February 2016

CopyrightX: Kagan White House File Shows Administration Split in Lotus v. Borland

February 25, 2016

Several of the CopyrightX teaching fellows used the 1990s Lotus v. Borland copyright case in their classes last week. In an excellent Case Study, Professor Fisher and TF/Berkman Center intern Ben Sobel dissected the background and holdings in this complex case. An interesting aspect of the case study was the use of documents that came to light during Elena Kagan’s Supreme Court nomination process. In 1995 now-Justice Kagan was Associate White House Counsel, and was involved in the administration’s debate of whether to support Lotus (which had prevailed before Massachusetts U.S. District Court Judge Robert Keeton), or Borland (which won before the First Circuit). Judge Keeton had held the Lotus 1-2-3 menu hierarchy copyrightable, and the First Circuit had reversed, holding it to be an uncopyrightable method of operation under 17 U.S.C. sec. 102(b). Lotus appealed to the Supreme Court, which granted cert. The question the Solicitor General’s office faced in December 1995 was whether to support Borland or Lotus, and on what grounds. The policy issues were impacted by the fact that by 1995 Microsoft’s Excel spreadsheet program had an 80% market share, leaving Borland’s Quattro Pro and Lotus 1-2-3 in the dust. Kagan’s files show the extent to which the administration was internally divided over this issue. The DOJ Antitrust Division (headed by Joel Klein, who led the DOJ’s antitrust suit against Microsoft a few years later), supported Borland, and wanted to argue…

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Try Not to Use “Defalcation” in Your Employment Agreements

February 19, 2016

Few things anger employers more than learning that an employee who has been terminated has, before leaving, copied confidential documents. Courts often view this as an equitable justification for enforcing a covenant not to compete that might otherwise be “on the line” legally – maybe enforceable, maybe not. But what if an employee copies confidential documents and does nothing with them? In other words, doesn’t give them to a competitor or use them in a way harmful to the employer?  If the employer discovers this after the employee has left, does it justify declaring that the employee is being terminated “for cause” (retroactively) and denying him the one year of severance his employment agreement had promised him when he was terminated “without cause”? This was the issue in Eventmonitor v. Leland, which (rather oddly) went all the way to the Massachusetts Supreme Judicial Court. The precise issue was whether the employee had engaged in a “defalcation of company assets.” According to the employment agreement, “defalcation” was a basis for terminating the employee for cause and denying him severance payments. (The court chose not to grapple with the question of whether this could be done retroactively, as Eventmonitor tried to do, since a ruling on that issue was not necessary to decide the case). However, “defalcation” was not defined in the employment agreement. The court decided that “in ordinary usage defalcation requires at…

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Sotomayor, Kagan ….?

February 17, 2016

I’m not a constitutional law expert, but I can’t help but picture this scenario. The senate refuses to schedule confirmation hearings for an Obama Supreme Court nominee. Obama does the natural thing – he sues the Senate Republican leader, Mitch McConnell, to compel him to hold hearings. The case quickly reaches the U.S. Court of Appeals for the District of Columbia, which rules one way or the other. The case is appealed to the Supreme Court, which ties 4-4 along conservative/liberal lines. As a result of the 4-4 tie, the D.C. circuit’s ruling stands. You never know ….

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CopyrightX Meets Sony, DMCA

February 16, 2016

I’m privileged to be a CopyrightX teaching fellow this year, and this week CopyrightX met the real world – in the form of an encounter with Sony Music and the DMCA. Professor William Fisher’s CopyrightX lecture 3.3, The Subject Matter of Copyright: Music, contains audio clips of Bob Dylan’s All Along the Watchtower played by Dylan, Hendrix and Stevie Ray Vaughn. The course is making the point, with musical illustrations, that U.S. copyright law allows cover versions, so long as the artist making the cover pays the required compulsory license, and, that the cover version can depart quite significantly from the “fundamental character” of the original. Unsurprisingly, Youtube’s automated ContentID system, cannot distinguish fair use from illegal use. Presumably, a “put back” notice will resolve this little contretemps. Techdirt’s Mike Masnick discusses the whole episode in more detail, here. This is not the first time a Harvard law professor has been the subject of a DMCA takedown of an educational fair use.  See my August 2013 post, Liberation Music Throws Lessig a Meatball Pitch in “Lisztomania” DMCA Takedown Suit. Update: On February 17, 2016 Youtube restored the video.

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