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Non-Competition Agreements Evidence Issues in A ■ Non-competition agreements ■ Evidence issues in a church love triangle trial www.tba.org ARTICLES 14 FREE TO SHARE? GROKSTER DECISION SIDESTEPS INNOVATION/COPYRIGHT BATTLE, PUTS FOCUS ON BUSINESS STRATEGIES By David Moser 18 NEW RACE TO TENNESSEE AND GEORGIA COURTHOUSES OVER NON-COMPETITION AGREEMENTS By Don Benson and Stephanie Bauer Daniel EVIDENCE ISSUES IN A CHURCH LOVE TRIANGLE TRIAL 22 By Donald F. Paine NEWS & INFORMATION 6 Relief for Hurricane Katrina survivors swells; lawyers join together to help 7 Clark named to Tennessee Supreme Court 7 Indigent representation gets a boost 12 Actions from the Board of Professional Responsibility DEPARTMENTS 3 President’s Perspective: Heartbreak followed by action By Bill Haltom 5 Letter / Jest Is for All: By Arnie Glick 8 The Bulletin Board: News about TBA members On the Cover When the U.S. Supreme 2 9 4 0 Ye a r s : TBA sections — Court ruled in MGM People who know what you are talking about Studios Inc. v. Grokster By Suzanne Craig Robertson Ltd., copyright and technology development 30 Paine on Procedure: The unconstitutional non-uniform residential industries saw the outcome landlord and tenant act very differently. Read about By Donald F. Paine what the decision may mean for each side, begin- ning on page 14. Cover 31 Classified Advertising design by Barry Kolar. PRESIDENT’S PERSPECTIVE Hurricane Katrina Journal Staff Heartbreak followed Suzanne Craig Robertson, Editor [email protected] by action Landry Butler, Publications & Advertising Coordinator [email protected] Barry Kolar, Assistant Executive Director arly one warm spring morning some 24 years [email protected] ago, my bride and I boarded a train in E Atlanta and headed for our honeymoon. The Editorial Board train was called the “Southern Crescent” and it Andrée Sophia Blumstein, Nashville, Chair Miles Mason Sr., Memphis took us through the backwoods of Georgia, Donald F. Paine, Knoxville Alabama and Mississippi and then into the heart of Bill Haltom Nathan D. Rowell, Knoxville the bayou. At the end of the day, we arrived at our President Jonathan O. Steen, Jackson honeymoon destination, a wonderful city called New Orleans. We checked into the Royal Sonesta Hotel in the heart of the French Quarter The Tennessee Bar Journal is listed in the and then had dinner at a fantastic restaurant called Galatoire’s. After two days of Index to Legal Periodicals. The Tennessee Bar J o u r n a l, ISSN 0497-2325, is published by the living like the king and queen of Mardi Gras, we noticed that we were quickly Tennessee Bar Association at 221 Fourth Av e . running out of money. So we checked out of the Royal Sonesta and into the N., Suite 400, Nashville, TN 37219-2198, Olivier Guest House on To l o u s e . (615) 383-7421, monthly. Periodicals Postage Instead of dinner at Galatoire’s or Paid, Nashville, Tenn. Subscription price: $60 C o m m a n d e r ’s Pala ce, we had coffee per year. Members: $22 per year. Individual and beignets at Café Du Monde and issues: $10 per copy. Back issues sold on an “as “In Louisiana alone, some available” basis. Statements or opinions gumbo and crawfish at Tu j a g u e ’s. expressed herein are those of the authors and do We took the St. Charles trolley 6,000 lawyers (one-third not necessarily reflect those of the Te n n e s s e e out to the Garden District and Bar Association, its officers, board or staff. P O S T M A S T E R: Send address correction to otherwise took in all the sights and of the state’s bar) had lost Tennessee Bar Journal, 221 Fourth Ave. N., Suite sounds of the “Big Easy.” 400, Nashville, TN 37219-2198. “Nawlins,” as the locals call it, their homes, their offices, became our favorite city. and their law practices, at © COPYRIGHT 2005 Over the past quarter century, TENNESSEE BAR ASSOCIAT I O N my bride and I have journeyed least temporarily, and back to Nawlins on several occa- A D V E RTISING POLICY: While the perhaps permanently.” Tennessee Bar Journal attempts to confine its sions. We have not only had a advertising to legitimate business endeavors, the second honeymoon there, but statements and material appearing in the adver- third, fourth and fifth ones as well. tisements are solely the responsibility of the We spent New Years’ Eve 1986 a d v e r t i s e r. T h e J o u r n a l and the Tennessee Bar Association do not directly or impliedly endorse, there and joined about 75,000 of our closest friends at the Superdome to watch support or vouch for the