TIME legal

Facebook Suing Attorneys Who Pushed Allegedly Fraudulent Case

Though an old lawsuit against it was dismissed, Facebook is going after the lawyers behind it

Facebook and its CEO Mark Zuckerberg are suing the lawyers of man who claimed in 2010 that he and Zuckerberg had an agreement that granted him a major stake in the company.

Though a judge previously dismissed the claims of Paul Ceglia, a lawsuit filed in the New York State Supreme Court on Monday alleges that Ceglia’s lawyers continued their lawsuit in order to win a settlement despite knowing that Ceglia’s claims were false, the New York Times reports.

“We said from the beginning that Paul Ceglia’s claim was a fraud and that we would seek to hold those responsible accountable,” said Colin Stretch, Facebook’s general counsel, in a statement. “DLA Piper and the other named law firms knew the case was based on forged documents yet they pursued it anyway, and they should be held to account.”

Peter Pantaleo, general counsel for DLA Piper, one of the firms named in the suit, denied the allegations.

“This is an entirely baseless lawsuit that has been filed as a tactic to intimidate lawyers from bringing litigation against Facebook,” he said in a statement.

[NYT]

TIME legal

Why U.S. Sanctions Mean Some Countries Don’t Get Any iPhones

Apple iPhone Technology Embargo Sanctions
An attendee displays the new Apple Inc. iPhone 6, left, and iPhone 6 Plus for a photograph after a product announcement at Flint Center in Cupertino, California, U.S., on Tuesday, Sept. 9, 2014. Bloomberg via Getty Images

A sanction a day keeps Apple away

Some 36 additional countries will receive shipments of Apple’s iPhone 6 this month, with over 115 countries on track to get the big-screen smartphones by the end of the year. But a handful of countries won’t be receiving any Apple products at all.

Among the Apple-less countries are Syria, North Korea, Sudan and Cuba, which face trade sanctions from the United States. That means the “exportation, reexportation, sale or supply” of any Apple goods from the U.S. or an American anywhere is prohibited in those countries, according to Apple’s global trade compliance. Add to those Apple-less countries several African and Middle Eastern nations, among other countries, which Apple’s sales locator indicates have neither Apple Stores nor authorized Apple product resellers.

Apple did not respond for comment on whether authorized distribution channels exist in countries that aren’t sanctioned by the U.S. but still present a difficult business climate, like Ethiopia, Afghanistan and Yemen. Technology and trade experts were reluctant to speculate why Apple may not penetrate these markets, but some pointed to a lack of demand or infrastructure.

In the map below, Apple-less countries appear unshaded:

The world recently bore witness to what happened when China, not subject to U.S. sanctions, was deprived of the iPhone 6’s initial release: a gray market exploded while rumors swirled that the “Chinese mafia” was storming Apple Stores around the world to collect iPhones for resell to high-income buyers.

That same grey market boom is happening in countries that do face U.S. sanctions, though for different reasons. While Chinese buyers were simply unwilling to wait for the iPhone 6’s official release in their home country, high-income buyers in sanctioned states are creating demand for a product that will likely never be sold in their country. That demand is being met by unofficial providers like the “Apple Syria Store” and “Tehran Apple Store,” two unofficial Apple distribution channels in the Middle East, for example.

A lack of iPhones in some countries, however, is only a problem for those countries’ wealthiest residents. Indeed, the iPhone craze overshadows a higher-stake battle: Access to less-hyped but important American technology in countries where such technology continues to be restricted.

The U.S. has put in place sanctions against Syria, North Korea, Sudan, Cuba and Iran to discourage those countries from abusing human rights, sponsoring terrorism or launching nuclear programs. While the sanctions were largely intended as economic embargoes, they also disrupted the free flow of information by severely limiting residents’ access to communication technology, advocates say. That technology includes not only electronics like Apple’s iPhone, but also American software and websites like Apple’s App Store, Adobe Flash, Yahoo e-mail and educational platforms like Khan Academy and Coursera. In many sanctioned countries, attempts to access those sites result in a “blocked” page. In certain countries it’s also prohibited to update whatever American software is available, leaving in place security vulnerabilities in countries where surveillance and censorship are commonplace.

