• Massachusetts district court judge O’Toole denied a motion to dismiss copyright claims based in part on foreign publication, where plaintiff asserts that the foreign conduct stems from a domestic infringement (the “predicate act doctrine“). Palmer/Kane LLC v. Houghton Mifflin Harcourt Publishing LLC
  • D.C. Circuit opinion in Verizon v. Federal Communications Commission, holding that the FCC doesn’t have the authority to impose net neutrality laws on companies
  • An interesting article in PetaPixel, discussing Getty Images and Agence France Presse’s motion to set aside a $1.2 million verdict obtained by Haitian photographer Daniel Morel for copyright infringement of Morel’s images of the aftermath of Haiti’s 2010 earthquake
  • Dow Jones has filed a “hot news” lawsuit against Ransquawk. Techdirt has the cease and desist letter and complaint here
  • The House Committee on the Judiciary continues its hearings on possible  copyright reform, based on technological developments. The focus this week was on the “making available” right.  
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“ In actual life, every great enterprise begins with and takes its first step forward in faith. ” — August Wilhelm von Schlegel


Now that Christmas is over its time to start thinking about 2014, and that means New Year’s resolutions. 

The guest post below was written by my partner Jonathan Draluck and published last month on Gesmer Updegrove LLP’s BostInno channel. Jonathan didn’t write this with New Year’s resolutions in mind, but it struck me as inspirational as we approach 2014. Maybe your New Year’s resolution will be, as he writes below, to conquer your personal fears and —  “take the leap.” 

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School is nice.  Sometimes necessary. But no education beats the school of hard knocks.  All the theory and fancy degrees in the world won’t get you anywhere unless you are willing to take what you have learned and add some elbow grease.… Read the full article

Viacom Has Chutzpah (or Perhaps Bad Judgment) to Suggest That Second Circuit Reassign Its Case Against Youtube In Event of a Remand

“The thing to fear is not the law, but the judge.” – Russian Proverb 


Viacom has filed its opening brief in its second appeal in Viacom v. Youtube. This long-running copyright case is establishing important precedents in the interpretation of the  Digital Millennium Copyright Act (DMCA).*

 *See this link for my most recent post on this long-runing case.

In its current appeal Viacom argues that the trial court judge erred in granting Youtube summary judgment following remand from the Second Circuit’s 2012 decision in this case.

The appeal raises many difficult and important issues in applying the DMCA, and it remains to be seen whether the Second Circuit will add clarity or confusion to this complex law. However, one element of Viacom’s argument jumps out instantly. Viacom’s brief includes a section titled “This Court Should Exercise Its Discretion To Remand The Case To A Different District Court Judge.” The text of the argument in support of this request, in its entirety,  is as follows:

Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge “to preserve the appearance of justice.” E.g., United States v.

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Whitey Bulger and Gorky Park

by Lee Gesmer on June 14, 2013

“The FBI is an unindicted coconspirator in the massive racketeering case against Whitey.” – Kevin Cullen, Boston Globe, June 14, 2013


I wonder if Martin Cruz Smith had Bulger in mind when he wrote this in 1981:

The FBI doesn’t conduct investigations, they pay informers. … Their informers are mental cases and hit men. Where the bureau touches the real world, suddenly you get all these freaks who know how to kill people with piano wire. Say a freak gets caught … he tells the bureau what it wants to hear and makes up what he doesn’t know. See, that’s the basic difference. A cop goes out on the street and digs up information for himself. He’s willing to get dirty because his ambition in life is to be a detective. But a bureau agent is really a lawyer or an accountant; he wants to work in an office and dress nice, maybe go into politics.

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