Law.com: Free Speech Trumps Privacy as Comic Satires News, Judge Says http://goo.gl/mag/I0eQr
Wednesday, December 28, 2011
Monday, March 21, 2011
Drunk on Licensing Fees and Patents, Microsoft Has Become a Joke
This article says it all, at least from a non-lawyer's perspective. From a lawyer's perspective, the complaint seems to be a little (a lot?) vague and doesn't really get at exactly how the patents are infringed, but that is said on the basis of not having yet read the complaint. Those three companies will now have to spend many millions of dollars defending themselves from a patent litigation which is by its own Assistant General Counsel's statement, a business maneuver to get Barnes & Noble, Foxconn and Inventec to the table to feed Microsoft some money. From what I have read, there have been ongoing negotiations but they broke down.
Ultimately, the companies named as defendants will end up settling this case for something only slightly more than they would have paid had they not bothered with the litigation in the first place. 98% of cases settle, so the likelihood is that this case will do likewise.
Patents permit a monopoly on certain technological processes and methods, but the quotations from the lawsuit as to how the technologies violate Microsoft's patents are surely far too broad, for the reasons stated by the writer in this article on Techcrunch.
What will this lawsuit cost Microsoft in terms of bad PR? Are they hurting their own business? I would love to have been a fly on the wall in the meeting in which it was decided to pursue this litigation. I'm not just poking fun - I mean it - there had to have been some serious consideration paid to the negative publicity that this lawsuit was going to engender as well as other business issues.
It will be interesting to follow this lawsuit on PACER.
Ultimately, the companies named as defendants will end up settling this case for something only slightly more than they would have paid had they not bothered with the litigation in the first place. 98% of cases settle, so the likelihood is that this case will do likewise.
Patents permit a monopoly on certain technological processes and methods, but the quotations from the lawsuit as to how the technologies violate Microsoft's patents are surely far too broad, for the reasons stated by the writer in this article on Techcrunch.
What will this lawsuit cost Microsoft in terms of bad PR? Are they hurting their own business? I would love to have been a fly on the wall in the meeting in which it was decided to pursue this litigation. I'm not just poking fun - I mean it - there had to have been some serious consideration paid to the negative publicity that this lawsuit was going to engender as well as other business issues.
It will be interesting to follow this lawsuit on PACER.
Thursday, May 27, 2010
For Businesses, Bully Lawsuits May Pose New Threat
Who's afraid of the big, bad boss?
A significant number of U.S. workers say they are— and soon those in New York may be able to sue their employers, including small businesses, for any suffering they experience at the hands of a toxic boss or other workplace bully.
Earlier this month, the Empire State's Senate passed a bipartisan measure that would allow workers who've been physically, psychologically or economically abused while on the job to file charges against their employers in civil court. The bill applies to organizations of all sizes, unlike other employee-friendly laws that exempt small businesses, such as the federal government's Family and Medical Leave Act. It also holds employers responsible for the bullying of workers by colleagues and not just supervisors.
![[sbbully2]](https://lh3.googleusercontent.com/blogger_img_proxy/AEn0k_sJitANpnJHEiRhFN4GDYVXT5LV_mpl26TSzmyJYlHWA7aWzNqWAR-e6DYxAluyKm7YqjIYjBYV0CdN_NdkYzZkVV4ZFosALJ8uUEbw8L5IE7-osgTTPi-TEbKTK-Kvp7g3nSzgq1_HJQUBN-2DOncG5w=s0-d)
Scott Zeier Employees at Road Science LLC, which has a policy against jerks.
In addition to New York, 16 other states have introduced legislation in recent years aimed at curbing workplace bullying, but none have become law. New York's passage by the state's Senate is considered significant because the issue is generally deemed a liberal cause; the state's Senate is made up of a slight Democratic majority and one of the bill's two leading sponsors is Republican. The bill next moves to a vote by the labor committee of the state's Democratic-majority Assembly at a to-be-determined date.
Business owners nationwide should take note, as a chain reaction is likely to ensue if the measure becomes law, says Jennifer Rubin, a partner in the employment-law practice at New York law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. "It's only a matter of time before this trends to other states," she says. "It's politically popular."
