21 March 2012

Between Life Events…

Life has intervened for a few days, and will intervene some more here shortly...

  • The UK Supreme Court issued its opinion in Flood v. Times Newspapers Ltd., [2012] UKSC 11 (PDF), a libel matter significant for authors of all kinds. Although Flood does not reduce either the urgency of statutory libel reform in the UK or its necessary scope, it does provide some hope that — presuming one has the resources to continue the battle all the way to the top — a defendant can prevail in a libel action involving matters of public interest.

    Flood arises in a way that Americans simply would not credit, thanks to our First Amendment. Flood was a police officer, and allegations were made that he acted improperly during the extradition of a Russian oligarch (who may, or may not, have been simultaneously a political target and a criminal). These allegations resulted in a then-ongoing investigation by the equivalent of an American Internal Affairs section. The Times reported the allegations as allegations, the investigation as ongoing, and the name of the semiaccused officer. The investigation later turned up no evidence of wrongdoing, but The Times did not clearly update its website with that later-acquired information... and Flood sued.

    In the US, this is a nonstarter. So long as the paper does not cross the line and state that the allegations of misconduct are necessarily true, this isn't going to get filed by any even marginally competent lawyer. In the UK, though, there's a complex balancing test called a Reynolds defense that a newspaper (or other accepted journalist... possibly not including 'net-based individual reporting like either Wikileaks or an individual whistleblower) can raise that essentially says "this was responsible reporting." The lower courts in Flood either various refused to allow a Reynolds defense to be fully presented or rejected it out of hand due to the later factual development, implying that "responsible reportage" requires one to reach back in time — just as Winston Smith did at the Ministry of Information — and "correct" past reporting. The UK Supreme Court stood up for the paper, though, and held that the Reynolds defense is based on what was known (or reasonably known) at the time of publication and does not impose a later duty of correction... and that reporting allegations as allegations is, when the matter is sufficiently of public interest, also falls within the Reynolds defense.

    This does matter to US-based authors, particularly US-based authors whose work has an international audience (even if only ever "published" in the US). Remember that little warranty-and-indemnity clause in your publishing contract? Under pre-Flood proceedings in UK lower courts, you'd be screwed, because you did say something that was held libellous by not later correcting it after publication. Bloody insurance companies...

  • Sometimes it takes a couple of decades for one part of the law to catch up with another part. In Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the US Supreme Court held that copyright could extend only to works with sufficient originality, and cited a constitutional basis for that rule. Yesterday, patent law finally caught up... if not explicitly enough. In Mayo Clinic v. Prometheus, No. 10–1150 (20 Mar 2012), the Court held that just taking a "natural law" and making it part of a well-accepted diagnostic process does not constitute an "invention." Law students looking for paper topics might consider writing a comparative analysis of these two decisions. The decision in Prometheus is in many ways completely parallel to the reasoning (if not necessarily the source of the reasoning) in Feist, because in both cases the Court rejected protection under the Intellectual Property Clause (U.S. Const. Art. I § 8 cl. 8) for taking "natural" information and arranging and using it in an intuitively obvious manner: Alphabetical organization of telephone directories in Feist, and a Goldilocks (too high/just right/too low) measurement of drug metabolites in Prometheus.

    The point for authors, inventors, and other creators is that intellectual property protection is not a seamless web (it is rather seamy indeed), but that it is a web of consistent methods of reasoning. Reproducing the telephone book and treatment for autoimmune diseases seem, at first glance, to be entirely unrelated — but they both express the same aspect of the problem of "what is creativity?" that is at the core not just of intellectual property, but of the "information wants to be free" movement. In short, this is much more important than it at first seems... unless, that is, you've got one of the "covered" autoimmune diseases, in which case its import to your medical bills is pretty obvious.

  • Not too long ago, I mentioned here that France is grabbing e-book rights. The other sixteen-ton designer spiked-heel shoe has dropped: Google's "bookstore" will be opening shortly in France. Those of you whose books have been published in France: Kiss any hope of negotiating reasonable compensation or conditions goodbye. Between the rights-grab of the French government and the compensation-depressing effect of Google (which has a long history of not paying for content) and its so-called "bookstore" (ditto), authors are going to be very lucky indeed to ever see a single Euro from anything short of Harry Potteresque bestsellers.
  • The MPAA, on the other hand, has never claimed that its motto is "Don't Be Evil." With good reason: It is evil. From misguided antipiracy efforts that sweep too broadly in an attempt to maintain excessive prices to support for so-called "H'wood accounting" that means that films never have "net profits" to distribute to those who invested months or years of their lives in them (only "gross profits" to be returned to some — not all — of the financiers)... to a corrupt, inept rating system dominated by prudes with no real-world experience who don't watch the evening news, there is quite literally nothing that the MPAA does that does not reflect a Sauron-like sense of entitlement, self-righteousness, and bigotry. This particular ratings "controversy" is just the latest in a long string of them. It's not 1968 any more, guys: Local censorship boards in the US will act only as free publicity, not as actual barriers to your profitability.