09 May 2024

Hens' Teeth

Well, the Supreme Court agrees with me about something: New York City is not the center of the universe. At least not as far as copyright damages are concerned. Today's decision in Warner Chappell Music, Inc. v. Nealy held that:

In this case, we assume without deciding that a claim is timely under that provision if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened. We then consider whether a claim satisfying that rule is subject to another time-based limit—this one, preventing the recovery of damages for any infringement that occurred more than three years before a lawsuit’s filing. We hold that no such limit on damages exists. The Copyright Act entitles a copyright owner to recover damages for any timely claim.

Warner Chappell Music, Inc. v. Nealy, No. [20]22–1078 (U.S. 09 May 2024) (PDF), slip op. at 1.

Nealy matters to authors and other creators in several ways, some of which aren't all that obvious — and buried in footnotes. Starting with the obvious ones:

  • The Court explicitly sided with jurisprudence from the Ninth Circuit on copyright matters against that from the Second Circuit. This has been a trend since the 1976 Act came into force — not uniform, often not explicit, but conflicts between the Ninth and Second Circuits on copyright matters have a very distinct tilt toward the Left Coast once they reach the Supreme Court. (Interestingly, that also extends to civil-procedure matters embedded in copyright disputes; for example, although it was far from explicit, the Court came down hard on the side of the Ninth Circuit's treatment of summary judgment burdens for defenses in Grokster.)
  • In a broader sense, the Court held that limitations on remedies — and probably not just in the Copyright Act — are not presumed from statutes of limitations on causes of action, particularly not when a discovery rule is at issue. This particularly makes sense when late discovery (and late steps in chains of events) are at issue; one obvious example is the employee not selected for a promotion carrying a significant pay bump who does not discover an unlawful discriminatory reason for the selection for five years thereafter (well after the statute of limitations). That matters to authors, composers, and other freelancers with day jobs…

    But it also matters in a piracy context. Indeed, that's closely analogous to Nealy's situation — at least at this stage of the proceedings, he was unable to discover the infringement while incarcerated. That's not all that different from an author with no access to a behind-a-paywall/membership-required pirate site, or no awareness of a cheap pirated printed edition being sold in stores on the opposite coast.

  • The ability to reach back to the original date of infringement for a remedy also shifts the balance slightly in favor of the creator for perhaps the most important purpose of all: Settlement. The vast majority of copyright claims are settled, either before or during litigation.

But the most important things may be buried in two footnotes.

Scholars have speculated about “exceptional case[s]” in which a copyright plaintiff could get some benefit out of a discovery rule even when combined with a three-year damages bar. 3 M. Nimmer & D. Nimmer, Copyright §12.05[B][2][c][ii] (2023). Suffice to say that assuming those cases exist at all, they are as rare as hen’s [sic] teeth.

Id. at 6 n.2. It pleases me to see one of the (far too many) speculations in what has all too often been treated by the Courts of Appeal and especially the District Courts as the Restatement (0th) of Copyright smacked down as unrelated to reality.

There was also advice that applies in all appeals — not just copyright matters.

[E]ven supposing Warner Chappell’s petition had urged us to opine on the discovery rule, our reformulation of the question presented should have put an end to such arguments. “The Court decides which questions to consider through well-established procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system.”

Id. at 5 n.1 (citation omitted). The short, snarky version of this is "Answer the question(s) specified for review, even if that's not what you really want to answer." Especially when the client already has a reputation for overreaching copyright management (and this is just one rather well-known example).

Nealy is good for actual creators. It may also prove good for some transferees. It's bad for "don't notice me!" and difficult-to-identify infringers. Schade.

I anticipate some lobbying to amend the Copyright Act to put a specific time limit on remedies…

04 May 2024

Dear Sandy,

I'm sorry you never made it to class, fifty-four years ago today. Maybe if you had, you'd remember — something that's not happening now.

We have a war of highly dubious origin being prosecuted largely by and against the wrong people. Worse, it's being prosecuted with no respect whatsoever for civilian populations around the war zone — any of the civilian populations around the war zone — by bigoted old men (on all sides).

We have students protesting against that war, many — unfortunately, not all — of whom oppose atrocities notwithstanding the politics of their grandparents. ("Never Again" means everybody.) But the political apparatus in all of the nations involved is more interested in obtaining, maintaining, and asserting power than it is in policy. Or, for that matter, in humanity.

We have undereducated self-promoting assholes (who, when they have any education, deny its value) proclaiming that colleges aren't good for students or society anyway, and who propose sending the National Guard back to college campuses. We did then, too, so little has changed.

