Jaani.net

September 16, 2007

White Cows in Green Fields? Gateway Shareholder Class Actions Proceed

Last September, Gateway Inc, a United States manufacturer of consumer computer hardware, announced its intention to accept a takeover offer made by Acer Inc, the American subsidiary of a Taiwanese hardware and systems manufacturer. Acer offered cash consideration of USD $1.90 per share, valuing Gateway at just under USD $710 million.

Well, it seems that some Gateway shareholders aren’t overly happy about this transaction, with two separate shareholder actions being initiated against the Gateway board last week, naming Acer as accessory. The substance of the allegations, relevantly contained in Gurt v Clarke (Case No CA3219-VCN) and Cin v Clarke (Case No CA3216-VCN), is as follows:

[1] ‘The Company’s directors breached their fiduciary duties to stockholders by approving the Merger Agreement and the transactions contemplated thereby, including but not limited to the Offer, and claims that these transactions are both unfair and coercive to the public stockholders in a sale of the Company’ …

[2] ‘The Company’s directors breached their fiduciary duties by failing to include certain information in the [offer document], which purportedly denies the stockholders a fully informed voluntary choice whether to approve the Merger Agreement or seek appraisal.’

As regards the second of these claims, it is unclear, from the statement of claim, just what this information was, and whether it was material, so we’ll have to wait and see how that one pans out. As regards the first claim, however, this seems more dubious on its face.

My first PC was a Gateway, so the brand holds a special place in my heart, but even on a generous valuation of the company it seems difficult to escape the conclusion that Acer paid too much, rather than too little, for the offeree. Gateway has struggled to compete with other large Original Equipment Manufacturers in the North American market — a decline which paralleled Dell’s rise to prominence and which began even before the .com crash. Hewlett Packard, meanwhile, has gone from strength to strength (corporate espionage scandal notwithstanding), while Lenovo has made strong inroads into the corporate market. Gateway, meanwhile, pulled out of the Malaysian, Singaporean, Japanese, Australian and New Zealand markets, and has done little since but produce a line of unremarkable laptops.

The Acer board appears to be placing a premium on Gateway’s right of first refusal over Packard Bell computers (a traditional rival of Acer). Indeed, Acer’s own shareholders have complained vocally that the price paid for Gateway was excessive. Speaking about post-merger concerns, Acer CEO Wang Jen-tang identified three issues:

The first is that we bought it too expensively. The second is that post-merger integration is normally always very difficult, so the integration will be too difficult, and the third is that Acer’s acquisitions in the past were mostly unsuccessful. … Regarding the criticism that the price is too high, I think whether a price is high depends on whether the buyer will in the end be able to realize synergies.

Interestingly, Acer’s CEO sought to justify the purchase in qualitative (synergistic) rather than quantitive terms. To put Acer’s offer into context, the previous year a private bidder offered USD $450 million for Gateway’s retail business, which the board rejected as inadequate consideration. (The bidder had previously sold eMachines to Gateway, which had subsequently lost value.) This suggests that there is at least some basis underlying the Acer shareholders’ discontent. In these circumstances, it seems difficult to say with any confidence that the Gateway directors acted without due care in accepting the favourable offer. It is therefore doubtful whether anything can come of the shareholder actions.

Posted by Jaani at 3:12 PM | Comments (0)

August 19, 2006

ISP Discovery in Civil Cases

Internet service providers ('ISPs') have become increasingly rich sources of information in complex criminal and civil matters. Parties in civil matters have used subpoenas to obtain information, but the California Superior Court has recently barred civil litigants from obtaining information from ISPs because the Electronic Communications Privacy Act (US) had no provisions for civil discovery. Attorney Leonard Deutchman argues that this goes against existing case law and privacy practice.

Posted by Jaani at 9:22 PM | Comments (0)

May 26, 2006

Creative Sues Apple over iPod User Interface; Apple Counter-Claims

Creative Technology, manufacturer of digital music players, last Monday announced that its United States subsidiary, Creative Labs, has commenced proceedings against Apple in a United States federal court for alleged patent infringement.

The United States Patent and Trade Mark Office issued the relevant patent ('the Zen patent') to Creative on 9 August 2005. According to Creative, it covers the user interface (menus, buttons and commands) by which users of a portable music player navigate to tracks and play back music on most digital media devices -- including Creative's Zen and Nomad brands as well as Apple iPod devices. In short, Creative alleges that Apple has misappropriated elements of the design into the user interface of its popular iPod digital audio device.

Apple, in turn, has commenced separate proceedings against Creative Labs, claiming infringement of four of its own patents relating to portable music players. The suit was filed in a Wisconsin District Court on the same day. It seems likely that the actions will be consolidated into a single proceeding.

Posted by Jaani at 12:14 PM | Comments (0)

May 25, 2006

Morpheus Sues eBay for Breach of Contract

‘StreamCast Networks, the creators of the Morpheus file-sharing software, is alleging in a lawsuit that auction house eBay is profiting from peer-to-peer technology that rightfully belongs to it.

StreamCast claims in a lawsuit filed Monday in the US Central District Court in Los Angeles that Niklas Zennstrom and Janus Friis, the duo who developed the technology behind companies Kazaa and Skype, of breaking an agreement to give StreamCast the first right to purchase their FastTrack peer-to-peer protocol. …

Monday’s filing is an amendment of a suit first filed in January. The complaint now adds eBay to the 21 companies previously named as defendants and requests that the court force Skype, acquired by eBay last October, to halt sales of VoIP products. StreamCast is also asking for more than $4 billion in damages.’

Posted by Jaani at 7:56 PM | Comments (0)

May 13, 2006

Do-It-Yourself E-Discovery

E-discovery can be pricey. What's a small firm with a run-of-the-mill case supposed to do? Do you tell a client, "Sorry, the courts are closed to you because you can't afford e-discovery experts?" EDD vendors don't come cheap, and simply loading all your e-mail in Outlook doesn't preserve the integrity of evidence it holds. Attorney and EDD expert Craig Ball set out to find ways lawyers on a tight budget can take care of e-discovery needs. Along the way, he discovered some helpful software and tips.

Posted by Jaani at 2:25 PM | Comments (0)

Morgan Stanley to Pay $15 Million Fine to Settle E-Discovery Charges

The Securities and Exchange Commission announced Wednesday that Morgan Stanley will pay a $15 million civil fine to settle charges that it repeatedly failed to provide thousands of e-mails requested in investigations. Morgan Stanley neither admitted nor denied the allegations, but the penalty is among the biggest fines ever levied on a brokerage firm for failing to produce documents. "We are pleased to have this matter behind us," said Morgan Stanley spokesman John Franklin.

Posted by Jaani at 2:24 PM | Comments (0)

Law Prof Characterizes Yahoo Suit as Extortion

netbuzz writes "Fair comment or libel? A law prof/blogger calls those behind the class-action suit against Yahoo 'extortionists.' The targeted lawyers, who include spyware/adware expert Ben Edelman, are not amused." From the article: "Goldman, who according to his blog 'holds leadership positions in the American Bar Association and the Computer Law Association,' addresses the merits of the suit in a generally academic fashion before winding up for the big finish: 'I think these lawsuits are nothing more than a shakedown for cash,' he concludes. 'Even unmeritorious class action lawsuits are expensive to defend, so the plaintiffs' lawyers can exploit those defense costs for their personal largesse. They can make this argument to defendants: settle with me for a fraction of your total expected defense costs, and we're both better off (defendants save some defense costs, plaintiffs' lawyers grab some personal loot).'"

