Massachusetts Lawyers Weekly Features Hannah Joseph’s Analysis of Supreme Court Case

Hannah Joseph’s article, summarizing the Supreme Court’s recent decision in Van Buren v. United States, was published by Massachusetts Lawyers Weekly on July 2, 2021.

The article, titled “Supreme Court narrows Computer Fraud and Abuse Act,” provides in-depth analysis of the Court’s landmark decision, which narrowed the Computer Fraud and Abuse Act (“CFAA”) and resolved a significant circuit split. The article also discusses the ruling’s import and makes practical suggestions for employers that want to preserve the potential to bring a CFAA claim in, e.g., trade secret misappropriation cases.

According to the article, following Van Buren, it no longer matters for purposes of determining CFAA liability that a person obtained computer information for an unauthorized purpose (such as accessing an employer’s confidential information to use at his next employer). It only matters whether the access was authorized to begin with.

In particular, as the article states,

he Van Buren decision has effectively returned the CFAA to its intended form as an anti-hacking statute, targeting external and internal hackers and centering around a gates-up-or-down inquiry.

This holding holds particular significance for trade secrets owners (such as employers) in those circuits that had previously interpreted the statute broadly.

Following Van Buren, it is no longer relevant for purposes of CFAA liability that an employee obtains computer information for an unauthorized purpose. Employers must now show that, in obtaining the computer information, the employee accessed a computer, or an area of a computer (such as a file, folder or database), that was off-limits to him.

Accordingly, employers who are interested in potentially preserving the option of bringing a CFAA claim may want to consider establishing internal firewalls on their computer systems and technologically cordoning their employees from information that they do not need to know in order to perform their roles.

(Doing so is also helpful for purposes of establishing a trade secrets claim but, on the other hand, may be counter to a company’s culture and otherwise slow down workflow processes. The extent to which a company partitions between departments and employees is thus a decision that an employer should make in partnership with its trade secrets counsel.)

Moreover, following Van Buren, companies looking to prevent the scraping of their online data may need to look to other causes of action, including, inter alia, for breach of contract, copyright infringement, trade secrets misappropriation, and under the Digital Millennium Copyright Act.

In addition to creating internal technological barriers (to address threats posed by employees), those companies may want to limit the amount of information they make available to the public (by, e.g., taking down certain information or password-protecting certain pages).

Hannah Joseph is Senior Counsel at Beck Reed Riden LLP, where she focuses her practice on complex commercial litigation. Specializing in the areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition, she regularly litigates issues concerning the use and enforceability of noncompetition, nonsolicitation, and nondisclosure agreements, and counsels both employers and employees regarding the same. She also counsels on the protection of trade secrets. Hannah has been named Super Lawyers’ Rising Star in Massachusetts consecutively since 2016 and has been recognized as a recommended attorney by The Legal 500 United States 2021.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

The Legal 500 Recommends Beck Reed Riden LLP

The Legal 500 - The Clients Guide to Law FirmsBeck Reed Riden LLP has been recognized by The Legal 500 United States 2021, an analysis of law firms based on surveys and client interviews. The firm has been recommended in the category of “Trade secrets (litigation and non-contentious matters).”

Only 37 law firms in the United States are named. And Beck Reed Riden LLP is the only small firm included on this list.

Russell Beck was recognized as a Leading Lawyer for trade secrets attorneys in the U.S.

The following is the independent editorial write up from The Legal 500 on the firm’s ranking:

Boutique firm Beck Reed Riden LLP boasts a breadth of expertise in trade secrets and restrictive covenants, with particular specialisms in trade secret protection, business litigation and employment matters. The firm is also known for counseling on company-wide trade secrets protection and employee movements. The team has helped to shape federal and state legislation in the area, advising federal legislators, state legislators and administrations at the federal and state levels. Russell Beck leads the practice from the firm’s Boston office and provides contentious and non-contentious trade secrets advice across the US.

Leading Lawyer and practice head: Russell Beck

Other key lawyers: Stephen Riden; Nicole Corvini Daly; Hannah Joseph

Testimonials

“The team is very user friendly and up to date on the latest legal developments. They bring an informed and practical approach to problem solving.”

“Russell Beck – a standout in developing and arriving at knowledgeable solutions to non-compete and trade secret issues. Exercises good judgment and very user friendly.”

‘Nicole Daly – a pleasure to deal with on wrongful termination issues and contract drafting.’

