Yesterday, the Attorney General (AG) of the State of Illinois released an opinion that Daily Fantasy Sports constitute gambling under Illinois law (Opinion).
There are two notable elements to this opinion.
First, the AG directly addresses FanDuel's and DraftKings' claim that under the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) fantasy sports are legal (see Opinion at 3-5). While the UIGEA does exclude from the definition of "bet or wager" the participation in fantasy sports games, the AG points out that the UIGEA does not preempt existing state laws regulating gambling.
Second, the definition of gambling under Illinois State law covers both games of chance and games of skill (see Opinion at 6-8). Thus, FanDuel's and DraftKings' second flagship argument -- that fantasy sports is a game of skill and thus cannot be gambling -- collapses.
We should expect that FanDuel and DraftKings will mount legal challenges to the AG's Opinion, and will lobby the Illinois legislature to change the law.
- HP
Thursday, December 24, 2015
Friday, December 18, 2015
Privacy - Opting Out
It is in basically every website’s Privacy Policy, or it
should be. A statement that you
can “opt out” from online behavioral advertising, which means presenting you
with online advertisements based on information collected about you that is
more likely to be relevant to you.
Opting out of online behavioral advertising does not stop
online advertising. You will still
be presented with advertisements, just not advertisements based on your
information.
Nor, does opting out of online behavioral advertising affect
what advertisers care deeply about – their ability to collect information about
you. They can still track and
collect more information about you.
One key point is that your decision to opt out of online
behavioral advertising is recorded using cookies. So if you ever reset your browser and its cookies, then you
will have to re-opt out of online advertising.
If you would like to opt out, there are two major voluntary
organizations that most advertisers are part of: (1) the DAA (Digital Advertising Alliance) and (2) the NAI
(Network Advertising Initiative).
Here are links to their opt out pages: DAA opt out page and NAI opt out page.
- Henry Park
Wednesday, December 16, 2015
Happy Holidays
May your Holidays be filled with family and friends. Best wishes for a successful and prosperous 2016.
- Henry Park
Sunday, December 13, 2015
Fantasy Sports - Down but not out
On December 11, 2015, Justice Manuel J. Mendez ruled on the New York Attorney General's motions for injunctive relief to bar FanDuel, Inc. and DraftKings, Inc. from offering daily fantasy sports to New York residents. FanDuel Order (linked at Mega.nz) and DraftKings Order (linked at Mega.nz).
On a motion for injunctive relief, the NYAG needed to show that (1) it was likely to succeed on the merits, (2) irreparable injury absent the injunction, and (3) that the balance of equities favors the NYAG. Unlike most motions for preliminary injunctions that try to maintain the status quo, these motions sought to stop the defendants business. In any case, the grant of a motion for injunctive relief is not typical and should not be given unless it is necessary.
Justice Mendez found that the NYAG established that it was likely to succeed under its claim for injunctive relief for repeated fraudulent conduct or illegality (Executive Law § 63), and for violations of consumer protection provisions (General Business Law §§ 349 and 350). Order at page 9, linked from Mega.co.nz. Justice Mendez also found that the NYAG had even a greater likelihood of success under its claims that daily fantasy sports are illegal gambling (New York State Constitution Article I, § 9 and Penal Law § 225.00). Order at page 9.
Some key preliminary findings by Justice Mendez were that (1) Penal Law § 225.00 refers to a person "risk[ing] something of value" and not a wager or bet, and (2) the Federal Unlawful Internet Gambling Enforcement Act of 2006 does not apply because the Act does not apply to transactions that are within a single State. Order at page 7.
Thus, Justice Mendez granted the NYAG's motions for injunctive relief. With that order, both FanDuel and DraftKings would have to terminate any dealings with New York consumers (FanDuel previously stopped accepting money from New York consumers in November). However, shortly after Justice Mendez granted the NYAG's motions, FanDuel appealed to the New York Supreme Court's Appellate Division and an interim stay order was granted and along with an order expediting briefing. Stay Order at page 3.