“It’s still a fairly new issue, because it wasn’t really until the Arab Spring that people started to realize communication technology as a tools of free expression,” said Danielle Kehl, a tech policy analyst at the New America Foundation’s Open Technology Institute.

Observers first began to note the impact of U.S. sanctions on communication technology during Iran’s Green Movement in 2009, when protesters demanding the president’s removal used the Internet as an activist tool, according to independent tech policy researcher Collin Anderson. Within years, activists won over U.S. officials, who exempted certain technologies from American sanctions on Iran to empower protestors. That hasn’t yet been replicated in other sanctioned countries.

Anderson also said that pressure from the Iranian diaspora contributed to a decision by U.S. officials to issue a sanction exemption that allowed the export or re-export of “certain services, software, and hardware incident to personal communications” to Iranians. Apple then “quietly updated its compliance policy” to match the change, Anderson said.

“Apple is in an under-appreciated way one of the most responsive adopters of U.S. policies [that lift sanctions on technology],” said Anderson.

Apple had some market incentive to comply quickly with the change. Most of these sanctioned countries have significant amounts of mobile phone subscribers buying devices purchased from non-U.S. countries or companies, according to Anderson and data from the International Telecommunications Union.

Despite all those potential customers for Apple and other tech firms, tech policy analysts agreed the onus is on U.S. officials to invoke change. But that Apple and several other companies chose to engage with complex, high-risk sanctions in Iran shows that when the policies change, companies tend follow suit.

Still, Kehl said the other, risk-averse option for companies is to “over-comply” with Iranian sanctions, or to treat the laws as if they were complete embargoes in order to reduce their liability. That’s what happened in 2009 when LinkedIn blocked Syrian accounts and when Google blocked its code.google.com developer’s tool in Sudan.

Even Apple appeared to over-comply in 2012 when a Apple Store employee in Alpharetta, Georgia refused to sell an iPad to Iranian-American woman after he heard the woman speaking Persian, according to Jamal Abdi, policy director at the National Iranian American Council. “If [Apple] had reason to believe you were going to take an Apple product to Iran, or if you were going to resell it, [Apple] had to take action to stop people,” explained Abdi, who slammed the practice as discriminatory in a New York Times op-ed. The woman later received an apology from an Apple customer service employee, as NPR noted at the time.

The greatest pressure for change, however, is coming from within the sanctioned countries. Iranian bloggers have discussed banned technologies at risking of criminal charges, Sudanese computer science students have demanded more educational tools, and Syrians have called for U.S. imports of basic technological needs. Several non-profits have reported that sanctioning U.S. technology is highly detrimental to affected countries’ growth, while Abdi added that sanctions have prevented the electronic delivery of humanitarian aid or day-to-day monetary transactions because many banks are affected.

Still, tech companies have in recent years shown more willingness to engage government officials on matter of policy, particularly after former NSA contractor Edward Snowden’s surveillance leaks. Twitter sued the U.S. Justice Department earlier this month to disclose government requests for user data, while popular websites like Netflix, Mozilla and Reddit joined an online protest against the Federal Communications Commission’s proposed rules they said could divide the Internet into “fast lanes” and “slow lanes.” In the most visible tech-backed activism to date, Wikipedia and Reddit “blacked out” their webpages and Google censored its logo to protest the Stop Online Piracy Act, which was later shelved by its author.

Analysts are not expecting Apple to be at the forefront of the battle to lift U.S. sanctions. But as several organizations and advocates pressed for changes to American trade policy towards Iran, it would be hard to believe they would turn away Apple’s support.

“[Apple] is very quiet about these things—like either Apple is the best, or maybe the worst. But it seems like it’s the best,” Anderson said. “[Apple's] recognition of [the policy changes regarding Iran] was the first moral victory for everyone who had worked so hard on this.”

TIME Video Games

Video Game Feminist Cancels School Speech Amid Shooting Threat

Anita Sarkeesian pulled out of and event at Utah State after a mass shooting threat

A feminist speaker well known for her videos criticizing the role of female characters in video games canceled a Wednesday speech at a Utah college after learning the school would allow concealed firearms at the event despite an anonymous threat against her life.

Utah State University staff members were notified of a threat to carry out a mass shooting at the school if Anita Sarkeesian, author of video blog “Feminist Frequency,” was allowed to deliver a speech on women’s role in video games, the Associated Press reports. The threat was delivered by someone claiming to be a student in an email claiming they would commit “the deadliest school shooting in American history” if Sarkeesian’s speech continued as planned.

