17 March 2016

European Vacation

This blawg's only feline friend the IPKat notes two European matters of interest to authors everywhere. Any American author who is writing anything other than ephemeral, pure-local-interest material but denies that anything going on in Europe — and especially European legal disputes — has any meaning for this side of the Pond is either stupid or a doctrinaire isolationist... if, that is, there's a difference. After all, Europe essentially forced the 1976 Copyright Act upon us!

First, there's a fascinating decision that may founder on Winston Churchill's lament: That the Brits and the Yanks are a common people separated by a common language, in this instance the term "moral prejudice." The Court of Justice of the European Union (the EU's equivalent of the Supreme Court, albeit with somewhat less authority to restrain unruly national courts than our Supreme Court has over state courts... and, more to the point, no federal courts of appeals beneath it to refine the record and the reasoning) has just today held that:

However, as is apparent from paragraph 20 of the present judgment, setting the amount of damages due as a lump sum on the basis of hypothetical royalties alone covers only the material damage suffered by the intellectual property rightholder concerned; consequently, for the purposes of providing compensation in full, that rightholder must be able to seek, in addition to the damages thus calculated, compensation for any moral prejudice which he has suffered.

Liffers v. Producciones Mandarina SL, No. C–99/15 (CJEU 17 Mar 2016) ¶ 26.

What the heck is "compensation for any moral prejudice which he has suffered"? Well might you ask — it's not at all clear. Indeed, it's arguably and primarily a trademark — not copyright — concern, specifically related to the morass of tarnishment and disparagement. It's somewhat akin to the "author's right of integrity" (not a part of our copyright law except for visual fine arts under 17 U.S.C. § 106A, and even then not an independent right), but not exactly. "Moral prejudice" also includes damage to the author's ability to benefit — artistically and commercially — from his/her (it is restricted to natural persons, and I don't have a good grammatical solution for transgender/nongendered identification of natural persons that doesn't ambiguously include entities and organizations)1 rights to both further license the underlying work and to create derivative works. And that's the distinction that matters here.

What the CJEU appears to be saying is that a copyright infringement remedy may — and perhaps must — consider the damage to both direct and indirect continuation activities, perhaps well beyond the specific illustration in Liffers of "actual damages for infringement of x" plus "hypothetical damages of a license fee of y." One illustration is the notorious "Dr Juice" parody (sorry, Ninth Circuit, you were wrong: It is a parody under the literary analysis, and is fair use). Under Liffers' reasoning, the remedy would also need to include consideration of harm to the Dr Seuss brand resulting from the "Dr Juice" parody, and more particularly any commercial or artistic restrictions that might have placed on the late Mr Geisel's personal ability to create and commercially exploit further derivative works based on The Cat in the Hat and further license — or properly license to the "infringers" — that work itself (had he not already been deceased). This is an interesting conundrum... at least to IP nerds and civil procedure geeks.

On the piracy front, the Advocate General (somewhat similar to our Solicitor General) thinks that free wi-fi providers whose services are used to download pirate copies aren't liable to the copyright holder, but can be enjoined from future enablement. I have more than a modicum of experience in this area. The Advocate General is trying to give both sides half a loaf. On the one hand, there are bad actors out there; there's no reason whatsoever that I should be able to walk into Starbucks and use its relatively anonymous2 wi-fi services to connect not to the latest Drumpf outrages, but The Pir4t3 B4y to download a crappy cell-phone-camera capture of Zootopia. But it's also not entirely reasonable to expect Starbucks to filter even ardent and outright piracy without specific prior notice, and in this instance validated by a judicial order and not mere assertion.

On the third tentacle, "entirely reasonable" is not the standard here: Not for free speech (especially in Europe!),3 not for internet access, not for commercial internet services, not for copyright holders. And we're going to leave aside some of the practicality issues, such as "How does one expect a free wi-fi provider to deal with changing addresses, let alone torrents and Tor and even darker access systems?"

  1. And this is the best solution I have for necessary, but excessive, parentheticals. Not a very good solution for a blawg, where I can't easily ensure that there's an easy way to see everything at once...
  2. If one takes even moderate precautions, such as using a free VPN while sipping that fourth extra-large, two-extra-shots mocha of the morning, that are utterly necessary to avoid hacker intrusions and other security vulnerabilities.
  3. Noted principally for unfunny irony: But for the US government's disclaimer of copyright in its official works — which is not the case in Europe at all — this reasoning could be used to prevent access to WikiLeaks and Snowdenization. It also undermines the reasoning in Nation Enters. for that particular context, but that's for another time, and another fifty to sixty footnotes.