Ain’t Dere No More

New Orleans is full of old companies and brand names that simply ain’t dere no more. Can someone besides the original company make the old brand come back? Sometimes, the answer is yes, other times, the answer is no. It’s a question of trademark law (click here to read about the difference between patent, trademark, and copyright law), and, more specifically a question of trademark abandonment.

ain't dere no more

This podcast from Planet Money on NPR discusses what happens when one man decides to try to bring HYDROX cookies back.

The podcast interviews Ellia Kassoff, the CEO of a company that, among other things, brings back old brands. Before Ellia tried to bring back HYDROX, he wanted to secure trademark rights for the HYDROX brand. However, the HYDROX brand name was still registered, through a series of mergers and acquisitions, by Kellog’s. So, before Ellia could register the HYDROX trademark, he needed to ask the United States Patent and Trademark Office to “cancel” the existing registration. The formal way for him to do that was to file a “Petition for Cancellation” beginning trademark proceedings, similar to a lawsuit, but in the Trademark Trial and Appeal Board (for you lawyers, that’s a non Article III court that generally follows the FRCP). That’s exactly what he did, and he won the fight (although, after looking at the USPTO filings, it’s not really fair to call it a “fight,” as Kellog’s didn’t actually try to stop Ellia).

If you’re interested, you can find a full record of the Trademark Trial and Appeal Board proceedings or just the petition for trademark cancellation, which contains the letter from Kellog’s discussed in the podcast.

And, of course, any post about things that ain’t dere no more wouldn’t be complete without Benny Grunch and the Bunch.

What is Bitcoin – Part 2 – Practical Benefits

This is Part 2 of a Series on Bitcoin. Click to read Part 1 – What is Bitcoin?, where I discuss what Bitcoin is and give a basic overview of how it works. This post assumes some basic familiarity with Bitcoin and discusses why I believe Bitcoin has the potential to be a disruptive technology, giving you an idea about the practical benefits of bitcoin. But first, to give you a summary, Bitcoin is a fast, secure, and (potentially) private way to store and transfer wealth outside of traditional banking systems, anywhere in the world.

Bitcoin’s Security Helps Prevent Fraud

First, I’ll let Tom Hanks, portraying FBI agent Carl Hanratty in the 2002 movie, Catch Me If You Can, explain check fraud.

Because Bitcoin uses cryptography to verify transactions, it’s extremely difficult (if not impossible) to create “fake” transactions. Certainly, Bitcoin eliminates the possibility of faking a transaction by simply seeing a copy of someone’s check or credit card. So, in a real way, Bitcoin eliminates check and credit card fraud as we currently know it.

Frank Abagnale would have used different cons today.

Bitcoin’s Low Fees Encourage Growth

Although personal checking accounts are generally free, we all know one problem with checks is that they can bounce. Funds might not be there. This problem is often solved by using certified checks (checks issued by a bank that guarantees that the money will be available), wire transfers, credit card transactions, or other consumer services such as Paypal. However, certified checks cost about $10, wire transfers can cost $30, and credit card processors and Paypal take upwards of 3 percent of a transaction. For many transactions, these fees are prohibitive (or, at the very least, restrictive).

Although I am not endorsing any specific provider, Bitpay is one company offering Bitcoin transaction processing services. Just to give you an example, they offer to conduct Bitcoin transactions for a 1 percent fee. LocalBitcoins is a company that facilitates person-to-person Bitcoin transactions, and they suggest that Bitcoin transaction fees are between 0.0010 and 0.0001 Bitcoins per transaction, depending on the current transaction volume (that’s about 6 to 60 cents, based on current / USD exchange rates).

Bitcoin’s Pseudonymity Helps Preserve Online Privacy

With credit card transactions, purchasers have to submit a lot of personal information online, just to validate a credit card, even if the seller isn’t delivering any physical goods. In contrast, Bitcoin is like cash. You don’t need to give away your personal information to a third party just to make a payment for digital goods or services (e.g., purchasing a license for some consumer software, renting movie online, or paying for a subscription for a website). With more and more companies being hacked each year, who should you really trust with your personal information? Bitcoin can help with that.

