Barely Legally

Confessions of a Moot Court Bailiff

Only Wikipedia

It’s not the world’s most accurate resource on lots of things, I’ll concede. But do you know how much a subscription to Helicopter Prison Escape Quarterly costs? It’s not worth the expense, in my expert opinion. Just go read the Wikipedia article. My favorite on the list is Pascal Payet, who has apparently escaped from prison in a helicopter three(!) times.

Just think of the Wikipedia articles in fifty years: the List of Jetpack Prison Escapes is waiting for us, in the future.

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Actually, it's a Bargain

Remember that iPhone app a while back that sold for $1,000 and didn’t do anything other than show people that you spent $1,000 on a single app? That crazy idea netted some programmer $5,600 before Apple took the program down, to the mixed delight and horror of the collective internets.

There’s a new kid in the $1,000 iPhone app club, though. And this one is nowhere near as nonfunctional as the last one. The program in question is called “BarMax,” made by a company of the same name. BarMax (the company) offers bar review courses for recently-minted J.D.’s who hope to pass the California Bar Exam. Courses in New York run about $3,000: the idea that you can get the materials you need to pass for a mere thousand dollars sounds dirt cheap.

I found the sticker shock of an iPhone program amusing, especially considering how reasonable it is by bar review course standards; doubly so, considering that it’s dwarfed by the the cost of law school itself. Hell, we’ve all mortgaged our futures to get here. What’s another Cleveland between friends?

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The Office (Problem)

The patent system is designed to promote the progress of the useful arts and sciences: Congress is given the authority to do crazy, un-capitalist stuff like give an inventor a monopoly on his shiny new “machine that peels potatoes in the shape of Hitchcock’s silhouette.” Oh, sure, we limit the time to a couple of decades, but it’s an iron-clad right to hock those tater obliterators (When my legal career fails to materialize, I’m inventing this and laughing all the way to the bank.) without limitation, right?

Not exactly.

A recent case involving Microsoft’s popular Office software nicely illustrates the difference between (1) a right to sell your invention and (2) the right to exclude others from selling your invention. At first, they both might seem like monopolies: if you patented an invention, you’re the only one with the right to sell it. However, when people have patents that slightly overlap one another, you run into problems.

In the finest legal tradition I have to offer, consider this hypothetical. Abel invents a new kind of chair; it’s pretty cool, and he patents it. Later, Cain comes up with a way to make Abel’s chair recline. (The patent system allows for experimentation and tinkering with other peoples’ patented inventions.) Cain can still get a patent on his invention, even though it involves Abel’s chair; but if you’re the King of Patents, (The President has yet to appoint anyone to this position, strangely.) what do you give him? Does he get that right to make and sell the chair, or that right to exclude others from making the chair?

Giving Cain a right to make and sell the reclining bits attached to the actual chair that Abel invented would be punishing Abel for not inventing enough, right? If Cain can sell a reclining version of Abel’s chair, Abel will have a hard time selling his own version. (Ostensibly because it’s more boring than Abel’s. I don’t know. Work with me here: pretend that we’re talking about things more exciting than chairs.) We don’t want the patent system to tell Abel to come up with (1) a new chair, (2) a reclining version of that chair, (3) a flying version of that chair, (4) a time-traveling version of that chair, and so on, or risk losing his ability to sell his modest chair as soon as one of those better chairs is invented (and patented) by someone else.

The solution the patent system comes up with is not to give an inventor an exclusive right to make and sell. Rather, we give an inventor the right to keep others from manufacturing the invention. This neatly sidesteps the issue of whether Cain should even be able to get a patent on a reclining version of Abel’s chair. Give Cain all the patents you want: all he can do is keep Abel from making reclining, flying, and time-traveling versions of his boring chair. Abel, in turn, keeps Cain from making the “chair” bits of the “reclining chair” — these bits can be safely assumed to be essential to customer satisfaction. Without them, all Cain is really selling is a footrest, a lever, and some gears. The two gentlemen will have to resort to some other means to settle their stalemate.

Thus, the patent system lets you invent something and prevent people from using it, even if you can’t use it yourself.

