The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA, even though it won $1.92 from a jury, surely wants her to, likely for any price.

Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.

We can only “fix” the medical malpractice “problem” if we fix all the problems we use medical malpractice to address. Universal coverage and medical malpractice cannot be separated from one another.

Walter Olson asks what we’re getting from our medical malpractice system — with “jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery” — that Canada, at 10% of the cost for its medical malpractice system does not. It’s only part of the question. Olson quotes Richard Epstein, who states “American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.”

Why is this going on? Is it just madness? Of course not. What Epstein and Olson ignore is that patients in Europe and Canada have national health insurance that will pay for the costs of medical care necessitated by inevitable — even if honest and non-negligent — bad outcomes that result from medical malpractice.

We can’t just “fix” the malpractice “problem” unless we fix the problem of being sure patients who suffer bad medical outcomes (a risk we’re all exposed to) being unable to pay for the care required by those outcomes. Why does Canada only spend 10% what the U.S. does on malpractice? Because Canada has national health insurance to pay for that care.

It worked for businesses with workers’ comp. Why not a no-fault liability system to pay for medical care and other consequential financial loss flowing from any bad medical outcome?

Yes, lawyers need to be experts in design and typography too.

I always tell my students that one of the reasons the first year of law school is so difficult is that they come to law school thinking their time and effort will be completely exhausted by the effort to learn all the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case law and regulations and secondary source interpretations to find the rules. Applying them is a whole different thing. That’s probably the hardest part.

But one of the most difficult parts of lawyering, one most students take a particularly  long time to grasp, is that you have to pay attention to everything. So you act like a professional: you show up on time; you use professional language, not the language you use with your friends or on Facebook; you take criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to be a good lawyer, not to earn a good grade.

It never ends. But that’s okay — there’s just always room to get better.

And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. I’m very impressed by his recognition of the reason his expertise is needed. He explains that using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm Beach County, Florida as an historic example of the bad consequences of bad design.

What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be to fail to appreciate that the defect would likely have been known and its consequences guarded against, according to Edward Tufte, if the charts presenting the critical information to the decision makers had been rationally designed. Tufte’s expertise is in the effective use of graphics in conveying information. He’s a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.

When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70’s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

“Expert” is only a name; an “expert’s” ideas are only as good as the ideas themselves.

This is the honest truth: back when the Napster case was pending on appeal (the appeal Napster would eventually lose), I was teaching a legal writing class and the problem was about copyright and fair use in connection with a web site that used posted exerpts of copyrighted works and also an online “bulletin board” (it was that long ago) for discussion of the works. I told my class that I thought that if the music industry had any sense they’d put significant excerpts of every work in their catalogs in streaming audio next to a button that would allow electronic download of an mp3 file of each song for a price.

I bring this up not to boast that I am some brilliant businessperson who would’ve wisely been picked up by Apple to help produce iTunes. I have no doubt I’d read the idea a hundred different places and that it sounded good to me. So why do I bring it up?

The students reacted this way: it’s a stupid idea; if it weren’t, the music companies would’ve done it already. What would I know that they don’t? I was left almost speechless. I asked them if they really believe that people who do things necessarily know what’s best with respect to doing those things. They apparently did. I told them I thought that it was very important that they learn that just because an “expert” thinks certain things about his area of expertise doesn’t mean that a non-expert can’t have better ideas, and that it certainly isn’t the case that an entire industry necessarily does business in the best way it could.

I was reminded of all this when I read at Ars Technica that “Geoff Taylor, head of UK major label trade group BPI, wrote an op-ed piece for the BBC today in which he called Napster the ‘Rosetta Stone of digital music,’ said it was ’simple to understand and use,’ and said that the music industry should have ‘embraced Napster rather than fighting it.’”

Lawyers need to learn EVERYTHING.

