02 May 2016

[F]law Day

So there was an almost-invisible Law Day last week, on which we're supposed to celebrate the majesty of the Rule of Law, and this year in particular the Fifth Amendment and Miranda. These are important topics... but not nearly as important as they seem, especially given the black mark of the Panama Papers and its century-old cause: Balkanization. <SARCASM> But Balkanization never led to any real problems, or the collapse of the Rule of Law, did it? </SARCASM>

The Rule of Law beats the alternatives, but it has a lot of flaws in practice that can be addressed by both the profession and by structure. The Panama Papers epitomize one of them. There's a big difference between uniform policy everywhere and uniform law (or at least process) everywhere: The latter marks the Rule of Law, the former marks a crushing conformity. There is a wide overlap, but there is a difference.

The Second Circuit did nobody any favors recently by reifying "federalism concerns" as reflected in New York's overtly protectionist/Balkanized requirement that attorneys living outside the state of New York must maintain a physical office in the state of New York in order to practice in New York — even if they live just across the state line in New Jersey or Connecticut. The majority opinion in Schoenefeld (PDF) isn't just divorced from the reality that physical location has had little to do with either the practice of law or accessibility to clients for a century, since the dominance of Shepherd's and the National Reporter System became impregnable. If it did, we wouldn't have had the indigestible diet of multiple-state-of-origin cases in contract law casebooks since the misbegotten days of Langdell.1 If it did, nobody would have fax machines, let alone electronic document transmission. If it did, no client would have a New York dispute but live in a neighboring (or even-more-distant) state. More to the point, if it did... choice-of-law and choice-of-venue clauses pointing to New York as selected by a party with extreme, and perhaps unfair, bargaining advantage (notice the silence?) would not force authors' heirs into Manhattan courtrooms for seventy years after the death of the author. And it's not just New York, either; California's goofy out-of-state counsel rule which, in practice, requires attorneys who appear even ephemerally, even in federal courts, three times in a five year period to become members of the California Bar — even when arguing non-California law as selected by underlying contracts or the Supremacy Clause! — is another of a near-infinite variety of examples. <SARCASM> Them carpet-baggin' Yankee civil rights lawyers must be stopped. As must anyone else who would question the rightness of local interests... and local bar setting (and collection) of legal fees. </SARCASM>

It's not just choice of law and local protectionism of entrenched bar leadership and law-firm structures that cause Balkanization problems. Differences in legal ethics rules across state lines (let alone national lines, as — again — epitomized in the Panama Papers) also undermine the effectiveness and respect for the Rule of Law. There is no excuse whatsoever for one state (again, California) virtually encouraging litigation-by-press-release when it is prohibited not just in neighboring states, but virtually everywhere else. More subtly, there's no excuse for one state's bar essentially refusing to enforce conflict-of-interest rules that are shared by neighboring states... especially when not one, but two major metropolitan areas in the first state spill over into those neighboring states, and many of the most-prominent lawyers practicing in those metropolitan areas commute across state lines to work every day (let alone to court). This is a perhaps-foreseeable consequence of the simultaneous deference of courts to the state bars to enforce ethics rules... with the corresponding deference of state bars to courts to enforce ethics rules. Leaving, of course, nobody enforcing ethics rules in a uniform manner resembling the Rule of Law, and a disturbingly ironic counterpoint to the concerns underlying Schoenefeld — especially those implicated by the comfort of local/state bars in rules and provisions that unduly favor their commercial self-interests, let alone their clients. Now throw in legal ethics standards that are so low that lawyers generally try to live down to them... and fail...

So I see this as a flaw in the profession and the Rule of Law that would make an excellent theme for 2017. Not going to happen.


  1. Misbegotten because the "case method" is so divorced from the underlying facts, relying as it does on selective recitation by appellate judges who never saw the actual evidence or its presentation. And the less said about the so-called "Socratic Method" as the (purportedly) only appropriate means to teach the basics, the better.

