Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

04 October 2011

link to: 11:10 [GMT-6]

Ring Bologna Is a Link Sausage

Just one great big ring sausage on the platter this morning: The European Union has destroyed the concept of territorial rights in copyrighted material, to which I say "good riddance."

And it's all thanks to a combination of football (the real kind), pubs, and Rupert Murdoch's greed. Schade.

Today's ruling in Football Association Premier League Ltd., et al., v. QC Leisure, et al., No. C–403/08 (ECJ 04 Oct 2011) arose from a pub owner's disdain for the high license fees charged for satellite broadcasts of English football matches — and particularly of the enormous surcharges for pubs, well above the still-extortionate sums paid in private homes. In the UK, those sums are paid to Sky Sport (~~Sauron~~ Murdoch, through intermediaries, owns a de facto controlling minority interest), above and beyond the TV license fee, because Sky Sport has negotiated an exclusive contract with the Premier League to distribute English-language broadcasts of Premier League matches in the UK. Publican Karen Murphy got a far-less-expensive decoder for Greek broadcasts and used it instead, apparently turning down the volume and playing a radio simulcast for her patrons. Naturally enough, the Premier League and Sky sued.

Those who have been following this blawg over the years will recall that I've claimed for quite some time (relatively recent example) that territorial rights to identical goods are dead in the EU, based on otherwise-unremarkable decisions concerning construction equipment and purported "exclusive territories" for distributors within the EU. If I was right, the ECJ would rule in favor of the publican in this case... while managing to throw some kind of a bone to the rightsholders, perhaps by distinguishing between personal rights and performance rights. In the end, that is exactly what the ECJ did.

So, then, what should authors, and composers, and artists, and other creators of copyrightable works take away from this?

First, and most obvious, is that an identical work can essentially only be licensed once for redistribution of copies in the EU. That is, if one licenses the English-language rights to one's novel (or album) to a publisher in England, one cannot relicense those same English-language rights elsewhere in the EU; the English publisher inherently has the right to sell copies of the English-language work throughout the EU. Thus, no additional licensing in Ireland, or wherever else. This is obviously far more significant in some other languages (e.g., French and German) than English, but it's still significant.
However, this has nothing whatsoever to do with public performance rights, which the ECJ explicitly carved out (see ¶¶ 195–207). Those have been preserved. In this particular case, that means that a private person, in the privacy of his/her own home, could properly obtain and use the Greek decoder with impunity. Ms Murphy, the publican, could not, because showing the matches for her patrons — if, that is, there was enough other copyrighted content — was a public performance, which is a different right that remains subject to territorial exclusivity.
Perhaps most important in the long term, though, breaking the DRM in the privacy of one's own home is allowable in the EU. This is in direct contrast to the U.S., in particular the ill-considered and -drafted Chapter 12 of the Copyright Act (which makes breaking the DRM itself a copyright infringement).
For the future, authors should not concern themselves with territorial limits within the EU for rights negotiations; instead, they should concern themselves only with the identical form (primarily language).
For existing contracts that do make territorial rights exclusions for otherwise identical copyrightable materials within the EU, we're in for a good time. We, that is, being everybody who argues about it... especially lawyers. One thing that today's decision does not make clear enough is whether the packaging of a book or album/EP/CD is "enough" independent copyrighted material to enforce some kind of territoriality for otherwise-identical copies; that is, if slapping a different cover and blurbs would be enough to protect a Belgian French-language edition from a French import. I suspect that the answer is "no," but that's a case yet to be presented.

If, however, you're just a sport fan, the Grauniad offers several worthwhile commentaries on where this might be going. Until, that is, further media consolidation means that the media monsters can demand all-languages transfers...

Labels: arts, copyright, intellectual property, internet, jurisprudence, mass media, publishing

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Sausages?

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

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Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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