Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

Law and education must change since the realities they control and shape have changed.

Changes in reality requires changes in the law, in the ways we practice law, and in the ways we teach. What has been Best hasn’t been Best because it is the Best for all time but, rather, because it has been the Best way we’ve figured out how to do what we want under the circumstances that have faced us. Change the circumstances, and what’s Best changes.

Nothing the RIAA does to enforce the interpretations of copyright laws formed when record companies had a virtual monopoly on producing and distributing recorded music is going to change the inevitable consequences of the fact that the technology to produce and distribute recorded music is now available to any individual with a laptop and an internet connection.

Nothing lawyers scream at their clients is going to change the fact that personal expression is more public and more permanent than ever before. All the insistence in the world on traditional rules regarding the formation of contracts isn’t going to change the fact that applying those rules strictly to the online marketplace is going to create a mess.

And nothing is going to change the fact that my students and my kids spend their time differently than I did and want to use different tools to express themselves than I did.

Realizing my son’s obsessions with things that don’t seem to matter (video games) are not necessarily worse than the ones I grew up with (professional sports) might even help me communicate with him about what creativity is.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.

Dan Bull: Dear Lily [an open letter to Lily Allen]

I’m would never argue that sharing for free without any transformative effect an entire copyrighted song without permission is fair use, but there’s a lot to be said for the argument that the anti-file sharing campaign is bad for music. And Lily Allen’s problem was she really didn’t understand what she was talking about.

Let’s get straight the historically profound benefits of making information available online — Scribd this time.

Two days ago I wrote about the court decision holding that the video hosting service Veoh is protected by the ”safe harbor provisions” of the Digital Protection Millennium Act from liability if any of the service’s users upload videos that infringe existing copyrights. One of the reasons Veoh is entitled to those protections is that it uses adequate technological safeguards to police the content its users upload.

So I don’t expect there is much of a chance that a new lawsuit against Scribd, a web site that hosts documents uploaded by its users, will will succeed or even survive a motion to dismiss for failure to state a claim, a procedural device that ends the lawsuit at its very beginning by means of a court determination that even if everything the plaintiff alleges is true she is not entitled to legal relief. As Geek.com reports, the lawsuit alleges copyright infringement by Scribd not because it hosts copyrighted materials but because the software it uses to detect copyrighted materials before they are published on the site allegedly uses copyrighted materials:

A children’s author in Texas has leveled a strange lawsuit against the company, claiming that the company infringes copyright, but not by hosting infringing works on its service.

No, her claim is even weirder: she maintains that Scribd prevents copyrighted material from being placed on the site by copying the text of copyrighted books and other publications into its copyright infringement detection software, which therefore infringes copyright itself!

The claim may not be as weird as Geek.com believes, though it is likely not to survive long. The original legal challenge to the Google Books Project by the Authors Guild and individual authors holding who were identified was premised largely on the contention not that Google was going to make those authors’ copyrighted works available. It wasn’t. It was only going to make those works searchable so that snippets could be brought up by researchers who could thereby identify and by library loan or purchase obtain relevant works they never otherwise would have found without traveling from Palo Alto, California to Ann Arbor, Michigan to Oxford, England. So what was the problem? The authors alleged that the fact Google was copying their works in their entirety to create the database that would yield the snippets constituted copyright infringement.

And in A.V. v. iParadigms, LLC, 544 F. Supp. 2d 473 (E.D. Va. 2008), aff’d in part and remanded, F.3d 630(4th Cir. 2009), plaintiffs were students who alleged that iParadigm’s Turnitin plagiarism detection system — used by schools throughout the country to detect plagiarism committed by students — constituted copyright infringement. Schools that use Turnitin require each student turning in a paper to submit it through Turnitin. Turnitin then compares the paper to its database and prepares a report that rates the similarities of the paper to papers in its database. In addition, Turnitin adds the paper it is rating to the database, thereby constantly growing and increasing the effectiveness of that database.

The students alleged that they owned the copyright in their papers and that IParadigms was infringing those copyrights by copying those papers and using them as part of the Turnitin database. But last March the federal court hearing the lawsuit dismissed it.

There are several interesting points to make about the decision. First, I read the trial court decision (that was later affirmed by the U.S. Court of Appeals for the 4th Circuit) on Scribd (here). Scribd is a tremendous resource for me — a lot of legal documents are not available online, and a lot of valuable ones that are available online are behind paywalls even though they cannot be copyrighted (including a lot of court decisions). Scribd is a solution to this problem, providing a central clearinghouse where lawyers can upload legal documents to make them available to the general public.

The value of resources like Scribd is one of the reasons I find criticisms like that Chris Castle directed at the decision in the Veoh case so maddeningly unhelpful. If one looks at sites like Veoh and Scribd as doing nothing but making available for free works that people would otherwise pay for, then it is much easier to rant and rave that those sites are nothing but distributors of stolen merchandise and to rationalize a stubborn refusal to admit that copyright must be balanced against strong competing interests in free speech and the exchange of ideas. But if you see these sites as profoundly gratifying resources that make the internet the greatest innovation in the history of information technology, the fact that media companies (and even independent writers, artists, and musicians) can readily identify infringing uses that do slip through detection programs does not seem so profoundly troubling. Those copyright owners can quickly employ the DMCA’s notice-and-takedown procedures, which many criticize as too friendly to the copyright holders.

