Author: Washington Journal of Law, Technology & Arts

Virtual Reality? Depictions of Real Locations May Land Video Game Developers in Hot Water

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By: Matt Williamson

One of the most interesting, and sometimes annoying, parts of being a law student is that legal analysis starts to seep into even the most mundane aspects of your life. Recently, as part of my workout routine, I stumbled across something odd in a virtual world which led me down a rabbit hole of legal considerations that video game developers must navigate when including real locations and buildings in their games.

Biking Up a Bagel

Anyone who knows me can attest that I absolutely love riding my bike. In fact, I love it so much that last October, staring down Seattle’s 3:30pm sunsets and months-long drizzle, I invested in an indoor bike trainer. To make the experience of indoor riding slightly less monotonous, I got a subscription to the popular fitness app, Zwift. Zwift is a video game-style program that allows users to bike (via a trainer or stationary bike) through an animated world, complete workouts, and compete with one another. 

One evening, I noticed a new route available in New York City, specifically around the internal Central Park Perimeter Loop. I was intrigued as I have personally spent lots of time running this exact loop while training for a marathon a few years ago.

Excited to pedal around the familiar loop, I started my ride. It was almost surreal to watch my avatar pedal around a digitally animated version of a mixed-use path I knew essentially by heart. I was especially struck by how accurate the twists and turns were and how many of the roadside landmarks were faithfully rendered. However, as I made my way up to the Northeast corner of the park, I noticed a feature that I had never seen in the real Central Park: a giant glass tube opened up before me, stretching into the sky. Myself and a pack of other riders dutifully climbed up its glossy surface. That’s right – Zwift designers added a giant bagel-like glass causeway to the iconic New York skyline.

As I sweated up the absurd glass-bagel climb, I couldn’t help but wonder: Why the hell is this here? 

Too Close to Reality

As it turns out, the answer may be as complicated as the relationship between video games and the real location and buildings they portray virtually.

Back in 2022, the perennially popular video game franchise Call of Duty released the newest installment in its Modern Warfare series: Modern Warfare II (“MWII”). Even before the full launch of MWII, fans noticed something intriguing about several of the maps featured in the game – they were remarkably similar to real world locations. Three maps in particular stood out: Crown Raceway, Breenbergh Hotel, and Valderas Museum. Each bore a striking resemblance to a real place: the Marina Bay Street Circuit in Singapore, the Conservatorium Hotel in Amsterdam, and the Getty Museum in Los Angeles, respectively. 

At first, little attention was paid to these maps beyond their expected gameplay characteristics, but things quickly started to take a turn. Valderas Museum was featured heavily in the game’s open Beta, a limited release that allows developers a chance to mass test a game before it is fully released, yet it suddenly and without explanation dropped out of the game’s map-pool at launch. Though neither Activision, the game developer behind MWII, nor the Getty, commented, widespread speculation arose that the developer had been forced to remove the map from the game over concerns about possible copyright infringement claims raised by the museum.

New rumors arose when early marketing for MWII featured a map called Marina Bay Grand Prix – a faithful depiction of the Marina Bay Street Circuit in Singapore complete with both signage and car models that directly evoked both the real life racetrack and the immensely popular motorsport series Formula One. Yet, the map never appeared in the Beta and, by the time the game was released, these assets had been altered to reflect a more generally branded race track called Crown Raceway.

The final act in this string of mishaps came when the game was released with the third of these controversial maps as a part of its core gameplay rotation. Breenbergh Hotel is easily recognizable as the Conservatorium Hotel, a 5-star establishment located in Amsterdam. The owners of the Conservatorium were incensed by the use of their building in a game that depicts intense and realistic violence. The hotel’s manager, Roy Tomassen, was quoted by Dutch newspaper de Volkskrant as saying: “The game in no way reflects our core values ​​and we regret our apparent and unwanted involvement.” Though de Volkskrant also reported that the Conservatorium was considering legal action, the map is still playable in MWII, and is even a common battleground in the game’s eSport championship series the Call of Duty League. 

Toeing the Line

MWII clearly ran afoul of a number of parties with its map design, but, perhaps as Breenbergh Hotel illustrates, the legal options available to these parties are a bit murky, and even more ephemeral than one might expect.

One type of legal cause of action these parties might try to employ is copyright infringement. Copyright infringement occurs when copyrighted works are used by parties other than the owner of the copyright without the owner’s consent. 

