Gesmer Updegrove LLP

The Supreme Court’s Grokster Decision – A Conversation With a Client

by Lee Gesmer on July 12, 2005

Following the Supreme Court’s June 27, 2005 decision in MGM v. Grokster I wrote a short article about the case, in the style of a client consulting a lawyer about a file-sharing system.

Attorney: Judy, what brings you to my office today?

Client: John, I have an exciting idea, and I want to run it by you to make sure it passes legal muster. I’ve been involved in indie music and film for years; I have hundreds of contacts in the entertainment industry. People don’t realize what a huge body of uncommercialized work is out there! I’ve developed the most radical peer-to-peer file-sharing software you can imagine. It makes Napster, Grokster, Morpheus and all of the others look medieval by comparison. I think that musicians and video producers will contribute their works to this network to get publicity. My revenue model will be based on banner advertising. It’s perfect!… Read the full article

Second Circuit Holds that Use of Competitor's Name to Trigger Pop-Up Ads Does Not Violate Trademark Law

by Lee Gesmer on July 12, 2005

Trademark Law. Last year I wrote (together with Susan Mulholland, an attorney at my firm), an article on the WhenU line of cases. We reviewed the three legal decisions that had been published to date on the WhenU technology: two from the district courts in Virginia and Michigan holding that WhenU’s practice was permissible; and one, from the federal district court in New York holding that WhenU had violated the Lanham Act, the federal trademark statute.

What does WhenU do that resulted in three federal court cases? In brief, once downloaded by a user (concealed in a “Trojan Horse” application), WhenU’s software will continuously monitor (invisibly, to the user) the user’s Internet browser to determine whether content accessed by the user matches key words stored in WhenU’s client directory. When the software finds a match for an associated key word – often a trademark or service mark – it triggers the SaveNow program to transmit a WhenU-branded pop-up ad to the user’s computer.… Read the full article

The Story of the Demoulas Fortune and the Judge’s Clerk

by Lee Gesmer on July 11, 2005

Yesterday’s masters of the universe are today’s cosmic dust.
Anon
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What Were They Thinking? A case that has received enormous attention in Massachusetts is the Massachusetts Board of Bar Overseers investigation into the activities of several attorneys for the defendants in the Demoulas case, a state court case involving claims of breach of fiduciary duty surrounding the ownership of a large New England supermarket chain.

The case itself was a legal odyssey, spanning years and numerous state court decisions, but it is the aftermath of the litigation that stunned lawyers in Massachusetts and around the country. The losing defendants, dissatisfied with the decision of State Superior Court Judge Maria Lopez (who has since resigned in ignominy over a criminal molestation sentencing fiasco) and suspecting bias on her part, concocted a charade intended to induce the judge’s then law-clerk to disclose the inner workings of the judge’s chambers while the case was in litigation, and presumably prove that the judge’s clerk, rather than the judge herself, wrote the final (and most important) decision in the case.… Read the full article

Lawyer/Employee Who Secretly Modifies Severance Agreement Before It Is Signed by Employer Loses His Case

by Lee Gesmer on July 6, 2005

A word to the wise ain’t necessary, it’s the stupid ones who need the advice.
-Bill Cosby

What Were They Thinking? It fascinates me when lawyers do exceptionally stupid things. One would think that the successful completion of four years of college and three years of law school (not to mention years of experience watching clients do unwise things) would inoculate lawyers against the most foolish forms of human behavior. But, of course, experience shows otherwise. Even experienced lawyers are as likely to be rendered stupid by fear, greed, hatred and jealously, and to act on those emotions, as any other highly educated person. Maybe more so – education doesn’t necessarily impart common sense.

A recently reported Massachusetts Superior Court case informs on this point. Although this case provides an interesting legal treatment of a contract issue (indeed, so interesting that the case was featured on the front page of Massachusetts Lawyers Weekly), it’s primary appeal is morbid curiosity.… Read the full article

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