06 December 2003

More Foolishness
Continuing the discussion of Jorgensen

   One of the main problems with the decision is apparent from this passage:

In his sworn declaration, [one defendant record company executive] stated that his job as a managing producer in BMG’s Special Products division “has nothing to do with the publishing company, Careers BMG Music Publishing, Inc., or working creatively with songwriters at all.” Although he conceded that he had received a CD recording of “Lover,” [the executive] denied that he had ever listened to the song and asserted that he never conveyed the CD “to anyone at any time,” much less anyone who “contributed creative ideas or material” to “Amazed” or “Heart.”

Slip op. at 11. The court goes on to hold that "Jorgensen has not adduced proof of a reasonable possibility that 'the paths of [the “Amazed” songwriters] and the infringed work crossed.'" Id. at 12. This is a subtle misstatement of the standard for summary judgment that seriously undermines the court's opinion. Jorgensen had no burden of proof on the defendants' motion for summary judgment; his burden was only to demonstrate that there was evidence that controverted the defendants' bare assertions.

   This where the pro se context of the case should have been given greater weight. The Second Circuit simultaneously recognized that it must give a pro se party greater benefit of the doubt in interpretation, but noted that the form of Mr. Jorgensen's submissions indicated that he understood what a summary judgment motion was. That may well be true. Based on the record stated in this decision and the trial court's decision below, Mr. Jorgensen demonstrated pretty clearly that he did not have sufficient legal sophistication to perform an adequate factual investigation.

   There are too many holes in the stories as stated in both decisions, particularly in light of the necessary judicial notice of the "let's do lunch" culture pervading the entertainment industry that the court should have taken (but did not). None of this is to say that Mr. Jorgensen is right; it is only to say that there is enough stated in the record, when placed in context, that indicates that competent counsel could or should have adduced enough evidence to create a triable issue of fact, making summary judgment inappropriate. Being a lawyer is a lot more than just writing briefs and pronouncing formulae in opposition to motions. Most of the work is done off the briefs, most particularly in investigation and discovery. The Second Circuit appears to have ignored this aspect of being pro se: the absence of a (competent) attorney's understanding of how to adduce the necessary evidence short of a direct question.

   What I find more disturbing is the court's refusal to squarely admit to a circuit split in authority on the access issue. Naturally, most of the citations are to other opinions from the Second Circuit; other decisions originate in the First, Third, Fourth, Fifth, Sixth, Eighth, Eleventh, and DC Circuits. But nothing from the Ninth Circuit—which has actually decided more "access" matters under the 1976 Copyright Act than has the Second Circuit. I find this more than faintly disturbing. So, is there a difference? Is this yet another pathetic cliffhanger?