September 2005

En Banc First Circuit Reverses Councilman Decision Applying Federal Wiretap Act to Emails

September 20, 2005

Federal Wire Tap Statute. Last Fall Joe Laferrera wrote an extensive article discussing the First Circuit’s decision in Councilman v. United States. In that case the government had prosecuted Brad Councilman under the federal Wiretap Act, alleging he had violated the Act when he illegally copied email communications. The Federal Appeals Court for the First Circuit held that Councilman had not violated the Act, since he had not intercepted the communications while they were in transit. Rather, the emails were already stored on a computer, and therefore the Act did not apply. Recently the First Circuit reconsidered the case en banc, reversing that decision. Joe has written an update to the original article, which can be found here.

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Submarines Sunk, Again

September 15, 2005

Is this the end of an era in patent law? Or just the dropping of the other shoe? Last week in Symbol Technologies, Inc. v. Lemelson Medical, Education and Research Foundation, LP, the Court of Appeals for the Federal Circuit (practically the court of last resort in patent matters, since the Supreme Court rarely takes a patent case) ruled that a number of machine vision patents of inventor Jerome Lemelson were unenforceable due to the patentee’s “unreasonable delay” in prosecuting the underlying patent applications before the U.S. Patent and Trademark Office. The ruling comes too late for various companies who had already paid millions of dollars to license these patents from Lemelson. Read full post …

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Google Takes One From Mister Softie

September 14, 2005

“The thing to fear is not the law, but the judge” Russian Proverb Non Compete Agreements. The need to “spin” a litigation outcome to try to persuade the public that you won appears irresistible to large corporations. However, it’s hard to keep a straight face reading Microsoft’s pronouncements about the Seattle state court’s September 13th decision in Microsoft’s suit against Google and Dr. Kai-Fu Lee, until recently “the face of Microsoft in China.” Believe me, when your former employee is able to show up to work for your competitor the day after the decision on your preliminary injunction motion to enforce a non compete agreement, you have not won. The fact is, a preliminary injunction seeking to enforce a non compete agreement is always highly uncertain. Some judges view non compete agreements as just another contract, to be enforced as written. Other judges have an almost philosophical antipathy to non competes, and will bend over backwards to find any reason not to enforce them. They believe that people should be free to work wherever they wish, and they rule accordingly. The Seattle judge appears to fall into the second camp. Microsoft learned this when it tried to enjoin Dr. Lee, now the President of “Google China,” from establishing and staffing a Google development facility in China. Although the Washington State judge initially entered a temporary restraining order against Google and…

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Rev. Jerry Falwell Loses FALLWELL.COM Domain Name Dispute, but Bill Cosby Prevails in Dispute over FATALBERT.ORG

September 14, 2005

Trademarks/Domain Names. Why did Jerry Falwell lose and Bill Cosby win? Bill Cosby prevailed this week in a domain name dispute involving FATALBERT.ORG (William H. Cosby, Jr. v. Sterling Davenport). This dispute was resolved in an ICANN arbitration, which requires that the complainant prove both that the domain name was registered and used in bad faith in order to succeed. The arbitrator found that Mr. Davenport had no legitimate interest in the domain name, that he had registered it solely with the intention of trading on the fame of Cosby’s Fat Albert character, and that he sold sexually explicit products and drugs on the site, which the arbitrator found particularly offensive since the Fat Albert mark is so closely associated with children. Mr. Davenport’s for-profit conduct clearly constituted bad faith use and registration of the domain name, and he was ordered to transfer the domain name to Cosby. Compare this with The Reverend Jerry Falwell’s attempt to gain control over FALLWELL.COM, a “gripe” site highly critical of Falwell’s conservative beliefs (Lamparello v. Falwell). In this case the US Court of Appeals for the 4th Circuit rejected Reverend Falwell’s trademark infringement claims, finding that there was no likelihood of consumer confusion, the standard for finding infringement, between Falwell’s web site and Mr. Lamparello’s gripe site. The court held that the registration and use of a domain name must be viewed in…

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Webcasts of SJC Oral Arguments

September 14, 2005

The Supreme Judicial Court and Suffolk University Law School are webcasting oral arguments, both live and archived. Link to the Massachusetts Supreme Judicial Court Oral Arguments Site here.

