July 2008

New Hampshire Federal District Court Issues Comprehensive Ruling on Communications Decency Act

July 30, 2008

“[n]o 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. … [n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. . . . . [However this law] shall [not] be construed to limit or expand any law pertaining to intellectual property.” Communications Decency Act (“CDA”), 47 U.S.C.

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It Gets Harder (possibly much harder) to File a Lawsuit in Massachusetts

July 29, 2008

One of the things that drives people crazy is how easy it is to file a lawsuit, and conversely how difficult it is to persuade a judge to dismiss a lawsuit before the defendant incurs the costs of discovery and summary judgment. It has long been the law in Massachusetts that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96 (1977). This is a very difficult (some would say metaphysical) standard. Under it dismissal has been limited to black and white situations where the plaintiff has failed to allege the basic elements of a cause of action, or where (for example) a statute of limitations defense is apparent on the face of the complaint. No more. Last year the U.S. Supreme Court rejected this standard in the federal court (Bell Atlantic Corp. v. Twombly), holding that a complaint (the document that initiates a lawsuit) must assert a claim to relief that is “plausible on its face.” The complaint must allege facts plausibly suggesting a right to relief. Vague assertions intended to satisfy the “no set of facts” standard will no longer suffice. The Massachusetts state courts often follow the federal courts when it comes to matters of procedure, and in June the…

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Massachusetts Software Company Liable for Breach of License Agreement and Under Chapter 93A

July 26, 2008

It’s probably fair to say that there are thousands of software license and development agreements entered into every business day in the U.S. Only a very small number result in a lawsuit, and an even smaller number end up with a jury verdict and ruling under 93A by a Massachusetts trial judge. So, when a case does go the distance, it’s worth paying attention. The recent decision by Massachusetts Superior Court Judge Leila R. Kern in Perfectyourself.com v. Accusoft Corporation discusses the evidence in a jury trial that resulted in a more than $400,000 verdict against Accusoft. In Massachusetts the trial judge, not the jury, decides claims under M.G.L. c. 93A, Massachusetts’ “little FTC Act.” Depending on the violation, Chapter 93A allows the judge to award double or treble damages and attorney’s fees to the prevailing plaintiff. The Accusoft decision is the trial judge’s discussion and analysis of the evidence that the jury heard for purposes of her analysis and decision under 93A. The evidence at trial is a common story, although it rarely leads to a jury trial and judgment. Accusoft contracted with Perfectyourself.com to develop a software application. Accusoft represented that it had much of the underlying technology already in place, a claim that the jury and judge found to be untrue. After Accusoft was unable to deliver an acceptable prototype to Perfectyourself a standoff developed – “pay…

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Is it Under Copyright? Check Here

July 24, 2008

Whether a U.S. work is protected by U.S. copyright is often a difficult question to answer. It can depend on factors such date of first publication, whether the work was published with a copyright notice, whether the copyright was renewed, whether the author is living or dead and, if dead, when the author died. Technology to the rescue!, sort of …. Click on the graphic below to go to the American Library Association “Copyright Advisory Network” website where you can use the “digital slide rule” created by Michael Brewer (ALA member from the University of Arizona Library) to find the answer. Drag the red arrow up and down beside the various data points and see what the boxes to the left say (yes, no, maybe). Of course, “maybe” is the answer far too often, requiring the user to click the asterisk, read the explanation, do more research and …. oh well.

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Traps for the Unwary – Waiver

July 23, 2008

What do lawyers fear the most? Spiders, snakes, public speaking, death by auto de fe? Well, I’ll be darned if I know, but one thing that scares the bejesus out of all thinking lawyers is waiver. Lawyers start to become vaguely aware of this horror in law school. Once they go out into practice it slowly dawns on them that it’s ultimately undefinable, that it lurks behind every legal shrub and tree, that opposing counsel will throw it in your face when you least expect it and long after you can fix it, and that if they don’t a court may do so on its own initiative. In its most severe forms it can lead to bankruptcy, scandal, and even malpractice (apologies to Jimmy Stewart). Take a simple summary judgment motion in federal court. Unbeknownst to the novice lawyer, this process is fraught with dangers. The defendant files the motion. You file an opposition. The defendant files a reply affidavit introducing new facts. You lose the motion, and on appeal you argue that it was inappropriate for the defendant to introduce new facts in its reply. You cite the “no new facts” rule. After all, you were sandbagged by that reply, and the court shouldn’t have relied upon it. Not so fast, the First Circuit recently held on these facts – did you raise this with the district court and…

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Rambus: Monopolization Redux

July 22, 2008

Nvidia has filed a Sherman Act complaint against Rambus in federal district court in North Carolina. The allegations appear to echo (copy?) the allegations in the FTC case I reported on recently, where the D.C. Circuit reversed the FTC’s finding of illegal monopolization by Rambus. Can Rambus file a successful motion to dismiss in this new case based on the D.C. Circuit’s decision? Very likely. Why did Nvidia file this suit? My first thought is that Nvidia was concerned about a statute of limitations problem, and this filing (even if dismissed by the District Court) will allow them to appeal and keep their claims alive during the FTC’s motion for en banc review that is pending before the D.C. Circuit, and during a possible Supreme Court appeal by the FTC. Alternatively, they may be hoping that a district court in the Fourth Circuit (or even the Fourth Circuit itself), will see things differently from the D.C. Circuit, and allow their case to proceed.

