Legal decisions based on what the law is not — the “permission culture” and copyright overclaiming

One thing law students don’t get at all is the ways lawyers negotiate a world in which legal decisions are based on what the law is not.

Mike Masnick over at techdirt, , writing about the “Permission Culture” (that is, the culture that insists that sampling and quoting should only be done with permission), puts his finger directly on one of the biggest problems — the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers, musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they don’t need permission to take:

The unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it.

I would suggest too that one reason publishers won’t publish books without permission for the use of quotations is that they perceive it to be in their interests not to do so. That way, other publishers will ask and pay for permission to use quotations from their own books. That is why, I am convinced, the music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample — the practice makes each company’s record vault’s sources of income.

The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates that own so much of our intellectual property. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be:

Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Cuckoo Kookabura Continues

The travesty continues — first, there was the court decision in Australia finding Men at Work liable for copyright infringement for appropriating a riff from the Australian chestnut Kookaburra Sits in the Old Gum Tree in their 1981 #1 hit Down Under. Now the judge has ordered the group to pay 5 percent of the royalties it earned from the song. I suppose it’s better than the 60% the publishing company that owns the copyright sought. Kookaburra, incidentally, was composed over 70 years ago, and its composer died 22 years ago. It doesn’t appear, in short, that the copyright here is serving to motivate creation; rather, it’s serving as a disincentive – Down Under stood on its own as an Australian anthem. As Wikipedia reports:

The song is a perennial favourite on Australian radio and television, and topped the charts in the U.S. and U.K. simultaneously in early 1983. It was later used as a theme song by the crew of Australia II in their successful bid to win the America’s Cup in 1983.[citation needed] Men at Work played this song in the closing ceremony of the 2000 Sydney Olympics, alongside other Australian artists. It was also often played after Australian athletes had received medals during competition, as they walked around the venue on a parade lap after the medal ceremony.

In May 2001, Australasian Performing Rights Association (APRA) celebrated its 75th anniversary by naming the Best Australian Songs of all time, as decided by a 100 strong industry panel, “Down Under” was ranked as the fourth song on the list.[5]

In October 2006, Triple M had the Essential 2006 Countdown of the most popular songs of all time, voted by the listeners. “Down Under” was the number 3 voted/ranked song.[citation needed]

The song was voted #96 on VH1’s 100 Greatest Songs of the 80s.[when?]

The song has been used as the entrance music for various professional Australian sportsmen, including darts player Simon Whitlock, cruiserweight boxer Danny Green (for his fight against Roy Jones, Jr. on 2 December 2009) and snooker player Neil Robertson.

The song was played extensively during the September 2009 One-Day International cricket series between England and Australia, which Australia took by six matches to one.

Moreover, as I’ve previously noted, the Sydney Morning Herald reported that “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

And to the extent the riff is recognizable it is doing what a quotation does in a piece of art — using a culturally resonant symbol to sound that resonance.

At least Men at Work is going to appeal the decision.

Viacom’s schizophrenia over YouTube: the industry cries “serial killer!”

Does YouTube threaten the entertainment industry? On the one hand, Viacom and others will scream that it threatens the very livelihood of those who produce our entertainment. On the other, Viacom and others use it effectively to promote their products. And would you really prefer a regime that required YouTube to approve the legitimacy of every video uploaded to it? Frankly, it simply wouldn’t exist if that were required. To me it makes sense that if a copyright holder believes his copyright is being infringed by an online video, he can have it removed upon request. And if the person who uploaded the video believes the request is mistaken, he can ask Google to review it and make its determination at that point whether it will allow it to remain.

Moreover, history teaches that you should view with extreme skepticism the cries of alarm from the entertainment industry. In doing so, you likely would be doing them a favor.

As I wrote the other day in connection with the decision dismissing Viacom’s lawsuit against Google alleging copyright infringement for the posting on YouTube of videos infringing Viacom’s copyrights, As I wrote above, the existing regime makes sense to me and, as I wrote in that recent post,  ”[t]he decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights.” Viacom, of course, disagrees, stating in its press release:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.

