…made the American Dialect Society’s list of “Words of the Year 2005” (PDF) (Jan. 6). For more on patent trolls, see our tech/IP page. Also: Patent Baristas, Jan. 4, and Peter Zura’s 271 Patent Blog, Dec. 29 (both via Blawg Review #40 at Small Business Trends).
Posts Tagged ‘technology’
Never mind (Create an e-annoyance, go to jail)
Orin Kerr refutes Declan McCullagh’s claim (Jan. 10) that Congress has outlawed anonymous Internet communications.
Update: on the other hand, Eugene Volokh remains troubled. For reasons stated in the comments, neither Walter nor I are persuaded by Cal Lanier’s narrow interpretation.
Batch of reader letters
We’ve posted four more missives on our letters page. Among the topics this time: a reader notices a funny warning label on a prescription purchase (“If unconscious, call right away!”; another defends “patent trolls“; the writer of a book about Lord of the Rings tangles with the Tolkien estate; and reflections on discrimination against persons of “Appalachian heritage“.
Roger Parloff on patent litigation
First BlackBerry, next eBay? As patent disputes threaten to shut down whole pillars of the electronic economy, the question becomes more urgent whether patent holders should be entitled to automatic injunctions against infringers. Abolishing the injunction entirely might be too radical, argues Fortune’s Roger Parloff; the better course may lie in giving judges more discretion. (“Pay Up — or You’re Done For”, Fortune, Dec. 12). More on the BlackBerry case: Oct. 11, May 2. And a news update: “Setback for BlackBerry maker”, Reuters/Money/CNN, Nov. 30.
“Grandpa is sued over grandson’s downloads”
“A 67-year-old man who says he doesn’t even like watching movies has been sued by the film industry for copyright infringement after a grandson of his downloaded four movies on their home computer.” The Motion Picture Association of America earlier demanded $4,000 from Fred Lawrence of Racine, Wisc. and is now suing him for as much as $600,000 in damages. Lawrence says the grandson, who was 12 at the time, downloaded the files out of curiosity and deleted them immediately; the family already owned three of the four films on DVD. (AP/Business Week, Nov. 2).
“If you say so, then fine with me”
Tales of the expert witness biz: Australian lawyers in an copyright infringement case, acting on behalf of the makers of the Kazaa file-sharing program, ran into trouble when the expert witness they’d hired, Keith Ross of Polytechnic U. in New York, was revealed as perhaps a bit too agreeable to their interests for their own good. “Evidence tendered showed that Professor Ross admitted he had not tested propositions Clayton Utz’s solicitors had inserted in his draft report, but accepted them anyway.” A judge discounted Ross’s testimony with scathing remarks; the law firm insists it never intended to put words in his mouth. And:
[New South Wales] Legal Services Commissioner Steve Mark said solicitors often put pressure on witnesses to come up with a particular result, and his office took a firm stand on lawyers who coached witnesses or attempted to influence their findings.
“A lawyer’s primary duty is to the court,” he said.
(Garth Montgomery, “Music copyright facts fine-tuned”, The Australian, Sept. 9).
Apple sued over iPod nano scratches
Class-action lawyers including Seattle’s Hagens Berman (Feb. 16, Mar. 6 and Mar. 29, 2004; Nov. 24, 2003; Sept. 9-10, 2002, etc.) sued Apple last week in the name of buyers of the popular iPod, claiming the nano screen on the device tends to scratch easily and become unreadable. They are seeking remedies including a refund of moneys paid “plus a share of the company’s profits on the music player’s sales”. (“Nano Owners Sue Apple”, Red Herring, Oct. 20; Ina Fried, “Suit filed over Nano scratches”, CNet, Oct. 21).