“I have at my disposal a semi-automatic rifle, multiple pistols, and a collection of pipe bombs,” said the email, the Standard Examiner reports.

The university decided Tuesday it was safe to commence with the presentation after consulting with law enforcement. However, the school also said it would allow attendees with a valid concealed firearm permit to attend the presentation, in accordance with state and local law.

Sarkeesian then decided late Tuesday to cancel her speech. A university spokesman said the FBI told officials the threat is akin to similar intimidating messages received ahead of public appearances by Sarkeesian, who has often been the target of Internet harassment from those who disagree with her beliefs.

[AP]

TIME Companies

Converse Sues Dozens for Selling Knockoffs of Chuck Taylor All Stars

But trademark infringement in fashion has historically been difficult to prove

Converse filed suit against 31 companies, including Wal-Mart and K-Mart, Tuesday for trademark infringement.

The shoemaker alleges that the companies ripped off the iconic striped, toe-guard design of Converse’s Chuck Taylor All Stars, the New York Times reports.

The American company filed a total of 22 separate lawsuits seeking monetary damages in the U.S. District Court of Brooklyn, according to court documents. Other companies named in the complaints include Skechers, FILA, Ed Hardy and Ralph Lauren, among other retailers that Converse claims has unfairly copied the Chuck Taylor sneaker’s design.

Converse, which was bought by Nike in 2003, has also filed a separate lawsuit to the U.S. International Trade Commission (USITC), a federal agency with the authority to stop counterfeit shoes from entering the country. Many shoe retailers manufacture their footwear outside the U.S., and a successful lawsuit with the USITC would be effective in preventing the sale of the allegedly copycat shoes.

“The goal really is to stop this action,” Converse CEO Jim Calhoun told the Times. “I think we’re quite fortunate here to be in the possession of what we would consider to be an American icon.”

Trademark infringement accusations in the footwear industry are not new, and are hard to prove in the fashion world, according to several law firms experienced in similar cases. But that Converse has named a whopping 31 companies is somewhat unprecedented in an age when fashion feuds tend to be one-on-one. Recent lawsuits include LVL XIII Brands Inc. alleging that LVMH copied its nameplate design in August, and California shoemaker Gravity Corp accusing Under Armour of intentionally copying the sound of one of their product’s names.

[NYT]

TIME Transportation

Flight Attendants Sue to Bring Back Electronic Device Ban

Two flight attendants walk in the luggag
Two flight attendants walk in the luggage claim area of the US Customs and Immigration at Dulles International Airport on Dec. 21, 2011 near Washington, DC. Paul J. Richards—AFP/Getty Images

Want tablets and smartphones to be stowed for landing and takeoff

The nation’s largest union of flight attendants took the Federal Aviation Administration to court on Friday, arguing that the agency should have upheld a ban on the use of smartphones and tablets during takeoff and landing.

Lawyers for the Association of Flight Attendants-CWA argued that the devices distracted passengers from safety instructions and could fly out of their hands, becoming dangerous projectiles, the Wall Street Journal reports.

The FAA relaxed its ban on personal devices in 2013, enabling passengers to use devices such as iPhones and Kindles at all times of the flight so long as they were switched to “airplane mode.”

“Essentially we want to set the reset button to the way personal electronic devices were handled prior to October 2013,” said attorney Amanda Duré.

Lawyers for the union argue that the FAA violated an existing regulation to stow away all luggage during takeoff and landing. The defense team argues that the regulation only applies to larger items, such as laptops, and never was intended for handheld devices.

[WSJ]

TIME legal

Marriott Fined $600K for Jamming Guest’s Personal Wi-Fi Hotspots

Wifi Cloud Tablet
Getty Images

My smartphone is indispensable whenever I travel for work. It’s a great tool for keeping in contact. And thanks to its mobile hotspot feature, it’s become indispensable for filing stories when Wi-Fi is either unavailable or – as is often the case at many major hotels – prohibitively expensive.

But as much as I love my mobile hotspot, it would appear hotel operators feel differently about the technology. This past week, the Marriott International corporation was fined a whopping $600,000 by the Federal Communications Commission (FCC) for using a jamming system to prevent its customers from using their own mobile hotspots. It then charged these frustrated customers as much as $1,000 per day per device for Internet access – a price that borders on extortion.

