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Each issue ofIP magazine includes summaries of recent federal and state appellate opinions that address significant intellectual property issues. The full text of each opinion is available by clicking on the case name.. Trademark Playboy Enterprises Inc. v. Netscape Communications Corporation Ninth Circuit January 14, 2004 Triable issues existed as to whether Internet search engine’s practice of requiring adult- oriented companies to link their banner ads using trademarked terms constituted actionable trademark infringement. The court of appeals reversed a judgment of the district court. The court held that an Internet search engine’s practice of requiring adult-oriented companies to link their banner ads using trademarked terms can constitute actionable trademark infringement. (PEI) brought a trademark infringement and dilution action in district court against appellees Netscape Communications Corporation and Excite, Inc. PEI challenged Netscape and Excite’s practice of requiring adult-oriented companies to link their banner ads on Netscape and Excite’s Internet search engines using PEI’s trademarks “playboy” and “playmate.” PEI introduced an expert study establishing that a statistically significant number of Internet users searching for the terms “playboy” and “playmate” would think that PEI, or an affiliate, sponsored banner ads containing adult content that appear on the search results page. The district court granted summary judgment in favor of Netscape and Excite. PEI appealed. The core element of trademark infringement, the likelihood of confusion, was at the center of this case. No dispute existed regarding the other requirements set forth by the statute: PEI clearly held the marks in question and Netscape and Excite used the marks in commerce without PEI’s permission. PEI’s strongest argument for a likelihood of confusion was for initial interest confusion, customer confusion that creates initial interest in a competitor’s product. Although dispelled before an actual sale occurs, initial interest confusion impermissibly capitalizes on the goodwill associated with a mark and is therefore actionable trademark infringement. Through initial consumer confusion, the competitor will still have gained a customer by appropriating the goodwill that PEI has developed in its mark. The Internet user will have reached the site because of Netscape and Excite’s use of PEI’s mark. Such use is actionable. The Ninth Circuit employs an eight-factor test to determine the likelihood of confusion. The eight factors are: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines. Because actual confusion is at the heart of the likelihood of confusion analysis, PEI’s expert study alone probably precluded summary judgment. After examining all of the factors, it had to be concluded that the majority favored PEI. Accordingly, a genuine issue of material fact existed as to the substantial likelihood of confusion. Because a genuine issue of fact existed as to likelihood of confusion, summary judgment had to be denied as to the fair use defense. A fair use may not be a confusing use. To be considered a nominative use, the product or service in question must be one not readily identifiable without use of the trademark. The situation at hand ran afoul of this first requirement for nominative use. Netscape and Excite could use other words, besides PEI’s marks, to trigger adult-oriented banner advertisements. There was nothing indispensable, in this context, about PEI’s marks. Thus, the district court’s grant of summary judgment based on nominative use had to be reversed. Under the functional use doctrine, parts of a design that have a functional use may not receive trademark protection. Nothing about the marks used to identify PEI’s products was a functional part of the design of those products. Thus, the marks were not functional and could be granted trademark protection. It had to be held that genuine issues of material fact existed with respect to Netscape and Excite’s keying practices. Thus, summary judgment was inappropriate on the trademark infringement claim. The federal dilution statute provides eight factors courts may use, along with other relevant factors, in determining whether a mark is distinctive and famous, including the nature and extent of use of the same or similar marks by third parties. A dispute of material fact existed as to the only factor relevant to the famousness of the marks that defendants contest. Accordingly, the first contested requirement of dilution favored PEI on summary judgment. Congress intended to limit only commercial speech, as opposed to political or other more closely protected speech, when it passed the dilution statute; thus, it included the requirement that the use be a commercial one. A successful argument that Netscape and Excite make no commercial use of the marks, then, would be an argument that the speech associated with their actions was political, not commercial. Netscape and Excite did not make such an argument, and it would be difficult to do so in light of the clear evidence of the commercial nature of their enterprise. Accordingly, PEI satisfied the second disputed requirement of dilution. It had to be concluded that