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ESI and Admissibility

July 22, 2008

After writing the post immediately below it occurred to me that although there is much talk about the discovery of electronically stored evidence (ESI), the admissibility of ESI is addressed far less often. In fact, in the two day conference I linked to in that post, the topic is not even mentioned. For the interested, there are two important starting places for this topic. The first is the 101 page decision in Lorraine v. Markel American Insurance Company by Magistrate Judge Paul Grimm (one of the “rock star judges” mentioned in the ABA article), and the second is The Next Frontier: Admissibility of Electronic Evidence (Listrom, Harlan, Ferguson and Redis). (Note: this last link is on the ABA website and appears to require an ABA membership user name/password; as yet I am unable to locate a copy anywhere else).

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Rock Star Judges and E-Law

July 21, 2008

Anytime these judges write an opinion, it’s treated like a papal encyclical,” . . . They really influence other judges, who act like these are the rock stars of their profession. . . These ‘rock star’ judges are not surprised that they, and not the new rules, are still the final word in e-discovery. . . . Quoted from Rockin’ Out the E-Law, ABA Journal, July 2008. Rock star judges, huh? OK, I’m trying not to wince, laugh or, well, you know… The American Bar Association needs to sell its publications, so you can’t blame them too much, I suppose. In any event, this article names several judges as prominent in the area of discovery of electronically stored evidence (“ESI”), including Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland, Se

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The Viacom/YouTube Privacy Stipulation

July 18, 2008

Viacom v Youtube Stipulation – Upload a Document to Scribd Read this document on Scribd: Viacom v Youtube Stipulation

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51 Things You Aren't Allowed to See on Google Earth

July 16, 2008

You don’t have to love maps or be a geography buff to love Google Earth. It’s a blast to zoom in on places you know, or places you’re curious about. For me, the more obscure the place, the more fun. Try the Saharan Africa or the interior of Inda, for example. And, the more of the planet Google displays in hi-res, the better it gets. So I was intrigued to come across an article listing sites that are partially blocked to public view – blurred out. Here is a link to the article, on ITSecurity.com. Not surprisingly the White House, the U.S. Capitol and various military sites, nuclear reactors and embassies around the world are on the list. Closer to home in Massachusetts (my home state) are an oil tank farm in Braintree, the LNG terminal in Boston, along with much of the Port of Boston and MIT’s Lincoln Labs. But the White Plains train station and William Hurt’s home outside Paris? …..

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"In case you aren't aware of this, MANY (over 60%) of the "100% guaranteed authentic" items you see on Ebay are 100% FAKE!"

July 15, 2008

“In case you aren’t aware of this, MANY (over 60%) of the “100% guaranteed authentic” items you see on Ebay are 100% FAKE! Replicas are sold all over the internet so they end up on Ebay. This guide is to show you some more information on the counterfeit situation and how easily these replicas are being purchased.” Warning on eBay website. [link] Yesterday’s New York U.S. Disrict Court decision exonerating eBay for trademark infringement based on the sale of counterfeit Tiffany products on its auction site is receiving a great deal of attention in legal (and particularly trademark law) circles. The decision is quite extensive, and will be of enormous interest to lawyers (and their clients) who deal with the problem of user-caused online trademark infringement. For a thoughtful discussion of the case I recommend Professor Eric Goldman’s discussion on his Technology and Marketing Law Blog. And watch for the appeal to the Second Circuit (the most influential trademark circuit), which I predict is a lead-pipe cinch. Of course, when it comes to eBay and Google, when one case ends another begins. In early July Rosetta Stone, the foreign language software-based learning company, sued several companies it accuses of “piggybacking”: paying Google to have their ads appear when someone uses Google to search for Rosetta Stone. Think, consumer searches Hertz car rentals, and along with Hertz sees paid ads for…

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Quick Hits – Antitrust

July 14, 2008

The Federal Trade Commission has asked for en banc review of the D. C. Circuit’s decision in the FTC’s Rambus proceeding. I expect this case to be appealed to the Supreme Court, and given the Court’s propensity to accept antitrust cases over the last several years and the importance of this case, the case stands a better-than-average chance of being accepted for review by the Court. Of course better-than-average is still difficult, so the FTC shouldn’t get its printing presses warmed up quite yet. * * * The Supreme Court granted review of the Ninth Circuit’s decision in Pacific Bell v. Linkline, and will hear and decide the case next term. The issue in this case, as described in the Pacific Bell’s petition to the Supreme Court, is – Whether a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a “price squeeze” by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete. The Ninth Circuit held that there was an antitrust duty, and Pacific Bell is appealing that ruling. The SCOTUS blog page for this case is here. * * * I strongly recommend that patent and antitrust attorneys…

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