25 April 2016

Monday Morning Grouchiness

It's been an exhausting week, what with moving far more furniture than my back can really handle (among other things), and the energy expended in not eviscerating someone who really deserves it and maintaining a minimum of civility as required by local rules (for some value of "local"). Just two items today.

First, you've gotta love badass librarians. Especially when they're badass librarians by doing the jobs of librarians, not by swinging fake stage swords at threats that really don't relate to librarianness. And keep in mind that the NPR piece is seriously underplaying the history of religiously-motivated manuscript-destruction in Africa — remember, the burning of the Library of Alexandria was arson.

And then there's... yet more foolishness over publishing contracts grudgingly referenced at PW. (Aside: Knowing what I do about Levine Samuel's approach to contracts, that article must have been severely edited for length and content-acceptability.) I'm going to focus on one flaw in the article as published that infects all of its thinking:

Part of the answer proposed by the Authors Guild is for publishers to offer a new set of standard clauses based on contract terms successfully negotiated by sophisticated agents and attorneys for bestselling authors. However, the issue is more complex than it first appears. Most books have a limited shelf life with uncertain sales. Lack of readership is a more certain answer to the Authors Guild’s complaint that “authors’ income is down across all categories” because of the “unfair terms, including reduced royalty rates.”

(emphasis added) I cry "bullshit."

Many books, in many (but far from all) publishing categories, have nonlinear, discontinuous, diminishing returns over time... under the current distribution and availability model embraced by commercial publishing. Relatively recent history proves that the underlying assumptions are at best of nonuniform applicability, and often as wrong as phlogiston and the ether. In no particular order:

  • There's a publishing behemoth located at (47.592846, -122.315787) — nearly 4,000km outside the Manhattan echobox, and notorious for revealing only "sales ranks" instead of actual figures — whose entire model is (at least sustainably and profitably) based upon the unpredictable timing of backlist purchases by actual readers... as distinct from consignment to booksellers who aren't actually buying the books, but hoping to sell them to others.
  • "Limited shelf life" of early books in series fiction my dragon-heartstring-cored wand. Any limits to the "shelf life" relate to the limits on particular packaging, not to the content.
  • Publishing is the only major consumer-commercial segment that bases its price-to-the-consumer model not on the content, but on the package in which it is delivered. This is the equivalent of pricing 80%-lean ground chuck and a Kansas City strip steak the same because they come in the same plastic-wrapped styrofoam package and weigh approximately the same... and pork chops, and chicken, and...
  • "Lack of readership" is a self-fulfilling prophecy when (a) you don't actually target publicity/marketing/sales efforts at the likely readership for a particular work and (b) you've failed in fulfilling your vaunted role as "gatekeepers" since the early 1960s, and thus allowed a proportion of crap in many marketing categories that would astound Ted Sturgeon ("90% of everything is crap") to bury the good stuff.
  • There is no publishing industry, nor justification for uniform practices. There are thirteen distinct publishing industries, each with their own economics, legal foundation, supplier bases, production cycles, distribution systems, markets, etc.… regardless of common ownership. There cannot be a uniform contract base unless one pretends otherwise (like, say, the house mandate at PW does).

Enough of that for now — time to hone the gutting knife in the other matter...

18 April 2016

Google Books Update: The End

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

It's over. From today's Supreme Court order list (PDF), page 12:

15-849 AUTHORS GUILD, ET AL. V. GOOGLE, INC.
The petition for a writ of certiorari is denied. Justice Kagan took no part in the consideration or decision of this petition.

Although this is a bare order indeed — not stating any rationale — I strongly suspect that the procedural and standing screwups in this case made a majority of the sitting justices believe that it is not the appropriate case upon which to base a reconsideration of "fair use."

So what that means is that the Google Books program circa 2005 does not violate existing copyrights under the theory (mis)stated in the complaint by the parties making that assertion.

