|Holly Night, Santa's GC, will|
now finally be able to enjoy
the holidays (including the
festive twinkle lights), without the
ongoing threat of litigation
Last week, prior to the excellent Letter from Santa on Section 52 (see post here), the AmeriKat and some dear friends were gathered around a dinner table musing on what being Santa's GC would really be like. It was concluded that it would be enough for any, otherwise dedicated employee, to throw in the towel. Sure enough, the prophecy has come true, as the AmeriKat has now been passed a copy of Santa's GC's letter of resignation. The letter, which should have been marked "Strictly Privileged & Confidential" (which goes to show how frazzled the GC is at this time of year), reads as follows:
With regret, I resign from my position of General Counsel of Santa Claus, Inc. Although I have greatly enjoyed my time here, my workload has become unbearable. Even though your big night is over and done with in less than 24 hours, your return to the North Pole merely marks the start of another 12 months of litigation and misery for me, not to mention the ever continuing escalation of my blood pressure.
Despite my repeated warnings to you to curb some of your and your associates' riskier behavior, these warnings go unheeded in an increasingly litigious global environment. I detail some of the most recent issues below:
- Data protection: In the wake of Snowden's NSA disclosures, the number of data protection and privacy complaints we have received has risen 420% in the last 10 months. The complaints all share a common thread: Why does Santa know when I am sleeping and why does he know when I am awake? Why does Santa know if I have been bad or good? In addition, many complainants allege that, in breach of numerous data protection laws, we are collecting people's personal data without consent by "making a list, and checking it twice". Despite instructing top external counsel, at considerable expense I might add, we have yet to come up with a bulletproof defence to these complaints. I have so far been able to stem the tide of litigation by responding that the complainants' only proof of alleged data breaches and privacy are the highly prejudicial and defamatory comments made in that song. However, its only a matter of time before some crusader commences litigation and the extent of our ongoing breach comes out in discovery. Which reminds me, I need to speak to you about our document retention policy.
- Animal welfare and the FAA: I understand that keeping reindeer and flying to homes across the world to deliver presents is part of the whole "Santa experience", but the number of animal welfare and Federal Aviation Administration (FAA) complaints we get each year is surely not worth it. As to the former, the complaints are obviously without merit - the reindeer are treated like kings but that doesn't stop at least 1200 letters landing on my desk, all of which I have to respond to (these people should be more worried about the poor GC's inhumane working conditions). The FAA, however, mean business. In light of the FAA's Temporary Flight Restrictions (TFRs) - which are not temporary at all it seems - you and the reindeer can not fly at 5,000 feet or below without clearance to land at an airport. Stop telling me that there is a "Santa exception" to the FAA's rules - there is not (despite the US Department of Transportation issuing you a special air transportation operating authority each year - by the way this year's has come through see link here). Mrs Claus and I white-knuckle through every Christmas thinking you and the reindeer are going to get intercepted by F-16s. In that event, I will really have an animal welfare issue on my hands.
- Misguided IP enforcement program: Although you have considerable goodwill built up in your name, appearance and jolly demeanour that would prevent the free-riding on your goodwill, going after every unauthorized Santa impersonator and swag is just not possible given the size of our legal team (me). Further, as previously advised, such a course of action would have terrible PR repercussions. I can see the headline now in the IP press "Santa's evergreen IP monopoly destroys Christmas for children around the globe". Unless the Santa impersonators are bringing your goodwill into disrepute by way of the usual antics (drunkenness, "kissing Mommy", etc), you would be better off focusing your attentions elsewhere - perhaps by investing the legal spend in some good ol' fashioned R&D. Now, if you want to go after the big boys who use your image (Hollywood, soft drinks manufacturers, etc) in order to establish a robust IP licensing program to bring in revenue, give me the word.
- Trade secrets: This one is a nightmare, Santa. I warned you we were doing inadequate background checks on the elves before hiring them. Well, we now have a problem. The elf we hired from the major logistics company has been accused of misappropriating trade secrets relating to their delivery route optimisation algorithm. Worse, however, he’s been working on our algorithms for the last 9 months so who knows what third party trade secrets he’s incorporated in them!? Could this even mean that all of our presents become “infringing goods” under that new European trade secrets directive when it comes in? Of course, we’ve also had that other elf leave us to join the toy company in you-know-where. He knows a lot about the new tooling set-up in our workshop, but given the diverse range of protection afforded trade secrets globally, I never know quite when we can stop them from taking our ideas.
- Cybersecurity: Another nightmare, particularly when combined with our data protection issues (see above). Lots of families depend on us for a happy Christmas. But does that make us an “operator of essential services” under the upcoming European Network and Information Security Directive? I suspect many parents would say we provide a “service which is essential for the maintenance of critical societal…activities”, but on the other hand we don’t seem to be what the directive really had in mind! Who knows. Anyway, sorting out the contracts for replacing our ancient IT network and complying with this directive is now my successor’s problem. Our data breach response plan hasn’t made it beyond its first draft, by the way.
- Patent Trolls and defensive patent strategy: Two years ago, I advised you that we needed to divert some funds from the reindeer to plan our patent strategy, including acquiring some defensive patent protection in the event of patent litigation. You responded that the reindeer deserved their annual 4-month vacation in the Maldives. How does their little holiday look now that we are facing three patent claims from patent trolls? In case you didn't read my email, the patent trolls allege that we are infringing patents that invariably protect various methods for delivering packages by means of an animal-drawn vehicle wherein said delivery takes place on 25 December. I have talked to our patent lawyers and they say that the patent claims at issue are likely obvious, but the cost of fighting these claims is going to put a huge dent into the elves's rehabilitation and physical therapy fund after the numerous hours they spend in the workshop. Which brings me onto ...
The above are only the latest in a long line of nightmare matters I have to tackle day-in and day-out. Yes, beating your criminal charges for breaking and entering and damage to property has become routine, thanks in part to me being on first name terms with every public prosecutor in the world (which reminds me, please stop landing on thatched rooftops - the reindeer cannot control their appetite). And, yes, I can handle a product liability case with my eyes closed (though your risks in these cases would be halved if the elves ever bothered to follow the established quality control checks). But, taken all together, its too much for one GC.
- The elves: I am sick of the elves.
Nevertheless, I wish you the best of luck in your future and may the next GC have an easier time of it than I did.
With best wishes
Santa Claus Inc.
Cc: HR Department"Oh dear. Well, if anyone is interested in the position, you can send your application to email@example.com. In the meantime, on behalf of all of the IPKat team, we wish you and your family a very happy and joyful holiday wherever you are. And, if Santa is part of your holiday experience, perhaps give a thought to Ms Night before you pen that letter of complaint.