24 July 2014

Mulish Internet Link Sausages

Non Sequitur, 24 Jul 2014

Not that the last panel isn't my default anyway...

In any event, there has been a lot of copyright/IP news of late from the courts, and authors and other creators should pay some attention.

  • From across the Pond, a case demonstrates rather definitively that one of the main problems with copyright law is that it doesn't offer the remedies that some creators want... and, conversely, that some of those creators need to understand that bringing their emotional needs into a court that can't fulfill them is unlikely to favorably impress the judge. Lord of IPKats Professor Phillips provides an admirably clear summary of what the court actually said (along with a link to the decision in Lilley v. Euromoney Institutional Investor plc, et al.) that I'm going to simultaneously oversimplify and expand upon. An author's printed (print-only) articles were snatched, scanned, and put onto the 'net without his permission. The author eventually traced down the putters-onto-the-internet (there are technical reasons I'm not calling them "pirates" or "republishers" or "providers" that are buried in the actual opinion) and sued them in UK courts... for a sum of nearly £600 million. As Professor Phillips explains, this was mostly rejected — not because there was no piracy, but because the statute of limitations had run and/or the amount of the author's demand was not supportable in law.

    This exposes a critical lacuna in legal remedies for copyright, and it's a lacuna that is worse Over There: The available remedies do not include a mandated apology (not even a mealymouthed "I didn't do anything wrong, but I won't do it again"), nor an effective injunction against future misconduct that is anything but identical. I strongly suspect that at least some of the author's ire came from stonewalling — real or perceived — by one or more of the putters-onto-the-internet, which in turn was probably driven by draconian insurance-policy corporate restrictions upon admitting any wrongdoing. All of that said, it drove the author to unreasonability: He demanded outrageous sums of money because he thought that was the value of his distress, and what was necessary to punish/deter the wrongdoers. This is as much a failure of law (not of the judge) as it is of the author... which leads to the next link sausage, presenting an equal, if not greater, failure of the law and not the judge.

  • Back on this side of the Pond, Professor Tushnet notes a trademark dispute that has gotten rather out of hand because trademark law is an ass. In this instance, a candidate with the actual given name of a famous candy manufacturer (I'm not stating it here so as to avoid errant search results) used a somewhat suggestive color scheme in his campaign ads, after previous litigation had resulted in an "I won't do that sort of thing any more" settlement. But the law really is an ass here. Leaving aside for the moment the name-appropriation issue (one that I think trademark law has gotten absolutely wrong, although I'm admittedly in a minority on this), the real problem is that the candy manufacturer was not allowed to laugh it off; had it done so, figuring that this was a de minimus infringement in a context that nobody could reasonably claim was actual "competition" by a potential or actual "competitor," it would have risked the value of its mark against everyone. Trademark, unlike copyright, is a defend-against-every-possible-infringement right, in which failure to defend once provides a partial — and sometimes complete — defense for later/other infringers.

    The "real" solution here is for that candy manufacturer to fire its lawyers, fire its insurance company, fire its insurance company's lawyers, and hire the lawyers for a famous Kentucky distillery (JPG). But that's precisely the kind of big-picture solution that having IP and IP-related disputes kept in regional courts of appeals discourages... and lack of "enforced remorse" encourages, for that matter.

  • It's also what happens when transferees are given not just a license, but control beyond their creative competence. Were I the god-emperor of IP, I would mandate that part of the cause of action for any IP-related lawsuit includes a formal, written approval for that particular suit (naming both the defendant and the alleged infringement) by the natural-person creator(s) of the infringed property (or the legal, natural-person successor(s) in interest to the creator(s) after death or incapacity). But that's not the law at present... and it would be so, so sad to so thoroughly undermine the work-for-hire doctrine with such a requirement. Schade. My underlying point is this: If the transferee can't convince the actual creator that it's in the creator's best interest to stomp on the alleged infringement/infringer, the transferee needs to radically rethink what it's doing... or it's merely another bully. As y'all may have figured out by now, I don't like bullies — especially bullies whose ground for doing so is that they have more money to start with and thereby forced an economic transaction in their favor (and took more in that transaction than they could actually exploit, just because they could).
  • Finally, Professor Goldman notes the need for better paperwork everywhere. This is a cautionary tale for self-publishing authors (and small presses, and even large presses, not to mention the entire bloody "indie" music and film "movements") who persist in thinking "I found it on the 'net, therefore I can use it for anything I damned well please!" One of his preliminary points is worth quoting in full:

    If these allegations were true, it highlights the toxicity of photos used in commercial settings. In many circumstances, republication of a DVD cover or album cover should be excused by 17 USC [§] 113(c) or possibly other doctrines. Still, shame on whoever used the plaintiff’s photo for the song and DVD without obtaining ownership or a strong enough license to protect downstream republications. Distributing a song that became a cultural icon with an insufficiently exhausted copyright license for its cover creates the potential for lots of other folks to become unintended potential defendants. The result is actually quite chilling to ordinary social discourse, as it makes sense that many people would want to show the album cover or DVD cover in discussing or critiquing the song.

    (hyperlink added) As it happens, I think the "fair use" analysis (both the court's and Professor Goldman's) should be a much closer question than either the underlying opinion or Professor Goldman's discussion imply. I'm not especially fond of or persuaded by the sort of hand-waving invocations of "transformative use" usually applied in this context; Evan Brown's invocation of "newsworthiness" is a helluva lot more convincing — especially in the context of a newslike use by a blogger — and has the bonus of not allowing judges and lawyers to impose their generally defective and frequently insane conceptions of the creative process on the actual creative process.

    Judges and lawyers, in both common-law systems and elsewhere, are trained specifically that creativity is a bad thing: Instead, the lawlike objective is to prove that someone else has said before precisely what is necessary to decide the dispute in question. Even — perhaps especially — when courts have the temerity to admit that they're resolving a novel question, the resulting analysis (and the analysis of the lawyers before them) is inextricably intertwined with the language of precedents invoked in that analysis. They're not perfect at recognizing the difference between "news" and "not news," but they're a lot less error-prone than they are when trying to distinguish between "creative" and "not creative" (let alone "creative process" and "anything else"). The reflexiveness and irony of those citations are inextricably intertwined with my point...