January 2009

Rambus Files Its Opposition to Cert.; Gatehouse/New York Times Copyright Case Settles

January 28, 2009

[Update: the FTC did file a reply brief.  Link here] All the briefs are in on the FTC petition for cert in its antitrust case against Rambus, (unless the FTC decides to file a reply brief, which is unlikely to change things much). I’ve added the Rambus opposition to the Rambus Group page on scribd.com, here. Now its time for the antitrust community to hold its breath and see whether the Court takes the case. Some knowledgeable commentators have opined that FTC/Rambus case has the best chance of any antitrust case obtaining review this year, but that plus a dime will get you …. well, nothing I guess. If the petition is allowed, it will be very exciting times for antitrust and standards setting law and policy wonks. In federal court in Boston the Gatehouse Media v. New York Times case (described in these two (1, 2) earlier posts) has settled, as I suspected it would. The settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is on scribd.com, here. It appears that this agreement was not intended to be made public (at least not yet), but apparently someone leaked it, so it’s public now. As I read this, Gatehouse prevailed, hands down over the NYT/Boston.com. Gatehouse will erect “technical solutions” to prevent Boston.com from copying the Gatehouse original content, and…

Read the full article →

The Poor Man’s Son

January 26, 2009

I come across passages that I’ll share from time to time. I post them because they tickle my fancy or because I find they contain some insight, perspective or humor that appeals to me.  This quote seemed apropos given the economic meltdown of 2008 and the vast destruction of wealth that accompanied it. “The poor man’s son, whom heaven in its anger has visited with ambition, admires the condition of the rich. It appears in his fancy like the life of some superior rank of beings, and, in order to arrive at it, he devotes himself forever to the pursuit of wealth and greatness. Through the whole of his life, he pursues the idea of a certain artificial and elegant repose, which he may never arrive at, for which he sacrifices a real tranquility that is at all times in his power, and which, if in the extremity of old age, he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it. Power and riches appear, then, to be what they are, enormous machines contrived to produce a few trifling conveniences to the body. They are immense fabrics, which it requires the labor of a life to raise, which threaten every moment to overwhelm the person that dwells in them, and which, while…

Read the full article →

Cameras in Judge Gertner’s Court? Not Quite Yet

January 22, 2009

The Boston Globe reports that U.S. District Judge Nancy Gertner has stayed last week’s decision allowing a motion hearng in the Tenenbaum music downloading case to be “narrowcast” on the Internet, pending an appeal to the First Circuit by the RIAA.  Apparently, the RIAA feels strongly enough about this issue to ask for immediate appellate review, and Judge Gertner agreed to keep cameras out of court, at least for the moment. My take? Cameras in the courtroom should be within the discretion of the judge, who exercises control over that courtroom, and the First Circuit should deny the RIAA’s appeal.  The more that the public sees what goes on in our federal courts, the better for our judicial system.

Read the full article →

Ninth Circuit: Refusal to Allow Embedded Videos and Links in MySpace Not a Sherman Act Violation

January 19, 2009

You would think that in a capitalist economy the right of one business to to say to another “I don’t want to deal with you” would be close to sacrosanct.  And, you would be right, with qualified exceptions in cases where the party refusing to deal has monopoly power.  Even then, the Supreme Court has narrowed the “duty to deal” to  fact situations so limited that antitrust liability can be avoided with careful planning. The two leading Supreme Court cases in this area of the law are Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 601 (1985) and Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).  Post-Trinko, the consensus of the courts is that “refusal to deal” claims are viable only where there was no voluntary prior course of dealing between the parties, where the monopolist’s  conduct increased its short term profits, or where the refusal to deal is used to monopolize an adjacent market. “Refusal to deal” cases involving Internet companies have been rare, but in a recent decision the 9th Circuit held that exclusionary conduct by MySpace.com, directed at another social networking site, Vidilife.com, did not constitute monopolization under the federal antitrust laws. Both MySpace.com and Vidilife.com are “social networking” websites.  MySpace is very well known, Vidilife site much less so. Vidilife.com, owned by LiveUniverse, Inc., allows…