But "the worst type of people that we harbor in America" probably aren't the students. They have little, if any power — as evidenced by the disdain of their elders during election season. No, the worst type of people that we harbor in America believe in free speech for themselves, but not for others — rather precisely inverting every value behind freedom of speech, and disrespecting all of us who ever put on the uniform in its defense. That they resort to slogans, and tribalist stereotyping and bigotry, and a profound absence of decency — all the while failing to disclose any conflicts of interest — should surprise precisely no one.

Have a nice day, heirs of John Mitchell.

p.s. You arrogant, ignorant, impressed-with-your-own-cuteness Star Wars fanboys who've attempted to claim 04 May as your own should probably ponder how your "creator"'s alma mater is dealing with dissent right now, and ponder who is the Rebel Alliance, who is the Empire, and who benefits from such labelling. All of which requires a great deal more sophistication and nuance than that franchise can support… and maybe a couple years of college, something that none of the characters even contemplated. Get a life!

29 April 2024

Completely Legitimate Link Sausage Platter

Because they're not my bastards.

  • Fortunately, I didn't have any ancestors Over Here in time for the Second War of American Secession. Those who did have some overdue bills. This is a serious problem with hero worship of all kinds: More of them are clay all the way up to the neckline, not just their feet, than the common mythologies will acknowledge. And some of them are just mud — like A.P. Hill, and John Bell Hood, and Robert E. Lee, and Henry Benning, to name four easily-identifiable traitors.
  • But if you want to see some real bastards, look no farther than those who make most of the money from touring musical acts (hint: it's not the musicians). Naturally, oversimplistic fixes won't work — not to mention will be quickly and easily evaded.

    Authors: You're next, in a few more years. That's been the pattern for the last century or so — what happens in the music industry happens to publishing around a dozen years later (usually with a different name attached to it).

  • Then there's the problem of now-unlawful noncompete agreements. They've been a problem in publishing for quite a while, specifically clauses prohibiting authors from publishing "competitive works" under their own names without prior written permission (which, I should add, is never forthcoming — not even for option works that were rejected). The irony that most of the commercial publishers are controlled by European conglomerates whose home nation laws prohibit noncompete agreements far more broadly than this FTC rule is a bit much to tolerate.
  • But that's more tolerable than yet more junk economics. <SARCASM> Inflation doesn't kill off the middle class — trustfund beneficiaries do. </SARCASM>
  • Even within economics, or the arts, or the sciences, expertise is and must be acknowledged as limited — which loops back in to the "our bastard" meme all too often. Being an expert freedom fighter/revolutionary has very little indeed to do with being able to govern afterward.

19 April 2024

More of an FM Vibe

Not the Steely Dan piece, either.

  • There's a pending "controversy" about whether AM radios should continue to be required in cars. Leaving aside the more-than-faint echo of buggywhip manufacturers, there's an interesting irony here. On the one hand, the op-ed "contributor" is affiliated with a relentlessly pseudo-free-market, right-wing-tinged "policy institute" that is extremely friendly to two constituencies that distinctly benefit from AM radio: Right-wing controlled-by-descendants-of-the-founder-without-any-competition Sinclair Broadcasting, and right-wing talk radio shows (especially those west of the Appalachians). Troubling how one's principles can get in the way of loyalty to one's friends and patrons, isn't it?
  • Turning to piracy of manga rather than piracy of the airwaves, the District Court in Tokyo imposed a ¥1.7 billion (US$11 million) penalty on a pirate website's operators. This is interesting for two reasons. First, unlike in the US, evading such a penalty through bankruptcy proceedings will be virtually impossible — it's merely complex in the US, but certainly achievable. Second, it's interesting that the court imposed a penalty based not upon "lost profits" but upon "lost revenues" — a measurement almost impossible to achieve in the US, especially given the "long discount" and typical court offsetting of costs avoided. Harlan is cheering the court on from beyond the grave — which rather sounds like a story he might have written…
  • That was "just" piracy, not outright fraud. "Fraud" of this nature — given who the "victims" are — has me playing a sad lament on the world's tiniest violin (and wishing that some of the money went to the artists); a little later, that lament will evolve into a folk dance, perhaps even a tarantella. It also has me shaking my head at the primitive-magic aspects of "the original" subscribed to by the denizens of self-proclaimed fine art, and suggesting that the exclusivity of trading only in "the original" is precisely what made the fraud possible… and determined the particular victims.

    It's worth pondering what this scheme might have looked like if we were talking, instead, about "the original manuscript." Leaving aside any editorial contributions — or more than merely "contributions" — a reader gets the same authentic Experience from a mass-market paperback as from the longhand/typewritten/word-processed manuscript. Indeed, the typography and design of a printed edition are almost certainly better, and one can read a printed book on an airplane or holding it in one hand (not to mention e-books).

