June 2012

What is the first thing a lawyer looks for when a client wants to enforce a non-compete agreement?  What is the first thing a lawyer hopes not to find when a client is the subject of a non-competition demand letter or lawsuit? Bad facts. Did the employee take confidential information belonging to the former employer?  Did the employee contact customers of the former employer and solicit them for the prospective employer before leaving the former employer?  If the employee was an executive or owed a fiduciary duty to the former employer, did the employee solicit other employees to leave with her? If the employee did any of these things, did the employee try to cover it up?  Bad facts!  The plaintiff’s lawyer will say.  Give me those bad facts!

OK, I exaggerate a bit – of course a lawyer first wants to see if there is a written agreement that contains a non-compete provision.  … Read the full article

Video Game Company Misreads Copyright Law, Infringes Tetris

Tetris.  Popular?  Perhaps the best video game yet created, with over 200 million copies sold.  Mysterious?  It was developed by a Russian programmer during the cold war.  Scientific?  Think tetrominos, not MMOGs.  If you aren’t familiar with this game you should (a) reexamine your life, and (b) check it out.

But does copyright law protect it against a knock-off that uses not only the same “ideas” (tetromino shaped tiles falling from the top of the screen, that need to be moved/rotated to fit into the openings below) but the exact screen height/width (in tile units)?  Shading and gradation of the pieces?  Creative aspects of animation (such as shadowing)?  Features, like previewing the next piece up?

Desiree Golden may have thought so at first – she asked Tetris Holding Co. for a license, with no success.  So Golden’s company, Xio Interactive, went to Plan B, and created what it concluded would be a similar but non-infringing game.  … Read the full article

It is a well-known principle of copyright law that the Copyright Act has no extraterritorial reach.  For example, a U.S. copyright holder cannot bring suit for copyright infringement, in the U.S., against individuals or companies who reproduce and sell, outside the U.S., software, music CDs, DVDs or other copyright-protected works.

What if, however, the initial infringement occurs in the United States, and the infringer distributes infringing copies outside the U.S.?  For example, what if an employee illegally copies an employer’s software program in the U.S., transports it to France (either on physical media or electronically), and sells it in Europe?  May the U.S. copyright holder recover damages based on lost profits or infringer profits in Europe?

Surprisingly, this “infringe locally/sell abroad” issue has rarely come up under copyright case law in the U.S.  Until recently, only two courts have addressed it under the current copyright statute, the Second Circuit in 1988 (Update Art v.Read the full article