Thursday, July 31, 2014

Dallas Buyers Club Comes To Seattle

There has been much already written about the Dallas Buyers Club copyright cases; DieTrollDie even has a whole page dedicated to following the Dallas Buyers Club suits.  So it was inevitable. The Dallas Buyers Club cases have finally reached Seattle.

The Lowe Graham Jones firm just filed a new complaint against 10 Does here in the Western District of Washington. The complaint is below.  The case is styled: Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01153 (WAWD).

Like other similar cases brought here, this case was assigned to Judge Lasnik, who did not receive well the prior round of copyright suits. Read Judge Lasnik's comprehensive order dismissing most of the other cases under FRCP 12(b)(6).




Tuesday, June 24, 2014

Is The Federal Circuit Patent-Friendly?

As a technology lawyer, I frequently hear complaints (generally from the defense bar) that the Federal Circuit is "so patent friendly."  There's a recent post by Timothy Lee at Vox.com about how the Supreme Court has to rein in the rogue Federal Circuit. Mr. Lee is apparently pretty vociferous about his opinion too, sharing it on the Washington Post and ArsTechnica. Many people share Mr. Lee's opinion, but why?

I did find one guy who at least said, wait a minute.  Are they really that patent-friendly? So are they?

So here's the simple question: Is the Federal Circuit patent-owner friendly like many people say? There seems to be a simple way to find out. Rather than ponder and wonder, why don't we just take a look at how the Federal Circuit actually rules on patent cases.  So I decided to do just that.

It was a bigger task than I envisioned, but I went to the Federal Circuit website and downloaded every patent-related decision they handed down so far this month (June). Then I read each one and simply determined whether (1) the lower court ruled in favor of the patent-owner or the accused-infringer, and (2) whether the Federal Circuit ruled in favor of the patent-owner or the accused-infringer. The results might surprise you, although they didn't surprise me.

In June of 2014 (through today, so far), the Federal Circuit has handed down 18 patent-related cases. So of those 18 cases, how many times did the Federal Circuit hold for the patent-owner?

Once. That's right, once. The score this month is 17-1 in favor of the accused-infringer.

So far, the actual evidence seems pretty overwhelming. For a court that is so patent-friendly, they sure seem to hide it well. If the patent-owner is likely to lose at a rate of 17-1, where is this so-called bias? And if there is in fact a bias, which side does it favor?

I plan to expand my research and check out more cases over a longer period, although it takes a fair amount of work. The Federal Circuit really likes its per curium Rule 36 affirmances, which of course don't say anything about the lower decision.

Monday, June 9, 2014

What Is Happening To Our Profession?

So lawyers really have a bad reputation. I've been practicing law for nearly twenty years, and I have often tried to tell myself that all the ill will towards my profession is undeserved. But I fear I'm fighting a losing battle. Ordinary people just don't trust lawyers.

And when I read articles like this one I wonder why they should. Before you read on, understand that I personally condemn this kind of conduct as the absolute antithesis of professionalism. I would never, even against my most bitter rival, ever employ such tactics.

So there's this defamation suit going on down in Florida.  Law firm of Adams & Diaco on one side; C. Philip Campbell on the other. I knew nothing about either firm before reading this article. I wish I still knew nothing about them.

Mr. Campbell, the lawyer for one side, was sitting in a bar one evening when along came the good Miss Personious to keep him company. By all accounts, Miss Personious was very flirty with Mr. Campbell, and tried to get him liquored up.  By the end of the evening, Miss Personious had convinced Mr. Campbell to drive her home in her car. So far, one would assume that Miss Personious was just a hooker.

As Mr. Campbell pulled out of the parking lot with an intoxicated Miss Personious in the passenger seat, he was pulled over by Florida's not-so-finest.  Mr. Campbell was charged with driving under the influence and arrested.

The absolutely shocking part of the story, which I left out until now, is that Miss Personious was not a hooker. She was a paralegal at Adams & Diaco; that's right, the law firm on the other side of the case from Mr. Campbell.

Coincidence?

Turns out it was not. Miss Personious had been plotting with the partners of Adams & Diaco all night--exchanging countless text messages and phone calls to report on the developments of the evening. Amazingly, one of the partners of Adams & Diaco had actually arranged for his friend at the Tampa Police Department to have an officer pull Mr. Campbell over as soon as he pulled out on the street in Miss Personious' car.

Hogwash you say. This can't be proven. This must just be the biggest coincidence in the history of coincidences. But actually, it's true. Phone logs and records confirm the events. There may have even been some admissions. I just can't believe anyone would be so spiteful, let alone an entire group of thugs and bandits.