Posted by Jaani at 2:22 PM | Comments (0)

May 10, 2006

Class Action Initiated against ATI over HDCP Interoperability

According to The Inquirer, United States lawyers have just filed pleadings in a representative suit against ATI Technologies, a manufacturer of computer graphics hardware, in connection with claims made about the interoperability of its graphics cards with HDCP technology. The claim is founded in breach of warranties implied by consumer protection legislation, and alternatively negligent misrepresentation, though they also throw in unjust enrichment for good measure.

The plaintiffs allege that since “at least 2003”,ATI said many of its graphics cards support High-bandwidth Digital Content Protection (HDCP). That spec is part of the Windows Vista operating system.

But, claim the plaintiffs, if video cards or monitors aren’t designed to the right specifications, the “new content protection scheme will not allow high definition audiovisual content to be clearly transmitted”.

ATI, it’s alleged, said many of its graphics card are sold as HDCP ready, or HDCP compliant. “These representations were false and the cards cannot transmit content pursuant to the HDCP specification. ATI has begun to revise its website marketing materials to delete reference to video cards being HDCP ready or compliant,” the filing claims.

More details

Posted by Jaani at 12:05 AM | Comments (0)

May 9, 2006

Harriton is Down: Wrongful Life, Damage and The Duty of Care

Although not strictly technology-related, I note with interest that the High Court of Australia today handed down judgment in Harriton v Stephens. In this long-awaited decision, the Court dismissed an action brought on behalf of a child disabled as a result of exposure to the rubella virus in utero. The Court was called upon to decide the matter as a question of law only, in terms of whether a duty of care was owed to the unborn foetus in these circumstances by the diagnosing physician, and whether the plaintiff has suffered an actionable harm. The plaintiff unsuccessfully argued that the doctor’s failure to advise the mother of the risk to the child amounted to negligence (or alternatively breach of contract).

In the result, Hayne J rejected the claim on the narrow basis that no cognisable damage was done to the plaintiff, since properly advising the mother would have entailed terminating the pregnancy, thereby denying the plaintiff any existence at all. In addition to this basis, Crennan J (with whom Gleeson CJ and Gummow J agreed) raised doubts about the existence of a duty of care. Justice Kirby dissented on the basis that the duty issues were not insurmountable and that damage could be quantified in the normal manner for personal injury cases.

The running theme throughout the majority judgments is that a disabled life is better than no life at all. In one of Crennan J’s first judgments of any length, her Honour appears to take the view that burdening a doctor with a duty of care to a foetus when advising an expectant mother so that she may terminate a pregnancy would be incompatible with such a doctor’s duty to to the mother, and that — in any event — no damage can arise as a result of occasioning an existence, since any comparison with the alternative (non-existence) is impossible. Interestingly, her Honour also speaks for Gleeson CJ and Gummow J.

The following paragraph provides a useful summary of the issues that combined to defeat the plaintiff’s claim:

The … autonomy of a mother in respect of any decision to terminate or continue a pregnancy, the problematic nature of the right or interest being asserted, the uncertainty about the class of persons to whom the proposed duty would be owed and the incompatibility of the cause of action with values expressed generally in the common law and statute all support the conclusion that the appellant does not have a cause of action against the respondent on the agreed facts. For these reasons Cattanach v Melchior represents the present boundary drawn in Australia by the common law (subject to retreat of the legislatures in New South Wales, South Australia and Queensland) in respect of claims of wrongful birth and wrongful life. Life with disabilities, like life, is not actionable. (citations ommitted)

The result, although eminently predictable given comments made by the Court in Cattanach v Melchior, has been vigorously defended by medical groups and academic commentators. Although this decision hardly looks set to become Australia’s Roe v Wade, it is certainly an interesting decision for followers of tort law and policy.

Posted by Jaani at 6:36 PM | Comments (0)

May 7, 2006

International Airport Centers, LLC v Citrin

'Former employer stated Computer Fraud and Abuse Act claim by alleging that employee deleted files on employer-supplied laptop computer using secure-erasure program designed to overwrite deleted material; by loading erasure program onto computer, whether by downloading application from internet or inserting disc into laptop's drive, employee caused unlawful "transmission" in violation of Act.'

Posted by Jaani at 10:56 AM | Comments (0)

Federal Court Rules Amended

Justices of the Federal Court of Australia have agreed to amend the Federal Court Rules by inserting new Orders 25A and 25B.

Posted by Jaani at 10:55 AM | Comments (0)

The Chocolate War

'In a dispute between competitors in the retail chocolate market involving the use of the colour purple, the Federal Court decided that Cadbury does not own the colour purple and does not have an exclusive reputation in purple in connection with chocolate.'

Posted by Jaani at 10:54 AM | Comments (0)

Google Sued for Allegedly Profiting From Child Porn

skinfaxi writes "Filed in New York, Jeffrey Toback claims Google has made billions by allowing child porn and 'other obscene content' providers to use sponsored links." From the article: "The suit, which claims Google acted negligently and intentionally inflicted emotional distress on the public, requests monetary damages to be determined at trial. It also accuses Google of violating federal statutes relating to child pornography and calls for the court to order that Google cease "advertising, promoting, or distributing" child pornography through its site or otherwise providing any links to such content."

Posted by Jaani at 10:51 AM | Comments (0)

German court rules moderators liable for forum comments

Lawyers on the edge

A Hamburg court has ruled that moderators of internet forums are liable for content posted on their sites.…

Posted by Jaani at 10:49 AM | Comments (0)

Microsoft sues Dutch companies for illegal COA use

Should Neelie intervene?

Microsoft has successfully sued two Dutch companies it claims sold Certificate of Authenticity (COA) labels without the appropriate software or repackaged them with different software.…

Posted by Jaani at 10:46 AM | Comments (0)

Representative Actions and Technology Goods

Ars Technica examines the class action lawsuit as a mechanism for consumer redress:

Class-action lawsuits are common, especially when it comes to tech products. iPods, CDs, DVD rentals... you name the product and chances are someone has filed a class-action suit.

There's no denying it: class-action lawsuits feel good. After all, individual consumers have little power over manufacturers, and it's all too easy to see these companies as firms who value only the almighty dollar. Ganging up on, say, the record labels feels pretty good because it gives power to a group of people who otherwise would wield little of it. It balances the asymmetrical power relationship between corporations and consumers.

Posted by Jaani at 10:45 AM | Comments (0)

March 4, 2006

iPod User Sues Apple for Hearing Loss

‘Toxic iPods’? Apparently. The owner of an iPod has commenced proceedings against Apple in the United States, claiming that the music device causes hearing loss. The plaintiff’s statement of claim asserts that Apple’s music players are ‘inherently defective in design and are not sufficiently adorned with adequate warnings regarding the likelihood of hearing loss’. The action is presently seeking class action status.

The devices can produce sounds of more than 115 decibels, a volume that can damage the hearing of a person exposed to the sound for more than 28 seconds per day, the complaint states.

Although the iPod is more popular than other types of portable music players, its ability to cause noise-induced hearing isn’t any higher, experts said.

