The format will be as follows.Today we’ll have posts from Crane, Manne, Weiser, and Wright on aspects of Innovation for the 21st Century which focus on competition policy.Tomorrow, Professors Frischmann, Kieff, and Crouch will focus on the intellectual property related proposals.Professor Carrier will have the opportunity to respond to the posts Tuesday evening or Wednesday.And of course, we hope that both participants and our normal group of high quality commentators will find some time to mix it up in the comments.The participants have been given broad leeway to discuss general themes in Carrier’s work or hone in on specific policy proposals.
With the formalities out of the way, you can expect the first of Monday’s posts to start in the early morning and then we’ll add throughout the day with posts from Crane, Manne, and Wright.
Keep in mind that it wasn’t too long ago that the question “whether law profs could blog” without sacrificing all academic credibility and being pelted with rotten eggs by their more conservative colleagues was up in the air.
The issue here, presented in the context of a motion to dismiss, is whether adoption of a trademark as a search engine keyword constitutes a “use” under the Lanham Act. The Lanham Act requires “use in commerce” as a condition of infringement, and as Judge Gertner points out, various courts have taken different positions on whether purchase of a trademarked keyword to trigger a sponsored link on a search engine is a “use” of the trademark. Judge Gertner surveyed the field and noted that most of the courts that have considered this issue have found that utilizing a trademark in this manner does constitute “use” under the Act, and she sided with what she considers to be the majority view (the significant exception being the Second Circuit’s decision in 1-800 Contacts v. WhenU).
If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier.
And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:
The Electronic Privacy Information Center (“EPIC”) doesn’t think so, at least when it comes to Google’s so-called “Cloud Computing Services” (e.g., gmail, picassa, google calender). Here is a link to the complaint (pdf) EPIC has filed with the Federal Trade Commission. Quoting from the Complaint:
Google routinely represents to consumers that documents stored on Google servers are secure. For example, the homepage for Google Docs states “Files are stored securely online” (emphasis in the original) and the accompanying video provides further assurances of the security of the Google Cloud Computing Service. . . .
Google encourages users to “add personal information to their documents and spreadsheets,” and represents to consumers that “this information is safely stored on Google’s secure servers.” Google states that “your data is private, unless you grant access to others and/or publish your information.” . . .
On March 7, 2009, Google disclosed user‐generated documents saved on its Google Docs Cloud Computing Service to users of the service who lacked permission to view the files (the “Google Docs Data Breach”). This is just one of many example of known flaws with Google’s Cloud Computing Services. . . .
Investigate Google, EPIC asked the FTC, and stop Google from misrepresenting the effectiveness of its security practices in connection with cloud computing. Compel Google to enhance its security precautions, and stop Google from offering cloud computing until it does so. And, order Google to contribute $5 million to a public fund to research and enhance technology-related privacy.
The FTC’s response to this request (whether it pays lip service or really pressures Google to firm-up its security) will be an interesting and early indicator of the Obama-FTC’s views on Internet privacy. Stay tuned.
There are lies, damn lies and statistics. Mark Twain
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Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search).
Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size.
Here are a few statistics that jumped out at me, based on a quick review:
Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and the same number is pending.
Nation-wide, about 1,000 were antitrust suits and 9,000 are IP (3,000 patent, copyright, trademark each).
About 4400 civil cases went through trial nation-wide in 2008, median time through trial was about 32 months. In D. Mass. the numbers were 81 trials and 27 months.
Of the roughly 3,000 cases pending in D. Mass. only about 200, or a little over 6%, have been pending over 3 years.
In 2008, nation-wide, about 5,000 civil cases were completed through trial, and of that number about 60% were non-jury trials. In D. Mass the numbers were 126 civil trials, in roughly the same percentages. Of the 126 civil trials in D. Mass only 12 exceeded 10 days in length.
The longest civil trials in the nation were 39 days (non-jury trademark trial, D. N.J.) and airplane PI (jury trial, also D. N.J.).
2% of cases pending in 2008 reached trial. However, around 5% of personal injury and employment cases reached trial. Most other categories were well under 2%.
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