Legal Commentary

Lousy Legal Writing:

By David Post

When my kids were small , both took music lessons (and as many of you know, my son Sam is forging ahead with a career as a pianist), and, as a result, I heard an enormous amount of really badly-played music; I probably went to 75 or 100 school-wide recitals and performances, and while they were all immensely delightful and uplifting ? there is simply nothing more magical than watching kids make music, no matter what it sounds like ? the musical bottom line is that 9 year old kids, even really talented 9 year old kids, can?t be expected to make beautiful music, and by and large they don?t. I realized, though, that I learned an enormous amount about music and music performance from listening to it badly-played, because it helped me to think about, and to appreciate, exactly what it is that is involved in playing music beautifully.

So here?s some really, really lousy legal writing. It?s from today?s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I?m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I?m relying upon the fair use doctrine?s protection for ?criticism and commentary? in so doing):

Judge Greenlights Cell Phone App Copyright Claims
Shannon P. Duffy
The Legal Intelligencer
January 07, 2011

In a court battle over the rights to a cell phone app that converts a phone into a virtual glass of milk, a federal judge in Harrisburg has ruled that the creator of the iMilk app may pursue claims against Hershey Co. for copyright infringement, trade dress and tortious interference.

In his 14-page opinion in The Hershey Co. v. Hottrix , U.S. District Judge John E. Jones III found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.

Apple Inc. boasted about $2.4 billion in sales of apps for its iPhone in 2009, Jones noted, and the introduction of the iPad in 2010 is sure to drive that figure even higher.

?This is big business by anyone?s measuring stick,? Jones wrote, ?which explains why the combatants here would bring a dispute involving computer-generated images of milk, chocolate, and syrup to federal court.?

Hershey came to court first seeking a declaratory judgment that its Hershey?s Syrup app does not infringe on Hottrix?s copyrights for the iMilk app.

Hottrix, which also markets the iBeer and iSoda apps, responded with counterclaims alleging that Hershey took the code for iMilk and modified it to create its own virtual milk app that mimics the ?look and feel? of iMilk.

According to court papers, both apps allow users to generate an image of a glass of milk on the cell phone screen that appears to be drunk by the user, either when the phone is tipped or through a virtual straw. The Hershey app includes a feature that allows users to add chocolate syrup.

Hershey?s lawyers Harvey Freedenberg and Alan R. Boynton Jr. of McNees Wallace & Nurick in Harrisburg, along with Thomas A. Smart and Paul C. Llewellyn of Kaye Scholer in New York moved to dismiss all of the counterclaims.

In the motion, Hershey argued that Hottrix?s copyright claims fail as a matter of law because it has no copyright interest in the underlying ideas and because Hershey?s app is not substantially similar to any protectable aspect of the iMilk app.

Now Jones has rejected all of Hershey?s arguments, finding that its team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.

?The arguments seem to advance that Hottrix is unable to prove its claims rather than plead its claims, and such an analysis is inappropriate at this stage,? Jones wrote.

Hottrix?s lawyers Robert J. Tribeck and Todd J. Shill of Rhoads & Sinon in Harrisburg, along with Jason H. Fisher of Fisher Law Group in Los Angeles argued that the copyright claim is valid because Hottrix is not misguidedly seeking to protect the ?idea? of a milk-drinking app, but rather has properly pleaded that Hershey has allegedly infringed the protected elements of the expression.

Jones agreed, finding that ?despite the differences that Hershey attempts to highlight, Hottrix characterizes the level of specificity with which the court should view the applications differently, and thus alleges their substantial similarity.?

Hottrix also alleged a valid claim of trade dress infringement under the Lanham Act, Jones found, by alleging that Hershey capitalized on Hottrix?s consumer good will and product recognition.

Hershey argued that the trade dress and unfair competition claims must fail because they are pre-empted by the Copyright Act.

But Hottrix argued that its trade dress claims under Pennsylvania?s Unfair Competition law and the Lanham Act both allege wrongs that are separate and distinct from those alleged under the Copyright Act.

Jones agreed, saying ?several courts have concluded that claims for copying the ?look and feel? of a website under the Lanham Act would not interfere with copyright interests.?

Likewise, Jones held that a claim for tortious interference asserted parallel to a Copyright Act claim can survive if it alleges an ?extra element? that makes the state-law claim distinct.

Hershey argued that the tortious interference claim should be pre-empted because it is exactly the same as the copyright claim.

Jones disagreed, finding that the allegations about ?copying of the ?look and feel? of the application suffice as the ?extra element? to render the claim distinct from the copyright infringement claim.?

Freedenberg referred questions to Kirk Saville, a Hershey corporate spokesman, who did not return a call seeking comment. Tribeck also did not return a call seeking comment.

So ? what makes it lousy legal writing? To begin (and to end) with: I have now read this through 3 or 4 times, and I still can?t figure out what the hell happened here. The first thing Ms. Duffy tells us is that Judge Jones ?found that cell phone applications, or apps, are a burgeoning and lucrative enterprise.? Now, I haven?t read Judge Jones? opinion, but I would bet that this dog-bites-man ?finding? ? cell phone apps are a burgeoning and lucrative enterprise!! no kidding! ? has absolutely nothing to do with the legal issues that he was resolving. So I?m off on the wrong foot at the very start.

There?s a pretty standard formula for writing about legal issues, and it?s a good one: start with the facts, describe the claims the parties made on the basis of those facts and the arguments they made in support of those claims, tell me what the court ruled, and then tell me why it ruled that way. Here, though, I don?t know the basic facts of who did what until paragraph 7, where the apps are described; then I have to go back and re-read the earlier paragraphs to figure out what the claims were; then I have to go forward again, to figure out what the court did, where I?m told that it dismissed Hershey?s counterclaims for infringement, ?finding that [Hershey?s] team of lawyers seemed to be confusing the standard for a motion to dismiss with that of summary judgment.? Aaargh. That doesn?t really help me at all; I can sort of figure out what it means, but you?re making this awfully hard. And then, after that, Ms. Duffy goes on to tell me what arguments the parties made in support of their claims ? requiring me to retreat once again and see how this new information helps me understand what the court ruled. It?s all horribly out of order and, as a consequence, it is incredibly difficult for the reader to understand what is, in fact, a very, very simple story. C minus, at best.

Full post as published by The Volokh Conspiracy on January 07, 2011 (boomark / email).