“Steve Riden – brings experience and the ability to give practical guidance.”

“Hannah Joseph- a talented lawyer to watch and a tenacious litigator.”

Key clients

    • Staples, Inc.
    • Novartis Pharmaceuticals Corporation
    • Intellia Therapeutics, Inc.
    • Blue-Grace Logistics LLC
    • Syneos Health
    • Ideal Image, Inc.
    • UG2 LLC
    • Bottomline Technologies, Inc.
    • Bay Equity LLC
    • Alegeus Technologies, LLC

Work highlights

    • Counselling Staples on questions concerning the protection of company trade secrets and related issues in connection with, among other things, employee hires and departures.
    • Providing day-to-day counselling to Novartis on questions concerning the protection of company trade secrets and related issues in connection with, among other things, employee hires and departures.
    • Represented Syneos Health in three separate lawsuits (in three different jurisdictions) stemming from a mass defection of employees and the theft of company clients, trade secrets, and other confidential information.

The Legal 500 US provides impartial, third-party opinions on leading lawyers and law firms across the country. The Legal 500 relies upon a sophisticated methodology to determine which firms and attorneys are included in its list.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Russell Beck and Hannah Joseph to Speak at Inaugural Trade Secrets Conference

Russell Beck and Hannah Joseph will be speaking at the first ever Boston Bar Association Trade Secrets and Restrictive Covenants Conference. The online conference will take place on June 9, 2021, from 9:00 a.m. to 2:15 p.m. ET.

Registration information can be found here.

The conference was first suggested by Russell, who also helped organize the event. Russell will be moderating and speaking on the panel titled, “The Implications of the Massachusetts Noncompetition Agreement Act and Other State and Federal Legislative Developments.”

Hannah will be speaking on a panel titled, “Trade Secret Protection Programs: What Companies and their Advisors Need to Know Now.”

Other sessions will include a multi-side role-play perspective on risk mitigation during a key employee departure.

The conference will feature more than one dozen speakers and moderators, including several judges from Massachusetts federal and state courts.

____

For up-to-the-minute analysis of legal issues concerning trade secrets and noncompete agreements in Massachusetts and across the United States, read Russell Beck’s blog, Fair Competition Law.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience. In 2016, the White House issued a report entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses,” relying in part on Beck Reed Riden LLP’s research and analysis, including its 50 State Noncompete Survey.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Nicole Gage and Hannah T. Joseph to Speak at Intellectual Property Year in Review

Nicole Gage and Hannah T. Joseph will be speaking at this year’s Boston Bar Association’s 21st Annual Intellectual Property Year in Review. The virtual event will be held on Thursday, January 14, 2021, from 10:00 am to 3 p.m. More information is available here.

Nicole Gage will be the moderator for the Keynote Address and Q&A by The Honorable William G. Young, Judge, U. S. District Court, District of Massachusetts. Nicole is a member of the Advisory Committee for the 21st Annual IP Year in Review.

Hannah Joseph will be speaking on the Trade Secrets panel.

The Intellectual Property Year in Review is the premier IP law event of the year. Panelists will provide attendees with informationi about landmark cases and legislative changes and offer insights into what’s ahead in patents, copyright, trademarks, trade secrets, and more.

Nicole Gage has over 20 years of experience advising clients with respect to intellectual property matters. Her practice focuses on all areas of trademark and unfair competition law including clearance, portfolio management, prosecution, enforcement, litigation, due diligence, false advertising, licensing, trademark use and misuse, and use in connection with social media. She has significant experience in the Federal Courts and at the Trademark Trial and Appeal Board (TTAB).

Hannah Joseph is a senior attorney with the firm’s business litigation group, where she focuses her practice on the growing areas of trade secrets and restrictive covenants law, employee mobility, and unfair competition. She represents both corporate and individual clients on issues concerning the protection of trade secrets and enforceability of noncompete, nonsolicitation, and nondisclosure agreements.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named Super Lawyers

Russell Beck, Stephen ReedStephen Riden, and Bob Shea have been recognized as Super Lawyers by the 2020 issue of Massachusetts Super Lawyers Magazine. In addition, Nicole Daly, Hannah Joseph, and Jillian Carson have been recognized as Rising Stars by the Magazine.

Super Lawyers Magazine has selected Russell Beck as one of the Top 10 Super Lawyers in Massachusetts for 2020.

Stephen Reed and Stephen Riden were selected as two of the Top 100 Super Lawyers in Massachusetts.

