Surreality Check

A Savage Writer's Journal

February 2004
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Last Month (January 2004)

05 February 2004

There has been an unusually high proportion of headless-chicken behavior around here of late. You! Yes, you, in the purple tank-top in the back row! It's not possible to be more than 100%, so don't even ask! Now down and give me 25 pages, maggot. That's 20 for me and 5 for the Internet. Between administrative stuff like taxes, library maintenance (my library), emergency activation of a new bookshelf—books breed faster than rabbits around here, and would even if Lucy didn't do such a wonderful job keeping the local rabbit population under control—and demands on my mundane personality's time on the one ventral fin, and family issues on the other ventral fin—enough for several ventral fins' worth, but the details are not for here—there hasn't even been enough time to snack on helpless swimmers; any swimmer in the weather outside (it's a blazing 12°C today, we had two inches of combination sleet/snow/ice last night to go with the nine inches or so remaining after the meltoff on Wednesday) is definitely helpless. Or at least hopeless. Dammit, I was trying to make that sentence run somewhat longer.

In any event, I should be more regular about posting now. And it has nothing to do with Senokot… although a few people may be of a different opinion as to the quality of the output.

The library maintenance includes both paper and electronic libraries. I'm in the process of converting almost all of my law library materials from word-processing formats to HTML; much of my "writing time" over the last few days has been spent writing code to automate the process. Why code? Because it takes over three CD-ROMs to hold the word-processing files just of case law that I've collected over the years. That doesn't include PDF stuff (such as Supreme Court opinions) that needs to stay PDF, or secondary sources like law review articles and treatises. It most especially doesn't include anything related to specific matters only. So the only fiction that I've done in the last month has been my tax return (which I filed over a week ago, nyaaah nyaah nyaah—one of the few advantages of being self-employed is that one need not wait for W-2s to arrive).

10 February 2004
Prepare to Be Boarded!

The long-awaited, eagerly anticipated decision in Ellison v. Robertson (AOL) was issued today. We won what we had to and some bonus stuff. Basically, the Court of Appeals decided that we have a jury-worthy claim for contributory infringement and that we have a jury-worthy claim that AOL is not eligible for any DMCA safe harbor because it did not comply with 512(i). This is enough to send the case back so that Harlan gets his day in court.

The "half a loaf" is that the Court of Appeals agreed with the District Court that we do not have a jury-worthy claim for vicarious infringement, but that the District Court's reasoning was incorrect. This turned on particular factual findings, while the District Court's reasoning turned on a (mistaken) conception of the law. Basically, what this did is get rid of some bad law; for that reason, it advances and clarifies the state of the law with a pretty copyright-holder-friendly test.

The "crumbly crust" is that the Court of Appeals, incorrectly in our opinion, agreed with the District Court that USENET is a "transitory" and not "stored" communications channel. Curiously, neither court even acknowledged the existence of contrary authority from the Fourth Circuit, even though both parties briefed it. Oh, well. If we win the two items in the first paragraph of this entry, this won't matter to Harlan, because he will have won his case.

27 February 2004

Sorry about the gap; it was unplanned. Between work, family, and a sprained wrist, I've had to severely limit my typing over the last couple weeks. My own writing, including this journal, had to be sacrificed—and this entry will still be a short one. The sprain was courtesy of the literary agent in the family—she was a bit overenthusiastic while I was standing on a small patch of ice outdoors.

I was somewhat amused, during the not-down-but-frustratingly-unproductive-time, by a few news stories and other bits of trivia that popped up. (Nothing at all like VH1's unlamented "popup videos," by the way.) In no particular order, these included a <SARCASM> shocking, unexpected, and outrageous complaint </SARCASM> that too many books in England are contracted based on oversimplified synopses that don't give sufficient guidance. Hey, I've done that myself! The "unwritten book synopsis" is the standard way of selling nonfiction books in this country; a substantial majority of the nonfiction books actually published by the major and mid-major publishers did not have complete manuscripts at the time of contracting.

Of more interest, Neil Gaiman beat Todd McFarlane about the head and shoulders with a big IP 2x4. In Gaiman v. McFarlane, the Seventh Circuit Court of Appeals (Posner, J.) held that the statute of limitations on a copyright claim does not begin to run until the author has actual notice of infringement. This does not include printing of copyright notices in compilations that do not acknowledge the author's individual copyright, or applications to register copyright in the compiler's name, or later negotiations over compensation that do not clearly state that the compiler is also claiming the complete copyright. This is a very important issue by itself, but it pales compared to the other main holding: that contributors to a multimedia character may claim copyright in the character under many circumstances even absent sufficient copyrightable originality in their contributions. Of course, this doesn't apply to works for hire, which is the standard in the comics segment of the publishing industry; but those works in which

two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright…. The decisions that say, rightly in [most] cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren't thinking of the case in which it couldn't stand alone because of the nature of the particular creative process that had produced it.

Although on its face this concerns comic books, it probably applies to far more than that; note that Judge Posner is concerned with the process of creation, not just the result. Thus, if sixteen people got together and, by brainstorming, each contributed an idea that is critical to the resulting product, but that is not independently copyrightable because it is not original enough, the resulting product could still be copyrighted—and each of those sixteen people would have a claim on that copyright. Is your head spinning yet? It gets better… but I can't discuss that due to a potential matter on which I've been consulted. Yet.

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