A student complained to me yesterday that he was being penalized on his law exam because he didn’t know as much about the world as other people. I laughed. I would imagine that greater knowledge about the world would lead to the better performance in any occupation. But the complaint highlighted something unique I think to law. First, law does not stand alone — it only operates in connection with specific activities. If you’re a lawyer for an investment banker, you better understand credit default swaps. If you’re a lawyer for a real estate developer, you better know an awful lot about building. If you’re a family lawyer, a heavy dose of sociology and psychology would be very helpful. Lawyer need to be experts about the REALITY they are acting as lawyers within. The rules are the easy part. The hard part of lawyering is figuring out how to take evidence and use it effectively to interpret and apply those rules. The more you can explain persuasively what and why things happened, the more you can persuasively argue what the law means when it applies to what happened.

It also highlighted part of what I love about law. Every client, every problem, and every transaction requires me to learn about people and things that  I never knew before, often about people and things I had no clue even existed. The world is a very interesting and complicated place, and there’s no end of learning.

The fact my students know a lot less than I do is no surprise. Most of them are more than 25 years younger than I am. But they need to know that they always need to learn more and that I’m not penalizing them for not knowing things they haven’t been exposed to — I’m teaching them that the more they’re exposed to the better they’ll perform as lawyers.

John Lennon: an original, or a remixer? Or are they really the same?

Consumer Protection: an old idea that’s new again.

It is remarkable how much times have changed, and how quickly. Since the election of Ronald Reagan the legal common wisdom has been that allowing individuals to enter into whatever agreements they wish, no matter how risky, leads us to the best of all possible worlds. Most usury laws became irrelevant. If you wanted to borrow at a ridiculously high interest rate, who was the government to say you couldn’t? I’ve been told that my opposition to that common wisdom was a belief that people are stupid. I suppose that’s one way to put it, but I certainly don’t except myeslf from the group I am judging. Saying I think people are stupid is just a way of saying I’m arrogant, paternalistic, and think I know what’s better for others than they do themselves. But give people the opportunity to take irrational risks, and they will. Give enough people enough opportunities to take irrational risks, and you put the entire society at risk. So now we’re speaking again (as we began to back in the Sixties)  in terms of consumer protection — laws limiting what terms consumers can be bound to and requring that whatever terms are agreed to are agreed to openly and plainly. Such regulation supplements the common law of contracts, which is founded on the idea of freedom of contract — precisely that individuals are free to make whatever stupid deals they wish. You want to sign up for a credit card with a 29% APR? Who am I to stop you. But there’s nothing wrong with limiting freedom of contract to some extent — it likely strengthens another core principal of contract law: that we should enforce contracts because they are agreements people consciously and intentionally enter into.

From the New York Times:

The federal consumer protection system failed the country, disastrously, in the years leading up to the mortgage crisis. One big cause was the sharing of responsibility for compliance with laws and regulations among several agencies that communicate poorly with each other and tend to put the bankers’ interests first and consumer protection second — if they pay attention to it all.

The Obama administration was right on the mark last week when it recognized this problem and proposed a solution: consolidating the far-flung responsibilities into a strong, new agency that focuses directly on consumer protection. The plan, modeled on a bill already introduced in the Senate by Richard Durbin, Democrat of Illinois, deserves broad support in Congress.

Compliments are worthless, and losing is winning: lawyering in a nutshell

From The Namby Pamby, Attorney at Law, comes this story, which sums up concisely both what so much of legal practice is about and why it is so often difficult for students to grasp exactly what it is they’re supposed to be doing:

Eight months, untold amounts of hours, it all came to this

For the second time in the last month, my brief writing was complimented by a judge:

“Counsel, this was excellently briefed, well done…I’m going to deny your motion.”
Thanks.

The lesson here is to beware the judicial compliment.

The reality is that even though we lost our motion, we did serious (perhaps fatal) damage to the opposing side. My boss was happy. Ergo, despite my failure at a judicial declaration of winning, we still won.

Doesn’t art require the use of symbols that resonate with the culture? J.D. Salinger and his “ownership” of Holden Caulfield compared to Shakespeare and his theft of King Lear.

