Monthly Archives: November 2011

Google and the Sherman Act or: How I Learned to Stop Worrying and Love Civil Procedure

Posted on November 29, 2011 by Damion Jurrens under The Bolt

Overview

Google’s market dominance has attracted the attention of the press, competitors, and now the federal government. Recent articles, cases, and hearings seem to point toward an inevitable collision between the industry giant and the Sherman Act, the federal statute governing antitrust issues. Complaints from competitors have thus far yielded little, but what happens if the government decides to turn its discussion into litigation? Recent history might provide some clues as to what lies ahead.

A Tale of Two Venues

Two recent courtroom victories for Google highlight the importance of proper pleading, especially when leveling antitrust accusations against one of the most recognized brands on the web. In the first case, TradeComet v. Google, the Second Circuit affirmed the Southern District of New York’s grant of Google’s motion for summary judgment based on a forum selection clause in Google’s contract with the operator of a business-to-business search engine. Citing Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure, Google argued that a clause in the contract specifying that all lawsuits between the parties must be brought in Santa Clara County called for dismissal of the case. After considering the option of transferring the case to California, the Southern District of New York granted Google’s motion and dismissed the case.

The Court of Appeals held that the trial court was not required to convert a Rule 12(b) motion to dismiss into a § 1404(a) motion to transfer, and upheld dismissal of the complaint. This meant that Google was never forced to address the merits of the case itself, which alleged that Google AdWords violated the Sherman Act through its monopolistic business practices. In this instance, poor venue choice by the plaintiff and solid lawyering by Google further validated a forum selection clause aimed at avoiding a proliferation of suits in multiple fora.

The second case, Google v. MyTriggers, saw Google venture outside of its home court in California to sue a client for nonpayment, only to be waylaid by antitrust counterclaims. Continue reading →

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GPS Tracking: United States v. Jones

Posted on November 28, 2011 by Jesse Koehler under The Bolt

Overview

On November 8, 2011, the United States Supreme Court heard oral arguments in United States v. Jones, a case involving the warrantless placement of a GPS device on Antoine Jones’ vehicle by law enforcement and the subsequent tracking of Jones’ movements in his vehicle. While the Court has not yet delivered a ruling, the arguments brought up both by counsel and the justices provide insight into the critical issues of privacy at stake. These issues include the fear of giving law enforcement too much leniency in their tracking procedures and the question of whether GPS reveals any information that is not normally exposed to the public.

United States v. Maynard (United States v. Jones): D.C. Circuit Decision

The case currently before the Supreme Court arose out the D.C. Circuit’s decision in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) cert. denied, 131 S. Ct. 671, 178 L. Ed. 2d 500 (U.S. 2010) and cert. granted, 131 S. Ct. 3064 (U.S. 2011). Maynard addressed the appeal of Antoine Jones and Lawrence Maynard regarding their convictions for conspiracy to distribute cocaine, and possession with intent to distribute. Id. The D.C. Circuit held that the lower court had erred in admitting evidence obtained by law enforcement agents through the use of a GPS device placed on Jones’s vehicle and thus reversed Jones’s conviction while separately affirming Maynard’s conviction. Id. at 568.

In its analysis of whether or not to admit the evidence obtained from the GPS device, the D.C. Circuit set the stage for the case currently before the Supreme Court. Jones argued that the police had violated the Fourth Amendment’s prohibition of “unreasonable searches” when they installed a GPS device on his vehicle without a valid warrant and tracked his movements for four full weeks. Id. at 555. Specifically the court questioned (1) whether the use of GPS indeed constituted a search against Jones’s “reasonable expectation of privacy,” (2) whether Jones’s locations recorded by the GPS constituted private information, and (3) whether Jones could have properly held a reasonable expectation of privacy for his movements in the four weeks police tracked him. Id. at 555-565. Continue reading →

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United States v. American Society of Composers, Authors and Publishers; in re RealNetworks, Inc., Yahoo!, Inc.,

Posted on November 7, 2011 by Jesse Koehler under The Bolt

Overview

The Supreme Court’s recent declination to hear an appeal from the American Society of Composers, Authors and Publishers (“ASCAP”) regarding the Second Circuit’s decision in United States v. American Society of Composers, Authors and Publishers, 627 F.3d 64 (2d Cir. 2010), has provided the digital music industry with a steadfast digital adaption to the definition of what constitutes a “public performance” — a definition within which song downloads to do not fall. Moreover, the Second Circuit’s decision, untouched by the Supreme Court, provides some guidance for how the district court should properly calculate the royalties that ASCAP should receive from companies that stream music from ASCAP’s musical repertory.

Licensing Music and Public Performance

ASCAP protects the rights of its over 420,000 members by controlling the licensing of the use of its members’ copyright-protected music and helping to collect and distribute the appropriate royalties for public performances of the music. Potential licensees can either license the use of specific musical works or they can negotiate a blanket license fee for the use of ASCAP’s full musical repertory, as was the situation in the instant case. Under copyright law, ASCAP and its largest competitor Broadcast Music, Inc. (“BMI”) have the exclusive right to play their members’ music publicly and to permit others to do the same.

Traditionally, a public performance of a musical work meant a performance for “a substantial number of persons outside of a normal circle of a family and its social acquaintances.” 17 U.S.C. §101. In the present age of technology, a public performance is understood to mean the transmittance or communication of a musical work “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. Thus, the broadcast of ASCAP or BMI copyright-protected music on a television show, over the radio, or streaming online requires the broadcaster to construct a licensing agreement with the respective organization. In the instant case, ASCAP argued that digital downloads should fall within the second definition of a public performance that generally covers electronic broadcasting. Continue reading →

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