Bitcoin can be used as a payment system

Given Bitcoin’s low fees, pseudonymity, and its resistance to traditional fraud techniques, Bitcoin has the potential to replace credit cards and Paypal for accepting payments. And, the list of companies that accept Bitcoin continues to grow and grow and grow.

Bitcoin can be used to store and transfer wealth

Just like many people use gold as a store of wealth, so too do people think about bitcoin as a way of storing wealth. In other words, fiat currency like the U.S. Dollar, the Japanese Yen, or the Brazilian Real, are all subject to inflation and deflation. Central banks can produce more currency, increasing the money supply, and decreasing their respective values over time. In contrast, there’s only so much gold. Yes, we mine more gold. But, in all of human history, only about 165,000 tons of gold have been mined, and we’re only mining about 2500 tons a year. In other words, gold can be exchanged for goods and services, and because there’s only so much gold, over time, its value doesn’t change much (at least in comparison to fiat money).

Just like gold, there’s only so much Bitcoin. Right now, more Bitcoins are being generated, but over time, the amount of new Bitcoins decreases (by design), eventually stopping altogether. So, just like gold, Bitcoin has the potential to be a store of wealth (with the added plus that Bitcoins can be directly transferred for goods and services, or exchanged for fiat currency).

In addition to being a store of wealth, because Bitcoin is not physical like gold, it can be used to transfer wealth. One of the reasons that Bitcoin has become popular in China is because wealthy Chinese are using Bitcoin as a way to transfer their wealth outside of China.

Bitcoin provides poor and underserved people access to financial tools

Because Bitcoin is decentralized, has low fees, and can work pretty much anywhere, Bitcoin has the potential to give the underserved access to a banking system, even if there are no banks. In countries where the poor don’t have access to banks, Bitcoin can provide a way for people to store their wealth electronically, rather than “under the mattress,” so to speak. In fact, because people in many developing countries have access to cellphones, even if they don’t have access to a banking system, they can use Bitcoin. In other words, just like cellular networks are taking hold in developing nations instead of traditional land lines, so to, could Bitcoin take hold.


While there are certainly a lot of questions about what will happen with Bitcoin, the technology shows a lot of promise. Even if you don’t adopt Bitcoin yourself, we should all understand a little bit about what it is and how it has the potential to disrupt.

What is Bitcoin?

Over the past few years, you may have seen one of many news stories about something called Bitcoin (). Here are just a few of them:

Based on what usually makes the news, you may associate Bitcoin with illicit or otherwise negative activities. But, in my view, Bitcoin has some serious potential, and it could even be a revolutionary technology. So, if you’re interested in learning a little bit more about Bitcoin, read on…

What is Bitcoin?

Bitcoin is a digital-only currency that is managed by a collective of people on the internet that can be exchanged for fiat money (e.g., Dollars, Pounds Sterling, etc.), goods, or services. In other words, it’s currency, in that you can buy things with it, but it is not the official currency of any country (and there is no corresponding paper money). Bitcoin works through a network of computers running a “distributed ledger” which record and confirm transactions using cryptography.

Let me explain a bit more.

Bitcoin is Digital

Bitcoin is “digital” in the same way that your bank account is “digital.” In other words, you can check your bank balance and transfer funds using computers and without carrying cash around. But, your bank account is not digital only because you can go to the bank and withdraw cash. However, with Bitcoin, there’s no analogous paper currency to withdraw. So, it’s digital only.

Distributed Ledger (aka the “Blockchain”)

A “distributed ledger” just means that there is a group of computers run by many different people that records Bitcoin transactions. When you write a check or use your debit card, payment processing may be handled by a number of different computers working together; but, ultimately, your bank balance is determined by a centralized system. In contrast, Bitcoin is decentralized. With Bitcoin, there is a large network of computers on which anyone can post a transaction, which is then verified as authentic and recorded on the ledger by all of the many computers which have a copy of the ledger. So it’s a distributed ledger. Using Bitcoin terminology, this ledger is called the blockchain. If you want to know a little more, the Wall Street Journal has a pretty good explanation of Blockchain technology. And, to be clear, the concept of a blockchain is not just being used for Bitcoin. The Blockchain itself is a disruptive technology.