I may be a minority, but I find it odd to think a literary character, rather than the work he appears in, can be copyrighted. Nonetheless, the judge hearing J.D. Salinger’s lawsuit seeking to block publication of 60 Years Later: Coming Through the Rye apparently thinks Holden Caulfield is “a portrait by words.” Funny, I might think of Catcher in the Rye as analogous to a painting, but the character himself?

Holden Caulfield is a cultural icon of adolescent alienation (or at least was at one time). Can no creative work employ him as a symbol with resonance for an entire generation without J.D. Salinger’s permission (that, by all appearances, he would never grant)?

A lot of great art would never have been created if that were the case. Thinking these thoughts, I came across this, from Groklaw (via techdirt):

I was goofing off, looking up some information on Wikipedia on King Lear, and here’s what struck me. If the current US Copyright Law had been in effect over Shakespeare, I think he could have been sued by many authors for copyright infringement for writing that masterpiece.

Count how many lawsuits there could have been just for King Lear alone:

Shakespeare’s play is based on various accounts of the semi-legendary Celtic mythological figure Lear/Lir. Shakespeare’s most important source is thought to be the second edition of The Chronicles of England, Scotlande, and Irelande by Raphael Holinshed, published in 1587. Holinshed himself found the story in the earlier Historia Regum Britanniae by Geoffrey of Monmouth, which was written in the 12th century. Edmund Spenser’s The Faerie Queene, published 1590, also contains a character named Cordelia, who also dies from hanging, as in King Lear.

Other possible sources are A Mirror for Magistrates (1574), by John Higgins; The Malcontent (1604), by John Marston; The London Prodigal (1605); Arcadia (1580-1590), by Sir Philip Sidney, from which Shakespeare took the main outline of the Gloucester subplot; Montaigne’s Essays, which were translated into English by John Florio in 1603; An Historical Description of Iland of Britaine, by William Harrison; Remaines Concerning Britaine, by William Camden (1606); Albion’s England, by William Warner, (1589); and A Declaration of egregious Popish Impostures, by Samuel Harsnett (1603), which provided some of the language used by Edgar while he feigns madness. King Lear is also a literary variant of a common fairy tale, in which a father rejects his youngest daughter for a statement of her love that does not please him.

The source of the subplot involving Gloucester, Edgar, and Edmund is a tale in Philip Sidney’s Countess of Pembroke’s Arcadia, with a blind Paphlagonian king and his two sons, Leonatus and Plexitrus.

How many lawsuits do you see? At least a half dozen? I even see some methods and concepts claims, if we view it with modern copyright owner eyes. Remember J.K. Rowling’s litigation over methods and concepts that Darl McBride and Chris Sontag cited? I suppose he could have raised a transformational fair use claim. But what if he accessed the prior works in digital format? Does fair use exist there? Or maybe they’d have been DRM’d. He’d maybe then never have read them.

Of course, what really would have happened is there never would have been a King Lear written. It would have been too legally risky. You can go to jail for copyright infringement, after all, even if you are noncommercial, if you distribute a DVD, and if we are imagining, let’s imagine Shakespeare did that. Shakespeare wasn’t even noncommercial. And there are criminal sanctions under regular Copyright Law, too.

If Shakespeare had plenty of money, he could have contacted all the copyright owners and paid them whatever they asked, but if he didn’t have enough money, the result would have been he would have been unable to afford to write King Lear. Do we want a world where Shakespeare can only write King Lear if he has money? If you think I exaggerate, remember what happened to internet radio? And if one song is worth $80,000, is the sky not the limit, if you are a copyright owner and hold all the legal cards and can get Congress to keep upping the ante to suit you?

Do you know you’ve agreed that Amazon can decide you’ve agreed to something other than what you agreed to?

I teach contract law. One of the most interesting issues in contract law is the extent to which it is based on conscious agreement. Theoretically, two free individuals are at liberty to agree to govern their relationship with respect to any given matter (the sale of a car, the division of assets in a divorce, the employment by one of another, the limitations on the use of materials posted by one on a web site governed by another) in any way they agree.