‘We have numerous products in the marketplace that have the potential to damage hearing,’ said Deanna Meinke, a professor of audiology at the University of Northern Colorado. ‘The risk is there but the risk lies with the user and where they set the volume.’

Apple spokeswoman Kristin Huguet declined to comment.

Accompanying each iPod is a prominent warning stating that ‘permanent hearing loss may occur if earphones or headphones are used at high volume.’ Given that there are many audio products capable of damaging hearing, surely this warning ought to prove sufficient, and in any case give rise to substantial contributory negligence on the part of any plaintiff — though it is unclear whether the plaintiff’s own iPod actually shipped with this warning.

Posted by Jaani at 5:30 PM | Comments (0)

December 14, 2005

Upcoming Technology Litigation in 2006

A promotional piece for O'Reilly's upcoming Emerging Technology Conference in March 2006 discusses America's Next Top Tech Lawsuits:

Publishers threaten Google Print; Techmo shuts down videogame skinners; Xbox modders go to jail; Lynn blows the lid off Cisco; Blizzard emulators breach the DMCA; image archives under fire; SCO still trying to bugger Linux; blog owner sued for enabling comments; P2P goes under the Supreme Court's knife; FCC burned on the Broadcast Flag; patents.

I'm not sure I agree with all these, at least in an Australian context. Publishers frothing at the mouth over Google Print certainly seem like ripe candidates for legal action. Victims of anonymous weblog defamation are also likely to go after site operators. Emulators of Blizzard's Battle.net probably breach the DMCA (though maybe not the Australian Copyright Act 1968 (Cth)), unsatisfactory though that may be.

However, thanks to Stevens v Sony Australians can probably rule out 'Xbox modders go to jail'. The major peer-to-peer precedents have already been set and settlements are now far more likely than prolonged court battles (though with much the same result). BitTorrent (the technology, not the company) might cause a stir, but it seems difficult to target anyone in particular -- expect to see a lot of cease and desists, though. SCO has run out of options (and money). The FCC is stronger than ever. Patents are patents, but software patents seem less likely than last year.

Is this the end or just the beginning? Is Greasemonkey the next Grokster? Are closed APIs DMCA minefields? Are patents the biggest threat to open source, or the other way round? As policy and law continues to invade the world of remixing, modding, and DIY, the EFF's Schultz sums up the wins and losses in 2005, and where the next attacks on innovators and consumer-creators will be coming from.

Sounds like a very interesting session. More information after the jump.

Posted by Jaani at 9:26 AM | Comments (0)

December 13, 2005

Web Host Sues Google, Alleging 'Click Fraud'

'TheOcho writes "Webhost company AIT has decided to file a class action lawsuit against the internet giant Google. According to the article the dispute is over click fraud. AIT claims they have lost around $500 000 due to fraudulent clicks. They claim that Google is hitting their website from 'the same IP addresses'."'

'Click fraud' is such a harsh a term; I prefer to call it 'incorrect click recording'. Jokes aside, the latter term is probably the more accurate one, since it's unlikely that there's any deceptive component behind what's going on. Presumably Google's search robot doesn't index Google's own search pages (it would be mutually recursive if it did), and presumably when a robot crawls an AdWords link it isn't charged out to the client. Assuming, then, that there's no negligent behaviour on Google's part, should the company be liable for the malicious clicks of a competitor who deliberately clicks on an advertisement multiple times in succession with the intention of exhausting the advertiser's campaign?

The best way to prevent this kind of error would simply be to limit the number of times a single IP address can register and a billable ad click in a given span of time. Of course, temporarily storing and checking IP addresses may involve a change to Google's already shaky privacy policy, and entail a substantial loss of revenue.

Posted by Jaani at 2:34 PM | Comments (0)

Court Rejects Appeal in SanDisk Case

'The Supreme Court [of the United States] rejected an appeal by digital-media manufacturers that are battling a patent suit filed by storage-card maker SanDisk.'

Posted by Jaani at 2:30 PM | Comments (0)

October 15, 2005

RealNetworks Settles With Microsoft for $761m

RealNetworks announced a legal settlement Tuesday with longtime adversary Microsoft, ending the last major antitrust case against the world's largest software maker. RealNetworks said it had reached three deals with Microsoft worth up to $761 million. That includes a $460 million up-front cash payment to settle the antitrust dispute. Another part of the agreement gives RealNetworks an additional $301 million in cash and services designed to help the company's products reach a wider audience.

Posted by Jaani at 6:42 PM | Comments (0)

E-Discovery Tops List of In-House Worries

Electronic discovery is the bogeyman that haunts the sleep of corporate legal counsel, according to Fulbright & Jaworski's annual study of in-house trends. With steep fines and jail sentences being handed out to corporations and executives that violate the Sarbanes-Oxley Act, corporate counsel are taking a closer look at policies guiding record-keeping and disclosure, but the process is increasing litigation burdens and costs.

Posted by Jaani at 6:42 PM | Comments (0)

Judge Tentatively Sides With Microsoft in Google Employment Dispute

Google's attempt to lift job restrictions on a top computer engineer lured from rival Microsoft suffered another blow Friday under a tentative court ruling that would limit the search engine company's legal options for at least another three months. Kai-Fu Lee's relocation from Microsoft's home state of Washington to Google's home state of California has become the pivotal point in the tug-of-war over Lee's services because Washington honors noncompete agreements while California does not.

Posted by Jaani at 6:41 PM | Comments (0)

Sony, Immersion Trade Misconduct Claims in Patent Battle

A year ago, a California jury told Sony Computer Entertainment America to pay $82 million in a patent dispute over joystick technology used in video games. Now, in what's shaping up as a nasty post-trial bout, attorneys for Sony claim that Immersion Corp. concealed evidence by paying hush money to an inventor of technology at issue in the dispute. Immersion's lawyers fired back Thursday, describing Sony's accusation as a "smear campaign," and charging that it's Sony that has committed misconduct.

Posted by Jaani at 6:41 PM | Comments (0)

Settlement Good News for MotorolaV710 Owners

bluebanzai writes "When hordes of people bought up the Motorola V710 upon its release a year ago, Slashdot readers may remember many impressive features including the cutting edge Bluetooth features (picture/mp3 transfer, wireless syncing) as described on Motorola's website. However, when used with the popular Verizon Wireless cell phone service provider, many Bluetooth features were sadly crippled (apart from a wireless headset) because OBEX features had been purposely disabled by Verizon. Hundreds of people donated to a hacker rewards program to unlock the full features of the phone to the tune of $3000, but was never fully successful. Well, one year later, the Los Angeles Superior Court (PDF Warning) and Verizon have announced the initial steps of a Class Action Lawsuit that appears to be influenced by the user community allowing everyone who bought it before the start of 2005 a few options for compensation--including a refund up to the purchase price of another phone which, interestingly enough, is a lot easier to hack."

Posted by Jaani at 6:39 PM | Comments (0)

Microsoft, RealNetworks nearing settlement

Microsoft may be close to making more litigation go away. It is reportedly nearing a substantial financial agreement with RealNetworks that would settle the latter's antitrust suit.

Posted by Jaani at 6:36 PM | Comments (0)

Entertainment Software Association to sue California

That didn't take long. After last week's passing of a bill outlawing the sale of "violent" video games to minors, the ESA is preparing to sue the state.