What Microsoft has been enjoined (the legal term for “prevented by a dude with a powdered wig”) from doing is selling Microsoft Office, which has a feature that lets it open and save something called an “XML” file. As it turns out, a company called i4i already owns a patent on this specific way of handling an XML file. Even though Microsoft invented a fancy chair, (one that opens DOC files, and TXT files, and has an animated paper clip ask me if I need help every five goddamn seconds) i4i has invented the simple chair.

The inventor of the simple chair (i4i) can keep the inventor of the fancy chair (Microsoft) from combining the simple chair (XML plugin) with the fancy bits (everything else Microsoft Office does), and selling the fancy chair (Microsoft Office as it existed last week). Which is exactly why Microsoft had to pull copies of their software off the shelves last week.

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It's Pronounced "Twenty Ten"

Just like 1910, 1810, and so on back to 1110. I’m not sure if anyone said 1010, as they were probably too busy running around with giant swords and slaying orcs to worry about calendars. At least that’s what all my history books said.

This year is going to be pretty cool. To celebrate, I’ve compiled a list of things that we can expect out of this fledgling year:

  • January: The longest eclipse of the century will occur over the Indian Ocean. Also, I will write this blog post. Both of these occurrences were foretold by the Mayan Calendar.

  • February: The Winter Olympics kick off and end. I really look forward to seeing how the icebergs affect Michael Phelps’s backstroke.

  • March: Through the use of the Stargate, the evil aliens known as the Aschen will attempt to make the human race extinct.

  • April: Nothing important happens. I don’t know, someone’s probably going to sue someone or something. Oh, and my last law school class ends.

  • May: I get my J.D., and make everyone call me “Doctor.” I should probably just have put another joke about Michael Phelps here.

  • June: World Cup! Also, I start studying full time for the Bar Exam.

  • July: World Cup! Also, full-time studying for the Bar Exam comes to a dramatic conclusion in a two-day essayfest.

  • August: “Local Man Killed Burning Old Outlines and Highlighters in Post-Exam Catharsis; Outlines in Stable Condition.”

  • September: Ex-law students everywhere wake up from their post-bar hibernations.

  • October: Ex-Law students everywhere hedge their bets by taking the October 2010 LSAT under fake names, in an attempt to make law review on a second pass through law school.

  • November: Bar Exam results come out. This will be the most frightened I will get checking a web page since that time I ran a Google search for my name after a particularly rowdy Spring Break in ‘04.

  • December: I will finally get around to writing a second blog post this year.

Happy New Year, everybody!

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(Almost) Dead?

There’s a very good explanation for why I’ve shirked my bloggy duties for eight weeks. I’ve been given a once in a lifetime opportunity to work at an unbelievably high level of government, which is all I really want to say at the moment. I’ll resume updates sooner rather than later, when I return above water to breathe air, as mammals are wont to do.

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(File) Sharing is Not Caring

Jammie Thomas isn’t the only file-sharer to choose to litigate her defense. While it’s true that most people the RIAA sues for copyright infringement elect to settle (or point out that they don’t own a computer, or that they’re dead), a graduate student named Joel Tenenbaum has just finished litigating his defense in a civil copyright suit against the RIAA.

I think it’s safe to say that it could have gone better. A few weeks back, I wrote about JNOVs, noting that

…when a judge overrules a jury, and issues a verdict notwithstanding the jury, she is not deciding issues of fact. The judge is not permitted to decide that a witness is lying, or that there’s simply no way Billy’s alibi could be true. (As always in our legal system, there are exceptions…)

The Joel Tenenbaum case is a sterling example of a judge being permitted to direct a jury’s verdict. Mr. Tenenbaum testified that he willfully downloaded the songs in question willfully, and that he infringed on the copyright of the RIAA in doing so. When the defendant testifies under oath that he has satisfied all the elements of the crime or tort in question, there are no more issues of fact to be resolved. If there aren’t any issues of fact for the jury to decide, the judge may direct a jury which party the should return a verdict for.

That’s precisely what Judge Nancy Gertner did. While she refused to rush into a directed verdict, after carefully reviewing the transcript of Mr. Tenenbaum’s testimony, Judge Gertner granted the RIAA’s motion for a directed verdict. The jury then decided that $675,000 for 30 songs was just about fair, meaning that the cost of downloading a single song is $22,500. At that price, iTunes starts to seem like a bit of a bargain.

