Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Unmasking Anonymous Online Speakers: John Doe Subpoenas, the Dendrite and Cahill Tests, and the First Amendment
When a defamatory review, a leaked document, or an infringing upload comes from an anonymous account, the route to the person behind it runs through a subpoena to a platform or internet provider, and courts will not enforce that subpoena until the plaintiff clears a First Amendment threshold. This article explains where the right to speak anonymously comes from, from Talley and McIntyre to Reno v. ACLU, and how courts turned it into the tests that govern unmasking: Seescandy, Dendrite, Cahill, Highfields, the Sony Music factors adopted in Arista Records, and the Ninth Circuit's instruction in In re Anonymous Online Speakers that the nature of the speech should drive the standard. It surveys how state appellate courts and federal circuits have chosen among those tests, what the mass BitTorrent cases did to early discovery, joinder, and personal jurisdiction, and how the Stored Communications Act, the Cable Act, Section 230, and the DMCA subpoena provision limit what a platform can hand over. It then covers procedure and timing, the statute of limitations and relation back problem, the evidence a prima facie showing requires, the anti-SLAPP overlay, and strategy for the plaintiff, the anonymous speaker, and the platform. A worked example follows a restaurant targeted by a fake review campaign from complaint to identification, and the article closes with common mistakes, an FAQ, and practical takeaways.
Hearsay and Business Records Checklist: A Practical Checklist
This checklist turns hearsay and business records practice into tasks you can tick off from the first discovery plan to the verdict. Each phase names the governing rule or case, with short notes and red flags where exhibits commonly fail. It separates steps for the party offering records from steps for the party opposing them. Phases cover classification, third-party data, system and AI output, certifications and notice, summaries, summary judgment, pretrial objections, trial, and criminal cases. It is built to be printed and used on a desk alongside the exhibit list.
Copyright Ownership, Joint Authorship, and Termination of Transfers
Copyright vests automatically in the author the moment a work is fixed, and almost everything that goes wrong afterward is a failure to move that ownership deliberately. This article explains who owns a copyright at the moment of creation, how the work made for hire doctrine reassigns that ownership to an employer and why it almost never applies to independent contractors, and what joint authorship actually requires under the divergent tests of Childress v. Taylor and Aalmuhammed v. Lee. It then covers transfers: the strict writing requirement of section 204(a), the implied nonexclusive license that fills the gap when parties forget it, recordation and the priority rules that reward it, and the diligence questions that reveal a broken chain of title. The final part addresses the termination right, an inalienable statutory power that lets authors and their heirs claw back grants after thirty-five years under section 203 or during a five-year window under section 304(c), including the notice mechanics, the derivative works exception of Mills Music v. Snyder, and why the right cannot be waived no matter what the contract says. It closes with a worked example, a diligence checklist, an FAQ, and related reading.
Responding to an IRS Notice of Deficiency
A statutory notice of deficiency gives the taxpayer ninety days to file a petition in the United States Tax Court, and it is the last opportunity to litigate a proposed tax without first paying it. The deadline is short, the consequences of missing it are severe but not always fatal, and the decision it forces—which forum, and on what theory—shapes everything that follows. Before responding, counsel must verify that the notice is valid, calculate the deadline precisely, and determine whether the underlying case was ever heard by the IRS Independent Office of Appeals, which remains the only administrative body authorized to settle on litigation risk. This guide covers verifying the notice, computing the deadline, choosing a forum, drafting and filing the petition, the path through docketed Appeals, and the alternatives available to a taxpayer who let the ninety days run.
Protecting a Trademark Abroad: The Madrid Protocol, Territoriality, and Abitron v. Hetronic
A U.S. trademark registration stops at the border, and this article explains what a brand owner has to do to hold the same mark in other countries and what U.S. law will and will not do about infringement abroad. It walks through the treaty architecture (the Paris Convention, TRIPS, and the Madrid Protocol) and how the Lanham Act implements it through Section 44 and Sections 60 to 74, including priority claims, the five-year dependency period, central attack, and transformation. It then tells the story of Abitron Austria GmbH v. Hetronic International, the 2023 Supreme Court decision confining the Lanham Act's infringement provisions to domestic use in commerce, and traces what remains of Steele v. Bulova and the older effects tests. The article explains the circuit split over the famous-marks doctrine, from Grupo Gigante in the Ninth Circuit to ITC v. Punchgini in the Second, and the Belmora and Meenaxi line on foreign owners suing in the United States. It closes with trademark squatting in first-to-file countries, especially China, an extended worked example, common mistakes, an FAQ, and takeaways for owners on both sides of the border.
Fair Housing Compliance and Complaint Checklist: A Practical Checklist
A two-sided checklist. The complainant sequence covers what to document in the first week, what not to do, choosing among the four enforcement paths and their differing deadlines, filing with HUD or a local agency, and building the damages record. The compliance sequence covers written screening criteria, individualized criminal and eviction assessment, advertising review, occupancy standards, the reasonable accommodation process, assistance animals, the seven design and construction requirements for post 1991 multifamily housing, algorithmic screening and pricing audits, training, and records retention. A response sequence covers the first forty eight hours after a complaint arrives.
