by Lee Gesmer | Sep 27, 2006 | Miscellaneous
This interview, which can be accessed here, provides some fascinating observations on emerging markets and their impact on the world economy. Ms. Woodall notes that emerging markets now represent one-half of world output and world energy consumption. She states:
The integration of China, India and other emerging economies are providing the biggest economic boost in world history, bigger than the industrial revolution. The first decade of 21st century will see the fastest growth ever in average world income.
An extensive series of articles from the September 16, 2006 issue of The Economist, titled A Survey of the World Economy and focusing on emerging markets, can be accessed from this page (lengthy PDF file).
by Lee Gesmer | Sep 19, 2006 | Miscellaneous
Low Brow Lawyer Gossip!
Yes, it astounds me that there can even be such a thing. When I graduated from law school all those many years ago, if you had been able to explain to me what the Internet would be, and what a blog would be, and told me that someday there would be a blog devoted solely to lawyer gossip (things like what law students have been selected as Supreme Court clerks, lawyer weddings, lawyer sex, lawyers coming out of the closet, summer associate faux pas, interview faux pas, judges’ vacation haunts, rich lawyers, ugly lawyers, obnoxious lawyers, and more, seemingly ad infinitum … ), I would have thought you were barking, drooling mad.
Sadly, I would have been wrong. There is such a thing, at a blog called Above The Law, A Legal Tabloid. Jump at your own risk.
by Lee Gesmer | Sep 6, 2006 | Miscellaneous
Ok, my family is a little geeky, I admit it. We watch documentaries together more than we watch family friendly movies. What do I discuss with my beautiful wife and exceptional 12 year old daughter as we walk along the beaches of Cape Cod? They both love astronomy, and every year I remind my lovely daughter that there are more stars in the Universe than grains of sand on all the beaches of Earth. However, I’ve always had a nagging doubt about this – is it true? It seems just, well, inconceivable.
This year, upon returning to civilization (and a computer) I googled “are there more stars in the Universe than grains of sand on all the beaches of earth?” It turns out that scientists think about this stuff too. The first hit is an authoritative appearing article from North American Skies which reads –
In my astronomy classes I have often used the claim that there are “more stars in the heavens than all the grains of sand on all the beaches on Earth.” The claim is certainly not original with me, but I had always accepted it without question. Then one day began to wonder if it is really true. After all, there must be a really big number of sand grains on all the planet’s beaches!
The discussion concludes, after much mathematical calculation and many “to the nth powers,” that there are 200 billion billion more stars than grains of sand(!) Note that there are an estimated 50 billion galaxies with an estimated 100 billion stars per galaxy. Do the multiplication, and this adds up. Our neighbor, the Andromeda Galaxy, has an estimated trillion stars.
Read the full article comparing numbers of stars and grains here.
Now where’s that lost shaker of salt?
by Lee Gesmer | Aug 14, 2006 | Miscellaneous
University of California joins in.
The University of California is joining Google’s book-scanning project, throwing the weight of another 100 academic libraries behind an ambitious venture that’s under legal attack for alleged copyright infringement.
Link here for full story. For an earlier and in depth discussion of this issue click here.
by Lee Gesmer | Aug 10, 2006 | Copyright, Miscellaneous
[Update:] Matt Mattari sent me a link to his article on this topic, which was published in the Harvard Journal of Law & Technology before the publication of the decision. Click here to read the article (pdf file).
Here is a link (pdf file) to the federal district court decision in the C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media and Major League Baseball Players’ Association case, issued on August 8, 2006.
Quoting from the decision:
The court finds that the undisputed facts establish that the players do not have a right of publicity in their names and playing records as used in CBC’s fantasy games and that CBC has not violated the players’ claimed right of publicity. The court further finds, alternatively, that even if the players have a claimed right of publicity, the First Amendment takes precedence over such a right. The court further finds that the undisputed facts establish that the names and playing records of Major League baseball players as used in CBC’s fantasy games are not copyrightable and, therefore, federal copyright law does not preempt the players’ claimed right of publicity. Additionally, the court finds that the no-challenge provision of the 2002 Agreement between CBC and the Players’ Association and the provision of this Agreement which prohibits CBC from using players’ names and playing records after the expiration of the Agreement are unenforceable based on public policy considerations. The court finds, therefore, that declaratory judgment should issue in CBC’s favor. As such, the court will order the Players’ Association and Advanced Media to refrain from interfering with CBC’s fantasy games in the manner proscribed by this court’s decision.
