Intellectual Property

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How much for a “disease domain”?

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4 Times Square

4 Times Square

Today’s Lawyerly Lairs column is about a Skadden associate’s search for a home (other than 4 Times Square, where he surely spends most of his waking hours). The firm requires sacrifices of its lawyers, but it also offers rich rewards, including generous pay and ample prestige. There’s a reason that Skadden is a top 10 firm in our new law firm rankings.

Working at Skadden gives you the ability to buy a Manhattan apartment while you’re still in your early 30s. The home we’re about to view is not a lavish lawyerly lair, but it’s a perfectly respectable starter apartment.

Let’s have a peek, shall we?

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Now that Bingham McCutchen appears to have found a savior, talk is turning to other firms that have experienced a lot of recent partner attrition. One such firm is Dickstein Shapiro, which lost the most partners to lateral moves in 2013 and has continued to shrink over the course of 2014.

Today brings word of more Dickstein departures. Who are the latest lawyers to leave?

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Ed. note: This is the latest post by Above the Law’s guest conversationalist, Zach Abramowitz, of blogcasting platform ReplyAll. You can see some of his other conversations and musings here.

In August, Personal Audio Inc. — a “patent troll” or a “patent holding company,” depending on your point of view — dropped its case against Adam Carolla for alleged violations of its purported patent on podcasting, or more specifically, creating sequenced playlists for download. Personal Audio apparently thought it could get a settlement out of Carolla, the same way it has against CBS and other big companies, by threatening expensive litigation.

But in his typical %^&# you fashion, Carolla proceeded to join forces with other podcasters, like Jay Mohr and Marc Maron, to crowdfund a legal defense fund against Personal Audio. The resulting litigation ultimately caused Personal Audio to drop its lawsuit. Mike August is a former William & Morris agent, an attorney, and the business manager of Carolla Digital. He has been nice enough to answer some of my questions and tell us about the future of podcasting and crowdfunded lawsuits.

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In the mists of the ancient past, the American legal profession agreed to cede responsibility for developing a consistent citation method to the most anal-retentive of law school gunners determined to lord their mastery of unnecessary commas over people. Ultimately, the whole thing is an exercise in hazing law students. Torturing students over questions of underlining or italics is kind of a lame hazing ritual, but long gone are the days when a young Louis Brandeis was dared by ne’er-do-well Harvard 3Ls to head down to the local theater and yell “Fire!”

But the Bluebook is also a cash cow because every lawyer needs to own a copy that they’ll promptly ignore because in the real world, everyone blindly trusts their online research database to get it right and barring that, no one much cares about the minutiae of the Bluebook as long as everyone can easily find the source. Besides, you can get close enough for government work with the outdated ratty copy you were issued in law school. Very few judges are going to flip out if you signal “See” where you could just insert the cite.

Now that cash cow is in jeopardy, because one law professor thinks he can get everyone a free copy of the Stickler’s Bible. How, you ask?

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Sometimes, the internet seems to exist largely in order to rate things. User-generated and unverified reviews of everything from movies to cars abound. The thing with this proliferation of ratings, be they on Yelp, or Amazon, or whatever, is that we usually don’t have any idea whether or not the reviewer has any basis for his rating. (In fact, the spoof product review has become its own literary micro-genre.)

Spurious or baseless ratings are not a problem when it comes to ATL’s Insider Survey (17,300 responses and counting — thanks everyone!), in which practicing attorneys and current students evaluate their own schools or employers. Among other things, our survey asks attorneys to nominate firms with over- and underrated practices within the respondent’s own practice specialty. Litigators nominate litigation departments, etc.

Which firms do those in-the-know consider to be better (or weaker) than their reputations?

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A time-sensitive matter comes in. An experienced hand is needed to help. Where to look for that help? In Biglaw, the answer is usually an easy one: call up Partner No. 37 in distinguished branch office No. 6, and keep the billable hours rolling — with a happy nod towards a successful “cross-sell,” and instant validation of the underlying “size is good” concept behind so many of today’s firms. But is Partner No. 37 really the best lawyer to help out? Hard to believe that the answer is “yes” more often than not. Because Biglaw firms are constructed the way they are, however, there is a premium on making sure that existing firm resources are utilized as much as possible.

At the same time, we know the legal industry is struggling to cope with demand fluctuations, or all too often a lack of demand for expensive legal services. In the current environment, it is not a surprise to see Biglaw firms contorting themselves to reach optimal size, whether through mergers, layoffs, or lateral growth. Despite their efforts, there are very few firms that are optimally size-calibrated in relation to the demand for their services. For those firms fortunate enough to experience the occasional demand spike, retaining the ability to be nimble on staffing can mean the difference between a satisfied client or one who looks elsewhere “next time there is a big need.” Firms want repeat business, and being able to incorporate experienced additional lawyers — within the budget for a particular matter — onto the legal team can make a real difference in whether or not that repeat business happens.

But where else can firms (of all sizes) go for experienced help on short notice?

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Cease-and-desist letters are usually useful legal tools to help combat the appropriation of intellectual property, but sometimes lawyers are a little too quick to send them out.

Take, for example, a recent C&D letter Instagram’s legal department sent to a website owner who was supposedly infringing upon the photo-sharing service’s trademark with his registration of the “slutsofinstagram.com” domain name.

You can’t blame Instagram for not wanting its mark to be associated with a website purporting to depict the “Sluts of Instagram,” but as it turns out, the offending website doesn’t have any sluts at all…

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In the court

The California Court of Appeal held earlier this month that certain right of publicity claims are freely assignable, and that the Copyright Act does not preempt a right of publicity claim where the defendant has no legal right to publish the copyrighted work. The decision, Timed Out v. Youabian, 2014 Cal. App. LEXIS 830 (Cal. App. Ct. Sept. 12, 2014), will encourage right of publicity lawsuits and increase the costs associated with rights clearances.

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Decorative Scales of Justice in the Courtroom

On September 17, 2014, the House Judiciary Committee approved the bi-partisan federal Trade Secrets Protection Act of 2014, H.R. 5233, which we previously wrote about when introduced in July, 2014 by North Carolina Representative George Holding. H.R. 5233 seeks to amend the Economic Espionage Act of 1996 to create a federal civil remedy for trade secret misappropriation. Regarding the importance of the Act, Rep. Holding and other supporters noted that “[a]s of 2009, the value of trade secrets owned by U.S. companies was estimated to be nearly $5 trillion. While current federal law protects other forms of intellectual property by providing access to federal courts for aggrieved parties to seek redress, there is no federal option to do so for trade secret theft.”

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