September 10, 2005
Bob & Doug on international franchising
From: Bob & Doug McKenzie, The Hoser, Aug. 2005:
Bob: So anyway, we got some burritos and tacos [at Taco Bell] but we didn't order any drinks. We got those at the Beer Store.
Doug: As usual.
Bob: So here's some Mexican beer. [Looks at bottle, reading.] "Cerveza."
Doug: Who's he?
Bob: Huh? He who?
Doug: Sir Veza.
Bob: What the? -- No, look! [Hands Doug the bottle and points.] "Cerveza."
Doug: Oh, what's that mean?
Bob: Beer, I think.
Doug: Ah, so when we're in Mexico we can order some.
Bob: Do they have Beer Stores there?
Doug: No, I think they sell it at Taco Bell.
Bob: Taco Bell?!
Bob: In Mexico?
Doug: Well there's Kentucky Fried Chicken places in Kentucky, I don't see why they can't have a Taco Bell in Mexico.
Woody Guthrie’s Contract with RCA
In April 1940, RCA Victor Record Company contracted Woody Guthrie to record an album containing his Dust Bowl Ballads. This was Woody Guthrie's first "commercial" recording. Under the “Artists Letter Agreement,” Woody Guthrie promised to produce a record with at least 12 “Dust Bowl Songs of [his] own composition and arrangement.” [Page 1 of the contract; Page 2 of the contract]. In return, RCA gave Woody Guthrie 5% of the retail list price in royalties and a meager $25 advance against those royalties.
[Meredith R. Miller]
Changes in UK employment law?
“Over the last months there have been a number of decisions of the [British] Court of Appeal and the Employment Appeals tribunal ("EAT") that will have significant practical impact on several important areas of employment law,” according to Jones Day’s United Kingdom Summer Employment Law Roundup.
Today in History: September 10
1823: The Champlain Canal, which connects Lake Champlain with the Hudson River and (via the Erie Canal) the Great Lakes, is opened.
1839: Publisher Isaac Kaufmann Funk is born at Clifton, Ohio. An ordained Lutheran minister, he’ll start his own publishing company in 1876 with a college classmate, Adam Willis Wagnalls.
1846: Elias Howe gets a patent for the first U.S. sewing machine using a lock stitch. When Isaac Singer uses Howe’s patent to make his sewing machines, Howe’s income will go from $300 to $200,000 a year.
1889: Legal realist and judge Jerome New Frank is born at New York City.
1890: Couturier Elsa Schiaparelli is born at Rome, Italy. In 1931 she’ll invent what she calls a “divided skirt,” but others will call “tennis shorts.”
1897: At the A.D. Pardee & Co. mine near Hazleton, Pennsylvania, a county sheriff’s posse opens fire on labor demonstrators, killing 19 Polish, Slovak, and Lithuanian immigrant workers and wounding 40 more.
1977: A one-legged 27-year-old Tunisian immigrant becomes the last person to be executed by guillotine in France.
September 9, 2005
Cases: New infringement doesn't re-start K claim
New acts of copyright infringement may reignite the statute of limitations for copyright, but they don’t resuscitate claims for breach of contract and breach of implied contract, says the U.S. Court of Appeals for the Ninth Circuit in a case involving the film Terminator 2.
Back in 1987, Filia and Constantinos Kourtis copyrighted a synopsis of concept called The Minotaur, with the hopes of some day making a movie. The minotaur is half-man, half-bull, and can transform himself into several shapes. William Green wrote a screenplay based on the concept. In 1989, the screenplay reached Cameron’s hands, and he expressed an interest in perhaps making the movie. In 1991, Cameron released Terminator II: Judgment Day. Green filed a copyright infringement suit. Defendants won a summary judgment motion on the grounds that the two stories were not substantially similar. The Kourtises were not part of the suit.
Sometime after 1998, the Kourtises filed suit against Cameron for copyright infringement, breach of implied contract, breach of oral contract, and breach of confidence. The lawsuit was dismissed on grounds of collateral estoppel and statute of limitations.