Why would you use copyright to stifle marvelous new innovations? Copyright exists to encourage, not stifle, invention.

So a legal attack on Scribd, even if it is not as “weird” as it might seem on first blush, is something I will scrutinize carefully.

Second, it seems odd that Scribd would be attacked for committing copyright infringement resulting from a mechanism it is employing to minimize copyright infringement by its users and for which it is rewarded by the immunity conferred by the DMCA safe harbor provisions.

Third, a spokesperson for Scribd, as Wired reports, explains that Scribd does not copy works in their entirety as part of its copyright detection system; rather, it “creates a digital fingerprint, or a ‘hash,’ to identify infringing copies.”

Most importantly, even if Scribd did copy the entirety of the copyrighted works only to use those copies to prevent users from uploading and making available to readers those copyrighted works, the decision holding that Turnitin’s similar use of copies copyrighted materials to detect plagiarism is illuminating. The trial court, affirmed in this reasoning by the 4th Circuit Court of Appeals, explained that “iParadigms, through Turnitin, uses the papers for an entirely different purpose [than those the plaintiff did or could], namely, to prevent plagiarism and protect the students’ written works from plagiarism . . . by archiving the students’ works as digital code.” Thus, while the court recognized that iParadigms profits from its use of the student works, the court found that iParadigms’ use of plaintiffs’ works was “highly transformative” because it adds a “further purpose or different character” to the copyrighted works and “provides a substantial public benefit through the network of educational institutions using Turnitin.” Slip op. at 14.

In affirming the trial court’s decision, the 4th Circuit added to this reasoning and described as “clearly misguided” the argument that   Turnitin’s  use of the plaintiff’s copyrighted papers cannot be considered transformative “because the archiving process does not add anything to the work — Turnitin merely stores the work unaltered and in its entirety”:

The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (concluding that Google’s use of copyrighted images in thumbnail search index was “highly transformative” even though the images themselves were not altered, in that the use served a different function than the images served). [Turnitin's] use of plaintiffs’ works had an entirely different function and purpose than the original works; the fact that there was no substantive alteration to the works does not preclude the use from being transformative in nature.

562 F3d at 639.

So let’s get it straight: what Scribd is doing is of tremendous value to society as a whole. It’s use of copyrighted works to minimize the availability on its site of copyrighted works is entirely different than and in no way diminishes the value of the copyrighted works to the owners of the copyrights. A copyright is not ownership of property like title to a car is — it does not give the owner control over any use of that car the owner doesn’t approve. There are a lot of good reasons for these differences. First, if someone else uses your car, you can’t. If someone else uses your copyrighted work, you can still use it too. If they use it for a use you never would have, what’s your problem? And if that other person’s use is doing a lot of good, why should the law confer on you a power to stop it? (Even your ownership of physical property is limited by restrictions imposed for the social good.) Finally, copyrighted works are works of expression, and we have a constitutional right to free expression. The limitation on copyright imposed by fair use is precisely a means of balancing the copyright holder’s interests against this profound social interest in free expression.

It’s an amazing world. In the name of legal rights that exist to promote progress and innovation, people everywhere are trying to stop revolutionary innovations they plainly don’t realize the value of. One of these days I’ll have to talk about the Google Book Project settlement and the fights raging in connection with it. Some are more legitimate than others. But let’s be clear: Google is trying to make available online for research purposes (not in ways that would displace the markets for the works themselves) the contents of major research libraries from around the world. Doesn’t everyone realize what an amazing and unprecedented advance this is for the life of the mind, for anyone anywhere who ever has had an interest in doing research?

Rules must allow for the inevitability of change: art museums and the doctrine of deviation

I’ve had my disagreements with Donn Zaretsky, the author of the Art Law Blog. But he’s dead on in his criticism last week of objections typified by Eric Gibson’s ”piece in the Wall Street Journal . . . about the Cleveland Museum of Art’s [CMA] request for court permission to use certain acquisition-restricted funds . . . to help complete its renovation/expansion. . . .”

As Zaretsky acknowledges, Gibson is sympathetic to CMA’s plight: “Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time.” I would add that sympathy is worth the paper Gibson’s online piece is printed on. Yes, something has to be done. Maybe from New York an art museum, even a respected one, in Cleveland can be treated with condescension, but as a native Clevelander who happily moved back after 13 years of professional life in NYC, I can appreciate that the Cleveland Museum’s self-description accurately describes the importance of the institution:

The Cleveland Museum of Art means many things to many people. To the residents of Greater Cleveland, it is a beloved civic asset, a place where the community’s greatest aspirations find expression, and a backdrop for many a wedding photo. The museum is a major force in the regional cultural and intellectual community, helping to keep Northeast Ohio a vibrant center of learning and artistic endeavor. As one of the nation’s top museums, the CMA has long exhibited leadership in acquisitions, presentation, and education, and its curators have originated many groundbreaking exhibitions. The Cleveland Museum of Art is renowned the world over for the extraordinarily high quality of its holdings (which are in constant demand for loan exhibitions) and for both the intellectual rigor and the public spirit of its daily activity.