Public Key Cryptography

Bitcoin uses public-key cryptography to verify transactions as authentic. Public key cryptography is a computer-implemented mathematical technique that (1) allows the holder of a public key to encrypt a message that can only be decoded by the holder of the private key (i.e., message encryption); and (2) allows the holder of a private key to “sign” a message so that the holder of the public key can verify that the message could only have come from the holder of the private key (i.e., message signing). Using these two concepts, two people can securely send messages back and forth. This technology has been around for years. It’s part of what allows you to conduct secure transactions on websites. It’s also what Edward Snowden used to securely communicate with reporters. However, with Bitcoin, the technology is now being used in a new way.


Bitcoin uses these techniques to verify transactions on the blockchain (i.e., Bitcoin being transferred from one address to another). Each Bitcoin address has a public key and a private key. When a computer posts a transaction to the blockchain, the private key is used to “sign” the transaction. Since the public key is known, all of the computers on the network can verify that the transaction is authentic. This feature of Bitcoin – cryptographic signatures for transactions – allows anyone to participate without necessarily trusting other people on the network.


Bitcoin is pseudonymous. Some claim that Bitcoin is anonymous, but that is not entirely true. A Bitcoin address is a series of numbers and letters associated with a Bitcoin balance on the Bitcoin blockchain (ledger). So, you might liken it to an account at a bank. However, bank accounts are generally readily associated with a person (or business), whereas with Bitcoin, anyone can create a Bitcoin address using public key cryptography.

The longer explanation is that, as stated above, Bitcoin uses public key cryptography. When users create a Bitcoin address, they create a cryptographically secure private key/public key pair. The public key is then mathematically shortened to create a Bitcoin address.

In other words, anyone can create a Bitcoin address in the privacy of their own home, without having to go to a bank. Therefore, participants don’t necessarily have to reveal their identity. But, the owner of a Bitcoin address can become known or partially known (and there are some infamous ones). This could happen where an anonymous person accepting Bitcoin as payment becomes famous (yet still anonymous). In that case, because the address is publicly known for accepting payment, it is like a pseudonym. This happened, for example, when Ross Ulbricht operated an underground online marketplace known as the Silk Road. This could also happen if the owner of the Bitcoin address uses the address in a way that reveals his or her identity (for example, by buying something using Bitcoin from a vendor that also knows the payer’s identity).


At first, Bitcoin might not look like much. But, is has the potential to be a seriously disruptive technology. Because Bitcoin has the potential to be a very fast and secure way to transfer money, there are many opportunities for Bitcoin in developing or unstable economies. Also, Blockchain technology doesn’t necessarily need to be used for Bitcoin – and this technology could be used, for example, as a replacement for property records databases.

I’ll explain more about the practical benefits of Bitcoin in Part 2 of this post. But, for now, I’ll leave you with this.

and this

Practical Tips in view of the Equation Group Hack

Last week, in a series of events seemingly a mix between Mr. Robot and Austin Powers, something fairly unusual happened that could potentially cause security problems for many people and businesses. And, perhaps because the story is a little crazy, or possibly just because it’s hard to understand, the story hasn’t gotten the attention it deserves.

What Happened?

Put simply, it appears as though the National Security Agency (NSA) created a set of hacking tools (i.e., tools which can be used to exploit security flaws in other computer systems); and then, the NSA itself was hacked by a group calling itself the “Shadow Brokers,” who is now attempting to sell the complete set of tools for… one million Bitcoin (at current exchange rates, over $500,000,000).


That’s a lot of money.

Wait, What Happened?

