October 2007

You Can Judge a Man by the Poetry He Reads

October 30, 2007

According to the October 22, 2007 Time Magazine cover article on the Supreme Court (“Inside the Incredibly Shrinking Role of the Supreme Court, and Why John Roberts is O.K With That” (link)), every year, in January, Chief Justice John Roberts rereads the poem, “The Vanity of Human Wishes,” written by Samuel Johnson and first published in 1749. This is, the article says, a ritual John Roberts has followed since he was an undergrad at Harvard in the 1970s. The poem, according to Time, is “a devastating reflection on remorseless fate.” “Life protracted is protracted Woe,” quotes Time. Here is the opening stanza of the full poem, and a link to the remainder of the poem, which is lengthy and, it almost goes without saying, challenging: Remark each anxious Toil, each eager Strife, And watch the busy Scenes of crouded Life; Then say how Hope and Fear, Desire and Hate, O’er spread with Snares the clouded Maze of Fate, Where wav’ring Man, betray’d by vent’rous Pride, To tread the dreary Paths without a Guide; As treach’rous Phantoms in the Mist delude, Shuns fancied Ills, or chases airy Good. How rarely Reason guides the stubborn Choice, Rules the bold Hand, or prompts the suppliant Voice, How Nations sink, by darling Schemes oppres’d, When Vengeance listens to the Fool’s Request. Fate wings with ev’ry Wish th’ afflictive Dart, Each Gift of Nature, and…

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It's A Tough Job, But Somebody's Got To Do It

October 26, 2007

[Update, November 20, 2007]: Howie Carr has returned to WRKO[Update, October 30,2007]: Today’s Boston Globe reports that Howie Carr’s appeal was denied. Litigation over noncompete agreements rarely gets this interesting. The Contestants. In one corner you have Howie Carr, one of the most popular talk show hosts in the country. In next corner (there are players in all four corners of this ring) stands Entercom Boston, owned by Entercom Communications, one of the largest radio broadcasters in the U.S. and owner of Boston radio station WRKO-AM, which hosts the popular Howie Carr Show. Opposite WRKO stands Greater Media, owner of numerous media assets, including WTKK-FM in Boston, and would-be employer of Carr. Finally, in the corner directly opposite Mr. Carr is Massachusetts Superior Court Judge Allan Van Gestel. The Contest, In Brief. Howie Carr wants to leave WRKO and work for WTKK. However, his contract with WRKO gave WRKO the right to match the offer made by WTKK, and WRKO did match WTKK’s five year, $7 million offer. Carr filed suit, claiming that this provision of the contract is unenforceable under Massachusetts law. Judge Van Gestel ruled that under the circumstances present here WRKO had the right to match WTKK’s offer, requiring Carr to honor his contract with WRKO. Carr has appealed this ruling, but at the moment Carr is off the air, refusing to broadcast for WRKO (which wants…

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Conduct in Standard Setting Can Violate the Sherman Act

October 17, 2007

Antitrust. It shouldn’t be a surprise that it might be illegal under the antitrust laws for a company with a 90% marketshare in a key, patented technology to agree as a member of a standards developing organization that it would license its technology on “fair, reasonable and non-discriminatory” (or FRAND) terms if that technology is included in the standard, and then, after adoption, violate that pledge. Nevertheless, a federal district court held that Qualcomm could not be held liable under the antitrust laws under these facts. In an important decision at the intersection of standard-setting and antitrust law the Third Circuit disagreed, reversing the lower court. Andy Updegrove addresses the case (and provides a link to the decision) in his article here, so I’ll defer to his extensive discussion and analysis.

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Party Like Its 1999

October 17, 2007

Xconomy.com is a well written and produced web site that describes itself thus – the authoritative voice of on the exponential economy, the realm of business and innovation characterized by exponential technological growth … Sounds a little Wired/Gilder-like, true, but this is the best way I’ve seen to keep up with developments in the Massachusetts technology markets. For example, their October 17, 2007 article, Boston: The Hidden Hub of Music and Technology, with its list of local music/technology companies, is an example of the kind of thing you would be unlikely to find elsewhere.

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The Massachusetts "Guide" to Evidence

October 16, 2007

Courts, Litigation. Back in the early 1980s, when I was new to the Massachusetts Bar, there was an effort by the organized bar to codify the rules of evidence. That effort failed, and to this day the rules of evidence are a confusing patchwork of common law and legislative enactment. The “go to” source for the law of evidence has been, in the memory of almost all living Massachusetts attorneys, the Handbook of Massachusetts Evidence (8th Ed. 2006), by the former Chief Judge of the Supreme Judicial Court, Paul Liacos, and currently edited by Mark Brodin and Michael Avery. (The previous editions of this work were published in 1940, 1948, 1956, 1967 (when Justice Liacos took over), 1981 and 1993). However, the long-dead phoenix of evidence codification may be rising from the ashes, albeit in a slightly different form. In 2006 the SJC established an advisory committee to develop a “Guide” to evidence (not to be confused with “Rules” of evidence), and that Guide is now in its proposed form. The draft Massachusetts Guide to Evidence is available here (a 226 page pdf file). Not surprisingly, the Guide makes unabashed and extensive use of the Proposed Rules of Evidence which, although never formally adopted, have been cited in Liacos and to trial courts since their “non-adoption” in 1982. Go figure.

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That, Sir, Depends What You Mean by "Willful"

October 15, 2007

Patent Law. Patent lawyers and their clients spend a lot of time worrying about willfulnesss. If a patent is infringed and the infringement is “willful,” the consequences can include treble damages and liability for the patent owner’s attorneys fees. The idea of paying the other side’s legal fees can be a terrifying prospect for most patent infringement defendants. Think of it as writing a blank check to your opponent’s lawyers. To avoid this fate, a lot of time and money is spent before the fact on “clearance opinions”, that is, an opinion of a patent lawyer that a particular item or process does not infringe pending or issued patents. A good opinion (meaning an opinion by competent counsel, who is given all relevant information, and who conducts the analysis in advance of any legal claim or threat) is often viewed as an insurance policy when it comes to wilfullness. After all, if reputable counsel has told you that your product doesn’t infringe a patent, what more could you possibly do to establish that you have not willfully infringed? Of course, many infringement actions are brought against defendants who have not bothered to obtain such an opinion (either due to cost concerns or ignorance), in which case the risk of willfulness can be a major factor in the risk analysis of the lawsuit. But just what is “willfulness”? Until just a…

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