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Date: Sunday, 31 Jan 2010 17:01

Speaking on a panel this week on social media at UC Davis Law's media conference:

Day 3: Wednesday, February 3rd
Social Media as Evidence: New Legal and Ethical Frontiers: Professors Chander and Imwinkelried will join attorneys Roger Dreyer of Dreyer, Babich, Buccola Callaham & Wood; Cassandra Ferrannini  of Downey Brand and Catherine Kirkman of Wilson Sonsini Goodrich & Rosati to address the intersection of social media and the law.

 

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Industry Events"
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Date: Sunday, 31 Jan 2010 16:59

How green is my valley! 

Progress headed this way.

Green grass and lawn care forever.

There's highway 101 in the background.

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Miscellany"
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Date: Sunday, 31 Jan 2010 14:01

Speaking on a panel this week on social media at UC Davis Law's media conference:

Day 3: Wednesday, February 3rd
Social Media as Evidence: New Legal and Ethical Frontiers: Professors Chander and Imwinkelried will join attorneys Roger Dreyer of Dreyer, Babich, Buccola Callaham & Wood; Cassandra Ferrannini  of Downey Brand and Catherine Kirkman of Wilson Sonsini Goodrich & Rosati to address the intersection of social media and the law.

 

Author: "Cathy Kirkman" Tags: "Industry Events"
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Date: Sunday, 31 Jan 2010 13:59

How green is my valley! 

Progress headed this way.

Green grass and lawn care forever.

There's highway 101 in the background.

Author: "Cathy Kirkman" Tags: "Miscellany"
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Date: Thursday, 28 Jan 2010 01:44

Attended the Girls In Tech event yesterday at the Commonwealth Club.  Great conference with panels on venture capital, social media, coding, etc.  Insightful negotiation tips by Katherine Barr of Mohr Davidow and excellent keynote by Heather Harde of TechCrunch on how media can thrive in the information revolution.  Well done ladies!

 

Heather Harde, CEO TechCrunch:  "Give the People What They Want:  How Media Can Thrive in the Information Revolution"

 

Clara Shih, CEO Hearsay Labs and Wendy Lea, CEO GetSatisfaction, on "Curious About Social & New Media" panel

Poornima Vijayashanker, Mint.com, Sandy Jen, co-founder Meebo, Rebecca Parsons, ThoughtWorks, on "Curious About Coding & Developing" panel

Also I like the Commonwealth Club mission statement, sort of like Google the 1903 version:

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Industry Events"
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Date: Wednesday, 27 Jan 2010 22:44

Attended the Girls In Tech event yesterday at the Commonwealth Club.  Great conference with panels on venture capital, social media, coding, etc.  Insightful negotiation tips by Katherine Barr of Mohr Davidow and excellent keynote by Heather Harde of TechCrunch on how media can thrive in the information revolution.  Well done ladies!

 

Heather Harde, CEO TechCrunch:  "Give the People What They Want:  How Media Can Thrive in the Information Revolution"

 

Clara Shih, CEO Hearsay Labs and Wendy Lea, CEO GetSatisfaction, on "Curious About Social & New Media" panel

Poornima Vijayashanker, Mint.com, Sandy Jen, co-founder Meebo, Rebecca Parsons, ThoughtWorks, on "Curious About Coding & Developing" panel

Also I like the Commonwealth Club mission statement, sort of like Google the 1903 version:

