Issue 73 - Stanford Lawyer - Stanford University

20
FALL
2005
FIELD GENERALS
and the European Commission withdrew its opposition,
PeopleSoft’s shareholders overwhelmingly agreed to tender
their shares, and the acquistion was completed in January
2005, a year and a half after it had been launched.
“Managing this process, from a legal perspective, was
really fascinating,” said Cooperman, “because there was
so much more going on than just the corporate aspects of
the transaction.” Cooperman, who came to Oracle from
McCutchen, Doyle, Brown & Enersen (now Bingham
McCutchen LLP), commands a 175-person legal department,
including 130 lawyers, a little more than half of whom
are in the United States. During the battle for PeopleSoft,
he deployed more than 100 lawyers from outside firms.
“The PeopleSoft transaction required very comprehensive
coordination among our legal team,” he explained. “In addition
to the challenges of the tender offer and the antitrust
approval process, we faced active litigation on corporate,
commercial, and regulatory issues.”
At the Vanguard of New Law
Navigating antitrust attacks while staying at the top of
an industry is no mean feat, but neither is navigating the
often-lawless wilds of the Internet. “What we’re doing is
brand-new,” said Michael Jacobson, general counsel at eBay.
“These are situations where law is unsettled—no one has a
clue as to how it’s going to apply. What you do know is that,
in all probability, it’s going to be a lawsuit involving you that
will establish the law.”
Jacobson has seen more than his share of unprecedented
legal situations, and prefers to preempt precedent-setting
cases whenever possible. Jacobson lays claim to the distinction
of heading up a legal department that includes the
country’s foremost experts in an extremely obscure field:
mastodon law. When an eBay auctioneer wanted to put up
a mastodon tusk, Jacobson’s team had to figure out whether
the sale of the prehistoric prong would violate an international
ban on the ivory trade. Another time, someone
in Siberia listed a section of mastodon pelt, and Jacobson
dispatched the company’s resident expert to pore through
tomes of trade law to determine if regulations governing
international fur trade applied to mastodon fur. In each case,
eBay allowed the auction to proceed.
On a more mundane note, eBay increasingly finds itself
in the middle of cases involving virtual or software-based
entities and items, another area with little or no legal precedent.
Over the last few years, gaming-software companies
have repeatedly objected to the sale of virtual characters and
items that gamers put up for auction on eBay.
“We have spent an awful lot of time doing things that
were not legally required, so that once we’re in front of the
trier of record we can say, ‘Wherever you’re going to draw
the line, we’re on the right side of it,’” said Jacobson, “rather
than approaching things in a more traditional way, saying,
‘We know where the line is, let’s talk to the business people
about how close we can get to it.’”
“One of the most challenging
parts of my job is navigating
the legal regimes of all the
countries of the world, some
of which are not particularly
well developed.”
—David Drummond, Google
Over at Google, general counsel David Drummond
often finds himself charting legal precedent as well. He has
his hands full with a controversy over the Google Print
Library Project, which entails scanning and digitizing the
collections of some of the world’s foremost libraries, including
those of Oxford, Harvard, and Stanford universities.
Several publishing-industry groups have objected to
Google’s plan to scan copyrighted works. And the Authors
Guild, together with three individual authors, have filed suit
against Google claiming copyright infringement. It’s the first
situation of its kind, so it’s unclear whether copyright law
precludes scanning and indexing works owned by libraries.
In August, Drummond and Google decided to postpone the
scanning of library books currently covered by copyright,
giving rights-holders an opportunity to provide Google
with a list of works that should be excluded. Google intends
to resume scanning any copyrighted works not specifically
excluded by their copyright owners.
Intellectual Property: The Crown Jewels
Companies like Google may on occasion find themselves
fighting against copyright restrictions, but most of the
time these high-tech general counsels are busy drawing a
legal line of ownership around intangible assets like software
code and engineering designs. That’s because patents and
copyright are the bedrock on which technology businesses
are built.
“Technology companies are intellectual property companies—those
are their assets,” said Neukom. “It’s not like
owning a quarry of scarce minerals or shelf space. It’s about