authenticity of any our Volunteers upset Miami in the Sugar Bowl. representation made in any advertisement We followed our Vols there again in 1991 and saw them beat Virginia in the appearing herein. The J o u r n a l does not intend to Sugar Bowl. And we have even gone to Nawlins several times over the years accept any advertising material that is false and misleading. The Journal reserves the right to when there wasn’t even a football game being played. refuse an advertisement it deems inappropriate. On Sunday, Aug. 28, we heard the news that there was a major hurricane taking direct aim at Nawlins. But I didn’t worry about it. I am old enough to CHANGE OF ADDRESS: If your address has remember when Hurricane Betsy pounded Nawlins in 1965 and Camille struck changed, please notify the Tennessee Bar Asso- it in 1969. The Big Easy survived both of those blows, and I was confident that ciation at 221 Fourth Ave. N., Suite 400, Galatoire’s, Café Du Monde, the Olivier Guest House, and all my other favorite Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal a n d haunts in the Big Easy would be just fine, thank you. other TBA publications. But it wasn’t fine, of course. Hurricane Katrina struck Nawlins and the Gulf Coast with ferocity, killing hundreds and forcing thousands either to flee to safety (the lucky ones) or to pray for rescue. Visit our Web site at www.tba.org I spent the next few nights watching the TV news footage of the beautiful town Printed on recycled paper. (Continued on page 4) TENNESSEE BAR JOURNAL, OCTOBER 2005 3 PRESIDENT’S PERSPECTIVE (Continued from page 3) where my bride and I spent our honey- Tennessee lawyers began to volunteer to In short, Tennessee lawyers opened moon. I felt heartbroken and helpless. help. A network quickly developed their homes, their offices, their wallets, I tried to contact my friends who live consisting of the Tennessee Bar Associa- and their hearts. They generously gave and practice law in Nawlins, Gulfport tion, local bar associations, legal services their time, their talents, and their money. and Biloxi. Fortunately, I learned they offices, law schools, and private law I look forward to returning to were all safe. offices from Memphis to Mountain City. Nawlins some day. I look forward to Over the next several days, I received The TBA petitioned the Supreme taking my bride back for another honey- e-mails from bar leaders in Louisiana Court to give temporary admission to moon. I look forward to having coffee and Mississippi. I learned that in displaced Louisiana, Alabama and and beignets at Café Du Monde and Louisiana alone, some 6,000 lawyers Mississippi lawyers who sought to prac- riding the street car out to Tulane. But (one-third of the state’s bar) had lost tice in Tennessee. Legal Service attor- above all, I look forward to having their homes, their offices, and their law neys were joined by volunteer lawyers dinner with Judy and Rene Martinez practices, at least temporarily, and to quickly set up mobile legal clinics to and other dear friends who live and perhaps permanently. counsel evacuees on available social practice law in Nawlins. And when we Within a few days after Katrina flood e d services in the short-run and FEMA break bread together, I will propose a New Orleans and leveled so much of the assistance in the long-run. Many toast to a great city, the triumph of the Gulf Coast, thousands of evacuees began lawyers even took evacuee families into human spirit, the kindness of friends, to arrive in Tennessee, many of those in their homes. and the kindness of strangers. my hometown, Memphis. Tennessee law schools took in law For an up-to-date look at Tennessee And then, in the midst of all this students from Tulane and Loyola, and lawyers’ efforts or see what you can suffering, something extraordinary lawyers all across the state gave generously do to help, go to happened. All across the Volunteer State, to the Red Cross and other relief funds. http://www.tba.org/Katrina. 4 TENNESSEE BAR JOURNAL, OCTOBER 2005 LETTER B OARD OF GOVERNORS ■ Bill Haltom, Can unfairness be cured in ex parte communications with physicians? Memphis,P r e s i d e n t ; Lar ry Wi l k s , I am writing in response to John Day’s article, “Ex Parte Communications with Springfield, President-Elect; Marcia Eason, Treating Physicians,” which was published in the September 2005 issue of the C h a t t a n o o g a , Vice President; C h a r l e s Tennessee Bar Journal. While I disagree with several of the assertions made by Mr.
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