30 May 2011

A Matter of Intent and Symbolism

If the road to hell is paved with good intentions, how did I end up in hell? I didn't hike on back country trails to get here!

  • Here is yet another example of why I do not use the Nimmer treatise on copyright. As Professor Bartow notes, the current Nimmer has (yet again) changed his "authoritative" opinion to match his clients' immediate interests in a live dispute — and one should remember that neither the current Nimmer nor his father (who originated the treatise) represent actual creators, but only exploiters and middlemen. There's nothing wrong with practitioners being involved in writing treatises; many treatises could definitely do with some input from the "real world" (I'm thinking, in particular, of the notoriously-disjointed-from-reality old chestnut Wigmore on Evidence). There's quite a bit wrong, though, when the practitioner-slash-treatise-author-slash-authority changes his/her opinion not of what the law should be, but of what the law is, to match his/her own clients' immediate preferences in a live dispute.

    Perhaps Professor Bartow herself is too polite to note it; perhaps she is a bit too removed from practice to have noticed it; but I found yet another ridiculous aspect of Professor Nimmer's change of opinion: It's in an improper document that the court should never have allowed to be filed. An expert opinion may only "assist the trier of fact to understand the evidence or to determine a fact in issue" (Fed. R. Evid 702, emphasis added). Arguments about the law are for the lawyers and to the judge only; if one wishes to bring in material from a "legal expert," the proper method to do so is via citation to legal authority. There's nothing wrong with that citation being to a yet-to-be-published work — so long as one provides copies to both the judge and the other side — but putting an interpretation of legal doctrine in as an "expert opinion" is flat wrong. Another big LA law firm tried this BS in the Ellison matter to no avail. You'd think they'd learn that if they're going to tell the judge what the law is, they should do so in the context of telling the judge what the law is.

  • Late-breaking news bulletins: FIFA is corrupt and won't police itself. The IMF is corrupt and won't police itself.
  • And another war criminal heads to trial at the ICC in the Hague. It's not going to bring back the dead of Srebrenica (or anywhere else); but then, the ICC should function more like a truth-and-reconciliation commission than anything else, if only because then its purported infringements upon sovereignty would not be at issue (or, at least, not as much), and governments that oppose it would lose one of the rationales for that opposition.
  • Professor Rebecca Tushnet notes roundabout limits on Dastar in the context of a big circuit split and some really, really incoherent doctrine and writing at the Supreme Court (and in the Courts of Appeals). Basically, Dastar is the "solution" to the problem of recharacterizing a copyright suit as a trademark suit after the copyright has expired... and it's a pretty poor solution all around. There's a difference, though, between exemplary use (also called "referential use" and "nominative use" at times, but I prefer the foreign term because it doesn't have the doctrinal baggage attached to those terms in the US) and actual exploitation of the mark as content itself. As Professor Tushnet describes things, this is pretty clearly a noninfringing exemplary use, and the court reached the theoretically defensible "right" result. One must ask, however, whether the mark owner's purpose was at least in part colored by the rigidity of the "must defend" aspect of trademark law, rather than even a throw-everything-at-the-wall-and-hope-something-sticks litigation posture of so many large law firms (I don't have personal experience with the mark-holder's counsel, so perhaps that's just a coincidence in this matter).

    This opinion, and the underlying doctrine, may matter to authors who use the names of real firms and products (and/or slogans, etc.) as marks of versimilitude in their fiction. The details must await another time...

Back to the fun stuff. For some value of "fun" exceeding what I'm having now, I hope...