Letter from AmeriKat II: Bits and Pieces

• Microsoft’s Trade Secrets Case - Microsoft settled a lawsuit filed earlier this year in Washington against a former employee that it had charged with fraud, misappropriation of trade secrets and breach of contract. Miki Mullor had applied for a job at Microsoft in 2005, stating that he had been employed by Ancora as its CEO, a company that had gone out of business. According to the lawsuit, Mullor, once employed by Microsoft, downloaded confidential documents unrelated to his position about Microsoft’s technology that allows computer maker’s customers the ability to forgo the Windows operating system activation process. In June 2008 Mullor then filed a lawsuit in California against Dell, HP, Toshiba and Microsoft on behalf of Ancora, claiming infringement of a patent related to this technology. The details of the settlement which resolves all claims between the parties have not been revealed. For more information see this article in PCWorld and this article in the Seattle Post Intelligencer.

• E-Bay, Skype and exclusive jurisdiction clauses – On the day that Skype founders Niklas Zennstrom and Janus Friis reached a compromise with eBay for the use of their company's (Joltid) software code, Mr Justice Lewison ruled that the dispute had to be conducted in the English courts. Clause 19.1 of the purchase agreement between E-Bay and Skype specified that any disputes were to be governed exclusively by the English court system despite Joltid’s having issued the suit in California. Lewison J was not finding favour with any of Joltid’s arguments that the activities covered by the agreement took place mostly in the US and should thus that should be the appropriate form. Lewison J stated at para 33:

"What one might call the standard considerations that arise in arguments about forum non conveniens should be given little weight in the face of an exclusive jurisdiction clause where the parties have chosen the courts of a neutral territory in the context of an agreement with world-wide application. Otherwise the exclusive jurisdiction clause would be deprived of its intended effect. Indeed, the more "neutral" the chosen forum was the less the importance the parties must have placed on the convenience of the forum for any particular dispute. If the standard considerations that arise in arguments about forum non conveniens were to be given full weight, they would almost always trump the parties' deliberate selection of a neutral forum. "

Not surprising then, that the parties subsequently announced their settlement later that day. The neutral case citation is [2009] EWHC 2783 (Ch). To read the judgment click here; for a note on the decision in The 1709 Blog click here.

• Three Strikes and You’re Out – Boston resident Samuel Steele’s lawuit against Bon Jovi and Major Leage Baseball claiming $400 billion for the band’s “I Love this Town” allegedly copying his 2004 song of “Man, I really Love This Team” has been dismissed. Bon Jovi’s song had been used by Major League Baseball in advertising the 2007 playoffs. In August, US District Court Judge Gorton ruled that he found no substantial similarity between the two songs. Steele then asked the court to reconsider Judge Gorton’s motion which was denied in October. Steele is allegedly positioned for a third swing at the claim. All baseball fans know the old adage: three strikes and you are out! See this article in NME.

• ACTA Now to Oppose or Support the Agreement - In a memo sent to the Senate Judiciary Committee by the Motion Picture Association of America (MPAA) last Thursday, the MPAA urged lawmakers to support the Obama administration’s negotiations of an intellectual property agreement with over a dozen countries. The Anti-Counterfeiting and Trade Agreement’s (ACTA) ambit is meant to only address counterfeit physical goods, but following a leak of an ACTA fact sheet published in November 2008 by the European Commission entitled “Discussion Paper on a Possible Anti-Counterfeiting Trade Agreement”, it was discovered that ACTA would also include the involvement of ISPs to remove infringing material. Opponents to ACTA thus came out in force over the proposed wide measures and the secrecy of ACTA’s negotiations and provisions. In the MPAA’s letter Dan Glickman, the chairman of MPAA, stated that “opponents of ACTA are either indifferent to this situation, or actively hostile towards efforts to improve copyright enforcement worldwide.” Basically the standard “you are either with us or against us” argument which, in the AmeriKat’s mind, invokes memories of the Bush administration under which the U.S.’s involvement with ACTA was introduced. The Seventh Round of the ACTA negotiations to conclude the Agreement are due to take place in Mexico in January 2010 – just around the corner! For more information please see this article in Wired and an older article from the Guardian.

• Twitter to Murdoch: Genie is out of the bottle – For those IPKat readers who share the AmeriKat’s interest in the topic of the newspaper industry’s battle against digital content, please see this recent article from the Guardian. Guardian reporter Richard Wray reports on Twitter’s founder, Biz Stone, declaring that Murdoch

“should be looking at [the internet] as an opportunity to do something radically different and find out how to make a ton of money out of being radically open rather than some money by being ridiculously closed.”