July 2012

Copyright Infringement Trial? Fagettabout It!

by Lee Gesmer on July 29, 2012

Copyright Infringement Trial? Fagettabout It!

Not long ago the Computer Lawyer published an article that made the case on how rare copyright trials have become.  The article had an appendix listing cases that had been dismissed in favor of the defendant either on the pleadings or summary judgment. The bottom line was that judges are inclined to look at the works at issue in a copyright case early on, make a decision on similarity or dissimilarity, and end the case long before it has the chance to get to a jury.

Two cases decided by the Massachusetts federal district court thus far this year show that, for better or worse, this trend in alive and well in Massachusetts.  In McGee v. Andre Benjamin Massachusetts U.S. District Court Judge David Woodlock found that Cartoon Network’s Class of 3000 television series did not infringe an animated serial work titled The Music Factory of the 90’s.  The Music Factory had been pitched to The Cartoon Network in long-form outline describing the plot and style.  … Read the full article

Hair Color Formulas and Salon Client Contact Info Not a Trade Secret, Says Superior Court Judge

When I think of trade secret cases I tend to think of “high end” stuff: secret manufacturing processes, software algorithms, chemical or biological secrets, maybe even the formulas for Coca Cola or Kentucky Fried Chicken.  The truth, however, is more mundane, as shown by a case decided by Judge Nicholson in Barnstable County. In this case, which was dismissed in favor of the defendant hair stylist on summary judgment, the court held that a hair salon’s hair color formulas and customer contact information were not trade secrets.   This was an easy case, since the stylist knew many of her clients socially outside the salon and there was no employment or secrecy agreement other than an employee handbook, which is a weak basis on which to make a trade secret claim. After all, how many employees read handbooks? The judge also ruled that the hair color formulas belonged to the stylist who had developed them for the salon’s clients, not the salon, since there was no agreement to assign the formulas to the salon.  … Read the full article

Copyright and Innovation: Hanging on to the Past

by Lee Gesmer on July 20, 2012

Copyright and Innovation: Hanging on to the Past

“The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There’s also a negative side.”

Hunter S. Thompson


As the battle between online music companies and copyright owners has raged in the courts during the last decade many of us have wondered what was going on behind the scenes.  How did the record companies and publishers assess the threat of digital music to their industry?  Why did they react as they did? What effect did their decisions have on innovation and investment in online music companies?

Professor Michael Carrier, Professor of Law at Rutgers School of Law in Camden, has tried to answer some of these questions by conducting  interviews with a range of influential people in the music industry — people who witnessed these events and decisions as they unfolded.  He presents his results in a cutting edge law review article published on SSRN in early July: Copyright and Innovation: The Untold Story.  … Read the full article

Procedural Errors During Trial Cause Trade Dress Defendant to Forfeit Rights on Appeal

I’ve written before about waiver.  As I said back in July 2008, the “one thing that scares the bejesus out of trial lawyers is waiver.”  Waiver is a constant risk in litigation, but nowhere is it more of a risk than during trial.  Failure to object to improper jury instructions, or failure to follow the proper procedure required for judgment as a matter of law (“JMOL” in lawyer parlance) can constitute a forfeiture, and preclude the right to raise the omitted issue on appeal.

To make matters worse, these potential waivers come when the fog of war is at its worst: after days or weeks of sleep-deprived trial stress the lawyers have to file a written motion for JMOL just before the jury is handed the case. A lawyer may know that the failure to do this will forfeit the right to raise the missed issue on appeal, but at that point the lawyer is frantically preparing for closing argument and dealing with the countless issues that come up at the end of trial, and the motion may be forgotten or not thoroughly prepared.  … Read the full article