How is 303 Creative LLC v. Elenis *any* different than Masterpiece Cakeshop v. Colorado Civil Rights Commission? I cannot see a single substantive difference between the two cases. Why did this even need to come to the Supreme Court again?
Masterpiece Cakeshop v. Colorado Civil Rights Commission* Never decided the issue of compelled artistic speech on its merits. Inst ed it held that the baker, Phillips, did not receive a fair haring before the Commission, and that its decision could not stand. But they left for a future case the actual decision of then underlying issue. The official 'SCOTUSBlog wrote: Nearly four years after the Supreme Court declined to decide whether compelling a Colorado baker to bake a cake for same-sex couples would violate his right to freedom of speech, the justices agreed to take up a similar question in another case from Colorado, this time involving a website designer. The justices’ decision to grant review in 303 Creative LLC v. Elenis sets up yet another major ruling on the intersection between LGBTQ rights and religious beliefs. [Emphasis in the Original] In Masterpiece Cakeshop the court wrote in its Syllabus: ... Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. That consideration was compromised, however, by the Commision’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. ... For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. In the Opinion, Justice Kennedy wrote: The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. ... [T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. [Boldface added] ... However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. [Boldface added]
I found the case in an episode of Amicus (podcast). Mark Joseph Stern was on the show and Dahlia Lithwick referred to an article he had written about the subject. Here is a quote from the article: In the 1990s, Thomas disapproved of race-conscious redistricting designed to empower black Democrats; today, he objects to race-conscious redistricting designed to empower white Republicans. In the 1990s, all the conservative justices voted to not allow taking race in to account to create solidly black districts. All the liberals said that it would be ok. Now (in Cooper v. Harris) all the liberals are saying it is not ok to take race in to account when destroying Democratic districts through gerrymandering and the all the conservatives said it would be ok, save Clarence Thomas, who remained consistent with the previous ruling, giving the liberal justices a victory.
Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely.
I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made.
There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing.
There is ample reason to conclude that "non-commercial" would include a church, as well as advocating a political cause or candidate. The hard part of "personal". In the context of (Canadian) bankruptcy law, it can mean "non-business use"; in the context of "personal use property", it can be "A type of property that an individual does not use for business purposes or hold as an investment. In other words, property that an individual owns for personal enjoyment". US tax law takes "personal purposes" to refer to non-business purposes. But in the context of copyright (especially music downloading / copying), it is taken to refer to the use of or by an individual. Distributing free copies of a protected work does not get legally sanctioned due to the copying being non-commercial. The alternative term "private" is much clearer, in identifying "just you", but is probably avoided in this kind of context so as to avoid the wrong inference that you can only play Pokemon in the privacy of your own home. So the slightly less clear term "personal" is used instead of "private" especially in copyright-related contexts. "Personal" and "private" are not exactly the same, but when it's about use, I don't see any difference, and I think there is no question that use to attract to a church or political candidate is not "private", it is public. Since the license does not define "your own personal purposes" and there is not an existing crystal-clear definition of "personal purposes", the phrase could be given its "ordinary (plain) meaning". Of course, plain meaning has to give way to contractual intent, so we have to figure out what the parties intended. Except, you don't have a contract with Niantic, but still, plain meaning surely has some place in the law of licenses. At this point, in a lawsuit, both sides would hire an expert witness like a linguist or English teacher to make the case that a church or other non-commercial non-private use is / is not included in the meaning of "personal purpose". A silly argument could be made to the effect that if you personally have an interest in doing something then it is a personal purpose (if specifically commercial, it would be precluded by the term "noncommercial"). What makes this silly is that everybody does things for personal purposes (even acting in a way that benefits others, since you do so for the personal reason that you should do so), and thus "personal" would not mean anything. That is, "personal purposes" does not mean "whatever motivation or interest you personally have". You can also gain a certain understanding of what "personal purposes" means by looking at similar licenses. In the context of academic publishing, authors are typically granted license to copy "for personal, professional, or teaching purposes". Professional purposes and teaching purposes are things that the person has an interest in, so by mentioning these things separately, we must conclude that "teaching" is not a "personal purpose". And so: I would conclude that a court could find that using a product to support a political campaign, philosophy, or religion, is a "public" purpose, not a "personal" purpose. At the same time, at least as I understand it, a lure module is a thing that others besides yourself personally can see (I admit, I don't go), which implies that the purpose of the thing is not entirely private. In addition, there is a fair amount of buzz out there about how a lure could be good for business, which is (1) clearly in contradiction of the license terms and (2) clearly a golden opportunity for Niantic, perhaps in a few weeks after everybody gets hooked and then they will offer non-personal licenses. Their license terms also say that you will not "use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms". I would say that that definitively says "No don't do it", and it also means that you can't be nice to a neighbor. So what they literally say and what they really intend are probably completely different things.
I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies.
It has as much legal standing as the evidence that supports it. See a lawyer to evaluate your position, obviously. But if the evidence is clear that there is no infringement, then the cease and desist letter doesn't mean much.