According to the FCC, Marriott admitted to using a jammer in at least one of its hotels, the Gaylord Opryland in Nashville, Tennessee. Employees there reportedly used a Wi-Fi monitoring system to locate guest-created hotspots and send them de-authentication packets, forcibly disconnecting and disrupting Internet service. Those visiting the hotel’s conference space were especially frequent targets of the scheme, forcing those who needed to connect to agree to the hotel’s exorbitant $250 to $1,000 per device hotel Wi-Fi prices.

“Consumers who purchase cellular data plans should be able to use them without fear that their personal Internet connection will be blocked by their hotel or conference center,” stated FCC Enforcement Bureau Chief Travis LeBlanc. “It is unacceptable for any hotel to intentionally disable personal hotspots while also charging customers and small businesses high fees to use the hotel’s own Wi-Fi network. This practice puts consumers in the untenable position of either paying twice for the same service or forgoing Internet access altogether.”

Marriott, for its part, attempted to defend its actions with the laughable notion it was done in the interest of its guests’ safety. “Marriott has a strong interest in ensuring when our guests use our Wi-Fi service, they will be protected from rogue wireless hotspots that can cause degraded service, insidious cyber-attacks and identity theft,” the company wrote in a statement. “We believe that the Gaylord Opryland’s actions were lawful.”

While public Wi-Fi hotspots can be home to various threats, creating and connecting to your own password-protected mobile hotspot is absolutely safe. You can turn your iPhone into a mobile hotspot by entering the Settings app, tapping Personal Hotspot and turning the toggle on. You can activate your Android phone as a mobile hotspot by opening its App Tray, selecting Mobile Hotspot and checking the box. Note that you’ll need a compatible cellular data plan to get this to work – those on current AT&T, Verizon and T-Mobile plans have hotspot functionality included for free; those with older unlimited data plans are blocked from using it. Also note that using your phone as a hotspot will eat into your data plan allowance. Other carriers, like Sprint, will let you activate your phone as a mobile hotspot for an additional monthly fee.

This article was written by Fox Van Allen and originally appeared on Techlicious.

More from Techlicious:

TIME Companies

This Hotel Allegedly Blocked Your Wi-Fi Hotspot

The Opryland Hotel and complex in Nashville, Tennessee on July 13, 2013.
The Opryland Hotel and complex in Nashville, Tennessee on July 13, 2013. Cameron Davidson—Corbis

According to FCC allegations, the chain prevented users from operating personal hotspots at a Nashville hotel

Marriott has agreed to pay a civil penalty of $600,000 to resolve Federal Communications Commission allegations that the chain’s Nashville, Tenn. hotel used Wi-Fi “jammers” to prevent customers from creating hot spots with their smart phones or other devices. According to terms of the settlement, Marriott has agreed to pay the fine without admitting to any specific violation.

By blocking personal hot spots, the Gaylord Opryland Resort & Convention Center, operated by Marriott, allegedly raked in thousands of dollars in Wi-Fi fees from hotel patrons who had no other option but to use the hotel’s Wi-Fi for internet access, according to an FCC announcement released Friday. The jammers targeted the hotel’s convention center, where rates for internet access range from $250 to $1,000 per device.

“Consumers who purchase cellular data plans should be able to use them without fear that their personal Internet connection will be blocked by their hotel or conference center,” said Travis LeBlanc, head of the FCC’s enforcement bureau. “It is unacceptable for any hotel to intentionally disable personal hotspots.”

According to the terms of the consent decree, Marriott will also implement procedures to improve its handling of IT issues at the Nashville hotel.

Marriott did not immediately reply to Time’s request for comment on the settlement.

TIME legal

Xbox One Counterfeiters Accused of Stealing ‘$100 to $200 Million’ in Data

Two of the four indicted U.S. men have pleaded guilty to computer fraud and copyright infringement, and will be sentenced next January.

Four men in the U.S. have been indicted by the Department of Justice for allegedly stealing unreleased software and other data from a series of gaming companies and the U.S. military.