However, unlike many kinds of intellectual property, a great deal of architecture is no longer protected by copyright law and is therefore freely available for use in art. Most famous buildings like the Empire State Building are considered part of the public domain, as are all private buildings constructed before 1990. Thus, this seems like a legal avenue that is unlikely to provide actual relief to parties that may try to utilize it.

What if video game developers included trademarks in their games? Trademarks are symbols or words that have been legally registered or established by use as representing a company or product (think McDonald’s Golden Arches logo or Nike’s “Just Do It” slogan). One fundamental aim of trademark law is giving trademark owners the ability to prevent other parties from copying or closely mimicking a trademark in such a way that might trick consumers into believing that what they are seeing is somehow sponsored, produced, or endorsed by the trademark owner. At first glance, this cause of action seems like it might present a more viable recourse for someone like the owners of the Conservatorium Hotel. However, previous lawsuits show us that developers often need to take only minor steps to effectively head off these sorts of trademark infringement challenges.

For example, in 2008, the owners of a Los Angeles strip club called the Play Pen, sued Rockstar Games, the developers of the Grand Theft Auto series, when they discovered that Rockstar’s GTA – San Andreas game featured a knock-off version of their club called the “Pig Pen.” In deciding the case, the Ninth Circuit assessed Rock Star’s assertion that the inclusion of the Pig Pen was protected by the First Amendment. Notably, the First Amendment protects the use of trademarked images or words in art unless the use has no artistic relevance to the work in which it has been included, or the use “explicitly misleads as to the source or content of the work,” (i.e., makes it seem like the trademark owner has signed off on the inclusion or is behind the game).

In applying this test, the court ultimately ruled in favor of Rockstar. The court’s decision (which I assure you is as hilarious a read as you would imagine) articulates the panel of judges’ belief that the depiction of the strip club had some artistic relevance to the game and was not explicitly misleading. The judges pointed to subtle changes that had been made to the appearance of the club that differentiated it from the real thing, and noted that no one would reasonably believe that the strip club owners had produced the game. 

These and other similar cases show that, while it is theoretically possible for a video game developer to be sued for incorporating a real location or business into the virtual world it creates, it seems as though developers need only take small precautionary measures like subtly changing the look of a building or location, to effectively shield themselves from serious danger. In the end, as much as I might like to believe in some sort of Zwift legal team conspiracy, it seems pretty unlikely that their developers added the glass bagel to the Central Park course as anything other than an extra challenge for cyclists and runners. However, you can be sure that if they ever make a Burke-Gilman trail expansion pack, my eyes will be peeled.

The War on Forgery: An Exploration into Current Technologies Used to Catch Art Fraud

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By: Zachary Finn

The field of art authentication has been revolutionized by several new technologies designed to spot fake art. Supposedly, up to fifty percent of all artworks in the market are fake, forged, or misattributed. Forgery is the act of making, exploiting, selling, and peddling fake art. This practice has become one of the most lucrative businesses in the world. According to the US Department of Justice and UNESCO, the crime of art forgery and laundering has been the third highest-grossing criminal commerce in the world over the last 40 years. This is just behind drugs and weapons. As technology has developed over the years, so has a plethora of developments and methods to detect fake and forged art. Many of the new technologies have successfully infiltrated the art crime domain, but they also raise legal implications to consider. 

One of the most encouraging is spectroscopy, which analyzes the chemical composition of the artwork and compares it to the known composition of genuine works from the same period. Spectroscopists test to identify whether certain specific elements and molecules are present in the pigment used to create works of art. For example, scientists use Mass Spectrometry to identify whether lead is present in certain artworks. Throughout early art history, lead was popularly used in paintings. Ancient paintings are identifiable through this technology because lead is now extremely rare and difficult to come by. After discovering the toxic qualities of lead, the art scene was quick to remove lead from its paint belt. Therefore, using spectrometry technology, an individual can spot a forged or fake painting by testing to see the presence of lead or other comparable elements and molecules. If a Da Vinci is without lead, it is almost certainly a fake. Mass spectrometry requires samples from an artwork, which may cause damage. This can create legal disputes over the damage and restoration of the artwork, especially since most of the artwork being tested has historical and cultural significance.