Some commenters have expressed outrage at the verdict, but the fact is that there are lots of things you can do that receive disproportionate penalties. Speeding tickets, littering tickets, parking at expired meters, and even some of a medical malpractice judgments are all good examples of disproportionate penalties for pissing off society. Deterrents are supposed to be disproportionate. That’s why they deter.

Really, once Mr. Tenenbaum’s fair use defense was rejected (before the trial began), the result was largely a foregone conclusion. The only real question was how severe the damages would be: the statute provides for anywhere between $750 and $150,000 in damages per song. The damages of $22,500 per song is less than a third of the median $75,375 per song. On the other hand, it is 22,500 times more than it would have cost Mr. Tenenbaum to buy the songs. Even if the RIAA got to pocket half of the price of the songs they sold, they’re getting in damages 45,000 times more than they would have gotten from selling the songs.

Neither the Thomas nor the Tenenbaum cases were cases that the RIAA was in any danger of losing. While Mr. Tenenbaum had a good PR campaign on his side, the fact is that he was gambling on the Fair Use defense. It’s hard to see how a judge could give Mr. Tenenbaum the benefit of the fair use defense without completely eviscerating copyright as a whole.

Copyright is, essentially, a monopoly on the fixed expression of an original idea. Do you have a great idea for a play about teenage lovers caught between two warring families? You’d better write it down. What’s that? You say that Bill Shakespeare got there first, like four hundred years ago? Well, then, the parts of your tale of woe that are public domain, like the “teenage lovers caught between two warring families” are probably not going to be protected by copyright law.

But the vulgar limerick that Homey O. recites to melt Daddy Cappy’s heart, and get him to agree to let the two young lovers live in peace? That specific part of your tale could be protected: you could have a monopoly on the use and sale of that limerick. Who knows? It might be compelling.

But your monopoly isn’t absolute. Neither is the monopoly that copyright affords the RIAA over the songs their employees write. The only real avenue for appeal that Mr. Tenenbaum has remaining is the Fair Use defense.

What Even is Fair Use

Fair Use is kind of a “yeah, but” defense: you concede that the plaintiff has a copyright on the stuff in question, but you say that your use was of a harmless or worthy enough nature to fall within the safe harbor of the Fair Use provision of the copyright law.

The four factors are explicit in the text of the act themselves. The “purpose and character” of the use (let’s use Mr. Tenenbaum’s illicit downloading as an example) refers to the infringer’s use of the works in question: was it for commercial or noncommercial purposes? Mr. Tenenbaum wasn’t downloading the songs for the purpose of writing legal scholarship articles on them, however, he isn’t accused of selling bootleg copies of albums he downloaded, either. Society wants reporters and educators to have access to information to share with the rest of us, and the fair use provision reflects that.

The nature of the copyrighted work, in this case, is probably the factual versus expressive distinction (in Harper and Row, it also referred to published versus unpublished works, but that’s irrelevant here). Were the songs Mr. Tenenbaum downloaded factual works, or expressive works? The songs that the RIAA owns are expressive works: creative pieces written to entertain. By contrast, the articles the AP writes are factual reports of historical events. Society has a greater interest in straightforward presentations of facts than musings about muffin tops. Mr. Tenenbaum will be hard pressed to convince any court that society’s interest in “My Humps” should override the author’s copyright. The Fair Use defense works better when you’re trying to share something factual and educational, like an AP article, than it does when you’re trying to share something like My Humps.

The “amount of work used” is pretty obviously not in Mr. Tenenbaum’s favor. He has admitted to downloading the entirety of each song in the complaint. In cases where you only use a little bit of the work in question, your use is substantially less infringey.

The last factor, “market effect,” is the beginning and end of the argument for most people that don’t know anything about the Fair Use defense. It’s true that if Mr. Tenenbaum’s downloading didn’t do anything to affect the market for legitimate, RIAA-sold copies of “My Humps,” his use seems a lot more fair. However, this is not determinative; in fact, none of the factors individually are determinative.

While the last factor, “market effect,” cuts in Mr. Tenenbaum’s favor (his downloading can’t seriously be said to affect the market in any significant sense), the first three factors all cut against him. With three factors that cut against him, Mr. Tenenbaum’s Fair Use defense will be an uphill one. In a future post, I’ll try to sort out how Mr. Tenenbaum’s appeal will go.

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