Author: "Cathy Kirkman" Tags: "#gitcc, Featured, Industry Events, snaps"
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Date: Thursday, 22 May 2008 01:01
Hope to see you at the E-Commerce Best Practices Conference at Stanford Law School on June 13.   I think it's consistently one of the best events around about online legal issues -- credit organizers Roland Vogl, Mark Lemley, and Ian Ballon, among others.  I'm moderating a panel -- the agenda's here.   It's really the audience that makes the event what it is-- always a great turn-out of the Valley legal crowd.
Author: "CKirkman@wsgr.com (Cathy)" Tags: "Industry Events"
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Date: Wednesday, 21 May 2008 22:01
Hope to see you at the E-Commerce Best Practices Conference at Stanford Law School on June 13.   I think it's consistently one of the best events around about online legal issues -- credit organizers Roland Vogl, Mark Lemley, and Ian Ballon, among others.  I'm moderating a panel -- the agenda's here.   It's really the audience that makes the event what it is-- always a great turn-out of the Valley legal crowd.
Author: "Cathy Kirkman" Tags: "Industry Events"
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Date: Monday, 07 Apr 2008 00:08

Jumping in with a few thoughts on the 9th Circuit's Roommates.com decision, which came out last week -- some viewpoints include Eric Goldman, Michael Erdman, and Evan Brown.

Roommates was sued for violating the fair housing laws, and it unsuccessfully argued that as an interactive computer service it was immune from liability for the content posted by its users, under Section 230 of the Communications Decency Act.

Under the statute, the immunity does not apply if the service provider also participated as an “information content provider”, by being “responsible, in whole or in part, for the creation or development of the offending content.”

The opinion says it adopts a “common-sense interpretation” of what “developing” is, for the purpose of liability. It says that “[C]lose cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to – the illegality of third parties.”

Actually ducks are really nice animals (guess that's why we're talking 10,000 bites), so let’s leave them out of this. Chickens of course have sharp beaks, and geese can be rather aggressive, but ducks are generally quite genial, with rounded bills and just some serrated edges-- so ducks may find the reference offensive and should reserve their rights and remedies.  Duck image (c) Tomo.yun, (www.yunphoto.net/en/).

The decision focuses on the term “development” in assessing the site’s involvement in providing user drop-down menus for creating their housing profiles, and in providing search and email notifications relating to the user’s stated housing preferences. The decision found the “additional comments” portion of the site to be covered by the immunity, because it was a neutral tool for users to post their comments.

“The decision interprets the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. [emphasis added]” 

“In other words, a web site helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially it to the alleged illegality of the conduct [emphasis added].”

It thus associates the CDA immunity analysis with the legally complex notions of contributory liability (and inducement liability), which are areas of some uncertainty in the copyright arena. 

The opinion says there’s more clarity now about the legal standard than there was before: “Our opinion extensively clarifies where that edge lies, and gives far more guidance than our previous cases”.  it does take pains to elaborate on what it means by "development", in seeking to avoid a pedantic interpretation, and there’s certainly a lot here to digest. 

Here’s a word cloud summary of some of the opinion’s lexicon.  These are snippets from the opinion, obviously taken out of context, but after the gestalt of the opinion.

“contributes materially to the alleged illegality of the conduct”

“encourage illegal content”

“designed to achieve illegal ends”

“design your website to require users to input illegal content”

“website directly participates in developing the alleged illegality”

“elicits the allegedly illegal content”

“makes aggressive use of it in conducting its business”

“directly related to the alleged illegality of the site”

“developing and enforcing a system that subjects subscribers to [illegal content]"

“inducing third parties to express illegal preferences”

“enhance, encourage, make easier” the posting of illegal content

“solicit” or “encourage” the harmful content”

“creating a website designed to solicit and enforce [illegal] preferences”

“direct encouragement to perform illegal searches or publish illegal content”

* * * * * * * *

“providing neutral tools”

“generic text”

“simple, generic prompt”

“weak encouragement”

 “development by inference”

“enhancement by implication”

“merely provide a framework”

 “generic search engines”

 “edits are unrelated to the illegality”

 “without prompting or help from the website operator”

“did nothing to encourage the posting of [illegal] content”

 “contrary to the website’s express policies”

“mere classifying user characteristics”

nothing “induces anyone” to engage in illegal conduct

“chat rooms for general use”

“generic message board”

“does not provide any specific guidance”

does not “urge subscribers” to engage in illegal conduct

 

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Content"
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Date: Sunday, 06 Apr 2008 21:08

Jumping in with a few thoughts on the 9th Circuit's Roommates.com decision, which came out last week -- some viewpoints include Eric Goldman, Michael Erdman, and Evan Brown.

