August 2012

Sixth Circuit Finds Trip Advisor’s “Dirtiest Hotel” Ranking Is Not Defamatory

August 30, 2012

I guess the owners of the Grand Resort Hotel in Pigeon Forge, Tennessee have never heard of the Streisland Effect.  Their attempt to sue Trip Advisor for defamation based on the hotel’s inclusion in Trip Advisor’s annual “Dirtiest Hotels” list was dismissed by the federal district court for the Eastern District of Tennessee.  While facts can be defamatory, opinions can not. The court concluded that no “reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users.” Professor Eric Goldman discusses this case in more detail here. Seaton v. TripAdvisor, LLC

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Judge Zobel Affirms Statutory Damages Award Against Joel Tenenbaum

August 29, 2012

Not surprisingly,  Massachusetts District Court Judge Rya Zobel has allowed the $675,000 statutory damages award against Joel Tenenbaum to stand in full. The background of this case is well known to many people, but the nutshell version is as follows. Joel Tenenbaum was sued by Sony in 2007.  Sony alleged copyright infringement with respect to Tenenbaum’s download of 30 digital music files.  Harvard Professor Charles Nesson undertook the pro bono defense of Tenenbaum, and the case went to a jury trial, at which the jury awarded $675,000, 15% of the potential statutory maximum. The trial judge, Nancy Gertner (now retired from the bench), reduced this award to $67,500, concluding that it was excessive under the constitutional standard for evaluating punitive damages.  The First Circuit reinstated the verdict, and remanded the case to the district court, with instructions to consider the verdict under the principles of common law remittitur before considering a constitutional challenge. Tenenbaum appealed this decision to the Supreme Court, which declined review. On remand the case was assigned to Judge Zobel, who issued her decision on August 23, 2012. Judge Zobel found that the evidence supported the jury verdict, and therefore declined Tenenbaum’s request that she remit the verdict. Judge Zobel’s decision summarizes the somewhat damning evidence against Tenenbaum, including his disregard of multiple warnings, and that he may have lied during the legal proceedings. Apparently, Tenenbaum blamed the downloads on a…

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Interview With Founder of SCOTUSBlog

August 15, 2012

If I could take only one legal blog with me to a desert island, it would be SCOTUSBlog.  (OK, don’t make fun of me). Seriously, this blog — devoted entirely to the Supreme Court of the United States (“SCOTUS”) — is a fantastic legal resource.  Everything of interest relating to cases before the Supreme Court is collected here: cert. petitions, briefs, decisions and commentary.  There’s a lot going on at the Supreme Court, and this blog collects and organizes all of it.  It has become an indispensable resource for court-followers. In fact, as Mr. Goldstein notes, people within the Supreme Court (presumably law clerks) access the site hundreds of times a day. The morning the Supreme Court released its decision on the Affordable Care Act this site was the go-to resource for people all over the world.  It even got the ruling right the first time. Here’s a link to a GoverningWorks interview with Tom Goldstein (video and text but, irritatingly, in five parts, with more to come), founder of SCOTUSBlog, discussing why the blog was created, how it has evolved, the challenges it presents for Mr. Goldstein’s law firm, and more. Interesting reading on the evolution of a blog that has become indispensable.

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Samsung – “Attorney’s Eyes Only” for Naught

August 8, 2012

Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation. Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court).  Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential.  “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself. Lawyers work hard to make sure they follow the dictates of a PO.  Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential.  Can we agree to redesignate them?  You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.” Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential? If you won’t, I’ll file a motion . . ..”). And so on. However, when the case gets to trial all bets are off.  Judges are loath to clear the courtroom every time confidential documents or topics are discussed. They don’t want to…

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First Circuit Copyright Decision in Society of the Holy Transfiguration

August 7, 2012

Copyright cases involving translations of ancient religious texts are rare, but in its August 2, 2012, 75 page opinion in Society of the Holy Transfiguration Monestary v. Archbishop Gregory of Denver, the First Circuit addresses many issues of modern copyright law in a case involving just that.  The issues the First Circuit discusses include the transfer of copyright ownership by operation of law, the consequences of publication without copyright notice prior to March 1, 1989, the requirement of originality in derivative works, substantial similarity analysis (along with its many sub-doctrines), the requirement that the accused infringed have engaged in “volitional conduct,” the DMCA and fair use. While not making new law in any of these areas, this case is a good round up of copyright law in the First Circuit.

