We need more laughs in the legal profession, believe me. Lawyers take themselves way too seriously – and I’m putting that very politely.
Evan Schaeffer of The Legal Underground is working to correct this with a long-running series of “advice” letters: advice to young lawyers, advice to federal judges, advices to partners, and so on. If you’ve worked in a large law firm (typically his target), you realize he has a talent for this. If you haven’t you probably can’t believe this stuff (admittedly, a lot of it is over the top). However, there is at least a germ of truth to all of this.
I’m in a terrible bind. There’s a partner in our 1,127-attorney firm named Mr. B who everyone is scared of, including me. Unfortunately, I got assigned to his practice group yesterday. Even though I’m a fourth-year associate, Mr. B apparently wanted to break me in easy. He called me on the phone, said his secretary had a document for me to copy, and told me to come to his office. When I did, he was on the phone again. He held up his right hand with all his fingers extended and mouthed, “This many.” So far, so good. I made five copies. But later in the day, he called me into his office again. He wasn’t on the phone anymore. He held up his right hand and extended his fingers again. Then he started screaming. “Look!” he yelled. “Tell me what you see!” A chill ran down my spine when I counted only four fingers.
As it turns out, Mr. B is missing the pinky on his right hand. As a result, I really screwed up. Continue reading …
I would be remiss if I didn’t provide a link to the Boston Herald blog on the Entwistle case, which is being tried in Middlesex Superior Court in Massachusetts. The case has attracted international attention due to the horrific and gruesome facts of the case, and that the defendant, who is accused of the cold-blooded murder of his wife and infant daugher, is British. The Boston Herald is “live blogging” this trial.
When I started a music blog a couple of years ago (sadly ignored of late), I started getting promotional CDs from some small publishers. I’m not sure how they got my home address, and for the most part the music wasn’t very good. However, I did notice that in a few instances the CD cases were stamped “promotional, not for resale,” or words to that effect.
Had I sold these CDs on eBay or at a garage sale, I might have ended up in the shoes of Troy Augustino, who (like every good eBay entrepreneur) purchased some promotional CDs from music shops and online auctions, and resold them for a higher price on eBay.
Stop! Universal Music said. You have no right to resell the CDs, since we only “licensed” them, and the license prohibits resale. By reselling you’re violating our copyright rights!
No dice, ruled a California federal district court judge. Universal did not “license” the CDs, it gave them away as a gift. And, under the copyright “first sale” doctrine, a purchaser or gift recipient is free to resell (or regift) the promo CDs.
The “first sale” doctrine is easy to understand, since most of us take it for granted: if you buy a CD, DVD or book, you are free to resell it. The copyright owner has the right to prevent you from reproducing the work, distributing copies, publicly performing or creating derivative works. But, you are free under the “first sale” doctrine to resell the physical disk or book which holds the copyrighted work. And that’s what Mr. Augustino did here. The outcome of this case was predictable, and why Universal Music, the largest music company in the world, chose to file this lawsuit will likely forever remain a mystery.
The Massachusetts employment bar is abuzz with word that a Massachusetts Commission Against Discrimination (MCAD) Commissioner has publically stated that the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that new fathers would be entitled to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees).
This all unfolded in a strange manner, to say the very least. There has been no formal written announcement. The MCAD online regs have not been changed to include fathers. The underlying statute still refers only to “female employees”, and makes no mention of fathers. There has been no formal press release or request for comment or feedback from the Massachusetts business community. Legislation by adminstrative fiat.
Apparently, the MCAD Commissioner announced this at a speaking event at a law firm in Boston in early June. His comments were confirmed in a follow-up interview by Massachusetts Lawyers Weekly, which quotes the Commissioner as follows:
I’m not going to tell you how we are going to come out on every case, because it depends on the facts and circumstances presented,” he said. “But what we are saying is that if a man now walks in and makes a complaint, we are going to take that complaint and investigate it – which, yes, is something that wouldn’t have happened in the past.
This is all a bit weird, but then again, this is Massachusetts. Maybe now that California has followed Massachusetts’ precedent and made same sex marriage legal (judicial fiat, in both states), Massachusetts regulators felt they needed to do this to keep one step ahead.
Will there be a court challenge to this new policy? You can bet your life on it. Massachusetts employment lawyers are already jockeying to be the lucky lawyer to bring that case.
Yesterday’s decision in Quanta Computer, Inc. v. LG Electronics, Inc. is linked below (via scribd.com, which I am becoming quite enamored of as a place in the “cloud” to hold and link to documents or embed them in a web site or blog).
This is a very technical case, and probably is of little interest to non-patent/licensing-professionals. The holding is as follows:
The authorized sale of an article that substantially emboides a patent exhausts the patent holder’s rights and prevetns the patent holder from invoking patent law to control postsale use of the article.
Layman’s translation: once you license a patent to someone, your rights in the patented product or method are “exhausted.” You are not entitled to demand a patent royalty from subsequent purchasers “downstream” from your customer. This is analogous to the “first sale” doctrine in copyright law.
In both cases (patent and copyright) the exception is that you are able to restrict downstream uses by contract with your purchaser or licensee. However, negotiating contract rights that limit downstream use of a patented product or method is much more difficult than relying upon the operation of law; hence, the issue presented in this case.
The Supreme Court held that its ruling applied to “method patents” as well as utility patents. And, the exhaustion doctrine extends to include the sale of products that that do not fully practice the invention when the products include essential features of the patent and the “reasonable and intended use” of the product is to practice to patent.
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