New York's anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a "reasonable person" would find threatening, intimidating or humiliating.
Mathew Tully, founding partner of Tully Rinckey PLLC in Albany, N.Y., says he's concerned that his 77-employee law firm could get sued as a result of the bill because it operates within a high-pressure environment. "Generally, our employees are acting in a professional manner, but every so often there may be a burst of anger," he says.
On the flip side, Mr. Tully figures that his firm would likely see an increase in demand for its legal services if the bill were to become law, as he's already heard from more than a dozen clients seeking advice on how to avoid litigation. "It's going to drum up a lot of business for us," he says. "This is almost guaranteed to flood the courts."
Road Science LLC, a Tulsa, Okla., technology company with 110 workers, pledges in its employee handbook to maintain a "jerk-free" culture. Anti-bullying bills were proposed—but never passed—in Oklahoma in 2004, 2007 and 2009. Frank Panzer, Road Science's chief executive, says he opposes such legislation because it could prompt false claims from workers. "The danger is you create a victim mentality," he says. "Just because you're being disciplined doesn't mean someone's bullying you. A lot of (managers) are just very forthright. If they feel it, they say it. They don't have much tact."
According to New York lawmakers, between 16% and 21% of employees have experienced health-endangering workplace bullying, abuse and harassment, and such behavior is four times more prevalent than sexual harassment.
The problem is just as common in small businesses as large ones, says Wayne A. Hochwarter, a management professor at Florida State University's College of Business, who surveyed 980 workers in March and April on the topic. One third of respondents said they work for companies with about 100 employees or less, and of those, 23.5% reported experiencing supervisor bullying on a weekly basis, compared with 21.3% of the other two-thirds of respondents who said they work for larger organizations.
To be sure, New York's anti-bullying legislation says that employers may not be held liable if they take steps to prevent or promptly correct abusive behavior. Small-business owners should therefore be sure to have a policy that prohibits bullying by both supervisors and colleagues, says Rick Gibbs, a senior human-resources specialist for Administaff Inc., a Kingwood, Texas, human-resources-outsourcing firm. Owners should also create ways for employees to notify them about instances of abuse, such as by installing an anonymous hotline.
![[sbbully1]](https://lh3.googleusercontent.com/blogger_img_proxy/AEn0k_ttVyB39I3AIPeGyyGcVsAiIKtN-kehKlZ3QxJE_DMxpRnDlQfWZxRsIFjYg1TmYiRGVU5uEgQXe-Srg5SgdvPsu7puxoTryQoUuRPIgEW1NLTSzkXmGwXfcCy5zCIdRaDep5UvOUkts3K0HALRnclXtA=s0-d)
Mark Mahan Suzanne Miller once worked for a toxic boss.
Of course, it can also be helpful to try and avoid hiring workers who might be perceived as bullies in the first place. Suzanne Miller, owner of SPM Communications LP, a public-relations company in Dallas with 18 employees, says she asks candidates about their experiences working with others to get a sense of whether they might have abusive tendencies. "If you take the time to get to know a person and what motivates them in business and in life, you're going to find that you choose the right people," she says.
Ms. Miller says she's glad the New York legislation recognizes bullying as unhealthy. Part of what motivated her to become an entrepreneur in 1999 was a prior three-year stint working for a toxic boss. "She would scream at me before she would check the facts," says Ms. Miller of her former employer. "I felt belittled for no apparent reason."
Business owners should also consider the possibility that they might actually be bullies. One telltale sign: A high turnover rate, says Gary Namie, co-founder of the Workplace Bullying Institute, an employee-rights group in Bellingham, Wash. "You're creating a place that reasonable people don't want to stay in," he says. "You've probably focused on whatever it is you make or sell and don't have an incentive to get management skills."
Another indicator of a bully business owner is if he or she takes all the credit for their company's success, says Vicky Oliver, author of "Bad Bosses, Crazy Coworkers & Other Office Idiots." "If everything is your idea," she says, "it's probably because you're bullying the people who work for you into submission."
