Wednesday, December 23, 2015

AMAZON KNOCK-OFFS: A SUCCESS STORY


I want to share a feel-good success story, but first a little background. 

Success Selling Online


The new economy has enabled mom-and-pop shops that have created their own unique stuff to sell it anywhere in the world very easily. Online retail has stripped away the capital-intensive barriers to selling unique products to everyone. Today, if you come up with a clever little gadget that solves a long-felt, common problem, then you too can market that product to practically everyone in the world almost instantly with very little effort. Everyone might not buy your product, but you can pretty easily get it in front of them.

And sometimes everyone does buy it. Sometimes you end up with a minor hit on your hands and all of a sudden, your basement side-project turns out to be a lucrative business. You are an overnight success. But success breeds imitation. If you come up with a clever little gadget that is easy to make and that becomes successful online, guess what: Other people want to steal your success.

It's an all-too-common story. Small company comes up with a really cool new gadget, starts selling online, becomes successful, and bam! There they are. Knock-offs. All over the place. Amazon's great marketplace for launching small businesses turns into a bazaar of cheap imitations from foreign companies just trying to steal the success of hard-working mom-and-pops. Why come up with your own neat new product? Just wait until someone else does the hard work and then knock it off. Easy money, right?

Amazon Knock-Offs


So now let's talk about Amazon.com. Amazon has done a great job of developing a platform that enables anyone in the world to go from online zero to hero in ten minutes or less. Anyone, anywhere in the world with a product to sell can start selling that product using Amazon's online marketplace in literally about ten minutes. That's a double-edged sword for our mom-and-pop sellers. Although it allows them to sell their cool new gadget with very little capital outlay, it also allows the knock-off artists to do the same.

So when your cool new product starts selling really well, and the knock-offs start showing up (as they inevitably will), Amazon's position is that's your problem. There are countless stories of Amazon selling knock-offs on its marketplace. Amazon's position is always the same: If you have a problem with knock-offs on its marketplace, contact the sellers. Don't bother Amazon, it's not their problem. Sure, Amazon pretends to care by recently putting up an online infringement reporting system. But Amazon doesn't take that system seriously. Why should they? As the law currently stands, Amazon is immune from responsibility for any of the products it sells on its own marketplace. That's right, Amazon doesn't care because they law says they don't have to care.

Not surprisingly, we represent quite a few companies in precisely this position. Their cool product became an online success, and then the knock-offs started showing up on Amazon. We even had a jury trial a couple months ago trying to hold Amazon's feet to the fire for this very problem. We're still fighting the good fight and hopefully, as Judge Martinez alluded to, the law will soon catch up with technology. But in the meantime, what can you do?

Fixing The Problem


Now on to the success story. There was a small company based in Texas that developed a really neat and cool household-goods product several years ago. It is the quintessential “why didn't I think of that” type of gadget. Very simple; very cool; very popular. So this company began selling them online using Amazon's marketplace. Overnight success. We're talking sales in the low millions of dollars very quickly.

So what happened next? Of course, the knock-offs showed up about a year ago. The company's sales fell off quickly to less than half what they had been. These knock offs were costing this mom-and-pop success story lots of money. These good folks were extremely frustrated because they thought they had done all the right things. They had secured patent protection for the product, both utility and design patents. They had secured federal trademark protection for their brand. Yet there they were: knock-offs. This company had spent over $80,000 to protect their product yet nothing they did could stem the tide of the knock-offs.

Out of utter frustration, the owner of this company had learned of us from our Milo & Gabby case, which has gotten some attention. She contacted me and asked if there was anything we could do to help. She was reluctant to spend even more money on lawyers after already dolling out more than $80,000 already. We spoke, and I suggested she wait and see if the efforts those other lawyers were putting forward would do anything. We promised to touch base in about two weeks.

Well about one week later, she called me back. She said that they were losing too much money every day to wait any longer. She asked if there was anything I could do that her other lawyers hadn't already done. I told her that we probably had a little more relevant experience with the problem given all we've learned over the last several years fighting this problem. She reluctantly agreed to let me take a shot at trying to help her out.

