27 September 2013

Before the Sausages

These aren't really internet link sausages; they are, instead, great big hunks of internet animals being prepared for grinding, seasoning, and stuffing into casings.

  • I've been somewhat remiss of late — I plead distraction and demands of the day job — concerning significant copyright and intellectual property decisions with implications for authors and other individual creators. There have been a couple of them in the last week, and perhaps I'll get around to a few others... but that said:

    The Fourth Circuit demonstrated why timely registration of copyrights is critical to protecting an author's interests, in one of those disputes in which I can't help wishing everyone could lose. In Dash v. Mayweather, No. [20]12–1899 (4th Cir. 26 Sep 2013), a well-known boxer was invited to make some extra cold, hard cash by appearing at a professional wrestling event. Under the "rules" of the wrestling promoter, everyone gets introduced with theme music. Eventually, Mayweather provided his own entrance music... which turned out to be a derivative performance of Dash's "beats" composition. (n.b. This is all strictly from the opinion's summary of the facts; I've not heard the performance, nor seen the exemplar provided with the registration.) The problem this case presents is that Dash's work was clearly in copyright, and had clearly been published (under the bizarre definition of "published" that applies to musical works), prior to Mayweather's use of it... but it was not registered until after Mayweather had used it, and the way it was registered did not allow "relation back" to any earlier date. Thus, Dash could only claim actual damages and/or an accounting for profits; statutory damages are available only when the effective date of registration precedes the infringement. And on this question, he simply could not demonstrate sufficient causation between either "Mayweather's use of the music" and "diminished monetary value of the music to the composer," or "money Mayweather received during, as a result of, etc. his appearance" and "Mayweather's use of the music." No proof of damages means no effective remedy, other than a declaration of rights... and, sadly, the law sees the responsibility for this as entirely the composer's "failure" (instead of the failure of Congress and the Copyright Office to make things clear and reasonable).

    The Dash fiasco points out the necessity of promptly registering works, since prompt registration (within 90 days of publication under the current Copyright Office rules) "backdates" the registration to the date of publication. There are also certain "preregistration" procedures — which are essentially meaningful only for blockbuster media properties — to help with prepublication piracy, but preregistration is well beyond the scope of individual creators. The real problem here is that Copyright Office procedures have not adapted to musicians' default conduct over the years; instead, the registration procedures remain pinned to the 1909 Act's concept that a work doesn't "exist" until it is "published" (and the corollary presumption that all "publishers" can and will accurately, promptly, and successfully register those works upon publication). This disjuncture of procedure from practice is far from unusual, but it is worse than it need be regarding individual creators of nontextual materials.

  • Turning back the calendar a couple of decades to the tools used to create copyrightable works, there was yet another decision in the longrunning dispute concerning WordPerfect, Windows, etc. coming out of Utah. In Novell, Inc. v. Microsoft Corp., No. [20]12–4143 (10th Cir. 23 Sep 2013) ("Novell VII"), an antitrust dispute about intellectual property — specifically, whether Microsoft violated antitrust law when it didn't do "enough" to make the interface specifications available for WordPerfect's use during the transition to Windows95 — actually reflects more about intellectual property and copyright issues just beyond the limits of antitrust law than it does about antitrust law itself. As a bit of background, the MS-DOS versions of WordPerfect (which worked perfectly well under Windows 3.x) were objectively superior to Microsoft Word in form, function, documentation, and virtually every way that matters to users. (Indeed, one can argue that certain aspects of Word 2013 — especially the function, if not interface, of its macro system — have evolved backward toward the code-based paradigm underlying WordPerfect... but one would need to be a real hacker to do so.) WordPerfect files were smaller, more robust, and more transferrable to other systems of software and hardware than were .doc files at that time — especially when transferring between radically different operating environments, such as the notorious Mac/PC character-set problem. Too, WordPerfect itself was far less US-centric in its interface and capabilities. It loaded faster. It was less expensive.

    And it wasn't Microsoft's, so Microsoft was understandably... motivated... to undermine transition of WordPerfect to the Windows 95 environment. The programmers at what is now Novell obliged by being less assiduous than they needed to be. Years of experience with Microsoft — and operating system vendors in general — should have taught them that any interface documentation and access they got officially from Microsoft would have been inadequate anyway (and that was true even within Microsoft), but they just punted. The initial Windows-based versions of WordPerfect were both functional and commercial disasters, not to mention unduly delayed. Thus, as Judge Gorsuch notes in opening:

    A straggler of a case, this one drags us back twenty years. To a time before the dot-com boom busted and boomed again, a time when Microsoft was busy amassing a virtual empire — if sometimes in violation of the antitrust laws. Long since found liable for a rich diversity of antitrust misdeeds in the 1990s, this case calls on us to decide whether Microsoft back then committed still another, as-yet undetected antitrust violation — this time at Novell’s expense.

