For a while now, we've discussed how your children's toys are quickly becoming the latest and greatest privacy threat courtesy of cryptic or half-cooked privacy policies and the treatment of device security as an afterthought; rather part and parcel now for the privacy dumpster fire that is the internet of not-so-smart things era. Numerous privacy groups have complained that smart Barbies and other toys not only now hoover up and monetize childrens' prattle, but leave the door open to the devices' being used nefariously by third parties.
The problems culminated in a lawsuit last December here in the States against Genesis Toys, maker of "smart" toys like the My Friend Cayla doll and the i-Que Intelligent Robot. The lawsuit accuses the company of violating COPPA (the Childrens' Online Privacy Protection Act of 1998) by failing to adequately inform parents that their kids' conversations and personal data collected by the toys are being shipped off to servers and third-party companies. The privacy policy for the toys does warn users that companies like Nuance Communications, also a government defense contractor, will receive this data for analysis:
"We may use the information that we collect for our internal purposes to develop, tune, enhance, and improve our products and services, and for advertising and marketing consistent with this Privacy Policy." It continues, “If you are under 18 or otherwise would be required to have parent or guardian consent to share information with Nuance, you should not send any information about yourself to us."
The lawsuit alleges the toys are violating COPPA because they're marketed to "ages 4 and up" and being mostly used by kids under age 18. Under COPPA, companies gathering kids' data have to provide notice to, and obtain consent from parents regarding data collection. They also have to provide parents tools to access, review and delete this data if wanted, as well as the parental ability to dictate that the data can be collected, but not shared with third parties. The complaint suggests neither Nuance or Genesis Toys are doing any of this.
But Genesis is also under fire for the fact that these toys just aren't all that secure. A report by the Norwegian Consumer Council (pdf) found that a lot of the data being transmitted by these toys is done so via vanilla, unencrypted HTTP connections that could be subject to man-in-the-middle attacks.
While Genesis faces a lawsuit here in the States, the FTC has yet to act against the company. Overseas however, German regulators are taking a different tack and urging parents to destroy the data-collecting dolls entirely:
"An official watchdog in Germany has told parents to destroy a talking doll called Cayla because its smart technology can reveal personal data. The warning was issued by the Federal Network Agency (Bundesnetzagentur), which oversees telecommunications.
Researchers say hackers can use an unsecure bluetooth device embedded in the toy to listen and talk to the child playing with it.
As it stands, German regulators say that a bluetooth-enabled device could connect to Cayla's speaker and microphone system within a radius of 33 feet. As a result, the doll is being effectively treated as a "concealed transmitting device," illegal under an article in German telecom law. A spokesman for the Federal Network Agency said it doesn't really matter what shape the device took; "it could be an ashtray or fire alarm" and would still be illegal. While demanding destruction of the dolls may be overkill, it's just another example of how privacy and security apathy continue to haunt the IoT space.
While we cover a lot of silly intellectual property disputes here, none has the potential to upend our society into a circus of hilarious litigious stupidity as much as publicity rights do. This barely-arrived form of intellectual property has been the star of all kinds of legal insanity, with one needing only to note its use by such upstanding denizens of our reality as Lindsay Lohan and the brother of Pablo Escobar. But I have to admit I had reserved a special place in my humor-heart for Harris Faulkner, the Fox News anchor that sued toy-maker Hasbro for making a a hamster figurine that shared her name. Because the sharing of a name isn't sufficient to arise to a publicity rights violation, the IRL-non-hamster-Faulkner had to claim that the ficticious-hamster-Faulkner also borrowed from her physical likeness, an argument which her legal team actually made. As a reminder, here are images of both.
Just to be clear, one of the depicted is an African-American female news anchor, while the other one is a pale-furred hamster with what appears to be a melted turd on its head. Hasbro pointed this out in its response to Faulkner's suit. I just want to hammer this point home: Hasbro had to point to the differences between a human female news anchor and a cartoon hamster in a legal filing before a very real court of these here United States. Because of publicity rights. If your head hasn't hit the desk in frustration yet, don't worry, because the two sides of this lawsuit have settled and Hasbro has agreed to stop producing the toy hamster.
The judge set up future fact-finding about children's opinions about the toy hamster and whether there was real confusion in the marketplace, but that won't happen due to the settlement.
No terms have been released by the parties, but in a joint statement, they say, "The ‘Harris Faulkner’ toy is no longer manufactured or sold by Hasbro. However, since there still may be ‘Harris Faulkner’ toys or packaging with the ‘Harris Faulkner’ name in the stream of commerce, Ms. Faulkner reiterates that she has not endorsed or approved this product."
