Ride the Ducks has filed a trademark infringement suit against Bay Quackers regarding a sound mark it registered for the quacking sound its duck kazoos make (!).  For those not familiar, tourists can obtain kazoos that make ducks sounds to use while on one of these tours.  Sound marks are a type a trademark that work in roughly the same manner as normal trademarks.  For example, NBC has received a trademark for not only its visual logo (the peacock) but also its auditory logo (the chimes). Similarly, AOL has sound marked “You’ve Got Mail”; the Harlem Globetrotters have a sound mark on the whistled version of “Sweet Georgia Brown”; and even the Pillsbury Doughboy’s giggle is protected.  To obtain protection of sound marks, the USPTO requires first, that the mark be a source identifier, i.e. when a person hears the sound, she associates it with a company.  Secondly, the sound must be distinct, a property that can be either inherent to the sound or acquired through usage.  Lastly, the sound must not be functional.  Sound marks are very rare, with the USPTO database showing only about one hundred and fifty live marks.

While a lawsuit over quacking kazoos seems inherently ridiculous, it has major business ramifications, especially for the alleged infringer, Bay Quackers.  Should Ride the Ducks receive the injunction it has sought, it would receive a commercial advantage in a very competitive market.  Such an advantage, regardless of how small it may be, could be enough to tip the scales.

I’m sure these thoughts seem absurd (especially to those outside of urban areas in New England), but I can’t help but ponder them when I spend hours trying to find, clear out and keep a parking spot on my street in Somerville, MA (New England’s most densely populated city).  It doesn’t help matters when the city declares a snow emergency, towing cars parked on the even side of the street and cutting the number of available parking spaces in half.

The visceral notion that “I shoveled it, I should get to keep it,” rings true in a classic Lockean way: the labor of your body and the work of your hands is properly yours.  See John Locke, Second Treatise of Civil Government, Chapter 5, §27.  But from a modern legal standpoint, it would seem impossible for a private citizen to obtain any kind of property right in what is certainly government property.  It’s not the wild west, you can’t stake a claim to a piece of pavement simply because you surveyed it, dusted it off and tied your horse up there.  Methods other than simply staking your claim don’t look promising.  Generally, adverse possession is not an option, as most States explicitly exempt public roadways from adverse possession by statute.  See, e.g., Colo. Rev. Stat. § 38-41-101(2) (2008).  Notably, Massachusetts is an exception to this rule, only disallowing adverse possession against the commonwealth and its political subdivisions except in connection with land used for certain environmental purposes.  See Mass. Gen. L. Ch. 260, §31; Lawrence v. Concord, 439 Mass. 416 (2003).  Still, because of the unlikelihood of occupying a city parking space for 20 years in any urban area of the Commonwealth without someone breaking the continuity, adverse possession isn’t a realistic option, even in Massachusetts.

Nonetheless, a longstanding snowstorm practice, especially in South Boston, is to put lawn furniture, traffic cones, trash cans, cinderblocks and any other large object in resident-cleared parking spaces in order to reserve them.  These rights are vigorously defended in that neighborhood, resulting in the aforementioned slashed tires, broken windows, and even the occasional assault.  This is a place where you simply do NOT want to take someone’s clearly marked space.

Despite the questionable legality of this process, it has been sanctioned by Boston mayor Thomas M. Menino, to a limited extent.  In 2003, in response to some South Boston residents reserving spaces for three weeks after a two-inch snowfall, Menino put in place a 48-hour cap on the reservation of shoveled out spaces, implicitly endorsing the practice.  A long battle between Menino’s garbage crews (who pick up the milk crates, barrels and shopping carts used to save spaces) and South Boston residents have ensued, epitomized by South Boston city councilor James M. Kelly’s declaration to Menino that “I’ve got more barrels than he’s got trucks.”

It’s questionable whether Menino even has the authority to allow the private reservation of public property, even for a limited time, but only in the most academic sense.  The fact is that parking spaces will continue to be reserved in South Boston and other urban areas of Massachusetts, whether legally or not, and municipalities will implement their own policies to prevent, curtail or begrudgingly accept the practice for practicality’s sake.  So as I continue to battle the relentlessly falling snow, increasingly discolored by salt, sand and cat litter, I will consider the prospect of defending the product of my labor as John Locke would say I should… and probably just look for another parking space.