the district court erred when it held, applying the standard then in force, that PEI had shown no likelihood of dilution. Genuine issues of material fact existed as to PEI’s trademark infringement and dilution claims. Accordingly, the district court’s grant of summary judgment in favor of Netscape and Excite had to be reversed and the matter remanded for further proceedings. Judge Berzon concurred, writing separately to express concern that one of the precedents relied upon by the majority was wrongly decided and may one day need to be reconsidered en banc. Copyright Mattel Inc. v. Walking Mountain Productions Ninth Circuit, December 29, 2003 Artist’s photographs portraying nude Barbie doll in danger of being attacked by vintage household appliances constituted fair use under Copyright Act. The court of appeals affirmed a judgment of the district court in part, vacated in part, and remanded. The court held that an artist’s photographs portraying a nude Barbie doll in danger of being attacked by vintage household appliances constitutes fair use under the Copyright Act. Appellee Thomas Forsythe developed a series of 78 photographs entitled “Food Chain Barbie,” in which he depicted appellant Mattel Inc.’s Barbie dolls in various absurd and often sexualized positions. Forsythe described the message behind his photographic series as an attempt to critique the objectification of women associated with Barbie, and to lambast the conventional beauty myth and the societal acceptance of women as objects. Forsythe had a website on which he depicted low resolution pictures of his photographs. Forsythe’s market success was limited. Mattel filed suit in federal district court, alleging that Forsythe’s “Food Chain Barbie” series infringed Mattel’s copyrights, trademarks and trade dress. During discovery, Forsythe served on Mattel the Federal Rule of Civil Procedure 26(a)(2)(B) expert witness report of Dr. Douglas Nickel, an expert on art history and curator of photography at the San Francisco Museum of Modern Art (SFMOMA). After receiving that report, Mattel subpoenaed Nickel to appear for a deposition and to produce certain documents. The subpoena demanded all documents relating to Forsythe and his works, all documents relating to Mattel or Barbie, and all documents relating to the SFMOMA’s “policy or practice relating to the third-party copying, reproduction, or photographing” of works in which the SFMOMA had a proprietary interest. The subpoena also demanded that the SFMOMA produce a witness or witnesses to testify at deposition on various topics. The SFMOMA served written objections to the subpoena on Mattel. The district court quashed the subpoena, and sanctioned Mattel. Forsythe moved for summary judgment. The district court granted the motion, finding that Forsythe’s use of Mattel’s copyrighted work was fair use. Further, the district court found that Forsythe’s use of Mattel’s trademark and trade dress caused no likelihood of confusion as to Mattel’s sponsorship of Forsythe’s works. The court dismissed Mattel’s trademark dilution claim because it found that Forsythe’s use had been “noncommercial.” The district court further found that Mattel’s remaining state claims failed as a matter of law. Mattel appealed. The Copyright Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. The fair use exception, embodied in 17 U.S.C. 107, excludes from copyright restrictions certain works, such as those that criticize and comment on another work. To determine whether a work constitutes fair use, the court balances four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The threshold question with regard to the first factor was whether a parodic character could reasonably be perceived. A parody is a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. For the purposes of copyright law, a parodist may claim fair use where he or she uses some of the elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. Mattel, through impressive marketing, established Barbie as “the ideal American woman” and a “symbol of American girlhood” for many. Forsythe turns this image on its head by displaying carefully positioned, nude, and sometimes frazzled looking Barbies in often ridiculous and apparently dangerous situations. His lighting, background, props, and camera angles all serve to create a context for Mattel’s copyrighted work that transform Barbie’s meaning. By developing and transforming associations with Mattel’s Barbie doll, Forsythe created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act. Consequently, this factor weighed heavily in favor of Forsythe. As to the third factor, Forsythe was justified in the amount of Mattel’s copyrighted work that he used in his photographs. Mattel’s argument that Forsythe could have used a lesser portion of the Barbie doll was completely without merit and would have lead to absurd results. Parodic works are not required to take the absolute minimum amount of the copyrighted work possible. Thus, this factor also weighed in Forsythe’s favor. With regard to the effect of the use upon potential markets, the parodic nature of Forsythe’s work made it highly unlikely that it would substitute for products in Mattel’s markets or the markets of Mattel’s licensees. Nor was it likely that Mattel