The title of Super Lawyer is given to 5% of the lawyers in the Commonwealth while the Rising Star designation recognizes 2.5% of lawyers under 40.  The Super Lawyers selection process is described in detail here.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment.

We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Mid-Year Trade Secret Case Roundup and Legislative Updates

There have been several significant trade secret cases this year. In their “Trade Secrets – Annual Year in Review (2020),” which was accepted by the American Intellectual Property Law Association for its Virtual Annual Meeting, Russell Beck and Hannah Joseph summarize some of the key case holdings and legislative developments from across the country over the past year.

Recent trade secret cases covered by the article focus on issues including standing, spoliation, the level of specificity required in identifying alleged trade secrets, the extraterritorial reach of the Defend Trade Secrets Act, calculation of damages, jury instructions, and others.

In addition, there have been several potentially far-reaching trade secret-related developments. In particular, a decade-plus divide over the application of the Computer Fraud and Abuse Act is heading to the Supreme Court. And the federal government has been considering federal regulation of noncompetes.

The full version of the article can be accessed here.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals.

We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legaland business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Attorneys Named to 2021 Best Lawyers in America List

Beck Reed Riden LLP is pleased to announce that five of its lawyers have been named to the 2021 Edition of Best Lawyers, and one of its lawyers was included in Best Lawyers: Ones to Watch.

Russell Beck, Stephen Reed, Stephen Riden, Nicole Daly, and Bob Shea were named to the 2021 Best Lawyers in America list in the following categories:

  • Russell Beck, Commercial Litigation, Employment Law – Management, and Litigation – Labor and Employment
  • Steve ReedCommercial Litigation, Employment Law – Management, and Litigation – Labor and Employment
  • Steve RidenCommercial Litigation
  • Nicole DalyEmployment Law – Management, and Litigation – Labor and Employment
  • Bob Shea, Employment Law – Management

In addition, Hannah Joseph was included in the inaugural edition of Best Lawyers: Ones to Watch in the areas of Commercial Litigation, Labor and Employment Law – Management, and Litigation – Intellectual Property.

Best Lawyers has published their list for over three decades. Its first international list was published in 2006 and since then has grown to provide lists in over 65 countries.

Best Lawyers Award BadgeLawyers on the Best Lawyers in America © list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing. For the 2021 Edition of The Best Lawyers in America, 9.4 million votes were analyzed, which resulted in the inclusion of more than 67,000 lawyers, or approximately 5% of lawyers in private practice in the United States.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legaland business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP in Law360 for Preliminary Injunction Win

An article in Law360 higlights Beck Reed Riden LLP’s success in defeating a bid to enforce a noncompete agreement. The article is titled “Facebook Beats AI Startup’s Bid To Shield Trade Secrets.”

The article summarizes a decision by the United States District Court for the District of Massachusetts:

An artificial intelligence startup has failed to prove that its first employee ran off with the company’s trade secrets when he took a job at Facebook, a Massachusetts federal judge said, denying the firm’s request to block the former worker’s ongoing research at the social media giant.

U.S. District Judge Denise J. Casper … denied Neural Magic’s bid for an injunction, saying it wasn’t clear whether the work that Aleksandar Zlateski did for Facebook even qualifies as a trade secret.

The article explains that:

Aleksandar Zlateski is represented by Russell Beck, Stephen D. Riden, and Hannah Tso Joseph of Beck Reed Riden LLP.

The case is Neural Magic Inc. v. Facebook Inc. et al., case number 1:20-cv-10444, in the U.S. District Court for the District of Massachusetts.

The article is by Brian Dowling.

eck Reed Riden LLP is among the leading authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legaland business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Beck Reed Riden LLP Celebrates 10th Anniversary

On May 24, 2010, Russell Beck, Stephen B. Reed, and Steve Riden opened their own litigation firm based on principles of integrity, collaboration, and service. Since then, Beck Reed Riden LLP has emerged as a premier boutique law firm known for its expertise and thought leadership in the areas of restrictive covenants and trade secrets law, employment law, and business disputes.

In commemoration and celebration of the firm’s 10th anniversary, the founding partners sat for an interview with the firm’s first junior associate (now senior counsel), Hannah Joseph, to discuss the early days of Beck Reed Riden, the firm’s milestones, and where the firm is headed. Here is what they had to say:

Hannah Joseph: We can start with a softball question. What made you want to open your own firm?