  • A seemingly abstract legal issue also exposes a hypocrisy in litigation (surprise — it's only one of many). Most contracts these days have a forum selection clause, frequently putting the matter in the home court of the more-powerful party. Many publishing contracts require that (serial numbers filed off)

    Any action or proceeding regarding this Agreement or the Work shall be brought solely in the New York courts (state or federal) in New York County.

    or similar language — even for publishers not located in New York. One of the rationales most often stated is that the judges (and lawyers!) in the selected forum are "more familiar with" and even "expert in" the particular kinds of disputes. This, however, contradicts the "generalist judge" and "nonspecialist lawyer" memes of American law practice, and rather exposes the hypocrisy… and not-invented-here syndrome (go ahead and check the Second Circuit's track record in copyright matters before the Supreme Court, and for that matter in Congressional hearings and with the United States Trade Representative, since the 1976 Act came into effect — it's worse than the purportedly out-of-step Ninth Circuit in criminal law and civil rights!). In this, I envy full-bore patent lawyers a bit — at least their appeals are to a specialist court, where the judges more-probably-than-not can accurately pronounce "sphygmomanometer" and "D-lysergic acid diethylamide," not to mention understand the difference between a decimal and a binary megabyte.

  • At least rising sea levels won't directly impair Swiss citizens who obtained a ruling that their human rights were violated by government inaction on climate change from the European Court for Human Rights.

12 April 2024

Living in the Past

It's not just a Jethro Tull album! And I'm not too old to rock and roll — just too old for the mosh pit. Or dance floor. Or TicketBastard-determined "concert seating."

  • Many, many nations distort themselves, their citizenry, and the world at large by living in the past. Ranging from French insistence that the UN Secretary General must speak French (and, for those who point out how common that language is in Africa, it's worth pondering why) to Old Boys at the UK Foreign Office (which was a problem decades ago when I was dealing with them), perhaps the epitome is false nostalgia for the Iron Lady — itself echoing the false nostalgia for Ronald I Over Here.
  • And meanwhile, extreme inherited wealth continues to distort matters and lead directly to unseen levels of corruption. Not just politics — neither airplanes nor orchestras have escaped, either directly or just attempting to please aggressive passive investors who are convinced that "having money" means they know how to manage organizations and mice. Which is far less a defense of mice than a rejection of leeches…
  • …including misuse of technical terms for marketing purposes. It rather pisses me off, as a chemist (just short of a minor in biology, all those decades ago), to encounter "organic" and "natural" bandied about in organic-chemistry-enabled-nonrecyclable plastic packaging. Benzene is organic (and even largely results from natural processes operating on animals whose diets were, umm, completed millions of years before there was anything artificial to add!). Arsenic and amanita mushrooms are natural. But in an extension of misuse of language to deceive that wouldn't have surprised Orwell, that's not what the "reasonable consumer" understands.

    And let's not get into the class-based and "rural rage"-based misuse of "genetically-modified organisms," either — especially not if there are any AKC-breed-standard German Shepherds in the household, which developed their hip dysplasia tendencies without any help from a laboratory. It's not the method, it's the deployment (which is not a defense of the company that gave its name to my undergraduate chemistry building… almost all of whose inimical strategies have been driven by MBAs and not chemists). The past when those dirty rotten scientists hadn't yet explained mechanisms was not paradise.

02 April 2024

"My Dad Can Beat Up Your Little Sister"

…seems to be the theme of A Certain Candidate for Office's attacks on the families of judges who are charged with hearing cases against him. This sort of nonsense has several unsavoury aspects:

  • If there's a response — whether by the actual target (the judge) or merely the stated one (the family member(s) named in the attacks) — that will be used by That Candidate's counsel, with dubious ethics, and That Candidate's apparatchiks, who couldn't spell "ethics" except perhaps as "зтика" (sorry, I'm rusty), as shrieking and ultimately irrelevant grounds for a recusal motion against the judge.
  • If there's no response, the worst of the apparatchiks and assorted hangers-on will take that as irrefutable proof of the truthiness of the attacks.
  • Regardless of the response, it will prove that That Candidate, and especially That Candidate's dad, has/had far more money. Regardless of the legality of that money (irony alert — that's precisely what more than one of these proceedings concerns).
  • It's That Candidate's First Amendment right to say anything he damned well pleases, regardless of its factual foundation. But if anyone else says anything disrespectful — like, say, pointing out that That Candidate is descended from undocumented immigrants — that's a vicious libel that cannot be tolerated. Not to mention the family tradition of dodging the draft…

So go ahead, Certain Candidate. Show us all exactly what a fourth-grade bully looks like, and acts like, and thinks like. When, that is, a fourth-grade bully does any thinking at all.

