Category Archives: Legal

They do hold it against you

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Britney Spears may not want anyone to “Hold It Against Me” according to her latest single, but the U.K.’s Daily Mail is reporting that Bellamy Brothers [Wikipedia backgrounder] are considering a lawsuit against the pop star:

Britney is accused of ‘ripping off’ the rock ballad If I Said You Had A Beautiful Body Would You Hold It Against Me by the Bellamy Brothers.

The American singers claim Britney’s song is too close to their own 1979 hit which topped the charts in six countries, and David and Howard Bellamy are set to met with lawyers, according to reports.

The Daily Mail has embedded two YouTube videos at the bottom of their article if you want to compare the two songs directly for yourself.

My personal opinion is that the songs have little in common besides two scène à faire concepts endemic to popular love songs:  (1) “I want you badly/physically.”  (2) “Please don’t hate me for (1), aforementioned.”  Is the mere fact that both are invoked in rapid succession really enough to establish copyright infringement?  To be sure, Britney uses the the same “hold it against me” phrase that the Bellamy Brothers use, but does that extremely short phrase even have enough originality to establish copyrightability?

Notwithstanding all this, my guess is that the (albeit small) legal risk of losing may be more than the label wants to deal with.  After all, American courts have found that even subconscious copying is enough to infringe (and against a former Beatle, no less!).  More to the point, there would be substantial legal defense costs for Britney’s label, win or lose.  Rational decision:  give the Brothers a quiet, out-of-court settlement just to make them go away.

Update 2/21/2011: In the comments, Jennifer points out that the chorus in Survivor’s “I Can’t Hold Back” is also incredibly similar to Spears’ single (YouTube link). I agree — frankly, it seems a lot closer to me than to the Bellamy Brothers song.

However, my response to this line of argument is, “so what?” As several comedians have pointed out, pop songs are notoriously one-dimensional, consisting of endless iterations of Pachabel’s Canon in D and/or four chords. When it comes right down to it, drawing lines between where one song starts and another stops is nearly impossible, which is why academic musicologists often end up as expert witnesses at music infringement trials (billing several hundreds of dollars per hour — a pretty good gig).

This is a fundamental problem with a legal system that considers copyrights “property” in the same sense that, say, land is “property”. For the most part, land’s boundaries are clear/definable, and one can know if one has trespassed. But how can one know (with anything approaching certainty) that one has trespassed/infringed a copyright? The lines are inherently abstract, vague, and therefore subject to debate.

Upshot: a zealous (and deep pocketed) copyright owner ends up owning more. An overzealous landowner may sue anyone and everyone who so much as puts a toe over her property line, but her vigorous defense of her property boundaries does not change where those lines actually are. But this is arguably not the case with the overzealous copyright owner. With copyright, defense becomes offense and the copyright’s limits actually expand as the public starts giving copyright owners a wider and wider berth. There are all-too-many examples of this documented over at Chilling Effects.

Update 2/22/2011:  According to a post over at the ABA Journal, here comes the aforementioned expert, right on cue:

A “renowned musicologist” is evaluating the two songs, [Bellamy Brothers laywer Christopher] Schmidt says….

China and default

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No, I’m not talking about the U.S. defaulting on the enormous amount of debt it owes to China.  I’m talking about the relatively small matter of $2.3 billion that a California district judge levied against China as a sovereign government for copyright infringement. As part of a default judgment, no less:

About a year after Cybersitter sued the Chinese government and several Asian OEMs for allegedly copying its code to create the “Green Dam” software, a U.S. federal judge has allowed the $2.3 billion suit to proceed.

Judge Josephine Staton Tucker, a California district judge, entered a judgement of default against the People’s Republic of China on Wednesday, after PRC officials failed to respond to the ruling. Although the PRC’s embassy sent a letter to the U.S. State Department protesting Cybersitter’s suit, such a letter did not qualify as a formal response.

The National Law Journal has additional coverage here.