These people don't deserve a law license. They don't deserve a driver's license. Anyone who thinks that these kind of tactics are the right way to do business just doesn't belong in polite society.

Link to charges against one of the partners, Adam Filthaut

Wednesday, April 2, 2014

WLG Assists Mann Law Group Secure Patent Infringement Jury Verdict

The Whitaker Law Group joined the Mann Law Group recently to try the case of GuideTech, Inc. v. Brilliant Instruments, Inc. The case involves U.S. Patent No. 6,226,231 ('231 Patent), which relates to devices for measuring very, very small time differences for a long time.  These are called Continuous Time Interval Analyzers, and they are used to test high-speed digital components.
We tried the case to a jury, and after four verdicts, GuideTech finally secured a win of infringement against its rival manufacturer.
The trial was short, but amazingly unpredictable. There's a very interesting story about the jury changing its mind about one verdict pretty much as the gavel was coming down. I'll have to share that one after post-trial motions are over.

Sunday, February 9, 2014

Playboy Sues Over Kate Moss Photographs

Magazine sues for copyright infringement over unauthorized use of photographs
Kate Moss (By Michel Haddi)
What better way to celebrate your 40th birthday than by having naked pictures of yourself shared on the Internet?  Famed fashion photographers Mert Alas and Marcos Piggott have captured the naked essence of Kate Moss for Playboy magazine.

Harper's Bazaar publisher, Hearst Communications, has been sued for the unauthorized distribution of several images that were scheduled to come out in the 60th anniversary issue of Playboy magazine. Lots of celebration was planned and expected. 

Then, out of the blue, apparently Harper's posted on its website a clothed photo of Kate Moss with a link to another website showing the good stuff:: nude and partially nude photos of the 40-year old super model.

Woo hoo.

Of course, there's nothing new about nude pictures of Kate Moss.  Just use Google and you can have all the nude pictures you want. But this is different.  This is a 40-year old super model. A woman with a couple years under her belt who still looks almost as good as when she was 18; some would say better. 

This case is really about stealing Playboy's thunder.  They wanted to celebrate their 60th birthday by demonstrating to the world that when you're good, age is just a number. Then Harper's steps in and practically ruins the whole thing. What good is a surprise party when the guest of honor has already been tipped off?  Sure, it's still a party; but it's not a surprise party.

And that's what we have here.  Playboy got pissed because Harper's largely eliminated all the hype and anticipation of seeing a 40-year old model in a 60-year old magazine. There's a lot of intangible value to that.  Just ask any soldier or policeman about the element of surprise. Dropping something on someone before they know about it is a huge benefit.

And that's why we have these silly things called "laws" to guard against things like this. I actually had a potential client call me the other day and ask me if I thought it was "ethical" for a rights-owner to try and protect its intellectual property rights. I didn't know what to say. Is it ethical to get an advance copy of highly secretive images and publish them to the Internet just to garner some pre-publicity for yourself?

Propriety aside: There are laws to which society must adhere. What happens when someone decides that silly "murder" law shouldn't be complied with? What happens when someone likes your stuff more than theirs? We are a nation of laws; they should be respected and enforced even-handedly.

People should be no more persecuted for minor indiscretions than they should be for the willful disregard of the rights of others. Is it right to demand $100,000 from everyone who made an unauthorized use of your copyrighted material?  Not always, but sometimes yes. Undeniably, yes.

Good luck to Playboy in this case.  I hope they make Harper's pay.

Wednesday, January 22, 2014

Judge Rice Dismisses Elf-Man's "Indirect" Theory of Liability

Well, you can't win them all. The other day I wrote about Judge Lasnik's ruling that an IP address alone was insufficient to sustain a complaint for direct or contributory copyright infringement. Today, Judge Rice ruled exactly the opposite.

To recap, some of the defendants in the Elf-Man case in Eastern Washington filed the same motion that was filed in the Western Washington Elf-Man case. Actually, Mike Matesky prepared and filed the same motion on behalf of several of his clients who happen to be in both the Eastern and Western Districts.

So now the layperson gets to see how the sausage is made.  Two different judges in two districts that sit right next to each other are both presented with the same motion filed against the same complaint by the same plaintiff.  One judge grants the motion, the other judge denies most of it.

Why you ask?  Who knows!

The point is there is no clear cut answer in litigation.  One of the most frustrating things for me when speaking with new clients is that they seem to think the law is cast in stone, unbendable and absolute--all the answers must be clear-cut.

Wrong!

I don't care how well you think you know the facts and the law, I guarantee you cannot predict what a judge or jury will do; I don't care what you read on wikipedia.  After all, these are human beings with their own experiences and mindsets. Everyone is different.

