Month: June 2015

I just posted a revised version of my article on legal crowdsourcing on SSRN here : http://bit.ly/1MUUAxK

This article (forthcoming in the American Business Law Journal) discusses the emergence of legal crowdsourcing, the various forms it can take, and its implications for the legal profession. Overall, I think this model has great promise to promote greater access to the legal system, improve the quality of legal advice and the rate of legal innovation. Entrepreneurs are already starting to use this technique to fend of larger competitors who use the legal system to bully smaller enterprises. The legal profession is starting to embrace this model and I think we’ve reached a turning point in the profession, technology and society to the point where we’ll see legal legal crowdsourcing become a mainstream practice. Take a look at the paper and let me know your thoughts. 

I just re-read Kurt Eichenwald’s wonderfully researched and written Vanity Fair article The Great Smartphone War. It’s getting harder to find such high quality journalism that is both meticulously researched and enjoyable to read. Eichenwald’s account, like all great works of journalism, puts you in the time and place of the described happenings, in this case the all-out legal and strategic battle between Samsung and Apple. The article goes into marvelous detail about the legal aspects of the case, but what motivated me to blog about it were two things: 1. The cunning nature of Samsung’s bare-knuckled and wildly successful legal strategy; 2. How the U.S. legal system upholds such ruthless legal maneuvrings, much to the detriment of pioneering designers and innovators.

As the article points out, Samsung mastered a pattern of strategic legal maneuvering that consists of: “when caught red-handed [infringing patents], countersue, claiming Samsung actually owned the patent or another one that the plaintiff company had used. Then, as litigation dragged on, snap up a greater share of the market and settle when Samsung imports were to be barred.” As I point out in my recent MIT Sloan Management Review article, this amounts to a higher-order legal strategy that few companies are able to execute with as much success.

The article also points out how Apple’s designers spent nearly two years toiling in secret, at great expense and risk, iterating to achieve a pioneering design. So much effort went into the design of the device’s single button that 50 iterations were made for that single design aspect of the iPhone. According to the article, when one of the Apple designers saw Samsung’s competing offering (the Galaxy S), he could not help but exclaim: “We’ve been ripped off.”

The article points out many great details of the case, and understandably it does not dwell on the legal issues of product design and trademark infringement. In the end, Samsung was ordered to pay nearly a billion dollars in damages, but that may have been part of its legal strategy calculus as it grew market share during litigation. The infringement award would be a fairly trivial amount taking into account all that was to be gained.

As someone who researches and writes in the area of trademarks and product design, it amazes me how little product design gets respected in the courts. So much effort can go into the design and marketing process and the property rights that are obtained often do little to vindicate the designers and risk takers. The appropriate remedy to deter such strategic legal maneuvering at the expense of pioneering designers is to recognize that irreparable harm will arise from the infringement, and that court ordered injunctions to prevent copying need to be the legal standard for pioneering design, such as shape trademarks. Otherwise, strategic copycat followers will always consider the path of least resistance and will consider engaging in strategic infringement.

My retired FSU colleague, office neighbor and erstwhile lunch companion Professor Emeritus Vinny Stauber was starting to clean out his office upon retirement several months ago. I had been in his office many times and always noticed the large compendium of American Business Law Journal (ABLJ) volumes stacked neatly on his shelves. Some issues went as far back as 1969. Being the total research geek that I am, I gazed upon them with admiration and asked him if he had plans to keep them. Noting my interest, he kindly offered to grant them to me. I gladly accepted the offer. The reason why is because many of these older ABLJ issues are not digitized and can only be referenced and accessed in print. Having published three articles in this journal and served as a staff editor I have an affinity for the journal’s mission, which is to publish leading research articles for those of us who teach legal studies courses in business schools. Over the years, the ABLJ has been able to, through its able editorial leadership, reviewers and authors, establish itself as a one of top double-blind, peer-reviewed business law journals. Today it is widely respected among practitioners, academics and policy makers.

On Vinny’s last day I took the box full of ABLJ issues, unpacked them and stacked them on my shelves in order, and noticed that Vinny’s collection dated back to Volume 7, Issue 1 Spring 1969. As I perused some of article titles I was inspired to think about how the journal and its authors have steadfastly advanced our knowledge of business law over the years. As educators and researchers, we owe a lot to our predecessors who helped advance, shape and position our academic field.

Today, as I peruse Volume 7 Issue 1, I noticed that the research articles back then were mainly devoted to exposing the readership about current and evolving legal issues. For example, Ohio State University Professor Frank F. Gibson’s article “Strict Liability in Tort: Recovery for Non-Accidental losses” discusses strict product liability as a new theory of liability. It blows my mind to think that strict product liability was a new theory of liability, but such was the case in 1969. These articles, in a pre-Internet/Google era, had the important function of communicating the latest legal developments to the educators in our field tasked with teaching these developments to future business professionals.

I now display my greatly expanded collection of ABLJ volumes prominently in my office with great joy and pride. I will continue to read through these old issues, and when something of interest and relevance stands out, I’ll make sure to add a post and comment on this blog.