Foundry Networks, Inc. has filed suit against Alcatel in federal court in Delaware. The claims are very similar to the claims in the Rambus litigations. A copy of the complaint is here (pdf file).
Andy Updegrove discusses this case and its similarities to Rambus in his “Son of Rambus” post, here.
One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it).
Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as YouTube.com, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting.
However, the owners of the World Cup broadcast rights must give notice after the fact under the strict procedures described in the DMCA (at least in the U.S., where Boing Boing is based). A preemptive, “before the fact” letter gives the copyright owner no greater rights than if it had not sent it at all. The owner of the Cup broadcast rights would still have to go through the “after the fact” notice and “take down” procedures mandated by the DMCA.
Back to my original point, when you send these demand letters (which by their nature often are extreme examples of “lawyer-speak”), you do risk public ridicule on the Web, and people will often try very hard to effect this. One of my all-time favorite examples of this is “The Rocket Formerly Known as Black,” which is quite funny, and seems to have taken on a life of its own.
An interesting article in Business Week on the copyright issues raised by YouTube’s tremendous success.
When YouTube Inc. was sued on July 14 for copyright infringement, the shock wasn’t that the video-sharing service was being yanked into court. Questions had been swirling for months about whether the upstart, which now dishes up 100 million daily videos, was crossing copyright boundaries by letting its members upload videos with little oversight. continue . .
YouTube has a strong answer to this complaint based on the Digital Millennium Copyright Act (pdf file), which allows publishers like YouTube to avoid copyright liability for infringements posted by third parties, so long as an infringement is taken down after notice to the publisher.
It’s a bad day when your client wants you to enforce a noncompete agreement against a $10/hour Russian immigrant with “a very limited command of English,” who sends most of her earnings back to her son and elderly parents in Russia, and who, after a year of at-will employment and with no further payment of consideration, was told that unless she signed the noncompete agreement she’d be fired the next day.
Nevertheless, that’s what the plaintiff’s lawyer faced in Zabota Community Center, Inc. v. Frolova.
Not surprisingly, Judge Allan van Gestel of the Suffolk County Business Litigation Session threw the book at the plaintiff in this case, denying the motion for every reason conceivable.
You can read the case here (pdf file).
Here is a link to the FTC decision, which is adverse to Rambus. More to come ….
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.
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