Read the full article →

The Intellectual Propery Colloquium Podcast

January 19, 2009

The Intellectual Property Colloquium is a very well produced podcast with “A List” judges and academics. The one hour shows are audio (which is the definition of a podcast), and can be subscribed to in iTunes. The current topic is A Conversation with Chief Judge Paul R. Michel. Judge Michel is the Chief Judge of the Court of Appeals for the Federal Circuit. Other topics include discussions on copyright, privacy and other IP issues. If you’re a lawyer and you haven’t mastered accessing podcasts, podcasts like this are a message that it’s time you do so. And, it’s much better to listen to this than “Imus in the Morning” while you’re commuting.

Read the full article →

FTC v. Rambus: the Issues in a Nutshell

January 19, 2009

I’d been planning to post a short summary of the legal issues in the FTC’s petition to the Supreme Court in the Rambus case, but I’ve noticed that Professor Michael A. Carrier of Rutgers University School of Law has done this, and done it brilliantly in a post published on the Patently-O Blog, so I stand down and defer to him: In December 2008, the Federal Trade Commission (FTC) filed a petition for certiorari in the Rambus case. There are two central issues in the petition. First, what is the standard of causation needed to connect deceptive conduct with the acquisition of monopoly power? And second, do higher prices in standard-setting organizations (SSOs) present competitive harm? . . . [continue reading]

Read the full article →

Will Massachusetts Lose Judge Saris to the CAFC?

January 17, 2009

According to the front page of the January 12, 2009, National Law Journal (above the fold), Massachusetts U.S. District Court Judge Patti B. Saris is on the “short list” to be appointed to the Court of Appeals for the Federal Circuit – the so-called “science court” that sits in Washington D.C. and hears patent appeals from all of the U. S. District Courts in the United States. When it comes to patents, Judge Saris is the “stand out” judge in Massachusetts. She’s shown a liking and a knack for patent litigation, and lawyers who draw her in their patent cases are appreciative.   She also is active on “the circuit,” speaking at seminars and events where judges are asked to share their thoughts on patent law issues – in other words, she’s an authority on the subject, and her influence extends far beyond her court room. The NLJ has an extensive article, the main point of which is that the CAFC, which has 12 judges, is expected to lose as many as half that number to retirements in the next few years.   Not only is Judge Saris on the short list of about 10 candidates for the CAFC, but she is one of only three judicial candidates. Needless to say, it would be a blow to the Massachusetts federal bench if it lost a judge of this caliber, but it would…

Read the full article →

"Talkin ‘Bout My [Internet] Generation" and Gatehouse Media says, "Give Us A Break Judge, the Registration is in the Mail"

January 16, 2009

Some interesting goings on on the copyright front in D. Mass. are worth a brief mention. First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus.  [Update: the First Circuit held that the trial could not be webcast]. I find the following quote from the decision to be quite humorous: In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet. While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits…

Read the full article →

And Now, a Brief Reminder From the SJC: Employee Handbooks Can Create a Binding Obligation on the Part of the Employer, So Be Careful

January 15, 2009

For more years than I can remember we’ve been warning clients that an employee handbook can create unintended legal obligations.  A case decided by the Supreme Judicial Court late last year (December 2008), serves as a reminder of this hazard. The court found that a sick day policy contained in a handbook bound the Mass Turnpike Authority to pay certain benefits. The case attempts to leave the issue of whether a handbook creates a binding obligation open to a case-by-case analysis (especially when it comes to promises of employment to at-will employees, where it seems less likely that a handbook can get employers in trouble), but the fact remains that this is an area fraught with risk. Who even wants to go through the hassle and expense of defending one of these cases, when they are so easy to avoid? Placing a prominent “disclaimer” at the front of the book will do the job: “This handbook is is presented as a matter of information only and its contents should not be interpreted as a contract or other form of obligation between the firm and any of its employees” Rarely does the law make avoiding a legal headache so simple. Link to the case: LeMaitre v. Massachusetts Turnpike Authority (SJC, 2008).