And those who represent the interests of large corporate copyright holders such as Viacom, like the Washington Legal Foundation (whose mission is to “champion free market principles [and] limited and accountable government”) argue that the decision allows Google “to exploit the statute’s safe harbors by designing an entire business model based on improperly profiting from copyrighted content.” Ronald Cass writes in Forbes that the decision is “broad enough to sink the protection copyright holders had enjoyed under the law.” And the Directors Guild of America claims its members’ very livelihoods are at stake:

We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members’ livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.

Reading these dire warnings you might not realize that as the judge stated in his decision Google took down the offending videos the day after Viacom delivered a mass takedown notice identifying the ones it claimed a copyright in. Nor would you realize that Viacom recognized the value of YouTube to its business by employing people to post its videos to YouTube to promote its productions while at the same time other Viacom employees were adding those same videos to the list for the takedown notice:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Fear that directors will have their livelihoods decimated and that the decision sinks copyright protection is of course, nothing new for an entertainment industry that can profit enormously from new technologies they demonize, so Viacom’s schizophrenia is, perhaps, progress over Hollywood’s reaction to the VCR, which was 100% self-destructive. In 1982, Jack Valenti, in sworn testimony before Congress , stated “that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” But, as Digital America explains, Valenti was not merely crying wolf — he was describing the greatest benefit to the movie industry in the last 40 years as a serial killer:

As the VCR became more important to the consuming public, the Hollywood establishment that fought it bowed to its inevitable benefits. In January 1984, the U.S. Supreme Court concluded 5-4 that VCRs were legal products and that home taping of copyrighted works fell under the “fair use” exception to copyright. While Congress passed the Audio Home Recording Act of 1992 (AHRA), legislative attempts to codify the Betamax decision and fair video recording rights are still pending before Congress. CEA (at that time known as the Consumer Electronics Group of the Electronic Industries Association), in cooperation with the Home Recording Rights Coalition, protected the legality of home recording and promoted the acceptance of the new technology.

Additionally Hollywood studios established home video divisions to reap the profits from a technology it once considered a threat. Blay’s idea sparked a retail revolution as hundreds of mom-and-pop video rental and sales stores popped up in every community in America. In 1987, video rental income reached $5.25 billion for the year, surpassing movie theater ticket sales for the first time. Today, movie studios regularly make more money on a film from home video sales and rentals than from the theatrical box office.

Our courts and legislatures are bought and paid for — the laws they’ve made with respect to oil spills prove it.

In March, I emphasized — not for the first time — the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations (and their shareholders).”

One reason corporations focus on short-term profits is that the individuals making the decisions for a company will often take the cash made in the short term out of the company (by paying special dividends, for example) and then sell there stock, evading the long-term loss. Even if they hold onto their stock, they may have taken so much cash out of the company before the stock crashes in value that they’ve profited mightily from their holdings regardless of the company’s failures.

But still another reason is the idiocy of the regulation that is in place, regulation that instead of imposing responsibility on the companies for problems they cause limits that responsibility.

10 days ago David Leonhardt wrote about the  perversity of the federal limitations on corporate liability for oil spills and how they made BP’s oil spill, in retrospect, no great surprise:

In a little-noticed provision in a 1990 law passed after the Exxon Valdez spill, Congress capped a spiller’s liability over and above cleanup costs at $75 million for a rig spill. Even if the economic damages — to tourism, fishing and the like — stretch into the billions, the responsible party is on the hook for only $75 million. (In this instance, BP has agreed to waive the cap for claims it deems legitimate.) Michael Greenstone, an M.I.T. economist who runs the Hamilton Project in Washington, says the law fundamentally distorts a company’s decision making. Without the cap, executives would have to weigh the possible revenue from a well against the cost of drilling there and the risk of damage. With the cap, they can largely ignore the potential damage beyond cleanup costs. So they end up drilling wells even in places where the damage can be horrific, like close to a shoreline. To put it another way, human frailty helped BP’s executives underestimate the chance of a low-probability, high-cost event. Federal law helped them underestimate the costs.

