01 June 2009

No Caffeine

These aren't diet, but they are uncaffeinated.

  • Appellants' briefs will be filed today in Post-Tasini (aka Muchnick). Amicus briefs supporting reversal are due in a week; the opposing brief is due on 07 August. Why should y'all care? This case will try to answer this question definitively:

    Does 17 U.S.C. § 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

    Section 411(a) reads, in relevant part:

    [N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

    Historically — largely in reliance upon judicial (not legislative) interpretations of the 1870 and 1909 Copyright Acts — courts have tended to say that this is a jurisdictional requirement. IMNSHO, it's nowhere near "jurisdictional"... particularly since the 1976 Act knows how to say "jurisdiction" (such as in 28 U.S.C. § 1338(a), which was created in the same bill), and the language used looks like "administrative exhaustion" language from many other statutes, such as those dealing with employment discrimination claims. As I've remarked repeatedly before, it matters how one loses.

    Further, there's a troubling practical aspect to treating § 411 as a jurisdictional bar: It would place jurisdiction in the hands of a third party against whom the author has no practical remedy. A substantial majority of commercial publishing contracts for book-length works explicitly place the duty to register a work on the publisher. If the publisher fails in that duty, and § 411 is jurisdictional, the author has no copyright remedy against an infringer. If the publisher fails in that duty, and § 411 is a matter of administrative exhaustion, the author need only demonstrate that he or she has taken all the steps she is obligated to take under the contract to enable registration. (Of course, the actual doctrine of administrative exhaustion gets a lot more complicated than that, but that's my point.)

    Then there's the whole "substantial justice" issue, since § 411 doesn't apply to "non-US" works, thanks to treaty obligations. And it gets even more complex then... but the better answer remains "administrative exhaustion," not "jurisdictional." Of course, the best answer is to eliminate the registration requirement in the first place, which is unique to US law.

    Meanwhile, almost under the radar, Google put forth plans at Book Expo America to compete with Amazon by selling e-books, bringing the Google Book Search settlement much, much closer to the substance of Muchnick (in which the database aggregators and publishers sell access to articles) than anyone is really acknowledging.

  • You say potato chip, Proctor & Gamble says savory snack, and the answer is worth £100 million in tax liability.
  • The American automobile industry is changing hands, with a bankruptcy judge's approval of the Chrysler-Fiat transaction (at least as I read the record, he had little other choice) and GM's bankruptcy filing. These financial nightmares pose a few policy-level questions...

    • Since so much of the debt load of these (and many other) manufacturers consists of contributions to union health-care funds, wouldn't we perhaps be better off going to a single-payer system where medical care is a matter of right, not commercial bargaining? Every commercial bargain has transaction costs... and anyone who even glances at our medical system can infer rather rapidly that those transaction costs are eating the system alive.
    • Do you think that maybe — just maybe — the (primarily) Japanese manufacturers of high-quality, smaller vehicles of the 1980s and 1990s knew something that Detroit didn't? And, if so, what does that tell us about the ability of publicly owned oligopolists that are "too big to fail" to effectively evaluate risks, let alone take them? And, more particularly, what does that tell us about the probable fate of the entertainment and publishing industry?
    • Can anybody involved in this fiasco spell "comparative advantage," despite proclaiming the ascendancy of "capitalism" as a result of the fall of the major communist powers?
  • Fortunately, the Supreme Court did something right this morning: It has agreed to determine if "business methods" are appropriate for patents. OK, the "question presented" isn't either that clear or that broad, but the Court will necessarily have to consider it... and it however it resolves the particular case in front of it, it will clarify a great deal of the borderland among copyright, patent, and trade secret law. Or, at least, clarify it enough for lawyers to fight over it!
  • My friend the IPKat notes an interesting perspective on the Pirate Bay criminal litigation: Should a Swedish court look to a quarter-century-old US opinion on a seemingly disjoint question of copyright law to inform its decision? Ah, the shoe is on the other foot now, isn't it, Justice Scalia (and others who think that US courts should never look to foreign law to inform their reasoning)? That said, I'm afraid that the argument doesn't persuade very much once one looks at the lower court proceedings in Sony; the "facts" of the matter were not well/clearly stated by the Supreme Court, and they are quite distinct from the admitted infringing intent in Pirate Bay. But one doesn't even reach that question without considering the foreign law, does one?
  • Will micropayment systems chop off the long-tail "model" for internet "success"? It's an interesting, and difficult question. Substantively, I suspect that a workable micropayment system will at least in practice make the long-tail argument nonviable... so long as price levels are set so that reading a whole issue of the WSJ under the micropayment system does not cost appreciably more than does the fully diluted subscription cost to the whole issue. (Given the identity of the publisher, though, don't f*cking count on that!) I'll just say one more word, though, and it should scare the hell out of those who blithely propose micropayment systems as a panacaea: Ticketmaster.
  • From the world of art, there's been a pro-museum, anti-Holocaust-descendant decision over a 1913 Kokoschka painting that has fascinating implications for the digital age... but nobody is asking much about them. Contrast that with the breathless pontificating, whingeing, and assorted blather about electronic text present at the weekend's Book Expo America. Somebody, somewhere, is going to figure out that "form" and "content" are not determinative of each other, but not unrelated either. Better yet, the various advocates could just follow St. George's imprecation to always tell the truth in one's writing.