To prevent revealing client secrets, I can't provide too much detail about how we approached the problem. But what I can share is this. She paid me about $800 to work my magic, and about four days later all the knock off listings had been taken down. Literally overnight, all of them came down.

To say she was happy would be an understatement. I asked her, at the end of those four days, if they had seen any improvement in sales. I kid you not, she told me that their sales had literally doubled overnight. At the end of four days, the company's sales were already back to where they had been at their peak.

I tell this story because I firmly believe a lawyer's job is to help the client make money. If the client isn't making more money with your service than without it, you aren't doing your job. Typically, you can't draw a direct correlation between the lawyer's service and the client's success. Most often, the theory is that the lawyer's service is bearing fruit down the road. You can't see the immediate financial benefit, but a good lawyer at least hopes it's really there. So a story like this makes me very happy. I have never before represented a client for whom there was such an immediate and direct financial benefit. Bottom line, this client paid me about $800 to try and fix their problem. I did what I do, and my service to the client literally paid for itself in less than one day. That makes me feel good.

So there you have it. This feels like my own success story because I helped my client realize an immediate financial benefit that drastically exceeded the cost of my service. In my opinion, that is supposed to be every lawyer's highest ambition.

If your company is feeling the pinch of foreign knock-offs hobbling your sales, contact us and let's talk about whether we can repeat this success story.

Tuesday, December 1, 2015

How Do The New Federal Rules Of Civil Procedure Affect Your Copyright Case?

Most of you probably don't know or care much about the Federal Rules of Civil Procedure.  Unless, of course, you are a lawyer.  Like me.  Well I'm going to tell you about them anyway because if you landed on this site by searching the Internet, there are some things about the Rules you just might need to know. 

The Federal Rules of Civil Procedure are really just a bunch of rules that control how litigation proceeds in Federal Court.  Specifically, the Rules govern things like what can the other side make you turn over to them and when.  The Rules also include a whole lot of guidance on when things have to get done and how.  Bottom line, if you are in Federal Litigation and you are wondering if you can do something you want to do or how do you do it, then the Rules probably answer your question.

I'm mentioning them today because there were some recent changes to those rules that just went into effect today.  Most of the changes are very minor, but some have the potential to be very favorable.  The one that is getting the most headlines today is the one that does away with so-called form complaints.  The reason for that, most commentators say, is because it's supposed to make it harder to file a patent infringement complaint.  But the reason for that is because one of the form complaints that is being eliminated was for patent infringement and it was pretty bare bones.  But no one has really used that form anyway since Iqbal and Twombly so I don't see this change affecting anything at all, not really.

But there are a couple of other changes that might prove more interesting.  For instance, one area of substantive change in the new Rules surrounds e-discovery -- basically the ability to make a party turn over electronically stored documents.  In the past, the Rules have been very sparse on e-discovery and didn't really have much about it.  But the rules-makers have decided they need to beef that part up a bit.  Specifically, Rule 37 has been amended to make it more clear that a party has an affirmative duty to take reasonable steps to preserve electronic evidence.  This was always the law generally, but an express duty to preserve evidence has never been in the Rules themselves, only in the case law.  So the change to Rule 37 actually marks a pretty major departure from where the law was before.

And why is that?  Here's why.  Because the duty to preserve evidence before was an amorphous blob of cases and commentary and locker-room speak that was very difficult to pin down.  Spoliation -- the term used to describe a failure to preserve evidence --  has to my knowledge never been very clearly defined.  When did the duty arise?  What constituted a breach?  And most importantly, what is the punishment for spoliation?

What exactly constitutes spoliation is still very murky.  But at least the rules-makers have now created some clarity around what punishments can befall someone who has caused evidence to be lost.

Bottom line, once you have notice that you might be sued, then you have an affirmative duty to take "reasonable steps" (whatever those are) to ensure that evidence does not get destroyed.  In the context of electronic evidence, that means you have to make sure files don't get erased or deleted, basically.

