Barack Obama, law professor

A former student’s account of the President-Elect as a law professor.

Richard Epstein is considered one of the most brilliant people in legal academia, but I genuinely hope my Contracts students don’t feel at the end of the year the way this student felt about Epstein’s Contracts class:

You don’t actually learn the law in law school, at least not at a school like Chicago. Law school is for training you to think through arguments like a lawyer would, and to give you a lay of the land in various fundamental legal areas. Put another way: after spending two quarters studying Contracts with Richard Epstein, I had no idea how to actually draft a contract.

What, indeed, is fair use?

My students sometimes wonder whether their failures to find clarity in the law are the result of a lack of intelligence.  They aren’t.  Let me give a very timely example.  The New York Press writes that Girl Talk’s music — aural collages of others’ recordings — exists “without fear of lawsuit, thanks to the fair use doctrine in U.S. copyright law.”  The RIAA, on the other hand, states that “generally speaking, the use of any part of a song requires a license.”

The RIAA’s position is not without basis.  Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney’s office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,”‘Thou shalt not steal.’ [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed.”

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer’s incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice (as reflected in the RIAA’s statement quoted above) is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece?

Plainly, then, the New York Press is engaging in wishful thinking in assuming Girl Talk can operate “without fear” of lawsuits because of the fair use doctrine.  But MTV.com is being just as innacurate when it writes that Girl Talk’s failure to get permission to use the copyrighted recordings it uses “means that they appear in [Girl Talk's] song[s] illegally.”  And Techdirt is right on the money when it writes:

[W]ith over 300 samples used on the album, there’s almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: “We’ll chase it down. What more can you do?” Well, actually, there’s plenty more that you can do — such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who’s album — and, if anything, it might entice new fans to the original.

So does Girl Talk exist without the fear of lawsuits?  Of course not.  But, as I wrote recently, if were advising a client whose recordings Girl Talk had sampled, I would advise that client not to sue Girl Talk: it’s position to argue that it has transformed the copyrighted materials and thus that their use is non-inringing fair use is just too good.  I’d go after someone I am more likely to beat.  Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

The law may not be clear, but what I advise a client can nonetheless be clear.  Grasping that paradox is central to what it takes to being to really learn to think like a lawyer.

Language abuse is posing an existential threat to those around me.

Perhaps it’s being reminded recently to re-read “Politics and the English Language.”  Perhaps it’s journalism’s daily abuse of our language.  Perhaps it’s the despair peculiar to mid-November of the first semester of law school, when students have realized they have learned a lot and, understandably, given the enormous effort they’ve made over the last three months to accomplish that learning, let up, forgetting what I’ve been telling them for those three months: it will be many, many years before they feel in their guts they’re really good at expressing themselves as lawyers and understanding other lawyers.  Perhaps it’s the letter a friend received from her mortgage lender making a sincere and pathetic effort to explain to a human being what it could do for her under the federal government’s recent “baiiout” plan.  Perhaps it’s reading of Malcolm Gladwell’s most recent best-selling insight — it takes 10,000 hours of practice for anyone to become really good at anything — and realizing that maybe it takes 10,000 hours of practice to become a really good legal writer.  Perhaps it’s realizing again, for the thousandth time, that lawyers really do often use their skill with language to obscure and deceive.

At any rate, I am suffering from the cynicism Orwell in that essay mentioned in the first sentence above argues against:

Most people who bother with the matter at all would admit that the English language is in a bad way, but it is generally assumed that we cannot by conscious action do anything about it. Our civilization is decadent and our language — so the argument runs — must inevitably share in the general collapse. It follows that any struggle against the abuse of language is a sentimental archaism, like preferring candles to electric light or hansom cabs to aeroplanes. Underneath this lies the half-conscious belief that language is a natural growth and not an instrument which we shape for our own purposes.

Can we at least agree on one thing?  Can we stop using the term “existential threat” to refer to a threat that poses a genuine risk of destroying someone or something’s very existence?  As in:

Iran poses an existential threat to Israel.

The Soviet Union during the Cold War posed an existential threat to the United States.

Islamofascism poses an existential threat to Western democratic capitalism.

The term “existential threat” hides the real question — how much of a threat? — behind the idea that if something poses a threat to one’s very existence it is as bad as a threat gets.

Maybe it’s just that I started writing this post at 4am, which I’ve heard is “the new midnight.”

Speaking of Alaska’s Governor . . .

From Counterfeit Chic:

Eric Wilson at the New York Times started the Sarah Palin knockoff watch with his observation last week that she had arrived at the Alaska governor’s mansion the first time wearing “what appeared to be a knockoff Burberry scarf.”  Now her youngest daughter has been photographed carrying (Mommy’s?) Louis Vuitton bag, also alleged to be fake.