And CMA is no dusty holdover from the days when John D. Rockefeller and his contemporary Cleveland industrialists funded a cultural life of one of the richest and most dynamic cities in the country. Earlier this year, as Gibson also notes, it “completed Phase I of a $350 million, eight-year expansion and renovation plan that, when completed in 2012, will increase the museum’s size by nearly 50%, significantly expand exhibition space, and enhance the museum in other ways.” But, of course, “[l]ast fall, with the start of the second and last phase of the plan on the horizon, the museum found itself caught in what Michael J. Horvitz, the board’s chairman, calls “a perfect storm”: With $138 million remaining to be raised, philanthropy dried up, the credit markets froze, and the museum’s endowment plummeted—to $558.5 million as of June 30 this year from $736 million before the crash.”

Gibson, however, is paralyzed with fear that “the precedent this could set”if the court grant’s CMA’s request to use funds restricted for use to the acquisition of art. You have to to worry about what [art museums] might do if given an opening to finesse the rules governing restricted endowments.” As Zaretsky notes, “Lee Rosenbaum makes a similar point . . . . Cleveland’s actions,” she says, “unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most.”

This is garbage. As Zaretsky points out: “The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum’s application, it won’t be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.” Moreover, the CMA’s has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, to think that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time:

The “opening to finesse the rules” has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven’t exactly been abusing the privilege. Once again, the people who run our nation’s museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.

And the rules set no strict standards. The legal doctrines that grant relief from restrictions on contributions made by donors require that “present circumstances have made it impossible, unlawful, or impracticable to adhere to the original terms of the donation . . . [or] the administrative terms of a gift . . . hamper the accomplishment of the gift’s purposes.” Emmeline Barton, Relief from Gift Restrictions: Cy Pres and Deviation, Harvard Law School Art Law Client Newsletter at 7 (Spring 2007).

I do wish people like Gibson and Rosenbaum would bother, before spouting off, realize that others long ago might not only have shared those opinions but also managed to work their way through to a reasonable way of accommodating the entire range of concerns raised in connection with those opinions. If the CMA can’t convince the court that circumstances merit relief from the restrictions on the funds they want to use, the court won’t let them. And we shouldn’t stop them because we’re afraid someone else might not deserve the same type of relief they’re seeking.

How to come up with new solutions: try out new ways of using old ideas and take chances.

From Guy Kawasaki’s interview with Scott Berkun, author of The Myths of Innovation:

Question: Where do inventors and innovators get their ideas?

Answer: I teach a creative thinking course at the University of Washington, and the foundation is that ideas are combinations of other ideas. People who earn the label “creative” are really just people who come up with more combinations of ideas, find interesting ones faster, and are willing to try them out. The problem is most schools and organizations train us out of the habits.

Question: Why do innovators face such rejection and negativity?

Answer: It’s human nature—we protect ourselves from change. We like to think we’re progressive, but every wave of innovation has been much slower than we’re told. The telegraph, the telephone, the PC, and the internet all took decades to develop from ideas into things ordinary people used. As a species we’re threatened by change and it takes a long time to convince people to change their behavior, or part with their money.

Question: How do you know if you have a seemingly stupid idea according to the “experts” that will succeed or a stupid idea that is truly stupid?

Answer: Don’t shoot me, but the answer is we can’t know. Not for certain. That’s where all the fun and misery comes in. Many stupid ideas have been successful and many great ideas have died on the vine and that’s because success hinges on factors outside of our control.

The best bet is to be an experimenter, a tinkerer—to learn to try out ideas cheaply and quickly and to get out there with people instead of fantasizing in ivory towers. Experience with real people trumps expert analysis much of the time. Innovation is a practice—a set of habits—and it involves making lots of mistakes and being willing to learn from them.

Preaching to the converted or trying to convince the unconvinced? They’re very different activities, and the former may well undermine the latter.

One does not persuade the undecided by means of name-calling and comparing oneself to the oppressed — one persuades the undecided with reasoned argument.

I’m not talking about healthcare — I’m talking about copyright and music again.

Ten days ago, a federal court granted Veoh’s motion for summary judgment and dismissed Universal Music Group’s (”UMG”) lawsuit alleging that Veoh, which, like YouTube, allows users to share videos free of charge, for contributing to and inducing copyright infringement as a result of the uploading by Veoh users of copyrighted videos. A copy of the decision is available here.

The court concluded that Veoh’s efforts and policies to limit incidents of infringement and to work diligently to keep infringing works off its website satisfy the “safe harbor provisions” that shield it from liability under the Digital Millennium Copyright Act (the “DMCA”). I am no expert on the DMCA’s safe harbor provisions (an FAQ on those provisions is available here), but the decision strikes me as a rather thorough exploration of the legal issues and of the evidence. Moreover, some of UMG’s arguments are downright specious, including what the court characterizes as its “first.” Typically — in fact, universally among effective lawyers — a lawyer makes his client’s strongest argument first.