But we all know that sometimes stuff just happens.  So what if some electronic evidence does get erased on your watch?  What then?  Well, the rules-makers say first it depends on whether you took those reasonable steps to preserve the evidence.  Did you back up the files?  Did you turn off an auto-clean function that keeps your hard drive nice and tidy?  If so, and something unpredictable happened (your hard drive crashed an hour after getting your first notice of a dispute, say), then there is no punishment.  It's just life.  Again, sometimes stuff just happens.

But what if you didn't take any steps to preserve the evidence?  If your answer is "I knew my hard drive automatically wipes all my deleted files once a week and I just didn't turn that off."  Well, then you might have problems.  In fact, you probably do have problems.

New Rule 37 says that the severity of your punishment depends on two things: First, how bad is the prejudice to the other side.  Second, how culpable are you for the destruction of the evidence.

First, the judge is only allowed to punish you to a degree that is commensurate with the prejudice.  In other words, if the other side isn't all that harmed without the evidence, then you aren't going to be punished too bad.  Maybe you get a $100 sanction or something. It could be worse. If you accidentally deleted an email, but it was stored on some other cloud storage anyway, then there is no harm.  Prejudice eliminated.

But if the other side is very prejudiced, then it could get worse.  Maybe the evidence that got deleted was an admission of liability by you.  Way worse prejudice; way worse punishment.  Keep reading.

Second, how bad can it get?  In the past, the ultimate sanction was an actual dismissal of your claim if you were a plaintiff, or a finding of liability if you were a defendant.  In other words, the litigation equivalent of complete defeat.  In the past, that ultimate sanction sometimes took the form of a so-called negative inference or a negative instruction. Legalese for "you lose."

In the past, what you had to do to get the ultimate sanction was very unclear.  It differed from district to district.  Lawyers trying to exploit technicalities always used the loose standard to threaten the ultimate sanction over the most trivial of circumstances.  

But as of today, there is some guidance.  Bottom line, in order for a judge to punish you with the ultimate sanction, the judge must find that you "acted with the intent to deprive [the other] party of the information’s use in the litigation."  In other words, bad faith.  If you knew about a particular piece of evidence, and you knew that particular piece of evidence would be very bad for you, so you either destroyed it or allowed it to be destroyed, then the hammer is likely to come down.  Expect very bad things.  Expect the ultimate sanction.

But, if you didn't know that there was a critical email in your inbox, but you also failed to make a back up copy of your inbox before your computer crashed three months into litigation, then you likely aren't going to get the ultimate sanction.  You'll probably get punished, but likely not with the ultimate sanction.  At least not unless the true facts reveal that you did know about that email, or you did know your computer was about to crash and did nothing about it.  Then it becomes less clear.

Why is this important to people reading this blog?  Here's why.

The typical plaintiff in a bittorrent copyright case usually makes these two arguments:
The defendant downloaded my movie illegally and it's on his hard drive.
But if it's not on his hard drive, then he must have deleted it and spoliated the evidence.
So the plaintiff argues that if it's there, you did it.  And if it's not there, you spoliated it so you should get the ultimate sanction.  In other words, either way you did it.  This is the threat that forces some people to try and settle a case that they otherwise shouldn't.  It's the proverbial need to "prove a negative." 

This new Rule 37 should provide a lot more security against plaintiffs unfairly threatening you with the ultimate sanction just because the file they say was downloaded doesn't exist on your hard drive.  First of all, if you didn't do it then it shouldn't show up anyway.  Second of all, if something did happen to your hard drive then it is now (as of today, officially) the plaintiff's burden to show that you actually caused that to happen for the purpose of an advantage in litigation.

I'm not saying that doesn't happen.  I'm sure it does.  But I am saying that the days of the ever-present threat of the ultimate sanction for minor, unintentional mistakes are over.

This does not mean go out and wipe your hard drive as soon as you get a notice from Comcast of a suit.  In fact this means the opposite of that.  If you did what you are accused of doing, and you did download the movie with bittorrent, then you better push forward with a different defense than "I didn't do it."  There are several pretty good "I did it, but . . ." defenses.  Pick one of those.  But don't delete the movie and pretend you didn't do it.  You will get caught, and you will get punished.

But if you are innocent and you just didn't know anything about the fact that your college-aged kid set up your computer to auto-defrag the hard drive once a month, then you should not be too worried.

