Category Archives: Legal

Quick legal-related links

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EFF:  “Courts Call Out Copyright Trolls’ Coercive Business Model, Threaten Sanctions.”  Apparently discovery (in the legal sense of the term) isn’t what it used to be…

Ars Technica:  “Supreme Court weighs legality of putting public domain works back under copyright.”  Golan v. Holder is shaping up to be one of the biggest copyright decisions by the Supreme Court in years.  The briefs are available at SCOTUSblog.

WSJ @ Truth on the Market –> “Litigation funding grows.”  Hedge funds enter the world of litigation…as an investment opportunity.

Righthaven loses in Colorado

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Last week, Righthaven was flirting with bankruptcy due to legal fees associated with a Nevada case.  This week, the fees keep piling up, this time in Colorado:

Righthaven’s only interest in the Work is “the right to proceeds in association with a Recovery.”  The Copyright Assignment Agreement defines “Recovery” as “any and all sums . . .arising from an Infringement Action.”  Thus, when read together, the Assignment and the Copyright Assignment Agreement reveal that MediaNews Group has assigned to Righthaven the bare right to sue for infringement – no more, no less.  Although the assignment of the  bare right to sue is permissible, it is ineffectual….Accordingly, Righthaven is neither a “legal owner” or a “beneficial owner” for purposes of § 501(b), and it lacks standing to institute an action for copyright infringement….I convert Mr. Wolf’s Rule 12(b)(1) motion to a Rule 56 motion and GRANT him SUMMARY JUDGMENT.  Furthermore, in light of the need to discourage the abuse of the statutory remedies for copyright infringement, I exercise my discretion under Section 505 of the Copyright Act and ORDER that Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees. [emphasis added]

More coverage from Ars Technica, Techdirt, and the EFF (h/t).

Princeton: our scholars must own their copyrights

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The 1709 Blog writes about Princeton University’s new Open Access policy:

[L]ibrarians and academics have long known that journal publishers monopolise the market; even as much as ten years ago the larger publishers were busy buying out the smaller ones who weren’t strong enough to compete with them. But outside of academia people are largely unaware of the struggles every electronic resources librarian faces each year as budgets shrink and journal bundle prices steadily increase. Tough decisions often have to be made, and naturally the impact is felt by researchers, academics and students.

Which is why today’s announcement that Princeton University is enforcing an Open Access policy forbidding academics from transferring the copyright in their articles to journal publishers is so significant. Academics are required to licence their work instead, so that they retain the copyright and are therefore able to reproduce it elsewhere without having to seek the permission of the publisher. This could spark a welcome trend which would allow academics and universities to maximise their outputs and revolutionise knowledge sharing. [emphasis added]

In many disciplines–particularly the sciences–scholars already pay journals to publish them.  In other words, the scholars’ universities foot some or all of the bill for peer review and editing (in addition, of course, to “subsidizing” scholars by way of salaries).  Especially in these circumstances, it seems that the scholar/university have a lot of leverage to do what Princeton is doing here since academic publishers’ leverage to push back is directly tied to their value-add.  Since, under these particular circumstances, the publishers are adding almost no value, their leverage is near zero.

A more interesting question arises where the academic publishers add more value–i.e., where the publisher directly incurs the editing and peer reviewing costs.  There, the scholar/university may well get more push back.

If other colleges and universities follow Princeton’s lead, traditional academic publishers could find themselves effectively cut out of the market very quickly.

Having to “prove” racism versus assuming that it is a common feature of American life

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In defending some comments she made regarding white liberals and their support for President Obama, Melissa Harris-Perry looks at three common objections to conversations about race in the United States: “prove it,” “I have black friends,” and “who made you an expert?” While these are all familiar responses, the first one is a particularly sociological point that raises questions about how we view society and how this plays out in court:

The first is a common strategy of asking any person of color who identifies a racist practice or pattern to “prove” that racism is indeed the causal factor. This is typically demanded by those who are certain of their own purity of racial motivation. The implication is if one cannot produce irrefutable evidence of clear, blatant and intentional bias, then racism must be banned as a possibility. But this is both silly as an intellectual claim and dangerous as a policy standard.

In a nation with the racial history of the United States I am baffled by the idea that non-racism would be the presumption and that it is racial bias which must be proved beyond reasonable doubt. More than 100 years of philosophical, psychological and sociological research that begins, at least, with the work of W.E.B. Du Bois has mapped the deeply entrenched realities of racial bias on the American consciousness. If anything, racial bias, not racial innocence is the better presumption when approaching American political decision-making. Just fifty years ago, nearly all white Democrats in the US South shifted parties rather than continuing to affiliate with the party of civil rights. No one can prove that this decision was made on the basis of racial bias, but the historical trend is so clear as to require mental gymnastics to imagine this was a choice not motivated by race.

Progressives and liberals should be particularly careful when they demand proof of intentionality rather than evidence of disparate impact in conversations about racism. Recall that initially the 1964 Civil Rights Act made “disparate impact” a sufficient evidentiary claim for racial bias. In other words, a plaintiff did not need to prove that anyone was harboring racial animus in their hearts, they just needed to show that the effects of a supposedly race neutral policy actually had a discernible, disparate impact on people of color. The doctrine of disparate impact helped to clear many discriminatory housing and employment policies off the books.