Posted by Jaani at 6:36 PM | Comments (0)

Judge May Stay Google's Suit

Google suffered an apparent setback as a federal judge ordered a tentative stay in its legal battle over a former Microsoft executive.

Posted by Jaani at 6:34 PM | Comments (0)

October 7, 2005

Davidson & Associates v Jung

According to this article, the 'Federal Copyright Act (US) did not preempt [a] computer game manufacturer's ... breach of contract claims [which alleged] violations of [a] software's "terms of use" and "end user license agreement" by reverse engineering [a] game [application]'. Further, the 'defendants' reverse engineering, undertaken to create [an] independent multiplayer ... gaming network, also violated [the] Digital Millennium Copyright Act's anti-circumvention and anti-trafficking provisions.'

Posted by Jaani at 7:02 PM | Comments (0)

October 6, 2005

British Computer Scientist Will Monitor Microsoft's Compliance With Antitrust Ruling

The European Commission appointed computer scientist Neil Barrett on Wednesday to oversee whether Microsoft is complying with an antitrust ruling that it abused its near-monopoly in desktop computer systems to shut out rival software makers. Also Wednesday, EU Competition Commissioner Neelie Kroes met with Microsoft's Steve Ballmer to discuss antitrust issues. Earlier this month, Kroes said her department had received informal complaints about Microsoft, perhaps leading to the opening of a new case.

Posted by Jaani at 9:59 PM | Comments (0)

Personal injury retrial should examine all issues: High Court

The High Court has ruled that a personal injury case involving a man who became a quadraplegic after a mishap at Middle Harbour Yacht Club should be retried.

Posted by Jaani at 9:58 PM | Comments (0)

'Court Says Bloggers Have Rights Too'

I haven't been able to find a case cite, but this NYTimes story lays out the details. It is good to see that a court has recognized that blogs are important tools that allow us to express our First Amendment rights. Read on to get a quick summary:

The Delaware Supreme Court ruled Wednesday that if an elected official claims he has been defamed by an anonymous blogger, he cannot use a lawsuit to unmask the writer unless he has substantial evidence to prove his claim.

That standard, the court said, "will more appropriately protect against the chilling effect on anonymous First Amendment Internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or unmask their critics."

Posted by Jaani at 9:56 PM | Comments (0)

Another Victim Countersues RIAA Under RICO Act

devnulljapan is one of many users to let us know that another single mother is taking the fight to the RIAA. More than just standing up to them however, Tanya Anderson has decided to go on the offensive and countersue. In a move that aims to put the RIAA on the same level as your average organized crime syndicate the suit identifies violations of the Oregon RICO Act in addition to 'fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices.' Ms Anderson has also demanded a trial by jury.

Posted by Jaani at 9:55 PM | Comments (0)

RIAA Sues a Child

dniq writes "You may remember the previously posted story about a case against a mother, which was dropped by the RIAA right after her lawyers moved to dismiss the case. Well, guess what? The RIAA has brought a lawsuit against the mother's daughter -- now a 14 year old girl -- and moved for appointment of a guardian at litem."

Posted by Jaani at 9:55 PM | Comments (0)

Woman countersues RIAA for fraud and deceptive business practices

Would the RIAA really attempt to defraud a disabled woman out of her meager social security income, or is 42 year old Tanya Anderson a gangster rapping pirate in search of an easy way out?

Posted by Jaani at 9:45 PM | Comments (0)

September 22, 2005

Chip Maker Receives $35 Million in Damages

'The Ninth Circuit Court of Appeals has affirmed a $35 million judgment against Clear Logic for violation of the Semiconductor Chip Protection Act 1984 (US). The Court concluded that the jury properly rejected Clear Logic's argument that it had legitimately reverse engineered plaintiff Altera Corporation's mask work design to create cheaper application-specific integrated circuits.'

Posted by Jaani at 10:43 PM | Comments (0)

Authors Guild Sues Google over Print Program

'The [United States] Authors Guild has filed a class action lawsuit against Google. The lawsuit claims that Google's scanning and digitising of library books as a part of the Google Print Project constitutes "massive copyright infringement". In addition to the lawsuit, The Authors Guild has also issued a press release to explain its actions.'

'This is a plain and brazen violation of copyright law', Nick Taylor, president of the New York-based Authors Guild, said in a statement. 'It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.'

Susan Wojcicki, vice president of the print library project at Google, made this response:

...Google doesn't show even a single page to users who find copyrighted books through this program (unless the copyright holder gives us permission to show more). At most we show only a brief snippet of text where their search term appears, along with basic bibliographic information and several links to online booksellers and libraries. ...

Google respects copyright. The use we make of all the books we scan through the Library Project is fully consistent with both the fair use doctrine under US copyright law and the principles underlying copyright law itself, which allow everything from parodies to excerpts in book reviews. ...

Just as Google helps you find sites you might not have found any other way by indexing the full text of web pages, Google Print, like an electronic card catalog, indexes book content to help users find, and perhaps buy, books. This ability to introduce millions of users to millions of titles can only expand the market for authors’ books, which is precisely what copyright law is intended to foster.

More commentary by Cory Doctorow and others over at Boing Boing. A reader commented:

Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher. University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security.

If we expect the production of good scholarship to be a viable, it has to be paid for somehow. I work hard to keep the price of our books as low as possible because I understand accessibility is directly related to cost, but until someone is willing to completely sponsor our work, we must protect our ability to break even.

Mr Doctorow's response:

Universities already have a broad exemption to copyright under fair use doctrine. That they compensate authors at ALL for photocopying and web-posting excerpts from copyrighted represents a good-faith compromise, not a failure. And as to "restrictions" -- damned right universities don't use DRM! ...

For starters, Google Print won't take a penny away from a publisher: what publishers are complaining about is that Google's figured out a way to make money from books and isn't proposing to cut them in for a share, but they're treating this new money that Google's making as though it comes out of their end.

As to supporting scholarship, how about our state-supported University system, then? Oh, and the new sales generated by Google Print? Both of these go a long way to supporting scholarship without requiring that universities be denied access to searachble indices of their own bought-and-paid-for collections.

Posted by Jaani at 10:43 PM | Comments (0)

September 18, 2005

US Lawsuit against Google et alios Remanded to State Court

'The 8th US Circuit Court of Appeals agreed with a lower court that a class action lawsuit against Google and other Internet companies belongs in state court. The defendants had asked that the case be tried in federal court, citing a new federal law. But the suit, which claims the Internet companies charged clients for advertising traffic not generated by bona fide customers, was filed before President Bush signed legislation that funnels most class action lawsuits to federal court.'

Posted by Jaani at 12:27 PM | Comments (0)

More on Hurricane Katrina Damage Lawsuits

Overlawyered observes: 'Glad to see the bar's priorities are in order. "At least one suit was filed in the last week, and plans were being sketched out for many more. The targets include real estate agents, insurance companies and federal agencies. The potential damages being sought range from a few thousand dollars to billions of dollars." One plaintiff's law firm is suing a real estate agency under price-gouging statutes because a homeowner raised the price of his Baton Rouge house over the old list price, which can't be a comforting thought for anyone who owns real estate in a rising market. Others, including the infamous Dickie Scruggs, seek to sue insurers in "thousands of suits," arguing that flood exclusions in policies do not apply because a house totallly destroyed by a flood was partially damaged by wind, and that the insured should get the full amount.'