Write to Sarah E. Needleman at sarah.needleman@wsj.com
Tuesday, May 18, 2010
Convicted by Text Message - Overcoming Authentication and Hearsay Objections
A wife was convicted of simple assault on her husband. Text messages were used in her conviction to show her state of mind. The Defendant appealed her conviction, claiming the text messages from her phone, the victim’s phone and a photo exhibit of a text message were improperly admitted on foundational and hearsay grounds. State v. Thompson, 2010 ND 10, P1 (N.D. 2010).
The Supreme Court of North Dakota did not agree with her.
The Facts: An SMS State of Mind of Assault
After the husband and wife drove the children to school, the Defendant demanded money and refused to get out of the victim’s car. The victim had to drive to the police department for the Defendant to be removed from the car. Thompson, at *P3.
Police were called to the Defendant’s house after 11:00 pm that night, finding the victim nursing an injured eye and several blows to the face and back. The husband was hit several times by the wife in a fight over money. Thompson, at *P3.
The wife was arrested and convicted for assault.
Motion in Limine to Exclude Text Messages
The Defendant brought a motion in limine to exclude any testimony or evidence of the text messages. Thompson, at *P6. The Defendant claimed the texts were not relevant and inadmissible. Thompson, at *P9.
Text Messages at Trial
The victim testified at trial about a threatening and profane text message sent the morning of the day he was attacked by the Defendant. Thompson, at *P7. The State offered a photo of the text message as a trial exhibit. Id.
The Defendant claimed the victim could have sent himself the threatening text from the Defendant’s phone. Thompson, at *P7.
Text Messages State of Mind
The trial court allowed the text messages at trial to show the Defendant’s state of mind the day of the attack. Thompson, at *P11.
Defendant’s Arguments
The Defendant claimed the State failed to authenticate the text messages.
The Defendant argued that “text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author.” Thompson, at *P12.
Direct Examination of Victim
The husband stated on direct examination that the text messages were from the Defendant. The victim explained that he stored his wife’s phone number as “Fr: Jen.” Each text message began with the Defendant’s stored phone number in the victim’s phone. The text messages were all “signed” with the Defendant’s signature “cuzImJenIcan.” Thompson, at *P16.
The Defendant challenged the admission of the text messages at trial as hearsay. Thompson, at *P16. The trial court ruled the text messages were “a declaration against interest and therefore not subject to [the] hearsay rule.” Thompson, at *P16.
Rules of Authentication
Pursuant to the Federal Rules of Evidence (which in this case mirrored the state rules), the party offering the evidence “must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be. Thompson, at *P21, citing United States v. Hyles,479 F.3d 958, 968-69 (8th Cir. 2007).
Authentication of Electronically Stored Information
The Supreme Court of North Dakota had not addressed text message authentication before and examined other case law where electronically stored information had been authenticated. Thompson, at *P24. In all of the cases the Supreme Court of North Dakota discussed, circumstantial evidence was used to authenticate electronically stored information. Thompson, at *P24.
Authentication examples summarized by the Supreme Court of North Dakota included:
E-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s nickname, and messages were followed with phone conversations on same topic.
United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000)
Foundational requirement for chat room conversation established when defendant admitted he used screen name “Cessna” when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name “Cessna.”
United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)
Threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant.
Dickens v. State, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007)
Text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages.
State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006)
Instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances.
In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005)
All cases quoted from Thompson, at *P24.
Text Message Authentication
The Supreme Court of North Dakota held that the authentication of the text messages were proper. The trial court was presented evidence from the victim of his knowledge of the Defendant’s cell phone number and her signature on text messages. This evidence was sufficient under the Evidence Code to authenticate the text messages. Thompson, at *P26.
Hearsay Challenge
The Supreme Court of North Dakota curtly dealt with the hearsay challenge: A party’s own statements are not hearsay. Thompson, at *P31.
The Unreliable Text Message Argument
The Court, echoing a Pennsylvania Superior Court that addressed the authentication of instant messages, rejected the “argument that electronic messages are inherently unreliable because of the messages’ relative anonymity.” Thompson,at *P25.
As noted in by the Pennsylvania court in In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005), paper documents can also be subject to forgery or signature letterhead stolen and used by another. Id. As the F.P. court stated:
We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.
Thompson, at *P25, citing In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005).
The Supreme Court found no error in the trial court’s finding of the victim’s authentication of the text messages and rejected the argument the text messages were “unreliable.” Thompson, at *P26.