So where do these Court actions leave FanDuel and DraftKings? There will be an expedited briefing and hearing at the appellate level on Justice Mendez's Order. Following that decision, the case will return to Justice Mendez for discovery. It is important to note that a decision on a motion for injunctive relief does not affect the ultimate legal determination.
- Henry Park
updated on 12/17 revised last paragraph
On a motion for injunctive relief, the NYAG needed to show that (1) it was likely to succeed on the merits, (2) irreparable injury absent the injunction, and (3) that the balance of equities favors the NYAG. Unlike most motions for preliminary injunctions that try to maintain the status quo, these motions sought to stop the defendants business. In any case, the grant of a motion for injunctive relief is not typical and should not be given unless it is necessary.
Justice Mendez found that the NYAG established that it was likely to succeed under its claim for injunctive relief for repeated fraudulent conduct or illegality (Executive Law § 63), and for violations of consumer protection provisions (General Business Law §§ 349 and 350). Order at page 9, linked from Mega.co.nz. Justice Mendez also found that the NYAG had even a greater likelihood of success under its claims that daily fantasy sports are illegal gambling (New York State Constitution Article I, § 9 and Penal Law § 225.00). Order at page 9.
Some key preliminary findings by Justice Mendez were that (1) Penal Law § 225.00 refers to a person "risk[ing] something of value" and not a wager or bet, and (2) the Federal Unlawful Internet Gambling Enforcement Act of 2006 does not apply because the Act does not apply to transactions that are within a single State. Order at page 7.
Thus, Justice Mendez granted the NYAG's motions for injunctive relief. With that order, both FanDuel and DraftKings would have to terminate any dealings with New York consumers (FanDuel previously stopped accepting money from New York consumers in November). However, shortly after Justice Mendez granted the NYAG's motions, FanDuel appealed to the New York Supreme Court's Appellate Division and an interim stay order was granted and along with an order expediting briefing. Stay Order at page 3.
So where do these Court actions leave FanDuel and DraftKings? There will be an expedited briefing and hearing at the appellate level on Justice Mendez's Order. Following that decision, the case will return to Justice Mendez for discovery. It is important to note that a decision on a motion for injunctive relief does not affect the ultimate legal determination.
- Henry Park
updated on 12/17 revised last paragraph
Monday, November 30, 2015
Cooking recipe - Not protectable under Copyright Law
Following our earlier post on this topic, another court has ruled that cooking recipes are not protectable under Copyright Law.
In Norberto-Colon Lorenzana et al. v. South American Rests. Corp., Case No. 14-1698, August 21, 2015, the Court found that the recipe and instructions were "quite plainly not a copyrightable work." Opinion at p.6 (a copy is being hosted on Mega.co.nz).
I believe the Court's finding may be overbroad. While I agree that a list of a recipe's ingredients is not protectable, I do not agree necessarily that a recipe's instructions are not protectable. Whether instructions are protectable depends on how they are written. The Court cites Publ'ns Int'l Ltd. v. Meredith Corp., 88 F.3d 473, 480-81 (7th Cir. 1996) to support its position that "recipes are functional directions to achieve a result and therefore not copyrightable". Opinion at p.6. However, in the Meredith case, the Court expressly stated that the instructions at issue "contain[ed] no expressive elaboration upon either [the list of required ingredients or the directions for combining them], as opposed to recipes that might spice up functional directives by weaving in creative narratives." Available on Google Scholar at 480. Thus, the Meredith Court explicitly recognized that some instructions may be protectable.
- Henry Park
In Norberto-Colon Lorenzana et al. v. South American Rests. Corp., Case No. 14-1698, August 21, 2015, the Court found that the recipe and instructions were "quite plainly not a copyrightable work." Opinion at p.6 (a copy is being hosted on Mega.co.nz).