There was no collateral estoppel, said the court, because the Kourtises were not in privity with Green, and therefore were not bound by the judgment in that case; the fact that they’d had the chance to intervene was irrelevant. As to the statute of limitations, a new act of infringement can “re-start the clock” for a copyright infringement claim. Since Terminator II had recently been released on DVD, and Terminator III might also violate the copyright, the statute of limitations period started anew. But that didn’t help the breach of contract claims, implied or otherwise. Any breach by Cameron would have occurred a decade earlier, and the limitations period for such contract is two years. The contract claims were therefore barred, but the copyright claims could go forward. Kourtis v. Cameron, 2005 U.S. App. LEXIS 17146 (9th Cir.,Aug. 15, 2005).
The Benefits and Drawbacks of “E-Negotiation”
Does negotiation of a contract on e-mail speed up the process or slow it down? A recent article from law.com posits that, paradoxically, it does a little bit of both. Obviously, e-mail allows the parties to exchange the information more quickly than traditional methods. However, in so doing, it facilitates the exchange of numerous drafts, which may actually slow down the negotiation process. Also, e-mail replies require “at least a little time to compose and send.”
Likewise, absent traditional “face to face” or telephone interaction, the importance of certain negotiation points may become obscured; “throw in” points to a contract make appear to take on a higher level of significance. Similarly, without “direct communication” the effectiveness of “subtle pressures” may be lost.
It seems, then, that the optimal negotiation strategy does not exclusively use e-mail, but also uses telephone and “face to face” exchanges.
[Meredith R. Miller]
Katrina's Effects on the Louisiana Courts
With all of the immediate human suffering, Katrina's effects on the courts in Louisiana have not been on the forefront. However, an article today in the Dallas Morning News addresses the issue of how the court system is coping with the disaster. The Louisiana Supreme Court building has been completely flooded, a fate shared by many of the lower courts along the Gulf coast as well. Many case files have been destroyed. Gov. Kathleen Blanco issued an order suspending all state court operations through Sept. 25. The federal 5th Circuit Court of Appeals, meanwhile, has immediate plans to relocate to Houston by next week, and then relocate to a suburb of Baton Rouge by the end of the year, according to Judge Patrick Higginbotham.
Lawyers in the affected area are also scrambling to restore order. Many have relocated to other cities, and are reconstructing their case files through access to electronic court databases where available, and also through help from opposing attorneys. According to Louisiana State University law professor John Baker, the entire ordeal is a "lesson about what many of us take for granted, of what it takes to function every day, of what it takes to keep a society together."
Today in History: September 9
1543: Six-day-old Mary Stewart becomes Queen of Scotland on the death of her father, James V. She’ll be betrothed at 5, widowed at 18, and beheaded at 35.
1776: The Continental Congress formally changes the name of the United Colonies to the United States.
1850: Texas cedes its claims to the lands that now comprise all or parts of Nevada, Utah, New Mexico, Arizona, Colorado, and Wyoming, in exchange for federal assumption of $10 million in state debt.
1886: The Berne Convention for the Protection of Literary and Artistic Works, the first international IP agreement, is issued.
1890: “Colonel” Harland David Sanders is born at Henryville, Indiana. He’ll begin selling chicken at age 40 as a sideline for his gas station in Corbin, Kentucky, and will begin franchising at age 62.
1909: Railroad tycoon Edward Henry Harriman, who quit school at 14 to take a job as a Wall Street errand boy and managed to buy his own seat on the New York Stock Exchange at 22, dies at age 61.
1926: The National Broadcasting Co., Inc., the first broadcast network in the U.S., is formed by its parent, the Radio Corporation of America.
1947: A moth lodges in a relay in a Harvard University computer. This is the first recorded computer “bug.”
1995: The “PlayStation Generation” is born as Sony introduces its popular videogame console into the U.S.