Similar to spectrometry, X-ray fluorescence is another technology that analyzes the elemental composition of art. With this technology, X-rays analyze shine beams on an artwork, which causes atoms in the pigments to emanate ancillary X-rays These rays identify the specific elements, where then experts can determine if they are consistent with materials used in works from the same period. Forgers practice and develop methods of painting over less valuable but still old artworks to create a more valuable fake art. The advantage of using X-ray fluorescence is that it penetrates through layers of paint. This offers scientists and art historians the capability to examine the underlying painting of an artwork. Like mass spectroscopy, X-ray fluorescence raises legal considerations because it potentially damages an artwork in question. On top of this, like most of these technologies, a legal consideration regarding admissibility for evidential purposes emerges. Courts and juries will have to weigh the credibility of experts and these technologies. 

Continuing with scientific technology, Multispectral Imaging uses expert cameras to capture images of an art piece in different wavelengths of light. This allows the examiners to identify inconsistencies that can be indicative of forgery. With multispectral imaging, cameras use different imaging techniques, including ultraviolet and infrared light. UV imaging reveals polishes, touch-ups, and overpainting. Infrared exposes details such as underlying paint jobs. A big advantage of this tool is that it is a non-invasive process so that it does not alter an art’s composition. Delicate and rare artworks may be susceptible to damage by other types of testing, so therefore this technology can be most useful in the war against art forgery. However, this technology also leads to legal questions involving expert opinions and declarations as imaging results are still open to interpretation, and different experts may reach different results as to conclusions of an art’s composition.

In the “most tech-savvy” way to detect forgery, Artificial Intelligence and machine learning algorithms analyze large databases of both genuine and fake art. The AI and machines extract patterns and features that distinguish real and fake art from one another. In a research development by Case Western Reserve University, this technology “combines data from the precise, three-dimensional mapping of a painting’s surface with analysis through artificial intelligence — a computer system based on the human brain and nervous system that can learn to identify and compare patterns.” In one study, AI and machine learning were able to spot forged art with greater than 95% accuracy. A key advantage of using AI and machine learning in art forgery is that large amounts of data can be analyzed and evaluated quickly and efficiently. This expedites spotting potential forgeries and works more accurately and efficiently compared to other methods. However, legal issues involving privacy arise as AI sift through large amounts of datasets that can possibly contain private or unconsented information. As technology evolves, AI algorithms and machine learning can be updated and revised to improve accuracy and proficiency.

The art world has been plagued with crimes of forgery and faking artworks for centuries, but with new technologies such as spectroscopy, X-rays, multispectral imaging, AI, and machine learning, the ability to detect counterfeit art has revolutionized the way experts fight this war against forgery. It will be exciting to see what other technologies emerge in the upcoming years, as well as what new paintings are discovered to be just fake copies.

Is AI Good in Moderation?

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By: Chisup Kim

In 2016, Microsoft released Tay, a chatbot based on artificial intelligence on Twitter that became smarter as users interacted with it. Unfortunately, this experiment did not last long, as some Twitter users coordinated a barrage of inappropriate tweets towards Tay to force the chatbot to parrot out racist and sexist tweets. Tay tweeted racial slurs, support for gamergate, and incredibly offensive positions within a matter of hours of being online. Last week, Microsoft returned to the AI space by launching a new AI-powered Bing search engine in partnership with OpenAI, the developers of ChatGPT. Unlike Tay, the Bing Search AI is designed as a highly-powered assistant that summarizes relevant articles or provides related products (e.g., recommending an umbrella for sale with a rain forecast). While many news outlets and platforms are specifically focused on reporting on whether the Bing AI chatbot is sentient, the humanization of an AI-powered assistant creates new questions about the liability that could be created by the AI’s recommendations. 

Content moderation itself is not an easy task technically. While search engines are providing suggestions based on statistics, search engine engineers also run parallel algorithms to “detect adult or offensive content.” However, these rules may not cover more nefariously implicit searches. For example, a search engine likely would limit or ban explicit searches for child pornography. However, a user may type, for example, “children in swimsuits” to get around certain parameters, while simultaneously influencing the overall algorithm. While the influence may not be as direct or to the same extent as Tay on Twitter, AI machine learning algorithms incorporate user behavior into their future outputs that taint the search experience for the original intended audience. In this example, tainted search results influenced by the perverted could affect the results for a parent looking to buy an actual swimsuit for their child with photos depicting inappropriate poses. Around five years ago, Bing was criticized  for suggesting racist and provocative images of children that were likely influenced by the searches by a few nefarious users. Content moderation is not an issue that lives just with the algorithm or just with its users, but rather a complex relationship between both parties that the online platforms and their engineers must consider. 