One problem with this theory is that so few of our contractual relationships are based on anything resembling conscious agreement. When is the last time you read a rental car agreement? The agreement governing use of your credit card? (Well, we might all be doing that more these days.) The terms of service governing your Facebook account?

The vast majority of us never read the terms of service governing our use of commercial web sites. Yet there is little question we are bound to them and that we entrust them with our creative work and our information we want to keep private. More surprisingly, perhaps, when we agree to these terms of service we almost always agree that the service provider can change the terms unilaterally. In other words, we are agreeing that our relationship with the web site will be whatever the web site decides that relationship will be.

As Plagiarism Today explains:

[I]t is standard practice for many sites to silently change their terms of service as the terms itself allow them to do. Users are often unaware of potentially worrisome changes until after a problem has arisen, when it is often too late to do anything about them.

But now the Electronic Frontier Foundation has created “‘TOSBack‘”: a ‘terms of service’” tracker for Facebook, Google, eBay, and other major websites”:

At www.TOSBack.org, you can see a real-time feed of changes and updates to more than three dozen polices from the Internet’s most popular online services. Clicking on an update brings you to a side-by-side before-and-after comparison, highlighting what has been removed from the policy and what has been added. . . .

“Some changes to terms of service are good for consumers, and some are bad,” said EFF Senior Staff Attorney Fred von Lohmann. “But Internet users are increasingly trusting websites with everything from their photos to their ‘friends lists’ to their calendar — and sometimes even their medical information. TOSBack will help consumers flag changes in the websites they use every day and trust with their personal information.”

Doing justice versus making rules.

There is a tension in the common law between doing justice in an individual lawsuit and articulating rules of general application that can guide decisions in future cases. The beauty of the common law system, however, is that the primary goal is to do justice in the individual case. Civil law, the system that governs in non-Anglo-American countries, on the other hand, relies on a civil code of general application that provides predictability but often at the cost of individual justice.

One consequence of the common law system is that a “rule” articulated by a court in one case to reach the proper result in that one case can often be modified in a subsequent case in which the facts differ in a way that would make it unjust to merely apply the earlier “rule.”

One of my problems with Supreme Court jurisprudence in recent years has been that it has lost sight of this principal purpose of common law judging: to do justice in the particular case before before the court. The justices seem often more concerned with formal, abstract consistency than justice, an emphasis that to this common law lawyer seems very misplaced.

No more blatant example of this distinction exists than the Supreme Court’s recent decision in Caperton v. Massey (pdf). Thankfully, by a 5-4 decision, the Supreme Court reached what plainly was the right result, but Justice Roberts’ dissent (joined by Justices Alito, Thomas, and Scalia) epitomizes the ways striving for abstract, intellectual consistency can do violence to what, plainly, is common sense justice.

Caperton began in West Virginia, where a jury found the A.T. Coal Co., Inc. liable for $50 million for fraudulent misrepresenta-tion, concealment, and tortious interference with existing contractual relations. Knowing the West Virginia Supreme Court would consider an appeal of the verdict, Don Blankenship, Massey’s chairman and principal officer, contributed $3 million to the campaign of Brent Benjamin, who was running for the state Supreme Court against an incumbent. The $3 million contributed by Blankenship exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won the election by fewer than 50,000 votes.

Subsequently, Caperton, who had won the $50 million verdict, moved 3 times to disqualify Benjamin from hearing the appeal of the verdict. Each time, Benjamin himself denied the motion. Benjamin also turned out to be the deciding vote that resulted in a reversal of the verdict against Massey’s company.

Apparently, as they say, money talks. There is, however, a constitutional right to “due process” under the Constitution, and, accordingly, Caperton appealed to the Supreme Court, which held, as anyone with any sense would hold, that Judge Benjamin could not be counted upon to be a fair and impartial judge of an appeal of a $50 million verdict against the man who got him elected. Justice Kennedy, writing for a majority of the Court, concluded that the primary legal quesiton is whether “under a realistic appraisal of psy-chological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”  Kennedy concluded: “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significantand disproportionate influence in placing the judge on the case byraising funds or directing the judge’s election campaign when thecase was pending or imminent.”

