October 2006

Recent Cases (copyright, trade secrets)

by Lee Gesmer on October 12, 2006

In Cambridge Literary Properties, Inc. v. W. Goebel Porzellanfabrik Magistrate Judith Dein issued an extensive Report and Recommendation (adopted by Judge Nancy Gertner) on issues relating to the statute of limitations as a bar to a claim of copyright infringement. The case involves facts going back as far as 1931 which involved the drawings of Berta Hummel, and is a valuable primer on the defense of statute of limitations in copyright actions.

District court Judge Gorton has issued a decision in Echomail, Inc. v. American Express denying IBM’s (a co-defendant) motion to dismiss claims of trade secret misappropriation, unfair competition and violation of M.G.L. c. 93A.

In T-Peg, Inc. v. Vermont Timber Works, Inc. the First Circuit applied the Architectural Works Copyright Protection Act for the first time in this circuit. Reversing summary judgment for the defendant and remanding for trial, the court not only recapped the legal standard for substantial similarity (the test by which infringement is judged under copyright law), but clarified its position on expert testimony in copyright cases, making clear that there is no per se rule against expert testimony, and that whether or not it is appropriate depends on the complexity of the subject matter at issue.… Read the full article

Larry Reece

by Lee Gesmer on October 4, 2006

Laurence H. Reece, III, was a partner at our firm for two years at the end of the 1990s. Following that, he started his own firm in 2000. Larry died of cancer in August 2004.

Larry was the “Dean of the Bar” in Massachusetts when it came to the law of trade secrets and covenants not to compete. He was a nationally recognized expert in these practice areas and a prolific author, writing seminal articles on these topics.

Life moves on, and out of concern that these articles would turn to dust on the bookshelves and in the libraries of Massachusetts attorneys, I asked Larry’s wife, Patricia Manson, for permission to publish some of Larry’s best articles on this blog. She agreed enthusiastically. While the copyrights to these articles belong to the publishers, I believe that this nonprofit, educational publication falls well within fair use. (Warning: these are lengthy PDF files).… Read the full article

Lawyers know that one of the most unpredictable decisions a Superior Court judge can make involves long-arm jurisdiction – that is, whether the defendant has enough “contacts” with the state to be sued here. (For an article by the author discussing the state long-arm statute in depth, click here).

Two recent decisions illustrate this point. In Saint-Gobain Ceramics v. Happy Hewes Judge Bruce Henry ruled that there was no personal jurisdiction over Hewes, who lived in Illinois, despite the fact that Hewes had been an employee of Saint-Gobain, engaged in phone calls with Saint-Gobain in Massachusetts, had made multiple visits to Massachusetts on company business and had received paychecks from Saint-Gobain’s facility in the state. Most lawyers would tell you that this was more than enough to establish personal jurisdiction, but Judge Henry disagreed, noting that “whatever Hewes did during the unspecified number of contacts with Massachusetts was at his employer’s behest and not for his own purposes.” This line of reasoning has little basis in Massachusetts law that I’m aware of, but it persuaded Judge Henry, who dismissed the case against Happy Hewes, leaving Saint-Gobain to pursue him in Illinois.… Read the full article

Courts. Although Allan van Gestel’s recall to the Suffolk County Business Litigation Session received moderate publicity last year, both Thayer Fremont-Smith (bio) and Hiller Zobel’s recall this year has received almost no attention at all. If these recalls were reported by Mass Lawyers Weekly, I can’t find it. Both judges are sitting in Middlesex for now.… Read the full article