We shouldn’t be surprised, then, at BP’s pathetic safety record and the retrospective inevitability of the Gulf spill:

Years before the Deepwater Horizon rig blew, BP was developing a reputation as an oil company that took safety risks to save money. An explosion at a Texas refinery killed 15 workers in 2005, and federal regulators and a panel led by James A. Baker III, the former secretary of state, said that cost cutting was partly to blame. The next year, a corroded pipeline in Alaska poured oil into Prudhoe Bay. None other than Joe Barton, a Republican congressman from Texas and a global-warming skeptic, upbraided BP managers for their “seeming indifference to safety and environmental issues.”

BP was only acting rationally!

Unsurprisingly, the Supreme Court has teamed with Congress in being an accessory to the corporate rape of the country. Even if compensatory damages are capped, conceivably courts can impose punitive damages in civil lawsuits to deter particularly egregious conduct. And, indeed, courts reacted precisely that way to the Exxon Valdez oil spill — that is, until the Supreme Court stepped in. In 1994, a jury imposed $5 billion in punitive damages on ExxonMobil for the Exxon Valdez  oil spill. 12 years later an appellate court reduced that amount to $2.5 billion, half the original amount.

2 years later, in a 5-3 vote (Sam Alito recused himself from the case because he owned Exxon stock), the Supreme Court reduced the amount to $507.5 million, about 10% of the jury’s award. The Court ruled that punitive damages (intended to punish bad behavior, not to compensate a plaintiff for his losses caused by that behavior) cannot be greater than compensatory damages (which compensate victims for their economic losses). As reported at the time, the reduced amount represented “about 12 hours of revenue for [Exxon], which reported record profits of $40.6 billion in February.” Justice Souter, writing for the Court, explained that “a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s ‘bad man’ can look ahead with some ability to know what the stakes are in choosing one course of action or another. See The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). Exxon Shipping Co. v. Baker (U.S. 2008)(hyperlink added).

Of course, one might argue pretty cogently that neither the Exxon Valdez spill nor the BP Gulf spill were conceivable in the minds of the people who made the decisions that resulted in disasters and that it is precisely that failure to conceive of, much less consider, those consequences that is what the courts should retain the power to punish.

Is Elena Kagan’s “thin” record of legal scholarship a disqualification for the Supreme Court? Only if you’re a law professor.

My one reservation about Elena Kagan as a Supreme Court justice has been her extensive experience in legal academia. As readers of this blog know, the disconnect between law professors and law practice is a matter of grave concern to me. I do not understand why the great mass of legal academics consider legal practitioners lesser beings who really don’t belong in law schools and, if they are there, certainly don’t deserve the same status that the pure “scholars” do.

But now I can rest easy — law professors don’t consider Kagan one of them. Why? Because she’s practiced law too much!

Kagan taught at the University of Chicago Law School before going to work for the Clinton White House. During her time at Chicago, as the Chicago Tribune reports, “[s]he did publish several articles and won tenure in 1995, and was even chosen by students as teacher of the year. . . . [Se left to join the office of legal counsel in the Clinton White House shortly after that. As fellow West Wing veterans tell it, she quickly became an aide Clinton would pull aside for hallway conversations about his legislative initiatives on the Hill.”

In 1999, she sought to return to Chicago, but was unable to do so because, the law faculty decided not to give her an offer. They rejected her because her talents were as a lawyer and an administrator! We can’t have any of them cluttering up legal faculty:

“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.”

The truly perverse thing is that in retrospect the Chicago professors don’t consider what they did a mistake. Rather, they are proud of it. As Richard Epstein — one of the most respected “scholars” in the U.S. — explains that her talents as a lawyer and an administrator don’t qualify her to teach law students:

Her papers were well-done, but they show exactly the same qualities of mind that prevent you from reaching the top ranks in academia. . . She is good at advising people, fixing things, putting programs in place.

I am not suggesting that legal scholars don’t belong on law faculties. I am suggesting that there are talents other than those of legal scholars that do deserve to be on law faculties and deserve equal status and respect. Why would you not want people who are good lawyers teaching law students who are in law school to become lawyers?

But most of all, I’m suggesting that the criticism of Obama’s choice of Kagan on the grounds that she is not sufficiently “scholarly” is a bunch of b.s. Why wouldn’t being a great teacher, a great administrator, and a great lawyer qualify you to  be on the Supreme Court?