I believe the Court's finding may be overbroad. While I agree that a list of a recipe's ingredients is not protectable, I do not agree necessarily that a recipe's instructions are not protectable. Whether instructions are protectable depends on how they are written. The Court cites Publ'ns Int'l Ltd. v. Meredith Corp., 88 F.3d 473, 480-81 (7th Cir. 1996) to support its position that "recipes are functional directions to achieve a result and therefore not copyrightable". Opinion at p.6. However, in the Meredith case, the Court expressly stated that the instructions at issue "contain[ed] no expressive elaboration upon either [the list of required ingredients or the directions for combining them], as opposed to recipes that might spice up functional directives by weaving in creative narratives." Available on Google Scholar at 480. Thus, the Meredith Court explicitly recognized that some instructions may be protectable.
- Henry Park
Wednesday, November 25, 2015
Happy Thanksgiving Day!
May your Thanksgiving Holiday be one that you, your family, and loved ones will always treasure in your hearts.
- From all of us at the Law Office of Henry Park, PC
Wednesday, November 18, 2015
USPTO and Java v8 update 66 build 17
I received a notice that there is an updated version of Java.
A fellow attorney told me that the US Patent Electronic Business Center has approved the update for use with their systems.
- Henry Park
updated on Nov. 20 to reflect USPTO approval for use of this update.
A fellow attorney told me that the US Patent Electronic Business Center has approved the update for use with their systems.
- Henry Park
updated on Nov. 20 to reflect USPTO approval for use of this update.
Fantasy Sports - The New York Attorney General raises the stakes
On Tuesday, November 17th, the New York Attorney General filed complaints against FanDuel and DraftKings alleging that they violated numerous provisions of New York State Law. A copy of the complaint against FanDuel can be found here (linked on Mega.co.nz) and a copy of the complaint against DraftKings can be found here (linked on Mega.co.nz).
- Henry Park
- Henry Park
Sunday, November 15, 2015
Fantasy Sports - FanDuel and DraftKings raise their bets
It is all over the news. Last week, Eric Schneiderman, the Attorney General of New York State, released a statement that daily fantasy sports by FanDuel Inc. and DraftKings, Inc. violate New York's laws against gambling. Along with the pronouncement, the Attorney General sent both fantasy sports operators cease and desists letters. The letter to FanDuel can be found here, and the letter to DraftKings can be found here.
The heart of those letters is that under the New York State Constitution gambling in all forms is prohibited, except as specifically authorized by the Legislature. N.Y. Const. Art. I, sec. 9. And, the Legislature has defined gambling as:
A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.
N.Y. Penal Law § 225.00(2). Thus, a customers are "clearing placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes. Further, each [business's] wager represents a wager on a "contest of chance" where winning or losing depends on numerous elements of chance to a 'material degree.'" Cease & Desist letters, at 1.
In response to those letters, FanDuel and DraftKings filed a declaratory judgment lawsuits against the Attorney General of New York State and New York State. A copy of the FanDuel complaint is available here (I am hosting it on Mega.co.nz), and a copy of the DraftKings complaint is available here (I am hosting it on Mega.co.nz).
The flagship argument by both FanDuel and DraftKings is that daily fantasy sports are games of skill and not chance. DraftKings Complaint, ¶¶ 25-35, FanDuel Complaint, ¶¶ 24-30. Additionally, they cite the federal exception to fantasy sports in the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) as evidence that fantasy sports are games of skill and that they are not accepting bets or wagers under the Act. DraftKings Complaint, ¶¶ 36-38, FanDuel Complaint, ¶¶ 26. Finally, DraftKings points out that the legal standard for determining whether a game is a game of chance or skill requires that chance be the "dominating element". DraftKings Complaint, ¶ 66.
If we assume that DraftKings did it research and that under New York State law the dominating element in a game must be chance for it be declared a game of chance, then both businesses are in a decent posture heading into their lawsuits.
Both businesses' attempts to cloth themselves in the federal exception in UIGEA is not particularly convincing. First, the Act did not preempt any State law prohibiting, permitting or regulating gambling. 31 U.S.C. § 5361(b). Next, the fantasy sports discussed in the Act were the traditional season long version which is different from the daily fantasy sports currently at issue. Finally, the Attorney General has not alleged that there are bets or wagers in violation of the Act.