Justice Roberts, jointed by Justices Scalia, Thomas and Alito, on the other hand, ignored the egregious facts before the Court because requiring disqualification based on a “probability of bias,” is a standard that “cannot be defined in any limited way.” Thus, Roberts complains, “[t]he Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required.”

I think Roberts is full of it. Any law student knows that common law rules often turn on standards such as “reasonableness” and “probability.” What do we know based on Caperton? We know that deciding a case in favor of the man who has contributed more than 50% of the funds to get you elected to the bench is enough to establish a “probability of bias.” That hardly seems arguable. If it means we’ll get other cases arguing for a “probability of bias” under facts far less probabitive of such undue influence, the courts can deal with those cases by hearing the evidence and determining, using common sense and the guidance of precedents such as Caperton, whether there is or is not a probability of bias.

But Roberts, Scalia, Thomas, and Alito would prefer to let stand a travesty than to burden the courts with deciding exactly the kinds of questions the courts decide every day. That’s not doing justice, and it certainly isn’t common law justice. I’m not sure what it is.

The (Iranian) Revolution will not be Televised

Gil Scott Heron’s song seems timely these days:

$1.92 million penalty for illegally downloading 24 songs.

From cnet news:

Jammie Thomas-Rasset was found guilty of willful copyright infringement on Thursday in a Minneapolis federal court and must pay the recording industry $1.92 million. In a surprise decision, the jury imposed damages against Thomas-Rasset, who was originally accused to sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing.

If you can’t type well, you’re inarticulate.

A message I emphasize to my students: learn how to use the tools of your trade as well as possible. So, for god’s sake, if you don’t know how to “track changes” in your word processing program, learn how. If you don’t know how to unjam the photocopy machine you use regularly, learn how. Matthew Homan has good advice in this vein on Twitter, advice I’ve been trying to get through to my son — learn how to type well:

The keyboard is now the optimal communication tool of your life. Typing < 60wpm is like talking w/your mouth full of marbles.

Google’s Library of Babel and its opponents.

Steven Shankland has written a good piece on the proposed settlement of the lawsuits over the Google Library Project; the proposed settlement is “now under review by Judge Denny Chin of the U.S. District Court for the Southern District of New York.”

Under the proposed settlement, the owners of copyrights in books would need to opt out of the project to prevent Google from including those books in its Library database, which is being compiled by scanning the libraries of several major insitutions around the world. As Shankland points out, “that means essentially that Google would be permitted to show content from in-copyright, out-of-print books and sell online copies of those books even without an explicit agreement with the books’ rightsholders.” Copyrighted, out-of-print books constitute approximately 70 percent of the books in the library collections Google is scanning, and that 70 percent includes the vast majority of “orphan works” in those libraries. Orphan works are works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.

Nevertheless, some authors continue to oppose the Google Library Project:

“Under the actual law, it is Google’s burden and not yours to ask you for permission and then fairly negotiate terms of contract acceptable to you personally, not jam some monstrosity down your throat,” said Lynn Chu, a literary agent with Writers’ Reps who also called the proposed settlement a “ripoff for authors” in a Wall Street Journal opinion piece.

As a business matter, I don’t understand the view Chu expresses, as I’ve previously written. Why would someone whose work is out-of-print not want that work accessible to the general public? And if that someone wants to keep his work in the obscurity resulting from being out-of-print and available only at some far off insitution’s library, he can always opt out. Chu says that the “actual law” requires Google to ask permission first, not for the copyright holder to deny permission, but the wonderful thing about contracts (and a settlement is a contract) is that they can be a means parties have of altering the rules that govern their relationships in the absence of agreement.

I’ve been a fan of the Google Library Project since it was announced in 2003. It promises to make available for search the collections of many of the greatest libraries in the world. Google will only be able to display brief snippets of works that are in print and under copyright, but even that access will make known to researchers the availability of sources they never otherwise would have been able to find. The Project is one of those endeavors that make the internet and the digitization of information truly revolutionary and magical. It would be a shame if copyright law founded on old technologies and the unfounded knee-jerk reactions of copyright holders (it’s mine, and that means you can’t do anything with it without my permission!) were to end up preventing the realization of revolutionary magic.

