Posts by Steve Smith

A Tale of Two Tents: Functionality in Utility Patents, Design Patents and Trade Dress

The problem you have as a lawyer is that you start to see the “law” in everything you do, including those things you do for fun.

I backpack. And I am just a tad overweight, which I means I have a few extra pounds to lug around the woods for 10 miles at a time. While a more sensible man might look to simply lose those extra pounds, however, I have opted instead to eat more cookies and look to lower the weight of my pack.

The easiest way to lower pack weight is to lower the weight of one or all of the “big three” — the pack itself, the sleeping bag or the tent. So, before every trip, I spend hours and hours researching the latest in ultra lightweight gear, focusing most intensely on these three categories of backpacking equipment. This would seemingly have nothing at all to do with the law.

But then, enter the tents. Continue reading the full story . . . »


Attention all Kids: You Better Stock Up on Your M-Rated Video Games While You Still Can

On Monday, June 27, 2011, the United States Supreme Court struck down the California video game law on First Amendment grounds . . . barely.

Most of the news reports about the decision called it a 7-2 decision in favor of the First Amendment rights of minors to purchase whatever violent video game they want. But those reports have it wrong. Yes, the justices voted 7-2 to strike down the law. But while the news reports made it seem like a completely lopsided knockout, they missed the fact that those justices who voted to strike down the law were split 5-2 on the substantive reasons for doing so.

Let’s back up and remember what the case is about and why it is important to the entertainment industry and to anyone who values First Amendment protection for (even bad) artistic expression. Continue reading the full story . . . »

In the Next Edition, Huckleberry Finn Will Say That 2 + 2 = 5

As a fellow member of the Law Law Land blogging team, it may be wholly inappropriate for me to comment on Dan Nabel’s recent post “Billions of Bilious Blue Blistering Bowdlerizers! (And What Can Be Done About Them).” [Ed. Note: Nope, not inappropriate at all, Steve.] But when I read about publishing house NewSouth Books’ expurgatation of the word “nigger” from Huckleberry Finn, I could not but help think about Winston Smith, the protagonist of George Orwell’s dystopian novel, 1984. (Law Law Land: come for the legal analysis, stay for the literary exegesis!)

For those who have not read 1984 or who have forgotten it, allow me to explain. In 1984, Winston Smith is employed by the “Ministry of Truth,” which is a branch of the oligarchical, dictatorial, totalitarian, badsoundingadjective-ial, scaryword-ian government of Oceania. He works at the Ministry as an editor in the “historical revisionism” office, where his job consists of editing previously published works to replace true accounts of history with new, false histories intended to support the existing status quo (nerds might call this “retconning”). When he is done with the original document, he is required to drop it down the “Memory Hole,” an incinerator that is connected by a tube to his desk. The only past that may (and can) exist is a past that corresponds with the Party line. [Ever wondered about the distinction between “may” and “can”? Orwell dramatically demonstrates the difference in 1984. It is not that one alternative is permitted and one is not (i.e., may). Rather, it is that there is no alternative. “True” history is not even possible. History “can” be only as the Ministry says.] Those who respectfully disagree are executed, at which point it becomes Winston’s job to delete all references to them from the written record, so that no one can point to any evidence of the offenders ever having existed at all.

Which brings me to NewSouth Books’ version of The Adventures of Huckleberry Finn. Mark Twain’s masterpiece is so in large part because of its history. This novel could not be written today. And, lucky for us, it was not written today. It was written in 1884. (Coincidentally, 100 years before the year — not the book — 1984.) Although the book is set in the Antebellum Era South, Twain was writing it years after the Civil War and just as Reconstruction was coming to an end. The book brutally satirizes the Old South and the sensibilities of its citizens. Twain portrays the stereotypical, slave owning southerners as buffoons. And he does that in large part through his unmatched use of Southern dialect. At the time, this dialect commonly used the word “nigger.” Twain used the word (in conjunction with the hundreds of other “Southern” words and phrases interspersed throughout the book) both to lend his characters a sense of authenticity and to make a sharp point — that the Old South’s view of slaves and slavery was immoral and ignorant. Continue reading the full story . . . »

Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect

I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011. Continue reading the full story . . . »

Inspiration Is Not Infringement

I often receive calls from potential clients that start something like this: “I wrote a script about Story X. I read yesterday in The Hollywood Reporter that Studio Y announced that it is coming out with a movie that is based on Story X. Should I sue them for infringement?” Even if the stories really are very similar, I often answer “no.” The potential clients are incredulous. “What do you mean? It is the exact same story!” That is when I explain the difference between inspiration and infringement. Continue reading the full story . . . »

Modern Family and the Lincoln-Douglas Debates

On Wednesday of last week, I engaged in two seemingly disparate acts that I only later realized were directly connected to each other. At 3:00 p.m., during work (sorry, Management Committee), I read the just-released legal opinion in Perry v. Schwarzenegger, which held that California’s Proposition 8 outlawing same-sex marriage was unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Then, at 9:00 p.m., at home, I watched a rerun of Modern Family.

I had never seen the show before and did not intend to watch it. But I got home late with a McDonald’s extra value meal in hand, sat down on the couch, turned on the tube, surfed the channels and, without any destination in mind, stopped on Modern Family. I had heard that it was a good show and decided to see for myself. Watching the show, I did not have any deep thoughts, legal or otherwise. I was in a high-fat, high-carb-induced stupor. I did notice that the characters included a same-sex couple. But mostly I just thought the show was very funny.

Two hours later I was reading in bed, when I realized that I could not remember anything from the last two pages I had supposedly just read. I was distracted. I was thinking about Modern Family…and then I was thinking of Perry…and then I realized that the television show and the legal opinion were making the same point. Continue reading the full story . . . »