UMG’s first argument was that  Veoh is not entitled to the safe harbor protections of the DMCA because it had “actual knowledge” that Veoh knew there were copyrighted videos on its website. UMG “proof” Veoh’s actual knowledge was that Veoh “knew that it was hosting an entire category of content—music—that was subject to copyright protection.” Slip op. at 14. The proof was hardly sufficient to the court, for reasons that seem, to me, persuasive:

First, the mere fact that Veoh was hosting material contributed by users that could be infringing cannot be proof of “actual knowledge” that there are infringing materials on the service because otherwise there would be no purpose to the safe harbor Congress created in the DMCA. “[V]ast portions of content on the internet are eligible for copyright protection (including plenty of materials posted on this site). Id. If one held providers like mine liable for allowing the use of materials by its users that could, if used improperly, be infringing, the internet as we know it would end.

In addition, it is unreasonable to interpret the DMCA to permit such proof to establish “actual knowledge” of infringement because if one were to accept UMG’s theory the DMCA’s notice-and-takedown provisions would be “completely superfluous because any service provider that hosted copyrighted material would be disqualified from the section . . . safe harbor regardless of whether the copyright holder gave notice or whether the service provider otherwise acquired actual or constructive knowledge of specific infringements.” Courts will typically interpret statutes so that their interpretations will not make other parts of the statute meaningless. If Congress intended to create the notice-and-takedown procedures in one part of the statute, it wouldn’t be reasonable to interpret another part of the statute to make them meaningless.

Moreover, UMG made arguments that were refuted by the evidence, including the argument that “Veoh, of course, knew that it never had a license from any major music company to display music content and thus knew that all such content was unauthorized.” Id. (emphasis added) Unfortunately for UMG, its own evidence showed that “[a]mong the types of videos subject to copyright protection but lawfully available on Veoh’s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG.”

Let me be clear — I have not researched the takedown-and-notice provisions of the DMCA to the degree that would make me feel reasonably certain that the court was correct in the decision it reached, but I am certainly persuaded by the reasoning it set forth in its opinion (and what I do know about those provisions) to be well along the way to that conclusion. I am, however, quite open to being convinced by those who would argue otherwise.

I am not convinced at all, however, by Chris Castle (a self-described journalist in the media and communications fields), who’s “first observations” about the decision consist entirely of name-calling, far-fetched analogies, and arguments I know are unfounded. He titles his post “Gideon’s Remix” and explains that he is comparing “independent artists and songwriters” hurt by the court’s decision to the defendant in Gideon v. Wainwright, the landmark Supreme Court decision that established the right of criminal defendants to legal representation in their criminal proceedings. The defendant in Gideon had been sentenced to five years in prison for allegedly stealing about $55 and a few bottles of beer from a pool room. He had been forced, due to his inability to afford a lawyer, to defend himself against the charges.

You better have some evidence of real hardship before you start comparing “independent artists and songwriters” to Clarence Earl Gideon, and you better realize that there is a world of difference between losing your freedom for 5 years and not being entitled to deny the opportunity for current technology to do the myriad of legitimate and enormously beneficial things it does.

Castle next writes that “[i]f the decision [is allowed] to stand, copyright becomes a Constitutional right without a remedy.” That’s odd. The law provides plenty of remedies for copyright infringement, including statutory awards that do not even require evidence that establishes any financial harm arising from the infringement.

I think Castle’s reasoning that Veoh’s activities allow infringement without a remedy might be illuminated by 2 other assertions he makes. First, he suggests that copyright infringement is no different than the theft of personal or real property:

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat?

This argument is just plain silly. If someone steals a car, the damage is obvious — the owner no longer has the car to use or sell. If someone squats in an apartment you own, that’s property you cannot rent to someone else. But the fact that someone might have improperly posted a copyrighted song on Veoh doesn’t eliminate the fact that the vast majority of videos posted on Veoh are not infringing and are beneficial to Veoh’s users. Moreover, the “independent artists and songwriters” whose “property” is allegedly being misused have the legal power to stop the misuse, the right to sue the infringing Veoh user for damages (without showing harm), and the possession of the thing itself allegedly “stolen.”

Castle states too that leaving the recording companies (and the “independent artists and songwriters” he seems to equate to UMG) to find infringing materials is too great a burden to expect of them:

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I’m not convinced it is an unreasonable burden. It’s easy for me to find online any reference to me or my writings. And it may well be reasonable to impose that burden on me and all those “independent artists” (one might forget UMG was the plaintiff in the lawsuit) in exchange for the benefit of having sites like YouTube and Veoh and the like. Most importantly, the decision on whether, given the benefits provided to society by requiring copyright holders to send takedown notices to services like Veoh (rather than imposing on Veoh the burden of pre-clearing everything posted on its service) is a decision Congress made. If Castle thinks it was a bad judgment, his beef is with Congress, not the court that decided the Veoh case.

Castle also dismisses as a “canard” without any suggestion that there are merits to it the argument that the fair use of copyrighted materials on which a lot of the value on blogs, hosting sites, and search engines is grounded in the constitutional right to free speech. The plain fact is that copyright is a limitation on free speech — without the rights accorded for a limited time and for limited purposes to copyrighted materials, their use would be constitutionally protected by the First Amendment. Thus, the rights accorded by copyright necessarily must be balanced against free speech rights, and this principle is one that is no “canard” — it is well- and long-established as the basis of fair use.