Michelle Alexander brilliantly demonstrates in The New Jim Crow, the pernicious effect of the Supreme Court moving away from disparate impact as a standard to forcing plaintiffs to demonstrate racist intention. This new standard has encouraged the explosive growth of incarceration of African-Americans, turning a blind eye to disparate impact while it demands “proof” of racial bias.

I believe we must be careful and judicious in our conversations about racism. But I also believe that those who demand proof of interpersonal intention to create a racist outcome are missing the point about how racism works. Racism is not exclusively about hooded Klansmen; it is also about the structures of bias and culture of privilege that infect the left as well.

I like how Harris-Perry flips this objection: looking at the broad sweep of American history, from its days of more overt racism to more covert racism today, why don’t we assume that racism plays a role in everyday life in this society? Can we really assume, as many seem to do, that the issues with race ended at some point, either in the Civil Rights legislation of the 1960s or in the election of minority politicians or the ending of segregationist society in the South? With plenty of indicators of racial disparity today, from online comments from young adults to incarceration rates to homeownership to wealth to residential segregation, perhaps we should we see racism as a default feature of American society until proven otherwise.

Harris-Perry hints at one reason why it is difficult for Americans to see the effects of racism: the court system moving to the burden of proof shifting to “proving” “racist intention.” Without the proverbial smoking gun, it then becomes more difficult to develop arguments just from data and patterns, even if they are overwhelming. While the recent court case involving gender discrimination at Walmart and sociologists siding with the prosecution isn’t about race, it illustrates some of these principles. The data suggests discrimination may have taken place as more women did not receive promotions or pay raises. But without “proof” that this was a deliberate Walmart policy meant to harm women, the numbers may not be enough. The same holds true with race: “statistical discrimination,” stereotypes about large groups of people, may be okay because no individual or corporation can be held directly responsible for the outcome.

The civil rights argument against NCAA Division I football and men’s basketball

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The cover story of the latest Atlantic, “The Shame of College Sports,” is provocative and fascinating. The article is mainly about a series of court cases involving the civil rights of “student-athletes” and procuring a share of the NCAA’s football and men’s basketball profits for these “student-athletes.” After reading the full argument, it is difficult to feel much goodwill toward the NCAA.

Patent trolls: 20 years, $500 billion in losses

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One of my BU law professors, Mike Meurer, just posted a working paper (pdf) he co-authored with James Bessen and Jennifer Ford titled “The Private and Social Costs of Patent Trolls.”  Quoting the abstract:

In the past, non-practicing entities (NPEs) — firms that license patents without producing goods — have facilitated technology markets and increased rents for small inventors. Is this also true for today’s NPEs? Or are they “patent trolls” who opportunistically litigate over software patents with unpredictable boundaries? Using stock market event studies around patent lawsuit filings, we find that NPE lawsuits are associated with half a trillion dollars of lost wealth to defendants from 1990 through 2010, mostly from technology companies. Moreover, very little of this loss represents a transfer to small inventors. Instead, it implies reduced innovation incentives.

This works out to around $25 billion in lost wealth per year.  For comparison, even in its pre-Napster days, the RIAA only sold $14.7 billion per year—more than $10 billion less.

H/T Groklaw.

Update:  More analysis by Ars Technica.

The norms of college protests in court

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Arguments in a California courtroom revolve around this question: what are the norms governing college protests?

Sociologist Steven Clayman took the stand on Thursday, the final day of testimony. He is an expert in “speaker-audience interaction,” and has written a scholarly article titled, “Booing: The Anatomy of a Disaffiliative Response,” which examines environments such as presidential debates, TV talk shows and British Parliament. He believes audience participation cannot be prevented because members of the crowd are “free agents,” able to express approval or disapproval of what a speaker is saying.

Having watched a video of the Irvine 11 incident, Clayman affirmed that the audience response seemed to be a “normal and unavoidable” part of Ambassador Michael Oren’sspeech.

Lead prosecutor Dan Wagner then fired, “It’s unavoidable that 10 people would stand up with planned statements that have nothing to do with what the speaker is saying? . . . Are you saying that the only way to prevent [protests] is to put a straitjacket and muzzle on them?” The questions were stricken by the judge.
Ten UC Irvine and UC Riverside students have been charged with misdemeanor conspiracy to commit a crime and misdemeanor disruption of a meeting. To be convicted of the latter, one must commit an act that violates the “implicit customs” or “explicit rules” for the event. The defense team claims the defendants did neither, arguing that they were merely following the norms and customs of protests on college campuses.

So what exactly is “normal” college protest behavior? A number of colleges have faced these questions in recent years as protests have moved from just being outside the event to occurring during the event. Think the “Don’t Tase Me Bro” incident of 2007. Or witness the various pie-throwing attempts involving politicians. I wonder if this trial is then less about whether such actions are harmful but rather how these norms have changed over the decades and whether there is widely understood agreement about these changes.

Of course, this particular trial in California involves a number of contentious political and social issues.