Stephen D. Riden: Russell, do you want to take this one?

Russell Beck: Sure. I was working in the Boston office of a large international firm, which was a terrific experience. But, ultimately, I realized that my practice would work better in a smaller environment. I happened to be talking to Steve Riden, who put the bug in my ear about starting a firm, which he said he would do with me. I then reached out to my former colleague, Steve Reed, who was interested in a new opportunity. So, the three of us started Beck Reed Riden.

Stephen B. Reed: Russell and I had previously worked together, so I was excited when he first proposed the idea. At the time that he reached out, I also felt that I was ready to take on the challenge of starting a business. So, the timing was perfect.

HJ: So, Steve Riden, you put the bug in Russell’s ear?

SDR: I guess I must have! I remember that we had several conversations about how exciting it would be to hang our own shingle. Plus, Russell and I had worked together for nine years by then, give or take. We worked well together, and I knew that we both shared a client-centered approach to practicing law and a desire to promote a collegial working environment. I knew pretty early on in our conversations that I was on board.

HJ: I joined the firm in 2013, so I missed BRR’s early days. What were they like?

SBR: It was just the three of us in a tight subleased space with a few established clients.

RB: We were a true start up! Back then, we were purely focused on efficiency, to get the firm up and running. We wanted to make sure that we were set up to maintain the same quality and effectiveness that clients had come to expect from us. We spent a lot of late nights mapping out how the firm would look.

SDR: That’s right. We were a complete bootstrap operation. It was also so exciting to build something from scratch: to figure out what we were as a law firm and exactly how we wanted to practice the law. We built the firm around a platform of efficiency. On top of practicing law, we spent a lot of time figuring out all the bits and pieces that go into running a business.

HJ: You have come a long way since then.

SDR: It’s incredible. We went from subleasing office space from another law firm to eventually having our own space with a thriving hive of activity and a roster of clients that I never would have dreamed of when we started out. And, when there’s no global pandemic, we still have lunch together every day.

SBR: We spent a lot of time on marketing efforts, which greatly helped us to grow our client base. Now we are nine attorneys plus support staff and, as Steve mentioned, we have a steady stream of challenging work.

RB: I would say that we’ve far exceeded our initial expectations for the firm.

HJ: Was there an “a-ha” moment when you knew that BRR might succeed?

SBR: I never doubted that BRR would succeed, so I’m not sure that there was an “a-ha” moment for me. When we were comfortable enough to leave our sublease “nest” and venture out into our own space – that was a particularly memorable milestone.

SDR: For me, the “a-ha” moment came after our first year of operation when we had grown our book of business enough to hire others to work with us. At the same time, we were continuing to get more and more work from an expanding client base.

RB: I’ve had a series of “a-ha” moments – “a-ha,” we survived our first year, “a-ha,” we can sustain incremental growth, “a-ha,” we will thrive as a boutique firm in Boston – which we have done now for a decade – and “a-ha,” our work with restrictive covenants and trade secrets has reached a national platform. I would say that some of my bigger “a-ha” moments were when our 50 State Noncompete Chart was cited by The Wall Street Journal, and then by The New York Times, and ultimately relied on by both the U.S. Department of Treasury and the Obama Administration. That’s when I felt like we’d really made it.

HJ: For readers who might be unfamiliar with our 50 State Noncompete Chart, it’s a comprehensive chart that tracks the noncompete laws of each state, and indicates – for each state – whether the state permits the use of noncompetes in the context of employment, which business interests are deemed protectable by noncompetes, the standard for analyzing the enforceability of a noncompete, whether the state exempts certain professions or industries from noncompetes, whether continued employment is sufficient consideration to support a noncompete, and whether the state is a reformation, “blue pencil,” or “red pencil” state.

RB: That’s exactly correct. I’m really proud of our 50-state chart. Nothing like it existed at the time we started putting it together. Now, we update it throughout the year. We have poured hundreds of hours into drafting and updating the chart and, in turn, it has helped to distinguish BRR as a leader in noncompete law nationally. We have also created a companion 50 State Trade Secrets Survey that provides a comparison of every state’s trade secret law and the federal trade secret law.

HJ: Speaking of accomplishments, what are you most proud of with respect to the firm?