Now, it certainly sounds like Hasbro decided that the legal action brought against it by IRL-Faulkner was entirely too much of a pain in its corporate ass compared with whatever revenue was being generated by hamster-Faulkner. But just the fact that this wasn't laughed immediately out of court is a canary in the mine of our sanity when it comes to publicity rights. This will only get worse, I fear, particularly in a country where the cult of celebrity grows at a pace that should terrify us all.
One of the more epic IP battles has come to an end. Mattel (Barbie) and MGA Entertainment (Bratz), have spent most of a decade in various courtrooms hashing out the ultra-serious question about which of these companies is entitled to the Bratz millions.
Long story short, a former Mattel employee left the company and crafted one of the first serious threats to Barbie's dominance, the Bratz dolls. Mattel, of course, was none too happy because the designer was still employed by Mattel when he came up with the idea. Mattel felt it owned the idea and sued the designer in an effort to make that a reality. From that point on it went from bad to worse to farcical. At one point, the court ordered MGA to turn over all future plans for the Bratz line... which was then reversed... which was reversed by a lower court... which was re-reversed by the original court. This led to counterclaims flying from both directions and the last we had heard, Mattel, which had originally filed the suit, was being hit with a judgment for $309 million in damages, including MGA's court fees. Adding that together with Mattel's legal expenses, and this fight over dolls put Mattel on the hook for nearly $700 million.
But MGA gets the last laugh. The Ninth Circuit left untouched $137 million in attorney fees and costs awarded to MGA for defending against Mattel's copyright claims.
Yes, the old truism (that I made up right now) "The only true winner in our legal system is MGA's lawyers" is proven once again in this case specifically. MGA won't be collecting any damages but at least its legal team lives on to fight another day -- possibly tomorrow, from the sound of its sore winner statement:
CEO Isaac Larian promised to retry the company's trade secret claims to a new jury. "We are confident that when the second jury hears about Mattel's sneaking into our showrooms and egregious theft of scores of our secrets over the years, they will be even more appalled than the first jury and award MGA even greater damages," he said in the statement.
Mattel has fired back with about the only silver lining retort available after spending nearly 8 years in court: the statute of limitations. The court basically agrees with Mattel's half-defiant, half-white flag statement, ruling that MGA's counterclaim (the one that had originally awarded it $170 million in damages) was time-barred and by no means "compulsory."
This hasn't stopped MGA from proudly declaring this "windfall" (which will all be going right back in its lawyers' pockets) to be the "largest fee and cost award in a copyright infringement case in US history." True, it's better than coming out of the battle stuck with the legal bill, but this misplaced joie de vivre makes it seem as though MGA will be presenting the award to Skadden, Arps, Slate, Meagher & Flom in the form of an oversized novelty check in front of gathered members of the sympathetic press and assorted minor local politicians.
Every parent wants to encourage their kid's natural interests, but there are a ton of other influences in the lives of little kids -- like toy makers and advertisers. It can be difficult to find purely educational toys that aren't trying to peddle a bunch of other stuff. For parents of little girls, the toy aisles seem particularly loaded with questionable themes. Here are just a few examples.
Wow. For years, we've been following the legal battle between toy giant Mattel and toy upstart MGA concerning the ownership of Bratz dolls -- the first dolls in years to seriously compete with Mattel's classic Barbie doll. If you haven't been following it, a guy who worked for Mattel came up with the idea for the Bratz dolls. At Mattel he was not involved in designing dolls, and he claims that he did all the work in his spare time, not on company time. He then left and went to MGA, which agreed to make the Bratz dolls, which quickly became a huge success story. Mattel claimed that, under the guy's contractual agreement with Mattel, anything he invented belonged to them. The original district court ruling sided with Mattel and the judge (amazingly) ordered that Mattel should get all Bratz dolls including future plans for dolls. That made absolutely no sense to us. At best, if the determination was that the original designs were Mattel's, the company should get access to the original designs, and maybe some early dolls. But everything after that had nothing, whatsoever, to do with Mattel.
Thankfully, Judge Kozinski on the 9th Circuit came to the rescue and wrote a fantastic ruling explaining all of this to the district court, and sending the case back for a new trial. As part of that, MGA also filed some counterclaims against Mattel, including the claim that Mattel illegally spied on MGA and copied trade secrets from the company through questionable means. When these counterclaims were filed, I actually suggested that it was silly and distracting from the larger point... which I still stand by.
To summarize: in the course of a few short years, Mattel went from losing in the marketplace to MGA, to winning a court case that gave it total control over the competing product... to now not having control and having to pay MGA potentially millions.