Austin Alcala (18), Nathan Leroux (20), Sanadodeh Nesheiwat (28) and David Pokora (22) were charged with 18 counts of criminal activity, according to the federal indictment filed earlier in April and unsealed September 30. Charges included wire and mail fraud, theft of trade secrets, unauthorized computer access, copyright infringement and identity theft.

The indictment claims the four used SQL attacks and malware to hack into computer systems operated by Microsoft, Epic Games, Valve, Activision Blizzard, Zombie Studios and the U.S. Army itself. The DOJ alleges the hackers stole data ranging from authentication credentials to information about prerelease products in hopes of selling it for profit. The DOJ’s estimated value for all that data: between $100 million and $200 million.

The DOJ said the hacking ring stole information related to Microsoft’s Xbox One game console and Xbox Live online gaming network, Epic’s Gears of War 3 (a third-person tactical shooter), Activision Blizzard’s Call of Duty: Modern Warfare 3 (a first-person shooter), and specialized software the U.S. Army uses to train Apache helicopter pilots. To date, the U.S. has seized $620,000 “in cash and other proceeds related to the charged conduct,” said the DOJ.

Two of the men–Nesheiwat and Pokora–have pleaded guilty to one count of conspiracy to commit computer fraud and copyright infringement. They’ll be sentenced on January 15 next year, and could serve up to five years prison time. On a side note, the DOJ said it believes Pokora may be the first foreigner convicted for hacking into U.S. companies to steal trade secret info. He was arrested last March while trying to enter the U.S. at Lewiston, New York.

“Today’s guilty pleas show that we will protect America’s intellectual property from hackers, whether they hack from here or from abroad,” said Assistant Attorney General Leslie R. Caldwell in a statement.

But a fifth person allegedly involved in the ring–an Australian citizen not named in the indictment who reportedly tried to sell a prototype of Microsoft’s Xbox One games console on eBay in August 2012 (the system wasn’t released until November)–told the Guardian that the DOJ’s valuations are “meaningless,” that the group was simply curious and that, save for an act of theft by a single hacker that relates to the DOJ cash grab, it made nothing.

TIME legal

Iowa to Tesla: Stop Test-Driving Your Cars in Our State

A logo of Tesla Motors on an electric car model is seen outside a showroom in New York
A logo of Tesla Motors on an electric car model is seen outside a showroom in New York on June 28, 2010. Shannon Stapleton—Reuters

Iowa's DOT recently put the kibosh on a three-day Tesla Motors test drive in the state capital.

If you want to check out one of Tesla’s newfangled electric rides before buying one, you can add Iowa to the list of states to steer clear of.

That’s because Iowa’s transportation department is telling Tesla Motors to stop offering test drives in the state because doing so is illegal, reports the Des Moines Register. Iowa’s DOT apparently said the test drives–conducted by Tesla in West Des Moines earlier this month–were illegal because Tesla isn’t a licensed auto dealer in Iowa, and that state law bans auto manufacturers from selling vehicles directly to consumers.

Trouble is, Tesla doesn’t sell through traditional franchise outlets, and the company has no franchises dealer relationships anywhere in the U.S. If you want to buy one of billionaire Elon Musk’s ballyhooed electric super-cars, you have to transact directly with the company. Unless you’re filthy rich and/or casually profligate, that’s going to be a tall order for most buyers, considering the base price on a Tesla Model S starts in the $70,000 range and surges by tens of thousands from there.

Note that driving Tesla cars in Iowa is perfectly legal. It’s just the test-driving or selling through a storefront part that’s the problem.

Forbidding car makers from selling directly to the public sounds odd, but in fact auto manufacturers are prohibited from selling directly to consumers in nearly every state. In Texas, for instance, Tesla has two show galleries, one in Houston and another in Austin, but as Tesla itself notes on its website:

In an effort to comply with the current laws, employees at these galleries are prevented from discussing pricing and the reservation process. This includes any discussion on financing, leasing, or purchasing options. Also, galleries cannot offer test drives. The store’s interactive kiosks are also amended to remove pricing. Lastly, we are unable to refer the customer to another store out of state. This puts Tesla at a serious disadvantage and inhibits our ability to reduce misconceptions and educate people about Electric Vehicles and the technology. Furthermore, people are forced to leave the gallery frustrated, lacking sufficient information about the car and the brand.

