In loving memory of an American classic

Kota Ezawa, Slide 2006

This American Life tells the story of a “patent troll.”

NPR reporter Laura Sydell and This American Life producer/Planet Money co-host Alex Blumberg tell the story of Intellectual Ventures, which is accused of being the largest of the “patent trolls,” a derogatory term in Silicon Valley for companies that amass huge troves of patents and make money by threatening lawsuits:

Interview with me on News of the World scandal and its US implications

Charon QC, a UK lawyer (“after a fashion” – his words), interviewed me yesterday about the News of the World scandal and its potential legal and political implications for Murdoch in the U.S.

It may be old fashioned to say so, but what Righthaven is doing is Champerty.

There is a lot being written about Righthaven’s most recent loss in its campaign to enforce the copyrights in newspaper articles it purportedly purchased the right to enforce. I’ve pasted in a copy of the decision, Righthaven, LLC v. Hoehn,  below. What seems most significant about the decision to me is the judge’s finding that Righthaven does not have legal “standing” to pursue the copyright infringement claim for the unlicensed use of an entire Las Vegas Review Journal article. I’ve previously written about this problem with Righthaven’s “business” model.

The problem is that Righthaven does not actually buy the copyright to the articles it subsequently claims infringement of. Rather, it only buys the right to sue for infringement if infringement occurs. The copyright owner retains all the other rights that go along with the copyright. Thus, in Hoehn, as Judge Philip M. Pro explains, the agreements between Stephens Media, the owner of the Las Vegas Review Journal, and Righthaven “deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.”

In his treatise on copyright, William Patry states that a plaintiff in a copyright lawsuit “must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce. To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale of a right to sue to someone with no interest in the alleged wrong being sued on for a percentage of the amount recovered. As the Second Circuit Court of Appeals has explained, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).
Right Haven, LLC v Hoehn (D Nevada 2011)

Is a man’s home his castle? Apparently not in Indiana.

Here’s a breathtakingly broad decision: The Indiana Supreme Court, in Barnes v. State (pdf), ruled 2 days ago that “there is no right to reasonably resist unlawful entry by police officers” into your home. As NWI.com explains the decision:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

Justice Robert D. Rucker, in dissent, relied on the formerly well-founded belief that one’s home is one’s castle:

In Miller v. United States, 357 U.S. 301, 313-14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!”

Id. at 307. The same is no less true today and applies equally to forces of the State.

Bratz, Mattel, and Work for Hire: does copyright really protect the artist?

I often wonder if artists who cry loudly about the threat posed to creativity by insufficient “protection” of copyright are really useful idiots. That copyright is primarily about protecting the artist is questionable, not least because of the “work for hire” doctrine. In short, as the Stanford Copyright & Fair Use site puts it:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

The recent victory by MGA Entertainment over Mattel in the fight over the ownership of the copyright in Bratz dolls highlights the difficulties creators might face in connection with the work for hire doctrine. In part, the case turned on the distinction between an “idea,” which cannot be copyrighted, and its particular expression, which can. Carter Bryant was an employee of Mattel at the time he first developed and sold to MGA the idea for the Bratz dolls. As Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit explained in the 2010 decision overturning an earlier jury verdict in favor of Mattel, that idea in and of itself could not be claimed by Mattel merely because Bryant was its employee at the time:

Assuming that Mattel owns Bryant’s preliminary drawings and sculpt, its copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Otherwise, the first person to express any idea would have a monopoly over it. Degas can’t prohibit other artists from painting ballerinas, and Charlaine Harris can’t stop Stephenie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant’s sketches and say, “Good idea! We want to create bratty dolls too.”

But, as Jonathan Bailey at Plagiarism Today explains, Mattel’s claim was based in part on Carter’s employment contract, which stated that

I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company … all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon. (emphasis added)

The contract further specified that “the term `inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, knowhow, data computer programs and formulae, whether patentable or unpatentable.”

Mattel argued that the contract’s definition of “inventions” therefore gave it rights to any “ideas” Carter developed during the time of his employment. The 9th Circuit “conclude[d] that the agreement could be interpreted to cover ideas, but the text doesn’t compel that reading.” (emphasis added) It therefore left to the jury in the new trial to decide what in fact Carter and Mattel had intended the contract to cover. Plainly, the jury did not buy Mattel’s argument.

