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Goldman on Ticketmaster

Eric’s Technology & Marketing Law Blog asks whether “the public interest got screwed” in the recent big win for Ticketmaster down in Alabama against RMS, a company whose software outsmarted Ticketmaster’s sales system. Copyright infringement was a lynchpin of the holding.

Ticketmaster-LogoI was once consulted on a similar case and I was hoping that it was that same former client that lost this one — because the son of a gun stiffed me on my fee! But because of that experience and the analytical framework I ended up working through while considering similar issues, I’m sympathetic to the defendant there, and to Eric’s take on it, too:

It’s easy to point at RMS and its customers as the bad guys. After all, they are trying to get an unfair advantage in the first-come, first-served allocation of scarce tickets for their economic benefit, with the result that later comers have to pay more to get the same tickets.

But what about Ticketmaster’s role in this situation? They haven’t designed a technologically gaming-resistant allocation of tickets, so they need legal help to solve that deficiency. I also remain suspicious about Ticketmaster’s incentives here, both in setting prices and in policing against ticket allocation gaming. Their motives may not be nearly so consumer-friendly as they try to portray.

Well, no company is as consumer-friendly as it likes to portray itself. But Ticketmaster? Go ahead and Google it. It’s not pretty. On the other hand, is a company really obligated to “design[] a technologically gaming-resistant” business model before it can have recourse to the law to enforce its rights? I don’t think Eric means that, either. Read, as they say, the whole thing, though.

Pleas entered for illegal trafficking of Coke®; plus Ice

The bad people who tried to peddle internal Coca-Cola trade secrets, including samples of a new drink, to Pepsi — only to have Pepsi turn them in — have pleaded guilty to their manifestly stupid actions, according to the Daily Dose of IP Blog by Ice MillerSM attorney Mark Reichel. Hat tip to John Welch for the link to Mark’s blog, which appears comprehensive to say the least. I know I will lift something from there again.  [Nope.  No posts since April 2010.  And he’s gone from Ice Miller.  — RDC]

“Ice MillerSM“? Yeah, it must have seemed like a good idea at the time. They actually were using this on their stationery — some “branding” concept; all the rage five to ten years ago in law firm marketing — until they stopped some time in early 2005. (Let’s just say I have an extensive collection of their stationery.) They’re damned serious lawyers and decided to go back to looking like it.

You can’t blame them entirely; it’s not as if trademarky things don’t happen with law firm names — they do. But when your firm name already sounds like an adult beverage, you may want to keep the branding part a little more subdued.

“The Victorian compromise”

Defamation and reputation management are issues of intense interest at LIKELIHOOD OF CONFUSION®. Obviously cultural context means a lot when considering these two related topics. Here Daniel Solove reviews Professor Lawrence Friedman‘s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy:

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the “Victorian compromise.” The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law — and the police — winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67) . . .

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise — they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that “the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise.” (p. 99). . . .

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It’s ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise “depended on privacy and secrecy.” (p. 215)

Solove highly recommends Friedman’s book. Hypocrisy has always has a role in a society in which sin cannot be eradicated — i.e., any society, including ours, and ones far more ancient than the Victorians (though like so much they may have elevated it to a very high art!). Hypocrisy is the “tribute vice pays to virtue.” I’m not so clear how this has changed, besides the fact that defamation today is widespread and the law, stunned like a deer in the headlights of a swollen First Amendment jurisprudence, acts more or less as if it has no power to prevent it.

Edifice complex

Construction, NYCIt’s the Singularity a-borning!  On the two-year anniversary of my joining Goetz Fitzpatrick LLP, a law firm predominantly focused on construction law, I’ve written a blog post, as a guest of high-octane social-media-juicing lawyer Christopher Hill at his Construction Law Musings blog.

It’s about protecting the trade secrets embodied in a subcontractor’s proprietary technology that are integrated into a larger project.

So go do something constructive, and read it!  And thanks to Chris for the platform.

Pie in the sky

Michael Young:

It is not often a case hits upon two of our favorite topics: Trade secrets and pie. But when it does, mmmmmmmm, it’s good to be an attorney.

And for this reason, we are grateful to Justice Rushing who provided us with a little of both in his recent opinion in Silvaco Data Systems v. Intel Corp. (Calif 6th App. Dist., April 29, 2010), Case No. H032895.

A dainty dish

That’s what Professor Reynolds calls “bloggy goodness” right there.  I’m cutting way back on the sugar, but here, pour a cold glass of whole milk and take a slice of this:

After obtaining [an] injunction [against CSI, an alleged trade-secret thief], Silvaco sued Intel. Why? Because Intel had purchased and was using the software that CSI had created from Silvaco’s source code. The software did not actually contain the source code, but it was using executable, machine-readable code that had been derived (via the compiler) from the source code. Silvaco claimed that by using the software, Intel was “using” its trade secret source code, and hence was in violation of California’s Uniform Trade Secret Act (CUTSA).

Intel begged to differ and filed for summary judgment. Of the many arguments set out in the briefs, one was simply that Intel hadn’t “misappropriated” Silvaco’s trade secret source code. Under CUTSA, to “misappropriate” a trade secret, one must either “acquire,” “disclose,” or “use” the secret.

Silvaco argued that Intel “used” the source code when it ran the software since even though the software was executing the object code, the object code was based on the stolen source code. This is not a wholly frivolous argument.

[I]n granting Intel’s ][summary judgment] motion, the court decided to talk pies and pie recipes. When one bakes a pie from a recipe, he is clearly “using” the recipe, noted the court (to which most bakers would, I presume, agree). But what about the blogger who eats the pie? Is he “using” the recipe? Or just enjoying the fruits (or chocolate creams) of the end product? Mmmmmm.

The court held that the eater of the pie is simply a happy diner…even if he knows the baker stole the pie recipe in the first place. He is not a “user” of the recipe itself:

One who bakes a pie from a recipe certainly engages in the ‘use’ of the latter; but one who eats the pie does not, by virtue of that act alone, make ‘use’ of the recipe in any ordinary sense, and this is true even if the baker is accused of stealing the recipe from a competitor, and the diner knows of that accusation.

Michael pokes a little at the morsel — where, exactly, is the line that defines “use” of a trade secret? — before digging in.  Go on, dig in!  I don’t know about you but I haven’t eaten all day.

UPDATE:  Maybe instead you like cake?