Even if the luxury bag turns out to be genuine — perhaps part of that $150K shopping spree — it doesn’t exactly scream all-American hockey mom.

And if the scarf and bag are indeed counterfeit, Sarah may have to face a few questions about the source of the illegal merchandise and her take on fakes.  Not to mention their association with child labor, organized crime, and, yes, in some cases even funding for terrorism.

I confess: I’m complicit in a corrupt and dishonest system.

I’m sometimes asked why the law can’t speak clearly to the average person.  I wish I had a good answer.  I’m not without answers; they’re simply not very satisfying.  My first answer is that the question why law can’t speak more clearly is like asking why pigs can’t fly.  They don’t, and it doesn’t.  I’ve given up trying to figure out why.  I’m primarily concerned these days with trying to figure out how to teach people who will practice law how they can begin to understand legal language.  I know that task itself — achieving a glimmer of understanding of legal language — takes a monumental amount of work even when attempted by incredibly well educated and bright people.

My second answer is that making oneself understood is incredibly difficult for anyone.  The President of the United States, the Governor of Alaska, and many other very powerful and accomplished people seem incapable of the art.  Why would you expect some low level lawyer at a federal agency to be clear if these people can’t be?

In the end, though, I sometimes throw up my hands in utter frustration, realizing I myself remain befuddled or, even worse, that they system is intended to be as confusing as possible.  I’ve “known” since law school (25 years ago) the purpose of the patent system is to encourage the disclosure of ideas by inventors to increase the inventiveness of others.  We offer an inventor exclusive rights to profit from his invention in exchange for his disclosure of the invention because doing so will at least allow other inventors to learn the patented knowledge and build upon it.

Now Techdirt makes clear that I’m an idiot: “Defenders of the patent system quite frequently point out that one of the main benefits (some claim the only benefit) of the patent system is ‘disclosure.’ That is, because the patent system requires you to disclose your patent, the patent system is quite helpful in spreading ideas. This is a myth that’s easily debunked on a few points.”  First, you’ll bother applying for a patent for your invention only if you know the invention will be figured out anyway.  Otherwise, why bother?  Second, since the penalties for knowingly infringing a patent are so much worse than accidentally infringing, companies actually discourage their employees from examining patents.  The companies are better off if there’s no proof they actually knew about any patents they infringe.  Finally, “Slashdot points us to a Microsoft employee admitting that looking at patents is a total waste because they never actually disclose anything useful:

When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section — the only section that counts — was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.

Don’t be fooled again.

One way we’ve been bamboozled by the myth that regulating financial markets is bad is by allowing ourselves to be convinced that “hedge funds” and the like are just too sophisticated for simple folks like us to understand. So we don’t even try to understand them. What happens? They steal us blind.

In 2005, law professor David Skeel, in “Behind the Hedge,” simply explained what hedge funds are, why and how they are unregulated, and their pernicious effects on our economy. I wish I could say now, three years later, that his conclusions showed him to be hysteric:

[T]here is a cost greater than lost dollars for all these practices . . . . It is the danger that investors will lose confidence in the markets because the markets are rigged. “People will not entrust their resources to a marketplace they don’t believe is fair,” an American Bar Association task force said 20 years ago in a study of insider trading, “any more than a card player will put his chips on the table in a poker game that may be fixed.” The same holds true today. If investors’ faith in the integrity of the markets is shaken, some will pull their money out, meaning less money will be available for American corporations to invest in ways essential to the nation’s prosperity. Investors will also be unwilling to pay as much for stocks or bonds in initial or subsequent public offerings, making it more difficult for companies to raise money for expansion or the creation of new technologies and products. The effect on the markets, and on the American economy, would be devastating.

It’s Veterans Day

Repeat after me: being a good lawyer means doing good for the client.

Time Ferris, in his post How Not to Use a Lawyer, explains well how lawyers can serve their clients.  Ferri’s observations are a “personal case study” provoked by an obnoxious letter from a laywer representing a business Ferris had actually spoken positively about in his book.  The lawyer had a legitimate request to make to Ferris regarding the specifics of Ferris’s written statement, but the letter was so obnoxious all it did was end up hurting the lawyer’s client.  Ferris’s points:

1. How you say something IS what you say.

2. It’s counterproductive to threaten someone until you determine their incentives to refuse compliance.

3. It’s better to steer the golden goose rather than kill it.

4. Don’t mistake symptoms with root problems, or confuse correlation with causation.

5. If you threaten someone in a digital world, it might become what your prospective customers see first.

If criminals are criminals because they seek profit, what do you do if you want to prosecute people for acts they commit with no intent to make money? You change the law.