It does not mean, however, that:

  • Google, or anyone else, has a right to sell (or "license") copies based the scanning done;
  • Changes to the system/use are prospectively approved;
  • Making print materials available online without authorization from the rightsholder is inherently a fair use;

Or, indeed, much of anything else.

It means only that this protracted litigation is over.

However, I respectfully suggest that the Clerk of the Court stop issuing final orders using fonts and formatting that look like they came out of a 1970s IBM Selectric... especially regarding the transition of typeset books to the 'net...

17 April 2016

You Keep Using That Word

Kris Rusch's most-recent column on writers-putting-themselves-in-position-to-succeed has some interesting thoughts in it, but it misuses a couple of words in a way that makes it less useful than it should be. Here, I'm going to focus on just one.

The short version:

Yes, all contracts must be fair to both sides. The problem is that "fair" does not have a simple or consistent meaning.

And now, the longer version.

There is an entire legal field devoted to "unfair business practices," and their legal consequences. Copyright can be viewed as a regulation of unfair business practices (copying another's expression and denying the original author credit, compensation, control, etc. over that reuse). Trademark directly arises from unfair business practices, specifically counterfeiting of silverware in seventeenth-century London. So "fair" obviously comes into the discussion in a fundamental way...

...for wildly different and inconsistent definitions of "fair" that can change even regarding the same transaction or relationship. There is no content here without context. Specifically, it matters whether:

  1. One side in a transaction/relationship is legally a "consumer"
  2. Any party in a transaction/relationship is acting outside the normal course of business for that party
  3. Any aspect of a transaction/relationship is subject to specific regulation due to a party's status (e.g., a foreign citizen, a child, etc.), even if it is an otherwise simple/obvious context

This is a far-from-exhaustive list, but I think it suffices for illustrating that "fair" doesn't always — and perhaps even usually doesn't — mean the same thing, even in the relatively narrow area of contract law.

  1. This is not at all the same thing as "is an individual" or "has a distinct power/information deficit." The law is, in many ways, either stupid or a blunt instrument on this (often both). Consider, for example, loans. When one goes to buy a car in the US, one must receive — in a specific format — disclosure of certain terms of the loan, including the principal, the total repayments, the total finance charge, and the interest rate. Further, there are complicated rules for what is and is not a finance charge, which in turn affects the actual interest rate.1 But almost none of these rules apply to business loans. If the lender discloses comparable information, it need only be comparable — even the definition of "finance charge" and "interest rate" can be different!

    Needless to say, this can create a lot of confusion — and a lot of opportunities for "unfairness" — when an individual is often/usually acting as a consumer, but sometimes acting as an author-businessperson. "Fair" has a different meaning, because for reasons both good and bad, both political and historical, the law (both the common law of the US and UK, and civil law elsewhere) assumes that businesses always are sophisticated, always have sophisticated advisors on both the economics and legalities involved, and always have practical, economically viable alternatives to the particular terms being offered for a particular transaction or relationship... and that for consumers, one must substitute "never" where "always" occurs in the first part of this sentence. It doesn't matter that the business is a sole proprietor engaged in his/her first transaction ever involving the entertainment industry or is Comcast: The law treats disclosure and general "fairness" requirements identically.

    The problem for authors and other creators is most readily apparent when the author brings his or her expectations from consumer contracts — and especially from regulated consumer contracts like phone service and apartment leases — into the wild, wild Antarctic of business-to-business transactions. Those expectations are downright misleading... at best.