Last week, some people calling themselves the “Shadow Brokers” released onto the internet a set of hacking tools which can be used to break into a number of different types of computer systems and which bear a resemblance to previously discovered very powerful malware thought to have been associated with the NSA or otherwise “state sponsored.” They also claim that there’s more to come. I’m really not making this up. The Washington Post even reported on it.

To give you a bit of background, the secretive entity known as the “Equation Group” appears to be associated with a number of extremely sophisticated attacks which have occurred over the past 14 years. For years, many have presumed that this group is associated with (or, in fact, is, the NSA).

The release of these tools has allowed security researchers to compare this newly-leaked code with other code which has been found over the years. In examining the code, they determined that both the newly-leaked code and previously-found exploits both contain a unique implementation of a cryptographic cipher, suggesting that this new code and old exploits are both from the Equation Group.

But wait, there’s more. New revelations from Edward Snowden appear to confirm the association between these newly leaked tools and the NSA (and thus, also linking the NSA and the Equation Group).

What does this mean?

Although there is some speculation about why these tools were released, to me, that’s beside the point.

The most important takeaway from this incident is that, even though these released tools are about three years old, at least some of them actually work. Not only do they work, but they contain what are referred to by security researchers as “zero day” exploits (i.e., a tool which exploits a previously unknown security flaw, for which there is no “fix”) and related tools for a wide variety of systems, including those from Cisco, Fortigate, Topsec, and Juniper (here’s one more detailed list, and here’s another). These tools could cause a lot of damage if they get into the wrong hands. And, because the Shadow Brokers released them onto the internet, that’s exactly who will get them (or already has).

In other words, now, even poorly trained “hackers” can potentially use these tools to do serious damage. What has happened is the equivalent of giving bazookas to street gangs. And, the Shadow Brokers appear to be releasing even more. So, even if the revealed security flaws are fixed, more are likely to be revealed in the future.


What can you do about it?

There are a number of things you can do.

  1. You, or your IT staff, can apply security fixes as they become available. While this should be part of your standard operating procedure, now is as good a time as any to start doing this. And, there is some good news on this front, as Cisco, one of the targeted vendors, has released a fix.
  2. You can contact your cloud-based and software-as-a-service vendors to make sure that they are aware of the issues and are applying fixes as necessary.
  3. You can review your contracts with your vendors. One of the things that it’s possible to negotiate (and you may have negotiated) the level of care your vendor must take with your data. You might also consult with your lawyer to help review your contracts (and perhaps negotiate new ones).
  4. Another thing you can negotiate is the response to a data breach. Because security breach notification laws can impose obligations for certain kinds of security breaches, many companies negotiate who must comply with these obligations in their contracts with vendors who handle data (e.g., where software-as-a-service handles nonpublic personal information). You might also consult with your lawyer about your contracts and negotiation of new ones.
  5. You can look into obtaining insurance coverage for security breaches. And, you might also consult with your lawyer to give you advice about whether your current insurance policy, or any new policy you might consider, covers you for these risks.
  6. You can stop and reevaluate your software systems to make them harder to exploit. Many of these tools are designed to break into computer networks and extract information. Encryption of data, whether at rest or in motion), is a best practice; and, encryption that is rigorously tested and well-implemented can make it significantly harder for hackers to reach sensitive data.
  7. You can implement policies to avoid collecting or holding onto sensitive information you don’t need. If you don’t have it, they can’t steal it from you.
  8. You can train your employees to avoid inappropriate use of email. Don’t you think Sony wishes they had been more careful with their emails? Dance Like No One is Watching; Email Like It May One Day Be Read Aloud in a Deposition.

Lastly, Apple is now having an “I told you so” moment. You may recall several months ago, when Apple refused to create a “hacking tool” for the FBI to break into iPhones. One of the reasons why Apple refused was because any tool they created for the government could be stolen and released to the public. Considering that is precisely what happened here, they were right.

p.s., Here’s some more on Bitcoin:

Ripoff Report – Help Manage Online Reputation

The Internet is an amazing tool for communications, literally letting anyone publish information for others to view; and search engines like Google let the world find that information. Unfortunately, the fact that anyone can publish information on the Internet also has some downsides… Notably, it’s easy for anyone with a grudge to post misleading information about a person or business with whom they have a problem.