Posted by Jaani at 12:22 PM | Comments (0)

Class Action Lawsuit Filed against Louisiana Oil Companies viz Hurricane Damage

'The AP reports that a "lawsuit seeks what attorneys say could be billions of dollars from a long list of oil companies for damages to wetlands that allegedly would have softened Hurricane Katrina's blow."'

Posted by Jaani at 12:22 PM | Comments (0)

September 15, 2005

Jurors, Watch the Screen

As technology has become less expensive and more reliable, lawyers are coming to grips with the fact that jurors, after years of processing graphic information on television, seem to understand and appreciate skillful computer-assisted presentations. Courtroom shows, however, may just be the beginning. Consider the "ultimate e-brief."

Posted by Jaani at 12:58 AM | Comments (0)

3rd Circuit: No New Trial in Internet Libel Case Against 'New York Times'

In a victory for , the 3rd U.S. Circuit Court of Appeals has refused to grant a new trial in a "defamation by implication" libel suit brought by a Philadelphia pharmacy, Franklin Prescriptions Inc., that accused the newspaper of harming its reputation by using an image of its Web site to illustrate an article about illicit online drug sales -- even though Franklin was never mentioned in the text of the article.

Posted by Jaani at 12:58 AM | Comments (0)

'AT&T v. Microsoft': Patent Infringement and Exported Software

In light of the Federal Circuit's decision, attorneys Richard Raysman and Peter Brown discuss infringement under §271(f) of the patent law as well as how the decision changes the legal landscape with respect to the export of computer software. The ruling is important to counsel responsible for assessing possible patent infringement, as well as software companies that increasingly rely on outsourcing to distribute software in foreign markets.

Posted by Jaani at 12:58 AM | Comments (0)

Google and Microsoft both claim victory in court

News from the Ministry of Truth...

The cliché that no one wins in court but the lawyers was turned on its head yesterday when both Google and Microsoft claimed victory in their ongoing fight over former Redmond employee Kai-Fu Lee.…

Posted by Jaani at 12:57 AM | Comments (0)

September 13, 2005

Australia's Seven Network Launches $775 Million Lawsuit Against Rivals

TV broadcaster Seven Network Ltd. launched a landmark $775 million lawsuit Monday against the Australian subsidiary of Rupert Murdoch's News Corp. and other top media and telecommunications firms, alleging they conspired to bring down Seven's cable sports channel. More than 50 lawyers and legal assistants packed Sydney's Federal Court on Monday for the start of the case, which has been described as one of the largest media trials in Australian history.

Posted by Jaani at 8:48 PM | Comments (0)

September 10, 2005

Don't Like Their Decision? Sue the Commission!

‘BRUSSELS — Microsoft has filed a lawsuit against the European Commission in a European Union court, the software giant said Wednesday, detailing the latest wrangle in its long-running battle against competition authorities in Brussels.’

‘Microsoft has filed an application for annulment with the Court of First Instance specifically concerning the issue of broad licenses for the source code of communications protocols’, a company representative said.

‘The Commission imposed sanctions against the software giant, including a record fine of about USD$621 million (497 million euro) in March 2004, in a case that also covered the bundling of Microsoft’s Media Player with Windows, but the company has not entirely carried them out.

Microsoft challenged the Commission’s decision — a case that has yet to go to hearing — and, separately, tried without success to get the sanctions suspended by the court.’

Posted by Jaani at 10:25 AM | Comments (0)

September 3, 2005

The Elephant in the Courtroom

'To win a trade secrets case, Matthew Powers decided to de-emphasize the secrets part. Although Powers' client, Lexar Media, alleged that 10 of its secrets had been misappropriated, the Weil, Gotshal & Manges partner wanted to keep the whole secrets thing, well, secret. His novel strategy paid off. A jury found that eight of Lexar's 10 trade secrets had been misappropriated by Toshiba, and Lexar was awarded $465.4 million.'

Posted by Jaani at 8:36 PM | Comments (0)

September 2, 2005

High Court of Australia Upholds Advertising Ban on Personal Injury Lawyers

Personal injury lawyers have lost their bid to ease advertising restrictions in NSW, with the High Court rejecting claims that the ban is constitutionally invalid.

Posted by Jaani at 11:28 AM | Comments (0)

US Federal Court Upholds Validity of EULAs; DMCA Prevents Reverse Engineering Software

'St Louis, MO -- In a decision with dangerous implications for competition, consumer choice, reverse engineering, and innovation, the 8th Circuit Court of Appeals today ruled against three software programmers who created a free, open-source program to allow gamers to play games they purchased with others on the platform of their choice. The court held that the Digital Millennium Copyright Act ('DMCA') prohibited the reverse engineering needed to create the program and that "click-wrap" and "browse-wrap" licenses are enforceable to prevent reverse engineering.

The software program, called BnetD, allowed legitimate Blizzard videogame owners to set up their own multiplayer games on the Internet and enjoy dozens of additional features instead of being locked into Blizzard's proprietary Battle.net game service. The Electronic Frontier Foundation ('EFF'), co-counsel for the programmers, took the case to defend the fair-use right to reverse-engineer software and create new programs that interoperate with older ones.

"This ruling is bad for gamers, but it could also be terrible for the software industry," said EFF Staff Attorney Jason Schultz. "It essentially shuts down any competitor's add-on innovation that customers could enjoy with their legitimately purchased products. Add-on innovation is one of the hottest areas of creativity and economic growth right now in software, and this decision will slow investment and development in that field."

The court ruled that Congress' explicit protections for reverse engineering and add-on innovation in the highly controversial DMCA are too narrow and weak to protect innovators from lawsuits when the software they create is used for illegal copying, even if the copying occurs without the knowledge or participation of the program's creators. The court also ruled that clicking on a EULA's "I Agree" button, common when installing almost any software product purchased today, can be used to force both consumers and competitors out of the marketplace for add-on innovation.

Posted by Jaani at 11:27 AM | Comments (0)

August 29, 2005

Court Hears Refugee's Compensation Case

The case of a young Iranian man seeking compensation for the time he spent in two of Australia's immigration detention centres has started in the Supreme Court in Sydney.

Posted by Jaani at 11:06 PM | Comments (0)

August 27, 2005

Sellers of Petrol to Drunk Drivers May Be Liable for Subsequent Accidents

'"The [Tennessee] Supreme Court has ruled that store owners can be sued for causing injuries in a drunken driving accident if they sold gas to an intoxicated driver." Employees at an Exxon station on Rutledge Pike in Knoxville allowed Brian Lee Tarver to buy $3 worth of gas and even helped him pump it when he seemed unable to work the controls. Victims of his subsequent drunk-driving crash sued the station.

Posted by Jaani at 9:02 PM | Comments (0)

Judge Approves Settlement in iPod Suit

'According to AppleInsider, on Thursday a San Mateo County judge granted final approval of a settlement in the iPod class action suit that affects as many as 1.3 million iPod owners who may have been victim to poor or defective batteries. Under the settlement, owners of either a first- or second-generation model are entitled to $25 cash or $50 credit at the Apple store. Owners of third-generation iPod models are entitled to a free replacement battery if the battery fails. The deadline for submitting a claim is September 30, 2005. Lawyers say the settlement could cost Apple as much as $15m.'

Posted by Jaani at 9:01 PM | Comments (0)

August 24, 2005

Ruling Imminent in Microsoft's South Korean Anti-Trust Litigation

South Korea's antitrust watchdog said it would probably rule next month on allegations that software giant Microsoft engaged in unfair trade practices.

