Oracle v. Google Resource Page (pinned)

by Lee Gesmer on November 17, 2019

Click here to access my resource page on Oracle v. Google, currently pending before the Supreme Court.… Read the full article

Dirty Politics – How is This Like Lawyering?

by Lee Gesmer on October 12, 2019

“When they go low, we go high” Michelle Obama

“You can’t waller with the pigs and not get dirtyAnon

As I’ve watched the political events of the last few years I’ve heard each side argue that their side needs to “fight dirty” to match the tactics of the opposing party. 

I’m not going to voice an opinion on the political issues raised by these arguments, but I’ve learned one thing from personal experience: if you are an ethical litigator you are likely to be faced with a similar personal challenge at some point during your career. Sooner or later, and probably more than once, you’ll have a case where opposing counsel behaves borderline unethically, or even over the line. The list of ways in which a lawyer can skirt the rules to do this are countless. If you’re on the receiving end it can be upsetting and infuriating.

You, as the ethical lawyer, can’t change your opponent’s conduct.Read the full article

“Contract, Combination or Conspiracy” - Can Peloton’s Lawsuit Survive the Music Publishers’ Motion to Dismiss?

This is a brief follow-up to my earlier post, Copyright Infringement? Peloton Punches Back With Antitrust.

Under Section 1 of the Sherman Act a “contact, combination or conspiracy” in restraint of trade is illegal. However, the Sherman Act says nothing about how much evidence is necessary to file a lawsuit alleging an illegal antitrust conspiracy. In other words, what factual allegations do you need in the complaint to avoid having it dismissed? In lawyer-speak: “what do we need to get into court?”

This question arises frequently in antitrust litigation, and it’s often a close call. Evidence of an antitrust conspiracy may exist, and it may be accessible via discovery, but the plaintiff needs to make enough factual allegations to avoid dismissal to get access to discovery and prove the conspiracy. If it can’t allege the illegal conduct in a complaint, it’s likely to face a motion to dismiss that will kill the case at its inception.Read the full article

A Few Observations From the Ninth Circuit En Banc Argument in Skidmore v. Led Zeppelin

I have a few observations on the Ninth Circuit September 23, 2019 en banc hearing in Skidmore v. Led Zeppelin. Video of the oral argument is embedded at the bottom of this post, and the transcriptions below are mine – I’ve left out a few words here and there to make this easier to read, but I didn’t leave out anything material.

Did Skidmore’s Attorney Give Away the Case?

Quite possibly.

Here are the key excerpts from the oral argument. (I’m labeling all of the judges’ questions as simply “judge,” but the questions were posed by different judges):

Judge: Are you conceding today that if you are confined to the deposit copy your copyright claims are not viable?

Skidmore Counsel: I think that it is very difficult for plaintiff to win based on the deposit copy since it’s such an inaccurate transcription of the composition ….

Judge: Is that a “yes”?

Read the full article