November 2005

Technology. The business war between Microsoft and Google has the Internet and business communities riveted. This is the best business rivalry in years, better than Coke/Pepsi, better than Microsoft/Sun, better than Microsoft/Apple (okay, I’m stretching with the last one). At least for the moment Google is perceived to be, potentially, maybe (no one’s sure) a fundamental threat to Microsoft. Who knows, maybe later today Google will release (in beta, of course), an online suite of products superior to Microsoft Office that will be file compatible with Office, allow users to store documents with complete security and privacy on Google servers, and put Microsoft out of business (sans Xbox, of course) by the end of the week. Disruptive technology, thy name is Google. Well, its possible, isn’t it?

Robert X. Cringely writes most entertainingly on this subject this week, in his article Paper War.… Read the full article

Copyright Law and The Da Vinci Code

by Lee Gesmer on November 9, 2005

Copyright. Copyright law is often called the “metaphysics of the law,” as judges labor to decide whether one work is enough like another to constitute copyright infringement. Often this involves arcane legal tests that few people, beyond copyright lawyers, care to think about. But, most of us read novels, and when one writer says, “your novel is so similar to my novel that it infringes my copyright,” we think, “that’s not so hard, I can decide that!” And, when one of the books is The Da Vinci Code (ranked 44th in books at amazon.com two and one-half years after publication), the chances are good that you, patient reader, have read one of the books that was the subject of just such a case. To see how a New York federal district judge decided the case in which Lewis Purdue, the author of Daughter of God and the Da Vinci Legacy, accused Dan Brown, the author of The Da Vinci Code, of copyright infringement, click here.… Read the full article

How The Grinch Stole Christmas Vacation

by Lee Gesmer on November 9, 2005

As we rapidly approach the holiday time of year, it’s worth remembering that not all lawyers lack a sense of humor or a talent for poesy. In fact, some have both . . . .

“The Grinch Hated Christmas” ….Read the full article

Minority Shareholders/Fiduciary Duty. Massmanian v. Duboise, decided in September by Judge Ralph Gants in the Suffolk County Business Litigation Session, proves once again that when a party to litigation angers a judge, they can be forced to pay a high price.

In this case the plaintiff Massmanian was a 30% minority shareholder and employee in North/Win. After he filed suit accusing the majority shareholders of diverting North/Win’s profits and assets to another company (a serious breach of fiduciary duty, if true), North/Win terminated Massmanian for insubordination and neglecting his duties. Massmanian then asked the court to issue a preliminary injunction reinstating him. In opposing this motion, North/Win, and its lawyers made some serious strategic errors:

  • First, they demanded that all North/Win employees sign a Confidentiality Agreement which (among other things) barred employees from disclosing “matters related to the lawsuit Massmanian has filed against the company, even in a legal proceeding.” This Agreement was demanded upon pain of termination, and one employee was terminated for failing to sign it.
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