- More news on the UK libel front:
The new Conservative-Liberal Democrat coalition government has jumped on the bandwagon, promising a new bill by early 2011. Procedurally, this would take precedence over Lord Lester's bill in the House of Lords, which has just survived its second reading (equivalent, roughly, to getting scheduled for hearings in committee in the Senate). On one hand, it's good to have the government join in, because a sponsored bill would have considerably greater chance of passing, and would pass more quickly. On the other hand, nobody knows what the government would actually put into the bill... and as the Tory backbenchers (and their shadowy financial benefactors) have historically, and even recently, been the biggest personal beneficiaries of the crazy libel system in the UK, I remain uncertain how much reform will actually be in the government's bill.
This will matter a great deal to authors. It will concern not just those who publish in the UK, but those who publish in the US (like Rachel Ehrenfeld. Bluntly, if your work can be accessed from the UK on the web, via overseas purchase, even (arguably) via piracy! your work potentially implicates the insane UK libel system. And it implicates you.
- OK, girls, stay out of the hottub if a Hollywood director offers you champagne and quaaludes: Swiss refuse to extradite Polanski. There is no good here. The continued extradition attempts and refusal to dismiss — at the request of the victim, no less — reflect a rather disgusting institutional failure of the LA District Attorney, and (IMNSHO) violate ethical guidelines that apply to prosecutors. Conversely, what Polansky did was wrong, and I make no excuses. I'd proclaim "a pox on them both," but I know what that's actually referring to, and it's inappropriate given the context of a sexual assault on a thirteen-year-old girl.
- Analogy of the day: Mel Gibson is to Hollywood today as Ezra Pound was to publishing in the middle of the last century. Discuss.
- General Kagan's responses to goofy written "follow-up" questions demonstrate to my satisfaction that she's no Harold Carswell.
- More dragon diary entries. Mmmm. Tasty.
- Judge Gertner has drastically reduced the Tenenbaum piracy verdict, from $675,000 to a tenth of that. Plus costs, which were probably around $15,000, give or take. Plus the inevitable motion for attorney's fees, but that will fail under the Fogerty analysis as interpreted in the First Circuit (which puts inordinate weight on the deterrent-effect factor). Now, before y'all on either side of the situation get your panties in a twist, consider this meme that is underlying the reasoning of Judge Gertner's decision:
No noncommercial copyright infringer should be effectively bankrupted by engaging in socially accepted piracy.
which I don't buy. This is, in a sense, a "too big to fail" argument flipped on its head. If there had been a mere error of judgment as to right involved, that might be relevant in this instance; instead, though, Judge Gertner substituted her own judgment of what is an appropriate measure of statutory damages for Congress's. That I think she still reached a close-to-right result on a tabula rasa, I think $30k all in would have been about right just demonstrates that the statutory scheme adopted in 1976 and modified (upward, always upward) a couple of times since then needs a substantial, zero-based reconsideration. Her opinion isn't a "bad" opinion, in the sense of being lawless, or anything like that; it is just an opinion that wilfully ignores a premise, and that's a bad thing for the next case that comes along that has to consider similar — but not identical — circumstances.
Professor Goldman makes some further sensible comments on the underlying assumptions, and points out that this is as much a matter for civil procedure geeks as it is for intellectual property nerds. As it happens, I'm sort of both (only sort of, because I don't have "Professor" in front of my name... which seems to be a preliminary qualification). And on those grounds, I think Judge Gertner's opinion is a perfect example of reaching a defensible result, in this particular instance, with dubious reasoning that will itself be misapplied in every other attempt to do so. The short version is that she looked far too hard at Fed. R. Civ. P. 1:
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.
and forgot that "the way to justice" is through application of the rule of law... because justice is imperfect, particularly when both parties objectively and subjectively believe that they're in the right. I make the following three predictions:
- The ruling will be overturned in substantial part on appeal, either by the First Circuit or the Supreme Court;
- Congress will abrogate its responsibility to pay attention to the flaws in the system that the ruling does, correctly, point out; and
- During the appellate life of this matter, Judge Gertner's ruling will be miscited and misconstrued in at least 5,000 distinct instances, at least 100 of which will be in court filings and/or decisions, and at least 100 of which will not concern copyright in any event.
which, I think, fits well with Professor Goldman's well-considered conclusion:
Given its questionable doctrinal analysis, I think this opinion is best viewed as a judicial nullification (the analogue to jury nullification, but done by a judge). The judge essentially concludes that copyright law goes too far, and the judge decides not to countenance that. Nullification isn’t normally within a judge’s toolkit, but I can understand the judge’s sentiment. The bad brew of an aggressive copyright lobby and pliable politicians have created a copyright legal scheme that often conflicts with mainstream norms about fairness. It’s not surprising to see some smart folks balk at this scheme, no matter how clear the statute is.
12 July 2010
Post-World-Cup Link Sausage Platter
at 12:30 [UTC8]
Post-Cup sausages after a disappointing match. I strongly suspect that both teams would have played a cleaner game (mostly the Netherlands, but Spain was far from uncynical) had Mr Webb been able to count on two more pairs of eyes on the respective goallines.