As Bailey points out, the issues involved in the case have very meaningful implications for all creators:

Generally, any work you create for an employer as part of your job becomes copyright of the employer, not you. However, almost instantly there becomes issues as to what is and is not part of your employment, especially when you do creative work on the side that is similar to the work you do for a living.

If you are an artist and do artistic work for your employer, when is your creative work done in the course of employment and when is it not? That is a difficult question in and of itself, but an artist must also pay close attention to his or her contract. While Carter and MGA prevailed over Mattel, your contract, might give your employer ownership over your very ideas if it states so clearly enough.

Is Righthaven committing Champerty? It sure seems so.

I’ve long thought of writing about Righthaven as an embodiment of copyright gone mad. As explained at Righthaven Lawsuits, Righthaven is an entity set up to purchase the rights to newspaper stories and sue for copyright infringement anyone who dares to quote from those stories online. There has been so much coverage, however, that anything I might have to say would have been redundant. And I’m not first on this point, but it’s one I cannot leave alone. Nate Anderson writes that it appears the agreements pursuant to which Righthaven purchased the rights to sue for the infringements of articles does no such thing. The problem, according to Anderson, is that Righthaven’s agreement

appears to give Righthaven only the right to sue over the story or photograph at issue, but not to exploit it in any other way. Past court cases have ruled that companies cannot bring copyright suits unless they control one of the “exclusive rights” enumerated in the Copyright Acts, rights including copying, distribution, public performance, etc. The “right to sue” is not among them.

Indeed, Anderson seems to be right. The “Strategic Alliance Agreement” between Righthaven and Stephens Media LLC (embedded below) states in its section 7.2 that Righthaven has no rights in the works it is purchasing rights in except those rights associated with suing for suing for copyright infringement in those works:

Despite any such Copyright Assigmnent, Stephens Media shall retain (and ishereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery. (emphasis added).

In his treatise on copyright, William Patry states “Plaintiff must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce.  To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit. As the Second Circuit Court of Appeals has explained it, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).

Strategic Alliance Agreement Between Righthaven and Stephens Media

Tasini v. Huffington Post — frivolous, not creative.

I’m not normally one to bemoan the bringing of lawsuits, and I’m not even bemoaning the fact Jonathan Tasini is able to bring his lawsuit (pdf) “against the Huffington Post [that] hinges . . . on the idea that the site, and Arianna Huffington herself, were ‘unjustly enriched’ in the $315 million sale to AOL because bloggers like him worked for free.”

But I do think b.s. is b.s., and no matter how “creative” Tasini believes his lawyers are, there is no claim here for “unjust enrichment.” As West’s Encyclopedia of American Law explains, unjust enrichment is a theory of legal recovery for a benefit conferred upon someone under circumstances that make it just to pay for that benefit:

Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or unconscionable for the defendant to enjoy the benefit of the plaintiff’s actions without paying for it.

The problem with Tasini’s theory is that neither he nor the other people who wrote for the Huffington Post expected compensation. In fact, they agreed to write for the publication on the understanding they would not be paid. In short, Tasinin had a contract — he would write his pieces, and the Huffington Post would publish them. That he had a contract is, precisely, the problem with his legal claim. Unjust enrichment is only available as a means of legal recovery where there is no contract governing the transaction in question. If there is a contract, the contract determines the terms of the relationship, and it is is by definition not unjust for people to be bound to the terms of a contract they freely entered into.

Tasini is plain wrong when he says otherwise:

The whole legal theory is clear. For unjust enrichment it’s almost irrelevant what agreement was done up front. Unjust enrichment is irrelevant to whether I blog for free or not.

It is true that there is always room for creativity. And it is true that in the face of novel claims one should keep an open mind and pay attention to the evidence and the arguments. But being open to creative legal claims is one thing and being just plain wrong is another. Tasini is just plain wrong:

It’s a novel claim, using some creative thinking by a couple smart young lawyers. You never know how a court is going to rule.

