Judge Gorton denied both parties’ motions to disqualify each other’s expert witnesses in a contentious litigation involving allegations of doctored evidence. LovePop asserts that PaperPop infringed its copyright in several designs of pop-up greeting cards. PaperPop produced documents and photographs that were alleged to show that PaperPop conceived of the designs first, but LovePop purports that PaperPop tampered with the metadata to falsely back-date the documents to the relevant date. LovePop proffered an expert who would testify as to what metadata was, the means for manipulating metadata, and that some of PaperPop’s documents could not have been created on the dates alleged because the software with which they were created had not yet been made available. PaperPop in turn proffered an expert to testify that LovePop’s expert used unvalidated testing to achieve his results and to present the results of his testing that show the tests of LovePop’s expert were unreliable and incorrect. Judge Gorton determined that both parties’ complaints were directed to the credibility of their opponents’ experts, who were otherwise both well-qualified. Accordingly, he denied both motions.
Sonya Larson filed suit against Dawn Dorland Perry, Los Angeles-based Cohen Business Law Group, and attorney Jeffrey A. Cohen, seeking a declaration that a short story published by Larson does not infringe the copyright of a letter posted by Dorland Perry on Facebook. Dorland Perry donated a kidney to an anonymous recipient in 2015, and subsequently wrote a letter to the unknown recipient outlining the reasons for her donation and expressing interest in meeting the recipient. She posted the letter to a private forum on Facebook that included Larson. Larson, who acknowledges having had a nominal social relationship with Dorland Perry in the past, asserts she was included in the forum without her permission or authority and that she had seen Dorland Perry’s letter. Three years later, Dorland Perry registered her copyright in the letter. Larson authored a short story about a working class Chinese-American woman who receives a kidney from a wealthy white woman, with a primary goal of depicting a “person of color resisting a white savior narrative,” in which the recipient receives a letter from the previously-anonymous donor. Larson states that in preparing this portion of her story, she researched and viewed many websites and similar letters from organ donors that were widely available on the internet. After a public reading of a portion of her story was reported to Dorland Perry, Larson alleges that Dorland Perry believed the story to be about her and became very upset. In subsequent edits, Larson made changes to the story to distinguish the fictional letter from Dorland Perry’s actual letter. The story was subsequently published in audio book format and accepted for printed publication, at which point Dorland Perry is alleged to have instituted a smear campaign against Larson and repeatedly accused her of plagiarism to Larson’s employer, members of her writing group, various writing organizations, and the Boston Globe newspaper. Larson was moved to file the action when Attorney Cohen, representing Dorland Perry, sent a demand to her publisher that they case and desist from further printings of the story, and the acceptance for publication was rescinded. Larson’s claims against Cohen and his firm are based in part on their threat of statutory damages and attorney’s fees against her publisher, which Larson asserts Cohen knew or should have known were not legally viable, as registration occurred more than three years after Dorland Perry’s letter was first published. Larson also asserts tortious interference with contractual relationships, defamation, and violation of Ch. 93A.
Richard Liebowitz strikes again, filing three more copyright infringement and DMCA Violation cases in Massachusetts to go along with the seven he filed earlier this month. In these cases, as with the previous set, he alleges that copyrighted photographs were used on the defendants’ websites without license, and that digital watermarks were removed from the photographs. Each of these acts is alleged to be willful and knowing, without any further elaboration, and Liebowitz seeks actual and/or statutory damages and attorney’s fees. The cases are before Judges Boal, Saris, and Stearns.
Judge Cabell granted in part Defendants’ motion to supplement the existing protective order to permit the designation of documents as subject to a patent acquisition bar. This designation would mean that any party or attorney with access to such a document would be prohibited for acquiring patents or applications relating to the same subject matter as the patents in suit, or advising client regarding the same, for a period of two years following the conclusion of the litigation. The motion was allowed as relates to defendant EMC Corporation, but denied as to Lenovo and NetApp. Judge Cabell identified Intellectual Ventures as being in the business of “monetizing patents through litigation and licensing campaigns,” and noted that the business had acquired close to 100,000 patents in its lifetime. After deciding that Federal Circuit law governed the issue, Judge Cabell rejected the majority approach, which required the moving party to first show an unacceptable risk of inadvertent disclosure of confidential information, on a counsel-by-counsel basis, if no bar is put in place, finding that this placed an unrealistic burden on the moving party and contradicted Federal Circuit case law. Instead, he determined that the burden of demonstrating the existence or absence of risk should be on the party who possesses that information, such that once a bar is in place, it is up to the non-moving party to seek exemptions from the bar on a counsel-by-counsel basis. Applying this standard, Judge Cabell found the risk that Intellectual Ventures’ counsel would be unable to compartmentalize the confidential information of EMC when subsequently advising their client on future patent acquisition and litigation. Judge Cabell limited the information that could qualify for this designation to confidential technical information, such as source code and schematics, and excluded confidential financial information from this protection. As to the Lenovo and NetApp defendants, Judge Cabell determined that they had failed to show good cause or a significant risk of inadvertent disclosure of their confidential information, and he denied them the use of the designation.
Sanderson-McLeod sued Hobbs Medical for patent infringement, asserting a pair of patents relating to protective tips on wire cleaning brushes. The complaint asserts willful infringement, saying that Hobbs was put on notice in August 2018. The complaint does not indicate which claims of the asserted patents are infringed, or what products are accused of infringement, which may lack sufficient detail to survive a challenge.
Pure Encapsulations sued Wind & Sky, which does business as “Wendy’s Wellness Supply” on Amazon, for Lanham Act and common law unfair competition, unfair and deceptive trade practices, and tortious interference with Pure Encapsulations’ agreements with its authorized resellers. The complaint is extremely similar to the one brought against Lean Living, down to identifying the same negative on-line reviews received for the defendants’ alleged bad acts (although the negative reviews on the defendants’ site differ from those of the prior complaint). Judge Burroughs has this case.
Notorious New York copyright lawyer Richard Liebowitz filed five different copyright infringement suits in Massachusetts. Liebowitz, is well known for filing hundreds of infringement suits and seeking to extract settlements without consideration of the merits of the lawsuit or the defenses asserted against them – I have personal experience with his tactics, which amounted to filing suit without first seeking to resolve matters and then simply demanding an outrageous dollar amount without explanation or justification, using the threat of the Copyright Act’s statutory damages and attorneys’ fees provisions to drive settlement. Liebowitz had yet to actually get to summary judgment or trial on any of his cases at the time, and indeed had settled virtually all the cases he filed without getting into discovery, and often without the defendant having answered the complaint. Liebowitz has been criticized by courts on several occasions and has been sanctioned for his litigation conduct, with S.D. N.Y. Judge Kaplan identifying one such filing as frivolous, and Judge Cote labelling him a “copyright troll” and imposing monetary sanctions and required Liebowitz take ethics classes. None of this is to say that the defendants did not infringe the copyrights of the plaintiffs – as Liebowitz has noted in his defense, it is very common for people to find photographs on-line and simply cut and paste the photos into their own projects, without license or attribution. The amounts sought by Liebowitz, however, vastly exceed the royalties that the photographers would have obtained, even with attorney’s fees included. The cases are split between Judges Stearns, Kelley, Saylor, Casper, Woodlock, and Young.