  2. Again, the law, and modern finance systems, assume that everyone in business is smart enough to only ever act within their own experience or expertise. That's one reason that even though the actual law of, for example, fraudulent inducement2 is usually supposed to be the same for consumers as it is for business-to-business contracts like publishing agreements, in practice a court will allow a lot of inferences in a consumer's favor that it will not allow for a business... that is, when the law doesn't explicitly bend over backwards for the consumer in the first place. But this also has an effect on the trier of fact (jury, or judge sitting without a jury) when one party is acting outside of its expertise. Consider, for example, a business that has been operating for thirty years whose output has suddenly and unexpectedly been made part of listed commodity futures and options. A judge (or jury) hearing a dispute arising from the first few transactions in this thrust-upon-the-business, outside-the-normal-course-of-business circumstance will treat that business differently than it will a commodities brokerage with offices across the street from the Chicago Merc for that same thirty years, even if the contracts and dispute are otherwise identical.

    This distinction usually comes back to bite authors and other creators in the butt. Bluntly, there is no normal course of business in the entertainment industry, except that imposed by certain large distributive actors.3 But that's a circular definition, even if the law refuses to acknowledge that circularity. It is, for example, how we got to "25% of net is the appropriate e-book royalty from commercial publishers"; it is how we got to remarkably uniform 10%/12.5%/15% royalty escalators for casebound trade fiction; and so on. Unfortunately, once something is established as "industry custom," it is itself enshrined as quasilegal — even if it arose from "unfair" transactions and practices.4

  3. Going into the details here would be rather fruitless, because whether party status has an effect on a contract is highly fact-bound. In the entertainment industry, there are more obvious examples than one can shake a stick at, usually involving individual child performers, and they need not resemble Mommie Dearest to be abusive — just ask Lindsay Lohan or any other child star who later accuses a parent of looting.

    This is a particular problem for creators' estates. The executor or trustee is often obligated to act in ways that are not consistent with protecting or enhancing the reputation of the creator, or (more often) protecting or enhancing the noneconomic interests of the heirs. This frequently leads to even-more-abusive-than-the-norm contracts allowing or enabling even more assaults on "artistic integrity" than usual (e.g., "We Can Remember It For You Wholesale" becoming Total Recall; or... anything related to Dune).

    Status problems can get hypertechnical. They also provide many of the best-known examples used to "prove" the validity (or invalidity, as convenient to the speaker) of various kinds of behavior in the entertainment industry. Even noncontractual status problems intrude, such as being the child of alcoholics who is accused of being drunk in public by a sleazy tabloid. The key point is that what is "fair" depends a great deal on status issues that may not be immediately apparent... or subject to "business as usual."5

*  *  *

As Inigo Montoya said, "You keep using that word. I do not think it means what you think it does." And whether we say "inconceivable" or "fair," we have the same problem when discussing contracts.


  1. Specific example from my misspent past: Gibson v. Bob Watson Chevrolet-Geo, Inc., 112 F.3d 283 (7th Cir. 1997) (dealer's retained upcharge on extended warranty must be disclosed as a finance charge and not treated as just part of the cost of the vehicle).
  2. This is an unfortunate term descended from common law that has only a passing acquaintance with ordinary meanings of "fraud." Unlike fraud, fraudulent inducement is a pure contract circumstance holding that no valid agreement was reached because one side improperly induced the other to sign, usually by withholding either information (which might be "fraud by omission") or general knowledge and context to interpret the circumstances in which the contract is supposed to take place (which is almost never due to specific intent to defraud, or at least is defensible as "mere hard negotiating").
  3. Whether this does, or should, raise concerns about abuse of monopsony power is for another time. And no, that's not a typo: In antitrust and unfair-competition law, a "monopsony" exists when there is substantial market control not by the supplier, but by the recipient. That is precisely what the author/commercial-publisher relationship looks like. All of the math for determining market concentration, effects, etc. is — or at least should be — different.
  4. Cf., e.g., Uniform Commercial Code § 1—303(c). The common law is actually even harsher on this in business-to-business transactions, especially in New York. Cf., e.g., Rest. (2d) Contracts § 222.
  5. The racial-discrimination connotation of "business as usual" — especially regarding the entertainment industry — is entirely intentional.

12 April 2016

Mobile Link Sausage Platter

This will be a relatively grouchy/irritated platter of link sausages, inspired in part by a fourth major move in a year (and this isn't the final one yet, either). At least this one was only cross-town...