would license an artist to create a work that was so critical of Barbie. Finally, the public benefit in allowing artistic creativity and social criticism to flourish was great. Balancing the four fair use factors, it had to be held that Forsythe’s work constituted fair use under 107′s exception. Thus, the district court’s grant of summary judgment to Forsythe on Mattel’s copyright infringement claims had to be affirmed. The court of appeals also held that Forsythe did not infringe on Mattel’s trademark, as Forsythe’s use of the Barbie mark was clearly relevant to his work; the Barbie mark in the titles of Forsythe’s works and on his website accurately described the subject of the photographs, which in turn, depicted Barbie and targeted the doll with Forsythe’s parodic message; and, the photograph titles did not explicitly mislead as to Mattel’s sponsorship of the works. The public interest in free and artistic expression greatly outweighed its interest in potential consumer confusion about Mattel’s sponsorship of Forsythe’s works. In addition, the court of appeals determined that Forsythe did not misappropriate Mattel’s trade dress in Barbie’s appearance, as it qualified as a nominative fair use. A defendant’s use is classic fair use where the defendant has used the plaintiff’s dress to describe or identify the defendant’s own product and not at all to describe or identify the plaintiff’s product. A defendant’s use is nominative where he or she used the plaintiff’s dress to describe or identify the plaintiff’s product, even if the defendant’s ultimate goal is to describe or identify his or her own product. Forsythe used Mattel’s Barbie figure and head in his works to conjure up associations of Mattel, while at the same time to identify his own work, which was a criticism and parody of Barbie. The district court’s grant of summary judgment on Mattel’s trademark and dress dilution claims also had to be affirmed. A dilution action only applies to purely commercial speech; Forsythe’s artistic and parodic work was considered noncommercial speech. Thus, it was not subject to a trademark dilution claim. In light of the determination that Forsythe’s work was transformative, Mattel’s remaining state law claims were barred by the First Amendment. With respect to the subpoena, the district court was justified in finding that the subpoena was overly burdensome and served for an improper purpose. Thus, the district court properly quashed the subpoena and did not abuse its discretion in awarding fees and expenses to the SFMOMA’s counsel as a sanction. However, the district court’s decision to deny Forsythe attorney’s fees under the Lanham and Copyright Acts had to be vacated and remanded. Torts Franklin v. Dynamic Details, Inc. Fourth District Court of Appeal, March 2, 2004 Plaintiffs suffered no actionable defamation where defendant’s e- mails expressed fact- based opinions about intellectual property violations exhibited on Web site. The Fourth Appellate District affirmed a judgment. The court held that a defendant’s e-mails to a plaintiff’s business clients were not actionable as libel or trade libel where they expressed the author’s opinions about intellectual property violations and fully disclosed provably true facts on which the opinions were based by directing the recipients to a relevant Web site. Bryan Franklin formed the Franklin-Choi Corp. (FCC) to act as a sales representative for sellers of electronic testing products and equipment. FCC’s clients included USA MicroCraft Inc. and Test-X Fixture Products. Dynamic Details Inc. provided design and manufacturing services to the electronics manufacturing industry. Jim Axton was employed as a DDI corporate director. Franklin sent an e-mail to all of his sales contacts, including Axton, stating that Test-X had made its Web site more interactive, permitting a customer to obtain a picture of a component before placing an order. Franklin provided an Internet address that led the viewer to FCC’s Web site. From there, the Test-X site could be accessed by a link, with the FCC site acting as a frame. Axton visited the FCC Web site and linked to the Test-X product catalog. Axton saw that part of the catalog included part number schemes that he believed were copied from two other companies, Giese International and Test Connections Inc. (TCI). Axton notified both companies. TCI terminated FCC as a sales representative for posting competing Test-X materials in breach of TCI’s contract with FCC. Giese, which had no relationship with Test-X, contested FCC’s posting of its product pages without permission. Axton sent an e-mail to MicroCraft’s CEO stating that FCC and Test-X had stolen copyrighted materials from Giese and TCI and portrayed it on their Web sites as their own. After additional discussion, Axton e-mailed that FCC was demonstrating a profound lack of respect for intellectual property that could reflect poorly on MicroCraft. Axton stated that DDI, which had a relationship with MicroCraft, could not forward intellectual property information to MicroCraft in light of FCC’s activities. Axton also sent an e-mail in response to a sales inquiry from Dave Runyon of FastFixtures, one of FCC’s principal vendors. Axton related that DDI could not consider the product because