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

The negative impact of the internet on music sales has been greatly exaggerated. I’m shocked, shocked.

From Ernesto at TorrentFreak, an excerpt:

In 2010 the BPI reports that there were 281.7 million units sold, which is an all-time record. Never in the history of recorded music have so many pieces of music been sold, but you wont hear the music industry shouting about that. In fact, the music industry is selling more music year after year and today’s figure is up 27% compared to the 221.6 million copies sold in 2006.

But, instead of praising the increasing consumer demand for music, the industry cuts up the numbers and prefers to focus on the evil enemy called piracy. By doing so they spin their message in a way that makes it appear that piracy is cannibalizing music sales. But is it?

In their press release the BPI points out that album sales overall were down by 7%. Although digital album sales were up 30.6%, physical CDs were down by 12.4%. If we believe the music industry, this drop in sales of physical CDs can be solely attributed to piracy. This is an interesting conclusion, because one would expect that piracy would mostly have an effect on digital sales.

We have a different theory.

Could it be that album sales have been declining over recent years because people now have the ability to buy single tracks? If someone likes three tracks from an album he or she no longer has to buy the full album, something that was unimaginable 10 years ago.

This theory would also fit the sales patterns of the last few years, where album sales are down year after year while the number of individual tracks sold is increasing rapidly. In 2010 the UK music industry sold 161.8 million singles (digital and physical) compared to 66.9 million in 2006. Where does piracy fit in here?

Could it possibly be that piracy is only affecting album sales and not single sales? Would that make sense?

Or could it be that the consumption habits of the average music consumer have changed in the last decade?

Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

On the internet, they’ll find out you’re a dog if you bite.

I’ve made clear I consider anonymity on the internet a stance often abused and almost always one that detracts from the speaker’s credibility, but it also can be a legal problem when anonymous writers do real damage, without justification, to the targets of their words. As SignOn San Diego reports:

A business consultant who wants to know who’s been anonymously disparaging and fixating on her online has gotten a court to force Google to tell her.

As she joined a growing number of people who have persuaded courts to unmask troublesome cyber ciphers, Carla Franklin said Wednesday she hoped her case would help others combat similar problems.

As Bennet Kelley makes clear, you do have a right to speak anonymously, but that right doesn’t mean you have the right to use your words to harm someone without justification:

“There’s a tension there – there’s a First Amendment right to be able to speak anonymously, but there’s no First Amendment right to violate the law,” said Bennet G. Kelley, a Santa Monica, Calif., attorney who specializes in Internet law.

“People think: ‘It’s the Internet. I can do whatever I want,’” he said, but “the law applies, online and offline.”

Fighting Facebook’s overreaching.

I’ve written plenty about copyright overclaiming and its pernicious tendency to stifle clearly legitimate appropriation of copyrighted works. 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.

Of course, the over zealous assertion of purported legal rights by wealthy litigants to cow the less wealthy is not the type of behavior limited to copyright. It comes arises in all legal fields. And, unsurprisingly, Facebook apparently is prone to the practice. As Boston.com reports:

Boston-based Where Inc. has developed an application that helps users find places they might like to visit. You can save it in something called a Placebook.

Just one small problem. The owners of Facebook have apparently decided that Placebook is in violation of its intellectual property rights. Facebook argues that companies like Placebook create confusion among consumers, thereby diluting the value of their unique brand. (Hyperlink added.)

It seems to me a bit of a stretch to worry that someone would consider Placebook to be a product of Facebook. And while Facebook is a pretty brilliant name, it’s hardly original — filched as it was, after all, from the colloquial term that Harvard and many other colleges give to the photo directories they distribute to students. (At my undergraduate institution it was known as the “Pigbook.”)

But Facebook doesn’t have to worry too much about the legitimacy of its claim as long as it’s just legitimate enough to pass the giggle test and thereby scare potential defendants into giving up without a fight:

In a cease-and-desist letter to Placebook’s lawyer a couple of weeks ago, Facebook’s lawyer wrote that, in the US alone, it has successfully intervened to prevent the registration of the trademarks Officebook, Flickbook, Geezerbook, Doctorbook, Lawyerbook, and my personal favorite, Redneckbook, which would have been a website for the hunting-and fishing crowd.