  • Now this is an honor-worthy "activist" judge... who's only doing his job after being forced into a corner by the advocates before him. And well, I might add. The Hon. Arthur Hunter (Orleans Parish, Louisiana) ordered the release of seven indigent criminal defendants because the state was not fulfilling its constitutional obligation to provide defense counsel. He then immediately stayed his order to allow an appeal, thereby throwing the matter back on the elected officials who caused the problem in the first place by refusing to do their jobs.

    This is, rather ironically, an example of the free-rider problem in action. By definition, higher-income and higher-asset members of society have a disproportionate share of assets that require protection — both directly, via the justice system, and indirectly, through infrastructure (gotta have a smooth road for that Caddy to hit 120 while driving drunk) and public education (they're gonna need barely-minimum-wage nursing assistance as they get old and engage in expensive life-extending medical treatments denied to everyone else for lack of resources). And they get a disproportionate share of the benefits from those systems regardless: The complexity and court time taken up by a "simple" dispute over, to stay in Louisiana for a moment, which multibillion-dollar corporation has to pay a little bit more into the Deepwater Horizon fund is directly behind the lack of resources for other matters involving incarceration of indigent defendants in a city with just a tiny history of race- and class warfare (and a police department that has historically been less than evenhanded).

  • Although this is certainly wound up in a matter that has ensnared me at the moment, it's a longstanding professional problem. If the legal profession really cared about either the public or its reputation, it would ensure that there are actual, reasonably forseeable consequences for lawyers who lie. The courts are often reluctant to impose sanctions for lawyers who attempt to mislead them and get caught, for a variety of institutional reasons (not the least of which is the continuing misinterpretation of "zealous advocacy"... which has not been part of the legal-ethics rules in most of the country for nearly forty years). The bar authorities, conversely, expect the courts to police this almost exclusively — even refusing to allow filing of complaints during the pendancy of a matter in which a lawyer's pants are on fire for all to see. And we end up with this crap, which is also related to the insanity of allowing election of anyone who has direct authority over criminal justice.

    Both the judiciary and the bar regulators have abrogated their duties in this area. Perhaps we need a Judge Hunter... and not just for criminal law, either.

  • Wesley Morris ponders the "fundamental" problem of superhero movies from the perspective of, well, lugubriousness. Unfortunately, he — like damned near every "serious" critic/figure who deigns to comment on "mere" comics — completely misses the root of the problem he wishes to discuss: the nature of the "superpower" at issue. It's about dead presidents more than dead philosophers.

05 April 2016

A Moderately Irritated Note to Internet Advertisers and Graphic Designers

There's no excuse for breaking a webpage because a potential reader is (a) on a "slow" connection that doesn't handshake with your "data analytics"1 software or supercookies or (b) is aware enough of "data analytics" and its inherent weaknesses that he or she blocks the cookies without blocking the data. There are some advertising aggregators that I block at the DSN level (I'm looking at you, certain-advertising-engine-named-after-a-mouse-function) because the proportion of actual malware distributed through them is unacceptably high. I block supercookies and third-party cookies unless I preapprove them.

Get over it. I'm only rarely blocking the actual ads themselves. In fact, by blocking the cookies and unnecessary tracking I'm actually giving you better data: I don't actually read your ads, as a matter of policy and conscious avoidance I never click on an ad (or, indeed, make any purchase based upon an advertisement), so a positive data point from me to you is actually affirmatively misleading.

