Parody, Publishing, Startups

A recent client inquiry caused me to read again this excerpt from a decision of the United States Court of Appeals for the First Circuit:

llbeandrake“Our reluctance to apply the anti-dilution statute (Maine trademark law) to the instant case also stems from a recognition of the vital importance of parody. Although, as we have noted, parody is often offensive, it is nevertheless “deserving of substantial freedom — both as entertainment and as a form of social and literary criticism.” Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). Accord Fisher v. Dees, 794 F.2d 432, 437-38 (9th Cir.1986)(“`Destructive’ parodies play an important role in social and literary criticism and thus merit protection even though they may discourage or discredit an original author.”);Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3112, 77 L.Ed.2d 1367 (1983) (defendants’ bawdy “spoof” and “ridicule” of Miss America pageant entitled to full range of first amendment protection); Groucho Marx Productions v. Day and Night Co., 689 F.2d 317, 319 n. 2 (2d Cir.1982) (noting “the broad scope permitted parody in first First Amendment law.”); Elsmere Music v. National Broadcasting Co., 623 F.2d 252, 253 (2d Cir.1980)(“in today’s world of unrelieved solemnity, copyright law should be hospitable to the humor of parody….”). It would be anomalous to diminish the protection afforded parody solely because a parodist chooses a famous trade name, rather than a famous personality, author or creative work, as its object.[5]”

L.L. BEAN, INC. v. DRAKE PUBLISHERS, INC., 811 F.2d 26 (1987) (1st. Cir 1987)

Startup Litigation – Morley or Sherlock’s Moriarity – The Strange Case of Morley v Square, Inc.

Have to love a United States District Court complaint that starts as follows:

“The publicized origin story of Square, Inc. is a fabrication. The business now known as Square was not created solely by Jack Dorsey and James McKelvey. It was Professor Robert Morley— and Dr. Morley alone— who invented the Square card reader, and Dr. Morley coinvented the corresponding magnetic stripe decoding algorithms of the Square app. Dr. Morley had over a decade of experience in the credit card industry, spanning card reader technology,
industry contacts, and business operations. In contrast, Messrs. Dorsey and McKelvey had no noteworthy experience in the credit card industry. Dorsey, Morley, and McKelvey worked together in a joint venture with the goal of entering the mobile credit card transaction industry inventing the Square card reader, which enabled Square’s entry into the mobile credit card transaction industry, Dr. Morley contributed his technological expertise and knowledge of the credit card industry to the joint venture. But Messrs. Dorsey and McKelvey betrayed the joint venture by incorporating Square, Inc., dictating the ownership of the newly incorporated company, and cutting Dr. Morley completely out of the enterprise.And in an attempt to whitewash these transgressions, Square has embroiled Dr. Morley in years of litigation and proceedings before the United States Patent and Trademark Office— forcing him to defend himself against the company he helped create. This lawsuit seeks justice for Dr. Morley, redress and redemption.”

For you startup litigation geeks:

Count One – Breach of Joint Venture Agreement

Count Two – Breach of Fiduciary Duty

Count Three – Unjust Enrichment

Count Four – Patent Infringement

Count Five – Consturctive Trust

Count Six – Civil Conspiracy

Count Seven – Negligent Misrepresentation

Count Eight – Fraud

Count Nine – Fraudulent Nondisclosure

Count Ten – Correction of Inventorship

Count Eleven – Conversion

Count Twelve – Misappropriation of Trade Secrets

Aaron Swartz, Civil Disobedience, and Harvard Ethics – Republish of July 2011 Post

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Sorry, Aaron, I did not speak long enough or hard enough.

[The July 14, 2011 United States criminal indictment of activist Aaron Swartz, inventor of RSS, for downloading mass quantities of academic journals, is Here.]

The relevant American newspapers have two different takes on the Swartz indictment.

Boston: “Aaron Swartz, a Cambridge web entrepreneur and political activist who has lobbied for the free flow of information on the Internet, was charged in federal court with hacking into a subscription-based archive system at MIT and stealing more than 4 million articles, including scientific and academic journals.

New York Times: “A respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free.”

I suggest we view this indictment of a Harvard ethics fellow in the following context: “Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance. In one view (in India, known as ahimsa or satyagraha) it could be said that it is compassion in the form of respectful disagreement.”

