September 2013

Judge Stearns Weighs in on Legal Standard for Copyright Takedown Notices

September 30, 2013

What legal standard should the courts use to penalize a copyright owner for sending a copyright takedown notice that results in the takedown of a copy protected by fair use? This issue has come up infrequently since the Digital Millennium Copyright Act (DMCA) was enacted in 1998, and never in the First Circuit, but now it is pending in two cases before different federal district court judges in Boston, one of which has reached a conclusion early in the case. The Issue Copyright owners complain that they are disadvantaged by the DMCA, which requires them to target  copyright-protected works that are posted repeatedly on sites such as Youtube. While takedowns impose a cost burden on sites like Youtube, that host a large volume of user generated content, the cost to the copyright owners is probably much greater. After all, the owners need to repeatedly locate the works and send notices. As I commented in a 2010 post, this Sisyphean task has proven to be an endless game of whack-a-mole for copyright owners, one that Congress could not have anticipated when it enacted the DMCA in the 1998 pre-filing sharing/pre-Youtube era. However, the DMCA “takedown notice/counter-notice” regime has the potential to be a double-edged sword. What if the takedown notice targets a copyrighted work in circumstances where the use is protected by the copyright fair use doctrine? For example, what if a user…

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Massachusetts Tech Tax Repealed

September 30, 2013

Gesmer Updegrove Client Advisory – Massachusetts Tech Tax Repealed.  Click here to download a pdf from gesmer.com.  

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First Circuit Upholds Preliminary Injunction Enforcing 12 Month Non-Solicitation Clause

September 24, 2013

In Corporate Technologies v. Harnett, decided by the First Circuit on August 23, 2013, the court upheld the Massachusetts U.S. District Court’s enforcement of a 12-month employee non-solicitation clause. The court rejected Harnett’s (the former employee) argument that he did not solicit Corporate Technologies’ customers, particularly given evidence that the new employer sent a “blast email” to a group that included many of Corporate Technologies’ customers. The opinion contains an extensive discussion of the “metaphysical” distinction between “soliciting” and “merely accepting” business, an issue I discussed in another post this summer (Nudge, Nudge, Wink, Wink – Are You “Soliciting” in Violation of an Employee Non-Solicitation Agreement?). The First Circuit rejected a “bright-line” rule in determining who made initial contact in a non-solicitation case (the former employee or a customer), stating that – we believe that the better view holds that the identity of the party making initial contact is just one factor among many that the trial court should consider in drawing the line between solicitation and acceptance in a given case. This flexible formulation not only reflects sound policy but also comports with well-reasoned case law from other jurisdictions. Of interest is the First Circuit’s rejection of Massachusetts Superior Court cases as precedent on this issue: “these trial court decisions have no precedential force … Where, as here, the highest court of a state has not spoken to a question of state law, our precedents teach that…

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Article published in Lawyer’s Weekly: Applying Copyright Law to New Technologies Still Challenging

September 10, 2013

Embedded below is an article I wrote for Massachusetts Lawyer’s Weekly that was published in the paper’s September 9, 2013 issue.  A link to the article on MLW’s website is here (subscription required).  A link to the original article in an easier to read format is here.

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Aeroe Copyright Law Article in Cyberspace Lawyer

September 6, 2013

The Cyberspace Lawyer was nice enough to take the four-part article on the Aereo copyright case that I published earlier this summer (Part 1 here), combine it into a cohesive whole and publish it in their August issue.  The article is embedded below via scribd. A direct link to the article is here.

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