@ericmenhart Latest Tweet:

What is Litigation?

Litigation is the legal process through which the plaintiff and defendant (litigants) argue their side in court to achieve a specific outcome (monetary award, injunction to stop use of patented invention, avoidance of paying a settlement, etc.).

Both businesses and individuals can file complaints with the court to start the process. In the end, the side that provides the best argument or demonstrates enough proof of their claim wins the suit. Typically a judge determines which side wins in litigation, but in some states, sides may request a trial by jury instead.

The Litigation Process

The party who initially files a complaint with the court is known as the Plaintiff. The party or parties named in the complaint are known as the Defendants. Once a complaint has been filed, defendants have a specific amount of time to file a response. From there, other documents providing evidence against the defendant or plaintiff may be filed along with compensation demands.

In many cases, these lawsuits never make it to a courtroom. Other means including mediation and arbitration may be used to help plaintiffs and defendants reach some sort of agreement (monetary compensation, injunction or other constraints, etc.). Mediation and arbitration typically cost less than a trial and help ensure that both parties feel satisfied with the end result – unlike a trial where a judge (or jury) rules either for the plaintiff or defendant.

If the case goes to trial, the party that doesn’t win the lawsuit may file an appeal. This may or may not lead to a retrial or the overturning of a ruling.

Mediation

The mediation process involves each side sitting down and negotiating the finer points of the lawsuit until an agreement is reached. A trained, professional mediator acts as a neutral third-party to help both sides reach a fair agreement. Agreements reached during mediation are non-binding, which means that neither party has to legally follow-through with the agreed upon settlement. In most cases, however, both parties involved really want resolution and try their best to adhere to the agreement. If a mutual agreement is not possible or is not upheld, the lawsuit may continue to trial.

Arbitration

Similar to mediation, the arbitration process helps both parties reach a fair agreement. The only real difference is that all agreements reached during the process are binding – meaning that both parties must adhere to the agreement or face further charges.

Types of Litigation

There are many types of litigation including:

  • business litigation
  • commercial litigation
  • civil litigation
  • securities litigation
  • personal injury litigation
  • intellectual property (IP) litigation

The type of litigation a particular lawsuit falls into depends on the nature of the suit.

Business Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to breach of contract, copyright or patent infringement, fraud, or unfair competition, commonly fall into this category.

Commercial Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to aspects of business include partnership disputes, business dissolution, employee disputes, licensing agreements, class action suits, and other related business matters may fall into this category.

Civil Litigation

Civil litigation typically involves one or more individuals seeking monetary damages rather than a legal ruling. Reasons to file a civil lawsuit include wrongful death, medical malpractice, anti-trust issues, employee safety issues, personal injury, and landlord/tenant disputes.

Securities Litigation

Securities litigation include lawsuits filed by employees, partners, shareholders, fund managers, pensioners, and others that pertain to potential violation to the Securities Act of 1933, breach of contract, or misuse of company or organizational funds.

Personal Injury Litigation

This type of litigation may also fall under civil litigation as most people that file personal injury lawsuits seek monetary damages for work-related, medical malpractice, slip and fall, or other types of personal injury that may inhibit their ability to earn a living or advance in their career.

Intellectual Property (IP) Litigation

This type of litigation may also fall under business or commercial litigation. IP litigation typically involves businesses or individuals that file a complaint for infringement of their ideas, recordings, or trade names. Typically, the plaintiff claims the defendant knowingly or unknowingly used their protected works or processes without permission.

The Lexero Law Firm Can Help

If you want to file a complaint for litigation or you’ve been named in a litigation complaint, contact Lexero Law Firm today. The firm offers an attorney roster that is can offer expert counsel, advice, and representation in court, mediation, and arbitration proceedings.

Firm Launches Website for U.S. Copyright Group Defendants

 

CyberLaw P.C. recently launched a new website, available at USCopyrightGroupDefense.Com, aimed at providing information about U.S. Copyright Group and its copyright infringement cases against numerous John Doe defendants. The site features general information about U.S. Copyright Group, including details about the parties, ISPs and works involved in many of its cases, most of which are filed in Washington, D.C. The site provides simple and straightforward information about U.S. Copyright Group cases, including possible defenses.