My guess is that this suit is going to generate a lot of headlines and go absolutely nowhere (at least against China — the co-defendants may not be so lucky).  As a matter of law, China has a powerful argument for sovereign immunity, no matter what District Judge Josephine Tucker’s interpretation of the U.S.’ own Foreign Sovereign Immunities Act (FSIA) is.  And practically speaking, there’s pretty much no way that Cybersitter is going to be able to collect on this default judgment.  No doubt it will be tossed back and forth in official diplomatic communications for a while, but it’s quite doubtful that any money will ever change hands.  Unless, of course, one speaks of the money China will continue to pay the U.S. for Treasuries.

Oh wait…

Law jobs in Jeopardy

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There’s been a lot of talk this week about Watson’s appearance on Jeopardy! — and its win.  Now, the pundits are trying to digest what the implications will be now that Watson has already been hired as a physician’s assistant.

What, specifically, does this mean for lawyers?  Robert C. Weber, a senior VP and general counsel at IBM, breaks it down for us over at over at the National Law Journal:

Imagine a new kind of legal research system that can gather much of the information you need to do your job — a digital associate, if you will. With the technology underlying Watson, called Deep QA, you could have a vast, self-contained database loaded with all of the internal and external information related to your daily tasks, whether you’re preparing for litigation, protecting intellectual property, writing contracts or negotiating an acquisition. Pose a question and, in milliseconds, Deep QA can analyze hundreds of millions of pages of content and mine them for facts and conclusions — in about the time it takes to answer a question on a quiz show.

But won’t this mean fewer jobs for lawyers?  Oh no, reassures Mr. Weber:

Deep QA won’t ever replace attorneys; after all, the essence of good lawyering is mature and sound reasoning, and there’s simply no way a machine can match the knowledge and ability to reason of a smart, well-educated and deeply experienced human being. But the technology can unquestionably extend our capabilities and help us perform better.

Humanity — I mean — lawyers win, huh?  This is great!  Where can I put Watson to work?

The technology might even come in handy, near real-time, in the courtroom. If a witness says something that doesn’t seem credible, you can have an associate check it for accuracy on the spot.

Wait a minute — I thought you said that we’ll always need lawyers?  But if using Watson/Deep QA is just as easy as running a Google search against a witness on the stand, why do you need to have an associate perform it?  Associates are expensive, or, at least, used to be.  Why not a paralegal?  Why not someone even cheaper, with even less training?  Are you sure it has to be an actual lawyer?  (Besides, Weber also tells us that “We’re pretty sure [Watson] would do quite well in a multistate bar exam!”)

Perhaps when he said Watson “won’t ever replace attorneys,” Mr. Weber meant that Watson won’t ever replace someone like himself:  a successful, established, general counsel at a Fortune 500.  You know, the sort of person who passes off his “research” to an “associate.”  Or whomever.  Or whatever.

I’m not buying it, Weber (neither is Above the Law, for whatever that’s worth).  Watson is going to put a lot of lawyers out on the street, which is precisely the conclusion that Andy Kessler comes to over at the Wall Street Journal.  In Kessler’s colorful employment taxonomy, lawyers are classified as “sponges”:

Sponges are those who earned their jobs by passing a test meant to limit supply. According to [the WSJ], 23% of U.S. workers now need a state license….All this does is legally bar others from doing the same job, so existing workers can charge more and sponge off the rest of us.

But eDiscovery is the hottest thing right now in corporate legal departments. The software scans documents and looks for important keywords and phrases, displacing lawyers and paralegals who charge hundreds of dollars per hour to read the often millions of litigation documents. Lawyers, understandably, hate eDiscovery.

We can argue whether this is a good for society overall (or not).  But come on, Weber.  Don’t say that Watson “won’t ever replace attorneys” when what you really mean is that “I personally am going to be able to keep my job.”

Dressing up a terrible idea

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Early last week, NPR’s Morning Edition ran a story about the Mardis Gras Indians (Wikipedia backgrounder) who are attempting to copyright their costumes in order to collect money from photographers who take pictures of the festivities in New Orleans.  In the words of Howard Miller of the Creole Wild West Mardi Gras Indians:

For years we had the fear that we have been exploited. They [the photographers] had been taking advantage of us and coming in and snapping pictures. In selling the pictures, we see them everywhere – magazines, even in art galleries being sold and we are not getting anything from it.

