July 2008

The Massachusetts Data Breach Notification Statute; Online Copyright Infringement

July 10, 2008

Spring 2008 Gesmer Updegrove Technology Law Bulletin – Upload a Document to Scribd Read this document on Scribd: Spring 2008 Gesmer Updegrove Technology Law Bulletin

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"The American Jury System is Dying"

July 10, 2008

Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …). Most of these judges hold their cards close to their chests, but U.S. District Judge William Young is an exception. His keynote speech before at a Florida Bar event last June is on the Boston Bar Association website, and any lawyer practicing before Judge Young is well advised to read it, along with Judge Young’s 2004 decision on the federal sentencing guidelines. Judge Young’s judicial philosophy is clearly spelled out in these writings, and you’ll be far better prepared appear in his courtroom if you’ve read them.

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The YouTube Discovery Order and ESI

July 8, 2008

“You have no privacy. Get over it.” Scott McNealy —————————— The Internet and the press are abuzz with the potential privacy issues raised by the federal court order requiring YouTube and Google to produce the YouTube “Logging database.” This database is described in the court order as follows: [the database] contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. . . . That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” [Viacom] seek[s] all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website. In addition to this database, YouTube was ordered to produce copies of the millions of videos that had been deleted from YouTube. Whew! Just a few, eh? My favorite quote from this decision is the judge’s offhand comment that “while the Logging database is large, all of its contents can be copied onto a few…

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Would You Like To Go On an Amphibious Sightseeing Tour?

July 2, 2008

Trademarks are meant to identify the source of products and services. Do you get confused between Coca Cola and Pepsi Cola? Between Payless Shoes and Comfort Shoes? Between Domino’s Pizza and Papa John’s Pizza? Probably not. “Cola,” “shoes” and “pizza” are what trademark law classifies as “generic” terms – they describe the product, not its source or origin. If someone started selling a drink called “Rockstar Cola,” Coke and Pepsi would have no legal grounds for objection. The “cola” part of their trademarks are generic, and in a trademark infringement suit a court’s focus would be on the first word in the trademark, “Rockstar.” On the other hand, if someone started selling Koka Cola or Popsi Cola, the lawyers for Coke or Pepsi would be working overtime to prepare their lawsuit. Now let me ask you a question that might be part of a “trademark survey” – a survey designed to determine how strong a trademark is, whether two trademarks are confusing, or whether a trademark is generic: What do you call a sightseeing tour that uses an amphibious vehicle to transport tourists on land and water? What other names, if any, do you use to refer to this type of sightseeing tour? Did you answer “duck tour” to the first question and “don’t know” to the second? If you did you went right to the heart of the First…

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