NERA contends that any reasonable person would have known that the hard disk of a computer makes a “screen shot” of all it sees, which the computer then stores in a temporary file, including e-mails retrieved from a private password-protected e-mail account on the Internet. NERA further contends that any reasonable person would have known that these temporary files, although not readily accessible to the average user, may be located and retrieved by a forensic computer expert. This Court does not agree that any reasonable person would have known this information. Certainly, until this motion, this Court did not know of the routine storing of “screen shots” from private Internet e-mail accounts on a computer’s hard disk.

Furthermore:

The bottom line is that, if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. all such e-mails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer.

Funny you should ask.

Generally a signature is any mark by which a signee intends to be bound. In the old days, it could be an “X” or even in modern days an incomprehensible scribble. It was generally used as a hedge in support of a statute of frauds claim. Written by hand, there are some evidentiary tactics one can use to authenticate a signature—but in an electronic age, what do we have?

First, it has to be understood that a contract with a “real” written signature isn’t self-authenticating. A signature does not a contract make. Even though I have my own fancy, idiosyncratic signature, if I sign a contract with my non-dominant hand and misspell my name, I can still make that contract binding.

Therefore, there’s really no difference between me writing an “X” and calling it a signature and typing my name out on an electronic document. In either case, under oath, I would have to say, yes, I did sign it and mean to be bound by the agreement.

But then we shift back into the real world. Do I really think that a name typed into a word processing document binds me to a contract I want to sneak out of? No way!

Well, maybe. Few things in life are in a vacuum. So leading up to the digital signing of that DOC or RTF file, there’s a chain of e-mails that comprise negotiations. Then in the contract we specify:

Section 9(a)(i)(B) [T]he Licensor e-mails the Digitally Signed Agreement to the Journal from the Licensor’s E-mail Address to the Journal’s E-mail Address, both specified below, and within the body of the e-mail message types “I, [Licensor’s name], hereby accept the attached Publication Agreement.”

There, we have quadruple authentication: a signature on the electronic document, a chain of e-mails leading to an e-mail with an acceptance, a second typed signature in an e-mail, and then an “authenticating” e-mail address. If there’s author metadata in the document, then that’s just a bonus.

Taking a look at ALR: In Cloud Corp. v. Hasbro, Inc., the Seventh Circuit court of appeals ruled that the sender’s name in an e-mail was sufficient as a signature. 314 F.3d 289, 49 U.C.C. Rep. Serv. 2d 413 (7th Cir. 2002). Similarly, the First Circuit ruled in Roger Edwards, LLC v. Fiddes & Son, Ltd. that a chain of business e-mails referencing an agreement satisfied the statute of frauds requirement in Maine. 245 F. Supp. 2d 251 (D. Me. 2003). Part of the reasoning behind courts’ acceptance of electronic signatures hearkens back to days when a typed signature on a telegram was held sufficient for a contract. See Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super. 2001).

So maybe this isn’t the *perfect* way of creating a contract. But it has to be weighed with the need for expediency in the larger system. And, as a law journal and forum, isn’t it part of our job to test the waters and try new things to push the edge of legal thinking and processes? BCIPTF was the first law journal to be completely on-line. We have to continue this tradition of keeping new and current in the face of uncertainty.

These rules all have common features.  They require early disclosures of Preliminary Infringement Contentions and Preliminary Invalidity Contentions, together with supporting documents.  They require parties to set out a schedule at the Rule 26 conference, deciding the course of claim construction.  Parties must exchange lists of terms to be construed, preliminary constructions, and then submit a joint claim construction statement.  Construction briefs must be written.  Finally, the claim construction hearing (or “Markman Hearing”) is held, where the judge hears both parties’ constructions and supporting evidence, and finally decides on the construction to be used for the rest of the litigation.

The advantage of these patent local rules is that they set deadlines for the completion of claim construction discovery and the hearing, thus pushing the cases along the court docket.  Parties can focus early on what terms they need to research and construe, and what interpretations will work best for their arguments.  Early disclosure ensures cooperation in these endeavors.  Jurisdictions with these patent local rules are thus popular with plaintiffs who want resolution quickly.

However, patent local rules have been criticized because they may focus the issues too early, before the parties ( and the judge) really know what is at stake.  Rules that do not allow changes in construction after preliminary exchanges may be too rigid as parties realize later in the case that they missed important issues.  Further, many of these procedural events occur before the judge is able to comprehend technology involved.  For this, many have recommended neutral tutorial sessions for the judge, or assistance of Special Masters to help the judge learn the technology or science involved in the case.