I accept that however economically foolish it is, y'all are using an economic model that depends almost entirely upon advertising, and don't want me to see the "premium content" without seeing the ads (but see above... and below). Actually breaking not just the kewl content page(s), but the front page with the index to the kewl content page(s), is dumb. It means I won't even look at a headline and change my mind to allow cookies "just this once," let alone for that site. It means that you'll never get any of my three readers doing the same by clicking through to your formerly functional index page (that is now obscured by "automatically resizing" graphical elements that aren't smart enough to figure out that they don't know the screen size at the destination if the destination isn't giving them supercookie data-analytic feedback) if they take even comparable precautions to protect their own computers from malware. The graphic designers were so eager to make things look kewl on every potential device that they couldn't bother to make them look usable on "no device."2

But at least that's just a commercial website. The less said about the way some financial-services websites rely on even worse security practices, the better. There's no excuse for a bank's website throwing up all over one's shoes when confirming a checking account balance merely because the "block third party cookies" setting prevents that bank's mortgage-refinancing division (which is a separate corporation on a separate domain) from displaying an ad to lowest-fee-structure checking-accountholders who are not homeowners and have no interest in becoming homeowners. Leave aside for a moment whether this might violate any requirements of the Consumer Finance Protection Bureau or of the Federal Reserve or of the Comptroller of Currency or even state-level banking law, major-US-bank-now-in-North-Carolina-that-used-to-be-in-San-Francisco (and you're not alone in this, either — or even the worst offender). Leave aside, too, whether as a depository institution you have an ethical obligation to make things clear to your depositors. This is just bad business: You're discouraging accountholders from doing the responsible thing and checking balances before engaging in transactions... and thereby becoming eligible for those (overpriced) mortgages your own bloody ad is peddling so assiduously.

If I can't view a site even when operating in relatively open mode, it — and its advertisers — have even less hope of getting business from me (or my three readers) than my sarcasm, cynicism, and willpower would otherwise allow. Of course, many of these advertisers depend upon customers being credulous... which says some interesting things, but for another time. Perhaps for election time given the current primaries (in which the two leading ethically- and intellectually-challenged Heffalumps are each claiming a "right" to a third candidate's votes/voters, like some baron at Runnymede counting his peasants).

The real problem here, though, is that the silence on misuse of "data analytics" — whether actual or potential — falls directly into a conversation gap about the "FBI iPhone data demand." That's a complex argument for another time, but y'all should ponder the difference between the ire directed at the FBI's demand for assistance... and the routine use of hidden code and data aggregators that gets to at least 80% of the same thing.


  1. That term always makes me laugh. I'm older than I look; back in my day, we called it "traffic analysis" (PDF) and used it for some pretty inimical-to-privacy purposes. Whether we were more or less trustworthy than private industry because we were the gummint is, of course, a value judgment, and varies over time. Whether the capability and known usage leads to an inherent capability to breach privacy, however, is not.
  2. As an individual with a moderate visual impairment and very strong text orientation who actually reads the text, I have a decades-long dispute with the graphic-design community. I've been wearing bifocals for about half a century, you idiots: Trying to get my attention around your idiosyncratic visual periphery isn't just useless, it's counterproductive and insulting. And that would remain true even if I had perfect vision. Rule of thumb: The earlier a person with a graphic-design orientation is involved in any process, the more likely there will be a disjuncture — possibly extending to dysfunction — between the content and the display context.

01 April 2016

Thought of the Day

Here's hoping that the Drumpf campaign is just an April Fool's joke that extended far too long...

... and that everything he says today will finally turn out to be an April Fool's joke. Whatever it may be.

On the other hand, he's more trustworthy and forthcoming than just about anyone in conglomerate/commercial publishing.

28 March 2016

It's Only Pain

All I have to say about the posting gap is that migraines suck... and make me even more grouchy about hypocrisy (which is why you'll find so little election coverage here in the first place).

  • The EU is finally considering a form-over-substance revision to part of its VAT system that might — just might — bring e-book VAT in line with printed-on-paper books. Of course, it's a mere consultation at present, but it's at least a start to the conversation.

    On the other hand, I'm against VAT (and sales taxes) in the first place as inherently regressive and not serving an appropriate economic purpose, because taxing activity instead of hoarding is ultimately counterproductive. But that's for another time... and, I have to admit, the alternatives are limited.

