September 2013

What legal standard should the courts use to penalize a copyright owner for sending a copyright takedown notice that results in the takedown of a copy protected by fair use? This issue has come up infrequently since the Digital Millennium Copyright Act (DMCA) was enacted in 1998, and never in the First Circuit, but now it is pending in two cases before different federal district court judges in Boston, one of which has reached a conclusion early in the case.

The Issue

Copyright owners complain that they are disadvantaged by the DMCA, which requires them to target  copyright-protected works that are posted repeatedly on sites such as Youtube. While takedowns impose a cost burden on sites like Youtube, that host a large volume of user generated content, the cost to the copyright owners is probably much greater. After all, the owners need to repeatedly locate the works and send notices. As I commented in a 2010 post, this Sisyphean task has proven to be an endless game of whack-a-mole for copyright owners, one that Congress could not have anticipated when it enacted the DMCA in the 1998 pre-filing sharing/pre-Youtube era.… Read the full article

Massachusetts Tech Tax Repealed

by Lee Gesmer on September 30, 2013

Gesmer Updegrove Client Advisory – Massachusetts Tech Tax Repealed.  Click here to download a pdf from

 … Read the full article

In Corporate Technologies v. Harnett, decided by the First Circuit on August 23, 2013, the court upheld the Massachusetts U.S. District Court’s enforcement of a 12-month employee non-solicitation clause. The court rejected Harnett’s (the former employee) argument that he did not solicit Corporate Technologies’ customers, particularly given evidence that the new employer sent a “blast email” to a group that included many of Corporate Technologies’ customers.

The opinion contains an extensive discussion of the “metaphysical” distinction between “soliciting” and “merely accepting” business, an issue I discussed in another post this summer (Nudge, Nudge, Wink, Wink – Are You “Soliciting” in Violation of an Employee Non-Solicitation Agreement?).

The First Circuit rejected a “bright-line” rule in determining who made initial contact in a non-solicitation case (the former employee or a customer), stating that –

we believe that the better view holds that the identity of the party making initial contact is just one factor among many that the trial court should consider in drawing the line between solicitation and acceptance in a given case.

Read the full article

Embedded below is an article I wrote for Massachusetts Lawyer’s Weekly that was published in the paper’s September 9, 2013 issue.  A link to the article on MLW’s website is here (subscription required).  A link to the original article in an easier to read format is here.… Read the full article