Enter Ashlye Keaton, an adjunct law professor at Tulane Law School, who is representing Mr. Miller:

[The costumes] fall under copyright protection as works of art, as sculptures because the designs are sewn onto canvas and other materials and they are worn not as costumes, but they’re worn over clothing. So they’re not functional, which qualifies them for copyright protection as a sculptural work of art pursuant to the copyright act.

Mike Masnick over at TechDirt picked up on this story this morning.  Like me, he thinks this is a terrible idea:

[T]his whole thing goes against the very purpose of copyright law, which was to provide an incentive to create. But these guys have plenty of incentives to create that have nothing to do with copyright. Basically, they’re just upset that someone, somewhere might make money selling a calendar of Mardi Gras photos without paying them first….In the interview, the Mardi Gras Indian they interview makes no argument at all about incentives to create. Instead, he goes with the “I think that’s fair” argument for why photographers should pay him. Well, those photographers don’t think it’s fair — and copyright law is not about what someone thinks is fair. It’s about the incentive to create, and it makes no sense in this context.

Masnick makes a few other points:

  • That costumes are clothing a thus cannot be protected with copyrights.
  • That any photographs of the costumes would be a fair use because they would be “transformative” (citing a case about Grateful Dead concert posters).

I think one of the more pernicious effects of the expansion of intellectual property legal entitlements is that people now think they should be paid any time someone else makes money.  This is simply not the way the world works.  I won’t expand too much on Masnick’s points, but I would like to make a few point of my own about unsolicited benefits.

If I buy a house and put a beautiful garden in the front yard, I may well raise the property values of every house on my street.  Does the law allow me to collect any money from my neighbors?  No.

If I squeegee your windshield without being asked to while you are stuck in traffic, can I demand that you pay me?  No.

To be sure, Mardis Gras provides real benefits to lots of people, and Mr. Miller’s costume no doubt contributes to that general benefit.  As a general rule, however, the law doesn’t reward people just because they provide other people with benefits.  Why?  It’s generally unfair to foist such a responsibility on others (that’s why “squeegee men” are considered such a public nuisance.)  Moreover, it’s way too costly for courts to figure out who should pay who in what amounts after the fact.  Far better to let people strike their own bargains — to pay for communal landscaping through a homeowner’s association or to take their cars to a car wash.

If the Mardis Gras Indians want payment from their costumes, they have plenty of options.  They can:

  • collect donations.
  • look for a corporate sponsor, sell advertising, and/or give commercial endorsements.
  • sell their costumes to others.
  • perform in a private parade (with paid tickets).

What they can’t do, however, is simply take those costumes, walk down a public street in a free parade open to the public, and expect to be paid for it.  It just doesn’t work that way.

Follow-up: Netflix vs. sewage

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Update:  There is a follow-up post available here.

Last week, I posted a reply to Alan Roth’s post over at The Hill comparing the economics of Netflix with D.C. sewage treatment.  Although Mr. Roth sent his follow-up later that same day, I have not had a chance to respond until now.  Here is what he said:

Thanks for your comment and for giving me the opportunity to reply and clarify. Unfortunately, I think you ARE missing something — or at least, not understanding my basic point.

For starters, despite the title of your blog entry, this has nothing to do with net neutrality. Netflix’s own CEO acknowledges as much in his shareholder letter, where he says that the FCC’s recent Open Internet order dealt with ISPs’ relationships with their retail customers, not their business arrangements with upstream wholesalers. He then goes on to make an argument about who should bear what costs.

My analogy likewise relates to the issue of equitable cost-sharing among the users of a network. And whatever you might want to say about who provides how much “value” and to whom, the fact is that the data bits in question here are largely flowing in one direction, just as the sewage being treated at Blue Plains is flowing in one direction.

You’re right that Netflix has built or rented its own lines up to the interconnection point with the local ISP — just as the suburbs have built their own sewer lines up to the interconnection points at the DC border. But the expense of taking both the data and the sewage to their ultimate destination is vastly greater in the last mile than in the first. If WASA’s retail ratepayers had to foot that whole bill themselves, you could be sure that one of two things would happen: Either DC would tell the ‘burbs, “sorry, ain’t gonna take your sh*t no more,” or DC would stop investing in its sewage treatment capacity at Blue Plains and elsewhere in its system. Or both.