FCC was not in good standing with DDI due to FCC’s intolerance of intellectual property, copyrights and trade secrets. Franklin and FCC sued DDI and Axton for libel per se, trade libel, and related claims. The defendants successfully moved for summary judgment. The trial court declared that the e-mails were libelous on their face and tended to injure Franklin in his occupation. The trial court concluded, however, that the e-mails were privileged under Civ. Code [ section symbol] 47(c) because DDI was attempting to protect its product, and because MicroCraft would be interested in Franklin’s and FCC’s approach to intellectual property because Franklin was on MicroCraft’s payroll, among other reasons. Franklin and FCC appealed. The court of appeal affirmed, holding in pertinent part that Axton’s e-mails ultimately were not actionable because they expressed Axton’s opinions and fully disclosed provably true facts on which the opinions were based. Under governing defamation law, even a statement of opinion may be defamatory where the speaker states supporting facts that are incorrect or incomplete, or where the speaker has misapprehended the facts. This is because statements of opinion that imply a false assertion of fact are actionable. The dispositive question, therefore, was whether under the totality of the circumstances Axton made a published statement that declared or implied a provably false assertion of fact. The court of appeal concluded that Axton’s first and second e-mails were protected opinions that Franklin and FCC stole copyrighted material, plagiarized data, and engaged in other wrongful conduct. The statements purported to interpret copyright and contract law and to apply that law to fully disclosed facts, in the form of the FCC Web site and its link to the Test-X Web site. The facts that formed the basis of Axton’s asserted opinion were provably true because the existence, content, and layout of the Web sites were not disputed. In addition, the context of the e-mails demonstrated that Axton formed the opinions expressed in his e-mails based solely upon the Web sites that he had viewed, and thus implied no additional facts. As for the third e-mail, that communication was not actionable. Axton correctly related that FCC was not in good standing with DDI, and his characterization of FCC and Franklin as intolerant of intellectual property, copyrights, and trade secrets was too vague to support a cause of action. Because none of the e-mails were actionable as libel or trade libel, the court of appeal refused to consider the unnecessary issue of whether the e-mails were privileged under § 47(c). In closing the court of appeal observed that, for purposes of their additional claims of interference with contractual relations and interference with prospective economic relations, Franklin and FCC failed to show a triable issue of fact as to causation of damages. Trade Secrets DVD Copy Control Association v. Bunner Sixth District Court of Appeal, February 27, 2004 Third party’s prior widespread dissemination of alleged trade secrets precluded owner’s entitlement to preliminary injunction barring disclosure The Sixth Appellate District reversed a judgment. The court held that a third party’s prior widespread dissemination of alleged trade secrets precluded a finding that the owner was entitled to a preliminary injunction barring disclosure. The motion picture, computer and consumer electronics industries adopted the Content Scrambling System (CSS) to encrypt movies and software distributed on Digital versatile discs (DVDs). The industries began licensing the technology pursuant to agreements that required that CSS users maintain the confidentiality of the “master keys” and algorithms necessary to gain access to information encoded via CSS. The industries also established the DVD Copy Control Association, Inc. (DVD CCA) to grant and administer CSS technology licenses. In 1999, Jon Johansen, a teenager in Norway, posted on the Internet a computer program called “DeCSS,” consisting of computer code describing a method for playing an encrypted DVD on a non-CSS-equipped DVD player or drive. DeCSS soon appeared on numerous websites throughout the world, including the website of operated by Andrew Bunner. Many other individuals also posted links to copies of DeCSS, without republishing it themselves. DVD CCA brought a Uniform Trade Secrets Act (UTSA) case against Bunner and other alleged republishers or linkers, claiming that DeCSS embodied or used confidential proprietary information, which the DVD CCA had attempted to protect via license, by willful hacking and/or improper reverse engineering of the CSS software (the license to which contained a prohibition against reverse engineering). The DVD CCA further claimed that the defendants knew or should have known that they were misusing proprietary information gained through improper means. The trial court issued a preliminary injunction, enjoining Bunner from posting or otherwise disclosing the DeCSS program, CSS master keys or algorithms, or any other information derived from CSS. The court expressly refused, however, to enjoin either the linkage or any discussion, comment, or criticism. The court of appeal reversed, holding that the preliminary injunction