Princeton values money-grubbing over open contribution to current political debate.

Whether or not it is merited, there is considerable political import being attributed to Elena Kagan’s college thesis, a study of the collapse of Socialism as a political movement in the U.S. in the early decades of the 20th Century. On the far right, the thesis is being touted as proof that “Elena Kagan is an open and avowed socialist.” Slightly less conclusory, the Weekly Standard acknowledges that “[o]bviously, one imagines that Kagan’s views have evolved significantly over the last three decades” since her work as an undergraduate, but asserts that “it’s certainly worth noting the radical roots of the nation’s top lawyer.”

What is this evidence of the “radical roots” of Elena Kagan’s thinking? In the conclusion of the 130 page undergraduate paper that describes the political dissolution of the organized socialist political movement in New York City during the first couple of decades of the 1900s — largely due to the conflicts the Socialists came into with the Communists —  she wrote:

In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? . . .

Through its own internal feuding, then, the [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.

Ben Smith of Politico concludes that the thesis is written “from a general sympathetic position,” but that really what it all adds up to is her “practical minded conclusion” that “for those who . . . still wish to change America” the lesson is “[i]n unity lies their only hope.”  Smith concludes that “if there is a takeaway for the Kagan of today, I think it’s that practical-minded conclusion, and the sense that she is, in the end — and like Obama — a very practical pol.”

Andrew Leonard takes an even more pro-Kagan view of the thesis, concluding that it proves her “a superb writer who grounds her argument in scrupulous attention to historical detail.” Leonard, while he may be over-inflating the importance of undergraduate work, at least recognizes that the thesis cannot be viewed as propaganda but, instead, involves a complicated history completely ignored by those who would reduce political debate to simplistic labels like “socialist” or “fascist” or “conservative” or “liberal.” The history Kagan addressed in her thesis involved the fight against the truly atrocious labor standards faced by U.S. factory workers, and to ignore that context and how far we’ve come would be to engage in stupidity. Leonard writes:

Kagan makes a pretty good case that sectarian bickering and factionalism doomed the Socialist Party to irrelevance. The leaders of the New York Socialist Party embraced a moderate, accommodationist approach to improving worker conditions that put them at odds with rank-and-file workers who tended to be more militant. This made it easy for Communist Party organizers to infiltrate the garment worker unions and challenge the Socialist Party leadership’s control. Ultimately, a disastrously mishandled strike destroyed the credibility of both the Socialist and Communist factions, and worker demands for better conditions were sublimated into Roosevelt’s New Deal.

It would be stupid to infer what I believe now from what I wrote as an Ivy League senior in 1981. Yes, I’m Kagan’s precise contemporary. It is also stupid to run fearfully under the cover of words like “socialism” and “radicalism” without understanding that the history of a century ago that Kagan did write about nearly 30 years ago involved fights against injustice in which almost everyone in this country today would side with the “socialists” and “radicals.” I don’t think we want to return to the days when labor in this country was treated the way labor is in, say, China today.

But perhaps the stupidest thing of all is this: as Techdirt reports, Princeton has asserted that distribution of the thesis infringes the university’s copyright in it and has demanded that it be taken down from sites that have posted it.  ”The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan’s senior thesis online…. Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Even assuming the newsworthiness of the thesis, its age, the youth and inexperience of its author and other factors do not make posting the thesis a non-infringing fair use, Princeton’s move is just stupid. One year ago, Princeton’s endowment was nearly $13 billion. Money-grubbing over a few bucks to be made on a new-found asset in the undergraduate work of a student from 30 years ago hardly seems a worthy of an institution that prides itself on conferring true genuine education to its student body and wisdom to the world.

Collage is art, not theft

From Negativland:

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heardwhen it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone’s music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce.These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material’s avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner intheir usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

Justice Department: Torture Memos were “insane” but not the product of professional misconduct

From Jurist

The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of “poor judgment” in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report] overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.

Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that the White House Office of Legal Counsel — and in particular Jay Bybee (now a federal judge) and John Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers in writing the so-called “torture memos” that gave legal approval to the torture the Bush Administration began. Both the DOJ Report and the DOJ Margolis Report confirm the details of  what I wrote back in 2008 — the memos were plainly written to justify a pre-determined conclusion. As I wrote then:

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

And now the DOJ Margolis Report concludes that “the’ evidence of the knowing violations . . . led us to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.”

Mr. Margolis in the DOJ Margolis Report also stated:

While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.

The reports really are remarkable testaments to how far the Bush Administration went to force its desire to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report quotes other Bush Justice Department appointees stating that John Yoo needed “adult supervision” and describing the torture memos as “insane,” a “one-sided effort to eliminate any hurdles posed by the torture law,” “plainly wrong,”  and “slovenly”:

Our view that the memoranda were seriously deficient was consistent with comments made by some of tlie former Department officials we interviewed, even though those individuals would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated that when he first read the Bybee Memo, “[I had} the same reaction I think everybody who reads it has - 'this is insane, who wrote this?'". Jack Goldsmith found that the memoranda were "riddled with error," concluded that key portions were "plainly wrong," .and characterized them as a "one-sided effort to eliminate any hurdles posed by the torture law." [Steven G.] Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct.

” Insane” about sums it up. You’re not acting as a lawyer if the research and analysis you do is insane. But, I guess, “insane” is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that I’d expect any reviewing official who didn’t see discern a standard in the report he was reviewing to state the proper standard and make his own determination whether the facts set forth satisfied or did not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here. Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is permitted in the “war on terror.” Which, of course, is exactly Yoo’s position.

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

AP shoots itself (twice) in the Copyright Wars.

The Associated Press occupies a controversial place in the so-called “Copyright Wars,” and it certainly isn’t making many friends anywhere in recent news. First, on December 31 of last year, AP filed its Amended Answer to Complaints, Crossclaim, Counterclaim., and a cross claim against Mannie Garcia. In that document, AP contends that it, not Garcia, owns the copyright in the photograph Garcia took of then candidate Obama that Shepard Fairey subsequently used as the source material for the (in)famous Hope poster. AP’s contention rests on the assertion that Garcia was acting within his the scope of his duties as a staff photographer for AP when he shot the photo and that it therefore constituted a “work for hire.”

There are, I think, two sets of allegations in AP’s latest filing that are interesting in terms of whether Fairey’s use of the photograph as source material for the poster constituted a non-infringing fair use. First, AP states that Garcia was sent to the event at which he shot the photo by AP in order to take photos such as the disputed one. Second, AP states that Garcia sent “several” of those photos to AP and that AP chose the photo it decided ultimately to publish. One might think these allegations reduce the extent to which Garcia can claim the shot was one so much of his own choosing. He was assigned to take the shots he took, he took a lot of them, and AP, not Garcia, chose the one that fit its purposes best.

AP also goes right after Garcia, accusing him in its counter-claim of committing fraud in registering his own copyright in the photo on the grounds that AP’s ownership of that copyright under the work for hire doctrine was so plain that Garcia knew he at the time he filed the copyright registration that he wasn’t entitled to do so. It might not be the only accusation of dishonesty hurled at Garcia in this case.

Meanwhile, AP, of course, has been quite vocal about voicing its contention that “news aggregators” infringe AP’s copyrights on a regular basis. No matter your view on the legitimacy of the infringement claim, there’s lots of reason to believe that AP’s stance is bad business. Google seems to have been a principal target of AP’s complaints, and yet shutting Google off (something, incidentally, AP could do at any time) would seem likely to drive traffic away from AP’s stories.

Well, Google seems to have called AP’s bluff. The Guardian reports that “it has become apparent that new Associated Press stories are no longer appearing on the site, which has hosted them since 2007. Google hasn’t added new AP content since December 24.“

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

Nesson continues to blame others for his lousy job of lawyering.

The  Harvard Law Record reported yesterday on Charlie Nesson’s address to : a room full of HLS students to explain his motivations and methods as the lawyer representing Joel Tenenbaum in Sony BMG Music v. Tenenbaum, the case that resulted in a $675,000 judgment against his client.