 

The site also advertises the availability of a low-cost individual phone consultation option for U.S. Copyright Group defendants. The phone consultation is always with a copyright attorney with defense experience against U.S. Copyright Group. The offer is designed to assist individual defendants, many of whom may not be entirely familiar with the legal process or copyright law, in understanding their individual case and evaluating options for best handling the matter in a cost-effective way.

[Read more...]

Copyright Protection for Open Source Software

 

The first federal court review of open source software licenses was recently undertaken by the U.S. Court of Appeals for the Federal Circuit. The decision, Jacobsen v. Katzer, No. 2008-1001, slip op. (Fed. Cir. Aug. 13, 2008), is important because it finds that infringers of open source licenses are subject to Copyright laws, as opposed to only being in breach of contract for a violation of an open source license.

The court determined that the “conditions” of the open source license were violated when the Defendant removed some of the license notices and other non-critical portions of the software. This was different from the “covenants” that are violated under a contract analysis.

Why does it matter? Remedies for breaching a contract are generally more limited, usually to the economic losses of a contractor. Violations of federal copyright laws, however, provide for more substantial remedies. Such remedies include statutory damages, infringer profits obtained as a result of the breach and other damages that would be more substantial than the aggrieved party’s economic loss.

This result is important, perhaps critical, to the open source movement. Had the court concluded that violations of open source licenses were simply breaches of contract violators would use open source software with virtually no liability concern. The reason? Open source copyright holders would virtually never be able to show “classic” economic loss, because their software is generally provided for free.

While a boon for open source authors, the opinion does create a problem for business and industry that may have taken liberties with open source licenses in the past. While always a good idea, now is a sensible time for IT departments to do an audit of its software licensing, both as to open source and more traditional (closed source) software packages to ensure compliance.

[Read more...]

Japan to Expand Fair Use in Copyright

 

Japan is preparing to grant more “fair use” in its copyright laws that is intended to increase competition and bring the nation’s intellectual property laws more in line with the United States and other industrialized nations.

Section 107 of the United States Copyright Act (17 U.S.C. 107) sets out certain exceptions to a creator’s copyrights. These exceptions are generally known as “fair use” exceptions. A person other than the creator of the original work may use the work for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

Japan’s copyright laws are more strict. The current laws prohibits any copying of other people's works or distributing them on the Internet or elsewhere without permission. Present exceptions to the Japanese law are copying works for personal use at home or for use in educational contexts, such as schools.

In reality, enforcement has been sporadic as to personal uses in Japan. The new law is designed to recognize the “practical reality” of everyday uses, particularly on the Internet, and to open up the possibility of competition with foreign business that have more copyright freedom than presently available to Japanese industry.

The changes are not surprising. As the economy becomes more global, we’ll continue to see more nations align their intellectual property laws in the interest of competition. This is especially true when, as in Japan, the practical realities of enforcement were mostly aligned with the proposed changes anyhow.

[Read more...]

Comcast Proposes P2P Policy

 

Comcast is publicly proposing a “P2P Bill of Rights and
Responsibilities,” which would apparently define certain obligations of peer to
peer application users on the Comcast data network. Reports indicate that the
“Bill of Rights” would align itself with “self–regulation” standards as to
content, such as movie and television ratings, which Comcast asserts would help
to curb copyright infringement. Critics say that the proposal is an attempt by
Comcast to justify its reported practices of throttling or blocking traffic
arising from use of P2P applications. Critics say this violates the idea of
“net neutrality,” that is, the idea that once you have access to a resource,
you may use it as you see fit.

 

Both Comcast and the critics have their strong points.
Comcast is correct that P2P can be used for copyright infringement. Comcast is
also correct that P2P applications tend to be resource drains. Critics are correct
that Comcast ignores that P2P can also be used for perfectly lawful purposes as
well. Critics are also correct that Comcast’s attempts to limit certain content
and applications is a slippery slope when it comes to freedoms of speech and
expression. These competing viewpoints have been well-developed over the years.

