23 June 2010


This is a platter of monster-sized legal sausages.
  • Libel reform continues to move slowly forward in the UK, with a "second reading" in the House of Lords (roughly equivalent, in the US, to a formal sending of an introduced bill to committee in the Senate) set for 09 July. This is a good thing, but nowhere near good enough. Many of the most intractable problems with libel in the UK arise from procedure, not substance, and the bill (PDF, A4 pages) makes a good start on them by:

    • Formally adopting the single-publication rule (the statute of limitations begins to run from the date of first publication, and is not extended by longterm availability in the marketplace) (§ 10);
    • a variety of weak defenses on "fair comment" and "opinion" that will ultimately benefit only the lawyers, as they're too technical and will eviscerate any promises of confidentiality made to a source (§§ 1–5);
    • the beginnings of a privilege for reporting on government and court proceedings (§§ 6–8, 16); and
    • some sensible restrictions on jury trials to bring libel in line with other, coordinate causes of action under the UK's system (§§ 14–15).1

    The most significant changes actually contained in the bill, though, appear in §§ 11 through 13. Section 11 requires corporations that would sue for libel to demonstrate that the statement itself caused/is likely to cause "substantial financial loss" to the corporation. That is, it's not going to be enough to (hypothetically) claim that criticism that MacAdder's Fish Fingers actually contain Mrs Miggins' leftover muffins will "forseeably harm the standing of the MacAdder's brand in the marketplace"; instead, the corporation would have to show financial loss. Section 12 parallels § 11, but for individuals; and because of that, it requires merely "substantial harm" instead of "substantial financial loss." The key provision, though, is § 13, which will limit (but by no means end) "libel tourism" by requiring that claimants demonstrate harm "in the jurisdiction" (the UK) under the standards of §§ 11 and 12 for foreign publications.

    Unfortunately, the bill — as Lord Lester admits is probably necessary for passage — does not make the single obvious reform that would make it make sense: It does not place the burden of proving that the statement in question was false on the claimant; instead, it maintains the illogical and insupportable "defendant must prove truth" system that distinguishes the UK from the US. This reflects class concerns as much as anything else. It is perhaps too much to expect that the UK's legal system would join the rest of the civilized world in recognizing that the balance between freedom of speech and personal reputation needs to be tilted in favor of speech and not of reputation.

    This matters to US-based authors for three reasons. First, many "US" publishers are actually subsidiaries of UK-based media conglomerates, and continue to think about libel as if they're in the UK... which unduly restricts expression. Second, most warranty-and-indemnity clauses arguably make a US-based author the patsy for any libel claim in the UK; this can be a serious matter, as Rachel Ehrenfeld can attest. Third, and perhaps most important, US-based authors need to stop thinking about national borders as barriers; they are instead opportunities... except when local conditions across a border are unfair. In this context, a US-based author writing even a fictional account of, say, the current conflicts in Southwest Asia — perhaps another Clancyesque politco-hardware-store thriller — cannot stray too close to "real" persons in England, for fear of a crippling lawsuit. The additional protections provided in §§ 11–13 will help, if Lord Lester's bill becomes law.

  • The other monster sausage is an appellate decision on copyright... from one of the not-usual suspects. The Tenth Circuit decided, in yet another round of the Golan litigation, that the restoration of foreign copyrights that had failed for formalities under the Uruguay Round does not violate the First Amendment. Golan v. Holder, No. 09–1234 (21 Jun 2010) (PDF). This is going to result in lots of whingeing and tearing of shirts from a crowd of freeriders... who need to grow up and realize that it is intellectually the only defensible position.

    US copyright law used to have "marking" requirements — one could lose the copyright in a work if it were published/performed without the proper copyright notice. Those with any experience at all in publishing or performance will recognize that this requires creators to trust parties who, themselves, have little incentive to do so... and all too often did not. This was a particular burden for foreign creators, as the US was almost unique in that marking requirement. Similarly, the creator could do everything proper in the country of origin and then a third- or fourth-hand licensee in the US could, through simple carelessness, lose the US copyright through improper marking or screwing up on registration and/or renewal.