Finally, Shankland points out that there is concern over the settlement because it would give Google an advantage over competitors: “Microsoft, Amazon, or the Internet Archive . . . –without their own handy class-action settlement [--] would be have to try to seek such permission in advance from each rightsholder or risk copyright infringement litigation.” But if copyright holders and their representatives are willing to reach this settlement with Google there’s no reason to suppose they wouldn’t with Microsoft, Amazon, or the Internet Archive. Google’s competitive advantage is the result of its initiative and daring in starting the Project in the first place and developing technology (including new scanning technology) to make it truly possible. Advantages gained by daring and initiative should be rewarded by the law, not stymied.

How does legal innovation occur? Slowly, by looking to the laws of other countries, and by disguising innovation as interpretation.

In “Inventing Invention: A Case Study of Legal Innovation,” Professor John F. Duffy recognizes that change and evolution in law are taken for granted but rarely studied in depth: “Legal change is treated as if it is something that just happens-that follows inexorably from the emergence of social needs and changed social conditions.” Duffy’s article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be “non-obvious.”  Duffy identifies in the development of this major legal innovation several characteristics he believes could be generalized to a lot of legal innovation:

(1) “Nation-states do not seem to create new legal conceptions independently nearly as frequently as they borrow them from other nation-states.”

(2) “Nations with similar legal cultures and industrial capabilities, such as the United States and England, sometimes maintain significant differences in their law for periods of decades. The speed of convergence on a single ‘common’ law seems extraordinarily slow.” This deliberate pace seems to be the product of a wait and see attitude: “because [one country does] not know whether the innovation is a pathbreaking and salutary development, like obviousness, or a disastrous experiment that will eventually be discarded,” it will wait and see the results.

(3) Courts are wary of the criticism often directed at them for “making policy” rather than merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores the fact that a strike zone is rather well defined, whereas law is full of open-ended standards (the requirement of “due process,” for example), gaps that do not fit cases that courts must decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: “even when courts are trying to change the law, they often deny that they are doing so by creating clever reconstructions of the language that previously defined the relevant doctrine.”

The justice system complements the political system: Climate Change and Human Rights.

The University of Washington School of Law recently hosted a conference entitled Three Degrees: The Law of Climate Change and Human Rights. In the words of the conference organizers:

Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and this conference will create an international forum to thoroughly test the available remedies, raise the legal issues associated with these remedies, and collaborate over necessary advancements in the law.

Dan Bodansky raises an interesting question about using human rights law to address the problems posed by climate change: wouldn’t the focus on individuals through the use of legal remedies detract from the big-picture policy approaches that are most needed?

Climate change mitigation involves tremendously complex tradeoffs between different values. Focusing on particular individuals or cases, or on particular human rights, can obscure these tradeoffs, making sensible policymaking difficult. Although emphasizing the effects of climate change on human rights may be a useful means of mobilizing public concern and of prodding the political process, a solution to the climate change problem will, in the end, require political decisions by states, both nationally and internationally.

I appreciate Bodansky’s preference for large-scale political movements, but I think that law-making directed prospectively at the level of a political entity (city, state, country, etc.) can and is complemented by legal remedies for individual harm. Again and again I marvel at the blindness of doctors, for example, who direct their wrath at the legal malpractice system without considering the functions the system serves above and beyond punishing doctors. A patient injured by a medical procedure needs to bear the cost of taking care of his injuries regardless of the doctor’s fault. Given the absence of universal health care and the inadequacy of much of the existing health insurance in this country, is it any wonder that juries are likely when they have the chance to choose to have the doctor’s insurance carrier pay for the injured patient’s care? We all face the risk of bad outcomes from medical procedures; doesn’t it make perfect sense to socialize that risk, to have us all share it? Until we come up with a way to do that other than the malpractice system, individual justice is the best we’ve got.