SBR: Certainly Russell’s accomplishment in becoming a national thought leader on noncompetes and trade secrets. I’m also very proud of the fact that we’ve reached a high level of sophistication across all our practice areas, while maintaining a close working relationship with each of our clients, big and small. Our clients come to us knowing that we will provide fully customized solutions that take into consideration not only the legal issues at play, but also our clients’ individual goals and needs. Our approach is very practical, which is important.

SDR: I echo Steve’s sentiments. In addition, I’m very proud of the team that we have put together. We have this great team that combines senior attorneys, new lawyers, and staff at every experience level. Seeing new lawyers develop over the years is really gratifying and it speaks to the culture of mentorship that we have created at BRR.

HJ: I’m an example of that – I joined BRR right after law school and have grown up at the firm. I think we have a very strong culture of mentorship. In fact, we’re just about to launch a new internal training program designed to help junior associates develop practical skills and exercise best practices. Our culture of promoting open dialogue is one of the things I appreciate most about the firm – in addition to the many, many free snacks that we normally have on stock.

SDR: And because we don’t impose minimum billable hours requirements, we can set aside time to have those more general discussions that, in turn, inform our practice of law and ultimately lead to better work product. And, it’s true, we are usually very well-stocked in terms of snacks.

RB: I am also extremely proud of the environment that we have built at BRR. We have managed to do precisely what we set out to do: provide top quality legal work in an environment that has the closeness and cohesiveness of a family.

HJ: Would you say that these characteristics distinguish BRR from other law firms?

SDR: Certainly, at least with respect to our approach to minimum billable requirements. Because we don’t have minimum requirements, we are able to collaborate and work with efficiency. Our ethos is to get the work done, and to do it well – our steady stream of business and healthy appetite for being involved in the community ensures that we stay busy.

SBR: I completely agree.

RB: Me too.

HJ: So. We’ve made it 10 years. Congratulations! Where do you see BRR 10 years from now?

RB: These questions are hard. Probably largely the same as it is now, albeit a little larger. I always thought that somewhere between 10 and 20 attorneys is good for a firm’s long-term stability. We’re just about there, and I’d expect that we’ll continue to grow strategically, in ways that make sense. For instance, you won’t see us picking up a med-mal practice. We’re going to stay true to the areas in which we practice – trade secrets, restrictive covenants, employment, and complex business disputes – and possibly grow into areas that are complementary. We have also spent a good deal of effort making sure that we maintain a strong culture of collaboration and collegiality. So, any future growth will be a result of finding other like-minded people.

SBR: Hear, hear. I also expect that we will continue to elevate our profile as a national leader in restrictive covenants and trade secrets law.

SDR: As long as we get to continue doing what we are doing with a great team, I’ll be happy.

HJ: Good answers. Okay, last question. If you had only three words to describe BRR, what would they be? Mine are community-oriented, expert, and collaborative, so you can’t use those.

SBR: “Caring,” “dependable,” and “sophisticated.”

SDR: I’m also using “sophisticated.” Also, “lean” and “boutique.”

RB: I’ll also go with “sophisticated.” And “integrity” and “home.”

HJ: Congratulations on Beck Reed Riden’s 10th anniversary. We have come a long way and I can’t wait to see what the future holds in store. Thank you for your time today.

SBR: Thank you.

SDR: Thanks, Hannah.

RB: Thanks!

Russell Beck is a litigation attorney with over 30 years of experience, nationally known for his work representing employees and employers (from Fortune 500 companies to “mom and pop” shops to individuals) in trade secret and noncompete matters. For the past decade, he has also taught the course, Trade Secrets and Restrictive Covenants, at Boston University School of Law. He was the lead advisor and drafter of the new Massachusetts noncompete law, and assisted several legislators with, and revised some of the language in, the new Massachusetts trade secrets law.

In 2016, he was invited to the White House to participate in the working group discussions that led to the development by the Obama Administration of a Call to Action on noncompetes. He authored the book, Trade Secrets Law for the Massachusetts Practitioner (1st ed. MCLE, Inc. 2019) (covering trade secrets nationally, with a focus on Massachusetts law), and the book, Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (5th ed., MCLE, Inc. 2015) (covering Massachusetts noncompete law).

In addition, he created the widely-used 50 State Noncompete Survey (Employee Noncompetes, A State By State Survey) and 50 State Trade Secrets Comparison Chart (state and federal trade secrets acts compared to the UTSA), the former of which was relied upon by the United States Department of the Treasury Office of Economic Policy’s report, “Non-compete Contracts: Economic Effects and Policy Implications,” and by the White House in connection with the Call to Action and related report. He also monitors changes to noncompete and trade secrets laws around the country, as detailed on his award-winning blog, FairCompetitionLaw.com. In his free time, Russell enjoys photography with a focus on cityscapes. His favorite photographer is Ansel Adams, whose work he has seen on exhibition countless times.