Ripoff Report

You may have heard stories about businesses with bad reviews online, on websites such as Yelp, Ripoff Report, or just bad reviews posted on people’s personal blogs. Websites like these give consumers the ability to post constructive criticism (and hopefully, businesses provide better service). However, sometimes reviews go from being “constructive criticism” to more than that. For example, Gimlet Media recently published Episode 40 of the Reply All podcast, which discussed how some (apparently false) negative reviews posted on Ripoff Report damaged one business.

The problem, as they detailed, was that an anonymous individual posted a highly negative review for a fledgling business, and the top Google search results for that fledgling business included the negative reviews on Many businesses have similar problems. Even though the vast majority of consumers have good experiences, the few complaints that get posted online tend to have an over-sized effect.

What is a business to to? Contact the review site to have the negative content removed? Some sites have a policy of only removing negative reviews for businesses that pay hefty subscription fees. Also, Ripoff Report apparently has a policy of never removing any reviews! So, then what/ Sue the review site? Unfortunately, Section 230 of the Communications Decency Act limits liability for providers of interactive computer services. In other words, most websites are shielded from liability for information their users post (not that this is necessarily a bad thing generally… it might be difficult to operate an internet search engine without such laws… and we all generally benefit from being able to search the world’s information on sites like Google, right?).

So, what’s the solution? What is a business with negative reviews to do? If the problem is truly a smear campaign orchestrated by a competitor, it may be possible to sue for defamation, unfair competition, or otherwise — and I recommend that you consult with your lawyer to help walk you through the options.

However, another option is to take control of your reputation online. Most simply, this means making sure that when people search for you, they find you first (and not the negative reviews). But, this also means developing enough content so that when customers search for you, most of the first page or two of the search engine results pages (SERPs) contain positive information about younot bad reviews.

How can you do this? Well, Jim, I’m a lawyer, not a Search Engine Optimization Consultant. But, here are a few tips:

  1. Optimize your Website. Most simply, this means making sure the title of your website is your company name. It’s hard for Google to know your website is about your business unless you use the name of your business a few times, and in important places. There are also a number of other things you can do to optimize your website.
  2. Control content on more than one website. For example, you might have your main website, a blog on a separate domain, Linked In, Twitter, and Facebook pages. You might even start a Youtube account, posting relevant informational videos about your business.
  3. Third party content. Get content on third party blogs (i.e., get them to write about you). Write guest posts. News articles written about your company. You can even try to get included in online directories.
  4. Get others to link to you. Another important way for Google to understand that you’re important is for Google to see others linking to you.
  5. Link to yourself. You can also help yourself. As you place more content online, make sure that all of the new content links to your other content.

But don’t take my word for it. You can read more about online reputation management here, here, and here.

We’re attorneys, not businessmen.

I am an attorney. I’m not actively involved in technology development anymore. I don’t run a technology business, nor a business that develops new technology to run its business.

Why does this matter? Well, most patent attorneys are just like me. We draft patent applications, we argue the merits of an invention with the patent office, we draft contracts and court motions. We do not, however, for the most part, develop new technology. So, what I’m really getting around to saying is… Don’t rely solely on your patent attorney on the decision of whether to file a patent.

Sure, patent attorneys can give advice (perhaps after doing a search) as to whether an invention might be patentable. But we might not have any particular insight as to whether an invention might become a huge commercial success. For a good example, I refer you to the below TED talk given by Nicholas Negroponte, who discusses a very well-written Ph.D. thesis from one of his students at the MIT Media Lab.

Here’s the whole talk.

Skip to 7:45 for the comment’s I’m referring to – or simply click this link to go straight there.

Copyright Term of What Pet Should I Get? by Dr. Seuss

So, according to the New York Times, a new, previously unpublished Dr. Seuss book originally called The Pet Shop will be published this year as What Pet Should I Get?.

