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Hedge funds and other investment funds are emerging as sophisticated litigators, viewing litigation as an asset, which can create value and mitigate risk, rather than something to be avoided or feared. As a consequence, both the market and various legal systems are being disciplined and developed. How and why is this happening? Willing to litigate relentlessly and fearlessly, hedge funds will seek out and find gaps in documents and uncertainties in the law, and exploit them with ruthless efficiency, entering new legal territory and pushing the boundary of legal theories.

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By Gary Rosen

From the 1920s to the 1950s, Ira B. Arnstein was the unrivaled king of music copyright litigants. He spent the better part of those 30 years trying to prove that many of the biggest hits of the Golden Age of American Popular Song were plagiarized from his turn-of-the-century parlor piano pieces and Yiddish songs. “I suppose we have to take the bad with the good in our system which gives everyone their day in court,” Irving Berlin once said, but “Arnstein is stretching his day into a lifetime.”

Arnstein never won a case, but he left an enduring imprint on copyright law merely by getting his days in court and establishing precedents that later led to copyright infringement judgments against such notables as George Harrison and Michael Bolton. Though his claims often strained judicial credulity, Arnstein had a gift for posing conundrums that engaged some of the finest legal minds of his era, forcing them to refine and sharpen their doctrines.

Over the years, Arnstein laid claim to more than a hundred standards of the Great American Songbook. This playlist of 15 songs — from Irving Berlin’s “A Russian Lullaby” of 1927 to Cole Porter’s “I Love Paris” of 1952 — is representative, and we have selected recordings that illustrate performance styles from the 20s to today. “No one,” as one lawyer wrote and you will agree, “can accuse Arnstein of courting feeble opposition.”

Gary A. Rosen is the author of Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein. He has practiced intellectual property law for more than 25 years. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr.

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The post Plagiarized or original: A playlist for the contested music of Ira B. Arnstein appeared first on OUPblog.

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Kops, Deborah. 2012. The Great Molasses Flood: Boston, 1919. Watertown, MA: Charlesbridge.

As soon as I read Jeff Barger's review of The Great Molasses Flood on NC Teacher Stuff, I knew that this book would be next on my "to be read" pile.

Since then, it's cropped up on blogs all across the Kidlitosphere.  There's something about this horrific, yet freakishly bizarre story, that is simply irresistible.

I am fond of "event books" that offer a broader view of a particular occurrence, placing it into the context of the time.  This is such a book, offering a look at the American justice system, the anarchist movement of the early 20th century, the lifestyles of immigrants, the influence of big business, and the practical applications for science and engineering in the practice of law.  All of these elements cross paths in this chronological story of a deadly explosion of a Boston molasses tank holding over two million gallons of the sticky brown sweetener.

Because the incident ended up as the subject of intense litigation, Kops had ample resources, in addition to newspaper accounts.  The legal transcript of the trial fills forty volumes.

Kops' writing style is simple and compelling,

The View from Above
At about 12:40 the brakeman on the elevated line was standing near the window of a passenger train, which had left South Station about five minutes earlier.  As the train neared the molasses tank, the brakeman heard a loud noise, like metal ripping apart.  He looked down to see the molasses tank split wide open and a wave of molasses heading toward the tracks. 
     As the train came around a curve, there was another surprise.  The molasses hurled a great chunk of the tank against two columns supporting the elevated tracks.  A moment later one of the El supports bent as if it was just a skinny twig.  Park of the El's tracks, which the train had passed over just seconds before, sagged toward the road below.

Scattered sepia colored insets offer additional and helpful contextual information such as the burgeoning women's and anarchist movements, and an explanation of the urgency to use the stored molasses (prohibition was about to become the law of the land).

I did find fault with two stray comments that I thought "cringe-worthy" because they seemed dismissive of the catastrophic nature of the event.

A sea of molasses quickly surrounded them.  Antonio ran for his life, but he was no match for the tide.  It dragged him along, shoving him into a curb. Ouch! 

The young man lost two teeth and a sister.  Ouch?  The other is similarly cavalier -

Mrs. O'Brien Loses More Than Her Wash

Mrs. O'Brien, in fact, lost her home, which rode the molasses wave right off its foundation and into the nearby park.
These are minor aberrations, however, in an otherwise fascinating and well-told story.


Booktalk The Great Molasses Flood: Boston, 1919 to your fiction readers, too!  Freakish appeal and a generous amount of photos give this one cross-genre appeal.  Highly recommended. 



