the Zealous

31 Oct 23

Often one party to a contract is allowed to act only with the consent of the other party, "not to be unreasonably withheld."

A common context in this regard is the right to assign an agreement. The language used is typically, "[Party A] may not assign this Agreement without the consent of [Party B], such consent not to be unreasonably withheld."

So what happens if Party B unreasonably withholds consent? Does the refusal then automagically become consent, such that Party A is free to assign away?

14 Oct 23

Jackie Ruffin, First woman lawyer in California championed the idea of public defenders (review of Woman Lawyer – The Trials of Clara Foltz by Barbara Babcock), 98 Women Lawyers Journal 38 (2013):

The life of Clara Foltz, 19th-century trailblazing lawyer, women’s rights activist and social reformer, has few equals for drama, achievement and sheer chutzpah. In Woman Lawyer, Professor Emerita Barbara Babcock, herself a trailblazer as the first woman appointed to the regular faculty at Stanford Law School, has written a richly detailed account of Foltz’s bold and remarkable life, replete with "firsts," including first female lawyer in California, first woman to serve in a statewide California office and first female deputy prosecutor.

28 Sep 23

Genius crowdsources song lyrics by soliciting individual contributors to post their interpretations of the words they hear in songs. Google rather blatantly copied Genius’ crowdsourced lyrics for display at the top of Google search results, as proven by Google’s replication of Genius-coded digital watermarks. Genius alleges violation of the Genius Terms of Service which plainly forbid that which Google did. Genuis claims a massive drop in ad revenue caused by a plummeting of the numbers of users visiting the Genius sites as a result of Google’s actions.

Genius brought breach of contract and unfair competition claims against Google in New York state court. Google sought removal to federal court, claiming that Genius’ claims are redressable only via copyright, and only US district courts have jurisdiction for copyright claims. The US District Court for the Eastern District of New York granted the motion to remove the case from state court, refused remand, and promptly dismissed the claims with prejudice, on grounds of copyright preemption.

The Second Circuit Court of Appeals, in an unpublished opinion (ML Genius Holdings LLC v Google LLC, 2022), affirmed the ruling, and in the process called into question the enforceability of any contract governing the supply or exchange of data or information.