March 2009

If a Picture’s Worth a Thousand Words ….

March 28, 2009

If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier. And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:

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Is It Safe? Cloud Computing, That Is

March 28, 2009

The Electronic Privacy Information Center (“EPIC”) doesn’t think so, at least when it comes to Google’s so-called “Cloud Computing Services” (e.g., gmail, picassa, google calender). Here is a link to the complaint (pdf) EPIC has filed with the Federal Trade Commission. Quoting from the Complaint: Google routinely represents to consumers that documents stored on Google servers are secure. For example, the homepage for Google Docs states “Files are stored securely online” (emphasis in the original) and the accompanying video provides further assurances of the security of the Google Cloud Computing Service. . . . Google encourages users to “add personal information to their documents and spreadsheets,” and represents to consumers that “this information is safely stored on Google’s secure servers.” Google states that “your data is private, unless you grant access to others and/or publish your information.” . . . On March 7, 2009, Google disclosed user‐generated documents saved on its Google Docs Cloud Computing Service to users of the service who lacked permission to view the files (the “Google Docs Data Breach”). This is just one of many example of known flaws with Google’s Cloud Computing Services. . . . Investigate Google, EPIC asked the FTC, and stop Google from misrepresenting the effectiveness of its security practices in connection with cloud computing. Compel Google to enhance its security precautions, and stop Google from offering cloud computing until it does…

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Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

March 27, 2009

There are lies, damn lies and statistics. Mark Twain __________________________ Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search). Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size. Here are a few statistics that jumped out at me, based on a quick review: Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and…

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First Circuit Reverses Judge Young in Situation Management Case

March 23, 2009

Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post). Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid —…

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Andy Updegrove's Thoughts on the Microsoft v. TomTom Patent Case, on Consortiuminfo.org

March 20, 2009

It would be an understatement to observe that Microsoft’s patent suit against Dutch GPS vendor company TomTom has been closely watched. Why? Because Microsoft alleges that several of the patents at issue are infringed by TomTom’s implementation of the Linux kernel. In this first month of the dispute, the most urgent question has been this: will TomTom fight or fold? Now we have the answer: TomTom has decided to fight – and perhaps fight hard. Yesterday, it brought its own suit against Microsoft in a Virginia court, alleging that Microsoft is guilty of infringing several of TomTom’s own patents. The question that many Linux supporters are now asking is this: is this good news for Linux, or bad? Here are my thoughts on that important question. Continue reading ….

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First Circuit Declines to Reconsider Its Holding That Truth May Not Be a Defense Under 1902 Massachusetts Law

March 20, 2009

The First Circuit has denied Staples’ request that it hear the Noonan v. Staples case en banc, or that it ask the SJC to advise it on how to apply the 100 year old Massachusetts statute which provides that “actual malice” may create an exception to the principle that defamation must be false to be actionable. I posted on this case a few weeks ago (link here), and commented on the agita it had created in the First Amendment milieu. In fact, a vast number of publishers and First Amendment advocates filed an amicus en banc brief urging the First Circuit to reconsider this decision Today, the Court denied this request and let its February 13, 2009 decision stand. In an order several pages long, the Court found that Staples had waived any First Amendment challenge to the state law by failing to raise it earlier, and that Staples could not, moreover, cite a case supporting the proposition that the law was unconstitutional. Here are some selective quotes from the Order: Since its initial brief, Staples has argued under the premise that the term “actual malice” in § 92 means “malevolent intent.” Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the . . . opinion found that it need not consider the issue. . . . The issue is waived, and the fact that the…

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Free The Market! by Gary Reback

March 19, 2009

Gary Reback, famed antitrust/IP lawyer and long-time thorn in the side of Microsoft, has written a book entitled “Free The Market!”.  The book will be released in mid-April and is available on preorder at Amazon now. Based on a few excerpts on Reback’s web site it looks like this will be an anecdotal, “in-the-trenches” book (as opposed to theoretical/academic) that should be well worth reading for those interested in the antitrust/IP wars of the last two decades. Reback was truly in the center of most of the big cases during these years, and I hope his book captures the legal issues, strategies and behind-the-scenes events that he witnessed.