Sorry this post is so long.  I got carried away.  Spoliation is, at bottom, a pretty easy concept.  But sometimes it just takes lots of words to explain the easy ones.

A redline version of the new Rules is embedded below, for those of you who just like to dig in to the details.


Wednesday, November 25, 2015

CEG TEK Settlement Demands: What are They?

I frequently get calls from individuals who ask me about an email they received from their ISP.  In it, their ISP informs them that they have been accused of copyright infringement, and the email includes information about the infringement in the lower portion of the email.  Most often, the email includes something called a "Case #" and a password.  Then the email invites you to visit copyrightsettlements.com and pay them some money.

Everyone who gets one of these immediately freaks out and thinks they've been sued for copyright infringement and their life is over.  They see visions of $150,000 default judgments dancing in their heads.  Wait. Before you freak out, go read my post about catastrophizing and calm down.

You have not been sued  

What you got is something referred to in the law as a DMCA takedown notice.  It is not notice of a lawsuit.  It's not even notice that a lawsuit is about to be filed.  It is a notice that a copyright owner is required to send to an Internet service provider -- like Comcast or Charter -- about suspected copyright infringement using that ISP's service.  In other words, it's actually a notice to Comcast (not you) telling Comcast that someone is suspected of using their service to violate the copyright laws.

Why Did Comcast Get It?

Why did Comcast get that notice?  Well, because the copyright laws obligate the ISP to do something about it or else the ISP is liable for the copyright infringement.  Let me say that another way.

Let's assume that someone (a subscriber) actually committed copyright infringement using the ISP's service.  That's a pretty big assumption because they are very often wrong, but let's make that assumption now.  Under the DMCA, the ISP is immune from liability for copyright infringement committed by any of the ISP's subscribers.  In other words, the subscriber might be liable for copyright infringement, but the ISP is not, as long as the ISP does what the DMCA requires.

So what is the ISP required to do to ensure that it is not liable for its subscriber's infringement?  One thing is respond promptly when a copyright owner gives the ISP notice of copyright infringement.  So when CEG TEK sends one of these notices to Comcast, unless Comcast honors that notice and does something about it, Comcast will be liable for its subscriber's infringement.  And since Comcast has lots of money (probably a lot more than any one of its subscribers), CEG TEK sends the notice to Comcast to try and make Comcast liable for its subscriber's infringement.  And unless Comcast (or whatever ISP) does something about the notice, then Comcast will be on the hook for potentially lots of money.  ISPs don't like that idea.

Why Did You Get It? 

Why did Comcast (or whoever your ISP is) send you the notice?  Well, to put it bluntly, because CEG TEK asked them to.  Note that I said the ISP has to do something to try and stop the alleged infringement or else the ISP becomes liable itself.  Coincidentally, CEG TEK includes right in its DMCA takedown notice a request for the ISP to forward that notice on to the subscriber directly.  

Now since the ISP is required to do something about the allegation of infringement, it might as well do exactly what CEG TEK asked. So the ISP sends the notice to the subscriber.  That way the ISP remains immune to liability.  And that is why you got a copy of the notice that was intended for your ISP.

What Should You Do About It?

This is the million dollar question.  All the people who call me ask:  What should I do?  And again, there is not one good answer.  What you should do typically depends on whether you did it or not.  

If you didn't do what you are accused of doing, the answer is simple.  Don't do anything.  In my opinion, if you know there is no way you are responsible for the copyright infringement you are accused of in that notice, then ignore it.  Some people worry too much to just let it go, but as far as I'm concerned you should not even consider paying a dime for something you know you didn't do.  

If maybe you did do it, then consider your options.  Or if maybe someone you know did it, again consider the options.  What are those options?  You have two:  Ignore the notice or pay the money.  That's it.  Two very clear options.  

Most people understand those are the options, but what they really want to know is how likely are they to get in real trouble if they pick Option A and ignore it.  If they don't pay, are they likely to get in even bigger trouble later?  I can't say yes, but I can't say no either.  CEG TEK (or at least its founder, Ira Siegel) used to file lots of copyright infringement suits.  I'm sure they made good money doing it, but they also got some heat too.