29 March 2024


It's worth pondering the relationship between ends and means, on a day celebrated as "good" after the execution of a dissenter against a domestic theocracy by a foreign occupier. Oh, wait, that's something we just don't do.

  • One feature of England's property laws that is buried in the US is the leasehold/freehold distinction. It's far from absent; foreclosures on HOA assessments and condominium fees are just two examples. But there's even less justification in the UK — at least in theory, in the US HOA/COA assessments must be plowed back into infrastructure (or held in reserve for emergency repairs/enhancements to infrastructure). The real fun comes when the various fees are instead siphoned to passive investors interested primarily in other aspects, like "maintaining the character of the neighborhood"… or "improving the character of the residents"…
  • Meanwhile — and, again, more visible because it's not buried as deeply — there's the problem of the most obvious undesirable characters in neighborhoods: Those involved in the arts, and perhaps especially in the infrastructure. And by that I most vehemently do not mean art galleries… or music labels… or commercial publishing dominated by passive investors and inherited wealth… Gee, that all sounds very much like the preceding sausage, doesn't it?
  • The real commonality is self-declared special-snowflake status for distributors. These behemoths demonstrate that Marx (and Engels) were looking at the wrong group as bad actors: If there's a segment of economic players that inherently abuses the proletariat, it's those who control the means of distribution rather than the means of production. (Of late, except at aircraft manufacturers — but this problem arose when those in charge of distribution rose to power, and you know that's a problem when even Forbes says that "financial geniuses" shouldn't be in charge!) Shooting at the wrong target rather thoroughly undermines one's credibility, for however much/little credibility one might have with better target selection and acquisition. Then there's that pesky problem of defining the "proletariat," who qualifies as a "worker"…
  • …especially in nonprofit activities.

24 March 2024

An Absence of Humility

Retired Justice Breyer questioned the value of pure "textualism" in interpreting the Constitution. His criticism is, on the one hand, well considered in the sense that legalistic textualism is only one tool in that should be found in an interpreter's toolkit; just as not all of the fasteners of society or government are nails, not all tools should (or can) be hammers. Nonetheless, Justice Breyer is far too generous to the core competence of the writers involved. Even that neglects the unitary/collective writing problem involved in even small-group efforts like appellate decisions, in which not fewer than two and not more than nine individual understandings must be distilled into a single set of words and punctuation.

Consider the textualist distinction between "free persons" and "all other persons" that has since been struck out of the Constitution (after just a few hundred thousand deaths, more maimings and dismemberments, and economic devastation rivaling early-seventeenth-century Germany). It's all too easy to neglect the two obvious intermediate instances… and the less-obvious ones. The text itself identifies one of those two intermediate instances — "excluding Indians not taxed" — and implicates the obvious corollary of Indians who are taxed. (The eighty-years-later "correction" also fails here.) There remain more than a few problems that this text — either the Founding Era or the Fourteenth Amendment — does not resolve precisely because it's so poorly written.

  • The mixed-ancestry Indian and non-Indian person who is taxed for some purposes, but not for others — he or she lives on tribal land, but also owns real property in downtown Charleston (regardless of which Charleston), even if only by marriage.
  • Proper counting of persons who are in/concerned with more than one state. One could argue that this is a "modern" problem beyond the scope of what the Founders (or Reconstructionists) could be expected to consider — which itself points out problems with purely-textualist interpretation — except that the existence of "seamen" was readily apparent to the Founders, and even in the 1780s there were ferries across the Hudson, Delaware, and Potomac Rivers in routine use.
  • Prisoners held away from their habitual residences.
  • Noncitizen immigrants and temporary-if-long-term residents.
  • The assumption that the number of eligible voters is directly correlated with the number of eligible residents, even leaving aside that the interests of the two groups are sufficiently aligned to be reflected in any vote (just consider the disparate gender effect of the Second War of American Secession!).
  • The meaning of "respective numbers" (and whether "counting the whole numbers of persons in each State" reflects the mathematical concept of "whole numbers, that is integers" or mere rejection of ex post status-based reduction to "three-fifths").
  • Perhaps most to the point, how any of this language would be understood by a citizen whose first language was not well-educated, upper-middle-class, UK-landowner-designated English… which was already fragmented in terms of Capitalization and the proper puncutation of precatory clauses.

I will not gild the lily further… except to note that the phrase "gild the lily" arises from a misquotation of a Shakespearean play (King John) that was itself not common knowledge even to the educated classes of the Founding or Reconstruction eras, and suggest that that illustration demonstrates the last two points above rather clearly.

