Jacobsen v. Katzer – Open Source infringment

In August, the Court of Appeals for the Federal Circuit issued a ruling (Jacobsen v. Katzer) that has been widely discussed as acknowledging the rights of developers of open source software. This opinion, while not necessarily binding in Minnesota, is helpful in illustrating important issues that relate not only to open-source software licensing and development but to general contracts that apply to everyone.The dispute involved an open-source developer and a company that used the open-source code as a part of their own software. Despite a license that required that the open-source developer be credited and copyright information retained in subsequent use of the code, the defendant stripped out this information. The issue was whether failing to provide this information caused the subsequent software to be an infringement of the plaintiff’s copyright, or whether it was simply a breach of contract - the difference meaning considerably different remedies.The opinion contained an extensive discussion on the importance of “conditions” verses...
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Copyright Basics

Every once and a while it is good to go back to basics.What is a copyright?A copyright is a set of rights (often referred to as a "bundle of rights") afforded to the owner of original works. Under federal law these rights include the right to reproduce the work, prepare derivatives of the original, and the right to perform the work publicly. By controlling these rights the owner may receive income from licenses in the form of royalties or directly from the sale of these rights.How do I get a copyright?Under current U.S. law all that is required to get a copyright is that the original work be "fixed" in a "tangible form." For example, if you are a writer, once the words appear on the page (or on computer disk) you have a copyright. There are no registration requirements to obtain the copyright, however, in order to enforce the copyright the work must be registered with the Copyright Office...
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Poor Man’s Copyright

A frequent comment I hear when talking with musicians is that they think mailing a copy of their music to themselves will work just like a copyright registration, but cheaper. This is sometimes known as a "Poor Man's copyright." While this might (and I use the term loosely" be helpful from an evidence standpoint, it doesn't really help with who created it and it will likely run into all kinds of evidentiary problems. Writers are much better off going ahead and filling out the copyright application. By filing a registration you set yourself up to collect attorney's fees and potentially higher damages if you have to file a lawsuit. By the way, in order to even get into a court on a claim of copyright infringement you have to file a registration, but if you wait to long to register you may lose out on some forms of damages.The better advice is to always put together a...
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Morals Clause

What does a "morals clause do?MoralityThe basic idea is simple - if you are in the public eye and you do something stupid and doing that stupid thing makes the purpose of the contract frustrated, then the other party can say I'm canceling the deal. For example, lets say the Queen of England enters into a contract with a department store to endorse its new clothing line "Queen." She might have a clause in her deal that says something likeQueen agrees to conduct herself with due regard to public conventions and morals, and agrees that she will not do or commit any act or thing that will tend to degrade her in society or bring her into public hatred, contempt, scorn or ridicule, or that will tend to shock, insult or offend the community or ridicule public morals or decency.She then gets arrested for soliciting men in a downtown Minneapolis hotel. The Department store has an interest in protecting its...
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Non-compete is based on customers, not location.

While worker non-competes have are generally construed against the employer, the standard of enforceability in the sale of a business in more liberally interpreted in favor of the party seeking to enforce, as it is focused on whether the restriction is reasonable to protect the goodwill of the business that was sold.When selling his optometry business, Jay Peterson agreed not to “participate, compete or be engaged in the business of optical goods . . . within a five-mile radius of . . ." the location of his former business. After a dispute arose concerning the terms of the sale, Peterson opened a new practice ten miles away, which would have been fine except for the fact that he then took out advertising in the newspaper located in his old town encouraging clients to come and see him at the new location. In February, the Minnesota Appellate court ruled that the Peterson could be prevented from placing those advertisements even though...
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Minimum Contacts in A Virtual World

This article was orignally printed in Minnesota Bench & Bar (February 1998)Each month thousands of American businesses create new Internet sites in order to market and distribute products and services nationally or internationally. The ease of using the Internet for global marketing has struck down many of the previous financial and legal hurdles that companies were required to clear. Consequently, many businesses are rushing forward without considering the possibilities that they may be subjected to the jurisdiction of distant states or nations, and courts increasingly are finding that web pages create the minimum contacts necessary to exercise personal jurisdiction over distant defendants. Thus, the challenge for attorneys is to help businesses use this vibrant medium without being subjected to the jurisdiction of foreign states and countries. The rest of this article can be found at kunklelaw.net...
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The Human Side of the Deal

It was recently speculated that the settlement of a $60 million dollar royalty lawsuit against EMI by the Apple Corp. was partially driven by a desire of Paul McCartney to begin having Beatles music available for downloads, which in turn was also a factor in the exit of Beatle's executive Neil Aspinall who, according to reports, had largely opposed allowing the Beatles catalog to go online. [See]This just goes to show that business may be business, but it also has a very human aspect. Business decisions are made by people, who make decisions for business purposes -- but in the end, decisions are often driven by factors outside the business. In this case the divorce and lack of antenuptual agreements by Paul McCartney may, as is speculated, been a factor the ouster of a top executive, driving the settlement of a multimillion dollar lawsuit, and a future milestone in digital distribution....
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Fart Dolls and Opinions

While you would think the first posting of a new blog would take the high road and post on something impressive in order to flex a little muscle, I can't resist making this the first post.In what is one of the more amusing topics for a case that I've seen lately, the U.S. 7th Circuit Court of Appeals recently issued an opinion in a copyright case involving "fart Dolls." The dolls name you ask? - "Pull my Finger Fred." An interesting opinion, however I suspect the judge enjoyed the opportunity to be a little juvenile - I mean how often is he going to have the opportunity to use some version of the word "fart" over 40 times in a single opinion, or my favorite "silent but deadly." Let's face it, this is a rare opportunity for you as a judge and I'm frankly a little disappointed he didn't take it further. As an attorneythe thing I find fascinating is...
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