was an unconstitutional prior restraint. The California Supreme Court granted review and held that the preliminary injunction did not violate the free speech clauses of the United States and California Constitutions “assuming the trial court properly issued the injunction under California’s trade secret law.” The Supreme Court remanded the matter to the court of appeal to determine whether the evidence in the record supported the factual findings necessary to establish that the preliminary injunction was warranted under the UTSA. On remand, the court of appeal again reversed, holding that the preliminary injunction was not warranted under UTSA. The court found that in order for a plaintiff to obtain an injunction prohibiting disclosure of an alleged trade secret, it must first show that the information it seeks to protect is indeed a trade secret. The test for a trade secret is whether the matter sought to be protected is information (1) that is valuable because it is unknown to others and (2) that the owner has attempted to keep secret. In the instant matter, the secrecy element became important at two points. First, if the allegedly proprietary information contained in DeCSS was already public knowledge when Bunner posted the program to his Web site, Bunner could not be liable for misappropriation by republishing it because he would not have been disclosing a trade secret. Second, even if the information was not generally known when Bunner posted it, if it had become public knowledge by the time the trial court granted the preliminary injunction, the injunction — which only prohibits disclosure — would have been improper because DVD CCA could not have demonstrated interim harm. DVD CCA presented no evidence as to when Bunner first posted DeCSS and no evidence to support the inference that the CSS technology was still a secret when he did so. Further, the court found, there was a great deal of evidence to show that by the time DVD CCA sought the preliminary injunction prohibiting disclosure of the DeCSS program, DeCSS had been so widely distributed that the CSS technology may have lost its trade secret status. The court found that, on this record, DVD CCA failed to show a likelihood that it would prevail on the merits of its claim of misappropriation against Bunner. As to the issue of interim harm, the court found that the record also did not support the trial court’s finding that the balance of harms favored DVD CCA. The evidence was undisputed, the court found, that by the time this lawsuit was filed hundreds of Web sites had posted the program, enabling untold numbers of persons to download it and to use it. The only inference that could be drawn from this evidence was that by the time DVD CCA first took legal action to stop publication of DeCSS, the technology had already become available to those persons most interested in obtaining it. DVD CCA presented no evidence that the disclosure it sought to prohibit would cause more or different harm than that already suffered. Accordingly, it was not entitled to injunctive relief. Trade Secrets People v. Laiwala Sixth District Court of Appeal, February 10, 2004 Former employee did not steal “trade secret” by taking DVD “master key” that had no independent value by virtue of confidentiality. The Sixth Appellate District reversed a judgment of conviction. The court held that a former employee did not steal a trade secret by absconding with a DVD copy protection “master key” that had no actual or potential independent economic value by virtue of its confidentiality. Sadrudin Laiwali worked as an engineer for Odeum Microsystems. Laiwali’s specialty involved MPEG encoding of digital video for use in DVD applications. In particular, Laiwali’s specific job was developing software for electronic circuit boards used in conjunction with MPEG chip sets. In 1997 Odeum purchased a license to use a “master key” associated with the newly created Content Scramble System (CSS), a form of copy protection for DVD content. The unique master key licensed to Odeum was one of about 400 master keys that the licensor had created for use in the CSS system. Odeum’s goal was to produce software and hardware for sale to DVD drive manufacturers. The master key licensing agreement contained a clause that required Odeum to keep the master key confidential. The agreement also included a $1,000,000 liquidated damages clause. Laiwali was not assigned to projects that would require him to work with CSS information, so he was not granted access to the master key, which Odeum restricted to no more than six employees. Odeum concluded that Laiwali took copies of software and information related to the CSS copy protection scheme shortly before resigning his employment. Odeum reported the suspected theft of the confidential CSS information to the CSS licensor and to authorities. Laiwali’s home was searched, revealing a copy of Odeum’s DVD software under development, together with other files pertaining to DVD copy protection. In addition, a printout was found which contained Odeum’s master key. The CSS licensor neither deactivated Odeum’s master key nor took action against Odeum for breach of the CSS licensing agreement. Odeum ultimately abandoned its DVD project. There was no indication