General

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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Unattributed Online Material Does Not Qualify as a “Learned Treatise” in Massachusetts

September 21, 2015

Lawyers can cross examine experts by questioning them with a “learned treatise” – what a non-lawyer might describe as an authoritative book or article written by an expert in the field. For example, if a doctor is testifying at trial in a medical malpractice case, her opinion on the proper standard of medical care can be challenged, on cross examination, by showing her a “learned treatise” that conflicts with her testimony. The jury hears the quote from the book, and can take it into consideration in evaluating the weight it may give to the expert’s testimony. This is what happened in Kace v. Liang, a wrongful death medical malpractice case. In this case the doctor-defendant was testifying.  He was shown pages from the web sites of Johns Hopkins University School of Medicine and Mayo Clinic that impeached his testimony, and at the request of the attorney questioning him, he read them to the jury. On appeal the defendant argued that the web pages did not satisfy the strict requirements associated with learned treatises under Massachusetts law, and the Massachusetts Supreme Judicial Court agreed, stating that The content of the web pages indicates that they are not medical ‘treatises’ of any sort intended to be read and used by physicians, but rather are directed at laypersons. . . . To establish the admissibility of the statements taken from the Johns Hopkins and Mayo Clinic Web sites,…

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Slides from MIT Copyright Class (3/13/2015)

March 18, 2015

Stephen Lyons, a friend and attorney at Klieman & Lyons, asked me to guest-lecture the Law & Technology class he is teaching at MIT this semester. I only had one class period, so I decided to focus on the 2014 Supreme Court Aereo case. Although the slides are not “stand-alone” they are somewhat self-explanatory. I am sharing them below. MIT Copyright Seminar 3-13-2015 (Reduced File Size) by gesmer  

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Mass Law Blog, Update Week Ending March 21, 2014

March 21, 2014

9th Circuit holds copyright registration of a collective work registers the component works within it. Alaska Stock v. Houghton Mifflin (link) The PTO held its first Public Meeting on the Establishment of a Multistakeholder Forum on Improving the Operation of the Notice and Takedown System Under the DMCA (link) Long-running DMCA copyright suit settles. Viacom v. Youtube (press release) (blog post) Parties settle remaining issues in Prince v. Cariou copyright fair use case (blog post) Columbia Law Prof. Jane Ginsburg’s article on EU linking decision, Hyperlinking and Infringement: The CJEU Decides (sort of) (link) Prof. Eric Goldman’s post on Gardner v. CafePress (copyright/DMCA case; link to case in post) (link) Sup. Ct. Cal., County of San Francisco, holds that Instagram’s unilateral change of terms of service is enforceable (link) Michael Robertson, founder of MP3Tunes, found liable for copyright infringement in SDNY trial (link)

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Mass Law Blog Updates, Week Ending January 17, 2014

January 17, 2014

Massachusetts district court judge O’Toole denied a motion to dismiss copyright claims based in part on foreign publication, where plaintiff asserts that the foreign conduct stems from a domestic infringement (the “predicate act doctrine“). Palmer/Kane LLC v. Houghton Mifflin Harcourt Publishing LLC D.C. Circuit opinion in Verizon v. Federal Communications Commission, holding that the FCC doesn’t have the authority to impose net neutrality laws on companies An interesting article in PetaPixel, discussing Getty Images and Agence France Presse’s motion to set aside a $1.2 million verdict obtained by Haitian photographer Daniel Morel for copyright infringement of Morel’s images of the aftermath of Haiti’s 2010 earthquake Dow Jones has filed a “hot news” lawsuit against Ransquawk. Techdirt has the cease and desist letter and complaint here The House Committee on the Judiciary continues its hearings on possible  copyright reform, based on technological developments. The focus this week was on the “making available” right.  Video available here. David Nimmer written statement here. A full witness list (and access to all written statements), here.  For an overview on these hearings see this Techdirt article, written last May. The Future of Music Coalition has created a timeline of the House Committee copyright reform  process through January 14, 2014. Coming up: fair use and DMCA notice and takedown On January 17th the American Enterprise Institute Center for Internet Communications and Technology  Policy held a program titled “Tech Policy 2014: The…