    Novell’s suit against Microsoft finally found its way to trial in 2011 but the jury couldn’t manage a verdict. Reviewing the record for itself after trial, the district court decided it could fairly admit of only one conclusion: Microsoft’s conduct did not offend section 2 of the Sherman Act. So the district court entered judgment as a matter of law, see Fed. R. Civ. P. 50, a decision Novell now asks us to overturn but one we find we cannot. Novell complains that Microsoft refused to share its intellectual property with rivals after first promising to do so. But the antitrust laws rarely impose on firms — even dominant firms — a duty to deal with their rivals. With respect to Novell at least, Microsoft did nothing unlawful.

    Novell VII, slip op. at 2.

    Novell VII illuminates the tension between antitrust law (and the competitive instinct) on the one hand and the intellectual property imperative to advance the useful arts and sciences on the other. Because Novell's lawyers (both now and in the 1990s) failed to understand the distinctions among different varieties of intellectual property, they allowed themselves to be sealed into a bad legal box — one with the spikes on the inside. The true dispute here is not about antitrust; it is about the distinction between, on the one hand, copyright and patent (and even trademark), and on the other hand trade secrets. Antitrust is merely the legal mechanism that provides an attractive remedy — one so attractive in this instance that it is probably an attractive nuisance, like the neighbor's unattended pool that has no fence around it. Novell (and its lawyers) effectively drowned in the pool of antitrust's treble-damages, divestiture, and mandatory fee-reversal provisions instead of looking at what they actually had.

    The real dispute here concerns how much information Microsoft had to provide about the inner workings of Windows 95. For casual programming, a listing of interface calls with their input and output parameters is probably sufficient. WordPerfect, however, had a long tradition of essentially substituting its own graphics and printing subsystems for operating-system-preferred versions, in the name of better performance and better fidelity to printed output. This required far-more-detailed knowledge of the Windows 95 interface's inner workings to duplicate — knowledge at the shadowy border between copyright/patent disclosures and undisclosed trade secrets. (That this sounds a great deal like the contemporaneous $cientology disputes over publication of doctrine/dogma/whateveryawannacallit is not entirely coincidental... or benign.) Microsoft's position was that much of what WordPerfect/Novell wanted was not disclosed material, but trade secrets, and was therefore reluctant to release that information in the form that WordPerfect wanted so that WordPerfect could counter Microsoft's aspirations for world — or at least word-processor and/or operating system — domination.

    From an interested third-party-observer's perspective, there's not a lot to like from either side, and Judge Gorsuch's opinion for the court echoes that distaste.

    Within the operating systems market alone, it’s not clear Microsoft lost or expected to lose revenues in the short term — or ever. By withdrawing NSEs, Microsoft may have handicapped the ability of ISVs to write for Windows 95. But as Novell acknowledges, ISVs had a reasonably strong incentive to write for Microsoft’s operating system with or without access to Window’s NSEs — given Microsoft’s significant presence in the operating systems market (already about a 90 percent share before Windows 95). In fact, the record suggests that Microsoft’s market share continued to groweven after the introduction of Windows 95 without shared NSEs (to at least 95 percent). To be sure, Novell’s CEO testified that Windows 95 would have done even better (to some unspecified degree) had Microsoft continued to provide access to NSEs. But Novell’s own expert refused to opine on the question. And Novell’s own theory of monopoly maintenance posits that Microsoft’s withdrawal of the NSEs helpedits position in the operating systems market by wedding consumers to Microsoft applications that themselves could run only on its operating system. Perhaps Novell would respond that this strategy onlyhelped Microsoft in the long run after a period of forgone short-term profits — but here again Novell presents no evidence to support such a theory.

    Novell VII, slip op. at 25–26.

    Of course, this entire dispute has been made needlessly complex by various ill-considered financial transactions in the 1990s, which were mostly driven by venture-capitalist and beancounter impatience rather than any consideration of context. The reason that Novell is suing over the operating system is that the interests in WordPerfect were (illogically and improperly) divided in mid-1990s transactions; the rights regarding WordPerfect itself as a product directly competing with Word were resolved by other entities in other litigation (see slip op. at 10 n.1). That distinction is, by itself, essentially fatal to Novell's hopes.

    So, what does the Novell VII fiasco mean for individual creators? First, and perhaps most obvious, it is a reminder that dividing ownership of claims — especially by selling off only part of a property — is almost always a bad idea. Second, it is a reminder that antitrust law does not regulate bullies — only certain varieties of bullying. Third, and most within the control of individual creators, one must remember that nobody is obliged to assist you. You really are on your own, especially when you're adapting yourself to others' works.

