01 August 2006

Unfondly Fahrenheit

Since today's high is expected to be feverish (literally, as in "over 37C") with humidity exceeding 200% (or at least feeling like it), I'll try to avoid overheated prose in today's roundup of miscellany.

  • Professor Patry had made some interesting—and disturbing—remarks on laches, starting last Wednesday and continuing at 0-dark-thirty this morning. His cogent criticism of (this time) the Ninth Circuit's departures from what seemed otherwise relatively uncomplicated is yet another reason to consolidate appellate jurisdiction over Article I, § 8, cl. 8:

    The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; (capitalization modernized)

    in the Federal Circuit. The Federal Circuit may not always get things right, especially when for "procedural reasons" it defers to the geographical circuits (PDF) (in this particular instance, what would be a good idea somehow became mandatory despite the language of the relevant rules making it optional), but at least the problem decisions would be consistent… and therefore more amenable to legislative and administrative correction.

    I would quibble with one part of Professor Patry's definition of laches, though. He remarks that

    Laches is an equitable doctrine invoked when, through an unreasonable delay, plaintiff fails to act in a timely fashion in asserting its rights. But while laches properly focuses on plaintiff's blame in sitting on its rights, ultimately it is the harm to defendant from plaintiff's inaction that forms the basis for the defense. As an affirmative defense, defendant bears the burden of proof in establishing both unreasonable delay and harm therefrom: mere delay or passage of time is insufficient.

    This omits a critical element necessary to establishing laches: That the defendant reasonably relied upon the delay to its detriment. Just harm isn't enough; laches fails as a defense if the defendant merely gambles that the plaintiff won't get around to asserting its claim, particularly when the underlying cause of action is based upon continuing conduct. Which segues nicely into…

  • The question of plagiarism in the bloggosphere. This isn't exactly a new issue, or problem; <SARCASM> but when USA Today gets around to acknowledging that at least a controversy exists, it must really be news! </SARCASM> This really points at two further issues: First, the film-industry-driven refusal by Congress to include moral rights (droit d'auteur) in the Copyright Act upon accession to the Berne Convention, thereby forcing arguments about "plagiarism" into the Lanham Act box (which is not favorable to authors); and second, the irony that a paper with an unfortunate history regarding credits for photography (among other things) printed this article in the first place. (n.b. I'm just picking on USA Today because it's convenient to do so; photography credits are mishandled by the vast majority of periodicals in this country, especially when failing to distinguish between the rights agency offering the photograph and the photographer's identity.)

    The overblown rhetoric in the article, though, does not help its credibility. Opening with "The Internet is becoming a cesspool of plagiarism" leaves the mistaken impression that at some time in the past it wasn't… which either beggars belief or implies that the article's author hasn't ever seen any part of the Internet other than commercially sponsored blogs. Ah, for the days of the "honesty" inherent in Usenet! (I don't think I needed another <SARCASM> </SARCASM> tag there, did I?)

  • If you're a resident of Kansas you need to vote today. Obviously, I'd prefer that the Luddites who can't understand the difference between "church" and "state" be thrown out, but it's actually more important in the long run to have a high voter turnout. The higher the proportion of voters who actually participate, the less chance there is for a fringe position or candidate to win solely by mobilizing the fringe.
  • Speaking of elections, the final season of The West Wing will be released on DVD on Election Day 2006. The West Wing certainly had its low points, but on the whole it marks a rare high point in the Hollywood struggle between good writing and lower production costs. The series—which is better considered a "serial novel" than a "serial," but that's another issue for another time—holds up quite a bit better on DVD than in a once-a-week hourly format anyway.