The case contains a very extensive and thoughtful analysis of the issues, particularly the right of publicity and copyright issues. An appeal appears likely.
by Lee Gesmer | Aug 2, 2006 | Miscellaneous
Here is a link to the FTC decision, which is adverse to Rambus. More to come ….
[Link]
Update: Andy Updegrove discusses the background of this case and the implications of the decision on Consortiuminfo.com:
In what can only be called a stunning development in a high profile standards case, the U.S. Federal Trade Commission (FTC) unanimously reversed the earlier decision of one of its own Administrative Law Judges and ruled that semiconductor technology company Rambus, Inc. had “unlawfully monopolized the markets for four computer memory technologies that have been incorporated into industry standards for dynamic random access memory,” or DRAM. The FTC will deliberate further before announcing the penalties to be levied against Rambus.
continue . . .
by Lee Gesmer | Jul 21, 2006 | Miscellaneous, Readings and Novelties
I usually find the Knowledge@Wharton reports and articles interesting. Here is a series of articles summarizing some of the topics discussed at their annual Supernova Conference, which was held in San Francisco in late June.
The topics include:
What’s the Future of Desktop Software — and How Will It Affect Your Privacy?
Kevin Lynch on Adobe‘s Plans for a New Generation of Software
The Rise of the ‘Videonet’
Tantek
by Lee Gesmer | Jul 21, 2006 | Miscellaneous
First the blog, then the web site, and finally the book. Jeremy Blachman has quite an operation!
Law firms, and especially large law firms, are very strange places. Combine driven, intelligent (mostly), eccentric people, big egos, big money, competition for partnership among associates and for share of income among partners, clients pressures, competition between firms, greed, …. I could go on. Having worked at three of these institutions (the-firm-formally-known-as Hale and Dorr, the-firm-formally-known-as-Howrey & Simon,and the firm still known as Choate, Hall & Stewart), I am not totally unfamiliar with them. Now, Jeremy Blachman, long-time author of the Anonymous Lawyer blog (which is very mordant and a bit humorous if taken in small bites), has written a soon-to-be released book, The Anonymous Lawyer.
In the manner of these things, the book is being promoted at an elaborate (and I do mean elaborate) web site which you can view by clicking here. In fact, I hope half as much work went into the book as went into the web site.
This is very funny stuff (the web site; I can’t comment on the book). Sadly, the picture it paints is one that many practitioners will find strikes uncomfortably close to home.
by Lee Gesmer | Jul 20, 2006 | Miscellaneous
When a popular blogger/law firm associate gets fired by her firm, in this case mega-firm Reed Smith, she doesn’t just go gentle into that good night, as so many thousands of associates have done before her. Or silently, for that matter. Denise Howell, author of the popular Bag and Baggage blog (and coiner of the term “blawg”), discusses her experiences, motherhood, and her opportunities here.
by Lee Gesmer | Nov 4, 2005 | Miscellaneous
Denise Howell at Bag and Baggage complimented my firm’s various blogs (1, 2 and 3) and I have to return the compliment. When I sat down with our web/blog master Nathan Burke to show him what I considered the best legal blogs, we basically started and stopped with Bag and Baggage. If I could bring only one blog to a desert island ….
by Lee Gesmer | Sep 14, 2005 | Miscellaneous
“The thing to fear is not the law, but the judge”
Russian Proverb
Non Compete Agreements. The need to “spin” a litigation outcome to try to persuade the public that you won appears irresistible to large corporations. However, it’s hard to keep a straight face reading Microsoft’s pronouncements about the Seattle state court’s September 13th decision in Microsoft’s suit against Google and Dr. Kai-Fu Lee, until recently “the face of Microsoft in China.” Believe me, when your former employee is able to show up to work for your competitor the day after the decision on your preliminary injunction motion to enforce a non compete agreement, you have not won.