Placebook, however, is not so easily bullied. Just as importantly, Placebook has a lawyer who recognizes bullying when she sees it:

“I think Facebook is having an identity crisis and they are acting like predators,’’ said Kimberly B. Herman, an attorney at Sullivan and Worcester who is representing Placebook. “It’s very predatory and not reasonable.’’

In previous cases, Facebook has gotten its way simply by firing off a threatening letter, according to Herman. That’s what happens when a company valued at nearly $7 billion unleashes its legal might against start-ups. “Every entity has rolled over and died, because no one has $6.9 billion to fight them,’’ Herman said. (Hyperlink added.)

The writer of the Boston.com piece agrees with me in thinking that “consumers are smarter than Facebook gives them credit for and are not likely to get Placebook and Facebook confused.” Unfortunately, “a court may have to decide that — if, of course, Placebook doesn’t back down, as others have.” Here’s hoping Placebook has the resources to send Ms. Herman out to fight for them.

Who owns Franz Kafka’s papers?

I’ve written before about my skepticism over allowing the dead to exert control over the living to a sufficient degree that we the living are deprived of cultural riches. And just last week I discussed this point with a student in connection with copyright. She expressed disappointment in Douglas Adams’ posthumously published work and wondered whether it wouldn’t have been better for him if nothing he hadn’t authorized for publication had been published. I explained that I don’t think it affects Douglas Adams, a dead man, one bit whether or not stuff he didn’t want published is published but that it might affect us a great deal. Not being the greatest fan of Adams, I brought up Franz Kafka, who legendarily told his friend Max Brod to burn his papers upon his death. Brod, of course, ignored the request. It seems to me it would’ve been an undeniable tragedy if instead Brod had obeyed his friends wishes.

My real point — and the point that drives a lot of what I write on this blog — is that we confuse things and act to our cultural detriment when we treat intellectual “property” like we treat real property. And that confusion of course extends to the ways we give dead people continued influence over their intellectual and artistic creations. So it seems serendipitous that in this coming Sunday’s New York Times Magazine Elif Bautman has an article about the ongoing legal battle in the Israeli courts over the fate of Franz Kafka’s personal papers.

Bautman asks precisely what I would:

The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone’s private property. Isn’t that what Brod demonstrated, when he disregarded Kafka’s last testament: that Kafka’s works weren’t even Kafka’s private property but, rather, belonged to humanity?

But Eva Hoffe and Ruth Wiesler, the daughters of Max Brod’s secretary and presumed lover, are claiming that Kafka’s paper are their property and that they should be permitted to sell them. They are being opposed by the National Library of Israel, which is claiming a right to the papers under Brod’s will. Brod brought the papers along with him when he emigrated to Palestine after Kafka’s death.

It’s an interesting legal case — there are Brod’s inconsistencies, including words that indicate he meant to convey the papers to public authorities in Israel and actions that might seem to indicate otherwise; the eccentric daughters of Brod’s secretary/lover, the more important of whom in this battle seems to fit the caricature of a batty old cat lady; and, of course, the overarching presence of Kafka himself, over whose legacy this kind of legal battle seems, in retrospect, well . . . almost inevitable.

As one Israeli writer interviewed in the story explains:

If Brod could see what was happening now, . . . he would be horrified.” Kafka, on the other hand, might be O.K. with it: “The next best thing to having your stuff burned, if you’re ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters who keep it in an apartment full of cats, right?”

Whatever works, works. If it’s not hot news, it’s copyrighted opinion.

Whatever works, works. It’s a message I always try to pound into my students. No matter how brilliant you think one argument is, the judge’s mind might be captured by another. Which makes the editing out of an argument so weak it detracts from the strongest arguments so tricky. I remember one time winning a case on an argument my colleagues and I had concluded was too silly to bother making. But in that situation at least we knew one of our client’s co-parties in the case had made it so we knew the judge would see it. Sure enough, it was the argument that one us the case. The client was happy. And so were we.