Not a good outcome there. If reasonable, thoughtful people in the DC metro area have been able to agree that the sharing of capital, operating, and maintenance costs for that ultimate destination is both appropriate and economically sensible, it’s hard to believe that Netflix — which currently pays the US Postal Service hundreds of millions of dollars each year to have a postal worker deliver its DVDs to its customers’ homes — doesn’t think it should have to pay a cent to get the same end product to those homes via a different delivery infrastructure.

But I do appreciate your willingness to engage in a healthy dialogue and to allow me to draw out the analogy a little further.

Here is my reply:

I guess we’re still at an impasse on the issue of who is paying for what. In the long run, it is the customers that are paying for the total cost of service provided, both for sewage and for video on demand.

In the case of sewer services, the retail customers pay their suburban sewage provider money to make their sewage go away. They don’t really care how it happens; they just want it to happen. According to your description of the process, “how it happens” involves a two-step process: (1) the local D.C. suburb maintains the lines to local houses that first take the sewage away and (2) WASA maintains the Blue Plains facility that treats the waste. I agree with you that it is totally appropriate for WASA to require payment from local suburbs for step (2) as a “subcontractor” (probably not the technical, legal relationship, but seems to be functionally equivalent). I think we also can both agree that the suburbs probably pass on their costs for step (2) directly to their retail customers.

In the case of Netflix, however, the retail customers pay TWO entities: (1) their ISP and (2) Netflix. You are correct that a similar, two-step process occurs with the video delivery as with the sewage: (1) the ISP maintains the lines to local houses that bring the bits in and (2) Netflix maintains the servers and the connections to the “regional front doors” (to use your phrase) that provide the streaming. (Also, of course, Netflix pays the underlying content owners for the use of their works.)

Again, however, unlike with D.C. sewage, the retail customer is paying both actors directly: both the ISP and Netflix are receiving a monthly payment from the customer.

Given this state of affairs, I’m more than a little confused by your argument that the ISPs have the moral high ground in demanding payment from Netflix. All ISP’s are providing here is a connection to the wider Internet (to the “regional front doors”). Retail customers then pay Netflix for the rest because Netflix is providing the rest. On what basis do the ISP’s challenge Netflix’s contention that it “should pay only to transport its bits to a regional gateway, after which the costs of delivery to the end point would fall on others”? Doesn’t that precisely reflect how retail customers are being billed?

The only justification I can see for your position is if subsidies are involved-in other words, ISP’s are somehow lowering their retail customers’ bills for Internet service because they are paid by content providers. If that’s true, however, that is very different situation from the D.C. sewage situation to which you analogize.

Feel free to jump in with comments.

Senate hearing on COICA

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Ars Technica has a good wrap-up of yesterday’s Senate Judiciary Committee hearing on the proposed Combating Online Infringement and Counterfeits Act (COICA):

The bill would give the government legal tools to blacklist a “rogue” website from the Internet’s Domain Name System, ban credit card companies from processing US payments to the site, and forbid US-based online ad networks from working with the site. It even directs the government to keep a list of suspect sites, even though no evidence has been presented against them in court.

If you’d like to watch the hearing yourself, video is available on the Senate’s website (note:  the actual video doesn’t begin until around the 20 minute 15 second mark).

All the world’s a fair use

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If you’re out in San Diego sometime during the next month, you might want to check out a staging of a 2009 play written about the copyright concept of fair use:

The play “Fair Use” borrows from the romantic epic “Cyrano de Bergerac.” [Wikipedia backgrounder] It also borrows from a legal doctrine about borrowing….It becomes a plot point in “Fair Use” when an author is sued for supposedly appropriating the work of another writer without permission. The “Cyrano” angle comes in when a love triangle sprouts at the Chicago law firm representing the writer.

As reviewer James Herbert dryly notes,

It would be ironic (and yet pretty good theater, in a way) if a stage show that meditates on the violation of copyright got hauled into court for that very offense. But not to worry: “Cyrano” is long since in the public domain.

That is almost too bad.  For my money, it’s nice when art imitates life.  For your money, the show is $31-33.  However, if you go see it on March 7, it’s pay-what-you-can.

