August 2008

Jacobsen v. Katzer

August 22, 2008

“Trust me, this is huge.” Larry Lessig My partner Andy Updegrove has written a post discussing Jacobsen v. Katzer. In a nutshell, theCAFC upheld an open source copyright license, pointing to the work of Creative Commons and others. As Andy discusses, this is an important decision for the open source movement. Update: Here is a link to a thoughtful post discussing whether this decision might have the unexpected effect of tipping the scales (in favor of licensors) on the legal enforceability of license provisions prohibiting reverse engineering of software: Be Careful What You Wish For: How the Jacobsen v. Katzer Decision Could Hurt the Free Software Movement

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Charlie Could Not Get Off That Train ….

August 21, 2008

Let me tell you the story Of a man named Charlie On a tragic and fateful day He put ten cents in his pocket, Kissed his wife and family Went to ride on the MTA Charlie on the MTA (Jacqueline Steiner and Bess Lomax Hawes, 1949) _____________________ U.S. District Judge O’Toole has his hands full with this one. Here’s the quick and dirty: In 2006 the Boston MBTA released the “CharlieCard,” a passcard containing an integrated chip that allows riders of the “T” (the nation’s oldest subway) to store value for rides. Two weeks ago Anderson, Ryan and Chiesa, three MIT students, announced that they had hacked the CharlieCard, and would present their results at DEFCON 16, scheduled for August 8-10 in Las Vegas. Their presentation slides, titled “Anatomy of a Subway Hack” were published in advance of DEFCON. This upset the T, which filed suit in federal court in Boston on August 8th. What passes for legal fireworks ensued – the T’s complaint, along with other public pleadings in the case, are available on the Justia web site. Before filing suit the T reportedly asked the students not to disclose their research until the T had a chance to fix the security flaw. Apparently, the students and the T were unable reach agreement acceptable to the T. The T’s lawsuit sought a temporary restraining order (translation: an temporary emergency…

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Study: If You Go to Trial, Odds Are You're Making a Mistake

August 7, 2008

Litigation takes the place of sex in middle age. Gore Vidal I wrote in some detail almost two years ago about how trials can be very bad for clients. In the linked article I wrote: Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle. Now, a study reported in the New York Times seems to find empirical confirmation for this. I quote from the article, linked here: Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal. That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. . . . In just 15 percent of cases, both sides [plaintiffs and defendants] were right to go to trial – meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered. . . . Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in…

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Andy Updegrove on Appeals in the OOXML Standards Battle

August 6, 2008

If my partner Andy Updegrove (he’s the one on the right) is not the most knowledgeable lawyer on the planet about ODF/OOXML standard adoption issues (1,2,3), I would be more than a little surprised. Here is a Q & A with Andy that Redmond Developer News has published, where he discusses the ongoing appeals process related to these standards. A link to the article on is below, and here is a link to the article online. If you know absolutely nothing about this controversy, click here to read several articles Andy has published on the topic. OOXML Q & A With Andy Updegrove – Upload a Document to Scribd Read this document on Scribd: OOXML Q & A With Andy Updegrove

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Bill Patry: End of Blog

August 5, 2008

In January 2007 I wrote: Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright. I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.” Although I haven’t seen this treatise yet, I hope that it is a change from Nimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia. On Friday, August 1, 2008, Bill Patry wrote as follows. I excerpt from the full post, here – I have decided to end the blog, and I owe readers an explanation. There are two reasons. 1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog . . . While in private practice I never had the experience of people attributing my views to my firm or to my clients. I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine. . . . For the first year after joining Google, . . . people honored…

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"Honey, I'm Going to Whole Paycheck, Has Our Home Equity Loan Come Through Yet?"

August 4, 2008

“[Wild Oats] is the only existing company that has the brand and number of stores to be a meaningful springboard for another player to get into this space. Eliminating them means eliminating this threat forever, or almost forever.” – John P. Mackey, co-founder and chief executive of Whole Foods, in 2007 email to Whole Foods Board Member. Mr. Mackey also posted on Internet message boards under the pseudonym Rahodeb for seven years, ending in 2006 Every man is his own greatest enemy, and as it were his own executioner. – Sir Thomas Browne, Religio Medici My wife loves Whole Paycheck. Even though the nearest Paycheck is a 20 minute drive from our home outside of Boston, and the really good (huge) Paycheck is 30 minutes away, she is reluctant to buy fruit or meat anywhere else. Shaws, which is right around the corner? forget it. Roche Bros., the next nearest supermarket? Boxed cereal, if they’re lucky. In fact, half the time my wife calls Paycheck “Bread & Circus,” the name of the original chain which Paycheck acquired in 1992. My soon-to-be 90 year old mother, who lives quite near a Paycheck that began as a Bread & Circus, won’t call it anything else. When I go to Whole Paycheck, I assume that the minimum charge will be $100. For some reason, it’s almost impossible to get out of Paycheck for…

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Exploring Google Book Search

August 1, 2008

In November 2005 I wrote an article about Google Book Search and the legal efforts of copyright owners to stop Google from achieving its goal of digitizing the world’s books and making them searchable on Google. The lawsuit filed by the Author’s Guild described there has dragged on with little visible activity and no apparent end in sight, but in the meantime Google has been digitizing books like nobody’s business. Although Google won’t disclose how many books it has scanned (why is this a secret? certainly not because of the lawsuit – the answer would easily be discoverable), word on the street is that as of a year ago Google had scanned a million books. If true, and if they are going full steam, they may be approaching a million and a half by now. Probably more than both you and I could read in a lifetime. Searching and browsing this collection is awkward, but interesting to a book lover. While Google only displays “snippets” of copyrighted works, there is a vast collection of books whose copyright has expired. Presumably, these unprotected works are constantly expanding in number, as copyrights expire with the passage of time. Absent some truly extraordinary action by Congress, which can’t be ruled out entirely, it’s only a matter of time before every book is free of copyright rights. Google displays uncopyrighted books in “full view.”…

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