What Pet Should I Get?

Because I practice copyright law, my first thought was “what’s the term of copyright for this work?” You see, figuring out how long a work remains protected by copyright can be a hard problem (incidentally, I worked on this problem in law school – and you can get an idea about what’s involved by looking at this Copyright Term Chart published by Cornell University).

For the purposes of this post, I assume that the first publication will occur in the United States. So, the copyright term for an unpublished, pseudonymous work is 120 years from the date of the work’s creation. However, the copyright term for published works lasts for the life of the author plus 70 years. The statutes just aren’t clear on which term should apply in this case. So a court would likely decide the issue (and perhaps some courts in the past have already decided the issue – but such decisions are perhaps not necessarily binding, depending on the circumstances).

Nevertheless, Dr. Seuss died in 1991, so the copyright term could end in 2061. However, Dr. Seuss is the pseudonym of Theodor Seuss Geisel, and many of his works were registered as pseudonymous works (e.g., The Cat in the Hat, copyright registration no. A00000281039, renewed January 31, 1985 as reg. no. RE0000240391, the records of which are viewable via the Copyright Catalog). So, the work could be considered an unpublished, psudonymous work, and, if so, the term could end much later (e.g., if created in 1960, the term would end in 2080, that’s 19 years later).

So, expect litigation in 2062, when people start trying to claim that the work has entered into the public domain based on the life+70 term, and the then-owners of the rights to the book claim that the creation+120 term applies.

Pinterest’s Privacy Policy

If you’re a Pinterest user, you may have recently received an email like this one, by which Pinterest is updating its users about Pinterest’s privacy policy.

privacy policy update

Why is Pinterest doing this? Well, there could be a number of reasons why. I don’t know. I don’t represent them, and I haven’t discussed it with them. I’m just speculating based on my understanding of consumer privacy issues.

First, many companies feel the need to promise their customers that they will keep their customers’ personal information private. Thus, in order to attract more users, they will present their users with a public “privacy notice” which states a policy. In other words, just like a coffee company might sell biodynamic, fair trade coffee beans, so too do some companies feel the need to be what they consider a “good corporate citizen” and be open and honest about what information they are collecting and how it’s being used.

The second reason is that some states require that companies issue a privacy policy. One of these states is California, and the Attorney General of the State of California recently released recommendations for developing a privacy policy. You should consult with your attorney and check your state’s laws.

The third reason is that privacy has become an issue for the Federal Trade Commission‘s Bureau of Consumer Protection. You see, over the past several years (and, in particular, because of the Internet), issues regarding privacy of consumer information have become a source of concern and controversy. So, the FTC has stepped in, and is slowly beginning to play a larger role in punishing poor corporate behavior regarding privacy issues.

When you think of “deceptive trade practices” you may recall “snake oil” or “patent medicine” – products which are advertised to have qualities which they do not have. That is a more traditional view of what a “deceptive trade practice” is. However, the FTC is increasingly taking the position that being dishonest about disclosure of private personal information is also a “deceptive trade practice.” So, many companies have responded to this by creating and publishing privacy policies.

In my view, the FTC is concerned with two types of practices: (a) disclosing personal information without letting consumers know about it; and (b) promising not to disclose personal information in a public privacy policy, but doing so anyway. So, it is important to consider privacy issues, to consult with your attorney in drafting a privacy policy, and to follow through with the promises made in that privacy policy.

If you are interested in learning more, you can read the FTC’s report on protecting consumer privacy, released in 2012; and, you can visit the FTC’s Privacy and Security Business Center Website.

And that’s FTC not XTC.

American Sniper Discussion

There’s been a lot of talk about Ventura v. Kyle, Captain Freedom’s Jesse Ventura’s lawsuit against Chris Kyle (AKA American Sniper). Certainly, it appears odd that a public figure like Jesse Ventura would sue a widow for such a large amount of money. But, maybe you’ll feel different if you look at some facts.