Roommates was sued for violating the fair housing laws, and it unsuccessfully argued that as an interactive computer service it was immune from liability for the content posted by its users, under Section 230 of the Communications Decency Act.

Under the statute, the immunity does not apply if the service provider also participated as an “information content provider”, by being “responsible, in whole or in part, for the creation or development of the offending content.”

The opinion says it adopts a “common-sense interpretation” of what “developing” is, for the purpose of liability. It says that “[C]lose cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to – the illegality of third parties.”

Actually ducks are really nice animals (guess that's why we're talking 10,000 bites), so let’s leave them out of this. Chickens of course have sharp beaks, and geese can be rather aggressive, but ducks are generally quite genial, with rounded bills and just some serrated edges-- so ducks may find the reference offensive and should reserve their rights and remedies.  Duck image (c) Tomo.yun, (www.yunphoto.net/en/).

The decision focuses on the term “development” in assessing the site’s involvement in providing user drop-down menus for creating their housing profiles, and in providing search and email notifications relating to the user’s stated housing preferences. The decision found the “additional comments” portion of the site to be covered by the immunity, because it was a neutral tool for users to post their comments.

“The decision interprets the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. [emphasis added]” 

“In other words, a web site helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially it to the alleged illegality of the conduct [emphasis added].”

It thus associates the CDA immunity analysis with the legally complex notions of contributory liability (and inducement liability), which are areas of some uncertainty in the copyright arena. 

The opinion says there’s more clarity now about the legal standard than there was before: “Our opinion extensively clarifies where that edge lies, and gives far more guidance than our previous cases”.  it does take pains to elaborate on what it means by "development", in seeking to avoid a pedantic interpretation, and there’s certainly a lot here to digest. 

Here’s a word cloud summary of some of the opinion’s lexicon.  These are snippets from the opinion, obviously taken out of context, but after the gestalt of the opinion.

“contributes materially to the alleged illegality of the conduct”

“encourage illegal content”

“designed to achieve illegal ends”

“design your website to require users to input illegal content”

“website directly participates in developing the alleged illegality”

“elicits the allegedly illegal content”

“makes aggressive use of it in conducting its business”

“directly related to the alleged illegality of the site”

“developing and enforcing a system that subjects subscribers to [illegal content]"

“inducing third parties to express illegal preferences”

“enhance, encourage, make easier” the posting of illegal content

“solicit” or “encourage” the harmful content”

“creating a website designed to solicit and enforce [illegal] preferences”

“direct encouragement to perform illegal searches or publish illegal content”

* * * * * * * *

“providing neutral tools”

“generic text”

“simple, generic prompt”

“weak encouragement”

 “development by inference”

“enhancement by implication”

“merely provide a framework”

 “generic search engines”

 “edits are unrelated to the illegality”

 “without prompting or help from the website operator”

“did nothing to encourage the posting of [illegal] content”

 “contrary to the website’s express policies”

“mere classifying user characteristics”

nothing “induces anyone” to engage in illegal conduct

“chat rooms for general use”

“generic message board”

“does not provide any specific guidance”

does not “urge subscribers” to engage in illegal conduct

 

Author: "Cathy Kirkman" Tags: "Content"
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Date: Monday, 24 Dec 2007 17:37
Author: "CKirkman@wsgr.com (Cathy)" Tags: "Miscellany"
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Date: Monday, 24 Dec 2007 14:37

Author: "Cathy Kirkman" Tags: "Miscellany, christmas, reindeer, weimara..."
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Date: Wednesday, 19 Dec 2007 00:38

Back in the fall I noticed and blogged that the Copyright Office did not have an up-to-date version of the Copyright Act on its web site.  The legal code was actually several years out of date.  On Thanksgiving Day no less, they announced the launch of an updated version, and I've been meaning to post about it.  Today I recorded a new podcast episode of This Week in the Law with Denise Howell as part of her panel, and gave a verbal shout out.  So this post is to complete the thought with a blogger's thank you note! 