    In the course of acceding to the Berne Convention in 1988, the US was supposed to fix this; it didn't. Instead, it took a few more years, until the Uruguary Round agreement implemented in 1995 (and some elements of the Mickey MouseSonny Bono Copyright Term Extension Act of 1998) acted to provide restoration of copyrights on notice and with a limited safe harbor for non-US works that had fallen into these traps. Certain parties, such as Golan, who had "relied" on the public-domain status of these works filed suit claiming (among other things) that restoring these copyrights violating their (the "reliance parties") First Amendment rights to free speech.

    The Tenth Circuit said that it doesn't. (Of course, I expect a petition for rehearing en banc almost immediately, followed by a petition to the Supreme Court.) In a carefully noninflammatory opinion, Chief Judge Briscoe disposed of each element of the constitutional argument raised by the reliance parties. The particular legislation dealt with a matter within Congress's discretion; it did so in a reasonably well-tailored manner; and that is all that is required, particularly since the reliance parties' claims that alternative methods might have been better tailored misstates the standard required: Congress's work is not required to be perfect, but merely good enough (slip op. at 29–31)... and, in any event, the "evidence" offered by the reliance parties did not persuade that their preferred alternative was, in fact, better.

    In this particular instance, the reliance parties are being intellectually dishonest at best. They have failed to recognize that their perceptions of their own rights do not control here against the rights of others (in this instance, both US creators being harmed by foreign mistreatment of US copyright interests in retaliation against US hyperformality — and believe me, it's rampant — and the foreign creators directly at issue). Instead, they rely upon a version of "settled expectations," similar to the arguments made by slaveholders that their property could not be taken from them by a change in the law regarding ownership of human beings. Chief Judge Briscoe never reached this point; as I mentioned, his opinion is carefully noninflammatory.

    But there's something more insidious involved in this dispute, too: It is disingenuous, intellectually dishonest, and downright deceptive to implicitly claim on the one hand that the reliance parties are entitled to continued commercial exploitation — that is, getting paid for their reuse-speech, directly or indirectly — while denying commercial exploitation to the originators of that which they would copy. "Free speech" does not always mean there is no financial cost for speech: It means that the government does not restrict it per se. The reliance parties' argument, however, assumes that "free speech" under the First Amendment instead requires that the government take positive steps to reduce the costs to them explicitly, in preference to other parties, instead of looking at total costs... if, that is, the government is obligated to look at private-party transactions concerning speech at all. Nothing in the underlying legislation prevents the reliance parties from negotiating license agreements with parties whose own speech is now being recognized as valid and protectable. In short, "information wants to be free" has little or nothing to do with "free speech," regardless of how one defines "free"; and in this instance, the disingenuous attempt to equate "free" under the First Amendment (that is, unrestricted) with "free" financial terms rightly failed.2

  1. Whether a trial by jury should, in the abstract, be routine in civil cases is an increasingly difficult question. On one hand, juries of "civilians" often flounder with technical and/or specialized and/or voluminous records, and are prone to being influenced by lawyer tricks more than are judges. Conversely, a hearing before a single judge is prone to unstated influence through counsel's reputation with that particular judge, and to inherent judicial conservatism and hostility to novel theories and claims. Perhaps we'll learn more from Japan's experience with mixed judge-and-lay courts, but it's too early to say whether those will combine the advantages or the disadvantages.

    That said, there's something to be said for consistency, as it seems rather unfair to allow lawyer tricks in characterizing the cause of action to determine whether a jury is available.

  2. This particular error is, in many ways, an artifact of sloppy English vocabulary.

    Informationen möchten frei sein

    Informationen möchten nichts kosten

    This should, perhaps, be obvious, because the First Amendment allows for "freedom of speech"; eliding that to "free speech" is itself a bit sloppy and misleading.