So I would say to Bodansky: unless and until we have the most effective policy solutions to the problems posed by climate change, individual, case-by-case remedies for harm caused by climate change can only help.

Robert Johnson made no deal with the devil; he listened to and learned from his colleagues.

In “Beyond Authorship: Refiguring Rights in Traditional Culture and Bioknowledge,” the Case Western Reserve University English Department’s Authorship Collaborative (building on the work of my colleague and friend Martha Woodmansee) explains that the prevailing view of an author as the originator of new works is a relatively recent phenomenon arising out of the Romantic Movement and its view of an artist as someone uniquely inspired. This view of authorship stands in stark contrast to an older view becoming new again in today’s remix cutlure — a view that creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”; reprinted in Woodmansee, The Author, Art, and the Market, 35-55.

The post I referred to yesterday by Rene Kita noted the tension between the collaborative nature of creation and the Romantic notion of authorship in connection with the Blues: “[Y]ou may ‘create’ a new instance of The Blues by shuffling the notes and words around by a set amount. Shuffle too little and you’re in trouble with the law. Shuffle too much and the purists start screaming rape.”

My former colleague Olufunmilayo B. Arewa makes the point in much greater depth in “Seeing but not Hearing Music: How Copyright Got and Didn’t Get the Blues,” a working paper she recently presented at the recent Conference on the 100th Anniversary of the 1909 Copyright Act. Arewa focuses on Robert Johnson, the musician who remained largely obscure until decades after his death he became known as the greatest and quintessential Blues musician. In Arewa’s view, Johnson is an archetypical example of the way the Romantic view of authorship promotes individual genius over cultural context:

Commentators have so elevated Johnson by using classic language associated with Romantic author discourse that emphasizes the unique genius of Johnson’s compositions. Romantic author discourse has generally played an important role in defining who constitutes an “author” for copyright purposes in part by emphasizing the unique and genius-likecontributions of individual creators. Romantic author assumptions are a primary mechanism by which borrowing and collaboration in creation are minimized or even denied. This vision of authorship has significantimplications for the application of copyright to blues music. The collaborative nature of blues musical composition does not lend itself very well to Romantic author characterizations. In blues practice, the combination of individual performers crafting material from a collaborative tradition is a difficult one from the perspective of current assumptions about creation in copyright. Later romanticization of his musical creations aside, Robert Johnson falls firmly within a blues tradition characterized at least in part by repetition and reuse of existing music and lyrics as a core aesthetic. [Charles Ford, "Robert Johnson's Rhythms", 17 Popular Music 71, 88 n. 57 note 57, at 88 (noting that Johnson borrowed and pasted-in materials much like his predecessors and shaped his pieces into unique and autonomous forms)].The divergence between Robert Johnson’s actual musical practice and later characterizations of both the nature and musical practices underlying his “musical genius” is thus significant. (footnotes omitted)

Why, then, did Robert Johnson, who in Arewa’s view was likely of a piece with an entire genre to African American audiences in the 1920s and 1930s, become known as a genius among musicians comparable to the way Shakespeare is viewed among writers? Because a bunch of white British musicians in the 1960s listened to his recordings and heard something they genuinely had never heard before. In other words, as Arewa explains, perceiving originality in the Romantic sense is more a matter of being ignorant of sources and influences than it is of genuinely discovering independent genius:

Conceptions of Robert Johnson’s work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson’s work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson’s music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and
interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music. (footnotes omitted)

Don’t believe it? Here’s a song by Charlie Patton (1891-1934) and one by Robert Johnson:

The influence (not) of law professors

Justin Hughes, Of World Music and Sovereign States, Professors and the Formation of Legal Norms, 35 LOY. U. CHI. L.J. 155, 157 (2003)(emphasis added):

You want the best indicator of how an American court will decide a major intellectual property case in the Internet era? Look for the amici or parties’ brief with the dozens of law professors  – those theories are how the court will not decide the case.