04 May 2011

There's A Lot Wrong on the Internet

... and I'm compelled to try to correct it. That would place my sanity in question — if, that is, there were any question about the absence thereof!

  • Cultural arrogance plus lingering communism (not Marxism) among the governing elite equals... price uniformity imposed on e-book sales in (and to) France by the French government. In a unanimous vote. This, if nothing else, justifies kicking France not just out of one of the five veto-power seats on the UN Security Council, but entirely off the Security Council.
  • Juan Cole valiantly attempts to debunk the (fear, uncertainty, and doubt)-1 surrounding that little incident in Abbottabad. He'll fail, because the arrogant certainty of the positions he's trying to debunk makes for better news and soundbites... but it's a worthy effort nonetheless.
  • A fairly important copyright-related decision from the Ninth Circuit came down today: The en banc opinion in Montz v. Pilgrim Films & Television, Inc., No. 08–56954 (9th Cir. en banc 04 May 2011) (Schroeder, J., 7–4). The majority held that a Desny claim is not preempted by the Copyright Act; the four dissenters would have held otherwise.

    I have very mixed feelings about this decision. On one tentacle, I'm in favor of uniformity on copyright matters, and this decision not only entrenches an implicit circuit split with the Second, Sixth, Seventh, and Eleventh circuits, but it continues the American "scripts and teleplays are special" meme that is entirely inconsistent with international copyright law (cf., e.g., the treatment per force of scripts as works for hire) and any internally consistent understanding of creativity and the creative process. On another tentacle, a Desny claim operates as an important check on one rampant aspect of unethical (and arguably criminal) behavior in the entertainment industry: Use of others' material without compensation. On yet another tentacle, though, we have another aspect of the idea/expression dichotomy that would have formed a much better foundation for reaching the same result in this matter.

    A Desny claim arises when a freelance writer sends material — it could be as little as a two-page proposed summary, a formal treatment, or a full script — to a producer. That producer then "rejects" the material, either explicitly or (more commonly) silently (by not starting negotiations with the writer)... but then, some time later, essential parts of that material appear in something produced by the producer. Because the material was submitted to the producer with an expectation of mutual financial advantage through producing it — the writer gets paid his/her fee, and the producer profits from the film/TV production — the California Supreme Court decided in Desny v. Wilder, 299 P.2d 257 (Cal. 1956) that the producer has breached an implied-in-fact contract with the writer... not by using the ideas in the submitted material, but by not paying for the ideas. Of course, studios and producers don't like Desny actions, and try desperately to get them recharacterized as copyright actions (since they have a lot more defenses then, such as failure to register, the scenes à faire doctrine, substantiality of use, etc.). That's precisely what happened here.

    I would have reached the pro-writer result in Montz by a rather different route — by way of Feist Publ. Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). Under the US Supreme Court's doctrine in that matter (which is now two decades old), the Copyright Act protects original expression, not facts... or abstract ideas. Feist, 499 U.S. at 348–50. Since a Desny action is ordinarily (and, in Montz, explicitly) concerned with taking of ideas without compensation, I would have held that "preemption" and technical rules of pleading were irrelevant; I would, instead, have held that the subject matter of a Desny claim (or, in any event, Montz's claim against Pilgrim) is outside the Constitutional scope of the Copyright Act, and that therefore we don't have to worry about either preemption or pleading practice. Instead, though, Judge Schroeder and her six colleagues in the majority focus on pleading practice and the availability of certain remedies under the Copyright Act, which rather puts the cart before the horse's embryo. One might even argue that the federal courts didn't even have subject-matter jurisdiction to make this decision because it's a state-law claim between nondiverse parties...