Joys of bounty-hunting: internet sales tax
In Chicago, veteran class-action attorney Stephen Diamond has been profitably suing retailers that don’t collect state and local sales taxes from online customers:
Using a state whistle-blower law, Mr. Diamond since 2002 has filed about 95 suits in Cook County court here against retailers that failed to charge him taxes on Internet sales, alleging that they broke the law. In cases where the state of Illinois joins the suits and prevails, he is entitled to up to 25% of the financial damages, with the rest going to state coffers….
Because of settlement agreements between the retailers and the attorney general’s office, the state’s judges have agreed to keep the names of most of the retailers and the settlement amounts confidential.
The retailers, like their mail-order-catalogue counterparts, have in the past often taken the position that the responsibility for making sure sales tax is paid rests with the customer; disputes sometimes arise about whether a particular retailer has sufficient operations within a state to count as present within it for tax-collection purposes.
Mr. Diamond’s targets have included such firms as Wal-Mart, Office Depot and KB Toys. He has taken an interest in expanding his practice beyond Illinois to the three other states with laws allowing private citizens to enrich themselves this way, but his efforts in those cases have been less successful. After he filed about 30 tax suits in Tennessee, lawmakers there repealed their statute authorizing such suits, and passed the word to nearby Virginia which also repealed its similar law. That leaves Nevada, where he has filed 10 suits which the state attorney general has moved to dismiss. In Illinois, he would seem in little danger of being shut down any time soon: the office of state Attorney General Lisa Madigan, a key trial lawyer ally, has been willing to cooperate with his activities though disputing his right to as high a share of the booty as he would like. (Robert Guy Matthews, “Online Retailer Skips Sales Tax? You Might Sue”, Wall Street Journal, Oct. 14)(online subscribers only).
Subway maps on your personal electronic device
What a neat idea, so naturally it’s drawn cease-and-desist letters from the New York and San Francisco transit authorities (Wired, via Dennis Kennedy who got it from B.L. Ochman)(cross-posted from Point of Law).
Wall Street Journal on patent trolls
All sorts of interesting reporting on the news side of the subscriber-only WSJ:
In one of Douglas Fougnies’s early business ventures, he provided phony new-vehicle titles for stolen cars. His partner, Larry Day, is a onetime blackjack dealer in Las Vegas.
Together, the two men have found a more lucrative line of work: suing cellphone companies for patent infringement. Earlier this year their company — which consists of four employees and six patents — won $128 million in damages from Boston Communications Group Inc. and four other companies over alleged misuse of a 1998 patent.
Suing can be as lucrative as manufacturing as a way to profit from a patent, sometimes a lot more so:
Lured by the potential returns, hedge funds and other institutional investors now are bankrolling businesses that buy up patent portfolios. More law firms, including some branching out from product-liability and malpractice work, are taking patent cases on a contingency basis. That means the law firms are paid a percentage of any damages awarded but little or nothing if the patent-holder loses.
(William M. Bulkeley, “Aggressive Patent Litigants Pose Growing Threat to Big Business”, WSJ, Sept. 14)(sub). For more, see Sept. 1, May 2 and many other entries on our technology/intellectual property page.
In a major development, however, the federal judiciary seems to be ringing down the curtain on the most successful and controversial patent-prosecution shop of all time (Aug. 23, etc.): “After hundreds of companies paid inventor Jerome Lemelson more than $1.5 billion in licensing fees, the U.S. Court of Appeals for the Federal Circuit has concluded that his patents aren’t enforceable after all. The Federal Circuit ruled Friday that Lemelson’s 18- to 39-year delay in prosecuting patent claims relating to machine vision and bar-code technologies was unreasonable.” (Brenda Sandburg, “Lemelson Patents Ruled Unenforceable”, The Recorder, Sept. 13; Dennis Crouch, Sept. 9; IP Litigation Blog, Sept. 11; David Jacobs, MassLawBlog, Sept. 15; TechDirt, Sept. 12; LemelsonInfo.com; AP two-part series reprinted in Miami Herald, Aug. 20 (part I) and Aug. 21 (part II)).