September 8, 2005
Rio 1, Rod Stewart 0
After deliberating for about three hours, a federal jury in Las Vegas Wednesday found that Rod Stewart must repay the $2 million advance the Rio paid Stewart in 2000 for a concert the singer never performed. According to a jury spokesperson, the jury "faulted attorneys for both Stewart and the Rio who drafted the business contracts, saying they loaded key clauses with ambiguous language. The complicated wording and contradictory clauses made it hard to determine what should happen if Stewart was unable to perform." Stewart's attorneys plan to appeal.
Newman Excused by a Condition Subsequent?
In the Seinfeld episode, “The Calzone,” George and Newman strike a deal whereby Newman will buy calzones for George to give to New York Yankees owner George Steinbrenner, and George agrees to buy food for Newman in return. George needs Newman to buy the calzones because he has been banned from the store. Subsequently, the following exchange occurred:
George: Well, I was dropping off the calzone money for the week . . . . Um, shouldn't you be at work by now?
Newman: Work? It's raining.
George: Soooooo . . . .
Newman: I called in sick. I don't work in the rain.
George: You don't work in the rain? You’re a mailman. "Neither rain nor sleet nor snow . . . .." It's the first one!
Newman: I was never that big on creeds.
George: You were supposed to deliver my calzones. We had a deal!
Newman: I believe the deal was that I get the calzones on my mail route. Well, today I won't be going on my mail route, will I? Perhaps tomorrow.
George: But I'm paying you!
Newman: Yes, thank you. [Slams door.]
Costs of Katrina
The human misery aside, Hurricane Katrina will almost certainly go down as the most expensive disaster in U.S. history. Unlike the second-most expensive, Hurricane Andrew, insurers apparently won't be picking up most of the tab. The good folks at the Wharton School have a take on the probable costs, problems, and results of rebuilding, in Picking Up the Pieces. Free registration is required.
The Singing Brakeman on Railroads
If he hadn't died of tuberculosis at the age of 35, the first true country music star, James Charles "Jimmie" Rodgers, would be 108 today. The "Singing Brakeman," born in Pine Springs, Mississippi, and raised in Meridian, got his nickname from his work on the railroads before disease made him turn to music. Here's his ode to some of the great old railroads of his day. (Images: Wikipedia)
Jimmie the Kid
Words and music by
Jimmie Rodgers & Bob Neville
I'll tell you a story of Jimmie the Kid.
He's a brakeman, you all know.
He was born in Mississippi, away down south,
And he flagged on the T. & N.O.
He yodeled to fame on the Boston Maine,
The Wabash, and the T.P.
From the old Grand Trunk to the Cotton Belt,
He yodeled on the Santa Fe.
On the Lehigh Valley, he yodeled awhile,
Then he went to the Nickel Plate.
From the old Lake Shore and the Erie Line,
He yodeled to a Cadillac Eight.
He yodeled his way to the C. & A.
The Lackawanna and I.C.
He rode a rattler called the Cannon Ball
Then he yodeled on the M.K. & T.
[Click on "continue reading" for the key to the railroads mentioned.]
T& N.O.: Texas & New Orleans
Boston Maine: Boston & Maine
Wabash: Wabash Railroad
T.P.: Texas & Pacific
Grand Trunk: Grand Trunk Railway
Cotton Belt: Cotton Belt Line
Santa Fe: Atchison, Topeka & Santa Fe
Lehigh Valley: Lehigh Valley Railroad
Nickel Plate: New York, Chicago & St. Louis
Lake Shore: Lake Shore & Michigan Southern
Erie Line: Erie Railroad
C. &. A.: Chicago & Alton
Lackawanna: Delaware, Lackawanna & Western
I.C.: Illinois Central
M.K. & T.: Missouri, Kansas & Texas (also called the “Katy”)
The "Cadillac Eight" was a popular touring sedan during the Depression. (Image: Wikipedia)
Hamline Seeks Contracts Prof
Hamline University School of Law in St. Paul, Minnesota is looking for "promising scholar/teachers" to teach contracts and commercial law. Those interested should contact Professor Peter N. Thompson at this e-mail address.
