July 2012

Copyright Infringement Trial? Fagettabout It!

July 29, 2012

Not long ago the Computer Lawyer published an article that made the case on how rare copyright trials have become.  The article had an appendix listing cases that had been dismissed in favor of the defendant either on the pleadings or summary judgment. The bottom line was that judges are inclined to look at the works at issue in a copyright case early on, make a decision on similarity or dissimilarity, and end the case long before it has the chance to get to a jury. Two cases decided by the Massachusetts federal district court thus far this year show that, for better or worse, this trend in alive and well in Massachusetts.  In McGee v. Andre Benjamin Massachusetts U.S. District Court Judge David Woodlock found that Cartoon Network’s Class of 3000 television series did not infringe an animated serial work titled The Music Factory of the 90’s.  The Music Factory had been pitched to The Cartoon Network in long-form outline describing the plot and style.  Judge Woodlock compared the works at issue and found that the plaintiff failed to establish sufficient similarities to proceed with a copyright claim.  No jury, no trial – case dismissed. In Greenspan v. Random House the plaintiff claimed the book, The Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money, Genius, and Betrayal, infringed the copyright in his book, Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era.  U.S. Magistrate Robert Collings found…

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Hair Color Formulas and Salon Client Contact Info Not a Trade Secret, Says Superior Court Judge

July 24, 2012

When I think of trade secret cases I tend to think of “high end” stuff: secret manufacturing processes, software algorithms, chemical or biological secrets, maybe even the formulas for Coca Cola or Kentucky Fried Chicken.  The truth, however, is more mundane, as shown by a case decided by Judge Nicholson in Barnstable County. In this case, which was dismissed in favor of the defendant hair stylist on summary judgment, the court held that a hair salon’s hair color formulas and customer contact information were not trade secrets.   This was an easy case, since the stylist knew many of her clients socially outside the salon and there was no employment or secrecy agreement other than an employee handbook, which is a weak basis on which to make a trade secret claim. After all, how many employees read handbooks? The judge also ruled that the hair color formulas belonged to the stylist who had developed them for the salon’s clients, not the salon, since there was no agreement to assign the formulas to the salon.  I find this latter rationale suspect, since “inventions” created within scope of employment and while on the job typically belong to the employer.  However, I question whether the color formulas qualify as trade secrets in the first place.  Case closed. Esalon, Inc. v. Isolde Hoffman    

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Copyright and Innovation: Hanging on to the Past

July 20, 2012

“The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There’s also a negative side.” Hunter S. Thompson _________________ As the battle between online music companies and copyright owners has raged in the courts during the last decade many of us have wondered what was going on behind the scenes.  How did the record companies and publishers assess the threat of digital music to their industry?  Why did they react as they did? What effect did their decisions have on innovation and investment in online music companies? Professor Michael Carrier, Professor of Law at Rutgers School of Law in Camden, has tried to answer some of these questions by conducting  interviews with a range of influential people in the music industry — people who witnessed these events and decisions as they unfolded.  He presents his results in a cutting edge law review article published on SSRN in early July: Copyright and Innovation: The Untold Story.  This paper, which is forthcoming in the Wisconsin Law Review, is an inside look at these issues, through the eyes of 31 “CEOs, company founders, and vice-presidents from technology companies, the recording industry, and venture capital firms.”  Of course, we can’t know the extent to which the opinions expressed by these individuals reflect reality. The battle between the labels and…

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Procedural Errors During Trial Cause Trade Dress Defendant to Forfeit Rights on Appeal

July 13, 2012

I’ve written before about waiver.  As I said back in July 2008, the “one thing that scares the bejesus out of trial lawyers is waiver.”  Waiver is a constant risk in litigation, but nowhere is it more of a risk than during trial.  Failure to object to improper jury instructions, or failure to follow the proper procedure required for judgment as a matter of law (“JMOL” in lawyer parlance) can constitute a forfeiture, and preclude the right to raise the omitted issue on appeal. To make matters worse, these potential waivers come when the fog of war is at its worst: after days or weeks of sleep-deprived trial stress the lawyers have to file a written motion for JMOL just before the jury is handed the case. A lawyer may know that the failure to do this will forfeit the right to raise the missed issue on appeal, but at that point the lawyer is frantically preparing for closing argument and dealing with the countless issues that come up at the end of trial, and the motion may be forgotten or not thoroughly prepared.  However, filing the correct pre-verdict motion is not the end of the matter. FRCP 50 requires that the motion be renewed within 28 days after the court enters judgment.  However, a post-judgment JMOL motion cannot raise an issue that was not presented in the prejudgment motion. Belk v. Meyer…

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Inevitable Disclosure Doctrine Fails Again in Massachusetts

July 10, 2012

Can an employer prevent a former employee from working for a competitor in the absence of a non-compete agreement and with no evidence the employee has violated the former employer’s trade secret or confidentiality rights?  You would think not, but a couple of cases — infamous in the annals of non-compete law  — have imposed a non-compete in these circumstances.  The case cited most frequently on this issue is PepsiCo v. Redmond, a 1995 case in which the 7th Circuit affirmed a preliminary injunction ordering the former employee of PepsiCo to cease working for a competitor for six months, despite the fact that the employee did not have a non-compete agreement.  Another high profile case prohibiting an employee from working for a competitor, even in the absence of a non-compete agreement, is Bimbo Bakeries USA, Inc. v. Botticella, decided by the 3rd Circuit in 2010. In these cases the employee does have non-disclosure/trade secret agreements.  The employer’s argument, based on these, is that the employee will  “inevitably” disclose the former employer’s trade secrets or confidential information in the course of working for a competitor. However, cases where the courts have accepted this theory without evidence of actual misappropriation are almost as rare as hens teeth, and Massachusetts U.S. District Court Judge Denise Casper recognized this when she denied the former employer a preliminary injunction in U.S. Electrical Services v. Schmidt in June of this…

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Judge Posner Puts the Kabosh on Apple/Google Smartphone Patent Suit

July 6, 2012

“It’s not clear that we really need patents in most industries . . .. You just have this proliferation of patents. “It’s a problem.” Judge Richard Posner, Silicon Valley MercuryNews.com, July 5, 2012   Do you recall the final scene in Monty Python and the Holy Grail?  After 90 minutes of farcical medieval/King Arthur-inspired humor the film concludes with a big attack scene (cliché visuals of swords, spears and knights in armor, opposing armies lined up in a field, battle music ….).  King Arthur makes a Crusades-inspired speech and yells charge.  Just as the armies are about to engage a police car pulls up with siren blaring.  20th century British bobbies jump out and arrest some of the knights, who put up no resistance.  Others are simply told to go home.  The war is cancelled.  (video). This is not very different from what just happened in the patent war between Apple and Motorola Mobility (owned by Google) over smartphone patents.  In that case, initially filed in federal court in Wisconsin in late 2010, a year before Steve Jobs’ death, each side accused the other of multiple patent infringements. To put things in context, this case was part of the war against Google’s Android OS that Jobs initiated before his death.  According to the Isaacson biography of Steve Jobs, Jobs stated that Android’s use of Apple’s ideas equated to “grand theft,” and that…

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