Stephen B. Reed focuses on the defense of discrimination, retaliation, harassment, wrongful termination, wage and hour, and related claims. He has successfully litigated and tried cases in state and federal court, as well as before the Massachusetts Commission Against Discrimination, the Maine Human Rights Commission, the Connecticut Commission on Human Rights and Opportunities, the New Jersey Division on Civil Rights, the Pennsylvania Human Relations Commission, and the Equal Employment Opportunity Commission. A large portion of Steve’s practice involves advising employers on issues involving the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans With Disabilities Act, and other state and federal employment statutes that affect the employment relationship on a daily basis.

Steve has reviewed and drafted countless employment and workplace policies since beginning his practice in 1992. Steve also advises clients on unfair competition issues, including the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements. He has successfully litigated cases on behalf of both employers and employees to either enforce or overcome such agreements. Steve also has extensive experience in traditional labor law. He has tried cases before the National Labor Relations Board and arbitrated numerous cases on behalf of employers. He has counseled employers on union avoidance issues and represented management at the collective bargaining table.

Steve has lectured and written on employment law subjects for continuing legal education and various business organizations. He is a frequent panelist on employment law issues at Massachusetts Continuing Legal Education. He was a member of the Massachusetts Bar Association subcommittee responsible for drafting the MCAD Sexual Harassment Guidelines. In addition to his family, Steve is passionate about international travel, wake surfing, and the musical Hamilton, which he has seen five times … so far.

Stephen D. Riden has extensive experience litigating business disputes involving breach of contract, fraud, unfair competition, trade secrets, and noncompete agreements. He has represented companies in a variety of governmental investigations. Steve also has substantial experience representing owners involved in intra-corporate disputes, including shareholder litigation and close-corporation control matters. Steve was selected as one of the Top 100 Lawyers in New England and Top 100 Lawyers in Massachusetts.

Steve is the President of the Board of Directors for the Boston College Law School Alumni Association. He is also the current Chair of the Board of Editors for the Boston Bar Journal. Previously, Steve was the Co-Chair of the Boston Bar Association’s Business and Commercial Litigation Section. Steve is the author of the first chapter in the book Damages, Interest, and Attorney Fees in Massachusetts Litigation. The chapter, supplemented in 2019, is titled “General Law of Damages in Massachusetts.” Steve is originally from the Lone Star State, and has perfected the art of making Texas Nachos.

Hannah Joseph is Senior Counsel at Beck Reed Riden LLP, where she focuses her practice on complex commercial litigation. Specializing in the areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition, she regularly litigates issues concerning the use and enforceability of noncompetition, nonsolicitation, and nondisclosure agreements, and counsels employers and employees regarding the same. Hannah has been named Super Lawyers’ Rising Star in Massachusetts consecutively since 2016.

In 2015, she pioneered the Boston Bar Association’s Intellectual Property Basics Workshop Series (a program that continues today). Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law alongside Russell Beck. Hannah graduated from Binghamton University in 2007 and Boston College Law School in 2013. When there is not a global pandemic, Hannah is an avid traveler and most recently visited Prague and Budapest.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

A Shakeup in Copyright Law: Ninth Circuit Signals Swift Shift in Music IP Litigation

On Sunday, January 26th, the Recording Academy hosted its 62nd Annual GRAMMY Awards. Dubbed “Music’s Biggest Night,” the GRAMMY Awards is a high-profile event dedicated to recognizing outstanding achievements in the music industry. Often absent from the spotlight, however, are those songwriters whose original works have been “borrowed” by award-winning compositions without license or credit.

According to the complaint in Hall v. Swift, this was the case in 2014, when Taylor Swift won two GRAMMY Awards for her song, Shake It Off, and took home Record of the Year for her album, also titled “Shake It Off.” Claiming that Swift had impermissibly copied lyrics from their 2001 hit song, Playas Gon’ Play, co-authors Sean Hall and Nathan Butler sued Swift for copyright infringement in February 2018.

The U.S. District Court for the Central District of California found that the lyrics at issue were “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act” and dismissed the case.