Bow Tie Thoughts
State v. Thompson is a thoughtful opinion on the rules of Evidence and authenticating text messages. The one area that could have been worth exploring was how the text messages were collected.
One of the trial exhibits was a photo of the text message. Thompson,at *P7. This certainly is a powerful trial exhibit to show the Defendant’s phone number, the text message and signature line.
However, was the photo the sole means of preserving the text message? It is possible the investigating officers just took photos to preserve the evidence after the incident.
I encourage parties to defensibly preserve relevant electronically stored information using a product like Paraben when dealing with something as transitory as a text message on a cell phone. Alternatively, if the phone is no longer physically available, the cell phone text message history can also be requested from some service provider (this would depend on whether the service provider was retaining any of the text message history). While taking a photo of a text message has been done before, it is good for attorneys to realize the different methods of collection and preservation at their disposal.
Thursday, April 15, 2010
Wednesday, January 6, 2010
U.S. Software Maker Sues China, Alleging Piracy
BEIJING — A California software company has sued two Chinese technology firms, charging that they stole its computer code to make an Internet-monitoring program that China’s government sought to install on every computer in the country last year before backing down.
Cybersitter’s lawsuit also names as defendants seven Asian computer makers — including Sony, Lenovo and Acer — accusing them of willingly joining a Chinese government scheme to spread the software, known as Green Dam Youth Escort, throughout the country. The Chinese government was also named as a defendant.
Cybersitter said the two Chinese software companies had pirated 3,000 lines of its code to create Green Dam, which was ostensibly designed to block Web sites that featured pornography and violent content.
But critics and computer experts said the Chinese version was also tailored to enable Chinese government censors to block some political and religious speech and other content, such as references to the 1989 Tiananmen square protests, that the government deemed unsuitable.
Cybersitter’s suit, filed Tuesday in the U.S. District Court for California’s Central District, alleges that the pirated lines of code “include the heart of Cybersitter software: its proprietary content filters” that instruct a computer to block sites containing banned keywords.
The principal defendants, Zhengzhou Jinhui Computer System Engineering Ltd. and Beijing Dazheng Human Language Technology Academy Ltd., developed and marketed the software. They could not be reached for comment on the lawsuit. Lenovo, China’s largest computer maker, said it does not comment on pending litigation.
Each of the computer makers complied with a Chinese government requirement to install Green Dam on new computers, or to include a CD containing the program with each new computer. The lawsuit alleges that the computer makers eventually found out that the software included pirated code, but continued to comply with the government directive for fear of losing market share if their computers were banned in China.
The government originally sought to require that Green Dam be installed on every new computer sold in China. But authorities backed down last summer after an outcry from computer users, from ordinary web surfers to businesses, that saw the software as a threat to their free-speech rights and their computer security.
Some analysts had expressed fears that the software included “back doors” that might allow outsiders to see computer users’ files. Others said the software was so poorly designed that crashes and other problems posed a threat to the security of users’ data.
“They were conspiring to distribute an illegal program to millions of users. They continued to distribute even after everyone knew they were stolen programs,” Gregory Fayer, an attorney for Cybersitter, said in a phone interviewon Wednesday. “There were reports just last week that some of the defendants continue to distribute in China.”
The Chinese companies’ theft was so shoddily executed, Mr. Fayer said, that some of the software code in Green Dam includes announcements directing users to visit the Cybersitter Web site.
China has long been notorious for the ease with which films, computer games, music software and other intellectual property are pirated and sold openly, often on Chinese Web sites that are thoroughly patrolled and regulated by the government. Chinese authorities have made sporadic and unsuccessful stabs at limiting the piracy, but intellectual property rights have become a major point of disagreement between China and some Western nations.
Cybersitter said its $40 software has more than 2.4 million active users worldwide. But in the space of months, the suit alleges, China mandated the installation of the pirated program on 53 million computers designed for home use and a half-million school PCs. The software was downloaded by other users 3,270,000 times, the suit stated.
The suit seeks more than $2.25 billion in damages, a figure attained by multiplying the number of Chinese computers using Green Dam by the price of the Cybersitter software.
David Barboza in Shanghai contributed reporting.
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