Furthermore, the humanization of a recommendation service altering how third party content is provided may lead to further liability for the online platform. The University of Washington’s own Professor Eric Schnapper is involved in the Gonzalez v. Google case, which examines the question of whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when making algorithmically targeted recommendations of a third-party content provider. Section 230 currently immunizes most online platforms that are considered an “interactive computer service” from being a “publisher or speaker” of third-party information or content. The Gonzales plaintiff is challenging Google on the grounds that YouTube’s algorithmic recommendation system led some users to be recruited into ISIS, and ultimately led to the death of Nohemi Gonzalez in the 2015 terrorist attacks in Paris. After the first days of arguments, the Supreme Court Justices seemed concerned about “creating a world of lawsuits” by attaching liability to recommendation-based services. No matter the result of this lawsuit, the interactive nature of search engine based assistants creates more of a relationship between the user and the search engine. Assessing how content is being provided has been seen in other administrative and legislative contexts such as the SEC researching the gamification of stock trading in 2021 and California restricting the types of content designs on websites intended for children. If Google’s AI LaMDA could pass the famous Turing Test to appear to have sentience (even if it technically does not), would the corresponding tech company be more responsible for the results from a seemingly sentient service or would it create more responsibility on the user’s responses? 

From my perspective, I think it depends on the role that the search engines give their AI-powered assistants. As long as these assistants are just answering questions and providing pertinent and related recommendations without taking demonstrative steps of guiding the conversation, then search engines’ suggestions  may still be protected as harmless recommendations. However, engineers need to continue to be vigilant on how user interaction in the macroenvironment may influence AI and its underlying algorithm, as seen with Microsoft’s Twitter-chatbot Tay or with  some of Bing’s controversial suggestions. The queries sent with covert nefariousness should be closely monitored as to not influence the experience of the general user. AI can be an incredible tool, but online search platforms should be cognizant of the rising issues of how to properly moderate content and how to display content to its users. 

Proposed Fee Increase for Artist Visas Threatens International Cultural Exchange

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Image by Ahmad Ardity from Pixabay

By: Smitha Gundavajhala

On Thursday, February 12, the Seattle Symphony opened its doors for a three-day run of Beethoven’s Symphony No. 6. For weeks, the symphony had advertised that soloist Carla Caramujo would take the stage for the performance. However, as opening day approached, the Symphony had a change of plans. The web page for the concert displayed a message: “Due to delays with artist visa processing, soloist Carla Caramujo is regretfully unable to perform on this program.”

Delays in artist visa processing have prevented international artists from making their scheduled performances in the United States, and deprived American audiences of valuable opportunities for cultural exposure and exchange. As Tom Davis, a former Chairman of the Committee on Government Reform, said in an April 4, 2006 hearing on the impact of visa processing delays, “the American cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries.” This blog will explore a history of delays in processing the artist visa, a proposed rule to increase the efficiency of visa processing, and the implications of that rule for cultural exchange.

Delayed Artist Visas: A History

The term “artist visa” actually refers to two kinds of visas: O visas and P visas. O visas are for artists who are coming to the United States for longer terms, and P visas are for artists who are staying only temporarily to perform. Petitions for O and P visas are reviewed by the United States Citizenship & Immigration Service (USCIS). Under the Immigration and Nationality Act (INA), the statute that created USCIS, O and P visa petitions must be processed within 14 days (8 U.S.C. §1184 (c)(6)(D)).

USCIS has struggled to meet this processing time for decades. Art advocacy groups have traced the delay to 2001, when USCIS implemented a Premium Processing Service (PPS) that would guarantee visa processing in 15 calendar days for artists who paid a $1,225 fee. Similar to the creation of express lanes on highways, the PPS option created “traffic” for applicants who could not pay the fee: the processing time for applicants was an average of 45 days before PPS, and extended up to 6 months after PPS. In 2010, the Department of Homeland Security (DHS) adopted a rule that committed USCIS to meeting the day processing time required by the INA.

In 2019, Congress passed the USCIS Stabilization Act (HR 8089), a piece of emergency legislation intended to address processing delays, in part by increasing the PPS fee. The USCIS Stabilization Act allowed DHS to suspend the use of premium processing if circumstances prevented the timely processing of petitions. However, despite consistent delays in processing, DHS has not suspended premium processing. Today, the PPS fee costs $2500, and artist visa delays continue to accumulate.