First off, I’m no expert on this case. PACER (the place you can go to get Federal court documents) has 421 docket entries for this case. It’s been heavily litigated. There’s lots of money at stake, and it certainly appears as though Chris Kyle (at first… and now his widow) have paid lots of money to their attorneys. Perhaps a publishing company is paying for the defense. I don’t know.

But, here are some details. First, Jesse Ventura sued Chris Kyle asserting claims of defamation, misappropriation, and unjust enrichment.

Essentially, Ventura’s argument was that if you (allegedly) lie to promote something, then the profits you make off of the (alleged) lie unjustly enrich you, and you are therefore not entitled to such enrichment. In my view, after reading the court opinion, the case feels more like bad business behavior than a malicious lawsuit against a widow because her deceased husband told a lie.

I think it is helpful to read a few paragraphs from the Court’s Order adopting the Jury Verdict:

American Sniper went on sale Tuesday, January 3, 2012. (Trial Tr. at 1824.) Before it went on sale, there had been approximately 3,400 preorders of the book, which the publishers considered “tremendous.” (Id. at 1819; Def. Ex. 264.) HarperCollins had not expected the book to be a best seller because Kyle was an “unknown author.” (Trial Tr. at 1819.) Chris Kyle was scheduled to do a publicity tour for the book beginning January 3. On Wednesday, January 4, he appeared on the Opie & Anthony radio show. About twenty minutes into the show, a listener called in and asked about whether Kyle had punched Ventura. (Pl. Ex. 100.) Opie and Anthony responded with enthusiasm and Kyle’s publicist, Sharon Rosenblum, agreed the show “got lively” at that point. (Trial Tr. at 1826.) She was pleased with Kyle’s performance and considered it a “hit interview.” (Id. at 1828.)

The next day, January 5, the book rose to number 21 on Amazon’s best-seller list. (Id. at 1829.) The editor, Peter Hubbard, emailed Rosenblum and others a link to a Fox News story captioned “Navy Seal Punched Out Jesse Ventura,” remarking it was “priceless.” (Id. at 1829; Pl. Ex. 102.) Rosenblum responded that Kyle had been invited to appear on Fox and Friends again to tell this story and called it “hot hot hot.” (Trial Tr. at 1830; Pl. Ex. 102.) That evening, Kyle’s interview on The O’Reilly Factor aired, which both Rosenblum and Hubbard testified was an important interview. After introducing Chris Kyle and his book, O’Reilly’s first question to Kyle was about getting in a fight with Ventura. (Trial Tr. at 1832; Pl. Ex. 103.) In other words, O’Reilly chose to lead with the Ventura story—not Kyle’s record number of kills or his fatal 2,100 yard shot.

On Friday, January 6, the day after the O’Reilly interview aired, sales rocketed and American Sniper went from number 21 to number 2 on Amazon’s best-seller list. (Trial Tr. at 1834.) The CEO of HarperCollins sent an email that day scheduling a reprint of 100,000 copies of American Sniper. (Id. at 1836–37; Pl. Ex. 315.) Hubbard responded, “Holy shit.” (Trial Tr. at 1837; Pl. Ex. 315.) Rosenblum sent out a “News Flash” on American Sniper to the HarperCollins sales team for distribution to their accounts, which linked to a Fox News story about the Ventura story and to a clip of the Opie & Anthony show in which Kyle discussed Ventura. (Trial Tr. at 1840; Pl. Ex. 295.)

By the weekend, the book was the number 1 seller on Amazon and Barnes & Noble. (Trial Tr. at 1834.) The head of sales sent an email with the subject line “Number 1 both Amazon &” that said “Thank you Mr. O’Reilly.” (Id. at 1835; Pl. Ex. 104.) Kyle was invited back onto the Opie & Anthony Show on January 10 to discuss the Ventura story further. (Trial Tr. at 1849–50; Pl. Ex. 113.) By January 11, Rosenblum described the sales of American Sniper as “astonishing.” (Trial Tr. at 1855.) By January 22, the book was number 1 on the New York Times best-seller list, where it remained for many weeks. (Pl. Ex. 126) In June 2012, the film rights were optioned by Warner Brothers, which has since filmed a movie based on the book, directed by Clint Eastwood and starring Bradley Cooper. (Trial Tr. at 99–100; Pl. Exs. 130, 134.)