As the Copyright Litigation Blog reports, just such a thing happened in Agora Financial, LLC v. Samler (D. Md. June 17, 2010) (pdf). The plaintiff, a financial newsletter, sued a website that had had lifted and republished the plaintiff’s investment recommendations. The plaintiff sued, claiming that the defendants actions were “Hot news misappropriation” and violated Section 43(a) of the Lanham Act.

“Hot news” is a relatively recent coinage that, in the words of Thomas Shevory, “refers to written material, often ‘facts,’ that have value for a short duration, and which will soon move into the ‘public realm’ losing their value completely.” Thus, news organizations have argued that “hot news” is entitled to protection. One problem with the argument is that facts alone cannot be copyrighted. As Shevory writes, “[g]iven the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking.”

So what did the court in Agora Financial do? It ruled for the plaintiff-financial newsletter and held that the defendants’ appropriation was unlawful, but it avoided the difficult question altogether. It held instead that the appropriated material constituted “opinion” — not “fact” — and thus are entitled to copyright protection. The appropriation, therefore, constituted copyright infringement.

Not only does the case illustrate that you can win — and welcome the win — on different grounds than you argue, but that courts tend to find whatever way they can to avoid controversial reasons to find the way they want to find.

Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.

What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the grounds that Garcia shot it as a “work for hire.” The fact that the claims by Garcia and against him have been discontinued by agreement of the parties “with prejudice” means that Garcia has given up any right to re-assert those claims in the future. The agreement constitutes a final, binding determination that the copyright in the photo belongs to the Associated Press.

It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Fairey’s poster infringes the copyright in the photo. But it does illuminate those familiar with the history of copyright know — the enlargement and enforcement of copyright has always been more about protecting the interests of publishers than it has been of promoting artistic creation:

There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers . . .

Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.

I don’t think so, and the discussion of the issue of an infringer’s bad faith in NXVIM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004) helps illuminate why. The Second Circuit Court of Appeals (whose decisions are binding on the court deciding Fairey v. AP) in NXVIM affirmed the lower court’s denial of a preliminary injunction on the grounds that NXVIM, the producer of a “business training seminar,” had been unable to show it would likely prevail on its claim that the defendants had infringed NXVIM’s copyright in a training manual for one of their online courses. The defendants had posted to the internet quotations from the manual in support of their analyses and criticisms of NXVIM’s activities. NXVIM argued to the Second Circuit that the lower court had inadequately considered the defendants’ “bad faith” in obtaining the manual from a former participant in the seminar rather than by purchasing it, as anyone could do.

The majority did in fact state that “it was error for the district court not to have fully and explicitly considered” the defendant’s bad faith, which presumably included inducing the former course participant to breach a confidentiality agreement by disclosing the course materials to them. The court did not reverse the district court’s decision, however, because the bad faith did not alter the conclusions that the use was a non-infringing one. In short, according to the majority, a defendant’s bad faith is not “dispositive” on the fair use question and consideration of all of the factors — and in particular the first, the “purpose and character” of the defendants’ use of the copyrighted material — was so great: “the first factor still favors defendants in light of the transformative nature of the secondary use.”

It is difficult to get a handle on how much weight, if any, the majority would therefore give to bad faith in the fair use analysis. It would have some weight, the majority seems to indicate, but not that much. Judge Dennis Jacobs‘ concurring decision is even more illuminating, however, and gives good reason to believe that the true weight to be given bad faith as a factor independent of the rest of the fair use analysis should be zero. After reviewing the rather recent history of the role of a defendant’s bad faith in fair use analysis, Judge Jacobs states rather bluntly:

I think that the secondary user’s good or bad faith in gaining access to the original copyrighted material ought to have no bearing on the availability of a fair use defense. Fair use defines the outer boundary of copyright protection, and that perimeter should be drawn by reference to the central objectives of copyright. Copyright itself would be distorted if its contours were made to depend on the morality and good behavior of secondary users.

To support his reasoning, Judge Jacobs pointed out first that the use of bad faith in fair use analysis had its origins in the Supreme Court’s 1985 decision in Harper & Row v. Nation Enterprises, in which the Court held that the Nation magazine had infringed Harper & Row’s copyright in the memoirs of former President Gerald Ford when it published a chapter from the memoir in the magazine in advance of the publication of the memoir. As Judge Jacobs makes clear in NXVIM, the fact the Nation obtained the manuscript illicitly tipped what was generally considered a close case in favor of the publisher.