  • In a disturbingly related story on this side of the Pond, my old adversary Scribd blew it when changing from an unlimited-reading "subscription" model to a limited-borrowing model. Bluntly, this is entirely consistent with the problems I've had with Scribd from day one: It has relied upon uncurated submissions by users and not by the actual authors/creators for its library, under the "information wants to be free, but we want to profit from making it free" model also shared by even-less-savoury filesharing systems. Let's just say that the opportunities for piracy (and other unauthorized use, such as the publisher exceeding the scope of the license) are rampant and leave it at that, ok? And as a final reminder, "out of print" does not mean "out of copyright."
  • Jumping back across the Pond again for a moment, the EU has launched a public consultation into the role of publishers in the copyright value chain and on the "panorama exception". And American authors need to pay attention: There are over 100 million active readers of English-language materials in the EU, not to mention the translation and derivative-works markets.
  • Rod "The Hair" Blagojevich lost his last appeal when the Supreme Court denied him certiorari this morning. Illinois politics is Illinois politics, even (and perhaps especially) outside of Chicago — the corruption, machines, nepotism, and bigotry are just as bad downstate, in both parties, but haven't had the kind of PR that big-city-Chicago has had over the last century. Just take a look at DuPage County (or Champaign County), let alone the state government...

Now back to the pain and suffering.

17 March 2016

We're Still Going Crazy

Just a quick update on a copyright matter covered here six months ago: Babies, craziness, bad faith, and the Internet all at once!

Today, the Ninth Circuit issued an amended panel opinion and denial of rehearing en banc (PDF) in Lenz — the video-of-baby-dancing-to-copyrighted-music case. The revised opinion really does nothing to change the bottom-line analysis, but nonetheless I maintain my skepticism of how he court reasoned its way to the diaper pail. As I said in September last (emphasis in original),

The bottom line is that Lenz doesn't actually help anyone. It fails to acknowledge either process or motivation in "good faith"; it misstates legal doctrine in a way that will be cited out of context by others; it doesn't even provide a realistic guide to conduct other than "consider fair use" (with no real guidance on what that consideration must be... or the consequences if it's cursory and economically efficient, but objectively and indefensibly wrong, and probably performed by unqualified drones). Nobody benefits. That's at least as much the lawyers' fault — on both sides — as it is the courts; it's even more the litigants'/litigation backers' fault. And, in turn, that comes back to Congress's inexcusable inability to write a clear statute, or acknowledge that the statute does not exist in isolation.

This is, of course, nothing new. The problem remains — as always — that the statute was badly drafted in almost all particulars, primarily because the only outside parties that were listened to (or, in the case of § 512, even consulted directly during the drafting phase) were large-scale distributors and transferees who constitutionally are not the primary actors considered in the IP Clause. Instead, the statute was drafted with efficiency for those large intermediaries in mind, without real regard to either process issues or the interests of any other actor. This revised opinion, I'm afraid, does virtually nothing to meet these concerns, and instead gets saved by civil procedure: There was enough evidence to go either way, which made summary judgment either way inappropriate, so let's send it back down where the parties may be more amenable to settlement.

And it's still primarily counsels' fault.

European Vacation

This blawg's only feline friend the IPKat notes two European matters of interest to authors everywhere. Any American author who is writing anything other than ephemeral, pure-local-interest material but denies that anything going on in Europe — and especially European legal disputes — has any meaning for this side of the Pond is either stupid or a doctrinaire isolationist... if, that is, there's a difference. After all, Europe essentially forced the 1976 Copyright Act upon us!