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Fourth Circuit Weighes in on Computer Fraud and Abuse Act, Sides With Ninth Circuit

August 3, 2012

Yet another federal appeals court has attempted to parse the Computer Fraud and Abuse Act’s (“CFAA”) ambiguous statutory language.  The issue, on which the federal courts cannot agree, is whether an employee who has authorized access to a computer, but uses that access for an illegal purpose — typically to take confidential information in anticipation of resigning to start a competing company or join one — violates the CFAA. The controversy is focused on the words “without authorization” and “exceeds authorized access” in the law: [Whoever] knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value … shall be punished. 18 U.S.C. § 1030(a)(4). Late last year, in a widely noted decision, the 9th Circuit adopted the “narrow” view of the CFAA, holding the law does not extend to an employee who has authorized access but uses that access to make unauthorized use. U.S. v. Nosal (en banc). In late July the Fourth Circuit issued a decision in WEC Carolina Energy Solutions v. Miller, agreeing with Nosal and holding that conduct by an employee that violates the employer’s “use policy” (typically contained in an employee manual, handbook or “computer use policy”) does not give rise to a violation of the CFAA.  As Fourth Circuit stated, “we reject an interpretation of the CFAA that imposes liability…

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How to Follow the Apple v. Samsung Patent Trial

August 2, 2012

The Internet has made following trials in real time feasible, more or less.  For the press to cover controversial trials is nothing new, but in the past these were mostly criminal cases.  Today, thanks to sites like, people can follow technology industry cases in detail – descriptions of what is going on in the courtroom, documents and (in the case of groklaw), unsparing commentary. Groklaw is following Apple v. Samsung from a distance (at least compared to its recent coverage of Oracle v. Google), and the traditional press appears to be covering the case heavily, but only at a general level of detail.  However, someone has put together a twitter feed consolidating the tweets of several industry reporters.  It’s almost like a shadow jury, but a jury of people more knowledgeable about the companies involved than the average juror.  And, in some cases, openly opinionated. The lawyers involved in this case, and certainly in any case covered in detail by groklaw, must dread the possibility that jurors are reading these materials. The twitter feed is here.

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Apple’s “Bounce Back” Patent

August 2, 2012

It seems that Google’s “bounce back” patent is going to play a big role in the trial between Apple and Samsung, underway in federal district court in Palo Alto.  References to it in Apple’s opening statement highlighted this patent. I wasn’t sure what the “bounce back” was, but I think I’ve tracked it down. How do you know that you’ve reached the bottom or top of a page on an iPhone or iPad?  The screen “bounces back” in the opposite direction.  Or, as described in patentese in U.S. patent  7,469,381, issued to Apple in December 2008: In accordance with some embodiments, a computer-implemented method for use in conjunction with a device with a touch screen display is disclosed. In the method, a movement of an object on or near the touch screen display is detected. In response to detecting the movement, an electronic document displayed on the touch screen display is translated in a first direction. If an edge of the electronic document is reached while translating the electronic document in the first direction while the object is still detected on or near the touch screen display, an area beyond the edge of the document is displayed. After the object is no longer detected on or near the touch screen display, the document is translated in a second direction until the area beyond the edge of the document is no…

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Is It Copyright Infringement, or Is It Something Else?

August 1, 2012

One of the thorny issues that comes up in copyright cases is whether a dispute actually falls under federal copyright law.  What the plaintiff may claim to be copyright infringement the defendant may argue is a breach of contract, or vice versa. If copyright law does control, any state law claim based on rights that are the equivalent of those protected by the Copyright Act are preempted, and must be dismissed. A common example is breach of contract: if copyright law applies, a claim for breach of contract is likely to be preempted. The consequences of a ruling one way or the other on this issue can have strategic consequences (whether the case proceeds in federal or state court) or substantive (the standard for liability, or the measure of damages). One context in which this issue arises involves idea submission – where the plaintiff pitches an idea idea hoping to persuade the recipient to purchase the idea for commercial development.  When the defendant allegedly uses the idea to create a copyrightable work, is the claim one of copyright infringement or breach of an “implied contract”? This was the issue in Forest Park Pictures v. Universal Television Network, Inc., decided by the Second Circuit in June.   Actor Hayden Christensen had pitched Universal on a TV show about a concierge doctor to the rich and famous.  He claimed that Universal breached an “implied contract” when it…

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