Bringing and Defending a Section 1983 Claim: A Practical Guide
This guide takes a Section 1983 case from the first client meeting through fee petition, on both sides. It covers the intake screening that identifies whether a viable federal claim exists, the very short state notice of claim deadlines that destroy parallel state claims, the preservation letters and public records requests that must go out within days, how to draft a complaint that survives a qualified immunity motion, the Monell discovery plan that determines case value, the interlocutory appeal that will delay everything, damages proof, and the fee petition that is frequently worth more than the judgment. It closes with settlement structures that include policy change.
Data Scraping After hiQ v. LinkedIn: Copyright, Contract, and Computer Fraud Claims
The AI industry's appetite for training data has turned web scraping into one of the most consequential battlegrounds in technology law, implicating computer-fraud, contract, and copyright doctrines that point in different directions. This article explains the landscape in plain language for the two audiences who need it—data collectors and the websites they scrape—following the practices through a single recurring example. It traces the six-year hiQ v. LinkedIn saga and its paradoxical ending, the Supreme Court's narrowing of the CFAA in Van Buren, the contract cases that followed (Meta v. Bright Data and X v. Bright Data), the copyright status of raw data under Feist, and the wave of AI-training copyright suits, including Bartz v. Anthropic, Kadrey v. Meta, Thomson Reuters v. ROSS, and the Andersen and New York Times litigation. It covers robots.txt, DMCA Section 1201, trespass to chattels and other common-law theories, and closes with practical risk guidance for both sides plus a detailed FAQ.
Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide
The Lanham Act lets a court award attorney's fees to the prevailing party in "exceptional cases," and since the Supreme Court's 2014 decision in Octane Fitness the meaning of that phrase has been transformed. This guide explains, in plain language for both lawyers and business owners, when a trademark case is "exceptional" enough to shift fees, how the Octane Fitness standard works and why a patent case governs trademark disputes, and how the Second Circuit applies it. It covers the two routes to an exceptional-case finding—the substantive weakness of a party's position and the unreasonable manner in which the case was litigated, including discovery misconduct—who qualifies as a prevailing party, whether fees can be awarded for partial victories, and how a reasonable fee is calculated under the lodestar method with adjustments for degree of success and apportionment to the Lanham Act claims. It closes with worked examples, a FAQ, and practical takeaways for the party seeking fees and the party resisting them.
Buying and Selling a Business Toolkit: A Roadmap for Small-Company Mergers and Acquisitions
Most small-company deals fail or become disputes for the same handful of reasons, and every one of them is visible before signing. This toolkit follows a transaction from the decision to sell through post-closing integration, written for both sides. It covers preparing a company for sale and why that work begins two years early, the structure decision and its tax consequences, the letter of intent and the leverage that disappears when it is signed, diligence organized around the findings that actually change price, the purchase agreement provisions that allocate risk, the price mechanics that decide who bears working capital and earnout risk, closing logistics, and the post-closing obligations that outlive everyone's attention. Illustrations run a single hypothetical acquisition through each stage.
Social Media Account Toolkit: Ownership Policies, Platform Complaints, and Demand Letters
This toolkit collects the documents a business, its counsel, and the people on the other side need for social media account ownership, impersonation, and handle disputes. Each template states its purpose, its owner, and when to use it, followed by the template with bracketed placeholders and drafting commentary tied to the governing authority. The prevention templates are an account inventory and ownership register, a social media account ownership policy, account clauses for employment, agency, and influencer agreements, and a credential handover protocol with a departure certification. The response templates are an ownership evidence memo, demand letters to a former employee and to an agency, platform impersonation and trademark complaints, a customer scam warning, and a narrow proposed order for credential return. For the other side, there is a response letter for an employee or creator who receives a demand. A running example involving a brewery, its former social media manager, its old agency, and an impersonating account ties the templates together.
The Shield of Good Faith: How Trademark Clearance Searches, Attorney Opinions, and USPTO Approval Protect Against Willful Infringement Claims
Willfulness no longer operates as an absolute precondition to disgorging an infringer's profits after Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020), but a defendant's intent remains the single most important equitable factor courts weigh when deciding whether to award profits, treble damages, and attorney's fees under 15 U.S.C. 1117. This article explains what willful trademark infringement means, why it controls the remedies a brand owner can recover, and how three layers of pre-adoption diligence—a comprehensive clearance search, a reasoned opinion of counsel, and USPTO examination and registration—combine to establish good faith and rebut claims of willful conduct. It catalogs the equitable factors courts actually weigh before ordering disgorgement, examines the privilege-waiver tradeoff that comes with asserting reliance on counsel, the evidentiary weight courts give USPTO determinations, the Tea Rose-Rectanus good-faith junior user doctrine, and the willful-blindness limits that prevent businesses from burying their heads in the sand. The discussion is anchored in primary authority, illustrated with a worked hypothetical, and connected to clearance-search and enforcement best practices that brand owners and their counsel can implement before adopting any new mark.