Selfless dedication

Fearless advocacy from Lord Grabiner QC in support of an argument on equitable rectification:

Lord Grabiner advances this argument with some force. He says that any other view is heresy and that he is incontrovertibly correct. Indeed he goes as far as to say that he is prepared to go to the stake on this point. One cannot but be impressed by this level of selfless dedication to his client’s cause. I am not sure whether he expects the rest of the Abbott legal team to join him on the pyre, but, a single raised eyebrow from Mr Thorley suggests that he, at least, is not going to volunteer. I hope Lord Grabiner can be persuaded to think again, otherwise it would be the end of what has the signs of being a promising career. In spite of Lord Grabiner’s threat of self immolation, or perhaps encouraged by it, Mr Vos relies on numerous authorities and references in Snell and Spry to show that Lord Grabiner’s view of the law is wrong. He also argues that, even if he were right, there are here so many documents which “cross the line” and support CAT’s case, that it succeeds anyway.

Citation: Cambridge Antibody Technology v Abbott Biotechnology Ltd [2004] EWHC 2974 (Pat), [106] (Laddie J)

Swiftly dismissed

A recent copyright claim brought by an American composer against Taylor Swift was dismissed with irredeemable irony. The claim alleged that Ms Swift had incorporated a 22-word phrase into the lyrics for "Shake It Off". Dismissing the claim, the judge commented:

“At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.

As currently drafted, the Complaint has a blank space — one that requires Braham to do more than write his name. And, upon consideration of the Court’s explanation … Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case.

At least for the moment, Defendants have shaken off this lawsuit.”

Citation: Braham v Swift (Unreported, 10 November 2015, Standish J)

The aftermath

After Kipling, presumably:

“After a ‘great’ constitutional case, the tumult and the shouting dies. The captains and the kings depart. Or at least the captains do; the Queen in Parliament remains forever. Solicitors-General go. New Solicitors-General come. This world is transitory. But some things never change. The flame of the Commonwealth’s hatred for that beneficial constitutional guarantee, s 51(xxxi), may flicker, but it will not die. That is why it is eternally important to ensure that that flame does not start a destructive blaze.”

JT International SA v Commonwealth [2012] HCA 43 (5 October 2012) (Heydon J)

The literary Justice Heydon

“This great renversement des alliances created a new and unexpected hurdle for the defendants. So the Court was as on a darkling plain, swept with confused alarms of struggle and flight, where ignorant armies clash by night – although the parties were more surprised than ignorant.”

Williams v Commonwealth [2012] HCA 23 (20 June 2012)

"MR GLEESON: Your Honour, that hypothesis would remove some of the critical planks that I am relying..."

MR GLEESON: Your Honour, that hypothesis would remove some of the critical planks that I am relying upon, but not all of them. It would remove some of the critical planks because we would no longer have punishment per se, we would no longer have the public order injunction. We would be closer to the area of private law rights.

HEYDON J: What if the individuals who were damaged did not bother about the Commission and just brought their own action? They are still relying on a public order statute.

MR GLEESON: Yes. That again has removed a further plank from our argument and is closer to the area of —

HEYDON J: I just want to see how much we jettison before we start swimming.” - P T Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCATrans 101 (8 May 2012)

A wayward Chevy struck a tree

Aspiring poet-judges take note, for this is possibly the best (or worst) example of judicial prose in the brief history of the genre.

A wayward Chevy struck a tree
Whose owner sued defendants three.
He sued car’s owner, driver, too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.

The Oakland County Circuit Court,
John N O’Brian, J, set forth
The judgment that defendants sought,
And quickly an appeal was brought.
Court of Appeals, J H Gillis, J,
Gave thought and then had this to say:

1) There is no liability,
Since No-Fault grants immunity,
2) No jurisdiction can be found
Where process service is unsound;

And thus the judgment, as it’s termed
Is due to be, and is

Citation: 333 NW 2d 67 (Mich App, 1983) (citations omitted)

French Supreme Court orders de-indexing of autocomplete search queries

French Supreme Court orders de-indexing of autocomplete search queries: In a claim brought by a French collecting society, the Cour de Cassation has ordered Google to delete the keywords “Torrent”, “Rapidshare” and “Megaupload” from its auto-completion keyword suggestion tool for French users.

The basis for the injunction is that Google is facilitating — providing the ‘means’ — of infringing the claimants’ copyrights.  However, the Court confirmed that Google is not itself legally responsible for any infringements taking place on sites linked to in search results, even where it suggests the query.  Sensibly, this is because subsequent infringements require ‘a voluntary act of the user’.
Nevertheless, the balance of convenience favoured injunctive relief since this would provide an easy way to reduce infringement by making it more difficult for users to locate infringing materials (even though they still remain available).
The Court qualified its order by noting that it is “without … any reason to expect total efficiency”.  In other words, if Google’s automated keyword de-indexing fails to remove all queries related to the infringements, it won’t be in breach of the order.  This makes sense given that suggestions are generated algorithmically and not actively monitored by Google.
The decision isn’t really surprising — Google has already been filtering certain keywords (mostly relating to pornographic, illegal and infringing materials) from autocomplete since mid-2010.  However, it does confirm the Court’s power to grant an injunction under the Enforcement Directive if Google’s voluntary removal doesn’t go far enough.  Read more »

Facebook mistakenly removes report by free speech NGO, irony ensues

Facebook mistakenly removes report by free speech NGO, irony ensues: This week’s ironic example of private censorship:

Callamard said: “The deletion shows the looming threat of private censorship. We commend Facebook for creating tools to report abuse, but if your post was wrongly deleted for any reason, there is no way to appeal. Facebook don’t notify you before deleting a comment and they don’t tell you why after they have. Facebook act like judge, jury and executioner.”
She added: “Facebook is now widely recognised as a quasi-public space and as such has responsibilities when it comes to respecting free speech. They can’t just delete content without some kind of transparent and accountable system. International law says that censorship is only acceptable when it is clearly prescribed, is for a legitimate aim – such as for public health – and is necessary in a democracy.”

The cost of defending patent troll litigation: $29bn annually

The cost of defending patent troll litigation: $29bn annually:

The $29 billion number comes from measuring … legal fees going to lawyers, and the licensing fees paid in tribute to make the trolls go away … The findings come from a relatively small sample of 83 companies, both small and large.
The median amount spent to pay off a troll suit is just $230,000 for large companies and $180,000 for small- and medium-size defendants. The discrepancy means that the great majority of trolls go away after getting relatively small payouts, while a few very strong entities in the patent-trolling business are able to pull off giant multimillion-dollar settlements. …
The second-largest cost is, unsurprisingly, fees paid to defense lawyers. Big companies spend a mean of $1.52 million per litigation, while small- and medium-sized companies spend $420,000. Again, those compare to much lower median figures …, showing that the companies have a large number of cheaply defended cases, while a few heavily litigated cases run up big fees.