At trial, Hubbard estimated American Sniper had sold 1.5 million copies to date. (Trial Tr. at 1881.) At $26.99 per book, Ventura’s counsel estimated in closing argument that HarperCollins had made approximately $40 million off American Sniper sales. (Id. at 2038.) Kyle was entitled to 15% of the revenue (after the first $10,000) (Pl. Ex. 82), which would equal over $6 million in royalties to Kyle and his Estate to date (Trial Tr. at 2038). In addition, Kyle received more than $500,000 from the Warner Brothers contract to date. (Pl. Exs. 134, 135, 355, 356.)

After two weeks of evidence and more than five full days of deliberations, the jury returned a divided verdict (with the parties’ agreement, see Fed. R. Civ. P. 48(b)) of eight to two in favor of Ventura on defamation and unjust enrichment and in favor of Kyle on appropriation. The jury awarded Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment. Given how much media attention the Ventura story garnered and how book sales sky-rocketed after select media appearances in which Kyle recounted and discussed the Ventura story, the jury’s conclusion that Kyle was unjustly enriched by his story about Ventura was supported by a preponderance of the evidence. Likewise, its award of $1,345,477.25 was a reasonable portion (approximately 25%) of Chris Kyle’s and his Estate’s total profits to date and was supported by substantial evidence.

Here’s a copy of the Order Adopting Verdict.

A jury found that Ventura did not prove the misappropriation claim, but found that Ventura had proven the defamation claim. Here’s a copy of the Jury Verdict. The jury found that Ventura was entitled to $500,000 for the defamation claim and about $1.3 million for unjust enrichment.

In the order quoted above, the court adopted the jury’s recommendation (the defamation claim was before the jury, but the jury merely recommended an award for unjust enrichment.

Kyle’s estate suggested that the Jury got it wrong, and that the court should disregard the jury verdict and issue a “Judgment as a Matter of Law.” The court denied this request. Here’s a copy of the Court’s Order.

I understand that there are some appeals pending.

Lastly, you might find this article about Ventura v. Kyle on Slate interesting. This article suggests that HarperCollins’ libel insurance will cover the defamation damages and that, even if Ventura wins his (second) lawsuit agianst HarperCollins, Kyle’s widow – and HarperCollins – will walk away from this with a lot of money.

Public Domain Day 2015

Happy New Year’s Public Domain Day 2014! The duration of copyright for a work can be very complicated. For many works, it’s the life of the author, plus 70 years. For other works, it’s 95 years from publication or 120 years from creation, whichever expires first. For lots of other works, the answer just isn’t very clear. For a simple explanation, you might look at Peter Hirtle’s duration table, and for a more complicated lesson, you might check out the Durationator (I coded the initial version of the Durationator during law school, which is patent pending).

Although how long a work remains protected may be complicated, what is pretty clear is that, in most cases, copyright expires on January 1 of the year following the expiration of copyright. So, every year, copyright scholars have a pretty good idea of what “new old” works will pass from being protected by copyright to being part of the public domain.

So, what’s coming into the public domain in the United States in 2015? Well, perhaps not a lot. You see, because of how copyright duration is calculated, no published works will pass into the public domain in the United States in 2015. However, unpublished works created by authors who died in 1944 will. Notably, Antoine de Saint-Exupéry (author of The Little Prince) and Erwin Rommel (a famous German general in WWII) both died in 1944. So, any of their unpublished personal letters or other unpublished works will no longer be protected by the copyright laws of the United States as of January 1, 2015.

However, if you live in Canada (or in some other countries), the laws are different. This post from Duke University’s Center for the Study of the Public Domain discusses the topic in detail. There are some pretty cool works coming into the public domain, if you live in Canada…