One might question in retrospect precisely how close a case Harper & Row really was. The chapter the Nation published was the chapter Ford wrote about his pardon of the disgraced Richard Nixon. It seems quite likely that many people who would have purchased the book for that chapter alone (it was clearly the most noteworthy event of Ford’s political career) would have purchased the magazine and therefore not bothered with the book. In other words, the infringement very directly robbed the copyright holder of a significant amount of value that the copyright holder had every reasonable expectation it would derive from the sale of the book.

But Judge Jacobs points out too that in its post-Harper & Row decision in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), the Supreme Court backed off the suggestion that bad faith was part of the fair use analysis, stating that the core of the fair use analysis must remain on (1) the transformative purpose of the appropriating work and (2) whether the appropriating market “usurps a market” that belongs to the copyright holder:

Campbell’s footnoted discussion questioning the pertinence of good faith reinforces the entire thrust of the decision, which requires that fair use be assessed primarily in light of whether the secondary work quotes the original with a transformative purpose and whether it usurps a market that properly belongs to the original author — issues as to which the defendant’s good faith in accessing the plaintiff’s original work does not matter.

In other words, according to Judge Dennis, “the fair use defense exists to encourage the creation of original works that do not ‘supersede the objects’ — and thus the market value — of the original. Nor is fair use a doctrine a privilege we confer on people we like. It is not ‘earned by good works and clean morals; it is a right — codified in § 107 and recognized since shortly after the Statute of Anne — that is ‘necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of science and the useful arts….”‘ Campbell, 510 U.S. at 575, 114 S.Ct. 1164 (quoting U.S. Const., art. I, § 8, cl. 8).”

Thus, while someone’s bad acts may subject him to criminal or civil prosecution on a number of grounds, they should not bear on the fair use analysis:

A person who acquires the original work by crooked or unsavory means may expose himself to all sorts of civil claims and criminal charges; but the question of fair use itself should be decided on the basis of the transformative character and commercial effects of the secondary use. If the use satisfies the criteria of § 107 [of the Copyright Act], it is fair because it advances the utilitarian goals of copyright.

Shepard Fairey’s deceit in the course of discovery in the lawsuit has been uncovered, and it can be punished through civil sanctions or even criminal prosecution. But it should not affect the court’s determination of the artistic legitimacy of the Obama Hope poster. “[C]opyright is not about virtue; it is about the encouragement of creative output, including the output of transformative quotation. Its goals are not advanced if bad faith can defeat a fair use defense.” Nor is “good faith” a factor in fair use determinations. Willing as you may be to pay a license fee, if the copyright holder refuses to sell you a license and your subsequent unauthorized use is infringing, your willingness to pay is of no credit to you in the fair use analysis.

In short, as Judge Dennis so cogently puts it, fair use is central to the copyright regime; it is not a tolerated exception to the copyright holder’s domain:

Fair use is not a permitted infringement; it lies wholly outside the domain protected by the author’s copyright.

A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra

Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best lawyers embody. There’s no question Rosenberg was no fan of Franz Welser-Möst, the Orchestra’s conductor. There’s no question his views on Welser-Möst were shared by many (though by no means all). There’s no question the repeated expression of those views irritated the Orchestra. So, what should have happened? Perhaps the Plain Dealer could have split up the reviews of the Orchestra between Rosenberg and another reviewer. Perhaps they could have published “dueling” reviews.

In short, there were things the Plain Dealer could have done to address the problems they perceived short of the ham-handed way they did handle it. Indeed, it may have been a better idea to have reassigned Rosenberg years earlier, at the point the Orchestra replaced Christoph von Dohnányi, whom Rosenberg was a fan and friend of, with Welser-Möst.

Let that be a lesson. Anticipate and address problems, and address them creatively, not in blunt fashion that exploits nothing more than your clients power.