First, there's a fascinating decision that may founder on Winston Churchill's lament: That the Brits and the Yanks are a common people separated by a common language, in this instance the term "moral prejudice." The Court of Justice of the European Union (the EU's equivalent of the Supreme Court, albeit with somewhat less authority to restrain unruly national courts than our Supreme Court has over state courts... and, more to the point, no federal courts of appeals beneath it to refine the record and the reasoning) has just today held that:

However, as is apparent from paragraph 20 of the present judgment, setting the amount of damages due as a lump sum on the basis of hypothetical royalties alone covers only the material damage suffered by the intellectual property rightholder concerned; consequently, for the purposes of providing compensation in full, that rightholder must be able to seek, in addition to the damages thus calculated, compensation for any moral prejudice which he has suffered.

Liffers v. Producciones Mandarina SL, No. C–99/15 (CJEU 17 Mar 2016) ¶ 26.

What the heck is "compensation for any moral prejudice which he has suffered"? Well might you ask — it's not at all clear. Indeed, it's arguably and primarily a trademark — not copyright — concern, specifically related to the morass of tarnishment and disparagement. It's somewhat akin to the "author's right of integrity" (not a part of our copyright law except for visual fine arts under 17 U.S.C. § 106A, and even then not an independent right), but not exactly. "Moral prejudice" also includes damage to the author's ability to benefit — artistically and commercially — from his/her (it is restricted to natural persons, and I don't have a good grammatical solution for transgender/nongendered identification of natural persons that doesn't ambiguously include entities and organizations)1 rights to both further license the underlying work and to create derivative works. And that's the distinction that matters here.

What the CJEU appears to be saying is that a copyright infringement remedy may — and perhaps must — consider the damage to both direct and indirect continuation activities, perhaps well beyond the specific illustration in Liffers of "actual damages for infringement of x" plus "hypothetical damages of a license fee of y." One illustration is the notorious "Dr Juice" parody (sorry, Ninth Circuit, you were wrong: It is a parody under the literary analysis, and is fair use). Under Liffers' reasoning, the remedy would also need to include consideration of harm to the Dr Seuss brand resulting from the "Dr Juice" parody, and more particularly any commercial or artistic restrictions that might have placed on the late Mr Geisel's personal ability to create and commercially exploit further derivative works based on The Cat in the Hat and further license — or properly license to the "infringers" — that work itself (had he not already been deceased). This is an interesting conundrum... at least to IP nerds and civil procedure geeks.

On the piracy front, the Advocate General (somewhat similar to our Solicitor General) thinks that free wi-fi providers whose services are used to download pirate copies aren't liable to the copyright holder, but can be enjoined from future enablement. I have more than a modicum of experience in this area. The Advocate General is trying to give both sides half a loaf. On the one hand, there are bad actors out there; there's no reason whatsoever that I should be able to walk into Starbucks and use its relatively anonymous2 wi-fi services to connect not to the latest Drumpf outrages, but The Pir4t3 B4y to download a crappy cell-phone-camera capture of Zootopia. But it's also not entirely reasonable to expect Starbucks to filter even ardent and outright piracy without specific prior notice, and in this instance validated by a judicial order and not mere assertion.

On the third tentacle, "entirely reasonable" is not the standard here: Not for free speech (especially in Europe!),3 not for internet access, not for commercial internet services, not for copyright holders. And we're going to leave aside some of the practicality issues, such as "How does one expect a free wi-fi provider to deal with changing addresses, let alone torrents and Tor and even darker access systems?"


  1. And this is the best solution I have for necessary, but excessive, parentheticals. Not a very good solution for a blawg, where I can't easily ensure that there's an easy way to see everything at once...
  2. If one takes even moderate precautions, such as using a free VPN while sipping that fourth extra-large, two-extra-shots mocha of the morning, that are utterly necessary to avoid hacker intrusions and other security vulnerabilities.
  3. Noted principally for unfunny irony: But for the US government's disclaimer of copyright in its official works — which is not the case in Europe at all — this reasoning could be used to prevent access to WikiLeaks and Snowdenization. It also undermines the reasoning in Nation Enters. for that particular context, but that's for another time, and another fifty to sixty footnotes.