Mass Law Blog

If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier.

And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:

The Electronic Privacy Information Center (“EPIC”) doesn’t think so, at least when it comes to Google’s so-called “Cloud Computing Services” (e.g., gmail, picassa, google calender). Here is a link to the complaint EPIC has filed with the Federal Trade Commission. Quoting from the Complaint:

Google routinely represents to consumers that documents stored on Google servers are secure. For example, the homepage for Google Docs states “Files are stored securely online” (emphasis in the original) and the accompanying video provides further assurances of the security of the Google Cloud Computing Service. . . .

Google encourages users to “add personal information to their documents and spreadsheets,” and represents to consumers that “this information is safely stored on Google’s secure servers.” Google states that “your data is private, unless you grant access to others and/or publish your information.” . . .

On March 7, 2009, Google disclosed user‐generated documents saved on its Google Docs Cloud Computing Service to users of the service who lacked permission to view the files (the “Google Docs Data Breach”). This is just one of many example of known flaws with Google’s Cloud Computing Services. . . .

Investigate Google, EPIC asked the FTC, and stop Google from misrepresenting the effectiveness of its security practices in connection with cloud computing. Compel Google to enhance its security precautions, and stop Google from offering cloud computing until it does so. And, order Google to contribute $5 million to a public fund to research and enhance technology-related privacy.

The FTC’s response to this request (whether it pays lip service or really pressures Google to firm-up its security) will be an interesting and early indicator of the Obama-FTC’s views on Internet privacy. Stay tuned.

There are lies, damn lies and statistics. Mark Twain

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Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search).

Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size.

Here are a few statistics that jumped out at me, based on a quick review:

• Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and the same number is pending.

• Nation-wide, about 1,000 were antitrust suits and 9,000 are IP (3,000 patent, copyright, trademark each).
• About 4400 civil cases went through trial nation-wide in 2008, median time through trial was about 32 months. In D. Mass. the numbers were 81 trials and 27 months.
• Of the roughly 3,000 cases pending in D. Mass. only about 200, or a little over 6%, have been pending over 3 years.
• In 2008, nation-wide, about 5,000 civil cases were completed through trial, and of that number about 60% were non-jury trials. In D. Mass the numbers were 126 civil trials, in roughly the same percentages. Of the 126 civil trials in D. Mass only 12 exceeded 10 days in length.
• The longest civil trials in the nation were 39 days (non-jury trademark trial, D. N.J.) and airplane PI (jury trial, also D. N.J.).
• 2% of cases pending in 2008 reached trial. However, around 5% of personal injury and employment cases reached trial. Most other categories were well under 2%.

Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decision was issued – click here for earlier post).

Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”

The First Circuit disagreed and reversed. The heart of the decision is captured in the following quotation:

. . . the district court improperly denied copyright protection to large portions of SMS’s works because it, in an error of law, found “they focus on concepts and teach a noncopyrightable process.” . . . The fact that SMS’s works describe processes or systems does not make their expression noncopyrightable. SMS’screative choices in describingthose processes and systems, including the works’ overall arrangement and structure, are subject to copyright protection. . . . The district court’s analysis . . . lost sight of the expressiveness of the works as a whole by focusing too closely on their noncopyrightable elements.

Link to the First Circuit opinion here.

It would be an understatement to observe that Microsoft’s patent suit against Dutch GPS vendor company TomTom has been closely watched. Why? Because Microsoft alleges that several of the patents at issue are infringed by TomTom’s implementation of the Linux kernel. In this first month of the dispute, the most urgent question has been this: will TomTom fight or fold? Now we have the answer: TomTom has decided to fight – and perhaps fight hard. Yesterday, it brought its own suit against Microsoft in a Virginia court, alleging that Microsoft is guilty of infringing several of TomTom’s own patents.

The question that many Linux supporters are now asking is this: is this good news for Linux, or bad? Here are my thoughts on that important question.

Continue reading ….

The First Circuit has denied Staples’ request that it hear the Noonan v. Staples case en banc, or that it ask the SJC to advise it on how to apply the 100 year old Massachusetts statute which provides that “actual malice” may create an exception to the principle that defamation must be false to be actionable.