I have on more than one occasion expressed my harsh views regarding Nesson’s lawyering in the case (here and here). But the Harvard Law Record’s story only adds fuel to my fury at Nesson’s lawyering skills. According to the story, “When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages.” (emphasis added)

The RIAA cannot have been happy about the way it looks after winning a judgment of $675,000 from a kid, especially since, as Nesson with some degree of accuracy explains, “[w]hat Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.” The RIAA was anxious to settle a similar case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Mike Masnick wrote, 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.”

And Tennenbaum quite plainly had the ability to minimize damages through settlement rather than by means of Nesson’s tactic of going to trial. In February, Ars Technica reported that the “RIAA’s initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.”

And yet Nesson, realizing that “there was little chance of victory on the merits” and that the only viable way of representing his client’s best interests was to minimize the amount of his liability, failed to settle a case that at most would have cost his client $10,500 (assuming, contrary to any notion of common negotiating sense, that the RIAA would not have moved off of its last offer).

The Harvard Law Record’s story goes on to state that “the evidence presented by the RIAA . . . made it look like Tenenbaum blamed others and lied,” thereby interfering “with his effort to appear credible and sympathetic.” The problem is that the evidence didn’t merely make it “look like” Tenenbaum lied. He admitted in trial that had lied in sworn statements he had made before trial that he had not used peer-to-peer file sharing networks to download and upload recordings.

I’ve said it again and again. I’m no fan of the RIAA. The recording industry’s business and legal responses to the technological revolution that has deprived them of their former monopoly on the means of mass producing and distributing recorded music have been, to my legal and business mind, idiotic. But Nesson was Tenenbaum’s lawyer. His professional judgment as a lawyer was that any legal defense to the RIAA’s claims had little chance of success and that the best lawyering job he could do for his Tenenbaum was to minimize the damages he would be liable for. Nesson clearly had the opportunity to do so. That he passed up that opportunity in a quixotic fight for a principle might be something a lot of people admire, but it’s terrible lawyering.

Can we force a prisoner to be medicated in order to be competent enough to be executed?

Truly only Franz Kafka could do justice to some of the questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the defendant argued that he could not be executed because he was not mentally competent and that he could not be forced to take medication to make him medically competent because to do so would make him eligible for execution and therefore could by no means be in his “best medical interest.” The 8th Circuit disagreed, requiring the question whether the medication to make the defendant competent  to be answered “without regard to whether there [was] a pending date of execution.” Id. at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could no longer assert either a life interest nor a liberty interest.

Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court precedents “may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency.”

I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute people these days.

Trademark madness

From Legal Pad: “Sand Hill Advisors, the Palo Alto wealth management company, is suing Sand Hill Advisors, the commercial real estate company in Los Altos, for trademark infringement.” I am, apparently, one of the 3 people Legal Pad asserts did not know that “Sand Hill Road is the iconic stretch of pavement near which the sainted feet of venture capitalists tread daily to their places of work.” There was a time I would’ve known the signifiers that mattered to venture capitalists. I suspect I’m better off no longer knowing.

Apparently the wealth management company claims it’s been using the name since 1995 and that the real estate company is profiting off the value that the wealth management company has created in the name. There would be some merit in the claim if people really are using the real estate company because they think it’s somehow associated with the wealth management company, but that would seem to be a difficult set of facts to establish. Typically, a trademark cannot be enforced against someone using it in a different market because in doing so the alleged infringer typically is not capitalizing on value in the trademark created by the claimant.

In addition, the real estate company claims (it its motion to dismiss (pdf)), that the trademark claim is deficient because the wealth management company “doesn’t even have an enforceable service mark, since the government rejected a trademark application because the name was descriptive of a place.”

Legal Pad, though, is dead on in its prediction: “Sand Hill Advisors has it in the bag.”

But who will win the lawsuit filed by Mickey Mouse against Donald Duck?

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Blackberry as ball and chain.

