Gesmer Updegrove LLP

Dirty Politics – How is This Like Lawyering?

by Lee Gesmer on October 12, 2019

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

“You can’t waller with the pigs and not get dirty” Anon

As I’ve watched the political events of the last few years I’ve heard Democrats argue that their side needs to “fight dirty” like the Republicans do. Merrick Garland, “birtherism,” Ukraine/Biden, “lock her up” . . .. Many Democrats are fed up, and argue that they have to meet the Republicans on their own terms. As they say, you can’t bring a knife to a gunfight.

I’m not going to voice an opinion on the political issues raised by this debate, but I know 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.… Read the full article

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

by Lee Gesmer on September 30, 2019

“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

by Lee Gesmer on September 25, 2019

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

Copyright Office Backs Led Zeppelin In Ninth Circuit En Banc Appeal

by Lee Gesmer on September 13, 2019

Copyright Office Backs Led Zeppelin In Ninth Circuit En Banc Appeal

Update (9/25/19): A Few Observations From the Ninth Circuit En Banc Argument in Skidmore v. Led Zeppelin (link)

The appeal in Skidmore v. Led Zeppelin is scheduled to be reargued before an en banc Ninth Circuit appeals court panel on September 23, 2019 (watch it live online here), and the U.S. Copyright Office has taken the unusual step of submitting an amicus brief in support of Led Zeppelin.

This important copyright case is discussed in my October 2018 post, Led Zeppelin, Spirit and a Bustle at the Ninth Circuit, so I won’t review the background in detail here. The works at issue are Spirit’s 1968 song Taurus and the opening section of Led Zeppelin’s Stairway to Heaven. A Ninth Circuit panel reversed the jury’s verdict (verdict here) in favor of Led Zeppelin and sent the case back for retrial based on errors in the jury instructions.… Read the full article

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