April 2011

In this, the THIRD of our blogs on the Lime Wire copyright infringement litigation (see Real Money and A Resounding Victory), we find lawyers who previously argued over TRILLIONS of dollars now bickering over a measly few hundreds of thousands.

No builder would try to construct a house without a proper foundation, as such a house would likely collapse. Similarly, no lawyer should try a lawsuit without laying a proper foundation for a favorable decision, as a judgment found to be lacking foundation will not survive a challenge. (Mirror Worlds LLC v. Apple Inc.)

It is often said, by trial lawyers, that if the jury didn’t hear it, it doesn’t count. Well, not always! (Bruce N. Saffran, M.D., PH.D. v. Johnson & Johnson and Cordis Corporation)

Just as you can’t make a silk purse from a sow’s ear, so too you can’t make a conspiracy or a breach of fiduciary duty out of a simple breach of contract. (Netologic Inc. v. The Goldman Sachs Group, Inc.)

Netologic is a small company in the business of “developing, promoting and selling complex performance analysis and knowledge management systems … to capture, explore, and evaluate research, sales, and trading ideas for the financial community.”

As the conscientious reader of this column is aware, Larry Flynt, of Hustler Magazine fame, recently sued his kid brother Jimmy, alleging infringement of the HUSTLER trademark. (If you are not conscientious, see All You Ever Wanted To Know About HUSTLER – And More.) Well, whatever emotional problems bedevil Larry to cause him to bring his ridiculous lawsuit apparently runs in the family, as evidenced by Jimmy’s latest antics.

We have repeatedly preached against the sin of greed. Well, we now have a case where the plaintiff clearly did not demand enough. (Affinity Labs of Texas, LLC v. BMW North America, LLC et al.)

Affinity is a small – two person – firm which owns two patents directed to “a system and method for connecting and integrating a portable electronic device, such as an MP3 player, with a second electronic device such as a car’s sound system.” It does not practice the patented inventions.

Just a few days ago we wrote about the success of Lime Wire, the defendant in a copyright infringement action, in reducing its damages exposure from trillions of dollars to merely hundreds of millions (see A Resounding Victory). Well, Lime Wire’s efforts to further reduce that exposure, to only tens of millions of dollars, were not so successful.

It is not often that a defendant in a lawsuit deems it a victory that the damages it will be ordered to pay will be measured in the hundreds of millions of dollars and not in the trillions. (Arista Records LLC et al. v. Lime Group LLC et al.)

To those of us who are old enough to buy liquor without a fake ID, “spam” means something more than junk e-mail. To us, SPAM® is a spiced, chopped-ham product produced by the venerable Hormel meat packing company. The product is packaged in rectangular cans bearing the word “SPAM” in yellow lettering on a blue background. Appearing below the word “SPAM” is a picture of a sandwich comprised of a slice of the meat product on a sesame seed bun. Hormel claims use of this “trade dress” going back to 1937 and further alleges to have sold over 7 billion cans worldwide.

Well folks, we have a new winner in our Chutzpah In Litigation contest. (Fairey et al. v. The Associated Press)