The Boston Globe recently ran an article by Sacha Pfeiffer regarding the possibility of drafting patent local rules for D. Mass..  Judge Stearns gave positive comments, and a few other judges have responded positively.  The current President of the BPLA, Lee Bromberg, said that applying patent local rules in D. Mass. would make the jurisdiction more attractive for plaintiffs, lowering costs of litigation for local businesses (particularly some of the smaller biotech companies), and also boost business for local hotels, restaurants, law firms, and support as more people come to litigate.  Just look what making patent litigation more attractive did for E.D. Tex.!  It will be an interesting story to follow as rules are drafted and tried out by the D. Mass. judges.      

Unfortunately, two of the men, Tameleo and Greco, died in prison. The other two, Salvati and Limone, spent more than 30 years in prison.

Yes, I agree that the FBI should be punished for their blatant disregard for the law some 30 years ago. But I resent that these four men are portrayed as wronged “innocents.” They were all part of the Cosa Nostra gangland in Boston. They came in with dirty hands. Perhaps one or two of them were mere hangers-on, lowlife peons, but Tameleo was reputedly consigliere of the New England mob, and Limone was a Boston leader.

And, on a side note, the WBUR reporter, Fred Thys, is a graduate of my alma mater, Williams College. Hurrah!

The Tregor Tax stamp goes on the master deed of your condominium project. To obtain it, go down from the third floor to the mezzanine. Go around the central offices and to Window 31. There you present your master deed for their review along with a bank check or a check from an IOLTA, conveyance, or client’s account fund. If all pans out well, you get a stamp and a signature from someone in the back.

And now the procedure for obtaining a Tregor Tax stamp in Boston is on-line. (Until this moment, there’s only a Craigslist mention of this on Google. And I’m pretty sure that “Tregor” is the correct spelling because “Traeger” and “Trager” came up with nothing.) Best of luck to all of you, and please remember to tip your waitress.

The defense is that the child porn should be suppressed because interception of that material is in violation with the Massachusetts wire tap statute. Well, that fails because the communications were “tapped” in Ohio, and therefore the Massachusetts statute doesn’t apply. Furthermore, generally e-mail is treated more like postal mail than phone conversations, and so most courts don’t apply wire-tap statutes anyways.

Here’s what Judge Fabricant thought about it:

The question presented by this motion is whether the defendant’s e-mail and instant message communications were unlawfully intercepted within the meaning of the statute. The Court concludes that they were not, for each of two distinct reasons: First, Haueter received and recorded the communications not in Massachusetts, but in Ohio, where he was not subject to the Massachusetts statute or any similar statute; and second, Haueter’s receipt and recording of the defendant’s communications was not secret, but rather was with the defendant’s knowledge and implicit consent.

In explanation:

In State v. Lott, 152 N. H. 436, 439-442 (2005), the Supreme Court of New Hampshire applied a statute similar to ours to facts virtually identical to those presented here. After thoroughly exploring the nature and characteristics of electronic mail and instant messaging, the Court concluded that the defendant there, by using those methods of communication, “as a matter of law, consented to the recording of his communications,” because recording on a computer is inherent in such communications. Electronic mail, the Court reasoned, is essentially the equivalent of leaving a message on an answering machine; one who sends an e-mail anticipates that it will be recorded. Lott, supra, 152 N. H. at 441, citing State v. Townsend, 57 P. 3d 255, 260 (Wash. 2002). See also United States v. Maxwell, 45 M. J. 406, 418 (U. S. C. A. Armed Forces, 1996) (likening e-mail to sending a letter; sender retains no control, and no expectation of privacy). Instant messaging, similarly, is automatically recorded on the recipient?s computer. The recording remains as long as the chat window is open, and may remain indefinitely if the recipient uses any of various options that are inherent in the instant messaging program to preserve it. Lott, supra, 152 N. H. at 441, citing State v. Bouse, 150 S. W. 3d 326, 329 (Mo. Ct. App. 2004). One who uses these methods of communication, the Court concluded, is on notice of the inherent recording, and implicitly consents to it. Lott, supra. The Lott case, although not binding on this Court, is persuasive, and this Court adopts its reasoning to reach the same conclusion.

So, again, it’s OK for the government to search and seize your electronic communications. Basically, once you send a message to someone else, you do it knowing that they are keeping a copy of it. But does that mean that it’s not private? Does that mean you don’t expect them to send it to the general public? This case doesn’t get into any “expectation of privacy” reasoning; it avoids it altogether. But it’s still a good summary of the current state of the law, pre-Long, and that’s why I’m posting on it.