Finally, I think it's noteworthy that this

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David Sugden is the managing partner of Call, Jensen & Ferrell of Newport Beach, California. In his book, Gray Markets: Prevention, Detection & Litigation, he examines the business strategies and legal theories to protect against brand abuse. In the post below, he reflects on technology’s impact on the gray and black markets.

Not long ago, brand owners could take comfort in the intrinsic barriers hampering gray and black marketers. While most large cities have places known by its dwellers to be a source for cheap goods of dubious origin, consumers had to consciously decide to explore these markets in addition to or in lieu of conventional establishments. Canal Street in New York’s Chinatown is a well-known example. The street is lined with densely packed shops offering watches, purses, and other luxury items at prices that are corruptively low. Until relatively recently, these markets did not pose a significant threat to brand owners. The remote locations of these markets created a sufficient bulwark to market entry. As a result, brand owners knowingly conceded that a small percentage of its would-be buyers bought cheap knock-offs instead.

Many brand owners justified their tolerance of these bazaars on the belief that someone shopping for a twenty-dollar Rolex watch is not even a would-be customer. This customer is simply looking for a cheap gimmick or perhaps his or her economic reality precludes any possibility of buying a genuine product for several thousand dollars more. Brand owners were also untroubled because the knock-offs were so obviously inferior to the genuine goods they sought to mimic. While a Guci purse may have looked just like a Gucci purse from across a dimly lit cocktail lounge, a casual glance in an unobstructed environment could quickly distinguish the two. Because such a terse inspection could expose these products as feeble imitations, brand owners concluded that no real threat existed.

However, times have changed. Customers looking for bargains found in the black or gray market now have the ability to virtually browse anywhere there is an Internet connection. Equally vexing for brand owners is the modern difficulty of spotting illegitimate products. Indeed, the obstacles that were once sufficient to relieve concern for brand owners have been removed. The gray and black market economies have enjoyed incredible growth extending their reaches from Canal Street to our laptops.

A Little Perspective

In 2005, Arnold Schwarzenegger joined his friend and fellow action star Jackie Chan in Hong Kong to promote a campaign against film piracy in China. The 30-second anti-piracy public service announcement featured both actors in leather jackets zooming down a road on motorcycles, dodging exploding cars and other hazards. “When you buy pirated movies and music, you support criminals!” Mr. Chan says. Mr. Schwarzenegger adds, “Let’s terminate it!” Today, many countries are haplessly devoid of the necessary resources and infrastructure to adequately protect intellectual property. Countless articles and books can be found lamenting the lack of international enforcement to protect American innovation. It is worth remembering, however, that America is an ex-pirate itself:

“[O]ne of the undeniable reasons [Charles] Dickens had gone to America [in 1841] was to work for the acceptance of International Copyright so that his books, among those others to be sure, would no longer be pirated by unscrupulous American publishers. It was a mission in which he entirely, humiliatingly failed, and a copyright agreement between England and the United States was not concluded until 1891.”

Assaults on innovation are nothing new. What is novel is how easy mounting these assaults has become. The speed and simplicity in which people communicate, buy, sell, and ship products across oceans and borders have paved the way for a worldwide outburst of infringement. While many brand owners were savvy to take advantage of the benefits modern globalization offered, the attendant harm to brand integrity caught most companies completely flat footed.

Moving Forward

With respect to the gray and black market, whether one is a proponent or opponent of globalization is an issue of diminishing importance. Because the bell of modern technology cannot be un-rung, brand owners must learn to capitalize and cope with the rewards and risks in this new economy. To generalize, American businesses have done a fine job capitalizing on the rewards. Where American companies have fallen short has been their understanding of the need to step-up efforts to protect their brands and intellectual property. The benefits of global expansion reach far beyond legitimate trade. Illegitimate trade has been equally eager to take advantage of the efficiencies and economies of scale that globalization offers. As a result, threats to brand owners in the form of black or gray market activity have skyrocketed in size and scope since the 1990s. Revenues derived from counterfeiting and piracy have increased by more than 400 percent since the early 1990s. During the same time period, legitimate trade only increased by 50 percent.

There are few, if any, industries immune from attack. From the luxurious to the mundane and the simple to the complex, there is now a global network of illegitimate traders willing to copy or divert genuine products for their own profits’ sake. Given the ease in which these illegitimate products can be bought and sold, it is important that brand owners take preventative action.

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