I’ve never been captured by Larry Lessig’s books, but once I stumbled on some of his online speeches and Powerpoint presentations (he doesn’t use Powerpoint, so I’m using that term generically), and I realized that he was a zen master of this art form (and it can truly be an art form). Here’s a recent example – Lessig on McCain on Tech. (And another great (and earlier) example here). Lessig’s presentation style is sometimes called the Lessig Method.
A white paper written by my partner Joe Laferrera — New Data Security Regulations Have Sweeping Implications For Massachusetts Businesses– is embedded below (using scribd.com). Alternatively, click on the link.
New Data Security Regulations Have Sweeping
It’s easy to forget that the Digital Millennium Copyright Act is really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes.
The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection. You did? Well, any disclosure of that would violate the DMCA, so put a sock in it”), and the efforts to claim that an end-user license agreement may constitute an access control measure protected by the DMCA. This is a “must read” document for anyone interested in anti-circumvention enforcement under the DMCA.
Articles by Joe Laferrera of my firm, discussing application of the DMCA in the cases of Lexmark International v. Static Control Components, and Chamberlain Group v. Skylink Technologies are linked here and here.
From a Department of Justice press release, November 7, 2008 –
WASHINGTON — Attorney General Michael B. Mukasey issued the following statement on the resignation of Assistant Attorney General Thomas O. Barnett of the Antitrust Division:
“Tom Barnett has been an effective enforcer of the antitrust laws and a strong advocate for consumers. Under his leadership, the Antitrust Division has increased cartel enforcement to record levels with unprecedented fines and prison sentences, improved the efficiency and efficacy of its merger enforcement, and enhanced cooperation with our foreign counterparts.”
….
Barnett was confirmed by the Senate as Assistant Attorney General of the Antitrust Division on Feb. 10, 2006. He became acting Assistant Attorney General on June 25, 2005, and previously served as Deputy Assistant Attorney General since April 18, 2004.
Barnett’s resignation is scheduled to be effective Nov. 19, 2008.
Many people knowledgeable about these two companies may be surprised to learn that IBM has persuaded a U.S. District Court judge in New York that indeed, they are competitors. The judge has enjoined Mark Papermaster, a 25-plus year employee of IBM, from working for Apple Computer. While at IBM Mr. Papermaster was a product development executive in the area of blade servers. After Apple engaged in an extensive, year-long interview process it hired Mr. Papermaster as the senior executive for the iPod/iPhone development team.
Of course, Apple was well aware of Mr. Papermaster’s non-compete agreement with IBM, which prohibited him from working for a competitor, and I assume that it seriously considered whether it could defend a challenge of this sort by IBM. Apple probably concluded that servers and iPods were sufficiently far apart that it would be safe hiring Mr. Papermaster. The fact that this decision went against it highlights once again the extent to which the outcome in a case of this sort is determined by the disposition of the judge who happens to draw the case, rather than the underlying legal principles, which give the judge an enormous amount of discretion to rule either way.
The Justia page for this case is here. It appears that Justia has decided to make access to court filings in the case free of charge, and therefore the legal memoranda arguing each side’s position are available (docket entries 4 and 10).
Docket entry 18 is the judge’s order, which reads in part:
For the reasons that will be stated in a forthcoming Opinion, Plaintiff’s Motion for Preliminary Injunctive Relief is GRANTED. It is further ORDERED that Defendant, Mark D. Papermaster, will immediately cease his employment with Apple, Inc. until further Order of this Court; . . . and it is further ORDERED that the Court will hold a status conference on November 18, 2008, at 10:00 am, at which it will discuss, and encourages the Parties to discuss beforehand, an expedited schedule for discovery and trial.
Expect significantly more activity in this case (including an emergency appeal) if Apple and IBM aren’t able to work out their differences out of court. I suspect that IBM knows that it got a somewhat lucky role of the dice on this ruling. At least on the face of it, a settlement that assured IBM that Mr. Papermaster would stay away from any server development at Apple should be enough to resolve this dispute.
Of course, my discussion is based on the public record disclosed in the court filings. In the world of Steve Jobs (who, according to the court filings, was directly involved in the decision to hire Papermaster), what you see and what’s really going on can be very different. For the back story on this case, see this Fortune article and this Cringely column, from which the following quote is drawn:
Apple still hopes to convince a judge that it is correct about Papermaster. But if Apple fails in that, Steve Jobs will just pick up the phone and choose IBM Microelectronics as the fab to build the next generation of Apple’s PowerPC processors – a contract worth billions, but ONLY if IBM drops all legal action.
Apple will win in the end — I guarantee it. And the way Jobs negotiates, Big Blue will probably end up losing money on the chip deal, too.
Update: This case was settled in January 2009.
This site is hosted by Gesmer Updegrove LLP, a technology law firm based in Boston, Massachusetts. You can find a summary of our services here. To learn how GU can help you, contact:
Lee Gesmer