There may be a political element to the kerfuffle as well: the Register notes franchise auto dealers in states around the country have worked with dealers associations to keep Tesla out, presumably threatened by Tesla’s unconventional sales model. In fact, it was Iowa’s Automobile Dealers Association that tipped the DOT off to Tesla’s test drives in West Des Moines, says the Register.

But not allowing auto manufacturers to sell directly to the public may be harming consumers, argues a 2009 competition-related advocacy report on the U.S. Department of Justice’s website. The paper advocates “eliminating state bans on direct manufacturer sales in order to provide automakers with an opportunity to reduce inventories and distribution costs by better matching production with consumer preferences,” and notes that economic arguments for states’ bans on direct auto sales that cite holdup or free-rider issues “are not persuasive because competition among auto manufacturers gives each manufacturer the incentive to refrain from opportunistic behavior and to work with its dealers to resolve any free-rider problems.”

TIME Video Games

Rudy Giuliani Explains Why Noriega’s Call of Duty Lawsuit Is ‘Absurd’

The former mayor of New York explains why Activision chose him to lead a very public pushback against Manuel Noriega's lawsuit over the use of the former Panamanian military leader's likeness in the military shooter Call of Duty: Black Ops 2.

Rudy Giuliani minces no words when speaking about former Panamanian military leader Manuel Noriega. When he describes the man he calls “a criminal of the worst kind,” you can hear the outrage. And when he refers to Noriega’s lawsuit against Call of Duty publisher Activision over the use of his likeness in one of the games, he repeatedly calls it “absurd.”

“Noriega is one of the worst criminals, dictators, opressors, terrorists, whatever you want to call it, of the past 30 or 40 years,” he tells me. “He’s been convicted in three countries, the U.S., France and Panama. And he’s suing a decent, good company, because he is included in a video game as a bit player.”

In July, lawyers for Noriega, currently serving a prison sentence in a Panamanian jail, sued Activision, alleging the company used Noriega’s likeness in the first-person shooter Call of Duty: Black Ops 2 in a damaging way, without his permission, and without paying him royalties.

In the game, Activision’s version of Noriega works with the CIA to apprehend a fictional Nicaraguan political activist named Raul Menendez who’s the game’s prime antagonist. But Noriega betrays his own Panamanian Defense Force and frees Menendez, only to be savagely beaten by the terrorist leader. Later, players are tasked with capturing Noriega, loosely mirroring events that transpired during the historical invasion of Panama by President George H.W. Bush in 1989, during which the real Noriega was captured.

I spoke with Giuliani–a celebrity-caliber presence himself–about the case by phone. The former mayor of New York says he views the matter above all as a question of free speech, but says it’s also about precedent-setting he calls “extremely dangerous” were Noriega to prevail. He mentions the chilling effect it might have on historical fiction, for instance, and not just the sort of drier, voluminous, fact-obsessed tomes a James Michener might write, but gonzo-revisionist stuff like Seth Grahame-Smith’s novel Abraham Lincoln, Vampire Hunter, in which the 16th U.S. president runs around staking the bloodsucking undead.

“If Noriega can do this–since video games, movies and books are considered to be exactly the same for free speech purposes, according to the Supreme Court decision in 2011 written by Justice Scalia–then Osama bin Laden’s heirs could sue the filmmakers of Zero Dark Thirty for bin Laden’s portrayal in that film,” Giuliani tells me. “Public figures, good ones, bad ones, who are included in books, movies and video games, all of these would have a right to sue.”

Here’s the rest of the interview in full.

Why did Activision contact you, specifically, to address this case publicly at this time? You obviously have a breadth of legal experience, but I’m not sure people think about you as a legal figure these days.

Well, I’ve been at Bracewell & Giuliani, that’s my law firm, and I’ve been practicing law there for nine years. So although it hasn’t gotten as much attention as some of the other things I do, I’ve been back at the practice of law now for at least nine years.

I think that I have a reputation of being a very good lawyer. I’ve argued cases in almost every court you could think of, including the United States Supreme Court. It’s an area of the law I know well. And I think also the fact that I have a background as a narcotics prosecutor is important here. I was head of the narcotics division in the United States Attorney’s office. As the Associate Attorney General, I was in charge of the Drug Enforcement Administration. I probably possess considerably more knowledge about Noriega than the vast majority of lawyers. So it’s a combination of those things. And I’d like to think they asked me because I’m a great lawyer, which I am.