that Odeum’s master key was ever used by anyone outside of Odeum. Laiwali was charged with theft of a trade secret in violation of Penal Code 499c. The information alleged that the trade secret stolen by Laiwali was a DVD copy protection system that belonged to Odeum. An enhancement alleged that the property taken resulted in a loss of more than $1,000,000. Evidence at trial indicated that the master key was merely a set of numbers that would have no value to someone who lacked the CSS descrambling algorithm, as the master key’s only purpose was to authenticate a DVD disc. According to Laiwali, the master key had no independent economic value. The People argued that in response that Laiwali took the master key to improve his skills or with the intent to deprive Odeum of its exclusive property, perhaps with a goal of engaging in DVD piracy. The court found Laiwali guilty but rejected the enhancement allegation as not true. Laiwali received probation. Laiwali appealed, contending that his conviction was not supported by substantial evidence that the master key was a “trade secret” for purposes of 499c. The court of appeal reversed, holding that the evidence of record failed to establish that Laiwali stole a trade secret. Under the evidence as presented, the court said, the sole issue was whether Odeum’s master key constituted a trade secret. Section 499c declares it a crime to take a trade secret from its owner. The section defines “trade secret” to mean information that derives independent economic value from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and which is subject to reasonable efforts to maintain its secrecy. The court concluded that the language regarding “independent economic value” contained two ambiguities. The first was whether the phrase “who can obtain economic value from its disclosure or use” applied to “other persons” or to “other persons” and “the public.” The only reasonable construction, according to the court, was to apply the clause strictly to “other persons.” The only possible purpose of the discrete references to “the public” and to “other persons” was to distinguish between the general public, who might be able to utilize non-technical information, and industry competitors, who could use technical information. Extending the phrase to both “other persons” and to “the public” also rendered portions of the section superfluous, which would be contrary to fundamental rules of statutory interpretation. The second ambiguity was whether the section required that the information derive independent economic value from “not being generally known to” both “the public” and “other persons who can obtain economic value from its disclosure or use,” or alternatively, it could derive economic value from not being generally known to one or the other of the groups. That issue was addressed directly by the Legislature in its definition of “trade secret” in Civ. Code 3426.1, from which 499c was derived. Based on that definition and available legislative history, the court declared that a “trade secret” qualifies as such only if it derives independent economic value from both not being generally known to the public and not being generally known to those who can obtain economic value from its disclosure or use. In this case, therefore, 499c required proof that the disputed CSS master key derived actual or potential independent economic value from not being generally known to other persons who could obtain economic value from its disclosure or use. No such proof was evident in the record, the court admonished. It was true that the secrecy of the master key was of at least potential economic value to Odeum, as the CSS licensor was entitled to deactivate the key should Odeum fail to maintain its secrecy. There was no evidence, however, that anyone other than Odeum could obtain economic value from disclosure or use of the key. No competitor of Odeum could have based a product upon the key because the key could be deactivated by the licensor at any time. Nor was there evidence that persons existed who acquired the descrambling algorithm or other CSS components and who could use the keys to pirate DVD content. The evidence thus was insufficient to support Laiwali’s conviction for theft of a trade secret. The court refused to reduce Laiwali’s conviction to attempted theft of a trade secret because the lesser, attempt crime included a specific intent element not present in the theft crime. Laiwali’s conviction for theft therefore did not necessarily include a finding as to his intent, rendering it inappropriate to reduce the greater crime to the lesser. Given the absence of sufficient evidence to support his conviction for theft of a trade secret, the court of appeal reversed Laiwali’s judgment of conviction and directed the trial court to enter a verdict of not guilty. Presiding Judge Rushing concurred, writing that the evidence was plainly insufficient to support Laiwali’s conviction, but that 499c contained no ambiguity. Instead, the widely followed definition of independent economic value — that it confer a substantial business advantage — was all that was required to resolve the case, rendering the majority’s discussion of 499c irrelevant.

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