When I left practice, the firm I worked for, like every one I knew of, was still too paranoid about security to be online. And I didn’t have a cell phone. I should be grateful. Technology is, like every advance, both a blessing and a curse. I hate when I have lunch with my former colleagues and their attention is on the Blackberry under the table. But at least I understand the dilemma they face. At Quinn Emanuel (the firm a good friend recently moved to), Above the Law reports, a partner’s email made very clear to all that one is on call every waking hour, adding in for good measure a firm-wide swipe at an associate who had actually done a good job but hadn’t checked his email after 7:30 p.m. The email, in part, reads as follows:

You should check your emails early and often. That not only means when you are in the office, it also means after you leave the office as well. Unless you have very good reason not to (for example when you are asleep, in court or in a tunnel), you should be checking your emails every hour. One of the last things you should do before you retire for the night is to check your email. That is why we give you blackberries. I can assure you that all of our clients expect you to be checking your emails often. I am not asking you to do something we do not do ourselves. I can assure you that John Quinn, Peter Calamari, Mike Carlinsky, Faith Gay, Fred Lorig, etc. all check their emails often.

Yesterday I was working with a relatively new associate on a project which both he and I knew was a rush. It was for a relatively new client whom we were trying to impress. The associate did a nice job under pressure. Before I left the office at about 7:30 I sent an email to this associate asking him to perform a task—fax a draft letter for review and comment. I assumed the task was done. Turns out the associate left the office and did not check his emails until this morning. I assumed the task had been completed. It had not been. In this case it was no harm no foul, but I think we can all imagine scenarios when this could be a disaster.

Using the legal system to intimidate — Cook County Prosecutor and Northwestern’s Medill Innocence Project

Before beginning my teaching career, I was a commercial litigator for almost 12 years. As a result, many think I’m one of those people ready to sue at the drop of a hat. But I think that litigators might be among the most litigation-averse people around — we know the price litigation extracts, and we know it’s one of the least desirable means of dispute resolution around. (That’s not to say it isn’t crucial — one has to resort to bold and difficult measures when others fail.)

So litigators know too that suing people — forcing them into litigation — is a powerful weapon. Sometimes it is used flat out to intimidate. An example of litigation being used for, apparently, nothing but intimidation is pointed out by techdirt:

The Medill Innocence Project at Northwestern University “gives undergraduate students firsthand experience in investigating wrongful convictions.” The Project’s efforts have freed 11 prisoners, including 5 who were on death row. But now, according to the Chicago Tribune, in preparation for a hearing the Project’s efforts have won for another prisoner, “[t]he Cook County state’s attorney subpoenaed the students’ grades, notes and recordings of witness interviews, the class syllabus and even e-mails they sent to each other and to professor David Protess of the university’s Medill School of Journalism.”

I can’t say I disagree with Northwestern’s lawyer, who said the prosecutors subpoena is “an unwarranted fishing expedition that focuses on the messenger — rather than on the possibility that an innocent man has spent more than three decades behind bars. Prosecutors, he said, ’seem to be peeved’ at the Innocence Project for uncovering a wrongful conviction.”

The new economy, the billable hour, and law school tuition — change is afoot.

When things change, things change.

I’ve written at length before about the perversities created by the hourly rates charged by lawyers. Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The practice on its face is troubling — just as our current health insurance scheme provides incentives for doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.

The system has maintained itself in the same way many of our economic practices have maintained themselves — by means of an every increasing pie. And from the provider end the inflation worked its way down to every level — bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by inflated bills, which were produced by inflated hours.

And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.

We’re all still waiting for the change, however. One outcome of a change would be, I hope, a decrease in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every single piece of discoverable evidence (no matter how trivial or irrelevant).

And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down. They’re going to have to.

Want to become a practicing lawyer? Don’t go to Harvard! Nesson and Tenenbaum again.

Some of my favorite and most respected former colleagues in practice went to Harvard Law School, but, based on what I’ve been seeing out Charlie Nesson in his role defending Joel Tenenbaum in Sony BMG Music v. Tenenbaum, I have to seriously wonder what Harvard is teaching about the actual practice of law.

I took Nesson to task recently for using his role as lawyer in the case to fight a crusade against the music industry, not to give his client the best defense possible. That attitude alone destroys my confidence in Nesson’s ability to train anyone to be a lawyer.

Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.