So if you call me and ask "what's going to happen with my case," maybe you can understand a little better why the answer is always "I don't know."  I can give you an educated guess, but there is no way to know for certain what will happen.  In litigation, you just have to accept the uncertainty and roll with it.


Monday, January 20, 2014

IP Address Alone Not Enough To File Suit

So Friday, Judge Lasnik of the Western District of Washington, right here in good ole' Seattle, held that an IP address alone was insufficient to state a claim for copyright infringement against the ISP subscriber.

What does this mean? Plenty.

I'm struggling a little with how much to say about this case, because it means different things to lawyers than non-lawyers. For now, I'll just describe it in terms that most people reading this blog will appreciate.

In order for a copyright owner to have the right to file a copyright infringement lawsuit, the copyright owner has to do a bunch of things first. One thing is to actually register the copyright with the Copyright Office. You don't have to register the copyright before the infringement began, but you do have to register it before the court system will let you file a suit.

Another thing the copyright owner must do first is allege sufficient facts that make it "plausible" that the person being sued is the actual one who did wrong. In other words, the federal court system doesn't let you maintain a lawsuit against just anyone without demonstrating that you actually have a case against that person.

Let's assume for the sake of argument that a copyright owner did, in fact, identify an IP address that was observed downloading a copyrighted work without authorization.  Classic copyright infringement. Many, many people have argued that an IP address alone is not enough evidence to identify the actual person who downloaded the work.  In other words, even if you have the IP address, you still don't know who the person is that might have done it.  But that's all the copyright owners have when they file these bittorrent lawsuits.

So the argument goes that since the copyright owner can't identify the actual person who downloaded the movie, they don't have enough facts to maintain a lawsuit against the Internet subscriber.  The person who downloaded it could be anybody (again, we're assuming that someone did actually download the movie at this IP address). This argument has been made before, but it usually fails.

But on Friday, Judge Lasnik here in Seattle held that an IP address alone was not enough.  He likened the IP address to a telephone number, and said that just because someone pays the phone bill doesn't mean me made a specific call.  There's a certain compelling logic to that position.  Judge Lasnik went on to say that an IP address was actually less likely to identify a specific person than a telephone number because random strangers can squat on your unsecured WiFi, unlike your telephone line.

So to those of you who want to know if a copyright owner can actually file a lawsuit against you--an Internet subscriber--with no evidence other than your IP address, then the answer is YES, they can file it.  But they can't maintain that action, at least not here in Seattle.

Judge Lasnik's order is just below, and under that is a different order by Judge Hegarty of the District of Colorado who held exactly the opposite.

For more on the legal analysis, visit FightCopyrightTrolls. Also, a big congratulations to Mike Matesky who successfully brought and argued this motion.


Tuesday, November 5, 2013

Read Your Kindle On the Plane!

Not exactly copyright news, but it's still pretty exciting.  The Federal Aviation Administration just rescinded its long-time ban on the use of electronic devices during take off and landing.  Yeah!

In hindsight, it was a stupid ban, really. There was no way a cell phone or your e-reader were going to take down a jet airliner.  But out of an abundance of caution, the FAA imposed the ban back in the early 90s just in case.  Fine.

But why did it take 20 years to lift the ban? 

Here in Seattle, it appears that Amazon is pretty happy about the news.

So am I.

Friday, August 30, 2013

Who Is Really Responsible For Excessive Legal Bills?

Litigation is expensive, and federal litigation is especially so.  In cases we file, defense counsel frequently make reference to the fact that we represent our clients on a contingent fee basis and that is why the litigation is so expensive--because the plaintiff does not have to pay any legal bills and therefore the defendants bear a disproportionate financial burden.  Even Judge Rader, Chief Judge of the Federal Circuit Court of Appeals, said so in an op-ed piece in the New York Times.  Judge Rader's opinion suggests that contingent fee lawyers bring meritless cases, thus causing defendants to incur substantial legal bills unnecessarily. 

Thankfully, some developments in a dispute between Adam H. Victor and his (hopefully former) law firm belies the myth being advanced by so many who should know otherwise.  It's not the contingent fee lawyers who cause excessive legal fees; excessive legal fees are caused by the lawyers who bill those excessive fees. 

So in a nutshell, here's what happened:  
  • Mr. Victor engaged his firm for a legal project on April 22, 2010
  • The firm's initial estimate for the project was $400,000
  • Less than one month later, on May 20, 2010, the firm's bill was already at $600,000
  • Mr. Victor refused to pay the firm's bill, claiming it was too high
  • The firm sued Mr. Victor for the unpaid bill
Those are operative facts; now let me put a little more meat on the bone. . .