That’s not to say, as should be clear from all I’ve written on this affair, that I think Rosenberg did a wise thing in suing in response to the Plain Dealer’s ham-handed way of dealing with the problem. As I’ve said from the beginning, it was very unlikely that Rosenberg would prevail on any claim in his lawsuit. Nor was it a situation the defendants were likely to settle in order to resolve what little legal uncertainty did exist for them. The Plain Dealer and Cleveland Orchestra’s biggest problem resulting from the lawsuit wasn’t any potential damages they might have to pay, no matter how unlikely — rather, the biggest problem was the hit Rosenberg’s claims had on their reputations. His claims resonated in the larger world. At times he seemed almost like a martyr to the cause of critical integrity. And, indeed, the problems caused by our corporate media’s corruption by the subjects they cover is a huge one (though I happen to think Rosenberg’s situation is a rather minor instance of it, if it even is an instance of it).

If the Plain Dealer and the Orchestra had settled the lawsuit, the perception would have been that they had conceded on the issue of undue influence by the Orchestra over the newspaper. Since the perception of that influence was their biggest problem vis-a-vis Rosenberg, they could ill afford to settle. Settlement was even less attractive since their legal position was so strong. So this lawsuit was not going to settle. And in all likelihood — a very strong likelihood that I would never deem a certainty only because law doesn’t permit certainty any more than does, say, medicine — Rosenberg was going to lose (as I’ve said from the very beginning).

And what did Rosenberg have to gain by suing and losing? I don’t think he gained anything. If anything, having had a jury declare his claims without merit, he seems less compelling a figure than he did before the trial. There’s the virtual certainty the lawsuit cost him quite a bit of money. And lawsuits are not fun for litigants.

Some suggest that the mere fact of discovery in the lawsuit made it a worthwhile endeavor. But what did we learn as a result of the evidence compelled by the lawsuit? That the Orchestra didn’t like Rosenberg’s repeated negativity, and that the Orchestra wasn’t alone.  That the Orchestra expressed these views to the Plain Dealer. Unlike Tim Smith, I see nothing noteworthy in Anne Midgette’s belief that the trial disclosed something new about the Orchestra’s role in Rosenberg’s reassignment. One would have to be particularly naive to believe that the Orchestra would not express its disagreement to the Plain Dealer with Rosenberg’s repeated negative views regarding Welser-Möst. Finally, we also learned, as we would have known with a second’s thought before the lawsuit, that the Plain Dealer’s editors know less about music than Rosenberg.

We knew all these things already. So the lawsuit did nothing but hurt Rosenberg, cost the defendants and taxpayers money, and generate a lot of material for a few writers.

One final word: I do not mean to say Donald Rosenberg had no right to file the lawsuit. He had every right, and assuming he knew that he was very likely to lose, I would even have been happy to represent him. I would have been clear to him, however, that I did not see the benefit he was deriving from it. There’s no question I would have derived a lot of benefit from it. He would have paid me, and it would have been a fun and interesting lawsuit to be part of.

Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

Janice Harayda has arranged and agreed to moderate a twitter chat on the Donald Rosenberg lawsuit against the Plain Dealer and the Cleveland Orchestra tonight at 9 p.m. EDT. I will be fortunate enough to be participating with Tim Smith, the classical music critic for the Baltimore Sun. The hashtag for the chat will be #DonR.

Addendum: Rosenberg’s claims against the Plain Dealer are grounded in an article he wrote for the newspaper on August 25, 2004, an article which, he claimed, provoked a concerted campaign on behalf of the Cleveland Orchestra to have the Plain Dealer assign someone else to review their concerts. Four years later, in 2008, the Plain Dealer reassigned him. For informational purposes, the relevant portions of the 2004 article are set forth below:

Welser-Möst speaks out

Some of Welser-Möst’s comments in current Swiss magazines have raised eyebrows.

In Weltwoche, under the headline, “Many Rich Widows,” he discusses private funding for culture in the United States, deeming it necessary to find “rich widows” and that “charm certainly is no disadvantage when you want the ladies to understand you well.”

Welser-Möst refers to the Friday-matinee audiences in Cleveland that are filled with “ ‘Blue Hair Ladies’ because of the coloring of their hair” and states that these “so-called ‘Blue Hair Audiences’ ” largely comprise retirees who are too tired to attend performances at night.