I posted on this case a few weeks ago (link here), and commented on the agita it had created in the First Amendment milieu. In fact, a vast number of publishers and First Amendment advocates filed an amicusen banc. brief urging the First Circuit to reconsider this decision

Today, the Court denied this request and let its February 13, 2009 decision stand. In an order several pages long, the Court found that Staples had waived any First Amendment challenge to the state law by failing to raise it earlier, and that Staples could not, moreover, cite a case supporting the proposition that the law was unconstitutional. Here are some selective quotes from the Order:

Since its initial brief, Staples has argued under the premise that the term “actual malice” in § 92 means “malevolent intent.” Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the . . . opinion found that it need not consider the issue. . . .

The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. . . .

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification.

Staples’ petition for rehearing is here.

It is worth pointing out, as a complement to the Staples case, a recent decision by Massachusetts Superior Court Justice James Lemire, issued on January 14, 2009 in Oropallo v. Brenner. The issue in that case was not defamation, but rather the right to privacy under Massachusetts law.  Without going into the facts of the case (which are confidential in nature), the court acknowledged an employee’s “expectation that [certain] details [of her life would] be kept private.”  The court stated that there “exists a genuine issue of material fact as to whether [the Town] had a legitimate interest in publishing  [a document that disclosed this information] to Town employees and volunteers that outweighed [the employee's] interest in keeping aspects of her personal life from public view.”

Accordingly, the Court held, the case should proceed to trial.

In light of these two recent cases it probably goes with out saying, but of course I’ll say it anyways: employers should proceed with extreme caution with respect to statements they make about employees, lest they risk claims of defamation and/or invasion of privacy. Praemonitus, praemunitus.

Gary Reback, famed antitrust/IP lawyer and long-time thorn in the side of Microsoft, has written a book entitled “Free The Market!”.  The book will be released in mid-April and is available on preorder at Amazon now.

Based on a few excerpts on Reback’s web site it looks like this will be an anecdotal, “in-the-trenches” book (as opposed to theoretical/academic) that should be well worth reading for those interested in the antitrust/IP wars of the last two decades. Reback was truly in the center of most of the big cases during these years, and I hope his book captures the legal issues, strategies and behind-the-scenes events that he witnessed.

As I’ve said so many times in this blog, it’s not the law you need to fear, it’s the judge.

In CU Medical v. Alaris Medical System (a patent infringement case involving medical valves) the patent owner/plaintiff argued that the term “spike,” described in the patent as “a pointed instrument,” included non-pointed structures, such as a tube.The California U.S. District Court trial judge didn’t take kindly to this frivolous argument (in the eyes of the judge).  The judge also found that the plaintiff had made “multiple, repeated misrepresentations . . . to the Court,” another no-no.

The trial court imposed sanctions totalling $4.4 million under 35 U.S.C. Section 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”) as well as Rule 11 sanctions for good measure.

The CAFC affirmed. Here is a link to the case: CU Medical v. Alaris Medical System

Here’s a link to Connecticut Supreme Court Briefs Onlne, a Wordpress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available).

It would be great if every state did this, and if there were a centralized site that provided access to each state (StateCourtBriefsOnline.com?).

“Justice belongs to those who claim it, but let the claimant beware lest he create new injustice by his claim and thus set the bloody pendulum of revenge into its inexorable motion”

Frank Herbert

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For those who have access to the American Lawyer (and I realize that at $430/year that’s a tiny percentage of lawyers, and almost no non-lawyers), there’s a interesting article in the March 2009 issue on the impact the Roberts Court’s patent rulings in appeals from the CAFC (six cases, six reversals) has had on the CAFC. The article, titled “The Error of Their Ways,” shows the extent to which the USSC is pushing the CAFC in the direction of a more moderate (less permissive) application of patent law. According to this article, the Supreme Court has the CAFC questioning everything they have ever known about patent law. If this article is to be believed, the Supreme Court has effected a major retrenchment in U.S. patent law.

Oh well. Who said that the law was immune from creative destruction?

You may be able to find the American Lawyer in a library, but I doubt that many libraries would pay that subscription ….