I look forward to hearing from both FanDuel and DraftKings about how in a single fantasy game chance, such as an injury, is not a dominating element.
- Henry Park
The heart of those letters is that under the New York State Constitution gambling in all forms is prohibited, except as specifically authorized by the Legislature. N.Y. Const. Art. I, sec. 9. And, the Legislature has defined gambling as:
A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.
N.Y. Penal Law § 225.00(2). Thus, a customers are "clearing placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes. Further, each [business's] wager represents a wager on a "contest of chance" where winning or losing depends on numerous elements of chance to a 'material degree.'" Cease & Desist letters, at 1.
In response to those letters, FanDuel and DraftKings filed a declaratory judgment lawsuits against the Attorney General of New York State and New York State. A copy of the FanDuel complaint is available here (I am hosting it on Mega.co.nz), and a copy of the DraftKings complaint is available here (I am hosting it on Mega.co.nz).
The flagship argument by both FanDuel and DraftKings is that daily fantasy sports are games of skill and not chance. DraftKings Complaint, ¶¶ 25-35, FanDuel Complaint, ¶¶ 24-30. Additionally, they cite the federal exception to fantasy sports in the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) as evidence that fantasy sports are games of skill and that they are not accepting bets or wagers under the Act. DraftKings Complaint, ¶¶ 36-38, FanDuel Complaint, ¶¶ 26. Finally, DraftKings points out that the legal standard for determining whether a game is a game of chance or skill requires that chance be the "dominating element". DraftKings Complaint, ¶ 66.
If we assume that DraftKings did it research and that under New York State law the dominating element in a game must be chance for it be declared a game of chance, then both businesses are in a decent posture heading into their lawsuits.
Both businesses' attempts to cloth themselves in the federal exception in UIGEA is not particularly convincing. First, the Act did not preempt any State law prohibiting, permitting or regulating gambling. 31 U.S.C. § 5361(b). Next, the fantasy sports discussed in the Act were the traditional season long version which is different from the daily fantasy sports currently at issue. Finally, the Attorney General has not alleged that there are bets or wagers in violation of the Act.
I look forward to hearing from both FanDuel and DraftKings about how in a single fantasy game chance, such as an injury, is not a dominating element.
- Henry Park
Monday, November 2, 2015
Technology - Encryption Registration Request
This is the third in a series of posts concerning U.S.
export control laws.
The first post discussed the various export laws, and the second post discussed signing up for a SNAP-R account so you can submit an "export license applications, commodity classification requests, encryption registration, reexport license applications, and license exception AGR notifications...."
The first post discussed the various export laws, and the second post discussed signing up for a SNAP-R account so you can submit an "export license applications, commodity classification requests, encryption registration, reexport license applications, and license exception AGR notifications...."
In this post, we will review the submission process for an encryption registration request.
1. After you have logged into your
account, you select "Create Work Item" from the left hand menu.
2. From
the "Type" drop down menu, you select "Encryption Registration" and add
your internal reference code.
3. This will bring you to the encryption registration form. The first section is your contact information.
4.
The second section concerns whether you are submitting the encryption
registration for your own business or a third-party business. In this example, we are submitting the
form for another business. We input the third-party's information in Question 14, and confirm our information in Question 15.
5. The
third section is where you can provide additional relevant information
concerning your encryption request that may be required by the Export
Administration Regulations (EAR). In our example, we leave this blank.
6. The
last section is where you attach your completed version of Supplement No. 5 to
Part 742. To attach your document click the "View and Manage Supporting Document" link.
7. On the next page, click the "Upload Supporting Documents" link.
8. On the next page, add the document description and the document type is "Encryption Registration Supp. No. 5 to Part 742".
9. After the document has been attached, you should follow all of the recommendations.
10. Then "Submit" the request.
11. As part of the submission request, you have to "sign" the request.
12. After the request has been submitted, you will receive a confirmation message.
13. Almost immediately thereafter, you should receive a message stating that your request has been accepted, and it should provide your Encryption Registration Number.
- Henry Park
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