It’s a dirty little secret that lawyers don’t like to make too much of: lawyers, not judges, win and lose cases. Lawyers don’t like to make too much of it because they want judges to believe they’re the ones from on high pronouncing judgment. But if you convince the judge you’re right and give him the tools to rule your way, you’ll win. It is remarkably pleasing to get an order from a judge ruling in your client’s favor and realize the order is merely a cut-and-pasted version of your brief. Why shouldn’t the judge steal my words if they explain his result as well as he can figure out how to explain them, and why should he trouble himself trying to find better ways to do so?

But Nesson doesn’t give the judge he’s seeking to persuade anything to work with. First, he’s asking the judge not to enter an order that would impose the jury’s verdict and the injunction against his client. But on what basis? Is he asking for judgment notwithstanding the verdict? What procedural rule is he filing his opposition to the entry of the judgment on? His Brief sure doesn’t explain the basis. Nor does it explain what he is asking the judge to do in lieu of entering the order? Dismiss the case? Lower the damages? Lift the injunction? Any or all?

Listen, students: when you write to the judge make sure she knows what you’re asking her to do and the legal basis she has for doing it.

I won’t get into all of the merits of Nesson’s arguments. I think he may well have a due process argument on the excessiveness of the statutory penalties, but even that one is a stretch.

But the argument he considers “first and foremost” is that “the statute in question does not permit a lawsuit against an individual consumer for statutory damages.” Brief at 1-2 (emphasis added). Having not graduated from Harvard myself, perhaps I am missing something. The operative statute, 17 U.S.C. Section 504(c), provides that “the copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, . . . .” (emphasis added)

Nor is there anything in any authority to suggest that Nesson’s incomprehensible conclusion that the statute does not contemplate imposing statutory damages on individuals is founded in sources to obscure for me to know.

Nimmer on Copyright, Section 14.04[a] provides: “Under the current Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant’s profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under circumstances in which plaintiff’s damages or defendant’s profits are susceptible to precise evaluation, represents a departure from the pertinent provisions of the 1909 Act.Under that former law, the availability of statutory damages was to a degree discretionary with the court and turned largely upon the proof of actual damages and defendant’s profits.” (citations and internal quotation marks omitted)

Patry on Copyright, Section 22:153 states: “Statutory damages are damages whose assessment has been fixed by the legislature. They have existed in U.S. copyright laws since preconstitutional days and stand in contrast to common law actual damages and an accounting of defendant’s profits. Recovery of actual damages or profits varies according to the harm suffered or the benefit received, without an upper limit on the recovery. Statutory damages have been believed to be particularly valuable where such relief is difficult to prove. The purpose of statutory damages has been noted a number of times by the Supreme Court.”

Thus, the court in In re Mann, 410 B.R. 43, 49 (Bkr. C.D. Cal. 2009), quoting Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (quoting Nimmer at § 1404[A] ), stated: “However, a plaintiff may elect statutory damages for copyright infringement ‘regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits.’” In Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990), the court explained that “the purpose of statutory damages is to remedy a wrong which would otherwise go unremedied if actual damages could not be proven.” See also Broadcast Music, Inc. v. Papa John’s Inc., 201 U.S.P.Q. at 305 (“Statutory damages were provided by Congress to create a remedy where actual damages [or profits] are not provable at law, but yet where it is proven that a violation of the copyright has occurred.”).”

In short, the plaintiff in a copyright infringement case has an alternative: he can prove and recover actual damages or seek the amounts allowed by statute. Such alternatives are common in situations in which it might be difficult for plaintiffs, even after having established statutory violations, to quantify their economic harm. It might even be argued that illegal downloading is precisely such a case — how can Sony BMG possibly quantify the sales, if any, it lost as a result of Tenenbaum’s unauthorized downloading of copyrighted songs.

Could I be wrong? Of course, but Nesson hasn’t begun to explain to me why. Instead, he’s made himself out to be someone who makes arguments that are patently false.

Don’t get me wrong here. I’m not on Sony BMG’s side. I think the music industry’s legal and business approaches to the technological revolution that has entirely undermined their old business models have been disasters, and I certainly don’t think Joel Tenenbaum should have to pay Sony BMG $675,000.

My problem is that Nesson is Tenenbaum’s lawyer and he hasn’t given me a good reason to believe he can get Tenenbaum free from that monumental verdict.