Also if you're not overloaded you might want to subscribe to feeds or lists from the Library of Congress -- coverage includes Copyright Office information, digital preservation, poetry and other good stuff. 

 

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Miscellany"
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Date: Tuesday, 18 Dec 2007 21:38

Back in the fall I noticed and blogged that the Copyright Office did not have an up-to-date version of the Copyright Act on its web site.  The legal code was actually several years out of date.  On Thanksgiving Day no less, they announced the launch of an updated version, and I've been meaning to post about it.  Today I recorded a new podcast episode of This Week in the Law with Denise Howell as part of her panel, and gave a verbal shout out.  So this post is to complete the thought with a blogger's thank you note! 

Also if you're not overloaded you might want to subscribe to feeds or lists from the Library of Congress -- coverage includes Copyright Office information, digital preservation, poetry and other good stuff. 

 

Author: "Cathy Kirkman" Tags: "Miscellany"
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Date: Monday, 17 Dec 2007 03:12

Last night Creative Commons celebrated the 5th anniversary of the launch of the Creative Commons licenses!    I attended the San Francisco celebration -- JD Lasica has blogged what was a wonderful event.   Also blogged by Freedom for IP.

In connection with the celebration, Science Commons announced a Protocol for Implementing Open Access Data,  to enable scientific databases to be legally integrated with each other.

I was asked to give a few words at the reception before the event about my involvement with Creative Commons.  For me what was most remarkable were two things -- how Creative Commons has helped enable participatory media, and how Creative Commons represents an unprecedented collaboration by lawyers worldwide.

My law firm has been at the center of innovation in Silicon Valley, having taken Apple, Netscape and Google public, for example.  I personally came back to Palo Alto fifteen years ago after practicing as an entertainment lawyer in Los Angeles.  Back then we talked about “multimedia” and the promise of media and technology convergence.

But it turned out the promise couldn’t be realized just by corporations pursuing a holy grail of sorts, for many reasons. Some entrenched interests saw this as a side show for “ancillary rights,” or as a legal rights-clearance minefield, or as a potential threat to their core business models.

What happened instead as everyone knows in breaking down the barriers to convergence was consumer empowerment through technology -- the end to consumer passivity. Consumers deciding when, where and how to experience content. Consumers deciding to publish and share their own content – video, music, photos, blogs. 

What was missing were tools for consumer empowerment, to enable the necessary legal licensing permissions.  As a lawyer, Larry Lessig and the other founders saw how the perfect storm of digital copyrights could be an impediment to participatory media. Creative Commons created a solution, a legal licensing toolkit, in the manner that the open source software licenses gave developers tools to share their code.

We wanted to be part of the solution, so we joined the pro bono legal team at the outset. We’ve helped with the core licenses, some of the variations, and various legal issues along the way, for general counsels, Glenn Otis Brown and Mia Garlick, and now Virginia Rutledge

In fact, the Creative Commons story involves a tremendous collaboration in the legal field. We worked as a team with other lawyers, including John Brockland – the goal was clarity so that creators and lawyers alike would have a usable document that people could actually understand and rely upon. The internationalization of the license on a country-by-country case is an unprecedented achievement, occasioned by the unique issues around content rights that vary by territory.  It’s like a legal wiki and we’re proud to be a part of all that teamwork. Stanford Lawyer did an article a few years ago about it, called "Some Rights Reserved," which is posted here in this issue with my partner Nicki Locker on the cover.