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Guest Post: There Is No Substitute For Taking a Risk

December 26, 2013

“ In actual life, every great enterprise begins with and takes its first step forward in faith. ” — August Wilhelm von Schlegel ____________________ Now that Christmas is over its time to start thinking about 2014, and that means New Year’s resolutions.  The guest post below was written by my partner Jonathan Draluck and published last month on Gesmer Updegrove LLP’s BostInno channel. Jonathan didn’t write this with New Year’s resolutions in mind, but it struck me as inspirational as we approach 2014. Maybe your New Year’s resolution will be, as he writes below, to conquer your personal fears and —  “take the leap.”  *  *  *  * School is nice.  Sometimes necessary. But no education beats the school of hard knocks.  All the theory and fancy degrees in the world won’t get you anywhere unless you are willing to take what you have learned and add some elbow grease. You may not even know what melts your butter unless you’ve had a first-hand glimpse outside the frying pan.  Hot in the Boston venture capital scene two decades ago, my colleague Andy Updegrove worked on enough deals to pique his aptitude in technology.  He began taking an interest in the computer standards being adopted by the government.  He wrote about it and then rallied loyal readers who most assuredly had not given it much thought.  He is now an expert on setting standards and represents more consortia…

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Viacom Has Chutzpah (or Perhaps Bad Judgment) to Suggest That Second Circuit Reassign Its Case Against Youtube In Event of a Remand

August 8, 2013

“The thing to fear is not the law, but the judge.” – Russian Proverb  _____________________________ Viacom has filed its opening brief in its second appeal in Viacom v. Youtube. This long-running copyright case is establishing important precedents in the interpretation of the  Digital Millennium Copyright Act (DMCA).*  *See this link for my most recent post on this long-runing case. In its current appeal Viacom argues that the trial court judge erred in granting Youtube summary judgment following remand from the Second Circuit’s 2012 decision in this case. The appeal raises many difficult and important issues in applying the DMCA, and it remains to be seen whether the Second Circuit will add clarity or confusion to this complex law. However, one element of Viacom’s argument jumps out instantly. Viacom’s brief includes a section titled “This Court Should Exercise Its Discretion To Remand The Case To A Different District Court Judge.” The text of the argument in support of this request, in its entirety,  is as follows: Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge “to preserve the appearance of justice.” E.g., United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977). Reassignment would “not   imply any personal criticism of…

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Whitey Bulger and Gorky Park

June 14, 2013

“The FBI is an unindicted coconspirator in the massive racketeering case against Whitey.” – Kevin Cullen, Boston Globe, June 14, 2013 _______________ I wonder if Martin Cruz Smith had Bulger in mind when he wrote this in 1981: The FBI doesn’t conduct investigations, they pay informers. … Their informers are mental cases and hit men. Where the bureau touches the real world, suddenly you get all these freaks who know how to kill people with piano wire. Say a freak gets caught … he tells the bureau what it wants to hear and makes up what he doesn’t know. See, that’s the basic difference. A cop goes out on the street and digs up information for himself. He’s willing to get dirty because his ambition in life is to be a detective. But a bureau agent is really a lawyer or an accountant; he wants to work in an office and dress nice, maybe go into politics. That son of a bitch will buy a freak a day. … When their freaks are finished testifying, they move them and give them new names. If the freak kills someone else, they move him again. There are psychopaths that have been moved four, five times — totally immune; they’ve got better pardons than Nixon. That’s what happens when you don’t do the job yourself, when you use freaks. Gorky Park, p. 387-388.

