Likelihood of Success

A tale of two Districts

Jul 17, 2008 Americana, Lex scripta, Phoenix, Sisyphus

It was the best of times, it was the worst of times!

In one city (New York), a judge determines that an Internet retailer’s use of thumbnail product images, even those published by a manufacturer to sell its own products, is permissible “fair use” when used by the Internet retailer to sell that manufacturer’s own products, and hence dismisses a claim for copyright infringement by the manufacturer. In another city (Phoenix), that same fact pattern and the same statute results in a trial for copyright infringement!

In the same city (New York) that dismisses the copyright claim, the same judge rules that a claim for tortious interference with contract can go forward to trial despite the absence of any proof of direct communication or transaction between my client and the allegedly-interfered-with party, or of a coherent damages claim, or specific knowledge of who that party is or what its contrast says. In the other city, a judge says no set of facts could render such a preposterous claim for third-party interference with contract actionable and throws out the identical claim before trial!

Later, in the latter city — Phoenix — the judge throws out all the other side’s damages claims for copyright infringement during the trial — the best of times! — and dismisses their unfair competition claim too on our motion after the close of their evidence. But that same Phoenix judge keeps on an advisory jury on to determine whether my client has committed copyright infringement. The jury comes back and says my client mostly had committed infringement, handing me my first ever jury trial loss — the worst of times!!! (That’s for me, not for my client, though, so he’s happy and it goes back to “best.”)

And I spend four days and nights in Phoenix, an architecturally and ecologically stunning location where everyone is as nice as pie — the best of times! But in July it is THE HOTTEST PLACE I HAVE EVER BEEN IN AND EVERY MINUTE SPENT OUT OF DOORS IS LITTLE MORE THAN A TASTE OF SATAN’S VERY OWN FIERY HELL SUCH AS IS RESERVED FOR THE WORST OF SINNERS …

The worst of times.

I’m going home tonight with a pretty good trial result and leaving all those scorching rays behind me — so it goes back to the best!