Posted by Jaani at 12:08 PM | Comments (0)

August 18, 2005

Lexar Settles Patent Dispute with Memorex

SAN FRANCISCO (Reuters) - Lexar Media Inc said on Monday Memorex has agreed to settle a patent infringement case related to CompactFlash cards sold by Memorex prior to November 2004, sending Lexar shares up 1.7 per cent.

Lexar claimed in its 2001 lawsuit that certain Memorex cards infringed a number of its flash memory patents.

In March, Toshiba Corp, one of the world’s largest chip makers, was ordered to pay Lexar $465 million in punitive damages after a California jury found it had stolen Lexar trade secrets related to a certain type of flash memory, which is used in digital cameras and [cameraphones].

Source: Reuters

Posted by Jaani at 10:39 PM | Comments (0)

Click Fraud Claims Drive Lawsuits

Companies who watched profits disappear due to allegedly fraudulent clicks on their ads aren't just taking aim at the clickers. They're going after the search engines as well. Commentary by Adam L Penenberg.

Posted by Jaani at 9:46 PM | Comments (0)

One more Winnebago thought: the Ford Pinto lawsuit urban legend

Kudos to John Cole, who evaluated the evidence and withdrew his endorsement of the LA Times story. One of his commenters protests: "I’ve certainly heard [the Winnebago case] presented as true." Well, no doubt. That's...

Posted by Jaani at 9:44 PM | Comments (0)

August 14, 2005

Class Action Filed Over Google Overcharging

A group of advertisers last week filed a class action suit against Google, accusing the search engine of overcharging advertisers who use its paid search advertising services, according to Reuters.

Posted by Jaani at 4:38 PM | Comments (0)

August 4, 2005

Island Software and Computer Service, Inc v Microsoft Corporation

District court's summary judgment finding of "willful" copyright infringement was inappropriate absent evidence conclusively demonstrating actual, rather than constructive, knowledge of software copyright violation.

Posted by Jaani at 12:28 PM | Comments (0)

August 3, 2005

1-800 Contacts, Inc v WhenU.com, Inc

Internet marketing company did not "use," and thus did not infringe, contact lens distributor's trademarks by including distributor's Web site address, which was almost identical to trademarked name, in unpublished list of terms used to trigger "pop-up ads"; nor did company infringe distributor's marks by causing competitors' separate, branded pop-up ads to appear on computer user's screen along with distributor's Web site window.

Posted by Jaani at 12:28 PM | Comments (0)

July 28, 2005

SBC Inc v Federal Communications Commission

FCC's elimination of functional equivalency test in determining proper compensation between exchange carriers, in response to carrier's letter inquiry, merely clarified pronouncements of earlier order and thus did not constitute legislative rule-making in violation of Administrative Procedures Act.

Posted by Jaani at 12:28 PM | Comments (0)

June 28, 2005

MGM v Grokster Handed Down

Predictable result, interesting ratio.

Posted by Jaani at 12:24 PM | Comments (0)

February 27, 2005

Parents to Fight Order Terminating Life-Support

The father of a brain-damaged Florida woman said a judge’s ruling Friday ordering his daughter’s feeding tube to be removed March 18 is ‘a temporary relief.’

The parents’ attorney, David Gibbs, said he will appeal to the US Supreme Court contending that [his daughter], who has been severely brain-damaged since she suffered heart failure in 1990, is being denied her religious liberty rights. Gibbs said he and his legal team will work to prevent the feeding tube from being removed on March 18.

Schindler and his wife, Mary, say she could be in a minimally aware state and that her husband, who is living with another woman, may not have their daughter’s best interests at heart. Gibbs has filed a motion seeking to have Michael Schiavo removed as Terri Schiavo’s guardian.

A top Vatican official, Cardinal Renato Martino, on Friday called for Schiavo to be kept on life support. The Schindlers have disputed [that] their daughter would want to forgo treatment. They also have said that as a Roman Catholic, she would oppose euthanasia, which is against church teachings.

Source: CNN News

Posted by Jaani at 3:29 PM | Comments (0)

February 20, 2005

Tourists Sue Authorities, Hotel Chain over Tsunami Disaster

Most suspected it would happen eventually, but probably not in this form. In what the plaintiffs’ lawyers are calling both conceptual art project and ‘the mother of all lawsuits’, an action has been filed to determine whether American and Thai authorities and a French hotelier acted negligently in preparing for and dealing with last year’s tsunami disaster.

I’m not sure just how seriously a frivolous negligence lawsuit like this ought to be taken — let alone an action that has its own website (and let alone a website whose domain name seems designed to reap Google advertising revenue rather than actually publicise the action). With this in mind:

Nineteen German and Austrian tourists are filing a lawsuit against the government of Thailand and the French hotel chain Accor over the Indian Ocean tsunami… Another defendant is the National Oceanic and Atmospheric Administration; plaintiffs complain that NOAA’s Pacific Tsunami Warning System failed to issue a warning for a tsunami in a completely different ocean. (Aside from the fact that NOAA owes no duty to vacationing Germans in Thailand, NOAA did try to notify other countries of the tsunami potential of the earthquake.)

The action is clearly without legal merit. Further, if the lawyers representing the plaintiffs are as articulate as this AFX News piece suggsts, they aren’t going to get very far:

‘We found that serious lapses [sic] were committed,’ said Herwig Hasslacher, one of the three lawyers for the group. They said the suit was not, at present, designed to demand compensation but to uncover evidence that would prove negligence.

The suits are likely to be dismissed quickly. According to the article, though, this isn’t the first time Fagan (senior counsel for the plaintiffs) has proceeded with such costly (and legally frivolous) publicity stunts: he previously brought an action on behalf of holocaust survivors. Whilst many will no doubt take offence, such lawsuits are invariably amusing (at least for those who don’t have to preside over them).

Posted by Jaani at 9:31 AM | Comments (0)

'This Is An Ex-Parrot!'

According to The Australian and the Globe and Mail, life is imitating Monty Python in this amusing recreation of the famous parrot sketch — only this avian dispute has ended up in court:

An indignant Israeli is suing a pet shop that he says sold him a dying parrot, reports the Ma’ariv newspaper. Itzik Simowitz of the southern city of Beersheba contends the shop cheated him because the Galerita-type cockatoo not only failed to utter a word when he got it home, but was also extremely ill. Mr Simowitz adds that the shop owner assured him the parrot was not ill but merely needed time to adjust to its new environment.

I’m sure pet shop owners delight in uttering the phrase, ‘No no he’s not dead, he’s, he’s restin’! Remarkable bird, the Norwegian Blue, idn’it, ay? Beautiful plumage!’, when faced with such complaints.

Posted by Jaani at 9:21 AM | Comments (0)

February 14, 2005

Webmasters Defend Insider Sources against Apple Subpoeanas

‘Apple has shown an increasingly litigious face in recent months, targeting news site Think Secret a week before the start of Macworld San Francisco last month, and going after two additional sites in December 2004 for their reporting on prerelease builds of the upcoming Mac OS X 10.4 (Tiger). In the case of the Tiger leak, Apple subpoenaed Apple Insider and O’Grady’s PowerPage in an attempt to get them to disclose the identities of those providing inside information.