To bring the media convergence story current, in the Web 2.0 world of long-tail content and participatory media, plenty of business ventures that we work with ask us how can they use Creative Commons and make those licenses an option for individuals who are sharing content on their social networks or publishing platforms. 

To measure the reach of Creative Commons, I did a Google search yesterday and got 29 million results. To put it in perspective, that beats Elvis Presley at 21 million and American Idol’s 27 million. However Paris Hilton and Britney Spears are still way ahead at 42 and 62 million respectively, so there’s clearly still plenty of opportunity!

So here’s to 5 years of hard work by everyone and to the great success of Creative Commons, the incredible passion and energy of the dedicated people literally throughout the world who have made Creative Commons what it is today, and to its bright future!

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Industry Events"
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Date: Monday, 17 Dec 2007 00:12

Last night Creative Commons celebrated the 5th anniversary of the launch of the Creative Commons licenses!    I attended the San Francisco celebration -- JD Lasica has blogged what was a wonderful event.   Also blogged by Freedom for IP.

In connection with the celebration, Science Commons announced a Protocol for Implementing Open Access Data,  to enable scientific databases to be legally integrated with each other.

I was asked to give a few words at the reception before the event about my involvement with Creative Commons.  For me what was most remarkable were two things -- how Creative Commons has helped enable participatory media, and how Creative Commons represents an unprecedented collaboration by lawyers worldwide.

My law firm has been at the center of innovation in Silicon Valley, having taken Apple, Netscape and Google public, for example.  I personally came back to Palo Alto fifteen years ago after practicing as an entertainment lawyer in Los Angeles.  Back then we talked about “multimedia” and the promise of media and technology convergence.

But it turned out the promise couldn’t be realized just by corporations pursuing a holy grail of sorts, for many reasons. Some entrenched interests saw this as a side show for “ancillary rights,” or as a legal rights-clearance minefield, or as a potential threat to their core business models.

What happened instead as everyone knows in breaking down the barriers to convergence was consumer empowerment through technology -- the end to consumer passivity. Consumers deciding when, where and how to experience content. Consumers deciding to publish and share their own content – video, music, photos, blogs. 

What was missing were tools for consumer empowerment, to enable the necessary legal licensing permissions.  As a lawyer, Larry Lessig and the other founders saw how the perfect storm of digital copyrights could be an impediment to participatory media. Creative Commons created a solution, a legal licensing toolkit, in the manner that the open source software licenses gave developers tools to share their code.

We wanted to be part of the solution, so we joined the pro bono legal team at the outset. We’ve helped with the core licenses, some of the variations, and various legal issues along the way, for general counsels, Glenn Otis Brown and Mia Garlick, and now Virginia Rutledge

In fact, the Creative Commons story involves a tremendous collaboration in the legal field. We worked as a team with other lawyers, including John Brockland – the goal was clarity so that creators and lawyers alike would have a usable document that people could actually understand and rely upon. The internationalization of the license on a country-by-country case is an unprecedented achievement, occasioned by the unique issues around content rights that vary by territory.  It’s like a legal wiki and we’re proud to be a part of all that teamwork. Stanford Lawyer did an article a few years ago about it, called "Some Rights Reserved," which is posted here in this issue with my partner Nicki Locker on the cover.

To bring the media convergence story current, in the Web 2.0 world of long-tail content and participatory media, plenty of business ventures that we work with ask us how can they use Creative Commons and make those licenses an option for individuals who are sharing content on their social networks or publishing platforms. 

To measure the reach of Creative Commons, I did a Google search yesterday and got 29 million results. To put it in perspective, that beats Elvis Presley at 21 million and American Idol’s 27 million. However Paris Hilton and Britney Spears are still way ahead at 42 and 62 million respectively, so there’s clearly still plenty of opportunity!

So here’s to 5 years of hard work by everyone and to the great success of Creative Commons, the incredible passion and energy of the dedicated people literally throughout the world who have made Creative Commons what it is today, and to its bright future!

