/p>\n

My brother and I had an extensive collection of comic books when we were growing up.\u00a0 We even owned two (two!) mint editions of Conan the Barbarian<\/em> <\/a>number 1.\u00a0 If I still owned that collection today, it would easily pay for the first year of my daughter’s college tuition.<\/p>\n

After reaching the age of puberty, I\u00a0consigned my childhood love of comic books to the “trivial” category of youthful pursuits.\u00a0 Perhaps that is why I was so delighted to read about the current exhibit at the Lillian Goldman Law Library at Yale University, entitled Superheroes in Court! Lawyers, Law and Comic Books<\/em>.\u00a0 As described by John Schwartz in the New York Times<\/a>, this exhibit includes comic books\u00a0with a legal setting, contracts and correspondence relating to legal disputes over the ownership of comic book characters, and reports submitted to Congress during the 1950s\u00a0seeking federal legislation to address\u00a0the alleged connection between comic books and juvenile delinquency.<\/p>\n

Maybe I should start up my comic book collection again.\u00a0 After all, the curator of the exhibit at the Yale Law Library claims that “[t]ons of lawyers are collectors.”\u00a0 And it has been reported that President Obama is a big Conan the Barbarian fan<\/a>. (Hat tip to Jaime and Mara)<\/p>\n

2. Professional Football<\/em><\/p>\n

I am well known among first year law students for my advice to maximize their study time by giving up trivial pursuits such as televised sports.\u00a0 Professional football games, in particular, can eat up a lot of time that might be better devoted to the study of law.\u00a0 For those students who refuse to give up their football, but who would like to pretend that watching the game advances their studies, Aurelia Schultz at The 1709 Blog <\/a>has a good post on the copyright infringement case arising out of the original logo used on the Baltimore Ravens helmet.<\/p>\n

It seems that Frederick Bouchat designed the\u00a0logo for the expansion team-Ravens back in 1995, which originally consisted of\u00a0the letter “B” with two flying wings attached.\u00a0 The Ravens used the logo but paid Bouchat nothing.\u00a0 After a first round of litigation resulted in a finding of copyright infringement by the Ravens, but concluded that Bouchart was not entitled to any damages, Bouchart and his lawyers embarked on\u00a0a series of increasingly creative lawsuits filed against anyone and everyone who ever licensed or used the logo.\u00a0 Meanwhile, the Ravens abandoned the original logo in favor of today’s depiction of a raven’s head with the letter “B” inside.<\/p>\n

Finally, ten years after the original suit, Boachat’s serial litigation may be about to pay off.\u00a0 It seems that the Ravens and the NFL\u00a0assembled and offered for\u00a0sale a highlight reel of Ravens football games that included footage of games where the team was wearing\u00a0helmets with the old logo.\u00a0 Bouchat sued for copyright infringement, and the\u00a0United States Court of Appeals for the Fourth Circuit <\/a>recently ruled in Bouchat’s favor.\u00a0 The court rejected the Ravens’ argument that the highlight reel\u00a0fell within the “fair use” exception to the copyright law, primarily because the sale of the \u00a0highlight reel had a commercial purpose and because the game\u00a0footage used in the film depicted the entire copyrighted work in the context of its original purpose (identifying which players were on which team).\u00a0 The court noted that the fair use doctrine might have applied if there had\u00a0been\u00a0an\u00a0attempt to transform the copyrighted work for a different\u00a0purpose (i.e., using the footage for a documentary on the topic of the legal\u00a0dispute over the original logo).<\/p>\n

Law students\u00a0now have my permission to watch Baltimore Ravens games all season long in order to observe the practical application of the laws governing intellectual property.<\/p>\n

3. Video Games<\/em><\/p>\n

What could be more trivial than playing video games?\u00a0 The\u00a0news that a man sued the software manufacturer NCsoft over\u00a0the game Lineage II, claiming that he became addicted to role playing video games, was met with derision by many observers.\u00a0 Addiction of any kind is a serious matter, and should not be laughed off.\u00a0 A\u00a0thoughtful and sympathetic response to the lawsuit\u00a0can be found <\/a>on the blog In Third Person.\u00a0 While doubting the legal merits of the plaintiff’s claim, the author of the post (a self-proclaimed\u00a0“20 year gamer”) points out the important distinction between substance addiction and behavioral addiction.\u00a0 This distinction is not trivial, and it may ultimately limit\u00a0the legal liability of the software company.<\/p>\n

