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.
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She’s got a number one, chart-topping single. She’s currently selling out stadium concerts, and has an increasingly popular Facebook page. She gives Justin Bieber a run for his money in terms of screaming, adoring fans. Her name is Hatsune Miku, and she’s taken the Japanese music scene by storm. She’s even beginning to develop an international following, and has now set her sights on the U.S. (parents, watch your preteens). She’s a record company’s dream: she never whines or complains about underreported royalties, and she never cancels her tours to check into rehab.

Oh, and one more thing — she isn’t real.

I don’t mean fictional like Hannah Montana. Or a poseur, like, well, Hannah Montana (err, that’s Miley Cyrus, of course). I mean she really, truly isn’t human.
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[Ed. Note: Last Monday, we brought you Part 1 of 2 of this month’s Facebook series, in which Dan Nabel walked us through some of the ethical pitfalls for lawyers litigating in a socially-networked world. Today, Rachel Wilkes wraps up our mini-series by giving you non-lawyers your due, explaining just how “private” your “private information” is once you move from the Facebook Wall to the courthouse steps. Preview: looks like everyone has yet another reason (besides the obvious) to move to California.]

A day in the life of an avid Facebooker might look something like the following. (This is what I hear, anyway. Not speaking from personal experience. At all. Ahem.): Get up. Eat breakfast. Post to Facebook about your breakfast. Drive to work. Post to Facebook about the horrible traffic in L.A. Do some work. Do some work on your farm on FarmVille.* Go to happy hour with co-workers. Post happy hour photos on Facebook… You get the idea.

All of a sudden, your 500 closest friends (or people you haven’t seen since elementary school) know every gory detail about your life. But that’s OK, because you adjusted your privacy settings so only your “friends” can see your profile details, and you don’t mind sharing those details with all of them. So it’s all still considered “private” vis-à-vis the rest of the world….right?

The answer to that may depend on which court is deciding.
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Last week, Bloomberg’s Lee Pacchia interviewed Law Law Land’s Steve Smith about the Supreme Court case of Schwarzenegger v. Entertainment Merchants Association, which will decide whether a California law barring the sale of violent video games to minors violates the First Amendment. Steve’s views on the subject, of course, are no secret. But we think his podcast makes
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[Ed. Note: After our popular post about the legal issues surroundingThe Social Network ran last month, we were flooded — flooded, I say! — with requests from our readers for follow-up. “Your analysis of the legal questions raised by the Facebook movie was brilliant, incisive, and hilarious!” raved one highly-representative e-mailer. “But can’t you share the same kind of sage wisdom about legal issues surrounding Facebook itself?” Okay, that never happened. But Aaron Moss’s post did get us thinking about all the funny little legal quirks that have emerged in the post-Facebook world, so we figured maybe, just maybe, somebody wanted to write that email above but was just too shy to pull the trigger. Don’t worry, Nonexistent Mystery Reader, we’ve got you covered! Today, Dan Nabel examines ethical issues lawyers must face when dealing with the role of Facebook and other social media in their own cases. Next Monday, Rachel Wilkes will educate the non-lawyers about what they should keep in mind for themselves when logging onto Facebook for the seventeenth time of the day.]

Once upon a time, a legal ethics professor told a great story on the first day of class. As a young lawyer, he represented a woman in a personal injury case who had suffered a serious injury as a result of a car accident. At trial, she hobbled to the witness stand on crutches. She testified, tearfully, about the great pain she endured each day from walking even the shortest of distances. She testified how the accident had truly changed her life. After less than thirty minutes on the stand, the jury was practically in tears. The professor left the court house that day confident that when his client finished her testimony on the following day, victory would be assured.

But before appearing in court the next morning, the professor went to exercise at the Santa Monica stairs off Adelaide drive. And of course, he arrived to find his client there. Running. Smiling. Without crutches. Happy as a clam. Maybe even thinking about the perjurious testimony she would give later that morning with the professor’s help.