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Allan Van Gestel to Retire From Business Litigation Session?

September 13, 2005

Business Litigation Session. Judge Allan Van Gestel has been the presiding judge in the Suffolk Superior Court Business Litigation Session (the BLS), since its inception in October 2000. The session has been an unqualified success, and is closely associated with Judge Van Gestel, who has brought expertise and integrity to the session. However, Massachusetts has a mandatory retirement age of 70, and Judge Van Gestel turns 70 in December. For an article discussing the history of the session and Judge Van Gestel’s imminent retirement click here. For the rules of the BLS click here. The question on the minds of many Massachusetts lawyers, of course, is whether Judge Van Gestel will be “recalled” for special assignments. Judge Van Gestel reportedly is open to the prospect, but so far, the State is mum on this issue.

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Justice Department Files Antitrust Suit Against National Association of Realtors

September 12, 2005

Antitrust. Here is a link to the Complaint in this long-anticipated lawsuit. A link to the DOJ’s press release, announcing the suit, is here. In a nutshell, the suit alleges that the NAR has blocked competition by allowing real estate agents to withhold listings from brokers who utilize the Internet. The DOJ and the NAR have been attempting for months to negotiate a settlement to the issues raised by this suit, and apparently the NAR made a last gasp attempt last Thursday, when it announced a modified approach to its policy on Internet listings. However, the DOJ believed that the NAR had not gone far enough, precipitating this lawsuit. I’ll discuss this suit in more detail in a later blog.

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Katrina

September 9, 2005

Amazon.com “One Click” Contributions to Victims of Katrina can be made Here. The ABA has organized a Hurricane Katrina Disaster Relief page here. This web page states: “The ABA is gathering information from individuals who are willing to provide legal assistance to those in need from the events in the Northern Gulf Coast.” In considering whether to contribute services consider that a recent survey of Americans shows that lawyers have a lower “prestige” ranking than Members of Congress, and are tied with entertainers and actors. If you think this survey may be flawed, consider the fact that real estate agents and stockbrokers ranked last as proof of concept. It might be best for your mental health not to give this survey too much thought if you plan to speak to a jury in the near future.

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Is the Owner of a Blog an "Interactive Service Provider"?

September 9, 2005

Communications Decency Act. Traffic Power.Com has sued Aaron Wall, owner of the Search Engine Optimization Blog, alleging defamation and misappropriation of trade secrets. Assuming that the offending material was not written by Wall himself (but rather by one of his posters), the defamation claim against him is likely to be barred by the federal Communications Decency Act (CDA), which provides in part: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. If Wall is not the publisher or speaker of the offending words, he cannot be liable for their publication on his blog. Although the term “interactive computer service” (ISC) is poorly defined, the courts have held that it includes not only traditional ISPs, but also web site hosts such as AOL. It’s hard to see why the definition shouldn’t extend to blog site owners. Assuming that Wall is found to be an ISC, he’s halfway home. A number of courts have held that the law protects ISCs from defamation claims. Immunity for trade secret misappropriation is more problematic. The CDA provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” However, the law fails to define “intellectual property.” While the three traditional branches of IP are unquestionably covered by this provision (patents, copyrights…

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Geico and Google Settle Lawsuit

September 9, 2005

Trademark. Geico and Google have reported a settlement of the trademark suit we reported on on August 19th. The terms of the settlement were not disclosed.

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Blizzard Entertainment v. Jung – Gamers Enjoined From Creating a Compatible Internet Environment

September 9, 2005

Copyright, DMCA. My partner Joe Laferrera has written a Client Advisory discussing the 8th Circuit’s decision in Blizzard Entertainment v. Jung, where the court held that the defendant’s efforts to reverse engineer Blizzard’s Internet gaming network in order to provide a competing, alternative network had (a) violated Blizzard’s shrink-wrap agreement, which prohibited reverse engineering, and (b) violated the Digital Millennium Copyright Act (DMCA). This is an important case in the rapidly developing jurisprudence of the DMCA. As well, it demonstrates once again the courts’ apparent willingness to enforce shrink-wrap licenses, and to permit copyright owners to use those licenses to override rights otherwise permitted by the Copyright Act. Read the case here. Read the Advisory here.

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