I wonder if this case, and other similar ones, will lead to more schools creating more explicit rules about what is allowed and not allowed in on-campus protests and to make this information widely known.

The Freakonomics of fair use

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The NYTimes’ Freakonomics blog uses the subject of poetry criticism to tackle fair use:

In a recent article, the poetry critic of the New York Times complained that to do poetry criticism right, it’s often necessary to quote extensively from a poem. Indeed, in the case of a short poem, it might be helpful to readers to copy the whole thing. But, the critic said, this can’t be done because it might run afoul of copyright law.

It is true that copyright law prohibits the unauthorized copying of any substantial part of someone’s poem, song, or other work.…Is this a good policy?  From an economic perspective, no.

The reason this is bad policy, however widely discussed, bears repeating:

Use of a small bit of someone else’s creative work to build a new creative work rarely harms the economic interests of the first copyright owner, because most “derivative” works do not directly compete with the original.

Every creator builds on what came before, and such building usually doesn’t “compete” with that earlier work in any economic sense.  Creating legal fear and uncertainty about building on the past, however, is quite effective in limiting the creation of new works in the present.

Accessing the public domain through JSTOR

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Academic journal archiver JSTOR has just made public domain articles a lot more accessible:

[W]e are making journal content on JSTOR published prior to 1923 in the United States and prior to 1870 elsewhere, freely available to the public for reading and downloading. This includes nearly 500,000 articles from more than 200 journals, representing approximately 6% of the total content on JSTOR.

We are taking this step as part of our continuous effort to provide the widest possible access to the content on JSTOR while ensuring the long-term preservation of this important material.

Mike Masnick over at Techdirt recounts some history that provides context for JSTOR’s decision:

You may recall that following the indictment of Aaron Swartz for downloading some JSTOR papers, a guy named Greg Maxwell decided to upload 33GBs of public domain papers from JSTOR and make them available via The Pirate Bay. He had the papers for a while, but was afraid that he’d get legally harassed for distributing them.

JSTOR explicitly acknowledge this history in its announcement (emphasis added):

I realize that some people may speculate that making the Early Journal Content free to the public today is a direct response to widely-publicized events over the summer involving an individual [Aaron Swartz] who was indicted for downloading a substantial portion of content from JSTOR, allegedly for the purpose of posting it to file sharing sites. While we had been working on releasing the pre-1923/pre-1870 content before the incident took place, it would be inaccurate to say that these events have had no impact on our planning. We considered whether to delay or accelerate this action, largely out of concern that people might draw incorrect conclusions about our motivations. In the end, we decided to press ahead with our plans to make the Early Journal Content available, which we believe is in the best interest of our library and publisher partners, and students, scholars, and researchers everywhere.

Regardless of how this happened, I applaud JSTOR for greatly furthering access to public domain academic journal articles.

H/T Techdirt/Copycense.

Righthaven “nearing bankruptcy”

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I was suspicious several days ago when I heard that Righthaven might be going under, but apparently it’s true:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

Wired has posted Righthaven’s Motion to Stay here (pdf).  They are exceptionally candid about the economics of copyright troll litigation:

In Colorado, 35 Righthaven copyright infringement cases have been stayed since May 19, 2011 pending a ruling on whether the company has standing to maintain these actions. Likewise, ten infringement actions, most of which involve an amended version of the SAA that addresses the concerns expressed by this Court in its subject matter decision, have been stayed in this District until a standing determination is made. Thus, Righthaven has been precluded from actively litigating and resolving the stayed cases. Moreover, Righthaven has delayed filing new copyright enforcement actions until a standing determination is made based upon the terms of the currently operative version of the SAA. Throughout this period, and despite a lack of incoming revenue given that numerous pending action are stayed, Righthaven has continued to incur operating expenses.

Clearly, Righthaven is a cash-poor outlet these days.  And here’s where things get really interesting:  based on its motion, Righthaven seems deathly afraid that they might have to sell some of their assets to satisfy a $34,000 judgment.  As they explain to the court:

Righthaven also has significant proprietary rights in its copyright infringement search engine software (the “Software”), which plays an integral role in the company’s operations. If a stay is not granted pending appeal, this valuable Software may be seized and liquidated in an attempt to satisfy the Judgment. Liquidation may result in the Software being sold to a competing organization or entity.

Talk about woeful undercapitalization.  A $34,000 judgment is going to force them into selling off their core business assets?  Really?

Righthaven always presented defendants in its copyright litigation with an unfair dilemma:

(1) pay out a few thousand in “go away” money now, or
(2) mount an actual legal defense (at an initial, minimum cost of a few thousand, with no guarantees that things would work out well).

It seems that Righthaven now faces a dilemma of its own:

(1) raise enough capital to pay off this $34,000 pending appeal, or
(2) go bankrupt.

The difference, of course, is that the dilemma Righthaven faces is fair.  They put defendants to the expense of hiring lawyers.  Some of those defendants won.  The law says that those winning defendants should have their legal expenses paid by Righthaven.  Sounds about right to me.  If Righthaven can’t afford to pay without selling assets, perhaps they never should have been filing lawsuits in the first place.