But it does not appear that CEG TEK is filing many suits these days.  It seems they are content to accept voluntary payments by people who receive these notices.  Does that mean they won't start suing people again?  Some other smart people suggest that they almost have to in order to compete with the other copyright assertion folks.  That logic makes some sense, but if they aren't suing people now, the real question is how risk averse are you?

What Is Peace-Of-Mind Worth To You?

So if you got one of these notices and you did what you are accused of doing, ask yourself how much risk are you willing to tolerate?  Some people I speak to say they are willing to risk being sued because the risk is fairly low.  For those people, that's the right decision.  Other people I speak with say that the peace-of-mind of knowing that this issue is behind them is worth the two or three hundred dollars that CEG TEK is demanding.  

Don't get me wrong.  Three hundred dollars is a fair amount of money.  But it's nothing compared to what the other copyright assertion companies demand when they file suit.  Make no mistake about it:  If you turn your back on the settlement number now, it will not be there later if a law suit gets filed.  

So you have to decide for yourself if you are comfortable with a small risk of paying a lot more money later in a messy law suit, versus the certainty of being out of pocket a few hundred dollars now but with peace-of-mind.  For many people, they kick the can and take their chances.  And so far, that risk has probably been worth it.  I am unaware of any lawsuits that CEG TEK has filed lately.  But if that notice is keeping you up at night, as they sometimes do, consider paying the money just to ease your mind.  The stress and heartburn just aren't worth a few hundred dollars.

I have to wrap up by reiterating my earlier advice:  If you didn't do what you are accused of, you should not even consider paying a dime.  Nothing.  Nada.  

Rest assured that sometimes these bittorrent "investigations" just get it wrong.  I have spoken with many accused people who denied doing anything wrong.  Sometimes I can tell they just don't want to admit it, but many times it is clear they didn't do it.  Little old ladies who live alone and need help to check their email on their ten-year-old computer didn't do it.  I never, never, never recommend that those people should even consider paying.  

Hopefully this has helped at least some of you better understand what that email means, and what you should do about it.

Monday, November 2, 2015

Dallas Buyers Club Update

Judge Jones is becoming increasingly leery of the Dallas Buyers Club folks here in Seattle.  So let me start by recapping some of the goings on so far.

Dallas Buyers Club started suing John Does here in Seattle back in July of 2014.  Over the subsequent months, Dallas Buyers Club filed about a dozen cases here.  They did the ordinary thing where they asked the judge for authority to get subscribers' names from their ISPs so they could name them in the suit.  The judge granted that request because on in its face it is a reasonable request.  Anyone engaged in legitimate litigation might ask for the same thing.

But after it got those names, DBC didn't amend its complaints to name anyone.  It pushed its “settle or ruin” policy but never actually did what it told Judge Jones it was going to do.  Then later DBC went back to the judge and asked for even more power.  It asked the judge to allow it to force the subscribers – whose names it now had – to provide testimony under oath.  Initially the judge denied that request because DBC didn't provide any details about what exactly it would be asking.  Instead, the judge told DBC to serve whatever subpoena it wanted and either the people served would object or they wouldn't.  But until there was some real definition to exactly what DBC was asking for, there was nothing the judge would do.

DBC chose to interpret the judge's order as authorizing it to serve any subpoena it wanted to demand anything it wanted, no matter how unreasonable.  When people started receiving those subpoenas, a few came to us and asked for help.  The subpoenas DBC was serving were patently unreasonable. For instance, all of them demanded that the subscribers appear for a deposition on less than a week's notice, and that the subscribers bring with them all manner of documents like information about their routers and software installed on their computers.  There was nothing even remotely proper about them, so we filed some motions to quash.

The judge agreed with us and quashed all those subpoenas, and then he expressed some real concern about how the cases were progressing.  The judge authorized DBC to move forward with drastically less onerous subpoenas, but he also cautioned DBC to either get their cases moving forward or risk having them dismissed.