(This professor waited until the end of the semester to tell his class what he did. Don’t worry, I will tell you at the end of this article).
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There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year.
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I thought I was breaking the law. Okay, it was breaking the law in the dorkiest way possible, but still, breaking the law is always kind of cool (wait, I’m a lawyer — am I allowed to say that?). After hours of research, I put my brand new first generation iPhone into the hands of some rogue programming genius with a vitamin D deficiency. The plan was to jailbreak and unlock my iPhone. In simple terms, jailbreaking allows you to modify the iPhone operating system in ways that Apple doesn’t allow. At the time, the App Store was just a gleam in Steve Jobs’ eye; jailbreaking would enable me to download games and other apps iPhone owners now take for granted. But I was more interested in unlocking the iPhone, which would allow me to run the phone on T-Mobile instead of AT&T (and avoid AT&T’s ungodly rates). Somehow I wasn’t deterred by the dozens of horror stories online about failed jailbreaking attempts, stories about “bricked” iPhones that never worked again. I certainly wasn’t going to drop another $400 on a new iPhone, so I knew I only had one shot at breaking out of jail. I downloaded the program and, like magic, I was playing Super Mario Bros. 3 in a matter of minutes — never a doubt.
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I love old family movies. You know, those frenetic-yet-nostalgic, motion-sickness-inducing Super 8 films from your childhood? (Believe you me, the cinéma vérité, shaky-cam directors who are currently in vogue have nothing on my dad…) Now that my family’s home movie library has been converted to DVD, there are endless opportunities to force my husband to watch me and my mom ride a camel at “Jungle Habitat” (can I get a shout-out from those of you who grew up in the NY/New Jersey area in the mid-1970’s?) or the fourth of July picnic where the sparkler burned my hand, or — one of my personal favorites — my five year-old self singing “On the Good Ship Lollipop” and dancing the Charleston in the first grade holiday play (trust me, its cuter than it sounds).

And so it was with great anticipation that I prepared our video camera for my seven year-old’s musical theater debut in her summer camp’s production of Grease: The G-Rated Version (no swearing, no teen pregnancy, no smoking, no men rubbing cellophane on their crotches…)

But then we got the letter.
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Documentary filmmaking is an intellectual property minefield. The entire undertaking is imperiled by the potential for copyright and trademark infringement. Then there are numerous state law pitfalls such as violating someone’s right of publicity or invading someone’s privacy.

And until recently, documentarians could also run afoul of the Digital Millennium Copyright Act (DMCA) for circumventing the digital locks on DVDs that prevent copying in order to access and incorporate high-quality film clips into their documentaries.

Last week, the Copyright Office made headlines by expressly legalizing the jailbreaking of iPhones. But over the excitement generated by 1337 hax0rs and tech geeks everywhere, you may not have heard the quiet sigh of relief emanating from documentary filmmakers everywhere, as the Copyright Office also finally granted a DMCA exception for documentary filmmaking. (Other sounds that may have resulted from the Copyright Office’s ruling: tittering giggles over the fact that one of the new regulations applies to something called a dongle.)
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You may recently have felt a great disturbance in The Force. It wasn’t the Palm Springs earthquake, or Lindsay Lohan’s courtroom meltdown. Nope, it was the “Star Wars Smackdown” instigated by George Lucas a few weeks ago.

Lucas is looking to “force” (I know, I know…) Hong Kong based laser manufacturer Wicked Lasers to change the design of a high powered laser product he feels looks too much like the famous (but fictional) lightsaber from his landmark films. His company, Lucasfilm Ltd., hassent a cease-and-desist letter threatening legal action if the laser company refuses to make appropriate alterations or remove the product from the market outright. Lucas apparently perceives the laser as a copyright threat; according to CNN, the letter challenges that “[i]t is apparent from the design of the Pro Arctic Laser that it was intended to resemble the hilts of our lightsaber swords which are protected by copyright.”
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