11 December 2019

Oooh — That's Different

Yesterday and today exposed a fissure in American intellectual property law that has gotten little, if any attention. In a not-strictly-legal development that nonetheless provides essential context, the Register of Copyright is leaving — yet again for a job with not an actual creator of copyrighted works, but a trade association for transferees and distributors of copyrighted works. This is another in an unbroken line of "post-position" demonstrations of agency capture of the Copyright Office: Senior (and not-so-senior) Copyright Office officials end up working for transferees and distributors of copyrighted works, either directly or (on occasion) at law firms and lobbying agencies that work only for those transferees and distributors.

Sadly, this isn't just the American Rule — it's pretty consistent worldwide. My utter lack of surprise arises because I followed the money (a phrase which is in the news now for different — but disturbingly related — reasons). If there were equivalent positions and even close to equivalent compensation available working directly for the creators of copyrighted works, there might be some chance that some of these officials would end up working for them after their (usually underpaid) government service.

Of course, there isn't just one "American Rule," as yesterday's argument at the Supreme Court in a patent case made quite clear. There is an "American Rule" regarding judicial review: That the right to judicial review is presumed unless there is a hypertechnically accurate removal of a particular class of decision made under specific authority from judicial review… and even then, if that decision that seems unreviewable was outside the authority of the decisionmaker, it may be judicially reviewed. This latter point, though, may not be entirely correct in this case, because expiration of a statute of limitations does not divest a decisionmaker of jurisdiction. Statutes of limitations (and repose and for filing) are generally treated as affirmative defenses, and therefore waivable if not properly raised… and at least potentially subject to equitable tolling (for example, an extension because there was fraud involved in concealing the wrongful act from the victim; interestingly, the Court decided this precise issue in a different opinion and context yesterday (pdf), ultimately holding that the actual reason for tolling wasn't adequately preserved).

Admittedly, this is a slightly odd example, being based just on what happened at oral argument and not on the Court's opinion. It's not odd because it's "civil procedure," though: Far, far more intellectual property dispute decisions turn on civil procedure than on the substance of intellectual property law. This is particularly true of copyright matters, especially in this time of Twiqbal plausibility overtaking the Conley notice-and-any-consistent-set-of-facts framework on motions to dismiss. Indeed, two of the few Supreme Court copyright decisions under the 1976 Act that got there after a trial concerned the subissue in the next paragraph (and not a direct challenge to the verdict itself)…

The more-familiar "American Rule," though, is that each party pays its own lawyers unless there is a specific, statutory, and unambiguous fee shifting provision that authorizes the more-familiar-in-the-rest-of-the-world "loser pays all the lawyers" system, on a case by case basis. In another patent case, the Supreme Court decided that this doesn't include the Patent Office's internal legal "fees" for its employee time in responding to challenges to its prior rejection of a patent application (pdf). The statute allows "expenses" to be shifted to the losing party, but the Court held that attorneys' fees are not "expenses." (Tell that to a bankrupt debtor some time, especially given the wording of the Bankruptcy Code.)

Both the Copyright Act (17 U.S.C. § 505) and the Patent Act (35 U.S.C. § 285) do include some fee-shifting provisions. The tension with the American Rule is obvious, though, and perhaps far more nature-of-the-parties dependant than the courts are willing to admit. Especially in Copyright Act fee-shifting matters, "David versus Goliath" is a big thumb on the scale when Goliath is seeking fees — at least when David is the copyright holder.

And isn't all of that special. At a broader level, it makes IP different from personal property1 and real property2. A little different, anyway.

  1. Most property theory treats intellectual property as a subset of personal property. I don't entirely buy this. The purported "rivalrousness failure" presumes that rivalrousness is a necessary component of a property right, and there are plenty of conceptions of property in the abstract for which rivalrousness is a post hoc consideration, not bound with the property rights. More important is that unlike almost all personal property — even intangible personal property like deposits in financial institutions — intellectual property does not have an objective, ascertainable value. Consider, for example, the "value" of Barrie's Peter Pan… and works derived from it. The statutory fact that it is "out of copyright" (at least outside the UK, and its status within the UK is "interesting" in the "curse" or "academic" sense of the word) certainly affects its value, but not its status as intellectual property.

    Calling it "intellectual property," though, at least gets it into courts and other dispute resolution. There's an increasing tendency in the US to interpret "case or controversy" as requiring either (or sometimes both) of "plaintiff has suffered an injury to his property, including his person" or "plaintiff has suffered an infringement of a right derived from the Constitution," or the courthouse door gets slammed shut for want of standing. This seeming dichotomy, though, reflects as much the certainty-of-enforceability problem with remedies as it does abstract notions of "justiciability," even using the declaratory-judgment workaround. But at least by calling it a "property" interest, "creative" (or "progress in the useful arts and sciences") rights get resolved — however artificially. The irony that "creativity" is the last thing that precedent-worshipping courts and lawyers should be entrusted with has largely escaped notice — probably because the West has all too efficiently limited nonlegalistic means of dispute resolution, and especially those that don't have an ascertainable monetary remedy.

  2. Which mostly has little to do with "real." <SARCASM> Maybe they mean "a man's home is his castle" and are importing the Spanish real without admitting it. </SARCASM>