So now several more months have gone by and still no one has been served.  Business as usual for DBC.  Since that $105,000 attorneys fees slap down in Eastern Washington, DBC – or whoever their real puppet master is – just has no stomach for an actual fight.

Not to be dissuaded, DBC pushed its luck and went back to the judge and asked again for even more authority to get more information from the subscribers.  More specifically, DBC is asking the judge to sanction several subscribers who just refused to attend their depositions and to give it more time to continue putting pressure on those subscribers to try and extract more settlements.

Well Judge Jones is having none of it.  He penned an order denying DBC any more subpoena power until DBC either demonstrates that this is legitimate litigation or starts dropping cases.  Particularly interesting is Judge Jones' reference to a Whitaker Law Group client, Jeff Pleake, who has been very vocal with his dissatisfaction over being wrongly accused of downloading movies he's never even seen.

And one more thing.  The DBC folks have been threatening to move forward on some sort of "ratification" theory of liability.  Basically, DBC is arguing that if a subscriber refuses to voluntarily give DBC whatever information DBC asks for, the subscriber should be liable for "ratifying" the copyright infringement even if the subscriber had nothing to do with it.  Well thankfully, Judge Jones is again having none of it.  In no uncertain terms, Judge Jones shut that down in a big way.  Bottom line, Judge Jones said "that theory is incomprehensible and rejected. This Court could not find
any case supporting such a theory."

See the order below.

Tuesday, June 23, 2015

Copyright Infringement: How Much Might I Owe?

The number one question I get asked when I get a call from someone accused of copyright infringement for downloading a movie with bittorrent is how much will this cost me? I like to respond: How long is a rope?  It depends.

In other words, it's impossible to tell how much your particular case might cost under any circumstances. It's hard to know how much the plaintiff will demand in settlement. It's hard to know how much the Judge or Jury might award if your case moved forward and you lost. It's hard to know how much it might cost you to move forward even if you win.

All that said, I'm here to help provide you with information that you can use to inform your decisions. To that end, I decided it might be helpful to try and pull together a listing of awards that judges have actually entered in several cases around the country. But just like the stock market, past performance is not a good indicator of future performance. Still, at least you have this information.

So what I started pulling together below is a list of actual awards that were entered by judges in bittorrent cases around the country. I'll try to normalize the data so that it reflects a per-title damages award. And if the award looks out of line, I'll try to include some information about why. And I'll try to update this each time I get new information. So here goes:


DateAwardFeesDistrictJudgeNotes
6/2/20157501,657FLMDChappellOrder
4/24/20157502,525ILEDDowOrder
10/24/2014750???PAED??Order

Monday, May 4, 2015

Judge Jones Kills Subscriber Subpoenas in Dallas Buyers Club Cases

Judge Richard A. Jones
Judge Jones today quashed subpoenas that had been served on two Whitaker Law Group clients, as well as numerous other subscribers in several Dallas Buyers Club cases here in Seattle. 

Dallas Buyers Club filed numerous cases of copyright infringement here in Seattle like they have all over the country. Judge Jones initially granted DBC power to seek subscriber information so that it could name defendants. There is nothing particularly noteworthy about that. Pretty much all the courts around the country recognize that with nothing more than an IP address, there's nothing much a plaintiff can do.

But here, DBC wasn't happy with just that. After getting the names of all the subscribers, DBC actually started serving subpoenas on the subscribers themselves, demanding that the subscribers appear at the offices of DBC's counsel on less than a week's notice. And to make matters worse, DBC was demanding that those subscribers also produce a bunch of documents.

We filed a few motions to quash those subpoenas as violating all kinds of rules, not to mention notions of common fairness.  Judge Jones agreed. Today he granted WLG's motions without even giving DBC an opportunity to respond! In short, Judge Jones agreed that DBC's subpoenas were improper for a number of reasons, and he went even further and entered an order detailing what DBC has to do if they want to move forward with these subpoenas in the future.

So if you have been served with a subpoena to appear at a deposition in one of the Dallas Buyers Club cases here in Seattle, you need to read this order carefully. You very likely don't have to comply with that subpoena. 

See Judge Jones' order below.

