by Lee Gesmer | Mar 23, 2009 | Copyright
Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First 
and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post).
Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense 
communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”
The First Circuit disagreed and reversed. The heart of the decision is captured in the following quotation:
. . . the district court improperly denied copyright protection to large portions of SMS’s works because it, in an error of law, found “they focus on concepts and teach a noncopyrightable process.” . . . The fact that SMS’s works describe processes or systems does not make their expression noncopyrightable. SMS’s creative choices in describing those processes and systems, including the works’ overall arrangement and structure, are subject to copyright protection. . . . The district court’s analysis . . . lost sight of the expressiveness of the works as a whole by focusing too closely on their noncopyrightable elements.
Link to the First Circuit opinion here.
by Lee Gesmer | Mar 20, 2009 | Patents
It would be an understatement to observe that Microsoft’s patent suit against Dutch GPS vendor company TomTom has been closely watched. Why? Because Microsoft alleges that several of the patents at issue are infringed by TomTom’s implementation of the Linux kernel. In this first month of the dispute, the most urgent question has been this: will TomTom fight or fold? Now we have the answer: TomTom has decided to fight – and perhaps fight hard. Yesterday, it brought its own suit against Microsoft in a Virginia court, alleging that Microsoft is guilty of infringing several of TomTom’s own patents.
The question that many Linux supporters are now asking is this: is this good news for Linux, or bad? Here are my thoughts on that important question.
Continue reading ….
by Lee Gesmer | Mar 20, 2009 | Employment
The First Circuit has denied Staples’ request that it hear the Noonan v. Staples case en banc, or that it ask the SJC to advise it on how to apply the 100 year old Massachusetts statute which provides that “actual malice” may create an exception to the principle that defamation must be false to be actionable.
I posted on this case a few weeks ago (link here), and commented on the agita it had created in the First Amendment milieu. In fact, a vast number of publishers and First Amendment advocates filed an amicus en banc brief urging the First Circuit to reconsider this decision
Today, the Court denied this request and let its February 13, 2009 decision stand. In an order several pages long, the Court found that Staples had waived any First Amendment challenge to the state law by failing to raise it earlier, and that Staples could not, moreover, cite a case supporting the proposition that the law was unconstitutional. Here are some selective quotes from the Order:
Since its initial brief, Staples has argued under the premise that the term “actual malice” in § 92 means “malevolent intent.” Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the . . . opinion found that it need not consider the issue. . . .
The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. . . .
Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern.
Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification.
Staples’ petition for rehearing is here.
It is worth pointing out, as a complement to the Staples case, a recent decision by Massachusetts Superior Court Justice James Lemire, issued on January 14, 2009 in Oropallo v. Brenner. The issue in that case was not defamation, but rather the right to privacy under Massachusetts law. Without going into the facts of the case (which are confidential in nature), the court acknowledged an employee’s “expectation that [certain] details [of her life would] be kept private.” The court stated that there exists a genuine issue of material fact as to whether [the Town] had a legitimate interest in publishing [a document that disclosed this information] to Town employees and volunteers that outweighed [the employee’s] interest in keeping aspects of her personal life from public view.”
Accordingly, the Court held, the case should proceed to trial.
In light of these two recent cases it probably goes with out saying, but of course I’ll say it anyways: employers should proceed with extreme caution with respect to statements they make about employees, lest they risk claims of defamation and/or invasion of privacy. Praemonitus, praemunitus.
by Lee Gesmer | Mar 19, 2009 | Antitrust
Gary Reback, famed antitrust/IP lawyer and long-time thorn in the side of Microsoft, has written a book entitled “Free The Market!”. The book will be released in mid-April and is available on preorder at Amazon now.
Based on a few excerpts on Reback’s web site it looks like this will be an anecdotal, “in-the-trenches” book (as opposed to theoretical/academic) that should be well worth reading for those interested in the antitrust/IP wars of the last two decades. Reback was truly in the center of most of the big cases during these years, and I hope his book captures the legal issues, strategies and behind-the-scenes events that he witnessed.
by Lee Gesmer | Mar 18, 2009 | Patents
As I’ve said so many times in this blog, it’s not the law you need to fear, it’s the judge.
In CU Medical v. Alaris Medical System (a patent infringement case involving medical valves) the patent owner/plaintiff argued that the term “spike,” described in the patent as “a pointed instrument,” included non-pointed structures, such as a tube.The California U.S. District Court trial judge didn’t take kindly to this frivolous argument (in the eyes of the judge). The judge also found that the plaintiff had made “multiple, repeated misrepresentations . . . to the Court,” another no-no.
The trial court imposed sanctions totalling $4.4 million under 35 U.S.C. Section 285 (“The court in exceptional cases may award reasonable attorney fees to the prevailing party”) as well as Rule 11 sanctions for good measure.
The CAFC affirmed. Here’s is a link to the case: CU Medical v. Alaris Medical System.