Even more disturbingly, we cannot even count on the writing competence of those charged with explaining meaning. Just what does "all deliberate speed" mean, even in the limited context of public elementary and secondary education? (And what do those terms mean, in a society that by half a century later treated postsecondary education as not an occasional option but an essential social construct?). Even the Nine Wise Guys have been unable to ever explain what an "establishment of religion" is; the Lemon "balancing test," for example, never confronted the problem of the dishonest legislator/legislature — a problem that should have been readily apparent to Justices sitting in 1971, in the face of the "all deliberate speed" problem less than two decades old at the time. The rise of first drafts and bench memos being drafted by callow, never-experienced-life-outside-of-academia law clerks, with the process/product influence of the language of early drafts on final products well known to literary scholars and entirely neglected by legal scholars, just further complicates the reliance on language imposed via briefs and oral arguments presented by lawyers interested not in the abstract "what the law is" but the rather more concrete "what interpretation benefits my client's stated-and-perceived interests (regardless of whether that's self-defeating)."

The competence-at-writing problem is a higher-order corollary of the Dunning-Kruger effect, which is usually mischaracterized as concerning persons of low skill levels overestimating their own competence. Actually reading the article, though, demonstrates that this was the product of an experiment designed to determine the existence of any discernable, replicable distinction: By no means is the Dunning-Kruger effect limited to "low skill levels." Consider, as an illustration, the problem of cross-sport competencies, even among undoubted world-class athletes. I'd suggest considering the number of malapropisms uttered by legislators and constitution-drafters, but do I really need to? Indeed, consider just "all deliberate speed." Or "establishment of religion," or "peaceably to assemble," or "abridging the freedom of speech, or of the press."

My ultimate point here is that the egos of the political classes (and especially, but not only, those purportedly "learned in the law" who are almost always generalists in law) reinforce the Dunning-Kruger effect of their (in)competence at writing even for themselves — let alone for centuries thereafter. One need not consider the at least equally prominent problems of "binding nonparties to compromise language," "evolution of language no matter what form of 'textualism' or 'originalism' is at issue," and "linguistic divide-by-zero errors originating before 'zero' was a concept imported from another culture." Those are just the writing-related problems; the difficulties in failures of imagination — is a TikTok video, or a disappearing SMS message, a "writing" for purposes of the Fourth Amendment? how does aerospace warfare fit into the Constitutional budget-horizon clauses? is a "well-regulated militia" an arm of the state, a paramilitary force not imagined in the eighteenth century, or something else? — and of externally-imposed changes like "binding international humanitarian law" transmute purely textualist arguments into egotistical sophistry.

Textualism, as the legal profession has altered the term itself, is a tool. I'd really rather that our judges, legislators, and executive branches not become tools themselves (that begins with "t" which graphically resembles "f"…).

15 March 2024

Poisoning iPads in the Park

Spring is here
Spring is here
Life is skittles
And life is beer…

Oh, it's not Spring until next week? Can't tell that from the non-Seattle weather today, although there's no need for air conditioning.

10 March 2024

Semicivilized Platter in the Wurst Way

Sometimes life 🦉 interferes at the sausage factory, and then one needs to throw out a bunch of spoiled stuff. Unfortunately, as it's election season (for eight more months, which is part of the problem), the news is going to look primarily like spoiled sausage ingredients for a while, and since the point of "sausages" is preserving the dodgier bits of dead animals…

  • …perhaps more than anything else the spoilage concerns "monetizing content." The obvious connection is the EU's imposition of rules making techbro darlings slightly less insulated from accountability than organized crime, but only slightly in the context of companies with market valuations making this fine a rounding error in the account books. Just like purported nonprofit shenanigans, though, this is not going to trickle down to authors and other creators of "content." Some people are actively destreaming (and the article neglects the biggest reason to rely on offline storage like DVDs: loss of, and eyebrow-raising moralistic restrictions on, access — that is, misuse of the concept of "licensing" and silently converting "access" to "one-time admission fee," rejecting the very concept of the "personal, long-term library" in a way I find intolerable).
  • Of course, it could be worse. It is, and one need not consider whether female psychopaths somehow get starring roles in purported informative speeches that have devolved to partisan spectacles in my lifetime or misuse of anecdotes isolated from context as sub rosa, post hoc rationalizations of outright bigotry. (One need not wield a knife and cackle in a TikTok video to be a psychopath. I'm not claiming to perform a diagnosis; I'm using the term in its wider, nontechnical sense — like asserting that "Stalin was a psychopath" despite his, umm, delegation skills.) There are disturbing connections to tyranny and to "political bias" (for any value thereof) in "generative AI" systems lurking in there, too.
  • Returning to "not going to trickle down to creators," consider vanity presses hiding their nature. Once upon a time, perhaps even PW would have refused to publicize this crap: It's dressier language, but it still requires authors to (a) have spare financial capital to contribute in addition to the same intellectual-property capital they've always contributed, meaning that Undesireables — especially meaning those without the Right Ethnicity, the Right Private Educations, and the Right Passive/Preaccumulated Wealth — will not be welcome, (b) trust that these highly-experienced commercial-publishing figures can drag their heads out of the rampant financial (and other) mistakes embedded in commercial publishing and its distribution model(s), and (c) going beyond mere "mistakes," that whatever royalty statements do get issued will be timely and honest, under the stewardship of people who know only a culture of people dependant upon untimely and dishonest. (Really: 90 days to account and another 30 or more to pay, together with the "reserve against returns"???)

