June 2013

Joel Tenenbaum Has Reached the End of the Line (Probably)

The recording industry’s case against Joel Tenenbaum for downloading 30 copyrighted songs has almost certainly come to an end with yesterday’s decision upholding the jury’s copyright infringement verdict of $675,000, or $22,500 per song.

This case—one of only two out of tens of thousands filed against downloaders to actually go to trial (the others settled or were dismissed on various technicalities)—has been through a trial, two appeals to the First Circuit and one appeal to the Supreme Court. However, it seems almost certain that the case has reached the end of the line; all that’s left to Tenenbaum is an appeal to the Supreme Court, which has already declined an appeal from him once before.

In retrospect, this case should never have taken this path. Tenenbaum could have settled for a few thousand dollars at the outset, but he chose (along with Harvard Law professor Charles Nesson, who reportedly represented him at no charge), to pursue the case on principle.… Read the full article

If you want to bring an antitrust suit based on an illegal agreement among competitors (say, a boycott), you face a possible Catch-22: you can’t get the evidence you need to prove an illegal agreement until you file the suit (and conduct discovery), but you can’t file an antitrust suit unless you are able to provide sufficient evidence of the agreement in your complaint.

This is the problem the plaintiff faced in Evergreen Partnering Group v. Forrest, decided by the First Circuit on June 19th. Evergreen alleged that the defendants (a small group of companies that controlled the disposable plastics industry) refused in concert to deal with it—in other words, they boycotted Evergreen.

Massachusetts federal district court judge Richard Stearns dismissed the case on the complaint, holding that Evergreen had failed to plead a viable claim of conspiracy to boycott. In other words, the complaint didn’t contain enough “facts” to establish, directly or through inference, that the defendants had entered into an agreement to boycott.… Read the full article

Aereo, Antenna Farms and Copyright Law: Creative Destruction Comes to Broadcast TV (Part 4)

“Streaming copyrighted works without permission would drastically change the industry, to plaintiffs’ detriment. . . . The strength of [broadcasters’] negotiating platform and business model would decline. The quantity and quality of efforts put into creating television programming, retransmission and advertising revenues, distribution models and schedules — all would be adversely affected. These harms would extend to other copyright holders of television programming. Continued live retransmissions of copyrighted television programming over the Internet without consent would thus threaten to destabilize the entire industry.”  – Second Circuit in  WPIX, Inc. v. ivi, Inc. (2012)


This is the last in this four-part series of posts. Click here to access Part 3.

Did the Second Circuit make a mistake in Cablevision and compound it by its decision in Aereo? What are the potential business, legal and legislative strategies available to the broadcast companies as Aereo continues its 22 city rollout? These are the questions I’ll discuss in this last of a four post series on the Aereo case.… Read the full article

My late May post on Rent-A-PC, Inc. v. Robert March, et al.  discussed a Massachusetts federal district court case in which Judge O’Toole refused to issue a preliminary injunction enforcing noncompete provisions against two former employees of Rent-A-PC because their job responsibilities had substantially changed since their non-compete agreements had been signed.

In a decision issued by a Massachusetts Superior Court Judge in May, the court refused to issue a preliminary injunction on the same grounds. In Intepros v. Athy one defendant, Paul Athy, had advanced from branch manager to regional vice president. Relying on the hoary case of F.A. Bartlett Tree Expert Co. v. Barrington (1968), as well as several more recent cases, the court held that this change in job title responsibilities, as well as changes in pay, constituted a material change rendering the noncompete agreement void and unenforceable.

A second defendant, Anne Marie Canty, had been hired and fired twice, and had signed a noncompete agreement on the first two hires.… Read the full article