Back in May of 2001, two federal prosecutors wrote “Novel Criminal Copyright Infringement Issues Related to the Internet” (David Goldstone and Michael O’Leary, USA Bulletin, May 2001) to provide Department of Justice (DOJ) lawyers with guidance in prosecuting criminal copyright infringement  cases.  The memorandum is already so dated that much of its discussion seem almost naive (about, for example, the online posting of copyrighted materials).  Nevertheless, it points out one more way that the change of the material reality governed by the law requires changes in the law.  Typically, non-violent crimes are illicit efforts to make money.  Thus, criminal statutes against non-violent crimes almost always require prosecutors to prove the defendants intended to profit from their allegedly illegal activities.  But, as the DOJ memorandum points out, the law relating to online copyright infringement needed to be changed because of a remarkable new wrinkle: many defendants committing their alleged acts of criminal copyright infringement via the internet do so without any intention or hope of gain:

Infringement without profit motive is far more common in cases of Internet-based copyright infringement than it is in the physical world. Until recently, the prosecution was required to prove that copyright infringement was done willfully and for commercial advantage or private financial gain. Now the law provides for prosecution in the absence of these monetary considerations.

Friday Night Music Club: Yo La Tengo, “The Whole of the Law”

Do we really want to treat artists like shoplifters?

Effective lawyering, like any effective practice, requires choosing the right objective.  There are less charitable ways to think of this strategy.  I could just as easily write that effective lawyering requires choosing the right victim.  You don’t sue someone who will beat you, no matter how righteous your cause.  Sun Tzu made this strategy plain: “If your enemy if superior in strength, evade him.” The Art of War (ch.1, v.21),  That’s why, for example, I don’t think Metallica will sue Girl Talk even though Girl Talk makes music by sampling the recordings of a myriad of artiststs that include litigants as aggressive as Metallica.  Girl Talk’s work may consist entirely of sampled copyrighted works, but it is work constructed so creatively that it constitutes something genuinely new and creative, something, in the words of the law, that is “transformative” of its copyrighted materials.

Girl Talk is like Jeff Koons.  In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the United States Court of Appeals for the Second Circuit ruled that Jeff Koons’ appropriation of a copyrighted photograph in a painting did not infringe the photographer’s copyright because Koons’s use of the photograph was “transformative”:

Koons is, by his own undisputed description, using [the copyrighted photograph] as fodder for his commentary on the social and aesthetic consequences of mass media. . . . When, as here, the copyrighted work is used as “raw material,” . . . in the furtherance of distinct creative or communicative objectives, the use is transformative. . . . His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “in the creation of new information, new aesthetics, new insights and understandings.”

Instead of going after the artists like Girl Talk and Jeff Koons, copyright holdlers (typically large media conglomerates) go after victims they think they can beat into submission.  Thus, for example, Prince’s music company, Universal Music Group, sought to remove the 29 second video of a mom’s son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”).  Other people think suing college students for illegally downloading music is the right strategy for resolving the inevitable conflicts posed by the clash between our new technologies and our old copyright laws.  College students don’t have the money to defend lawsuits brought by media companies.  And, the thinking goes, if a bunch of defenseless law students are deterred, everyone else will fall into line:

In a lot of ways, downloading is more like shoplifting than it is like “piracy,” the term often used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an exciting and slightly risky diversion – a relatively petty vice in an otherwise law-abiding life.

The recording industry will have to use similar tactics, and like retail stores, they will have to live with a small loss from undetected stealing. But that loss can be minimized, through warnings, monitoring, and enforcement. And word of enforcement spreads. . . . Few students will keep downloading once their classmates have famously gotten in deep trouble for doing just that. That is good for them, but even better for us. . . .

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

There is a big problem with this reasoning.  The use of copyrighted materials without permission is not like shoplifting.  Intellectual property is not tangible property, and the law does not equate the two.  As I wrote just yesterday,

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose of the fair use doctrine,

The problem is a real one.  I have a new friend, Cathy Vogan, who has created Futurisms, a film that uses the song Que Sera Sera as a jumping off point to comment on the song’s naivete in the face of Reality.  I think Futurisms is a genuinely creative work.

But Facebook has removed Futurisms from its site, and while the company gives my new friend an opportunity to file a “counter-notification” contending that she has a right to have her film posted, when she looks at what she must declare to file the counter-notification, she sees, in her words, “a scary legal word: ‘perjury,’ and wonder[s] what will happen to me if I proceed.”

Who can blame her?  Should she take on Facebook?  She is a struggling, but fairly well-known video artist with 8 international awards who has never sought to make money from her creative work.”Futurisms” was completed a few months ago, and has never been shown anywhere, besides her website and Facebook.