 

The real issue here is the “path” that Comcast is
considering taking in attempting to “lawfully” limit P2P bandwidth. Comcast
seems to want to use the decision in MGM
Studios, Inc. v. Grokster, Ltd.
, 545 U.S. 913 (2005), as a weapon to limit
bandwidth. This is a very expansive reading of the courts holding that, in a
nutshell, holds that one that promotes the ease of infringing on copyrights can
be sued for inducing copyright infringement committed by their users.

 

That Comcast would be considered to “induce” copyright
infringement by simply providing Internet access to P2P applications is a very
broad reading of the Grokster holing.
Copyright infringement can occur in numerous ways, including FTP and simple
copying of images from websites via a web browser. Comcast provides access to web
browsing and file transfer applications to customers, yet those methods of
copyright infringement are ignored by the proposed Bill of Rights.

 

This is not to say that Comcast does not have a case here.
Its argument is at least colorable. The reality, though, is that Comcast’s
ultimate goal is to limit excessive bandwidth drains on their network, not
protect copyright infringement. The suggestion that the “P2P Bill of Rights and
Responsibilities” is primarily a copyright issue, particularly given Comcast’s
prior blocking of P2P applications, is simply a difficult argument to accept.

[Read more...]

Expanded Records Retention in P2P Litigation

 

The Motion Picture Association of America (MPAA) won a copyright
lawsuit against the operators of TorrentSpy.com primarily because of the defendants’
tampering of evidence. The court determined that the defendants had destroyed
evidence
after another judge had ordered them to keep server logs, user IP
(Internet Protocol) addresses and other information. TorrentSpy argued that it
destroyed certain records because it had concerns about protecting users'
privacy.

 

In response to the destruction of evidence, a US Magistrate
judge ruled that TorrentSpy would be required to preserve server data logs held
in random access memory (RAM). While the magistrate was criticized for the
ruling because of the temporary nature of such data, a US District Judge
agreed, finding that TorrentSpy destroyed or altered several types of evidence,
including user IP addresses, discussion forum postings about the trading of
movies and moderator identities. All were critical to deciding the merits of
the matter, the court ruled.

 

The court was correct in handling the matter as it did.
First, the defendants were on notice that the records were relevant and must be
retained. Failure to do so was not an option. Second, the defendants’ argument
that privacy was the reason for their actions is incredible. There are numerous
ways to protect data that is relevant to litigation, including protective
orders, secured sharing of data and other arrangements designed to keep other
individuals’ privacy from being violated.

 

The US District Court was correct to order the retention of
the RAM data, as well as order the default judgment against the Defendants. Failure
to follow court orders as to retention of data is a serious offense and more
than enough to assign liability to an offending party. Other courts would be
wise to follow this court’s lead in future electronic retention violations.

[Read more...]

Copyright Suits Deemed Failures

The Electronic Frontier Foundation (EFF) has declared that RIAA copyright lawsuits against peer to peer (P2P) network users are failures. The EFF argues that P2P networks continue to grow, and that the lawsuits targeted at users that download music and other material impose unfair burdens on a few users, while thousands of others continue to use such networks unfettered. EFF argues that the appropriate policy is to "dangle a more enticing carrot," such as lower priced music and less imposing digital rights management.

While the EFF is a fine organization, some of the conclusions it reaches about digital policy are very misplaced. First, it is very likely that the "carrot" that would meet EFF's standards would not be profitable to artists. It would be interesting to see what price-per-track would lead to the implosion of peer to peer networks, but reasonable minds suspect that it would have to be nearly free in order to abate the growth of networks. Second, the point of the RIAA's suits is less to hold individual users accountable, and more to bring salience to the potential for touble for peer to peer users. No one, including the RIAA, believes that these suits will be valuble based soley on their monetary value.

Bottom Line: It may be true that the RIAA's copyright lawsuits are failures. The EFF's explanations for the failures, however, ignore important considerations that lead to the suits. The EFF's statement is less a policy statement and more a statement of the organization's beliefs. In short, the EFF's declaration is simple propaganda wrapped up in a purported policy statement.
[Read more...]