Read the full article →

The Bill That Would Make Noncompete Agreements Unenforceable in Massachusetts

January 13, 2009

[Update, November 7, 2011]: Almost 3 years later, and still no law. Here is the full text of a bill filed last week that would make noncompete agreements unenforceable in Massachusetts, at least as to employees (as contrasted with noncompete covenants entered into in connection with the sale of a business, the other major category of noncompete covenants): AN ACT TO PROHIBIT RESTRICTIVE EMPLOYMENT COVENANTS Section 1. Section 19 of Chapter 149 of the General Laws of Massachusetts is hereby amended by inserting at the end the following new paragraphs: Any written or oral contract or agreement arising out of an employment relationship that prohibits, impairs, restrains, restricts, or places any condition on, a person’s ability to seek, engage in or accept any type of employment or independent contractor work, for any period of time after an employment relationship has ended, shall be void and unenforceable with respect to that restriction. This section shall not render void or unenforceable the remainder of the contract or agreement. For the purposes of this section, chapter 149, section 148B shall control the definition of employment. Whoever violates the provisions of this section shall be liable for reasonable attorneys fees and costs associated with litigation of an affected employee or individual. This section shall be construed liberally for the accomplishment of its purposes, and no other provision of the General Laws shall be construed…

Read the full article →

Gatehouse Media v. The New York Times: Ready for Trial, Counsel?

January 6, 2009

When I discussed the copyright case Gatehouse Media v. The New York Times over the weekend I hadn’t reviewed the court docket, and hadn’t been aware that Judge William Young had pulled the trick that he is famous for (at least locally): when a party requests a preliminary injunction, he responds by ordering an expedited trial. And I do mean expedited. The case was filed on December 22, 2008. Docket entry 13, issued the same day, states in relevant part (cleaned up a bit for readability): Electronic Clerk’s Notes for proceedings held before Judge William G. Young: Motion Hearing held on 12/22/2008 re MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order filed by Gatehouse Media Massachusetts, Inc. The Court rules denying Motion for TRO; because the matter will be collapsed with a trial on the merits. The Court is reserving ruling on Motion for Preliminary Injunction; ( Jury Trial set for THE RUNNING TRIAL LIST AS OF 1/5/2009 09:00 AM before Judge William G. Young.); Counsel are to cooperate with one another re: discovery. Counsel are to contact the clerk as to the schedule. A 4 week jury trial is scheduled for Jan 5 at this time.  If counsel settle the case, a phone call is all that is necessary. Translation – be ready for trial at 9:00 a.m. Monday, January 5, 2009, nine business days after suit…

Read the full article →

Famous Trials

January 5, 2009

Trials. We love them, we hate them. If you’re a client, you really hate them.  Or at least you should. There are moments of high drama, but the vast majority of trials are as boring as watching grass grow. Even trials that attract the prurient interests of the public (think OJ or Spector), that force the world to watch with morbid fascination, are, for the most part, boring.  Why do you think that Court TV shows only the “highlights”? Nevertheless, if you take an important trial and boil it down to its essence – take out all the tedium, the voir dire, the endless sidebars and evidentiary disputes, the scientific/technical testimony that is often incomprehensible, the marginal witnesses that everyone in the courtroom dozes through — and leave just the heart of the the case, what remains can be fascinating. Law Professor Douglas Linder has done just that at his site, Famous Trials. There you can read about trials ranging from Socrates in 399 B.C., to the 9/11 trial of Zacarias Moussaoui in 2006. As the trials move into the so-called modern era, the coverage expands in detail. The site contains many trial transcript excerpts, multimedia files, and more.  It is truly a labor of love, and a service to the world.  Or at least those few who are interested in this kind of stuff.   Check it out here.

Read the full article →