    Once upon a time, United Artists purported to outmaneuver the moguls (for the benefit of on-screen talent and "filmmakers"… but excluding screenwriters, musicians, cinematographers, animators, and the predecessors of "special-effects" creators in a rather intense bit of foreshadowing). It didn't take all that long for the moguls to take over, though. This time, they're in on the ground floor, converting their post-IP-creation labor into equity interests in that IP. And during the history of UA, it was neither more nor less abusive or dishonest about complying with payments to the "talent" than the rest of the film industry. Unfortunately, it's very difficult to provide citations, because the disputes didn't generate nonconfidential, publicly-accessible records very often — and still don't.

  • But that thread pulled out from the snarl is all ready to snap right back in when the compensation at issue is the dubious mixture of power and survival under tyrannical governments. Loyalty is no panacaea, either; eventually, artistic truth speaks not necessarily directly to, but certainly inconsistently with, power, and perhaps even moreso when the "power" appears as generational conflicts purportedly "resolved" by The Law (and use of the definite article there is intentionally inaccurate). If there's one thing that the literary-theory wars from the 1960s through 1990s should have taught us, it's that Orwell's aphorism that "[t]he opinion that art should have nothing to do with politics is itself a political attitude" applies equally to "nonartistic" texts — and not just to the writer, but the interpreter, who is after all engaging in "writing" him/her/theirself. This is one area in which law devoutly and intentionally distinguishes itself from anything resembling reality — and, worse, proclaims that a virtue.

27 February 2024

Literacy Barriers

It's been ten days now, so I think I'm sufficiently calmed down to not bring shame and disgrace on the legal profession with excessively intemperate comments on a recent decision. Frankly, the combination of the decision and circumstances leading to it does that all by itself. Before I go any farther, though:

disclosure: The following discussion concerns a litigant and law firm, but not specific counsel, with whom I have had prior unpleasant dealings in other contexts. No names have been changed to protect the SOBs; and I'd be really, really pissed off anyway.

The United States Court of Appeals for the Federal Circuit has just rather definitively demonstrated why, and how, one cannot meaningfully delegate regulation of attorney conduct entirely to courts. And this really is about ethics; there were sanctions at issue.

On 16 February, the CAFC issued two precedential determinations in a dispute regarding a telecommunications/information-transmission patent. The substantive decision (PDF) is somewhat interesting, somewhat overtechnical as to both the law and the subject matter, and doesn't on its face concern attorney misconduct or ethics.1 But, simultaneously, the CAFC issued a precedential order regarding

show[ing] cause why Counsel/Appellee should not be sanctioned for attempting to incorporate by reference multiple pages of argument from the brief in one case into another.

Promptu Sys. Corp. v. Comcast Cable Comms., llc, No. 2022–1093 (Order Discharging OSC) (Fed. Cir. 16 Feb 2024), slip op. at 2. As the Court continued thereafter:

We have repeatedly held that incorporating argument by reference “cannot be used to exceed word count.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014); see also Medtronic, Inc. v. Teleflex Life Sciences Ltd., 86 F.4th 902, 906–07 (Fed. Cir. 2023). It is “fundamentally unfair to allow a party to use incorporation to exceed word count.” Microsoft, 755 F.3d at 910. That is exactly what would have occurred here had Appellee been allowed to incorporate by reference almost 2,000 words from a brief in a separate case—exceeding the total word count for its response brief in case 22-1093 by more than 1,300 words.

•  •  •  •

Counsel argued that he and Appellee were unaware of our decision in Microsoft until Appellant’s Reply Brief was filed, Show Cause Br. at 3, and had they been aware, they would not have included the incorporation by reference, id. at 4. Microsoft is not only a precedential decision of this Court, but a precedential decision of this Court that admonished the exact same law firm before us now for the exact same behavior. We accept as true Counsel’s claim that he was not aware of the Microsoft decision until the Reply Brief referenced it. When it becomes apparent that a lawyer has violated a court rule, as an officer of the court, it would be best for that lawyer to bring it to the court’s attention and withdraw the improper argument. Here, Appellee was made aware of our case law, but chose to do nothing.