Finally, Castle resorts to name calling. He calls Google “childish” for re-posting videos that it has removed the soundtrack from — something that as far as I can tell is a perfectly legitimate response to a legitimate takedown notice from the owner of the copyright in the soundtrack. He also calls Lawrence Lessig “creepy,” which I suppose is a step up from another post in which he calls Lessig “Lyndon Larouche.”

Again, though, you only gratify those who already believe Lessig is a creepy fascist by tossing around names like that, and anyone who does not already find glee in such ignorance will at best be unpersuaded; more likely, they’ll be turned off.

So is Veoh correctly decided? Castle has only made me feel more strongly that it was. But I remain open to reason.

“The secret to creativity is knowing how to hide your sources.” — Albert Einstein

The Only Ones: The Whole of the Law

My bad. I only knew Yo La Tengo’s cover. Adrienne has, thankfully corrected me and I am grateful to have learned of the Only Ones. But still there is no way Billy Idol can be compared to Yo La Tengo.

Oregon Attorney General is rethinking his copyright claim; I’d advise him to back off.

In Oregon, there’s an interesting and seemingly misbegotten effort by the state’s attorney general to assert the right to enforce a copyright in the state’s official documents. As the Oregonian reports, “Oregon Attorney General John Kroger met with a group of journalists in July and pledged to review the state’s public records act to make sure that it’s working properly. Kroger told the group the work would take some time but that it is “very important for me to get this right.” The review was provoked by a law professor who has posted to a web site a scanned copy of the Attorney General’s Public Records and Meetings Manual on his web site. “But the attorney general sells the 326-page book for $25 a pop, mostly to law firms and other state agencies. Kroger’s spokesman, Tony Green, says that’s how the AG’s office makes back the cost of producing the book.”

I suspect the Attorney General’s review will result in the state taking no action. According to L. Ray Patterson and Craig Joyce, in “Monopolizing the Law: the Scope of Copyright Protection for Law Reports and Statutory Compilations,” 36 UCLA L. Rev. 719, 723 (1989), the U.S. Supreme Court in 1834 held that “opinions of the Court are not copyrightable, and that holding remains the law. Subsequent cases and the present copyright act reinforce and expand upon the point: the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself.” (footnotes omitted)

ADDENDUM: William Patry writes in his treatise on copyright, Patry on Copyright, Secton 4:59, that

[J]judges, legislators, and by extension all government employees are paid by the public for performing their duties. Having paid the salaries, the public is deemed to own the fruits of the employees’ labors, a kind of work for hire. To grant copyright to employees for works created in the course of performing their duties would result in double payment. Moreover, having received their salaries, government employees do not need the additional incentive that copyright provides; the same logic applies at the institutional level. (footnotes omitted)

Thank god I can ridicule Glenn Beck and Chiropractors.

I think it’s sad anyone can take seriously a Glenn Beck legal claim based on the allegedly defamatory nature of a domain named “glennbeckraped andmurdered- ayounggilrl.com,” but I’m grateful at least for a First Amendment that, I believe, makes it very unlikely any such claim by Beck would prevail and that allows me to title a blog post “I don’t think Glenn Beck raped and murdered a young girl, but why won’t he deny it?”

I could, after all, live in England, where, as Olivia Judson writes,

Several times this summer, science journalists in London have leaned over to me and said something along the lines of, “I was thinking of writing,” and gone on to describe an article that was going to be critical of someone. “But then,” the speaker would gloomily conclude, “I thought to myself, ‘Simon Singh,’ and I decided not to.”

In England, as the Guardian explains, not only will the legal costs of defending a libel action will be considerable, often running into hundreds of thousands of pounds,” but, unlike in the States, “the loser almost always has to pay the costs of the winner, plus any damages awarded to the claimant.” As Judson points out, in England not only do “[l]ibel cases cost little to bring — you can make a no-win-no-fee arrangement with your lawyer” — but, most importantly, the defendant has the burden of proving the allegedly defamatory statement is true. In contrast, in the States, a public figure must prove the defamatory statement not only was false but was made with a reckless disregard for the truth. And even a non-public figure has the burden of proving the falsity of the allegedly defamatory statement.

Why is Simon Singh the person potential critics of bad science are reluctant to become? Because Singh is being sued by the British Chirpractic Association for libel after he wrote the following:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

At least in this country we can hear presentations like the following:

Conventional chiropractic [medicine] is a confused pseudoscience that attracts non-discerning customers and students just as surely do supermarket tabloids, astrologers, palm readers and psychics. Don Paulin, who directs the Victims of Chiropractic outreach and is a member of the National Council Against Health Fraud, will examine the status of chiropractic and illustrate his talk with videos.

You can feel the way you want to about chiropractors, but I’ve never seen any evidence that satisfies me its benefits are anything other than the result of a placebo effect, and I’m glad I can say so without any great fear of being hauled into a court on charges of libel. Though, as the Guardian article linked to above suggests, since my posts can be read anywhere, I suppose there’s some risk I could be sued by chiropractors in England.

Few people read them, but some online agreements are enforceable, and some aren’t; it’s a mess.