Complaints About Overbroad Copyright Notices

 

Google and Microsoft are complaining to the FTC about, in
their view, content providers’ overly broad copyright notices on content provided
by entities such as the NFL, MLB, NBC Universal and more. The allegations of
the complaint suggest that copyright holders are using “strong-arm” tactics to
scare users into compliance. Copyright holders dismiss the complaint as an
attempt to liberalize public sentiment towards the search engine owners’
efforts to index and collect as much content as possible to entice more users
to visit their web properties.

 

Bottom Line: When it comes to copyright protections we can
expect to see more of this “battle of public opinion” waged between the
different interests. While the complainants realize that their complaint to the
FTC will likely not lead to any particular action the value of the press coverage
is likely substantial enough to warrant such filings.

[Read more...]

A Sexy Second Life Copyright Suit

 

A company founded by an ex-plumber is suing for copyright
infringement
over the “SexGen bed, a software application that allows two
characters to have sex in the game.” Eros, the firm that develops and sells the
software online, alleges that another character in Second Life found a
technical exploitation that allowed the object to be copied and resold at a
substantial discount over the price Eros was charging, even while retaining the
brand. The suit only names the defendant by his or her Second Life name. The
plaintiff will rely upon subpoenas to discern the defendant’s true identity.

 


Bottom Line:
There have been surprisingly few copyright suits
arising out of matters related to social networking and networked gaming sites.
As these sites allow more and more third party extensions and add-ons, as
Second Life does, there are likely to be more and more copyright and trademark
disputes. Despite the likely rise in disputes, there is unlikely to be any
particularly unique law; principles of copyright and trademark apply equally to
books, online gaming or digital music. The greater interest on these types of
cases will be issues of identity and jurisdiction, particularly for sites that
are internationally based.

 

[Read more...]

NBC Joins Fray Against YouTube

 

In a case fast approaching being titled “The Entire World v. YouTube,” NBC has announced plans to file an amicus brief in the suit alleging copyright infringement against YouTube for allowing users to upload copyright protected content. YouTube is a popular video-sharing site that was recently purchased by Google for $1.65 billion dollars.

 

This matter features two interesting subplots. First, we see one of the most common elements of mass copyright infringement actions, the classic “user v. distributor” liability question. Attempting to assign blame to the distributor, compared to the users, is a routine argument by plaintiffs in agency actions because it is easier to track down and monitor the actions of one large entity compared to hundreds of thousands of unique and often anonymous users.

 

The plaintiffs further allege that YouTube’s popularity is heavily based upon free access to otherwise protected content, much like Napster and Grokster were at the height of the illegal file sharing days of the late 1990s and early 2000s. Because the popularity of this content benefits the site by way of additional advertising revenue, the site would not be overly motivated to remove it.

 

The plaintiffs also allege that the site does just enough to avoid being considered completely negligent in its policing of the available content. NBC and its friends suggest that YouTube takes the “wink, wink, nudge, nudge” approach to its warnings. That is, the warnings are posted and content is occasionally policed, but that YouTube’s true interest is in “looking good” for the courts when matters such as this suit arise, as opposed to having a true interest in protecting intellectual property interests.

 

YouTube defends its actions by noting that it has several safeguards in place, including posted warnings to its users. The site also argues that it routinely removes copyrighted content uploaded by its users.

 

In most cases, the liability is somewhere in between the extremes, but the “public policy” interest suggests assigning the burden to the entity best equipped to handle it. In this case, YouTube is that entity, and one would expect that the plaintiffs will eventually prevail in their requests for greater policing of the content on the video sharing site.

 

The second issue of interest is the unwritten subplot of major media against Google and its strong business expansion in the last several years. Traditional media companies are publicly and privately sweating Google’s growing power in the entertainment and ad industry. The pressure applied by the plaintiffs in this case is as much a statement about their respective long-term viability in the changing advertising marketplace as it is about protecting their copyrights.

 

Bottom Line: Google and YouTube can expect to be ordered to tighten their reins over the content posted to the site. While users may be more to blame than the site itself, YouTube is best equipped to provide additional safeguards. The plaintiffs will win the suit, but can also expect to get a boost in the equally important court of public opinion for prevailing against the red-hot Google behemoth.

[Read more...]

Attorney Eric Menhart has been seen in: