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Week in Review

By Martha Nimmer

Don't Film On Me

Unless, of course, you have a permit!

The Department of the Interior (DOI) has issued new rules for commercial filming and photography on the nation's public lands. The requirements, which go into effect on September 23rd, are "meant to align fee structures and requirements among the three DOI land management agencies. Previously, the types of commercial filming and still photography activities needing a permit varied from agency to agency." Yet what, exactly, is considered commercial filming, at least according to the DOI? Surprisingly, news gathering and documentary filmmaking are treated as commercial filming under the new rules, but, as the DOI stated, "news gathering should not be treated in the same manner as other commercial filming activities, and the agencies intend to allow news media access to federal lands to gather news." What that means is that news outlets may still need a permit, "when time allows and the agency determines that a permit is required to protect agency resources, to avoid visitor use conflicts, to ensure public safety, or to authorize entrance into a closed area." The DOI continued: "if the news story is such that the requirement for a permit would interfere with the ability of the entity to gather the required footage or photographs, then the permit requirement will be waived, but the activity is still subject to the oral instructions of the agency representative in order to protect cultural and natural resources and to maintain order and ensure the safety of the public, agency personnel, and the media."

As to be expected, these new permitting rules have raised First Amendment and censorship concerns. In response to critics' concerns over potential government censorship of protected photographic activities, the DOI stated, "the decision to approve or deny a request for a commercial filming or still photography permit is not based on the content of the material ... [but] on the potential impact the activity may have on cultural and natural resources, on other visitors, on agency operations, and on the health and safety of visitors, permittee staff and agency employees." [brackets added]

The DOI's reply to comments that some wording in the new rules was "too vague" and "overbroad" was to define further terms such as "model," "sets and props" and "resource damage." Hopefully, this additional clarification will satisfy Constitutional scrutiny, but it seems likely that implementation of these new rules will quickly lead to claims of First Amendment abridgment and government censorship.


Breaking Bad Apple

Fans of the hit television show Breaking Bad will understand when I say that Apple should "tread lightly" when it comes to interfering with customers' ability to watch the show. It turns out that fans of Breaking Bad are incensed that Apple has allegedly sold "season passes" for the final season of the show, then divided the season in two and charged customers twice to watch it, according to a federal class action suit. Breaking Bad is a popular, highly-acclaimed show about a high school chemistry teacher turned (spoiler alert) meth dealer and murderer. Season 5 of the hit series, produced by AMC Networks, was announced as the final season and was to include 16 episodes.

Lead plaintiff in the class action, Noam Lazebnik, accuses Apple of deceptive and unfair trade practices arising from the way the company sold Breaking Bad on iTunes. "When a consumer buys a ticket to a football game, he does not have to leave at halftime. When a consumer buys an opera ticket, he does not get kicked out at intermission. When a consumer buys a 'Season Pass' to a full season of a television show on iTunes, that consumer should get access to the whole season," Lazebnik states in the complaint. AMC announced in a 2012 press release that the final season of the show "consists of 16 episodes, with the first eight episodes beginning July 15th and culminating with the series' final eight episodes next Summer 2013." Since making that announcement last summer, AMC has collectively referred to the eight episodes broadcast in 2012, and the eight episodes currently airing, as "Season 5." To wit, this season's episodes are listed as "Season 5, Episode 9 (509), Season 5, Episode 10 (510), etc."

When the fifth season of Breaking Bad became available for download on iTunes, customers were offered a "Season Pass" for $21.99 for high definition and $13.99 for standard definition. In exchange, the complaint avers, customers were promised: "[t]his Season Pass includes all current and future episodes of Breaking Bad, Season 5." Additionally, the information page on the season pass "claims that the pass will give consumers access to every episode in the season, at a better price than it would cost to buy the episodes one at a time." "Therefore, customers who purchased a 'Breaking Bad: Season 5' Season Pass from iTunes reasonably believed that they would receive access to all 16 episodes of Season 5, as announced and promoted by AMC," Lazebnik argues. Unfortunately for Breaking Bad season pass holders, when the second half of the final season became available on iTunes in early August this year, customers with a season pass had to pay another $22.99 (or $14.99 for standard definition) to access the episodes. "Apple's behavior was deceptive, fraudulent and undertaken only to maximize its revenue with regard to Season 5 of 'Breaking Bad,' the most popular TV program on iTunes, all at the expense of its customers," the lead plaintiff claims. Lazebnik demands that Apple "refund the second-half charge it took from each class member," and seeks damages for breach of contract, deceptive trade and unfair competition.

Apple has not commented on the lawsuit. Better call Saul!


From Kids' Craze to Courtroom Battle

There is a looming legal battle in U.S. courtrooms. In August, the founder of Rainbow Loom -- a rubber-band jewelry-making kit -- sued Zenacon LLC, claiming that the rival company copied the "distinctive trade dress" of Rainbow Loom's "'unique' C-shaped clips with [Zenacon's] competing FunLoom product." Just 6 millimeters wide, the plastic C-shaped fastener at issue allows the crafting-inclined to connect loops of colored rubber bands to form bracelets. According to The Wall Street Journal, "the fasteners are key to rubber-band bracelet crafting because they're used to connect bands that have been woven together with a loom. The looming technique, which dates back to the 1800s, creates looped knots called Brunnian links." Steven Verona, whose company Zenacon produces the FunLoom product, denies the allegations. "Is a loom something new and novel?" he asks. "It isn't. It has been around for hundreds of years. Same as rubber bands." Furthermore, added Verona, the C-clip in FunLoom's kit is better, "given that it is larger and therefore easier for children to handle, plus it can hold more elastic bands."

Even though this now highly popular weaving method is far from new, Rainbow Loom founder Cheong Choon Ng took little comfort in that fact. He claims he "made this famous," adding that he has sold more than 1.2 million Rainbow Loom kits. "I worked on it for three years and now everyone wants to come in." Ng says he came up with the idea for the Rainbow Loom in 2010 after struggling to make bracelets with his young daughters. He applied for a for a patent on the Rainbow Loom kit, including its C-clip, that same year. The U.S. Patent and Trademark Office granted him a patent in July of this year.

The plaintiff also filed a lawsuit last month against toy retail powerhouse Toys "R" Us, which sells another competing kit. As part of this action, Ng is also suing LaRose Industries LLC of Randolph, N.J., the creator of Cra-Z-Loom, another kit for making rubber-band bracelets. According to the complaint in the suit against LaRose Industries, filed on August 9th, Ng seeks to stop Toys "R" Us from selling Cra-Z-Loom, plus unspecified damages. In response, LaRose Industries filed a countersuit on August 28th against Ng's firm, Choon's Design LLC, alleging that "Choon's actions were not motivated by a legitimate business purpose, but were instead maliciously calculated to procure a breach of contract, and were otherwise fraudulent, dishonest and illegal."

In happier news for Rainbow Loom, the company finalized an exclusive contract in August "to sell its products through national crafts chain Michaels Stores Inc. for one year," writes The Wall Street Journal.


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This page contains a single entry from the blog posted on September 16, 2013 9:13 PM.

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