When President Biden took office in 2021, the Biden administration faced the task of reducing backlogs in visa processing times that had been deepened by Trump-era policies. That is where DHS’s proposed rule comes in.

The Proposed DHS Rule

The Department of Homeland Security is proposing a rule that would increase the cost of applying for an O or P visa by more than 250 percent. O visa fees would increase from $460 to $1,655, and P visa fees would increase from $460 to $1,615. DHS justifies the fee increase by citing high demand and insufficient staff in USCIS. The fee increase, along with an increase in the required processing time from 15 calendar days to 15 business days, is intended to provide USCIS with more funding, staff, and time to catch up with the backlog in processing O and P visa petitions. 

DHS’s authority to propose and promulgate this rule comes from the Immigration and Nationality Act — in particular, from the section on the “disposition of moneys” (8 U.S.C. §1356). Administrative agencies like DHS have the power to propose and enact rules to carry out the objectives stated in statutes that the agencies administer, like the INA. If the rule is adopted, it adds an additional layer of requirements to the statute that must be met along with the base requirements of the statute itself. Agencies must provide the public with a Notice of Proposed Rulemaking (NPRM) and allow the public an opportunity to comment before adopting a rule.

The proposed fee increase for artist visas sits within this unassuming administrative framework. Members of the public are often unaware of the existence of NPRMs and uninformed on how to comment. In addition, even though anyone can submit a comment, many of the stakeholders impacted by this proposed rule do not live in the United States, and are unlikely to be aware of the opportunity to comment on the rule.

Implications of the Rule

After the Biden administration committed to reducing processing times, it followed through by approving a $389 million budget for the 2023 fiscal year to support that effort. It is unclear whether that added funding is actually being used to improve processing times. DHS is still passing costs down to artists, and if the rule is passed, those costs will only increase.

The current framework for O and P visa petitions is already inequitable: those without the resources to pay a $2500 PPS fee are impacted by visa processing delays, and risk losing out on opportunities to perform. Independent artists and non-profit organizations are particularly impacted by this inequity, and are likely underrepresented in international cultural exchange. However, the current processing fees are lower than the proposed fees, so despite processing delays, artists currently have greater access to petitioning than they would under the new rule.

If the rule is adopted and implemented, DHS may or may not catch up with the backlog in O and P petitions. However, the cost of applying for an artist visa will increase, and the pool of artists that are able to apply for and obtain visas will skew in favor of those wealthy enough to absorb the fee increase. One thing is certain: adopting the rule will cause the United States to lose out on a great deal of talent, and cultural exchange is likely to suffer. 

DHS is currently accepting written comments on this proposed rule until March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.

Litigation Funding in IP: Caveat Emptor

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Close up of poker chips by Markus Spiske is licensed under CC-CC0 1.0

By: Nicholas Lipperd

Gambling seems to be an American tradition, from prop bets on the Super Bowl to riding the stocks through bear and bull markets. The highest stake gambling is done by investment firms, some of whom are finding profitable bets to be had on civil court cases. The process of Third-Party Litigation Funding (“TPLF”) is simple enough on its face: a funder pays a non-recourse sum either to the client directly or to the law firm representing the client. In exchange, subject to the agreed upon terms, the funder receives a portion of any damages awarded. Thus, TPLF is no more than a third-party placing a bet on the client’s case, somewhat similar to the choice a law firm makes when taking a case on contingency. With $2.8 billion invested in the practice in 2021, TPLF seems to be a betting scheme that is paying off.

TPLF is expanding from business litigation into patent litigation. Since the creation of the Federal Circuit, damages in patent infringement cases have skyrocketed, increasing attention to patent cases. TPLF is no exception. The emergence of third-party funding in patent litigation could allow individuals to assert patent rights who previously could not have afforded it. Unlike agreements directly with law firms, third-party funding is not controlled by the American Bar Association’s (“ABA”) Rules of Professional Conduct for lawyers. While this creates some concern in any TPLF case, this lack of protection in patent cases is unique: the funder can obtain the rights of the patent(s) from their clients. 