Analysis of Google Print Library Project
Previous posts yesterday and on August 15th discussed Google’s Print Library Project. While this discussion may begin to sound more like material for an IP blog, it is worth clarifying information in previous posts. In an insightful piece, Jonathan Band clears up any confusion from press reports about the project. For example, he explains that the project consists of two facets: the Print Publisher Program and the Print Library Project.
Under the Print Publisher Program, a publisher controlling the rights in a book authorizes Google to scan the full text of the book into Google’s database. When a user searches the database, the user sees the full page of the book containing the search term, and a few pages before and after. A link brings the user to websites offering the book for sale. Apparently, this aspect of the program is conducted pursuant to an agreement between Google and the copyright holder.
Under the Print Library Project, Google plans to scan materials from prominent libraries into a database. This is the project that Google temporarily suspended in its August 11th announcement, allowing publishers to “opt out” by informing Google which books they do not want scanned into the database. Users will be able to search this database and browse the full text of public domain materials. For copyrighted materials, the sentence with the search term will appear in response to the search, along with a few sentences before and after. Mr. Band states that:
a full page of the book is never seen for an in-copyright book scanned as part of the Library Project unless a publisher decides to transfer their book into their Publisher Program account, in which case it would be under the agreement between Google and the copyright holder.
Because a search in the Print Library only calls up a few sentences, Mr. Band concludes that Google’s program “will not conflict with the normal exploitation of works nor unreasonably prejudice the legitimate interests of rightsholders.”
[Meredith R. Miller]
Today in History: September 8
1504: Michelangelo’s statue David is unveiled at Florence. Underneath, he’s naked.
1565: A Spanish expedition relieves the siege of Malta, where 700 Knights Hospitaller, together with some mercenaries and townspeople, have held out against 30,000 Ottomans for nearly four months.
1636: The Great and General Court of the Massachusetts Bay Colony votes to establish the first educational institution in the U.S., which they name “New College.” The name will be changed three years later to “Harvard,” after its first donor.
1810: Thirty-three employees of John Jacob Astor’s new Pacific Fur Co. sail out of New York en route to Oregon, where they will found the town of Astoria as a fur trading post.
1900: As many as 12,000 people die when a hurricane rips through Galveston, Texas, the deadliest storm in U.S. history. The death toll for Hurricane Katrina may pass it.
1923: Seven near-new U.S. Navy destroyers all run aground on rocks near Santa Barbara Island, California, and are lost.
1930: Minnesota Mining & Mfg. Co. introduces a hot new product: Scotch brand transparent tape.
1935: Dr. Carl Weiss, M.D., fires a fatal bullet into Louisiana Governor Huey Long with a Colt .32 automatic. Long’s bodyguards thereupon put 61 bullet holes in Weiss.
1966: The first episode of a new science fiction series called Star Trek airs on NBC. Not many people watch.
September 7, 2005
AOL Settles With New York AG
America Online (AOL) recently settled with Elliot Spitzer, the high-profile Attorney General of New York, over charges that AOL imposed unnecessary and confusing obstacles to AOL customers who called in order to attempt to cancel their internet subscription service. AOL reportedly offered substantial bonuses to customer service representatives who "saved" a customer from canceling. The problem was that many AOL employees simply ignored such requests, rather than truly persuading the customer not to cancel. The settlement requires AOL to eliminate any minimum "save" requirement for its employees, to secure third-party monitors for cancellation requests, and to refund money to aggrieved AOL customers whose cancellation requests were ignored. The claim form is available here.
