November 2008

The (very) Confusing State of the Law of Evidence in Massachusetts

“Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted.
Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982)”

“The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence.
Massachusetts Guide to Evidence, Section 1.1  (Supreme Judicial Court, November 2008)”

History does not repeat itself, but it does rhyme
Mark Twain

On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.”  The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public.… Read the full article

How to Attract Patent Litigation

by Lee Gesmer on November 27, 2008

If you’re a federal district court, that is.

The answer? You need something not every federal district has. The Eastern and Southern Districts of Texas have them. The Northern District of California has them. The Districts of Pennsylvania (Western), Georgia (Northern) and Illinois (Northern) have them. In fact, so many U.S. District Courts have them that its getting difficult to keep up. Like so many things in life, at first its an advantage to have them, and eventually it becomes necessity.

And now the U.S. District Court for the District of Massachusetts has them.

What are they? Local procedural rules that apply only to patent cases. Local patent rules recognize that patent cases present legal, technical and discovery issues that call for specialized handling. In most jurisdictions these rules require early claim identification and invalidity defenses, attempt to schedule early claim construction (by the Court or by stipulation of the parties) and generally attempt to speed up the patent litigation process.… Read the full article

The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do. For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail. Additional posts discussing various aspects of Rambus are here, here, here and here. The D.C. Circuit decision that is the subject of the appeal is here.

Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is a ubiquitous and important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit and a misreading of Supreme Court precedent. The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act.… Read the full article

Humans Love Music

by Lee Gesmer on November 21, 2008

Ian Rogers delivered the keynote speech at the GRAMMY Northwest Music Tech Summit in early November.

As you spend the next two days discussing the future of the music business, I’d like to challenge you to consider a different perspective, IMHO the only perspectives that matter, that of the artist and the fan. I see news about the health of the music industry as defined by the stock price of WMG or quarterly earnings of UMG, Sony, and EMI every day. What I don’t see, apart from a few articles on Radiohead and Nine Inch Nails, is an update on how the world is changing from the artist point of view. But I tell you, when I talk to managers and artists they feel it, they feel an ability to take their careers into their own hands, to redefine what success means for them, and that is the emergence of the new music business.

Read the full article