Id., slip op. at 2–3 (hyperlinks added).

So why does this matter? Here, I'm afraid, the CAFC made a critical rhetorical error: It failed to cite the rule establishing the word-count limitation. Federal appellate briefs are limited to 13,000 words (Fed. R. App. Proc. 32(a)(7)(B)(i) (as amended 01 Dec. 2019). Editorially, this is too little, especially in fact-intensive circumstances like patent disputes; but, just like the speed of light and 1970s-gas-saving-55mph, whether it's a good idea is not at issue — it's the law.2 Indeed, the CAFC cites only to a different rule, regarding "incorporation by reference." Instead, it should have cited both…

…but that would have made the fundamental error and misconduct by experienced counsel at a "white shoe" law firm that had been the subject of one of the precedential opinions rejecting this litigation conduct unavoidably obvious.3 It wasn't just erroneous briefing conduct, but the claimed ignorance.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Mod. R. Prof. Cond. 1.1.4 I submit that "reading the rules of the court to which one is submitting a brief," and further "reading prior opinions admonishing one's own law firm regarding the rules of the court to which one is submitting a brief," falls so far within the core of "legal knowledge, skill, thoroughness[,] and preparation" that it is not subject to question.

But this leads directly to the much-more-serious, second-order/collateral damage implication. Why would an experienced appellate attorney be "unaware" of prohibitions on cross-references?5 Worse yet, why did no one on the team bring the matter to this attorney's attention? Surely some associate was tasked to double-check quirks; that would, after all, be at least 0.3 or 0.4 billable hours! Leaving aside my dark suspicions (see the disclosure at the top), this points directly to why regulation of attorney conduct cannot be delegated completely to courts. Courts do not have the authority, power, ability, or motivation to change law firm culture — especially not when it extends across multiple firms and the entire billing-culture meme. Those 0.3 or 0.4 billable hours would have been challenged by the client; and, due to "billable hours" pressures across all of "big law" (and especially at white-shoe firms like the one involved here) the associate would instead scurry off trying to bill 2600 hours6 in a way that wouldn't be challenged.

But all of that is inference — astoundingly irritated inference from subject-matter knowledge (but not detailed factual investigation) that required a week to tone this screed down to the point that it wouldn't damage your monitor/phone. It also implicates, a bit, the "there but for the grace of [insert deity] go I" problem with specific judges being responsible for regulating the conduct of attorneys they've seen before and will see again — because even when the conduct smacks the judge in the face, there's still that "familiarity" issue.7

This will not be the last time. Guaranteed.

  1. OK, at a different level, maybe it is. But it didn't involve an order to show cause regarding sanctions, "just" errors in claim construction by the trial court that proved outcome-determinative below. <SARCASM> There's no possibility of misconduct at all. By anyone… not excluding the attorneys who prosecuted a patent concerning "speech recognition services to a collection of users over a network that supports cable television and/or video delivery." Id., slip op. at 2, quoting U.S. Pat. No. 7047196.</SARCASM>

    And as a further editorial comment, I wish that all judicial opinions regarding patent validity would state the effective date of the application, which would clarify what law(s) might apply… and, to those who actually know the respective fields, just exactly how dubious the assertions of what the "prior art" and "inventive motivation" might have been. Both go directly to the credibility of the opinions, and in particular to ensuring that those who are potentially regulated can understand the law's requirements. This would require no change in law; it would require only that the courts add even a single parenthetical like "(App. Feb. 16, 2001)".

  2. Which, upon motion, can be increased if a particular matter requires it and counsel can persuasively articulate specific reasons (not just "I'm arrogant, verbose, and will gladly talk the ears off all the corn in Iowa," because that's rather the default in BigLaw). The dockets in these four appeals do not, however, disclose any such motion. Perhaps no such motion was made because courts, both federal and state, express reluctance to grant them; the gander, however, remains unsauced given the verbosity of many judicial opinions (which are not written under the kinds of deadlines imposed on the appellate lawyers). To only slightly mangle a phrase, "Regulated speech-length for thee but not for me."

    The irony that counsel may have been incentivized to find another way to incorporate more verbiage by the 2019 reduction in word count for a principal brief — from 14,000 to 13,000 (and the Federal Circuit here notes that it was a "2,000 word" incorporation by reference that would have exceeded the "old" rule by about 300 words, slip op. at 2) — also bears some other consideration. Maybe, just maybe, that reduction was a bad idea, especially since it (needlessly IMNSHO) encourages both inadequate detail in the "statement of facts" and "statement of the case" and, well, shenanigans like this.