Friday, May 1, 2015

WLG Wins Attorneys Fees Award Against BWP Media

Today a Federal Judge in Seattle handed down an order granting Whitaker Law Group client Rich Kids Clothing Company a second victory in its ongoing dispute with notorious copyright monetization outfit BWP Media. Judge Mary Theiler awarded Rick Kids Clothing Company its attorneys fees for defending against BWP Media's unsubstantiated claims of copyright infringement.

Although awards of attorneys fees are fairly common in copyright infringement cases, they are more rare in cases brought by copyright monetization outfits because of their particular litigation tactics. However, those litigation tactics were not enough to prevent the Whitaker Law Group from securing justice on behalf of its client. See the decision and order below.


Friday, March 27, 2015

Eagle Harbor Holdings Loses Patent Battle With Ford Motor Co.

A Tacoma jury just returned a verdict of non-infringement in favor of Ford Motor Company in a long patent and trade secrets battle with local technology company, Eagle Harbor Holdings. See the verdict form below.

Eagle Harbor Holdings and Ford Motor Company have been battling over a family of patents for nearly five years.  Dan Preston, the patriarch of EHH, has been involved in the automotive electronics industry for many years. He was part of the team that developed the OnStar system for General Motors.

Mr. Preston and his company worked with FoMoCo during the mid 2000s to help them develop a new automotive electronic system. However, it seems EHH and FoMoCo were unable to finalize the deal and parted ways, yet FoMoCo still came out with a couple of key technology systems that EHH said were straight rip-offs of EHH's patented technology.

The case has gone on for about 5 years, including some nasty back-and-forth with FoMoCo accusing Mr. Preston of stealing some of Ford's secret documents. The trial finally occurred this month, led by two of the legal industry's most well-known patent litigators:  Parker Folse for EHH and Bill Lee for FoMoCo.

Mr. Folse was counsel for Two-Way Media, which won a $40 Million verdict against AT&T that I have commented on a couple times.

Mr. Lee was counsel for Apple in the huge trial against Samsung in which a California jury returned a billion dollar verdict in favor of Apple.

Eagle Harbor Holdings v Ford Motor Co Verdict Form by John Whitaker

Thursday, March 19, 2015

DJ Punish Sues Sir Mix-a-Lot over "Baby Got Back"

David Ford, known professionally as DJ Punish, has sued Anthony Ray, better known as Sir Mix-a-Lot, to settle a question over Mr. Ford's joint authorship of a number of works that were created when the two were collaborating together in the early to mid 1990s.

The Whitaker Law Group is working with Gleam Law on the matter.

Big-Law Missed Deadline: Fed Cir Refuses To Disregard It

I posted earlier about a blunder that caused AT&T's patent firm to miss a deadline for filing a Notice of Appeal. Again, unless you're a lawyer, you may not appreciate how big a deal this is.  In litigation you can miss many deadlines without really feeling the pain. But not this one. The law says a judge can't ignore this deadline unless it's an exceptional situation.

So to summarize, AT&T's firm (1) lost a $40Million jury verdict, then (2) missed the deadline for appealing that verdict. So unless AT&T's lawyers were able to convince the Federal Circuit that their blunder was excusable, AT&T was stuck paying over $40Million. (Decision below).

Today, the Federal Circuit said, too bad. Well, two out of three judges said too bad. Personally, I really think what did them in was their forced-admission that AT&T had 15 lawyers on the matter, and not even a single one of them actually read the judge's order. And it didn't help that they all billed their client for doing so. Oops.

One think I know for sure: I'll be reading those ECF notices more carefully from now on.

Monday, March 16, 2015

Major Firms Laying Off Lawyers: Surprise, Surprise!

I almost feel like Nostradamus. I recently posted my skepticism (to put it kindly) about Law360's claim that the lawyers at the major firms have been as busy as ever, despite patent infringement filings being down by twenty percent. I think the word I used was bullshit.

I wrapped up that piece with the simple question: How long before Law360 reports that the "major firms" have announced some new layoffs in their patent litigation departments?

Well, as it turns out, not long.  Today (just 12 days since I predicted it), Law360 announces that several major firms are reducing their attorney headcount by 9 to 20 percent.

