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

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

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.

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

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

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...." 

      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