Author: "Cathy Kirkman" Tags: "Industry Events"
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Date: Sunday, 02 Dec 2007 04:56

The Axe returned; the rightful order of things restored; celebration!

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Miscellany"
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Date: Sunday, 02 Dec 2007 01:56

The Axe returned; the rightful order of things restored; celebration!

Author: "Cathy Kirkman" Tags: "Miscellany"
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Date: Wednesday, 17 Oct 2007 04:32

The 8th Circuit issued an opinion today in the fantasy baseball case, CBC Distribution & Marketing v. MLB Advanced Media, in which MLB asserted that fantasy leagues need permission to use players' names and other data. 

The court affirmed the district court ruling, which held that the First Amendment trumps the player's publicity rights and thus permits usage without a license.  The court also confirmed that the "no-challenge" and "no-use" clauses of the prior license agreement were unenforceable, but not on public policy grounds (as the lower court found), but rather on a technical point about breach of warranty of title in the publicity rights by MLB.  See prior post about the lower court ruling.

My partner Glenn Colton filed an amicus brief in the case on behalf of the Fantasy Sports Trade Association.  Glenn also writes the Week That Was column  for Rotoworld.com about fantasy leagues.  He offered these thoughts on the victory:  

"Today's decision from the 8th Circuit Court of Appeals is a major victory for the fantasy sports industry, fantasy sports players, and most importantly, the protection of free speech and expression. Specifically, the Court ruled that the interests protected by the First Amendment to the United States Constitution outweigh any alleged harms to professional athletes from the use of their names in fantasy sports games.

"Notably, the Court went out of its way to point out how "handsomely" players are already rewarded for their performances and endorsements. In the final analysis, the decision drives another nail in the coffin of Major League Baseball and its players association's attempt to wrest control of the fantasy sports industry from the pioneers that worked long and hard to build and create the thriving national hobby millions enjoy today."

 Here are some interesting posts today on the case:

Staci Kramer on Paid Content

Neil Richards on Concurring Opinions

Mike Madison on Madisonian.net

 

 

Author: "CKirkman@wsgr.com (Cathy)" Tags: "Content"
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Date: Wednesday, 17 Oct 2007 01:32

The 8th Circuit issued an opinion today in the fantasy baseball case, CBC Distribution & Marketing v. MLB Advanced Media, in which MLB asserted that fantasy leagues need permission to use players' names and other data. 

The court affirmed the district court ruling, which held that the First Amendment trumps the player's publicity rights and thus permits usage without a license.  The court also confirmed that the "no-challenge" and "no-use" clauses of the prior license agreement were unenforceable, but not on public policy grounds (as the lower court found), but rather on a technical point about breach of warranty of title in the publicity rights by MLB.  See prior post about the lower court ruling.

My partner Glenn Colton filed an amicus brief in the case on behalf of the Fantasy Sports Trade Association.  Glenn also writes the Week That Was column  for Rotoworld.com about fantasy leagues.  He offered these thoughts on the victory:  

"Today's decision from the 8th Circuit Court of Appeals is a major victory for the fantasy sports industry, fantasy sports players, and most importantly, the protection of free speech and expression. Specifically, the Court ruled that the interests protected by the First Amendment to the United States Constitution outweigh any alleged harms to professional athletes from the use of their names in fantasy sports games.

"Notably, the Court went out of its way to point out how "handsomely" players are already rewarded for their performances and endorsements. In the final analysis, the decision drives another nail in the coffin of Major League Baseball and its players association's attempt to wrest control of the fantasy sports industry from the pioneers that worked long and hard to build and create the thriving national hobby millions enjoy today."

 Here are some interesting posts today on the case:

Staci Kramer on Paid Content

Neil Richards on Concurring Opinions

Mike Madison on Madisonian.net

 

 

Author: "Cathy Kirkman" Tags: "Content"
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