Is anyone surprised by this?

I actually think it's a little funny just how accurate my prediction was less than two weeks ago. Or it would be funny, if we weren't talking about people losing their jobs.

Tuesday, March 10, 2015

Pharrell Hit "Blurred Lines" Results in $7.4 Million Jury Verdict

Wow.  Kind of surprising, really. Pharrell Williams and Robin Thicke just got hit for about $7.4 Million for copyright infringement, so says the Los Angeles jury.

I'm actually surprised by this news. I've listened to the two songs, and I can't hear the similarities. But I guess that is why we have a jury system because reasonable minds can differ.

All in all, I'm not sure how upset Pharrell is.  He's still got a few coins in the bank, if this site is right about his $97 Million net worth.

Wednesday, March 4, 2015

Churn That Bill, Baby!

The good folks over at Law360 just wanted to let us know that the major firms are having no problem keeping their attorneys billing--I mean busy. If you don't know about Law360, it's a legal news source that sends blast emails with the day's latest legal news. They have a strong big-firm bias.

For quite a while now Law360 has been touting the virtues of all the recent Supreme Court decisions and their impact on patent litigation. For the last several months, about every other Law360 news blast seemed to be announcing that so-called "patent troll suits" are starting to wane due to recent Supreme Court's decisions, such as Alice and Octane Fitness.

For instance, in October, Law360 was proud to announce that year-over-year patent suits were down about 40% in September of 2014. Again, in February 2015, Law360 reminded us that the trend in patent litigation filings is definitely downward. That trend pretty much sums up new patent suits since about 2013.

So I and others have been wondering: "How long before the big firms start twiddling their thumbs?" Guess we have our answer now.

Thou doth protest too much, methinks.

On Friday, Law360 blasted their preemptive announcement: "Don't worry, the big firm lawyers are still busy even though patent suits are way, way down." According to Law360, the 20% reduction in lawsuits has had "virtually no effect" on "attorney workload"--which should be read "attorney billings."

That assertion is just flatly unbelievable on its face. What idiot believes that attorneys are just as busy when 20 percent of their new work vanishes. And yes, I said idiot.

Well, I'm no idiot. I am an active patent litigator and I know exactly what's happening. I talk to clients and my friends in other firms. The statement that big firm lawyers are just as busy with patent litigation despite 20 percent less work is, to put it frankly, bullshit.

Wonder why this Law360 piece reminds me of a post I wrote a little while back when a big law firm was caught churning its client's bills. In that piece, a client and his firm got crosswise, and a bunch of the firm's internal emails were revealed. In those, the lawyers were celebrating how high their bills were with snippets like this one:
Vince has random people working full time on random research projects in standard Vince "churn that bill, baby!" mode.
So when the big-firm lawyers say things like "we have 20 percent fewer cases to work on, but we're billing our clients the same amount," does that scare you? If you are a client of one of those big firms, it should.

I'll tell you what I think (in case you haven't already figured it out). That Law360 article is just the product of attorneys whose hubris prevents them from admitting that they aren't really sure where their new work will come from, but they don't want anyone else to know.

So my final question is this: How long before Law360 reports that (surprise, surprise) the "major firms" have announced some new layoffs in their patent litigation departments? Or even better, how long before we see this headline: Major Tech Client Sues Patent Litigation Firm Over Exorbitant Billing Practices?

Like I said, I'm no idiot.

Friday, January 23, 2015

WLG Helps RKCC Defeat BWP Media Claim

The Whitaker Law Group assisted local startup, Rich Kids Clothing Company, to defeat a copyright infringement claim brought by BWP Media. If you are not familiar with BWP Media, you should just Google "BWP Media copyright".

BWP Media sued Seattle startup RKCC for copyright infringement for allegedly using three images of Will Ferrell and Christina Applegate on RKCC's website.  RKCC denied any culpability and pushed forward with the case.

Both sides filed motions with the Court with BWP Media asking the Court to slam RKCC, and we asked the Court to throw the case out.  After several rounds of briefing, the Court handed down a ruling in RKCC's favor throwing out BWP Media's case.