Joseph M. Gusmano

Monday, September 26, 2005
Wednesday, October 20, 2004
From the Eighth Circuit, October 19, 2004
Mulcahy v. Cheetah Learning LLC (CIR8 10/19/2004) is a copyright case involving competing test prep materials for the Project Management Professional (PMP) exam. The defense is that the plaintiff did not have a valid copyright over the materials of the maker of the test, Project Management Institute (PMI). But there was a material question of fact as to whether the Plaintiff's work was derivative, whether she had permission, and on the issue of fair use, and so partial summary judgment and permanent judgment are vacated. Plaintiff's work is here; PMI's work is here. Defendant's work can come out now.
Tuesday, October 19, 2004
One thing I learned in my abortive attempts to put together a useful web presence is that people want to syndicate! So try the Bloglines and myFeedster links over in the right column. I use Bloglines now for my reading and I love it. Also, if you like nice clean URL's I bought and which redirect to those weblogs.
For the Ninth Circuit Court of Appeals cases I am aware of no current third-party source for the opinions than Findlaw. The Ninth Circuit website has an opinions page with PDF versions but I cannot get the search page to work right, which means that it is not very useful unless you know what case you are after. And there is no way to link the documents directly. If you are in the Ninth Circuit and have another resource let me know, the goal here is to be able to do meaningful research without a monthly subscription. Getting the memoranda for the last 30 days and some of the oral arguments on audio is a plus if you are following the circuit closely, but for my purposes it is just a gimmick. Better to spend that bandwidth on keyword searching that works. The Ninth Circuit hears appeals from California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, and Hawaii.
Monday, October 18, 2004
The Lure of the Open Road

This is not mission-compliant on either the Patent Project or the Trademark Project, but I include it here for completeness, to get the opinion links for the Ninth Circuit, and because I do not often deal with the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030 (USDOJ version here). In Creative Computing v. LLC (CIR9 10/15/2004) the defendant operating was caught by the operator of with its hand in the loadmatching cookie jar.

Liability in the suit was based on the Idaho Trade Secrets Act and the relatively obscure civil provisions of the CFAA, which is at 18 U.S.C. 1030(g):
Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B). Damages for a violation involving only conduct described in subsection (a)(5)(B)(i) are limited to economic damages. No action may be brought under this subsection unless such action is begun within 2 years of the date of the act complained of or the date of the discovery of the damage. No action may be brought under this subsection for the negligent design or manufacture of computer hardware, computer software, or firmware.
Subsection (a)(5)(B)(1) covers any economic loss, and the $5,000 annual threshold for damages is very low for a successful commercial website. Needless to say, it is very important to look at this statute whenever your client's trade secret claim involves unauthorized computer access.
Thursday, October 14, 2004
Federal Circuit Cases
REPOST: In keeping with my plan to put the case law resources together, I dug out this moldy oldie from the Federal Circuit which still spins--Ed. I know three ways to get the decisions:

1. The Federal Circuit web site posts opinions for the past several months. They are posted in Microsoft Word format, which is easy to bring up in WordPad if you don't have Word, and is very readable, but not very good to link to. And the link comes down after a while.

2. The Georgetown University Law Center (my alma mater) library web site has opinions in well-formatted HTML and in PDF, which I like, but sometimes they are a couple of days behind on the decisions. And you can do a full text search.

3. FindLaw posts opinions promptly, and you can search by date and party name in addition to a word serch. But they are unformatted text, so they are hard to read with the formatting gone, and usually the footnotes are missing too! Obviously not the best way to go.

None of the above have the opinions in a proper slip opinion format. I don't even know if they issue one. So there is no proper method of legal citation without paying for a commercial one.
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