  • Turning, for a moment, from the present to the future, this blawg's only feline friend the IPKat notes two cases now pending at the European Court of Justice that each has the potential to really confuse things on the Internet. The value-neutral explanation is that these cases concern transformation and jurisdiction concerning photographs on the 'net. However, there's a huge unstated complication lurking: The reach of US constitutionally-mandated fair use doctrine. Taking the two cases together, let's hypothesize a US artist who radically transforms an Austrian-origin photo and posts his transformed photo on Blogspot — which also has a .de mirror. Under US law, we'll assume that there's no question but that it was fair use (that's why I said "radically transforms"). It's a much, much closer question under "fair dealing" in European law, and particularly so regarding photographs in Central European countries. Too, there's also the jurisdictional nightmare of being dragged into court in Salzburg for a work "published" in Schenectedy... or, perhaps, reposted while changing planes at Schipol.

    As an editorial aside, this is not a difficult matter from my US-centric, US-values-imperialist perspective. The First Amendment is objectively and subjectively superior to the various European expressive-protection equivalents, and fair use for all its flaws is equally superior to the nation-specific arcana of fair dealing. But those are not the issues before the CJEU; in fact, under the CJEU's rules they can't even be brought before the court, because it's not allowed to rewrite references in the same way as US appellate courts often alter "questions presented for review." In essence, the CJEU is often far more limited in its own jurisdiction than our courts are over here; it's the lower and national courts within the EU that are truly "activist" and "governmental branches." I don't see a positive outcome for this, especially since (objectively) the jurisdictional question is so inverted from the real inquiry as it relates to the internet. In this instance, the underlying rules will prevent the CJEU from considering both the substance and rules that it really needs to consider to reach a defensible result. As an example, consider recent developments in Spain concerning pirate sites (I'm lookin' at you, certain-well-known-pirate-havens-who-ignore-C&D-notices).

  • Last, and far from least, here's an interesting piece on the thirteen most-pervasive lies concerning music that bears careful consideration by authors, artists, photographers, etc. Historically, changes in the recorded-music industry in the US have been a lockstep eight or nine years in advance of those in the publishing industries. This relationship has continued since the first widespread availability of recorded music in the early 20th century, and it concerns both technology adoption and business practices.

    I find three of the "lies" of particular interest to authors; whether they are calling themselves "indie" authors (after "indie" music), "self-published", or any other label is immaterial:

    Lie #2: Artists will thrive off of 'Long Tail,' niche content. This is even more relevant to authors than it is to musicians; historically, an even larger portion of net proceeds to authors has gone to the "1%" (or its equivalent) than has that for musicians, if only because a much higher proportion of musicians have/can obtain significant "side gig" income ranging from session-playing to youth instruction than has ever been true for authors (or, at least, authors of book-length works). Of course, even a basic understanding of the math behind the "long tail" would lead one to this conclusion rather inescapably... but understanding the math was never one of the priorities of the snake-oil salescreatures who popularized the long-tail theory. I'm particularly incensed by the misleading crap that Wired has put forth over the years, but then even a couple of its columnists are now backing away.

    Lie #5: Digital formats will produce far greater revenues than physical. In other words, print ain't dead yet, and pretending that it is will not make it so. There are so many structural reasons for this that I can't possibly name all of them; I'll just start with "walled-garden book ecosystems," "DRM that doesn't work," and "illogical jurisdictional-barrier-based censorship" and leave the rest to your active imaginations. It's one thing to proclaim digital format superiority... and yet another to get digital formats through the Great Firewall of China (to name just one such barrier). It's actually substantially easier for a Chinese consumer to purchase foreign printed books than foreign e-books — and that's just one particularly obvious example.

    Lie #7: There's an emerging middle class artist. No. Not only "no," but "hell no." Instead, the market-based availability of and compensation for book-length works is increasingly being divided into "the 0.7%" and "authors who need day jobs" — or patrons, in the Renaissance sense of the word. And for those who think the latter is a realistic alternative for ensuring diverse artistic output, might I suggest actually studying artistic output in Renaissance Italy and Soviet Russia (both of which operated with remarkably similar patronage systems)?

    I'm not saying that nobody should self-publish their works exclusively as e-books. I'm only saying that with very rare exceptions, that's not a viable business plan for ensuring one's economic wellbeing. There are always going to be exceptions — indeed, there are always going to be huge variances in what makes a business plan "viable," let alone whether economic motivation is the only one — but planning on actually winning the lottery isn't a viable business plan, either. It still happens... but authors are usually even less skilled at making realistic evaluations of their future economic success than are publishers, and that's really setting the bar low.