JSTOR, the academic archiving service from which the documents were downloaded, has published an ambiguous at best account of its position on this case:

“It is important to note that we support and encourage the legitimate use of large sets of content from JSTOR for research purposes. We regularly provide scholars with access to content for this purpose. Our Data for Research site (http://dfr.jstor.org) was established expressly to support text mining and other projects, and our Advanced Technologies Group is an eager collaborator with researchers in the academic community….Even as we work to increase access, usage, and the impact of scholarship, we must also be responsible stewards of this content. We monitor usage to guard against unauthorized use of the material in JSTOR, which is how we became aware of this particular incident.”

The JSTOR statement also implies that it has already settled with Swartz with respect to the nature of his use of the downloaded content.

I respectfully suggest that the solution here is for JSTOR to publish its complilation of 1,000 academic journals on a non-exclusive basis under a Creative Commons License.

I applaud Aaron Swartz for his efforts.

Isreali Startups Raise Money and Create Jobs in Silicon Alley Manhattan


As reported in the Huffington Post:

“It’s estimated that New York’s startup community consists of at least 200 active startups founded by Israelis alone, including Conduit, Taboola, Kaltura and Fiverr. The majority of these Israeli-founded startups have raised at least $10 million in funding each: Conduit raised $110 million, Taboola raked in $40 million, Kaltura $68 million and Fiverr counts $20 million under its belt. With Israel on the fast track to revolutionizing the tech landscape, in the next decade we can expect to see even more cash flowing into Israeli startups – and importantly, their counterparts in NYC.”

Brooklyn Tech Triangle, A New Music Video and A Newer Idea

We are all keeping our eye on the public and private initiatives surrounding the Brooklyn Tech Triangle.

President of Downtown Brooklyn Partnership, Tucker Reed, has in essence, proposed a reverse eminent domain of City owned buildings in Downtown Brooklyn to fuel the area’s need for startup real estate:

“With a footprint of over 1.2 million square feet of commercial space surrounding Cadman Plaza, municipal-owned and occupied buildings such as the Brooklyn Municipal building at 210 Joralemon Street, 65 Court Street and the U.S. Post Office and Courthouse at 271 Cadman Plaza East could be repurposed to create a new urban campus for entrepreneurs and start-ups as well as new retail opportunities to activate the ground level experience. By reactivating these assets, government could avoid having to spend additional money to renovate these aging facilities, while modernizing its footprint in newer, more efficient buildings built by partners in the private sector.”

Legal Funding for Large Plaintiffs – CrowdFunding for Fortune 500

In a provocative piece on the Legal Funding Central Blog, Kenneth Min writes:

“That legal funding is attracting investment fund managers should come as no surprise, as commercial litigation funding is really just investing equity in an alternative asset class – and one that has the potential for impressive returns for investors.

At least that’s what one former Wall Street executive, William H. Strong, seems to think. The former Vice Chairman and Co-CEO of Morgan Stanley Asia-Pacific Operations came out of retirement to take on the role of chairman and partner at Longford Capital, a new litigation finance firm focusing on B2B claims in matters with over $25 million in controversy. Mr. Strong officially took his post May 1st.”

And many thanks to LFC for helping me to present to my startup and other litigation clients the cost and time lines for federal court litigation….here is one LFC graphic:

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The complete LFC post here.

Required Reading 2015 for HarvardLaw74 Startup Clients

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Teaser Article Quote:

“While there is certainly something more admirable, and typically less noxious, about those who innovate ideas and services than those who place bets and structure deals, let’s call it what it is. No matter how fervently techies and entrepreneurs claim they want to “change the world” (see any episode of “Shark Tank”), far fewer of them would be in the disruption game if the potential profits weren’t world-changing as well. The lovable millennial bumblers on “Silicon Valley” may be scruffy and genuinely passionate about coding, but their goal — making money and leveraging power — is quintessentially yuppie, even if their social skills aren’t.” Teddy Wayne, NYTimes OP-ED, 05.10.15

Kleiner Perkins Gender Discrimintion Goes to Jury on Punitive Damages

pao“There is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination, that Kleiner Perkins acted with malice, fraud or oppression,” wrote Judge Harold Kahn. (source ABA Journal.

I am advising all of my startup clients to pay particular attention to gender discrimination issues that may arise in the workplace, particularly in areas of the company where there is a disproportionate number of male employees.

“”Per this standard, there is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination by failing to promote Ms. Pao and terminating her employment,” the judge said in the one-paragraph decision.”