Those sites are fighting back, as attorneys from the Electronic Frontier Foundation defending them filed a brief in Santa Clara Superior Court arguing that the subpoenas violate First Amendment protections long enjoyed by journalists. Saying that the sites “cannot be compelled to disclose the source of any information procured in connection with their journalistic endeavors, nor any unpublished information obtained,” the lawyers argue that journalistic privilege applies equally to print and online publications.’

Source: Eric Bangeman, Ars Technica

Posted by Jaani at 9:57 PM | Comments (0)

December 3, 2003

Not-So-Silent Night

An Austrian trade union has called for restrictions upon the duration for which department stores may play Christmas carols as background music.

As a long-time busker (violin), I know only too well that the best money always comes from Christmas carols, so I can see why department stores are keen to permeate every corner of their premises with the all-pervading sense of guilt conveniently provided by musical invocations of generosity and the consumerist rationalisations to which they give rise.

On the other hand (and again speaking from the experience of playing them for hours on end), the infuriatingly simple melodies and lurid images of early childhood conjured by the darstedly tunes do indeed have the potential to be a kind of "psycho-terrorism".

I'm sure there is a movie about a deranged store worker engaging in a bout of pre-Christmas commercial terrorism. Frankly, with music like this, who can blame them?

Posted by Jaani at 12:29 AM | Comments (0)

November 26, 2003

Australian ISP Liability Under Review

Mere weeks after the sentencing of the three operators of an MP3 download website (who escaped jail time), the Australia Record Industry Association (ARIA) has launched another action - this time against directors and employees of Com-Cen, an Australian ISP.

The ISP is alleged to have breached copyright by hosting (though not operating) a similar MP3 download site called mp3s4free.net. Based on the sketchy information available, the alleged breach lies in placing a link to a site at which infringing materials were made available by the site operator, one Stephen Cooper, to third parties. In other words, a hyperlink much like this one was probably placed on the ISP's member list page, similar to Melbourne University's student homepage list, and the linked material was infringing.

ISPs should not be overly concerned by this suit, which is ultimately little more than an optimistic test case. I would be very surprised if the plaintiffs were to succeed, for four reasons.

Internet Service Providers

Firstly, the defendants would draw attention to the nature of their business and the fact that the contents of a website changes, by virtue of its ephemeral nature, very frequently and without notification. As a result, it would be a most impossible task for an ISP as small as Com-Cen to manually check (a keyword filter would clearly be insufficient, and possibly degrade performance) all their hosted sites at frequent intervals, especially when this number spans into the thousands.

Though ARIA may yet argue that the infringements were present on the site over the entire course of a year (meaning that the time in which a single inspection could have taken place made inspection reasonable), this argument must fail in relation to the hyperlink breach (hosting the site is a separate matter, however), as the intention of s43A of the Copyright Act 1965 (Cth) (which allows the temporary reproduction of a copyrighted work for transmission, except where the transmission is itself an infringement) is clearly to limit the scope of internet service providers' liability.

Though s43 has been the subject of some confusion, the Attorney-General's department has made statements to the effect that s43A will operate to curtail ISP liability, prompting a review of the Digital Agenda (Copyright) Act 2000 (Cth) by Australian firm Phillips Fox, which concluded that the act may not take adequate measures to protect the interests of service providers. However, their recommendations will not be implemented until next year, leaving the window open for test cases such as this one.

Reasonableness of Self-Monitoring

The very notion of having to monitor linked items is repugnant to the public interest: it would degrade the content of many websites (who would adopt defensive hyperlinking practices), undermine the interconnectivity of the internet, and reinforce the information hegemony of a small number of major sites. Imagine if I had to actively monitor the many hundreds of sites I link to on this site! No doubt half of them are broken already, but of those that remain, I'm sure at least one has been bought by a spammer/pornographer/pirate. Do I care? Nope - the risk of being exposed to these materials is inherent in internet usage. Should I care? Of course not.

Pecuniary Loss

Secondly, the plaintiff's claim of $300 million for lost revenue over the course of the year is optimistic to say least. Of 140 million files transferred throughout the year (an uncontested figure, though not all necessarily MP3s), let's say 90 million were infringing (the others being non-music files or legal copies). Even assuming every pirated song would have been purchased by loyal consumers (spurious at best) from a reputable dealer, lost profits still could not exceed $123.75 million at current exchange rates.

What ARIA, like the RIAA in its more ambitious claims, is forgetting here is there is unlikely to be a one-to-one correspondence between downloads and lost revenue. After all, if every user who used P2P went out and bought the same songs they downloaded, the record industry would - according to current KaZaA statistics - be up about AUD $2 578 428 168 for today alone! (The resulting annual loss is just shy of $1 trillion.)

ISP Profit

Thirdly - and critically - the plaintiff alleges that the ISP actually profited from the transfer of the infringing materials. A spokesperson for ARIA said that at least twenty percent of ISP revenue was a product of illegal downloading, and that the practice was nothing less than "trafficking in illegal music":

Com-Cen need only point to the ridiculously high cost of data transfer across Australian telephone and broadband networks to demonstrate the absurdity of this argument. Data transfer costs money, lots of of money. Consequently, even if the site prompted additional data transfers, it doesn't in any way enhance the standing of the defendent (though it may advantage network carriers, such as Telstra and Singtel).

At any rate, all of Com-Cen's dialup plans are unlimited access anyway, so they have nothing to gain by linking to a site which may or may not increase data transfer from their customers and others. The only advantage they might derive is from hosting the website itself, and the associated charges for the server and its bandwidth allowance. However, these charges would be the same whether the content transferred was illegal or not, and it has long been accepted that internet hosts are not expected to actively monitor data transfer for infringing material.

Policy Considerations

Finally, there is the fact that ISPs and web hosts provide a service with which customers are free to do what they like, and for which they are technologically and operatively responsible. To hold the purveyor of the service responsible is akin to holding a local highway authority liable for the actions of drivers, or a car rental company for the conduct of its lessees. Just as holding a highway authority liable for the actions of its users would send rates and registration fees skyrocketing, holding ISPs and web hosts liable for the actions of their subscribers and the content of third party websites may prompt a rapid inflation of internet access prices and ultimately drive the local hosting business overseas. I'd be interested to hear some more accurate analogies, if anyone can think of any.

Posted by Jaani at 1:13 PM | Comments (0)

October 28, 2003

Non-Biological Father Seeks Damages

A Melbourne man has sued his ex-wife for over $75 000 in child support payments after DNA testing revealed the child was not conceived by him. However, the Federal Magistrates Court seems to have reservation about granting the step-father a 'refund':

Provisions in the Family Law Act seem to suggest that a person acting in loco parentis may remain financially responsible for a child's wellbeing even if they are not the biological parent. However, evidence was presented to the Court that the mother had her doubts about the child's origin, but told her husband the child was hers because she thought it would have "more of a future" than with the biological father.

Previous case law supports a finding in the step-father's favour: in November 2002, similar facts lead to an award of $30 000 in damages; the key element in that case was the mother's intention to deceive, a significant element in the present case. The parties seem to be forgetting the welfare of the child, however. What does happen to the child rejected by his step-father and estranged from his real one, with a mother too empoverished by damages payments to pay the rent? (Though I suppose the same could be said of the step-father.) No doubt feminists would have something to say about the likely verdict here...

Posted by Jaani at 12:45 PM | Comments (0)

September 19, 2003

Consumers Challenge Deceptive Hard Drive Marketing

Throughout the day today I'll be presenting a brief overview of some current happenings in IT litigation; interesting issues continue to be explored by various legislatures, and there are an increasing number of IP/IT cases being heard in Appeal Courts. My Applied Mathematics lecture was cancelled without notice this morning, so I have 3 hours of waiting around until my next lecture. It's the last day before the mid-term break, too...on with the news!

First off, a lawsuit over a power of ten: the definition of 'gigabyte' is being challenged in a class-action law suit against several high-profile hard drive manufacturers. The plaintiffs claim they were mislead into believing that a hard disk's capacity was measured in lots of 1024MB, instead of the actual 1000MB - the 'marketing gigabyte' long abhored by computer enthusiasts - and seek an injunction against the 'purportedly unfair marketing practices'.

This is actually a bigger concern than it sounds, with larger hard drives having their sizes reduced by as much as 10GB owing to the difference in measurement. Of course, I doubt the RIAA would mind too much about consumers' losing out on storage space, which they mustillegal music downloads. Ahem.

Posted by Jaani at 10:48 AM | Comments (0)

September 16, 2003

Punitive Damages

Another quick Tuesday afternoon roundup, meticulously crafted after a long day at university. One can only debate the efficacy of access to the justice system so many times...

On with the show:

• Domain names: 50 000 free .id.au names have been released by aUDA to promote the new local domain suffix. Get yours now (then host it with Jstar Web Hosting, who sponsor this site).
• More high resolution satellite photos, this time of Hurricane Isabel (set to wreak havoc on an Eastern US seaboard near you!)
• A United States jury has awarded a plaintiff USD $2.15 million in damages for being fired after missing work for 3 days. Even though he missed work for a religious holiday and his child's birth, the $2 million in punitive damages seems overly harsh on the employer. I hope this gets overturned on appeal.

Posted by Jaani at 5:52 PM | Comments (0)

August 22, 2003

Renegade Christian

Moore CJ of the Alabama Supreme Court is stepping up his efforts to retain a 2400kg statue depicting the Christian parable of the ten commandments in the state courthouse. The order of a federal judge to remove the statue recently lapsed, inciting the other eight justices of the Alabama Supreme Court to order its immediate removal.

With the greatest respect, Your Honour, civil independence does not necessarily give rise to judicial inventiveness; important reform is accomplished by legislative intervention. Courts today play a lesser role in the process of law creation and reform than those of the 18th and 19th centuries, and it is instead tasked to the legislature to formulate the rules which courts are to apply. While the Court has a legitimate (and very important) role to play in reviewing and applying the Acts of Parliament, to dispute the verdict of a higher court on such spurious grounds as 'religious conscience' (if - with respect -- there is such a thing) is far more destructive to the rule of law than blind subservience.

This is judicial politics at its lowest, and has no place in the courts, which are supposed to be arbiters of law - not a glorified moral consciousness. While public appointment may be more democratic (since it allows judges to better reflect community values), campaigns such as this serve only to reduce the public's faith in the apolitical nature of the legal system.

Perhaps even more alarming is that this is far from uncommon. Indeed, with many judges marketing themselves as crusaders for one particular religious cause or another, the impartiality of the judicial process must be brought into question. When a Judge (the Chief Justice, no less) favours Christian ideals over the orders of a superior Court, non-Christians must wonder whether they would be disadvantaged by appearing in a Court over which he presides. Though the reasoning of individual judges is undoubtedly influenced by their individual predilections and religious leaning, this is exacerbated by public campaigning: Moore CJ has an election 'promise' to fulfil.

Even countries that make judicial appointments by the executive risk creating a judiciary that reflects only a small minority of their jurisdiction. (Personally, I would question the efficacy of this ideal.) However, with other judicial scandals regular occurrences in the United States, careful review of the judicial appointment process appears warranted.

Posted by Jaani at 4:53 PM | Comments (0)

August 13, 2003

Legal Ruminations

Quite a few movers and shakers this week, with a major (USD $521 million) settlement being awarded to Eolas Technologies Inc and the University of California, the co-plaintiffs in a recent patent infringement case against Microsoft Corporation.

The plaintiffs alleged that Internet Explorer's "plugin" feature, which allows third-party applications to add functionality to the web browser, infringes upon US Patent No 5838906, granted in 1998 to Eolas. Unsurprisingly, Microsoft has appealed the decision. Microsoft's stock remained steady.

Linux licensee Red Hat Inc has spiced up the recent SCO controversy by filing a counter-suit. Red Hat is seeking a preliminary injunction against SCO to prevent them from sending threatening letters to Red Hat's customers, which claim that their Linux product is in violation of SCO's intellectual property. It will be interesting to see how this pans out.

In more interesting news, online auction vendor eBay has requested Google to bar its users from placing paid keyword advertisements which utilise eBay trademarks, including the eBay name. Spokesperson Kevin Pursglove described the move as a measure to prevent "third-party advertisers [from] abus[ing] the intellectual property of the company."

The request sparked concern that online businesses related to eBay (such as online auction management services, escrows, and proxy bidding providers) would be unable to utilise Google's popular AdWords programme to promote their services when users enter queries related to their area of trading.

This matter interests me for three reasons: firstly, it provides an opportunity for courts to assess the relevance of existing trademark law to the context of internet marketing. Currently, offline companies seem none too happy to allow their trademarks to be promoted by another company; examples are department store or supermarket advertisements, which depict particular products and discounted items. To deny reasonable application of this practice in cyberspace seems anti-competitive. It's not as though eBay would lose any revenue to people who offer eBay-related services; in fact, they stand to broaden their customer base.

Secondly, it represents an important juncture in search engine advertising. If it is established that trademarkets may not be used in keyword-based advertising, what implication does this have upon other forms of advertising, such as inline placement? Advertising that is placed inline is indistinguishable from normal pages, but preference is given to paid inclusions when users perform searches (eg Overture). Clearly there are limits to restrictions that may be placed upon online promotion.

Perhaps most ironically, however, this concerns a company who is itself to a large extent reliant upon other companies' trademarks. In addition, eBay itself employs a keyword-based advertising service, allowing auctioneers of wares on eBay to advertise with very few restrictions. Hilarious, I say!

Posted by Jaani at 7:32 PM | Comments (0)

August 1, 2003

Court Rebukes Detention of Children

The Family Court today ruled that detaining children is unlawful. Affirming a previous decision, Justice Strickland said he had "determined prima facie that children are unlawfully in detention and there is a real issue to be tried about that." Counsel for the children applied for their immediate release pending a full trial which is due to begin on September 15.

The balance between an overly cautious judiciary and one which bucks at every decision of Parliament has yet to be found in the Australian courts. While the Family Court techinically has the power to decide a case in contravention to illegitimate legislation, such practices are generally frowned upon as being 'activist'.

At the same time, the need for checks and balances in our administration of government is highlighted by cases like these. Clearly, the reigning majority of the Liberal party in the lower house cannot be allowed to canter out of speed with the views of the public and the international humanitarian community. An active process of consideration and regular invocation of (autonomous) judicial power is necessary if we are to maintain a balanced and representative democracy.

The government is appealing Strickland J's finding to the High Court.

Posted by Jaani at 4:11 PM | Comments (0)