April 2009

It’s not often that the U.S. Department of Justice prosecutes a sitting U.S. Senator, obtains a conviction at trial, and then concludes it has no choice but to voluntarily dismiss the charges and let the former defendant walk free, totally vindicated.  But that’s what happened in United States v. Ted Stevens, the government’s case against the longest-serving Republican in the Senate’s history.  If this has ever happened before in the United States, I’m unaware of it.

To quote from today’s New York Times:

Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.”

Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith.… Read the full article

Podcast Interview of Professor Charles Nesson: Why Statutory Damages Under the Copyright Law are Unconstitutional in the Tenenbaum Case

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.

Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here.

Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum.  This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death.… Read the full article

Whither Antitrust?

by Lee Gesmer on April 6, 2009

A new administration often means a new approach to federal agency enforcement of the antitrust laws.  And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC.  The business and legal communities want to know, what can we expect?

James W. Lowe and Thomas Mueller of Wilmer Hale attempt to answer some of these questions in their article Whither US Antitrust?, published in the March 2009 issue of the Global Competition Review.… Read the full article

Second Circuit: Google Keyword Ad Practices Are "Use in Commerce"

A few days ago I discussed a decision by Massachusetts U.S. District Court Judge Nancy Gertner holding that purchase of a trademarked keyword to trigger a sponsored link on a search engine constitutes a “use in commerce” of the trademark under the Lanham Act (the Federal Trademark statute). (Earlier post here). In that post I mentioned that among cases addressing this issues, only the Second Circuit had held otherwise.

Now the Second Circuit seems to have changed its position on this issue. In Rescuecom v. Google, issued on April 3, 2009, the court reversed a motion to dismiss by the trial court, holding that Rescuecom properly alleged that Google’s keyword ad practices constituted a “use in commerce” under the Lanham Act.

In a somewhat unusual step, the court attached to its opinion an Appendix entitled “On the Meaning of “Use in Commerce” in Sections 32 and 43 of the Lanham Act.” The Appendix, which is described as dicta, discusses at some length the statutory history of the “use in commerce” phrase in the Lanham Act.… Read the full article