On appeal, however, the Ninth Circuit reversed the lower court’s decision and remanded the case back to district court, holding that the “complaint still plausibly alleged originality.” The appellate court’s decision not only revived the case against Swift, but also signals a possible shift in the Ninth Circuit towards a more hands-off approach to analyzing “originality” at the motion to dismiss stage.

The Standard

To succeed on a claim for copyright infringement, a claimant must demonstrate (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. A work is original when it “was independently created by the author” and “possesses some minimal degree of creativity.” While “[w]ords and short phrases such as names, titles, and slogans” are “not subject to copyright,” there may be an exception to the rule where the short phrase is sufficiently creative.

In the music industry—which has a long tradition of copyright litigation—copyright claims that are based on short phrases often fail for lack of originality. This is especially true when the phrase at issue is rooted in history or popular vernacular. Indeed, pop hits such as Whitney Houston’s “My Love is Your Love,” Jay-Z’s “Made in America,” and Migos’s “Walk It Talk It” have all been the targets of failed copyright infringement claims.

The Case

Sean Hall (d.b.a. Gimme Some Hot Sauce Music) and Nathan Butler (d.b.a. Faith Force Music) are co-authors and copyright owners of the song titled Playas Gon’ Play. The song, which was performed by the all-girl pop group 3LW, was released in May 2001. The chorus of Playas Gon’ Play contains the following lyrics: “Playas, they gonna play / And haters, they gonna hate . . . .”

In 2014, Taylor Swift co-authored the song Shake It Off, which was released the same year. By the time the case was filed, more than nine million copies of the award-winning song had been sold. The chorus of Shake It Off contains the lyrics: “‘Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate . . . .”

On February 13, 2018, Hall and Butler brought suit against Swift and others, claiming that Swift’s Shake It Off impermissibly copied lyrics from Playas Gon’ Play. Notably, Plaintiffs’ single copyright infringement claim was premised solely upon the lyrical similarities between the two songs—Plaintiffs did not contend that the two songs shared “any significant rhythmic, melodic, harmonic, or other musical similarities.”

Defendants moved to dismiss the case, arguing that the lyrics in question were “merely a short phrase . . . not afforded protection under the Copyright Act.” Plaintiffs countered that their short phrase was sufficiently creative to justify protection (as an exception to the general rule). The court rejected Plaintiffs’ argument, noting that “by 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters” and that “[t]he concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” (Emphasis added.) The court also found that Plaintiffs’ combination of “playas, they gonna play” and “haters, they gonna hate” was not entitled to protection. In this regard, the court stated:

It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters, albeit to convey different messages than Plaintiffs were trying to convey. In short, combining two truisms about playas and haters, both well-warn notions as of 2001, is simply not enough.

(Emphasis added.)

The district court concluded: “the lyrics at issue . . . are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.” Based on this finding, the court granted Defendants’ motion to dismiss, and provided Plaintiffs leave to amend their complaint.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reviewed the district court’s dismissal de novo and found: “Even taking into account the matters of which the district court took judicial notice . . . Hall’s complaint still plausibly alleged originality.” Based on this finding, it reversed the lower court’s decision and remanded the case back to district court.

Since issuing its order, the Court of Appeals has stricken substantive text from its decision and issued an amended memorandum of opinion. The amended opinion omits the statement that “Originality, as we have long recognized, is normally a question of fact,” and a warning by the court that courts should not act as “the final judge of the worth of an expressive work.”

The Takeaway

Following Swift, defendants may now have a harder time dismissing copyright infringement claims based on the argument that the work sought to be protected lacks originality. This has the potential effect of allowing weaker copyright claims to live on for longer, thereby costing defendant artists more money and reputational harm. And, while speculative, it would not be surprising if Swift has the ultimate effect of emboldening copyright trolls and triggering an uptick in strategic litigation.

As to the ultimate merits of Hall’s claims, what a court does (or the courts do) at the summary judgment stage will be even more illuminative. For now, all we can do is sit back and watch as the “playas” and “haters” continue to fight it out.

***

Hannah T. Joseph, the author of this article, is an attorney with the firm’s litigation group, focusing her practice on the growing areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition. Hannah’s work in intellectual property has been recognized at the American Intellectual Property Law Association, the Boston Bar Association, and Practising Law Institute. Hannah is also the editor of the firm’s monthly e-newsletter.

Thank you to Yetunde Buraimoh for her contributions to this article, which were significant.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

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