by Lee Gesmer | Aug 29, 2012 | Copyright
Not surprisingly, Massachusetts District Court Judge Rya Zobel has allowed the $675,000 statutory damages award against Joel Tenenbaum to stand in full. The background of this case is well known to many people, but the nutshell version is as follows.
Joel Tenenbaum was sued by Sony in 2007. Sony alleged copyright infringement with respect to Tenenbaum’s download of 30 digital music files. Harvard Professor Charles Nesson undertook the pro bono defense of Tenenbaum, and the case went to a jury trial, at which the jury awarded $675,000, 15% of the potential statutory maximum. The trial judge, Nancy Gertner (now retired from the bench), reduced this award to $67,500, concluding that it was excessive under the constitutional standard for evaluating punitive damages. The First Circuit reinstated the verdict, and remanded the case to the district court, with instructions to consider the verdict under the principles of common law remittitur before considering a constitutional challenge. Tenenbaum appealed this decision to the Supreme Court, which declined review. On remand the case was assigned to Judge Zobel, who issued her decision on August 23, 2012.
Judge Zobel found that the evidence supported the jury verdict, and therefore declined Tenenbaum’s request that she remit the verdict. Judge Zobel’s decision summarizes the somewhat damning evidence against Tenenbaum, including his disregard of multiple warnings, and that he may have lied during the legal proceedings. Apparently, Tenenbaum blamed the downloads on a foster child living in his family’s home, his sisters, a family house guest, and burglars, before finally admitting responsibility at trial. (Downloading burglars?)
Judge Zobel also rejected Tenenbaum’s challenge to the verdict on grounds of constitutional due process, using the standard set forth in St. Louis, I.M. & S. Ry. Co. v. Williams, as had been suggested by the First Circuit. Under this standard, as described by Judge Zobel –
a statutory damages award comports with due process as long as it “cannot be said to be so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.” The constitutionality of the award must be assessed “with due regard for the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to” law.
Judge Zobel held that the jury’s statutory damages verdict was “neither ‘wholly disproportioned to the offense’ nor ‘obviously unreasonable.’ It does not offend due process.”
Where will this case go from here? Most likely Tenenbaum will re-appeal to the First Circuit, seeking review of Judge Zobel’s due process ruling. From there, it’s on to a second try with the Supreme Court.
Sony v. Tenenbaum (D. Mass. August 23, 2012)
by Lee Gesmer | Aug 15, 2012 | Courts
If I could take only one legal blog with me to a desert island, it would be SCOTUSBlog. (OK, don’t make fun of me).
Seriously, this blog — devoted entirely to the Supreme Court of the United States (“SCOTUS”) — is a fantastic legal resource. Everything of interest relating to cases before the Supreme Court is collected here: cert. petitions, briefs, decisions and commentary. There’s a lot going on at the Supreme Court, and this blog collects and organizes all of it. It has become an indispensable resource for court-followers. In fact, as Mr. Goldstein notes, people within the Supreme Court (presumably law clerks) access the site hundreds of times a day.
The morning the Supreme Court released its decision on the Affordable Care Act this site was the go-to resource for people all over the world. It even got the ruling right the first time.
Here’s a link to a GoverningWorks interview with Tom Goldstein (video and text but, irritatingly, in five parts, with more to come), founder of SCOTUSBlog, discussing why the blog was created, how it has evolved, the challenges it presents for Mr. Goldstein’s law firm, and more. Interesting reading on the evolution of a blog that has become indispensable.
by Lee Gesmer | Aug 8, 2012 | Trials
Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation.
Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court). Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential. “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself.
Lawyers work hard to make sure they follow the dictates of a PO. Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential. Can we agree to redesignate them? You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.”
Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential? If you won’t, I’ll file a motion . . ..”). And so on.
However, when the case gets to trial all bets are off. Judges are loath to clear the courtroom every time confidential documents or topics are discussed. They don’t want to give their clerks and the clerks office the responsibility of maintaining documents in secret, especially when the presumption is that courthouse filings are public. And, in the eyes of many judges claims of confidentiality are often greatly overblown. So, depending on the judge, the documents the parties try to keep from each other leading up to trial become exhibits at trial, where anyone can look at them.
