I Don't Like Mondays (Third Verse)

• Borders Bankruptcy Update: Things are proceeding apace, although it's starting to look more and more like the remaining parts of the chain will be sold en masse to a third party, which will then (either immediately or over time) shed the parts it doesn't really want. What is most interesting is something that news reports like this one are not commenting upon: That the majority of the chain's difficulty is related not to its business, or its business model, but to the arrogance and privilege of real property owners who continue to expect ever-increasing returns on their "location, location, location." <SARCASM> No, of course this has nothing to do with the "housing bubble" or the advisability of renting versus owning. Why would you think that? After all, Mark Twain said we should buy land because they're not making any more (of course, he went through bankruptcy — twice — making his financial advice at least subject to question...). Tulip bulb, anyone? Bueller? Bueller? </SARCASM>
• As more and more authors design e-book covers without the (often dubious) guidance of commercial-publisher art directors, questions like this one are going to become more common. Of course, it's not just the intellectual property questions that need to be answered; it's the unfair competition questions, in particular the quasitrademark concept revolving around passing off... particularly when compared to the strength of the publisher's own brand identification. It would have been nice if we could have seen the spines on Professor Lipton's examples; remember the orange spines on all of those Penguin "classics" edition paperbacks you had to buy in college?
• Several interesting items from the 1709 Blog demonstrate greater flexibility in the users v. holders v. creators brawl across the Pond. Or is that just greater chaos? In any event, I've missed a fascinating conference last week, giggled over hackers straying into pirate territory and ending up walking the plank, and pondered the potential of levy systems to compensate artists... or at least collecting societies.
• In an interesting decision, the Third Circuit held that removing photographer credits from a photograph violates § 1202 of the Copyright Act. Murphy v. Millennium Radio Group, No. [20]10–2163 (3d Cir. 14 Jun 2011) (PDF). This leads to an interesting side question, and one that is unwittingly exposed by the Third Circuit's treatment of a credit as "digital rights management measure" under § 1202: Is plagiarism now an infringement of § 1202, as it involves essentially the same conduct (removal of the proper credit from a published work)? If so, do "unsigned notes" (like continue to be the idiotic practice at Certain Self-Important Law Journals — and you know who you are) fail to have sufficient indicia to fall within a "plagiarism infringes § 1202" theory?
• The Supreme Court decided Wal-Mart today. The dissenters have it right on the law — that is, that the failure under Rule 23(b)(2) is fatal to this particular legal theory in this particular case (thus requiring reversal, as the majority does for broader reasons), but that the plaintiffs should be allowed to recast their motion for certification under a different legal theory. The majority (which agreed with the dissenters as to this case) went too far, in a way, in conflating "commonality" with "predominance" and essentially deciding that a discrimination class action requires proof not of mere effect, but of policy... which, one should note, is inconsistent with the underlying statutes, which (under both statutory language and judicial interpretations left untouched by Justice Scalia's overreaching today) allow "disparate impact" claims.

  That said, the problem is as much with the wording and structure of Rule 23 (which covers class actions) as it is with this particular case, or even the broader class of cases that concern pervasive corporate cultures. The problem is that predominance (Rule 23(b)(3)), commonality (Rule 23(a)), and typicality (also Rule 23(a)) tend to be proven, or disproven, by looking at the same evidentiary materials through slightly different lenses; that is, when one is indexing the documents and depositions for a class certification motion or defense, one ends up referring to the same documents/depositions for all three issues. Perhaps, then, this needs to be reformed to a single, distinct consideration with a single standard... but that would make far too much sense to have a chance of getting through the Judicial Conference as it stands, let alone past Congress for final approval.

  I'll have other injudicious thoughts on judicial stuff tomorrow, such as commentary on the "hot news" opinion from the Second Circuit that is, well, hot news... and what it implies for authors, and in particular for newsletter authors.