Wednesday, June 16, 2010

China Imposes Copyright Surcharge on Cafes

In an attempt to rebut allegations that it allows copyright thieves to roam unmonitored throughout Beijing and the great steppes, China has announced that it will impose a copyright fee on internet cafes which allow customers to download and watch movies while enjoying their lattes. How China intends to monitor internet usage at the 140,000 registered cafes has not yet been revealed, but it should not be an insurmountable task for a country with over a billion people seeking work, and whose attitude toward individual privacy ("Who said you could monitor my internet activity, Mao?") is more draconian than democratic. For further information, see the article on the PI Newswire.

Monday, June 14, 2010

When's Salinger's Sequel Coming to California?

When, and whether, the sequel to The Catcher in the Rye ever hits the U.S. is a question rife with speculation after the 2nd Circuit's recent ruling. For an interesting peek at what's percolating, and a link to the decision, go to Collectanea

Crazy Linkfest

These are a few links to recent posts on my main blog -- which is also called Who Is Your Lawyer for the sake of consistency -- and is a little more fleshed out and lived in than my blogger site (akin to a primary residence vs. a vacation home). There are 30+ additional posts up and running, all more or less related to recent IP news and events, some lengthy, some chatty, some analytical, some short and to the point. If you misplace or forget to bookmark my URL just type in "Who Is Your Lawyer" in one of its many various forms (e.g., Who Is Your Lawyer, whoisyourlawyer, whois your lawyer, whoisyour lawyer (and perhaps even "who's your lawyer" or "whos your lawyer"-- though occasionally those latter variations lead for some mysterious reason to articles about the new series by David Tenant (of Dr. Who fame), called Rex Is Not Your Lawyer).

Who Stole My Magic Muffin Formula?

Occasionally I find myself laughing with delight at the foibles of trade secret law, where quite often it is actually the case that a serious, dour, pale attorney stalks raging down the halls in Brooks Brothers’ finest screaming imprecations about someone who has had the gall — the actual gall! — to attempt to misappropriate his client’s most treasured secret, be it the formula to Coca Cola (guarded under lock and key since 1894), KFC’s 11- herbs-and-spices recipe (handwritten by Col. Sanders some 70 years ago), or the seemingly mundane client list for a real estate brokerage. The latest case to hit the headlines reads like a bad mystery —Thomas’ English Muffins Claims Rival Baker Stole Secret To “Nooks-and-Crannies” Formula!!!

A trade secret, of course, is loosely defined as any formula, pattern, device or compilation of information used by a company that is unknown to others andgives the company a competitive advantage. Examples come in many shapes and sizes, and include such things as unpatented inventions; future product designs and research; non-public company documents such as blueprints, laboratory notebooks and training manuals; marketing, purchasing, planning and customer information; and financial, accounting, recruiting and legal information. Basically, any information that a company finds exceptionally useful and deems “Top Secret” may qualify for trade secret status — with certain caveats. If someone outside the coterie of top level employees with access already knows your secret, of course, it’s not really a secret at all, and (as you might expect) you cannot retroactively go back and make it one. Once the cat’s out of the bag, the horse is out of the barn, the bird has flown the coop, etcetera . . . it’s bye-bye trade secret. Similarly, if you fail to take adequate measures to protect the secret, or are so boastful and clumsy as to actually tell someone else the secret, then you lose all trade secret protection. Given that some secrets are worth billions, one can see the attraction of those espionage thrillers where the secret agent seduces a corporate employee and pumps them for information or spontaneously befriends the loner lab geek and then gets them so intoxicated they blurt out every secret they ever knew. While real life may not mimic fiction quite at the level suggested by Clive Owens’ secret agent romp inDuplicity, rest assured that there are plenty of industrial spies lurking in corporate hallways, going through the rubbish at 5:00 a.m. hoping to find a scrap worth millions.

Although I mention the Thomas’ English Muffin case partially in jest, as it seems somewhat ludicrous that the internal consistency of a muffin could, in fact, constitute a trade secret, it does raise the question of just what you can take with you as a departing employee. Say you’ve been there for ten years and know the operation inside and out, know how to mix a muffin in your sleep, know what temperature the muffins need to be baked at, and for how long, and how long they need to cool before being bagged. You know it so well you don’t even have to think about it anymore. But now you’ve been offered a great job down the street at an independent bakery that wants to bring muffins to the masses — what do you do? Do you pretend you don’t know how to make a muffin? Just what information is an ex-employee allowed to use? The answer, as eloquently expressed by Judge Shadur in Fleming Sales Co. v. Bailey, 611 F. Supp. 507, 514-15 (N.D. Ill. 1985) is this:

Such information [as] comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition…. [I]t would not strike a proper balance between the purposes of trade secret laws and the strong policy in favor of fair and vigorous business competition.

So, no frontal lobotomy required. I hope that puts your minds at ease as much as it did mine. You can still bake a muffin, though if you land at a competitor you should know that — even if you refrain from using the magic mixing machine and never even think about the almost-mystical nook-and-cranny formula — you are still likely to be sued. No matter how innocent your muffins might be, in the end, it’s all about the dough.

Friday, June 4, 2010

A Few Facts On The Google Books Settlement

For those of you who are confused about what Google actually hopes to accomplish by digitizing more than 12 million books, and what the implications are for copyright holders, the Open Book Alliance has published a very interesting analysis of the proposed Google Books Settlement, which attempts to parse rhetoric from reality. The article can be found here.