News in Brief
A small satellite company that claims General Dynamics breached its agreement to help it develop a new project won a $130 judgment from a Maryland jury yesterday. (Washington Post)
Formula One driver Jacques Villeneuve says new team owner BMW is going to have to honor the 2006 contract signed with him by former owner Peter Sauber. (F1 Central)
An F-16 pilot fired from his job for his voluntary participation in National Guard activities doesn’t have to reimburse his employer for the $13,000 in training costs he agreed to repay, says an Arkansas jury. (Springfield-Rogers-Bentonville-Fayetteville Morning News)
New York City’s firefighters are seeking arbitration after bargaining with the city reached an impasse. (Newsday)
Korea’s KTF has awarded a major contract to Canada’s Nortel for key equipment for a new ultra-high-speed broadband wireless service in the country’s 17 largest cities. (Ottawa Sun)
Leaders of the Canadian Auto Workers are on Wall Street today to explain that they won’t be willing to give concessions to General Motors and Ford on a new three-year contract, pointing out that labor costs at Canadian auto plants are already $10 an hour less than those in the U.S. (Globe and Mail)
Boeing has won another contract over its rival, Europe’s Airbus consortium, this one from Poland’s LOT national airline. (Seattle Post-Intelligencer)
The beleaguered coach of South Africa’s national soccer team apparently has no intention of resigning before his contract runs out in 2006, and the governing authority apparently has no good excuse to fire him because there's no performance clause in the agreement. (South Africa Business Day)
Blair visits at Hamline
In 1998, Blair finished work on a Masters of Arts degree in literary theory at the University of North Dakota. Blair went on to earn his J.D. from Hamline University School of Law in 2001, where he was a Dean's Scholar. Blair then clerked for Judge Paul A. Magnuson, former chief judge of the Federal District Court in Minnesota. For the past two years, Blair has been a litigator at a Greene Espel P.L.L.P. in Minneapolis, focusing on complex commercial and contract litigation.
In addition to teaching Contracts, Blair is teaching International Trade and Economic Regulation and Commercial Law at Hamline this year. He is currently finishing an article entitled You Don't Have to be Ludwig Wittgenstein: How Interpretive Communities and Llewellyn's Concept of Agreement Should Change the Law of Requirements Contracts.
Transition problems for Article 9
Strictly speaking, we don’t do Article 9 stuff on this blog, but enough of our readers also teach or practice Commercial Law that we thought we’d mention a useful client piece from Edwin Smith and Neil Cohen of Boston’s Bingham McCutcheon, Transition Issue Looms in Revised UCC Article 9. It's a very nice little statutory conundrum with, as the author notes, three possible outcomes.
Cleveland-Marshall seeking Contracts prof
The Cleveland-Marshall College of Law of Cleveland State University, is looking for three tenure-track faculty, one of whom will teach Contracts. These days the former "Mistake by the Lake" is one of America's hottest locations -- routinely rated as one of America's "Most Liveable" cities and getting top marks as one of the best cities for urban hikers, with vibrant neighborhoods and miles of lakefront trails. Click on "continue reading" for the ad.
Cleveland-Marshall College of Law, Cleveland State University, invites applications for three tenure-track faculty positions. Primary curricular needs are Contracts, Civil Procedure and Alternative Dispute Resolution, and Public International Law (including National Security Law). Other needs include Taxation and Trusts & Estates. Applicants must have a J.D. degree or its equivalent, a distinguished academic record, and a potential for significant scholarly achievement. In furtherance of our institutional commitment to a diverse faculty, we particularly welcome applications from women and minorities. Cleveland State University is an equal opportunity employer.
Under the leadership of a new Dean, after completion of the most successful fundraising year in our history, and with a 5-year plan in place to make the law school smaller and stronger, Cleveland-Marshall College of Law is an exciting place to thrive. Moreover, Cleveland's world-class cultural amenities, such as the Cleveland Orchestra, the Cleveland Museum of Art, and the Rock & Roll Hall of Fame and Museum, its vibrant professional sports teams, and its reasonable real estate prices and commute to downtown Cleveland and the law school make it a pleasurable place to live.
Please submit letters of interest, resumes (including the names and addresses of at least three references), and a statement describing your scholarly research agenda no later than November 1, 2005, to Professor Deborah A. Geier, Cleveland-Marshall College of Law, 2121 Euclid Ave., L.B. 138, Cleveland, OH 44115.