You’ve been talking about this case from the free speech angle, but Noriega’s lawyers are pushing this on the basis of a principle known as “right of publicity,” which, while it varies from state to state, is supposed to afford individuals some measure of control over how they’re depicted in commercial products. You’ve had football and basketball player sue Electronic Arts over the use of their likenesses in games, for instance, resulting in a multimillions payout, and the band No Doubt sued Activision for using their likenesses in a music game and got Activision to settle out of court.

I think you’ve hit on exactly the right point, the point over which the case is going to be argued, or as we say as lawyers, “distinguishing this case from those ones.” And they are very, very distinguishable.

The two cases you’re talking about, the football case and the band case, the litigants were basically the principle figures in the games. And not only were they the principle figures in the game, they were advertised as such. And you could play them in the game. So there was not enough transformative use involved.

Remember, that’s the distinction. If the court finds that there’s been transformative use of the character, then we win under the First Amendment. In those cases, the court didn’t believe there’d been sufficient transformative use because the football players were actually shown making their football plays. The band was actually shown playing their songs. And they were principles, and the video games were marketed around them.

(L) Panamanian strongman Manuel Antonio Noriega takes part in a news conference at the Atlapa center in Panama City on Oct. 11,1998.(R) The character Noriega claims was created in his likeness.
Panamanian strongman Manuel Antonio Noriega (left) sues Activision over a portrayal of him in Activision’s Call of Duty: Black Ops 2 game (right) Alberto Lowe—Reuters; Activision/AP

In this case, Noriega appears in only two of 11 segments. He is one of 45 characters. If you add up the average time the game is played, he appears for about 1% of the game. You cannot play him in the game, as you could in the other games. Most importantly, he is not found anywhere in any of the advertising for the game, he is such an insignificant bit player. When you go back and look at the reviews of this game, which is one of the most popular games in the world, there’s no mention of Noriega, he’s so unimportant. And from the standpoint of transformative use, Noriega isn’t shown doing what he actually did. Noriega is being used as a historical figure, but shown doing very different, fictionalized things, the way Lincoln was in a book like Abraham Lincoln, Vampire Hunter, which of course is a genre, not only in video games, but in movies.

Think of Forrest Gump. Forrest Gump the character is shown with Nixon, Kennedy, Bear Bryant, all kinds of famous people. None of that really happened. The more transformational the work is, the more it’s protected as free speech. And we have a complete transformation in Call of Duty: Black Ops 2, because unlike these other cases, Noriega’s shown doing things that are creative, things that a creative mind made up. That’s why free speech is so important. We want to protect people’s ability to be creative.

What about the fact that Noriega’s not a U.S. citizen? Let’s assume someone made a game where a figure like Noriega was, in fact, the principle component, maybe where you even play as him for whatever reason, and furthermore the game cares about historical verisimilitude, and then the company that makes the game markets it on that basis? What if the person portrayed, but not a U.S. citizen, sues on that basis?

We believe that that would still be protected because Noriega is such a public person. It goes back to a case a long time ago that started all of this libel law, New York Times v. Sullivan. What that case says is, if you are a public person, you are entitled to considerably less protection of your right of privacy and publicity than a person who is a private person. They even extend public persons to people that are victims of crime who don’t intentionally become public persons. But when you are a public person intentionally, your protection is lessened dramatically.

I can’t think of someone who has worked harder at becoming a public person than Noriega, in the most infamous ways possible. Every one of the crimes that he committed, every one of the things he did in the U.S. and France, I mean this is about as public as a person can get. In many ways, I think the Supreme Court would say he’s lost the usual protection you would have for your right of privacy or your right to be free of publicity.

But let me be clear, that’s not our case. We don’t have to go that far, because this is a one-percenter. If this were a movie, he would be way down at the bottom of the credits. This is a guy that’s trying to extort money out of a decent company, and who the heck knows what he wants to do with it down in Panama, and who knows what you can accomplish in a Panamanian prison if you can get yourself a few million bucks.

If the suit isn’t dismissed, will you personally lead it at trial?

The extent to which I am involved in it we’ll figure out, but I’m deeply involved in it right now.

Your browser, Internet Explorer 8 or below, is out of date. It has known security flaws and may not display all features of this and other websites.

Learn how to update your browser