A more significant aspect of the case may be\u00a0its relevance to the interpretation\u00a0of software licensing agreements.\u00a0 The trial judge denied NCsoft’s\u00a0motion to dismiss, where the defendant argued that\u00a0the standard licensing agreement that game manufacturers make\u00a0gamers\u00a0sign should be interpreted to\u00a0absolve the manufacturer from this type of\u00a0liability.\u00a0\u00a0Steve Roosa at the blog\u00a0Freedom to Tinker\u00a0argues<\/a>\u00a0that the trial judge was correct to rule that the contractual limitation of liability does not preclude\u00a0tort lawsuits.\u00a0 He puts the pretrial skirmishing in this case into a larger context:<\/p>\n

\u00a0The case law governing software license agreements has evolved dramatically over the past 20 years as cataloged by Doug Phillips in his book The Software License Unveiled<\/a>. One of the recent trends in this evolution, as correctly noted by Phillips, is that courts will often honor contractual limitations of liability which appear in these agreements, which seek to insulate the software company from various claims and categories of damages, notwithstanding the lack of bargaining power on the part of the user. The case law has been animated, in large part, by the normative economics of Judges associated with the University of Chicago. Certain courts, as a result, could be fairly criticized as being institutionally hostile to the user public at large. Phillips notes that a New York appellate court, in Moore v. Microsoft Corp., 741 N.Y.S.2d 91 (N.Y. App. Div. 2002)<\/a>, went so far as to hold that a contractual limitation of liability barred pursuit of claims for deceptive trade practices. Although the general rule is that deceit-based claims, as well as intentional torts, cannot be contractually waived in advance, there are various doctrines, exceptions, and findings that a court might use (or misuse) to sidestep the general rule. Such rulings are unsurprising at this point, because the user, as chronicled by Phillips, has been dying a slow death under the decisional law, with software license agreements routinely interpreted in favor of software companies on any number of issues.\u00a0\u00a0\u00a0\u00a0<\/p><\/blockquote>\n

It seems that there is a broader game going on, over the proper way to interpret contracts.<\/p>\n

4. “Name That\u00a0Tort”<\/em><\/p>\n

Besides video games, there is another type of trivial pursuit common among first year law students.\u00a0 At some point in their legal studies,\u00a0they\u00a0begin to notice all of the\u00a0torts, both real and potential, that\u00a0are taking place all around them\u00a0every day.\u00a0\u00a0At this stage, every law\u00a0student who is cut off by another driver in traffic or else jostled in a crowded bus seems compelled to share their observations about the various breaches of duties and\u00a0intentional torts that have just occured with all of their\u00a0non-law student friends and family who happen to be in the vicinity.\u00a0 It is actually quite annoying.\u00a0 Medical students do the same thing, and anyone who has\u00a0known\u00a0a doctor in training has been on the receiving end of multiple unsolicited diagnoses and treatment options.<\/p>\n

The explosion of YouTube and cell phone video recorders makes it\u00a0easier to play this game than ever before.\u00a0 No longer are you limited to postulating the legal consequences of the various torts that you observe first hand.\u00a0 Now everyone can cruise the internet and debate the theories of\u00a0liability that flow from conduct captured for posterity on the internet.\u00a0 For example,\u00a0over at Sports Law Blog<\/a>, Michael McCann of the Vermont Law School has posted the\u00a0video of a brawl that erupted in the stands at the U.S. Open.\u00a0 What follows is\u00a0a discussion of the possible legal aftermath of what is depicted on the video.\u00a0 It’s a fun way to waste a few minutes\u00a0and work your brain cells at the same time.<\/p>\n

5. Trivial Pursuit: The Game<\/em><\/p>\n

Finally, a belated recognition of the passing this past June of Chris Haney, one of the co-creators of the game Trivial Pursuit<\/em>.\u00a0 As you can see from this obituary<\/a>, the success of the game had the predictable result of leading to litigation over who came up with the idea.\u00a0 One such lawsuit even gave rise to its own trivia question: “Which Trivial Pursuit<\/em> question has an intentionally incorrect answer?”<\/p>\n","protected":false},"excerpt":{"rendered":"

This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless. 1. Comic Books My brother and I had an extensive collection of comic books when we were growing up.\u00a0 We even owned two (two!) mint editions of Conan the Barbarian number 1.\u00a0 […]<\/p>\n","protected":false},"author":16,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[7,37,63,29],"tags":[],"class_list":["post-11527","post","type-post","status-publish","format-standard","hentry","category-intellectual-property-law","category-popular-culture-and-law","category-sports-law","category-tort-law","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/11527","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/16"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=11527"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/11527\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=11527"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=11527"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=11527"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}