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For Lawyers Turned Video-Porn Mass Copyright Plaintiffs, Litigation May Not Pay

May 10, 2013

I didn’t think I’d have a chance to write another “what were they thinking” post only two weeks after the last one. But, here goes …. I’ve written about Bittorrent swarm mass copyright suits in the past, but Monday’s decision by California federal district court judge Otis D. Wright tops everything that has come before. A lot of people have followed this case and similar cases filed by so-called “Prenda Law”—Ingenuity 13 v. John Doe. In other words, the plaintiffs in this case have made a lot of people mad.* *Techdirt is at or near the top of this lengthy list. The Ingenuity 13 case has been dismissed, but on Tuesday the judge issued a withering sanctions decision in the case. Here is some of what he had to say. The opening paragraph of the opinion sets the stage for the indictment that follows: Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle—for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry. Their…

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Federal Judge Tells Redigi to Shut It Down

April 2, 2013

As I reluctantly predicted last week, U.S District Court Judge Richard Sullivan has ruled that Redigi’s digital resale business is not protected by the first sale doctrine. His March 30, 2013 decision falls squarely in line with the arguments made by Capitol Records and rejects all of Redigi’s positions. I have written quite a bit on this case (here and here), and there is nothing new or surprising in the court’s decision. The court described the issue before it as “the novel question . . . whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine.” In answering this question the court emphasized that because it is “a court of law and not a congressional subcommittee or technology blog, the issues are narrow, technical, and purely legal.” Indeed, the court hewed closely to the statute. It noted that “the plain text of the Copyright Act makes clear that reproduction occurs when a copyright work is fixed in a new material object.”* The court states that “put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard…

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Redigi Case Poses A Novel Copyright Question on the Resale of Digital Audio Files – Is “Digital First Sale” Legal?

March 16, 2012

You know all those used music stores you used to love to go to back in the day when you bought music on CDs?  You could browse through used CDs and buy them for less than retail.  Maybe you still do (kudos to Deja Vu Records in Natick, Mass.).  Of course, you can do the same thing online. The founders of Massachsetts-based Redigi figured, why can’t we create a marketplace that will allow people to do the same thing with their digital music files?  Or, as Redigi puts it: ” Sell your old songs legally – The world’s first used digital music marketplace – Buy used music insanely cheap”.  However, in starting this business Redigi may have run smack into the disconnect between the U.S. copyright statute and digital media.  And, it has been forced to defend against a full-on assault by the RIAA  (in the form of its apparent designee, Capitol Records). Redigi’s service launched in October 2011, and by reason of the sheer chutzpah of its business model the copyright industry (the usual ragtag collection of lawyers, industry types, bloggers, reporters and hangers-on) was soon debating the legality or illegality of its service. By early November Redigi was holding a “roll over and die” letter from the RIAA. By early January 2012 Capitol had filed suit against Redigi in the Southern District of New York. Issue was joined quickly when Capitol filed a motion for preliminary injunction seeking, in effect,…

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Don’t Mess With Texas

May 14, 2010

I’ve written before about how generous juries in the federal courts in the Eastern District of Texas (EdTX) are to patent plaintiffs. (link).  After I wrote about this a year ago there was a feeling that this trend might be reversing itself. However, Johnson & Johnson’s $1.6 billion judgment against Abbott and i4i’s $200 million verdict against Microsoft last summer put an end to those thoughts. So, when Apple, Sirius XM and others were recently sued for patent infringement in EdTX they quite naturally looked for a way out.  Massachusetts, they told the Texas district court, was a far better choice, particularly when you considered the fact that that the patent owner, a non-practicing entity, had set up a Texas company shortly before filing suit, and located its business in the offices of its Texas lawyers. But, it’s not that easy. After the EdTX trial court refused to transfer the case to Massachusetts, Apple and its co-defendants filed a “mandamus” with the Federal Circuit.  Mandamus is a rare procedural tool.  Its a way to ask a court (typically an appellate court) to take an action that isn’t really an appeal (because the there is no final judgment), and no specific statute authority authorizing interlocutory appeal. I think it fair to say that fewer than one in a hundred lawyers has ever filed a “writ of mandamus,” (more likely fewer than…

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