Thinking about a legal framework for a potential apocalypse

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This story about the State of New York thinking about the legal challenges of an apocalyptic event might cause one to wonder: why are they spending time with this when there are other pressing concerns? Here is a description of some of the issues that could arise should an apocalypse occur:

Quarantines. The closing of businesses. Mass evacuations. Warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. It is all there, in dry legalese, in the manual, published by the state court system and the state bar association.

The most startling legal realities are handled with lawyerly understatement. It notes that the government has broad power to declare a state of emergency. “Once having done so,” it continues, “local authorities may establish curfews, quarantine wide areas, close businesses, restrict public assemblies and, under certain circumstances, suspend local ordinances.”…

“It is a very grim read,” Mr. Younkins said. “This is for potentially very grim situations in which difficult decisions have to be made.”…

The manual provides a catalog of potential terrorism nightmares, like smallpox, anthrax or botulism episodes. It notes that courts have recognized far more rights over the past century or so than existed at the time of Typhoid Mary’s troubles. It details procedures for assuring that people affected by emergency rules get hearings and lawyers. It mentions that in the event of an attack, officials can control traffic, communications and utilities. If they expect an attack, it says, they can compel mass evacuations.

But the guide also presents a sober rendition of what the realities might be in dire times. The suspension of laws, it says, is subject to constitutional rights. But then it adds, “This should not prove to be an obstacle, because federal and state constitutional restraints permit expeditious actions in emergency situations.”

Isn’t it better that authorities are doing some thinking about these situations now rather than simply reacting if something major happens? This reminds me of Nasim Taleb’s book The Black Swan where he argues that a problem we face as a society is that we don’t consider the odd things that could, and still do (even if it is rarely), happen. Taleb suggests we tend to extrapolate from past historical events but this is a poor predictor of future happenings.

Depending on the size or scope of the problem, it may be that government is limited or even unable to respond. Then we would have a landscape painted by numerous books and movies of the last few decades where every person has to simply find a way to survive. But even a limited and effective government response would be better than no response.

It would be interesting to know how much time has been spent putting together this manual.

Ethics and social science: grad student gets 6 months sentence for studying animal rights’ groups

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This is an update of a story I have been tracking for a while: a sociology graduate student who had studied animal rights’ groups was  sentenced to six months in jail. Here is a brief summary of where the case now stands:

Scott DeMuth, a sociology graduate student at the University of Minnesota, was sentenced yesterday to 6 months in federal prison for his role in a 2006 raid on a Minnesota ferret farm. A judge in Davenport, Iowa, ordered that DeMuth be taken into custody immediately.

In 2009, DeMuth was charged with felony conspiracy in connection with a separate incident, a 2004 lab break-in at the University of Iowa that caused more than $400,000 in damage. DeMuth argued that anything he might know about the Iowa incident had been collected as part of his research on radical activist groups and was therefore protected by confidentiality agreements with his research subjects. A petition started by DeMuth’s graduate advisor, David Pellow, argued that the charges violated DeMuth’s academic freedom.

Last year, prosecutors offered to drop all charges related to the Iowa break-in if DeMuth would plead guilty to a lesser misdemeanor charge related to the ferret farm incident. DeMuth took the deal. No one has been convicted in the Iowa break-in.

This has been an interesting case to introduce to students when teaching ethics amongst sociology and anthropology majors in a research class. Just how far should participant observation go? Couple this with another story, like Venkatesh knowing about possible crimes in Gang Leader for a Day, and a good conversation typically ensues.

However, this case does bring up some larger questions about how protected researchers and their subjects should be when carrying out their research. Should researchers have shield laws? How exactly do courts define “academic freedom” in cases like this?

CBS infringes…itself

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From the left-hand-doesn’t-know-what-the-right-hand-is-doing department, CBS appears to have infringed its own copyrighted works:

A CBS reporter embedded a video of one of their own pieces of content onto a CBS-owned web property. Only to have it soon yanked down by lawyers (or lawyer-bots – AKA auto-DMCA patrol).

Click on over to the original piece on The Future Buzz to see the screenshot, which is pretty hysterical.