As previously mentioned, a barrier many patent owners face when attempting to assert their rights is the cost of litigation. While patent litigation cases rarely proceed to a bench trial, these cases typically take three to five years to complete. Intrinsically linked to this timeline is the price tag. Infringement cases where over $25 million in damages is at risk may run a median of $4 million in litigation costs. For cases with less than $1 million at risk, the median litigation cost sits at just under $1 million. A simple look at the risk versus rewards tradeoffs in this case paints a discouraging picture for the plaintiff. Regardless of the expected damages, the cost of litigation is an undeniably large factor, and one that leads to many cases being settled within a year rather than being tried on their merits. 

When the client cannot afford to pay the price of litigation yet intends to assert the patent rights, TPLF creates an opportunity to pursue the case. Plaintiff-side litigation seems like a simple win-win for the client. Yet as with anything, the devil is in the details. A funder is naturally motivated to see a return on this investment, so a client looking at the deal must look past the surface. Not all funding is arranged on a non-recourse model, leaving clients no better off should cases become losers than if they had chosen a billable hour payment structure with the firm. TPLF often does not cover attorney’s fees awards, so clients may be on the hook for more than they realize. Litigation funding arrangements often come with “off-ramps” for the investor should the case take an unexpected turn or the funder stops believing in the merits of the case. This means the funder may be able stop funding the client at certain stages of litigation, leaving the client or the firm without funding for the remaining stages. 

TPLF has often been described as the “wild west” of funding cases. In part, this is due to the lack of regulations surrounding the practice. It is also due to the fact that third-party funders are not constrained by the ABA’s Rules of Professional Conduct like attorneys are. 

Attorneys may not abdicate their Rule 1.1 duty of competency, yet TPLF creates tension with this duty. A third-party funder has made an investment in a case. Like any diligent investor, the funder likely wants to track the case closely to ensure it continues to align with the funder’s financial interest. Should the funder attempt to exert control over the case to protect this interest, it is up to the lawyer to resist. This may leave the client in trouble; should the disagreement be large enough, the client could see their funding removed as the TPLF exercises a contractual “off ramp.”

Perhaps the most implicated ABA rule in TPLF structures is Rule 1.6, the Duty of Confidentiality. This rule, and the related Federal Rule of Evidence 502 regarding attorney-client privilege, create friction with TPLF arrangements. Funders want as much information as possible before and during the funding of a case, as they want to be able to gauge the strength of their future and current investments. While all disclosures must be clearly sanctioned by the client, when do these disclosures waive attorney-client privilege? The majority of lower courts hold that communications about the case with a TPLF fall under work-product privilege protection, a question the Supreme Court has not answered and one the Federal Circuit danced around. (See In re Nimitz Techs. LLC, (Fed. Cir. 2022) denying a writ of mandamus to protect the District Court from reviewing litigation funding materials in camera.)

While ABA Rule 1.5 prevents firms from charging unreasonable fees, including contingency rates, it does not prevent a TPLF from doing so. A funder can bargain with a client for whatever portion of the damages award they like, and they have much more bargaining power than the client does. This bargaining power may be used for more than simply leveraging a larger percentage contingency fee than a firm could charge.

While damages in patent cases are high enough to attract TPLF, it is more than money that may attract third-party funders to patent litigation. Often, the patent itself is just as valuable as the damages award. Rule 1.8(i) prevents attorneys from acquiring proprietary interest in the cause of action or subject matter of litigation. Again, this does not apply to third-party funders, who are free to include any and all patent rights in the contract to fund a client’s case. 

Patent owners may face a catch-22 style choice in this scenario. If they cannot afford to stake the cost of litigation and if a firm does not see value in taking it on contingency, owners may turn towards TPLF. Yet, if funders see more value in the patents than the potential litigation damages, patent owners must make a hard choice. Obtaining funding will give a patent owner a one-time shot at a large damages award. The owner, win or lose, will not be the owner of the patent any longer, and will lose any potential revenue stream it would produce. Yet if owners cannot assert their patent rights in court, what value do their patents hold? Patent owners have promoted the progress of science and useful arts in the United States, and in exchange they receive limited monopolies in the form of their patents. These monopolies are not so easily maintained and defended though. Patent owners must carefully consider their options when looking to assert their rights. Patent litigation is expensive and lengthy, and while having TPLF cover all litigation costs may seem like a sterling option, owners must dig deeper to fully understand the trade-offs. Could they lose funding support halfway through litigation? Would funding the case be worth giving up their patent rights? TPLF is still newly emerging in patent litigation cases, but for potential clients, the message is already clear: in deciding to take on a third-party funder, let the buyer beware.