Of course, this isn't over yet. Mattel has already asked the court for a brand new trial, and if that doesn't work, it says it's going to appeal the case, even if some "industry analysts" are apparently telling Mattel the company should just drop it. I have a feeling we haven't yet seen the end of this case, however.
It looks like toymaker MGA has decided that if the momentum is turning in its ongoing legal fight with competitor Mattel, it might as well go all in. As you may recall, Mattel had sued MGA over its (extraordinarily successful) Bratz lines of dolls, because the designer who came up with the concept had done so while working at Mattel. This resulted in an amazingly broad ruling against MGA that required it to basically turn over everything having to do with Bratz dolls, including future plans, to Mattel. This made no sense. If Mattel was to get the rights to anything from MGA, it should have only been the original expression if they were actually produced under the Mattel employment contract (a point of dispute). Thankfully, the appeals court realized what a terrible ruling this was, and rejected most of it.
With momentum moving to MGA, the company has now filed headline-grabbing counterclaims against Mattel, concerning revelations, supposedly unearthed during depositions for the case, of widespread and potentially illegal corporate espionage done by Mattel on MGA and many other toy companies, including setting up fake personas so that people working for Mattel could get into toy showcases from competitors that were closely guarded secrets.
While it does make for a good story, it's not entirely clear what this really has to do with the case at hand. Corporate espionage happens all the time, as competitors try to get a leg up on one another. It seems like a bit of a tangent for MGA to even bother to bring this up now. Why not just focus on the key issue of retaining the rights to the lucrative Bratz dolls?
We've been following a lawsuit over Bratz dolls for a few years now. It involved a guy who worked at Mattel (not in a position designing dolls). While there, he had an idea for a new line of dolls, and eventually negotiated a deal to create those dolls for competitor MGA. The new dolls became The Bratz, one of the few super successful doll lines to challenge the success of Barbie dolls. Somewhere along the line, Mattel realized that the guy had worked at Mattel, and claimed that his employment agreement meant Mattel owned pretty much all rights to Bratz dolls, and that MGA owed Mattel a billion dollars. A court sided with Mattel and didn't just say that MGA and Bratz infringed, but effectively handed over all rights to Bratz dolls -- including future plans. This made absolutely no sense to us. At the very least, if the court found that Mattel owned the rights to the original design, at most Mattel should have only been able to get damages for those original designs. Giving them rights to later designs makes no sense at all. MGA appealed noting that giving Mattel all of its plans, as demanded, would result in "devastating and irreversible consequences." After sounding skeptical late last year, Judge Kozinski in the 9th circuit has now soundly rejected most of the lower court ruling (pdf).
The ruling itself is a really good read, especially if you're interested in the difference between ideas and expression, and making sure that copyright only covers the copyrightable part of an expression. A common misconception is that copyright covers an entire work. In some cases, that's not true. Only parts of a work may get copyright protection:
Among the notable parts, the judge is troubled by the lower courts ruling that Bryant's design work that was done after hours automatically is given to Mattel. As he notes, the employment agreement says inventions that are developed while employed belong to Mattel -- and the definition of inventions does not include "ideas." And, since IP system defenders are always quick to point out that inventions and ideas are not the same thing, the judge notes that it's not at all clear that the employment agreement covers the idea of the Bratz dolls. At the very least, the court says the lower court shouldn't have ruled on summary judgment that the idea of Bratz dolls automatically belonged to Mattel. The court also noted that the terms of the employment agreement were ambiguous, such that it wasn't at all clear or obvious if things done on personal time were covered by the agreement.
But more interesting is the discussion of how much of the IP would belong to Mattel even if it's determined that MGA infringed. Kozinski clearly has problems with the decision to assign all current and future plans to Mattel, pointing out that this seems to be based on a misreading of the case law. He notes that the law does allow appreciation in value to go to the rightful owner, but mainly if that appreciation in value is due to external factors. He finds it quite troubling that Mattel should be given all of the value created through MGA's hard work:
Even assuming that MGA
took some ideas wrongfully, it added tremendous value by
turning the ideas into products and, eventually, a popular and
highly profitable brand. The value added by MGA's hard
work and creativity dwarfs the value of the original ideas Bryant
brought with him, even recognizing the significance of
those ideas....
It is not equitable to transfer this billion dollar brand--
the value of which is overwhelmingly the result of MGA's
legitimate efforts--because it may have started with two misappropriated
names. The district court's imposition of a constructive
trust forcing MGA to hand over its sweat equity was
an abuse of discretion and must be vacated.