Stephanie Lenz took on Universal Music Group and won. Thankfully, she had the help of the Electronic Frontier Foundation.  What should Cathy do?  I think she should file her counter-notification.  “Perjury” requires lying, and as long as she doesn’t lie, there’s no harm in filing the notification.  The worst that can happen is that Facebook will refuse to alter its position.

But do we really want to treat artists like shoplifters?

ADDENDUM: Cathy filed her counter-notification, and Facebook has restored FUTURISMS.  Here it is too:

Protecting copyright through new technologies must accomodate our constitutional rights to free speech.

We are, of course, in the midst of a conflict between existing intellectual property laws and the radical changes to the material conditions on which those laws were built. Producers of music and video scream bloody murder because their products can be reproduced and disseminated at little cost, an entirely different situation than when that reproduction required expensive equipment and copies could only be sent out in phyisical form one at a time.

These are truisms, but they are the truisms that are at the basis of the intellectual property wars through which we are living.

There’s a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot. According to Computerworld, “MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.”

In other words, if you upload a copyrighted clip, the new technology will insert advertising into the clip whether you want it there or not. The motivations of the copyright owners are obvious. They want money for the use of their copyrighted materials, which they consider their “property.” But, while copyrighted materials are “intellectual property,” they are not property in the sense that real estate, money, and cars are property.

Here’s the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owner’s “property” rights.

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001).  In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court). (And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation League.)

So here’s the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived from their copyrighted works does not make my speech theirs; it does not give them the right to inject their advertisements into my own creations. They may think I’m stealing their property if I take a sample of one of their copyrighted works and use it to create something new. I think they’re wrong. But I also think they’re doing the equivalent of putting a billboard on my front lawn when they put their advertising in that new creation of mine. And I think that’s wrong too.

U.S.A. Post-Election Music Break — Nina Simone, “Feeling Good.” And Aeschylus: “He who learns must suffer. And even in our sleep pain that cannot forget falls drop by drop upon the heart, and in our own despair, against our will, comes wisdom to us by the awful grace of God.”

This Land is Your Land

Nobody living can ever stop me,
As I go walking that freedom highway;
Nobody living can ever make me turn back
This land was made for you and me.

Proceedings of the Old Bailey, 1674-1913

I just discovered The Proceedings of the Old Bailey, 1674-1913, a fully searchable edition of the documents from the 197,745 criminal trials held in London’s central criminal court during that period.

According to John Langbein, the Proceedings are “probably the best accounts we shall ever have of what transpired in ordinary English criminal courts before the later eighteenth century”. Although initially aimed at a popular rather than a legal audience, the material reported was neither invented nor significantly distorted. The Old Bailey Courthouse was a public place, with numerous spectators, and the reputation of the Proceedings would have quickly suffered if the accounts had been unreliable. Their authenticity was one of their strongest selling points, and a comparison of the text of the Proceedings with other manuscript and published accounts of the same trials confirms that what they did report was for the most part reported accurately.

The database is a treasure trove for historians and the curious.  A random search for a topic of some interest to me, stock fraud, undearthed the case of “Richard Slocombe the younger, who was indicted for feloniously and deceitfully impersonating” his father, thereby securing for himself £50 of the £450 worth of “South Sea Annuities” owned by his father.  The records include transcripts and summaries of some of the trial testimony.  Here is the report of Mr. Slocombe’s testimony in his defense and the testimony on his behalf by his uncle.

Prisoner’s defence:

From what I had conceived and collected from discourse between my father and mother, this was mine upon my coming to age; my father is at these years reduced to a degree of insanity, he cannot recollect one half hour what he spoke the last; I am fully persuaded if my mother and sister were here, they would coincide perfectly in what I advance in every respect; as to the transfer, I signed nothing but my own name; if I had been conscious I was doing wrong, I should have made but one transfer, and took all the money at once; I did not act with any view of defrauding, therefore I most humbly hope you will take it in the most favourable consideration and construction; I am not particularly desirous of calling my father.

To his [Slocombe's] character:

John Pierce . I am the prisoner’s uncle; I never knew but that he always bore a good character, he was always very dutiful.

Richard Slocombe the younger was found guilty and was executed.

Is Google no longer the Copy-Left’s white knight?

Google has been a very interesting company to anyone concerned with copyright law.  Google has taken on lawsuits raising issues others don’t have the resources to fight over, and Google has been very effective in making good arguments in those cases.  Fred von Lohman now wonders if those days are gone:

Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. . . .

The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. . . .

Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google’s legal investments have paid dividends for the entire Internet innovation economy.

Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem – but not anyone else’s. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.