Just 3 days ago I wrote about two conflicting decisions concerning the enforceability of online contract provisions that do not require consumers to affirmatively click an “I agree” button. Well, today techdirt points me to a new court decision invalidating such a provision: according to MediaPost, the court “ruled that Internet retailer Overstock can’t enforce the manadatory arbitration agreement set out in its online terms and conditions because there is no evidence that consumers read the policy.” According to the decision, the plaintiff  ”lacked notice of the terms and conditions because the website did not prompt her to review the terms and conditions and because the link to the terms and conditions was not prominently displayed.”

As I wrote the other day, under all the court decisions I am aware of online sellers can ensure that their contracts are not invalidated on these grounds merely by requiring the affirmative act of clicking on an “I agree” button. As I read all of these decisions, online agreements that require the consumer to click “I agree” are enforceable despite the fact that consumers generally do not read the agreements.

To rule otherwise would overturn ages of decisions imposing on the consumer a “duty to read” that binds them to agreements they express agreement to even if they don’t understand what they are agreeing to. It would also leave open to dispute any online transaction that the consumer decided he or she didn’t like, a result that would mire our economy and courts in a mess to deep to contemplate.

There is a solution, however, and it’s one that hit a high gear 50 years ago only to peter out in the wake of our more recent passion for unregulated free markets — consumer protection laws that dictate what terms can and cannot be imposed on consumers. As the situation now stands, we are left with a patchwork effort to find traditional contract rules to come up with fair results (such as invalidating mandatory arbitration clauses that deprive consumers of any meaningful remedies for wrongdoing by online sellers).

In the meantime, I can only repeat what I wrote the other day:

Online sellers: if you want to be maximize the likelihood your agreements are enforceable, do what most online sites do — require your customers to click on a button that expresses their agreement before the transaction is complete.

Online buyers: be careful. Don’t believe that you’re getting what you think you’re getting. You’re only getting what the fine print says you’re getting. But if you do get screwed, remember too that even when you sign something it might be so unfair it is unenforceable.

Copyright and Good Judgment: Damien Hirst, Idiot.

In England, a 17 year old artist named Cartrain created a collage that included an image of Damien Hirst’s diamond encrusted skull, a work entitled “For the Love of God.” As the Independent reports: “The collages were put up for sale on a website, 100artists.com. Hirst reported him to the Design and Artists Copyright Society and a string of legal letters were sent to Cartrain’s art dealer, Tom Cuthbert, at 100artworks.com, about the teenager’s pieces, also called For the Love of God. The online gallerysurrendered them to Hirst with a verbal apology.” So, in July, Cartrain walked into a museum showing some of Hirst’s works and walked off with a box of pencils from one of the installations. As Cartrain explained, “That same day I made up a fake police appeal poster advertising that the pencils had been removed from the Tate and that if anyone had any information they should contact the police on the phone number advertised.” “A few weeks later I went out and I returned home to find out the art and antiques squad from New Scotland Yard had called round with a warrant for my arrest.” According to the Independent, Cartrain “was told by custody officers that the pencils were valued at £500,000 and that he had damaged ‘the concept of a public artwork titled Pharmacy … valued at £10,000,000.’ Cartrain is on bail and, if convicted, his actions will feature among the highest value modern art thefts in Britain. Does Damien Hirst have the right to foreclose the use of images in which he owns the copyright from collages? Plainly, I don’ t think so. But it’s also one of those situations in which I’d tell a client to just back off. Reportedly, Hirst sold the skull for $100 million. The image is ubiquitous. I know I’ve sent it to friends as part of an app on Facebook. Do you, I’d ask, really need to be so heavy-handed in connection with a kid trying to get his start as an artist? (hat tip to Techdirt)

I don’t think Glenn Beck raped and murdered a young girl, but why won’t he deny it?

Arts Technica reports that 2 days after the site glennbeckrapedandmurderedayounggirlin1990.com Beck’s media company “had contacted the domain registrar demanding that the “‘highly defamatory domain name’ glennbeckrapedandmurdered- ayounggirlin1990.com be deleted, that the WhoisGuard privacy protection service be revoked, and that the owner’s contact information be turned over to the lawyers.”

This is a classic case of an effort to “chill” speech you don’t like. Parody and political speech are protected by the First Amendment, but who wants to take on the costs of litigating against a media giant? One of my students asked the other day if there were any way for an individual to get funding to litigate against a large corporation. I explained that there really isn’t. If you’re really, really poor, you might get legal aid, but not likely even if you’re really, really poor to defend against a lawsuit like Beck’s. We have a brilliant legal system, but it’s been entirely distorted by inequalities of wealth and the expense that has become accepted as part of litigation. Someone with little legal merit to their claims or defenses can prevail merely by wearing down and exhausting the resources of their adversary.

I myself wouldn’t begin to conclude from seeing the domain name that there was any real evidence Glenn Beck had raped and murdered a young girl, but one expert in the article thought Beck’s lawsuit had enough merit that it can’t merely be brushed off:

“I don’t think ‘Ha ha it’s a joke’ at the end gets you off,” he says; if the parodic information is defamatory, it’s risky for the defendant in such cases. That’s complicated by the fact that the original domain name made the allegedly defamatory claim against Beck—and of course no one stumbling across the site in a search engine or elsewhere would see any disclaimer. In such cases, the domain name itself is a standalone piece of content; the disclaimer may help regarding the website content, but it won’t necessarily transfer a cone of protection to the domain name as well.