The next part highlights that just because there were similarities between the original ideas and the Bratz dolls, it doesn't mean Mattel should get all ownership. If it is determined that Mattel holds the copyright (again, still somewhat in dispute), it should only be limited to the parts of the dolls that are covered by the copyright. Here's where the narrow protections of copyright law come into play:
In order to determine the scope of protection for the
sculpt, we must first filter out any unprotectable elements.
Producing small plastic dolls that resemble young females is
a staple of the fashion doll market. To this basic concept, the
Bratz dolls add exaggerated features, such as an oversized
head and feet. But many fashion dolls have exaggerated
features--take the oversized heads of the Blythe dolls and My
Scene Barbies as examples. Moreover, women have often
been depicted with exaggerated proportions similar to those of
the Bratz dolls--from Betty Boop to characters in Japanese
anime and Steve Madden ads. The concept of depicting a
young, fashion-forward female with exaggerated features,
including an oversized head and feet, is therefore unoriginal
as well as an unprotectable idea....
It's true that there's a broad range of
expression for bodies with exaggerated features: One could
make a fashion doll with a large nose instead of a small one,
or a potbelly instead of a narrow waist. But there's not a big
market for fashion dolls that look like Patty and Selma Bouvier.
Little girls buy fashion dolls with idealized proportions
--which means slightly larger heads, eyes and lips; slightly
smaller noses and waists; and slightly longer limbs than those
that appear routinely in nature. But these features can be
exaggerated only so much: Make the head too large or the
waist too small and the doll becomes freakish, not idealized.
....
The
only unprotectable elements the district court identified were:
(1) the dolls' resemblance to humans; (2) the presence of hair,
head, two eyes and other human features; (3) human clothes,
shoes and accessories; (4) age, race, ethnicity and "urban" or
"rural" appearances; (5) standard features relative to others
(like a thin body); and (6) other standard treatments of the
subject matter. And it reasoned that the doll's
"[p]articularized, synergistic compilation and expression of
the human form and anatomy that expresses a unique style
and conveys a distinct look or attitude" is protectable, along
with the doll fashions that expressed an "aggressive, contemporary,
youthful style." But Mattel can't claim a monopoly
over fashion dolls with a bratty look or attitude, or dolls sporting
trendy clothing--these are all unprotectable ideas....
This error was significant. Although substantial similarity
was the appropriate standard, a finding of substantial
similarity between two works can't be based on similarities in
unprotectable elements. When works of art
share an idea, they'll often be "similar" in the layman's sense
of the term. For example, the stuffed, cuddly dinosaurs... were
similar in that they were all stuffed, cuddly dinosaurs--but
that's not the sort of similarity we look for in copyright law....
MGA's Bratz dolls can't be considered substantially
similar to Bryant's preliminary sketches simply because the
dolls and sketches depict young, stylish girls with big heads
and an attitude. Yet this appears to be how the district court
reasoned
When we wrote about this case earlier, it kicked off quite a discussion. Many people insisted that because Bryant designed the dolls while employed by Mattel, Mattel easily deserved all of the benefits accrued by MGA. It's great to see Kozinski point out that this is not true, and recognize that there's a big difference between ideas, expression and execution, as well as highlighting the difference between copyright covering an entire product and just the protectable parts of a product. While one would hope all judges would understand this, clearly, many do not.
We were pretty shocked when a judge ordered doll maker MGA to hand over pretty much everything having to do with Bratz dolls to Mattel, the maker of Barbie -- one of the key products Bratz competes against. While some of the facts are disputed by various parties, it does seem pretty clear that a Mattel designer was working on the concept of Bratz and then went to MGA to make the dolls instead. Mattel claims that it owns the entire concept because its contract with the designer included all rights to things he worked on while under their employ. Even if you accept all that, it seemed to go too far to not just provide monetary payments and/or an injunction, but to tell MGA to hand over the entire line of dolls including future plans for the dolls. That seems to go well beyond the scope of what's reasonable -- and it seems like the appeals court might agree. It has lifted the original deadline for when MGA had to transfer stuff over to Mattel and seems to be considering whether itself goes too far, saying that handing all of that over to Mattel seemed "draconian."
Even if we grant that the designer created the dolls while he worked at Mattel, it takes more than just an idea to be successful. Yet this ruling seems to put the entire value of not just the Bratz line of dolls, but every forward thinking innovation in the Bratz line, into that single idea. That's going way too far. Sure, perhaps there should be some sort of sanctions or punishment, but MGA did a lot more than just see this idea, snap its fingers and have a success on its hands. The execution was what made it work, and it seems silly to ignore all of that and assume that the entire value is in the idea -- and everything else needs to be handed over because the guy had the idea while still at Mattel.