Asked what the ladies must donate to meet Welser-Möst personally, he answers: “For $500, you don’t get a handshake from the music director.”

And for $5,000? “No, it has to be a little more than that. A few years ago, an enthusiastic middle-age fan, in this case a man, moved a check across the table for $10 million. With such a person, of course, you go to dinner.”

How do you like Cleveland? “Cleveland is an island. Here we have a world-class orchestra in what I call an inflated farmer’s village. For me, who loves the country, it is wonderful to live there among the green. Recently in the street in front of my home, I found a huge turtle. It had not escaped from the zoo. It was just walking in the street.”

Why I didn’t like Donald Rosenberg’s lawsuit against the Plain Dealer and Cleveland Orchestra.

I want to expand a bit on why I don’t believe a lawsuit of the sort Donald Rosenberg brought is a useful way of enforcing journalistic integrity. My opinion, of course, is grounded in the belief I’ve had since I first heard of the lawsuit that there was little if any legal merit in it.

First, our legal system is intended to remedy individual harm. It does so by limiting the power of courts to decide individual cases brought be people with a genuine stake in the controversies they sue over. Courts do not have the power to decide hypothetical questions. They do not have the power to decide concrete questions if they parties who sue aren’t the parties who have actually suffered direct harm resulting from the alleged wrong. And our legal system is overwhelmed. People wait years for justice in cases where the harm is serious and direct. To allow lawsuits to proceed merely because they involve behavior we don’t like, therefore, is to do plenty of harm.

Some have suggested that, regardless of the merits of Rosenberg’s lawsuit, the discovery forced by the litigation serves a useful function in disclosing information about behavior they didn’t like. Discovery is a powerful mechanism for forcing people to disclose information. And so it is a dangerous game. When you seek discovery, discovery is sought from you as well, and it’s tough to put a limit on things. So, if you sue, be ready to open up your own life to the public. And if you are sued, don’t believe for a minute that you won’t have to open up your life.  Litigation is a dangerous game.

Paradoxically, while discovery discloses a lot, we should understand too that it doesn’t disclose everything. Parties to a lawsuit seek discovery about the matters they care about and deem it worth their while and their money to go after. They disclose to the court and the public only portions of the information they seek and obtain. So what the public actually receives is never the entire picture. It is as selected, shaped, and manipulated as is any other set of facts.

It’s plain that those rooting for Rosenberg in his lawsuit were convinced of the soundness of his critical writings regarding the Cleveland Orchestra. But I’m not exactly sure whether they want courts and juries to start engaging in the kind of aesthetic and critical evaluation that would be required to distinguish Rosenberg’s legal claims from those brought by some hack they would consider the Cleveland Orchestra to be entirely right to complain about. To do so would require the court to determine which reviews the Orchestra had a legitimate beef about and which reviews the Orchestra did not have a legitimate beef about. I can’t believe that anyone would be happy with that going on.

And the only other answer to that problem would be to forbid the Cleveland Orchestra or any other journalistic subject to opine about the quality of the coverage afforded them. Besides the obvious First Amendment problems, that alternative is plainly unworkable.

Has the Plain Dealer’s credibility been damaged? I think so, though to be honest I’m not sure that Rosenberg’s lawsuit caused that damage. Rather, the decision to reassign Rosenberg and the ensuing hue and cry from the musical and critical worlds did that. If anything, I suspect that having lost the lawsuit, Rosenberg may have revived some of the Plain Dealer’s lost reputation.

Finally, I hate the fact that Rosenberg likely paid good money for what plainly to me seemed a losing set of claims. And if, as I hope, his lawyer was representing him on a contingency basis, I’d be pretty pissed off if I were his lawyer’s partner or employee.

Addendum: I’ve been asked why, given that Rosenberg’s age discrimination arises under Title VII, which is federal law, the case was heard in state court. Federal courts do not have exclusive “jurisdiction” (that is, judicial power) over Title VII claims. State courts are courts of “general jurisdiction” and therefore can exercise judicial power over any claims, though Congress can restrict jurisdiction over federal claims to federal courts. In 1990, the Supreme Court ruled that Congress had not done so (explicitly or implicitly) in Title VII.