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"You Assert That a ‘Spike’ is a Non-Pointed Structure Under This Patent? That Will Cost You $4.6 Million, Counselor!"

March 18, 2009

As I’ve said so many times in this blog, it’s not the law you need to fear, it’s the judge. In CU Medical v. Alaris Medical System (a patent infringement case involving medical valves) the patent owner/plaintiff argued that the term “spike,” described in the patent as “a pointed instrument,” included non-pointed structures, such as a tube.The California U.S. District Court trial judge didn’t take kindly to this frivolous argument (in the eyes of the judge).  The judge also found that the plaintiff had made “multiple, repeated misrepresentations . . . to the Court,” another no-no. The trial court imposed sanctions totalling $4.4 million under 35 U.S.C. Section 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”) as well as Rule 11 sanctions for good measure. The CAFC affirmed. Here’s is a link to the case: CU Medical v. Alaris Medical System.

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Connecticut Supreme Court Briefs Online

March 18, 2009

Here’s a link to Connecticut Supreme Court Briefs Onlne, a WordPress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available). It would be great if every state did this, and if there were a centralized site that provided access to each state (StateCourtBriefsOnline.com?).

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American Lawyer: The USSC Has the CAFC Trembling in its Robes

March 17, 2009

“Justice belongs to those who claim it, but let the claimant beware lest he create new injustice by his claim and thus set the bloody pendulum of revenge into its inexorable motion” Frank Herbert ———————— For those who have access to the American Lawyer (and I realize that at $430/year that’s a tiny percentage of lawyers, and almost no non-lawyers), there’s a interesting article in the March 2009 issue on the impact the Roberts Court’s patent rulings in appeals from the CAFC (six cases, six reversals) has had on the CAFC. The article, titled “The Error of Their Ways,” shows the extent to which the USSC is pushing the CAFC in the direction of a more moderate (less permissive) application of patent law. According to this article, the Supreme Court has the CAFC questioning everything they have ever known about patent law. If this article is to be believed, the Supreme Court has effected a major retrenchment in U.S. patent law. Oh well. Who said that the law was immune from creative destruction? You may be able to find the American Lawyer in a library, but I doubt that many libraries would pay that subscription ….

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Presentation Materials on Massachusetts Data Regulations

March 17, 2009

Recently my partner Joseph Laferrera has given a series of presentations and webinars on the controversial new Massachusetts data security regulations. Information on his upcoming webinar with Ntirety (a database administrator and client of our firm), on April 2, 2009 at 10:00 a.m., is available at this link. A copy of the slides Joe is using now (they change often, based on developments), is on scribed.com, here: The New Standard – Massachusetts’ Sweeping New Data Protection Rules Publish at Scribd or explore others: Science & Engineerin data protection

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I’d Like to Hire You Counselor, But First Tell Me What You Contributed to the Judge in the Last Election?

March 14, 2009

“We will sell to no man … Justice” Magna Carta (1297) “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” Supreme Court Justice Antonin Scalia “In civilized life, law floats in a sea of ethics” Former Supreme Court Justice Earl Warren …. “nor shall any State deprive any person of life, liberty, or property, without due process of law” … Fourteenth Amendment to the United States Constitution ————————– Should the Supreme Court extend the Due Process Clause of the Fourteenth Amendment to create a constitutional right to a fair tribunal in the state courts? That’s the issue facing the Court in Caperton v. A.T. Massey Coal Co., which was argued before the Court last week. The facts are straightforward – in fact, John Grisham adapted them for his novel The Appeal. Caperton won a $50 million judgment against the A.T. Massey Coal Co. in state court in West Virginia in 2002. Unhappy with this outcome, the Massey CEO, Don Blankenship, authorized an appeal to the West Virginia Supreme Court of Appeals (the highest state court in West Virginia). But Blankenship believed that one of the judges on that court was anti-business, and he…

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