Usually, no one is interested, but in Apple v. Samsung, in trial in federal court in California, many people are interested. A telling example of how this can play out is Apple Exhibit 44, a 2010, 131 page translation of a Samsung document titled, “Relative Evaluation Report on S1, iPhone.” Although Samsung followed protocol and stamped each page of this document “Highly Confidential – Attorneys’ Eyes Only” during pretrial discovery, that protection proved good only until trial, at which point the judge refused to keep the document a secret, and it was made available to the world without restriction. It was promptly picked up by the press, and from there replicated all over the internet. A copy is embedded below.
The Report consists of dozens of side-by-side comparisons of the interface of the Samsung Galaxy S and the iPhone, and the Samsung phone rarely comes out on top. The judge’s decision to make this a public document seems right-on. The document may be embarrassing to Samsung, but it’s not clear why it qualifies as “attorney’s eyes only,” or even “confidential.” However, it shows just how closely Samsung examined the iPhone and sought to imitate its superior interface, which plays poorly for Samsung in the eyes of the press (i.e, the jury of the fourth estate). Of course, whether the courtroom jury will see it that way remains to be seen.
44 iPhone GalaxyS1 Review
by Lee Gesmer | Aug 7, 2012 | Copyright
Copyright cases involving translations of ancient religious texts are rare, but in its August 2, 2012, 75 page opinion in Society of the Holy Transfiguration Monestary v. Archbishop Gregory of Denver, the First Circuit addresses many issues of modern copyright law in a case involving just that. The issues the First Circuit discusses include the transfer of copyright ownership by operation of law, the consequences of publication without copyright notice prior to March 1, 1989, the requirement of originality in derivative works, substantial similarity analysis (along with its many sub-doctrines), the requirement that the accused infringed have engaged in “volitional conduct,” the DMCA and fair use.
While not making new law in any of these areas, this case is a good round up of copyright law in the First Circuit.
by Lee Gesmer | Aug 3, 2012 | CFAA
Yet another federal appeals court has attempted to parse the Computer Fraud and Abuse Act’s (“CFAA”) ambiguous statutory language. The issue, on which the federal courts cannot agree, is whether an employee who has authorized access to a computer, but uses that access for an illegal purpose — typically to take confidential information in anticipation of resigning to start a competing company or join one — violates the CFAA.
The controversy is focused on the words “without authorization” and “exceeds authorized access” in the law:
[Whoever] knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value … shall be punished. 18 U.S.C. § 1030(a)(4).
Late last year, in a widely noted decision, the 9th Circuit adopted the “narrow” view of the CFAA, holding the law does not extend to an employee who has authorized access but uses that access to make unauthorized use. U.S. v. Nosal (en banc).
In late July the Fourth Circuit issued a decision in WEC Carolina Energy Solutions v. Miller, agreeing with Nosal and holding that conduct by an employee that violates the employer’s “use policy” (typically contained in an employee manual, handbook or “computer use policy”) does not give rise to a violation of the CFAA. As Fourth Circuit stated, “we reject an interpretation of the CFAA that imposes liability on employees who violate a use policy, choosing instead to limit such liability to individuals who access computers without authorization or who obtain or alter information beyond the bounds of their authorized access.”
Under the Fourth Circuit’s interpretation of the statute, (1) without authorization refers to a situation where someone is not authorized to access a computer and accesses it, and (2) exceeds authorized access applies when someone has “approval to access a computer, but uses his access to obtain or alter information that falls outside the bounds of his approved access.”
Under the “broad” view of the CFAA, which has been rejected by the Ninth and Fourth Circuits, employees who have authorized access to a computer, but who exceed the scope of that access, are subject to liability under the statute. The First Circuit, where I practice, has adopted this view of the law. EF Cultural Travel v. Explorica (2001).
There is now a clear circuit conflict over the interpretation of this law. The Ninth and Fourth Circuits read it narrowly, and several other circuits (including the First), apply it broadly. Often, a circuit split over the meaning of a federal statute provides a basis for the Supreme Court to grant review and break the tie. The betting is that this will occur here.
Why does any of this matter? Because in a civil case it enables a plaintiff to get a case that typically rests on state claims, such as conversion, misappropriation of trade secrets or breach of fiduciary duty, into federal court, a venue often preferred by plaintiffs.
Update: The government will not appeal the 9th Circuit decision in the Nosal case. Link to Motion for Issuance of Mandate here.
