27 July 2006

Strange Copyright and Writing News

There's a bumper (bumpy?) crop of strange copyright and writing news over the last few days; perhaps the sudden storms here in the midwest have reached the Rotten Apple and caused more weeds to bloom. In no particular order—

  • Only a couple of years late, the NYT takes notice of Grosso v. Miramax, which was aptly and accurately summarized at Madisonian when it first came out… and is grievously overstated and misunderstood in the NYT article. There's a link to the opinion itself in Professor Madison's reaction. As Professor Madison implies, this is more a case about civil procedure than it is about copyright; the value of these claims depends—as it has since Desny v. Wilder ratified the theory of "idea theft" in film—on the particular facts in a way that a copyright claim does not. Frankly, the whole "controversy" raised by Mr Marder's approach falls apart in view of the last paragraph in the NYT piece:

    But Mr. Marder believes otherwise, saying the number of claims speaks for itself. "There's a problem with the system when every time the studios release a movie, they get a bunch of claims," he said. "There can't be that many crazy people in the country."

    Either Mr Marder is playing with the NYT reporter or he's far more clueless than any lawyer I know. There are far more crazy people in the country than those who would file claims based on movies? and I'm even limiting that to assertions of "idea theft." (N.B. I've been a technical consultant on a couple of these cases, and both times they turned not on legal doctrine, but on chains of evidence and the holes therein on both sides.)

    Of course, some of the "victims" of this Hollywood tradition appear to have a better sense of humor than do others.

  • Gee. What a surprise. Reed-Elsevier showed a substantial increase in its profit last year. What I find vaguely disturbing is that this Reuters piece neglects so much of what is behind Reed-Elsevier's business model: abusive pricing and abusive misuse of the work-for-hire doctrine. The article notes that gross profits are up without also noting that profit margins are up, too? and, depending upon the honesty of public statements relating to some of the companies, Reed-Elsevier is one of (if not the) highest-margin companies among the print-publishing-centered conglomerates. The publishing industry constantly whinges about its low profitability, constantly asserted as under 10% of revenues; Reed-Elsevier is probably disappointed that it didn't quite break 17% of revenues on relatively lower capital investment. After all, there aren't a lot of returns of Cell ($1,181/yr), the Journal of Economic Theory ($99/yr, but $2,629/yr for libraries), Lancet ($209/yr), Physics Review Letters A ($5,426/yr, institutional subscriptions only), and Publishers['] Weekly ($240/yr)!
  • It appears that KaZaa is going to follow Napster: Loses big copyright case, then tries to turn into a pay-to-download competitor of the Cupertino Bruiser's download service. Although I'm sure that the proprietors of Camp Chaos will have something to say, can Grokster be far behind? More disturbingly, where did Sharman Networks come up with $100 million to pay the record companies (in Australia, not forgetting that this doesn't bind individual artists suing the company in other jurisdictions)? Enquiring minds—and tax authorities—want to know!
  • Professor Patry posted a useful introduction to the distinction between laches and the statute of limitations. As the Internet continues to "move faster," we can expect to see more infringers asserting a laches defense for copyright holders who "wait" a year or more to file suit.
  • Professor Rebecca Tushnet (I have to include her forename to avoid confusion with her father, the constitutional scholar) comments on another area that authors need to pay more attention to—especially when they're writing "opinion pieces":

    The addition of "I think," however, did not take Lindsey's falsifiable claims out of the realm of factual representations; it never does. PDCA largely escaped liability because of a failure of proof, not because its statements about CWP were unprovable. By contrast, the court treated the statements about the painting business in the NIP article mostly as statements of opinion, perhaps because they were more general and market-based rather than addressing the capabilities of specific painting companies.

    "Fresh as Paint or False as Paint?" (24 Jul 06). To put it another way, attempting to pass off a factual statement as opinion by using qualifying language doesn't work unless the entire context makes it clear that the statement was an opinion. That's not as pithy as Professor Tushnet's statement; on the other hand, some dweeb out there will construe her statement as somehow approving (or at least not rejecting) "in my opinion" as sufficient.