The fact is, a preliminary injunction seeking to enforce a non compete agreement is always highly uncertain. Some judges view non compete agreements as just another contract, to be enforced as written. Other judges have an almost philosophical antipathy to non competes, and will bend over backwards to find any reason not to enforce them. They believe that people should be free to work wherever they wish, and they rule accordingly.
The Seattle judge appears to fall into the second camp. Microsoft learned this when it tried to enjoin Dr. Lee, now the President of “Google China,” from establishing and staffing a Google development facility in China.
Although the Washington State judge initially entered a temporary restraining order against Google and Dr. Kai-Fu Lee in late August that prevented Dr. Lee from working for Google in any of the areas in which he had worked for Microsoft, on September 13, 2005, after a two day hearing, the judge entered a substantially narrower injunction that leaves Dr. Lee free to:
engage in recruiting activities relating to Google’s planned research and development facility in China . . . including establishing facilities, hiring engineers and administrative staff, interacting with public officials regarding the facilities and recruitment, meeting with university administrators and professors regarding recruitment, and offering general, non-technical advise to Google about doing business in China
What can’t he do? Recruit from Microsoft or use any confidential information from Microsoft.
How did the court reach this outcome given the fact that Dr. Lee’s one year non compete agreement with Microsoft prevents him from working in areas competitive with “products, services or projects” that he worked on at Microsoft, and his new job with Google puts him in a position where he runs an operation that is directly competitive with his former job at Microsoft? Because Dr. Lee’s work for Microsoft in China was primarily recruiting, his activities were not a “product” or “service.” Were they a “project”? One might think so, but the judge interpreted the word “project” to exclude recruiting efforts, freeing Dr. Lee to recruit for Google. A judge more inclined to enforce non compete agreements could easily have interpreted the non compete agreement against Google and Dr. Lee.
Although this case is scheduled to go to full trial early next year, we expect that it will settle quickly. As a practical matter the preliminary injunction is both the battle and the war in these kinds of cases.
A few other interesting observations about the case:
First, Dr. Lee’s lawyers were savvy enough to anticipate this suit and require Google to agree to pay Dr. Lee’s salary even if he was enjoined from working for Google for a year. We rarely see this, but Dr. Lee was well represented in this regard.
Second, Microsoft had Dr. Lee sign a boilerplate noncompete agreement when he began working for Microsoft in 1998, and then forgot all about the agreement until it came time to enforce it, at which time the agreement fell short. We’ve seen this time and time again. Where employees’ jobs change and success or failure can rest on a single word, it’s essential to revisit these agreements from time to time.
Third, it appears that before leaving Microsoft Dr. Lee may have begun advising Google and may have transferred confidential Microsoft documents to Google. This is the worst mistake an employee in this situation can make, and it’s often enough to tip a decision against the employee. Here, it wasn’t.
Fourth, according to the New York Times, immediately following the preliminary injunction decision Microsoft’s General Counsel announced to the press that it was prepared to settle this case on the terms of the preliminary injunction order entered that day. Google responded that this was the first it had heard of this. Why Microsoft would attempt to negotiate via the press in this manner is anybody’s guess, but it is highly unusual, and suggests that Microsoft considers this case a lost cause and wants to both save face and cut its losses as soon as possible.
by Lee Gesmer | Sep 12, 2005 | Antitrust, Miscellaneous
Antitrust. Here is a link to the Complaint in this long-anticipated lawsuit. A link to the DOJ’s press release, announcing the suit, is here.
In a nutshell, the suit alleges that the NAR has blocked competition by allowing real estate agents to withhold listings from brokers who utilize the Internet. The DOJ and the NAR have been attempting for months to negotiate a settlement to the issues raised by this suit, and apparently the NAR made a last gasp attempt last Thursday, when it announced a modified approach to its policy on Internet listings. However, the DOJ believed that the NAR had not gone far enough, precipitating this lawsuit.
I’ll discuss this suit in more detail in a later blog.