This is what we get when we take seriously allegations like the one that Obama wants to euthanize my mom (would she be so lucky! — sorry, that’s an entirely different and very personal topic).

ADDENDUM: Beck does want to beat Rep. Charles Rangel to death with a shovel, and he wants to kill other people, right?

ADDENDUM 2: This guy Beck may or may not be a rapist and murderer (but why won’t he just prove his innocence?), but he is definitely a first-rate parodist, pointing out the Communist propaganda hidden in New York City. Who knew John D. Rockefeller was really a communist, and that Isaiah’s timeless call to beat swords into plowshares is really an ancient “progressive” plot? He’s hilarious. Everyone does just laugh at this stuff, right?

Legal rules, convenient fictions, and figuring out when you’ve agreed to something you haven’t read.

I wrote on Friday about one legal fiction — that a corporation is a “person” entitled to First Amendment free speech rights — and today I can write about another: that contractual relationships are founded on agreement.

I can get one level of the point out of the way quickly. As first year law students learn right at the beginning of their first year contracts course, it is the objective manifestation of agreement that matters, not the subjective intent. You cannot agree to buy a “white” horse and then argue that delivery of a white horse is a breach of your agreement because you subjectively intended “white” to mean black. To suppose otherwise would create a practical nightmare — every contractual dispute potentially would have to be resolved by determining which party to the contract was a liar.

But how do you determine the “objective” meaning of someone’s expressed intent? As a general rule, if you sign an agreement that says you’ve agreed to X, a court will rule you agreed to X. In the online world, if you click on a button that says “I agree,” a court will rule that you agreed even if, as is likely, you didn’t read the agreement.

But there are more complicated possibilities. In Specht v. Netscape Communications Corp. (pdf)(S.D.N.Y. 2001), Judge Alvin K. Hellerstein (someone I once, many years ago, worked for) ruled that an agreement to arbitrate contained in an online agreement Netscape purported to bind anyone who downloaded a certain program from the internet was not enforceable. Why? Because under California law (which the court had determined was applicable to the dispute), someone, “‘regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious. . . . ‘” Slip op. at 16 (citation omitted).

In Specht, Judge Hellerstein found that the provision in dispute was too inconspicuous to be enforced because the person downloading the program could have done so without even knowing he was agreeing to contractual terms that would limit him in certain ways. Why? Because the language indicating that there even was such an agreement could have been entirely missed — it appeared via a link that could not even be seen unless the user scrolled down on the appropriate page. In other words, the user could click through to the download page without even seeing language indicating that his download represented an agreement to terms he could find by clicking on a link. Id. at 17.

Judge Hellerstein clearly preferred online agreements that require the affirmative act by the user of clicking on a button that says “I agree” and made plain that Netscape’s failure to do that in itself (even if the link to the applicable terms had been visible without scrolling down a page) was enough to undermine its argument that an agreement had been formed:

Netscape argues that the mere act of downloading indicates assent. However, downloading is hardly an unambiguous indication of assent. The primary purpose of downloading is to obtain a product, not to assent to an agreement. In contrast, clicking on an icon stating “I assent” has no meaning or purpose other than to indicate such assent. Netscape’s failure to require users of SmartDownload to indicate assent to its license as a precondition to downloading and using its software is fatal to its argument that a contract has been formed. Id.

Recently, however, as Techdirt pointed out, the court in PDC Laboratories Inc. v. Hach Co., No. 09-1110 (pdf) (C.D. Ill., Aug. 25, 2009), disagreed with Judge Hellerstein and ruled that under Illinois law a contract provision available for viewing behind a hyperlink was an enforceable term in the parties’ contract for the sale of goods.

So, online sellers: if you want to be sure your agreements are enforceable, do what most online sites do — require your customers to click on a button that expresses their agreement before the transaction is complete.

Online buyers: be careful. Don’t believe that you’re getting what you think you’re getting. You’re only getting what the fine print says you’re getting. But if you do get screwed, remember too that even when you sign something it might be so unfair it is unenforceable.

If, like my law students, you’re shaking your head, thinking this guy is not cutting to the bottom line — what does the law say? — understand this: the law is not like the Ten Commandments, setting forth brief rules that are always applicable. Rather, much of the time it gives you guidance on how to minimize your risks. Assume that you’ve minimized your risks as an online seller if you require someone to click on an “I agree” button, and assume you’ve minimized your risks as a buyer if you’ve read and understood the fine print.

Then again, even the Ten Commandments are not as clear cut as most people think. Thou shalt not kill? Unless you’re a Jain, you don’t really believe in the literal truth of that rule.

Chris Whitley: Living with the law

Chris Whitley – Living With The Law (Official Music Video) – Click here for more free videos

A corporation is not a “person” (unless it buys the right to be treated that way).

There’s an interesting addendum to add to my post yesterday about the fact the Supreme Court in the campaign finance case it heard arguments on two days ago seems to be assuming without question that corporations are just like individuals when it comes to constitutional rights. In other words, the Court is assuming, if a limitation on campaign contributions is a limitation on First Amendment free speech rights, then a limitation on campaign contributions by corporations is unconstitutional.

