These Link Sausages Aren't Winning

There just hasn't been a lot from which to make link sausages of late. The publishing industry is holding its collective breath over Borders; H'wood and recorded music are in their respective annual post-awards-orgy malaises; even Charlie Sheen is just repeating himself.

• There's one fascinating grant of certiorari this morning by the Supreme Court (to IP nerds and to civil procedure geeks, anyway): Golan v. Holder. This case concerns one of the consequences of the US dropping its protectionist stance as a historical copyright pirate and joining the Berne Convention: The "restoration" of copyright in certain foreign works under the Uruguay Round, which had fallen into the public domain solely due to failure to comply with US-unique formalities. The plaintiff is a musical director and conductor who wants to continue to select, among others, works by Stravinsky and Bartok... without payment of performance fees to the respective copyright holders.

  The two questions on which the Supreme Court granted certiorari were:

  (1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain?

  (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

  The Tenth Circuit Court of Appeals — which is not exactly a hotbed of copyright litigation, and issued an opinion (PDF) that is a paradigm for why copyright matters need to be centralized in the Federal Circuit, just like patent matters already are — held against the plaintiffs (and for the restored copyrights/copyright holders). However, this raises a fascinating civil procedure question that appears to have been avoided by everyone at every opportunity:

  (3) not granted, not before the Supreme Court What is the statute of limitations for filing an action asserting that legislation that implements an international treaty requirement violates a superior constitutional right?

  The legislation in question was passed, and signed into law, in 1994; the plaintiffs filed suit in 2001. The ordinary statute of limitations for copyright actions is three years, but one of the quirks of the 1994 legislation allowed later restorations (see 17 U.S.C. § 104A(h)(2), setting the effective date as either 01 Jan 1996 or a later notice date). The record is quite unclear on exactly when the particular pieces in question were restored, so... I sense an exam question in there!

  In any event, this matter will be heard in the term beginning on 03 October 2011, with a decision by the end of June 2012; Justice Kagan recused herself, leading to the possibility of a 4–4 split (which would affirm the Tenth Circuit's decision without establishing national precedent... a meaningless distinction in this particular matter, and yet further justification for consolidating copyright matters in the Federal Circuit). My initial prediction is that the Supreme Court is going to uphold the restoration using reasoning quite different from that of the Tenth Circuit, and possibly considerably narrower than that. Economically, it comes down to one very strange philosophical question: Does "Progress" mean the right to access, and thereby benefit from; or does it mean the right to access without paying compensation, and thereby benefit from, due solely to a failure of technicalities that would not apply to any other form of property?

• No real further news in the Borders bankruptcy; at the moment, it's still all preliminary maneuvering and routine orders and filing. There should be a little bit more movement next week, and a lot more the week following. I'm seeing the beginning of hints that another round of store closings is inevitable, with only the size of the round to be determined; however, since I'm looking for that, too, I may be overreading some of these preliminary filings.

  And meanwhile, the Delaware Supreme Court took about 24 hours to affirm Chancery's rejection of the Ron-Burkle-led proxy fight for control of Barnes & Noble, basically saying "what he said" (PDF). Same time next year...

• The Department of Source Irony provides us with GQ commenting on the foolishness that is the H'wood decision process — and doing so intelligently, if one step too far removed. It is, of course, a very complex situation; but the enabling problem with H'wood today, as opposed to purported golden ages in the past (pick your favorite, and I'll point out all the dreck it was spewing forth even then), is that decisionmakers are no longer filmmakers. It's very much the same problem as in publishing and in recorded music: The MBAs have convinced everyone that the products are just widgets, and all those things that they learn in MBA school on how to make identical things stand out in the marketplace are the only rational way to structure things. And, of course, that means that all of the high-paid decisionmakers have to be MBAs, who will then proceed to force anyone who doesn't do MBA-speak out of management. (I suffered through the same thing in the post-Vietnam military.) In short, the wrong people are making the decisions on what to make... just like Detroit automakers in the 1980s and 1990s.