  3. This is not the first time this shark has encountered "palpable ignorance as a rationale to avoid sanctions" protestations from white-shoe law firms. One of the individual miscreants in one of those incidents continues to give continuing legal education presentations on the underlying issue(s) and has been frequently quoted in the not-precisely-proprietary-but-definitely-not-generally-available "legal newspapers" on this subject. It reflects a fundamental problem with legal ethics: The standards are too low, and lawyers tend to live down to them. Even — perhaps especially — purported leaders of the profession.
  4. This rule is substantively identical in the relevant jurisdictions (DC, New York, and Virginia). I've quoted the ABA "model" version because it's substantively identical everywhere else, too.
  5. Or, for that matter, a "sophisticated" client, and in particular this one, which has an in-house legal department with a metric boatload of lawyers and has had thousands of federal appellate briefs submitted on its behalf — hell, it has had at least twenty appellate briefs submitted on its behalf to this court since the Microsoft decision in 2014, several relating not to this patent but to the subject matter of this patent (voice recognition systems and implementation). Inferring client knowledge and approval is not unwarranted, albeit at this stage neither supported nor refuted by evidence… which would probably be undiscoverable as privileged anyway.
  6. For those doing the math at home, that's not 2600 hours worked during the year, but billed — that is, billing out 50 hours a week directly to clients. Time spent in firm meetings, and doing recruiting and interviewing of prospective hires, and getting continuing education, and doing general-awareness reading, and researching a matter only to discover a conflict preventing any representation buried in the research, and doing pro bono work… don't count. The reason that big-firm lawyers shrivel up to ash if struck by sunlight is that the time spent exposed to sunlight isn't billable. Plus, ya know, the whole vampire thing.
  7. One might well question exactly how 28 U.S.C. § 455(b)(1) does, or should, apply when what's under consideration is not "a party" but "a party's lawyer's in-court conduct." Here, I think there's an infinitely-reflexive self-awareness problem warned against extensively in my first profession and entirely ignored in my second. "Trust, but verify" requires that "verification" both occur… and be independent and credible. Not to mention that "trust" be credible in the first instance (we are dealing with lawyers here…).

23 February 2024


I almost don't know which judicial outrage to excoriate today. I think I'll choose the more inflammatory one; there's a conflagration in the foothills of the first mountain:

One night as you sleep in your goose-feather bed
We will be kneeling at your bedside
We'll pray for your soul like the good Lord said
Let all be forgiven, let none be denied

Then one night as you sleep in your goose-feather bed
We will be standing at your bedside
Your bones will be broken and your blood will be shed
Your eyes will be taken and your hands will be tied

Then we'll take you to the forest
Where none will hear your cry
And we'll cut down the sycamore and broom
And it's there we will forgive you
And it's there we'll watch you die
Like a dancing silhouette against the moon

And you will burn, you will burn
We will purify your soul in the fire, in the fire
And your spirit will live forever
It will rise, it will rise
From the ashes and the embers in your eyes, in your eyes
And your spirit will live forever

Praise the Lord
Another soul is saved
Praise the Lord
Praise the Lord

Steeleye Span, "You Will Burn" (1996) (ironically, the songwriter has remarked that he envisioned the song's victim as probably a midwife…).

I might be tempted to file a judicial and/or legal ethics charge against the dominionist cretin who would impose his religious and archly theocratic vision on everyone (PDF, jump to page 26). Leaving aside that I have nothing to do with Alabama (I haven't in nearly 20 years), and thus have no standing, consider who would ultimately rule upon and be responsible for enforcing any opinion regarding the judicial and/or legal ethics errors present here: These very justices. How fast can you say "institutionalized conflict of interest"? And how fast after that can you say "losing battle"?

Even the dissent deserves precious little credit. It desperately tries to argue with the legalisms that came from the dominionist premise of both the majority opinion and Chief Justice Parker's concurrence without engaging with those premises at all… or the fundamental problem that the science of IVF is very much against those premises. <SARCASM> But that would be importing knowledge and methods of reasoning beyond judicial competence, so that would be inappropriate. </SARCASM>

Perhaps the Alabama Supreme Court needs to consider a document of undoubted supremacy to its own amended state constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

U.S. Const. Art. VI ¶ 3 (emphasis added). If you can't be required to be a dominionist as a qualification for office, that rather denies dominionism as a legitimate and overriding policy preference, doesn't it?

Y'all have failed the allowable test, sirrahs, and made yourselves look worse than the Mississippi judiciary (and that takes some real effort).