The case on which everyone founds the concept that a corporation is a person entitled to constitutional protections afforded to individuals did not even decide that question. Rather, in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), “[a]ccording to the official case record, Supreme Court Justice Morrison Remick Waite simply pronounced before the beginning of arguement in the case of Santa Clara County . . . that:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.

The court reporter duly entered into the summary record of the Court’s findings that

The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.

Thus it was that a two-sentence assertion by a single judge elevated corporations to the status of persons under the law, prepared the way for the rise of global corporate rule, and thereby changed the course of history.”

Moreover, the decision did not even rest on the constitutional assumption but, rather, on statutory grounds. Thus, Santa Clara County does not in any way stand for the proposition it is always relied on for — that corporations are persons for purposes of the individual rights protected by the Constitution.

It should be no great surprise that in 1886 the Court simply asserted without any consideration that a railroad was a legal person for constitutional purposes. It was a time when railroad companies owned the country. Who owns it now?

RiP! A Remix Manifesto

Filmmaker Brett Gaylor’s RiP! A Remix Manifesto, now available on Hulu.

In an interview conducted by Rebecca Harper, Gaylor, among many other things, discussed the inspiration he drew from Brazilian culture, which apparently suffers no anxiety from the recognition that creativity is inherently built on earlier creation:

[A]s I made the film, I had to amass a lot of knowledge about copyright law. Maybe not what surprised me, but certainly what inspired me was the history of appropriation in Brazil, and how going back to the very beginning of Brazilian culture, there was this history of fair use and appropriation. And you know, we have that in North American culture, as well, with things like the Blues and obviously hip-hop. But what really struck me about Brazilian culture was how recognized it was, and how there was this culture that seemed to be built on taking influences of Europe, of North America, of their native cultures, and sort of putting them in this big pot and making a stew. That was really inspiring, and I read the works of a Brazilian poet and modernist called Oswald de Andrade. He wrote this thing called The Cannibalist Manifesto, which was basically saying that Brazilian culture needed to eat and ingest the cultures of the world to regurgitate and create something new. I just thought that was a really great metaphor for the digital age and postmodernism. That’s why I decided to go to Brazil and spend a good amount of time there.

Do we need to protect Exxon’s right to free speech?

There’s an interesting and largely ignored set of precedents at play in the campaign finance case the Supreme Court heard arguments in yesterday. The focus is on whether Chief Justice Roberts — after having emphasized during his confirmation hearings the importance of precedent and the extraordinary circumstances that would require it to be overturned — will vote to overturn over 100 years of limits on corporate donations to political campaigns on the grounds that limiting corporate contributions to political campaigns is an unconsitutional limitation on free speech. Here’s my bet (which I strongly recommend you don’t take): Roberts will overturn the precedent and vote to overturn the campaign finance restrictions.

But there’s an even older set of precedents that ought to be subject to review: the precedents that conclude that corporations are “persons” just like you and me; accordingly, corporations are entitled to free speech rights, protection against unreasonable searches and seizures, and all the other rights guaranteeed to individuals under the Constitution.

There’s nothing self-evident about concluding that a corporation is entitled to these protections. One reason is what the right wing of the Court identified years ago in concluding that limitations could be made on a union’s power to contribute money to political causes: an individual union member’s views might difffer from the union’s. Just so, an individual stockholder or director’s views might differ from that of the corporation’s.

More importantly, though, the idea of a corporation is a convenient legal “fiction” — really a metaphor — that courts employ because it is, well convenient for purposes of certain legal analysis. But when we confuse the metaphor for the reality we can get into trouble. As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

So think twice before you conclude that the campaign finance case is all about overcoming restrictions on free speech, which is the position argued on the left by the ACLU and on the right by the Wall Street Journal:

Hillary Clinton may end up the accidental heroine in the battle to reassert First Amendment rights over restrictions on political speech. Yesterday, the Supreme Court heard a historic reargument in the case of Citizens United v. Federal Election Commission, and the Justices have a chance to revisit two of their greatest offenses against the Constitution.

The case involves a political documentary made during last year’s Presidential primaries about then-Senator Clinton called “Hillary: The Movie.” It wasn’t what you’d call a glowing portrayal. Funded by a group called Citizens United, the film was intended to be shown on cable TV during the primary season, a profile that got it caught in the net of campaign finance reform laws that control political advertising.

At stake are two major precedents in the campaign-finance canon, Austin v. Michigan Chamber of Commerce (1990) and a portion of McConnell v. FEC (2003). In Austin, the Court ruled the government may ban corporations from engaging in what’s known as “express advocacy” directly from corporate treasury funds, requiring the funds to be channeled through a separate political action committee. In McConnell, the Court built on that decision to uphold most of the Bipartisan Campaign Reform Act, a.k.a.

the 2002 McCain-Feingold law, including a section that banned “electioneering communications.”

. . . The First Amendment was designed specifically to protect speech in just the kind of scenario “Hillary: The Movie” presents—the right to engage in the political process and to challenge and comment on candidates. Citizens United is the ideal opportunity to overturn a major swath of bad law.

No, the First Amendment was not “designed to specifically protect speech” by business organizations — it was intended to protect speech by individuals. It’s an amazing argument from those who would normally argue that we need to stick to the Original Intent of the Framers, but it shows too that Original Intent is merely a means to a political end, not a reasoned position.